Report on EU public consultation concerning copyright with regard to EU Satellite and Cable Directive
The public consultation on the review of Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (the "Directive") was held from 24 August 2015 until 16 November 2015. This review (de) is part of the Digital Single Market Strategy which has as one of its objectives to enhance cross-border access to TV and radio programmes in the European Union.
Respondents were asked about the functioning of the existing rules applicable to clearance of copyright and related rights for satellite broadcasting (the "country of origin" principle). Respondents were also asked about their views on the impact of a possible extension of the application of the principle to the different online services. Overall, about half of the respondents consider that the existing provisions facilitated the clearance of rights at least to some extent. Respondents' views are split as to whether the application of the country of origin principle has increased consumers' access to satellite broadcasting services across borders.
A significant part of consumers and their representatives raise that the current provisions of the Directive do not sufficiently ensure access to content available in other Member States. Some consumers underline that these problems concern not only premium content (such as sports and films) but also other content, for instance cultural programmes. The majority of Member States' public authorities consider that the country of origin principle facilitated the clearance of rights. Some of them, however, underline that the practical application of this principle is limited for audiovisual.
The majority of right holders do not consider that the application of the country of origin principle facilitates the clearance of rights. Right holders indicate that multi-territorial licences are available and that therefore there are no problems with acquiring them. In their view, cross-border offerings of content are limited because of insufficient consumer demand, language barriers as well as commercial choices of service providers. Certain right holders, in particular film/AV producers, argue that the application of the country of origin principle diminishes the scope of their rights because it limits their freedom to license the rights as they see fit. A significant proportion of collective management organisations (CMOs) considers that the application of the principle of country of origin has not facilitated copyright clearance. The majority of CMOs do not have an opinion on whether its application has increased consumers' cross-border access to TV and radio programmes.
The vast majority of broadcasters consider that the country of origin principle facilitates the clearance of rights at least to some extent. Also, they generally consider that this principle increased consumers' cross-border access to satellite broadcasting services. A number of commercial broadcasters submit that there are obstacles to cross-border access which are not related to copyright. Similarly to right holders, they mention insufficient consumers' demand and language barriers. Other service providers (internet service providers (ISPs), internet protocol television (IPTV) operators, digital terrestrial television (DTT) providers, cable operators, telecommunication network operators and video on demand (VOD) operators) do not have much experience with the practical application of the country of origin principle. Yet, the majority of them consider that it facilitates the right clearance and cross-border access by consumers.
Assessment of the need for the extension to online transmissions
Consumers representatives call for a broad extension of the country of origin principle to cover all online services. In addition, certain argue that introducing this principle with regard to online transmissions would not be sufficient on its own - such an intervention would need to be accompanied by a rule explicitly prohibiting technical or contractual restrictions on "passive sales" across EU borders (restrictions on responding to unsolicited requests from consumers residing in other Member States).
While a number of Member States/public authorities are open for discussions with the view of enabling more cross-border access to content, there is a strong call for caution. In their view, any reform should not undermine contractual freedom, a high level of protection of intellectual property and the exclusivity of rights and should ensure a level playing field. Certain Member States submit that they are against any extension of the application of the country of origin principle because of risks of unintended negative consequences, especially for the audio-visual sector.
Right holders are, in general, against any extension of the application of the country of origin principle. They consider that any such extension would de facto lead to pan-European licences and would restrict their ability to license rights on a territorial basis. They are in particular concerned about an extension which would cover broadcasters' VOD services and, even more so, any online services by any service providers. The main reasons given against it are:
· negative consequences for the value chain of the production (e.g. financing of AV works) and the distribution of creative content (notably for AV works, as producers would no longer be able to rely on pre-sales of distribution rights with territorial exclusivity);
· right holders would be no longer able to decide for which territories in the EU they license their rights;
· not needed, as voluntary multi-territorial licensing schemes already exist;
· the application of the principle to online services and the consequential focus of the licensing system on the country of origin could have a negative impact on creators' revenues;
· risk of forum shopping by service providers and more complicated enforcement by right holders;
· risk that rights in musical works may be withdrawn from CMOs if right holders come to the conclusion that CMOs cannot ensure the effective collective management of rights across the entire EU.
CMOs do not favour any extension of the principle. They raise the same arguments against it as right holders.
Broadcasters’ views on the extension are split along the public service versus commercial broadcaster line. However, all broadcasters share the view that in all cases full contractual freedom should be maintained, enabling them to limit the exploitation of rights by territories. The majority of commercial broadcasters argue that an extension of the principle would amount to pan-European licences. They raise the same arguments against the extension as right holders. By contrast, all public service broadcasters as well as commercial radios call for the application of the principle to EU broadcasters' transmissions by any technological means as well as to all broadcast-related online services. The main reasons given by those in favour of such an extension are:
· it would enable broadcasters to expand their services to other Member States;
· it would provide broadcasters with legal certainty;
· it would reduce significant administrative burden and costs associated with clearance of rights;
· it would provide for additional revenues for right holders by ensuring a wider dissemination of TV and radio programmes and, therefore, of their works and other protected subject matter.
Views of other service providers vary, though most of them call for a careful and measured approach. ISPs express most favourable views: they argue that it would enable digital content providers to offer services EU-wide. Telecommunications network operators, cable operators, IPTV operators, DTT providers and VOD operators are more cautious, even though some of them indicate that they favour technology-neutral approach. All of service providers other than broadcasters underline the importance of a level playing field. Also, many of them argue that contractual freedom should be maintained. They claim that if the extension of the application of the principle were to lead to pan-European licencing, it would put European and local market players at a competitive disadvantage in relation to multinational operators as they would not have the means to acquire pan-European licences.