Does the retransmission of a broadcast infringe copyright? It might depend on how the broadcast is retransmitted

In a reference from the Austrian court, on 16 March 2017 the CJEU handed down a judgment (AKM v Zürs.net), which appears to open the door to the possibility that retransmitting broadcasts by cable may not infringe copyright.

The case concerned the compatibility of Austrian law exceptions on transmissions of broadcasts by cable with the Copyright Directive. Zürs.net, is a cable network operator which transmits television and radio broadcasts, some of which are broadcast initially by the national broadcasting corporation (ORF). AKM, a copyright collecting society, claimed Zürs.net should be paying licence fees to its members. Zürs.net relied on an exception under Austrian copyright law concerning small installations to say that its broadcasts were not new broadcasts and so were not subject to a fee. AKM argued that the provision in question was incompatible with EU law.

Despite this being a reference on a specific aspect of Austrian law, the decision might have more general implications. The CJEU, in answering the questions referred to it, considered whether the broadcasts made by Zürs.net were “communications to the public” within the meaning of Article 3(1) of the Copyright Directive. The CJEU acknowledged the fact that, the transmission in question is through cables and so is by a different technical means from that used for the initial broadcast transmission, and that this permits the finding that the broadcasts are indeed a communication to the public. However, the CJEU went on to consider whether that communication is intended for a “new public”, different from that which the broadcasts by ORF were intended for.

Addressing this question, the CJEU noted that when AKM grants a broadcasting authorisation to ORF, the rights-holders concerned are aware that the broadcasts made by that national corporation may be received by all persons within Austria, and that the distribution is carried out within Austria by cable. On that basis, the CJEU found that the public to which Zürs.net broadcasts has been taken into account by the rightholders and cannot be regarded as a new public.

TVCatchup decision

This decision does not sit comfortably with the CJEU’s decision in 2013 in ITV v TVCatchup. This was the first of two referrals to the CJEU in this case, where the CJEU was asked to determine whether a retransmission of a broadcast by someone other than the original broadcaster by means of an internet stream, where the subscriber to that internet stream was within the area of reception of the terrestrial television broadcast and may lawfully receive the broadcast on a television receiver, is a communication to the public.

The CJEU held that such a retransmission would fall within the meaning of communication to the public in Article 3(1) of the Copyright Directive. It explained that the retransmission in question requires a separate authorisation by the authors concerned to that of the original broadcast, since it was using a different technical means.

What does this mean?

In the Zürs.net decision, whilst the CJEU acknowledged that the transmission in question was by cable and so was by a different technical means, the Court concluded that this would not be a communication to the public if this was “merely a technical means of communication and was taken into account by the author of the work when [they] authorised the original communication”. This appears to suggest that the distinction between this decision and TVCatchup is that the subsequent communication by cable was a commercially accepted technical means through which the original broadcast was communicated within Austria, with the implied or expressed approval of the broadcasters, and it had therefore been taken into account by the rightholders. In contrast, TVCatchup’s internet streaming service was characterised as a form of communication that was not taken into account by rightholders and was therefore treated as being a communication to a new public. If this is the distinction, then it raises questions as to what factors should be taken into account when deciding whether a particular form of communication should be treated as having been taken into account by rightsholders.

For cable TV operators: It also raises the question as to whether cable retransmission services will need to be licensed if such services do not involve a communication to a new public. This could mean the UK government’s expected repeal of s73 of the CDPA (which provides that the public service broadcasters core channels could be retransmitted by cable without infringing copyright (see our previous article here, on the CJEU recent decision in TVCatchup 2 which confirmed s73 was not compatible with the Copyright Directive)) might not necessarily have the impact that was expected.

For internet TV operators: The TVCatchup decision still strongly suggests that retransmission of broadcasts over the internet will be considered to infringe the communication right, although the AKM decision potentially leaves open a line of argument that certain internet retransmissions were taken into account by the author of the work when they authorised the original communication.

For content providers: This decision may leave a potential loophole through which cable and potentially internet operators may be able to avoid paying licence fees. Content Providers should consider what other commercial leverage they have to ensure payment of such fees.