keyboard_tab Media online 2019/0789 EN

• 1 Article 3 Application of the country of origin principle to ancillary online services
• 1 Article 5 Exercise of the rights in retransmission by broadcasting organisations
• 1 Article 12 Transposition
• 2 Article 13 Entry into force
• Article 14 Addressees

• shall 14
• broadcasting 8
• such 7
• states 7
• rights 6
• directive 6
• programmes 6
• article 5
• organisation 5
• which 5
• into 5
•    member 5
• retransmission 5
• works 4
• subject 4
• matter 4
• protected 4
• force 3
• member 3
• service 3
• under 3
• reference 3
• they 3
• organisations 3
• acts 3
• country 3
• origin 3
• them 3
• public 3
• principle 3
•    the 2
• online 2
• wireless 2
• wire 2
• including 2
• paragraph 2
• commission 2
• payment 2
• amount 2
• first 2
• subparagraph 2
• apply 2
• ensure 2
• negotiations 2
• provided 2
• necessary 2
• adopt 2
• publication 2
• rightholders 2
• union 2

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

• (2) The development of digital technologies and the internet has transformed the distribution of, and access to, television and radio programmes. Users increasingly expect to have access to television and radio programmes, both live and on-demand, through traditional channels, such as satellite or cable, and also through online services. Broadcasting organisations are therefore increasingly offering, in addition to their own broadcasts of television and radio programmes, online services ancillary to such broadcasts, such as simulcasting and catch-up services. Operators of retransmission services, which aggregate broadcasts of television and radio programmes into packages and provide them to users simultaneously with the initial transmission of those broadcasts, unaltered and unabridged, use various techniques of retransmission, such as cable, satellite, digital terrestrial, and mobile or closed circuit IP-based networks, as well as the open internet.

    Furthermore, operators that distribute television and radio programmes to users have different ways of obtaining the programme-carrying signals of broadcasting organisations, including by means of direct_injection.

    There is a growing demand, on the part of users, for access to broadcasts of television and radio programmes not only originating in their Member State, but also in other Member States. Such users include members of linguistic minorities in the Union, as well as persons who live in a Member State other than their Member State of origin.


- = -


• (12) Since the provision of, the access to or the use of an ancillary_online_service is, under this Directive, deemed to occur solely in the Member State in which the broadcasting organisation has its principal establishment, while, de facto, the ancillary_online_service can be provided across borders to other Member States, it is necessary to ensure that in setting the amount of the payment to be made for the rights in question, the parties take into account all aspects of the ancillary_online_service, such as the features of the service, including the duration of the online availability of programmes included in the service, the audience, including the audience in the Member State in which the broadcasting organisation has its principal establishment and in other Member States in which the ancillary_online_service is accessed and used, and the language versions provided.

    It should nevertheless remain possible to use specific methods for calculating the amount of payment for the rights subject to the country of origin principle, such as methods based on the revenues of the broadcasting organisation generated by the online service, which are used, in particular, by radio broadcasting organisations.


- = -


• (15) To retransmit initial transmissions of television and radio programmes, operators of retransmission services have to obtain an authorisation from the holders of the exclusive right of communication to the public of works or other protected subject matter.

    In order to provide legal certainty to the operators of retransmission services and to overcome disparities in national law regarding such retransmission services, rules similar to those that apply to cable retransmission as defined in Directive 93/83/EEC should apply.

    The rules under that Directive include the obligation to exercise the right to grant or refuse authorisation to an operator of a retransmission service through a collective management organisation.

    Under those rules, the right to grant or refuse authorisation as such remains intact, and only the exercise of that right is regulated to some extent.

    Rightholders should receive appropriate remuneration for the retransmission of their works and other protected subject matter.

    When determining reasonable licensing terms, including the license fee, for a retransmission in accordance with Directive 2014/26/EU of the European Parliament and of the Council (7), the economic value of the use of the rights in trade, including the value allocated to the means of retransmission, should, inter alia, be taken into account.

    This should be without prejudice to the collective exercise of the right to payment of a single equitable remuneration for performers and phonogram producers for the communication to the public of commercial phonograms as provided for in Article 8(2) of Directive 2006/115/EC, and to Directive 2014/26/EU, in particular its provisions concerning the rights of rightholders with regard to the choice of a collective management organisation.


- = -


• (17) Any rights held by broadcasting organisations themselves in respect of their broadcasts, including rights in the content of programmes, should not be subject to the mandatory collective management of rights applicable for retransmissions. Operators of retransmission services and broadcasting organisations generally have ongoing commercial relations, and as a result the identity of broadcasting organisations is known to operators of retransmission services. Accordingly, it is comparatively simple for those operators to clear the rights with broadcasting organisations. As a consequence, to obtain the necessary licences from broadcasting organisations, operators of retransmission services do not face the same burden as they face when seeking to obtain licences from holders of rights in works and other protected subject matter included in the television and radio programmes they retransmit.

    Therefore, there is no need for simplification of the licensing process with regard to rights held by broadcasting organisations. It is, however, necessary to ensure that where broadcasting organisations and operators of retransmission services enter into negotiations, they negotiate in good faith regarding the licensing of rights for the retransmissions covered by this Directive.

    Directive 2014/26/EU provides for similar rules applicable to collective management organisations.


- = -


• (20) In order to ensure that there is legal certainty and to maintain a high level of protection for rightholders, it is appropriate to provide that when broadcasting organisations transmit their programme-carrying signals by direct_injection only to signal distributors without directly transmitting their programmes to the public, and the signal distributors send those programme-carrying signals to their users to allow them to watch or listen to the programmes, only one single act of communication to the public is deemed to occur in which both the broadcasting organisations and the signal distributors participate with their respective contributions. The broadcasting organisations and the signal distributors should therefore obtain authorisation from the rightholders for their specific contribution to the single act of communication to the public.

    Participation of a broadcasting organisation and a signal distributor in that single act of communication to the public should not give rise to joint liability on the part of the broadcasting organisation and the signal distributor for that act of communication to the public.

    Member States should remain free to provide at national level for the arrangements for obtaining authorisation for such a single act of communication to the public, including the relevant payments to be made to the rightholders concerned, taking into account the respective exploitation of the works and other protected subject matter, by the broadcasting organisation and signal distributor, related to the single act of communication to the public.

    Signal distributors face, in a similar manner to operators of retransmission services, a significant burden for rights clearance, except as regards rights held by broadcasting organisations. Member States should therefore be allowed to provide that signal distributors benefit from a mechanism of mandatory collective management of rights for their transmissions in the same way and to the same extent as operators of retransmission services for retransmissions covered by Directive 93/83/EEC and this Directive.

    Where signal distributors merely provide broadcasting organisations with ‘technical means’, within the meaning of the case-law of the Court of Justice of the European Union, to ensure that the broadcast is received or to improve the reception of that broadcast, the signal distributors should not be considered to be participating in an act of communication to the public.


- = -