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SWD IA on EU copyright modernisation – digital retransmissions of TV and radio programmes

The problem is that the providers of retransmission services face practical difficulties with the acquisition of rights for retransmission of TV and radio channels from other Member States by means other than cable.

Nowadays TV and radio channels reach viewers and listeners through several types of retransmission service providers: cable TV/radio providers, satellite TV/radio (package) providers, IPTV (TV/radio over closed circuit IP-based networks) providers, digital terrestrial TV (DTT) providers and also the emerging over-the-top (OTT) TV/radio service providers. The core business activity of retransmission service providers is to aggregate TV and radio channels into packages (basic, premium, thematic, etc.) and to provide them to consumers simultaneously to their initial transmission, unaltered and unabridged, typically against payment.

When distributing TV and radio channels and programmes running on them, retransmission service providers routinely engage in a copyright-relevant act of communication to the public. The Satellite and Cable Directive provides for a system of mandatory collective management for retransmissions by cable of TV and radio broadcasts from another MS. This means that the right of cable retransmission with regard to TV / radio broadcasts from other MS cannot be exercised by rightholders individually but may only be exercised by a collective CMO. The only exception is made for the rights exercised by broadcasting organisations in respect of their own transmissions.

The rationale behind this system is to ensure that cable operators are in a position to acquire all rights necessary for retransmission of TV and radio channels and that there are no black-outs in the retransmitted channels or programmes. The system provided for in the Satellite and Cable Directive is limited to retransmissions by cable and therefore does not extend to retransmissions by other means such as IPTV or OTT. In other words, providers of retransmission services offered on satellite, IPTV, mobile, DTT or OTT platforms face the same problems the cable operators once faced, in particular when they retransmit TV and radio broadcasts from other MS.

The problems are mitigated (but not solved) by the practice of some broadcasters whereby they aggregate retransmission rights from other rights holders (e.g. AV producers) and grant the “all-rights-included” licences to retransmission service providers. Legislation in some MS have considered retransmissions over “closed” electronic communications networks (e.g. Slovakia, Austria) or over a particular network (e.g. DTT in IE) as equivalent to cable (and hence under the mandatory collective management system).

Finally, in some MS (e.g. EL, EE, HR, LV, LU, RO) there are neither legal nor practical solutions facilitating licensing of retransmission of TV and radio broadcasts by means other than cable. In these MS the providers of such other retransmission services have to rely on multiple licensing tools: the “all-rights-included” licences from broadcasters, collective licensing (only in the content sectors where it is available, mainly music) and individual licensing (notably by rightholders of AV works).

The lack of mechanisms facilitating the licensing of rights for retransmission services using means other than cable leads to a limited access to TV and radio channels from other MS (as the offer of such channels is limited). The fragmentation of rules applying to the clearance of rights for retransmissions by means other than cable is likely to become more problematic with the uptake of IPTV retransmission services in the coming years. The extent of use of cable retransmission services and satellite transmission / retransmission services is forecast to decline or remain stable.