What were the challenges for online transmission and retransmission of television and radio programmes that the new Directive on television and radio programmes is addressing?
Broadcasters are increasingly offering their broadcasts online (for instance through their simulcasting or catch-up services). However, such online programming often remained unavailable in the other Member States, even if there was interest abroad to access it. The ‘clearance of rights’ for such uses can be particularly burdensome: a broadcaster needed to obtain authorisations from various rightsholders, for different categories of works and other protected content, and separately for every Member State, where the programme would be available online.
Retransmission services aggregate TV and radio channels into packages. These are increasingly provided using technologies other than cable (for example IPTV), but the previous rules facilitating rights’ clearance for operators of those services were limited to retransmissions by cable. The operators of retransmission services using other technologies (for example, satellite, IPTV, digital terrestrial, mobile network, internet) could not benefit from these rules facilitating rights’ clearance. The complexity in clearing the rights has made it difficult for these services to offer programmes coming from other Member States.
How does the new Directive on television and radio programmes contribute to developing cross-border access to TV and radio programmes?
The new Directive on television and radio programmes addresses the above difficulties related to the clearance of copyright in two ways:
- By establishing the principle of the ‘country of origin’: the rights required to make certain programmes available on the broadcasters’ online services (for instance their simulcasting or catch-up services) are to be cleared only for the broadcaster’s country of principal establishment (instead of all Member States in which the broadcaster wishes to make its programmes available). The licence fee paid by the broadcasters to rightsholders will have to reflect the audience of the programmes. The country of origin principle helps broadcasters to make certain programmes (all radio programmes, and, for TV, news and current affairs programmes, as well as fully financed own productions of broadcasters) available online also in the other Member States. As a result, consumers have more choice to watch and listen to online programmes transmitted by broadcasters established elsewhere in the EU. Citizens of linguistic minorities or Europeans living in another Member State have better possibilities to follow programmes in their mother tongue.
- By extending the system of mandatory collective management, which so far has been applicable to cable retransmissions only, to retransmission services provided through other means (such as Internet Protocol television (IPTV), satellite, digital terrestrial or online technologies. This system allows retransmission operators to clear the necessary rights in a simpler manner – they need to clear the relevant rights with broadcasters whose channels they retransmit and with collective management organisations, i.e. organisations that represent a multitude of right holders and not with several individual right holders on a one-to-one basis (e.g. a music composer or an audiovisual performer). At the same, time this system ensures that the rights of all concerned rightsholders are covered. The new rules allow the retransmission operators to offer their users more channels from across the European Union. For example, Belgian operators offering TV packages to Belgian customers using IPTV technology will be able to clear rights more easily for channels from the other Member States and include them in their packages.
The European Parliament and the Council of the European Union gave their green light to the new Directive on television and radio programmes in spring 2019. The deadline for the Member States to transpose the new rules into national law is Monday, 7 June 2021.
Which services are covered by the country of origin principle?
The country of origin principle applies to online services of broadcasters that give access to programmes, which are transmitted through traditional broadcasts.
The services covered include simultaneous online transmission of broadcasts (simulcasting), offering the possibility to watch and/or listen to the broadcast programmes for a defined period of time after their initial broadcast (catch-up), and transmitting content that enriches, extends or complements the broadcast (including for example previews, complements such as ‘the making of’).
The country of origin does not apply to video-on-demand (VOD) services.
Which types of programmes are covered by the country of origin principle?
The country of origin principle applies to all radio programmes, and to certain TV programmes – to news and current affairs programmes and programmes that are fully-financed own productions of the broadcasting organisations.
The country of origin principle, therefore, does not apply to TV productions acquired from third parties or commissioned by the broadcasting organisations from independent producers. Television broadcasts of sport events are also excluded.
Are broadcasters obliged to make such programmes available online across borders?
No. The country of origin principle is an enabling mechanism for broadcasters, who wish to offer programmes on their online services across borders, but it does not oblige them to do so.
Which retransmission services benefit from the system of mandatory collective management?
Cable operators already benefit from mandatory collective management under the existing Satellite and Cable Directive (Directive 93/83/EEC). Thanks to the new Directive, operators of retransmission services provided by other technologies (satellite, IPTV, digital terrestrial, mobile network, internet) benefit from the same regime to clear the rights that are needed in order to retransmit radio and TV programmes from other Member States. Retransmission services over the internet are covered by the new rules to the extent their services are provided in a managed environment (i.e. an environment in which authorised users can access secure retransmissions).
The rules on mandatory collective management do not apply to rights in retransmissions that are held by broadcasters. In such cases broadcasters licence the rights to operators of retransmission services directly, as is already the case for cable retransmissions under the Satellite and Cable Directive.
What is direct injection? What are the new rules introduced by the Directive?
Direct injection is a process increasingly used by broadcasters to transmit their programmes to the public. Instead of transmitting their programmes directly to the public over the air or by wire, broadcasters send their programmes to distributors, which transmit them to the public.
The Directive clarifies that when broadcasters transmit their programme-carrying signals by direct injection exclusively to distributors, and the latter transmit these to the public, there is an act of communication to the public, in which both the broadcaster and the distributors participate, and for which they need to obtain authorisation from rightholders. This new provision will help to ensure that rightholders are adequately remunerated when their works are used in programmes transmitted through direct injection.
For More Information
These Questions and Answers is an update to the Questions and answers – Directive on television and radio programmes, published on 28 March 2019
Press release: New EU copyright rules that will benefit creators, businesses and consumers start to apply
Factsheet: Improving access to Audio-Visual programmes across the EU