Satellite and Cable Directive does not grant exclusive right for broadcasting organizations over cable retransmission and Distribution of broadcasts by hotels - even through coaxial cable - does not constitute cable retransmission


RTL v Grupo Pestana

Copyrights: Communication to the public

08 Sep 2022

the matter at hand

German media conglomerate RTL pursued legal action against Grupo Pestana, a hotel management shareholder company in Portugal, based on the reception and dissemination of RTL broadcasts in Grupo Pestana's hotels without prior authorisation.

From a technical perspective, RTL's free-to-air channel may be received in Germany, Austria and Switzerland via all existing television reception options, including satellite, cable, IP, OTT/ Internet, and terrestrial television. Since its satellite signal was technically receivable in several other European Countries, including Portugal, RTL had licensing agreements for that signal with cable operators and certain hotels across the EU. RTL asserted that Grupo Pestana made the RTL channels available without proper clearance, seeking compensation and preventive measures. In response, Grupo Pestana cited Portuguese law, contending that hotels were exempt from copyright and related fees for mere signal reception.

RTL initiated legal action, urging the Tribunal da Propriedade Intelectual (Intellectual Property Court in Portugal) to declare that prior authorisation was mandatory for broadcasting its programs via retransmission. The Intellectual Property Court in Portugal rejected RTL's claims, stating that while the broadcasts constituted communication to the public, it did not amount to retransmission. The Tribunal da Relação de Lisboa (The Lisbon Court of Appeal) upheld this decision. The Supremo Tribunal de Justiça (The Supreme Court of Portugal) referred questions to the European Court of Justice (ECJ) for clarification.

the judgment of the ecj

The ECJ addresses first whether article 1(3) read in conjunction with 8(1) of the Satellite and Cable Directive establish an exclusive right for broadcasting organizations to authorize or prohibit cable retransmission and secondly, where that retransmission is carried out by an establishment such as a hotel.

The Satellite and Cable Directive aims to facilitate cross-border satellite broadcasting and cable retransmission and requiring member states to ensure the observance of copyright and related rights However it does not provide for an exclusive right for broadcasting organisations to authorise or prohibit cable retransmission. It is apparent from combined reading of recitals 8,9 and 27 of the Satellite and Cable Directive, that a cable operator must obtain the authorisation from every holder of copyright and related rights in each part of the programme retransmitted and that, unless there is a temporary exception in the case of certain legal licence schemes, that authorisation must be granted contractually, which is the most appropriate means of creating the desired European audiovisual area within a framework that ensures legal certainty (paragraph 72).

Furthermore, the ECJ clarifies that the Satellite and Cable Directive pertains to relations between copyright holders and cable operators, specifically those operating traditional cable networks (Paragraph 76). The judgment emphasizes that establishments like hotels, engaging in simultaneous distribution of broadcasts through coaxial cable to hotel rooms, do not fall within the scope of the definitions of "cable operator" or "cable distributor" as per Satellite and Cable Directive. The Directive does not extend the exclusive rights of broadcasting organizations to entities like hotels (Paragraph 76, 84).

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