PROPOSAL FOR A COUNCIL DIRECTIVE ON THE COORDINATION OF CERTAIN RULES CONCERNING COPYRIGHT AND NEIGHBOURING RIGHTS APPLICABLE TO SATELLITE BROADCASTING AND CABLE RETRANSMISSION
Date: 1991-09-11
Institutions: European Commission
Subjects: European audiovisual area, cable distribution, contract, copyright, free movement of programmes, satellite communications

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) 

2 -

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) 

-  3 -

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 

-  4 -

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. 

-  5 -

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. 

- 6 -

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. 

- 7 -

"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. 

- 8 -

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 

8 

Loc. cit. 

Loc. cit. 

- 9 -

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  1 1b is  (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  11b j s(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  llb i s(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 

-  10  -

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  1 1t e r( 1 ) ( i i ),  14(1)(ii)  and  1 4b i s( 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) 

- 11 -

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 

12  -

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 

12 

13 

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. 

Article  20(2)(c)  in  conjunction  with  Article  36(2)  of  Law  No  22/1987 
of  11  November  1987  on  intellectual  property. 

Section  6(1 )(a)  and  (2)  of  the  Copyright,  Designs  and  Patents  Act 
1988. 

-  13 -

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. 

-  14 -

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 

of 

the 

§ 76(1) 

Urhebergesetz 

§  45(1)(b)  of  Law  158  on  Copyright  in  literary  and  artistic  works 
(Denmark); 
(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). 

(UrhG) 

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). 

-  15 -

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). 

-  16  -

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  11b i s(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  1 1b i s( 2 ).  It  can  therefore  be 

made  subject  to  exclusively  collective  management  or  even  to  a 

statutory  Iicence. 

- 17 -

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 

by  Law  No 85-660 

(France);  Section  16(1)(d), 

26  See  §§  15(2),  20  UrhG  (Germany);  Article  27  of  Law  No 57-298,  as 
amended 
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 
(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). 

Section  2(3)  Copyright 

with 

1963 

Act 

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. 

-  18 -

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 M b)  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. 

*) 

-  19 -

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. 

-  20 -

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  V o g46  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  M l:  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  C O M P E T I T I V E N E SS  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  w o r k s; 

I I.  C h a r a c t e r i s t i cs  of  the  enterprises  concerned 

The  proposal  affects  firms  of  all  d e s c r i p t i o n s.  Film 

p r o d u c e r s,  phonogram  p r o d u c e r s,  satellite  b r o a d c a s t e rs  and 

cable  o p e r a t o rs  vary  from  m u l t i n a t i o n a ls  to  medium  size 

national  c o m p a n i e s.  Authors  and  performers  normally  conduct 

business  as  private  Individuals  or  as  small  c o m p a n i e s. 

III.  What  o b l i g a t i o ns  are  Imposed  directly  on  e n t e r p r i s e s? 

Satellite  broadcasting  o r g a n i z a t i o ns  and  cable  o p e r a t o rs 

which  broadcast  or  retransmit  protected  works  will  have  to 

respect  the  rights  of  a u t h o r s,  of  p e r f o r m e rs  and  of 

p r o d u c e rs  of  film  works  and  phonograms  to  allow  the  use  of 

their  w o r k s.  The  participants  of  n e g o t i a t i o ns  concerning 

cable  r e t r a n s m i s s i on  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  e m p l o y m e nt 

T he  e s t a b l i s h m e nt  of  c o m m on  r u l es  of  the  g a me  for  all 

e c o n o m ic  o p e r a t o rs  i m p l i ed  in  a  s a t e l l i te  b r o a d c a st  or  a 

c a b le  r e t r a n s m i s s i on  will  p r o m o te  the  p r o d u c t i on  and 

d i s t r i b u t i on  of  b r o a d c a st  p r o g r a m m es  and  s h o u ld  t h e r e f o re 

h a ve  a  p o s i t i ve  impact  on  e m p l o y m e n t. 

V I I.  W h at  c o n s u l t a t i o ns  h a ve  t h e re  b e en  on  t h is  p r o p o s a l? 

A  d i s c u s s i on  p a p er  on  " B r o a d c a s t i ng  and  C o p y r i g ht  In  the 

I n t e r n al  M a r k e t"  on  c o p y r i g ht  q u e s t i o ns  c o n c e r n i ng  c a b le  and 

s a t e l l i te  b r o a d c a s ts  w as  p u b l i s h ed  In  N o v e m b er  1 9 9 0. 

All 

I n t e r e s t ed  c i r c l es  ( a u t h o r s,  p e r f o r m e r s,  b r o a d c a s t e r s, 

p h o n o g r am  p r o d u c e r s,  film  p r o d u c e r s,  c a b l e - o p e r a t o r s)  w e re 

i n v i t ed  to  p a r t i c i p a te  In  a  w r i t t en  c o n s u l t a t i on  p r o c e d u re 

In  D e c e m b er  1 9 90  and  J a n u a ry  1 9 9 1. 

A  h e a r i ng  on  the 

d i s c u s s i on  p a p er  w as  h e ld  on  5  F e b r u a ry  1991  In  B r u s s e l s. 

P r o f e s s i o n a ls  a g r e ed  on  the  n e c e s s i ty  for  C o m m u n i ty  a c t i on 

in  t h is  f i e l d. 

- G(, 

ISSN 0254-1475 

COM(91) 276 final 

DOCUMENTS 

EN 

15  08 

Catalogue number : CB-CO-91-384-EN-C 

ISBN 92-77-75616-0 

Office  for Official  Publications of the European Communities 
L 2985 Luxembourg