COMMISSION OF THE EUROPEAN CQMVIUNITIES 
C0M(91) 276 final - SYN 358 
Brussels, 11 September 1991 
Proposal for a 
COUNCIL DIRECTIVE 
on the coordination of certain rules concerning copyright 
and neighbouring rights applicable to satellite broadcasting 
and cable retransmission 
(presented by the Commission) 
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CONTENTS 
SUMMARY 
EXPLANATORY MEMORANDUM 
PART ONE: GENERAL 
A. INTRODUCTION 
B. THE NEED FOR ACTION ON THE PART OF THE COMMUNITY AND THE PURPOSE OF 
THE DIRECTIVE PROPOSED: 
I. The legal position in the Member States and under international law 
Satellite broadcasting 
Cable retransmission 
II. The need for action at Community level 
Satellite broadcasting 
Cable retransmission 
Summary 
C. TYPE OF HARMONISATION SOUGHT 
D. LEGAL BASIS 
PART TWO: PARTICULAR PROVISIONS 
Chapter I: Definitions 
Chapter II: Broadcasting by satellite 
Chapter III: Cable retransmission 
Chapter IV: General provisions 
PROPOSAL FOR A COUNCIL DIRECTIVE 
2) 
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SUMMARY 
The draft proposal intends to provide a missing element in the creation of 
the European audiovisual area, since the directive "Television without 
Frontiers" has been adopted on 3 October 1989 without a chapter relating to 
questions of copyright. 
In its communication on audiovisual policy COM(90)78 final of 21 February 
1990 the Commission confirmed that the single European audiovisual area 
required a set of common rules in the field of copyright. The Commission 
observed: 
"The legal framework established by the Directive (Television without 
Frontiers) still has to be amplified on the question of copyright. At a 
time when cross-frontier broadcasting has, as a result of technology, 
become a reality and, by legislation a free right, this exercise must be 
accompanied by an effective protection of copyright in all the Member 
States in order that the holders of such rights may benefit fully from the 
European dimension of broadcasting". 
The Commission published a discussion paper on "Broadcasting and Copyright 
in the Internal Market" in November 1990 which was submitted to the 
professionals and formed the subject of a hearing on 5 February 1991. The 
present draft proposal reflects the outcome of this consultation process. 
The draft proposal covers two distinct areas: satellite broadcasting and 
cable retransmission. 
Satellite broadcasting 
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 
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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 draft proposal seeks to limit this legal gap by proposing a "two-legged 
solution". 
In the first place, the draft proposal defines at Community-1 eve I what 
constitutes the act of satellite broadcasting for copyright purposes and, 
therefore, requires authorization of the rightholders. As a consequence, 
the authorization to transmit protected works by satellite must be acquired 
in the country of establishment of the broadcaster while the remuneration 
should be paid according to the actual or potential audience (which might 
well be situated in several countries). 
Yet, it has to be avoided that one "country of establishment" decides to 
create a copyright haven which would receive all the satellite broadcasters 
within the Community, leaving the creative professions without protection. 
The "second leg" of the draft proposal, therefore, provides a common 
minimum standard of protection for authors, performing artists, phonogram 
producers and broadcasters throughout the Community. 
Cable retransmission 
Legal insecurity prevailing in the field of cable retransmission of foreign 
television broadcasts is of a different nature than that in the field of 
satellite broadcasting. 
Cable retransmission of television broadcasts constitutes an act subject to 
copyright, that is prior authorization of right-owners. However, in the 
case of a simultaneous, unaltered and unabridged cable retransmission it is 
impossible for the cable-operator to acquire the necessary rights in 
advance for lack of information about both content and identity of right-
owners of the retransmitted programme. 
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The way out of this dilemma has been shown by contractual practice in the 
most cabled Member States such as Belgium, the Netherlands and, partly 
Germany. In those countries the authorization for cable retransmission is 
negotiated in a centralized form by the collective organizations 
representing the different categories of rightholders, the cable operators 
and the broadcasters. 
The draft proposal's "umbrella model" is based on the experience gained 
from this conractual practice and seeks to eliminate the remaining flaws. 
According to the draft proposal cable retransmission rights should be 
exclusively negotiated under the umbrella of collective organizations that 
would represent the various categories of right-owners. This type of 
centralized negotiation between cable-operators, broadcasters and umbrella 
organizations should be promoted by two additional measures. In the first 
place, a neutral platform for negotiations in the form of a friendly non-
binding mediation should be available at request of one of the parties 
involved in the negotiations. Furthermore, all the parties should be 
subject to an obligation not to refuse negotiation on unreasonable grounds. 
Both measures are intended to open negotiations on cable retransmission 
without, however, forcing the parties concerned to conclude an agreement. 
This will remain entirely in the contractual sphere. 
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EXPLANATORY MEMORANDUM 
PART ONE: GENERAL 
A. INTRODUCTION 
1. The Commission first put forward proposals on the law governing 
cross-border broadcasting in the common market in its 1984 Green Paper 
on the establishment of the common market for broadcasting, especially 
by satellite and cable.1 The proposal that a single market should be 
established in broadcasting was included in the list of measures to be 
taken by the end of 1992 which the Commission set out in its White 
Paper on completing the internal market.2 
2. On 3 October 1989 the Council adopted Directive 89/552/EEC, the 
"Television Without Frontiers" Directive.3 In its final form the 
Directive departed from the Commission's original proposal, and from 
Parliament's opinion, in that it did not include a chapter on 
copyright. On 21 February 1990 the Commission in its Communication on 
audiovisual poI icy observed:4 
COM(84) 300 final, 14.6.1984. 
COM(85) 310 final, 14.6.1985. 
Council Directive 89/552/EEC of 3 October 1989 on the coordination of 
certain provisions laid down by law, regulation or administrative 
action in Member States concerning the pursuit of television 
broadcasting activities: OJ No L 298, 17.10.1989, p. 23. 
COM(90) 78 final, 21.2.1990. 
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"The legal framework established by the Directive has still to be 
amplified on the question of copyright. At a time when cross-frontier 
broadcasting has, as a result of technology, become a reality and, by 
legislation, a free right, this exercise must be accompanied by an 
effective protection of copyright in all the Member States in order 
that the holders of such rights may benefit fully from the European 
dimension of broadcasting." 
3. The Commission then included this task in its programme of 
harmonization measures,5 it submitted a discussion paper to all 
interested parties setting out its thinking on the shape of a system 
of copyright protection in the future European audiovisual area,6 and 
held a hearing on the subject on 5 February 1991. 
4. Without a Community approach the European audiovisual area will be set 
up solely on the basis of those legal opportunities which are left 
open, to the detriment of artistic creation in Europe. The proposal 
for a Directive accordingly includes general rules for copyright which 
take account of the need to maintain a balance between the various 
interests involved and to facilitate the management of copyright and 
related or "neighbouring" rights on a European scale. The rules 
ensure that protection is as effective as possible and that authors 
and neighbouring right owners are fairly remunerated in all 
Member States. At the same time they serve to encourage investment in 
promoting creativity and cross-border programme transmission, and as 
far as possible to minimize the associated risks, to the extent that 
they derive from uncertainty as to -the law or heterogeneous national 
rules. 
Follow-up to the Green Paper - working programme of the Commission in 
the field of copyright and neighbouring rights, COM(90) 584 final, 
17.1.1991. 
Broadcasting and Copyright in the Internal Market - discussion paper 
prepared by the Commission of the European Communities on copyright 
questions concerning cable and satellite broadcasts, I Il/F/5263/90, 
November 1990. 
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5. The Directive here proposed therefore does not try to put over ideas 
already rejected in the discussion of the "Television Without 
Frontiers" Green Paper7 and the subsequently adopted Directive.8 
Rather, the concern is now, through the introduction of supporting 
measures, to safeguard and supplement the acquisition of rights to 
simultaneous, unaltered and unabridged retransmission of programmes 
via cable, which in practice has since been largely organized through 
collective agreements. This will promote cross-border cable 
retransmission and underpin the European audiovisual area. 
6. Above all, the system of regulation proposed includes the primary 
broadcasting of programmes via satellite (the need to cover this 
aspect in Community law was not acknowledged in the Green Paper). The 
rapidly growing number of satellites used for programme transmission, 
the introduction of medium-power and direct broadcast satellites and 
improved aerial technology, which is making good quality individual 
reception increasingly attractive, mean that a solution which is 
confined simply to cable retransmission would be incomplete. 
7. The arrangements adopted for the Community will, moreover, have to be 
consistent with the territorially wider design currently being 
discussed in the Council of Europe as a supplement to the European 
Convention on Transfrontier Television of 5 May 1989. But the 
objectives of the Community are different, because they aim at 
creating the Common Market. The proposal for a directive tries to 
fulfil this obligation by stepping up copyright protection, promoting 
cross-border transmission of programmes and, hence, creating the 
intended audiovisual area. 
7 Loc. cit. 
8 Loc. cit. 
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The proposal for a Directive essentially falls into two parts. Both 
contain provisions on the law governing the cross-border transmission 
of television and radio programmes in the common market. Chapter I 
defines the terms used, and thereafter Chapter II deals with satellite 
broadcasting and Chapter III deals with the simultaneous, unaltered 
cable retransmission of terrestrial or satellite broadcast programmes. 
B. THE NEED FOR ACTION ON THE PART OF THE COMMUNITY AND THE PURPOSE OF 
THE DIRECTIVE PROPOSED 
I. * The legal position in the Member States and under international law 
Satellite transmission 
9. Article 11bis (1)(i) of the Revised Berne Convention on the 
protection of literary and artistic works (RBC) in the Brussels 
version, by which or by whose subsequent versions all Member Statesare 
bound, grants copyright owners the exclusive right of authorizing 
wireless radio-diffusion (primary transmissions). The principle 
applies to both terrestrial and satellite broadcasting. Under 
Article 11bjs(2), it is to be a matter for the countries of the 
Union to determine the conditions under which the right mentioned may 
be exercised, without prejudice to the moral right of the author or to 
his right to obtain equitable remuneration. 
10. The application of Article llbis(1) RBC to the transmission of 
protected works via satellites raises a series of questions, however. 
11. Since the notion of broadcasting presupposes that programme signals 
can be received by the public, a distinction has hitherto been drawn, 
as regards satellite programme transmission, between the broadcasting 
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of protected works by communications and direct satellite. While the 
latter operate at relatively high power over frequencies provided 
under international telecommunications law for reception by the public 
and their signals can be received by the public directly, the former 
transmit signals at much lower power over frequencies which the 
public, under telecommunications law, is not allowed to 
receive.9 Although these signals were at first beamed only to the 
head-ends of cable networks, their individual reception has now become 
affordable as a result of improved aerial technology and is being 
allowed by national telecommunications authorities to an increasing 
extent.1^ Recently, medium-power satellites have appeared on the 
scene; these continue to use telecommunications frequencies but their 
signals can also be received directly without any difficulty in large 
parts of their footprint. Nevertheless, this direct reception of 
programme signals transmitted via communications satellites has 
hitherto not come within the scope of copyright law, and the 
distinction hitherto made in telecommunications law has continued to 
be applied for copyright purposes. Accordingly, only the broadcasting 
of programme signals via direct satellite is considered as a 
communication of a work to the public for the purposes of copyright, 
but not transmission via communications satellite; in the latter 
case, only the subsequent retransmission of the programme signals via 
cable networks is relevant for copyright purposes. In contrast to 
what happens when signals emitted by direct satellite are fed into a 
network, cable retransmission seems therefore to be comparable not to 
wireless transmission but to a primary transmission by wire, against 
which authors are protected by Article 11(1)(1) of the Brussels 
Revision, and Articles 11ter(1)(ii), 14(1)(ii) and 14bis(2)(b) of 
the Paris Revision, of the Berne Convention. 
9 See the International Telecommunications Convention and Article 1 para 
37 of the Radio Regulations. 
10 See Chapter 3 of the Satellite Communications Greenpaper, to be 
C0M(90)490 final of 20 November, 1990. 
(3) 
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12. The question whether a uniform approach to the satellite transmission 
of protected works is discernible for copyright purposes, covering 
both uplink and downlink and including any conversion on the satellite 
itself, or whether some of these operations require special 
authorization for copyright purposes has been answered on various 
occasions in various ways. 
13. Which copyright applies to the transmission of programmes via direct 
satellite has not yet been clarified. Since an author, by virtue of 
the principle of territoriality, is in fact entitled to a bundle of 
territorially limited copyrights in respect of all those countries 
where he enjoys protection, a user of protected works must be granted 
a right of use for each country in which he performs a relevant act of 
use for copyright purposes. With conventional terrestrial 
broadcasting, such a relevant act of use is generally acknowledged to 
be carried out in the country in which the broadcast originates; the 
- sometimes not inconsiderable - spillover of the broadcast signals 
into neighbouring countries has been neglected as irrelevant for 
copyright purposes. 
14. According to this approach the transmission of programmes via direct 
broadcasting satellite would only be subject to an authorization by 
the right owners in the broadcasting country and not by the right 
owners in the countries of reception. This can be justified on the 
ground that as regards copyright only the actof transmission is 
relevant and the direct satellite must simply be considered an 
extended aerial in space, whereas in all other countries reception is 
simply free of copyright. 
15. A more recent view, however, is that the relevant act of use for 
copyright purposes in the transmission of programmes via direct 
satellite takes place not only in the broadcasting country but at the 
same time in all those countries in which the programme signals are 
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directly receivable. Consequently, any person intending to transmit 
programmes via a direct satellite would require authorization not only 
from right owners in the broadcasting country but from right owners in 
all the receiving countries. To protect authors it is sometimes 
proposed that the highest level of protection available at the time 
under the copyright system of the receiving countries should be 
applied, and sometimes that the law of the receiving countries should 
be applied only alternatively, where no, or only inadequate, 
protection exists in the broadcasting country. 
16. For a long time this controversy was of theoretical interest only. 
Since the first direct satellites have started broadcasting - to be 
followed by a great many more in the foreseeable future - and since 
programmes transmitted via medium-power satellites can be received 
directly, the question of the relevant law has assumed central 
importance in the matter of the acquisition of rights. 
17. Under the national copyright laws of the Member States authors 
generally hold the right to communicate protected works to the public 
not Just terrestrially but via satellite, as part of their 
broadcasting right. The copyright laws of France and Spain contain 
specific provisions concerning the beaming of protected works to a 
commun i cat i ons sate I Ii te (droi t d'inject ion);11 » 12 t ^e 
United Kingdom, following a legislative change made in 1988, also 
regards the diffusion of programme signals via communications 
satellites, which are "capable of being lawfully received by members 
of the public", as broadcasting activity.13 In the other 
Member States it is at least the general rule that only the 
11 Article 27(3) in conjunction with Article 45(3) of Law No 57/298 of 
11 March 1957 on literary and artistic property, as amended by 
Law No 85-660 of 3 July 1985. 
12 Article 20(2)(c) in conjunction with Article 36(2) of Law No 22/1987 
of 11 November 1987 on intellectual property. 
13 Section 6(1 )(a) and (2) of the Copyright, Designs and Patents Act 
1988. 
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transmission of signals via direct satellite, but not the transmission 
of signals to a communications satellite, constitutes an act of 
broadcasting under copyright law. It is also unclear at national 
level whether in the case of diffusion by direct satellite only 
copyright in the broadcasting country or the copyrights in all 
receiving countries are relevant. 
18. For historical reasons the protection of neighbouring rights,under the 
1961 Rome Convention for the Protection of Performers, Producers of 
Phonograms and Broadcasting Organizations, is lessdeveloped. Denmark, 
Germany, France, the United Kingdom, Italy and Luxembourg have acceded 
to the Convention, but not Belgium, Greece, the Netherlands, Spain or 
Portugal. 
19. Performers are protected, under Article 7(1)(a) of the Rome 
Convention, against the broadcasting of their live performances only. 
If their performance, however, has been fixed with their consent on a 
phonogram, videogram or video-phonogram, their consent is not required 
for broadcasting of the fixation. If commercial phonograms are used 
for the broadcast either the performer, or the producer of the 
phonogram, or both, are at least entitled to equitable remuneration 
pursuant to Article 12. Apart from the fact that in this respect the 
Rome Convention leaves an option for the contracting States, the right 
to remuneration can be annulled either in part or in full by entering 
an appropriate reservation (Article 16(1)(a)). Thus, Denmark and 
Italy essentially exclude the right to remuneration with regard to <t 
transmission for non-commercial purposes only,1^ whereas by contrast, 
Luxembourg has entered a reservation with regard to the whole of 
Article 12.I5 Broadcasting organizations are protected, under 
Article 13(a) and (b) against the simultaneous use of parts of their 
transmissions in primary satellite broadcasts by the right to 
authorize rebroadcasting, and from deferred use by the right to 
authorize fixation of their broadcasts. 
14 See Copyright 1965, p. 214 (Denmark) and Copyright 1975, p. 44 
(Italy). 
15 See Copyright 1976, p. 24. 
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20. At nat ional level, however, there are many differences with regard to 
neighbouring rights. Thus, first of all, neighbouring rights have not 
hitherto been protected by statute in Belgium, Greece and the 
Netherlands, although draft laws on this subject are currently being 
discussed in Belgium and the Netherlands. In the meantime, the courts 
in the Member States have granted protection to a certain extent on 
non-copyright grounds. Where neighbouring rights have been protected 
by statute performers can prevent the broadcast of their live 
performances without their consent, in accordance with the 
international protection afforded by Article 7(1)(a) of the Rome 
Convention.1** The draft laws of Belgium and the Netherlands also 
confer such a right on performers.17 However, the rights which 
performers and/or producers of phonograms enjoy as regards direct use 
for the broadcasting of phonograms published for commercial purposes 
are regulated differently. Thus, Luxembourg and Portugal currently 
grant neither performers nor phonogram producers independent rights 
with regard to the use of phonograms for broadcasting purposes. By 
contrast, the United Kingdom and Ireland refuse independent rights 
regarding the use of phonograms for broadcasting purposes only to 
performers; but in both these Member States phonogram producers are 
16 § 45(1)(b) of Law 158 on Copyright in literary and artistic works 
(Denmark); § 76(1) of the Urhebergesetz (UrhG) (Germany); 
Article 18(1) of Law No 85/660 (France); Section 182(1)(b) of the 
Copyright, Designs and Patents Act 1988 (United Kingdom); Section 5 
of the Performers' Protection Act (Ireland); Article 80(1) of Law 
No 633 on the Protection of copyright and other rights associated with 
its exercise (Italy); Article 3(1)(a) of the Law on the Protection of 
performers, producers of phonograms and broadcasting organizations 
(Luxembourg); Article 178(a) of the Code on copyright and related 
rights (Portugal); Article 102(1) of Law 22/1987 (Spain). 
17 See Article 51(1) of the draft Law on copyright, Documents du Sénat 
No 329-1 (1988) (Belgium), and Article 2(1)(b) of the draft Law on 
Neighbouring rights, Second Chamber, 1988-89, 21 244 (Netherlands). 
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entitled under copyright law to authorize the use of phonograms.18 
On the other hand, in Germany,19 Denmark,20 France,21 Italy22 and 
Spain23 both performers and producers of phonograms have a right to a 
share of an additional remuneration for the broadcasting of 
phonograms. Comparable rules are also provided for in the draft laws 
of Belgium and the Netherlands.24 However, the procedures for 
claiming the remuneration and the method of allocating remuneration 
between beneficiaries differ considerably in detail. Lastly, 
broadcasting organizations are protected in all Member States which 
have statutory neighbouring rights or grant such organizations 
copyright protection, against the fixation and the rebroadcasting of 
their broadcasts.2^ 
18 Section 16(1)(d) and 20(b) of the Copyright, Designs and Patents Acts 
1988 (United Kingdom) and Section 17(1) and (4)(b) and (c) in 
conjunction with Section 2(3) of the Copyright Act 1963 (Ireland). 
19 §§ 76(2) and 86 UrhG. 
20 § 47 of Law 158 on Copyright in literary and artistic works. 
21 Article 22(2) to (5) of Law No 85-660. 
22 Articles 73 and 80(2) of Law No 633 on the Protection of copyright and 
other rights relating to its exercise. 
23 Articles 103 and 109(1) of Law 22/1987. 
24 See Articles 56 and 61 of the draft Law on copyright, Documents du 
Sénat No 329-1 (1988) (Belgium), and Article 6 of the draft Law on 
Neighbouring rights, Second Chamber, 1988-89, 21 244 (Netherlands). 
25 See § 48(1) of Law 158 of Copyright in literary and artistic works 
(Denmark); § 87(1)(1 ) and (2) UrhG (Germany); Article 27(1) of Law 
No 85-660 (France); Section 16(1)(a) and (d) in conjunction with 
Section 17(1) and (4) and Section 20(c) of the Copyright, Designs and 
Patents Act 1988 (United Kingdom); Section 19(1) and (5)(a), (b) and 
(d) of Copyright Act 1963 (Ireland); Article 79 of Law No 633 on the 
Protection of copyright and other rights relating to its exercise 
(Italy); Article 10(a) and (b) of the Law on the Protection of 
performers, producers of phonograms and broadcasting organizations 
(Luxembourg); Article 187(a) and (b) of the Code on Copyright and 
related rights (Portugal); Article I16(1)(a) and (b) of Law 22/1987 
(Spain). 
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Cable Retransmission 
21. The transmission by cable of a programme broadcast either 
terrestrially or via direct broadcasting satellite constitutes an 
indépendant act of broadcasting in accordance with Article 11 bis 
(1)(ii) of the Berne Convention. This qualification is valid for both 
a simultaneous and unchanged transmission of a programme broadcast and 
a defered transmission thereof. Where the programme signals from the 
primary broadcast are retransmitted via cable networks in a country 
other than the primary broadcasting country, the national 
retransmission right in each individual country is affected by that 
retransmission. The only condition is that the signals are fed into 
the network by a party other than the primary broadcasting 
organizat ion. 
22. It has hitherto been argued that in order to qualify as a broadcast it 
should comply with an additional criterion, namely that cable 
retransmission must reach an additional audience vis-à-vis the primary 
broadcast. Retransmission within the national service area or even 
within the direct reception area of commercial broadcaster would thus 
be admissible without the author's renewed consent and would not give 
rise to an entitlement to additional remuneration. The rebroadcasting 
right in Article 11bis(1)(ii) of the Berne Convention Just like the 
primary broadcasting right in (i) is subject to the possibilities of 
restriction provided for in Article 11bis(2). It can therefore be 
made subject to exclusively collective management or even to a 
statutory Iicence. 
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23. Under the Member States' copyright laws, too, cable retransmission is 
subject to the author's consent.2** Denmark has introduced a 
statutory licence with respect to the retransmission of domestic and 
foreign programmes broadcast terrestrially or via direct broadcasting 
satellite, but not via communications satellite.27 In the 
United Kingdom28 - and similarly in Ireland29 - the law assumes that 
the cable retransmission of programmes which network operators are 
obliged to retransmit under the legislation governing the media, as 
well as the retransmission of programmes within their intended 
reception area are classed as primary broadcasts, and as such do not 
need the special consent of right owners. This does not apply to the 
retransmission of satellite broadcasts. 
24. By contrast, the Rome Convention does not deal with the retransmission 
of primary broadcast signals in an international context. The rules 
of the Convention afford protection only against rebroadcasting by 
wireless means (see Article 3(f) and (g)), and do not cover 
26 See §§ 15(2), 20 UrhG (Germany); Article 27 of Law No 57-298, as 
amended by Law No 85-660 (France); Section 16(1)(d), 20 in 
conjunction with Section 7, 178 of the Copyright, Designs and Patents 
Act 1988 (United Kingdom); Section 8(6)(e), 9(7)(d) and 18(4)(d) in 
conjunction with Section 2(3) Copyright Act 1963 (Ireland); 
Article 16 of Law No 633 on the Protection of Copyright and other 
rights relating to its exercise (Italy); Article 23(l)(2) of the 
Copyright Act of 29 March 1972 (Luxembourg); Article 68(2)(e) in 
conjunction with Article 153(3) of the Code on copyright and related 
rights (Portugal); Article 17 in conjunction with Article 20(2)(e) of 
Law 22/1987 (Spain). 
27 See § 22(a) and § 45(2) (compulsory licence for the rebroadcast ing 
right of broadcasting organizations) of Law No 158 on Copyright in 
literary and artistic works, and § 11(a) of Law No 157 on the Right to 
photographic images. 
28 Section 73 of the Copyright, Designs and Patents Act 1988. 
29 Section 52(3) and (4) of the Copyright Act 1963. 
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retransmission by wire. Even if a cable retransmission should be 
considered as "communication to the public" within the meaning of the 
Rome Convention, the simultaneous, unaltered cable retransmission 
which is the only form concerned by this Directive would not affect 
any of the entitlements conferred by the Rome Convention: 
Article 7(1)(a) of the Convention does not protect performers where 
what is communicated to the public is a performance that has already 
been broadcast; the right to remuneration for the use of phonograms 
provided for in Article 12 requires that the phonograms be used 
"direct" for broadcasting purposes; and, finally, broadcasting 
organizations are protected only against a retransmission of their 
broadcasts by wireless means (Article 13(a) in conjunction with 
Article 3(g)). 
25. However, under Article 1(1 Mb) of the 1960 European Convention on the 
Protection of Television Broadcasts, whose signatories include 
Belgium, Denmark, Germany, France, the United Kingdom and Spain, 
broadcasting organizations are also protected against the 
retransmission of their broadcasts by wire. The United Kingdom, 
however, has excluded such protection generally by entering a 
reservation; Belgium has excluded the protection only for Belgian 
broadcasting organizations and restricted theprotection of foreign 
broadcasting organizations to 50% of the weekly broadcasting time. 
26. Of very minor importance in this respect is the 1974 Convention 
relating to the distribution of programme-carrying signals transmitted 
by satellite, to which of the Member States only Germany and Italy 
have so far acceded. The Convention provides protection only against 
unauthorized "tapping" of programme-carrying signals not intended for 
reception by the general public and hence essentially only against 
unauthorized reception of point-to-point broadcasts via satellite. 
Broadcasts which are transmitted via satellite direct to the public 
are specifically excluded from the protection of the Convention under 
Article 3. 
*) 
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27. By contrast, the Member States' legislation on copyright or 
neighbouring rights frequently grants, in this respect, a level of 
protection that exceeds the minimum provided for in international law. 
Thus, in particular, broadcasting organizations in many Member States, 
e.g. in Germany,30 France,31 the United Kingdom32 or Spain33 are 
protected not only against wireless retransmission of their broadcasts 
but as well, in principle, against any retransmission by wire. As 
regards neighbouring rights for performers the disparities are 
relatively large: In certain Member States, such as Germany,34 
France35 or Spain,3^ their right also includes the right to 
authorize the retransmission of their performance - it is sometimes 
presumed that such authorization is granted when authorization is 
given to broadcast a performance or fix it on a videogram or audio-
videogram - while in other countries, such as recently the 
United Kingdom,37 rebroadcasting is specifically exempt. If a 
commercial phonogram is used for the primary broadcast, the laws of 
the Member States frequently also grant performers and/or producers 
30 § 87(1)(1) in conjunction with § 20 of UrhG. 
31 Article 27(1) of Law No 85-660 in conjunction with Article 27 of Law 
No 57-298 as amended by Law No 85-660. 
32 Sections 16(1)(d) and 20(c) of the Copyright, Designs and Patents Act 
1988. 
33 Article 116(1)(a) of Law 22/1987. 
34 See § 76, UrhG. 
35 Article 18(1) of Law No 85-660. 
36 Article 101(1) of Law 22/1987. 
37 See Sections 182 and 183 of the Copyright, Designs and Patents Act 
1988. 
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of phonograms a right to remuneration for the retransmission of that 
broadcast38 in addition to the minimum protection in the 
Rome Convention; the United Kingdom and Ireland even grant an 
independent right to authorize the retransmission of the broadcast.39 
II. The need for action at Community level 
28. In both fields, satellite broadcasting and cable retransmission, 
copyright law has been unable to keep pace in ail respects with the 
expanding technological possibilities and commercial realities of 
cross-border broadcasting. In international law, and especially in 
the domestic laws of the Member States, therefore, there are currently 
certain areas of serious uncertainty as to the law; but there are also 
shortcomings in the protection offered which impede the objective of 
promoting creative work. In addition, right owners are exposed to the 
threat of seeing the exploitation of their rights blocked by other 
right-owners who hold an exclusive right in another part of that same 
programme. 
29. For copyright purposes, however, a distinction has to be drawn between 
primary broadcasting and the simultaneous, unabridged retransmission 
of programmes by cable. In a primary broadcast, which includes the 
broadcast of an original programme via satellite, the broadcaster 
himself decides the composition of the programme. He will include 
only works and protected performances for which he has already secured 
the broadcasting rights. In cable retransmission, on the other hand, 
38 See for instance, §§ 76(2) and 86 in conjunction with § 20 UrhG 
(Germany) or Article 103 in conjunction with Article 20(2)(d) and (e) 
of Law 22/1987 (Spain). 
39 Sections 16(1)(d), and 20(b) of the Copyright, Designs and Patents Act 
1988 (United Kingdom) and Section 17(1), (4)(b) and (c) in conjunction 
with Section 2(3) of the Copyright Act 1963 (Ireland). 
- 21 -
the cable operator cannot make up his programmes on the basis of a 
portfolio of rights which he has acquired beforehand. The cable 
operator can decide only whether he wants to retransmit the primary 
broadcast in full or not at all. 
Satellite broadcasting 
30. In considering the broadcasting of programmes via satellite there is 
no longer any justification from the point of view of right owners, 
broadcasters or viewers for excluding an activity which has to be 
described as broadcasting from the scope of copyright on the sole 
ground that it uses technology that was originally reserved under 
telecommunications law for closed point-to-point communication. For 
the purposes of copyright the decisive question is simply whether the 
use made of protected works and performances constitutes communication 
to the pub Iic. 
31. Where programmes are broadcast via satellite there is legal 
uncertainty as to whether the rights must be acquired only in respect 
of the country from which the programme is transmitted, or in all 
countries of reception too; and once the broadcasting of programmes 
via a communications satellite is placed on the same footing with 
broadcasting via direct satellite, as the Directive proposes, this 
uncertainty will extend to the overwhelming majority of programmes 
already being broadcast via satellite in the Community. 
32. Given the right owner's interest in seeing his protected work or 
performance exploited, the only commercially sound way of resolving 
this legal uncertainty is to determine that the broadcasting rights 
must be acquired only in respect of the country of transmission, which 
will have to be more precisely defined. 
33. If a broadcaster were to have to acquire the rights in all receiving 
countries, the difficulty would immediately arise of deciding in 
- 22 -
which countries the programme signals could in fact be received 
directly. A satellite footprint cannot be defined with enough 
precision to allow the individual countries of reception to be 
determined exactly. A satellite broadcast beamed at western Europe 
may also be receivable in eastern Europe and parts of Scandinavia, 
albeit with more expensive aerials. With recent satellite technology 
footprints are becoming more sharply defined, but the edges are still 
blurred. There is a margin where reception is possible but requires 
increasingly large and more powerful aerials. In the circumstances, 
it is not possible for a broadcaster to determine with sufficient 
certainty where the public can receive direct and where not.Finally, a 
failure of negotiations with any one of the right owners in any one of 
the Member States would now have the consequence that the entire 
satellite transmission would be obstructed. This would not benefit the 
author, who has an interest in seeing his work exploited; it would not 
be in the general interest either. 
34. The proposal for a directive does not rule out the possibility, for a 
rightowner to authorize the transmission of a protected work, such as 
a film, exclusively by one broadcaster or exclusively for one 
linguistic version. These limited authorizations can still be granted 
in the framework of a contractual arrangement. 
35. But a decision that only the law of the broadcasting country rs to be 
relevant requires that copyright and the neighbouring rights of 
performers, producers of phonograms and broadcasting organizations be 
properly protected by means of a minimum alignment of the rules in 
force in the individual states. Where one Member State does not 
provide protection against the broadcasting of protected works by 
satellite, the transmission via direct satellite from that country 
throughout the Community would require neither the consent of right 
owners nor the payment of remuneration, and would render ineffective 
the protection that the legislation of another Member State may grant. 
If the law of the broadcasting country does confer protection in 
principle, but makes a primary broadcast via direct satellite subject 
to a statutory licence, right owners in the entire footprint are 
- 23 -
prevented from deciding how their works will be exploited and simply 
receive remuneration that has been fixed by the competent authority in 
the broadcasting country. The same applies to the owners of 
neighbouring rights; but here the disparity between the rights 
protected in the different Member States is currently much wider than 
in the case of copyright protection, as there is still no systematic 
protection of neighbouring rights in a number of Member States. 
36. For this reason the proposal for a Directive rules out the 
introduction of statutory licences for satellite broadcasts. If on 
the date of the proposal the legislation of a Member State allows 
agreements between an entitled organization of right owners and a 
broadcaster to be declared generally binding, this possibility may be 
maintained subject to certain conditions. In the field of 
neighbouring rights the proposal is explicitly confined to introducing 
a standard minimum level of protection; any additional entitlements in 
respect of the protection of neighbouring rights will continue to be a 
matter for the Member States. 
Cable retransmission 
37. This proposal for a directive provides regulation only for cable 
retransmission of broadcasts from another Member State. For the time 
being the Commission cannot establish the need for harmonisation, as 
far as cable retransmission of broadcasts from one Member State within 
that same Member State are concerned. The reason is that such a 
purely national situation does not in general affect the creation of a 
single European audiovisual area. 
38. The rights needed for a primary broadcast can be acquired on an 
individual basis, but this is difficult in the case of the rights for 
simultaneous, unaltered cable retransmission, on account of its 
dependence on the primary broadcast. In Belgium, Germany and the 
Netherlands, at least, such rights are already being acquired on the 
basis of general contracts to which the cable operators and where 
- 24 -
possible all groups of right owners are party. In France the 
collecting societies, representatives of film right owners and some 
broadcasting organizations have each concluded special contracts with 
individual cable operators. Contractual acquisition of rights for 
cable retransmission does not exist in Denmark, where the law provides 
for statutory licensing. 
39. This type of collective acquisition of rights - in the form of a 
general contract in most cases - has largely managed to solve the 
initial problems associated with the acquisition of rights to 
simultaneous, unaltered cable retransmission of terrestrially 
broadcast programmes. Basically, though, two problems still remain, 
which may Jeopardize the retransmission of national programmes and the 
cross-border retransmission of programmes from other Member States. 
40. Firstly, the idea underlying general contracts at least is that the 
parties to them should be the owners of all rights, thus dispensing 
with the need for detailed proof of title. Yet network operators can 
never be sure that outsiders will not claim individually a right to 
authorize the retransmission (the "outsider problem"). Although the 
right owners party to a contract do undertake to indemnify network 
operators against claims by third parties whose rights fall within the 
category of rights managed or represented by them, such an arrangement 
gives network operators partial protection only. For one thing, the 
indemnity clause is limited to the amount which the outsider, had he 
been represented when the contract was concluded, could have claimed 
as his share of the total remuneration under the contract. Whether 
this is enough to cover the damages a network operator may have to 
pay, plus any legal costs, is doubtful. Indemnification protects only 
against damages claims, and not against injunctions preventing a 
retransmission or criminal sanctions. The network operator is anyway 
wholly unprotected against claims by those right owners whose 
categories of rights were not represented by any of the groups of 
right owners involved in the conclusion of the contract. 
- 25 -
41. The second potential threat is that, when conducting new negotiations, 
the parties may not be able to agree in time to modify or continue the 
existing contract. This may be the result differing of opinions as to 
the amount and composition of the remuneration or, more recently, as 
to the inclusion of new, satellite-broadcast programmes. Thus, in 
Belgium and the Netherlands it has so far only been possible to reach 
agreement on a one to two-year temporary extension of the original 
contract. Moreover, suppliers of new satellite programmes sometimes 
encounter difficulties in being included in these general contracts, 
which are created by those who are already parties to them. 
42. The proposal for a Directive seeks to deal with these problems in two 
ways. 
Firstly, it would introduce a requirement that the right to authorize 
or prohibit cross-border cable retransmission be exercised only 
through a collecting society. The rule would not apply to 
broadcasters' rights in their own broadcasts, whether originally their 
own or assigned to them. 
Secondly, it would as far as possible alleviate difficulties in the 
conclusion of agreements for the grant of rights to cross-border cable 
retransmission by requiring that the parties may call upon the 
assistance of impartial mediators. Furthermore, measures to prevent 
the abuse of negotiating positions, should be provided for, without 
however taking away from the exclusive character of cable 
retransmission rights. 
Finally, the proposal for a directive seeks to stimulate the parties 
to transfer the rights needed for cable retransmission in a single 
general contract in every Member State; all right-owners and cable 
operators should be party to these agreements. 
- 26 -
Summary 
43. Thus the proposal for a Directive covering satellite broadcasting and 
cable retransmission seeks to overcome the adverse effects of the 
inadequate protection available where cross-border broadcasting is 
concerned, and so, in line with the other planned harmonization 
measures, to establish the legal and economic foundations for 
continued creative work in the European cultural sphere, which merits 
particular protection. The diversity of European culture, as was 
recently emphasized in the proposal for a Council Directive on rental 
right, lending right and on certain rights related to copyright,40 is 
not merely deserving of protection: it must have a high level of 
protection in order to preserve its identity. 
C. TYPE OF HARMONIZATION SOUGHT 
44. Like the other plans for harmonization in the field of copyright, this 
proposal does not aim at a general harmonization of the protection of 
copyright and related rights, but seeks only to harmonize areas which 
are currently of foremost importance. One of these areas is the 
creation of a European audiovisual area, which has partly been 
established by the directive "Television without Frontiers" of 3 
October 198941 leaving for harmonisation the field of copyright 
rules. The proposal therefore provides for harmonization only to the 
extent that it is absolutely necessary in order to meet the need for 
action at Community level. 
45. The national approaches to copyright in the Member States are 
therefore left as far as possible untouched. Only where the purpose 
40 COM(90) 586 final - SYN 319, 24.1.1991. 
41 Council Directive 89/552/EEC of 3 October 1989, OJ No L 298, 
17.10.1989. 
(5) 
- 27 -
of the proposed Directive requires it are Member States to be obliged 
to enact harmonized rules. A number of the measures proposed here, 
particularly regarding neighbouring rights, in any event already form 
part of the legislation on the protection of copyright and related 
rights in several Member States. The proposal for a directive mainly 
seeks to avoid both, the existence of "protection-free" areas and the 
possibility of their introduction in the future within the Community. 
46. In the case of satellite broadcasting, for example, the Member States 
will remain free to decide how the broadcasting right which they must 
provide for is to be incorporated into their national systems of 
rights management. As regards the obligation to protect neighbouring 
rights, this proposal confines itself to an indispensible level of 
protection. The Member States remain free to lay down more 
far-reaching protective measures. Neither would the proposal in any 
way affect national rules on remuneration in respect of sound 
recordings, including the allocation of payments between phonogram 
producers and performers. The proposal for a directive provides for a 
protection of neighbouring rights which is mainly taken from the 
substance of the Rome Convention for the Protection of Performers, 
Producers of Phonograms and Broadcasting Organisations which, at 
present, must be considered the most comprehensive standard for a 
protection of neighbouring rights on the international level and which 
has been accepted by the majority of Member States. In some areas, 
however, the proposal for a directive seeks to go above the standard 
of the Rome Convention, in particular with regard to the exclusion of 
the reservations. The transcription of a minimum standard of 
protection for the purposes of this proposal, however, does not imply 
that further harmonization in the field of neighbouring rights might 
not strive to establish a higher level of protection throughout the 
Commun i t y. 
- 28 -
47. The Directive also takes account of the special mechanisms operating 
in particular countries, such as the possibility of declaring 
collective agreements generally binding in the field of satellite 
broadcasting, or the existence of statutory licences for cable 
retransmission. Lastly, the proposal would leave the Member States' 
existing rules on the activities of collecting societies unaffected. 
48. Lastly, the proposal avoids interfering with existing agreements for 
the exploitation of works enjoying copyright protection and other 
protected matter, except where this is indispensible for the 
achievement of the objective pursued. The same applies to the 
practice of contractual acquisition of the rights needed for cable 
retransmission, where that practice has established itself. Similarly, 
the proposal will not form an obstacle to future contractual 
arrangements that result from the economic situation. 
49. This proposal does not prejudice the harmonization proposed in other 
fields of copyright, in particular the proposal for a Council decision 
concerning the accession of the Member States to the Berne Convention 
for the Protection of Literary and Artistic Works, as revised by the 
Paris Act of 24 July 1971, and the International Convention for the 
Protection of Performers, Producers of Phonograms and Broadcasting 
organizations of 26 October 1961 and the proposal for a Council 
Directive on Rental Right, Lending Right and on certain rights related 
to copyr ight. 
50. The proposal for a decision of the Council concerning the accession of 
Member States to the Berne Convention and to the Rome Convention seeks 
to introduce a basic standard for the protection of copyright and 
neighbouring rights. The intention of the present proposal is to 
establish a common level of protection for neighbouring rights insofar 
as such level is required to avoid the development of low-protection 
countries to attract satellite broadcasters. The proposal for a 
directive on rental right finally provides for an absolute 
harmonization of certain neighbouring rights within the Community. 
Within the comprehensive approach of the Commission in the field of 
copyright as laid down in the working programme of the 
- 29 -
Commission each of the three proposals must be considered as a self-
relying set of rules which reflects the three different objectives of 
harmonization. Partial overlaps during the proposa I-stage are the 
consequence and will have to be eliminated in a way depending on the 
progress of the adoption of each of these proposals. 
LEGAL BASIS 
51. Article 2 of the EEC Treaty gives the Community the task of promoting 
a harmonious development of economic activities and closer relations 
between the states belonging to it. To this end the Treaty calls for 
the establishment of a common market and for the approximation of the 
laws of the Member States. 
52. As far as the audiovisual field is concerned, a first step towards a 
European audiovisual area was made in the "Television without 
Frontiers" Directive.42 
53. In its subsequent Communication from the Commission to the Council and 
Parliament on audiovisual policy the Commission confirmed that the 
legal framework established by that Directive had still to be 
amplified on the question of copyright.43 "Failing a Community 
approach on this question," the Commission said, "the legislative 
compartmentalization and legal insecurity due to differences in the 
42 Loc. cit. 
43 C0M(90) 78 final, 21.2.1991. 
- 30 -
various national protection systems will constitute a disincentive to 
investment in creativity, limit opportunities for the exploitation of 
creative works...and prove detrimental or advantageous, depending on 
the nature of the legal system applied, to certain of the interested 
parties." There was "a common interest among all the parties 
concerned that the question of copyright be handled within a Community 
context". 
54. The Directive proposed here is intended to make it easier for 
broadcasting organizations, performers, producers of phonograms and 
cable operators to work in a single audiovisual area. 
55. The Court of Justice has consistently held that broadcasting and the 
relay of broadcasts represent services rather than goods. It makes no 
difference here whether a broadcast is a conventional terrestrial one 
(Sacchi),44 or takes place by cable (Debauve)45 or by satellite. 
The technical medium used is irrelevant to the question whether a 
service is being provided. The exploitation of rights by the author 
or right owner also constitutes a service. 
56. An important part of the activity of a satellite broadcaster is the 
broadcasting of television and radio-programmes via satellite. The 
prerequisite acquisition of broadcasting rights is governed by the 
individual copyright laws of the Member States, which vary 
considerably if they address satellite broadcasting at all. Only a 
few national legal systems expressly grant authors a satellite 
broadcasting right, in other countries it has still to be established 
whether the author's general broadcasting right includes a satellite 
44 Case 155/73 [1974] ECR 409 
45 Case 52/79 [1980] ECR 833. 
- 31 -
broadcasting right, and whether that right is separable. Neither is 
it clear in the laws of most countries which of the author's rights 
are affected by a satellite broadcast. The present state of the law 
means that the acquisition of the rights for a programme to be 
broadcast by satellite is subject to serious uncertainties, and these 
have a dissuasive if not a prohibitive effect on the organization of 
satellite broadcasts. 
57. Furthermore, the existing legal uncertainties hamper the activities of 
right-owners (authors, artists, producers of phongrams and 
broadcasting organizations themselves) because the exploitation of 
their rights by granting a satellite broadcasting right is encumbered 
by the above mentioned legal problems. 
58. The proposal for a Directive seeks to coordinate the national 
copyright rules in this sphere so as to remove the uncertainties 
surrounding the acquisition of rights for satellite broadcasting. 
59. The proposal for a Directive would also provide for the coordination 
of the rules on the related rights held by performers, broadcasting 
organizations and the producers of phonograms. The rules governing 
these related rights, like the other copyright rules on broadcasting 
rights, form part of the legal framework of a single European 
audiovisual area. 
60. Performers, broadcasting organizations and the producers of phonograms 
are not protected against the use of their work for broadcasting 
purposes in all Member States. In the absence of any coordination of 
these rules, satellite broadcasters might establish themselves in 
whichever Member State provided the lowest level of protection for 
these related rights. 
61. Given the disparities which exist it is conceivable that the Court of 
Justice could follow its findings in Codite I v Ciné Vog46 and hold 
that there has not yet been established a single audiovisual area. 
46 Case 62/79 [1980] ECR 881, 903 
- 32 -
62. The second set of provisions in the proposal concerns the cable 
retransmission of broadcasts. The acquisition of the rights for the 
cable retransmission of broadcasts is an essential part of the 
activity of a cable operator, as retransmission requires that the 
necessary broadcasting rights be acquired beforehand. There is a need 
for a provision requiring that such rights be exercised through a 
collecting society, in order to ensure that cable retransmission 
rights can be acquired in their entirety. This would make it 
impossible for the retransmission of a comprehensive programme to be 
prevented by the refusal of a single right owner exercising a right 
which relates only to one component in that programme. Cable operators 
would be able to retransmit the whole of the programme, and at the 
same time the right holders with an interest in a cable retransmission 
would not be prevented from exploiting their rights. 
63. The acquisition of cable retransmission rights, which must necessarily 
be on a contractual basis, is further facilitated by providing for a 
mediation body which can assist where right holders and cable 
operators have difficulty in reaching agreement. A prohibition on the 
abuse of negotiating positions is also included, in order to prompt 
the parties to engage in serious negotiation. 
64. It follows from the above-mentioned that the proposal for a directive 
seeks to facilitate the pursuit of the activities of satellite 
broadcasters, cable operators as well as those of authors, performing 
artists and phonogram producers. To that end article 57 paragraph 2 
provides for the coordination of the provisions laid down by law, 
regulation or administrative action in Member States. 
65. In the presentation of this directive, the Commission has taken into 
account the requirements of Article 8c of the EEC-Treaty and has 
concluded that no special provisions or derogations seem warranted or 
justified at this stage. 
- 33 -
PART TWO; PARTICULAR PROVISIONS 
CHAPTER I - DEFINITIONS 
Article 1 
Def in it ions 
1. This provision seeks to define the terms used in the Directive. 
2. In view of the technical development of satellites and receiving 
aerials there is no longer any Justification from the point of view of 
right owners or broadcasters for excluding from the scope of copyright an 
activity which has to be described as broadcasting, on the sole ground that 
it uses technology that was originally reserved under telecommunications 
law for closed point-to-point communication. The broadcasting of programme 
signals via a communications satellite should therefore be put on the same 
footing as far as copyright and related rights are concerned as 
broadcasting by direct satellite, provided it is comparable to the latter 
in terms of direct reception. This is the case when the reception of the 
programme bearing signals is enabled with aereals conceived for individual 
reception of television and radiobroadcasts. 
3. Communication to the public of protected works and other protected 
matter by satellite is to require the prior authorization of the right 
holder. The purpose of this provision is to determine when the 
broadcasting of programmes via satellite constitutes communication to the 
public, and who is to be responsible for such communication. 
- 34 -
4. Responsibility for communication to the public will arise only at the 
point where a single decision is taken on the content and the transmission 
of the signals, provided the chain of broadcasting equipment from the point 
where this decision is taken to the transmission of the signals from the 
satellite to the public is uninterrupted. Thus a decision on the content 
alone (such as a decision to produce a particular film, or the act of 
acquiring broadcasting rights, or the filming of a football match) would 
not constitute communication to the public. In the same way a decision to 
transmit, taken in isolation (such as the decision of an engineer at a 
satellite ground station) would not constitute communication to the public 
either. Lastly, there would be no act giving rise to responsibility in 
copyright law where a broadcasting organization planned its programmes and 
drew up a schedule months in advance. Such a decision is translated into 
action only when the programme is cleared for broadcasting in its final 
form, with any commercials and current programme references incorporated. 
Only then is there an uninterrupted chain of broadcasting equipment from 
the point where the decision to act is taken to the transmission of the 
signal . 
5. The responsibility in copyright law, so described, arises where the act 
requiring authorization takes place, that is to say where the decision on 
content and transmission is taken. As a rule this will be the headquarters 
of the broadcasting organization. This will still be so if the signals are 
first sent to a ground station in another Member State and transmitted to 
the satellite from there. The decisive test is that the chain of 
broadcasting equipment used must be uninterrupted from the place of the 
decision on the content and on transmission up to the point of 
transmission. 
- 35 -
6. This does not mean that the question whether a broadcasting 
organization's transmission can be received in more than one Member State 
loses its importance. Even though reception as such may be irrelevant for 
copyright purposes, there can be no doubt that it can have commercial 
repercussions on any other exploitation of the work received in the country 
of reception. Thus the extent of reception will usually be taken into 
account when the remuneration to be paid is arrived at. The relationship 
between the transmission of a satellite programme and other forms of use or 
exploitation will as a rule be coordinated by contract too. 
7. The proposal for a Directive says nothing of the treatment of cases in 
which the decision on the content and transmission of the programme-bearing 
signals is taken in a non-Community country. The reason for this is that 
Community law cannot lay down any compulsory standard of protection for 
copyright and related rights in a non-member country, as it can inside the 
Community. Member States are accordingly free to make the responsibility 
in copyright law for satellite broadcasts from non-member countries depend 
on alternative tests. 
8. Furthermore, the proposal for a directive deals with questions 
relating to the simultaneous, unchanged and unabridged cable retransmission 
of broadcasts from another Member State. 
9. With regard to the retransmission of broadcasts of one Member State 
within that same Member State Community action, at present, is not required 
in order to establish the European audiovisual area. SimiMarly a need for 
Community intervention concerning copyright treatment of simultaneous, 
unaltered cable retransmission of the programmes of domestic broadcasters 
within their so-called "distribution zone" must be denied. Finally, this 
reasoning also applies to the question how transmitting equipment which is 
relevant for copyright purposes must be distinguished from mere receiving 
equipment which is irrelevant for copyright purposes. 
- 36 -
10. The proposal for a directive does not make a distinction regarding 
the mode of transmission of the primary broadcast that is retransmitted. 
The rules proposed, therefore, apply irrespective of whether the primary 
broadcast is a satellite or a terrestrial broadcast. However, there is no 
cable retransmission in the sense of this proposal, if the programme is 
merely delivered by point-to-point communication to the cable head end 
without being the subject of a simultaneous primary broadcast. 
11. The notion of cable-retransmission extends to multipoint micro-wave 
distribution systems where the latter perform the role of broadcast-
retransmission in areas where the establishment of a cable network is not 
economi caIi y viable. 
CHAPTER M - BROADCASTING BY SATELLITE 
Art icle 2 
Broadcasting right 
12. Article 2 of the proposal provides that the satellite broadcasting of 
works which are protected under copyright law is to require the prior 
authorization of the right owners. 
13. It is not proposed, however, that a new satellite exploitation right 
should be introduced. The intention is simply to make it clear that 
communication by satellite can constitute communication to the public in 
this same way as communication via a terrestrial broadcasting network. 
Both forms of communication are covered by the broadcasting right. 
14. This will, under no circumstances limit the existing practise of 
contractual arrangements for the exploitation of rights. In particular, it 
is still possible to limit the exploitation of rights contractually to 
specific modes of transmission or to specific linguistic versions. 
37 -
Art icle 3 
Acquisition of broadcasting rights 
15. Under the proposal the only law which would apply to the broadcast of 
a television or radio programme by satellite would be that of the 
Member State in which a single decision is taken on the content and 
transmission of the programme-bearing signals. If there were to be 
statutory licensing in that Member State, right owners would have to accept 
the direct reception of their works broadcast by satellite throughout the 
entire satellite footprint. 
16. This would be too far-reaching an effect; and in order to prevent it, 
the Directive would not allow statutory licences to restrict the right to 
communicate works enjoying copyright protection by satellite to the public. 
17. In line with harmonisation rules put forward by the Nordic Council 
Scandinavian countries allow collective agreements concluded between an 
entitled organization of right owners and a broadcasting organization to be 
extended to right owners not represented by the relevant organization. 
18. Where on 31 July 1991 such a possibility exists in a Member State, 
and covers satellite broadcasting as well, this may be retained until 31 
December 1997 provided that an extended collective agreement system is not 
applied to cinematographic works. Cinematographic works in this context, 
refers to the definition of Articles 2, paragraph 1 and 14bis of the Berne 
Convention on the protection of Artistic and Literary Works. 
- 38 -
Art icle 4 
Performers 
19. The current variations in the level of protection of performers, 
producers of phonograms and broadcasting organizations in the Member States 
could be exploited by satellite broadcasters who established themselves in 
the Member State which granted the most limited protection to these 
categories. The proposal therefore provides for a harmonization of the 
protection of performers, producers of phonograms and broadcasting 
organizations in the Community to the extent required to achieve the 
objective of the proposal. 
20. This would mean that performers would be entitled to authorize or 
prohibit the transmission of their live performances by satellite. To 
avoid this right being deprived of substance through the use of recorded 
performances, the Directive also provides for a fixation right and a 
reproduction right. 
21. When an audiovisual work is produced the contract between the artist 
and the producer will as a rule settle the remuneration of the artist, 
while the later commercial exploitation of the work, including the artist's 
performance, will, in practise, mostly be in the producer's hands. This 
practice is reflected in the legislations of a number of Member States. 
These legislations mostly provide for a presumption of assignment according 
to which the artist who participates in the production of an audiovisual 
work and has concluded a contract with the producer is presumed to have 
assigned his rights to this producer. In some Member States the 
presumption of assignment is rebuttable. It is not the intention 4f the 
present proposal to interfere with the rules on the assignment of rights. 
Member States, therefore, can leave the assignment of performer's rights to 
the individual negotiation between the parties or make the assignment of 
performers rights subject to a system of legal presumption. 
- 39 -
Art icle 5 
Remuneration for the use of phonograms 
22. Sound recordings are extensively used in the composition of broadcast 
programmes. The Rome Convention therefore provides that performers or the 
producers of phonograms, or both, singly or severally, are to be given a 
share in this form of use of a phonogram by a broadcasting organization, 
through the grant of a right of remuneration. It would be advisable to 
adopt this principle at Community level. The Member States would remain 
free to determine whether they wish to grant this right of remuneration to 
both categories of right holders, to a single category, or to one category 
with some participation by the other. The rules on the division of the 
remuneration would also be a matter for the Member States. 
Art icle 6 
Broadcasting organizations 
23. In order to protect broadcasting organizations from seeing parts of 
their broadcasts taken over by other broadcasting organizations without 
authorization, the proposal provides that broadcasting organizations would 
have the right to authorize or to prohibit the simultaneous retransmission 
of their transmissions by satellite, the fixation of their transmissions 
and the reproduction of any fixation of their transmissions. 
- 40 -
Art icle 7 
Limitations on rights 
24. The proposal avoids any detailed harmonization of the rules providing 
for limitations on related rights in the Member States-, its wording is 
based on Article 15 of the Rome Convention. In most Member States 
limitations on related rights are regulated in whole or in part by means of 
a reference to the corresponding provisions of copyright law proper. To 
attempt a detailed harmonization here would run counter to this principle, 
and the result might be that owners of related rights would be placed in a 
better position than authors. This would conflict with the approach to 
copyright and related rights in most Member States. 
25. This in no way prevents steps being taken to harmonize such 
limitations at Community level at a later stage. 
Art icle 8 
Minimum protection 
26. Articles 4 to 7 seek to lay down a minimum level of protection for 
performers, producers of phonograms and broadcasting organizations in 
respect of satellite broadcasting. The Member States remain free, however, 
to provide for more far-reaching protection of these categories of right 
owners or other categories. In any event Member States should be bound by 
the definition of a communication to the public by satellite when granting 
rights above the minimum standard. Article 8 paragraph 1 does not preclude 
any further harmonization in the field of copyright and neighbouring 
r ights. 
- 41 -
27. The Directive provides for recognition of the rights only of nationals 
of Community Member States, and of companies or firms within the scope of 
Article 58 of the EEC Treaty, so as to prevent any discrimination against 
right owners from other Member States which would be incompatible with the 
EEC Treaty. The question whether the rules in this Directive can be 
applied to the nationals of non-member countries will therefore depend on 
the relevant bilateral and international agreements between the 
Member States and non-Community countries. Where those agreements provide 
for national treatment of nationals of non-Community countries this 
Directive may also apply to them. 
Art icle 9 
Transitional Provision 
28. The immediate application of Chapter 2 of the Directive to works could 
be a source of difficulty where their exploitation is the subject of an 
existing agreement. This would be the case where broadcasting rights have 
been divided between different right holders in defined areas. Under the 
circumstances obtaining at the time the agreement was concluded, rights 
were conferred whose exploitation was not to affect the exploitation of the 
sister rights. In the bulk of these cases the difficulty can be resolved 
by reinterpreting or if necessary renegotiating the agreement. The grant 
of a three-year period of grace is intended to allow satisfactory agreed 
solutions to be found where a genuine problem arises. 
- 42 -
CHAPTER III: CABLE RETRANSMISSION 
Article 10 
Cable retransmission right 
29. The cable retransmission of broadcasts constitutes communication to 
the public of the works and other protected matter contained in the 
broadcast, and is protected by copyright. The cable retransmission of 
broadcasts therefore requires the authorization of the relevant right 
owners. 
30. But this does not tell us which are the relevant right owners, nor 
does it define types of use which may be outside the scope of copyright. 
The Member States are consequently free to decide which categories of right 
owners are to be entitled to authorize or to prohibit the cable 
retransmission of a broadcast. It is likewise a matter for the 
Member States to determine the view to be taken for copyright purposes of a 
communal aerial, for example, or of the coverage of a domestic broadcaster. 
31. Neither is the proposal intended to harmonize moral rights in relation 
to cable retransmission. It does not affect rules in the Member States 
allowing a cable retransmission to be interrupted on grounds of 
infringement of moral rights. 
32. While the cable retransmission of broadcasts is in future to be 
carried out on a purely contractual basis, account has to be taken of the 
developed cable retransmission systems which exist in the Member States and 
which operate in a satisfactory way. Where on 31 July 1991 a Member State 
has introduced a statutory licensing system covering cable retransmission, 
- 43 -
that possibility will remain open until 1998 too. This is equally valid for 
a situation where the national copyright legislation expressly provides for 
the possibility of the introduction of a statutory licence system by 
administrative regulation. However, there is no need to maintain such 
systems after 1998, when the contractual system envisaged by this proposal 
will have shown its merit of rendering a statutory licence solution 
superfluous. 
Article 11 
Exercise of the cable retransmission right 
33. A cable network operator takes over a primary broadcast without 
alteration, and has no say in the composition of the programmes he relays. 
This means that he is not usually in a position to identify the owners of 
rights in particular parts of the programme in advance. In order to 
prevent rights in individual programme components from standing in the way 
of the cable retransmission operation as a whole, it is proposed that cable 
retransmission rights should be exercised centrally by one or more 
collecting societies. The right of each individual right owner to 
authorize or to prohibit cable retransmission could be exercised only 
through the intermediary of these collecting societies. 
34. The obligation to exercise the cable retransmission right only through 
a collecting society would not affect the questions of ownership and 
transfer of ownership; the obligation to act through a collecting society 
would apply only to the exercise of the cable retransmission right against 
a cable operator. 
35. Lastly, right owners as members of the collecting society would remain 
free to take steps through the society to protect their commercial interest 
in seeing their works exploited in an orderly fashion. The collecting 
society might for example be told to include an escape clause in agreements 
authorizing cable retransmission. Such a clause might provide that the 
society may oppose the retransmission of a work where this would result in 
serious and irreparable damage to the right owner. 
- 44 -
36. Neither does the obligation to act through a collecting, society mean 
that right owners would be required to Join such a society. A right owner 
who has not transferred the exercise of his rights to a collecting society 
would have a claim for compensation on the society which manages rights of 
the same kind. The claim would be confined to the sum which the right 
owner would have received if he had transferred his rights to the society. 
This implies that as far as this compensation is concerned the right-owner 
who is not a member of the collecting society must be put on the same 
footing as the members of that society. Furthermore, the non-member must 
have the possibility to enforce his claim for equal treatment before the 
national courts. 
Article 12 
Exercise of the cable retransmission right by broadcasting organizations 
37. The number of broadcasting organizations can be determined at the time 
a cable retransmission agreement is concluded, and every cable operator 
knows which programmes he is feeding into his network. It is not 
necessary, therefore, to extend the obligation to act through a collecting 
society to cover broadcasting organizations' own rights and rights assigned 
to them. 
38. Where a right owner transfers the rights for a primary broadcast and 
for any associated cable retransmission to a broadcasting organization, 
these cable retransmission rights are to be exercised by the broadcasting 
organization and not by a collecting society. 
- 45 -
Article 13 
General contracts 
39. Both cable operators and right owners can have an interest in 
regulating authorization for the cable retransmission of one or more 
broadcasts by one or more cable operators in a single general contract. 
Right owners and cable operators should therefore be encouraged to do so. 
The parties would conclude such general contracts freely, but any party 
seeking such an agreement must himself be prepared to negotiate on a 
collect ive basis. 
40. This does not mean that the other side could be required to act 
collectively. It is conceivable, therefore, that negotiations might be 
individual on the one side and collective on the other. A cable operator 
might negotiate with all right owners together, for example, or a 
collecting society might negotiate with all cable operators regarding a 
particular category of rights. 
Article 14 
Mediators 
41. Orderly cable retransmission requires that the parties be 
fundamentally available for negotiations on the acquisition of rights. To 
ensure that this is so the parties may have recourse to the assistance of 
mediators if they encounter an unwillingness to negotiate. The mediators 
body would help with negotiation, and if necessary could submit non-binding 
amicable proposals. The mediators should be impartial experts to ensure 
that proper account is taken of the interests involved. The details of the 
procedure would remain a matter for the Member States. 
- 46 -
Article 15 
Prevention of the abuse of negotiating positions 
42. The willingness of the parties to negotiate is also to be promoted by 
a ban on the abuse of negotiating positions. In general terms, the 
existence of an abuse of a negotiating position should be considered if a 
position taken with regard to an ongoing negotiation can in no way be 
justified by the circumstances. There would be such abuse, for example, 
where one of the parties refused absolutely to enter into negotiation. The 
same would apply where a purported offer was in no way based on rational 
elements. In effect, therefore, this ban on the abuse of negotiating 
positions constitutes a requirement at least to enter into bona f i de 
negotiation. But it is only an aid to negotiation, and does not force the 
parties to reach agreement. A proposal of an improperly high or low level 
of consideration would be inadmissible. But the Directive does not give a 
definition of what constitutes a fair proposal. 
43. If no agreement is reached and there has been no abusive conduct, 
cable retransmission will not be possible in that particular case. 
44. Member States remain free to determine the way in which they will seek 
to prevent such abuse. A civil-law remedy or administrative supervision 
would both be conceivable. 
- 47 -
CHAPTER IV; GENERAL PROVISIONS 
Article 16 
Compet it ion Rules 
45. The application of the competition rules of the Community and of the 
Member States are not affected by the provisions of the draft 
directive. In particular, the measures to prevent the abuse of 
negotiating positions is intended only to promote the willingness to 
negotiate in a given situation, quite independently from the rules of 
conduct imposed by the competition laws in force. 
Article 17 
Collective administration of rights 
46. Regulation of the activities of collecting societies will continue to 
be a matter for the Member States, which must however comply with Community 
law. This article does not preclude any further harmonization with regard 
to the collective administration of rights. 
- 48 -
Proposal for a 
COUNCIL DIRECTIVE 
on the coordination of certain rules concerning copyright 
and neighbouring rights applicable to satellite broadcasting 
and cable retransmission 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European Economic Community, 
and in particular Article 57(2) thereof, 
Having regard to the proposal from the Commission, 
In cooperation with the European Parliament, 
Having regard to the opinion of the Economic and Social Committee, 
(1) Whereas the objectives of the Community as laid down in the Treaty 
include establishing an ever closer union among the peoples of Europe, 
fostering closer relations between the States belonging to the 
Community, and ensuring the economic and social progress of the 
Community countries by common action to eliminate the barriers which 
divide Europe; 
(2) Whereas to that end the Treaty provides for the establishment of a 
common market and an area without frontiers; whereas this is to 
include the abolition of obstacles to the free movement of services 
and the institution of a system ensuring that competition in the 
common market is not distorted; whereas to that end the Council may 
adopt directives for the coordination of the provisions laid down by 
law, regulation or administrative action in Member States concerning 
the taking up and pursuit of activities as self-employed persons; 
- 49 -
(3) Whereas broadcasts transmitted across frontiers within the Community, 
in particular by satellite and cable, are one of the most important 
ways of pursuing these Community objectives, which are at the same 
time political, economic, social, cultural and legal; 
(4) Whereas the Council has already adopted Directive 89/552/EEC of 
3 October 1989 on the coordination of certain provisions laid down by 
law, regulation or administrative action in Member States concerning 
the pursuit of television broadcasting activities1, which makes 
provision for the promotion of the distribution and production of 
European television programmes and for advertising and sponsorship, 
the protection of minors and the right of reply; 
(5) Whereas, however, the achievement of these objectives in respect of 
cross-border satellite broadcasting and the cable retransmission of 
programmes from other Member States is currently still obstructed by a 
series of differences between national rules of copyright and some 
uncertainties as to the law; whereas this means that holders of rights 
are exposed to the threat of seeing their works exploited without 
payment of remuneration or that the individual holders of exclusive 
rights in various Member States block the exploitation of their 
rights; whereas the legal uncertainty in particular constitutes a 
direct obstacle to the free circulation of programmes within the 
Community; 
OJ No L 298, 17.10.1989, p. 23. 
- 50 -
(6) Whereas a distinction is currently drawn for copyright purposes 
between broadcasting by direct satellite and broadcasting by 
communications satellite; whereas since individual reception is 
possible and nowadays affordable with both types of satellite, there 
is no longer any justification for this differing legal treatment; 
(7) Whereas the free broadcasting of programmes is further impeded by the 
current legal uncertainty as to whether broadcasting by a satellite 
whose signals can be received directly affects the rights in the 
country of transmission only, or in all countries of reception 
together; whereas since communications satellites and direct 
satellites are treated alike for copyright purposes, this legal 
uncertainty now affects almost all programmes broadcast in the 
Community by satellite; 
(8) Whereas, furthermore, the legal certainty, which is a prerequisite for 
the free movement of broadcasts within the Community, is missing where 
programmes transmitted across frontiers are fed into and retransmitted 
through cable networks; 
(9) Whereas the development of the acquisition of rights on a contractual 
basis is already making a vigorous contribution to the creation of the 
desired European audiovisual area; whereas the continuation of such 
contractual agreements should be ensured, and their smooth application 
in practice should be promoted wherever possible; 
(10) Whereas at present cable-operators in particular cannot be sure to 
have actually acquired all the programme rights covered by such an 
agreement ; 
(11) Whereas, lastly, parties in different Member States are not all 
similarly bound by obligations which prevent them from improperly 
refusing to negotiate on the acquisition of the rights necessary for 
cable distribution or improperly allowing such negotiations to fail; 
(12) Whereas the legal framework for the creation of a single audiovisual 
area laid down in Directive 89/552/EEC must therefore be supplemented 
with reference to copyright; 
- 51 -
(13) Whereas, therefore, an end should be put to the differences of 
treatment of the transmission of programmes by communications 
satellite which exists in the Member States, so that the vital 
distinction throughout the Community becomes whether protected works 
and other protected matter are communicated to the public; whereas 
this will also ensure equal treatment of the suppliers of cross-border 
broadcasts, regardless of whether they use a direct broadcasting 
satellite or communications satellite; 
(14) Whereas the legal uncertainty regarding the rights to be acquired 
which impedes cross-border satellite broadcasting will be overcome by 
defining the notion of communication to the public by satellite at a 
Community level; whereas this definition will at the same time 
specify where the act of communication takes place; whereas such a 
definition is necessary to avoid the cumulative application of several 
national laws to one single act of broadcasting; whereas communication 
to the public occurs only when and in the Member State where a 
broadcasting organization takes a single decision on the content and 
the transmission of programme-carrying signals; whereas there is no 
communication if the chain of broadcasting equipment between the point 
where such single decision is taken and the transmission of the 
relevant signals from the satellite is interrupted; 
(15) Whereas in arriving at the amount of the payment to be made for the 
rights acquired the parties should take account of the actual or 
potential audience throughout the area in which the broadcast can be 
received; 
(16) Whereas a special transitional provision applicable to existing 
agreements should be provided for so that at the latest by 1998 these 
agreements will be adapted in the light of the new legal framework; 
- 52 -
(17) Whereas programmes broadcast from non-member countries to the 
territory of the Community will be outside the scope of this 
Directive; whereas they may be treated differently in the law of the 
Member States from programmes transmitted from a Member State if the 
protection provided for by this Directive is not granted in the non-
member country or only granted to a lesser extent; 
(18) Whereas the arrangements made should also include provisions for the 
protection of holders of copyrights and neighbouring rights; whereas 
it is necessary to ensure that protection for specific categories is 
accorded in all Member States to the extent provided for by this 
Directive and that this protection is not subject to a statutory 
licence system; whereas only in this way is it possible to ensure that 
any difference in the level of protection within the common market 
will not create distortions of competition which might result in an 
unjustified disadvantage for programme suppliers and holders of rights 
in Member States with a high level of protection; 
(19) Whereas the minimum protection provided for neighbouring rights is 
mainly taken from the substance of the Rome Convention of the 
Protection of Performers, Producers of Phonograms and Broadcasting 
Organizations which at present must be considered to provide the most 
comprehensive standard of protection of neighbouring rights in the 
international field-, whereas this standard has been accepted by the 
majority of Member States-, whereas, however, in accordance with the 
aims of this Directive, it is not appropriate to allow for derogations 
corresponding to those provided for in the Rome Convention; 
(20) Whereas the cable retransmission of programmes from other Member 
States is an act subject to copyright and neighbouring rights; whereas 
the cable operator must therefore obtain the authorization from every 
holder of rights in each part of the programme retransmitted; whereas, 
under this Directive, the authorizations should be granted 
contractually unless an exception is provided for in the case of 
existing legal licence schemes-, 
- 53 -
(21) Whereas, this Directive, through the obligation to have recourse to a 
collecting society, provides for the exclusive collective exercise of 
the authorization right to the extent that this is required by the 
special features of cable retransmission; whereas this Directive is 
thereby seeking to ensure that the smooth operation of contractual 
arrangements is not called into question by the intervention of 
outsiders holding rights in individual parts of the programme; whereas 
the authorization right as such remains intact and only the exercise 
of this right is regulated to some extent, so that the right to 
authorize a cable retransmission can still be assigned; whereas this 
Directive does not affect the exercise of moral rights-, 
(22) Whereas contractual agreements regarding the authorization of cable 
retransmission shall be promoted by additional measures; whereas, to 
begin with, all the rights necessary for a cable retransmission should 
be acquired in the form of a general contract; whereas, furthermore, 
any party shall be entitled, at any moment, to call upon the 
assistance of impartial mediators whose task it is to assist 
negotiations and to put forward non-binding proposals; whereas, 
finally, it is necessary to ensure that the negotiations are not 
improperly blocked or that individual holders of rights are not 
improperly prevented from taking part in the negotiations; whereas 
none of these measures for the promotion of the acquisition of rights 
calls into question the contractual nature of the acquisition of cable 
rights; 
(23) Whereas, however, Community rules are not needed to deal with all of 
those matters whose effects, perhaps with some commercially 
insignificant exceptions, are felt only inside the borders of a single 
Member State; 
(24) Whereas this Directive lays down the minimum rules needed to establish 
and guarantee free and uninterrupted cross-border broadcasting by 
satellite and simultaneous, unaltered cable retransmission of 
programmes broadcast from other Member States, on what is essentially 
a contractual basis; 
- 54 -
(25) Whereas this Directive does not prejudice further harmonization in the 
field of copyright and neighbouring rights and the collective 
administration of such rights; 
(26) Whereas it is therefore a matter for the Member States to supplement 
the general provisions needed to achieve the objectives of this 
Directive by taking legislative and administrative measures in their 
domestic law, provided these do not run counter to the objectives of 
this Directive and are compatible with Community law; whereas, in 
particular, Member States are accordingly free to lay down rules for 
the protection of rights related to copyright which go beyond those 
provided for in this Directive; 
(27) Whereas this Directive does not affect the applicability of the 
competition rules in Articles 85 and 86 of the Treaty, 
HAS ADOPTED THIS DIRECTIVE: 
CHAPTER I: DEFINITIONS 
Article 1 
For the purpose of this Directive: 
a) "satellite" means any satellite operating either on frequencies which 
under telecommunications law allow reception by the public (a 
broadcasting satellite) or on frequencies which are reserved for 
closed, point-to-point communication (a communications satellite). In 
the latter case, however, the circumstances in which individual 
reception of the signals takes place must be comparable to those which 
apply in the case of broadcasting satellites; 
55 -
b) "communication to the public by satellite" inside the Community means 
the act of taking a single decision on the content and the 
transmission by satellite of programme-carrying signals by the 
broadcaster. This act of communication to the public by satellite 
occurs in the Member State where the broadcaster takes the single 
decision on the content and the transmission by satellite of 
programme-carrying signals. If the programme-carrying signals are 
encrypted, communication to the public by satellite means the act of 
taking a single decision on the content and the transmission of the 
programme carrying signals under the condition that decoders are 
provided to the public by the broadcaster himself or with his 
approval. There is no communication to the public by satellite, 
however, if there is any interruption of the chain of broadcasting 
equipment between the point where a single decision is taken and the 
transmission of the relevant signals from the satellite; 
c) "cable retransmission" means the simultaneous, unaltered and 
unabridged retransmission of a broadcast from another Member State by 
a cable or microwave system for reception by the public; 
d) "broadcasting" means the initial transmission, by wire or over the 
air, including that by satellite, of television or radio programmes 
intended for reception by the public-, 
e) "collecting society" means an organization whose members have 
appointed it to manage copyright or related rights. 
CHAPTER II: BROADCASTING OF PROGRAMMES BY SATELLITE 
Article 2: Broadcasting right 
Member States shall provide a right for the author to authorize or to 
prohibit the communication to the public by satellite of copyright works, 
subject to the provisions set out in this Chapter. 
- 56 -
Article 3: Acquisition of broadcasting rights 
(1) Member States shall ensure that the right referred to in Article 2 may 
be acquired only by agreement. 
(2) Where, on 31 July 1991, it is provided by a Member State that an 
agreement between a collecting society and a broadcasting organization 
may be extended to include holders of rights not represented by the 
collecting society, this shall continue to be possible until 
31 December 1997. 
(3) Paragraph 2 shall not apply to cinematographic works, including works 
created by a process analogous to cinematography. 
Article 4: Performers 
Member States shall provide that performers shall enjoy the right: 
- to authorize or prohibit the communication to the public by 
satellite of their performance except where the performance used 
in the broadcasting is itself already a broadcast performance or 
is made from a fixation-, 
- to authorize or prohibit the fixation of their unfixed 
performances; 
- to authorize or prohibit the reproduction of a fixation of their 
performance. 
- 57 -
Article 5: Remuneration for the use of phonograms 
Member States shall provide that if a phonogram published for commercial 
purposes, or a reproduction of such phonogram, is used directly for a 
communication to the public by satellite, a single equitable remuneration 
shall be paid to the performers, or to the producers of the phonograms, or 
to both. 
Article 6: Broadcasting organizations 
Member States shall provide that broadcasting organizations shall enjoy the 
right to authorize or prohibit: 
the simultaneous retransmission of their broadcasts by satellite; 
the fixation of their broadcasts; 
the reproduction of fixations of their broadcasts. 
Article 7: Limitations on rights 
(1) Member States may provide for limitations to the protection guaranteed 
by Articles 4, 5 and 6 only as regards: 
- pr ivate use-, 
- use of short excerpts in connection with the reporting of 
current events; 
- ephemeral fixation by a broadcasting organization by means of 
its own facilities and for its own broadcasts; 
- use solely for purposes of teaching or scientific research. 
- 58 -
(2) Notwithstanding paragraph 1 of this Article, any Member State may 
provide for the same kinds of limitation with regard to the protection 
of performers, producers of phonograms and broadcasting organizations 
as it provides for in its legislation concerning the protection of 
copyright in literary and artistic works. However, compulsory 
licences may be provided for only to the extent to which they are 
compatible with the Rome Convention for the Protection of Performers, 
Producers of Phonograms and Broadcasting Organizations. 
Article 8: Minimum protection 
(1) Member States may provide for more far-reaching protection for 
authors, and holders of neighbouring rights under their jurisdiction 
than that required by Articles 2 to 6. 
(2) In applying paragraph 1 Member States shall observe the definitions 
contained in points (a) and (b) of Article 1. 
Article 9: Transitional provision 
Agreements concerning the exploitation of protected works and services, in 
force on 1 January 1995, shall not be subject to Articles 2 to 8 until 
31 December 1997 if they expire after that date. 
- 59 -
CHAPTER Ml: CABLE RETRANSMISSION 
Article 10; Cable retransmission right 
(1) Member States shall ensure that when programmes from other 
Member States are retransmitted by cable in their territory the 
applicable copyright and neighbouring rights are observed, and that 
such retransmission takes place on the basis of agreements between 
copyright owners, holders of neighbouring rights and cable operators. 
(2) Notwithstanding paragraph 1, Member States may retain until 
31 December 1997 such statutory licence systems that are in operation 
or expressly provided for by the national law on 31 July 1991. 
Article 11: Exercise of the cable retransmission right 
(1) Member States shall ensure that the right of copyright owners and 
holders of neighbouring rights to authorize or prohibit the cable 
retransmission of a broadcast may be exercised only through a 
collect ing society. 
(2) A holder of a right who has not transferred the management of his 
rights to a collecting society shall have a claim to compensation on 
the collecting society which manages rights of the same category. His 
claim shall be confined to the sum which he would have received if he 
had mandated the collecting society to exercise his rights. 
Article 12: Exercise of the cable retransmission right by broadcasting 
organizations 
Article 11 shall not apply to the rights exercised by a broadcasting 
organization in respect of its own transmissions. 
- 60 -
Article 13: General contracts 
Member States shall ensure that a party seeking the conclusion of a general 
contract is for its part obliged to submit collective proposals for an 
agreement. 
Article 14: Mediators 
(1) Where no agreement is concluded regarding authorization of the cable 
retransmission of a broadcast, Member States shall ensure that either 
party may call upon the assistance of one or several mediators 
referred to in paragraphs 2 and 3. 
(2) The mediators shall have the task of providing assistance with 
negotiation. They may also submit non-binding recommendations to the 
parties. 
(3) Member States shall ensure that the mediators are so selected that 
their impartiality is beyond doubt. 
Article 15; Prevention of the abuse of negotiating positions 
Member States shall ensure that the parties do not improperly prevent 
negotiation regarding authorization for cable retransmission. 
- 61 -
CHAPTER IV: GENERAL PROVISIONS 
Article 16: Competition rules 
This Directive shall be without prejudice to the Community competition 
rules. 
Article 17: Collective administration of rights 
The regulation of the activities of collecting societies shall be a matter 
for the Member States. 
Article 18: Final provisions 
1. Member States shall bring into force the laws, regulations and 
administrative provisions necessary to comply with this Directive by 
1 January 1995. They shall immediately inform the Commission thereof. 
When Member States adopt these provisions, these shall contain a reference 
to this Directive or shall be accompanied by such reference at the time of 
their official publication. The procedure for such reference shall be 
adopted by Member States. 
2. Member States shall communicate to the Commission the provisions of 
national law which they adopt in the field covered by this Directive. 
Article 19 
This Directive is addressed to the Member States. 
Done at Brussels, For the Council 
The President 
- 62 -
NOTE ON THE FINANCIAL IMPACT 
The present proposal does not have budgetary consequences 
for the Community. 
- 63 -
NOTE ON THE EFFECT ON COMPETITIVENESS AND EMPLOYMENT 
I. What Is the main Justification for the measure? 
establishment of the Internal market; 
definition of common rules of the game for a European 
audovisual area; 
strengthening of the position of European culture by the 
provision of remuneration to those Involved In the 
production and dissemination of protected works; 
I I. Characteristics of the enterprises concerned 
The proposal affects firms of all descriptions. Film 
producers, phonogram producers, satellite broadcasters and 
cable operators vary from multinationals to medium size 
national companies. Authors and performers normally conduct 
business as private Individuals or as small companies. 
III. What obligations are Imposed directly on enterprises? 
Satellite broadcasting organizations and cable operators 
which broadcast or retransmit protected works will have to 
respect the rights of authors, of performers and of 
producers of film works and phonograms to allow the use of 
their works. The participants of negotiations concerning 
cable retransmission rights will have to accept the 
- 64 -
Intervention of one or more mediators and may not 
unreasonably refuse negotiations. 
IV. What obligations may be Imposed Indirectly on 
enterprises by local authorities? 
None 
V. Are there any special measures for SMEs? 
No 
VI. What foreseeable effects are there? 
(a) on the competitiveness of enterprises? 
Rightholders will benefit from the direct effect of 
receiving remuneration for the broadcasting by satellite or 
the retransmission of their works. The directive will 
enhance their competitiveness by establishing the country of 
origin principle for authorization of satellite 
broadcast ing. 
Film right owners, in particular, which have acquired the 
relevant rights of use In one Member State will be given 
legal security to be able to exploit these rights by 
satellite broadcasting In competition with rightholders In 
other Member States. This will lead to a more competitive 
environment favourable to the strengthening of a single 
European audiovisual area. 
The competitiveness of broadcasters and cable-operators will 
be increased by the enhanced legal security with regard to 
the applicable rules on copyright and neighbouring rights. 
- 6*3 -
(b) on employment 
The establishment of common rules of the game for all 
economic operators implied in a satellite broadcast or a 
cable retransmission will promote the production and 
distribution of broadcast programmes and should therefore 
have a positive impact on employment. 
VII. What consultations have there been on this proposal? 
A discussion paper on "Broadcasting and Copyright In the 
Internal Market" on copyright questions concerning cable and 
satellite broadcasts was published In November 1990. All 
Interested circles (authors, performers, broadcasters, 
phonogram producers, film producers, cable-operators) were 
invited to participate In a written consultation procedure 
In December 1990 and January 1991. A hearing on the 
discussion paper was held on 5 February 1991 In Brussels. 
Professionals agreed on the necessity for Community action 
in this field. 

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ISBN 92-77-75616-0 
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