December 20, 2022
RTL Television is a broadcaster and it operates the German-language TV channel RTL. Grupo Pestana is a Portuguese company operating hotels.
While RTL’s signal is primarily intended for reception in Germany, Austria and Switzerland, its satellite signal can be received in many other European countries, including Portugal. In respect of that overspill signal, RTL concluded a number of licensing agreements with cable operators and hotels in the EU, including in Portugal. From at least 2012, Grupo Pestana hotels had picked up RTL’s broadcasts by satellite and transmitted them to television sets in hotel rooms via coaxial cable, without the authorization of RTL.
RTL issued proceedings against Grupo Pestana in the Portuguese courts, seeking a declaration that the making available to the public of various RTL channels in the rooms of hotels operated by companies owned by Grupo Pestana required prior authorisation from RTL. RTL also sought compensation for the retransmission and/or communication to the public of RTL channel programmes.
The first instance court found that the reception and making available of the RTL channels in hotel rooms constituted an act of communication to the public under Portuguese law. However, it said that distribution of the channel did not constitute a “retransmission of broadcasts”, since neither Grupo Pestana nor the hotels were broadcasters. It therefore rejected RTL’s claims for compensation.
The matter ended up in the Portuguese Supreme Court, which asked the CJEU whether, given that the essential question was whether the cable distribution of RTL broadcasts into hotel rooms constituted a retransmission of those broadcasts that was subject to RTL’s authorisation, Article 1(3) of the Satellite and Cable Directive (93/83/EEC), read in conjunction with Article 8(1), must be interpreted: (i) as requiring Member States to recognise an exclusive right in the law of copyright for broadcasters to authorise or prohibit the cable retransmission of their broadcasts; and (ii) whether the “simultaneous, unaltered and unabridged” (Article 1(3)) distribution of TV or radio programmes broadcast by satellite and intended for reception by the public constituted such retransmission where that transmission is carried out by an establishment such as a hotel.
The CJEU held that Article 8(1) of the Satellite and Cable Directive is not intended to affect the scope of copyright and related rights as defined in other EU legislation, such as the Copyright Directive (2001/29/EC). It merely obliges Member States to ensure that when programmes from other Member States are retransmitted by cable into their territory the applicable copyright and related rights are observed, in that retransmission takes place based on individual or collective contractual agreements between rights holders and cable operators. In other words, there is no cable retransmission right under the Satellite and Cable Directive.
Further, the CJEU said, the concept of “cable retransmission” under Article 1(3) applies only to relations between rights holders and “cable operators” or “cable distributors” in the traditional sense, i.e. operators of traditional cable networks. Establishments such as hotels do not fall within either of those definitions. Put differently, only cable operators carry out cable retransmissions within the meaning of the Satellite and Cable Directive and it is consequently only that type of retransmission which is subject to the mandatory collective exercise of rights regime established by that directive.
Therefore, the CJEU said that Article 1(3) of the Satellite and Cable Directive, read in conjunction with Article 8(1) thereof, must be interpreted as meaning that: (i) it does not provide for an exclusive right for broadcasting organisations to authorise or prohibit cable retransmission; and (ii) the simultaneous, unaltered and unabridged distribution of TV or radio programmes broadcast by satellite and intended for reception by the public where that retransmission is carried out by a person other than a “cable operator”, as defined by the Directive, such as a hotel, does not constitute cable retransmission. (Case C-716/20 RTL Television GmbH v Grupo Pestana SGPS SA EU:C:2022:643 (8 September 2022) — to read the judgment in full, click here).