SOURCE: Monthly Case-law Digest - February 2021
Reference for a preliminary ruling – Directive 2010/13/EU – Provision of audiovisual media services – Article 4(1) – Freedom to provide services – Equal treatment – Article 56 TFEU – Articles 11 and 20 of the Charter of Fundamental Rights of the European Union – Audiovisual commercial communication – National legislation prohibiting television broadcasters from inserting in their programmes broadcast throughout the national territory television advertisements whose broadcasting is limited to a regional level
Fussl Modestraße Mayr GmbH, a company incorporated under Austrian law, operates a network of fashion shops in Austria and the Land of Bavaria (Germany). In 2018, it concluded a contract with SevenOne Media GmbH, the marketing company of the German television station ProSiebenSat.1. That contract concerned the broadcasting, solely in the Land of Bavaria, of advertising in the context of programmes of the national channel ProSieben.
However, SevenOne Media refused to perform that contract. Since 2016, a State Treaty concluded by the Länder has prohibited television broadcasters from inserting, in their national broadcasts, television advertisements whose broadcasting is limited to a regional level. That prohibition aims at reserving revenue from regional television advertising for regional and local television broadcasters, thus ensuring them a source of financing and thus their sustainability, in order to enable them to contribute to the pluralistic character of the offer of television programmes. The prohibition is accompanied by an ‘opening clause’, allowing the Länder to authorise regional advertising in the context of national broadcasts.
Under those circumstances, the Landgericht Stuttgart (Regional Court, Stuttgart, Germany), ruling on a dispute relating to the performance of the contract in question, questions the conformity of that prohibition with EU law.
That case invites the Court, in particular, to apply certain principles enshrined in its case-law on the freedom to provide services and to interpret the Charter of Fundamental Rights of the European Union (‘the Charter’) in the particular context of a prohibition on regional advertising on national television channels. Such an analysis cannot disregard the existence of advertising services provided on internet platforms which may constitute competition for traditional media.
Findings of the Court
In the first place, as regards the Audiovisual Media Services Directive, the Court notes that Article 4(1) thereof, according to which Member States may, under certain conditions, provide for more detailed or stricter rules in the fields coordinated by that directive, for the purpose of ensuring the protection of the interests of viewers, does not apply in the present case. Although the prohibition at issue falls within a field covered by the directive, namely that of television advertising, it concerns however a specific matter which is not governed by any of the articles of that directive and does not, moreover, pursue the objective of protecting viewers. Therefore, it cannot be qualified as a ‘more detailed’ or ‘stricter’ rule within the meaning of Article 4(1) of that directive, so that that provision does not preclude such a prohibition.
In the second place, as regards the conformity of the prohibition at issue with the freedom to provide services guaranteed by Article 56 TFEU, the Court notes, first of all, that such a prohibition entails a restriction on that fundamental freedom to the detriment of both the providers of advertising services, namely, television broadcasters, and the recipients of those services, namely, advertisers, in particular those established in other Member States. Next, as regards the justification for that restriction, the Court notes that the preservation of the pluralistic nature of the offer of television programmes may constitute an overriding reason in the public interest. Finally, as regards the proportionality of the restriction, the Court notes that, admittedly, the objective of maintaining media pluralism, in so far as it is linked to the fundamental right to freedom of expression, gives the national authorities a wide discretion. However, the prohibition at issue must be such as to guarantee the attainment of that objective and may not go beyond what is necessary to attain it.
In that regard, the Court notes, first, that the prohibition at issue could be vitiated by an inconsistency, relating to the fact, to be verified by the national court, that it applies only to advertising services provided by national television broadcasters and not to advertising services, in particular linear advertising services, provided on the internet. At issue could be two competing types of services on the German advertising market which are likely to present the same risk to the financial health of regional and local television broadcasters and, hence, to the objective of protecting media pluralism . Secondly, concerning the necessity for the prohibition, the Court considers that a less restrictive measure could result from the effective implementation of the authorisation system at the level of the Länder provided for by the ‘opening clause’. However, it is for the national court to verify whether that a priori less restrictive measure can actually be adopted and implemented in such a way as to ensure that, in practice, the objective pursued can be achieved.
In the third place, as regards the freedom of expression and information guaranteed by Article 11 of the Charter, the Court notes that the latter does not preclude a prohibition of regional advertising on national television channels, such as that contained in the national measure at issue. That prohibition is essentially a balancing act between, on the one hand, the freedom of commercial expression of national television broadcasters and advertisers and, on the other hand, the protection of media pluralism at regional and local level. Therefore, the German legislature was entitled to consider, without exceeding the wide margin of appreciation which it is entitled to in that context, that safeguarding the public interest should prevail over the private interest of national television broadcasters and advertisers.
In the fourth and last place, the Court holds that the principle of equal treatment, enshrined in Article 20 of the Charter, also does not preclude the prohibition at issue, provided that it does not give rise to unequal treatment between national television broadcasters and providers of advertising, in particular linear advertising, on the internet as regards the broadcasting of advertising at regional level. In that regard, it is for the national court to ascertain whether the situation of national television broadcasters and that of providers of advertising services, in particular linear advertising services, on the internet, with respect to the provision of regional advertising services, is significantly different as regards the elements characterising their respective situations, namely, in particular, the usual ways in which advertising services are used, the manner in which they are provided or the legal framework within which they are provided.
SOURCE: Monthly Case-law Digest - March 2021
Reference for a preliminary ruling – Intellectual property – Copyright and related rights in the information society – Directive 2001/29/EC – Article 3(1) – Concept of ‘communication to the public’ – Embedding, in a third party’s website, of a copyright-protected work by means of the process of framing – Work freely accessible with the authorisation of the copyright holder on the licensee’s website – Clause in the exploitation agreement requiring the licensee to introduce effective technological measures against framing – Lawfulness – Fundamental rights – Article 11 and Article 17(2) of the Charter of Fundamental Rights of the European Union
Stiftung Preußischer Kulturbesitz (‘SPK’), a German foundation, is the operator of the Deutsche Digitale Bibliothek, a digital library devoted to culture and knowledge, which networks German cultural and scientific institutions. The website of that library contains links to digitised content stored on the internet portals of participating institutions. As a ‘digital showcase’, the Deutsche Digitale Bibliothek itself stores only thumbnails, that is to say smaller versions of original images. VG Bild-Kunst, a visual arts copyright collecting society in Germany, maintains that the conclusion with SPK of a licence agreement for the use of its catalogue of works in the form of thumbnails should be subject to the condition that the agreement include a provision whereby SPK undertakes, when using the works covered by the agreement, to implement effective technological measures against the framing, by third parties, of the thumbnails of such works on the website of the Deutsche Digitale Bibliothek. SPK considers that such a term in the agreement is not reasonable in the light of copyright, and brought an action before the German courts seeking a declaration that VG Bild-Kunst is required to grant SPK that licence without any condition requiring the implementation of such measures to prevent framing. Against that background, the Bundesgerichtshof (Federal Court of Justice, Germany) asks the Court for a determination of whether that framing must be held to be a communication to the public within the meaning of Directive 2001/29, which, if that is the case, would permit VG Bild-Kunst to require SPK to implement such measures.
The Grand Chamber of the Court holds that the embedding by means of framing, in a website page of a third party, of works protected by copyright and made freely accessible to the public with the authorisation of the copyright holder on another website constitutes a communication to the public where that embedding circumvents protection measures against framing adopted or imposed by the copyright holder.
Findings of the Court
First, the Court states that the alteration in the size of the works in framing is not a factor in the assessment of whether there is an act of communication to the public, so long as the original elements of those works are perceptible. Next, the Court states that the technique of framing constitutes an act of communication to a public, since the effect of that technique is to make the posted element available to all the potential users of a website. Further, the Court states that, provided that the technical means used by the technique of framing are the same as those previously used to communicate the protected work to the public on the original website, namely the Internet, that communication does not satisfy the condition of being made to a new public and that communication accordingly does not fall within the scope of a communication ‘to the public’, within the meaning of Directive 2001/29.
However, the Court adds that that consideration is applicable only in a situation where access to the works concerned on the original website is not subject to any restrictive measure. In that situation, the right holder has authorised from the outset the communication of his or her works to all internet users. Conversely, the Court states that, where the right holder has established or imposed from the outset restrictive measures linked to the publication of his or her works, he or she has not agreed to third parties being able to communicate his or her works freely to the public. On the contrary, his or her intention was to restrict the public having access to his or her works solely to the users of a particular website. Consequently, the Court holds that, where the copyright holder has adopted or imposed measures to restrict framing, the embedding of a work in a website page of a third party, by means of the technique of framing, constitutes an act of ‘making available that work to a new public’.
That communication to the public must, therefore, be authorised by the right holders concerned. The opposite approach would amount to creating a rule on exhaustion of the right of communication. Such a rule would deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his or her work. Accordingly, the consequence of such an approach would be that the need to safeguard a fair balance in the digital environment, between, on the one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property, and, on the other, the protection of the interests and fundamental rights of users of protected subject matter, would be disregarded. Last, the Court makes clear that a copyright holder may not limit his or her consent to framing by means other than effective technological measures. In the absence of such measures, it might prove difficult to ascertain whether that right holder intended to oppose the framing of his or her works.