Opinion of the Advocate General — ECLI:EU:C:2022:818
Date: 2022-10-20
Language of the case: German

Summary C-423/21 – 1 
Case C-423/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
12 July 2021 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
22 June 2021 
Appellant on a point of law (‘applicant’): 
Grand Production d.o.o. 
Respondents in the appeal on a point of law (‘defendants’): 
GO4YU GmbH 
DH 
GO4YU d.o.o Beograd 
MTEL Austria GmbH 
  
Subject matter of the main proceedings 
Copyright – Application by a media undertaking having its registered office in 
Serbia for an interlocutory injunction against an operator of a streaming platform 
established in Serbia which broadcasts its programmes worldwide, including in 
Austria, and against third parties established in the European Union which are 
related to that operator by contract and/or under company law – Concept of 
‘communication to the public’ within the meaning of Article 3(1) of Directive 
2001/29/EC – Principle of territoriality – Point 2 of Article 7 of Regulation (EU) 
No 1215/2012  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-423/21 
 
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Questions referred for a preliminary ruling 
I. Is the concept of ‘communication to the public’ 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 (OJ 2001 L 167, p. 10) to be interpreted as meaning that such 
communication is made by the direct operator (not established in the EU in this 
case) of a streaming platform, whereby that operator 
- alone decides on the content and blacking out of TV programmes broadcast 
by it and implements them from a technical point of view, 
- has sole administrator rights for the streaming platform, 
- can influence which TV programmes can be received by the end user via the 
service, but cannot influence the content of the programmes, 
- and is the sole point of control as regards which programmes and content 
can be watched in which territories and when, 
where, in each case, 
- the user is provided with access not only to broadcasting content whose 
online use has been authorised by the respective rightholders, but also to protected 
content for which rights clearance has not been obtained, and 
- the direct operator of the streaming platform is aware that its service also 
enables the reception of protected broadcasting content without the consent of the 
rightholders by virtue of the fact that the end customers use VPN services which 
give the impression that the IP address and device of the end customers are 
located in areas for which the consent of the rightholder has been obtained, but 
- the reception of protected broadcasting content via the streaming platform 
without the consent of the rightholders was in fact possible for several weeks even 
without VPN tunnelling? 
II. If Question I. is answered in the affirmative: 
Is the concept of ‘communication to the public’ in Article 3(1) of Directive 
2001/29/EC to be interpreted as meaning that such communication is also carried 
out by third parties (having, in this case, their registered offices in the EU) which 
are related, contractually and/or under company law, to the platform operator 
described in Question I., and which, without themselves having any influence on 
the blackouts and on the programmes and content of the broadcasts brought to the 
streaming platform, 
- advertise the operator’s streaming platform and its services, and/or 
GRAND PRODUCTION 
 
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- offer trial subscriptions to customers that automatically end after 15 days, 
and/or 
- support the customers of the streaming platform as a customer service 
provider, and/or 
- offer on their website paid subscriptions to the streaming platform of the 
direct operator and then act as the contracting partner of the customers and as the 
recipient of payment, whereby the paid subscriptions are created in such a way 
that an express reference to the fact that certain programmes are not available is 
made only if a customer explicitly indicates at the time of conclusion of the 
contract that he or she wishes to see those programmes, but, if customers do not 
express that wish or specifically enquire about such programmes, they are not 
informed of that fact in advance? 
III. Are Article 2(a) and (e) and Article 3(1) of Directive 2001/29/EC, read in 
conjunction with Article 7(2) of Regulation (EU) No 1215/2012 of the European 
Parliament and of the Council of 12 December 2012 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters (OJ 
2012 L 351, p. 1) to be interpreted as meaning that, in the event of an allegation of 
infringement of copyright and related rights guaranteed by the Member State of 
the court seised, that court has jurisdiction only to rule on the damage caused in 
the territory of the Member State to which it belongs – because the territoriality 
principle precludes domestic courts from having competence to determine and 
examine the facts in relation to foreign acts of infringement – or can or must that 
court also rule on offences committed outside that territory (worldwide), as 
alleged by the infringed author? 
Provisions of EU law relied on 
Article 2(a) and (e), Article 3(1), Article 5(2)(b) and Article 5(5) 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 point 2 of Article 7 of Regulation (EU) No 1215/2012 of the European 
Parliament and of the Council of 12 December 2012 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters  
Provisions of national law relied on 
Paragraphs 15(1), 17(1), 18(3), 18a(1), 59a and 76a of the Urheberrechtsgesetz 
(Austrian Law on copyright; ‘the UrhG’) 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-423/21 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is a company incorporated under Serbian law and having its 
registered office in Serbia which produces television programmes that are 
broadcast in Serbia on channels of the PRVA and around the world by the third 
defendant, also having its registered office in Serbia, on its streaming platform 
go4yu.tv. The third defendant derives a right to broadcast, inter alia, four popular 
television shows in Serbia and Montenegro from contracts with PRVA; for 
audiences not in those countries, those shows must be ‘blacked out’ so that they 
can be neither watched nor listened to, since the applicant has exclusive 
broadcasting rights to those programmes outside those countries. Once the IP 
address from which the platform is accessed is assigned to a device in another 
country, the blackouts are effected by the third defendant as the administrator of 
the streaming platform; the third defendant is the sole point of control as regards 
which programmes and content can be watched in which territories. However, the 
public can bypass this by connecting to the third defendant’s service via a VPN 
address that gives the impression that the device is located in Serbia or 
Montenegro (providers or apps offer such services, as is known to the third 
defendant).  
2 In the period from 30 April 2020 to 15 June 2020, the applicant’s four shows 
could be accessed in Austria via the third defendant’s platform without having to 
use a VPN tunnel. 
3 The streaming platform go4yu.tv is advertised in Austria by the first defendant, an 
Austrian company limited by shares, which offers trial subscriptions which 
automatically expire to its customers and provides them with customer service. 
The second defendant is the managing director and sole shareholder of the first 
defendant. The third defendant is the sole shareholder of the fourth defendant, an 
Austrian company limited by shares, which offers paid subscriptions to the 
streaming platform and acts as the payee.  
4 In a letter of formal notice of 4 October 2019, the applicant notified the first and 
third defendants of a copyright infringement, because its four shows were being 
broadcast without its consent, and requested that they cease and desist. The 
applicant sent the first and second defendants a similar warning, together with a 
request that they cease and desist, in a second letter of formal notice of 
25 February 2020. On 28 September 2020, the Handelsgericht Wien (Commercial 
Court, Vienna) made an order concerning the application for an interlocutory 
injunction, and that order was confirmed in part and varied in part by order of the 
Oberlandesgericht Wien (Higher Regional Court, Vienna) on 28 January 2021. 
The interlocutory injunction against the third defendant became final in respect of 
Austria, but the applicant, by its appeal on a point of law before the Oberster 
Gerichtshof (Supreme Court; ‘the OGH’), seeks to have the application granted 
against all four defendants on a worldwide basis. 
GRAND PRODUCTION 
 
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Essential arguments of the parties in the main proceedings 
5 In support of its claim for injunctive relief, the applicant submits that the acts of 
all the cooperating defendants are to be regarded as broadcasting within the 
meaning of Paragraph 17 of the UrhG and as communication to the public within 
the meaning of Article 3(1) of Directive 2001/29/EC and infringed the applicant’s 
exclusive right to broadcast. 
6 Against that, the first, second and fourth defendants contend that, since they are 
not responsible for the content of the programmes and did not commit any acts of 
infringement, they do not have legal capacity to be sued. 
7 The third defendant submitted that, for viewers outside Serbia and Montenegro, it 
blacks out the programmes that it legitimately broadcasts in those countries (in 
accordance with the instructions of the PRVA Group). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 This request for a preliminary ruling is to be regarded as supplementing that made 
by the Supreme Court in Case C-426/21 (second question referred in that case).  
9 The first and second questions seek clarification as to whether, in addition to the 
third defendant as the direct operator of a streaming platform, the first, second and 
fourth defendants are also responsible for the communication to the public of 
protected broadcasting content within the meaning of Article 3(1) of Directive 
2001/29/EC. 
10 That would be the case if the knowing facilitation of the unlawful acts of third 
parties (in casu, the copyright infringements) were sufficient. 
11 If, however, such liability additionally requires a specific element of intent, the 
defendants would not be liable for communication to the public. 
12 The third question seeks clarification as to whether the principle of territoriality 
applies in the present case, in accordance with which the protection claimed by the 
applicant under Austrian copyright law relates only to Austria, and the applicant 
can therefore only claim injunctive relief which is limited to Austria.  
13 In the legal literature, that approach is criticised and it is argued that claims under 
copyright law, such as those relating to personality rights (see judgment of 
17 October 2017, Bolagsupplysningen and Ilsjan (C-194/16, EU:C:2017:766), are 
intended to be global in scope and can be granted by national courts on a 
worldwide basis, for instance because, in that respect also, there are single and 
indivisible applications that can be made before a court with jurisdiction to rule on 
the entirety of an application for compensation for damage pursuant to the case-
law resulting from the judgments of the Court of 7 March 1995, Shevill and 
Others (C-68/95, EU:C:1995:61, paragraphs 25, 26 and 32), and of 25 October 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-423/21 
 
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2011, eDate Advertising and Others (C-509/09 and C-161/10, EU:C:2011:685, 
paragraphs 42 and 48). 
14 As a court of final instance, the Supreme Court is obliged to make a reference if 
the correct application of EU law is not so obvious as to leave no room for any 
reasonable doubt. Such doubt is present in this case.