RTL Television is one of the most well-known German-language TV channels watched by German-speakers in the EU. It is available in Germany, Austria and Switzerland via satellite, cable, IP, OTT/Internet and terrestrial TV. It is a free-to-air channel, and in most places, the signal is not encrypted. Due to the extension of its satellite signal (ASTRA 19.2° East), RTL can also be received in other European countries, including Portugal, via a satellite dish.

RTL has various licensing agreements with both cable TV operators and certain hotels throughout the EU, including in Portugal.

Grupo Pestana SGPS SA, a Portuguese shareholder management company, holds majority shareholdings in companies that own or operate hotels.

In August 2012, RTL requested that Grupo Pestana pay a fee for making available to the public various RTL channels in the rooms of hotels operated by companies owned by Grupo Pestana.

Grupo Pestana refused. RTL issued proceedings against Grupo Pestana in the Portuguese courts, seeking a declaration that the making available of RTL channels required prior authorisation, and 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.

RTL’s initial appeal was rejected. RTL then appealed to the Portuguese Supreme Court, which said that the essential question was whether the distribution by coaxial cable of RTL broadcasts into hotel rooms constituted a retransmission of those broadcasts, which was subject to RTL’s authorisation.

Given the lower courts’ findings that there was no retransmission as the defendants were not broadcasters, the Portuguese Supreme Court asked the CJEU whether 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 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 noted that Article 1(3) defines the concept of “cable retransmission” as the “simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public”. Therefore, “retransmission” covers cable or microwave system only, whereas the initial transmission can be by wire or over the air, including satellite.

In addition, the CJEU noted, “cable retransmission” does not imply that the entity carrying it out is necessarily a broadcasting organisation. Further, the Satellite and Cable Directive was intended to broaden the concept of an “organisation other than the original one” (Berne Convention) in order to include cable operators, albeit limited to the scope of the Directive.

However, the CJEU said, according to case law, Article 8 of the Directive neither requires Member States to introduce a specific cable retransmission right nor defines the scope of any such right. 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.

Further, according to the Directive, a cable operator must obtain authorisation from every copyright owner and holder of related rights in each part of the programme retransmitted and, unless exempt, authorisation must be granted contractually. Articles 9 and 10 set out detailed rules on how these authorisation rights should be exercised and contractual agreements concluded. Accordingly, Article 8(1) does not affect the scope of copyright or related rights, which is set out in separate EU legislation.

According to the Rental and Lending Right Directive (2006/115/EC), it is open to Member States to provide for more far-reaching protection in relation to the broadcast and communication to the public of programmes, e.g., providing an exclusive right for broadcasters to authorise or prohibit cable transmission, provided it does not affect the protection of copyright in any way. On the other hand, the Satellite and Cable Directive only governs the exercise of the cable retransmission right as between rights owners and the “cable operator/cable distributor”, the latter being defined as the operators of traditional cable networks.

In the CJEU’s view, if it were to include any person/organisation that carries out a cable retransmission but who is not an operator of a traditional cable TV network within the concept of “cable operator” or “cable distributor”, that would have the effect of extending the scope of the related right provided in Article 8(3) of the Rental and Lending Right Directive (which obliges Member States to give broadcasters the exclusive right to authorise or prohibit: (i) the rebroadcasting of their programmes by wireless means; and (ii) communication to the public of such programmes, where the broadcast or communication is made in a public place against payment of an entrance fee), thereby treating it in the same way as the exclusive right of communication to the public set out in Article 3(1) of the Copyright Directive (2001/29/EC) in favour of authors. Further, case law has found that the condition of payment of an entrance fee is not met where the communication is an additional service included without distinction in the price of a different, principal service, such as the provision of hotel accommodation.

Therefore, given that: (i) 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; and (ii) 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 (which is consistent with the objectives of the Directive), the CJEU held that establishments such as hotels do not fall within the concept of “cable operator” or “cable distributor” under the Directive.

The answer to the questions referred was, therefore, 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).