The Advocate General of the European Court of Justice, Mr. Yves Bot, issued on June 12 a legal opinion in the case Sky Österreich GmbH v Österreichischer Rundfunk (ORF). The case concerns compensation payable by Austrian public broadcaster ORF to the holder of exclusive rights to broadcast European League matches, Sky Österreich. KommAustria decided in 2010 that ORF should only pay compensation for the “additional costs” arising from the use of the extracts, i.e. accessing the signal, which were zero in this case. Sky Österreich brought the case to the Federal Communications Tribunal, which refered to the ECJ asking whether the provision of AVMS directive on the compensation for the use of short extracts constituted a justified interference with the freedom to conduct a business and the right to property of holders of exclusive rights.
According to Advocate General Bot, the limitation of the compensation payable by a TV channel for the use of short extracts establishes a fair balance between, on the one hand, the right to property and the freedom to conduct a business and, on the other hand, the freedom to receive information and media pluralism. The right to short extracts is subject to certain conditions and limits: it concerns only events of high interest to the public, the extracts may be used solely for general news programmes and cannot exceed 90 seconds, and the news broadcasters have to identify the source of the extracts. Therefore, the limitation of compensation is justified.
The Advocate General’s opinion serves as a recommendation for the ECJ who will give its judgment later.