Broadcasters and retransmission service providers are increasingly investing in the development of digital and online services for the distribution of radio and television programmes. The online offerings of broadcasters include notably simulcasting services (TV/radio channels which are transmitted online alongside traditional broadcasting by satellite, cable or, terrestrial), TV catch-up services and podcasts.
Broadcasting organisations transmit on a daily basis a high number of news, cultural, political, documentary or entertainment programmes that they license from others or produce themselves. These programmes incorporate a variety of protected content such as audio-visual, musical, literary or graphic works. This requires a complex clearance of rights with a multitude of right holders.
In order to make their services available across borders, broadcasting organisations need to have the required rights for the relevant territories and this increases the complexity of the rights’ clearance. For satellite broadcasting the clearance of rights has been facilitated by the application of the country of origin principle enshrined in the Satellite and Cable Directive, allowing broadcasters to clear the rights only in one Member State. That Directive does not apply when a broadcaster clears rights for its online services.
Operators of retransmission services, which aggregate a high number of TV and radio channels into packages, also face difficulties for acquiring all the rights necessary to retransmit the television and radio programmes of broadcasting organisations. The Satellite and Cable Directive provides for a system of mandatory collective management for retransmissions by cable of TV and radio broadcasts from other Member States.
This system, facilitating the clearance of rights, does not extend to retransmission services provided by means other than cable over closed electronic communication networks, such as IPTV (TV/radio over closed circuit IP-based networks). Operators of such retransmission services therefore face a heavy rights clearing burden in order to be able to provide their services, in particular when they retransmit TV and radio broadcasts from other Member States.
This proposal aims to promote the cross-border provision of online services ancillary to broadcasts and to facilitate digital retransmissions over closed networks of TV and radio programmes originating in other Member States by adapting the Union legal framework. The aim of the proposal is to take account of, inter alia, the changes in technology which necessitate adaptation of the previously harmonised legal framework.
Only a Union instrument can establish a rule that applies the principle of the country of origin to cross-border transmissions of TV and radio programmes. Concerning the exercise of retransmission rights, only a Union instrument can remove the existing market fragmentation in the way rights are managed for digital retransmission services and thereby ensure legal certainty to retransmission operators.
The proposal (official) is targeted and covers only specific segments of the market (ancillary online services of broadcasters and certain retransmission services provided by means of IPTV and other “closed” electronic communications networks) while other services (e.g. on-demand services not linked to a broadcast) are outside its scope. In addition, the proposal does not oblige broadcasting organisations to provide their online ancillary services across borders, nor does it oblige operators of retransmission services to offer programmes from other Member States. The proposal does not prevent either the exercise of the contractual freedom of the parties to limit the exploitation of the rights affected by the principle of country of origin done in compliance with Union law.
Concerning the country of origin rule applicable for clearing rights for the broadcasters’ ancillary online services, it only localises the relevant copyright acts for the purposes of exercising the rights (e.g. obtaining a licence). Therefore, the country of origin does not affect the localisation of the relevant copyright acts when rights have not been cleared (i.e. in the case of unauthorised transmissions).
As concerns the retransmission rights, the proposal only affects the exercise of the retransmission rights while leaving these rights intact. Moreover, the proposal covers retransmissions insofar as they concern TV and radio programmes originating in other Member States.