The European Court of Justice (ECJ) has ruled that a broadcaster is not making a communication to the public for the purposes of Article 3(1) of the Copyright Directive (2001/29/EC) (Article 3(1)) when it transmits programme-carrying signals to its signal distributors (and not to any wider public) during the two-stage process known as direct injection broadcasting. A broadcaster does not therefore require the consent of the copyright owner for these purposes nor are they liable for any royalty payments for such delivery of the signal to its distributors. Instead, as a matter of law, the distributors are responsible for obtaining these rights and covering the associated royalties since they make the communication to the public.
What is direct injection broadcasting?
Direct injection broadcasting is a two-stage process by which a broadcaster transmits to its distributors programme-carrying signals via a "point to point" private line. The distributors pick up this signal and pass it on to subscribers who are then able to view the programmes on their televisions.
Facts of the case
In the case in question (SBS Belgium NV v. Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM), case C-325/14, 19 November 2015), copyright administration society, SABAM, required Dutch language broadcaster, SBS, to pay almost €1 million in copyright fees. SABAM considered that the authorisation of copyright holders was required for SBS's transmission of signal using the direct injection method and therefore this royalty amount was due.
The relevant court in Brussels, rechtbank van koophandel te Brussel, referred the following question to the ECJ:
"Does a broadcasting organisation which transmits its programmes exclusively via the technique of direct injection … make a communication to the public within the meaning of Article 3 of Directive 2001/29?" (SBS Belgium NV v. Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM), case C-325/14, 19 November 2015)
The ECJ held that SBS was not communicating works to the public but to specified individual professionals (the distributors) without potential viewers being able to have access to those signals. The distributors were supplying an autonomous service by transmitting the signal on to the subscribers. The subscribers paid their subscription fees to the distributors but they were not able to access the signal without the distributors transmitting it (i.e. they could not access the signal following the first step of the direct-injection process). The ECJ found that, for the purposes of Article 3(1), the "public" were the subscribers; the distributors were therefore the entities communicating the copyright work to the public, not SBS.
The ECJ distinguished instances where the distributor is purely providing a technical service; in these instances, the subscribers would be seen to be the public for the purposes of the original transmission of the signal by the broadcaster itself and the broadcaster would therefore be seen as the entity making the communication to the public. Whether such circumstances exist is a question of fact for national courts to decide in each instance.