March 27, 2017

The claimant, AKM, was a copyright collecting society operating in Austria. The defendant, Zürs.net Betriebs GmbH, operated a cable network in Zürs, Austria, by means of which it transmitted television and radio broadcasts, some of which were broadcast first by the national broadcasting corporation (ORF) and other broadcasters. At the time the reference was made there were approximately 130 subscribers connected to Zürs.net’s cable network.

AKM asked Zürs.net to tell it the number of subscribers it had, and the content it was broadcasting, with a view to collecting the appropriate fee. Zürs.net refused, arguing that according to Austrian copyright law on small operations with a maximum of 500 subscribers, the broadcasts it distributed were not “new” broadcasts and that it was therefore under no obligation to provide the information requested by AKM.

AKM issued proceedings against Zürs.net and the Austrian court asked the CJEU whether Article 3(1) or Article 5 of the Copyright Directive (2001/29/EC) had to be interpreted as precluding national legislation from providing that neither:

• the simultaneous, unaltered transmission of programmes broadcast by the national broadcasting corporation, by means of a cable network in the national territory; nor
• a broadcast by means of a communal antenna installation, where the number of subscribers connected to that antenna does not exceed 500

was subject to the requirement that authorisation be obtained from the author pursuant to the exclusive right of communication to the public.

Following its own case law, the CJEU said that Zürs.net was indeed making a communication within the meaning of Article 3. The question was whether that communication was intended for a “new” public, different from that for which the broadcasts by ORF were intended.

The CJEU found that when granting authorisation to ORF to broadcast their works, rights holders were aware that the broadcasts would be made to all persons within the national territory.

Given that Zürs.net was also broadcasting to subscribers in the national territory, these people had already been taken into account by the rights holders when they consented to the broadcast of their works by ORF. Therefore, the public to which Zürs.net distributed those works could not be regarded as a “new” public.

Accordingly, Zürs.net’s activities did not amount to communication to the public under Article 3(1).

As for the second part of the question, the CJEU noted that Article 5(3)(o) provides that Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in certain cases of minor importance where exceptions or limitations already exist under national legislation, provided that they relate to analogue use only and do not affect the free circulation of goods and services within the EU.

The CJEU held that, in view of the Directive’s objective of providing a high level of copyright protection to authors, national legislation that permits a multiplicity of operators to distribute, without consent, protected works in parallel by means of communal antenna installations with a limited capacity for connected subscribers, could not be regarded, in particular due to its cumulative effect (i.e. such law would attract many different operators), as being “a use in certain … cases of minor importance” within the meaning of Article 5(3)(o).

Therefore, the CJEU held, Member States were precluded from providing that a broadcast of a copyright work by means of a communal antenna installation, where the number of subscribers connected to that antenna does not exceed 500, does not require consent from the author of the work. (Case C-138/16 Staatlich genehmigte Gesellschaft der Autoren,Komponisten und Musikverlegerregistrierte Genossenschaft mbH (AKM) v Zürs.net Betriebs GmbH (16 March 2017) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).