TVCatchup II – Retransmission by cable not “exempted” in the InfoSoc Directive

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Last November, I reported on the GS Media case (C-160/15), which certainly gave rise to some debate. It appears that the CJEU is quite actively handing down judgments in the area of copyright. This is perhaps not too surprising, since the member states still have quite different national legislations and the harmonization from the EU is by no means exhaustive. Additionally, and more importantly, especially national copyright laws lag behind the rapid technical development, which is why many questions of interpretation may arise in national courts.

Only a few days ago, on 1 March, the CJEU handed down its judgment (C-275/15) in the case TVCatchup II. The national law in the UK included a provision, which roughly provided that copyright is not infringed in the case of immediate retransmission by cable. The relevant question from the UK court was “whether Article 9 of Directive 2001/29, and specifically the concept of ‘access to cable of broadcasting services’, must be interpreted as covering and permitting national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.”

The CJEU said no. The court ruled that no exception or limitation as set out in Art. 5 of the InfoSoc Directive could be applicable to the case at hand. Then the court turned to interpret Art. 9, which in essence sets out that the InfoSoc Directive shall be “without prejudice to provisions concerning […] access to cable of broadcasting services […]“. Ergo, the provision concerning “access to cable” should not be affected by the InfoSoc Directive. The question was, did the UK national provision which carved out a limitation to copyright fall within this category? The court answered in the negative. First, the court said that retransmission is not the same as “access to cable”. Second, the court said that the principal objective of the InfoSoc Directive was to establish a high level of protection for authors. The court also concluded that Art. 5 of the InfoSoc Directive included an exhaustive list of exceptions. In line with this reasoning, the court reached the conclusion that there was a “communication to the public” and that Art. 5 or 9 of the directive did not make the retransmission permissible. Also, the court considered it irrelevant that the retransmitted channels were “public service” channels. It could also be pointed out that the court did not limit its conclusion to cable retransmission but also “where relevant” to retransmission “via the internet“.

This time around, I’ll leave you with a few questions to ponder. What is meant by “access to cable” in this context? The AG did have some thoughts on this concept (read them here) – does this clarify things? And what is the relationship between Art. 5 and Art. 9 of the InfoSoc Directive; does the fact that there is no mention of the particular activity in Art. 5 always mean that you could not rely on Art. 9? Which kind of relevance could it have that the court did not only refer to retransmission via cable, but also via the internet?

Vilhelm Schröder

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