'Direct injection' broadcasting is not a communication to the public

'Direct injection' broadcasting is not a communication to the public

What did the Court of Justice decide in SBS Belgium NV v Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM) Case C‑325/14, a communication to the public case, where a broadcaster transmitted its programmes by a technique called 'direct injection' which did not result in direct access to the broadcast signals by the general public?

What was the background to this referral to the Court of Justice?

SBS is a Dutch-language commercial broadcasting organisation which produces and markets television programmes. SBS uses private commercial transmitters in Belgium to broadcast programmes which it has produced itself and programmes purchased from domestic and foreign production companies and programme suppliers. SBS broadcasts its programmes by a technique called 'direct injection'. This is, according the judgment, 'a two-step process' by which SBS transmits its programme-carrying signals 'point to point' via a private line to its distributors such as Belgacom, Telenet and TV Vlaanderen. At that stage, those signals cannot be received by the general public. The distributors then send the signals, which may or may not be in encrypted form, to their subscribers so that the latter can view the programmes on their television sets, with or without the help of a decoder made available by the distributor. Depending on the distributor, those signals are transmitted by satellite, in the case of TV Vlaanderen, by cable, in the case of Telenet, or by xDSL line, in the case of Belgacom.

SABAM, a collecting society, requested compensation from SBS taking the view that SBS, as a broadcasting organisation, makes a communication to the public within the meaning of article 3 of Directive 2001/29 (the InfoSoc Directive) by transmitting via the direct injection method. Therefore, the authorisation of the copyright holders is required. SBS disagreed suggesting that it is the distributors that make a communication to the relevant public in relation to copyright.

What was the question referred?

The question referred was:

'Does a broadcasting organisation which transmits its programmes exclusively via the technique of direct injection -- that is to say, a two-step process in which it transmits its programme-carrying signals in an encrypted form via satellite, a fibre-optic connection or another means of transmission to distributors (satellite, cable or xDSL-line), without the signals being accessible to the public during or as a result of that transmission, and in which the distributors then send the signals to their subscribers so that the latter may view the programmes -- make a communication to the public within the meaning of Article 3 of Directive 2001/29/EC 1 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?'

What did the court decide?

Article 3(1) of the InfoSoc Directive requires two cumulative criteria, namely, an 'act of communication' of a work and the communication of that work to a 'public' (Svensson Case C‑466/12). SBS's transmission of programme carrying signals, did constitute an 'act of communication'. However, since those transmission were made to individual distributors only, the acts of communication were not to the 'public' within the meaning of art 3(1).

In terms of the distributors, the court found that they were supplying an 'autonomous service' (rather than technical assistance) in allowing their subscribers to access the communication.

Therefore, SBS's method of broadcasting via direct injection did not constitute a communication to the public in accordance with art 3(1) of the InfoSoc Directive because it wasn't a complete act.

The court did acknowledge that as a matter of fact a distributor might not be independent to the broadcasting organisation and might only be providing technical assistance to it subscribers. In this case a national court may decide that the subscribers were the public for the purposes of art 3(1) and the broadcasting organisation would then be making a 'communication to the public'.

What can lawyers take from this judgment?

Distinguishing different types of communication will continue to be important (and subject to litigation) as business models and methods of media distribution change.

As a result of the Court of Justice's ruling in ITV v TV Catchup Case C-607/11 [2013] All ER (D) 116 (Mar), in the UK we have a formulaic approach to considering communication to the public. The following questions need to be asked when determining whether there is a communication to the public:

  • Is there a communication or transmission?
  • If so, is the communication through a different technical means?
  • Is the communication to the public?
  • If the communication is to the public, and if the same technical means are used, is the communication to a new public?

Following this formula would suggest that UK courts would have come to the same decision as the Court of Justice.

Joshy Thomas, solicitor in the Lexis®PSL IP & IT team.



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