Is satellite really the same as cable under Czech Copyright Law

April 18, 2020 marks two years since the Czech Supreme Court confirmed two lower court decisions by ruling that “cable retransmission” – within the meaning of Czech Copyright Act – can be Euro-conformally interpreted to include also retransmission (communication to the public) by satellite (case no. 30 Cdo 3972/2017).

The Czech Supreme Court came to its conclusion by interpreting the Czech Copyright Act according to Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.

Over the last two years, stakeholders in the Czech Republic have heatedly discussed this issue, both from legal and technological perspectives. Directive 93/83/EEC was also the subject of discussion, specifically clause 1(3) which defines “cable retransmission” as "the simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public."

Most professionals (including the author of this article) share the legal opinion that the Czech Supreme Court interpretation is not correct since “cable retransmission” within the meaning of the Czech Copyright Act does not include retransmission by satellite.

One of the reasons is that the phrase “including that by satellite” in Directive 93/83/EEC merely relates to the initial transmission and not retransmission (This is confirmed by the Proposal for the Directive 93/83, COM(91) 276 final – SYN 358 of 11 September 1991, page 36, point 10).

Although this justification seems sufficient, the Czech Supreme Court's decision should also be questioned in light of development in European law, specifically with Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down the rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC.

Directive 2019/789 addresses the growing distribution of radio and television programmes in the EU by approximating the system of collective rights management of the rights to other than cable retransmission to the system of collective rights management of the rights to cable retransmission under the Directive 93/83/EEC. For this purpose, Directive 2019/789 in clause 2(2) defines “retransmission” as "any simultaneous, unaltered and unabridged retransmission, other than cable retransmission as defined in Directive 93/83/EEC, intended for reception by the public, of an initial transmission from another Member State of television or radio programmes intended for reception by the public, where such initial transmission is by wire or over the air including that by satellite, but is not by online transmission…"

The comparison of clause 1(3) of Directive 93/83/EEC and clause 2(2) of Directive 2019/789 shows that both refer to “satellite” within the same meaning: the reception of the initial transmission. In addition, points (6) and (14) of the preamble of Directive 2019/789 provide for specific differentiation between retransmission by “cable or microwave systems”, regulated by Directive 93/83/EEC, and retransmission by “satellite, digital terrestrial, mobile or closed circuit IP-based and similar networks or through internet access services as defined in Regulation (EU) 2015/2120 of the European Parliament and of the Council”, regulated by Directive 2019/789.

These findings further support the legal opinion that the Czech Supreme Court decision was not Euro-conformal because the European legislator does not consider retransmission by satellite a mere technical possibility of cable retransmission within the meaning of the Directive 93/83/EEC, but rather as other than cable retransmission within the meaning of the Directive 2019/789.

In light of the above, the Euro-conformal interpretation of the Czech Copyright Act should be that satellite is not the same as cable. However, only time and new judicial decisions will tell if the interpretation made by the Czech Supreme Court will be sustained or will be overruled considering the presented legal opinion and the regulation of the Directive 2019/789.

For more information on this eAlert and opportunities in the Czech cable and satellite industries, contact your regular CMS advisor or local CMS expert: Jan Jezek.