On 4 February 2013, the Antwerp Court of Appeal partially upheld the judgment of the Court of First Instance of Mechelen holding that simulcasting does not amount to new cable distribution within the meaning of the Law on copyright and related rights of 30 June 1994 (the "Copyright Law"). In contrast, the Court of Appeal requested further information from the parties to determine whether Telenet needs a specific authorisation from collecting societies representing the copyright-owners for two further activities.
In the case before the Court of Appeal, cable television distributor Telenet had sought to obtain a declaratory judgment that it does not require authorisation from collecting societies for the following three activities: (i) simulcasting, i.e. the simultaneous, unaltered and unabridged retransmission by cable of digital and analog signal; (ii) direct "injected" signal into the cable; and (iii) transmissions that are part of an "all rights included" agreement with the broadcasting service.
The Court of First Instance sided with Telenet confirming that Telenet does not require authorisation, nor does it need to pay a levy in any of these situations. The Court of Appeal agreed that simulcast transmissions do not require a separate authorisation by the copyright owner, but held that for the remaining two points Telenet might need authorisation from the collecting societies.
Simulcasting transmissions
The term simulcasting refers to the situation in which Telenet broadcasts transmissions both digitally and analogically to its subscribers. Subscribers watch digital or analog television depending on their equipment. The Court of Appeal upheld the decision of the court of first instance finding that such simultaneous broadcasting does not constitute two different transmissions for which Telenet would require a separate authorisation.
Articles 51 and 52 of the Copyright Law provide that authorisation is required for transmissions via cable to the public of radio or television programmes of a first transmission that are meant to be received by the public. The Court of Appeal held that a simulcast broadcast constitutes a single signal for each subscriber. The subscriber can view either the digital or analog broadcast, but not both at the same time. When the subscriber switches (from analog to digital – or vice versa), the public is not altered, only the quality of image and sound. As a result, the Court of Appeal held that there are not two separate communications to the public, or two groups of the public. Therefore, no separate authorisation (or additional fee) is required for simulcasting.
Direct injection of the signal
"Direct injection" refers to the situation where the broadcasting company connects to the network of one or more cable companies directly. The programme in question is not first broadcast via ether or satellite and then retransmitted via cable as usually is the case, but is broadcast for the first time via cable. The judge at first instance held that it is the broadcaster that bears the responsibility to obtain authorisation for this first transmission and that the cable company is in that case merely an intermediary which makes the necessary physical facilities available. Therefore, Telenet's involvement cannot be regarded as transmission to the public under Article 52 of the Copyright Law.
The Court of Appeal disagreed because Telenet cannot be regarded as an intermediary as its activities exceed the mere making available of the physical facilities. The Court of Appeal explained that Telenet puts together different packages and provides various options for its subscribers. Direct injection is therefore a transmission within the meaning of Article 52 of the Copyright Law. Consequently, Telenet requires the authorisation of copyright-holders for such a transmission.
All rights included agreements
At first instance, Telenet had maintained that certain transmissions are subject to the so-called "all rights included" agreements with the broadcasting organisations. In these agreements, the broadcaster guarantees Telenet that all levies have been paid. The Court of Appeal referred in this respect to Article 53, §1 of the Copyright Law which provides that copyright can only be exercised by the collecting societies. Article 53, §3 of the same Law provides an exception to this rule: broadcasters can exercise their own copyright in the context of their own transmissions. This exception is stricter than that provided in Article 10, last sentence of Directive 93/83/EEC of 27 September 1993 which provides that broadcasters can also exercise the transmission rights that have been transferred to them by copyright-owners. The latter possibility under the Directive has not been transposed into national law. Therefore Telenet cannot invoke it against the collecting societies.
Hence, the Court of Appeal held that collecting societies retain the right to grant and to enforce copyright authorisations, with the exception of own transmissions of the broadcasting organisations. Since they can enforce copyright, collecting societies can require Telenet to demonstrate that it obtained the required authorisations, even if Telenet has an "all rights included" contract with the broadcaster.
Therefore, in relation to "direct injections" and transmissions that are part of "all rights included" contracts with broadcasters, it is up to the collecting societies to specify for which transmissions they claim copyright. Telenet will then have to show that it has already obtained the required authorisation. The Court of Appeal re-opened the proceedings to allow the parties to demonstrate these elements.
Remarkably, the Court of Appeal did not refer questions to the Court of Justice of the European Union ("ECJ") as was suggested by a number of parties in the proceedings. Moreover, the judgment follows on the heels of guidance given by the ECJ in the "TV Catchup" case. The ECJ clarified, on that occasion, that streaming television broadcasts through the Internet is considered to constitute a new communication to the public, irrespective of the fact that it can only be viewed by TV license holders and therefore does not reach a new public (See, VBB on Competition Law, Volume 2013, No. 3, p. 11, available at www.vbb.com).
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