Right Brain Interface NV is a young technology company that has created a remote DVR (digital video recording) storage service called Bhaalu. In essence, this service allows its subscribers to record the television shows, which they can watch according to their TV channels’ subscription and store them on servers owned by the unincorporated association of Bhaalu users (“in the cloud”). This way, Bhaalu users can watch TV shows on demand up to 3 months after they have been aired.
The Bhaalu system is also called a Collaborative Video Recorder (or CVR) because the users are basically sharing the cost of certain common components of the CVR hardware, without it being technically possible for them to share content with or transfer the content to other users.
Naturally, Bhaalu’s entry on the Belgian market has led to a great deal of opposition by Belgian broadcasters, provoking Medialaan, VRT, and SBS Belgium to sue Right Brain Interface before the Antwerp Commercial Court on grounds of their right to exclusive reproduction and communication enshrined in the Belgian Copyright Act. The broadcasters also filed a complaint with the Flemish Media Regulator on grounds of Right Brain Interface’s violation of the Flemish Government Decree of 27 March 2009 (the “Media Decree”).
On November 4, 2014 the Antwerp Commercial Court ruled that Right Brain Interface could not lawfully rely upon the “private copy” exception enshrined in the Belgian Copyright Act. Even though Right Brain Interface has since suspended its activities, it did apply for an appeal against this decision. On January 12, 2015 the Flemish Media Regulator also decided in favor of the Belgian broadcasters.
The broadcasters asserted that Right Brain Interface should be considered a “service provider” in the meaning of Article 2, 7° of the Media Decree. As a service provider, Right Brain Interface would be obliged, according to Article 180 of the Media Decree, to:
- transmit linear television shows—that are included in the range of television services in the Flemish Community— unabridged, unaltered, and in their entirety, at the actual time these television shows are aired.
- seek prior consent of the broadcasters so that these broadcasters may offer its customers an option to have a delayed, shortened, or altered viewing of the linear television shows.
However, Right Brain Interface does not transmit linear television shows in an unabridged, unaltered way and in their entirety at the actual time these television shows are aired. In addition, Right Brain Interface did not obtain the broadcasters’ prior consent so that they could offer its customers the said option for delayed, shortened, or altered viewing of linear television shows.
The Media Decree defines “service providers” as any entity providing one or more broadcasting services to the public by means of electronic communication networks, with the exception of broadcasting organizations that only make their own broadcasting services to available to the public. This third category of market players (which fall between a broadcaster and a network operator) was added to the Media Decree to cope with future technical evolutions in the media sector. The Flemish Media Regulator held that Bhaalu was indeed the result of such technical evolutions and needed to be considered a service provider under the Media Decree.
In reaching this decision, the Flemish Media Regulator first considered that it was not required for service providers to provide the broadcasting services to the public via their own network. The Flemish Media Regulator also considered that it was irrelevant whether these services were broadcast on individual request or whichever technique was used to broadcast them (including point-to-point technique or, as in the present case, unicast technique). The fact that the Bhaalu user must indeed have made a recording instruction so that the signal via unicast would be forwarded to him does not, according to the Flemish Media Regulator, imply that Bhaalu did not provide broadcasting services.
Therefore, the Flemish Media Regulator declared that Right Brain Interface has violated Article 180 of the Media Decree by: (i) not transmitting the linear television shows—that are part of their range of television services in the Flemish Community—unabridged, unaltered, and in their entirety, at the exact time these television shows are aired, and (ii) not obtaining prior consent of the broadcasters so that they could offer its customers an option allowing for a delayed, shortened, or altered viewing of linear television shows.
However, given that Right Brain Interface had already ceased its Bhaalu-related activities after the Antwerp Commercial Court rendered its decision on November 4, 2014, the Flemish Media Regulator only issued Right Brain Interface a warning and ordered it to stop committing further violations.