Opinion of the Advocate General — ECLI:EU:C:2011:157
Date: 2011-03-17
Language of the case: Dutch
Subject matter: Intellectual, industrial and commercial property;Approximation of laws;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary way than in the circumstances covered by the first question. According to the two orders for reference, the satellite package provider gives its ‘instructions’ to the broadcasting organisations concerned so that, in the encryption operations which they themselves carry out, they use the same codes as the satellite package provider in order to enable Airfield’s customers subsequently to decrypt the signals by means of the card provided to them by Airfield and to view the programmes of the broadcasting organisations. 86. In the present instance, there is no doubt that the programme-carrying signals are introduced into the chain of communication under the control and the responsibility of the broadcasting organisation because (and this is the most significant difference from the situation previously discussed) the broadcasting organisation sends the signals to the satellite by its own means. Therefore that act is attributable to the broadcasting organisation and not to the provider, and it should be noted that, according to the referring court, they are entities independent of each other. 87. However, the broadcasting organisations lose control of the operations because of Airfield’s intervention. In concrete terms Airfield does more than provide them with mere technical support since it decides, first, on the encryption codes and, second, on the composition of the programme packages, under the binding conditions laid down by the heads of agreement which it concludes with each of the broadcasting organisations that have opted for so-called direct retransmission. In particular, paragraph 3.1 of those agreements provides that Airfield has a discretion to include or not to include the television programmes in its service, with payment of remuneration for the benefit thus conferred. It seems to me that, in those circumstances, the organisations concerned do not have complete control of, and therefore the entire responsibility for, the upbeaming operations, but they at least share control and responsibility with the satellite package provider, who may even have sole control and responsibility. 88. According to Airfield, its limited intervention in the chain of communication is a normal technical procedure and is not a cause of interruption in the chain. However, in my view, the ‘instructions’ which it gives are not negligible because they are frequent (49) and, above all, because it is they that, first, ensure that the public targeted by that provider, namely its subscribers, can in fact receive the programmes and decrypt them (50) and, second, enable those programmes to be grouped into packages made up in accordance with the selection made by the provider. 89. The authorisation for communication to the public given to a broadcasting organisation by the author of a television programme does not necessarily amount to consent for the programme to be associated, by means of the grouping chosen by Airfield, with other programmes the nature or purpose of which may appear incompatible with the public which the author of the protected work aimed to reach. (51) The fact that the satellite package provider must also obtain the author’s consent would enable the author to protect his financial interests and also his moral rights in the programme broadcast as part of a group. 90. The satellite package provider gives its subscribers the decrypting device which is necessary for viewing the programmes concerned, but it appears to do so with the consent of the broadcasting organisation. As this fact is disputed, it will be for the referring court to determine whether it has been proved. 91. The last-mentioned factor does not call into question my conclusion that the satellite package provider in reality performs an act of exploitation of the works protected by copyright and by rights related to copyright, which is distinct from the act of the broadcasting organisation and constitutes a ‘communication to the public by satellite’ within the meaning of Directive 93/83. (52) 92. I consider therefore that the reply to the second question should be in the negative, like the reply to the first, although the programme-carrying signals are in this instance retransmitted directly by the broadcasting organisation, that is to say, with more limited intervention by the satellite package provider in the present circumstances. VI – Conclusion 93. In the light of the foregoing considerations, I propose that the Court reply as follows to the two questions referred for a preliminary ruling by the hof van beroep te Brussel: 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 does not preclude a provider of packages of satellite television channels from being required to obtain the authorisation of the holders of the copyrights or rights related to copyright for operations in which a broadcasting organisation provides it with the programme-carrying signals in circumstances such as those in the main proceedings. 1 – Original language: French. 2 – OJ 1993 L 248, p. 15. 3 – OJ 1989 L 298, p. 23. That directive was amended in 1997 (OJ 1997 L 202, p. 60) and 2007 (OJ 2007 L 332, p. 27). 4 – See recitals 4, 5 and 12 in the preamble to Directive 93/83. 5 – OJ 2001 L 167, p. 10. 6 – In Case C-306/05 SGAE [2006] ECR I-11519, paragraph 30, the Court observed that Directive 2001/29 applies to all communications to the public of protected works, whereas Directive 93/83 only provides for minimal harmonisation of certain aspects of protection of copyright and related rights in the case of communication to the public by satellite or cable retransmission of programmes from other Member States. 7 – Moniteur belge, 27 July 1994, p. 19297. The Law entered into force on 1 August 1994. 8 – The words in brackets were added by the Law of 22 May 2005, which transposed Directive 2001/29 into Belgian law. 9 – The referring court states that only an English-language version of the agreements was submitted to it. 10 – To be exact, Agicoa Belgium, one of the applicants in the main proceedings, engages in its activity pursuant to management mandates entrusted to it by the Association of International Collective Management of Audiovisual Works (AGICOA), an association governed by Swiss law, and by the beheers-en belangenvennootschap voor audiovisuele producenten (BAVP), a limited liability cooperative society governed by Belgian law. 11 – Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as amended on 28 September 1979 (‘the Berne Convention’). 12 – On that point, Agicoa refers to Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 19, and Case C-380/01 Schneider [2004] ECR I-1389, paragraph 22, which state, in accordance with settled case-law, that ‘the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it’. 13 – ‘Authors of literary and artistic works shall enjoy the exclusive right of authorising …(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organisation other than the original one’. 14 – The report of the first meeting of the Working Group on 28 November 2002 observes that ‘consultation of the economic operators concerned … was announced in the report on the application of Directive 93/83’. This report is available on the Commission’s internet site: http://ec.europa.eu/internal_market/copyright/docs/satellite-cable/working-group-satellite_en.pdf 15 – Report of the second meeting, accessible on the Commission’s internet site: http://ec.europa.eu/internal_market/copyright/docs/satellite-cable/working-group-satellite-05-03_en.pdf. 16 – Article 1 defines ‘satellite’ as ‘any satellite operating on frequency bands which, under telecommunications law, are reserved for the broadcast of signals for reception by the public or which are reserved for closed, point-to-point communication’. In this regard, see the Opinion of Advocate General Tizzano in Case C-192/04 Lagardère Active Broadcast [2005] ECR I-7199, point 33 et seq. 17 – See Case C-467/08 Padawan [2010] ECR I-0000, paragraph 21 et seq. and the case-law cited, and the Opinion of Advocate General Trstenjak in that case, point 48 et seq. 18 – The presumption was recently referred to by the Court in Case C-45/09 Rosenbladt [2010] ECR I-0000, paragraph 33. 19 – This issue was referred to by the Working Group on Satellite Broadcasting at its second meeting, in 2003. The abovementioned passage cited by Agicoa continues as follows: ‘in this respect, the Commission recalled that only activities involving a cross-frontier dimension could be taken into account within the framework of [Directive 93/83] and that the retransmission of national channels by the aforementioned satellite operators for public reception within national frontiers could not fall within the scope of that Directive, which was based on Articles 43 and 49 of the EC Treaty covering freedom of establishment and the freedom to provide services’. 20 – Case C-254/98 TK-Heimdienst [2000] ECR I-151, paragraphs 14 and 15. 21 – According to the two orders for reference, the satellite package provider is a Belgian company which cooperates with a Netherlands company, the programme-carrying signals are received in both the Netherlands and Luxembourg, and the programmes broadcast by satellite originate from several Member States of the European Union and can be viewed by audiences in different territories, particularly Belgium and Luxembourg. 22 – The Commission stated that, since it had doubts as to whether Airfield’s broadcasts were initial transmissions, as it had considered in its pleadings, or retransmissions, it did not intend to change its original position should the referring court find that in the present case initial transmissions were involved, but it wished to add some considerations in order to respond also in relation to the alternative hypothesis. 23 – That is to say, according to the settled case-law (see, inter alia, Joined Cases C-338/04, C‑359/04 and C-360/04 Placanica and Others [2007] ECR I-1891, paragraph 34 and the case‑law cited), in such a way as not only to enable the Court to provide answers which will be of use to the national court in deciding the main proceedings but also to enable the Governments of the Member States, and the other interested parties, to submit observations in accordance with Article 23 of the Statute of the Court of Justice. 24 – The same objective is stated in recital 5 in the preamble to Directive 93/83. 25 – See the Commission proposal at the origin of Directive 93/83 (COM(91) 276 final, p. 33 et seq.), the Commission report on the application of the directive (COM(2002) 430, final, in particular pp. 6 to 8), Case C-293/98 Egeda [2000] ECR I-629, paragraph 15, 20 and 21, and Lagardère Active Broadcast, paragraph 42. 26 – See the case-law cited in Padawan, paragraph 31 et seq., and the Opinion of Advocate General Trstenjak in that case, point 61 et seq., the reasoning of which appears to me to be transposable to the present case. 27 – See, inter alia, Lagardère Active Broadcast, paragraph 26 et seq. 28 – See, in particular, the Berne Convention and the Copyright Treaty adopted in Geneva on 20 December 1996 by the World Intellectual Property Organisation (‘the WIPO Copyright Treaty’). For the connection between the term ‘communication to the public’ in those instruments and the same term within the meaning of Article 3(1) of Directive 2001/29, see the Opinion of Advocate General Sharpston in SGAE, point 35 et seq., and the Opinion of Advocate General Kokott in Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others, still pending before the Court, point 127 et seq. 29 – I note that Article 3(2) of Directive 93/83, concerning ‘the acquisition of broadcasting rights’, states that ‘a Member State may provide that a collective agreement between a collecting society and a broadcasting organisation concerning a given category of works may be extended to rightholders of the same category who are not represented by the collecting society, provided that … the communication to the public by satellite simulcasts a terrestrial broadcast by the same broadcaster …’. In that situation, the broadcasting organisation will benefit from the system only if there is an initial transmission simultaneously with the communication to the public by satellite. 30 – In the version applicable at the time of the adoption of Directive 93/83, Article 1(a) of Directive 89/552 stated that ‘for the purpose of this Directive … “television broadcasting” means the initial transmission by wire or over the air, including that by satellite, in unencoded or encoded form, of television programmes intended for reception by the public. It includes the communication of programmes between undertakings with a view to their being relayed to the public’. On the other hand, it seems to me that Directive 93/83 does not apply only to initial transmission by satellite, given that it also governs cable retransmission. 31 – See Article 1(3) of Directive 93/83, concerning cable broadcasting, which states that, ‘for the purposes of this Directive, “cable retransmission” means the simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public’. 32 – Paragraph 25 et seq. See also, in this regard, SGAE, paragraph 30. 33 – See the initial proposal for the directive (COM(91) 276 final, p. 33, point 3) and the amended proposal for a directive (COM(92) 526 final, in particular p. 7). 34 – Namely situations 1 and 3 described by the referring court, in contrast to situation 2, detail on which has already been set out in the factual background. 35 – For ‘public’ within the meaning of Directive 93/83, see Lagardère Active Broadcast, paragraph 31 et seq., which cites Case C-89/04 Mediakabel [2005] ECR I-4891, paragraph 30, concerning the interpretation of ‘public’ within the meaning of Directive 89/552. The Court referred to those two judgments in interpreting the same word for the purpose of Directive 2001/29 in SGAE, paragraph 37 et seq. 36 – It is immaterial whether the programmes broadcast are actually viewed or not. As in the case of books, it is solely the making available of the work to the public that matters when justifying the collection of royalties in the event of sale. 37 – In SGAE, paragraph 40 et seq., the Court, on the basis of the provisions of the Berne Convention, observes that ‘the transmission [of works communicated by means of television sets installed in hotel rooms] is made to a public different from the public at which the original act of communication of the work is directed, that is, to a new public’. If the reception of the broadcasts concerned is intended for a larger audience by means of an independent act through which the broadcast work is communicated to a new public, such public reception falls within the scope of the author’s exclusive right to authorise it. See also the order of 18 March 2010 in Case C-136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 38 et seq., and the Opinion of Advocate General Kokott in Football Association Premier League and Others, point 118 et seq. 38 – See, to that effect, Hugenholtz, B., ‘Nouvelle lecture de la Directive Satellite-Câble: passé, présent, avenir’, Convergence, droit d’auteur et télévision transfrontière, IRIS Plus 2009-8, European Audiovisual Observatory, Strasbourg, p. 10, who states that Article 3 of Directive 2001/29 provides for a right of communication to the public which is worded in such a general way that it probably covers acts of broadcasting by satellite. I also note that recital 23 in the preamble to that directive states that this right should be understood in a broad sense covering any transmission or retransmission to a public not present at the place where the communication originates, including broadcasting. 39 – Regarding the taking into account of independent acts of exploitation by an operator and the economic benefit it derives from them, see the Opinion of Advocate General Sharpston in SGAE, points 56, 57 and 64, which refers to the position taken in that connection by Advocate General La Pergola in Egeda. The communication was found by the Court to be of a profit‑making nature in SGAE, paragraph 44. 40 – See recital 15 in the preamble to Directive 93/83. 41 – The criteria relating to a clear decision on the content and the broadcast are indeed important according to the preparatory documents for Directive 93/83 (see COM(91) 276 final, p. 33 et seq., and COM(92) 526 final, p. 7). 42 – It is stated in Lagardère Active Broadcast, paragraph 39, that ‘[Directive 93/83] is concerned with a closed communications system, of which the satellite forms the central, essential and irreplaceable element, so that, in the event of malfunction of the satellite, the transmission of signals is technically impossible and, as a result, the public receives no broadcast’. In the present case, it is not disputed that the satellite is the key element of the system concerned. 43 – A break in the chain of communication after the passing of the signals through the satellite was noted in Lagardère Active Broadcast (see point 48 et seq. of the Opinion of Advocate General Tizzano in that case). The break might also result from the introduction of different advertisements from those contained in the initial programmes. 44 – The amended proposal leading to the adoption of Directive 93/83 (COM(92) 526 final, p. 7) makes it clear that there is no interruption provided that the technical procedure used is normal and so long as communication remains under the control of the broadcasting organisation. For the continuous nature of the chain, see also the initial proposal for the directive (COM(91) 276 final, paragraph 4). 45 – That is to say, in particular, compressing, multiplexing, scrambling and selecting of the signals intended to make up the packages broadcast by Airfield, which goes beyond just a ‘technical means to ensure or improve reception of the original broadcast’ and constitutes a ‘technical intervention … enabling the customer to receive the signal … and thereby to gain access to the protected work’, as the Court was able to observe in SGAE, paragraph 42, and Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 40 et seq. 46 – This term may be compared, by analogy, with the joint declaration concerning Article 8 of the WIPO Copyright Treaty, which provides that ‘it is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention’. 47 – In its 2002 report on the application of Directive 93/83 (COM(2002) 430 final, paragraph 3.1.1), the Commission observed that the use of encryption, together with the limited provision of the necessary means of decoding, leads to the grant of exclusive territorial rights and therefore to fragmentation of the internal market, contrary to the aims of the directive. 48 – I note that, on the other hand, the two questions are worded in the same way in every respect with regard to the particulars of beaming down. 49 – At the hearing, Airfield’s representative stated that the codes are changed every month, which means that the operator regularly gives new instructions to the broadcasting organisations regarding the method of encryption which they are to use. 50 – Agicoa has rightly observed that Airfield, which alone has control over the signals, could decide to interrupt their transmission to one of its customers, without any intervention on the part of the broadcasting organisations, should the person concerned not pay his subscription. 51 – Likewise, a literary author might object to his book being sold in an indivisible package, forming a new product, which would include works that might convey what he considers a negative image. 52 – To that effect, I note that at the 2003 meeting of the Working Group on Satellite Broadcasting the majority of the participants, when expressing a view on free, non-encrypted foreign channels broadcast by satellite from another Member State which can be received in all Member States, considered that a contract between a satellite package provider and a broadcaster providing for integration of the channel in question into the package (with a view to greater visibility in the package through the channel’s position in the electronic programme guide) was an agreement equivalent to authorisation by the broadcaster, implying remuneration of the right holders (report accessible on the Commission’s internet site mentioned above). In my opinion, if an agreement of the same type relates to the cross-border broadcasting of pay-to-view channels, the satellite package provider, who derives an even more certain financial benefit from the operation, should a fortiori discharge obligations relating to copyright and related rights.