Case C‑325/14

SBS Belgium NV

v

Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM)

(Request for a preliminary ruling from the hof van beroep te Brussel)

‛Reference for a preliminary ruling — Directive 2001/29/EC — Article 3(1) — Communication to the public — Definition of ‘communication’ and ‘public’ — Distribution of television programmes — Process known as ‘direct injection’’

Summary — Judgment of the Court (Ninth Chamber), 19 November 2015

Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Communication to the public — Definition — Transmission of works broadcast to professionals, followed by their distribution by those professionals to their subscribers as an autonomous supply of services for consideration — Included

(European Parliament and Council Directive No 2001/29, Art. 3(1))

Article 3(1) of Directive 2001/29 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, and where those distributors subsequently send those signals to their respective subscribers so that they may watch those programmes unless the intervention of the distributors in question is merely a technical intervention, which it is for the national court to ascertain.

The concept of communication to the public within the meaning of Article 3(1) of Directive 2001/29 includes two cumulative criteria, namely an act of communication of a work and the communication of that work to a public. In respect of the communication to the public, the term public refers to an indeterminate number of recipients, potential television viewers, and concerns, moreover, a fairly large number of persons. In that regard, in a situation where the broadcasting organisation in question transmits the programme-carrying signals to specified individual distributors without potential viewers being able to have access to those signals, the works transmitted by that organisation are communicated not to the public, within the meaning of Article 3(1), but to specified individual professionals.

That being so, it cannot be ruled out from the outset that in some situations the subscribers of distributors may be considered to be the public in relation to the original transmission made by the broadcasting organisation. That is the case where it is after the intervention of those distributors that their subscribers are able to watch the television programmes and where the distribution of the work broadcast by a professional amounts to the supply of an autonomous service performed with the aim of making a profit, namely the subscription fee paid to that professional for access to the communication in question and, therefore, to the copyright-protected works. A transmission made by a professional in those circumstances is not just a technical means of ensuring or improving reception of the original broadcast in its catchment area.

(see paras 15, 21-23, 25, 29-31, 34, operative part)