Regulatory case law, November 2015: Broadcast direct injection not communication to the public

Latest EU regulatory case law1

In Case C‑325/14 of broadcaster SBS v. SABAM, a copyrights collecting society, the Court of Justice of the EU ruled that point-to-point, direct injection of the broadcasting programmes does not as such constitute communication to the public in the meaning of the Information Society Directive 2001/29/EC.

In the twofold process, the initial recipients of the broadcast programme are distributors, ranging from xDSL IPTV operator Belgacom, cable company Telenet and satellite TV Vlaanderen, who then transmit programmes to their subscribers.

Unless the intervention of the distributors in question is just a technical means, the Court points out, collecting societies such as SABAM are not allowed to impose fees on organisations such as SBS for the first step in said process i.e. the point-to-point communication of the programmes to the distributors, because specific individual distributors cannot be deemed ‘public’ in the sense of the Directive.

The ruling does not only lower the risk of multiple charging but is also likely to facilitate free movement of broadcasters, as it would prevent a local collecting society from imposing fees on a broadcaster who is based in the same Member State for the sole purpose of establishment, without a considerable audience.

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