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Recently, the Supreme Court of Norway ruled that a cable TV distributor had not retransmitted broadcasts after it received encrypted content and broadcasted said content to the public. The decision in Norwaco v. Get AS (HR-2016-00562-A) potentially undermines the place of umbrella organizations and collecting societies in negotiating contracts with the producers and distributors of publicly aired content.
This case dealt with the retransmission of the music-orientated channel, TV Norge by Get AS. The defendant, a cable service distributor, does not produce original television content, but rather assembles packages of channels and offers them to subscribers. The plaintiff, Norwaco, is an umbrella organization for collecting societies in Norway, whose membership comprises music and television producers. Up until 2009, Get AS retransmitted an encrypted, but widely available, satellite broadcast from the TV channel. Norwaco cleared the rights for these channels from 2005-2009. A change in the method that TV Norge’s signals were received by Get AS occurred in that final year, whereby the signals were transmitted through an encrypted fibre connection. Previously, these signals were transmitted in the same broadcast that the viewers of TV Norge directly received. Following this switch, Get AS halted clearance with Norwaco prior to the retransmission of channels. Since the retransmission was no longer done in accordance with §34 of the Norwegian Copyright Act, the umbrella organization was owed no remuneration.
In 2012, the plaintiff issued a notice of proceedings, asserting the right to distribute TV Norge without the involvement of Norwaco. The plaintiff begged to differ, objecting that Get AS must pay up for retransmission. Oslo’s District Court and the Bogarting Court of Appeal sided with the cable service distributor, deeming that no compensation was owed to the plaintiff. The Supreme Court of Norway upheld the decision, dismissing Norwaco’s appeal and ordering it pay roughly 1 million Kroner to the defendant.
Norway’s Copyright Regime
This litigation primarily concerns §34 of Norway’s Copyright Act, which states:
“Work that is lawfully included in the broadcast may, through simultaneous and unaltered retransmission, be made available to the public when the party who retransmits meets the conditions of the extended collective license pursuant to section 36, subsection 1…The author’s exclusive right to retransmission may only be exercised through an organization that has been approved pursuant to section 38a.” (Norwaco constitutes an approved organization under this section)
In arriving at a decision, the Supreme Court also heavily considered Article 11bis of the Berne Convention, which determines that authors have the right to authorize the public broadcasting of their content, although Member States define the conditions under which these rights may be exercised.
Norwaco asserted that the rights authors are entitled to under §34 encompass an authorization of retransmission, and that retransmission must be cleared with collecting societies. Further, in applying §34, what is vital is not whether a retransmission of the same physical signal has occurred. Rather, the EU’s SatCab Directive 93/83/EEC was misinterpreted by the Court of Appeal as implying that there must be an initial broadcast of the content under clearance for the signal to be retransmitted.
Get AS countered that any retransmission clearly assumes that there was such a previous broadcast and that §34 is a relevant limitation of the exclusive rights of the author in question. While the cable servicer admitted that any transmission of copyrighted material must be cleared, it argued that having an agreement with television companies directly is sufficient, since the latter are responsible for ensuring that all relevant clearances are enforced. In other words, if copyright holders and broadcasters can clear the content directly, then a collective license agreement involving Norwaco is unnecessary. The defendant also claimed that since it distributes via primary channels (terrestrial network, Internet, satellite, and cable) its transmissions are not retransmissions but originals. Retransmissions would take place on alternate platforms.
The Decision: No Retransmission Without Original Transmission
In arriving at the decision, Justice Weber asserted that when a broadcast is lawful, transmitted simultaneously and unaltered, then §34 has been applied in an appropriate manner. According to Weber, “’broadcasting transmission’ herein implies that the work must have been transmitted by TV or radio signals that have been intended for the public.” Since the signals Get AS were sent arrived via an encrypted cable, a medium inaccessible to the public, they could not have been retransmitted.
Historically, a broadcast that is transmitted “over-the-air” and received in neighboring countries is the general case pictured by §34. That scenario is a familiar one to Norway, where transmitted signals from satellites in different states were not initially publicly broadcast, and so transmissions to wider audiences were not treated as retransmissions under Article 11bis of Berne. Similarly, the SatCab Directive, part of the EEA Agreement, declares that for a retransmission to occur, it must come after an initial transmission.
The dissenting opinion, delivered by Justice Arntzen, argued for the technological neutrality of copyrighted content. This neutrality assumes a broad understanding of retransmission, it relates to copyrighted material without highlighting the actual signals being broadcast. Arntzen held that the reception of signals in closed transmissions, outside of public access, was not sufficient to “discriminate” on whether a retransmission had happened.
This ruling does not rid Get AS of its obligation to clear copyright authorization before broadcasting, but negotiation will now exclusively occur with the original right holders, excluding Norwaco. It’s possible this judgment will damage the position of umbrella organizations like Norwaco. If transmissions are publicly broadcast after being sent via encryption are not regarded as retransmissions, then collective societies are prone to lose out on scores of revenue. This places right holders in a stronger position in negotiations with media distributors, and serves as a warning to umbrella organizations engaging in litigation over the nature of broadcasting protected material.
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