Broadcasting via the technique of direct injection – an European court decision

European_Court_of_JusticeThe European court ruled in Case C‑325/14, SBS Belgium N v Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM). It concerns the follows:

SABAM, a copyright administration society, represents authors in relation to the grant of permission for third party use of their copyright-protected works and in the collection of the fees for such use.

SBS is a Dutch-language commercial broadcasting organisation which produces and markets television programmes. In the context of its broadcasting activities, SBS operates several private commercial transmitters in Belgium. Its programme schedule includes both programmes which it has produced itself and programmes purchased from domestic and foreign production companies and programme suppliers.

SBS broadcasts its programmes exclusively by a technique named direct injection. This is a two-step process by which SBS transmits its programme-carrying signals ‘point to point’ via a private line to its distributors such as Belgacom, Telenet and TV Vlaanderen. At that stage, those signals cannot be received by the general public. The distributors then send the signals, which may or may not be in encrypted form, to their subscribers so that the latter can view the programmes on their television sets, whether or not with the help of a decoder made available by the distributor. Depending on the distributor, those signals are transmitted by satellite, in the case of TV Vlaanderen, by cable, in the case of Telenet, or by xDSL line, in the case of Belgacom.

SABAM takes the view that SBS, as a broadcasting organisation, makes a communication to the public within the meaning of Article 3 of Directive 2001/29 by transmitting via the direct injection method. Therefore, the authorisation of the copyright holders is required. It requests, as compensation, the payment of a sum of money

SBS opposes that request. According to SBS, only distributors and other organisations of the same type make a communication to the relevant public in relation to copyright. It considers, therefore, that no remuneration is owed.

The rechtbank van koophandel te Brussel (Commercial Court, Brussels) allowed SABAM’s application and ordered SBS to pay close to a million euros in copyright fees for 2009.

SBS appealed against the judgment of that court to the referring court.

In those circumstances, the Hof van beroep te Brussel (Court of Appeal, Brussels) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does a broadcasting organisation which transmits its programmes exclusively via the technique of direct injection — that is to say, a two-step process in which it transmits its programme-carrying signals in an encrypted form via satellite, a fibre-optic connection or another means of transmission to distributors (satellite, cable or xDSL-line), without the signals being accessible to the public during, or as a result of, that transmission, and in which the distributors then send the signals to their subscribers so that the latter may view the programmes — make a communication to the public within the meaning of Article 3 of Directive 2001/29?’

The Court’s decision:

Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that a broadcasting organisation does not carry out an act of communication to the public, within the meaning of that provision, when it transmits its programme-carrying signals exclusively to signal distributors without those signals being accessible to the public during, and as a result of that transmission, those distributors then sending those signals to their respective subscribers so that they may watch those programmes, unless the intervention of the distributors in question is just a technical means, which it is for the national court to ascertain.