[co-author: Wesley Horion] 

On 15 April the Agriculture and Fisheries Council formally adopted the Directive on online transmissions of broadcasting organisations and retransmissions of TV and radio programmes (the “Directive”), following the European Parliament’s first-reading adoption on 28 March (which also amended the proposed Regulation to a Directive). Broadly, the Directive aims to facilitate the cross-border transmission, within the EU, of certain radio and TV programmes. Once it has been published in the Official Journal of the EU, Member States will have 24 months to implement. As with the new Copyright Directive, it is not certain whether the UK will be obliged to implement, which will depend how and when the UK leaves the EU.

Background

The proposal for a Regulation aimed at simplifying the cross-border clearance of rights for broadcasters and enhance the distribution of content within the European Union was first published by the Commission in September 2016 (COM (2016)594). Its stated goals were “to promote the cross-border provision of online services ancillary to broadcasts and to facilitate digital retransmissions over closed networks of TV and radio programmes originating in other Member States” (as the SatCab Directive (93/83/EEC) did for broadcasting via satellite and cable). For more on the background to the Directive, see our earlier blog post here.

Three new mechanisms

The Regulation provides for three mechanisms aimed at facilitating the diffusion of content across the EU.

• Through the extension of the “country of origin principle” to broadcasters’ ancillary services (simulcasting, catch up and other services that complement the main broadcast, such as previews). The country of origin principle creates a legal fiction that ensures that content whose rights have been cleared in one Member State may be lawfully transmitted online in other Member States, and the copyright-relevant acts are deemed to occur solely in the first Member State.
• The new rules however are limited to clearance for online transmission of the broadcast of all radio programmes but only news and current affairs television programmes, and broadcasters’ own fully financed television productions.
• Extending the compulsory collective rights management mechanism for clearance of rights for the cross-border retransmission of TV and radio programmes within the EU to means other than cable retransmission (e.g. IP TV, satellite, digital terrestrial and online technologies). This means operators offering “packages” of TV and radio programmes via the internet will in future benefit from collective rights management mechanisms in the same way as cable operators do currently. The idea is to create a one-stop-shop system.
• Legal certainty is provided to broadcasters and signal distributors through the clarification of the rules applicable to direct injection.

Direct injection refers to the process by which a broadcaster transmits a programme’s signal directly to a signal distributor, without the public being able to access this transmission. Under the Directive, only one single act of communication to the public is deemed to occur, in which both the broadcasting organisation and the signal distributor participate. This means that both will have to clear underlying rights, although Member States are left some flexibility when they come to implement the Directive in relation to the arrangements for obtaining authorisation.

What might have been?

These three new mechanisms are certainly a step forward in the context the overall DSM strategy, with a Commission press release after the EP vote claiming the Directive:

“will make it easier for European broadcasters to make large parts of their TV and radio programmes available online in all EU countries, while ensuring that creators, authors and rights holders are adequately paid for the use of their content”

However, the draft legislation was originally more ambitious: the Commission’s draft proposed an extension of the country of origin principle to all content transmitted on a broadcasters’ own ancillary service. But in the adopted Directive this has been watered down for TV to news and current affairs television programmes, and broadcasters’ own fully financed television productions only. The Directive therefore only applies to transmissions of radio programmes and specific television programmes on an EU broadcasting organisations’ own ancillary service. It does not apply to transmissions on video-on-demand services or online services which provide simultaneous broadcasts of TV or radio programmes not operated by the broadcasting organisation itself.

The full text of the adopted Directive can be found here.

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