Case C‑138/16

Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger registrierte Genossenschaft mbH (AKM)

v

Zürs.net Betriebs GmbH

(Request for a preliminary ruling

from the Handelsgericht Wien)

(Reference for a preliminary ruling — Intellectual property — Copyright and related rights in the information society — Directive 2001/29/EC — Right of communication of works to the public — Article 3(1) — Exceptions and limitations — Article 5(3)(o) — Broadcast of television programmes through a local cable network — National law laying down exceptions for installations allowing access to a maximum of 500 subscribers and for the retransmission of broadcasts of the public broadcaster in national territory)

Summary — Judgment of the Court (Eighth Chamber), 16 March 2017

Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Berne Convention for the Protection of Literary and Artistic Works — Communication to the public — National law providing for exceptions from the requirement to obtain authorisation from the author for installations enabling access for a maximum of 500 subscribers to the transmission of programmes broadcast by the national broadcasting corporation on national territory — Lawfulness — Conditions — Verification by the national court

(European Parliament and Council Directive 2001/29, Arts 3(1) and 5(3)(o))

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, of 9 September 1886, 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.

(see para. 44, operative part)