On 19 November 2015, the Court of Justice of the European Union (the "ECJ") provided guidance to the Court of Appeal of Brussels on the definition of the notion of "communication to the public" for television programmes transmitted by SBS to its distributors (Case 325/14, SBS Belgium v. Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM)).

The case before the Court of Appeal pitted broadcaster SBS Belgium ("SBS") against Belgian copyright management society SABAM. SBS broadcasts its programmes via direct injection to its distributors who make the programmes available to their subscribers.

SABAM considered that SBS makes an act of communication to the public and, as such, is responsible to secure a licence from (and pay the relevant licence fee to) right holders.

SBS did not share this view and instead submitted that only distributors make an act of communication to the public and are, as such, solely responsible for the payment of the fee.

The ECJ held that the concept of 'communication to the public' within the meaning of Article 3(1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (the "InfoSoc Directive") includes two cumulative criteria: (i) an act of communication of a work; and (ii) the communication of that work to a public.

Regarding the first condition, the ECJ considered that the act of 'communicating' a copyright protected work is independent from the technical means used. In the case of SBS, the ECJ held that it is apparent from the request for a preliminary ruling that SBS transmits programme-carrying signals to several signal distributors by satellite, cable or xDSL line, and, therefore, by different technical means or processes.

As regards the second criterion, the ECJ considered that the term 'public' refers to "an indeterminate number of recipients, potential television viewers, and implies, moreover, a fairly large number of persons". By contrast, the signal transmitted by SBS is only destined for a small number of distributors without potential viewers being able to have access to those signals. As such, these works are not communicated to a public within the meaning of Article 3(1) of the InfoSoc Directive.

Accordingly, the ECJ held that, since the two criteria for establishing a 'communication to the public' are cumulative, SBS does not communicate works to the public. However, the ECJ added that the practical outcome may depend on the scope of the intervention of the distributors. If the role of the distributors is purely technical, then the subscribers can still be regarded as constituting the public of the signal transmitted by the broadcaster. In such a situation, it is a broadcaster such as SBS who should be regarded as making the communication to the public. 

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