October 10, 2022
The Austrian society of authors, composers and music publishers (AKM) issued proceedings in the Austrian courts against Canal+ Luxembourg Sàrl, which provides, throughout Austria, packages of programmes containing both pay-TV and free-to-air programmes from numerous broadcasters in return for payment. AKM sought an injunction against the broadcasting of satellite signals in Austria and payment of damages, claiming that it had not authorised the broadcasts to be made. AKM said that notwithstanding any authorisation which the broadcasters might have received to communicate the works to the public by satellite under Article 1(2)(b) of the Satellite and Cable Directive (93/83/EEC), Canal+ should also have authorisation from AKM and that without such authorisation Canal+ was infringing the rights managed by AKM. The satellite uplinks in question were all outside Austria.
The Austrian court upheld AKM’s claim in part, finding that the satellite packages provided by Canal+ reached a new public, i.e. a different public from that which received the broadcasters’ free-to-air transmissions. Both AKM and Canal+ appealed against the decision in the Austrian Supreme Court, which has asked the CJEU whether Article 1(2)(b) of the Directive must be interpreted as meaning that a satellite package provider is required to obtain, in the Member State in which the protected works communicated are accessible to the public (the receiving Member State), authorisation from the rights holders for an act of communication to the public by satellite.
The Advocate General opined that a satellite package provider is only responsible vis-à-vis rights holders in respect of the communication to a new public where its activities are regarded as an act of communication to the public distinct from the communication to the public by satellite attributable to the broadcaster under whose control and responsibility the programme-carrying signal is introduced into the chain of communication. In that distinct case, the communication to the public by a satellite package provider takes place in the receiving Member State. But following Joined Cases C‑431/09 and C‑432/09 Airfield and Canal Digitaal EU:C:2011:648, in the AG’s view, that is not the case insofar as the satellite package provider participates in a single and indivisible act of communication to the public by satellite, which was the position in Airfield.
However, contrary to the findings in Airfield, the AG opined that it is contradictory to say, on the one hand, that there is a single and indivisible act of communication to the public taking place in such cases, and on the other hand to say that the satellite package provider reaches an additional or “new” public that would not have been taken into account by the copyright holders when granting authorisation to the broadcasters. The public is defined specifically by reference to a communication, the AG said, and the public at which that communication is directed is the public for that communication – in the present case anyone within the satellite footprint. Accordingly, the AG said, there was no “new” public in this case.
Furthermore, there was no retransmission in this case, as claimed by AKM, because if the communication by satellite is a single act of communication to the public the question of an initial transmission and a retransmission cannot arise.
Therefore, the AG opined that Article 1(2)(b) of the Directive must be interpreted as meaning that a satellite package provider is not required to obtain, in the Member State in which the protected works thus communicated are accessible to the public, the authorisation of the copyright and related rights holders in respect of the act of communication to the public by satellite in which that provider participates. (Case C-290/21 Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger Reg Gen mbH v Canal+ Luxembourg Sàrl (Opinion of Advocate General) EU:C:2022:711 (22 September 2022) — to read the Opinion in full, click here).