The dispute is ambiguity in interpretation on the provisions of the Law on Radio and Television (i.e., OJ 2016., Pos. 639). In 2011., When the analog TV began to move into a digital signal, it was amended, introducing the principle of “must carry, must offer”. According to it, the sender’s existing programs terrestrial television (TVP1, TVP 2, TVP regional channel, TVN, Polsat, TV4 and TV Puls) must make available free of its signal, and all operators to broadcast it. It is thanks to this principle in all on cable and offer all digital platforms is these seven channels.
According to the interpretation of the National Council of Radio and Television principle, however, it includes the operators on the internet. This option exercised Videostar.pl service that allows both for a fee, and free use of the offer 25 channels, including former terrestrial television. NBC decision ordering him to share the program was challenged before the Regional Administrative Court in Warsaw, but the action has not been taken into account (ref. Act VI SA / Wa 22/16). Cassation appeal while waiting for recognition before the Supreme Administrative Court.
Meanwhile, in September 2015. Program provided by Videostar.pl also appeared on the front page belonging to the Group of Polish portal Wirtualna o2.pl . Over the next six months will not be there but published: Warsaw Court of Appeal upheld was the first-instance granting one of the broadcasters security – the ban on dissemination of its program on the pages of the Group’s Virtual Poland.
against sharing programs on the Internet in September 2015. according protested TVP, Polsat and TVN. With published in the last days of the order is not clear, however, for which of these stations granted protection. It is known, however, that the court recognized as probable possibility of breaking the law.
The dispute has multiple threads on copyright and related rights. Group WP believes that a window of the TV program (the so-called. Embedding) is nothing but a link, and – as the law of the Court of Justice of the European Union – to publish links does not mean going public, and therefore can not break the law. Such conclusions can be drawn from the judgment in Case C-466/12 C-348/13 and the April Opinion of the Advocate General in the still unresolved case C-160/15. Administrative Court in Warsaw noted, however, that in all these cases concerned the links requiring only a click. Meanwhile, watching TV program from o2.pl require registration mail account. Moreover, it’s also about the simple transmission of this program, because it is preceded by advertising. “Both need to register in the mail domain (which creates the defendant base of people, which are addressed then the ad ordered the defendant for consideration by other entities), and the fact that the transmission is preceded by advertising, require consider whether we are dealing with a simple “linking”, or in fact of illegal, infringing copyright or related authorized offering paid services “- wrote in the grounds of the court, noting that probably also the controversy over the task of the question, the CJEU.
Group HR in response to the our questions stressed that fully respects the rules.
– we would at the same time note that the service Videostar is a service provided by the operator of the service company Netwizor. According to the best of our knowledge, this service is completely legal, as confirmed by NBC. In particular, the service Videostar applies the principle of “must carry, must offer”. Netwizor complied with all necessary formalities related to the provision of services Videostar and has already given a detailed explanation of broadcasters – explains spokesman WP.
The court has, however, as to serious doubts. Not sure if invoked the principle of “must carry, must offer” may apply in a situation where the broadcaster has decided that the program will not be available on the network. Also points out that the classic reemission should take place without any interference in its contents.
“It does not seem to be consistent with the will of the legislature, the operator performing retransmission, are not required to have any license fees the sender and without coordination with the sender could use such a technical solution, whereby each web reemission is preceded by advertising broadcasts by the operator, “- noted the court.
The dispute has multiple threads on copyright and related rights
CASE LAW
Order of the Court of Appeal in Warsaw of 21 June 2016., Ref. Part IA act 723/16. www.serwisy.gazetaprawna.pl/orzeczenia
No comments:
Post a Comment