EU Judgment in Case C-290/21 AKM on the provision of satellite packages in Austria

Thursday 25th May 2023

Judgment in Case C-290/21 AKM (Provision of Satellite packages in Austria)

(Intellectual Property)

The applicant in the main proceedings, Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger Reg. Gen. mbH (AKM), is an Austrian copyright collective management society. It is the holder of an exploitation licence for musical works, entitling it to exercise, on a fiduciary basis, broadcasting rights on Austrian territory.

Canal+ Sàrl, established in Luxembourg, is a television operator, which offers, via satellite, packages of coded programmes of several broadcasting organisations located in other Member States in high definition or standard definition in Austria. The introduction of each of the programme-carrying satellite signals into the communication chain (uplink) is mostly carried out by these broadcasters themselves, sometimes by Canal+, in these other Member States.

A beam containing the entire programme in high definition quality and additional information, such as audio and subtitle data, is transmitted. After being “bounced” by the satellite, this beam is picked up by satellite reception facilities within a coverage area. This beam is then split and the user can access each of the programmes on a terminal by means of a decoder. The satellite packages provided by Canal+ contain both pay and free TV programmes. In contrast to the pay-TV programmes, the latter are not encrypted and can be received by anyone in standard quality in Austria.

Taking the view that Canal+ was infringing the rights which it administers, AKM brought an action before the Austrian courts seeking, in substance, the cessation of the broadcasting by Canal+ of the satellite signals in Austria and the payment of compensation, arguing that, in the Member States in which the act of broadcasting or communicating to the public by satellite takes place, no authorisation had been obtained for such exploitation and that it had not authorised that broadcasting in Austria.

AKM considered that the broadcast served an additional category of Canal+ customers which would not be covered by the authorisations obtained for the communication to the public of the works in question by satellite and that Canal+ should have obtained authorisation from AKM to broadcast the satellite signals in Austria.

The Oberster Gerichshof (Supreme Court, Austria), hearing appeals on points of law against a judgment of the Oberlandesgericht Wien (Higher Regional Court, Vienna), which had held, inter alia, that the satellite packages in question reached a new audience, that is to say, an audience different from that targeted by the free-to-air transmissions of the broadcasting operators, decided to refer a question to the Court of Justice for a preliminary ruling on the interpretation of Directive 93/83 and, in particular, Article 1(2)(b) thereof.

According to that article, communication to the public by satellite takes place only in the Member State in which, under the control and responsibility of the broadcasting organisation, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and returning to earth.

Background Documents C-290/21