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Vereniging Buma v. Chellomedia Programming

2009 June 23

Court: Netherlands Supreme Court

Date: June 19th, 2009

LJN number: BH7602

Case: Chellomedia produces and distributes a portfolio of thematic television channels. The television programs contain works of music protected by the Dutch Copyright Act. Chellomedia transmits its programs as encrypted digital files to the Telstar 12 satellite, which beams the files to cable operators and DTH platforms. The cable operators and DTH platforms eventually broadcast the digital television programmes that they receive from Chellomedia. The cable operatiors and DTH platforms pay the required contribution to Buma, a collective rights management organisation of songwriters in the Netherlands. But Buma alleged that Chellomedia's transmissions via satellite to the cable operators and DTH platforms should in itself be considered infringing reproductions, since the programmes contained works of music protected by the Dutch Copyright Act and no approval for the distribution of the signal had been given by Buma. The Court and the Court of Appeal dismissed the claim of Buma and Buma decided to appeal to the Netherlands Supreme Court.

Held: The case asks for an answer to the question whether this is a communication to the public as meant in Article 12 of the Dutch Copyright Act, that should be construed in accordance with EU Council Directive 2001/29. The Netherlands Supreme Court refers to two decisions of the European Court of Justice (SGAE/Rafael Hoteles and Lagardère) from which it follows that the term 'public' refers to an indeterminate number of potential television viewers.

As in the Lagardère case, the Netherlands Supreme Court decides that a limited circle of persons who can receive the signals from the satellite only if they use professional equipment cannot be regarded as part of the public. The case is dismissed.

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