Copyright — broadcasters’ online transmissions and retransmissions of television and radio programmes

KEY POINTS

Country of origin principleCountry of origin principle: broadcasters only need to clear copyright in their EU country of establishment (i.e. the country of origin) in order to make radio programmes, TV news and current affairs as well as their fully financed own productions available online in all EU countries. for certain online services provided by broadcasters

• In addition to traditional forms of broadcasting, broadcasters increasingly offer simultaneous transmissions over the internet (simulcasting) and the possibility to view or listen to a programme online after a defined period of time (catch-up services).
• The directive provides that, to include certain programmes in their online services available across borders, broadcasters only need to obtain the authorisation of the rights holders of the works and other subject-matter contained in those programmes for the EU country where they have their principal establishment.
• This ‘country of origin’ principle (already used for satellite broadcasting in Directive 93/83/EEC) applies to all radio programmes and to certain types of television programmes:
  • news and current affairs programmes (except sports events and protected subject-matter included in them); and
  • programmes that are produced and fully financed by a broadcaster itself.
• Existing contracts remain unaffected for 4 years from the entry into force of the directive (until 7 June 2023).

Mandatory collective management of rights for retransmission of radio and television programmes by means other than cable

• The directive also makes it easier to obtain the authorisation of holders of copyright and related rights for the retransmission of television or radio programmes from other EU countries. Rights holders can exercise their right to authorise or deny authorisation for such retransmissions only via a collective management organisation⁵, except for the rights that are already held by the concerned broadcasters. This applies to the simultaneous, unaltered and unabridged retransmission via any means other than cable, including the open internet (but only when the retransmission over the open internet takes place in a secure environment and to a group of authorised users). Retransmissions by cable are covered by Directive 93/83/EEC.
• EU countries must ensure that mediation is available to assist the parties in the conclusion of licences for retransmission services.
• EU countries are also explicitly allowed to apply the rules described above when transmissions and retransmissions take place within their territory.

Direct injection

• The directive lays down rules that regulate the use of protected works or other subject-matter via ‘direct injection’, i.e. the technique by which a broadcaster transmits its signal to distributors via a private line - in a way that those signals cannot be received by the general public during that transmission - and, subsequently, the distributor offers the relevant programmes to the public.
• When direct injection is used, and there is no parallel transmission of the same programmes by the broadcaster itself, the broadcasting organisation and the signal distributor are deemed to be participating in a single act of communication to the public. This means that both parties need to obtain authorisation for their respective participation in that activity.
• Existing contracts remain unaffected for 6 years from the entry into force of the directive (until 7 June 2025).