The Court of Justice of the EU (“CJEU”) recently pronounced a somewhat “discomforting” judgment in the AKM v. Zü case (C-138/16). The CJEU held that a simultaneous, full and unaltered transmission via cable made by a cable operator of programmes that were originally broadcast by a national broadcasting corporation, within the same national territory, is not a communication to the public in the sense of article 3(1) of Directive 2001/29/EC, “provided it is merely a technical means of communication and was taken into account by the author of the work when the latter authorised the original communication”.

Zü retransmits via cable programmes originally broadcast by the Austrian broadcasting corporation ORF or other (commercial) broadcasters, and it refuses to pay copyrights. Sued by AKM (Austrian copyright collecting society), Zü argued in the national proceedings that its “broadcasts” fell under article 17(3) (2)(b) of the Austrian copyright law as they could not be regarded as “new broadcasts”. This would prevent AKM from acquiring information as to the number of subscribers connected to Zü’s cable network and thus from proving copyright infringement. AKM argued that this provision was incompatible with EU copyright law and the Berne Convention. The Commercial Court of Vienna decided to ask for a preliminary ruling concerning the conformity of this provision with article 3(1) of Directive 2001/29/EC.

In assessing whether there is a “communication” to the “public”, the CJEU applied the “two-step test”. With regard to the existence of a “communication”, it firstly held that there is a copyright relevant (re)transmission, i.e. a transmission “by a technical means different from that used for the initial transmission”. It then went on to state that it was to be examined whether a new “public” was reached, which would not be the case considering that rightsholders had taken into account all persons within the national territory when granting the original broadcasting authorization (to ORF). Therefore, the persons that could be reached with the (re)transmission were already taken into account under the original authorization and no “new public” was reached. It then, out of nowhere, also formulated a proviso (“provided it is merely …”).

This judgment is inconsistent with the Court’s previous case law in this matter. In the ITV broadcasting case, the Court held that a separate authorization from the rightsholders was required in the case of a transmission of works via a different means of transmission (i.e. internet) made by an organization other than the original broadcaster to its subscribers, “even though those subscribers are within the area of reception of the original (terrestrial) broadcast”. In those circumstances, according to the Court, it would no longer be necessary to examine the requirement of a “new public”. In the case in question, however, the Court’s assessment of this requirement concluded that there was no communication to a (new) public, given the fact that ORF had already obtained the authorization of the rightsholders to communicate in Austria and Zü only (re)transmitted to (the same) viewers in Austria. Also, this aspect seems to differ from former case law, where the new public criterion did not merely relate to the territory of the viewers but also to the technical means used by the operator. Moreover, the application of the proviso is somewhat odd (i.e. while there is a copyright relevant “communication”, this transmission could still be just a “technical means”…). This prompts the question: is this yet another Fata Morgana, or will this judgment stand?