Retransmission of broadcast signals by cable in hotels - An analysis of the EU CabSat-Directive in light of a pending CJEU case

It is well-known that the Court of Justice of the European Union (CJEU) has played a key role in giving the EU acquis in the area of intellectual property law the relevance it has today. Especially the series of judgments clarifying the broad notion of “communication to the public” as laid down in form of an exclusive right in the so-called InfoSoc Directive 2001/29/EC with which the position of authors was significantly reinforced is an extensively debated and commented outcome. Until the recent addition of the DSM Copyright-Directive (EU) 2019/790 to the EU acquis with its inclusion of a press publisher’s right and increased obligations of platforms when they allow users to upload potentially copyrighted material, the InfoSoc Directive of 2001 has always been in the centre of attention. In the shadow of that Directive stands the so-called CabSat Directive 93/83/EEC , originally created in 1993 as supplementary action in order to ensure the realization of an EU-wide single market for television broadcasting which was initiated by the Television without Frontiers-Directive (TwFD) 89/552/EEC . The aim of the CabSat Directive was and remains the goal of ensuring that in the use of satellite distribution of broadcast programmes as well as retransmission by cable, rightholders’ positions are safeguarded and procedures respected that allow for a smooth realization of such use of broadcast signals. This Directive has only rarely been subject of preliminary reference requests by national courts. This makes a currently pending case highly relevant and gives the Court a unique opportunity to complement its case law on communication to the public for the specific aspect of retransmission of broadcasting signals: It has already in the ground-breaking decision of SGAE in 2006 clarified very firmly that the forwarding of broadcast signals – television programmes, notabene – by hotel operators to the individual rooms of a hotel and thereby offering the guests the possibility of individual access to the broadcast programmes constitutes a communication to the public. For such communication an authorization by the author(s) is needed and without such authorization it violates the exclusive right as laid down in Art. 3(1) InfoSoc Directive. While this has been settled concerning authors, the pending case of C-716/20 concerns exactly the same setup – a hotel operator picking up a satellite signal and disseminating it via cable to the hotel rooms – except that this time the questions to the court are asked through the lens of the CabSat Directive and the legal position of broadcasters vis-à-vis the hotel operators as provided for by the specific national law which transposed EU law. This contribution will therefore first explain the notion of ‘cable retransmission’ and in which parts of EU law it is laid down or referred to (II.). It will then give a more detailed look at the relevant provisions of the CabSat Directive and other related secondary law which establishes the framework for questions of cable retransmission and communication to the public (III.). Further, the case law of the CJEU will be analysed in order to identify those judgments that contribute to the clarification of the open question whether a retransmission by cable of a broadcast programme by hotel operators falls under the notion of cable retransmission as presented (IV.). As the actual question has not been answered by the Court in its jurisprudence so far, the main aspects of the pending preliminary proceedings will be explained without going into the details of the national proceedings of the previous instances, before the Portuguese Supremo Tribunal de Justiça (Supreme Court) decided to stay the proceedings and request from the CJEU a clarification of the EU law-related aspects. The criteria as developed will show – when applied to the case at hand – that the hotel operator needs to be qualified as an operator of a cable network conducting a cable retransmission (V.). Finally, in a concluding section the relevance of the outcome of this case will be discussed (VI.)