The European Commission has published a proposal to modernise copyright as it relates to online audio-visual content as part of its plans for a Digital Single Market. If adopted, the proposal would extend parts of the Satellite and Cable Directive (93/83/EEC) to 'new' digital technologies for the transmission and retransmission of certain TV and radio programmes originating in other EU Member States. The Commission hopes this will promote wider access to TV and radio programmes across Member States.
The purpose of the Directive was to facilitate the transmission of TV and radio programmes across EU Member States, in particular by harmonising copyright laws in satellite broadcasting and cable retransmission. It also aimed to secure fair remuneration for the creators and producers of programmes in exchange for the use of their work. However, the Directive was originally made over 20 years ago (in 1993), and does not apply to newer digital technologies for the transmission and retransmission of audiovisual content. This makes it difficult for operators that want to circulate content across the European Union via the internet and similar technologies. Operators face rights clearance challenges when they need to obtain the necessary licenses for cross-border transmission within short timeframes. Recognising this, the Commission launched a consultation to consider the impact of extending the country-of origin principle, and the system of mandatory collective management for retransmission by cable TV and radio broadcasts, to other technologies. We reported on the consultation when it was published in August 2015 - http://www.fieldfisher.com/publications/2015/08/country-of-origin-principle.
The country-of-origin principle
The basic tenet of 'country-of-origin' is that where there is a cross-border provision of services, a provider only has to comply with the legal rules of its country of establishment. The Directive permits a broadcaster to obtain a clearance of intellectual property rights in a single Member State for satellite broadcasting, which will then apply all across the EU.
The stakeholder consultation found that consumers generally favour a broad extension of the country-of-origin principle to cover all online services. Public service broadcasters and commercial radio stations were also in favour of the country-of-origin principle being applied to broadcast-related online services. Perhaps unsurprisingly, commercial broadcasters, rights holders, and collective management organisations (CMOs) expressed strong reservations on an extension.
Collective rights management
The Directive facilitates the clearance of rights necessary for the retransmission of television and radio programmes from other Member States, but this does not currently extend to retransmission services provided other than by cable, such as IPTV.
It was reported that consumers, cable and telecoms operators, public service broadcasters, and the majority of CMOs are in favour of an extension of mandatory collective management to the simultaneous retransmission of audio-visual programming on platforms other than cable. Many CMOs and public service broadcasters (as well as some cable and telecoms operators) insist that the extension should be limited to 'closed environments' which function in a similar manner to cable. On the other hand, most rights holders and commercial broadcasters are opposed to an extension of the mandatory collective management regime.
The Commission proposes that the country-of-origin principle is extended to 'ancillary online services' of broadcasts and retransmissions originating in other Member States. Ancillary services are "online services consisting in the provision to the public, by or under the control and responsibility of a broadcasting organisation, of radio or television programmes simultaneously with or for a defined period of time after their broadcast by the broadcasting organisation as well as of any material produced by or for the broadcasting organisation which is ancillary to such broadcast", and will likely include simulcasting, catch-up services, and services which give access to material which expands on the programmes (such as reviews of the programme content). The broadcaster will only need to apply for a clearance of rights in the Member State of its principal establishment.
When deciding the amount of payment to be made to the rights holder, the Commission believes that the parties must be required to take into account all aspects of the ancillary online service, such as the features, the audience and the language.
As to the extension of the mandatory collective rights management regime for retransmission of TV and radio programmes, the Commission proposes that this will be extended to IPTV transmission services and other "closed" electronic communications networks. Other retransmission services, for example those offered via the open internet, are outside the scope of the proposal.
The Commission does not propose to create an obligation on broadcasting organisations or operators of retransmission services to provide online ancillary services across borders or offer programmes from other Member States.
The Commission intends for the proposal be adopted as a Regulation which will then directly apply in all Member States without the need for implementation. It is hoped that this will address some of the difficulties experienced by broadcasting organisations through streamlining the clearance of rights and promote consumer access to TV and radio content across the EU in line with the aims of the Digital Single Market.
For commentary on the other proposals to modernise EU copyright law - http://intellectualpropertyblog.fieldfisher.com/2016/european-commission-publishes-its-proposals-to-modernise-eu-copyright-law/
By Chris Eastham and Emily Purdy