|Cables? They are Billy's speciality|
- The concept of 'access to cable' [used in Article 9 of the InfoSoc Directive] is different from that of ‘retransmission by cable’ [used in s73 CDPA], since only the latter concept designates, within the framework of the InfoSoc Directve, the transmission of audiovisual content.
- In line with what Advocate General (AG) Saugmandsgaard Øe noted at para 55 of his Opinion, Article 1(2)(c) of the InfoSoc Directive deals expressly with ‘cable retransmission’, and excludes from the scope of the directive the provisions of EU law [notably the SatCab Directive, which the Court deemed not relevant to the background national proceedings: see para 21] governing that question.
- Again unsurprisingly [the CJEU has consistently stressed this, including in the first TVCatchup case], the principal objective of the InfoSoc Directive is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public.
It follows that - as a rule - a retransmission by cable is subject to the authorisation of the relevant rightholder [the Court speaks of 'author' at para 24], unless this activity falls within one of the exceptions contained within the exhaustive list in Article 5 of the InfoSoc Directive [and, I would add, the relevant Member State whose law is applicable has transposed such exception into its own legal system]. This is not the case here.
|Access is not the |
same as re-transmission
However, as mentioned at the beginning of this post, this decision is yet another reminder that greater harmonisation of Member States’ copyright laws appears to be a primary concern for the CJEU. The direct implication of this is that the Court is very vigilant when interpreting provisions in the relevant directives – notably the InfoSoc Directive – and not particularly keen in tolerating national solutions that go astray from what the relevant body of EU legislation allows Member States to do.