Case C-416/12, Wikom Elektrik – can a broadcasting company stop a communication to the public by cable of their broadcast?

For the purposes of Article 3(1) of the InfoSoc Directive 2001/29/EC, an author has the right to prohibit a communication to the public of his work by cable but does a broadcaster have such a right in respect of their broadcasts?

Facts
In the surroundings of Bernau bei Berlin people can receive their television and radio programmes from wireless broadcasts. Some residents can receive these broadcasts by cable. The claimant, Wikom Elektrik, runs a broadband cable connection service through which it rebroadcasts live television and radio programmes that can already be received through the ether.

Wikom Elektrik’s networks correspond to German network standards Netzebene 3 and 4. As a result, Wikom Elektrik looks after the receiving equipment for about 9000 residential homes (Netzebene 4). It also runs two cable head-stations for networks connecting between 200 to more than 8000 homes (Netzebene 3). Consequently, the programmes which end-users receive are in a private setting, such as in a family circle.

The defendant, VG Media, is the collecting society for private television and radio stations based in Berlin and collects the monies for copyright and neighbouring rights relating to the analogue and digital retransmission of programs distributed terrestrially or by satellite.

A dispute arose between VG Media and Wikom Elektrik. Once in the courts, it turned on the issue of whether a broadcasting organisation could prohibit a communication to the public of their broadcast.

The German Supreme Court noted that neither Article 3(1) of the InfoSoc Directive nor Union law governed the answer. It set out the EU legislative framework. Article 3(2)(d) of the InfoSoc Directive grants a broadcaster the exclusive right to prohibit the making available of their broadcasts. Article 8(3) of the Rental and Lending Rights Directive (as codified in Directive 2006/115/EC) also allows the Member State to permit or prohibit the rebroadcast and the communication to the public of broadcasts by wireless means when the relevant communication occurs in places where the public does not pay an entrance fee. Further, Article 8(1) of the SatCab Directive (Directive 93/83/EEC) governs the redistribution by cable of wireless broadcasts from other Member States and allows the collecting societies to conclude individual or collective contracts with cable companies.

The German Supreme Court noted that European Union law still leaves the Member States free to decide this issue according to their national law. In that context, it mentioned Recital 16 to Directive 2006/115/EC which permits the Member States to provide for more far-reaching protection for owners of rights related to copyright than that required by the Directive in respect of broadcasting and communication to the public. Member States can thus provide an exclusive right to broadcasting organisations over the rebroadcasting of their broadcasts by cable, and the communication to the public of their broadcasts, even if the communication concerned does not happen in places which are accessible after paying an entrance fee.

However, CJEU case law does not answer the question of whether the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29/EC includes the rebroadcast by wire of a work broadcast by wireless means if: the initial broadcast can also be received by wireless means in the area of reception; the work is rebroadcast to the owner of the receiving equipment who receives the broadcast alone or in a private setting such as within a family circle; and the rebroadcast is undertaken by a company other than the initial broadcasting organisation for the purpose of making a profit? The Supreme Court tends to think that the answer to the question is yes.

And yet under in light of some of the criteria set down in the CJEU case law, a cable rebroadcast could in some circumstances constitute a mere technical means for improving the reception of the original broadcast in the reception zone – and not as a communication of the broadcast – given that the receiver receives the broadcast in the broadcasting zone, and that the broadcast work can also be received by wireless means. It is doubtful that a work which is broadcast to an owner’s receiving equipment and which is received in private, for example in a family setting, constitutes a cable rebroadcast that satisfies the requirements for a communication to the public since the works are possibly not communicated to a ‘new public’ as defined in the case law of the CJEU.

Question Referred
According to the EUR-Lex website, the German Supreme Court has asked:

1. Does the concept of communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC … include the rebroadcasting, by wire, of a broadcast work in the case where the original broadcast can also be received by wireless means in the catchment area, the work is rebroadcast to the owners of reception equipment who receive the broadcast personally or within their own private or family circles, and the rebroad­casting is carried out for profit-making purposes by a broad­casting organisation other than the original one?

Comment
Some of the legal aspects to Wikom Elektrik also arise in Case C-607/11, ITV Broadcasting – a reference made from the Chancery Division of the High Court of Justice of England and Wales on 28 November 2011 but which has not yet been heard before the CJEU.

Update
Case C-607/11, ITV Broadcasting was heard on 19 November 2012. The judgment of the Fourth Chamber is scheduled for 7 March 2013.

Update – 22 July 2013
Case C-416/12, Wikom Elektrik has been removed from the Court’s docket by an order dated 22 May 2013.