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After years of 'blood, sweat and tears', the European Parliament finally adopted the highly-controversial Directivee on Copyright in the Digital Single Market ("DSM Directive") on 26 March 2019.
Whoever thought that the EU legislator would then take some time-off to 'rest on its laurels' in fact thought wrong. Only two days later, the Parliament assembled again to approve another legislative instrument in the framework of the Commission's ambitious Digital Single Market strategy.
The EU's latest brainchild's name is quite a mouth-full: "Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC" (let's call it the "Online Broadcasting and Retransmission Directive").
The Council adopted both the DSM Directive and the Online Broadcasting and Retransmission Directive on 15 April 2019. We have already explained the key points of the DSM Directive in this blog post. In this contribution, we will briefly explain the key points of this DSM's Directive 'youngest brother'.
The ways in which media is consumed has drastically changed by the rise of the internet. A considerable number of internet users use the World Wide Web on a daily basis to access content and expect to have access to their favourite television and radio programmes at any time and in any place.
Broadcasters are forced to meet consumers' expectations and are increasingly offering, in addition to their regular broadcasts, ancillary online services such as simulcasting (simultaneous transmission of regular broadcasts via other channels) and catch-up TV (the opportunity to watch a missed programme later).
Broadcasters offering these services today must face the strong tension between the borderless nature of the internet and the territoriality of copyright law: they must clear the copyrights and related rights for each country where the services are accessible. This can be quite complex and burdensome.
Radio and television distributors (in Belgium, for example, Proximus, Telenet and TV Vlaanderen), which aggregate television and radio broadcasts into packages and provide them to users simultaneously with the initial broadcast using different techniques, may face a heavy rights clearing burden as well.
The Online Broadcasting and Retransmission Directive aims to promote the cross-border provision of online services ancillary to broadcasts and to alleviate such a heavy rights clearing burden, by establishing the "country of origin" principle, on the one hand, and by extending the system of mandatory collective management to all types of radio and television retransmissions, on the other hand. It also lays down rules on television and radio broadcasts via the technique of "direct injection".
Both the country of origin principle and the system of mandatory collective management arise from the 1993 Sat Cab Directive (Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, OJ L 248, 6.10.1993, p. 15–21).
The scope of the Sat Cab Directive is, however, limited to satellite broadcasts and cable retransmissions (and transmission by microwave systems) and not apt for the digital world. The Online Broadcasting and Retransmission Directive is intended to update the existing legal framework for the digital word.
1. A "one stop shop" for ancillary online broadcasting services
The country of origin principle means that, within the European Union ("EU"), the (copyrights and related) rights in the programmes must be cleared only for the broadcaster's country of principal establishment. The broadcaster no longer needs to acquire the rights in the other Member States in which it wants to make its online broadcasting services available.
The scope of the Online Broadcasting and Retransmission Directive is limited to "ancillary online services", i.e. services that have a "clear and subordinate relationship" with the broadcaster's regular broadcasts, and include:[1]
simulcasting;
catch-up; and
the provision of 'enriching' materials, such as previews, "making-of" and reviews.
Moreover, it is limited to certain types of programmes, i.e.:
radio programmes; and
television programmes that are news and current affairs programmes or fully-financed own productions by the broadcaster.
The following services/programmes are excluded:
video-on-demand (VOD) services; and
sports events.
2. Retransmission rights: mandatory rights clearance by CMOs
After stating that retransmissions of programmes must be authorised by the rights holders, the Online Broadcasting and Retransmission Directive imposes the obligation upon the EU Member States of ensuring that rights holders may exercise their right to authorise or refuse only through collective management organisations ("CMOs").
In other words, the system of mandatory collective management introduced by the Sat Cab Directive is extended to all types of retransmission of television and radio programmes by other entities than the broadcasting organisation.
Retransmissions via "open internet" are covered as well, provided that they take place in a "managed environment", i.e. they are subject to some kind of digital identification.
Excluded are:
retransmissions of initial online transmissions; and
retransmission rights of the broadcasters.
3. Direct injection
An increasing number of programmes are transmitted via the technique of "direct injection", i.e. a technical process by which a broadcaster transmits its programme carrying signals to distributors via a closed circuit after which the signals are then (re)transmitted to the public.
Belgium has been the legal 'battlefield' for the status of direct injection for a couple of decades. The main question has been whether direct injection constitutes one or two acts of communication to the public (and/or a communication followed by a cable retransmission) and who is responsible for requesting the rights holders' authorisation and thus for paying royalties, i.e. the broadcaster, the distributor or both.
The 'battle' reached a (provisional) pinnacle with the CJEU's preliminary ruling of 19 November 2015 in the SBS Belgium/SABAM case (C-325/14) and a judgment of the Belgian Supreme Court (Hof van Cassatie/Cour de Cassation) of 30 September 2016.
The CJEU in essence ruled that direct injection entails only one act of communication to the public and that this act should in principle be attributed to the distributors, unless the intervention of the latter is just a technical means used by the broadcaster to reach its own public. The Belgian Supreme Court later confirmed that direct injection implies only one communication to the public.
Following this case law, one would assume that the attribution of responsibility for the unique act of communication to the public seems rather 'black or white': either it is the broadcaster's responsibility or it is that of the distributor.
The Online Broadcasting and Retransmission Directive follows on from this case law to the extent that it confirms that direct injection does indeed constitute a single act of communication to the public. However, it breaks away from that case law by also stating that both the broadcaster and the distributor are to be deemed as participating in that act and that therefore must obtain the necessary authorisations from the rights holders. Nonetheless, it confirms that, when distributors merely provide broadcasters with "technical means", within the meaning of the CJEU's case law, the distributors should not be considered to be participating in the act.
The EU Member States must transpose the new rules into their national law by 7 June 2021 at the latest.
It is worth noting that the Belgian legislator has not waited for the Directive regarding the status of direct injection, but already implemented a similar regime in an Act of 25 November 2018. The new rules will enter into force on 1 July 2019.
[1] Both services that are offered together with the regular broadcasting service as well as services that can be accessed separately without there being a precondition for users to have a subscription to these services. Ancillary online services can be delivered free of charge or against payment.
ALTIUS' team of specialists in the media industry regularly assist clients active in the field of broadcasting and has been, amongst other cases, involved in the SBS Belgium/SABAM matter before the CJEU.
Olivier Vrins
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