Author: Tony Ballard
In a judgment of remarkable simplicity of purpose and obscurity of expression, the Court of Justice has taken the next step forward in the delineation of the copyright concept of communication to the public.
In Airfield and anor v SABAM (Case C-431/09), 13 October 2011, and a parallel action involving Agicoa, the Court decided that satellite platform operators may need to seek separate authorisation from rightsholders to provide their customers with access to broadcast channels carried on their platform, on the basis that providing access in this way is a separate communication to the public. The main reason for the decision is that the platform operators’ customers are likely to be a “new” public, that is to say a public wider than that targeted by the original broadcaster and therefore a public that was not taken into account by the rightsholders when they granted rights to that broadcaster.
The decision is in line with its decision in 2006 in Rafael Hoteles to the effect that distributing broadcast signals to hotel guests for viewing on televisions in their rooms is a communication to the public (in that they are a new public) but the implications are much wider. Not only are the familiar platform operators likely to need to review their licensing arrangements with suppliers and collecting societies but so are other programme aggregators.
The process of adjustment to the implications of these decisions is not helped by the sclerotic manner in which the judges expressed themselves in Airfield. What they said was that a satellite package provider must obtain authorisation from the rightsholders concerned for its intervention in the transmission of television programmes by the broadcaster unless the rights holders have agreed with the broadcasters that the protected works will also be communicated to the public through that provider - so far, so good, if rather long-winded, but then they went on to say - “on condition, in the latter situation, that the providers’ intervention does not make those works accessible to a new public.” What they mean is that there is a communication to the public if the customers constitute a new public and not otherwise, but it is difficult to imagine a more obscure way of saying so.
This matters, because certainty as to the nature and scope of the communication to the public right is of fundamental importance in digital media. Any business which distributes copyright content over networks instead of in physical carriers, such as books or DVDs, and any author or and other rightsholder who is looking to be paid for the transmission of their work, needs to come to terms with the communication to the public right. Just as the concept of copying is central to the distribution of goods, communication to the public is central to distribution by means of digital communications. It is bad enough that we still do not know for certain where, in law, an act of communication takes place or even what it is and who performs it. We have perhaps got used to surprises such as that sprung at the end of the pub football cases (FAPL v QC Leisure etc) where showing a work on television in a pub was held to amount to a communication to the public requiring pubs to get copyright licences from rightsholders. But when the Court makes a decision about this vital right it would help if it could express itself in clear language.
Others have found other reasons to complain about clarity. In a judgment handed down this week (on 14 November) in the TVCatchup litigation, in which the question arose as to whether an internet retransmission of a free to air broadcast was a communication to the public, Floyd J decided it was still not clear to what extent the creation of a new link from the broadcaster to the subscriber was to be equated with the creation of a new public and that the question should be referred back to the Court of Justice.
Those readers of this blog who wish to predict the Court of Justice’s answer to this particular question should look at paragraph 72 of the Airfield judgment but those who are looking for a more general understanding of this group of decisions by the Court should also look elsewhere. The real clue lies in the Berne Convention. Article 11bis of the Convention deals with the communication to the public right and the Court in both Rafael and FAPL referred to it. The definition in that Article in effect divides the right up broadly into three types, the first of which is the original transmission, the second is a retransmission by another organisation and the third is communication by loudspeaker and the like. It is not difficult to see that Rafael and FAPL fall neatly into the second and third types respectively. With such a venerable origin, these decisions are anything but eccentric or difficult. This typology of communications is here to stay.
Copyright licensing can readily adjust to this new landscape in which the incidence of liability arises in an increasing number of points in the value chain - the ease of aggregation in digital platforms is likely to lead to a proliferation of targets for rightsholders and perhaps an unexpected additional overhead for operators. But where does it stop? If aggregators provide a new public, do not search engines also do so? What is the difference? Where does the boundary lie? These are more questions to be explored in the development of the communication to the public right, increasingly the organising principle of copyright in the digital domain.