When “retransmission” is a transmission without initial broadcast for copyright clearance purposes

The case concerns the question of retransmission of broadcasts, cf. section 34 of the Copyright Act, when a cable company distributes television channels, which it receives in a closed electronic transmission, but which are broadcast simultaneously via satellite and the terrestrial network.

Norwaco is an umbrella organisation for the collecting societies, which was established in 1983. Norwaco collects remuneration on behalf of Norwegian and foreign rightholders for retransmission of copyrighted works in TV programmes, among other things. Norwaco has approval pursuant to section 38a of the Copyright Act to collect such remuneration.

Get AS is a distributor of cable services and offers TV broadcasts, over the cable network, among other things. The company does not produce the contents of the TV broadcasts itself, but gains access to channels from producers of TV channels. Get AS then puts together channel packages that are offered to subscribers. Among the channels the company offers are TVNorge, which is produced by SBS. The TVNorge channel was originally distributed to viewers via satellite. As distribution capabilities developed in Norway, other platforms were also used. Today, TV channels TVNorge, FEM, MAX and VOX are broadcast via various distribution companies; over the terrestrial network, cable and satellite.

The claim in this case is related to retransmission of music rights. Prior to 2009, Get AS retransmitted to its subscribers the encrypted, but generally available satellite broadcasts by TV channel TVNorge. Get AS also received the signals for its cable broadcasts from the satellite broadcasts. From 2009, the way in which Get AS received the signals for TVNorge was changed. The initiative for the change came from TVNorge AS, who wanted to improve the quality and availability to the viewers. Instead of receiving the signals from the same satellite broadcast that satellite viewers of TVNorge received, the signals were transmitted from TVNorge AS to Get AS in an encrypted fibre connection. Distribution via satellite and the terrestrial network continued as before.

Following the technical change, Get AS stopped clearing with Norwaco for retransmission of TV channels TVNorge. Get AS believed that they no longer retransmitted the channels as set forth in section 34 of the Copyright Act, and therefore that no remuneration was to be paid to Norwaco.

On 23 November 2012, Get AS issued a notice of proceedings before Oslo District Court against Norwaco with a statement of claim that Get AS is entitled to distribute TV channel TVNorge. Norwaco filed a counterclaim against Get AS and argued that Get AS must pay compensation for retransmission of TV channels TVNorge.

On 31 December 2013, Oslo District Court dismissed Norwaco’s claim. Norwaco appealed to Borgarting Court of Appeal, which also dismissed Norwaco’s appeal. Under appellate court decision Norwaco shall pay Get AS costs for the Court of Appeal hearing of the case amounting to 987.000 Norwegian kroner, Norwaco also shall pay Get AS costs for the District Court hearing of the case amounting to 1,814,620 Norwegian kroner. Norwaco has appealed to the Supreme Court.

Norwaco has mainly argued that the author has the exclusive right to dispose of own works. This exclusive right also includes the right to decide on retransmission of works that have been broadcast. Therefore, retransmission must be cleared.

Communication of TV channels to the public is retransmission of works when the transmission of the works is conducted by a different organisation than the original broadcaster and the same works are broadcast simultaneously. This does not include mere technical assistance to the transmission company. The activity Get AS engages in goes clearly beyond mere technical assistance to television companies. Get AS groups together channels that are offered to subscribers. Get AS must therefore obtain clearance from Norwaco to retransmit SBS’ programmes, cf. section 34 of the Copyright Act.

Section 34 of the Copyright Act deals with retransmission of works. It is the copyright to the works that requires clearance, not the signals as such. Communication through a closed signal transmission is retransmission when the same programmes are broadcast simultaneously. It follows from the legislative history of the provision that the decisive factor is not whether it is the same physical signal broadcast that is retransmitted via cable. The technical change made between Get AS and SBS cannot have any bearing on the rightholders’ claims pursuant to section 34 of the Copyright Act. Communication of programmes is still retransmission of works, regardless of how the programmes have been transmitted to Get AS.

The respondent, Get AS, has briefly argued that retransmission assumes that there has been a prior broadcast of the transmission. Broadcasting via Get AS’ cable network is part of SBS mainstream broadcasting operations and therefore, Get AS does not retransmit TV channel TVNorge. There are therefore no grounds for Norwaco’s claim regarding clearance and remuneration pursuant to section 34 of the Copyright Act.

The author manages his own rights, both toward the primary broadcaster and the party who retransmits. Section 34 of the Copyright Act implies a limitation in the author’s exclusive rights. Such limitations must remain within Norway’s obligations under international law regarding protection of the author’s rights. The interpretation Norwaco uses as grounds for its claim will be contrary to Article 11bis of the Berne Convention. Get AS makes intellectual work available to the public and is obliged to clear this pursuant to section 2 of the Copyright Act. Under the agreement between Get AS and SBS, as broadcaster, it is SBS that must ensure all the necessary clearances. There is no need for an arrangement with an extended collective licence from Norweco when the broadcaster can and wants to clear the rights directly with the rightholder.

SBS broadcasts its channels on a variety of platforms; the terrestrial network, via satellite, cable and over the Internet. The infrastructure is owned and operated by other companies than SBS. These platforms are all primary. There is therefore no basis for arguing that Get AS’ distribution is a retransmission of a broadcast that originally takes place on a different platform.

As Get AS now receives the channels encrypted over the fibre network, there is no retransmission of the same signals that have been broadcast. Therefore, the broadcast from Get AS does not come under section 34 of the Copyright Act.

The court has concluded (original language) that the appeal must be dismissed. Section 2, subsection 1 of the Copyright Act states that the author has the exclusive right to dispose of intellectual work by “making it available to the public”, among other things. Subsection 4 states that “public communication also includes broadcasting or other transmission by wire or wireless means to the public”. There is no doubt – and the parties also agree – that Get AS’ distribution of TV channels involves making the intellectual works in the TV broadcasts “available to the public”, cf. section 2 of the Copyright Act. There is therefore no dispute that Get AS’ transmissions must be cleared.

Get AS argues that they do not “retransmit” in the legal sense, because they do not retransmit signals that are transmitted to the public, but instead receive the signals for retransmission encrypted over fibre optic cable. The wording of the provision does not state that how the party who retransmits has received the signals is a decisive factor. However, the requirement of “simultaneous and unaltered retransmission” may indicate that it is the broadcast transmission and not a special transmission that must be redistributed.

The signals that are retransmitted in this case have not been obtained from a broadcast that has been open to the public, and therefore can be identified as “primary broadcasting” as the provision relating to retransmission assumes.

The viewers in Norway are the target group for the channels. That the channels are produced for the Norwegian market makes it likely that the broadcasting organisation – SBS – is responsible for clearance of the copyright on behalf of those who are responsible for the distribution that the broadcaster initiates. However, there is no doubt that insofar as Get AS distributes TV channels containing protected works, this requires that Get AS ensures that their use is cleared. In the agreements between SBS and Get AS, it is assumed that SBS shall clear all the copyrights for the transmission by cable. Get AS has an independent responsibility and will be liable to the authors if SBS does not fulfil this obligation.