the matter at hand

AKM holds a licence to exploit musical works, entitling it to exercise broadcasting rights in Austria on a fiduciary basis. Canal+ offers, in Austria, packages of encrypted programmes of various broadcasting organisations located in other Member States (the ‘satellite packages’). The introduction of each of the programme-carrying satellite signals into the chain of communication (uplinking) is carried out for the most part by those broadcasting organisations themselves, sometimes by Canal+.

The satellite packages contain free-to-air television programmes. Those programmes are not encrypted and may always be received by everyone in Austrian territory. AKM has brought an action seeking an injunction against the broadcasting by Canal+ of satellite signals in Austria and payment of damages, claiming that, in the Member States in which the act of broadcasting or of communication to the public by satellite takes place, no authorisation had been obtained for such exploitation and that it had not authorised that broadcasting in Austria. AKM submitted that that broadcasting served an additional category of Canal+ customers, which is not covered by the authorisations obtained, as the case may be, in the broadcasting Member States, by the broadcasting organisations concerned, for the purposes of communication to the public of the works in question by satellite, and that Canal+ should also have obtained an authorisation from AKM for broadcasting satellite signals in Austria.

Canal+ replied that it merely provides, with the consent of the broadcasting organisations, equipment enabling a signal introduced by those organisations outside Austria into a chain of communication leading to a satellite to be encoded. Under the broadcasting Member State principle laid down in Article 1(2)(b) of the Satellite and Cable Directive it is not AKM who is entitled to assert claims arising from the act of exploitation at issue in the main proceedings, but only the collecting societies of the copyright in the broadcasting Member State. Furthermore, that act of exploitation carried out by Canal+ is covered by the authorisations obtained in the broadcasting Member States by the broadcasting organisations concerned.

The Handelsgericht Wien (Commercial Court of Vienna) dismissed the action for an injunction prohibiting the broadcasting of satellite signals in Austria, but largely upheld both the action (in part in the alternative) seeking an injunction against the satellite broadcasting, directed towards Austria, of the programme signals at issue and the request for the production of documents related thereto. Hearing an appeal against that judgment, the Oberlandesgericht Wien (Higher Regional Court of Vienna), subsequently ruled broadly to the same effect. That court considered that the satellite packages reached a new public, that is to say, a different public from that for the broadcasters’ free-to-air transmissions. AKM, Canal+ and several broadcasters (in favour of the Canal+ views) brought appeals against that latter judgment before the Oberster Gerichtshof (Supreme Court of Austria), the referring court. The referring court decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

“Is Article 1(2)(b) of [the Satellite and Cable Directive] to be interpreted as meaning that not only the broadcasting organisation, but also a satellite package provider intervening in the indivisible and single act of broadcasting, carries out an act of exploitation – which in any case requires consent – simply in the State where, under the control and responsibility of the broadcasting organisation, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth, with the result that the intervention of the satellite package provider in the act of broadcasting is not liable to infringe copyright in the receiving State?”

the judgment of the ecj

The ECJ recalls, first of all, that, in order for the rule laid down in Article 1(2)(b) of the Satellite and Cable Directive to apply, there must be a ‘communication to the public by satellite’, within the meaning of Article 1(2)(a) and (c) of the Satellite and Cable Directive. With a reference to Airfield and Canal Digitaal (C‑431/09), the ECJ holds that it has already established that both the indirect and direct transmission must each be regarded as constituting a single communication to the public by satellite.

The ECJ underlines that the separate authorisation by right holder of a satellite (re)transmission is required, as it did in Airfield and Canal Digitaal (C‑431/09). The ECJ reiterates that: “copyright holders must authorise any communication of the protected works to the public by satellite and that, in order to determine the appropriate remuneration of those right holders for such communication of their works, all aspects of the broadcast must be taken into account, such as its actual audience and its potential audience.” (Paragraph 24). The ECJ continues by remembering which party is required to obtain authorisation: [..] such authorisation must be obtained, in particular, by a person who triggers such a communication or who intervenes when it is carried out, so that, by means of that communication, he or she makes the protected works accessible to a new public, that is to say, a public which was not taken into account by the authors of the protected works within the framework of an authorisation given to another person. [..] In that regard, the Court has already noted that, in accordance with Article 1(2)(a) of [Satellite and Cable Directive]”, a communication to the public by satellite [..] is triggered by the broadcasting organisation under whose control and responsibility the programme-carrying signals are introduced into the chain of communication leading to the satellite. Furthermore, it is common ground that, as a general rule, that organisation thereby renders the protected works accessible to a new public. Consequently, that organisation is required to obtain the authorisation”. (Paragraphs 24 – 26).

That said, the EJC considers that it cannot be ruled out that other operators may intervene in the course of a communication to the public by satellite “with the result that they render the protected works or subject matter accessible to a public wider than that targeted by the broadcasting organisation concerned. In such a situation, the intervention of those operators is not covered by the authorisation granted to that organisation. That may in particular be the case where an operator expands the circle of persons having access to that communication and thereby renders the protected works or subject matter accessible to a new public”. (Paragraph 29).

The ECJ derives the ‘country of origin’-essence of Articles 1(2)(a)-(c) of the Satellite and Cable Directive from the relevant recitals 5, 14 and 15 and stipulates that “where a satellite package provider is required to obtain, for the communication to the public by satellite in which it participates, the authorisation of the holders of the copyright and related rights concerned, that authorisation must be obtained, such as that granted to the broadcasting organisation concerned, only in the Member State in which the programme-carrying signals are introduced into the chain of communication leading to the satellite.” (Paragraph 28) “It thus follows that Article 1(2)(b) [of the Satellite and Cable Directive] seeks to ensure that any ‘communication to the public by satellite’, within the meaning of Article 1(2)(a) and (c), is subject exclusively to the legislation on copyright and related rights in force in the Member State in which the programme-carrying signals are introduced into the chain of communication leading to the satellite. Accordingly, it would be contrary to that objective if a satellite package provider were also required to obtain authorisation from the holders of the copyright and related rights concerned in other Member States” (Paragraph 32).

Considering the above, the ECJ concludes that: “Article 1(2)(b) of [Satellite and Cable Directive] must be interpreted as meaning that, where a satellite package provider is required to obtain, for the communication to the public by satellite in which it participates, the authorisation of the holders of the copyright and related rights concerned, that authorisation must be obtained, such as that granted to the broadcasting organisation concerned, only in the Member State in which the programme-carrying signals are introduced into the chain of communication leading to the satellite”.