Proposal for a Council Decision approving the European Convention relating to questions on copyright law and neighbouring rights in the framework of tranfrontier broadcasting by satellite
Date: 1996-01-31
Institutions: European Commission
Subjects: European convention, broadcasting, copyright, free movement of programmes, satellite communications

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels,  31.01.1996 
COM(96)  6  final 

96/0017 (CNS) 

PROPOSALS FOR COUNCIL DECISIONS CONCERNING  THE  SIGNING 
AND APPROVAL, ON BEHALF OF THE EUROPEAN COMMUNITY, OF 
THE EUROPEAN  CONVENTION RELATING TO QUESTIONS ON 
COPYRIGHT LAW AND NEIGHBOURING RIGHTS IN THE FRAMEWORK 
OF TRANSFRONTIER  BROADCASTING  BY  SATELLITE 

(presented  by  the  Commission) 

EXPLANATORY  MEMORANDUM 

1. 

.  INTRODUCTION 

In  the  Community  the  legal  framework  for  creating  a  single  audiovisual  area,  as  laid 
down  in  Council  Directive 89/552/EEC,1  was  supplemented,  as  regards  copyright  and 
neighbouring  rights,  by  Council  Directive 93/83/EEC  of  27 September  1993  on  the 
coordination  of  certain  rules  concerning  copyright  and  rights  related  to  copyright 
applicable to satellite broadcasting and cable retransmission.2 

Similarly,  in  the  course  of  its  deliberations  in  1987  on  the  European Convention  on 
Transfrontier  Television,3  the  Council  of  Europe  decided  not  to  include  specific 
provisions  on copyright  and  neighbouring  rights  and  embarked  on  separate  work  in  that 
field.  That  work  led  to the  adoption,  on  16 February  1994, of the  European  Convention 
relating  to  questions  on  copyright  law  and  neighbouring  rights  in  the  framework  of 
transfrontier  broadcasting by satellite. 

It  will  be  clear  from  what  follows  that  the  subject-matter  of  this  latter  Convention  falls 
largely  within  the  scope of the  Community  Directive, and  it is this which,  in the  light  of 
the  case-law  of the  Court of Justice, justifies  the  proposals  for  Council Decisions  on  the 
signing and approval of the Convention. 

2. 

SECONDARY LEGISLATION ADOPTED WITHIN THE COMMUNITY FRAMEWORK 

On  3 October  1989  the  Council  adopted  Directive  89/552/EEC  on  the  coordination  of 
certain provisions laid down by law, regulation or administrative  action in Member  States 
concerning  the  pursuit  of  television  broadcasting  activities.  This  directive  provides  for 
measures  which  promote  the  distribution  and  production  of  European 
television 
programmes,  as well  as measures  concerning  advertising  and  sponsorship,  the  protection 
of minors and the right of reply. 

in  respect  of  cross-border  satellite 
However,  achievement  of 
broadcasting and cable retransmission  of programmes from  other Member States was still 
obstructed  by  differences  between  national  copyright  rules  and  by  some  degree  of  legal 
uncertainty  regarding the rights to be acquired. 

those  objectives 

Council  Directive  of  3 October  1989 on  the  coordination  of  certain  provisions  laid  down  by  law, 
regulation  or  administrative  action  in  Member  States  concerning 
television 
broadcasting  activities,  OJ  No  L 298  of  17 October  1989,  p. 23. 
OJ  No  L 248  of  6 October  1993, p.  15. 
Convention  of  5 May  1989. 

the  pursuit  of 

± 

The  Council,  therefore,  decided  to  supplement  the  legal  framework  established  by 
Directive 89/552/EEC  with  measures  concerning  copyright  and  neighbouring  rights  that 
were set out in Directive 93/83/EEC of 27 September  1993. 

In the satellite broadcasting  field,  that Directive, which is based on Articles 57(2) and  66 
of  the  Treaty,  is  designed  to  promote  freedom  to  broadcast  programmes  in  the 
Community  by reducing  the  disparities  between  national  rules  relating  to  copyright  and 
neighbouring  rights  and  by  removing  the  legal  uncertainty  regarding  the  rights  to  be 
acquired  through  the  inclusion  of  définitions  of  the  concepts  of  communication  to  the 
public by satellite at Community  level and of the place where this act of  communication 
occurs. 

Directive 93/83/EEC  abolishes  in  the  copyright  field  the  difference  in  legal  terms 
between communication to the public by direct satellite and communication to the public 
by  communications  satellite.  Furthermore,  where  programme-carrying  signals  are 
encrypted  and  the means  for  decoding  them  are made  available  to the  general  public  by 
the  broadcasting  organization  or  with  its  consent,  the  Directive  deems  this  to  be 
communication to the public by satellite. 

As already mentioned, the Directive defines  communication to the public by satellite and 
the place of such an act, so as to prevent  cumulative  application  of the laws of a number 
of  countries  to  a  single  act  of  broadcasting;  the  contractual  acquisition  of  exclusive 
broadcasting  rights should  comply  with the legislation  on copyright and related  rights  in 
force  in the Member State in which communication to the public by satellite occurs. 

By  deeming  them  to  have  occurred  in the  Community  if  certain  conditions  are  met,  the 
Directive  also  takes  account  of  communications  to  the  public  by  satellite  from  a  third 
country which does not guarantee the same level of protection. 

Under  the  Directive,  Member States  are to  provide  for  the  author  to  have  the  exclusive 
right  to  authorise  the  communication  to  the  public  by  satellite  of  works  protected  by 
copyright;  such authorization  may be acquired  only  by agreement,  and  arrangements  are 
laid  down  regarding  collective  agreements  concluded  between  collecting  societies  and 
broadcasting  organizations. 

For  the  purposes  of  communication  to  the  public  by  satellite,  the  rights  of  performers, 
phonogram  producers  and  broadcasting  organizations  are  protected  in  accordance  with 
Articles 6, 7, 8 and  10 of Directive 92/100/EEC.4 

On  one  issue  only -  the  rights  of  performers  and  phonogram  producers  regarding 
communication  to  the  public  by  satellite -  Directive 93/83/EEC  provides  for  minimum 
protection,  stipulating  that  Member States may  provide  for  more  far-reaching  protection 
for  holders  of  rights  related 
than  that  required  by  Article 8  of 
Directive 92/100/EEC (Article 6 of Directive 93/83/EEC). 

to  copyright 

Council  Directive  of  19 November  1992  on  rental  right  and  lending  right  and  on  certain  rights 
related  to  copyright  in  the  field  of  intellectual  property,  OJ No L 346  of  27 November  1992, 
p. 61. 

Finally, Directive 93/83/EEC contains transitional  provisions applicable to agreements  in 
force. 

3. 

WORK  CARRIED OUT BY THE COUNCIL OF EUROPE 

(a) 

Negotiating directives given by the Council to the Commission 

In  1987 a committee  of legal experts on the media was entrusted  with the task  of 
compiling  information  on matters relating to copyright and neighbouring rights in 
the  satellite  broadcasting  field;  in  1991  it  was  decided  to  draw  up  a  specific 
convention on this  subject. 

The  Commission  participated  in  this  work  on  behalf  of  the  Community  and  in 
consultation with Member States on the basis of negotiating  directives given it by 
the  Council.  Those directives  called  for  the  conclusion  of a convention  that  was 
consistent  with  the  principles  contained  in  Directive 93/83/EEC  regarding  rights 
of authors, performers,  phonogram  producers and  broadcasting  organizations  and 
for  the  inclusion  in  that  convention  of  clauses  permitting 
the  European 
Community's  accession  and  guaranteeing  the  application  of  Community  rules 
between the members of the Community. 

(b) 

Progress of work and adoption of the Convention 

Each  meeting  of  the  Council  of  Europe's  group  of  experts  was  preceded  by 
coordination  meetings  at  Community 
the 
Commission  sent  the  Council  of  Europe  a  letter  containing  the  Community's 
requests for amendments to the draft  convention. 

level.  On  24 September  1993 

Following  acceptance  of  those  amendments,  a  final  coordination  meeting  at 
Community 
level  took  place  on  9 February  1994.  At  that  meeting,  the 
Member States' representatives agreed that the draft  convention should be adopted 
and  opened  for  signing  at  the  meeting  of  the  Council  of  Europe's  Committee  of 
Ministers  scheduled  for  16 February;  in  addition,  they  undertook  not  to  proceed 
with the signing of the Convention before the Council of the European Union had 
adopted  a position based on a Commission  communication  concerning  the  results 
of  the  negotiations  and  the  action  to  be  taken  by  Member States  and  the 
Community. 

The  representatives  of  the  Ministers  of  the  Council  of  Europe  adopted  the 
Convention  at  their  meeting  on  16 February  1994,  and  on  11  May  1994  the 
Convention  was  opened 
the 
Council of Europe, the other countries party to the European Cultural  Convention 
and the European  Community. 

the  member countries  of 

for  signing  by 

(c) 

Content of the Convention 

For  the  purposes  of  copyright  and  neighbouring  rights,  the  Convention  treats 
signals  transmitted  by  fixed  service  satellite  under  conditions  permitting  direct 
reception  by  the  general  public  as  direct  broadcasting  by  satellite.  Furthermore, 
where  programme-carrying  signals  are  transmitted  in  encrypted  form  and  the 
means  for  decoding the broadcast  are made available to the general public  by, or 
with  the  consent  of,  the  broadcasting  organization,  such  transmissions  are  also 
deemed to be an act of broadcasting. 

The  Convention  defines  an act of broadcasting  and designates  the  law  applicable 
to  transmissions  of  works  and  other  contributions  it  covers  by  reference  to  the 
place  of  origin  of  the  communication  to  the  public,  which  is  defined  in  the 
Convention. 

The  Convention  also  takes  account  of  transmissions  originating  in  a  country 
which  is  not  party  to  it  and  whose  law  does  not  provide  the  same  level  of 
protection  for  right-holders,  by  stipulating  that  such  transmissions  are  to  be 
deemed,  subject  to  certain  conditions, to  originate  in a country  which  is party  to 
the Convention. 

The  Convention  further  stipulates  that  authors  have  the  exclusive  right  to 
authorise  the  broadcasting  of  their  protected  works  in  accordance  with  the 
provisions  of  the  Berne Convention  for  the  Protection  of  Literary  and  Artistic 
Works (Paris Act,  1971).  Rights for the cross-frontier  broadcasting of such works 
by  satellite  are  acquired  contractually;  rules  are  laid  down  regarding  collective 
agreements 
broadcasting 
organizations. 

concluded  between 

collecting 

societies 

and 

for  holders  of 
The  Convention  also  provides  for  minimum  protection 
neighbouring  rights  in  accordance  with  the  provisions  of  the  Rome  Convention 
for  the  Protection  of  Performers,  Producers  of  Phonograms  and  Broadcasting 
Organizations  (1961).  That minimum protection is supplemented  by a number of 
rules  designed  to  achieve  a  more  harmonized  level  of  protection  for  holders  of 
neighbouring rights in the specific field of cross-frontier  broadcasting by satellite. 
None of those provisions prevents countries that are party to the Convention  from 
providing more favourable  protection for the right-holders  concerned. 

In  addition  to  the  provisions  traditionally  found  in  this  type  of  convention 
international  agreements  or 
(multilateral  consultations,  amendments,  other 
arrangements, and final clauses), the Convention provides for a transitional  period 
to enable existing contracts to be adapted to the new rules, particularly  in the case 
of international  co-productions. 

It  is  further  stipulated  that,  in  their  mutual  relations,  parties  to  the  Convention 
who  are members  of the  European  Community  will  apply  Community  rules  and 
will  not  apply  those  arising  from  the  Convention  unless  there  is  no  Community 
rule governing the particular subject  concerned. 

The  Convention  is  open  for  signing  by  the  member  countries  of  the  Council  of 
Europe,  the  other  countries  party  to  the  European  Cultural  Convention  and  the 
European  Community. 
It  will  come  into  force  on  the  first  day  of  the  month 
following  the  expiry  of  a  period  of  three months  after  the  date  on  which 
seven countries,  including  at  least  five  member countries  of  the  Council  of 
Europe, have expressed their consent to be bound by the Convention. 

Application  of the Convention  by the parties to it is not of such a kind  as to  alter 
the  protection  of  copyright  and  neighbouring  rights  in  the  field  of  cross-frontier 
broadcasting  by  satellite  afforded  by  those  parties,  under  the  Agreement  on 
Trade-related  Aspects  of  Intellectual  Property  Rights  (TRIPs),  to  the  other 
signatories  to  the  Agreement  establishing  the  World  Trade  Organization.  The 
Community  must, in any event, ensure that application  of the Convention  is  fully 
consistent  with  the  provisions  of  the  TRIPs  Agreement,  and  in  particular  the 
national-treatment  and most-favoured-nation  clauses. 

4. 

COMPETENCE IN CONNECTION WITH THE CONCLUSION OF THE CONVENTION 

It will be seen from  the above that the Convention  seeks to extend to European  level the 
pursuit  of the objectives  set regarding  satellite broadcasting  in the context  of  intellectual 
property  by  Directive 93/83/EEC  on  the  basis  of  Articles 57(2)  and  66  of  the  Treaty. 
The 
scope  of 
Directive 93/83/EEC. 

subject-matter  of 

the  Convention 

largely  within 

falls 

the 

In  its  Opinion  1/94,  delivered  on  15 November  1994,  on  the  division  of  competence 
between  the  Community  and  the  Member States  regarding  the  conclusion  of  the  WTO 
Agreement  and  its  annexes,  the  Court  of  Justice  confirmed5  the  application,  in  the 
intellectual  property  sphere,  of  the  AETR  judgment,  delivered  on  31 March  1971  in 
Case 22/70.6 

In  that  judgment,7  the  Court  stressed  that  the  Community's  authority  to  enter  into 
international  agreements  arose  not  only  from  an  express  conferment  by  the  Treaty  but 
could  equally  flow  from  other  provisions  of  the  Treaty  and  from  measures  adopted, 
within the framework  of those provisions, by the  Community  institutions:  "In  particular, 
each time the  Community,  with  a view to  implementing  a common  policy  envisaged  by 
the Treaty, adopts provisions  laying down common rules, whatever form  these may take, 
the  Member States  no  longer  have  the  right,  acting  individually  or  even  collectively,  to 
undertake  obligations  with  third  countries  which  affect  those  rules.  As  and  when  such 
common rules come into being, the Community alone is in a position to assume and carry 
out  contractual  obligations  towards  third  countries  affecting  the  whole  sphere  of 
application of the Community legal system." 

Paragraph  102 of  Opinion  1/94. 
[1971]  ECR263. 
Paragraphs  16,  17 and  18 of  the  AETR  judgment. 

According to the Court,8 to the extent to which Community rules are promulgated  for  the 
attainment  of  the  objectives  of  the  Treaty,  the  Member States  cannot,  outside  the 
framework  of  the  Community  institutions,  assume  obligations  which  might  affect  those 
rules or alter their scope. 

In transposing  the principles  laid  down  by the  Court to the European Convention,  it can 
be  concluded  that,  since  the  subject-matter  of  that  Convention  falls  to  a  large  extent 
wkhin  the  scope  of  Directive 93/83/EEC,  the  Community  has,  since  the  date  on  which 
that Directive came into force, been empowered to the same extent to negotiate and agree 
the  Convention.  These  Community  powers  exclude  the possibility  of  concurrent  powers 
on  the  part  of  Member States,  since  any  steps  taken  outside  the  framework  of  the 
Community  institutions would be incompatible with the unity of the common market and 
the uniform  application of Community law.9 

However, this conclusion  must be qualified  in the light of Opinion 2/91, delivered by the 
International  Labour 
Court  on  19 March  1993,  on  Convention No  170  of 
Organization  (ILO)  concerning  safety  in  the  use  of  chemicals  at  work.10  That 
qualification  relates  to  the  protection  of  the  rights  of  performers  and  phonogram 
producers  in  connection  with  communication  to  the  public  by  satellite.  As  pointed  out 
above,  Directive 93/83/EEC  provides  in this  context  for  minimum  protection  and  gives 
Member  States 
those 
right-holders. 

the  option  of  providing  more  far-reaching  protection  for 

the 

In  Opinion 2/91,  the  Court, having  noted  that  Convention No  170 of the  ILO  fell  within 
the  Community's  area  of  competence,  took  the  view  that  that  competence  could  not  be 
exclusive  since  the  Community  rules  adopted  in  that  connection  laid  down  minimum 
requirements.11  On the basis of that conclusion, the Court pointed out that the provisions 
of  Convention No  170  are  not  of  such  a  kind  as  to  affect  rules  adopted  pursuant  to 
Article  118a.  If,  on the  one hand, the  Community  decides to  adopt  rules  which  are  less 
stringent  than  those  set  out  in  an  ILO convention,  Member States  may,  in  accordance 
with  Article  118a(3),  adopt  more  stringent  protective  measures  as  regards  working 
conditions or apply to that end the ILO convention.  If,  on the other hand, the  Community 
those  provided  for  under  an 
decides 
ILO convention,  there  is  nothing  to  prevent  full  application  of  Community  law  by  the 
Member States  under  Article  19(8)  of  the  ILO Constitution,  which  allows  members  to 
in  conventions  or 
adopt  more  stringent  measures 
recommendations  adopted by that  organization. 

to  adopt  more  stringent  measures 

those  provided 

than 

than 

for 

Paragraph  22 of the AETR judgment. 
Paragraphs  30 and  31 of the AETR judgment. 
[1993]  ECR  1061. 
Paragraphs  18 and 21 of  Opinion 2/91. 

In  transposing  the  Court's  line  of  argument  in  Opinion 2/91  to  the  situation  under 
examination,  it should  be noted that the conclusion  of an international  convention  of the 
type in question cannot be of such a kind as to affect  rules adopted at Community  level as 
regards  the  particular  aspect  - mentioned  above  - of  protecting  the  rights  of  performers 
and phonogram producers in connection with communication to the public by satellite.  If 
the Convention provides for more far-reaching  protection than the Community  Directive, 
Member States  may  apply  the  Convention  without  infringing  the  Directive  since  that 
Directive  provides  for  minimum  protection. 
If,  on  the  other  hand,  the  Convention 
provides  for  less  far-reaching  protection,  there  is  nothing  to  prevent  full  application  of 
Community  law  by  Member States  because  Article  1 of  the  Statute  of  the  Council  of 
Europe  stipulates  that  the  participation  of  members  in  the  Council's  work  should  not 
affect  their contribution to the work of international unions to which they are party. 

It is clear from  the above that the powers to conclude the Council  of Europe  Convention 
described above belong jointly to the Community and its Member States. 

5. 

PROCEDURE  WHEREBY THE  COMMUNITY  CAN CONCLUDE THE  CONVENTION 

Under Article  10 of the Convention, the Member States of the Council  of Europe and the 
other  States  party  to  the  European  Cultural  Convention,  and  the  European  Community 
may express their consent to be bound by: 

(a) 

signature without reservation as to ratification,  acceptance or approval, or 

(b) 

signature subject to ratification,  acceptance or approval. 

The  number  of  Member States  which  have  signed  the  Convention  is  not  very  high  at 
present, so it would  seem premature  for the Community  to sign the instrument  without  a 
reservation as to approval. 

The  Community  should  approve  the  Convention  at  a  later  stage,  at  a  time  chosen  to 
reflect  the  desire  for  coordinated  action  between  the  Community  and  those  of  its 
Member States ready to conclude the Convention in the near  future. 

Nevertheless,  to  mark  the  Community's  presence  within  the  Council  of  Europe  and  to 
underscore the importance it attaches to the Convention, the Council  should now sign the 
instrument, subject to approval. 

6. 

PROPOSAL 

Accordingly, it is proposed that the Council: 

decide to sign, subject to approval, the European Convention relating to  questions 
on  copyright  law  and  neighbouring  rights  in  the  framework  of  transfrontier 
broadcasting  by  satellite  where  matters  falling  within  the  scope  of  Community 
law  are  concerned  and,  to  that  end,  authorize  the  President  of  the  Council  to 
designate the person or persons authorized to sign the instrument; 

decide  at  a  later  stage  to  approve  the  Convention  on  the  basis  of  Articles 57(2) 
and  66, read  in conjunction  with the first sentence  of Article 228(2)  and  the first 
subparagraph  of  Article 228(3)  of  the  Treaty,  after  consulting  the  European 
Parliament. 

Proposal for a Council Decision authorizing the signing, 
on behalf of the European Community, of the European Convention 
relating to questions on copyright law and neighbouring rights 
in the framework of transfrontier broadcasting by satellite 

The Decision of the Council of the European Union will take the form of a statement to 
be entered in the minutes of its meeting. 

"At the meeting on 

, the Council of the European Union decided: 

• 

• 

to  sign,  subject  to  approval,  on  behalf  of  the  Community,  the  European 
Convention  relating  to  questions  on  copyright  law  and  neighbouring  rights  in 
the framework  of transfrontier  broadcasting by satellite, adopted by the Council 
of Europe on 16 February 1994; 

to  authorize  its  President  to  designate  the  persons  authorized  to  sign  the 
Convention. 

The text of the European Convention is annexed to this Decision. " 

Proposal for a Council Decision approving the European Convention 
relating to questions on copyright law and neighbouring rights 
in the framework of transfrontier broadcasting by satellite 

THE COUNCIL OF THE EUROPEAN UNION, 

9 6 | o o1  ^ 

( C M S\ 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Articles 57(2) and 66, read in conjunction  with the first sentence of Article 228(2) and 
the first  subparagraph of Article 228(3) thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament, 

Whereas  Council  Directive 93/83/EEC  of  27 September  1993  on  the  coordination  of 
certain rules concerning copyright and rights related to copyright applicable to satellite 
broadcasting  and cable retransmission,1  which is based  on Articles 57(2) and 66 of the 
Treaty,  is designed  to promote  freedom  to broadcast  programmes  in the  Community; 
whereas, to that end,  it reduces the disparities between national rules relating to copy 
right and neighbouring rights and removes the legal uncertainty  regarding the rights to 
be  acquired  by  defining  communication  to  the public  by  satellite  at  Community  level 
and the place of the act of communication; 

Whereas  the  European  Convention  relating  to  questions  on  copyright  law  and 
neighbouring  rights  in the  framework  of transfrontier  broadcasting  by  satellite,  which 
was adopted by the Council of Europe on 16 February  1994 and signed by the Council 
of the Union on behalf of the European Community on 
, is designed 
to  extend  to  European level  the  pursuit  of  the  objectives  set  by  Directive 93/83/EC 
regarding satellite broadcasting in the intellectual property sphere; 

Whereas,  according  to  the  AETR  case-law  of  the  Court of Justice,2  each  time  the 
Community,  with  a view to  implementing  a common policy  envisaged  by  the  Treaty, 
adopts  provisions  laying  down  common  rules,  whatever  form  these  may  take,  the 
Member States no longer have the right,  whether acting individually  or collectively, to 
undertake  obligations  with  third  countries  which  affect  those  rules;  whereas,  as  and 
when  such  common  rules  come  into  being,  the  Community  alone  is  in  a  position  to 
assume  and  carry  out  contractual  obligations  towards  third  countries  affecting  the 
whole sphere of application of the Community legal system;3 

Whereas  the  subject-matter  of  the European  Convention  falls  largely  within the scope 
of Directive 93/83/EEC; 

O J N o L 2 4 8,  p.  15. 
Judgment  delivered  on  31 March  1971  in  Case 22/70  ([1971]  ECR 263)  and  confirmed  by  the 
Court  of  Justice  in  its  Opinions 2/91  of  19 March  1993  ([1993]  ECR  1061)  and  1/94  of 
15 November  1994, not yet  published. 
Paragraphs  17 and  18 of the AETR judgment. 

^O 

Whereas  it  follows  that  the  powers  to  conclude  the  above-mentioned  European 
Convention belong jointly to the Community and its Member States; 

the  Convention  should, 

Whereas 
the 
European Community  in respect of those fields  falling  within the scope of Community 
law, 

therefore,  be  approved  on  behalf  of 

HAS DECIDED AS FOLLOWS: 

Article 1 

The  European  Convention  relating  to  questions  on  copyright  law  and  neighbouring 
rights in the framework  of transfrontier  broadcasting by satellite is hereby approved on 
behalf of the European Community. 

The text of the Convention is attached to this Decision. 

Article 2 

The President of the Council is hereby authorised to deposit this instrument of approval 
with the Secretary General of the Council of Europe. 

Done at Brussels, 

For the Council 
The President 

n  '1 

COUNCIL OF EUROPE 

European Convention relating to questions on copyright law and 
neighbouring rights in the framework  of transfrontier  broadcasting by 
satellite 

Strasbourg,  11.5.1994 

European  Treaty  Series  /153 

1Z 

Preamble 

The  member  States  of  the  Council  of  Europe  and  the  other  States  Party  to  the  European 
Cultural Convention, signatory hereto, 

Considering  that the  aim  of the  Council  of Europe  is to achieve  a greater  unity  between  its 
members  for  the  purpose  of  safeguarding  and  realising  the  ideals  and  principles  which  are 
their common heritage and facilitating their economic and social progress; 

Recalling  their  commitment  to  freedom  of expression  and  information  and the  free  flow  of 
information  and ideas as expressed,  in particular,  in the Declaration  of 29 April  1982 of the 
Committee  of  Ministers  of  the  Council  of  Europe  on  the  freedom  of  expression  and 
information; 

Bearing  in mind  the  concerns  which  inspired  the  adoption,  by the  Committee  of  Ministers, 
of  Recommendation  No.  R  (86)  2  on  principles  relating  to  copyright  law  questions  in  the 
field  of television by satellite and cable, notably the need to safeguard  the rights and interests 
of authors and other contributors when protected works and other contributions are broadcast 
by satellite; 

Having  regard  to  technical  developments,  in  particular  in  the  field  of  broadcasting  by 
satellite,  which  have  resulted  in  the  blurring  of  the  technical  differences  between  direct 
broadcasting  satellites  and  fixed  service  satellites,  making  it  necessary  to  consider  further 
legal  aspects  of  broadcasting  by  satellite  from  the  viewpoint  of  copyright  law  and 
neighbouring rights; 
Bearing in mind, at the same time, the need not to hamper these new technical  developments 
as well as the interest of the general public in having access to the media; 

Concerned  to promote the broadest possible harmonisation  of the law of the member  States, 
and  the  other  States  Party  to  the  European  Cultural  Convention,  on  copyright  and  neigh 
bouring  rights  with  regard  to  new  technical  developments  in  the  field  of  broadcasting  by 

satellite, 

Have agreed as follows: 

For the purposes of copyright and neighbouring rights: 

13 

Chapter I - The notion and act of broadcasting 

Article  1 - The notion of broadcasting 

1.  The  transmission  of  works  and  other  contributions  by  direct  broadcasting  satellite  is 
broadcasting. 

2.  The  transmission  of  works  and  other  contributions  by  fixed  service  satellite  under 
conditions which, as far as individual direct reception by the general public is concerned, are 
comparable to those prevailing in the case of direct broadcasting satellites, shall be treated as 
broadcasting. 

3.  The  transmission  of  programme-carrying  signals  in  encrypted  form  is  considered  to  be 
broadcasting, in cases where the means for decoding the broadcast  are made available to the 
general public by the broadcasting organisation, or with its consent. 

Article 2 - The act of broadcasting 

An  act  of  broadcasting  by  satellite  shall  be  considered  to  comprise  both  the  up-link  to  the 
satellite and the down-link to the earth. 

Chapter II -The  applicable law 

Article 3 - The applicable law 

1. A transmission  of works  and other  contributions  covered  by Article  1 occurs  in the  State 
Party  in the  territory  of which  the transmission  originates  and,  therefore,  shall  be  governed 
exclusively by the law of that State. 

2. The State Party in the territory  of which the transmission  originates means the State Party 
in which  the  programme-carrying  signals  transmitted  by  satellite  are  introduced,  under  the 
control  and  responsibility  of  the  broadcasting  organisation,  into  an  uninterrupted  chain  of 
communication via the up-link and down to the earth. 

3.  When  the transmission  originates  in  a  State  which  is not  a party  to this  Convention,  the 
law of which does not provide the level of protection of right holders  foreseen  in Articles 4 
and  5  of  this  Convention,  and  when  the  programme-carrying  signals  are  transmitted  by 
satellite from  an up-link  station situated in a State Party to this Convention, the transmission 
shall  be  deemed  to  originate  in the  State  Party  concerned.  Such  shall  also  be  deemed  to  be 
the case when  a broadcasting  organisation  established  in a State Party  to this Convention  is 
responsible for the transmission. 

Article 4 - Copyright 

1. Authors  of  works  mentioned  in  Article  2 of  the  Berne  Convention  for  the  Protection  of 
Literary  and  Artistic  Works  shall,  as  far  as  transfrontier  broadcasting  by  satellite  is 
concerned,  be  protected  in  conformity  with  the  provisions  of  that  Convention  (Paris  Act, 
1971). In particular,  rights for  transfrontier  broadcasting  by  satellite  concerning  such  works 
shall be acquired  contractually. 

2.  Subject  to the provisions  of paragraph  3 and where the relevant applicable  law  according 
to Article 3 of this Convention has already provided  so on the date of opening  for  signature 
of this Convention,  a collective  agreement  concluded  with a broadcasting  organisation  for  a 
given category  of works may be extended to right-holders of the same category who are not 
represented, on the following  conditions: 

-  a non-represented  right-holder,  at any time, shall  have the possibility  of  excluding,  in  his 
respect,  the  effect  of  an  extended  collective  agreement  and  of  exercising  his  rights  on  an 
individual  basis.  He  may  do  so  himself  or  through  a  collective  organisation  entitled  to 
manage his rights; 

- the transmission by satellite shall simulcast a terrestrial broadcast by the same broadcasting 
organisation. 

3  The  preceding  paragraph  shall  not  apply  to  cinematographic  works,  including  works 
created by a process analogous to cinematography. 

4  Where  a  State  Party's  legislation  provides  for  the  extension  of  a  collective  agreement  in 
accordance  with  the  provisions  of  paragraph  2,  that  State  Party  shall  determine  the 
broadcasting organisations entitled to avail themselves of such legislation 

Article 5 - Neighbouring rights 

1.  As  far  as  transfrontier  broadcasting  by  satellite  is  concerned,  performers,  producers  of 
phonograms  and  broadcasting  organisations  from  States  Parties to this  Convention  shall  be 
protected,  as a minimum, in accordance with the provisions of the Rome Convention  for  the 
Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961 ) 

2.  However,  for  the  purposes  of the present  Convention,  the  rights  of performers  regarding 
the fixation  and the reproduction  of their  performance  shall  be exclusive  rights to  authorise 
or prohibit. The same applies to the rights of performers  concerning the broadcasting and the 
communication  to  the  public  of  their  performance,  except  where  the  performance  is  itself 
already a broadcast performance  or made from  a fixation. 

3. A State Party shall not avail itself of the faculty provided for under Article  19 of the Rome 
Convention  for  the  Protection  of  Performers,  Producers  of  Phonograms  and  Broadcasting 
Organisations (1961). 

4. Without prejudice  to the provisions of the preceding paragraph, a State Party may provide 
that the signing of a contract concluded between a performer  and a film producer  concerning 
the  production  of  a  film  has  the  effect  of  authorising  the  acts  mentioned  in  the  preceding 
paragraph  provided  that  such  contract  provides  for  an equitable  remuneration  which  cannot 
be waived by the  performer. 

5.  For  the  purposes  of  this  Convention,  when  phonograms  published  for  commercial 
purposes, or reproductions thereof, are used for transfrontier  broadcasting by satellite, States 
Parties  shall  provide  a right  under  their  national  legislation  in  order  to  ensure  that  a  single 
equitable  remuneration  is  paid  by  the  broadcasting  organisation  concerned  and  that  this 
remuneration is shared between the relevant performers  and producers of such phonograms. 

-1-T 

Chapter III - Field of application 

Article 6 - Retransmission 

The  simultaneous,  complete  and  unchanged  retransmission  by  terrestrial  means  of 
broadcasts by satellite are not, as such, covered by this Convention. 

Chapter IV-  Multilateral consultations 

Article 7 - Multilateral  consultations 

1. The Parties shall, within two years from  the entry into force  of this Convention  and every 
two  years  thereafter,  and,  in  any  event,  whenever  a  Party  so  requests,  hold  multilateral 
consultations  withn  the  Council  of  Europe  to  examine  the  application  of  this  Convention 
and  the  advisability  of  revising  it  or  extending  any  of  its  provisions.  These  consultations 
shall take place at meetings convened by the Secretary General of the Council of Europe. 

2.  Each  Party  shall  have  the  right  to  appoint  a  representative  to  participate  in  these 
consultations. Any  State referred  to in Article  10 of this Convention, which is not a party to 
the  Convention,  and the European  Community,  shall  have the right to be represented  by  an 
observer in these consultations. 

3.  After  each  consultation,  the  Parties  shall  forward  to  the  Committee  of  Ministers  of  the 
Council  of  Europe  a  report  on  the  consultation  and  on  the  functioning  of  the  Convention, 
including, if they consider it necessary, proposals for the amendment of the Convention. 

Chapter V - Amendments 

Article 8 - Amendments 

1.  Any  proposal  for  the  amendment  of  this  Convention  made  in  accordance  with  the 
provisions  of Article  7, paragraph  3, of this  Convention,  shall  be  subject  to the  approval  of 
the  Committee  of  Ministers  of  the  Council  of  Europe.  After  its  approval,  the  text  shall  be 
forwarded  to the Parties for acceptance. 

2.  Any  amendment  shall  enter  into  force  on  the  thirtieth  day  after  all  the  Parties  have 
informed  the Secretary General of their acceptance thereof. 

Chapter  VI - Other international agreements or arrangements 

Article 9 - Other international agreements or arrangements 

1. In  their  mutual  relations,  Parties  which  are  members  of  the  European  Community  shall 
apply Community rules and shall not therefore  apply the rules arising from  this  Convention, 
except in so far as there is no Community rule governing the particular subject  concerned. 

AG 

2. Parties reserve the right to enter into international  agreements  among themselves  in so  far 
as  such  agreements  grant  to  authors,  performers,  producers  of  phonograms  or  broadcasting 
organisations at least as extensive protection of their rights as that granted by this Convention 
or contain other provisions supplementing this Convention or facilitating  the application of its 
provisions.  The provisions of existing agreements which  satisfy  these conditions  shall remain 
applicable. 

3. Parties which avail themselves of the faculty  provided  for  in the preceding paragraph  shall 
notify  the  Secretary General  of the Council  of Europe who  shall transmit  this notification  to 
the other Parties to this Convention 

Article  10 - Signature and entry Into force 

Chapter VII- Final clauses 

1  This  Convention  shall  be  open  for  signature  by  the  member  States  of  the  Council  of 
Europe and the other States party to the European Cultural Convention, and by the European 
Community, which may express their consent to be bound by: 

a signature without reservation as to ratification,  acceptance or approval; or 

b  signature  subject  to  ratification,  acceptance  or  approval,  followed  by  ratification,  accep 
tance or approval. 

2  Instrument  of  ratification,  acceptance  or  approval  shall  be  deposited  with  the  Secretary 
General of the Council of Europe. 

3  The Convention  sha'l enter into force on the first day of the month following the expiration 
of  a  period  of  three  months  after  the  dare  on  which  seven  States,  of  which  at  least  five 
member  States  of the  Council  of  Europe,  have  expressed  their  consent  to  be  bound  by  the 
Convention  in accordance with the provisions of this article. 

4  In order  to  avoid  any delay in the implementation  of this  Convention,  a  State  may,  at  the 
time of signature or at any later date prior to the entry into force  of the Convention in respect 
of that  State, declare that it shall apply the Convention  provisionally. 

5.  In  respect  of  any  signatory  State,  or  the  European  Community,  which  subsequently 
expresses its consent to be bound by it, this Convention  shall enter  into force  on the first day 
of the month following  the expiration  of a period  of three months after  the  date of  signature 
or of the deposit of the instrument  of ratification,  acceptance or approval. 

Article  11. - Accession  by other  States 

1. After  the entry into force  of this Convention, the Committee of Ministers of the Council of 
Europe, after  consulting the Contracting  States, may invite any  State which is not  referred  to 
in  Article  10, paragraph  1, to  accede  to  the  Convention  by  a decision  taken  by the  majority 
provided  for  in Article  20 d  of the  Statute  of the  Council  of  Europe  and  by the  unanimous 
vote  of  the  representatives  of  the  Contracting  States  entitled  to  sit  on  the  Committee  of 
Ministers 

1  1 

2. In respect of any acceding State, the Convention  shall enter into force on the first day of 
the month following the expiration of a period of three months after the date of the deposit of 
the instrument of accession with the Secretary General of the Council of Europe. 

Article 12 - Territorial application 

1. Any State may, at the time of signature or when depositing its instrument  of ratification, 
acceptance,  approval  or  accession,  specify  the  territory  or  territories  to  which  this 
Convention shall apply. 

2. Any State may, at any later date, by declaration addressed to the Secretary General of the 
Council of Europe, extend the application of this Convention to any other territory  specified 
in the declaration.  In respect  of such territory the Convention  shall enter into force  on the 
first  day of the month following the expiration of a period of three months after  the date of 
receipt of such declaration by the Secretary General. 

3. Any declaration made under the two preceding paragraphs may, in respect of any territory 
mentioned  in  such  declaration,  be withdrawn  by  a  notification  addressed  to  the  Secretary 
General. Such withdrawal shall become effective  on the first day of the month following the 
expiration  of  a  period  of  six  months  after  the  date  of  receipt  of  the  notification  by  the 
Secretary General. 

Article 13 - Transitional arrangements 

A  State  shall,  at  the  time  of  signature  or  when  depositing  its  instrument  of  ratification, 
acceptance, approval or accession, specify what rules shall apply to existing contracts. These 
rules should provide in particular that: 

a. agreements concerning the exploitation of works and other protected subject matter which 
are  in force  on  1 January  1995  shall  be  subject  to  the  provisions  of  Article  3  as from 1 
January 2000, if they expire after that date; 

b. where an international co-production agreement concluded before  1  January 1995 between 
a co-producer from a State Party and one or more co-producers from other States Parties or 
a third  State expressly provides for  a system of division of exploitation rights between the 
co-producers by geographical  areas for  all means of communication  to  the public, without 
distinguishing the arrangement applicable to communication to the public by satellite from the 
provisions applicable to the other means of communication, and where communication to the 
public  by  satellite  of  the  co-production  could  prejudice  the  exclusivity,  in  particular  the 
language  exclusivity  of  one  of the  co-producers  or  his  assignees  in  a  given  territory,  the 
authorisation by one of the co-producers or his assignees for  a communication to the public 
by  satellite  shall  require  the  prior  consent  of  the  holder  of  that  exclusivity,  whether 
co-producer or assignee. 

Article 14 - Reservations 

No reservation may be made in respect of the provisions of this Convention. 

•18 

Article 15 - Notification  of legislation 

A  State,  the  legislation  of  which  provides  for  the  extension  of  collective  agreements,  as 
foreseen  in  Article  4  of  this  Convention,  shall,  at  the  time  of  signature,  ratification, 
acceptance  or  approval  in  accordance  with  Article  10,  paragraph  l.a  or  b,  notify  to  the 
Secretary  General  of the  Council  of  Europe the text  of the  said  legislation,  together  with  a 
list  of  broadcasters  entitled  to  avail  themselves  of  such  extended  collective  agreements. 
Thereafter,  the  State concerned  shall notify  the  Secretary  General  of the Council  of  Europe 
of any subsequent modification  of the said legislation and of the list of broadcasters  entitled 
to avail themselves of it. 

Article 16 - Denunciation 

1.  Any  Party  may,  at  any  time,  denounce  this  Convention  by  means  of  a  notification 
addressed to the Secretary General of the Council of Europe. 

2.  Such  denunciation  shall  become  effective  on  the  first  day  of  the  month  following  the 
expiration  of  a  period  of  six  months  after  the  date  of  receipt  of  the  notification  by  the 
Secretary General 

Article 17- Notifications 

The  Secretary  General  of  the  Council  of  Europe  shall  notify  the  member  States  of  the 
Council of Europe, the other States Party to the European Cultural Convention, the European 
Community  and  any  other  State  which  has  acceded  or  has  been  invited  to  accede  to  this 
Convention  of: 
a any signature in accordance with Article 10; 

b.  the  deposit  of  any  instrument  of  ratification,  acceptance,  approval  or  accession  in 
accordance with Articles  10 or  11 : 

c. any date of entry into force of this Convention in accordance with Articles  10 or  11; 

d. any notification  made in accordance with Articles  10, paragraph 4 and  15; 

e. any other act, declaration, notification  or communication relating to this Convention. 

In  witness  whereof  the  undersigned,  being  duly  authorised  thereto,  have  signed  this 
Convention. 

Done  at  Strasbourg,  this  11th  day  of  May  1994,  in  English  and  French,  both  texts  being 
equally authentic, in a single copy which shall be deposited  in the archives of the Council of 
Europe.  The  Secretary  General  of  the  Council  of  Europe  shall  transmit  certified  copies  to 
each  member  State  of  the  Council  of  Europe,  to  the  other  States  party  to  the  European 
Cultural  Convention, to the European  Community  and to any  State invited to accede to  this 
Convention. 

19 

ISSN 0254-1475 

COM(96) 6 final 

DOCUMENTS 

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06  16 

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ISBN 92-77-99481-9 

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