31.7.2010   

EN

Official Journal of the European Union

C 209/16

(a)

Where a conditional access device is made by or with the consent of a service provider and sold subject to a limited authorisation to use the device only to gain access to the protected service in particular circumstances, does that device become an ‘illicit device’ within the meaning of Art. 2(e) of Directive 98/84/EC (1) if it issued to give access to that protected service in a place or in a manner or by a person outside the authorisation of the service provider?

(b)

What is the meaning of ‘designed or adapted’ within Article 2(e) of the Directive?

(a)

Does the transmission by the first undertaking constitute a protected service of ‘television broadcasting’ within the meaning of Article 2(a) of Directive 98/84/EC and Article lea) of Directive 89/552 EEC (2)?

(b)

Is it necessary for the first undertaking to be a broadcaster within the meaning of Article l(b) of Directive 89/552/EEC in order to be considered as providing a protected service of television broadcasting within the first indent of Article 2(a) of Directive 98/841EC?

(c)

Is Article 5 of Directive 98/84/EC to be interpreted as conferring a civil right of action on the first undertaking in respect of illicit devices which give access to the programme as broadcast by the second undertaking either:

(d)

Is the answer to (c) affected by whether the first and second service providers use different decryption systems and conditional access systems?

(i)

copyright works are included in a satellite broadcast

(ii)

the broadcast is transmitted in encrypted form

(iii)

only for access to the satellite broadcaster's subscribers

(iv)

subscribers are provided with a decoder card which allows them to access the broadcast

(a)

Is the question of whether those works have been reproduced in whole or in part to be determined by the rule of national copyright law relating to what constitutes an infringing reproduction of a copyright work or is it a matter of interpretation of Article 2 of Directive 2001/29/EC?

(b)

If it is a matter of interpretation of Article 2 of Directive 2001/29/EC, should the national court consider all of the fragments of each work as a whole or only the limited number of fragments which exist at any point in time? If the latter, what test should the national court apply to the question of whether the works have been reproduced in substantial part within the meaning of that Article?

(c)

Does the reproduction right in Article 2 of Directive 2001/29/EC extend to the creation of transient images on a television screen?

(a)

Are transient copies of a work created within a satellite television decoder box or on a television screen linked to the decoder box whose sole purpose is to enable a use of the work not otherwise restricted by law to be regarded as having ‘independent economic significance’ within the meaning of Article 5(1) of Directive 2001/29/EC by reason of the fact that such copies provide the only basis upon which the rights holder can extract remuneration for the use of his rights?

(b)

Is the answer to Question 5(a) affected by (i) whether the transient copies have any inherent value or (ii) whether the transient copies comprise a small part of a collection of works and/or other subject matter which otherwise may be used without infringement of copyright; or (iii) whether the exclusive licensee of the rights holder in another Member State has already received remuneration for use of the work in that Member State?

(a)

Is a copyright work communicated to the public by wire or wireless means within the meaning of Article 3 of Directive 2001/29/EC where a satellite broadcast is received at a commercial premises for example a bar and communicated or shown at those premises via a single television screen and speakers to members of the public present?

(b)

Is the answer to Question 6(a) affected if:

(c)

If the answer to any part of (b) is Yes, what factors should be taken into account in determining whether there is a communication of the work which has originated from a place where members of the audience are not present?

(a)

Is the question of whether those sequential fragments are a fixation of the broadcast to be determined by the rule of national copyright law relating to what constitutes an infringing reproduction of a copyright work or is it a matter of interpretation of Article 7 of Directive 2006/115 (4)?

(b)

If it is a matter of interpretation of Article 7 of Directive 2006/115, can such transient copies be considered a ‘fixation’ at all, and if so should the national court consider all of the fragments of each work as a whole or only the limited number of fragments which exist at any point in time? If the latter, what test should the national court apply to the question of whether the a fixation of the broadcast has been made within the meaning of that Article?

(c)

Does the fixation right in Article 7 of Directive 2006/115 extend to the creation of transient images on a television screen?

(a)

Does the encrypted multilateral feed constitute a ‘communication to the public by satellite’ within Article 1(2)(a) and 1(2)(c) of Directive 93/83, where decryption means for the feed itself are not made available to the public, but decryption means are made available to decrypt the signals carrying the Downstream Programmes where they are carried by satellite and the Downstream Programmes are unencrypted where they are transmitted from terrestrial transmitters?

(b)

Is the First Organisation introducing into its multilateral feed ‘the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth’?

(c)

Where Article 1(2)(a) refers to the act of introducing being ‘under the control and responsibility of the broadcasting organisation’, is the First Organisation the or a relevant broadcasting organisation for this purpose, or alternatively can the signals be regarded as being introduced into the multilateral feed under the control and responsibility of the downstream broadcasters?

(a)

If the answer to Question 1 is that a conditional access device made by or with the consent of the service provider becomes an illicit device within the meaning of Article 2(2) of Directive 98/84/EC when it is used outside the scope of the authorisation of the service provider to give access to a protected service, what is the specific matter of the right by reference to its essential function conferred by the Conditional Access Directive?

(b)

Do Article 34 or 56 TFEU preclude enforcement of a provision of national law in a first Member State which makes it unlawful to import or sell a satellite decoder card which has been issued by the provider of a satellite broadcasting service in another Member State on the condition that the satellite decoder card is only authorised for use in that other Member State?

(c)

Is the answer affected if the satellite decoder card is authorised only for private and domestic use in that other Member State but used for commercial purposes in the first Member State?

(d)

If the answer to Question 3 is that the use of a decoder card in the circumstances stated in that Question amounts to the circumvention of an effective technological measure, do Articles 34 or 56 TFEU nonetheless preclude the enforcement of a provision of national law transposing Article 6 of Directive 2001/29/EC?

(a)

Do Articles 34 and 36 or 56 TFEU preclude enforcement of a provision of national copyright law which makes it unlawful to perform or play in public a musical work where that work is included in a protected service which is accessed and played in public by use of a satellite decoder card where that card has been issued by the service provider in another Member State on the condition that the decoder card is only authorised for use in that other Member State? Does it make a difference if the musical work is an unimportant element of the protected service as a whole and the showing or playing in public of the other elements of the service are not protected by national copyright law?

(b)

Do Articles 34 and 36 or 56 TFEU preclude enforcement of a provision of national copyright law which makes it unlawful to perform or play in public literary works where those works are included in a protected service which is accessed and played in public by use of a satellite decoder card where that card has been issued by the service provider in another Member State on the condition that the decoder card is only authorised for use in that other Member State? Does it make a difference if the literary works are an unimportant element of the protected service as a whole and the showing or playing in public of the other elements of the service are not protected by national copyright law?

(a)

Must Article 101(1) TFEU be interpreted as applying to that obligation by reason only of it being deemed to have the object of preventing, restricting of distorting competition?

(b)

If so, must it also be shown that the contractual obligation appreciably prevents, restricts or distorts competition in order to come within the prohibition imposed by Article 101(1) TFEU?