The present article considers the requirements for payable licensed distribution of television channels in hotel complexes and the risks involved for non-compliance of the current legislation. Pursuant to the Law on Copyright and Related Rights (LCRR) each entity/ person who manages or owns a hotel is required to hold duly concluded contacts granted by the corresponding holders of copyright in television.
Copyright holders such as authors, performers and producers of phonograms have the right to receive remuneration for any type of usage of their work for each consecutive use of the same type. Usage is considered a public performance of the work, transmission and the retransmission.
Hotels as users, unlike radio and television organisations, do not execute actions of broadcast, transmission or retransmission for which these organisations have receive authorisation by the copyright holders, but are accountable for usage known as "public performance". When the work becomes known by a wide range of individuals via its presentation in a public place, the usage is called "public performance". The hotel room is a public place and when there is a television receiver in the room, it is considered that a public performance of a work is executed.
The public performance of a work, record performance and phonogram is an act for which a payment by the correspondent users - institutions for catering and entertainment, organisers of concerts, hotels etc - is due. These institutions must also preliminarily receive authorisation by the corresponding rights holders. It is considered that for the licensed broadcast of television channels in a hotel a contract for the rights over the corresponding television programme in its entirety is required. This contract is concluded with the television organisation that has created the programme or with its authorised representative.
There is a practice in Bulgaria where by hotels receive a television signal by the local cable operator. The signal reception by the cable operator does not mean that the hotelier has a valid duly concluded contract for licensed broadcast in the hotel of protected works. In the case that cable operators provide a signal to a hotel, the operator could ask for a fee solely for a technical transfer of the signal to the hotel. The licensing for broadcast of television channels in the hotel itself most often is executed by companies -representatives of the television organisations that could authorise usage of these programmes.
For the use of content included in television programmes the following contracts should be concluded:
- contract with the royalty collection association for music that is broadcast or transmitted on the corresponding television channels (in Bulgaria this is Musicauhtor)
- Contract with the association for collective management of rights of the producers of phonograms and music videotapes for public performance, for the records of music works that are broadcast or transmitted in programmes of the corresponding channels (in Bulgaria this is PROFON);
- Contract with the company for collective management of the producers and the authors of film productions, whose film and other audio-visual works are included in the corresponding channels (in Bulgaria this is Filmauthor).
In summary, when a hotel that organises public performance of television programmes and offers programmes to an unlimited range of guests of the hotel, in communal parts of the hotel and in rooms, wishes to validly broadcast television channels, a concluded contract for the rights over the television programmes with the television organisation that created the programme or with authorised representative must be concluded.
The lack of stipulation of these relationships could be considered as non-observance of the current legislation and the hotel organiser of public performance could be sanctioned.
The risks of non-compliance include administrative sanctions. Should the authorities investigate, the entity/person owning or managing a hotel could suffer a punishment at the amount ranging from BGN 2 000 to 20 000 for a first offence and from BGN 3 000 to 30 000 for subsequent violations. Investigations that look into validly concluded contracts in the territory of Bulgaria could be instigated by Ministry of Culture personnel.
The evaluations could be executed together with other authorities (police authorities, tax authorities, representatives of the Council for Electronic Media etc.).
Simultaneously, other risks involved could be the claiming of compensation by the corresponding holders of rights and the application of coercive or interim measures provided in the Law on Copyright and Related Rights (for example a ban on activities are claimed to constitutes or will cons unlawful use of a work etc.).
Originally published by Media Law International.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.