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On 8 September 2022, the Court of Justice of the European Union (“CJEU”) in the case of RTL Television GmbH v Grupo Pestana S.G.P.S. SA, SALVOR – Sociedade de Investimento Hoteleiro SA (C-716/20) ruled that Council Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (the “SatCab Directive”) does not provide broadcasters an exclusive right to authorise or prohibit cable retransmissions of a programme; and that transmission by a party other than a cable operator does not constitute cable retransmission.
Copyright refers to a variety of exclusive rights that are held by people or organisations in relation to their original and creative work. These rights, for instance, include the ability to distribute or make a work available to the public, as well as the ability to authorise or restrict the reproduction of a work or a significant portion of it by third parties. Similar rights, also referred to as ‘related rights’ or ‘neighbouring rights’, are granted to, for example, broadcasters regarding the exploitation and distribution of their broadcasts.
In fact, this case features a broadcaster, RTL Television GmbH (“RTL” or the “Applicant”), and a hotel operator in Portugal, Grupo Pestana S.G.P.S. SA and SALVOR – Sociedade de Investimento Hoteleiro SA (collectively, the “Defendants”). The applicant offers a variety of television formats meant for public reception and is regarded as a free-to-air channel (meaning, channels whose private reception is exempt from a license fee) that may be viewed in other European nations, including Portugal, by using a satellite dish.
The applicant claimed that some of the hotels run by the defendants have been giving their visitors the option to connect to the RTL channel through television sets installed in hotel rooms using coaxial cable. The applicant claimed that this method of retransmitting and making the applicant’s broadcasts available was without authorisation and requested compensation for the public retransmission. The defendants, in turn, claimed that under Portuguese law, hotels were exempt from copyright and other fees for the simple act of receiving a television signal. At first instance and on appeal, the courts determined that while receiving and making a broadcast from the RTL Channel available in hotel rooms constituted a public communication act, its distribution via coaxial cable could not be characterised as a “retransmission of broadcasts” because neither the defendants in the main proceedings nor the hotels named in the action, were broadcasting organisations.
In order to promote pan-European broadcasting services, the SatCab Directive has a specific and quite narrow scope. It is a counterpart to the Television without Frontiers Directive of 1989 and shares similar goals regarding removing obstacles in the fields of broadcasting and advertising law. The main goal is to make it easier for audiovisual programs to be transmitted across international borders, notably through satellite broadcasting and cable rebroadcast. Additionally, Directive 2001/29 on copyright in the information society (the “InfoSoc Directive”) has successfully harmonized all economic rights with regard to acts of public communication ‘by wire or by wireless means’.
It is important to note that whilst the InfoSoc Directive expressly grants broadcasting organisations the ‘making available’ right, it does not grant the ‘general right of communication to the public’ to broadcasting organisations. The latter benefit this right on the basis of Article 8(3) of Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of intellectual property, which provides for a limited right of communication to the public on the model of Article 13(d) of the Rome Convention, as quoted here:
“Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.” A similar provision is also found in the Maltese counterpart, under Article 17(1)(d) of the Copyright Act, Chapter 415 of the Laws of Malta. It should be noted, however, that this article does not make the distinction of ‘by wire or by wireless means’.
The CJEU, in cases such as SGAE (C-306/05) and Divani Acropolis Hotel Case (C-136/09), has previously confirmed the application of the right of communication to the public regarding the transmission of radio television programmes in TV sets installed in hotels. However, the case at issue differs from the above-mentioned case law as it concerns (i) the conceptual autonomy (or the lack of it) of the cable retransmission as a broadcasters’ right, and (ii) the extent to which the right of communication to the public is granted to broadcasting organisations. In fact, one of the main issues in the case was whether RTL’s claims regarding the unauthorised transmission of its signals in hotel rooms through coaxial cable should be based on the general right of communication to the public or on the unique regime of the SatCab Directive, given the diversity of legal sources regarding cable retransmission.
In the present case, the CJEU pointed out that Article 1(3) of the SatCab Directive defines cable retransmission as the “simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public”. Thus, “retransmission” only refers to systems using cable or microwave technology, but initial transmission can take place through wire or the air, including by satellite. However, in the recent revision of the SatCab Directive in 2019, the above definition continues by saying “…regardless of how the operator of a cable retransmission service obtains the programme-carrying signals from the broadcasting organisation for the purpose of retransmission.” It is interesting to see whether this recent promulgation had any impacts on the ruling of this judgement.
The CJEU’s ruling
In light of the above, the Court noted that in accordance with Article 8(3) of the SatCab Directive, the exclusive right to approve or disapprove the public’s access to broadcasts of broadcasting organisations may only be invoked against third parties if the communication is made in locations where the public is allowed access in exchange for a fee. It ruled that where a communication is included without distinction in the price of a principal service of a different kind, like a hotel accommodation service, the need relating to the payment of a charge is not satisfied. The CJEU further considered that establishments such as hotels do not fall within the concepts of ‘cable operator’ or ‘cable distributor’, within the meaning of the SatCab Directive.
In conclusion, the CJEU ruled that Article 1(3) of Directive 93/83/EEC, read in conjunction with Article 8(1), must be interpreted as meaning that:
Given that the SatCab Directive is a rare area to be subject to a preliminary reference request by national courts, this case gave the CJEU the unique opportunity to complement its case law on communication to the public for the specific aspect of retransmission of broadcasting signals. However, the distinction between this case and previously decided cases – albeit now with a different legal position – will give rise to certain repercussions in relation to copyright and related rights. Among others, this case could further split and complicate EU copyright law, which currently appears to be a collection of unique ideas, regulations, and statuses; and secondly, through this case, it is clearly being shown how related rights should not automatically and uniformly benefit from copyright rules.
This article was first published in The Malta Independent (30 November 2022).
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