Cable Retransmission Inside Reception Expanse Copyright Free?!

A few days agone the Court of Justice of the European Union (CJEU) issued even together with so to a greater extent than or less other judgment on the correct of communication to earth inside Article 3(1) of the InfoSoc Directive: it is Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger registrierte Genossenschaft mbH (AKM) v Zürs.net Betriebs GmbH, C-138/16.

In a reference for a preliminary ruling from the Commercial Court of Vienna, the CJEU was asked to determine whether the transmission of broadcasts past times “communal antenna installations” is dependent acre to the ascendency of the relevant rightholder inwards that it falls inside the range of Article 3(1) of the InfoSoc Directive. 

is delighted an analysis of the conclusion by Professor Dirk Visser (Leiden University), which has besides been pubished on the Leiden Law Blog.

Here's what Professor Visser writes:

"Is cable retransmission inside the reception expanse of the master copy broadcast copyright free? 

In a ruling on xvi March 2017 the CJEU seems to respond this enquiry inwards the affirmative. If this is indeed the case, it constitutes a novel ‘game changer’. It implies that in that place would no longer live on a demand to pay for the cable retransmission of national telly programmes from for instance the Dutch national world broadcaster NPO together with the commercial broadcasters RTL together with SBS.

According to the CJEU, in that place is no copyright-relevant ‘communication to the public’ inwards the instance of "simultaneous, total together with unaltered transmission of programmes broadcast past times the national broadcasting corporation, past times way of cables on national territory […] provided that it is simply a technical way of communication together with was taken into trace of piece of occupation concern human relationship past times the writer of the operate when the latter authorised the master copy communication". In this case, according to the Court, in that place is no ‘new public’, together with so no copyright-relevant communication which requires split upward permission from the rightholders.

Prof Visser

In the early on 1980s, the Dutch Supreme Court (Hoge Raad) ruled that inwards the instance of cable retransmission inside the reception area, in that place is a ‘communication to the public’. The Dutch Supreme Court decided that a ‘new public’ was non required; the exclusively thing that mattered was if in that place was to a greater extent than or less other ‘organization’ involved, for instance the operator of a cardinal antenna installation. Later, the copyright condition of cable retransmission was codified inwards a separate European Union Directive.

In recent years the CJEU has introduced the ‘new public’ touchstone again, but reframed the touchstone together with explained that inwards almost cases in that place is a ‘new public’. In cases of cable retransmission or broadcasts inwards hotels, cafes, spas together with rehabilitation centres, in that place is e'er a ‘new public’ that was ’not taken into trace of piece of occupation concern human relationship past times the writer of the operate when the latter authorised the master copy communication’.

Internet retransmission of a TV betoken inside the reception expanse of the master copy broadcast was, according to the Court, relevant to copyright anyway because this was a different transmission technology. Whether or non a novel world is reached would live on irrelevant here.

But similar a shot all of a precipitous the CJEU has institute that people inwards Republic of Austria who exactly spotter earth service channel via cable, conduct maintain already been taken into trace of piece of occupation concern human relationship inwards the satellite together with terrestrial broadcast, together with so no permission or payment is required for this type of transmission. This is an understandable declaration inwards itself, but it is sure opposite to what has been assumed inwards the legislation together with instance constabulary over the past times 20 to xxx years. The ‘other technique’ of cable retransmission is champaign irrelevant.

The CJEU decided inwards this instance without the sentiment of the Advocate-General inwards a pocket-size chamber, together with so perhaps it is a slip. If not, this could live on a existent game changer inwards the expanse of audio-visual copyright."