Contents
Judgment of the Court (Fifth Chamber)8 September 2022note(Reference for a preliminary ruling — Copyright and related rights — Satellite broadcasting and cable retransmission — Directive 93/83/EEC — Article 1(3) — Concept of cable retransmission — Provider of the retransmission not having the status of a cable operator — Simultaneous, unaltered and unabridged distribution of television and radio programmes broadcast by satellite and intended for reception by the public, performed by the operator of a hotel establishment, by means of a satellite dish, a cable and television or radio sets — None)In Case C‑716/20,REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal de Justiça (Supreme Court, Portugal), made by decision of 10 November 2020, received at the Court on 31 December 2020, in the proceedingsRTL Television GmbHvGrupo Pestana S.G.P.S. SA,SALVOR – Sociedade de Investimento Hoteleiro SA,THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, I. Jarukaitis, M. Ilešič (Rapporteur), D. Gratsias and Z. Csehi, Judges,Advocate General: G. Pitruzzella,Registrar: M. Ferreira, principal administrator,having regard to the written procedure and further to the hearing on 1 December 2021,after considering the observations submitted on behalf of:– RTL Television GmbH, by J.P. de Oliveira Vaz Miranda de Sousa, advogado,– Grupo Pestana S.G.P.S. SA and SALVOR – Sociedade de Investimento Hoteleiro SA, by H. Trocado, advogado,– the European Commission, by É. Gippini Fournier, B. Rechena and J. Samnadda, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 10 March 2022,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Article 1(3) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15).
2The request has been made in proceedings between, of the one part, RTL Television GmbH (‘RTL’) and, of the other part, Grupo Pestana, S.G.P.S. SA (‘Grupo Pestana’) and SALVOR – Sociedade de Investimento Hoteleiro SA (‘Salvor’) concerning the making available without RTL’s authorisation, in the hotel rooms operated by Grupo Pestana and Salvor, of the programmes of an RTL channel.
Legal context
International law
The TRIPs Agreement
3The Agreement on Trade-Related Aspects of Intellectual Property Rights (‘the TRIPs Agreement’), signed on 15 April 1994 in Marrakesh and constituting Annex 1C to the Agreement establishing the World Trade Organisation (WTO), was approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).
4Article 9 of the TRIPS Agreement, entitled ‘Relation to the Berne Convention’, provides in paragraph 1 thereof:‘Members shall comply with Articles 1 through 21 of the Berne Convention [for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as amended on 28 September 1979 (‘the Berne Convention’)] and the Appendix thereto. …’
5Article 14 of the TRIPS Agreement, entitled ‘Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organisations’, provides in paragraph 3 thereof:‘Broadcasting organisations shall have the right to prohibit the following acts when undertaken without their authorisation: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organisations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).’
The Berne Convention
6Article 11 bis(1) of the Berne Convention provides:‘Authors of literary and artistic works shall enjoy the exclusive right of authorising:…(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organisation other than the original one;…’
The Rome Convention
7Under Article 3(g) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, done at Rome on 26 October 1961 (‘the Rome Convention’), ‘rebroadcasting’ means, for the purposes of that convention, ‘the simultaneous broadcasting by one broadcasting organisation of the broadcast of another broadcasting organisation’.
8Article 13 of that convention, entitled ‘Minimum Rights for Broadcasting Organisations’, is worded as follows:‘Broadcasting organisations shall enjoy the right to authorise or prohibit:(a) the rebroadcasting of their broadcasts;(b) the fixation of their broadcasts;(c) the reproduction:(i) of fixations, made without their consent, of their broadcasts;(ii) of fixations, made in accordance with the provisions of Article 15, of their broadcasts, if the reproduction is made for purposes different from those referred to in those provisions;(d) the communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee; it shall be a matter for the domestic law of the State where protection of this right is claimed to determine the conditions under which it may be exercised.’
European Union law
Directive 93/83
9Recitals 8 to 10, 27 and 28 of Directive 93/83 are worded as follows:(8) Whereas … legal certainty, which is a prerequisite for the free movement of broadcasts within the Community, is missing where programmes transmitted across frontiers are fed into and retransmitted through cable networks;(9) Whereas the development of the acquisition of rights on a contractual basis by authorisation is already making a vigorous contribution to the creation of the desired European audiovisual area; whereas the continuation of such contractual agreements should be ensured and their smooth application in practice should be promoted wherever possible;(10) Whereas at present cable operators in particular cannot be sure that they have actually acquired all the programme rights covered by such an agreement;…(27) Whereas the cable retransmission of programmes from other Member States is an act subject to copyright and, as the case may be, rights related to copyright; whereas the cable operator must, therefore, obtain the authorisation from every holder of rights in each part of the programme retransmitted; whereas, pursuant to this Directive, the authorisations should be granted contractually unless a temporary exception is provided for in the case of existing legal licence schemes;(28) Whereas, in order to ensure that the smooth operation of contractual arrangements is not called into question by the intervention of outsiders holding rights in individual parts of the programme, provision should be made, through the obligation to have recourse to a collecting society, for the exclusive collective exercise of the authorisation right to the extent that this is required by the special features of cable retransmission; whereas the authorisation right as such remains intact and only the exercise of this right is regulated to some extent, so that the right to authorise a cable retransmission can still be assigned; whereas this Directive does not affect the exercise of moral rights’.
10Article 1 of that directive, entitled ‘Definitions’, provides in paragraph 3:‘For the purposes of this Directive, ‘cable retransmission’ means the simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public.’
11Under Article 2 of Directive 93/83, entitled ‘Broadcasting right’:‘Member States shall provide an exclusive right for the author to authorise the communication to the public by satellite of copyright works …’
12Article 8 of that directive, entitled ‘Cable retransmission right’, provides in paragraph 1 thereof:‘Member States shall ensure that when programmes from other Member States are retransmitted by cable in their territory the applicable copyright and related rights are observed and that such retransmission takes place on the basis of individual or collective contractual agreements between copyright owners, holders of related rights and cable operators.’
13Article 9 of Directive 93/83, entitled ‘Exercise of the cable retransmission right’, states:1. Member States shall ensure that the right of copyright owners and holders of related rights to grant or refuse authorisation to a cable operator for a cable retransmission may be exercised only through a collecting society.2. Where a rightholder has not transferred the management of his rights to a collecting society, the collecting society which manages rights of the same category shall be deemed to be mandated to manage his rights. Where more than one collecting society manages rights of that category, the rightholder shall be free to choose which of those collecting societies is deemed to be mandated to manage his rights. A rightholder referred to in this paragraph shall have the same rights and obligations resulting from the agreement between the cable operator and the collecting society which is deemed to be mandated to manage his rights as the rightholders who have mandated that collecting society and he shall be able to claim those rights within a period, to be fixed by the Member State concerned, which shall not be shorter than three years from the date of the cable retransmission which includes his work or other protected subject matter.3. A Member State may provide that, when a rightholder authorises the initial transmission within its territory of a work or other protected subject matter, he shall be deemed to have agreed not to exercise his cable retransmission rights on an individual basis but to exercise them in accordance with the provisions of this Directive.’
14Article 10 of that directive, entitled ‘Exercise of the cable retransmission right by broadcasting organisations’, provides:‘Member States shall ensure that Article 9 does not apply to the rights exercised by a broadcasting organisation in respect of its own transmission, irrespective of whether the rights concerned are its own or have been transferred to it by other copyright owners and/or holders of related rights.’
Directive 2001/29/EC
15Recital 23 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) states:‘This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.’
16Article 1 of that directive, entitled ‘Scope’, provides in paragraph 2 thereof:‘… this Directive shall leave intact and shall in no way affect existing Community provisions relating to:…(c) copyright and related rights applicable to broadcasting of programmes by satellite and cable retransmission;…’
17Article 2 of Directive 2001/29, entitled ‘Reproduction right’, provides:‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:…(e) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.’
18Article 3 of that directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides:1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.2.Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:…(d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.…’
Directive 2006/115/EC
19Recital 16 of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28) states:‘Member States should be able to provide for more far-reaching protection for owners of rights related to copyright than that required by the provisions laid down in this Directive in respect of broadcasting and communication to the public.’
20Article 7 of that directive, entitled ‘Fixation right’, provides in paragraphs 2 and 3:2. Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the fixation of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.3. A cable distributor shall not have the right provided for in paragraph 2 where it merely retransmits by cable the broadcasts of broadcasting organisations.’
21Article 8 of that directive, entitled ‘Broadcasting and communication to the public’, provides in paragraph 3 thereof:‘Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.’
22Article 9 of Directive 2006/115, entitled ‘Distribution right’, provides in paragraph 1 thereof:‘Member States shall provide the exclusive right to make available to the public …:…(d) for broadcasting organisations, in respect of fixations of their broadcasts as set out in Article 7(2).’
23Article 12 of Directive 2006/115, entitled ‘Relation between copyright and related rights’, provides:‘Protection of copyright-related rights under this Directive shall leave intact and shall in no way affect the protection of copyright.’
Portuguese law
24Article 176 of the Código do Direito de Autor e dos Direitos Conexos (Portuguese Code of Copyright and Related Rights; ‘the CDADC’) provides in paragraphs 9 and 10 thereof:9. “Broadcasting organisation” means any organisation which makes audio or visual broadcasts, where broadcast means the transmission of sounds or images, or the representation thereof, separately or cumulatively, whether by wire or wireless means, in particular by radio waves, optical fibres, cable or satellite, intended for reception by the public.10. “Retransmission” means the simultaneous transmission by a broadcasting organisation of a broadcast by another broadcasting organisation.’
25Article 187 of the CDADC, entitled ‘Rights of broadcasting organisations’, provides in paragraph 1 thereof:‘Broadcasters shall have the right to authorise or prohibit:(a) the retransmission of their broadcasts by radio waves;…(e) the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.’
26Article 3 of Decreto-Lei No 333/97 (Decree-Law No 333/97) of 27 November 1997 (Diário da República I, Series I-A, No 275, of 27 November 1997) is worded as follows:‘For the purposes of this decree:…(c) “cable retransmission” means the distribution to the public, transmitted simultaneously and entirely by cable, of an initial transmission of television or radio programmes intended for reception by the public.’
27Article 8 of Decree-Law No 333/97, entitled ‘Extension to holders of related rights’, provides:‘The provisions of Articles 178, 184 and 187 of the [CDADC] and Articles 6 and 7 of this decree-law shall apply to artists, producers of sound and video recordings and broadcasting organisations with regard to the satellite communication to the public of their performances, sound recordings, video recordings and broadcasts, and with regard to cable retransmission.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
28RTL, established in Germany, is part of a conglomerate of television-content broadcasters, known under the trade name ‘Mediengruppe RTL Deutschland’. The RTL channel is one of the most well-known German-language television channels, most watched by the German-speaking public in the European Union, and its programmes offer a very wide range of television formats (films, series, shows, documentaries, sporting events, news and current affairs programmes).
29From a technical point of view, the RTL channel may be received in Germany, Austria and Switzerland via all existing television reception options, namely, satellite, cable, IP, OTT/Internet and terrestrial television. Furthermore, it is a free-to-air channel, there being no fee charged for its reception in private homes, and, in the majority of the reception options, the signal is not encrypted. Moreover, those three countries are the source of all its advertising funding.
30Given the extension of its satellite signal (ASTRA 19.2° East), technically, the RTL channel can be received in several other European countries, including Portugal, by using a satellite dish.
31As regards the reception and use of that signal, RTL has already concluded a number of licensing agreements with both cable television operators and certain hotels situated in the European Union, including in Portugal.
32Grupo Pestana, established in Portugal, is a company which engages in the management of shareholdings of other undertakings. It holds majority shareholdings in companies which in turn own or operate hotel establishments.
33Grupo Pestana has a direct holding of at least 98.98% in the share capital of Salvor, a company which engages in the business and promotion of the hotel industry by constructing or financing the construction of hotels or through direct or indirect interests in the operation of hotels and similar establishments.
34By letter of 7 August 2012, the director of the International Department for Distribution and Copyright and Related Rights of Mediengruppe RTL Deutschland required Grupo Pestana to pay the fee for making available to the public several channels belonging to that group, in particular the RTL channel, in the rooms of hotels operated by companies owned by Grupo Pestana.
35On 12 November 2012, Grupo Pestana replied to that letter, stating, inter alia, that, in accordance with Portuguese law, hotels were not required to pay copyright and other fees in the case of mere reception of a television signal.
36Taking the view that it was entitled to authorise or refuse to authorise the reception and making available of the programmes of the eponymous channel, RTL brought an action against Salvor and Grupo Pestana before the Tribunal da Propriedade Intelectual (Intellectual Property Court, Portugal), asking that court, inter alia, to declare that the making available of those programmes required its prior authorisation.
37In addition, as compensation for the retransmission and/or communication to the public of the RTL channel’s broadcasts, RTL claimed, first, that Salvor and Grupo Pestana should be ordered jointly and severally to pay an amount of EUR 0.20 per room per month for the period during which Salvor had made that channel available in the rooms of its hotels, together with interest at the statutory rate, and, secondly, that Grupo Pestana should be ordered to pay the same compensation for the period during which the hotels operated by the other companies it owns made or make that channel available in their rooms.
38Lastly, RTL claimed that Grupo Pestana, as parent company, should be ordered to take the appropriate intra-group measures to ensure that the companies in its ownership do not make the RTL channel available in the hotels that those companies operate, without having obtained RTL’s prior authorisation.
39The Tribunal da Propriedade Intelectual (Intellectual Property Court) found that the reception and making available of the RTL channel’s broadcasts in the hotel rooms in question constituted an act of communication to the public, within the meaning of Article 187(1)(e) of the CDADC, notwithstanding the fact that no specific consideration was paid by way of remuneration for viewing that channel, such as an entrance fee. However, that court held that the distribution of that channel could not be regarded as a ‘retransmission of broadcasts’, since neither the defendants in the main proceedings nor the hotels identified in the action were broadcasting organisations. Consequently, it rejected RTL’s claims, in particular those seeking compensation or based on unjust enrichment.
40The applicant in the main proceedings brought an appeal against that judgment before the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon, Portugal), which upheld the first-instance judgment. That appeal court held, in essence, that the distribution by coaxial cable of the broadcasts of the RTL channel to numerous television sets installed in the rooms of the hotel establishments operated by the defendants in the main proceedings did not constitute a retransmission of broadcasts, in the light of the definition contained in Article 176(10) of the CDADC.
41The applicant in the main proceedings then brought an appeal in cassation before the referring court, the Supremo Tribunal de Justiça (Supreme Court, Portugal), which was allowed to proceed by that court.
42According to that court, the essential question to be decided in that appeal is whether the distribution by coaxial cable of the RTL channel’s broadcasts in the rooms of the hotels concerned constitutes a retransmission of those broadcasts, which, under Article 187(1)(a) of the CDADC, is subject to authorisation by the broadcasting organisation, in this case RTL.
43On the one hand, the two lower courts found that there was no retransmission, for the purposes of Article 176(9) and (10) of the CDADC and Article 3(g) of the Rome Convention, since the defendants did not have the status of broadcasting organisation.
44On the other hand, RTL contended that the right conferred on broadcasting organisations to authorise and prohibit the retransmission of their broadcasts — as provided for in Article 187(1)(a) of the CDADC in conjunction with Articles 3 and 8 of Decree-Law No 333/97 — covers not only the simultaneous transmission of broadcasts, by means of radio signals, in the case where the person transmitting them is a broadcasting organisation other than the organisation from which they originate, but also the distribution to the public, on a simultaneous basis and entirely by cable, of a primary transmission of television or radio programmes intended for reception by the public, whether or not the person performing that distribution to the public is a broadcasting organisation.
45In that regard, the referring court is uncertain as to whether the interpretation by the two lower courts of the applicable rules of the CDADC and of Decree-Law No 333/97 is compatible with Directive 93/83, in particular as to whether, notwithstanding the wording of Article 187(1)(a) of the CDADC, the list of rights conferred on broadcasting organisations must be regarded as having been extended, having regard in particular to the provisions of Decree-Law No 333/97 and its original source, Directive 93/83.
46In those circumstances the Supremo Tribunal de Justiça (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must the concept of “cable retransmission”, as provided for in Article 1(3) of [Directive 93/83] be interpreted as meaning that it covers, in addition to the simultaneous transmission by one broadcasting organisation of a broadcast by another broadcasting organisation, the distribution to the public, on a simultaneous basis and entirely by cable, of a primary transmission of television or radio programmes intended for reception by the public (whether or not the person performing that distribution to the public is a broadcasting organisation)?(2) Does the simultaneous distribution of the satellite broadcasts of a television channel, through television sets installed in hotel rooms, and by means of coaxial cable, constitute a “retransmission” of such broadcasts within the meaning of the concept provided for in Article 1(3) of [Directive 93/83]?’
The request to have the oral procedure reopened
47Following the delivery of the Opinion of the Advocate General, RTL, by document lodged at the Court Registry on 7 June 2022, requested the Court to order the reopening of the oral part of the procedure, pursuant to Article 83 of the Rules of Procedure of the Court of Justice.
48In support of its request, RTL argued, in essence, that the Advocate General’s Opinion was based upon an inadequate examination of several aspects of the factual, technological and legal context of the dispute in the main proceedings.
49It must be borne in mind that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require his or her involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 12 May 2022, Schneider Electric and Others, C‑556/20, EU:C:2022:378, paragraph 30 and the case-law cited).
50In accordance with Article 83 of the Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.
51However, the Statute of the Court of Justice of the European Union and the Rules of Procedure make no provision for parties to submit observations in response to the Advocate General’s Opinion (judgments of 2 April 2020, Stim and SAMI, C‑753/18, EU:C:2020:268, paragraph 22 and the case-law cited, and of 3 September 2020, Supreme Site Services and Others, C‑186/19, EU:C:2020:638, paragraph 37 and the case-law cited).
52In the present case, RTL’s request that the oral part of the procedure be reopened is intended, essentially, to enable it to respond to the findings made by the Advocate General in his Opinion.
53In that regard, the Court considers, having heard the Advocate General, that it has all the information necessary to enable it to reply to the questions put by the referring court and that all the arguments necessary for the determination of the present case have been debated between the parties, both in the written and oral procedure before the Court.
54Consequently, there is no need to order the oral part of the procedure to be reopened.
Consideration of the questions referred
55According to settled case-law of the Court, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it (judgment of 26 April 2022, Landespolizeidirektion Steiermark (Maximum duration of internal border control), C‑368/20 and C‑369/20, EU:C:2022:298 paragraph 50 and the case-law cited). Furthermore, the Court may decide to take into consideration rules of EU law to which the national court has made no reference in the wording of its question (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 33 and the case-law cited).
56It is apparent from the order for reference that the referring court seeks to ascertain whether Member States are required, under EU law – having regard to the definition of the concept of ‘cable retransmission’ in Article 1(3) of Directive 93/83 – to recognise, in respect of broadcasting organisations, an exclusive right to authorise or prohibit the retransmission of their broadcasts where that retransmission is carried out by means of a cable by an entity which is not a broadcasting organisation, such as a hotel. Indeed, the referring court considers that, if that question is answered in the affirmative, it will have to interpret national law in such a way as to ensure the effective exercise of such a right.
57In that regard, it should be noted that, under EU law, Member States are required to provide, in their national law, for a certain number of related rights which a broadcasting organisation such as RTL must be able to exercise.
58As EU law currently stands and in accordance with the European Union’s obligations under international intellectual property law, in particular Article 13 of the Rome Convention and Article 14(3) of the TRIPS Agreement, such rights include:– the exclusive right to authorise or prohibit reproduction of the fixations of the broadcasts of broadcasting organisations, whether those broadcasts are transmitted by wire or over the air, including by cable, enshrined in Article 2(e) of Directive 2001/29;– the exclusive right to authorise or prohibit the making available to the public of fixations of the broadcasts of broadcasting organisations, whether those broadcasts are transmitted by wire or over the air, including by cable, in such a way that members of the public may access them from a place and at a time individually chosen by them, enshrined in Article 3(2)(d) of Directive 2001/29;– the exclusive right to authorise or prohibit the fixation of the broadcasts of broadcasting organisations, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite, enshrined in Article 7(2) of Directive 2006/115;– the exclusive right to authorise or prohibit the rebroadcasting of the broadcasts of broadcasting organisations by wireless means, as well as the communication to the public of those broadcasts if such communication is made in places accessible to the public against payment of an entrance fee, enshrined in Article 8(3) of Directive 2006/115; and– the exclusive right to make available to the public, in respect of fixations of the broadcasts of broadcasting organisations as set out in Article 7(2) of Directive 2006/115, as enshrined in Article 9(1)(d) of that directive.
59Although the factual circumstances referred to in paragraph 56 above clearly do not fulfil the conditions for applying those provisions, the question still remains as to whether an exclusive right, such as that described in that paragraph, might arise, if at all, from the interpretation of Article 1(3) of Directive 93/83, read in conjunction with Article 8(1) thereof.
60In those circumstances, it must be found that, by its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 1(3) of Directive 93/83, read in conjunction with Article 8(1) thereof, must be interpreted, first, as requiring Member States to provide, in respect of broadcasting organisations, for an exclusive right to authorise or prohibit cable retransmission, within the meaning of that provision, and, secondly, whether the simultaneous, unaltered and unabridged distribution of television or radio programmes broadcast by satellite and intended for reception by the public constitutes such retransmission, where that transmission is carried out by an establishment such as a hotel.
61As set out in Article 1(3) of Directive 93/83, the concept of ‘cable retransmission’ is defined as the simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public.
62Thus, that concept does not cover deferred, altered or incomplete retransmissions or retransmissions within the same Member State, that is to say, within the Member State in which the initial transmission originates (see, to that effect, judgment of 1 March 2017, ITV Broadcasting and Others, C‑275/15, EU:C:2017:144, paragraph 21).
63As regards, more specifically, the concept of ‘retransmission’, it follows from Article 1(3) that it concerns only retransmission by cable or microwave system, the latter taking the place of cable retransmission in some Member States, where the establishment of a cable network is not economically viable, as is apparent from point 11 of the second part of the explanatory memorandum to the Proposal for a Council Directive on the coordination of certain rules concerning copyright and neighbouring rights applicable to satellite broadcasting and cable retransmission, presented by the Commission on 11 September 1991 (COM (1991) 276 final), which was the basis for Directive 93/83. Furthermore, the initial transmission may be by wire or over the air, including by satellite.
64Furthermore, as the referring court was fully entitled to state, ‘cable retransmission’, within the meaning of that provision, does not imply that the entity carrying out that retransmission is a broadcasting organisation.
65It is true that, from the point of view of international law, the status of ‘broadcasting organisation’ is required in order for there to be a ‘rebroadcasting’ within the meaning of Article 3(g) of the Rome Convention, that concept corresponding, in essence, to the concept of ‘rebroadcasting … by wireless means’ referred to in Article 8(3) of Directive 2006/115.
66Nevertheless, it is clear that Article 3(g) and Article 13(a) of that convention are not relevant to the interpretation of the concept of ‘cable retransmission’, since that convention, like the TRIPS Agreement, concerns exclusively traditional broadcasting by wireless means (see, to that effect, judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraphs 3 and 91).
67Admittedly, at the date on which it was adopted, Directive 93/83 was intended, in essence, to broaden the concept of an ‘organisation other than the original one’ contained in Article 11bis(1)(ii) of the Berne Convention, in order also to include cable operators, albeit in a manner limited to the scope of that directive.
68Thus, the definition of the concept of ‘cable retransmission’ in Article 1(3) of Directive 93/83 is expressly provided for ‘for the purposes of’ that directive.
69That said, it is clear from Article 8 of that directive, and from recital 27 thereof, that Directive 93/83 neither requires Member States to introduce a specific cable retransmission right nor defines the scope of any such right. It merely imposes an obligation upon the Member States to ensure that when programmes from other Member States are retransmitted by cable in their territory the applicable copyright and related rights are observed (judgment of 3 February 2000, Egeda, C‑293/98, EU:C:2000:66, paragraph 24).
70That directive was adopted principally in order to facilitate, first, satellite broadcasting and, secondly, cable retransmission, by promoting, in Article 9 thereof, the granting of authorisations, by authors and holders of related rights, for a cable retransmission, through collecting societies, it being understood that, in accordance with Article 10 of that directive, Article 9 does not apply to the rights exercised by a broadcasting organisation in respect of its own transmission.
71In particular, according to Article 8(1) of Directive 93/83, Member States must ensure that when programmes from other Member States are retransmitted by cable in their territory the applicable copyright and related rights are observed and that such retransmission takes place on the basis of individual or collective contractual agreements between copyright owners, holders of related rights and cable operators.
72In that regard, it is apparent from a combined reading of recitals 8, 9 and 27 of Directive 93/83 that a cable operator must obtain the authorisation from every holder of copyright and related rights in each part of the programme retransmitted and that, unless there is a temporary exception in the case of certain legal licence schemes, that authorisation must be granted contractually, which is the most appropriate means of creating the desired European audiovisual area within a framework that ensures legal certainty.
73In that context, recital 28 of Directive 93/83 states that the purpose of that directive is to regulate to some extent the exercise of the exclusive right to grant an authorisation, the authorisation right as such remaining intact. Thus, Article 9 of that directive provides, in essence, that Member States must ensure that the right of copyright owners and holders of related rights to grant or refuse authorisation to a cable operator for a cable retransmission may be exercised only through a collecting society. However, Article 10 of Directive 93/83 makes clear that Member States must ensure that Article 9 does not apply to the rights exercised by a broadcasting organisation in respect of its own transmission, cable operators therefore having to negotiate individually with the broadcasting organisation concerned for the purposes of obtaining an authorisation, irrespective of whether the rights concerned are the broadcasting organisation’s own or have been transferred to it by other copyright owners and/or holders of related rights.
74Although the agreements provided for in Article 8(1) of Directive 93/83 are, therefore, concluded, in accordance with the detailed rules laid down in Articles 9 and 10 thereof, with cable operators, it follows from those factors that Article 8(1) of that directive does not affect the exact scope of copyright or related rights, which is established under other instruments of EU law, such as Directives 2001/29 and 2006/115, and of national law.
75As is apparent from recital 16 of Directive 2006/115, it remains open to the Member States to provide for more far-reaching protection, with regard to the broadcasting and communication to the public of transmissions made by broadcasting organisations, than that which must be instituted in accordance with Article 8(3) of that directive. Such an option implies that the Member States may grant broadcasting organisations an exclusive right to authorise or prohibit acts of communication to the public of their transmissions on conditions different from those laid down in Article 8(3), it still being understood that, as provided for in Article 12 of Directive 2006/115, such a right must not affect the protection of copyright in any way (see, to that effect, judgment of 26 March 2015, C More Entertainment, C‑279/13, EU:C:2015:199, paragraph 35).
76Even if national law provides for an exclusive right for broadcasting organisations to authorise or prohibit cable transmission, Directive 93/83 governs only the exercise of the cable retransmission right in the relationship between copyright owners and holders of related rights, on the one hand, and ‘cable operators’ or ‘cable distributors’, on the other.
77Furthermore, having regard to the particular circumstances surrounding the origin of Directive 93/83, it must be held that the concepts of ‘cable operator’ or ‘cable distributor’ in that directive designate, as the Advocate General observed in point 73 of his Opinion, the operators of traditional cable networks.
78An interpretation which would include in the concept of ‘cable operator’, within the meaning of Article 8(1) of Directive 93/83, any person who carries out a cable retransmission meeting the technical characteristics described in Article 1(3) of that directive, even where that person’s professional activity does not consist in the operation of a traditional cable television distribution network, would in actual fact have the effect of extending the scope of the related right provided for in Article 8(3) of Directive 2006/115, treating it in the same way as the exclusive right of communication to the public, as provided for in Article 3(1) of Directive 2001/29 in favour of authors.
79In that regard, it is apparent from Article 8(3) of Directive 2006/115 that the exclusive right to authorise or prohibit the communication to the public of the broadcasts of broadcasting organisations may be relied on against third parties only if such communication is made in places accessible to the public against payment of an entrance fee. However, the Court has held that the condition relating to the payment of an entrance fee is not fulfilled where that communication constitutes an additional service included without distinction in the price of a main service of a different nature, such as a hotel accommodation service (see, to that effect, judgment of 16 February 2017, Verwertungsgesellschaft Rundfunk, C‑641/15, EU:C:2017:131, paragraphs 23 to 26).
80As has been stated in paragraph 74 above, Article 8(1) of Directive 93/83 is not intended to affect the scope of copyright and related rights such as those defined by EU law and by the laws of the Member States.
81Lastly, the interpretation according to which the concept of ‘cable retransmission,’ within the meaning of Article 1(3) of Directive 93/83, applies only to relations between copyright owners and the holders of related rights, on the one hand, and ‘cable operators’ or ‘cable distributors’, on the other, in the traditional meaning of those terms, is consistent with the objectives pursued by Directive 93/83.
82As is apparent from the analysis in paragraphs 70 to 73 above, it is common ground that that directive was adopted principally in order to facilitate, in particular, cable retransmission by promoting the granting of authorisations.
83That finding is borne out by recitals 8 and 10 of Directive 93/83, from which it is apparent, first, that, at the time the directive was adopted, legal certainty, which is a prerequisite for the free movement of broadcasts within the European Union, was missing where programmes transmitted across frontiers were fed into and retransmitted through cable networks and, secondly, that cable operators could not be sure that they had actually acquired all the programme rights covered by such contractual agreements.
84It must, therefore, be held that establishments such as hotels do not fall within the concepts of ‘cable operator’ or ‘cable distributor’, within the meaning of Directive 93/83.
85In the light of all the foregoing considerations, the answer to the questions referred, as reformulated, is that Article 1(3) of Directive 93/83, read in conjunction with Article 8(1) thereof, must be interpreted as meaning:– that it does not provide for an exclusive right for broadcasting organisations to authorise or prohibit cable retransmission, within the meaning of that provision, and– that the simultaneous, unaltered and unabridged distribution of television or radio programmes broadcast by satellite and intended for reception by the public, where that retransmission is carried out by a person other than a cable operator, within the meaning of that directive, such as a hotel, does not constitute cable retransmission.
Costs
86Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fifth Chamber) hereby rules: Article 1(3) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, read in conjunction with Article 8(1) thereof,must be interpreted as meaning:– that it does not provide for an exclusive right for broadcasting organisations to authorise or prohibit cable retransmission, within the meaning of that provision, and– that the simultaneous, unaltered and unabridged distribution of television or radio programmes broadcast by satellite and intended for reception by the public, where that retransmission is carried out by a person other than a cable operator, within the meaning of that directive, such as a hotel, does not constitute cable retransmission.
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