Broadcasting Rights on the Internet

!!!!!!

!!!!!!!!!!!!!!!!!!!!

Francisco Alemany Sagüés

S1421220

!Leiden University, August 2014

Supervised by Prof. Dirk Visser !

Broadcasting Rights on the Internet !A Thesis for the Degree of Advanced LL.M. in European and International Business Law

TABLE OF CONTENTS

!LIST OF ABBREVIATIONS……………………………………………………………..………iii

!EXECUTIVE SUMMARY………………………………………………………………..………iv

!!1. INTRODUCTION TO THE TOPIC

1.1 Current situation…………………………………………………….……………………1

1.2 The importance of the broadcasting right……………………………………….………..2

1.3 How do broadcasters acquire the rights?…………………………………………………4

1.4 The Premier League rights……………………………………………..……….………..7

!2. GEO-BLOCKING, A CONTROVERSIAL SOLUTION

2.1 The practice of geo-blocking……………………………………………………………8

2.2 Definitions…………………………………………….……..…………………………..9

!3. FREE MOVEMENT OF SERVICES ACROSS THE EU

3.1 Freedom movement of goods………………………………………………..…………11

3.2 Free movement of services……………………………………………………..………12

3.3 Copyright and competition law…………………………………………………………15

!4. COPYRIGHT AND MULTI-TERRITORIAL LICENSING

4.1 Principles and exceptions………………………………………..…….………………..15

4.2 Consequences of market fragmentation……………………………………….………..17

4.3 C-403/08 and C-429/08: The Premier League decision………………………………..19

!�i

5. PROTECTION OF THE COPYRIGHT ON THE INTERNET

5.1 Protection systems………………………………………………………………………25

5.2 Liability of the ISP………………………………………………………………….…..27

5.3 Case study: C-314/12 UPC Telekabel……………………………………………….….28

!6. C-607/11: ITV BROADCASTING…………………………………………………………….32

!7. CONCLUSION……………………………………………………………………………..…..34

!OVERVIEW OF THE MAIN FINDINGS………………………………………………….……36

!BIBLIOGRAPHY

!

�ii

List of Abbreviations!!- FAPL: Football Association Premier League!!- FAQ: Frequent Asked Questions!!- FIFA: Fédération Internationale de Football Association!!- IP: Intellectual Property!!- IPTV: Internet Protocol Television!!- ISP: Internet Service Provider!!- NASA: National Aeronautics and Space Agency!!- NBA: National Basketball Associations!!- OJ: Official Journal of the European Union!!- p.: Page!!- SME: Small and Medium Enterprises!!- TOR: The Onion Router!!- v.: Versus!!- VPN: Virtual Private Network!!- WIPO: World Intellectual Property Organization!!- WPPT: WIPO Performances and Phonograms Treaty!!- WTC: World Trade Center

�iii

http://es.fifa.com/

http://en.wikipedia.org/wiki/WIPO_Performances_and_Phonograms_Treaty

F. Alemany Broadcasting Rights on the Internet Leiden University

Executive Summary

!The main purpose of this Thesis is to analyze the issue of broadcasting on the Internet. An

analysis of the legislation related to broadcasting rights will be carried out and it will be put in

consideration with copyrights, free movement of services, free movement of goods and other rights

affected by the distributors private agreements. An explanation on the consequences of the

distribution agreements which lead to market fragmentation in the EU will be carried out so that the

reader can identify the main source of the problem. Other issues like geo-blocking or Internet piracy

will be explained in order to provide a clear picture of the general situation of the broadcasting

rights on the Internet.

!This Thesis will also provide the reader with various recent case studies that will deal with

various issues. The first decision analyzed is the UPC Telekabel, which deals with the liability of

the Internet Service Providers and their obligations in respect to the protection of the copyright on

the Internet, which is the right-owners" need in relation with illegal streaming and downloading.

The second case study is about the Premier League decision, which deals with the cross-border

use of TV decoders and its effect in the distribution agreements of the right-owners. Besides, the

decision also deals with the “communication to the public” within the meaning of Article 3(1) of the

EU Copyright Directive and some considerations related to “new public”.

!As the starting point of this Thesis is an online platform named Yomvi to watch Pay TV from

Spain and the impossibility to watch it from The Netherlands, a last case study related to illegal

streaming will be carried out with the aim of establishing differences between Yomvi and other

online platforms which do not own the rights to broadcast.

�iv


1. Introduction to the topic

!1.1 Current situation

!This Thesis deals with the broadcasting rights on the Internet. It is an issue that is not in the

headings of the newspapers or trending topic in the social networks but it affects the future of the

television which represents the public opinion and it is one of the main sources of entertainment and

culture these days. By way of a general background, let me begin by describing my personal

experience in this field as a foreign student in Leiden. I am satisfied with my cable TV provider and

I would like to keep paying for it even though I was not going to have a TV in my apartment. I am a

student at Leiden University and I trusted that I was going to be able to use the Internet platform by

Canal+ named Yomvi. It consists in broadcasting live TV programs across the Internet as they are

being watched, this is called “Live IPTV”, Yomvi also offers Video On Demand, which consists in

the access of their users to series and films stored in Canal+ website. Canal+ set this online service

so that in case you do not have a TV you can still watch all the channels on your computer or tablet.

Nevertheless, once I read the terms and conditions I realized that the contents were only accessible 1

in the territory of Spain and Andorra. When asking the customer service department about the

reasons why this was the answers were very short and related to that I was using an IP address from

The Netherlands. The current legal situation in relation to broadcasting rights on the Internet

impedes that I can receive a service from a spanish company in any other Member State. I pay

every month in order to have Canal+ on my TV. Canal+ is one of the different spanish cable TV

providers. It offers all “La Liga" matches and very recent films.

!To give an overview, Chapter I deals with the importance of the broadcasting rights and its

acquisition by the broadcasting entities. For sake of clarity, a review on the procedure for the sale of

the Premier League rights is also included. Chapter II deals with the solution provided by the

distributors and right-owners of the content, namely geo-blocking. It is the most common barrier for

free movement of services and goods related to broadcasts in the EU. Its effects and consequences

on the two freedoms will be analyzed in Chapter III. As other rights, copyright has exceptions and

�1

Canal+ website, Terms and conditions, Article 5.1. Available at http://www.plus.es/condicionescontratacion1

http://www.plus.es/condicionescontratacion


limitations that create the borders for the enjoyment of a right, Chapter IV deals with the copyright

principles and exceptions, the market fragmentation achieved by the distributors and its

consequences from a competition law perspective. A case-study on the Premier League decision is

also carried out so that elements like “communication to the public”, “new public”, “free movement

of services” and its limits in relation to broadcasting rights and intellectual property can be put

together.

!There are other methods to protect the copyright on the Internet other than geo-blocking and this is

precisely what Chapter V deals with. A case study on a very interesting decision relating the

measures that can be used to protect copyright on the Internet and its effects on the Internet Service

Providers (hereinafter ISP) will also be analyzed. The last Chapter will be dealing with a decision

on an Internet streaming channel so that my cable TV provider can be put in comparison with the

broadcasting entity in the case.

!1.2 The importance of broadcasting rights

!It could be said that broadcasting rights are quite a recent topic within the Intellectual Property

legal system. Other areas covered by copyright such as music, films, or written works have a much

greater amount of legislation pertaining to them. Broadcasting rights began to exist when the

society had a way to transmit to an audience any kind of work involving copyright. This ultimately

led to the transmission of music, novels or sports through radiophonic waves. The 1960s saw the

introduction of television, and as it became more popular these rights began to be traded between

different broadcasters and television channels. The encroachment of the Internet in this area has

greatly diminished the effect such regulations. Nowadays, within a matter of seconds, an individual

can share not only albums of music or e-books, but also live broadcasts from television networks.

The ease with which material can be reproduced, shared and manipulated has no limit and this

results in a digital landscape where contents are easy to be found but its use is limited by copyright

regulation. Years ago, such copies were located with the same person that was making the copy,

moreover, those copies such photocopies were done in limited number. By contrast, on the Internet,

users can not only copy without losing quality, there is also unlimited space to save the copies and

�2


easier ways of sharing it . It has been said that piracy won"t go away, in fact, it has been said that it 2

will only get worse, with inventions such as the 3-D printers . 3

!One specific situation related to broadcasting rights is currently subject to debate at the moment.

Sports such as football, basketball or huge events such as the Superbowl, NBA Finals, or the

Football World Cup see how their broadcasting rights lose value due to the large amount of viewers

that watch the games through websites who do not acquire the rights to show such events.These

websites re-direct the official signal of a channel who legally broadcasts the program and earn

money through the payment of monthly subscriptions or by inserting advertisements on the website.

On the other hand, television groups buy the rights to broadcast the competitions from those who

own them. Subsequently, companies negotiate a contract with the broadcaster for advertising rights.

This gives the televisions channels a way of making money through advertisements or monthly

subscriptions. The latter functions in the exact same way as the internet websites, but with the

burden of paying millions of euros for the rights. The sole advantage is offering a higher quality

image to the viewers as compared to what they would watch on the Internet. Nevertheless, the vast

majority of the technologic problems will be solved in the future. If it continues like this, the

sporting events will suffer the consequences of the decreased revenue from television networks with

regard to advertising.

!The main issue about broadcasting rights on the Internet which this Thesis is going to be dealing

with is the balance between the freedom to provide services and the protection of the revenues

obtained in different countries through the selling of broadcasting rights. Different measures are

taken in order to protect the investments made by TV networks. This measures ensure, to a certain

extent, the acquired broadcasting rights. This is called geo-blocking and it has different effects on

the Internet. A couple of rights have to be balanced in this system, including rights considered as

fundamental across the whole legislation on copyright of the European Union.

!

�3

C. Mann, "Who Will Own Your Next Good Idea", The Atlantic Monthly, September 1998.2

N. Bilton, “Internet Pirates Will Always Win”, The New York Times, 4 August 2012.3


Broadcasts joined performances and phonographs in the scope of protected matters of the 1961

Rome Convention for the first time. Broadcasting was defined as “the transmission by wireless

means for public reception of sounds, or of images and sounds”. This concept was updated in the

WPPT in 1996, it introduced the concept of encryption of the signals transmitted.

!When it comes to broadcasting over the Internet there are two main ways by which the users can

access to broadcasts. The first one is download, it consists in obtaining a file from a server and save

it locally. This means that the visualization is not live but in contrast the user can view and enjoy the

work as many times as wanted. The file can also be shared with other Internet users or can be

uploaded on the Internet again. The second one is streaming, which is different from download by

the fact that it does not require that the file is saved. These streamings can show either live

transmissions or archived files. The content is accessed as it is received, which means that the

broadcasts via Internet can only be perceived when transmitted. There is an individual connection

between the source of the content, namely the host and each of the recipients. This connection is

made on behalf of a request made by the user.

!1.3 How do broadcasters acquire the rights?

!The public is used to turn on the TV and enjoy contents in form of films, sports or reality shows.

Nevertheless, there are a lot of negotiations, projects and works behind the scenes. Hundreds of

professionals of the broadcasting entities are involved in every broadcast. One of the most

important works which has to be done is the acquisition of the broadcasting rights. The producers of

a TV program or the organizers of a sports competition own the rights for the broadcast of these

events. There are different processes which have to be fulfilled in order for a channel to be able to

broadcast a programme on the TV.

!The first step is made by the future broadcaster, which chooses what kind of TV shows wants to

broadcast. There are markets and festivals in which the entities of the audiovisual industry meets

with the aim of showing and getting to know the different possibilities and products available. Once

the programmes have been selected, the negotiations between the broadcaster and the producer

�4


begin. There are different processes by which the parties can reach an agreement, the negotiations

can either be direct or in the case of a multiple application for a TV show an auction system is

designed. This auction system gathers all the broadcasters which are interested in the rights of a TV

show and allows the right-owner to achieve a better price than what a one on one negotiation would

bring.

!Assuming that the parties reach an agreement, an option agreement needs to be signed. This option

agreement is signed for one or more shows, namely “package”. Several conditions apart from the

sale of the rights are included in the option. The period in which the show can be broadcasted, the

conditions of the adaptation of the format and the territory for which the rights are sold are basic

conditions included in this option agreement. For instance, a TV could buy an option to broadcast

on a channel free of charge the entire saga of The Lord of the Rings films until 2018 for a maximum

of three broadcasts per film and limited to the spanish territory. The broadcasting entity would have

to negotiate with the right-owners the terms and conditions of the broadcast and once the rights

have been acquired, the broadcasting entity is free to schedule the film whenever is more

convenient according to audience and marketing reports. Another conditions might be set for sports

broadcasting, like quality standards for the narrator or a package of adverts sold in a package with

the competition. The films and programmes in general are put in a schedule and classified by

interest and time, this can not be done with sports competitions, which are broadcasted live.

The last options that have been recently included in the agreements negotiated by the audiovisual

industry are the Internet broadcast. These agreements permit the broadcast through websites owned

by the entities acquiring the rights. The broadcast on the Internet includes territorial clauses, which

means that the entity that acquires the rights has to limit the broadcast on the Internet to the territory

of the country for which the rights have been sold. An extension might be negotiated, for instance,

Canal+ has the right to broadcast on Yomvi in Andorra. This system is based on the establishment

of barriers on the Internet, this barriers are known as “geo-blocking”.

!The Internet was originally created as a global network. nevertheless, in order to prevent the

access to restricted contents, geo-blocking barriers are set. This barriers can ban whole sites such as

�5


Facebook, LinkedIn or Wikipedia in China , due to political or copyright reasons. The latter case 4

affects the websites of TV channels when watched from abroad. TV channels broadcast contents

which are normally limited to a territory by contract with the owner of the rights. This means that

the owners negotiate a different contract with different TV channels according to the expected

revenues in each country. Any organization or company which owns rights functions on a system

based on a competitive tender procedure. Tenderers can opt for global, regional or territorial rights

of a program. Once the rights have been assigned to the winner of the auction, an exclusive right is

granted to broadcast the program in an area. Each winner undertakes an obligation by which the

broadcast will be limited to the assigned territory. In order to ensure this exclusivity, the

broadcasters encrypt the satellite signal and set a geo-blocking system in order to impede anyone to

view their transmissions outside the concerned territory. The importance of the copyright industry 5

is reaching levels never seen before. It has been calculated that the value of this industry only in the

U.S. is worth 91.2 billion $, which means 5.24% of U.S. GDP . Indeed, exploitation of the acquired 6

broadcasting rights is an important source of revenue and its strategy has to evolve and to adapt to

the digital transformation and the market fragmentation . 7

!Making available to the public does not only consist on showing a program live on a TV channel,

this is broadcast and slightly differs from the right included on Article 14 of WPPT which describes

the exclusive right of the producer to make their phonograms, by wire or wireless means, available

to the public at a time chosen by them. In words of the Commission: “Retransmission of broadcast

programmes – generally understood as the simultaneous transmission of a broadcast by a different

entity such as a cable operator - is a separate copyright act, also requiring authorization from right

holders. So, this type of transmission differs from broadcasting as the content is not selected and

�6

S. Frizell, “Here Are 6 huge Websites China is Censoring Right Now”, Time Magazine, 4 June 2014.4

Joined Cases C-403/08 and C-429/08, Par. 33-355

Copyright Industries in the U.S Economy, The 2002 Report. Stephen E. Siwek. International Intellectual Property 6

Alliance, at 1. Available at http://www.iipa.com/pdf/2002_SIWEK_FULL.pdf

PwC"s Media Industry Accounting Group (MIAG), “Broadcast Television: Acquired Programming Rights”, 2012, at 7

24.

http://www.iipa.com/pdf/2002_SIWEK_FULL.pdf


delivered by a broadcaster, it is the public that choices when and what to watch” . When right-8

holders negotiate with other entities not only broadcasting is an object to debate. Other rights such

as webcasting, highlights of the event and delayed broadcasting can be negotiated or included in a

single package. These rights have become fully essential for the sports competitions in particular. 9

!There is a very exemplifying fact that explains the importance of broadcasting for sport events.

In the FIFA World Cup 1962 the number of participants was 56 and it rose up to 75 in the 1970

edition. Adidas, which started sponsoring the competition in 1970 designed of the ball inspired in

the Telstar. This satellite was launched by NASA in 1962 and it allowed the transmission and color

broadcast anywhere in the world for the first time in history. The technological innovations made

until now have arisen the number of copyright issues related to copyright. The idea of a legislation

done in a quickly and continuous manner has already been recommended by WIPO . In this sense, 10

a study about the different conditions that the broadcasters have in their contracts with their

customers will be done. This will clarify the blurred picture of the legal framework in which the

networks may operate. According to DG INFSO and DG MARKT, online platforms do not always

contribute to financing the production of films and other audiovisual works in the same way as

"traditional" distributors due to strategies such as the pre-purchase of rights; online platforms are

not as important as the traditional cinemas yet. Nevertheless they will represent a major part of the

audiovisual market in the future.

!1.4 The Premier League rights

!There is a lot of controversy in the sale of TV rights of football competitions. Broadcasting entities

enter into long and hard negotiations which include many different competitors. Even though it is

not easy for the channels to achieve big revenues for the broadcast of football matches given that

the matches last for 90 minutes with only 15 minutes for adverts in between.

!

�7

Green Paper on the online distribution of audiovisual works in the European Union: opportunities and challenges 8

towards a digital single market, European Commission, 13.7.2011, COM(2011) 427 final.

Sport and broadcasting rights: Adding Value. Rafael Ferraz Vázquez, April 2013. WIPO Magazine 9

“The Impact on Intellectual Property Law: A Survey of Issues” WIPO Report, 2002, Par. 4510

http://www.wipo.int/wipo_magazine/en/2013/02/article_0005.html



The Premier League"s broadcast rights, which are the object of dispute in a CJEU decision that will

be explained later on, are sold in a three year package in a heavily regulated auction process . Half 11

of the domestic market revenue obtained by the Premier League Football Association is distributed

equally between the clubs, a quarter is given depending on the league position of each club and the

rest is given depending on the number of matches of each team that have been broadcasted every

season. There is a polemic measure taken by the Premier League Football Association which

consists in the prohibition to broadcast the games played between 3pm and 5pm on Saturdays. It has

been created in order to protect the attendance to the stadiums, which are clearly affected by the fact

that the matches are televised.

!2. Geo-blocking: A controversial solution

!2.1 The practice of geo-blocking

!Geo-blocking is the practice of preventing users from viewing Web sites and downloading

applications and media based on location. It is used by countries to block foreign material as well as

by movie and TV studios to restrict viewing to specific regions, geo-blocking is accomplished by

excluding targeted Internet addresses. At present this technology is mainly used to restrict official

content. This process is an effective way of locking access to content down to specific countries or

regions. It is a particularly weak solution against VPN services due to the incorrect matching that

the latter causes in the mapping function of the geo-blocking function. Geo-blocking started being

used to address certain issues related to the different regulations of gambling sites in different

countries. It soon expanded its uses and covered the online video content. The right-holders saw in

the Internet a threat to their model of business, based on the sale of broadcasting rights to different

markets in the EU. The possibility of reducing the markets from 28 to one single market caused the

implementation of geo-blocking in Europe. There are two main reasons behind this, the first one is

that the fragmentation of the market increases the total revenue of the producers of content due to

the lack of force of their contenders in the negotiation. The selling of rights and the tender

procedure involves the operators of only one country. The second reason is that advertisers were

�8

FAQ, How does the Premier League sell its TV rights?, Premier League website. Available at: http://11

www.premierleague.com/en-gb/fans/faqs/how-does-the-premier-league-sell-its-tv-rights.html

http://www.premierleague.com/en-gb/fans/faqs/how-does-the-premier-league-sell-its-tv-rights.html


usually aligned with specific geographic territories themselves for selling product and did not want

to pay to reach to markets were not a target in their marketing campaign. Broadcasters needed

control over who sees the content and therefore the adverts in order to be able to maximize the

revenue for their investments in broadcasting rights . 12

!It is true that the monthly quota is essentially paid for receiving the service of Canal+ TV, Yomvi

is in any case an extra service that Canal+ includes to all subscribers without being subjected to pay

any extra fee for the subscription. Nevertheless, clients do not have the possibility to access Yomvi

if they are not clients of Canal+. This is why Yomvi should be considered a service within the

meaning of article 57 of the TFEU. If this service is considered to fit in Article 57 then any measure

which impedes or difficulties the freedom to provide services has to be justified. The justification

for this block is solely based on the economic interests of the broadcasters and the producers.

!2.2 Definitions:

!Before going further, some definitions have to be remarked in order to make the explanation clearer

to the reader.

!Broadcasting: “broadcasting” means the transmission by wireless means for public reception of

sounds or of images and sounds or of the representations thereof; such transmission by satellite is

also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for

decrypting are provided to the public by the broadcasting organization or with its consent.

!Encoding/Decoding: Files have to be compressed and then encoded (turned into discrete, digital

packets) before they can be streamed. People watching or listening to streamed files have to have

appropriate decoding files installed on their computers (known as codecs) for turning encoded,

computerized, digital files back into analog sounds and pictures that human ears and eyes can

process. 13

�9

A. Larson, How Geo-Blocking Could Kill Indie Film & TV, 29 February 2012. Available at: http://www.veria.ca/12

business-of-film/geo-blocking-kill-indie-film-tv.

C. Woodford, Streaming media, 2014, Available at: http://www.explainthatstuff.com/streamingmedia.html13

http://www.veria.ca/business-of-film/geo-blocking-kill-indie-film-tv


http://www.explainthatstuff.com/streamingmedia.html


!IPTV: From a TV watcher"s point of view, IPTV is very simple: instead of receiving TV programs

as broadcast signals that enter your home from a rooftop antenna, satellite dish, or fiber-optic cable,

you get them streamed (downloaded and played almost simultaneously) through your Internet

connection. 14

!Streaming: The cameras installed in the venue where the action is taking place film and send the

signal to a satellite, then this is immediately converted into electromagnetic waves which are

transmitted to a receptor which captures the signal. The image is then displayed via an antenna or a

receptor, be it a television or a computer. This encoded signal is illegally decrypted by pirates and

linked to a website. Users on the Internet can watch it in exchange of watching adverts or paying a

quota for accessing the website.

!UGC Sites: The UGC (User Generated Content) websites are those sites based on the content that

its users want to upload. It does not require any further software other than a browser. Websites such

as Youtube or Facebook function on a UGC basis. These user generated content websites often

include content protected with copyright without the authorization of the right-owner. This can lead

to liability. In fact, eBay, one of the most famous online auction and shopping websites was

declared liable worth 38.5 million euros by the Court of Appeal in Paris . It was considered as 15

liable in the sale of counterfeit products by Louis Vuitton, Christian Dior and other brands of the

LVMH group.

!Peer-to-peer (P2P): These are websites where the user must install a software or a browser plug-in

in order to connect to a swarm of others who are acting as viewers and distributers of the content at

the same time. Peer-to-peer basically transfers data from one user to another without using an

intermediate server.

!!

�10

C. Woodford, IPTV, 2013, Available at: http://www.explainthatstuff.com/how-iptv-works.html14

eBay Inc. and eBay AG v. Louis Vuitton Malletier; eBay Inc. and eBay AG v. Parfums Christian Dior; eBay Inc. and 15

eBay AG v. Christian Dior Couture (CA Paris, March 9, 2010).

http://www.explainthatstuff.com/how-iptv-works.html


3. Free movement of services and goods across the EU

!3.1 Free movement of goods

!One of the main problems of copyright is the tension between free movement of goods and

services and the territorial exclusivity granted by Member States for copyrighted works. The

problem is simple to understand but difficult to solve. The free movement requires the Member

States to remove borders while the very nature of copyright means territorial divisions as it is

currently the features that copyright has in the Member States legislation. The Treaty contains a

reference to this problem on Article 30, this provision sets that prohibitions in transit may be

justified on grounds of protection of industrial and commercial property. This justification leaves

justification to define the extension of the freedoms and the copyright and it is a task of the CJEU to

define its limits. According to case-law, copyright constitutes industrial and commercial property

for the purposes of Article 30 . 16

!The exhaustion right is one of the main limitations to copyright. The ECJ ruled in Polydor v

Harlequin case that exhaustion is not mandated when it comes to importation from third countries

even when the country was linked by an agreement which used language similar to the one

guaranteeing the free movement of goods. After defining the exhaustion of the right of distribution

right once the copies have been lawfully marketed in a Member State and excluding the

communication to the public from this exhaustion, it is time to face the tension commented above.

The tension remains undefined when it comes to the free movement of goods and services on the

Internet. It has been one of the main questions to investigate during the course of the research for

this Thesis. The CJEU has already decided to accept infringements upon the freedoms commented 17

and the Premier League case is another example.

!!!

�11

Case C-3/91 Exportur v LOR and Case C-388/95 Belgium v Spain.16

C-158/86 Warner Brothers v Christiansen and C-341/87 EMI Electrola v Patricia and Case C-3/91 Exportur v LOR 17

and Case C-388/95 Belgium v Spain.


3.2 Free movement of services

!The free movement of goods and services are included in the four main freedoms protected in the

TFEU. The early stages of the application and enforcement of these rights required the intervention

of the CJEU, it defined the scope of the rights and drew the frame in which, after different reforms

in the Treaties, the European Union has developed its characteristics. It has not been easy for the

different Member States to agree to cede the sovereignty on different matters. Some matters were

sensitive and required the intervention of the case-law by the CJEU. This process has created

discussions relating to wether the European Union should develop a structure so that the Member

States form a federal unionThere is sometimes confusion when it comes to classify as a good or a

service. When it comes to services, there are a few conditions that the service must fulfill in order to

benefit from the scope of Articles 56 and 57 of the TFEU. Firstly, the services must be provided

within a cross-border situation, this does not only mean that the service provides the service in the

country of the recipient . It also includes situations where both the service provider and the service 18

recipient travel to another Member State and when the service providers seeks for recipients in 19

another Member State . Besides, as it has been held by the Court, a company established in a 20

Member State is not obliged to provide services in the Member State in which he is established in

order to have the right to provide services freely within the European Union . Article 56 TFEU 21

requires only that the provider be established in a Member State other than that of the recipient.

Secondly, it must be an economic activity and there must be a payment. In the case of Yomvi, the

service is included in the package provided by Canal+ in exchange for a monthly subscription. The

third requirement is that the services are provided on a temporary basis. According to paragraph 74

of C-475/12, the Treaty does not provide any way to determine in an abstract manner to determine

the duration or frequency beyond which the service can no longer be included in the meaning of

service within the meaning of Article 56 . 22

�12

C.Tobler & J. Beglinger, Essential EU Law in Text, 72, 2nd ed. (2012).18

Case C-154/89, Commission of the European Communities v French Republic.19

Case C-384/93, Alpine Investments v. Minister van Financiën.20

Case C-46/08 Carmen Media Group, paragraph 4321

Case C-215/01 Schnitzer, paragraphs 30 and 31 and Joined Cases C-357/10 to C-359/10 Duomo Gpa and Others 22

paragraph 32.


Yomvi, as said before, consists in the possibility to enjoy the Canal+ TV service via Internet. The

features of Yomvi can essentially be defined as the service consisting in the supply of conditional

access to a package of programmes which contains radio and audiovisual broadcast services via

Internet. This definition was used by one of the parties in C-475/12 to describe the services of a

luxembourgish broadcasting company which transmitted the audiovisual works via satellite. The

Court faced the question of wether a service with the referred characteristics could be classified as a

service within the meaning of Article 56 TFEU. It said that according to case-law, the transmission

of television signals falls within the rules of the Treaty on the provision of services . 23

!This creation of a single european market has been one of the main aims of the European Union

since the very beginning . With the new space that the Internet has opened in the market, which is 24

as broad as the users want it to be, the increase in its use has offered new possibilities for

distributing and accessing creative content online . Nevertheless, the geo-blocking barriers that are 25

being set in order to protect the revenues from copyrights, basing the market on a territorial basis

are making it narrower, but highly profitable for the companies. This is precisely what European

Union legislation should and is trying to avoid . Sharing has been an issue of conflict in the early 26

stages and it continues to be. All these conclusions could be a possible solution for the problem of

geo-blocking on the Internet, but again, the collaboration and the action of the broadcasting entities

must exist, otherwise the market will be kept limited and the prices will keep expensive and the

piracy will keep rising. As the Court held in another context in its judgment Centrafarm BV and

Adriaan De Peijper v Sterling Drug Inc, “the existence of a disparity between national laws which is

capable of distorting competition between Member States cannot justify a Member State"s giving

legal protection to practices of a private body which are incompatible with the rules concerning free

�13

See also Case C-17/00 De Coster, paragraph 28 and Case C-250/06 United Pan-Europe Communications Belgium 23

and Others, paragraph 28

Treaty of Rome, Art. 224

Creative content in a European Digital Single Market: Challenges for the Future. Document by DG INFO and DG 25

MARKT, 2009, p. 2.




movement of goods” . This was also held in paragraph 24 of Musik-Vertrieb GmbH and K-tel 27

International v. GEMA.

!The European Commission has already expressed its will to improve the whole scene of Digital

Markets. The aims are to create a single market by firstly impulsing the cross-border on-line access

and "portability" across borders of content. Secondly by ensuring that end-users have greater clarity

on legitimate and non-legitimate uses of protected material, and easier access to legitimate

solutions . And last but not least, the Commission is also willing to facilitate the deposit and online 28

accessibility of films in the EU both for commercial purposes and non-commercial cultural and

educational uses . The European Commission also appears to be very keen to be in contact with the 29

stakeholders in the audiovisual market. Proof of that is the Commission has gathered with the

stakeholders in the market, namely the companies and organizations of the audio-visual industry 30

in a programme named Licenses for Europe. It is a dialogue versing on digital content launched in

December 2012 by the Communication on "Content in the Digital Single Market” . The 31

conclusions of this dialogue were that all the participants agree to impulse solutions in favor of

developing the cross-border portability of lawfully acquired audiovisual content when traveling

abroad . Other companies and associations support the systematic use of an international 32 33

recognized standard audiovisual work identifier for all audiovisual and cinematographic works.

This will create a unique and only system to identify all video-based works and as a consequence

they will be under a more innovative protection. Other aims of the project is freeing up TV footage

�14

Case 15/74 Centrafarm BV and Adriaan De Peijper v Sterling Drug Inc. [1974] ECR 114727

Communication from the Commission on content in the Digital Single Market. COM/2012/0789 Final, 328

Communication from the Commission on content in the Digital Single Market. COM/2012/0789 Final. 429

ACT, CEPI, Europa Distribution, EUROVOD, FERA, FIAD, FIAPF, IFTA, IVF, MPA, SROC & SAA30

Licences for Europe stakeholder dialogue – Frequently Asked Questions, European Commission Memo, November 31

2013. Available at http://europa.eu/rapid/press-release_MEMO-13-986_en.htm?locale=en

Joint Statement on Cross-border Portability of lawfully-acquired Audiovisual Content, Structured Stakeholder 32

Dialogue 2013, Licences for Europe, available at http://ec.europa.eu/licences-for-europe-dialogue/sites/licences-for-europe-dialogue/files/1-AV-portability.pdf

Adami, BFI, CEPI, CineRegio, EIDR, Eurocinema, EuroCopya, European Film Promotion, FERA, FIAPF, INA, 33

ISAN-IA & SAA – Society of Audiovisual Authors

http://ec.europa.eu/licences-for-europe-dialogue/sites/licences-for-europe-dialogue/files/1-AV-portability.pdf

http://europa.eu/rapid/press-release_MEMO-13-986_en.htm?locale=en


archives through digitalization and improving identification and discoverability of audio-visual

content online . 34

! 3.3 Copyright and competition law

!Another tension arises in copyright when it comes to competition law. A clear example of this

will be provided in the Premier League case study. The problem consists again in the opposite rights

that copyright and competition law pursue. As said before, copyright grants an exclusive right

which causes a situation where the copyright owner can exclude others from the use of protected

works and competition law undertakes to further competition, innovation and consumer benefit by

restricting exclusive behaviour of the market agents which is exactly what copyright grants, the

possibility to have exclusive behaviour. This tension is also reflected on the Premier League

decision and it will be commented on the next Chapter.

! 4. Principles of copyright and multi-territorial licensing

! 4.1 Principles and exceptions

!1. Contractual freedom: The right of authors to freely decide about the terms and conditions

under which they wish to exploit their works.

2. Exclusivity: the right to grant exclusive exploitation rights (a right linked to contractual

freedom).

3. Territoriality: the right for the rights holder to decide on the geographic scope of a license

(a right linked to contractual freedom).

4. Enforcement: the right to prevent by law unauthorized exploitation of copyright protected

works.

!

�15

Ten pledges to bring more content online, Licenses for Europe. Structured Stakeholder Dialogue 2013. Available at 34

http://ec.europa.eu/internal_market/copyright/docs/licences-for-europe/131113_ten-pledges_en.pdf



Copyright exceptions consist on removed rights from copyright owners with the purpose of

satisfying certain social interests or special cases. According to Berne Convention there are several

exceptions and limitations to copyright. In order for this exceptions and limitations to be applied,

several conditions will have to be fulfilled. These will only be permissible if it is a special case, it

does not conflict with the normal exploitation of the work and it does not prejudice the interests of

the author or the rights holder in an unreasonable way . This test known as “three-step test” has 35 36

also been added to Agreement on Trade-Related Aspects of Intellectual Property Rights , the EU 37

Database Directive , the WIPO Copyright Treaty , the WIPO Performances and Phonograms 38 39

Treaty , the Directive on the legal protection of computer programs , and the EU Copyright 40 41

Directive . The importance of the limitations and exceptions related to copyright have become one 42

of the main issues for legislators and academics. The proposal of an European Copyright Code by

the Witten Group expands the explanation of the limitations and objections for copyright and details

it on the article 5 of the Code . There are, according to this proposal, different cases in which 43

copyright is limited or excepted. These are uses (1) with minimal economic significance, (2) for the

purpose of freedom of expression and information, (3) permitted to promote social, political and

cultural objectives, (4) for the purpose of enhancing competition and (5) any other use comparable

to the uses enumerated before is permitted provided it does not conflict with the normal exploitation

of the work and does not unreasonably prejudice the legitimate interests of the author or right-

holder, taking account of the legitimate interests of third parties. This form of legislation is known

as fair dealing policy and it is applied in the vast majority of countries with copyright legislation.

Nevertheless, there is another approach which is used by The United States and it consists in a

general exception which can be invoked by users and consumers in relation to a different variety of

�16

Only in TRIPS test, Berne Convention does only refer to the author.35

Berne Convention, Article 9.2.36

Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 13.37

EU Database Directive 96/9/EC, Article 6.3.38

WIPO Copyright Treaty, Article 10.39

WIPO Performances and Phonograms Treaty, Article 16.40

Directive on the legal protection of computer programs 2009/24/EC, Article 6.3.41

Copyright Directive 2001/29/EC, Article 5.5.42

European Copyright Code, The Wittem Group, April 2010. Available at www.copyrightcode.eu 43

http://www.copyrightcode.eu


activities, it is known as fair use doctrine. There are four factors to consider in the U.S. legislation,

these are (1) the purpose and character of the use, (2) the nature of the copyright work, (3) how

much of the work is used and (4) the effect of the use upon the potential market for or value of the

copyright . There is a new factor that has been recently added as a result of the decision reached by 44

the District Court of Nevada in the Field v. Google case, which is “wether an alleged infringer has

acted in good faith” . 45

!4.2 Consequences of the market fragmentation

!As said before, there are a number of rights affected by this structure of the market, which is

fragmented and based on the price discrimination. Price discrimination exists when identical

products or services are sold by different prices by the same provider. In order for price

discrimination to be effective, three conditions have to be satisfied. Firstly, the groups of consumers

separated by the price discrimination have to share some characteristics i.e the special interest for

the national football league. Secondly, resale of goods must be preventable, as the control on the

prices needs to be kept by a sole agent in the market. Thirdly, it is also said that the agent must have

a certain degree of market power . When it comes to price discrimination, the broadcasting 46

companies are said to apply a third-degree price discrimination, which consists in separating the

groups of consumers in identifiable groups on the basis of different characteristics, being the

national frontiers the mainly criteria used.

!Freedom of information: The copyright limitations also create situations in which a certain

company i.e a newspaper, does not have the right to show the uploaded videos that are used as a

support to the article published because the images used are subjected to copyright and are only

limited to the country where the newspaper has its main business activities. Article 10 of the

European Convention for the Protection of Human Rights and Fundamental Freedoms is an

example of the balance between these rights. It says that it is prohibited to impede the reception of

�17

Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (Oct. 19, 1976).44

Nev. D, “Field v. Google, 412 F. Supp. 2d 1106”, (2006).45

R. Preston McAfee, “Price Discrimination”, ISSUES IN COMPETITION LAW AND POLICY at 465 (ABA Section 46

of Antitrust Law 2008).


information by reasons of frontiers. The States though, are entitled to establish a system where a

previous authorization is required, as it was described on C-475/12 UPC DTH Sàrl v. Nemzeti

Média . The truth might be that the reception of audiovisual content which helps to understand 47

information provided by the newspaper provided in the article, is blocked by reasons of frontiers

and market fragmentation.

!It should be a task of the European Institutions to protect the media from the distribution

agreements that impede them to include supportive videos which are protected with copyright. This

use should be considered as an exception from copyright in the future distribution agreements, it

qualifies from 3 of the exceptions commented before . It has minimal economic significance, the 48

purpose of it is to exercise freedoms of expression and information and it promotes social, political

and cultural objectives. The geo-blocking on certain videos on the media has no other explanation

than the private distribution agreements that are made between the broadcasting entities and the

right-owners. These agreements harm our freedom for information and impede a good functioning

of the free market long ago achieved in many other matters.

!Although there has not been yet a case about licensing agreements, market fragmentation and the

Internet combined. Other matters such as terrestrial and digital TV agreements and free movement

of services have been dealt by the CJEU. The Premier League decision could imply that Internet

restrictions become illegal and geo-blocking would come to an end. This would also be in favor of

the competition. The current territorial markets would become a sole free one and therefore all the

broadcasting entities would be competing in a common space. On the other hand, the producers and

right-holders will not get the same profits and the standards of quality of the audiovisual works

would drop. This consequence would not be satisfying for the public either.

!!!!

�18

See also at 10.47

See at 21.48


!4.3 Case Study: Cases C-403/08 and C-429/08

!One of the purposes of this thesis is to discuss the current regulations and decisions about

broadcasting TV signals, its relation to the Internet and the social consequences that may derive

from it. It is important to put some emphasis on the manner in which the market is currently

functioning.

Many competitions and organizations sell their rights to different TV broadcasters set in different

countries in the European Union. The prices that this TV broadcasters pay can differ a lot depending

on the potential revenues that can be acquired for the broadcast. Viewers of each country pay

different prices for identical services provided in other countries of the EU. This division of the

market was protected by the limitation to broadcast outside the limits of the country where the

rights had been sold. The decision issued in joined cases C-403/08 and C-429/08 changed the

perspective under what these rights were built and defended the obligation to respect the freedom to

provide services across countries inside the European Union.

This decisions by the CJEU analyzed the issue of greek decoding devices used to watch Premier

League matches in the territory of the UK. The owners of bars and pubs in the UK were buying

greek decoding devices in Greece and using them to show Premier League matches in their

establishments. There was a conflict between the private contract of the broadcasting entity and

FAPL. FAPL manages the Premier League which is the most important football league in the UK.

This organization sells the broadcasting rights among the market and sets a number of conditions

which limit the broadcast to a country. It was not authorized in the private contract between the

parts the selling of decoding devices outside Greece. NetMed Hellas and Multichoice Hellas were

obliged to keep the selling of this devices within the greek territory and every subscriber had to

provide a name, a Greek address and a Greek telephone number.

!The question posed to the court was in essence whether “communication to the public” within

the meaning of the Info Society Directive had to be interpreted as covering the transmission of

broadcast works to the customers present in a public house. According to the legislation and case-

�19


law of the CJEU , there is a very broad interpretation of “communication to the public”. The Court 49

recalled that “communication to the public” must be interpreted in the light of the objectives of the

Info Society Directive and the concept defined in the Related Rights Directive . The opinion of 50 51

the Advocate General Kokott took a different view on this and it stated that Article 3 of the Info

Society Directive does not include the acts of article 11bis(1)(iii) of the Berne Convention.

According to her opinion, the acts described in that article had not been transposed into the Info

Society Directive, nevertheless the Court did not establish a difference between these two

provisions and held that the concept of communication must be interpreted broadly, especially when

it comes to the transmission of protected works, irrespective of the technical means used . This 52

concept of communication to the public within the meaning of Article 3(1) of the Info Society

Directive included the necessity of the work to be transmitted to a new public, i.e “a public which

was not taken into account by the authors of the protected works when they authorised their use by

the communication to the original public” . Another key point of the decision is whether the use of 53

foreign decoding devices was permitted. The Court essentially ruled that it was allowed to buy

foreign decoding devices and use them in another Member State even though they were procured by

giving a false name and address.

!It is also interesting to analyze in more detail the decision by the CJEU in joined cases C-403/08

and C-429/08 so that other details can be put together. This will be useful in order to establish a

comparison between the facts of the case and my issue with the geo-blocking strategy for Yomvi,

which according to the Information Society Directive has a right to transmit online on demand. The

right of making available to the public is considered as a part of the right of communication to the

�20

See C-393/09, BeSoft of 22 Dec. 2010, C-403/08 & C-429/08, Premier League of 4 Oct. 2011, C-431/0 9 and 49

C-432/09, Airfield of 13 Oct 2011, C-283/10, Globus Circus of 24 Nov. 2011, C-135/10, Consorzio Fonografici v. Del Corso of 15 March 2012 and C-162/10, Phonographic Performance Ltd of 15 March 2012.

Recitals 20 and 23, Directive 2001/29/EC of the European Parliament and the Council on the harmonisation of certain 50

aspects of copyright and related rights in the information society. OJ L 167.

Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual 51

property[1992] OJ L346/61, repealed by Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property [2006] OJ L376/28.

See Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others at [192].52

See Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others at [197].53


public. It is also interesting to note that the clearance of this right does not include “the acts of

reproduction that are technically necessary to enable online communications”. Therefore, when

relevant, online on-demand service providers have to obtain licenses for the making available right

and also the reproduction right . 54

!According to the CJEU the defendants are not using “pirate devices”, they are using foreign

devices. This means that this devices are not considered “illicit” devices within the meaning of

Conditional Access Directive . This is because the devices that were being used in the facts of the 55

case were greek devices authorized by FAPL to broadcast the English Premier League. This devices

were under a prohibition to sell outside Greece, it was agreed in the private contract between

Premier League Association and NetMed Hellas. The circumvention of this exclusivity complies

with European law, CJEU says. The reason for that is that the national legislation which prohibits

the import of decoding devices is contrary to the freedom to provide services and cannot be justified

by the objective protecting Intellectual Property Rights.

!The second and third ruling of the case sets important conclusions about article 56 TFEU and

article 3(2) of Directive 98/84. The first one precludes Member States to make it unlawful to import

foreign devices which give access to broadcasting services from another Member State. Secondly,

the Court also sets the point that the foreign decoding device has been obtained by giving a false

identity and a false address does not affect the first conclusion. Neither affects the first conclusion

and the reason that it is used for commercial purposes although it was restricted to private use.

Regarding the article 3(2) of Directive 98/84, the CJEU affirms that national legislation which

prevents the use of foreign decoding devices complies with EU Law.

!If these conclusions are brought to the case analyzed in this paper it could be considered that

Yomvi will be the broadcasting service offered by a certain company, in this case Canal+. The use

of Yomvi in a Member State which is not Spain would be the importation of the foreign decoding

device and the geo-blocking will be the prohibition. This setting is the one which can be found in

�21



Directive 98/84/EC on the legal protection of services based on conditional access, Art. 2e).55


my current situation. Nevertheless, different solutions are provided by technology in order to

surpass the geo-blocking and fake the address from which the request is coming. This method to

fake the address would not be in conflict with EU Law according to the second paragraph of the

third ruling of the Court in joined cases C-403/08 and C-429/08.

!The restrictions imposed by distributors and broadcasting entities might not only affect the

freedom to provide services of Article 56 and 57 TFEU. Article 101 of the TFEU prohibits

anticompetitive agreements and decisions of associations of undertakings. This has been

implemented by the Antitrust Regulation (Council Regulation No 1/2003). The geo-blocking and

other agreements between broadcasting entities are a widespread practice in the entire European

Union which according to the press release published by the Commission, is under investigation.

Article 16(1) of the Antitrust Regulation provides that national courts must avoid giving decisions

that would conflict with a decision contemplated by the Commission in proceedings it has initiated,

this means that Spanish Courts could not give a decision about the Yomvi issue provided that the

Commission has already started the investigation.

!According to what it was said in the Premier League decision, the territorial restrictions in the

licensing agreements are inconsistent with Article 101(1) TFEU and should be considered as a

restriction by object. The provisions of Article 101(1) may be declared inapplicable however, if

certain criteria are satisfied under Article 101(3). Article 101(3) states that Article 101(1) may be

inapplicable if the agreement/decision or concerted practice: “contributed to improving the

production or distribution of goods or to promoting technical or economic progress, while allowing

customers a fair share of the resulting benefit” The agreements, the CJEU held did not satisfy this

criteria and so did not benefit from this exception. By not permitting the private bodies to enjoy

from legal protection to their measures which restrict competition, the Court is also willing to

protect the free movement of services, which is currently being affected by the market

fragmentation achieved by the right owners. This market fragmentation leads to price

�22

Laurence M. Vance, Price discrimination is fair and just, FFF Articles, Explore Freedom, 29 November 2011. 56

Available at: http://fff.org/explore-freedom/article/price-discrimination-fair/

http://fff.org/explore-freedom/article/price-discrimination-fair/


discrimination which has not always been considered as having negative effects by academics . All 56

these conclusions lead to think that price discrimination might be good for markets.

!Nevertheless, this conclusions are formulated solely based on an economic view, they don"t take

into account that the European Institutions and the citizens of all the States within the Union are

willing to create a single market without any barriers. It is true that the interest on different

contents can be easily identified by countries, but that does not make a difference. In fact, as it was

said by Advocate General Kokott in her conclusions in joined cases C-403/08 and C-429/08: “An

agreement between a producer and a distributor which might tend to restore the national divisions

in trade between Member States might be such as to frustrate the Treaty"s objective of achieving the

integration of national markets through the establishment of a single market” . 57

!In the same sense, the Court decided that an agreement that divides national markets according

to national borders should be regarded as an agreement whose object is to restrict competition.

Nevertheless, it also held that the fact that exclusive licenses are granted with the condition to be

used only by the licensee does not infringe any provision. This means that the broadcasting

companies and the right holders are entitled to grant exclusive licenses but this licenses can not

hinder the competition within the European Union by separating the markets by national borders

divisions between territories . 58

!This case has been the starting point for an investigation carried out by the Commission.

According to the Annex to Commission"s report of 2012, a fact- finding investigation will be

conducted “to examine whether licensing agreements for premium pay-TV content contain absolute

territorial protection clauses which may restrict competition, hinder the completion of the Single

�23

Opinion of Advocate General Kokott in joined cases C-403/08 and 429/0857

E. Szyszczak and K. Murphy: Decoding Licences and Territorial Exclusivity, Journal of European Competition Law 58

& Practice 2012 Vol. 3 nº 2 at 169-174.


Market and prevent consumers from cross-border access to premium sports and film content” . The 59

main problematic issues related to the Premier League decision that the Commission will face in its

investigation are in the first place that the Murphy case dealt with the sale of physical decoders;

Therefore, the Commission should like the purpose of these devices with the online platforms

webcasting licensed content in the European webspace. Secondly, the decision in question is about

the transmission in a pub and does not deal with the private use. The Commission should also cover

the private use of the broadcasting service and cover the exceptions to copyright contained in the

Berne Convention.

!This judgement sets an unstable balance between what is considered to be maximization of

profits by creating artificially fragmented markets and the optimization of prices by ensuring the

access to services provided by companies in other Member States. This ruling might cause a reform

of the current system for the distribution of audiovisual contents so that it respects not only free

movement of services, also a fair competition . 60

!Different conclusions can be applied to the Yomvi case. As said before, Yomvi holds the rights

of the works accessible from both the website and the app. It is a subsidiary company from Canal+

dedicated exclusively to provide services on the Internet, mainly Video On Demand (VOD). It

provides services only for subscribers but it restricts the access to the website to only Spain and

Andorra. This means that no infringement is committed when accessing to the content through

methods such as VPNs. Nevertheless, as it occurs in the Premier League case, the distribution

agreements impede the free movement of services and it is still not clear wether the Commission

will consider it as hindering the single market. At the moment, the investigation is being focused on

the competition law aspect. This means that in the event of the introduction of a single and free

market for television services, pan-european licenses could take presence and the market will not be

limited by geo-blocking services or clauses on the distribution agreements between the producers

and the broadcasting entities.

�24

Commission Staff Working Document accompanying the Annex to Commission"s report on Competition Policy 59

2012, COM(2013) 257 final at 24.

D. Doukas, “The Sky is not the (Only) Limit—Sports Broadcasting without Frontiers and the Court of Justice: 60

Comment on Murphy”, European Law Review, ISSN: 0307 5400, October 2012 EL Rev 2012 5.


5. Protection of the copyright on the Internet

!5.1 Protection systems

!There are different methods that allow Internet surfers to avoid the websites identifying where

their IP address is from and apply the geo-blocking. It is needed to analyze how this works in order

to check the legal consequences derived from its use. The first one to be analyzed is a proxy server.

A proxy server is a computer system or router that breaks the connection between sender and

receiver. Functioning as a relay between client and server, proxy servers let users surf the Web and

keep their IP address private . Secondly there is the The Onion Router, more known as TOR. It 61

consists in a computer program bounces around requests randomly through the whole network of

users of the program until it finally exits the network (through an exit node) and goes to the

requested website servers . The last way and the best according to Internet experts is VPN although 62

these are normally paid services. In this case, it"s like the user actually took a cable and plugged it

all the way to a network in other country, so it appears like that user was connected to the local

network of an specific country . All traffic through this cable is encrypted and it only requires the 63

connection to one sole server, differently from TOR which enables a lot of connexions, which make

the connexion much slower.

!The WTC and the WPPT recognize the new role to be played by technological protection

measures and include them as measures to be provided by Member States in order to make sure that

the Internet can be a safe place for license protected material. These new measures can be found on

Articles 11 and 12 of the WTC and Articles 18 and 19 of the WPPT. The first measure is related to

apply technology in such a way that impedes what is known as “anti-circumvention” of the

effective technological measures used by authors in connection with the exercise of their rights

under WCT or the Berne Convention . The second object of protection is the “rights management 64

�25

Encyclopedia, PC Mag Magazine, available at: http://www.pcmag.com/encyclopedia/term/49892/proxy-server61

HotSpotShield by AnchorFree Learning Section. Available at http://www.hotspotshield.com/learn/tor-vs-vpn62

Cisco Systems, Security section. Available at http://www.cisco.com/web/ES/solutions/es/vpn/index.html63

Article 11 WIPO Copyright Treaty64

http://www.cisco.com/web/ES/solutions/es/vpn/index.html

http://www.hotspotshield.com/learn/tor-vs-vpn

http://www.pcmag.com/encyclopedia/term/49892/proxy-server


information”. According to these rulings, Member States must ensure that they implement adequate

and effective legal remedies agains the removal, dissemination or alteration of the works.

This protection is implemented by using what is known as anti-piracy measures. These measures

have diverse forms and effects on the Internet websites that transmit works under copyright without

a license.

!1. IP Gathering: It is known as the process of identifying and recording the IP addresses that

are connected to the source of unauthorized content, namely the streaming websites. This

process is used to determine the location of each IP address and it might be used by ISPs in

order to identify and penalize customers violating copyright . 65

!2. C&Ds: These are cease and desist notifications usually delivered to a site owner and their

ISP. If there is a lack of response from the site owner the ISP can be contacted directly and

requested to suspend services to the infringing website . 66

!3. Site blocking and Shut downs: It is based on the lack of response provided by an ISP when

it is asked to allocate the IP Address in the website that infringes the copyright. One of the most

famous shut downs was conducted by FBI on Megaupload, a website that allowed Internet users

to share and download infringing material and to watch audiovisual works . 67

!4. Copyright Alert System: The Copyright alert system was designed to detect consumers

infringements when sharing content illegally on peer-to-peer networks using their Internet

accounts. Right-holders can detect when copyrighted content has been shared illegally and they

can identify the Internet protocol or IP address of the computer. The ISPs send an alert to the

customer, initial alerts appear on the computer where the infringement is being made. These are

merely educational, letting the customer know that content sharing was detected on their

�26

S. Moon, Information Gathering with Nmap Script, Security, BinaryTides, 4 March 2013.65

Aaron D. Hall, What Is a Cease & Desist Letter?, Thompson Hall Santi Cerny & Dooley, Available at http://66

thompsonhall.com/cease-desist-letter-template-example-sample-forms/

United States v. Megaupload Limited. Eastern District of Virginia, 5 January 2012 Indictment Available at http://67

www.washingtonpost.com/wp-srv/business/documents/megaupload_indictment.pdf

http://www.washingtonpost.com/wp-srv/business/documents/megaupload_indictment.pdf

http://thompsonhall.com/attorneys/aaron-hall/

http://thompsonhall.com/cease-desist-letter-template-example-sample-forms/


Internet account. If the infringement does not stop, another measures like making the offender

watch an educational video are taken. The last and most stringent measures are to slow down or

even cut the Internet service and also identify the user and impose fines. This system has been

considered from controversial in several countries like Germany, where fines had to be

reduced to not successful at all like France . In the latter case, the introduction of the 68 69

HADOPI law in 2009 adopted a 3-strike system for those illegally exchanging copyrighted

material. This law has been completely unsuccessful, which proves how difficult is to legislate

about this matters. Not only because of the technical difficulty of the matter, also because new

ways of circumventing the law are created within months after the law comes into force . 70

!5.2 Liability of the Internet Service Providers (ISP)

!As stated before there are different measures that can be taken by the Internet Service Providers

in order to prevent the users of the access to content that infringes copyright. This measures vary in

form and effect but all of them share a number of characteristics which make them very unattractive

to the ISP; all of them are easy to skip and relatively expensive to adopt.

!One of the big questions concerning intellectual property and the Internet is who should be

declared liable for copyright infringement taken place online. One of the main subjects in this

situations are the ISP, which are the service providers and the ones who in essence allow the users

to access the Internet and commit, if that, copyright infringements. This liability could arise either if

the ISP engages in unauthorized acts of reproduction or communication to the public or if it makes

possible the act of infringement by a third i.e a website that provides its users with access to

copyrighted material without the consent of the right owners. This question was addressed and

�27

S. Roxborough, Germany Caps Piracy Fines, The Hollywood Reporter, 7 January 2013. Available at http://68

www.hollywoodreporter.com/news/germany-caps-piracy-fines-577989

J. Mullin, Study of French “three strikes” piracy law finds no deterrent effect, Law & Disorder/Civilization & 69

Discontents, Ars Technica, 24 January 2014. Available at http://arstechnica.com/tech-policy/2014/01/study-of-french-three-strikes-piracy-law-finds-no-deterrent-effect/

J. Taylor, “France drops Hadopi three-strikes copyright law”, ZDNet, 10 July 2013 Available at: http://70

www.zdnet.com/france-drops-hadopi-three-strikes-copyright-law-7000017857/

http://www.zdnet.com/france-drops-hadopi-three-strikes-copyright-law-7000017857/

http://arstechnica.com/tech-policy/2014/01/study-of-french-three-strikes-piracy-law-finds-no-deterrent-effect/

http://www.hollywoodreporter.com/news/germany-caps-piracy-fines-577989


intensively debated on the WIPO Internet Treaties in 1996 and the conclusion back then was that

the issue of liability should be left to the national legislation to determine. This had the problem that

in a global world, many different approaches to this issue could be a problem in the future. This

thesis is fulfilled and there have been many different decisions in different national legal systems

that have lead to confusion.

!One of the earliest cases was Wang Meng. v. Century Interconnecting Telecom Co. Ltd, in China,

it involved an ISP that posted works of some chinese novelists without their consent, the Court

found that the authors were entitled to exploit their rights both online and offline and that the ISP

should be declared liable for the infringement . The doctrine has evolved very much, so has 71

happened with piracy, with many more ways of sharing infringing content than ever before.

!5.3 Case study: C-314/12 UPC Telekabel

!This recent case, of 27 March 2014, deals with the responsibility and the measures that the ISP"s

can be forced to taken in order not to be declared liable for copyright infringements on the Internet.

This decision is interesting because it is an example of the lack of resources that the Courts have in

relation to stop copyright infringements. It is also illustrative to understand how deep is the problem

of closing down streaming websites for copyright infringements. There are very few measures to be

taken against the infringements and these are difficult to apply as they need technical support by the

ISPs.

The facts of the case are that UPC Telekabel (ISP) on one side and Constantin and Wega (right

owners) on the other are having an issue related to the access to an Internet site that is providing the

users with illegal content. There are four questions referred to the Court, nevertheless and according

to the reasoning by the CJEU, the relevant questions to the case referred are only two:

!

�28

Civil Judgment of Beijing Haidian District People"s Court (1999) Hai Zhi Chu Zi, No.57. See Zhou Lin, ed., "China 71

Court Cases on Intellectual Property Rights," The Chinese People"s Public Security University Press (January 2002)


(1) “Is Article 8(3) of Directive 2001/29 to be interpreted as meaning that a person who makes

protected subject-matter available on the internet without the right-holder"s consent is using the

services of the ISP?

!(2) “Is it compatible with Union law to prohibit in general terms an ISP from allowing its

customers access to a certain website as long as the material available on that website is

provided exclusively or predominantly without the right-holder"s consent, if the access provider

can avoid incurring coercive penalties for breach of the prohibition by showing that it had

nevertheless taken all reasonable measures?”

!(1) The Court held in paragraph 30 of the decision that UPC Telekabel should be considered as

an intermediary within the meaning of Article 8(3) of Directive 2001/29 because according to the

Court"s wording, “it covers any person who carries a third party"s infringement of a protected work

or other subject-matter in a network”. In other words, it allows its customers to access protected

subject-matter made available to the public on the internet by a third party is an intermediary whose

services are used to infringe a copyright . 72

!According to the judgement, the Directive 2001/29 requires that the measures taken by Member

States are aimed not only at ending the infringements, but also at preventing them . This implies, 73

according to paragraph 38 of the Decision that the right owners may act without having to prove

that the customers of an ISP actually access the protected subject-matter made available to the

public without permission. Therefore, the Court answers to the first question that whoever makes

content available to the public without permission of the right owner is using the services of the ISP.

!(2) Regarding the second relevant question, the Court asks wether it can impose undetermined

measures to the ISP in order to achieve the aim of stopping the copyright infringements committed

by the website which allocates the content. This question is also taking into account the balance of

�29

C-314/12 UPC Telekabel v. Constantin and Wega, paragraph 3272

See also Case C-324/09 L"Oréal and Others, paragraph 131, Case C-70/10 Scarlet Extended, paragraph 31 and Case 73

C-360/10 SABAM, paragraph 29.


fundamental rights, in this case, the copyright and the freedom to conduct a business. The freedom

to conduct a business includes “the right for any business to be able to freely use, within the limits

of its liability for its own acts, the economic, technical and financial resources available to it”,

according to paragraph 49 of the Judgement. This right is not affected by an injunction that restricts

the use of that resources, as it allows the addressee of the injunction to avoid liability by proving

that he has taken all reasonable measures.

!As a conclusion, the CJEU helds that even though the measures taken in execution of the

injunction do not achieve the aim of the complete cease of the infringing website activities, they

should not be considered as incompatible with the requirement of a fair balance between all

applicable fundamental rights, provided that:

!(i) they do not unnecessarily deprive internet users of the possibility of lawfully accessing the

information available.

!(ii) that they have the effect of preventing unauthorized access to protected subject-matter or, at

least, of making it difficult to achieve and of seriously discouraging internet users who are

using the services of the addressee of that injunction from accessing the subject-matter that has

been made available to them in breach of the intellectual property right . 74

!This decision means that from now on, the ISP are going to be part of the fight against piracy.

They will be agents of the governments willing to combat copyright infringements on the Internet.

Whenever a tribunal issues an injunction asking the ISP to impede access to a certain website, the

ISP will have to take the necessary measures in order to accomplish the injunction. Nevertheless,

the tribunals do not have to specify what kind of measures should be taken. This burden belongs,

according to this recent decision, to the ISPs, which have to find the way to impede the access to a

website violating copyright.

!

�30

C-314/12 UPC Telekabel v. Constantin and Wega, paragraph 63 74


This shows how not only governments, also national tribunals and even the CJEU are not

capable of finding a way to fight the infringements on the Internet . They use the ISPs, probably 75

better trained in informatics knowledge, in order to find a way to impede access to a website. The

ISPs have already said that the measures that can be taken are undetermined, excessively expensive

and easy to skip even for an unskilled Internet user . The ISPs are compared with evil instruments 76

in this decision. It is considered that as the internet provider is an inevitable actor in any

infringement between one of its customers and a third party because it provides access to the service

that can lead to an infringement, it essentially makes that transmission possible.

!This burden is not a creation from the Court in this decision, it was already said in the the order

in Case C-557/07 LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten that “right-

holders should have the possibility of applying for an injunction against an intermediary who

"carries a third party"s infringement of a protected work or other subject-matter in a network". It is

common ground that access providers, in granting access to the Internet, make it possible for such

unauthorised material to be transmitted between a subscriber to that service and a third party” . 77

!According to my personal opinion the solution provided by the Court in this decision is a

botched job that is not going to solve the problem. It should not be the solution to blame the service

providers for criminal actions that are committed by its users. I would also like to grasp that

imposing such a burden to the ISP makes not only that the cost of the service will increase, also that

the freedom to carry a business will diminish, even though the Court held that it will not be

affected.

!!!!!

�31

See Ernesto, “How the Pirate Bay plans to beat censorship for good”, Torrentfreak. Available at: https://75

torrentfreak.com/how-the-pirate-bay-plans-to-beat-censorship-for-good-140105/

C-314/12 UPC Telekabel v. Constantin and Wega, paragraph 1676

C-557/07 LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten, paragraph 4477

https://torrentfreak.com/how-the-pirate-bay-plans-to-beat-censorship-for-good-140105/


6. Case Study: Case C-607/11

!It is also interesting to study the decision reached by the CJEU on 7 March 2013 regarding TVC

Catchup and its broadcasting services over the Internet. Yomvi offers a streaming service similar to

the one offered by the company in the proceedings. This company offered the possibility to access

to broadcasting services from the UK over the Internet. The terms and conditions accepted by its

users included the possession of a valid TV license and a restriction of use of TVC Catchup services

to the UK only. The difference with the Yomvi case is based on the right-owners. In this case, TVC

Catchup did not own the rights to broadcast, while Yomvi does as it is a subsidiary of Canal+, the

biggest Pay TV company in Spain. ITV and other broadcasting companies were the right owners of

copyrighted material which was constantly broadcasted over the Internet by TVC Catchup without

their consent. TVC based its revenue on adverts inserted on the website.

!The question referred was “wether the concept of communication to the public within the

meaning of Article 3(1) of Directive 2001/29 must be interpreted as covering retransmission of the

works included in a terrestrial television broadcast”, this question was formulated under certain

conditions: (1) where the retransmission was made by an organization other than the original

broadcaster, (2) by means of an internet stream made available to the subscribers of that other

organization who might receive the retransmission by logging on to its server, (3) on the assumption

that those subscribers were within the area of reception of the terrestrial television broadcast and

might lawfully receive the broadcast on a television receiver. According to the claimants there was a

communication to the public which was prohibited by the Directive.

!Comparing this situation with the Yomvi case it is clear that the retransmission is made by an

organization different than the original broadcaster. Yomvi also broadcasts on the Internet. The third

condition is the one which is most interesting to understand the problem reflected in this Thesis.

The distribution agreements makes the Yomvi service to assume that those accessing to the website

are not within the area of lawful reception of the terrestrial television broadcast and are unlawfully

receive the broadcast on a television receiver .

!

�32


The Court held a number of different conclusions which are now going to be enumerated.

!(1) The Court held that according to the doctrine stated before the concept of “communication to the

public” must be interpreted broadly . The main of Directive is to set a high level of protection of 78

authors and to allow them to obtain an appropriate reward for the use of their works, including on

the occasion of communication to the public.

!(2) The Court also held that the concept of "communication" was not defined exhaustively.

Therefore, the meaning and scope of "communication" has to be defined according to the context

in which it occurred and also in the light of its objective.

!(3) The Court found that given that as the making of works available through the retransmission of

a terrestrial television broadcast over the internet used a specific technical means different from that

of the original communication, that retransmission must be considered to be a

"communication"within the meaning of Article 3(1) of Directive 2001/29. Therefore, such a

retransmission could not be exempt from authorization by the authors of the retransmitted works

when these were communicated to the public.

!(4) Technical means to ensure or improve reception of the original transmission in its catchment

area did not constitute a "communication" within the meaning of Article 3(1) of Directive

2001/29 . 79

!(5) The Court found that the intervention by TVC was not intended to maintain or improve the

quality of the transmission by that other broadcasting organization. In those circumstances, that

intervention could not be considered to be a mere technical means. The Court added that the

protected works had to be communicated to a “public” in order the action to be categorized as a

“communication to the public” within the meaning of Article 3(1) of Directive 2001/29 . 80

�33

See Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others (2011)78

See also Joined cases C-431/09 and C-432/09, Airfield and Canal Digitaal, (2011).79

See also Case C-306/05 SGAE (2006)80


!The matter which is most important to point is that a company cannot re-broadcast the content

offered by the licensed broadcasting entities. This is interesting in two ways. The prohibition has

been set for the companies which rebroadcast but the decision does not deal with the broadcasting

entities which do not geo-block the content on the Internet, which could lead to a contract breach

with the licensors. There is a second interesting issue to comment. The authorization given by the

authors of the retransmitted works is essential when the work is used as a “communication to the

public”. It would be interesting to exclude the licensors from being forced to comply with this when

they are licensees from any Member State. If that happened, the free movement of services related

to audiovisual media would be closer to its aim.

!!7. Conclusion

!The issue that I have analyzed in this Thesis is not new in the European Union. As it has been

already explained, the project Licenses for Europe is looking for solutions that can improve the

functioning of the audiovisual worker within the internal market.

Creators are loosing revenue because it is not possible to have a unified market for on line content.

Nevertheless it is still possible to do business in illegal ways and this is precisely what Internet

privacy does. From my point of view, they sometimes just help to bridge the gaps that impede enjoy

from my Pay TV subscription.

Although the problem has become bigger than ever before, the Commission is already working in

the issue and the results already came out in the form of Directive 2014/26/EU, namely Directive on

collective management of copyright. This directive verses on collective rights, management and

multi - territorial licensing of rights in musical works for on line uses. The Member States have

achieve a complete transposition of the Directive by 10th April 2016. It is true that music has not

been the issue of this Thesis, nevertheless it is considered as a big step in a market which is simpler

but similar to the audiovisual and broadcast rights market. Despite the efforts of the Commission

and the recent cases dealing with the audiovisual works broadcasted on the Internet have still not

�34


been object of any Directive. This could mean a big change for consumers which travel to other

Member States and would also make the prices drop as the competition would be enhanced.

!Enjoying a service like Yomvi in another Member State has proven to be impossible without the

help of methods which allow the access by difficulting the effect of the geo-blocking systems.

Watching spanish public TV is also difficult because of the cuts in the broadcast on the Internet

when the programme intended to watch is property of a producer or distributor other than the public

broadcaster itself. This harms the free market and the circulation of culture, besides it makes it more

difficult for the European Union citizens to circulate and live in other Member States.

!There is a feeling that it is going to be a long and difficult road to walk. Big companies have huge

interests in a fragmented market but fortunately there is something they can not fight against,

privacy. Big efforts are made every year by security agencies, police departments and courts so that

illegal streaming comes to an end. Piracy has become an instrument that makes the legislators

realize that unless a better system is created for the circulation of audiovisual works, the market will

be affected by piracy. In my opinion, illegal streaming is a social scourge and should be qualified as

an illegal activity. Nevertheless, it is true that for the purpose of offering a service which is currently

impossible to receive due to the distribution agreement and the fragmentation in the market. Given

that, I will not stand against piracy on the Internet when it comes to live broadcasts as it is the only

possibility that I have sometimes to enjoy a service that I am paying for in another Member State.

!!!!!!!!!!

�35


Concluding Remarks

!To sum up, the current distribution agreements between the right-owners and the broadcasting

entities are the reason why the national TV broadcast services online are blocked in other Member

States. It is still early to vaticinate what is going to be the final solution for the issue studied in this

Thesis. It is true that after studying the UPC Telekabel decision I am of the opinion that Courts and

Institutions do not have enough effective legal instruments yet so that the distribution agreements

are better protected. This is why they impose a great part of the burden of controlling the illegal

activities related to copyright infringement on the Internet Service Providers. Internet piracy,

especially when it comes to illegal streaming is not something that will easily come to an end and

this is precisely why the instruments to fight against it should be improved.

!The main finding that I have achieved with this Thesis is the tension that arises between rights that

protect activities which are not compatible, namely the fragmentation of the market achieved by the

broadcasters by the distribution agreements and on the other hand the freedom to provide and

receive services in the EU. This tension is very difficult to solve but by virtue of the study that I

have carried out on the Premier League decision I can affirm that it is difficult to think that the

current distribution agreements can stay as they are. Nevertheless, the reason stated by the CJEU for

that is more based on the infringement of competition law rather than the free movement of

services.

!It is very important that initiatives such as the stakeholder’s dialogue with the Commission within

the Licenses for Europe project keeps going so that a strong link between both is established. This

would eventually lead to increasing the possibilities of creating a solid legal framework that protects

the revenues of the producers, increases competition in the market and respects the free movement

of services and culture in the European Union.

�36


Bibliography

!Books:

!- C.Tobler & J. Beglinger, Essential EU Law in Text, 72, 2nd ed. (2012).

!- European Copyright Code, The Wit tem Group,Apri l 2010. Avai lable a t

www.copyrightcode.eu

!Articles:

!1. A.Larson, How Geo-Blocking Could Kill Indie Film & TV, Veria website, 29 February 2012.

Available at: http://www.veria.ca/business-of-film/geo-blocking-kill-indie-film-tv.

2. Aaron D. Hall, What Is a Cease & Desist Letter?, Thompson Hall Santi Cerny & Dooley,

Available at http://thompsonhall.com/cease-desist-letter-template-example-sample-forms/

3. C. Mann, "Who Will Own Your Next Good Idea", The Atlantic Monthly, September 1998.

4. C. Woodford, Streaming media, Explain That Stuff, 2014, Available at: http://

www.explainthatstuff.com/streamingmedia

5. C. Woodford, IPTV, Explain That Stuff 2013, Available at: http://www.explainthatstuff.com/

how-iptv-works.html

6. Cisco Systems, Security section. Available at http://www.cisco.com/web/ES/solutions/es/vpn/

index.html

7. D. Doukas, “The Sky is not the (Only) Limit—Sports Broadcasting without Frontiers and the

Court of Justice: Comment on Murphy”, European Law Review, ISSN: 0307 5400, October

2012 EL Rev 2012 5.

�i

http://www.copyrightcode.eu


http://thompsonhall.com/cease-desist-letter-template-example-sample-forms/

http://www.explainthatstuff.com/streamingmedia.html

http://www.explainthatstuff.com/how-iptv-works.html

http://www.cisco.com/web/ES/solutions/es/vpn/index.html


8. Ernesto, “How the Pirate Bay plans to beat censorship for good”, Torrentfreak. Available at:


9. HotSpotShield, AnchorFree Learning Section. Available at http://www.hotspotshield.com/learn/

tor-vs-vpn

10. N. Bilton, “Internet Pirates Will Always Win”, The New York Times, 4 August 2012.

11. PC Mag Magazine, Encyclopedia, available at: http://www.pcmag.com/encyclopedia/term/

49892/proxy-server

12. Premier League Football Association, FAQ, How does the Premier League sell its TV rights?,

Premier League website, 2014. Available at: http://www.premierleague.com/en-gb/fans/faqs/

how-does-the-premier-league-sell-its-tv-rights.html

13. J. Mullin, Study of French “three strikes” piracy law finds no deterrent effect, Law & Disorder/

Civilization & Discontents, Ars Technica, 24 January 2014. Available at http://arstechnica.com/

tech-policy/2014/01/study-of-french-three-strikes-piracy-law-finds-no-deterrent-effect/

14. J. Taylor, “France drops Hadopi three-strikes copyright law”, ZDNet, 10 July 2013 Available at:


15. Lawrence M. Vance, “Price discrimination is fair and just”, The Future of Freedom Foundation,

29 November 2011 Available at: http://fff.org/explore-freedom/article/price-discrimination-fair/

16. PwC"s Media Industry Accounting Group (MIAG), “Broadcast Television: Acquired

Programming Rights”, 2012, p.24.

17. R. Ferraz Vázquez, Sport and broadcasting rights: Adding Value, WIPO Magazine

www.wipo.int/wipo_magazine/en/2013/02/article_0005.html. April 2013.

18. R. Preston McAfee, “Price Discrimination”, Issues in Competition Law Policy, 2008, ABA

Section of Antitrust Law at 465

�ii


http://www.hotspotshield.com/learn/tor-vs-vpn

http://www.pcmag.com/encyclopedia/term/49892/proxy-server

http://www.premierleague.com/en-gb/fans/faqs/how-does-the-premier-league-sell-its-tv-rights.html

http://arstechnica.com/tech-policy/2014/01/study-of-french-three-strikes-piracy-law-finds-no-deterrent-effect/


http://fff.org/explore-freedom/article/price-discrimination-fair/



19. S. Moon, Information Gathering with Nmap Script, Security, Binary Tides, 4 March 2013.

20. Stephen E. Siwek. Copyright Industries in the U.S Economy, The 2002 Report. International

Intellectual Property Alliance, at 1. Available at http://www.iipa.com

21. S. Roxborough, Germany Caps Piracy Fines, The Hollywood Reporter, 7 January 2013.

Available at http://www.hollywoodreporter.com/news/germany-caps-piracy-fines-577989

!Primary legislation:

!- Consolidated Version of Treaty Establishing the European Community, Rome Treaty, 25 March

1957, not published.

- Consolidated Version of the Treaty on European Union, in force since 01.12.2009, OJ C 83/13

(30.03.2010).

!- Consolidated Version of the Treaty on the Functioning of the European Union, in force since

01.12.2009, OJ C 83/47 (30.03.2010).

!!Secondary legislation:

!- Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal

protection of databases. OJ L 77, 27 March 1996, p. 20–28.

!- Directive 98/84/EC of the European Parliament and the Council on the legal protection of

services based on conditional access. OJ L 320 28 November 1998, p. 54 - 57.

!- Directive 2009/24/EC of the European Council on the legal protection of computer programs. OJ

L 122, 17 May 1991, p. 9–13.

�iii

http://www.iipa.com/pdf/2002_SIWEK_FULL.pdf

http://www.hollywoodreporter.com/news/germany-caps-piracy-fines-577989


!- Directive 2001/29/EC of the European Parliament and the Council on the harmonisation of

certain aspects of copyright and related rights in the information society. OJ L 167 22 June 2001

p. 10.

!International Law Treaties:

!- Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, as last

revised at Paris on July 24, 1971, 1161 U.N.T.S. 30

!- Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh

Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299; 33 I.L.M.

1197 (1994)WIPO Copyright Treaty, Dec. 20, 1996, 2186 U.N.T.S. 121, S. Treaty Doc. No.

105-17 (1997); 36 I.L.M. 65 (1997)

!- WIPO Performances and Phonograms Treaty, Dec. 20, 1996, 2186 U.N.T.S. 203, S. Treaty Doc.

No. 105-17 (1997); 36 I.L.M. 76 (1997)

!Other legislation:

!- U.S. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (Oct. 19, 1976).

!Institutions documents:

!- Commission Staff Working Document accompanying the Annex to Commission"s report on

Competition Policy 2012, COM(2013) 257 final.

!- Communication from the Commission on content in the Digital Single Market. COM/2012/0789

Final, p. 3

!

�iv


- Creative content in a European Digital Single Market: Challenges for the Future. Document by

DG INFO and DG MARKT, 2009.

!- Green Paper on the online distribution of audiovisual works in the European Union:

opportunities and challenges towards a digital single market, European Commission, 13.7.2011,

COM(2011) 427 final.

!- Joint Statement on Cross-border Portability of lawfully-acquired Audiovisual Content, Structured

Stakeholder Dialogue 2013, Licences for Europe, available at http://ec.europa.eu/licences-for-

europe-dialogue/sites/licences-for-europe-dialogue/files/1-AV-portability.pdf

!- Licences for Europe stakeholder dialogue – Frequently Asked Questions, European Commission

Memo, November 2013. Available at http://europa.eu/rapid/press-release_MEMO-13-986

!- Ten pledges to bring more content online, Licenses for Europe. Structured Stakeholder Dialogue

2013. Available at http://ec.europa.eu/internal_market/copyright/docs/licences-for-europe/

131113_ten-pledges_en.pdf

!- The Impact on Intellectual Property Law: A Survey of Issues, WIPO Report, 2002.

!CJEU Cases:

- Case 15/74 Centrafarm BV and Adriaan De Peijper v Sterling Drug Inc [1974] ECR 1147

- C-158/86 Warner Brothers v Christiansen [1989 ]ECR I-05171

- C-341/87 EMI Electrola v Patricia Im [1989] ECR I-00079

- Case C-154/89, Commission of the European Communities v French Republic [1991] ECR

I-00659

- Case C-3/91 Exportur v LOR [1992] I-05529

- Case C-384/93, Alpine Investments v. Minister van Financiën [1995] ECR I-01141

�v

http://ec.europa.eu/licences-for-europe-dialogue/sites/licences-for-europe-dialogue/files/1-AV-portability.pdf

http://europa.eu/rapid/press-release_MEMO-13-986_en.htm?locale=en



- Case C-388/95 Belgium v Spain [2000] ECR I-03123

- Case C-17/00 François De Coster v Collège des bourgmestre et échevins de Watermael- Boitsfort

[2001] ECR I-09445

- Case C-215/01 Proceedings against Bruno Schnitzer [2003] ECR I-14847

- Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA.

[2006] ECR I-11519

- Case C-250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I-1113

- Case C-557/07 LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten [2009] ECR

I-01227

- Case C-46/08 Carmen Media Group Ltd v Land Schleswig-Holstein y Innenminister des Landes

Schleswig-Holstein [2010] ECR I-08149

- Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others [2011]

ECR I-09083.

- Case C-324/09 L"Oréal and Others [2011] ECR I-06011

- Joined cases C-431/09 and C-432/09, Airfield NV and Canal Digitaal BV v Belgische Vereniging

van Auteurs, Componisten en Uitgevers CVBA (Sabam) and Airfield NV v Agicoa Belgium

BVBA (C-432/09) [2011] ECR I-09363

- Case C-70/10 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL

(SABAM) [2011] ECR I-11959

- Joined Cases C-357/10 to C-359/10 Duomo Gpa Srl (C-357/10), Gestione Servizi Pubblici Srl

(C-358/10), Irtel Srl (C-359/10) v Comune di Baranzate (C-357/10 and C-358/10), Comune di

Venegono Inferiore (C-359/10) [2012], n.y.r (not yet reported).

�vi


- Case C-360/10 SABAM [2012], published in the electronic Reports of Cases (Court Reports -

general)

- Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega

Filmproducktionsgesellschaft GmbH [2014], n.y.r.

!Other Cases:

!- Civil Judgment of Beijing Haidian District People"s Court (1999) Hai Zhi Chu Zi, No.57. See

Zhou Lin, ed., "China Court Cases on Intellectual Property Rights," The Chinese People"s Public

Security University Press (January 2002).

- eBay Inc. and eBay AG v. Louis Vuitton Malletier; eBay Inc. and eBay AG v. Parfums Christian

Dior; eBay Inc. and eBay AG v. Christian Dior Couture (CA Paris, March 9, 2010).

- Nev. D, “Field v. Google, 412 F. Supp. 2d 1106”, (2006).

!Other documents:

!- United States v. Megaupload Limited. Eastern District of Virginia, 5 January 2012 Indictment

Available at http://www.washingtonpost.com/wp-srv/business/documents/megaupload

- Canal+ website, Terms and conditions, Article 5.1. Available at http://www.plus.es/

condicionescontratacion

- Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others [2011]

ECR I-09083, Opinion of AG Kokott.

�vii

http://curia.europa.eu/jcms/jcms/P_106320?rec=RG&jur=C&PortalAction_x_000_userLang=en#201202C0018

http://www.washingtonpost.com/wp-srv/business/documents/megaupload_indictment.pdf

http://www.plus.es/condicionescontratacion

Broadcasting Rights on the Internet

Documents

Transcript of Broadcasting Rights on the Internet