Copyright and restricted acts: distribution of TV programmes via direct injection may constitute "a communication to the public"

The 2001 Directive on Copyright in the Information Society (2001/29) (the Information Society Directive) attempted to modernise copyright in the EU by introducing a new “restricted act” of communication to the public of a copyright work by electronic means.  Such restricted acts cannot be performed without the copyright holder’s permission.  Inevitably, however, the ever-accelerating rate of technological change since then has thrown up a series of questions as to what precise technical acts do or do not fall within the prohibition.

What was the issue?

On 19 November 2015, the Court of Justice of the European Union (CJEU) decided on a preliminary question, submitted by the Brussels Court of Appeal in the matter of SBS Belgium v SABAM (Case C‑325/14). SBS Belgium is a broadcasting organisation that uses ‘direct injection’ for the transmission of its programme-carrying signals. Transmission via this technique is executed point to point via a private line to the broadcaster’s distributors. During the transmission, the signals cannot be accessed by the general public. Subscribers are only able to view the programmes once the distributors have forwarded the signals, which may be through cable, satellite or otherwise.

SABAM, a Belgian copyright administration society, lodged proceedings against SBS Belgium, claiming that transmission via direct injection is in fact a ‘communication to the public’ in the sense of Article 3 of the Information Society Directive. SABAM claimed compensation in the form of a lump sum payment from SBS for copyrights on the works that were transmitted by SBS to its distributors. SBS denied that any such lump sum was due, as it contended that the communication to the public was done by the distributors and not by SBS (as the broadcaster). The Brussels Court of Appeals decided to stay the proceedings and submit a request for preliminary ruling to the CJEU on the following question:

“Does a broadcasting organisation [in this case SBS Belgium] which transmits its programmes exclusively via the technique of direct injection … make a communication to the public within the meaning of Article 3 of [the information Society Directive]?”

What did the CJEU decide?

Key to determining the preliminary question was the meaning of ‘communication to the public’, as set out in article 3 of the Information Society Directive. According to the CJEU, ‘communication to the public’ requires fulfilment of the following two criteria:

1. an ‘act of communication’ of a work; and
2. the communication of that work to the ‘public’.

Regarding the first element, the CJEU referred to earlier case law, stating that an act of communication can be “any transmission of the protected works, irrespective of the technical means or process used”. According to the CJEU, this included the transmission described in the preliminary question.

Regarding the second element, the CJEU, again referencing earlier case law, ruled that “the term ‘public’ refers to an indeterminate number of recipients, potential television viewers, and implies, moreover, a fairly large number of persons”. According to the CJEU, in cases where distributors act as a mere technical channel between the broadcasting organisation and the subscribers (i.e. the viewers at home), the subscribers are ‘the public’ for the purposes of the original transmission from the broadcasting organisation to its distributors.

Whether or not a communication was made to the public, hinges on whether the role of the distributors is merely acting as a technical channel, or something more. This will require a factual interpretation in each case, which is a task for the national court. If the Brussels Court of Appeal determines that the transmission from SBS Belgium to its distributors constitutes a mere technical service on the part of the distributors and does not qualify as an autonomous service performed with the aim of making a profit, SBS Belgium will have made a ‘communication to the public’. In that case, SBS will owe compensation for the copyrights on the works transmitted during such communication.

What are the implications for businesses?

Broadcasting organisations wishing to avoid these kinds of levies will have to pay careful attention to the way in which they structure transmissions and other dealings with distributors. Indeed, if the distributors “are not independent in relation to the broadcasting organisation and their distribution services are purely technical in nature”, then the distributor’s subscribers may be considered as the ‘public’ for the purposes of the ‘communication’ made by the broadcasting organisation, resulting in the payment of levies on works transmitted.