Mandatory collective management regime for different forms of online simultaneous retransmissions in EU
Respondents were asked about the existing rules applicable to clearance of copyright and related rights for the simultaneous cable retransmission. Second, respondents were asked about the impact of a possible extension of the mandatory collective management regime to different forms of online simultaneous retransmissions.
Evaluation of the current provisions
The majority of respondents consider (de) that the Directive has facilitated the clearance of rights for the simultaneous retransmission by cable of programmes broadcast from other Member States and has helped consumers to have more access to broadcasting services across borders. The few consumers who have replied to the questions related to cable retransmission have a rather negative view of the effectiveness of the current provisions and the degree to which they increased consumers' access to broadcasting services. Some of them stress the existence of gaps in the offer of channels on cable networks. Member States / public authorities consider that the Directive has facilitated the clearance of rights for cable retransmission and has helped increasing consumers' access to broadcasting services across the EU. Some, however, underline that sometimes it is not clear which rights are managed by collective management organisations and which are managed by broadcasters.
The majority of right holders do not think that the current cable retransmission rules have either facilitated the clearance of rights or have resulted in greater consumers' access to broadcasting services across the EU. Phonogram producers, music publishers and audiovisual producers consider that they are adversely affected by these rules, because they cannot issue licences on fair market terms. Some right holders highlight the limited consumer demand for cross-border access to audio-visual content services or the limited business demand for foreign TV channels or multi-territorial licences. Respondents representing authors and performers have a much more positive view. The vast majority of collective management organisations (CMOs) consider that the Directive has facilitated the clearance of rights and has helped increasing consumers' access to broadcasting services across the EU.
Similarly, a clear majority of broadcasters evaluate positively the current provisions and their role in ensuring consumers' access to broadcasting services across the EU. This is especially the case for public service broadcasters. However, some commercial broadcasters point to the scope for double payments in case CMOs assert their rights to license all rights irrespective whether they have been transferred to broadcasters or not. Finally, the majority of other service providers (including cable operators) also consider that the Directive has facilitated the clearance of rights and has helped increasing consumers' access to broadcasting services across the EU. Still, according to some of them, it is not always clear which rights are managed by CMOs and which by broadcasters.
Assessment of the need for the extension
The few consumers who have replied to these questions tend to consider that the extension of the regime to the simultaneous retransmission of TV and radio programmes on platforms other than cable is likely to increase the cross-border accessibility of online services. They also tend to oppose maintaining the different treatment of rights held by broadcasting organisations. Member States/public authorities, but also right holders, CMOs and broadcasters, recall that voluntary collective management, extended collective licensing and individual licensing are all used to clear rights relevant for the different new TV and radio transmission and re-transmission methods and services. In this respect some Member States argue that voluntary approaches lead to legal uncertainty since service providers cannot be sure that they have cleared all the rights or that the distinction between transmission and retransmission is not always clear.
Regarding the possible extension of the mandatory collective management regime to the simultaneous retransmissions on platforms other than cable, some Member States note that certain platforms (e.g. IPTV) are already covered by national provisions. Others are in favour of the extension. Finally, the Member States that expressed an opinion on a possible introduction of a system of extended collective licensing conveyed concern with regard to the possibility of using opt-outs, the risk of repertoire fragmentation and the lower level of legal certainty for retransmission service providers compared to mandatory collective management. Right holders underline the important role of individual licensing and argue that current licensing approaches work well and no changes are required. Most right holders are against the possible extension of the mandatory collective management regime to the simultaneous retransmissions on platforms other than cable due to potential disruptive effect on the markets. Right holders also argue that extending the mandatory collective management regime could raise questions regarding compliance with international copyright obligations. Some right holders point to the potential negative effect on the value of rights.
CMOs' views on the licensing of the different new TV and radio transmission and retransmission methods and services differ: some note that such "new services" are sometimes reluctant to engage in licensing; others consider that the current licensing approaches, notably voluntary collective management, work well. Some are concerned that the "direct injection" technology has led to challenges to the retransmission regime by cable operators in some Member States. The vast majority of CMOs are in favour of a possible extension of the mandatory collective management regime and do not find it problematic in the context of the international copyright obligations. Many insist that the extension should be limited to "closed environments" or services functioning "in a territorially limited way" because those services resemble cable retransmission services and should benefit from a level playing field.
Some CMOs, alongside some right holders and other service providers, see a need to abolish or change the provisions on the different treatment of rights held by broadcasting organisations, e.g. by making the transfer of rights from audio-visual producers to broadcasters conditional on the payment of effective remuneration to producers. Finally, while for some CMOs extended collective licensing is a well-working and recommendable system, many expressed concern as regards the possibility of using opt-outs, the risk of repertoire fragmentation and the lower level of legal certainty for retransmission service providers compared to mandatory collective management.
Many broadcasters see value in individual licensing of the different new TV and radio transmission and retransmission methods and services and consider that current licencing approaches work well. However, some public service broadcasters highlight the lack of an effective licensing system for third parties' services allowing interactive access to broadcasters' content (e.g. catch-up TV). Broadcasters are divided on the question of the possible extension of the mandatory collective management: commercial broadcasters tend to oppose it, while public service broadcasters support the extension and argue that no problems of compliance with the international copyright obligations would arise. Most of the latter suggest limiting the extension to "closed" networks or territorially-limited services provided using open internet.
Both commercial broadcasters and public service broadcasters (alongside some right holders, cable operators and CMOs) consider that the different treatment of rights held by broadcasting organisations should be maintained. Broadcasters are also divided on the merits of introducing a system of extended collective licensing: while for many commercial broadcasters direct licensing should be favoured whenever possible, some public service broadcasters support using extended collective licensing to enable the provision by third parties of services giving access to broadcasters' content on an interactive basis where such content is clearly related to broadcasters' linear (non-interactive) transmissions.
A range of other service providers complain, in general, about difficulties in clearing copyright for innovative audio-visual services. Some stress that the distinction between transmission and retransmission is not always clear. Cable and telecoms operators tend to be in favour of the possible extension of the mandatory collective management regime and consider that it could result in greater cross-border accessibility of online services. While some of them insist that the extension should be limited to "closed" networks, others argue that it should not be tied to particular means of communication, devices or "technology environments". Nevertheless, some VOD providers see a danger that the extension could result in competitive distortions.