Austria’s leading collecting society AKM is not shy in introducing test cases against prominent market players.
by Dr. Nikolaus Kraft, LL. M.
Lawyer | MSP-LAW
Some of these cases even keep the CJEU busy. Recent examples are key cases in connection with the Austrian private copy levy (C-521/11 and C-572/14, both AKM vs Amazon) or the right of communication to the public and Austrian peculiarities in this field (C-138/16, AKM vs. Zürsnet).
Another example of AKM’s litigation practice recently led to the Austrian Supreme Court’s (ASC) decision dated March 16th 2017 (case 4 Ob 137/16z, AKM vs. M7). The decision deals with the scope of Art 7 Nr. 2 (Regulation 1215/2012) to define the competent court in the context of satellite broadcasts:
At the core of the case are satellite bouquet services which bundle various TV programmes in high definition. For some of the TV programmes this equals a primary exploitation, for others it constitutes “only” a secondary integral exploitation. The uplink of the relevant programme-carrying signals takes place via direct injection in Luxembourg and not in Austria.
Although the bundled programmes include works belonging to AKM’s repertoire, the bouquets are marketed to a closed circle of paying subscribers in Austria without AKM’s consent. When confronted with claims of AKM, the bouquet provider denied any necessity to enter into a license agreement with AKM.
AKM then filed the writ, but not in Luxembourg: It introduced the proceedings in Austria where AKM is based and the marketing of the satellite bouquets takes place. The claims for an injunction, information and payment of license fee plus damages are based on the broadcasting right as well as a technology-neutral interpretation of the retransmission right. Relying on the country of origin-principle (Art 1 (2) lit b) SatCab-Directive 93/83), the courts of first and second instance denied their competence.
As third and highest instance in copyright matters in Austria, the ASC came to a different conclusion: The ASC makes clear that case-law and opinions in legal writing are divided whether the country of origin-principle according to the SatCab-Directive also governs the international jurisdiction in relation to a satellite transmission. Whereas various scholars, Michel Walter and Thomas Dreyer among them, support this argument, the German Federal Supreme Court denies this explicitly (case I ZR 75/10).
The ASC follows the latter and states that Art 1 (2) lit b) of the SatCab-Directive 93/83 is no provision of international private law. As Austria is the territory for which AKM claims the intentional infringements of the rights in its repertoire, it is also the territory where the bouquet provider’s obligation to pay the license fees and damages occurs. Consequently, on the basis of Art 7 Nr. 2 of Regulation 1215/2012, the Austrian courts are competent for all claims related to infringements on the Austrian market claimed by AKM. For the sake of clarification, the ASC confirms this competence even if material Luxembourg copyright law should have to be applied due to the country of origin-principle. So, without further adoo, the case has gone back to the court of first instance and the main proceedings can start.
Today, satellite bouquets are popular and relevant. Yet, common practice of providers of such services is to shrug off all right holders which are based outside the country of origin. This new decision of the ASC might be very helpful for right holders in the future: In Austria, a satellite bouquet provider unwilling to entire into sincere licencing talks can also be held accountable in the territory where such bouquets are in fact sold and income is achieved. This might shift the momentum to the benefit of the rightholders.
Link to decision: Justice (OGH, OLG, LG, BG, OPMS, AUSL)
*The decision is only available in German at this time. If a translation becomes available, we will be sure to share with you.
For more information about Dr. Nikolaus Kraft, LL. M., please click here to view his biography.
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