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

Option 1 could facilitate the clearance of rights and reduce transaction costs for cross-border online transmissions only on the basis of voluntary agreements concluded between rightholders, CMOs and broadcasters. The effectiveness of such agreements would depend on the sectors’ willingness to license rights collectively (which may be limited in the case of AV works).

The dialogue foreseen under Option 1 could allow exploring the need for and feasibility of similar agreements for other types of works, notably AV content and visual art works and, as regards authors’ rights in musical works, also for commercial broadcasters. However, this would mainly depend on the willingness of rightholders to enter such dialogue.

By facilitating the clearance of underlying rights, the voluntary agreements fostered under Option 1 could help broadcasters to make part of their own programmes available online and across borders. The type of programmes and the availability of different services (simulcasting, previews, catch-up) would depend on the feasibility and functioning of such voluntary agreements as well as the conditions foreseen in them. The cross-border availability of programmes, in particular through catch-up services, is likely to remain limited.

Option 1 is not expected to have any impact on the possibility to offer premium content across borders. Option 1 is not expected to have any direct impact on licensing costs for broadcasters. To the extent that voluntary agreements could lead to multi-territorial licences, licence fees would be adjusted taking account of the audience in different territories.

Rightholders in the music sector are expected to support a further development of voluntary agreements with CMOs and broadcasters. It is not excluded, however, that rightholders may be reluctant to aggregate at CMOs certain rights (e.g. for catch-up services or music channels) in order to protect their revenues in the on-demand market.

Producers of AV works which are not distributed on the basis of exclusivity may see an interest in such agreements, as it could increase the exposure of their works and generate additional revenues. They could for example decide to transfer their online rights, for the purpose of licensing broadcasters’ online ancillary services, to CMOs which currently manage their cable retransmission rights. Such arrangements based on collective management of rights are more likely to be developed for simulcasting than for catch-up services (rightholders may be more reluctant to license rights for catch-up through CMOs in order to optimise licensing of their on-demand rights).

Rightholders in the AV sector who rely on territorially based licensing models are likely to be very reluctant to engage in licensing practices based on aggregation of rights or multi-territorial licensing. This option could encourage visual arts industry to enter into agreements with broadcasters based on the aggregation of their rights with CMOs, in particular those who already rely on the collective management of rights.

Option 1 would not affect the production of new cultural content. It may have a limited positive impact on access to cultural diversity, if more TV and radio programmes from other MS are made available online. Option 1 would not have any impact on copyright as property right. It may have a slight positive impact on the freedom of information, to the extent that it could facilitate cross-border access to information.