Airfield NV and 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).
Date: 2011-10-13
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.
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).
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).
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.
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.