TONO also won the case in the city court and in the appeal court and was awarded MNOK 7.3 in total legal costs. Thommessen represented TONO in all court instances.
The claim comprises over 20 TV-channels included in RiksTV's channel packages, inter alia TV3, FEM, MAX and VOX. For some of the channels, the claim dates back to 2009. The TV-channels are mainly produced by broadcasters in the United Kingdom, transmitted to the digital terrestrial network in Norway by closed transmission ("direct injection") and distributed by RiksTV to RiksTVs Norwegian subscribers.
The Supreme Court rejected the arguments from RiksTV
RiksTV has never cleared nor paid for the use of copyright protected music in these TV-channels. RiksTV has inter alia asserted that only the broadcasters are responsible for copyright clearance, that RiksTV merely performs technical assistance to the broadcasters and that there is no "new public", since RiksTV's transmission only reaches the same public that is targeted by the broadcasters.
The Supreme Court rejected all RiksTV's arguments and found that RiksTV is responsible for clearing the use of copyright protected works.
The purpose of copyright was emphasized
The Supreme Court stated that the exclusive right at the outset comprises any communication of the work, irrespective of technical means. It was emphasized that the purpose of copyright is to ensure remuneration to the author, and that the decisive question is whether the relevant activity leads to public access to protected work. The agreements between RiksTV and the broadcasters were considered irrelevant with respect to the authors' legal position.
Commercial exploitation of protected works
The Supreme Court found that the decisive factor in relation to the "new public" issue was the fact that RiksTV has an independent commercial role; RiksTV puts together a new audiovisual product in its channel packages and the subscribers pay RiksTV for access to the contents of the programme carrying signals. In this way, RiksTVs subscription scheme makes the copyrighted content available to the public. Consequently, RiksTV has an independent responsibility for clearing the use of copyright-protected music. In this finding, the Supreme Court relied on the ECJ decisions in Airfield (C-431/09 and C-432/09) and SBS (C-325/14), as well as a related Norwegian Supreme Court case from 2016 (Norwaco-Get HR-2016-562A).
In a comment, TONOs counsel Camilla Vislie says:
We are pleased that the Supreme Court Judgement is in line with all TONO's arguments. TONOs position has always been that RiksTV conducts an independent commercial utilisation of copyright protected works in Norway, which has to be cleared with TONO. The case has been pending in the legal system since 2012, and it has been a long and demanding process. It now remains to be seen if RiksTV is willing to settle its accounts