OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 22 September 2022 (1)
Case C‑290/21
Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger Reg. Gen. mbH (AKM)
v
Canal+ Luxembourg Sàrl
interveners:
Tele 5 TM-TV GmbH,
Österreichische Rundfunksender GmbH & Co KG,
Seven.One Entertainment Group GmbH,
ProSiebenSat.1 PULS 4 GmbH
(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))
(Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Satellite broadcasting and cable retransmission – Directive 93/83/EEC – Article 1(2) – Satellite package provider – Broadcasting of programmes in another Member State – Place of the act of exploitation – Provision, in return for payment, of pay programmes and free-to-air programmes in high definition – Availability of those programmes in standard definition in the receiving State also by satellite)
Introduction
1. ‘If I had to do it again, I would begin with culture’, Jean Monnet is supposed to have said about the process of European integration. However, culture, in any event from its economic aspect, is to a large extent regulated by copyright. And one element stands in the way of progress towards integration in that field and helps to entrench the fragmentation of the internal market according to national borders: the immutable principle of territoriality (in the sense of national territory) of copyright, and also the practices of the market players, including those of the collective management organisations which have been set up on the basis of that principle. Paradoxically, the more that technology, in particular satellite broadcasting – at issue in the present case – and, more recently, the internet permit inter-State cultural exchanges, the more the obstacle of the principle of territoriality of copyright makes itself felt.
2. It is true, quite clearly, that there is also an objective reason for that market fragmentation, namely linguistic diversity, which is a fundamental aspect of culture. The present case shows, however, that even in situations where the language barrier does not exist, the interested parties defend unguibus et rostro the principle of territoriality defined according to national borders, which are nonetheless eliminated in the internal market. The Court will have the opportunity in the present case to help to promote the integration of Europe through culture, in accordance with the will of the European Union legislature, expressed almost 30 years ago.
Legal framework
European Union law
3. Article 1(2)(a) to (c) 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 (2) provides:
‘2. (a) For the purpose of this Directive, “communication to the public by satellite” means the act of introducing, under the control and responsibility of the broadcasting organisation, the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth.
(b) The act of communication to the public by satellite occurs solely in the Member State where, under the control and responsibility of the broadcasting organisation, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth.
(c) If the programme-carrying signals are encrypted, then there is communication to the public by satellite on condition that the means for decrypting the broadcast are provided to the public by the broadcasting organisation or with its consent.’
4. Article 2 of that directive provides:
‘Member States shall provide an exclusive right for the author to authorise the communication to the public by satellite of copyright works, subject to the provisions set out in this chapter.’
5. Article 4 of that directive extends to the communication to the public by satellite the protection afforded to performers, phonogram producers and broadcasting organisations by Directive 92/100/EEC. (3)
6. Article 1(2)(c) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (4) is worded as follows:
‘Except in the cases referred to in Article 11, [(5)] this Directive shall leave intact and shall in no way affect existing [EU] provisions relating to:
…
(c) copyright and related rights applicable to broadcasting of programmes by satellite and cable retransmission’.
7. Pursuant to Article 3(1) of that directive:
‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, …’
Austrian law
8. Paragraph 17b(1) of the Urheberrechtsgesetz (Law on Copyright) of 9 April 1936, in the version of 27 December 2018, (6) applicable in the present case, states:
‘In satellite broadcasting, the act of exploitation reserved for the author consists in the introduction, under the control and responsibility of a broadcasting body, of the programme-carrying signals into an uninterrupted chain of communication leading to the satellite and down towards the earth. Subject to subparagraph 2, satellite broadcasting therefore occurs only in the State in which the signal is introduced.’
Facts, procedure and questions referred for a preliminary ruling
9. The Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger Reg. Gen. mbH (Non-profit society of authors, composers and music publishers, Austria) (‘AKM’) is an Austrian society responsible for the collective management of copyright and related rights in musical works.
10. Canal+ Luxembourg Sàrl (‘Canal+’) is a company governed by Luxembourg law which offers in Austria, in return for payment, packages of programmes of numerous broadcasting companies (‘satellite packages’).
11. The introduction of each of the programme-carrying satellite signals into the chain of communication (uplinking) is carried out for the most part by the broadcasting organisations themselves, sometimes by Canal+; never in Austria, however, but in other Member States of the European Union. A stream is broadcast containing the entire programme in high-definition quality together with all additional information, such as audio data, subtitle data, and so forth. After being ‘re-sent’ by the satellite, the bundle is received by satellite-receiving equipment within the broadcasting area. The bundle is then split up and the user may access each of the programmes on a terminal. The programmes are encrypted and must be decrypted by the receiving equipment in order to be used. Canal+ makes access keys available to its customers with the consent of the broadcasting organisations. The ‘packages’ are created by combining the access keys for different programmes.
12. The packages contain pay-TV and free-to-air programmes. The latter programmes are not encrypted and may always be received in standard quality by everyone in Austria.
13. AKM has brought an application seeking, in essence, an injunction against the broadcasting of satellite signals in Austria and payment of damages, claiming that it had not authorised that broadcasting. AKM takes the view that, notwithstanding any authorisation which the broadcasting organisations may have received to communicate the works to the public by satellite, Canal+ should also have such authorisation, which it has not been able to prove. AKM thus takes the view that Canal+ is infringing the rights which AKM manages.
14. Four companies, including Seven.One Entertainment Group GmbH, a broadcasting organisation established in Germany, and ProSiebenSat.1 PULS 4 GmbH, a broadcasting organisation established in Austria (collectively, ‘the interveners’), were granted leave to intervene in the main proceedings in support of Canal+.
15. By decision of 30 June 2020, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), on appeal, upheld the action in part. That court considered, in particular, that the satellite packages provided by Canal+ reached a new public, that is to say, a different public from that for the broadcasters’ free-to-air transmissions. Both AKM and Canal+, the latter supported by the interveners, appealed on points of law against that decision before the referring court.
16. In those circumstances, the Oberster Gerichtshof (Supreme Court, Austria) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is Article 1(2)(b) of [Directive 93/83] to be interpreted as meaning that not only the broadcasting organisation, but also a satellite package provider intervening in the indivisible and single act of broadcasting, carries out an act of exploitation – which in any case requires consent – simply in the State where, under the control and responsibility of the broadcasting organisation, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth, with the result that the intervention of the satellite package provider in the act of broadcasting is not liable to infringe copyright in the receiving State?
(2) If Question 1 is answered in the negative: is the concept of “communication to the public” set out in Article 1(2)(a) and (c) of [Directive 93/83] and in Article 3(1) of [Directive 2001/29] to be interpreted as meaning that the satellite package provider, which intervenes as another operator during a communication to the public by satellite, bundles several encrypted high-definition signals of free-to-air and pay-TV programmes and offers the independent audiovisual product created in this way to its customers in return for payment, requires separate authorisation from the rightholder concerned even in respect of the protected content in the free-to-air TV programmes contained in the package of programmes, although in this respect it is merely providing its customers with access to works which are already freely accessible – albeit in poorer standard-definition quality – to everyone in the broadcasting area?’
17. The request for a preliminary ruling was lodged on 5 May 2021. Written observations have been submitted by AKM, Canal+, the interveners, and by the European Commission. Those parties were represented at the hearing on 8 June 2022.
Analysis
18. The referring court asks two questions, the latter depending on the answer to the former. In view of the answer which I propose should be given to the first question, there will be no need to answer the second question, if the Court follows my reasoning. I shall nonetheless examine it briefly, in the interest of completeness.
Question 1
19. By its first question, the referring court asks, in essence, whether Article 1(2)(b) of Directive 93/83 must be interpreted as meaning that a satellite package provider is required to obtain, in the Member State in which the protected objects thus communicated are accessible to the public (the receiving Member State), the authorisation of the copyright and related rights holders for the act of communication to the public by satellite in which it participates.
20. That question touches on the Court’s case-law resulting, in particular, from the judgment of 13 October 2011, Airfield and Canal Digitaal (C‑431/09 and C‑432/09, EU:C:2011:648; ‘judgment in Airfield’) and relates in reality to the interpretation of that judgment.
21. Before I analyse the judgment in Airfield, it is necessary to make a few preliminary remarks.
Communication to the public by satellite, within the meaning of Directive 93/83
22. At its inception, television broadcasting was naturally confined within national borders – it used radio waves, the frequencies of which were at the disposal of the States, which allocated them to operators for broadcasting limited to the national territory. The signal coverage area therefore corresponded essentially to the territory of the broadcasting State, which at the same time constituted the field of territorial applicability of the copyright of that State.
23. The arrival of satellite television disrupted that scene, as it meant that a much wider territory than that of a single State could be covered. The question therefore arose as to which copyright was applicable: only the copyright of the State from which the signal was transmitted to the satellite, or also the right or rights of the States in which that signal could be received? (7)
24. Article 1(2)(b) of Directive 93/83 answers that question from the viewpoint of EU law. Although it appears under the heading ‘Definitions’, that provision establishes one of the main substantive rules of that directive, namely the ‘broadcasting Member State’ principle. Under that principle, the act of communication to the public by satellite, as defined in that directive, is deemed to occur only in the Member State in which the signal was sent to the satellite. It is therefore also the copyright of that State that will apply to such an act.
25. At the same time, Directive 93/83 guarantees equivalent protection of copyright and related rights in all Member States, by harmonising that protection in Articles 2 and 4 and excluding compulsory licences in Article 3(1) thereof. The rights of the rightholders to the use of the works in the receiving Member States will therefore be protected, in an equivalent fashion, by virtue of the copyright of the broadcasting Member State. (8) It is up to them to ensure that the payment agreed upon for the use of those rights takes account of the entire potential public, in accordance with recital 17 of Directive 93/83.
26. The main aim of the establishment of the ‘broadcasting Member State’ principle was to facilitate the cross-border satellite broadcasting of radio and television programmes by ensuring legal certainty and an adequate level of protection of their rights to all the stakeholders involved. (9)
27. However, the ‘broadcasting Member State’ principle applies only to the act of communication to the public by satellite, as defined in Article 1(2)(a) and (b) of Directive 93/83. That definition is composed of a number of elements. First, that act of communication to the public by satellite consists in the introduction of programme-carrying signals into a chain of communication leading to the satellite and down towards the earth. Second, the introduction of the signals must be carried out under the control and responsibility of a broadcasting organisation. Third, the programme-carrying signals must be intended for reception by the public. Fourth, the chain of communication in question must be uninterrupted from the introduction of the signals until the (potential (10)) reception by the public. Fifth, if the signals are encrypted, the means for decrypting those signals must be provided to the public by or with the consent of the broadcasting organisation under whose control and responsibility the act took place. (11)
28. An act which satisfies those conditions is an act of ‘communication to the public by satellite’ within the meaning of Article 1(2)(a) of Directive 93/83 and is covered by the ‘broadcasting Member State’ principle. That principle covers not only the broadcast sensu stricto, that is to say the introduction of the programme-carrying signal into the link leading to the satellite, but also the entire communication, including the conveyance of the signal to the final users. Only the law of the broadcasting Member State therefore applies to the entire communication. Conversely, any act of distance exploitation, including with the assistance of a satellite, of the objects protected by copyright or related rights which does not satisfy the conditions of Article 1(2)(a) and (c) of Directive 93/83 cannot be classified as a ‘communication to the public by satellite’ within the meaning of Article 1(2)(a) and is not covered by the ‘broadcasting Member State’ principle.
The judgment in Airfield and its application to the present case
29. In the judgment in Airfield, the Court was required to examine the activity of a satellite package provider similar to the activity of Canal+ in the present case. It concluded that that activity was a communication to the public by satellite, within the meaning of Article 1(2)(a) to (c) of Directive 93/83. (12)
30. In the present case, it must be stated that the referring court is relatively economical with information about the technical details of the communication at issue in the main proceedings. However, since the questions for a preliminary ruling concern the interpretation of Article 1(2)(b) of Directive 93/83, and also, indirectly, the judgment in Airfield, I shall proceed on the assumption that the conclusion which the Court reached in that judgment concerning the classification of the activity of a satellite package provider can be transposed to the present case.
31. That means that the programme-carrying signals are introduced into a chain of communication leading to the satellite and back to earth, either by the broadcasting organisations themselves or by Canal+, but with their consent. The broadcasting organisations therefore have control of, and assume responsibility for, the introduction of the signals. (13) Those signals are intended for reception by the public. The objective of the activity in question is the transmission of programmes for direct reception by the public. (14) The chain of communication is uninterrupted between the introduction of the signals into the uplink to the satellite and the potential reception by the public. Any interventions in those signals, such as compression or encryption and decryption, fall within the customary technical activities carried out to prepare the signals for transmission by satellite and do not constitute an interruption of the chain of communication. (15) Lastly, it is common ground that the means of decrypting the signals devices are made available to the public by Canal+ with the consent of the respective broadcasting organisations.
32. I fully agree with the Court’s analysis in the judgment in Airfield concerning the classification of the activity of a satellite package provider as communication to the public by satellite. The only point, at this stage, about which I feel doubtful is the finding that, in the first place, the control and responsibility of the broadcasting organisation, referred to in Article 1(2)(a) of Directive 93/83, relate not to the entire act of communication to the public by satellite, but only to the introduction of signals into the chain of communication and that, in the second place, that control and that responsibility may be shared. (16)
33. In the first place, if, according to the abovementioned provision, the programme-carrying signals must, when they are introduced into the chain of communication, be intended for reception by the public (17) and if that chain must be uninterrupted, control of the introduction of those signals necessarily and automatically means control of the entire act of communication to the public. If another person were to take control of the signals following their introduction into the chain of communication, for example in order to delay the transmission or to alter its destination, the chain of communication would be interrupted.
34. The same applies to responsibility. In an uninterrupted chain of communication, the decision to introduce the signals necessarily leads to their accessibility by the public, so that the broadcasting organisation cannot deny responsibility for the communication to the public of the programmes carried by those signals. That also applies where the signals are encrypted, since in order for there to be a communication to the public by satellite, the means for decrypting those signals must be provided to the public with the consent of the broadcasting organisation, which gives that broadcasting organisation control over that aspect of the act of communication. As that consent is given freely, it also entails responsibility.
35. In the second place, under Article 1(2)(a) of Directive 93/83, the control and responsibility of the broadcasting organisation are a condition that must be satisfied in order for the act in question to be considered to be an act of communication to the public by satellite and benefit from the provisions of that directive, in particular the principle that the broadcasting Member State is the place where that act of communication occurs.
36. As regards control, it seems clear to me that it is not sufficient that the broadcasting organisation should have only partial control. Control must be total in order for the condition to be satisfied.
37. Of course, the requirement of control does not mean that the broadcasting organisation itself is required to carry out all the operations which communication to the public by satellite entails. Control takes material form in contractual arrangements with third-party operators, such as a satellite package provider. Those third parties act as agents of the broadcasting organisation, which retains control of the act of communication.
38. Nor is control required to extend to cover all aspects, even the tiniest details, of the communication. The broadcasting organisation must have control of the elements which are significant from the viewpoint of copyright law, in particular the actual fact of communicating, the precise content of the communication and the target public. Technical matters, on the other hand, such as signal compression or the standard in which the signal will be encrypted are irrelevant and may be determined by the operators to which the broadcasting organisation entrusts the technical implementation of the communication.
39. As regards the responsibility of the broadcasting organisation, it, too, cannot be shared. In Article 1(2)(a) to (c) of Directive 93/83, the EU legislature not only defined an act of ‘communication to the public by satellite’ as a single act of exploitation, within the meaning of copyright law, and the place of that act, but also designated its author in the person of the broadcasting organisation which takes the initiative for that communication. (18) That organisation is responsible, in particular, to the copyright and related rights holders for the exploitation of the protected objects. That responsibility of the broadcasting organisation is the counterpart of the ‘broadcasting State’ principle. Directive 93/83 was designed not only to facilitate the transmission of programmes by satellite by removing obstacles linked with the territoriality of copyright, but also to safeguard copyrights and related rights by designating an operator responsible for the entire act of communication to the public by satellite. (19)
40. In an act of communication to the public by satellite, within the meaning of Article 1(2)(a) of Directive 93/83, it is therefore the broadcasting organisation that must have full control and that bears full responsibility for that entire act. (20)
AKM’s allegations concerning the applicability of the provisions on communication to the public by satellite to satellite package providers
41. The finding that the activity of a satellite package provider, such as Canal+, comes within communication to the public by satellite (21) allows me to respond to certain arguments put forward by AKM in the present case.
42. In the first place, AKM maintains that, at the time of the adoption of Directive 93/83, the ‘satellite packages’ economic model did not exist and that the authors of that directive had not envisaged the activity consisting in the provision of such packages. The provisions of that directive, and in particular, the ‘broadcasting Member State’ principle, should therefore not apply.
43. It may well be the case that the authors of Directive 93/83 were not aware of the satellite package model. However, that does not alter the fact that the activity of providers of such packages is indeed covered by the provisions of that directive devoted to communication to the public by satellite. Such a communication does not necessarily have to be carried out by a broadcasting organisation and it is sufficient that that organisation retains control of the communication. The broadcasting organisation may well entrust certain tasks to another operator, such as a satellite package provider. Nor does the provision of such packages make it necessary to interrupt the chain of communication between the introduction of the programme-carrying signals and their potential reception by the public. As regards encryption and decryption, those provisions require only that they be carried out with the consent of the broadcasting organisation in question. There is thus nothing to prevent those provisions from being applied to an activity consisting in the provision of satellite packages.
44. In the second place, AKM maintains that the activity of a satellite package provider should be treated as retransmission, as defined in Article 1(3) of Directive 93/83. The referring court rejects that argument, on the ground that such retransmission assumes an initial transmission, which is not present in this case. I share that view. If the activity of a satellite package provider forms part of the single act of communication to the public by satellite, the question of an initial transmission and a retransmission cannot arise.
45. Admittedly, it is true that a different conclusion might be drawn on the basis of the new Directive (EU) 2019/789 (22) and that, depending on the method used to introduce the signal into the uplink to the satellite and on whether or not the broadcasting organisation concerned offers, independently and free-to-air, the programmes contained in a satellite package, the activity at issue in the present case might be classified as ‘transmission of programmes through direct injection’, within the meaning of Article 8(1) of that directive or indeed as ‘retransmission’ within the meaning of Article 2(2) thereof. That would then imply a tacit amendment of Article 1(2)(a) of Directive 93/83, alongside the express amendment of Article 1(3) of that directive, provided for in Article 9 of Directive 2019/789.
46. However, as the Commission has explained in its observations, Directive 2019/789 is not applicable ratione temporis to the dispute in the main proceedings. In addition, that directive was not mentioned in the request for a preliminary ruling, nor was it discussed between the parties. That directive should not therefore be taken into consideration for the purposes of the answer to be given to the questions referred for a preliminary ruling in the present case.
The question of the responsibility of a satellite package provider for the communication to a new public
47. Although the Court, in its judgment in Airfield, found that the broadcast of television programmes by satellite and their distribution by a satellite package provider constituted a single and indivisible communication to the public by satellite, (23) it then continued its analysis with regard to such a provider’s responsibility under copyright. Thus, it developed the idea that, although the satellite package provider is involved in a single and indivisible act of communication to the public by satellite, it is required to obtain, independently of the broadcasting organisation, authorisation from the copyright and related rights holders in respect of the new public to which it has given access to the protected material thus communicated. (24)
48. This analysis by the Court strikes me as problematic, since, in my view, it cannot be reconciled with the single and indivisible nature of the communication to the public by satellite established in the judgment in Airfield, that single and indivisible nature being, in turn, a condition of an act being classified as ‘communication to the public by satellite’, within the meaning of Directive 93/83. I shall develop that idea in the remainder of this Opinion.
– The concept of ‘new public’
49. The Court introduced the concept of ‘new public’ into its case-law in its judgment of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764), where it is defined as ‘a public different from the public at which the original act of communication of the work is directed’. (25) The Court took inspiration from the Guide to the Berne Convention, (26) which it interpreted as follows:
‘… when the author authorises the broadcast of his work, he considers only direct users, that is, the owners of reception equipment who, either personally or within their own private or family circles, receive the programme. According to the Guide, if reception is for a larger audience, possibly for profit, a new section of the receiving public hears or sees the work and the communication of the programme via a loudspeaker or analogous instrument no longer constitutes simple reception of the programme itself but is an independent act through which the broadcast work is communicated to a new public. As the Guide makes clear, such public reception falls within the scope of the author’s exclusive authorisation right’. (27)
50. The concept of ‘new public’ was then defined in the Court’s case-law as referring to ‘a public which was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public’. (28) It is used in that sense to this day. (29)
51. Two significant elements emerge from that definition, read in the light of the passage from the Berne Convention that served as the Court’s inspiration when it developed that concept in EU copyright law. First of all, the use of that concept makes sense only where there are two successive communications to the public: (30) the primary communication, also called the ‘initial communication’, for which the copyright holders gave their authorisation, and the secondary communication, which has its origin in the initial communication and is directed at that new public in question. Next, although that secondary communication is dependent on the initial communication, it constitutes a distinct act of exploitation and for that reason requires a distinct authorisation.
52. The existence of a new public is therefore merely a criterion that makes it possible to establish the existence of a communication to the public that is distinct from the initial communication.
– The public at which a communication to the public by satellite is directed
53. In a direct broadcast by satellite (that is to say, a communication to the public by satellite within the meaning of Directive 93/83), the public is one and indivisible, just like the act whereby the public receives the communication of the protected objects. In a free-to-air broadcast, that public consists of the persons who are in the reception area (the footprint) of the satellite. Where the broadcast is encrypted, the public consists of the persons to whom the means of decryption have been made available by the broadcasting organisation or with its consent.
54. To assert that there are two distinct publics for a single act of communication would amount to a contradiction in terms, since the public is defined specifically by reference to a communication. The public at which that communication is directed is the public for that communication, and any additional public (new public) necessarily implies a new act of communication.
55. It is therefore contradictory to establish, on the one hand, the single and indivisible nature of a communication to the public by satellite and to assert, on the other hand, that there is an additional public for that communication which would not be taken into account by the copyright holders. In a situation like that at issue in the case that gave rise to the judgment in Airfield, and like the situation with which we are concerned in the present case, that is to say, where there is an encrypted broadcast by satellite in which a satellite package provider intervenes, the public consists of the persons to whom that provider makes the means of decryption available in return for payment of the subscription and with the consent of the broadcasting organisations under whose control the programme-carrying signals forming the packages were introduced into the chain of communication.
56. That public was necessarily taken into account by the broadcasting organisations, which gave their consent to the means of decryption being made available to that public. It may indeed by the case that the broadcasting organisations were not sufficiently transparent with the copyright holders and that the latter envisaged a different public from the one for which the communication was actually intended. In such a case, however, the entire communication to the public by satellite is unlawful, as it was made without the authorisation of the rightholders. It is thus incumbent on the broadcasting organisations to obtain that authorisation (31) in the Member State in which the communication originates. Conversely, that does not entitle the rightholders to object, in the receiving Member State, to the activity of the satellite package provider.
57. That conclusion is not altered by the different services supplied by that provider and listed by the Court in the judgment in Airfield.
58. First, as regards the encryption of the signal and the making available to the public of the means of decryption, (32) such a service, where it is provided with the consent of the broadcasting organisation, falls, in accordance with Article 1(2)(c) of Directive 93/83, within the single and indivisible act of communication to the public by satellite. Therefore, although, by allowing the members of the public to decrypt the programmes, the satellite package provider gives those members of the public access to the protected objects, that access is given to the members of the public for the communication to the public by satellite, that is to say, the members of the public that was taken into account by the broadcasting organisations which are at the origin of that communication.
59. Second, as regards the fact that the satellite package provider receives the subscription fee, the Court itself observes that that fee represents the price of access to the communication to the public by satellite (33) and, therefore, that the public in question is the public for that communication.
60. Third, and lastly, as regards the fact that the satellite package provider bundles a number of communications by broadcasting organisations in a new audiovisual product, (34) the following observations are called for. Copyright reasons not in terms of audiovisual products, or of satellite packages, or even of broadcast programmes, but in terms of protected objects, that is to say, works and objects covered by related rights, since it is by reference to those objects that the rightholders exercise their exclusive rights. Consequently, although the inclusion of a programme containing a protected object in a satellite package of a given provider may admittedly influence the price of the authorisation of the communication to the public of that object – as that price may be determined according to the revenue expected from the exploitation of the object in question – it does not in any way constitute an act coming within the exclusive rights guaranteed by copyright. Thus, the bundling of different programmes from different broadcasting organisations in a satellite package is immaterial from the viewpoint of the existence of an act requiring the authorisation of the copyright holders.
61. Thus, by those acts, contrary to the Court’s assertion in the judgment in Airfield, (35) the satellite package provider does not expand the circle of persons having access to the programmes forming those packages by comparison with the persons at whom the communication to the public by satellite carried out under the control and responsibility of the broadcasting organisations from which the programmes emanate was directed. Its activity therefore does not require authorisation from the copyright and related rights holders in respect of any new public.
62. The position would be otherwise only if it were considered that the satellite package provider carries out its own act of communication to its own public. (36) Such an act would therefore not be a communication to the public by satellite within the meaning of Directive 93/83, which is necessarily carried out under the control and responsibility of a broadcasting organisation, but a communication to the public within the meaning of Article 3(1) of Directive 2001/29. In that case, the ‘broadcasting Member State’ principle established in Article 1(2)(b) of Directive 93/83 would therefore not apply; the act would be deemed to have occurred in the receiving Member State, in accordance with the principle of territoriality of copyright law.
63. However, such a solution would be inconsistent with the findings of the Court in paragraphs 51 to 69 of the judgment in Airfield, concerning the single and indivisible nature of a communication to the public by satellite in which a satellite package provider intervenes. It would also, in my view, be contrary to the letter of Directive 93/83, which requires that a communication which meets the conditions set out in Article 1(2)(a) and (c) of that directive be classified as an act of ‘communication to the public by satellite’ and thus as a single act occurring in the Member State in which the programme-carrying signal is introduced into the chain of communication.
– The relationship between free-to-air broadcasting and encrypted broadcasting
64. Perhaps the confusion arises because some television programmes are broadcast (by satellite) simultaneously and on the same territory both free-to-air and – frequently in higher quality – in encrypted form, reception of which requires an additional payment. It may therefore appear that the encrypted broadcast is a retransmission of the free-to-air broadcast and that it is therefore directed at a new public by comparison with the public at which that second broadcast is directed. That is what the appeal court in the main proceedings seems to have considered.
65. In my view, that is not the case, however. Free-to-air broadcasting is not received in order to be then retransmitted in encrypted form, and the latter (that is to say encrypted broadcasting) may well exist without the former. There are two distinct and independent broadcasts, both of which must be described as primary, and intended for different publics. That is a fortiori the case because encrypted broadcasting is normally carried out in higher quality, notably in high definition, than free-to-air broadcasting. In the case of free-to-air broadcasting, the public consists of all persons in the coverage area, while, in the case of encrypted broadcasting, it is composed of persons who have the means of decryption. There is thus no question of a new public for one of those broadcasts by comparison with the public for the other broadcast. When those broadcasts are carried out in the conditions set out in Article 1(2)(a) and (c) of Directive 93/83, there are two distinct acts of communication to the public by satellite, both of which are attributable to the broadcasting organisation under whose control and responsibility the programme-carrying signal was introduced into the chain of communication.
66. The fact that the signal carrying those two broadcasts may be compressed and multiplexed into a single bundle for the purpose of being sent to the satellite (37) does not alter that conclusion. From the legal viewpoint, the only thing that matters is the communication of a protected object according to a certain technical method, in this instance the satellite, to a specific public. The technical details of the way in which the signal containing that object is sent to the public are irrelevant from that viewpoint.
67. The fact that the satellite package provider includes free-to-air programmes in those packages is merely a commercial communication to its customers, intended to give the impression that a greater number of programmes are available in the package. As regards the free-to-air programmes, however, the satellite package provider acts at most as a provider of technical means enabling them to be received, that is to say, a receiver and possibly a satellite antenna. Conversely, its other services are by no means necessary in order for those programmes to be received. (38)
Conclusion and answer to the first question
68. In accordance with the foregoing, a satellite package provider could be responsible vis-à-vis copyright and related rights holders in respect of the communication to a new public only where its activity would be regarded as an act of communication to the public distinct from the communication to the public by satellite attributable to the broadcasting organisation under whose control and responsibility the programme-carrying signal was introduced into the chain of communication. In that case, the communication to the public by a satellite package provider would take place in the receiving Member State. In my view, which is confirmed in the first part of the judgment in Airfield, that is not the case, in so far as the satellite package provider participates in a single and indivisible act of communication to the public by satellite. No new public is therefore envisaged.
69. I shall not analyse in greater detail the question whether the satellite package provider might possibly be held responsible on grounds other than the communication to a new public, jointly with the broadcasting organisation at the origin of the communication. While I do not share that idea, it nonetheless has no impact on the answer to the first question. In fact, that question relates not to whether the satellite package provider is responsible vis-à-vis the copyright and related rights holders, but whether it is responsible in the receiving Member State. However, communication to the public by satellite is deemed, under Article 1(2)(b) of Directive 93/83, to have taken place solely in the broadcasting Member State. It is therefore in that Member State that the copyright holders may possibly exercise their rights vis-à-vis the satellite package provider.
70. I therefore propose that the answer to the first question should be that Article 1(2)(b) of Directive 93/83 must be interpreted as meaning that a satellite package provider is not required to obtain, in the Member State in which the protected objects thus communicated are accessible to the public, the authorisation of the copyright and related rights holders in respect of the act of communication to the public by satellite in which that provider participates.
Question 2
71. By its second question, read in the light of the explanations set out in the order for reference, the referring court asks, in essence, whether the ‘new public’ doctrine must be interpreted as meaning that, where broadcast programmes are freely accessible in the satellite’s coverage area in standard definition, the fact that a satellite package provider includes the same programmes in high definition in a package aimed at the public in the same area does not constitute a communication to a new public.
72. That question has been submitted only in case it follows from the Court’s answer to the first question that the satellite package provider communicated protected objects to a new public in the receiving Member State. If the Court were to follow my proposed answer to the first question, there would be no need to answer the second question. It is therefore solely in the interest of completeness that I shall make the following comments in respect of the second question.
73. First, as I have already explained, the concept of ‘new public’ makes sense only where there are two communications to the public linked in such a way that one of them is the primary (initial) communication and the other the secondary communication, dependent on the first. Yet it is hard to imagine that the transmission of a television programme in high definition might constitute the retransmission of a broadcast in standard definition. The author of such a transmission would have to have access to the programme in high definition from a source other than the transmission in standard definition. There would thus not be a secondary communication and the concept of ‘new public’ would not apply. (39)
74. Second, the image quality may be an important factor of the attractiveness of the work to the public, in particular in the case of audiovisual works, and, consequently, may influence the price that the copyright holders will be able to obtain in exchange for their authorisation to exploit the work. Thus, those copyright holders are entitled to limit their authorisation to a particular quality of broadcast, such as standard-definition broadcasting. The mere fact that the work is accessible, for the same public, in a lower quality image therefore does not automatically release the exploiter of the work from the obligation to obtain authorisation from the copyright holders in order to broadcast it in a higher quality.
75. The argument raised in that respect by Canal+, namely that, in the present case, AKM represents owners of musical works and the audio bandwidth of its television signal is the same in high-definition broadcasting definition and in standard-definition broadcasting, does not, in my view, alter that conclusion. In television programmes, the musical works are normally incorporated in audiovisual works and exploited together with those works, so that their attractiveness may also depend on the overall quality of the televisual image.
76. Having said that, and, being of the view that the ‘new public’ doctrine is not applicable in the present case, I shall refrain from proposing an answer to the second question.
Conclusion
77. In the light of all of the foregoing considerations, I propose that the Court should answer the questions for a preliminary ruling referred by the Oberster Gerichtshof (Supreme Court, Austria) as follows:
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 a satellite package provider is not required to obtain, in the Member State in which the protected objects thus communicated are accessible to the public, the authorisation of the copyright and related rights holders in respect of the act of communication to the public by satellite in which that provider participates.