Opinion of the Advocate General — ECLI:EU:C:2022:711
Date: 2022-09-22
Language of the case: German
Subject matter: Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 5 May 2021 – AKM – Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger regGenmbH v Canal+ Luxembourg Sàrl (Case C-290/21) Language of the case: German Referring court Oberster Gerichtshof Parties to the main proceedings Applicant: AKM – Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger regGenmbH Defendant: Canal+ Luxembourg Sàrl Other parties: Tele 5 TM-TV GmbH, Österreichische Rundfunksender GmbH & Co. KG, Seven.One Entertainment Group GmbH, ProsiebenSat 1 PULS 4 GmbH Questions referred Is Article 1(2)(b) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission 1 to be interpreted as meaning that not only the broadcasting organisation, but also a satellite package provider intervening in the indivisible and single act of broadcasting, carries out an act of use – which in any case requires consent – solely in the State where, under the control and responsibility of the broadcasting organisation, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth, with the consequence that the intervention of the satellite package provider in the act of broadcasting cannot lead to an infringement of copyright in the receiving State? If Question 1 is answered in the negative: Is the concept of ‘communication to the public’ in Article 1(2)(a) and (c) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission and in 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 2 to be interpreted as meaning that the satellite package provider, which intervenes as another operator during a communication to the public by satellite, bundles several encrypted high-definition signals of free-to-air and pay-TV programmes of various broadcasting organisations into a package of its own composition and offers the independent audiovisual product created in this way to its customers in return for payment, requires separate authorisation from the right holders concerned even in respect of the protected content in the free-to-air TV programmes contained in the package of programmes, although in this respect it is merely providing its customers with access to works which are already freely accessible – albeit in poorer standard-definition quality – to everyone in the broadcasting area? ____________ 1 OJ 1993 L 248, p. 15. 2 OJ 2001 L 167, p. 10.