Source: EURLEX
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**Joined Cases C-431/09 and C-432/09**

**Airfield NV and Canal Digitaal BV**

**v**

**Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam)**

**and**

**Airfield NV**

**v**

**Agicoa Belgium BVBA**

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

(Copyright – Satellite broadcasting – Directive 93/83/EEC – Articles 1(2)(a) and 2 – Communication to the public by satellite – Satellite package provider – Single communication to the public by satellite – Persons to whom that communication may be attributed – Authorisation from copyright holders for the communication)

Summary of the Judgment

*Approximation of laws – Copyright and related rights – Directive 93/83 – Satellite broadcasting and cable retransmission –
Authorisation from copyright holders – Conditions*

*(Council Directive 93/83, Art. 2)*

Article 2 of Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable
to satellite broadcasting and cable retransmission must be interpreted as requiring a satellite package provider to obtain
authorisation from the right holders concerned for its intervention in the direct or indirect transmission of television programmes,
unless the right holders have agreed with the broadcasting organisation concerned that the protected works will also be communicated
to the public through that provider, on condition, in the latter situation, that the provider’s intervention does not make
those works accessible to a new public.

(see para. 84, operative part)

  
   
   
  
   
   

JUDGMENT OF THE COURT (Third Chamber)

13 October 2011 ([\*](#Footnote*))

(Copyright – Satellite broadcasting – Directive 93/83/EEC – Articles 1(2)(a) and 2 – Communication to the public by satellite – Satellite package provider – Single communication to the public by satellite – Persons to whom that communication may be attributed – Authorisation from copyright holders for the communication)

In Joined Cases C‑431/09 and C‑432/09,

REFERENCES for a preliminary ruling under Article 234 EC from the hof van beroep te Brussel (Belgium), made by decisions of
27 October 2009, received at the Court on 2 November 2009, in the proceedings

**Airfield NV,**

**Canal Digitaal BV**

v

**Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam)** (C-431/09),

and

**Airfield NV**

v

**Agicoa Belgium BVBA** (C-432/09),

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, J. Malenovský (Rapporteur), R. Silva de Lapuerta, E. Juhász and D. Šváby,
Judges,

Advocate General: N. Jääskinen,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 25 November 2010,

after considering the observations submitted on behalf of:

–        Airfield NV and Canal Digitaal BV, by T. Heremans and A. Hallemans, advocaten,

–        Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam), by E. Marissens, advocaat,

–        Agicoa Belgium BVBA, by J. Windey and H. Gilliams, advocaten,

–        the Finnish Government, by J. Heliskoski, acting as Agent,

–        the European Commission, by H. Krämer and W. Roels, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 March 2011,

gives the following

**Judgment**

1        These references for a preliminary ruling concern the interpretation of Article 1(2)(a) to (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 (OJ 1993 L 248, p. 15).

2        The references have been made in proceedings between Airfield NV (‘Airfield’) and Canal Digitaal BV (‘Canal Digitaal’), of
the one part, and the Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam) (Belgian Society of Authors,
Composers and Publishers; ‘Sabam’), of the other part (Case C‑431/09), and between Airfield and Agicoa Belgium BVBA (‘Agicoa’)
(Case C‑432/09), concerning the obligation, for Airfield and Canal Digitaal, to obtain authorisation to communicate works
to the public.

**Legal context**

*European Union law*

3        Recitals 5, 14, 15 and 17 in the preamble to Directive 93/83 state:

‘(5)      … the achievement of [the objectives of the European Union] in respect of cross-border satellite broadcasting and the cable
retransmission of programmes from other Member States is currently still obstructed by a series of differences between national
rules of copyright and some degree of legal uncertainty; … this means that holders of rights are exposed to the threat of
seeing their works exploited without payment of remuneration or that the individual holders of exclusive rights in various
Member States block the exploitation of their rights; … the legal uncertainty in particular constitutes a direct obstacle
in the free circulation of programmes within the [European Union];

...

(14)      … the legal uncertainty regarding the rights to be acquired which impedes cross-border satellite broadcasting should be overcome
by defining the notion of communication to the public by satellite at a [European Union] level; … this definition should at
the same time specify where the act of communication takes place; … such a definition is necessary to avoid the cumulative
application of several national laws to one single act of broadcasting; … communication to the public by satellite occurs
only when, and in the Member State where, the programme-carrying signals are introduced under the control and responsibility
of the broadcasting organisation into an uninterrupted chain of communication leading to the satellite and down towards the
earth; … normal technical procedures relating to the programme-carrying signals should not be considered as interruptions
to the chain of broadcasting;

(15)      ... the acquisition on a contractual basis of exclusive broadcasting rights should comply with any legislation on copyright
and rights related to copyright in the Member State in which communication to the public by satellite occurs;

…

(17)      … in [arriving] at the amount of the payment to be made for the rights acquired, the parties should take account of all aspects
of the broadcast, such as the actual audience, the potential audience and the language version’.

4        Article 1(1) of Directive 93/83 states:

‘For the purpose of this Directive, “satellite” means 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 the latter case, however, the circumstances in which individual reception of the signals takes place must
be comparable to those which apply in the first case.’

5        Article 1(2)(a) to (c) of Directive 93/83 provides:

‘(a)      For the purpose of this Directive, “communication to the public by satellite” means the act of introducing, under the control
and responsibility of the broadcasting organisation, the programme-carrying signals intended for reception by the public into
an uninterrupted chain of communication leading to the satellite and down towards the earth.

(b)      The act of communication to the public by satellite occurs solely in the Member 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.

(c)      If the programme-carrying signals are encrypted, then there is communication to the public by satellite on condition that
the means for decrypting the broadcast are provided to the public by the broadcasting organisation or with its consent.’

6        Article 2 of Directive 93/83 states:

‘Member States shall provide an exclusive right for the author to authorise the communication to the public by satellite of
copyright works, subject to the provisions set out in this chapter.’

7        Under 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):

‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of
their works, by wire or wireless means, including the making available to the public of their works in such a way that members
of the public may access them from a place and at a time individually chosen by them.’

8        Recital 27 in the preamble to Directive 2001/29 specifies in this regard 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 Directive’.

*National law*

9        The fourth subparagraph of Article 1(1) of the Law of 30 June 1994 on copyright and related rights (Wet betreffende het auteursrecht
en de naburige rechten, *Moniteur belge* of 27 July 1994, p. 19297), as amended, provides:

‘The author of a literary or artistic work shall alone have the right to communicate it to the public by any process whatever,
including by making it available to the public in such a way that members of the public may access it from a place and at
a time individually chosen by them.’

10      Articles 49 and 50 of that Law essentially reproduce the wording of Article 1(2)(a) to (c) of Directive 93/83.

**The facts and the questions referred for a preliminary ruling**

11      Airfield, a Belgian company operating under the trading name TV Vlaanderen, is a satellite television provider which offers
the public a package of channels transmitted by satellite that can be heard and viewed together by its subscribers by means
of a satellite decoder (‘satellite package provider’).

12      The package of channels offered by Airfield includes two types of television channel. Apart from the channels which can be
received free of charge, the package includes encrypted channels which can be viewed only after decoding. In order to be able
to view these channels, customers must therefore enter into a subscription agreement with Airfield, which provides them, in
return for payment, with a card that enables decoding (‘decoder card’).

13      In order to offer its package of channels, Airfield has recourse to the technical services of Canal Digitaal, a Netherlands
company which belongs to the same group as Airfield.

14      Canal Digitaal concluded an agreement with the company that operates the Astra satellite system, under which the latter leases
to Canal Digitaal capacity for digital radio and television on the Astra satellite.

15      Subsequently, Canal Digitaal concluded with Airfield a services agreement by which it undertook to sublease to Airfield from
1 January 2006 capacity leased on the Astra satellite for the broadcasting of television and radio programmes in Belgium and
Luxembourg. For the broadcasting of the television programmes, Canal Digitaal undertook to provide technical services, including
uplinking, multiplexing, compressing, scrambling and data transmission, which are required in order to enable Airfield to
broadcast digital television services in Belgium and Luxembourg.

16      Airfield also concluded a series of agreements with broadcasting organisations whose channels are included in its satellite
package. The manner in which Airfield and those organisations cooperate differs according to the method of transmission of
the television programmes concerned, those programmes being broadcast, as part of Airfield’s satellite package, either by
indirect transmission (‘indirect transmission of television programmes’) or by direct transmission (‘direct transmission of
television programmes’).

*Indirect transmission of television programmes*

17      The indirect transmission of television programmes is carried out in accordance with two methods.

18      Under the first of those methods, the broadcasting organisations send the signals carrying their programmes, via a fixed link,
to Canal Digitaal’s equipment installed in Vilvorde (Belgium). Canal Digitaal compresses the signals and scrambles them in
order to send them by broadband to its station in the Netherlands, from which they are beamed up to the Astra satellite. The
signals are encrypted before being beamed up from the station to the satellite. The key enabling the public to decode those
signals is incorporated in a decoder card that is made available to Airfield by Canal Digitaal. When consumers take out a
subscription with Airfield they receive that card.

19      Under the second of those methods, the broadcasting organisations transmit the signals carrying their programmes via a satellite.
Canal Digitaal receives those satellite signals, which are encrypted and inaccessible to the public, in Luxembourg or the
Netherlands. It decodes them possibly, rescrambles them and beams them up to the Astra satellite. Airfield’s subscribers can
decode those signals by means of a decoder card supplied by Canal Digitaal to Airfield.

20      Airfield concluded ‘carriage’ agreements with those broadcasting organisations.

21      Under those agreements, Airfield leases satellite transponder capacity to the broadcasting organisations with a view to the
broadcasting of the television programmes to viewers residing, in particular, in Belgium and Luxembourg. Airfield guarantees
that it has received authorisation from the company operating the Astra satellite to sublease that capacity to the broadcasting
organisations.

22      Airfield also undertakes to receive the television programme signal of the broadcasting organisations concerned at a central
uplink site, to compress, multiplex and scramble the signal and to beam it up to the satellite for broadcasting and reception.

23      Those organisations pay Airfield a fee for the abovementioned leasing and provision of services.

24      The broadcasting organisations grant Airfield authorisation for simultaneous viewing by its subscribers, including in Belgium
and Luxembourg, of their programmes broadcast by means of the Astra satellite.

25      In return for the rights conferred on Airfield by those broadcasting organisations and for Airfield’s power to include the
television programmes in the package offered by it, Airfield is required to pay the broadcasting organisations a fee which
takes account of the number of its subscribers and of the programmes broadcast in the territory concerned.

*Direct transmission of television programmes*

26      In the case of direct transmission of television programmes in Airfield’s satellite package, the broadcasting organisations
scramble the signals themselves and send them from the country of origin directly to the satellite. The intervention of Airfield
and Canal Digitaal is confined to supply of the access keys to the broadcasting organisations concerned, so that the correct
codes are applied and Airfield’s subscribers are thereby enabled to decode the programmes subsequently by using the decoder
card.

27      With such organisations, Airfield concluded contracts called ‘heads of agreement’ laying down inter alia the broadcasting
organisations’ and Airfield’s rights and obligations, which are analogous to the rights and obligations referred to in paragraphs
24 and 25 of the present judgment.

*The dispute in the main proceedings*

28      Sabam is a Belgian cooperative society which, in its capacity as a management society, represents authors in authorising the
use of their copyright-protected works by third parties and in collecting the royalties payable for that use.

29      Agicoa is a collective management society which represents Belgian and international producers of audiovisual works with a
view to managing copyright and related rights in films and other audiovisual works, with the exception of video clips. Within
this framework, it collects royalties.

30      Sabam and Agicoa took the view that Airfield rebroadcasts television programmes already transmitted by the broadcasting organisations,
in accordance with the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, and that Airfield
must therefore obtain authorisation for use of the catalogue of the authors whose rights they administer.

31      In response to a letter before action, Airfield and Canal Digitaal contended that they do not carry out rebroadcasting, but
offer the public solely television programmes by satellite on behalf of the broadcasting organisations. In their submission,
there is a first and single satellite broadcast by the broadcasting organisations themselves, which have recourse to them
so far as its technical aspect is concerned. The broadcasting organisations alone carry out an operation which is relevant
to copyright for the purposes of Articles 49 and 50 of the Law of 30 June 1994 on copyright and related rights, as amended.

32      Since no agreement could be reached between the parties concerned, Sabam issued a writ of summons against Airfield and Canal
Digitaal, and Agicoa issued a writ of summons against Airfield, to appear before the President of the rechtbank van eerste
aanleg te Brussel (Court of First Instance, Brussels). The latter held that Airfield and Canal Digitaal had infringed the
copyright which Sabam and Agicoa administer.

33      Airfield and Canal Digitaal brought an appeal against those decisions before the hof van beroep te Brussel (Court of Appeal,
Brussels).

34      In those circumstances, the hof van beroep te Brussel decided to stay the proceedings and to refer to the Court for a preliminary
ruling the following questions, which are couched in identical terms in Cases C‑431/09 and C-432/09:

‘(1)      Does Directive 93/83 preclude the requirement that the supplier of digital satellite television must obtain the consent of
the right holders in the case where a broadcasting organisation transmits its programme-carrying signals, either by a fixed
link or by an encrypted satellite signal, to a supplier of digital satellite television which is independent of the broadcasting
organisation, and that supplier has those signals encrypted and beamed to a satellite by a company associated with it, after
which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television
channels and therefore bundled, to the satellite television supplier’s subscribers, who are able to view the programmes simultaneously
and unaltered by means of a decoder card or smart card provided by the satellite television supplier?

(2)      Does Directive 93/83 preclude the requirement that the supplier of digital satellite television must obtain the consent of
the right holders in the case where a broadcasting organisation transmits its programme-carrying signals to a satellite in
accordance with the instructions of a digital satellite television supplier which is independent of the broadcasting organisation,
after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television
channels and therefore bundled, to the satellite television supplier’s subscribers, who are able to view the programmes simultaneously
and unaltered by means of a decoder card or smart card provided by the satellite television supplier?’

35      By order of the President of the Court of 6 January 2010, Cases C-431/09 and C‑432/09 were joined for the purposes of the
written and oral procedure and the judgment.

**Applicability of Directive 93/83**

36      In Case C-432/09, Agicoa contends that Directive 93/83 is not applicable to the dispute in the main proceedings and that the
questions referred for a preliminary ruling must be examined in the light of Directive 2001/29.

37      In this regard, Agicoa submits, first of all, that a satellite package provider must be distinguished from a broadcasting
organisation, since its activity consists in the putting together of a package of broadcasting services and not in broadcasting
television programmes. Accordingly, it is misplaced to rely on Article 1(2)(a) of Directive 93/83 in order to examine its
activities, as that provision refers to the broadcasting organisation alone.

38      Second, the dispute in the main proceedings does not, in Agicoa’s submission, fall within the scope of Directive 93/83, because
it concerns communications which do not involve recourse to a satellite within the meaning of Article 1(1) of that directive.
Finally, the cross-border aspect envisaged by that directive is missing from the dispute.

39      It must be pointed out that the first argument concerns the very essence of the substance of the present case and will therefore
be examined when the questions referred for a preliminary ruling are answered.

40      As to the second argument, there is nothing in the documents before the Court indicating that the communications at issue
in the main proceedings are not carried out by means of a satellite within the meaning of Article 1(1) of Directive 93/83.

41      Finally, so far as concerns the third argument, it is apparent from Joined Cases C‑403/08 and C-429/08 *Football Association Premier League and Others* [2011] ECR I-0000, paragraphs 76 to 145, that communications to the public by satellite must be capable of being received
in all the Member States and that they therefore by definition have a cross-border nature. Furthermore, the communications
at issue in the main proceedings display such a nature since they involve Belgian and Netherlands companies, Airfield and
Canal Digitaal, and the programme-carrying signals are intended in particular for television viewers residing in Belgium and
Luxembourg.

42      Accordingly, Agicoa’s line of argument must be rejected and the questions referred for a preliminary ruling must be examined
in the light of Directive 93/83.

**Consideration of the questions referred**

43      By its questions, which it is appropriate to examine together, the national court asks, in essence, whether Directive 93/83
must be interpreted as requiring a satellite package provider to obtain authorisation from the right holders concerned for
a communication to the public of works that is effected in the course of the direct or indirect transmission of television
programmes, such as the transmission at issue in the main proceedings.

*Introductory remarks*

44      First of all, it should be borne in mind that Directive 93/83 is not the only European Union instrument in the field of intellectual
property and that, in view of the requirements deriving from the unity and coherence of the legal order of the European Union,
the terms used by that directive must be interpreted in the light of the rules and principles established by other directives
relating to intellectual property, such as, in particular, Directive 2001/29 (see, by analogy, Case C‑271/10 *VEWA* [2011] ECR I-0000, paragraph 27).

45      Second, so far as concerns the factual context of the questions referred for a preliminary ruling, it should be made clear
at the outset that the direct and the indirect transmission of television programmes are not the only means of transmitting
programmes included in the satellite package concerned.

46      Those programmes are also broadcast by the broadcasting organisations outside that package, by means which enable them to
reach television viewers directly, such as terrestrial broadcasting.

47      The direct and the indirect transmission are therefore an addition to those means of broadcasting, with a view to expanding
the circle of television viewers receiving the broadcasts concerned, and they are parallel and simultaneous, the satellite
package provider’s intervention not affecting the content of such broadcasts or their scheduling.

48      Finally, it is common ground, in the main proceedings, that the broadcasting organisations have authorisation from the right
holders concerned to communicate their works by satellite and that, on the other hand, the satellite package provider has
no comparable authorisation.

49      In the present cases, Airfield and Canal Digitaal contend that the direct and the indirect transmission of television programmes
each constitute a single communication to the public by satellite within the meaning of Article 1(2)(a) of Directive 93/83,
that is to say, therefore, an indivisible communication attributable to the relevant broadcasting organisation alone. They
infer from this that the satellite package provider cannot be regarded as effecting a communication to the public within the
meaning of that provision, and it cannot therefore be required to obtain authorisation from the right holders concerned as
regards that transmission.

50      Accordingly, in order to determine whether the satellite package provider is required to obtain such authorisation, it must
be examined, first, whether the direct and the indirect transmission of television programmes each constitute a single communication
to the public by satellite or, on the contrary, whether each of them entails two independent communications. Second, it must
be established whether indivisibility of such a communication means that the satellite package provider is not required to
obtain authorisation from the right holders concerned for its intervention in that communication.

*Concept of communication to the public by satellite*

51      Both direct transmission and indirect transmission constitute a single communication to the public by satellite when they
satisfy each of the conditions laid down in Article 1(2)(a) and (c) of Directive 93/83.

52      Thus, such transmission constitutes a single communication to the public by satellite if:

–        it is triggered by an ‘act of introducing’ programme-carrying signals, carried out ‘under the control and responsibility of
the broadcasting organisation’;

–        those signals are introduced ‘into an uninterrupted chain of communication leading to the satellite and down towards the earth’;

–        the signals are ‘intended for reception by the public’; and

–        since in the main proceedings the signals are encrypted, the means for decrypting the broadcast are ‘provided to the public
by the broadcasting organisation or with its consent’.

53      So far as concerns the first condition, in the case of the indirect transmission of television programmes the broadcasting
organisations themselves introduce the programme-carrying signals into the chain of communication concerned, by supplying
those signals to the satellite package provider and authorising the latter to introduce them into the satellite communication
uplink.

54      In so doing, the broadcasting organisations have a power of control over the act of introducing the signals in the communication
leading to the satellite and they assume responsibility therefor.

55      As regards the direct transmission of television programmes, the broadcasting organisations themselves introduce the programme-carrying
signals directly into the satellite communication uplink, which means all the more that they have a power of control over
the act of introducing those signals in the communication concerned and assume responsibility for that act.

56      In this context, it should be pointed out that there is nothing to prevent that power of control and that responsibility as
regards the indirect or direct transmission of television programmes from being shared, where appropriate, with the satellite
package provider. First, it is clear from the very wording of Article 1(2)(a) of Directive 93/83 that control and responsibility
for the purposes of that provision relate not to the communication as a whole, but only to the act of introducing programme-carrying
signals. Second, no provision of that directive requires the power of control and responsibility as regards the whole of the
communication to be exclusive.

57      Accordingly, both the indirect transmission of television programmes and their direct transmission satisfy the first condition,
laid down in Article 1(2)(a) of Directive 93/83.

58      So far as concerns the second condition, first of all it is apparent from the Court’s case-law 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 unfeasible and, as a result, the
public receives no broadcast (see, to this effect, Case C-192/04 *Lagardère Active Broadcast* [2005] ECR I‑7199, paragraph 39).

59      In this instance, it is not in dispute that the satellite forms a central, essential and irreplaceable element both of the
direct transmission of television programmes and of their indirect transmission, so that both methods of transmission amount
to closed communications systems of that kind.

60      Next, while it is true that, when television programmes are transmitted indirectly, Airfield and Canal Digitaal intervene
as regards the programme-carrying signals emitted by the broadcasting organisations, it is to be recalled that such intervention
consists, essentially, in receiving those signals from the broadcasting organisations, possibly decoding them, rescrambling
them and beaming them up to the satellite concerned.

61      This single intervention falls within the customary technical activities to prepare the signals for their introduction into
the satellite communication uplink. It is frequently necessary in order to make the satellite communication feasible or to
facilitate it. Consequently, it must be classified as a normal technical procedure relating to the programme-carrying signals
and, in accordance with recital 14 in the preamble to Directive 93/83, cannot therefore be regarded as resulting in interruptions
to the chain of communication concerned.

62      Finally, as regards the direct transmission of television programmes, it is to be recalled that the intervention of Airfield
and Canal Digitaal is confined to supply of the access keys to the broadcasting organisations concerned so as to enable Airfield’s
subscribers to decode the programmes subsequently by using the decoder card.

63      Given that it is undisputed that Airfield and Canal Digitaal supply those access keys to the broadcasting organisations before
the latter introduce the programme-carrying signals into the chain of communication concerned, such intervention by Airfield
and Canal Digitaal is not capable of interrupting the chain of communication.

64      Accordingly, the indirect and the direct transmission of television programmes satisfy the second condition, laid down in
Article 1(2)(a) of Directive 93/83.

65      As regards the third condition, it is not in dispute that, from the moment when those signals are beamed up to the satellite,
they are addressed to a public, namely the public in possession of a decoder card, supplied by Airfield.

66      Also, although the signals forming part of the indirect transmission of television programmes undergo certain technical adaptations,
those adaptations precede their introduction into the satellite communication uplink and constitute – as has been determined
in paragraph 61 of the present judgment – normal technical procedures. In those circumstances, the adaptations cannot be regarded
as affecting who those signals are intended for.

67      Consequently, the programme-carrying signals emitted in the course of the direct and the indirect transmission of television
programmes are intended for reception by the public and such transmission thus satisfies the third condition, laid down in
Article 1(2)(a) of Directive 93/83.

68      So far as concerns the fourth condition, it is not in dispute that, in the context of the transmissions at issue in the main
proceedings, the devices for decrypting the broadcasts are provided to the public not by the broadcasting organisations but
by the satellite package provider. That said, the documents before the Court do not show that the satellite package provider
supplies those devices to the public without the broadcasting organisations’ consent, but this must be verified by the national
court.

69      In light of the foregoing, it must be held, subject to verification by the national court, that both the indirect transmission
of television programmes and their direct transmission fulfil all the cumulative conditions laid down in Article 1(2)(a) and
(c) of Directive 93/83 and that each of them must therefore be regarded as constituting a single communication to the public
by satellite and thus as indivisible.

70      That said, the indivisibility of such a communication, within the meaning of Article 1(2)(a) and (c) of Directive 93/83, does
not however signify that the intervention of the satellite package provider in that communication can occur without the authorisation
of the right holders concerned.

*Authorisation of the communication to the public by satellite*

71      First of all, it is clear from Article 2 of Directive 93/83 that copyright holders must authorise any communication of the
protected works to the public by satellite.

72      Next, it follows from the Court’s case-law that such authorisation must be obtained in particular by a person who triggers
such a communication or who intervenes when it is carried out, so that, by means of that communication, he makes the protected
works accessible to a new public, that is to say, a public which was not taken into account by the authors of the protected
works within the framework of an authorisation given to another person (see, by analogy, with regard to communication to the
public within the meaning of Article 3 of Directive 2001/29, Case C-306/05 *SGAE* [2006] ECR I-11519, paragraphs 40 and 42, and the order of 18 March 2010 in Case C-136/09 *Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon*, paragraph 38).

73      This is indeed borne out by recital 17 in the preamble to Directive 93/83, according to which the right holders concerned
must be ensured an appropriate remuneration for the communication to the public by satellite of their works that takes account
of all aspects of the broadcast, such as its actual audience and its potential audience (see, to this effect, *Football Association Premier League and Others*, paragraphs 108 and 110).

74      However, that authorisation does not have to be obtained by the person concerned if his intervention when the communication
to the public is carried out is limited, in accordance with recital 27 in the preamble to Directive 2001/29, to the mere provision
of physical facilities for enabling or making the communication.

75      In this context, it is to be observed that, in accordance with Article 1(2)(a) of Directive 93/83, a communication to the
public by satellite, such as that at issue in the main proceedings, is triggered by the broadcasting organisation under whose
control and responsibility the programme-carrying signals are introduced into the chain of communication leading to the satellite.
Nor is it in dispute that, as a general rule, that organisation thereby renders the protected works accessible to a new public.
Consequently, it is required to obtain the authorisation provided for in Article 2 of Directive 93/83.

76      Nevertheless, that finding does not preclude intervention by other operators in the course of a communication such as that
referred to in the preceding paragraph with the result that they render the protected subject-matter accessible to a public
wider than that targeted by the broadcasting organisation concerned, that is to say, a public which was not taken into account
by the authors of those works when they authorised the use of the latter by the broadcasting organisation. In such a situation,
the intervention of those operators is thus not covered by the authorisation granted to the broadcasting organisation.

77      In circumstances such as those in the main proceedings, that may in particular be the case where an operator expands the circle
of persons having access to that communication and thereby renders the protected subject-matter accessible to a new public.

78      In this context, it is to be pointed out that a satellite package provider, first, encrypts the communication concerned or
supplies access keys for the communication to the broadcasting organisations so that its subscribers can decode it and, second,
provides the corresponding decoding devices to those subscribers, these operations thus enabling the link to be established
between the communication introduced by the broadcasting organisation and those subscribers.

79      Such activity is not to be confused with mere provision of physical facilities in order to ensure or improve reception of
the original broadcast in its catchment area, which falls within the cases referred to in paragraph 74 of the present judgment,
but constitutes an intervention without which those subscribers would not be able to enjoy the works broadcast, although physically
within that area. Thus, those persons form part of the public targeted by the satellite package provider itself, which, by
its intervention in the course of the satellite communication in question, makes the protected works accessible to a public
which is additional to the public targeted by the broadcasting organisation concerned.

80      Moreover, the satellite package provider’s intervention amounts to the supply of an autonomous service performed with the
aim of making a profit, the subscription fee being paid by those persons not to the broadcasting organisation but to the satellite
package provider. It is undisputed that that fee is payable not for any technical services, but for access to the communication
by satellite and therefore to the works or other protected subject-matter.

81      Finally, it is to be noted that the satellite package provider does not enable its subscribers to access the communication
of a single broadcasting organisation, but brings together a number of channels from various broadcasting organisations in
a new audiovisual product, the satellite package provider deciding upon the composition of the package thereby created.

82      Accordingly, it must be found that the satellite package provider expands the circle of persons having access to the television
programmes and enables a new public to have access to the works and other protected subject-matter.

83      That satellite package provider is therefore required to obtain authorisation, from the right holders concerned, for its intervention
in the communication by satellite, unless the right holders have agreed with the broadcasting organisation concerned that
the protected works will also be communicated to the public through that provider, on condition, in the latter situation,
that the provider’s intervention does not make those works accessible to a new public.

84      Having regard to the foregoing, the answer to the questions referred is that Article 2 of Directive 93/83 must be interpreted
as requiring a satellite package provider to obtain authorisation from the right holders concerned for its intervention in
the direct or indirect transmission of television programmes, such as the transmission at issue in the main proceedings, unless
the right holders have agreed with the broadcasting organisation concerned that the protected works will also be communicated
to the public through that provider, on condition, in the latter situation, that the provider’s intervention does not make
those works accessible to a new public.

**Costs**

85      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

**Article 2 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 must be interpreted as requiring
a satellite package provider to obtain authorisation from the right holders concerned for its intervention in the direct or
indirect transmission of television programmes, such as the transmission at issue in the main proceedings, unless the right
holders have agreed with the broadcasting organisation concerned that the protected works will also be communicated to the
public through that provider, on condition, in the latter situation, that the provider’s intervention does not make those
works accessible to a new public.**

[Signatures]

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[\*](#Footref*) Language of the case: Dutch.

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