Opinion of Advocate General Saugmandsgaard Øe delivered on 8 September 2016

1. The proposed interpretations

33. The referring court, which is uncertain as to the meaning of the expression ‘access to cable of broadcasting services’, used in Article 9 of Directive 2001/29, presents three possible interpretations of that expression in the order for reference.

34. According to a first approach, corresponding to the position taken by the appellants in the main proceedings and the Commission, the expression ‘access to cable of broadcasting services’ concerns only the provisions that require cable operators to provide broadcasting services, that is to say, the provisions relating to the ‘must carry’ obligations within the meaning of Article 31 of Directive 2002/22/EC (‘the Universal Service Directive’).⁽¹⁵⁾

35. According to a second approach, corresponding to the position taken by TVCatchup (UK) Limited, Virgin Media Limited and the United Kingdom Government, Article 9 of Directive 2001/29 applies both to the provisions that require cable operators to retransmit certain broadcast content and to those that permit, in the interest of the public service, the retransmission of certain content within the area in which it was meant to be received.

36. According to a third approach, the expression ‘access to cable’ in Article 9 of Directive 2001/29 refers not to a defence against copyright infringement but rather to access to the physical infrastructure in the Member States.

2. The reservation introduced by Article 9 of Directive 2001/29

37. As stated in its heading and in its wording, Article 9 of Directive 2001/29 concerns the ‘continued application of other provisions’ and provides that that directive is to be ‘without prejudice to’ provisions in certain areas. Recital 60 of the directive explains that the provisions referred to in Article 9 are those connected with ‘other areas’ and which ‘may affect the protection of copyright or related rights’.⁽¹⁶⁾

38. Article 9 of Directive 2001/29 thus does not in the slightest permit exceptions to the rights established by Articles 2 to 4 of the directive. The exceptions are, moreover, the subject of exhaustive harmonisation under Article 5 of the directive.⁽¹⁷⁾ The objective pursued by Article 9 is, on the contrary, to maintain the effect of the provisions applicable in certain areas other than the area harmonised by the directive.⁽¹⁸⁾ That reading is confirmed by the list of areas in Article 9, which refers, inter alia, to trade marks, design rights, protection of national treasures, laws on restrictive practices and unfair competition, data protection and privacy, and the law of contract.⁽¹⁹⁾

39. That in itself means that legislation, such as section 73(2)(b) and (3) of the CDPA, which provides for an exception to the exclusive right of communication enshrined in Article 3 of Directive 2001/29 cannot fall within Article 9 of that directive.

40. That conclusion holds good irrespective of whether the retransmission of the protected works is made by cable or streaming on the internet. It is thus clear from the Court’s case-law that the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, covers any transmission of the protected works, irrespective of the technical means or process used,⁽²⁰⁾ and that each transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question.⁽²¹⁾

41. That case-law is consistent with the objective pursued by Directive 2001/29, namely to adapt the rules on copyright and related rights in the light of the technical development which led to the creation of new forms of exploitation,⁽²²⁾ while ensuring a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public.⁽²³⁾ I note that no reward is paid to the copyright holders for the retransmission authorised by section 73(2)(b) and (3) of the CDPA.⁽²⁴⁾

42. A contrary interpretation of Article 9 of Directive 2001/29, which would lead to legislation such as that at issue in the main proceedings being brought within its scope, would in my view frustrate the harmonisation objective pursued by Articles 3 and 5 of that directive.

43. Nor can the interpretation which I advocate be undermined by the arguments submitted against it, in particular by the United Kingdom Government.

44. First, the argument raised by the United Kingdom Government at the hearing that the national legislative regimes on the licensing of cable operators, their infrastructure and the retransmission of their broadcasts constitute one of the other areas covered by Article 9 of Directive 2001/29 finds no support in that directive. While provisions relating to the cable infrastructure of the Member States and the conditions of access to the electronic communication market do indeed fall within an area other than that forming the subject matter of the harmonisation effected by that directive,⁽²⁵⁾ the same does not apply to provisions, such as section 73(2)(b) and (3) of the CDPA, which belong to the very core of the harmonisation provided for in Directive 2001/29, namely the protection of copyright.⁽²⁶⁾

45. That conclusion cannot be affected by the fact that the retransmission permitted by the legislation concerned is limited to content broadcast on channels subject to certain public service obligations. In the absence of the slightest indication to that effect in the actual wording of Directive 2001/29 or in the associated travaux préparatoires, I see no reason why such content should be afforded less protection than that provided for in Article 3 of the directive.⁽²⁷⁾

46. Second, contrary to the United Kingdom Government’s assertion, Article 9 of Directive 2001/29 does not constitute an ‘outright exclusion from harmonisation’. While Article 1 of that directive, headed ‘Scope’, excludes, under paragraph 2, from the harmonisation provided for by the directive certain provisions of the EU acquis which, in the absence of that express exclusion, would fall within the directive’s scope,⁽²⁸⁾ Article 9 seeks not to circumscribe the scope of Directive 2001/29 but rather to ensure legal certainty,⁽²⁹⁾ by avoiding unexpected legal consequences resulting from adoption of the directive.

47. Third, the objectives pursued by section 73(2)(b) and (3) of the CDPA — namely, according to the United Kingdom Government, to increase consumer choice for public service broadcasting, by allowing consumers to receive such broadcasts in areas suffering from poor terrestrial television reception, and to encourage cable network operators to lay cable infrastructure — cannot have the slightest impact on the interpretation of the scope of Article 9 of Directive 2001/29.⁽³⁰⁾ I recall, in that regard, that, in the judgment in ITV Broadcasting and Others,⁽³¹⁾ the Court expressly ruled out the possibility that the retransmissions at issue might be regarded as a mere technical means to ensure or improve reception of the original transmission in its catchment area, in which case they would not constitute, according to the Court’s case-law, a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. In that context, the argument put forward by the United Kingdom Government amounts, in reality, to an invitation to the Court to reverse that case-law, without there being any justification for doing so.

48. In conclusion, there is little doubt in my view that legislation such as section 73(2)(b) and (3) of the CDPA does not fall within Article 9 of Directive 2001/29.

49. That conclusion applies irrespective of the interpretation of the expression ‘access to cable of broadcasting services’, used in Article 9 of the directive. In the following part I shall show, however, that examination of that expression leads to the same conclusion.

3. The interpretation of the expression ‘access to cable of broadcasting services’ in Article 9 of Directive 2001/29.

50. At first sight, the expression ‘access to cable of broadcasting services’, used in Article 9 of Directive 2001/29, gives the impression that reference is being made to a legal concept well known in the EU acquis. My research suggests, however, that that is not the case.

51. In fact, that expression is used, to my knowledge, only in the travaux préparatoires and the case-law relating to Directive 2001/29⁽³²⁾ and in Directive 2012/28,⁽³³⁾ as the EU legislature chose, in Article 7 of Directive 2012/28, to reproduce in almost identical terms Article 9 of Directive 2001/29.⁽³⁴⁾

52. Notwithstanding the lack of details in those travaux préparatoires and that case-law as to the meaning of the expression ‘access to cable of broadcasting services’,⁽³⁵⁾ there is little doubt in my view that legislation such as section 73(2)(b) and (3) of the CDPA is not covered by that expression.

53. First, in spite of certain divergences in the various language versions,⁽³⁶⁾ to my mind it is indisputable that that expression concerns ‘access’ to a ‘cable’. That said, I see no connection between Article 9 of Directive 2001/29, which refers to ‘access to cable’, and the United Kingdom legislation concerned, which provides that a broadcast work may be ‘retransmitted by cable’. It seems to me that the concept of ‘cable’ is used in different contexts in those two pieces of legislation.

54. Whereas Article 9 of Directive 2001/29 refers to a ‘cable’ to which access is requested, the United Kingdom legislation refers to a ‘cable’ which serves as a means of retransmission. In other words, Article 9 of the directive concerns not access by the public to broadcast content, as TVCatchup (UK) Limited, Virgin Media Limited and the United Kingdom Government appear to claim, but, rather, access to a network.⁽³⁷⁾

55. Second, the equating by TVCatchup (UK) Limited, Virgin Media Limited and the United Kingdom Government of the terms ‘access to cable’ and ‘retransmitted by cable’ seems illogical given that Directive 2001/29 already contains, in Article 1(2)(c), a provision which deals expressly with ‘cable retransmission’.⁽³⁸⁾

56. Third, in the EU acquis, the words ‘access to cable’ are mainly used, it seems to me, in connection with the question of access between providers to cable networks,⁽³⁹⁾ which has been harmonised at EU level, in particular by Directive 2002/19/EC (‘the Access Directive’).⁽⁴⁰⁾

57. That directive, according to Article 1(1), is intended to harmonise ‘the way in which Member States regulate access to, and interconnection of, electronic communications networks and associated facilities’.⁽⁴¹⁾ It follows from that article that the Access Directive is part of the common regulatory framework presented in Directive 2002/21/EC (‘the Framework Directive’),⁽⁴²⁾ the aim of which, according to the Commission, is ‘to encourage competition in the electronic communications markets, to improve the functioning of the internal market and to guarantee basic user interests that would not be guaranteed by market forces’.⁽⁴³⁾

58. The most logical interpretation would therefore appear to be the conclusion that the expression ‘access to cable of broadcasting services’, used in Article 9 of Directive 2001/29, refers to that regulatory framework and, in particular, to the provisions of the Access Directive.⁽⁴⁴⁾ I note, incidentally, that the legislative procedures for the Framework Directive and the Access Directive partly overlapped in time with the legislative procedure for Directive 2001/29.⁽⁴⁵⁾

59. I consider, however, that it is sufficient to state that legislation such as section 73(2)(b) and (3) of the CDPA, which does not concern access to a network, is not covered by the expression ‘access to cable of broadcasting services’, used in Article 9 of Directive 2001/29, without there being any need for the Court to rule on the exact meaning of that expression.

60. Given the foregoing observations, I propose that the Court’s answer to the third question referred for a preliminary ruling should be that legislation which permits the retransmission by cable of broadcasts, without the consent of the copyright holders, where the retransmissions are simultaneous and limited to areas in which the broadcasts were made for reception, irrespective of whether or not the retransmissions are of broadcasts on channels which are subject to certain public service obligations, is not covered by Article 9 of Directive 2001/29.

61. Having regard to the answer which I have just proposed should be given to the third question, that Article 9 of Directive 2001/29 does not apply ratione materiae to the national legislation at issue in the main proceedings, I consider that there is no need to rule on the fifth question, concerning the scope ratione temporis of that provision.

62. It also follows from that finding that there is no need to address the questions raised by the referring court concerning the interpretation of the concept of ‘cable’ used in Article 9 of Directive 2001/29, namely the first, second and fourth questions. Nonetheless, in case it should be of use, in the following part I shall make some observations on the interpretation of that concept. Those observations make it possible to reject the argument, put forward by TVCatchup and Virgin Media Limited, that that concept is broad enough to include broadcasting by streaming over the internet.

1. The autonomous nature of the concept of ‘cable’

63. By its first question, the referring court asks, in essence, whether the concept of ‘cable’, used in Article 9 of Directive 2001/29, is an autonomous concept of EU law.

64. It should be borne in mind that, according to settled case-law, the need for a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union.⁽⁴⁶⁾

65. The wording of Directive 2001/29 makes no reference to national law as regards the meaning of the concept of ‘cable’ in Article 9 of that directive. It follows that that concept must be regarded, for the purposes of applying the directive, as amounting to an autonomous concept of EU law, which must be interpreted in a uniform manner in the European Union.

66. Accordingly, there is no need to answer the fourth question, which does not arise unless the Court should decide that the concept of ‘cable’, in Article 9 of Directive 2001/29, is not an autonomous concept of EU law.

2. The interpretation of the concept of ‘cable’

67. By parts (a) and (b) of its second question, which should be examined together, the referring court seeks, in essence, to ascertain whether the concept of ‘cable’ in Article 9 of Directive 2001/29 is linked with a particular technology, being restricted to traditional cable networks operated by conventional cable services providers, or whether, rather, it has a technologically neutral meaning which includes functionally similar services transmitted over the internet.

68. For the following reasons, I shall support the position put forward by the appellants in the main proceedings, the United Kingdom Government and the Commission, that the concept of ‘cable’ within the meaning of Article 9 of Directive 2001/29 is restricted to traditional cable networks.

69. It should be pointed out, first of all, that the concept of ‘cable’ appears not only in Article 9 of Directive 2001/29 but also in Article 1(2)(c), Article 2(e) and Article 3(2)(d) of that directive.⁽⁴⁷⁾ It is also used in certain of the directives on which Directive 2001/29 is based,⁽⁴⁸⁾ namely Directives 92/100/EEC,⁽⁴⁹⁾ 93/83 and 93/98/EEC.⁽⁵⁰⁾

70. In those circumstances, and given the requirements of unity of the EU legal order and its coherence, the concepts used by that body of directives must have the same meaning, unless the EU legislature has expressed a different intention in a specific legislative context.⁽⁵¹⁾

71. None of the abovementioned directives contains a definition of ‘cable’. That concept must therefore be interpreted by taking account of its context and the objectives pursued by Directive 2001/29.⁽⁵²⁾

72. As regards the context in which the concept of ‘cable’ occurs, it should be observed that that concept is used, in all the directives in question, in the light of other technologies, in particular ‘satellite’ broadcasting.⁽⁵³⁾ The words ‘by wire or over the air, including by cable or satellite’, in Article 2(e) and Article 3(2)(d) of Directive 2001/29,⁽⁵⁴⁾ give the impression, moreover, that the concepts of ‘cable’ and ‘satellite’ are, respectively, the sub-categories of the wider concepts of ‘wire’ and ‘over the air’.⁽⁵⁵⁾

73. As regards the objectives pursued by Directive 2001/29, I recall that the directive was adopted with a view to responding, at EU level, to the issues of protection of copyright and related rights presented by the new services of the information society, made possible by the internet.⁽⁵⁶⁾ In that context, it must be assumed that the EU legislature was fully aware of the choice of the terminology used in that directive. In other words, if the EU legislature had intended to give the concept of ‘cable’ within the meaning of Directive 2001/29 a technologically neutral meaning, it must be considered that it would have chosen a more general concept, for example ‘wire’, or that it would at least have made clear that the concept of ‘cable’ included other technologies, such as transmission by means of the internet.⁽⁵⁷⁾

74. The foregoing considerations as a whole support the conclusion that the concept of ‘cable’, used in Article 9 of Directive 2001/29, is restricted to traditional cable networks operated by conventional cable service providers. That conclusion is, moreover, in line with the distinction which the Framework Directive and the Access Directive draw between the various types of electronic communications networks.⁽⁵⁸⁾