Broadcasters must give rivals free access to footage of 'high interest' events where there is no cost associated with that access, rules CJEU

The Court of Justice of the European Union (CJEU) has upheld the validity of provisions of EU broadcasting legislation which provide that non-rights holding broadcasters established in the EU need only pay to cover any "additional costs" exclusive rights holding broadcasters incur in providing access to footage of high interest events. It said that these provisions do not unfairly impinge on the fundamental freedom of rights holders to conduct business or their fundamental property rights.

The Court came to its conclusions in a case referred to it from Austria involving Sky Austria and public broadcaster ORF.

Sky had exclusive broadcasting rights for Europa League football matches. The broadcaster had charged ORF €700 for every minute of footage it wished to use for the purpose of producing short news packages. However, Austria's communications regulator, KommAustria, ruled that Sky could not charge ORF for its use of the footage beyond any additional costs it incurred in providing ORF with access to its satellite signal.

Sky had to provide free access to the images because there were no additional costs involved in providing ORF with such access, according to the CJEU's ruling. The broadcaster challenged KommAustria's findings.

On appeal Austria's Federal Communications Board (FCB) said that broadcasters should be able to obtain compensation at a level that reflects the amount they paid to acquire exclusive broadcasting rights for events of high public interest. It said that such a rule would be proportionate as it would uphold rights holders' right to property, which is set out under the EU's Charter of Fundamental Rights. The Charter sets out the underlying principles on which EU laws are based.

The FCB asked the CJEU if terms set out in the EU's Audiovisual Media Services (AVMS) Directive were compatible with the right of companies to conduct business and of their right to property under the terms of the Charter.

Under the AVMS Directive EU broadcasters have the right to access satellite signals belonging to other EU broadcasters in order to use footage on "events of high interest to the public" for the purposes of producing "short news reports" where the rival broadcaster holds exclusive broadcasting rights to the events. Access must be provided on a "fair, reasonable and non-discriminatory basis" and generally non-rights holders should be able to "freely choose" which clips to use.

Under the Directive any compensation payable to the rights holding broadcasters should "not exceed the additional costs directly incurred in providing access".

However, the Charter of Fundamental Rights sets out that the "freedom to conduct a business in accordance with Union law and national laws and practices is recognised" and also states that "everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions". The 'right to property', which applies to intellectual property, cannot be taken away from individuals or businesses "except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss".

The CJEU said that the right to property and the freedom to conduct business were not "absolute" in nature and that there were legitimate objectives behind the provisions in the AVMS Directive which had to be weighed against those rights.

Amongst the factors it considered were provisions laid out in the Directive that restrict how non-rights holding broadcasters can use the footage they can obtain access to from rivals of events of high interest. It further concluded that the Directive did not prevent rights holding broadcasters from commercially exploiting their rights to such footage in other ways. On balance it ruled that it was proportionate for access to that footage to be provided and for the levels of compensation payable for the provision of such access to be limited to covering only additional costs rights holders incur.

"In the light, first, of the importance of safeguarding the fundamental freedom to receive information and the freedom and pluralism of the media guaranteed by Article 11 of the Charter and, second, of the protection of the freedom to conduct a business as guaranteed by Article 16 of the Charter, the European Union legislature was entitled to adopt rules such as those laid down in [the AVMS Directive], which limit the freedom to conduct a business, and to give priority, in the necessary balancing of the rights and interests at issue, to public access to information over contractual freedom," the CJEU ruled.

"In those circumstances, the European Union legislature was lawfully entitled to impose the limitations on the freedom to conduct a business contained in [the AVMS Directive] in relation to holders of exclusive broadcasting rights and to consider that the disadvantages resulting from that provision are not disproportionate in the light of the aims which it pursues and are such as to ensure a fair balance between the various rights and fundamental freedoms at issue in the case," it said.