1709 Blog: for all the copyright community

Thursday, 26 November 2015

Copyright Royalty Board reference cheers indie labels

The U.S. Register of Copyrights has delivered her Memorandum Opinion in response to a “novel material question of law” referred to her on September 11, 2015 by the Copyright Royalty Board (CRB) who wll be setting toyalty rates for the period of 2016-2020. 

The question asked whether the Board would be prohibited by the governing statutes from setting rates and terms that may differ across different types of categories of licensors – in essence, whether they can set statutory webcasting royalty rates that vary depending on the identity or category of the record company that owns the recordings performed by a webcaster.

The Register of Copyrights concluded that the question was not properly referred to the Copyright Office for consideration, and therefore she could not offer an opinion on the question of differentiated rates for licensors; BUT and its a big 'but', the Register further stated that because all participants in the Webcasting IV proceeding had assumed a non-differentiated rate structure for licensors, that is the only reasonable outcome in the Web IV proceeding, effectively dismissing calls from the major record labels, Sony and Universal, for a variable royalty rate for internet radio play in their favour, a prospect that had horrified the indie labels

Pandora supports a uniform rate structure for all musicians, said Dave Grimaldi, director of public affairs at Pandora, adding: “We look forward to the certainty the CRB's December decision will bring to the music industry, particularly as Pandora continues to improve our partnerships with music makers.” This next big statutory licensing decision in the US for the 2016-2020 per-stream rate, the Web IV rate,  is expected in December.

More here

Wednesday, 25 November 2015

Cox on the back foot in claim by BMG

A District Court in America has made a potentially devastating ruling for Internet service Providers and possible online platforms, ruling that the current U.S. DMCA legislation does not, on the facts of a case brought by two music publishers and Rightscorp against Cox Communications, shield the major Internet provider from liability for illegal music downloading by its subscribers.

Two music companies, BMG Rights Management LLC and Round Hill Music LP, filed a lawsuit against Cox in 2014, claiming that Cox, which provides Internet service to millions of people, deliberately turned a blind eye to illegal downloading by its subscribers stating: “Cox has repeatedly refused to terminate the accounts of repeat infringers“and ”The reason that Cox does not terminate these subscribers and account holders is obvious—it would cause Cox to lose revenue.” BMG and Round Hill claimed that Rightscorp Inc had informed Cox  of “hundreds” of repeat infringers. They allege that Cox had failed to ​do anything in regard to these customers and has thus given up its "safe harbor" protection under the provisions of the DMCA. Rightscorp's data allows them to identify "repeat infringers" that use BitTorrent to download large quantities of music. Rightscorp insists that ISPs like Cox must respond when it identifies those users, and forward its notices demanding a setlement of $20 per song or else face a copyright lawsuit. BMG and Round Hill were seeking damages for contributory and vicarious copyright infringement and a judicial order requiring Cox to "promptly forward 
plaintiffs' infringement notices to their subscribers."

Cox Communications, the third largest cable TV company in the U.S., but was the one major player absent from the deal struck between the content owners and service providers back in 2011 (the Copyright Alert System) which did involved the likes of Cablevision, Comcast, Time Warner and Verizon.

Cox responded In court papers stating it had no “actual” knowledge of any specific infringements, and that the plaintiffs had no evidence of Cox account holders personally infringing through their Cox accounts.

The case is now expected to go trial next week, to determine whether Cox should be held liable for its alleged role in any infringement, and, if so, how much it should have to pay. A full opinion is also expected. It is also likely that Round Hill will drop out of the claim, after the ruling cast doubt on their standing as a plaintiff. 

In the order, Judge Liam O’Grady agreed with the plaintiffs, saying that Cox essentially failed to set up and enforce a “repeat-infringer” policy - a decision that could potentially open a floodgate for new claims against the cable industry and ISP by content owners: “This ruling is potentially very concerning to every user of the Internet, who may stand substantially less protected than before,” said Charles Duan, a staff attorney with Public Knowledge, the Washington, D.C., group that advocates for greater consumer access to the Internet and other technologies. The Judge held:  "There is no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy" as required by the law. 

The Judge refused to allow the Electronic Frontier Foundation and Public Knowledge to file an amicus brief supporting Cox saying (according to TechDirt): "It adds absolutely nothing helpful at all" and "It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it's completely hysterical."

In a rebuttal to BMG's accusations, Cox described Rightscorp as selling "shady services" to copyright owners. Rightscorp "shakes down ISP customers for money without regard to actual liability, and it tries to enlist ISPs in its scheme," Cox lawyers write. The ISP doesn't act on Rightscorp's notices because they're "wrongful" and inadequate, but Rightscorp kept dumping "thousands of notices per day" on the ISP. When Cox wouldn't get on board, Rightscorp and its biggest client sued. "This suit is Rightscorp's retribution, with Plaintiffs’ complicity, for Cox’s refusal to participate in Rightscorp’s scheme," state Cox lawyers.

Cox said it  "works well with many copyright holders," but considered Rightscorp notices "improper, as involving extortion and blackmail." In a mostly redacted section of its legal brief, Cox describes its system of "graduated response" for responding to allegations of copyright infringement. Cox notes that account termination is "not the industry norm" but goes on to emphasize that it does, in fact, terminate some account holders because of copyright complaints. But "the decision requires discretion," since some subscribers don't understand what gave rise to copyright complaints and may need help keeping their Internet access secure, or removing malware, before the company takes the "extreme measure of termination."

On the other hand ........ Comcast's practice of injecting copyright warners into the video streams of customers who may be illegally watching content has drawn renewed criticism from Internet pundits who say the company should leave its users' traffic alone. Privacy and security fears have been raised by San Francisco developer Jarred Sumner who published a code for the Comcast alert banner on his GitHub page.  Drawing interest from ZDNet and others, Sumner described Comcast's injection of the warning banners as a "man-in-the-middle" attack in which the MSO intercepts traffic between the user and their servers. 

http://arstechnica.com/tech-policy/2015/11/with-a-week-to-go-before-rightscorp-trial-cox-loses-key-dmca-motion/ and  http://www.wsj.com/articles/judge-rules-against-cox-communications-in-copyright-case-1448404833

Tuesday, 24 November 2015

The CopyKat

Minneapolis attorney Paul Hansmeier, who is most known to this blog for being associated with the Prenda Law 'trolling' saga, is facing suspension or disbarment. Minnesota's Office of Lawyers Professional Responsibility has now filed a petition with the state Supreme Court seeking disbarment or "otherwise appropriate discipline," citing Hansmeier's "unprofessional conduct." In 2013, Hansmeier, along with Chicago attorneys John Steele and Paul Duffy, filed multiple 'John Doe' copyright infringement claims, and faced scathing criticism from U.S. District Judge Otis Wright II, other federal judges and the US Court of Appeals for the 7th Circuit. Reports say Hansmeier remains an active civil litigation attorney. His solo practice -- a Minneapolis firm called Class Justice PLLC -- consists wholly of suing businesses that do not comply with disability access laws. Hansmeier's attorney, Eric Cooperstein, told reporters that they look forward to presenting their side of the case.

Rocky P. Ouprasith, who operated the website RockDizMusic.com website between May 2011 to October 2014 has been sentenced to three years in prison. Ouprasithhad  admitted obtaining copies of copyrighted songs and albums from online sources and encouraging others to upload music to the website. Court documents say the market value of Ouprasith's illegally obtained material was more than $6 million. Ouprasith was sentenced to serve 36 months in prison in the US. Chief U.S. District Judge Rebecca Beach Smith of the Eastern District of Virginia also sentenced Ouprasith to serve two years of supervised release and was ordered to forfeit $50,851.05 and pay $48,288.62 in restitution. Brad Buckles, EVP of Anti-Piracy at RIAA, said: “We congratulate the Department of Justice and Homeland Security Investigations and thank them for their diligence and hard work to bring to justice those who cause millions of dollars in damage to music creators" adding  “This sentence should send a message that operating a flagrantly illegal business that steals from others by engaging in criminal activity online has real consequences.” Indeed.

'YouTube sensation' CassetteBoy have been talking about copyright implications of the recent changes in United Kingdom coyright law and the new exception for parody at an event at Bournemouth University. The pair, whose 2014 'mash up' of David Cameron's speeches featured in their 'Conference Rap' has been seen by more than 6 milllion people, said: "We were infringing copyright for 20 years before the law changed, and never dreamt that our work would ever be legalised. The change in the law has had a huge impact on the work we've been able to do, and we're very happy to be able to talk about it and share our experiences." The event  was organised by the Centre for Intellectual Property and Policy Management. Co-director for the Centre and associate professor in law, Dr Dinusha Mendis, told the Bournemouth Daily Echo : “The reforms to copyright law which came about last year were certainly seen as a welcome change and much needed in a digital world dominated by user-generated content and collaborative creators.

The World Intellectual Property Organization Deputy Director General responsible for copyright, Anne Leer, has decided to resign her post, citing personal reasons.

YouTube has set up a $1 million fund to support video creators who have been targeted in Digital Millennium Copyright Act (DMCA) takedowns. The company’s copyright legal director Fred von Lohmann confirmed the new funding in a blog post saying that that  whilst YouTube will only provide its legal support “to a handful of videos,”  who would be arguing 'fair use' for the posting, the company will cover the cost of any copyright lawsuits brought against its creators and adding “We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it,” Lohmann himself is a former Electronic Frontier Foundation (EFF) staffer who have previously argued that YouTube is not doing enough to protect the so-called “fair use” provision. 

And TorrentFreak tells us that YouTube parent company Google is facing "a never-ending flood" of DMCA takedown requests from copyright holders, breaking records. The company currently processes a record breaking 1,500 links to "pirate" pages from its search results every minute, which is a 100% increase compared to last year.

Monday, 23 November 2015

Meeting the Legal Needs of the Creative Industries: an intensive course

"Copyright Law: Meeting the Legal Needs of the Creative Industries in the 21st Century" is the title of a forthcoming course at University College London (UCL). Running from Monday 18 to Friday 22 January 2016, its aim is to help young practitioners, advising in accordance with current statutes and existing contracts, to look to the future and explore copyright and related laws in a digital context together with imminent legal developments.

The Faculty has a strong 1709 Blog flavour to it.  Apart from the fact that the course convenor is one of this blog's founder members, Amanda Harcourt, the speakers include both Eleonora Rosati (Southampton University and e-LAWnora) and John Enser (Olswang LLP). A full list of speakers can be accessed along with the course content and brochure by clicking here.

Do please note the following guidance:
As the UCL Law Faculty is currently virtually “homeless” because of building works, the Faculty will be securing an outside venue for this conference. Choice of venue will, naturally, be dependent upon numbers. As a consequence applications for entry from attendees will close on Wednesday 16 December 2015.

Sunday, 22 November 2015

Some recent copyright books

Here are a couple of recent copyright publications that may be of interest to readers of the 1709 Blog.


The first is Concepts of Music and Copyright: How Music Perceives Itself and How Copyright Perceives Music, edited by lawyer-musicologist Andreas Rahmatian (School of Law,l University of Glasgow).  This is the second book Andreas has published with Edward Elgar Publishing in recent times, following the well-received Copyright and Creativity: The Making of Property Rights in Creative Works in 2011 (details here).  According to the web-blurb:
Copyright specialists have often focused on the exploitation of copyright of music and on infringement, but not on the question of how copyright conceptualises music [this blogger is not surprised. While trade mark law in Europe makes specific reference to conceptual meaning and patent law focuses on the expression in concrete form of the abstraction of the invention, copyright law has made fewer demands for conceptualisation on the part of its practitioners]. This highly topical volume brings together specialists in music, musicology and copyright law, providing a genuinely interdisciplinary research approach. It compares and contrasts the concepts of copyright law with those of music and musical performance. Several tensions emerge between the ideas of music as a living art and of the musical work as a basis for copyright protection.

The expert contributors discuss the notions of the musical work, performance, originality, authorship in music and in copyright, and co-ownership from the disciplinary perspectives of music, musicology and copyright law. The book also examines the role of the Musicians’ Union in the evolution of performers’ rights in UK copyright law, and, in an empirical study, the transaction costs theory for notice-and-takedown regimes in relation to songs uploaded on YouTube.

This unique study offers an interdisciplinary perspective for academics, policymakers and legal practitioners seeking a state-of-the-art understanding of music and copyright law.
The cast of contributors really is multidisciplinary: it includes John Butt (Gardiner Professor of Music at Andreas's university) and his colleagues Bjorne Heile, Martin Parker Dixon and John Williamson, plus law academics Charlotte Waelde and Alison Firth and the engagingly persuasive polymath Paul Heald. This is a truly enjoyable and accessible music even for non-musicologists, and will be particularly interesting to admirers of the late Duke Ellington

Details: xiv + 231 pp.  Hardback (£75, but only £67.50 if purchased online from the publisher). ISBN: 978 1 78347 818 7.  More details from the book's website here.


The second new title is Understanding Copyright: Intellectual Property in the Digital Age, penned by the University of Leeds triumvirate of Bethany Klein, Giles Moss and Lee Edwards. This is not a law book as such: all three authors hail from their university's School of Media and Communication, from which it will be swiftly intuited that this is more a book about what copyright allows and doesn't allow in the modern digital climate than about the procedural niceties, the splitting of jurisprudential hairs and the sanctification of time-worn precedents.  It is also a book about policy and politics. Issues and arguments are summoned from both sides of the Atlantic and the copyright which is under the authors' scrutiny is a sort of generalised, non-jurisdiction-specific law -- a slight disappointment to those who think that copyright behaves in quite different ways in the United States from the rest of the world and that the policy debate there is both quite different and a good deal more advanced than its stodge-bound European equivalent.

This is what the book's web-blurb has to say about it:
Digital technology has forever changed the way media is created, accessed, shared and regulated, raising serious questions about copyright for artists and fans, media companies and internet intermediaries, activists and governments. Taking a rounded view of the debates that have emerged over copyright in the digital age, this book:
  • Looks across a broad range of industries including music, television and film to consider issues of media power and policy.
  • Features engaging examples that have taken centre stage in the copyright debate, including high profile legal cases against Napster and The Pirate Bay, anti-piracy campaigns, the Creative Commons movement, and public protests against the expansion of copyright enforcement.
  • Considers both the dominant voices, such as industry associations, and those who struggle to be heard, including ordinary media users, drawing on important studies into copyright from around the world.
  • Offering media students and scholars a comprehensive overview of the contemporary issues surrounding intellectual property through the struggle over copyright, Understanding Copyright explores why disagreement is rife and how the policy-making process might accommodate a wider range of views.
From the words "Considers both the dominant voices, such as industry associations, and those who struggle to be heard, including ordinary media users" one can appreciate that this is a book with an attitude.  Those who struggle to be heard do not presumably include professional musicians or the large number of authors whose low levels of copyright-dependent income are recorded by organs such as the Musicians Union and the Authors' Licensing and Collecting Society, but who don't quite make it into this slim volume.  Maybe next time?

Details: vii + 152 pp  Soft covers. ISBN 9781446285848. Price £23.99. More details from the book's website here.

New Music Put the Seal on US Collective Management

Matthew Billy, who hosts a podcasts called Between the Liner Notes, contacted the 1709 Blog to inform us about a podcast episode on the turf battles between BMI and ASCAP.  Explains Matthew:
"It details the events that led up to the great radio boycott of 1941 and how that event impacted the development of American popular music for the rest of the century. It dives into the history of the 1909 Copyright Act and the resulting Herbert v Shanley Co. Supreme Court case. It also makes clear what the differences between ASCAP and BMI are". 
Fellow copyright enthusiast and 1709 founder-blogger Amanda Harcourt kindly listened to the podcast and has written the following review:
Bills, bars and Bourget 
If I had a pound (even a Euro) for every time I have told students the story of the French composer (Ernest Bourget) arguing with the patron of the café concert Ambassadeurs over his bill (as opposed to his public performance fees) and the consequent founding of collective management organisation SACEM, I wouldn’t need to work. It was fun to learn that ASCAP’s foundation was similarly triggered by a row in a bar. What is it with songwriters and composers? Spending inordinate amounts of time in bars seems to be a sine qua non for creation.

Sidebar: In the mid-1990s, the USA came full circle in this respect – restaurants and bars got their own back with the passing of the US act exempting certain shops, bars and restaurants from paying public performance fees.

There are similarities. Bourget’s music was being performed at the Paris Opera Comique when the row erupted over the bill. In parallel, , shortly after the founding of ASCAP, the American composer, Victor Herbert challenged the use of his song “Sweetheart” in the fashionable Times Square restaurant Shanleys (where Herbert was dining with Puccini). Composers should thank famed jurist Oliver Wendell Holmes who delivered the majority opinion (he did not recuse himself , which maybe, as his father made a living from copyright, he should have done). The right to be paid for public performance of a copyright work, was set, in circumstances where those supplying the music did so for profit – a condition that became a key plank in challenges to ASCAP’s desire for fees.

The podcast coverage of the 1909 Copyright Act is brief but Sharkey, a performing seal, takes centre stage in the story.

The rise of radio in the US led to case after case being brought by ASCAP, as stations sought to demonstrate they were not using music “for profit”. They also argued they were not broadcasting “music” but that “particles of the air” were being stimulated! They argued they were a “public service” and that they were helping citizens ease their “pain” by distracting them. Fortunately, we have yet to see a variation of those arguments coming from today’s streaming services. ASCAP won in lower courts and the US Supreme Court supported the lower court’s decision. Licence fees were negotiated and, reluctantly, paid by the radio stations. As the profits from radio grew, so ASCAP got bolder and at the end of the 1930s sought to double their radio licence fees.

The broadcasters looked for a way to challenge what they saw as an abuse of ASCAP’S monopoly power and found what they believed to be the society’s Achilles Heel. ASCAP membership was not open to all – the society had rules about a potential members catalogue size, value and even, whether the works were recent. Most members were white males who wrote Broadway successes or music for Hollywood. They were “skimming the cream” and there were scores (no pun intended) of US songwriters who could not collect.

BMI is born 
In 1939, at the radio industry’s annual meeting ,the broadcasters founded a new collective management organisation, Broadcast Music Inc or BMI. In what proved to be a key move for the future of music, BMI signed writers of roots music, blues, country, jazz and the aspiring writers ruled too young and unproven to belong to the ASCAP “club”.

Confident in the quality of their repertoire and sure of their hold on the public’s taste, in 1940 ASCAP put the broadcasters on notice that, if they refused the increased licence fee, they would not be permitted to broadcast the ASCAP catalogue past the end of the year. One radio station in Montana brought felony extortion charges against the President of ASCAP, and he was arrested and jailed in Arizona – though the charges were not pursued.

As the year and the argument dragged on, fewer and fewer ASCAP songs were being broadcast and by December 1940 radio bandleaders were instructed to stop playing music in the ASCAP catalogue. At midnight on December 31st 1940 the ASCAP licences expired.

To the astonishment of ASCAP the public were not as upset as ASCAP expected, the new music captured the public’s heart and revenues from the ASCAP songs plummeted . This was a row that, with a PhD in hindsight, by briefly changing the landscape of American music being broadcast, may have fundamentally influenced the country’s public taste and the longer term strength and popularity of the genres added to the BMI repertoire. Maybe even the birth of rock and roll with this change in America’s “collective musical ear”.

Enter the seal.

An animal trainer, who had lost all but two of his performing seals in a devastating fire, opened a nightclub in Kingston, New York state. But by the time of the radio boycott he was determined to re-establish himself in the work he loved and built a large seal training facility – a Seal College. The scout for talented “pupils” began and Sharkey was discovered. He was an intelligent pinniped, was trained and learned to play a homemade instrument. Guided by a conductor, Sharkey pressed levers to create the musical notes and “Where the River Shannon Flows” became his standout performance. It was an ASCAP tune. On a national tour in 1941 Sharkey was booked to perform on a radio station in New Orleans. On March 5th, with the boycott still in place, the station contacted the ASCAP lawyers asking for an exception. They refused and the press, instead of the crowd, went wild.

The public outcry that had failed to materialise with the boycott now kicked in over Sharkey the seal and his heartless Louisiana legal ban. The radio boycott endured for 10 months and by November 1st 1941 a new ASCAP national radio rate was agreed, nearly identical to that which had applied before the radios went silent on ASCAP’s repertoire. But it was 1949 before Sharkey was completely exonerated. Sharkey finally got his chance to perform on the networked Ed Sullivan Show, juggling, playing Frisbee and…..performing “Where the River Shannon Flows”.

The podcast goes on to explore the flawed membership policies of both societies in a fast changing music landscape. It highlights the link between broadcasters, record labels and the BMI repertoire and ASCAP’S misguided attempts to clip BMI’s wings on anti-trust and collusion grounds. BMI embraced African Americans as members but the integration was limited – publishers would be signed up but often it was left to the publishers’ discretion about whether the songwriters were sharing revenues. ASCAP was slow to recognise the “new” music until the 1960s when new leadership led to a change in policy that ultimately meant that ASCAP and BMI became equivalent – so-called “parity products” – save for the Board composition at the two societies.
You can listen to the podcast yourself by following this link.

Saturday, 21 November 2015

One Year on, the Private Copying Exception is now Dead

Following the CJEU's decision in the Reprobel case (reported here and here), it is perhaps not surprising that the UK Intellectual Property Office has announced that it is to abandon the UK's private-copying exception which was introduced in October 2014, and which was effectively declared illegal by the High Court in July of this year, and so had to be withdrawn

For the background to Mr Justice Green's decision in July's Judicial Review, please see this blog post. It now seems clear that the IPO were never going to find a workable scheme which met the criterion of 'fair compensation' for rights holders demanded by the EU InfoSoc Directive, while at the same time avoiding unpopular levies on consumables and hardware capable of being used to copy, in particular, music, computer games, ebooks and films, for personal use.

The Reprobel decision, although not specifically concerned with copying for private use, highlights just how complicated the levy system can become. Each EU member state has found its own way of tackling the issue, with no overall EU-wide harmonisation in prospect. It seems that the IPO and those representing rights owners could not find an existing model to achieve 'fair compensation'.

So where does this leave ordinary users in the UK? Clearly some will have been unaware of the introduction of the exception last year, and possibly a larger minority will have been unaware of the rescinding of the exception, so they will no doubt continue to format shift their personally owned music and store tracks on the cloud in blissful ignorance that that is not legal in most cases. Then there is the grey area of the legality of copies made while the exception was in force. Those users who are aware of the changes face a difficult decision: whether to make copies for personal use in contravention of the law in the reasonably sure knowledge that they won't get caught, or abide by the law and deny themselves a degree of sensible flexibility in their viewing and listening choices. One thing they will not do is go out and buy a digital replacement such as a download, for a CD or DVD they already own.

The decision not go ahead with the private copying exception will also have implications for other parts of the music distribution industry. Operators of cloud services may face pressure to amend their terms of service to reflect the new status quo, and some streaming services may be forced to tighten up their procedures to prevent users from creating multiple copies of the same download. But what also seems clear is that the music industry has won a Pyrrhic victory since whether or not it is illegal, many users will continue to make private copies of their legally owned music etc, just as they used to do in the pre-digital age. No doubt the BPI and its members will complain that they will lose revenue through this behaviour but I think it is fair to say that they will, privately, continue with their old policy of not seeking to sue or prosecute anyone for personal format shifting. To do otherwise would undoubtedly alienate the buying public and strengthen the argument that the record labels are out of touch with what music fans want. It remains to be seen how organisations such as the Featured Artists Coalition and the collecting societies will react to this latest development. Arguably it was the artists who stood to gain from the imposition of a levy on consumables etc, but even they would no doubt acknowledge that a blanket system is neither fair to consumers, in that much copying is of non-copyright material, nor does it result in a fair distribution of the proceeds to the artists and authors of the works, since there is no way to monitor which actual works have been copied.

Friday, 20 November 2015

Transmission not accessible to the public "not a communication to the public", rules court

The Court of Justice of the European Union (CJEU) gave its ruling yesterday in Case C‑325/14, SBS Belgium NV v Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM), on a reference for a preliminary ruling from the hof van beroep te Brussel (Brussels Court of Appeal, Belgium). The reference was received at the CJEU on 7 July 2014, so this ruling is quite a speedy one -- the sign of a case that the CJEU can handle with the need to break into a judicial sweat.

In short SABAM, a copyright administration society which is no stranger to litigation, represents authors in relation to the grant of permission for third party use of their copyright-protected works and in the collection of the fees for such use. SBS, a Dutch-language commercial broadcasting organisation, makes and markets TV programmes. as a broadcaster SBS runs several private commercial transmitters in Belgium. Its programme schedule includes both programmes which it has produced itself and those it gets from third parties.

SBS broadcasts its programmes exclusively by "direct injection", a two-step process by which programme-carrying signals travel ‘point to point’ via a private line to its distributors such as Belgacom, Telenet and TV Vlaanderen. At that stage, those signals cannot be received by the general public. The distributors then send the signals (encrypted or otherwise) to subscribers who view them on their TV sets, sometimes with the aid of a decoder made available by the distributor. Depending on the distributor, those signals are transmitted by satellite (TV Vlaanderen), cable (Telenet) or xDSL line (Belgacom). 8

Said SABAM, as a broadcasting organisation SBS makes a communication to the public within the meaning of Article 3 of Directive 2001/29 [the InfoSec Directive] by transmitting via the direct injection method. Accordingly SBS needs the authorisation of the copyright holders is required.  No way, said SBS: only distributors and other organisations of the same type make a communication to the relevant public in relation to copyright.

The rechtbank van koophandel te Brussel (Commercial Court, Brussels) allowed SABAM’s application and ordered SBS to pay close to a million euros in copyright fees for 2009. SBS appealed to the referring court, which decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Does a broadcasting organisation which transmits its programmes exclusively via the technique of direct injection — that is to say, a two-step process in which it transmits its programme-carrying signals in an encrypted form via satellite, a fibre-optic connection or another means of transmission to distributors (satellite, cable or xDSL-line), without the signals being accessible to the public during, or as a result of, that transmission, and in which the distributors then send the signals to their subscribers so that the latter may view the programmes — make a communication to the public within the meaning of Article 3 of Directive 2001/29?’
Yesterday the Ninth Chamber of the CJEU ruled thus (with the main message in bold):
Article 3(1) of Directive 2001/29 ... must be interpreted as meaning that a broadcasting organisation does not carry out an act of communication to the public, within the meaning of that provision, when it transmits its programme-carrying signals exclusively to signal distributors without those signals being accessible to the public during, and as a result of that transmission, those distributors then sending those signals to their respective subscribers so that they may watch those programmes, unless the intervention of the distributors in question is just a technical means, which it is for the national court to ascertain.
To quote the CJEU's own words:
"21 ... it is apparent from the Court’s case-law that the term ‘public’ refers to an indeterminate number of recipients, potential television viewers, and implies, moreover, a fairly large number of persons (see, to that effect, judgments in SGAE, C‑306/05, EU:C:2006:764, paragraphs 37 and 38, and ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 32).

22 However, in a situation such as that before the court in the main proceedings, as is clear from the question referred for a preliminary ruling, the broadcasting organisation in question transmits the programme-carrying signals to specified individual distributors without potential viewers being able to have access to those signals.

23 Consequently, the works transmitted by the broadcasting organisation, such as the organisation in the main proceedings, are communicated not to the ‘public’, within the meaning of Article 3(1) of Directive 2001/29, but to specified individual professionals.

24 Given the cumulative nature, referred to in paragraph 15 of this judgment, of the two criteria for a communication to the public, where the condition that copyrighted [this blogger does hope that this Americanism, inappropriate for works which are automatically protected by copyright without any need for formalities, will not catch on in Europe] works must be communicated to a public is not satisfied, the transmissions made by a broadcasting organisation, such as that in the main proceedings, does not, in principle, come within the definition of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29".
Fellow blogger Eleonora's more detailed analysis of this somewhat sparse 34-paragraph decision can be found on the IPKat here.