SWD Impact assessment on the modernisation of EU copyright rules – impacts of baseline option

Under the baseline scenario, broadcasters would continue facing high transaction costs linked to licensing of rights for cross-border online transmissions, including for their own programmes. Existing voluntary initiatives aimed at promoting the aggregation of rights and the granting of multi-territorial licences could nevertheless contribute to facilitating the clearance of rights for musical works and phonograms used in in radio and TV broadcasts.

Due to persisting difficulties in acquiring underlying rights for online cross-border transmissions, broadcasters are likely to continue geo-blocking access to their own programmes. AV premium content is likely to continue being licensed on a territorial basis and with either the entire programme being geo-blocked or certain parts of the programme being blacked-out. These agreements based on territorial exclusivity would be subject to the application of EU law, notably as regards the application of the free movement of services principle and competition law. As concerns music, availability of multi-territorial licences is expected to increase due to the implementation of the CRM Directive. As for visual arts, no significant changes to the current licensing practices are expected.

The baseline option would not have any impacts on the competitive situation between broadcasters and service providers other than broadcasters. The baseline option would not have any impact on licensing models applied by rightholders or on the licensing revenues received from broadcasters or webcasters. In particular, the AV sector would continue to be able to collect revenues based on the territorial licensing of rights (subject to EU rules).

However, other rightholders whose content is distributed in limited geographic areas by broadcasters may lose opportunities to have their content reaching audiences across borders. The potential of the Digital Single Market for some creative content may remain underexploited, especially for content which does not rely on exclusive territorial licensing. Consumers are likely to continue facing restrictions to cross-border online access to TV and radio programmes.

The baseline scenario would not have any impact on copyright as property right or on the freedom to conduct a business. The baseline scenario would not affect the production of new cultural content. However, access to cultural diversity may remain limited under this option, as consumers would continue facing restrictions to access TV and radio programmes online from other MS (including as regards access to content such as news, current events or other non-fiction TV, which represent a significant proportion of broadcaster’s programming). This situation would affect the role of broadcasters as key players for linear transmissions of current events and of cultural programmes.