The Council adopted at unanimity a directive concerning the harmonization
of copyright laws in the particular fields of satellite broadcasting and
cable retransmission. It will facilitate the resolution of copyright
problems linked to the transfrontier nature of satellite and cable
broadcasts and potentially increase the choice of viewers.
This directive provides the missing element to the "Television Without
Frontiers directive" which was adopted in 1989 without a chapter on
copyright.
Both satellite broadcasting and transfrontier cable transmission require
European rules for the game.
Satellite broadcasters will be able to clear in their home country full
copyright responsibility for the entire footprint of their transmission
throughout Europe.
Cable operators will in the future negotiate with rightholders on a
collective basis. The latter will be regrouped under the "umbrellas" of
collecting societies.
Satellite broadcasting by its very nature is "transnational". However,
national copyright legislation in most cases is only inadequately
adapted to the new technological reality. Legal insecurity as to where
and when and how satellite broadcasting involves copyright has seriously
hampered satellite broadcasting to develop satisfactorily. This was
detrimental not only to broadcasters wishing to transmit their programme
by satellite but also to rightholders such as authors, performing
artists, phonogram producers and film producers who wished to exploit
their rights by way of satellite broadcasting.
The directive establishes that copyright responsibility arises in the
country of origin of the broadcast. Rights for a satellite broadcast must
in the future therefore be cleared in the country of origin between the
broadcasting organization and the rightholders. In determining the
licence fee due, broadcasting organizations and rightholders enjoy
contractual freedom to consider criteria such as the potential or actual
audience of the broadcast, the language of the broadcast or other
criteria that they consider appropriate.
The directive also includes specific transnational rules for contracts
existing before 1 January 1995.
Furthermore, the directive harmonizes the rights of performers, phonogram
producer and broadcasting organizations with regard to satellite
broadcasting. Such a Community-wide standard of protection is necessary
in order to avoid "copyright havens" in a "country of origin".
As far as simultanuous, unaltered and unabridged cable retransmission is
concernd, the directive introduces rules for the collective exercise of
such cable retransmission rights. In the future, cable operators will
negotiate with a number of associations of rightholders ("umbrella
associations"). Each association will represent a given category of
rightholders (such as authors, film producers, performers etc.)
A cable operator can only retransmit a programme after all the relevant
umbrella associations have given their consent. Negotiations between
cable-operators and umbrella associations are promoted by two additional
measures. If the negotiation process threatens to be blocked in a
deadlock, each of the participants can request the assistance of -
neutral - mediators. And secondly, none of the negotiating parties may
refuse to enter negotiation without valid justification.
For a transitional period of 8 years binding arbitration for broadcasting
organizations may be retained by the Member States who had introduced
such a system of arbitration before 1 January 1995 into their national
legislation.
The directive will enter into force on 1 January 1995. Following an
amendment from the European Parliament, the Commission will submit a
report on the application of the directive the latest on 1 January 2000.
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