First, respondents were asked (de) if they had used the existing negotiation and mediation mechanisms established under the Directive. They were invited to describe their experience. Second, respondents were asked to give their view about a possible extension of these rules to facilitate the cross border availability of online services, and they were invited to suggest any other measure that could facilitate contractual solutions and negotiations in good faith.
Evaluation of the current provisions
Overall the replies to the public consultation indicate that the mediation mechanism has had very limited practical relevance. Right holders and most of collective management organisations (CMOs), broadcasters and other service providers such as ISPs, IPTVs, DTTs and telecom operators indicated that the mechanism has not been used or has been used only occasionally. These respondents list as the main reasons for this situation the fact that the negotiations usually bring expected results and hence there is no need to resort to mediation, the non-existence of the appropriate mediation mechanism or alternatively the inefficiency of the existing system. On the latter, the respondents pointed to time-consuming procedures, deficiencies as to the confidentiality of the process, high costs involved and the fact that the results of mediation are not binding for the parties. Occasional use of the mechanism and the overall positive role played by the mechanism was reported by cable operators and a limited number of CMOs. Despite a very limited practical relevance of the mechanism, some CMOs, broadcasters and IPTV operators support its application but complemented and reinforced e.g. by a firm timeframe to ensure efficient process.
Assessment of the need for the extension
The majority of respondents do not support the extension of the application of the mediation mechanism. Out of the Member States/public authorities which responded to the public consultation only one respondent commented on this matter, supporting the possible extension of the negotiation mechanism while also expressing doubts about its practical implementation.
In general right holders are against the extension of the application of the mechanism. The vast majority of authors oppose the extension, due to their negative view of the current mechanism’s application. They also do not see the need for additional measures. Film/AV producers stressed their preference for freedom of commercial negotiations. All phonogram producers were against the extension of the mediation to online services, indicating potential interferences with right holders’ freedom to exercise their exclusive rights. As regards new measures, they all referred to the need for a level playing field and a better balance in the digital markets, demanding that all online services which make the content available to the public comply with right holders’ exclusive rights. Most of publishers did not express any particular opinion. As regards additional facilitating measures, they mentioned the need to engage stakeholders in cooperation on enforcement issues as well as the need to encourage investment in new business models.
Most collective management organisations (CMOs) were sceptical about the possible extension arguing that the current system has had only limited results. CMOs suggested a variety of possible measures for facilitating contractual solutions, such as greater transparency and quality of data and information, the obligation to conduct negotiations in good faith, the recognition of CMOs’ mandate to represent audio-visual authors and the need for all online services to comply with the rules related to right holders’ exclusive rights.
Broadcasters are split on the issue. Most of public broadcasters responding to this question supported the extension of the mediation to all broadcasters’ services, while only few opposed it. They mentioned the need for effective, binding and cost-efficient mechanisms, called for extending the application to any use covered by the Directive and recommended the use of similar mechanisms as those already present in the Collective Rights Management Directive. Most of commercial broadcasters are reluctant as regards the extension of the mediation mechanism.
Other service providers such as TV and radio aggregators, VOD and DTT operators did not provide any views on the potential extension. ISPs, IPTV operators, cable operators and some other service providers supported the extension on condition that the current lack of effectiveness of the mediation mechanism is redressed. As regards additional measures, some recommended to focus on the respect of competition law and the Collective Rights Management Directive by the CMOs as well as on the facilitation of market entry for new businesses. Some cable operators mentioned the need for a more transparent, rapid and non-discriminatory mediation procedure.