Copyright — broadcasters’ online transmissions and retransmissions of television and radio programmes
Directive (EU) 2019/789 — rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes
WHAT IS THE AIM OF THE DIRECTIVE?
It aims to improve the cross-border availability of television and radio programmes in the EU’s single market, by making it easier to clear copyright and related rights* for certain online services of broadcasters and for the retransmission* of television and radio programmes by means other than cable.
It also contains rules for programmes transmitted via direct injection*.
‘Country of origin’ principle* 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 organisation*, 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.
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).
FROM WHEN DOES THE DIRECTIVE APPLY?
It has applied since 6 June 2019 and has to become law in the EU countries by 7 June 2021.
Related rights: rights granted to performers, producers and broadcasters (as opposed to copyright or authors’ rights) which enable rightholders to control the use of their works and other protected material and be remunerated for their use.
Retransmission: in the context of Directive (EU) 2019/789, the licensing of rights when radio and television programmes are retransmitted by other radio and TV channels but also over the internet (parallel transmissions/simulcasting or catch-up services when consumers can view/listen to programmes at a time that is later than the original broadcast).
Direct injection: a technical process by which a broadcaster transmits programme-carrying signals to a distributor, in such a way that the signals are not accessible to the public during the transmission.
Country 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.
Collective management organisations: organisations which collect, manage and distribute earnings from the exploitation of the rights the responsibility for which rightsholders have delegated to them.
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 (OJ L 130, 17.5.2019, pp. 82-91)
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, pp. 15-21)
Successive amendments to Directive 93/83/EEC have been incorporated into the original text. This consolidated version is of documentary value only.
last update 21.10.2019