The Austrian copyright collective rights management organisation Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger Reg Gen mbH (AKM) is licensed to exploit musical works, which entitles it to exercise broadcasting rights in Austria on a fiduciary basis.

Canal+ Luxembourg Sàrl provides packages of programmes by satellite in Austria from various broadcasters in other EU Member States in both high and standard definition.

The introduction of each programme-carrying satellite signal into the chain of communication (i.e. uplinking) is mostly carried out by the broadcasters in the other EU Member States, although sometimes it is carried out by Canal+ in the relevant Member State. A stream is broadcast containing the entire programme in high definition together with additional information, such as audio data and subtitle data. After being “re-sent” by the satellite, the stream is received by satellite-receiving equipment within the coverage area. That stream is then split up and the user accesses each programme on a terminal by means of a decoder. The satellite packages supplied by Canal+ contain pay-TV and free-to-air programmes. Unlike the pay-TV programmes, the free-to-air programmes are not encrypted and can be received in standard definition by everyone in Austria.

AKM issued infringement proceedings against Canal+ in the Austrian courts, seeking damages and an injunction preventing Canal+ from broadcasting satellite signals in Austria. AKM said that, in relation to the Member States in which the act of broadcasting or of communication to the public by satellite takes place, Canal+ had no authorisation to exploit its rights in this way and no authorisation for such broadcasts in Austria. AKM said that the act of broadcasting was to an additional category of Canal+ customers, i.e. a “new public”, which was not covered by Canal+’s authorisations from the broadcasters in the various receiving EU Member States for the purpose of “communication to the public” of the works by satellite and that Canal+ should also have obtained authorisation from AKM for broadcasting satellite signals in Austria.

The Austrian Commercial Court rejected AKM’s case on the broadcasting of satellite signals in Austria, but found that the satellite packages provided by Canal+ did indeed reach a “new public”, i.e. a different public from that which received the broadcasters’ free-to-air transmissions. This decision was upheld on appeal. Both AKM and Canal+ appealed to the Austrian Supreme Court, which asked the CJEU whether Article 1(2)(b) of the Cable and Satellite Directive must be interpreted as meaning that a satellite package provider is required to obtain, in the Member State in which the protected works communicated are accessible to the public (the receiving Member State), authorisation from the rights holders in that Member State for an act of communication to the public by satellite.

Under Article 1(2)(b), communication to the public by satellite occurs solely in the Member State where, under the control and responsibility of the broadcaster, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth.

The CJEU noted that, for Article 1(2)(b) to apply, there must be a “communication to the public by satellite”, as set out in Articles 1(2)(a) and (c), which contain certain cumulative conditions. Therefore, a transmission constitutes a single “communication to the public by satellite” if: (i) it is triggered by an “act of introducing” programme-carrying signals “under the control and responsibility of the broadcasting organisation”; (ii) those signals are introduced “into an uninterrupted chain of communication leading to the satellite and down towards the earth”; (iii) those signals are “intended for reception by the public”; and (iv) where those signals are encrypted, the decoding device is “provided to the public by the broadcasting organisation or with its consent”.

Further, the CJEU said, both the direct and indirect transmission of television programmes that fulfil all the cumulative conditions constitute a single “communication to the public by satellite” and are therefore indivisible. However, the indivisibility of such a communication does not mean that the satellite package provider can intervene in that communication without authorisation from the rights holders.

Such authorisation must be obtained, the CJEU said, by the person who triggers the communication or who intervenes when it is carried out, thereby making the protected works accessible to a “new public”, i.e. a public which was not taken into account by the authors of the protected works at the time authorisation to broadcast was given. Here, the communication to the public by satellite was triggered by the broadcasting organisation under whose control and responsibility the programme-carrying signals were introduced into the chain of communication leading to the satellite. It was accepted that that broadcasting organisation thereby renders the protected works accessible to a new public. Consequently, it is that organisation that is required to obtain the authorisation.

The CJEU said that, although it could not be ruled out that other operators might intervene in the communication to the public by satellite with the result that they render the protected works accessible to a public wider than that targeted by the broadcasting organisation in question, in which case the intervention would not be covered by the authorisation granted to the broadcasting organisation in the transmitting Member State, Recitals 5, 14 and 15 of the Directive make it clear that Article 1(2)(b) seeks to ensure that any “communication to the public by satellite” is subject exclusively to copyright legislation in force in the transmitting Member State. It would therefore be contradictory if a satellite package provider were also required to obtain authorisation from the rights holders in the receiving Member States.

Accordingly, the CJEU ruled that, where a satellite package provider is required to obtain authorisation from the rights holders to carry out an “act of communication to the public by satellite”, such authorisation need only be obtained in the Member State in which the programme-carrying signals are introduced into the chain of communication leading to the satellite. (Case C-290/21 Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger Reg Gen mbH (AKM) v Canal+ Luxembourg Sàrl EU:C:2023:424 (25 May 2023) — to read the judgment in full, click here).