Cable transmission, not retransmission: Telenet prevails

On 30 September 2016, the Belgian Court of Cassation decided to partly annul the Court of Appeal of Antwerp’s decision of 4 February 2013 in which the direct injection of television programmes into a cable, in the absence of a ‘primary transmission’, had been wrongly considered to be an act of retransmission via cable under European copyright law.

Telenet, via subsidiaries, offers telephone services, broadband internet and television services via cable in the Belgian market. Collective rights management organizations in Belgium (including Agicoa (Belgium), BAVP, Sabam and SACD) then claimed royalties (above any compensation paid by broadcasting organizations) for the use of the works of the copyright holders, more specifically for the (analogue and digital) simulcasting of television programmes and the direct injection of the television programmes into the cable connection. Telenet decided to bring an action against the collective rights management organizations, asking the court for a declaration that it did not infringe any copyright.

On the one hand, both the Court of First Instance and subsequently the Court of Appeal upheld that, in the case of simultaneous (analogue and digital) broadcasting (‘simulcasting’) via cable, there is only one act of communication. The Court of Appeal, however, decided to reform the Court of First Instance’s decision on the aspect of the direct injection via cable. Its reasoning was somewhat polluted. It first argued that the signals via the ‘direct injection’ technique were made available only to Telenet (the distributor), and not to a public, and that there was in that case only a primary transmission. Subsequently, somehow, it decided to qualify the direct injection as an autonomous act of cable retransmission under article 52 of the Belgian Copyright Law, reaching a ‘new public’.

The Court of Cassation in its turn, denying a request for a preliminary ruling, by applying the jurisprudence of the European Court of Justice (“ECJ”) in its SBS Belgium v. Sabam case (C-325/14) rightly annulled the Court of Appeal’s decision in favour of Telenet. It held that there is only one transmission (‘a primary broadcast’) in this case and that, therefore, there can be no (cable) retransmission. In that way it confirmed the Court of First Instance’s decision, which had also stated that there was only one (primary) transmission (via the direct injection technique). As a result, Telenet will not have to pay retransmission royalties to rights holders (via the intervention of collective rights management organizations).

Despite numerous and well-motivated decisions of the ECJ in relation to the right of communication to the public on the one hand and the right of communication to the public via satellite and cable retransmission on the other hand, national courts still face difficulties in applying the law. Fortunately, the Belgian Court of Cassation got it right this time. It remains to be seen, however, how the courts in other countries will deal with these kind of / similar issues.

Alexis Hallemans, Associate Partner, alexis.hallemans@cms-db.com

Simon-Pierre Pype, Junior Associate, simonpierre.pype@cms-db.com