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ECJ rules on communication to the public by direct-injection broadcasting

Written by Aasim Durrani on 23 November 2015

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The European Court of Justice has given a preliminary ruling in SBS Belgium NV v Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM) (Case C-325/14) on whether direct-injection broadcasting is an act contrary to Article 3(1) of the Copyright Directive.

Article 3(1) of the Directive provides that communication to the public of a literary, dramatic, musical or artistic work is an act restricted by the copyright. The Article is implemented into English law under section 20 of the Copyright, Designs and Patents Act 1988. Direct-injection broadcasting is a process where a broadcaster transmits an encrypted signal to distributors, who then transmit that signal to their subscribers. This claim was brought by a copyright administration society which sought compensation from a Dutch broadcaster. It asked the court was asked to rule on whether the initial transmission from a broadcaster to its distributors comprised a communication to the public.

The court held that the initial transmission was not contrary to Article 3(1); the inability of viewers to access the transmission meant it did not fall within the meaning of a communication to the public. The court noted that the public would only be able to access the signal upon the recipient of the initial signal transmitting it to subscribers. As such, the distributor, being the initial recipient of the encrypted signal, did not fall within the definition of "public" for the purposes of Article 3(1).

Interestingly, the court noted that its ruling turned on the fact that the distributor was independent of the broadcaster and its intervention of the signal was not merely technical. It held that where this was not the case then an argument could be made before a national court that the initial transmission was in fact a communication to the public within the meaning of Article 3(1).

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