A new broadcast of TV programmes – a decision by the EU Court

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The European court ruled in case C‑138/16 which refers to:

AKM is a copyright collecting society. Zürs.net operates a cable network installation in Zürs (Austria), by means of which it transmits television and radio broadcasts, some of which are broadcast initially by the national broadcasting corporation (ORF) and others are initially broadcast by other broadcasters. The referring court states that, at the time when the order for reference was made, approximately 130 subscribers were connected to Zürs.net’s cable network.

AKM requires Zürs.net to provide it with information as to the number of subscribers connected, at several reference dates, to the cable network that it operates and as to the content broadcast. It also requests that, after the information to be provided has been checked, Zürs.net should pay the appropriate fee.

Zürs.net takes the view that, under Paragraph 17(3)(2)(b) of the Austrian Law on copyright, in the version in BGBl. I 99/2015, concerning small installations for a maximum of 500 subscribers, the broadcasts which it distributes cannot be regarded as new broadcasts and that it is therefore under no obligation to provide the information required by AKM.

AKM considers that provision to be incompatible both with EU law and with the Berne Convention.

In those circumstances, the Handelsgericht Wien (Commercial Court, Vienna, Austria), seised of the dispute between AKM and Zürs.net, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling.

‘Are Article 3(1) or Article 5 of Directive [2001/29] and Article 11bis(1)(ii) of the Berne Convention to be interpreted as meaning that a rule which provides that the transmission of broadcasts by “communal antenna installations”, such as those of the defendant in the main proceedings,

(a)  does not constitute a new broadcast when no more than 500 subscribers are connected to the installation, and/or

(b) constitutes part of the original broadcast when it involves the simultaneous, full and unaltered transmission of broadcasts of the Österreichischer Rundfunk using cable services within the country (Austria),and these uses are also not covered by any other exclusive right of communication to the public at a distance within the meaning of Article 3(1) of Directive 2001/29, and are therefore not subject to authorisation by the author and are also not subject to the obligation to pay a fee, is contrary to EU law or to the law of the Berne Convention as an international agreement which forms part of EU law?’

The Court 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 and Article 11bis of the Berne Convention for the Protection of Literary and Artistic Works, in the version resulting from the Paris Act of 24 July 1971, as amended on 28 September 1979, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which provides that the simultaneous, full and unaltered transmission of programmes broadcast by the national broadcasting corporation, by means of cables on national territory, is not subject, under the exclusive right of communication to the public, to the requirement that authorisation be obtained from the author, provided that it is merely a technical means of communication and was taken into account by the author of the work when the latter authorised the original communication, this being a matter for the national court to ascertain.

Article 5 of Directive 2001/29, in particular paragraph 3(o) thereof, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that a broadcast made by means of a communal antenna installation, when the number of subscribers connected to the antenna is no more than 500, is not subject, under the exclusive right of communication to the public, to the requirement that authorisation be obtained from the author, and as meaning that that legislation must, therefore, be applied consistently with Article 3(1) of that directive, this being a matter for the national court to ascertain.

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