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1.
The retransmission of a terrestrial television broadcast over the Internet uses a specific technical means different from that of the original communication and must be, as such, considered a “communication” in light of Article 3(1) of Directive 2001/29.
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2.
Differently, a technical means limited to maintaining or improving the quality of the reception of a pre-existing transmission in its catchment area does not constitute such a “communication”.
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3.
In order to assess whether a communication is made to a “public”, it is irrelevant whether the potential recipients access the communicated works through a one-to-one connection, as such a technique does not prevent the access of a large number of persons to the work.
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4.
Albeit the fact that a profit-making nature of a retransmission is not irrelevant for determining whether a retransmission is a “communication”, it is not an essential element for the existence of a communication to the public.
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5.
Moreover, a competitive relationship between the organisations making real-time broadcasts of works or subsequent retransmissions of those works is not relevant for categorising a transmission as a “communication to the public”.
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Decision of the European Court of Justice (Fourth Chamber) 7 March 2013 – Case No. C-607/11. “Live Streaming”. IIC 44, 725 (2013). https://doi.org/10.1007/s40319-013-0086-6
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DOI: https://doi.org/10.1007/s40319-013-0086-6