As part of the Digital Single Market strategy, a directive amending the Satellite and Cable Directive has been introduced in 2019. The directive entered into force on 6 June 2019 and must be implemented in Member States’ legislations by 7 June 2021.
The directive updates the existing regime for clearance of rights in content incorporated in TV and radio programmes, with the aim of facilitating cross-border provision and access to online services.
More specifically, the directive addresses two distinct kind of services, namely (a) online services that are ancillary to broadcasts and (b) retransmission services that are offered through internet access services. Moreover, it lays down rules for the transmission through direct injection.
Ancillary online services
For online services that are under the control and responsibility of a broadcasting organisation (‘ancillary online services’) the directive introduces a ‘country of origin’ principle, whereby the broadcasting organisation must clear copyrights in the content incorporated in its programmes only in the Member State in which it has its principal establishment. The country of origin principle, which mirrors the provision for satellite transmission in the previous directive, has three important limitations:
- first, it applies to simulcasting and catch-up services, but not to video-on-demand services or to services licensed to third parties;
- second, it applies only to news programmes and own broadcaster’s productions; sporting events are explicitly excluded;
- finally it leaves intact the freedom to agree limitations, including territorial limitations, on the exploitation of rights in the content incorporated in TV and radio programmes.
Online retransmission services
For services that provide ‘simultaneous, unaltered and unabridged retransmission’ of an initial transmission (other than by cable, as defined by the previous directive), and which are not under direct control of the broadcasting organisation, the new directive introduces a system of mandatory collective management of rights similar to the one in place for cable retransmission.
The system applies only to the content incorporated in TV and radio programmes, not to rights held by broadcasting organisations in respect to their broadcasts. More importantly, when the retransmission is on the internet, the service must ensure that it is carried out in a ‘managed environment’, namely an environment where only authorised users can access the broadcast.
Failing to provide a managed environment would cause the service to engage in a distinct act of communication to the public for which it would need to seek authorisation from the rights holders.
When a broadcasting organisation transmits its programme-carrying signals to a signal distributor by ‘direct injection’, without transmitting simultaneously the signal to the public, the directive establishes that a single act of communication to the public occurs. The provision on mandatory collective management of rights for online retransmission services applies mutatis mutandis to signal distributors.
Subsistence and ownership
All Member States have implemented the Rental and lending directive and provide for protection of broadcasts as ‘neighbouring right’, in line with the Rome Convention. They therefore provide broadcasting organisations with the right of fixation of their broadcasts and distribution of these fixations.
They also include the right to authorise the retransmission of their broadcasts by air and cable. Transmission by internet is normally not specifically included in broadcasters’ rights, with the notable exception of Romania, where the copyright law gives broadcasters a right to authorise or prohibit ‘retransmission… including retransmission through the internet’.
In the UK, Ireland, and Cyprus, broadcasts are listed among the subject matter entitled to ‘copyright’ protection. In the UK, broadcasts are defined as ‘works’ and enjoy exclusive rights as a copyright work.
Roughly half of the Member States provide a definition of broadcast, and another half provide the definition of broadcaster. In many cases one definition is provided by law, but not the other.
A few countries provide a more ‘classical’ definition of a broadcaster, which is characterised by its ‘editorial responsibility’ or control over preparation and transmission of the radio or TV transmission. The broadcast is the object of this transmission.
The protected transmission is normally by wire or wireless, by satellite or cable and it is a radio or TV transmission. Few countries (Belgium, Estonia, The Netherlands, and Slovakia) have a broader definition of subjects that are defined as ‘media service providers’, who have responsibility on content transmitted over an electronic communication network.
Scope of the rights: communication to the public
Domestic legislation provides for extended protection for broadcasts in seven Member States: Austria, Czech Republic, Denmark, Finland, Romania, Sweden and the UK. In all the other countries, broadcasters’ rights are limited to ‘making available’, i.e. on-demand transmission of fixations of broadcasts, and does not cover live internet transmission of those broadcasts.
In Denmark, Czech Republic and UK, legislation provides explicitly for a general right of ‘communication to the public’ for broadcasts. In Austria, the wording of the Federal Act providing broadcasters with the ‘right to transmit the broadcast simultaneously over another transmitter’ has been interpreted by the Supreme Court as covering also transmission over the internet.
In Finland, the Copyright Act provides broadcasters with a right of ‘retransmission’. Based on the preparatory material for this provision, in which a technology-neutral approach was stressed, commentators argue that ‘retransmission’ is broader than ‘rebroadcasting’ and should include also internet transmission.
In Sweden, broadcasters have both a right to make fixations of broadcasts available to the public and a right to ‘exploit’ recordings of sounds and images, including by communicating such recordings to the public. Finally, Romania gives broadcasting organisations a right to authorise or prohibit ‘retransmission… including retransmission through the internet’.
Legislative developments in Member States
The protection of sporting events
Sporting events are not a subject matter of copyright protection under EU law. However, a distinction must be made between the event as such and the audiovisual recording and transmission of it.
Sporting events attract so-called ‘house rights’, which gives sports event organisers the possibility to control access to the event venue in accordance with national private law. House rights serve as a legal basis for sports event organisers to negotiate the conditions for audiovisual production companies to record the event.
Audiovisual productions are normally licenced for broadcasting by sports organisations in their basic form (recording of the events, with environment sound and shootings from different camera angles), upon which licensees add action commentaries, graphics superposition of scores and other layout features. Therefore, the live broadcast of a sporting event consists of a complex mosaic of rights.
In some countries, it has been suggested that copyright can protect certain sporting events. In Denmark and Austria, for example, some type of sports with particular aesthetic value (for example, figure ice-skating) are arguably protected as original works.
In addition, some countries provide specific rights for event organisers (see for example France, where sporting events broadcasts are protected under the French Sports code). In Portugal, the courts established that specific spectacle rights are recognised to event’s organisers, which include sporting events.
Indirect or secondary liability for copyright infringement
Forms of secondary liability for infringement of copyright and related rights have been recognised in almost all countries, except Cyprus, Estonia, Hungary and Romania. In Greece, this form of vicarious responsibility is based on Tort law.
In Cyprus and Estonia, it has been reported that ISP taking advantage of the infringement are responsible in the same way as the direct infringer. Interestingly though, Cyprus law establishes a limit to the damages that can be claimed by the rights holder from the ISP, as they cannot exceed the actual economic loss suffered by the victim.