Directive 93/83/EEC and cable broadcasting
By judgment of 8 September 2022 (ref. C-716/20), the CJEU ruled that Article 1(3) 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, read in conjunction with Article 8(1) of that Directive, does not confer any exclusive right on broadcasting organisations to authorise them to or prohibit from performing “cable retransmission” within the meaning of that provision, nor does such cable retransmission constitute the simultaneous, unaltered and complete transmission of television or radio programmes broadcast by satellite and intended for reception by the public, where that transmission is made by an entity other than a cable operator within the meaning of the directive, such as a hotel.
Proceedings of the national court:
RTL, a Germany-based company, is engaged in offering a range of programmes, including films and news programmes, on its television channel under the same name. Grupo Pestana, a company established in Portugal, holds a majority stake in a company whose activities include the hotel industry.
RTL demanded that Grupo Pestana pay a fee for providing TV channels in hotel rooms. In response, the Portuguese company stated that Portuguese law did not impose an obligation to pay such fees on hotels.
The national courts concluded that the provision of the RTL channel in hotel rooms constituted public provision. However, the distribution of these channels via coaxial cable could not be considered a ‘retransmission of broadcasts’. The courts held that neither Grupo Pestana nor the hotels were broadcasting organisations.
Consequently, the referring court referred the following questions to the CJEU for a preliminary ruling:
- Is the term ‘cable retransmission’ in Article 1(3) of Directive [93/83/] to be interpreted as meaning that, apart from the simultaneous transmission by a broadcasting organisation of the programme of another broadcasting organisation, it includes the simultaneous and complete transmission by cable of the original broadcast of television programmes or radio programmes intended for reception by the public (whether or not that transmission is carried out by the broadcasting organisation)?
- Does the simultaneous transmission by coaxial cable of the programmes of a television channel broadcast by satellite through various television receivers installed in hotel rooms constitute retransmission of those programmes within the meaning of Article 1(3) of Directive [93/83]?
According to the CJEU, hotels do not fall within the concept of cable distributor within the meaning of Directive 93/83/EEC. Furthermore, the Court pointed out that the exclusive right to authorise public access to broadcasting organisations’ transmissions may be applied when the transmission occurs in places to which access is obtained against payment. This means that broadcasting organisations have the right to control whether their content is made available to the public in places where people pay for access. This is not the case in a hotel, as the price of the room does not depend on whether or not there will be transmission.
The CJEU ruling provides important guidance to hotel operators regarding the need to pay for the transmission of channels in hotel rooms. The hospitality industry should consider whether it should make room rates linked to TV access.
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