The Broadcasting Directive (1) aims to contribute to the Digital Single Market by allowing a wider dissemination of radio and television programmes throughout the EU (2).
To realise this aim, the Directive introduces mechanisms to facilitate rights clearance of copyright and related rights for certain online transmissions of tv and radio programmes and for cross-border retransmissions (3).
Three aspects
The EU legislature was inspired by an “old acquaintance”, i.e. the Directive (EEC) 93/83 of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (aka the ‘SatCab Directive’), which already sought to facilitate cross-border satellite broadcasting and cable retransmission.
Firstly, the Broadcasting Directive broadens the scope of the ‚country of origin principle‘ – applicable to satellite broadcasting – to include certain online content of broadcasting organisations.
Secondly, it extends the scope of the compulsory collective licensing mechanism for cable transmission to other means of retransmission (other than by cable, already regulated).
Thirdly, the Directive also innovates by addressing the – at least in Belgium – controversial qualification of direct injection.
Extending the country of origin principle to ancillary online services of broadcasting organisations
Country of origin principle
Article 3 of the Broadcasting Directive provides for the establishment of a country of origin principle, already known from the SatCab Directive (and equally from the Portability Regulation) for acts of communication to the public and the making available to the public of works or other protected subject matters in ancillary online services. The introduction of this principle means that the aforementioned acts are deemed to have taken place exclusively in the Member State in which the broadcaster has its principal establishment, thus allowing broadcasters to clear all relevant rights in one Member State.
The acts of reproduction necessary for the provision of, access to or use of ancillary online services will also be based on the premise that they take place in the Member State where the broadcaster has its principal establishment (4).
Restricted scope
The directive defines ‘ancillary online services’ as “an online service consisting in the provision to the public, by or under the control and responsibility of a broadcasting organisation, of television or radio programmes simultaneously with or for a defined period of time after their broadcast by the broadcasting organisation, as well as of any material which is ancillary to such broadcast” (5). The definition concerns services that have a clear and subordinate relationship with the broadcasting organisation’s broadcasts. This includes simulcasting and catch-up services on the one hand as well as material that enriches or expands television and radio programmes, such as previews, reviews, a ‘making-of’… Video on demand services are, however, not included (6).
The scope of the country of origin principle is limited to online ancillary services of all radio programmes but only to certain television programmes, i.e. news and current affairs programmes and broadcasting organisations’ ‘own productions’. Productions commissioned to producers that are independent from the broadcasting organisation, coproductions and sport events are explicitly excluded from the scope of the country of origin principle (7).
Payment
Although the starting point of the Directive is the fiction that access to online services takes place exclusively in the country of origin, the EU legislature still forces Member States to take into account the reality, i.e. that the services are de facto accessible across borders. Therefore, Member States should ensure that, when setting the amount of payment, due account is taken of all aspects of the ancillary online service, such as the duration of online availability of the programmes, the audience and the language versions provided. However, this clarification does not compromise the calculation of the amount of the payment based on the broadcasting organisation’s revenues (8).
The extension of the mandatory collective management for the retransmission of television and radio programmes other than cable
The mandatory collective management mechanism
The introduction of a mandatory collective management implies that rightholders may only exercise their right to grant or refuse the authorisation for a retransmission through a collective management organization (9). The mandatory nature of the mechanism is reinforced by the fact that agreements concluded between a collective management organisation and operators of a retransmission service, with regard to the rights to grant or refuse the authorisation for a retransmission, may be extended to the rights of rightholders of the same category who have not entrusted the management of that right to such an organisation. This is a response so the so called “outsiders” issue. Where several collective management organisations manage rights of the relevant category, it is up to the Member State for the territory of which the operator wishes to clear rights to determine which collective management organisation(s) ha(s)(ve) the right to grant or refuse the authorisation for a retransmission (10).
Scope of application
The regime applies to the “simultaneous, unaltered and unabridged retransmission […] intended for reception by the public, of an initial transmission from another Member State of television or radio programmes intended for reception by the public” (11). It concerns the retransmission other than cable retransmission, which is already regulated in the SatCab Directive.
The European Union legislature particularly envisaged satellite, digital terrestrial, mobile or closed-circuit IP-based and similar networks or internet access services. However, the latter form of retransmission is only subject to the mandatory collective management mechanism when provided in a „managed environment“. This restriction has been introduced to ensure sufficient safeguards against unauthorised use of works and other protected objects (12).
However, it is worth mentioning some restrictions. Firstly, retransmissions of initial online transmissions are excluded from the scope of the Directive (13). Furthermore, the mandatory collective management mechanism will in principle only apply to retransmissions of initial transmissions from other Member States (14). However, Article 7 allows Member States to extend the application of the mechanism to situations where both the initial transmission and the retransmission take place within their territory (15). Finally, the regime only applies on the condition that the retransmission is carried out by a party other than the broadcasting organisation that made the initial transmission or under whose control and responsibility the initial transmission was made (16).
Exception for broadcasting organisations
The mandatory collective management mechanism does not apply to the rights in retransmission exercised by a broadcasting organisation in respect of its own transmissions, irrespective of whether the rights concerned are its own or have been transferred to it by other rightholders (17). This restriction follows from the expectation that operators of retransmission services do not encounter the same difficulties when acquiring rights held by broadcasting organisations as they might when obtaining licenses from rightholders. They are generally assumed to maintain ongoing commercial relations with these broadcasting organisations, hence the identity of these organisations is known to operators of retransmission services (18). In other words, the “outsiders” issue is not present in this scenario.
The Directive does, however, impose that the negotiations regarding retransmission that take place between them are to be conducted in good faith (19).
Regulating the transmission of programmes through direct injection
Direct injection – Finally, the Directive aims to overcome the legal uncertainty surrounding the technique of direct injection by presenting the transmission of programmes through direct injection as a single act of communication to the public in which both the broadcasting organisation and the signal distributor participate with their respective contributions. Although both the broadcasting organisation and the signal distributors are obliged to acquire permission from the rightholders for their specific contribution in this single act of communication to the public, their participation should not give rise to a joint liability (20).
Member States are free to determine the arrangements for obtaining authorisation from rightholders. Pursuant to the second paragraph of article 8 of the Directive, they can determine that the provisions concerning retransmission in the Broadcasting Directive apply mutatis mutandis to the exercise by rightholders of the right to grant or refuse the authorisation to signal distributors for a transmission through direct injection.
Scope of application – The Directive defines the technique in its article 2, paragraph 4 as “a technical process by which a broadcasting organisation transmits its programme-carrying signals to an organisation other than a broadcasting organisation, in such a way that the programme-carrying signals are not accessible to the public during that transmission.”
The aforementioned regime does however not apply in case broadcasting organisations transmit their programme-carrying signals directly to the public, thereby carrying out an initial act of transmission, and simultaneously transmit those signals to other organisations through the technical process of direct injection. In such a case the transmissions by those other organisations constitute a separate act of communication to the public to which the provision on retransmissions laid down in the Broadcasting Directive and the SatCab Directive apply (21).
Entry into force and transitional provisions – The Directive entered into force on the 6th of June 2019 (22). Member States now dispose of a period of two years, i.e. until 7 June 2021, to transpose the Directive into national law (23).
Transitional provisions have been foreseen for agreements concerning online ancillary services and the transmission of programmes through direct injection (24).
(1) Directive (EU) 2019/789 of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmission of television and radio programmes, and amending Council Directive 93/83/EEC, OJ L. 130 17.05.2019, p. 82-91.
(2) Recital 1 of the Broadcasting Directive.
(3) Recital 7 of the Broadcasting Directive.
(4) Article 3.1 of the Broadcasting Directive.
(5) Article 2.1 of the Broadcasting Directive.
(6) Recital 8 of the Broadcasting Directive.
(7) Recital 10 of the Broadcasting Directive.
(8) Article 3.2 and recital 12 of the Broadcasting Directive.
(9) Article 4,.1 and recital 15 of the Broadcasting Directive.
(10) Article 4.2 of the Broadcasting Directive.
(11) Article 3.2 of the Broadcasting Directive.
(12) Recital 14 of the Broadcasting Directive.
(13) Article 2.2 of the Broadcasting Directive.
(14) Ibid.
(15) Article 7 of the Broadcasting Directive.
(16) Article 2.2 a) of the Broadcasting Directive.
(17) Article 5.1 of the Broadcasting Directive.
(18) Recital 17 of the Broadcasting Directive.
(19) Article 5.2 of the Broadcasting Directive.
(20) Recital 20 of the Broadcasting Directive.
(21) Recital 21 of the Broadcasting Directive.
(22) Article 13 of the Broadcasting Directive.
(23) Article 12 of the Broadcasting Directive.
(24) Article 11 of the Broadcasting Directive.