SWD IA on EU copyright modernisation – considered options for digital retransmissions

Non-regulatory options are not considered because they would not be sufficient to achieve the objectives. Their effectiveness would be similar to the baseline scenario, and they would not provide the necessary degree of legal certainty.

Baseline

No policy intervention. This option would mean relying on the market players – rightholders, including CMOs, and retransmission service providers – to work out and agree on the appropriate licensing arrangements and/or relying on the MS to establish the appropriate licensing facilitation mechanisms. While most of individual rightholders and commercial broadcasters support this option, consumer representatives, CMOs, public service broadcasters, cable and telecoms operators consider that it cannot solve the identified problems as only legislative intervention can ensure that retransmission service providers are in a position to acquire all necessary rights.

Option 1

Mandatory collective management of rights to retransmission of TV / radio broadcasts by means of IPTV and other retransmission services provided over “closed” electronic communications networks

Option 1 would introduce mandatory collective management for simultaneous, unaltered and unabridged retransmission of TV / radio broadcasts by IPTV retransmission services and other retransmission services provided over “closed” electronic communications networks. As a result, Option 1 would concern IPTV and other retransmission services (satellite, mobile, DTT) that can only be accessed by a consumer through an electronic communications network, dedicated fully or partially to the retransmission service (as opposed to access through “open” Internet / any electronic communications network giving access to the Internet).

Option 1 would concern retransmission of TV / radio broadcasts originating in other MS. Just as in the case of the cable retransmission regime, broadcasters would be able to directly license to the retransmission service providers concerned the rights exercised by them in respect of their own broadcasts, irrespective of whether the rights concerned are broadcasters’ own or have been transferred to them by other copyright owners and/or holders of related rights. As a result, the retransmission service providers concerned would have to obtain licences only from two categories of rightholders – broadcasters and CMOs.

Most rightholders – phonogram producers, music publishers and many AV producers – as well as commercial broadcasters are against this option due to the potential disruptive effect on the markets, which, according to them, function well. Cable and telecoms operators, consumer representatives, CMOs and public service broadcasters tend to be in favour of the possible application of the mandatory collective management regime to IPTV / other retransmission services provided over “closed” electronic communications networks and consider that it could improve the availability of TV / radio broadcasts across Europe.

Option 2

Mandatory collective management of rights to retransmission of TV / radio broadcasts by means of any retransmission services, irrespective of the retransmission technology or network used, as long as they are provided to a defined number of users (subscribers, registered users)

The main elements of Option 2 are the same as those of Option 1 except that Option 2 would introduce mandatory collective management for a wider range of retransmission services. In particular, Option 2 would also apply to OTT retransmission services, as long as they are provided to a defined number of users (subscribers, registered users). It would not cover the OTT retransmission services which do not require subscription or registration (and typically rely on business models, e.g. advertising-based, that are different from most other retransmission services).