The Swedish Supreme Court on the Localisation of Satellite Broadcast

The author of this post is Lydia Lundstedt, Senior Lecturer at the Stockholm University.

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Under Swedish copyright law, broadcasting organizations are granted certain exclusive rights over their broadcasts (“signal right”). A signal right is one of the “related” or “neighboring” rights to copyright along with the rights of performers and producers of phonograms. Pursuant to Section 48 of the Swedish Act (1960:729) on Copyright in Literary and Artistic Works (Swedish Copyright Act) broadcasting organizations have an exclusive right to inter alia authorize the rebroadcast or a communication to the public in places accessible to the public against the payment of an entrance fee. This section incorporates Sweden’s obligations under Article 8(3) of the EU Rental and Lending Directive 2006/115/EC.

As a general rule, the Swedish Copyright Act applies in relation to other countries only on condition of reciprocity, or if it follows from an international treaty. Article 6(1) of the 1961 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) requires that Sweden grant national treatment to foreign broadcasting organizations if (1) they are established in another contracting State; or (2) if the broadcast was transmitted from a transmitter situated in another contracting State. This treaty obligation is incorporated into Section 12 of the Swedish International Copyright Regulation (1994:193) (International Copyright Regulation). The second point of attachment is formulated slightly differently in the International Copyright Regulation. It refers to “broadcasts which have been made” but does not include the words “from a transmitter situated”.

In a case before the Swedish courts, the question arose of the interpretation of this point of attachment when a satellite broadcasting chain of transmission spans several States. On 12 May 2023, the Swedish Supreme Court held that a satellite broadcast should normally be considered to take place in the state where the transmission of the programme-carrying signals was initiated.

Facts

Two persons, acting in their capacity as representatives for a company established in Sweden, were prosecuted for intentionally or through gross negligence, retransmitting television broadcasts produced by another company established in Qatar. The Swedish company had retransmitted via IPTV the Qatari company’s broadcasts to its own customers all over the world without obtaining the Qatari company’s consent. The Qatari company brought a civil claim for damages in connection with the prosecution. A prerequisite for finding the two persons guilty of the offense of unlawful retransmission and liable for damages was that the Qatari company’s broadcasts were eligible for protection under Swedish law.

It is important to distinguish the question whether the Qatari company was eligible for protection under Swedish law, which deals with the rights of foreigners, from the traditional private international law question concerning the applicable law. In this case, the applicable law question did not arise. First, nationals courts only apply their own criminal law so it is clear that Swedish law applies in a Swedish criminal proceeding. Second, with respect to the Qatari company’s claim for damages, which it a private law question, the Qatari company claimed protection for Sweden so Swedish law was applicable under Article 8(1) Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II). As said, however, the application of Swedish law was never questioned. Instead, the question was whether the Qatari company was eligible for protection under Swedish law.

Qatar was not a contracting state to the Rome Convention at the time that the broadcasts took place. Although the Qatari company produced its television programmes in Qatar, it sent the programme signals via fibre cable to a related company in France and then to the United Kingdom and Spain. Via uplink stations in the United Kingdom and Spain, the signals were sent to satellites to be received by the public in the Middle East and Northern Africa.

The Swedish Patent and Market Court (PMD) found that the Qatari company’s broadcasts were made “at least” in the United Kingdom and Spain, which are both contracting states to the Rome Convention. On appeal, however, the Patent and Market Court of Appeal (PMÖD) reversed and held that the broadcast took place only in Qatar. The Supreme Court affirmed the decision of the PMÖD.

Swedish Supreme Court

Article 3(f) of the Rome Convention defines broadcasting as “the transmission by wireless means for public reception of sounds or of images and sounds”. Although the Rome Convention was drafted before the time of satellite broadcasts, the Court stated that such broadcasts could nonetheless be considered to fall under its scope.

The Court then observed that section 61 a of the Copyright Act deals specifically with satellite broadcasting and localizes the “copyright relevant act” “in the country where the broadcasting organization, under its control and its responsibility, introduces the subject matter into an uninterrupted chain of communication to the satellite and from there down towards the earth.” Section 61 a implements Article 1(2)(b) of the EU Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (SatCab Directive). The Court noted that the aim of this rule is to enable a broadcasting company that uses other people’s protected subject matters, to easily identify for which Member State it needs to obtain a license. The Court pointed out that the application of this rule presupposes that the subject matter (e.g. a broadcast) is protected under the Copyright Act. The Court therefore observed that this rule “had no immediate significance for the assessment of whether the broadcast as such is protected by that Act”.

The Court observed that neither Article 6 of the Rome Convention nor section 12 of the International Copyright Regulation contain specific provisions on where a broadcast is deemed to take place when the chain of transmission spans several different states. The Court noted however that “in a related context”, the Court of Justice of the European Union (CJEU) held that customary technical activities to prepare signals for their introduction into a satellite communication uplink cannot be regarded as interruptions in the transmission in the meaning of Article 1(2) of the SatCab Directive (see Airfield and Canal Digitaal (C-431/09 and C-432/09).

The Court found that this approach was consistent with the text of the Rome Convention and the International Copyright Regulation. The Court stated therefore that in the case of a broadcast involving several intermediate technical steps, the broadcast “was transmitted” (within the meaning of the Rome Convention) and “was made” (within the meaning of the International Copyright Regulation) in the state where the transmission of the signals was initiated. The Court added that the fact that the chain of transmission includes elements which, individually, are not covered by the rules of the Rome Convention, e.g. because the signals at one stage are not transmitted by wireless means, does not preclude such a reading of the provisions.

The Court also found that this interpretation was in line with the aim of protecting broadcasting organizations against the unauthorized exploitation of their broadcasts. The Court reasoned that broadcasting companies make their primary investments in the state from which the broadcast is initially generated and using the state of uplink or where other intermediate technical steps are taken would not satisfy this aim to the same extent.

Thus, the Court held that the entire chain of transmission starting with the transmission of the signals via fibre cable from Qatar and ending with their reception on the ground to subscribers was one single broadcast which must be regarded as having been made in Qatar. This meant that the Qatari company was not eligible for protection under Swedish law and the prosecution against the two individuals for a violation of the Copyright Act and the Qatari company’s damage claim were rejected.

Analysis

It is a bit surprising that the Court first states that section 61 a of the Swedish Copyright Act and the SatCab Directive “had no immediate significance” for the question of whether a broadcast is eligible for protection but then applies the approach set out in the SatCab Directive to determine whether a broadcast is eligible for protection. It can be questioned whether the situation regulated in the SatCab Directive really can be said to be “a related context” as the SatCab Directive regulates a different situation than the Rome Convention and the International Copyright Regulation.

As noted above, the SatCab Directive deals with cross-border licensing of protected subject matter and Article 1(2)(b) localizes where a user is said to exploit another person’s protected subject matter when the subject matter is transmitted to a satellite from one Member State but received by the public on the ground in several other Member States. In contrast, Article 6 of the Rome Convention and the corresponding provision in the International Copyright Regulation deal with the protection of foreign broadcasters and lay down the conditions for affording national treatment to their signals.

Moreover, the SatCab Directive has a different aim than the Rome Convention and the International Copyright Regulation. The SatCab Diective aims to promote pan-European broadcasting by localizing the copyright relevant act in a single Member State while at the same time requiring a minimum level of harmonization to ensure that the protection level is sufficiently high in all Member States. This facilitates cross-border licensing because users of protected subject matters only need to clear the rights in one Member State as opposed to all Member States where the subject matters can be received. In line with this aim of avoiding the cumulative application of several national laws to one single act of broadcasting, normal technical procedures relating to the programme-carrying signals are not to be considered as interruptions to the chain of broadcasting (see recital 14 SatCab Directive).

In contrast, as the Court itself notes, the aim of the Rome Convention is to protect broadcasting organizations against the unauthorized exploitation of their broadcasts. To fulfil this aim, the Rome Convention contains alternative points of attachment (i.e. the broadcaster’s state of establishment or the state where a transmitter that transmits the broadcast is situated). It would be consistent with the aim of the Rome Convention to localize a broadcast in all states with which the broadcast has a significant connection such as a transmitter, or in a cascade-like fashion stopping at the first contracting state that has a significant connection to the broadcast.

It can be noted that the Court did not seem to place any emphasis on the wording “from a transmitter situated in another Contracting State” that appears in the Rome Convention, although not in the International Copyright Regulation. Normally, this point of attachment allows a broadcasting organization that is established outside a Rome contracting state to enjoy protection if its transmitter is situated in a contracting state. While a contracting state may declare that they will apply both points of attachment cumulatively, Sweden has not done so. Still, the practical effect of the ruling seems to require this as it is likely that signals will usually be initiated from the state where the broadcaster is established.

One can make an analogy with the Berne Convention that allows authors who are not nationals of a contracting state to the Berne Union to be eligible for protection under the Convention by publishing their works first in a contracting state to the Berne Union, or simultaneously in a state outside the Berne Union and in a state of the Berne Union. That said, one might view the right of foreign broadcasters in their signals as less deserving of protection than the right of authors in their works. Moreover, non-contracting states would not have any incentive to join the Rome Convention if their broadcasters could secure protection by sending their signal through contracting states.

A question could be raised whether the Court should have referred a question to the CJEU on the interpretation of the Rental and Lending Directive. As noted above, section 48 of the Swedish Copyright Act fulfills Sweden’s obligation under the Rental and Lending Directive to afford broadcasting organizations the exclusive right to authorize or prohibit the communication to the public of their broadcasts against payment of an entrance fee. While the Directive itself does not define who is considered to be a broadcasting organization eligible for protection under the Directive, the concept should be interpreted consistently with the EU’s international treaty obligations. See Recorded Artists Actors Performers (C-265/19). In this case, however, the relevant obligation was under the Rome Convention and the EU is not itself a contracting party.

Article 3 of the TRIPS Agreement, which is an international convention concluded by the EU, obligates the EU to accord national treatment to the nationals of other Members in respect of the rights provided under the Agreement. Article 14.3 TRIPS provides broadcasting organizations a signal right, albeit to a more limited extent than the Rome Convention. Importantly, Article 1.3 of TRIPS incorporates the criteria for eligibility for protection in the Rome Convention to determine who is eligible for protection under TRIPS. Thus, the question concerning the interpretation of Article 6 of the Rome Convention arguably falls indirectly within the CJEU’s adjudicative competence, notwithstanding that the EU is not itself a contracting party, when the right claimed is one that implements Article 14.3 TRIPS. This is because the CJEU may need to interpret the rules in Article 6 of the Rome Convention to establish the EU and its Member States’ obligations under TRIPS. Thus, it is possible that the CJEU will have the opportunity in the future to have its say about where a satellite broadcasting chain of transmission that spans several different states takes place for the purpose of determining its eligibility for protection under TRIPS.