On 15 April 2019, the Council of the European Union (the "Council") approved a Directive on the exercise of copyright and related rights applicable to certain online transmissions by broadcasting organisations and retransmissions of television and radio programmes (the "Radio and TV Directive"). This Directive forms part of a broader initiative to adapt EU copyright rules to the digital age, which includes the new Copyright Directive adopted by the Council on the same day (See Van Bael & Bellis on Belgian Business Law, Volume 2019, No. 3, available at www.vbb.com)
The aim of the Radio and TV Directive is to enhance cross-border access to a greater number of television and radio programmes. To that end, the Radio and TV Directive facilitates the licensing of copyright and related rights (i) for the provision of online services that are ancillary to the broadcast of certain types of television and radio programmes and (ii) for the retransmission of television and radio programmes. The Radio and TV Directive complements the existing Satellite and Cable Directive (Directive 93/83/EEC), which governs cross-border satellite broadcasting and retransmission by cable.
First, the Radio and TV Directive establishes the country-of-origin principle for ancillary online services, i.e., online services consisting in the provision to the public of television or radio programmes simultaneously with or for a defined period of time after their broadcast by the broadcasting organisation, as well as any material which is ancillary to such broadcast. While the country-of-origin principle extends to all radio programmes, it will only apply to television programmes that are (i) news and current affairs programmes or (ii) fully financed own productions of the broadcasting organisation (with the exception of broadcasts of sports events and works and other protected subject matter included in them). The Radio and TV Directive provides that rights required to make certain programmes available on broadcasters' online services (for instance, their simulcasting or catch-up services) are to be cleared only for the broadcaster's country of principal establishment (instead of all Member States in which the broadcaster wishes to make its programmes available). However, the licence fee will have to take into account all aspects of the ancillary online services such as the duration of online availability, the audience and the language versions provided.
Second, the Radio and TV Directive extends the system of mandatory collective management, which is currently applicable to cable retransmissions only, to retransmission services provided by other means (such as Internet Protocol television (IPTV), and satellite, digital terrestrial or online technologies). This will make it easier for retransmission operators to obtain the authorisations required to retransmit radio and television channels originating in other Member States. However, the rules on mandatory collective management do not apply to rights in retransmissions that are held by broadcasters.
The Radio and TV Directive also provides that, if broadcasters transmit their programme-carrying signals by direct injection exclusively to distributors (and not to the public) and these, in turn, transmit the signals to the public, both the broadcaster and the distributor participate in a single act of communication to the public in respect of which they must obtain authorisation from rightholders. This new provision should help to ensure that rightholders are adequately compensated when their works are used in programmes transmitted through direct injection.
Following its publication in the Official Journal of the EU, Member States will have two years to implement the Radio and TV Directive into national legislation.
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