SBS Belgium NV v Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM).
Date: 2015-11-19
14. In that regard, first of all, it is to be noted that the principal objective of Directive 2001/29 is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. It follows that ‘communication to the public’, appearing in Article 3(1) of that directive, must be interpreted broadly, as recital 23 in the preamble to the directive indeed expressly states (judgment in ITV Broadcasting and Others , C‑607/11, EU:C:2013:147, paragraph 20 and the case-law cited).
15. The Court has previously held that 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’ (see judgment in Svensson and Others , C‑466/12, EU:C:2014:76, paragraph 16).
16. In the first place, as regards the ‘act of communication’, that refers to any transmission of the protected works, irrespective of the technical means or process used (judgment in Football Association Premier League and Others , C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 193).
17. Moreover, every transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question (judgment in ITV Broadcasting and Others , C‑607/11, EU:C:2013:147, paragraph 24).
21. In that regard, it is apparent from the Court’s case-law that the term ‘public’ refers to an indeterminate number of recipients, potential television viewers, and implies, moreover, a fairly large number of persons (see, to that effect, judgments in SGAE , C‑306/05, EU:C:2006:764, paragraphs 37 and 38, and ITV Broadcasting and Others , C‑607/11, EU:C:2013:147, paragraph 32).
27. It follows that the subscribers who are the recipients of the broadcasts made by the distributors in question cannot be considered, a priori, to be a ‘new’ public which was not covered by the original act of communication made by the broadcasting organisation (see, a contrario , judgment in SGAE , C‑306/05, EU:C:2006:764, paragraph 40).
30. However, the Court has previously held that the distribution of the work broadcast by a professional, such as that in the present case, 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 that professional, and being payable not for any technical services, but for access to the communication in question and, therefore, to the copyright-protected works (see, by analogy, judgment in Airfield and Canal Digitaal , C‑431/09 and C‑432/09, EU:C:2011:648, paragraph 80).
31. A transmission made by a professional, in the circumstances set out in the paragraph above, is not just a technical means of ensuring or improving reception of the original broadcast in its catchment area (see, by analogy, judgment in Airfield and Canal Digitaal , C‑431/09 and C‑432/09, EU:C:2011:648, paragraph 79).
32. That being so, it is not inconceivable that a distributor might find itself in a position that is not independent in relation to the broadcasting organisation and where its distribution service is purely technical in nature, with the result that its intervention is just a technical means, within the meaning of the Court’s case-law (see, in particular, judgments in Football Association Premier League and Others , C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 194 and Airfield and Canal Digitaal , C‑431/09 and C‑432/09, EU:C:2011:648, paragraphs 74 and 79).