2023-06-12 Controversy over the notion of direct injection presentation.pdf

Controversy over the notion of "direct injection"
under the right of
communication of works to the public
Janusz Piotr Kolczyński, Institute for Legal Studies, Polish Academy of Sciences
Intellectual property law seminar
under the scientific supervision of Prof. Dr. Helena Żakowska-Henzler
Warsaw, 1.06.2023.
Source: https://commsrisk.com/direct-
injection-tv-who-pays-the-royalties/

Legal environment for direct injection ("DI")
Janusz Piotr Kolczyński, Institute of Legal Studies, Polish Academy of Sciences
In the Polish Copyright and Neighbourig
Rights Act, the definitions of:
• dissemination - Art. 6(1)(3)
• broadcasting - Art. 6(1)(6)
• rebroadcasting - Art. 6(1)(5)
Source: https://theconversation.com/saving-broadcastings-
past-for-the-future-archivists-are-working-to-capture-not-
just-tapes-of-tv-and-radio-but-the-experience-of-tuning-in-
together-204509
DI as a "one single act of communication
to the public" - Directive 2019/789 the so-
called "SatCab2 Directive"
Public transmission

Basic features of the public communication field
Communication at a distance to the
public not present at the place of
transmission - the main feature that
distinguish the right of communication to
the public from other fields of exploitation
 reproduction
 rentals
 lending
 public playback
 distrubution
Source: https://elements.envato.com/communication-JL2LL9W
No material copy

The technical environment in which DI operates?
Broadcasting
satellite
online
terrestrial
Rebroadcasting
 cable and
variations:
 online
 IPTV
 etc.
Source: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2016:0301:FIN:EN:HTML
SWD(2016) 301 final

Technology of 1990s - satellite dishes everywhere!
Until 1996, the understanding of the
right of communication to the public
was, in practice, satellite
broadcasting on Hertz waves.
In the 1990s, the concept of cable
re-broadcasting simultaneous with
broadcasting and unaltered
(integral) by an organisation other
than the broadcaster emerged.
Source:
https://elements.envato
.com/satellite-tv-
antenna-fixed-onto-a-
tree-trunk-outdo-
KFDZGAN
Source: https://elements.envato.com/sky-
VVGN32T

The technical process as a focus of DI
Broadcasting of works
means their
communication by radio
or television, through
either wireless (terrestrial
or satellite) or wire
transmission
Rebroadcasting of works
means their
communication by an
operator other than the
original broadcaster by
taking over an unabridged
and unaltered programme
of a radio or television
broadcasting organisation
and transmitting it
simultaneously and
integrally for reception by
the public
Source:
https://en.wikipedia.org/wiki/Repeater
Article 6(1)(5) of the Copyright Act.
Article 6(1)(4) of the Copyright Act.

Lack of technical definitions in PL and EU
Source: https://elements.envato.com/old-television-in-abandoned-
building-D24FT3Y
SatCab1 Directive - 93/83
SatCab2 Directive - 2019/789
 "act of introducing"
 "uninterrupted chain of communication
leading to the satellite and down towards
the earth – Art. 1(2)(a) SatCab1
 "transmission path/route/chain" - Art. 6(1)
CAPL
 "transmission" etc.
Why? Deliberately omitted by the rational
legislator because of the postulate of
technological neutrality?

Why the lack of technical definitions in right of communication
to the public?
Legally non-relevant signal
operations before it is made
public
Legally relevant: „it is the
signals which must be intended
for the public and not the
programmes that they carry”.
14.07.2005 C-192/04 (35) CJEU in the Lagardere
case
Source: https://www.nar.realtor/magazine/real-estate-news/law-and-ethics/protect-your-
website-from-copyright-claims

Examples of EU, international and EN regulations
 The SatCab1 or SatCab2 directives speak of a retransmission
intended for public reception, carried out with reference to the
'primary transmission', which is also intended for public reception.
 Directive 2021/29 so-called 'InfoSoc' - speaks of public
transmission or retransmission of works, by wire or wireless
means, excluding (lege non distinguente) any non-public means
of transmission of a work
 cf. recital 23
 the Polish definitions of broadcasting or satellite broadcasting
provide for broadcasting (by wire or wireless) only in relation to a
disseminated work
 cf. Art. 6(1)(4) and Art. 61 of the CAPL

Signal transmission made in a non-public manner
The notionof direct injection is an important breakthrough. Legally
relevant for the right of communication to the public at a distance
becomes the carrying out of transmissions also in a non-public
manner.
The EU legislator has taken an interest in the technical process
behind the acquisition and introduction of broadcasting signals.

Point-to-point telecommunication networks
In relation to the CJEU Airfield case of 2011 it was
clear that the interception of radio and television
signals nowadays mainly takes place in the
privacy of servers via telecommunications
networks - "point-to-point".
Cf. judgment of 13.10.2011 in Joined Cases C-431/09 and C-432/09 Airfield NV, Canal Digitaal BV v Belgische Vereniging van
Auteurs, Componisten en Uitgevers CVBA (Sabam) (C-431/09), and Airfield NV v Agicoa Belgium BVBA (C-432/09),
ECLI:EU:C:2011:648, para 7.
Source: https://www.nature.com/articles/s41467-019-10077-4
Modular coherent photonic-aided payload receiver for
communications satellites

Claims made in relations with the Airfield case
 no re-transmission within the meaning of the SatCab Directive1?
 the operators do not touch the signal?
 they act on behalf of the broadcasters?
 it is the broadcasters who ensure authorisation?

What the CJEU found
The CJEU adopted the reasoning of the operators in the
Airfield joined cases and distinguished, within the framework
of the right of communication to the public, other than re-
broadcasting (and contrary to Advocate General Jääskinen),
between direct and indirect transmission of television
programmes by holding that both forms of transmission
require the consent of the right holders if they create a so-
called new public.

Indirect and direct transmission in Airfield
- the role of the signal distributor
Direct transmission
by the broadcaster:
the provision of access keys to
broadcasters to enable Airfield
subscribers to subsequently
decode programmes using a
decoding card
Indirect transmission
by the broadcaster:
compression of signals,
multiplexing, encryption
and sending to satellite for
transmission and reception
The following are forms of DI that require the consent if they build
a new public

Paradox of the Airfield case from 2011 and Sabam from 2015
.
No re-broadcasting = no remuneration for authors, no mediation
by the collecting societies
SatCab2 Directive as a remedy and DI as one of many ways for
rebradcasters to obtain RTV signals
It's not re-broadcasting, it's distribution carried out by the distributor
(not the re-broadcaster), unless the signal would be available in
the territory in a public way, in which case it's re-broadcasting.
- cf. Recital 21 and Article 7 of the SatCab2 Directive
Source: https://mockomunikacji.com/kura-czy-jajko-mowa-czy-komunikacja/

Differentiation in the SatCab2 Directive on signal availability
Signal availability
on the territory of the transfer
Re-transmission
by the re-broadcaster
DI as solely a technical
matter?
No signal available
on the territory of the
transfer
Direct injection
by the broadcaster
DI as a new field of
exploitation?
Source:
https://www.istockphoto.com/pl/wektor
/s%C5%82aby-sygna%C5%82-sieci-
wifi-gm166009460-22752073
Classical re-broadcasting did not make the above distinctions

Definition and content of BW in the SatCab Directive2
Definition - Article 2(4)
"a technical process by which
a broadcasting organisation
transmits its programme-
carrying signals to an
organisation other than a
broadcasting organisation, in
such a way that the
programme-carrying signals
are not accessible to the public
during that transmission"
Content of DI- Article 8(1)
"(...) When a broadcasting
organisation transmits by DI its
programme-carrying signals to a
signal distributor, without the
broadcasting organisation itself
simultaneously transmitting those
programme-carrying signals directly
to the public, [they are] participating
in a single act of communication to
the public (...)".

Fundamental controversies surrounding the notion of DI
 the legislator's interest in the technical process of signal
transmission, incl. its taking over
 dependence of DI and re-broadcasting on a technical issue
 inclusion of the notion of DI in the right of communication to the
public at a distance in the so-called single act of communication
to the public

Technical process as part of the content of the right of
communication to the public
The technical issue was placed ex lege in the so-called single act
of communication to the public as part of the content of the right.
The SatCab2 Directive determined that non-public use of works is
to occur in the DI technical process.

A specific technical sub-right?
In the technical process of DI, there is
supposed to be a non-public use of
works, which is supposed to take place
as part of a single act of communication
to the public?
Source: left-right motor control diagram.
https://www.youtube.com/watch?v=SQh5DsWRalM

The "umbrella solution"
Article 8 WCT refers to the so-called 'umbrella solution', which is
intended to cover all possible acts of transmission of a work
regardless of the technology used to do so and as long as the
communication is 'to the public'.

Or is it about fixations in the head-end?
In the head-end,
the signal is
converted to a
form that
improves the
quality of the
transmission and
enables
reception by, for
example,
decoders.
The non-public signal
is cached at the
distributor, replicated,
so that the content no
longer needs to be
delivered directly from
the original server,
but can be distributed
in real time directly
from proxy, or
intermediary servers
to end customers
Source:
http://cityinfrastructure.com/single.php?t=Cable%20TV&d=CableTV

A cumulative protection for fixations
• Protection of fixations is the exception, even more so in the online
environment
• Art. 50 of the CAPL recognises fixations as a subjective copyright
always in cumulation with reproduction (conjunction "and"),
which is to "produce copies of the work by a particular technique".
• Similarly, the Berne Convention, the WCT and the agreed
declarations to the WCT
• J. Szczotka aptly observed that the protection of fixations falls "in
essence within the scope of the right of reproduction of works"
- M.P. Niedzielska, J. Szczotka, Warsaw 2020, p. 85.

Fixation - a technical requirement for operation
 Every public communication
right requires some form of
prior fixation of the work for
technological reasons
 However, not every fixation
should be protected
 There is a convention basis
for material copies
 In the case of immaterial
fixations, this is problematic
 The Polish legislator repeatedly
uses the term "fixation" in the
CAPL but not necessarily in the
legal-subjective sense.
- cf. e.g. Articles of the CAPL: 12(2), (3), 15, 20(1)(3), 232 , 35b, 355 (1), 50(1)-2), 86(1)(2),
89(2), 891 , 94, 952 (3-4), 97, 102, 117(1), 125, 126(2).
Source:
https://copyrightlately.com/copyright-
song-unfixed-phone-conversation/

Further questions
 Was it legitimate to monopolise, as part of the content of the
right of communication to the public at a distance a non-public
technical method (process) of signal transmission?
 Was there a sufficient normative basis for DI in the international
law?
 Has the EU not gone beyond the competences of the Treaty?
The European Union is not a party to the Berne Convention. However, it has been obliged to comply with Articles 1-20 of this Convention - cf. Article 1(4) of
the WCT, to which the EU is a party. Also the InfoSoc Directive implements the aforementioned article of the WCT - cf. e.g. the CJEU judgment of 9.02.2012
in Luksan (C-277/10, EU:C:2012:65, para. 59).

THANK YOU FOR ATTENTION

2023-06-12 Controversy over the notion of direct injection presentation.pdf

Recommended

Recommended

More Related Content

Similar to 2023-06-12 Controversy over the notion of direct injection presentation.pdf

Similar to 2023-06-12 Controversy over the notion of direct injection presentation.pdf (7)

Recently uploaded

Recently uploaded (20)

2023-06-12 Controversy over the notion of direct injection presentation.pdf