Judgment of the Federal Court on the Retransmission of BBC Television Programmes in Swiss Cable Networks

Facts

The British Broadcasting Corporation (BBC) and the collecting society Swissperform filed a complaint against the GGA-Maur cooperative, as it had retransmitted the television programmes BBC 1, BBC 4 and BBC CBeebies in its cable network without the consent of the BBC. The Federal Court dismissed the complaint. The complainants argued that the broadcasting company (the BBC) had an independent right of action to prevent the retransmission of its programmes. However, the Federal Court found that under the CopA, the right of prohibition can only be asserted through a collecting society, and the law does not provide for an exception for broadcasting companies. International law also does not require such an exception. Furthermore, it was disputed whether the collecting society Swissperform was obliged to grant the defendant permission to retransmit the BBC programmes. The Federal Court affirmed this, as the requirements of the applicable Common Tariff 1 (GT 1) were met. This tariff provides that the collecting society must grant permission for retransmission, provided that the user complies with the conditions of the tariff. The defendant was willing to do so, so Swissperform had to grant the permission.

Considerations

The Federal Court stated that according to Art. 22(1) CopA, the right of prohibition for the retransmission of broadcasts can only be asserted through a collecting society. The law does not provide for an exception for broadcasting companies. International law also does not require such an exception.

Furthermore, the Federal Court found that the collecting society Swissperform was…