Weekly TV guides and the Football DataCo decision of the CJEU
Last week Dutch TV broadcasters won a case against a newspaper which published a weekly TV guide without their permission. The newspaper argued that the copyright claim of the broadcasters is contrary to the CJEU’s Football DataCo judgment.
Previously we reported on the CJEU’s Football DataCo decision of 1 March 2012. This decision has recently lead to a Dutch judgment, passed on 13 June 2012, concerning the allegedly infringing use of television programming information. Broadcasting corporations enjoy strong protection for their radio and television programming information (broadcasting schedules) on the basis of the Dutch Media Act. According to Article 2.140 the reproduction or making available of any writing composed of programming information produced by broadcasting corporations is considered an infringement of their copyright therein, unless proof is brought forward that the information at issue was not directly or indirectly derived from the said writing. This means a reversal of proof in favour of the broadcasting corporations. This strong protection secures the significant income which broadcasters generate from their weekly TV guides and so far they have refused licences to other parties desiring to produce weekly guides. Daily newspapers are only licensed to publish the programming schedule of the coming 24 hours (or 48 hours in their weekend editions).
The copyright that broadcasters hold in their programming information lists is a Dutch variety of copyright called ‘geschriftenbescherming’, available for any writing that lacks the originality needed for proper copyright. The CJEU’s Football DataCo judgment has made it questionable whether the ‘geschriftenbescherming’ may still apply to databases such as programming information lists, since the Court decided that, according to the Database Directive, databases enjoy copyright only if they give evidence of the maker’s own intellectual creation, see our previous blog post.
Already in 1998 newspaper De Telegraaf started legal proceedings, claiming that the broadcasters abuse their dominant position with this licence refusal. However they ultimately lost the case in 2005. After the Football DataCo decision De Telegraaf saw its chance again and since the beginning of June it has twice published a weekly TV guide. However, the broadcasting corporations were quick to file suit.
Against De Telegraaf’s defence that the broadcasters’ ‘geschriftenbescherming’ is contrary to the Football DataCo decision, the broadcasters invoked case law of the CJEU stating that a court is not obliged to interpret national legislation in conformity with an EU Directive if that would amount to an interpretation contra legem. They also invoked Article 2.140 of the Media Act, arguing that it supplies them with an independent right to the ‘geschriftenbescherming’. De Telegraaf pointed out that an amendment to this Article has recently been proposed in Parliament which does not refer to copyright protection anymore, but obliges broadcasters to supply their programming information to others for a fee. Moreover, the broadcasters claimed that the ‘geschriftenbescherming’ does not provide a form of copyright but rather protection against unfair competition, which the Database Directive leaves unprejudiced.
The judge in summary proceedings decided in favour of the broadcasters, agreeing with all their arguments. She also considered that it is not a judge’s task to anticipate possible legislative amendments while political decision-making is still awaited, and pointed out that the Minister of Education, Culture and Science declared in the Dutch Upper Chamber that the consequences of the Football DataCo judgment are still being studied. The judge ordered De Telegraaf to immediately stop publishing weekly TV guides, and imposed a penalty of 200,000 euros for every breach. Meanwhile, we must await action following the Football DataCo decision in the political arena.