The provider of satellite television broadcasting services must obtain permission from copyright holders to distribute works. The problem arises when the provider of such services is based in a different country from the recipients of its channels. A similar case was decided by the CJEU in its judgment of 25 May 2023 (ref. C-290/21).
In the proceedings before the Austrian court, AMK Association held a music licence entitling it to exercise broadcasting rights in Austria. Luxembourg-based Canal+, on the other hand, offered packages of encrypted TV and radio channels located and broadcast from the territory of other EU Member States in Austria.
AMK Association demanded that Canal+ cease further broadcasting in Austria and pay damages. It pointed out that neither in the countries from where the signal was broadcast nor within Austria had the Association granted Canal+ permission to broadcast. The Association believed that Canal+ should obtain its authorisation to broadcast in Austrian territory.
Canal+ disputed AMK’s reasoning. It argued that the consent of the copyright holders in the territory of the countries from which the signal is broadcast is sufficient.
The case went all the way to the Austrian Supreme Court. The Court asked the CJEU whether a permission from the copyright holder in the country where the broadcast signal is received is indeed necessary.
The Court holds that Article 1(2)(b) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission must be interpreted as meaning that, where a satellite package provider is required, in respect of a satellite public service activity in which it participates, to obtain authorisation from the copyright holders and holders of related rights concerned, that authorisation must be obtained, like the authorisation granted to the broadcasting organisation concerned, only in the Member State in which the programme-carrying signals are inserted in the transmission chain leading to the satellite. In other words, therefore, in the CJEU’s view, it is sufficient to obtain authorisation in the country from where the signal is broadcast and not – as the AMK Association erroneously believed – also in the country where the signal arrives.
The Court recalled that “it is apparent from Article 2 of Directive 93/83, read in conjunction with recital 17 thereof, that copyright holders must authorise any communication of the protected works to the public by satellite and that, in order to determine the appropriate remuneration of those right holders for such communication of their works, all aspects of the broadcast must be taken into account, such as its actual audience and its potential audience”, and the relevant 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 or she 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”.
The CJEU added, however, that ”it follows from the wording of Article 1(2)(b) of Directive 93/83 and from the scheme of Article 1(2)(a) to (c) that, where a satellite package provider is required to obtain the authorisation of the holders of the copyright and related rights concerned for the communication to the public by satellite in which it participates, 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 fed into the chain of communication leading to the satellite.”
In this age of rushing globalisation, the ruling seems particularly relevant. This is because it is increasingly often the case that while being in one country we can receive a signal broadcast from the territory of another country. The latest CJEU judgment resolves the problematic issue of copyright that accompanies such cross-border procedures.