Cross-border satellite broadcasting of a television program with advertising windows specific to the Swiss audience

Facts

Métropole Télévision, a French public limited company, broadcasts the M6 television program by satellite from and to the French territory. As the satellite's coverage area extends beyond the borders, viewers in French-speaking Switzerland also receive this program, either through Swiss cable operators or by direct reception via a satellite dish.

Since January 2002, Métropole Télévision has been broadcasting a distinct satellite signal specifically intended for the Swiss audience, with the same M6 program but accompanied by targeted advertising messages for Swiss consumers. This signal is picked up by certain Swiss cable operators.

The Swiss Broadcasting Corporation (SRG SSR) then brought an action for declaratory judgment, injunction, cessation of disturbance, and damages against Métropole Télévision, invoking provisions relating to copyright and unfair competition.

Considerations

The Federal Tribunal upheld Métropole Télévision's appeal and dismissed the SRG SSR's action.

Regarding copyright, the Federal Tribunal considered that the theory of the state of emission applies in Swiss law to satellite broadcasting. Thus, the right of broadcasting only covers the injection of the satellite signals into the communication chain, and not the reception in the states covered by the satellite's footprint. Consequently, the broadcasting of the works through the "Swiss" signal does not require…