Under One Umbrella: Problems of Internet Retransmissions of Broadcasts and Implications for New Audiovisual Content Services

• Author: Katarzyna Klafkowska-Wasniowska
• Position: PhD European Law Departement Faculty of Law and Administration Adam Mickiewicz University Poznan
• Pages: 86-97

2015

Katarzyna Klafkowska-Waśniowska

86

1

Under One Umbrella

Problems of Internet Retransmissions of Broadcasts and

Implications for New Audiovisual Content Services

by Katarzyna Klafkowska-Waśniowska, PhD European Law Departement Faculty of Law and Administration

Adam Mickiewicz University Poznan. The article is part of the research project financed by the NCN (Narodowe

Centrum Nauki in Poland) No 2012/07/B/HS5/03921.

© 2015 Katarzyna Klafkow ska-Waśniowska

Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: Kata rzyna Klafkowska-Waśniowska, Under one umbrella Prob lems of Internet Retransmissions of

Broadcasts and Impli cations for New Audiovisual Content Services , 6 (2015) JIPITEC 86, para 1.

Keywords: Audiovisual Media Services; CJEU; Right to make available to the Public; WCT; InfoSoc

transmission. The Aereo case raised the debate

on the possible impact of the interpretation of

copyright law in the context of the development of

new technologies, particularly cloud based services.

It is interesting to see whether any similar problems

occur in the EU. The „umbrella” in the title refers

to Art. 8 WCT, which covers digital and Internet

transmission and constitutes the backrgound for the

EU and the U.S. legal solutions. The article argues

that no international standard for qualification of the

discussed services exists.

Abstract: The development of broadband

Internet connections has fostered new audiovisual

media services and opened new possibilities for

accessing broadcasts. The Internet retransmission

case of TVCatchup before the CJEU was the first case

concerning new technologies in the light of Art. 3.1. of

the Information Society Directive. On the other side of

the Atlantic the Aereo case reached the U.S. Supreme

Court and challenged the interpretation of public

performance rights. In both cases the recipients

of the services could receive broadcast programs

in a way alternative to traditional broadcasting

channels including terrestrial broadcasting or cable

A. Introduction.

1 The aim of the WIPO Copyright Treaty (hereinafter:

„WCT”) was to set the scene for the exploitation

of works on the Internet. In the package of rights

that should have ensured the interests of authors

in the new (at the time of conclusion of the treaty)

environment, a prominent one is the right of

communication to the public covering electronic

transmission. According to Art. 8 of the WCT,

without prejudice to the provisions of the Berne

Convention expressly referred to in this provision

„authors of literary and artistic works shall enjoy the

exclusive right of authorizing any communication to

the public of their works, by wire and wireless means”.

According to the nal part of the provision, the

right includes the right to make a work available to

the public in such a way that members of the public

may access this work from a place and at a time

individually chosen by them. The characteristics

of the Internet retransmission cases discussed in

this article are that they may involve the authors’

rights as specied in the WCT, but also the rights

in broadcast programs or rights of audio-visual

producers. It is not necessary for the purpose of the

article to unbundle those rights, yet it should be

stressed that provisions of the WCT form the context

in which the interpretation of provisions of the EU

and the U.S. law is set, and that in the discussed

cases the authors, and not the neighboring rights