Judges I Jarukaitis, M Ilešič (Rapporteur), D Gratsias, Z Csehi
Advocate General G Pitruzzella
The claimant was a German broadcasting organisation which delivered television programmes via various channels to private homes free of charge. The programmes on one of its channels, “RTL”, could be picked up by satellite signal throughout Europe. The broadcaster, accordingly, concluded various licensing agreements with cable television operators and some European hotels. However, a number of hotels in Portugal, operated and/or constructed by the defendants, received RTL programmes via satellite dishes and transmitted them, by cable, to televisions installed in the hotel rooms, without paying any fee. The broadcaster brought an action before a Portuguese court seeking a declaration that the reception and retransmission of RTL broadcasts in the hotel rooms constituted an act of communication to the public and an act of retransmission of those broadcasts under Portuguese legislation and, as such, was subject to prior authorisation by the broadcaster. The broadcaster’s claim was refused on the ground, inter alia, that there had been no retransmission, since the defendants did not have the status of broadcasting organisations. On its appeal, the broadcaster contended that the right conferred on broadcasting organisations to authorise and prohibit the retransmission of their broadcasts, as provided for by national provisions transposing Council Directive 93/83/EEC, covered the simultaneous distribution to the public by cable, of a primary transmission of programmes intended for the public, whether or not the person performing that distribution was a broadcasting organisation. As set out in article 1(3) of the Directive, “cable retransmission” was defined 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 satellite, of television or radio programmes intended for reception by the public. According to article 8(1) of the Directive, member states had to ensure that when programmes from other member states were retransmitted by cable in their territory, the applicable copyright and related rights were observed and that such retransmission took place on the basis of agreements between copyright owners, holders of related rights and cable operators. The Portuguese court hearing the ultimate appeal stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the questions, in essence, whether member states had to provide broadcasting organisations with the exclusive right to authorise or prohibit cable retransmission, within the meaning of article 1(3) of Directive 93/83 read in conjunction with article 8(1) thereof, and whether the distribution of programmes broadcast by satellite and intended for reception by the public constituted such retransmission, where that transmission was carried out by an establishment such as an hotel.
On the reference—
Held, although the agreements provided for in article 8(1) of Directive 93/83 were concluded with “cable operators”, that provision did not affect the exact scope of copyright or related rights, which was established under other instruments of EU law as well as national law. Even if a national law provided for an exclusive right for broadcasting organisations to authorise or prohibit cable transmission, the Directive governed only the exercise of the cable retransmission right in the relationship between copyright owners and holders of related rights, on the one hand, and “cable operators” or “cable distributors”, on the other. Furthermore, having regard to the circumstances surrounding the origin of Directive 93/83, the terms “cable operator” or “cable distributor” in the Directive designated the operators of traditional cable networks, and establishments such as hotels did not fall within those concepts. Although, under article 8(3), the exclusive right to authorise or prohibit the communication to the public of broadcasts could be relied on against third parties only if such communication was made in places accessible to the public against payment of an entrance fee, that condition was not fulfilled where the communication constituted an additional service included in the price of a main service of a different nature, such as an hotel accommodation service. Accordingly, article 1(3) of Directive 93/83, read in conjunction with article 8(1), did not provide for an exclusive right for broadcasting organisations to authorise or prohibit cable retransmission, within the meaning of article 1(3), and the simultaneous, unaltered and unabridged distribution of television or radio programmes broadcast by satellite and intended for reception by the public, where that retransmission was carried out by a person other than a cable operator, such as an hotel, did not constitute cable retransmission (judgment, paras 70, 74, 76–77, 79, 84–85, operative part).
JP de Oliveira Vaz Miranda de Sousa for the claimant.
H Trocado for the defendants.
É Gippini Fournier, B Rechena and J Samnadda, agents, for the European Commission.