Prohibition of Unauthorized Distribution of Foreign Television Broadcasts by Cable Companies

Facts

The Austrian Broadcasting Corporation (ORF) operates television in Austria as a public institution. The Swiss Broadcasting Corporation (SRG) uses transmission facilities of the PTT (Swiss Postal, Telephone and Telegraph Services). To enable the transmission of foreign programs to companies with community antennas, the PTT Services established a microwave network.

Rediffusion AG operates numerous television facilities in Switzerland and distributes 11 FM programs as well as 3 Swiss and 2 each German, Austrian and French television programs, including the FS 1 and FS 2 programs of the ORF, through its cable network in the Bern area.

The ORF prohibited the PTT Services and Rediffusion AG from further distributing its programs, which, however, was disregarded. Thereupon, the ORF filed a lawsuit with the Federal Court against the Swiss Confederation, represented by the PTT Services, as well as against Rediffusion AG, requesting to prohibit them from distributing its programs without its consent.

Considerations

The Federal Court affirmed the passive legitimacy of both the PTT Services and Rediffusion AG. Rediffusion AG, as another broadcasting company within the meaning of Art. 12 No. 6 of the Copyright Act and Art. 11bis No. 2 of the Berne Convention, infringed the rights reserved for the ORF by distributing its programs without its consent through its cable network.

The PTT Services are jointly liable for this infringement…