30.05.2023

Τhe broadcasting Member State principle also applies to the satellite package provider. Consequently, where it is required to obtain the authorisation of the holders of the copyright and related rights concerned for the act of communication to the public in which it participates, the satellite package provider must seek that authorisation only in the Member State in which the programme-carrying signals are introduced into the chain of communication leading to the satellite.

According to the factual background, the applicant in the main proceedings, Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger Reg. Gen. mbH (AKM) is an Austrian copyright collecting society which holds a licence to exploit musical works, entitling it to exercise broadcasting rights in Austria. The company Canal+ Luxembourg Sàrl (‘Canal+’) is a television operator established in Luxembourg, which offers by satellite, in Austria, packages of encrypted programmes (‘satellite packages’) of various broadcasting organisations located in other Member States, both in high definition and in standard definition. The introduction of each of the programme-carrying satellite signals into the chain of communication (uplinking) is carried out for the most part by those broadcasting organisations themselves, sometimes by Canal+, in those other Member States.

Since it was of the view that Canal+ infringed the rights which it manages, AKM brought an action before the Austrian courts seeking, in essence, an injunction prohibiting the broadcasting by Canal+ of satellite signals in Austria and payment of compensation, claiming that, in the Member States in which the act of broadcasting or communication to the public by satellite took place, no authorisation had been obtained for such exploitation and that it had not authorised that broadcasting in Austria

The Court found that where a satellite package provider is required to obtain, for the act of communication to the public by satellite in which it participates, the authorisation of the holders of the copyright and related rights concerned, that authorisation must be obtained, such as that granted to the broadcasting organisation concerned, only in the Member State in which the programme-carrying signals are introduced into the chain of communication leading to the satellite.

Briefly, the following conditions shall be cumulatively fulfilled: i) the definition of the “communication to the public via satellite” must be fulfilled, ii) both the indirect and direct transmission of television programmes that fulfil all of those cumulative conditions, must each be regarded as constituting a single communication to the public by satellite and thus as indivisible, and iii) such authorisation must be obtained, in particular by a person who triggers that communication or who intervenes when it is carried out, so that, by means of that communication, he or she makes the protected works  accessible to a new public.

Moreover, in so far as such a communication to the public by satellite is deemed to take place only in the Member State in which the programme-carrying signals are introduced into the chain of communication leading to the satellite, the broadcasting organisation is required to obtain that authorisation only in that Member State.

Lastly, in the case where other operators may intervene in the course of a communication to the public by satellite, with the result that they render the protected works or subject matter accessible to a public wider than that targeted by the broadcasting organisation concerned, they are not covered by the authorisation granted to that organisation.

For more see here.