Report from the Commission Report from the European Commission on the application of Council Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission
Date: 2002-07-26
Institutions: European Commission
Subjects: European audiovisual area, broadcasting, cable distribution, copyright, free movement of programmes, national implementing measure, provision of services, satellite communications, television

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 26.07.2002
COM(2002) 430 final

REPORT FROM THE COMMISSION

REPORT FROM THE EUROPEAN COMMISSION ON THE APPLICATION OF
COUNCIL DIRECTIVE 93/83/EEC ON THE COORDINATION OF CERTAIN
RULES CONCERNING COPYRIGHT AND RIGHTS RELATED TO COPYRIGHT
APPLICABLE TO SATELLITE BROADCASTING AND CABLE
RETRANSMISSION

TABLE OF CONTENTS

1.

2.

2.1.

2.2.

Introduction.................................................................................................................. 3

Implementation of the Directive into national law ...................................................... 4

Implementation times................................................................................................... 4

Characteristics of implementation ............................................................................... 4

2.2.1.

Provisions relating to satellite broadcasting................................................................. 4

2.2.2.

Provisions relating to cable retransmission.................................................................. 4

3.

Practical application of the Directive........................................................................... 6

3.1.

Reminder of certain principles ..................................................................................... 6

3.1.1.

The footprint parameter in the management of copyright and related rights linked to
satellite broadcasting.................................................................................................... 6

3.1.2.

The specific nature of contractual relations in the context of cable retransmission .... 7

3.1.3. A more effective framework for the mediation process............................................... 8

3.2.

Reflections on the improvement of certain mechanisms ............................................. 9

3.2.1.

Facilitation of negotiations concerning cable retransmission ...................................... 9

3.2.2.

Introduction of a one-stop shop in the context of cable retransmission..................... 10

3.2.3. Rationalisation of the management of rights relating to the installation of shared

dishes.......................................................................................................................... 11

4.

4.1.

4.2.

5.

The future of the Directive in the context of new media ........................................... 13

Diversification of national broadcasting methods...................................................... 13

Diversification of cross-border retransmission methods ........................................... 13

Conclusion ................................................................................................................. 14

2

1. 

INTRODUCTION

Both  the  completion  of  the  internal  market  and  technical  developments  enabling  television
transmissions to be broadcast beyond national borders have led to the concept of a European
audiovisual  area,  as  embodied  in  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  activities1,  as  amended  by
Directive  97/63/EC  of  the  European  Parliament  and  of  the  Council  of  30  June  19972
(henceforth referred to as the "Television Without Frontiers" Directive.

This Directive lays down the legal framework for the free provision of television services in
the  European  Union,  with  a  view  to  fostering  the  development  of  a  European  market
(principles  of  the  freedom  to  receive  and  retransmit  television  programmes).  To  this  end,  it
coordinates  at  Community  level,  certain  provisions  of  the  Member  States  relating  to  the
exercise  of  certain  television  broadcasting  activities  in  areas  such  as  determining  the  law
applicable  to  broadcasting  bodies,  promoting  the  distribution  and  production  of  European
works,  access  to  major  events,  television  advertising,  sponsorship,  teleshopping,  the
protection of minors and public order, and the right of reply.

However, despite this instrument, the cross-border broadcasting of television programmes by
satellite and their retransmission by cable from other member States was still being hampered
by  a  degree  of  legal  uncertainty  arising  from  disparities  in  the  national  provisions  on
copyright. This legal framework had to be completed as regards copyright.

A  Community  audiovisual  area  could  not  in  fact  take  concrete  shape  without  effective
protection for copyright and related rights. Indeed, such protection is a factor which favours
the creation of new works within the European Union by enabling the right holders and users
to  benefit  fully  from  the  European  dimension  of  broadcasting.  Moreover,  this  protection,
which sometimes takes the form of an exclusive right, helps to avoid a situation in which right
holders are implacably opposed to the broadcasting or re-broadcasting of programmes beyond
national borders, and thus avoids fragmentation of the internal market.

The protection  of  rightholders had been  provided  for in international  agreements: the Berne
Convention  for  the  Protection  of  Literary  and  Artistic  Works  (as  amended  by  the  Paris
Convention) and the Rome Convention, which concerns the protection of authors, producers
of  phonograms  and  broadcasting  organisations.  However,  as  these  conventions  were  not
aimed  at  eliminating  the  obstacles  to  cross-border  broadcasting  created  by  differences
between  the  legislations  of  the  contracting  States,  Council  Directive  1993/83/EEC  of  27
September 19933 on the coordination of certain rules concerning copyright and rights related
to  copyright  applicable  to  satellite  broadcasting  and  cable  retransmission  (referred  to  in  the
text as the Directive) set out to ensure greater legal certainty, on a contractual basis, for two
transmission  methods  which  make  cross-border  broadcasting  possible,  namely  satellite
broadcasting and cable retransmission.

As the deadline for  the  implementation of  the Directive in  the national  legal systems of the
Member  States  was  1  January  1995,  its  impact  can  be  assessed  on  the  basis  of  a  certain

1

2

3

OJ L 298/23, 17.10.1989.
OJ L 202/60, 30.7.1997.
OJ L 248, 6.10.93.

3

                                                
duration of application, in accordance with Article 14(3) of the Directive. To this end, a study
carried  out  for  the  Commission  in  20004  and  numerous  contacts  during  2001  with
representatives  of  the  various  parties  affected  by  the  application  of  this  Directive  have
provided input for this report.

Recent  years  have  seen  the  media  and  technological  environment  undergo  major  changes
which have underlined the importance of satellite and cable in the broadcasting of television
programmes.  It  is  estimated that, in  2000, more than  50%  of  homes  in  the  European  Union
had  access  to  cable  (30.6%  were  subscribers),  and  that  20%  were  equipped  for  direct
reception via satellite or equivalent reception. It is also interesting to note that, taking cabled
homes and those with direct-reception satellite dishes together, an estimated 50% of homes in
the European Union receive a multi-channel television offering5.

Thus, in order to determine whether new guidelines will have to be adopted for the future, it is
essential  to  go  beyond  an  analysis  of  implementation  into  national  law  and  examine  the
practical application of the Directive. The future of this instrument also has to be gauged in
the light of the new media environment in which the programmes offered will represent a key
factor  in  the  competitive  arena.  More  than  ever  before,  it  will  be  a  question  of  providing
appropriate protection for the relevant copyright without jeopardising the benefits which are
inherent in a  genuine internal audiovisual market, both for the  economic operators active in
the sector and for a general public geared more and more towards a transnational market.

2. 

IMPLEMENTATION OF THE DIRECTIVE INTO NATIONAL LAW

The analysis relates to implementation times and to the content of national provisions.

2.1. 

Implementation times

to 

had 

Directive 

The 
1995.
However,  Belgium  was  the  only  Member  State  to  meet  that  deadline.  The  majority  of
implementations took place between 1995 and 1998, but Ireland and Luxembourg were late in
implementing their relevant measures, which did not enter into force until 1 January 2001 and
19 July 2001 respectively.

transposed 

January 

before 

be 

1 

Given  this  situation,  the  provisions  of  Article  7  of  the  Directive  governing  the  transition
between  the  old  national  systems  for  the  protection  of  copyright  and  related  rights  and  the
application of the country-of-origin principle for satellite broadcasting have still not yet been
transposed, the maximum period allowed being five years.

2.2. 

Characteristics of implementation

2.2.1.  Provisions relating to satellite broadcasting

The provisions  of  Articles  2  and  3  of  the  Directive  on  the  transfer  of  copyright  and  related
rights  with  regard  to  satellite  broadcasting  have  been  correctly  transposed  into  all  national
legislations.  However,  this  positive  statement  must  be  qualified  by  the  fact  that  their

4

5

by the AIDAA (Association Internationale des Auteurs de l'Audivisuel - International  Asssociation of
Audiovisual Writers and Directors) available at www.europa.eu/int/comm/internal_market
Statistical  Yearbook  2001  -  Film,  Television,  Video  and  New  Media  in  Europe.  Published  by  the
European Audiovisual Observatory.

4

                                                
application  by  the  interested  parties  is  not  in  line  with  the  country-of-origin  principle  laid
down in the Directive (see point 3.1.1).

It should be noted that the possibility, provided for in Article 3 of the Directive, of extending
a collective agreement to rightholders of the same category has been incorporated only in the
national  law  of  those  Member  States  where  such  an  extension  already  represented  a  well
established practice.

2.2.2.  Provisions relating to cable retransmission

– 

Articles 8, 9 and10

The  Directive  lays  down  the  principle  of  a  contractual  relationship  between  holders  of
copyright  and  related  rights  and  cable  operators  (Article  8),  with  the  former  being  able  to
exercise  their  exclusive  right  only  through  a  collecting  society  and  such  collective
management also benefiting non-members in the same category (Article 9).

The mandatory collective management of rights clearly impairs the freedom of rightholders,
in  that  the  transfer  of  their  rights  is  subject  to  regulation.  At  the  time  the  Directive  was
adopted, it fulfilled  a  need  for a balance between the  exercise  of  the  exclusive  right  and  an
assurance for the cable operator that all copyright and related rights had been acquired for the
programmes being retransmitted, due in particular to the extension of collective management
to  non-members,  which  guaranteed  the  cable  operator  complete  representation  of  the
collectively managed material.

Article 10 takes into account the particular situation of broadcasting organisations. These are,
in effect, both holders of exclusive rights to their own programmes and acquirers of rights for
the  initial  broadcasting  of  the  programmes  which  they  have  acquired.  In  this  context,  they
have  been  given  latitude  to  negotiate  the  acquisition  of  rights  for  the  retransmission  of
programmes, without rightholders being mandatorily represented by a collecting society.

The consequence of this alternative is that a broadcasting organisation may acquire all cable
retransmission rights and thus be the sole party dealing with the cable operator. To the extent
that  authors  retain  the  right  to  transfer  to  a  broadcasting  organisation  the  right  of
retransmission, the exercise of the transfer of this right must, within the framework of national
law, logically entail a negotiation, namely the acquisition of a consideration on the part of the
other party to the contract. In this case, it is the payment of a certain price by the broadcasting
organisation  to  the  rightholders  themselves  or  to  a  collecting  society  representing  them.
Collecting societies cannot demand a related payment from cable operators.

An examination of national legislation shows that the provisions of the Directive concerning
payment  in  respect  of  cable  retransmission  rights  have  been  correctly  transposed  in  all
Member States.

However, the full effect of Article 10, i.e. the existence of an alternative to the principle, set
out  in  Article  9,  of  negotiations  between  collecting  societies  and  cable  operators,  is
considerably  weakened  in  German  legislation.  The  introduction  of  the  right  to  an  equitable
remuneration  of  authors  which  can  be  paid  by  cable  operators  only  through  a  collecting
society does not allow a sole contract to be concluded between the broadcaster and the cable
operator and can make negotiations on cable retransmission more difficult in Germany than in
the other Member States.

– 

Articles 11 and 12

5

More  generally,  the  principles  of  mediation  and  good  faith  have  been  correctly  transposed,
taking account, in certain cases, of instruments already operational in some Member States.

For instance, in some Member States the mediator is understood to be an arbitration board or
committee made up of several members. In most cases, this terminology has no impact on the
organisation of mediation, as the solution remains an option and not a requirement. In other
countries,  third  parties  are  chosen  by  mutual  agreement  between  the  parties  concerned,
without any list having been drawn up in advance. An even more flexible system comprises
the  sole  obligation  to  negotiate,  which  does  not  rule  out  the  parties  having  recourse  to  a
mediator at a later stage.

As  the  principle  of  good  faith  is  a  legal  principle  in  a  number  of  Member  States,  its
implementation has not created any difficulties and has been complemented by the possibility
of  consulting  the  competent  authorities  to  find  out  about  cases  of  arbitrary  refusal  of
retransmission by cable, where such bodies were already in place prior to the entry into force
of the Directive.

The  examination  of  national  implementation  measures  has  thus  generally  produced
satisfactory  findings,  but  some  difficulties  are  directly  linked  to  the  practical  application  of
the Directive.

3. 

PRACTICAL APPLICATION OF THE DIRECTIVE

Generally speaking, it appears that the mechanisms put in place by the Directive contribute to
the  cross-border  broadcasting  of  television  programmes.  It  would  nevertheless  appear
worthwhile  to  reiterate  some  of  the  established  principles  and  to  present  lines  of  thought
aimed at improving some of the mechanisms.

3.1. 

Reminder of certain principles

3.1.1.  The footprint parameter in the management of copyright and related rights linked to

satellite broadcasting

The object of the Directive, with the definition of the notion of communication to the public
by satellite at Community level, was to put an end to the legal uncertainty regarding the rights
to  be  acquired,  by  specifying  the  place  where  the  act  of  communication  occurs  and  the
copyright  legislation  applicable  to  contractual  relations  regarding  the  transfer  of  rights.  The
applicable  law  is  that  of  the  Member  State  in  which  the  programme-carrying  signals  are
transmitted; its application extends beyond national borders into the Member States in which
the  signals  are  received  (although,  in  technological  terms,  the  footprint  covers  many  areas
other than those of the Member States, the term "footprint" in this Report refers only to the
territory of the Member States). This principle avoids the cumulative application of several

6

national  legislations  of  the  various  Member  States  covered  by  the  footprint  (recitals  14  and
15)6.

Recent  years  have  seen  a  proliferation  of  television  channels,  a  large  number  of  which  are
encrypted and accessible by subscription only. However, even if a viewer located outside the
Member State in which transmission is organised is prepared to make the requisite payment,
they often receive a  negative  response  from the broadcasting organisation concerned,  as the
latter  does  not  hold  the  copyright  relating  to  broadcasting  in  the  Member  State  in  question.
The absence of a transfer of rights may result in the absence of an economic interest on the
part of the broadcasting organisation in ensuring that its programmes are broadcast outside its
national market (given the reduced audience) or in the absence of a willingness to transfer on
the part of the rightholders.

This is a problem which affects the European citizen's direct perception of the reality of the
internal market in his daily life and which thus has an appreciable negative impact in terms of
cultural, linguistic, social and economic interpenetration at the intra-Community level.

It should be pointed out that viewers are unable to access not only programmes transmitted by
pay-TV  channels,  but  also  those  of  uncoded  channels,  which  include  not  only  private
broadcasting  organisations  but  also  public-service  broadcasters.  The  Commission  has
received  a  number  of  complaints  from  private  individuals,  as  well  as  questions  from  the
European Parliament on this subject.

A  trend  is  thus  emerging  whereby  producers  sell  their  programmes  to  broadcasting
organisations on condition that satellite transmissions are encrypted so as to ensure that they
cannot be  received  beyond  national  borders.  This  encryption  enables  producers  to  negotiate
the sale of the same programmes with broadcasting organisations in other Member States.

However, the principle laid down by the Directive, in keeping with the  logic  of  the internal
market,  envisages  the  transfer  of  rights,  under  the  law  of  the  country  in  which  the
communication is introduced, for the entire footprint: in practice, a transfer on a national basis
has the effect of fragmenting the market and runs counter to the principle of the Directive.

The  fact  that  the  Directive  provides  for  the  transmission  of  programme-carrying  signals
(Articles  1  and  2(c))  in  encrypted  form  does  not  lessen  the  scope  of  the  principle  of  the
transfer  of  the  rights  in  the  country  of  introduction  of  the  communication  for  the  entire
footprint:  whether  transmission  is  unscrambled  or  encrypted,  the  footprint  can  serve  as  the
basis for exploiting the rights.

6

(14)
Whereas the legal uncertainty regarding the rights to be acquired which impedes cross-border
satellite  broadcasting  should  be  overcome  by  defining  the  notion  of  communication  to  the  public  by
satellite at a Community level; whereas this definition should 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  by
satellite  occurs  only  when,  and  in  the  Member  State  where,  the  programme-carrying  signals  are
introduced under the control  and  responsibility  of  the  broadcasting  organisation  into  an  uninterrupted
chain of communication leading to the satellite and down towards the earth; whereas normal technical
procedures relating to the programme-carrying signals should not be considered as interruptions to the
chain of broadcasting;
Whereas the acquisition on a contractual basis of exclusive broadcasting rights should comply
(15)
with  any  legislation  on  copyright  and  rights  related  to  copyright  in  the  Member  State  in  which
communication to the public by satellite occurs;

7

                                                
It is particularly interesting to note that the encryption of programmes is a factor in favour of
fairer remuneration for rightholders, to the extent that a decoder has to be made available to
the viewer  (whether  a  subscription  has  been  paid  or  not),  which  makes  it  possible  to  check
very accurately the size of the actual audience.

The Commission  wishes to  emphasise  the full  scope of  the  law  applicable  in  the  context of
satellite broadcasting: the transfer of rights for a programme  applies for the entire footprint,
and  only  the  contractual  relations  between  the  rightholders  or  the  collecting  societies
representing  them  and  the  broadcasting  organisations,  relating  to  the  entire  footprint,  are
compatible with the principles of the internal market.

In  this  respect,  compliance  with  the  principle  of  the  Directive,  accompanied  by  the
development of  open-access or interoperable  systems,  as  well  as  the  growing  trend  towards
moderately  priced  reception  systems  (such  as  parabolic  antennas)  are  elements  which  are
likely to facilitate European citizens' access to television programmes broadcast by  satellite.
Furthermore,  the  battle  against  piracy  would  be  reinforced  in  that  the  illegal  use  of  certain
means (such as the illegal manufacture of chip cards or the distribution of access codes via the
Internet) would no longer provide the only way of accessing certain programmes.

Complete  application  of  the  principle  of  the  Directive,  which  involves  moving  beyond  a
purely  national  territorial  approach,  should  therefore  be  encouraged  in  order  to  allow  the
internal  market  to  be  a  genuine  market  without  internal  frontiers  for  rightholders,  operators
and  viewers  alike.  The  Commission  will  therefore  conduct  research  and  engage  in
consultations, in particular with the various sectors concerned, in order to determine how to
reconcile the different interests involved with the principle of the free movement of television
services.

3.1.2.  The specific nature of contractual relations in the context of cable retransmission

- The objective of the Directive is to ensure that audiovisual programmes are broadcast while
guaranteeing  remuneration  for  holders  of  copyright  and  related  rights,  on  the  basis  of  an
extended collective management system.

Some  rightholders  feel  they  are  in  part  adversely  affected  by  the  mandatory  collective
management  of  rights,  as  it  results  in  their  losing  income  and  is  not  conducive  to  the  best
possible defence of their own interests, such as could be achieved by individual negotiation.
To be sure, under its remit, a collecting society cannot seek to differentiate or to obtain greater
advantages for certain rightholders among those it represents.

However, an extended system of mandatory collective management ensures legal certainty as
regards  the  settlement  of  fees  for  all  rightholders  and  remains  an  essential  principle  in  the
context of retransmission by cable.

-  As  regards  the  alternative  introduced  by  Article  10,  this  introduces  a  degree  of  flexibility
which  should  meet  the  various  needs  of  the  parties  affected  by  cable  retransmission.  At  all
events, it is for the broadcasting organisation to decide whether or not to become involved in
the  transfer  of  cable  retransmission  rights  which  do  not  belong  to  it  as  such  and  whose
acquisition for a particular retransmission is directly incumbent upon the cable operator.

According  to  the  information  available  to  the  Commission,  it  would  appear  that  this
alternative  is  used  to  the  greatest  possible  extent  by  a  not  inconsiderable  number  of
broadcasting  organisations,  in  that  they  acquire  all  the  rights  relating  to  the  full  set  of

8

programmes, both for initial transmission and for  retransmission by  cable,  and are therefore
the sole party dealing with the cable operator.

In this situation, the position of some rightholders may appear more vulnerable, to the extent
that  they  are  not  mandatorily  represented  by  a  collecting  society.  This  fear  must  be
counterbalanced  by  the  principle  that  the  transfer  of  a  right  may  not  take  place  unless
equitable  remuneration7  is  obtained,  in  accordance  with  the  contractual  possibilities
introduced by Directive 93/83/EEC.

Thus, a right to remuneration which can be managed only by a collecting society considerably
lessens the scope of the instruments put in place by the Directive and would undoubtedly have
an  adverse  effect  on  the  internal  market  as,  depending  on  the  Member  State  in  which  the
retransmission take place, the rightholders would not be placed on an equal footing.

Furthermore, the mandatory involvement of a collecting society constitutes a constraint liable
to  militate  against  the  retransmission  of  programmes  emanating  from  other  Member  States,
while it ought to be possible for the  rightholder to  obtain equitable remuneration  within  the
framework of its contractual relations with the broadcasting organisation, simply by virtue of
a tariff schedule being drawn up and published by the national authorities.

The Commission therefore wishes to stress that the scope of Article 10 can only be complete
and its full effect achieved if all aspects of  the  right linked  to retransmission  by  cable  fulfil
both the management principles laid down in Article 9 and those of Article 10 of the Directive

3.1.3.  A more effective framework for the mediation process

Since  the  introduction  of  cable,  the  question  of  payment  for  rights  linked  to  retransmission
has occasionally given rise to serious disputes.

Given this situation, and in order to counterbalance the principle of collective management of
cable retransmission rights, the Directive incorporates the tool of mediation so as to enable a
neutral  person  to  become  involved  who  might  be  able  to  end  possible  disputes  and  the
temporary situations which they create.

This  principle,  which  is  in  line  with  contractual  freedom,  nevertheless  displays  real
weaknesses in actual practice.

– 

– 

Its implementation depends firstly on agreement between the parties on the choice of
mediator and the scope of the latter's remit, which is the subject of an initial round of
negotiations.  According  to  the  information  available  to  the  Commission,  some
disputes  have  been  ongoing  for  a  number  of  years  without  any  mediation  process
having been set in train.

It is therefore clear that in the absence of mandatory recourse to a mediation system,
this particular approach is liable to remain little used.

In  the  mediation  context,  it  is  the  good  faith  of  the  parties  to  the  dispute  that
determines  whether  the  process  runs  its  course  satisfactorily  and  leads,  within  a
reasonable timeframe, to a solution accepted by the two parties

7

Article 11(a) of the Berne Convention.

9

                                                
In some disputes, several years may elapse between notice of termination of contract
being  given  by  one  party  and  the  initiation  of  the  mediation  process,  during  which
time  negotiations,  followed  through  to  a  greater  or  lesser  extent,  may  take  place
between the parties, with the non-terminating party not always showing diligence in
its efforts to resolve the dispute.

It could therefore be appropriate to lay down, as is already the case in some Member
States, the action to be taken after the serving of notice to terminate a contract, with
reasonable  but  maximum  time  limits  being  stipulated  for  each  stage  before  the
mediation process, in the strict sense of the term, comes into play. If, at the end of the
set time limit, negotiations have not produced any results, and if no remuneration has
been  paid  to  the  rightholders,  it  could  be  arranged  that  the  portion  of  the  cable
operators'  revenue  corresponding  to  copyright  and  related  rights  in  the  terminated
agreement  is  impounded  in  order  to  maintain  the  balance  between  the  parties
involved.

Thus, the possibility of direct negotiation, without the involvement of a third party,
could be recognised over the course of a year, followed in the event of failure by a
time limit of six months to draw up the mediation agreement.

Another provision favouring the prompt implementation of the process would be an
obligation for national authorities to draw up and publish a list of mediators.

As  the  Commission  has  to  carry  out  a  study  on  new  legal  measures  for  settling
disputes,  such  as  mediation8,  this  mechanism  will  be  more  widely  adopted,  taking
due account of experience gained in the field of retransmission by cable.

3.2. 

Reflections on the improvement of certain mechanisms

3.2.1.  Facilitation of negotiations concerning cable retransmission

It has emerged from meetings between the various parties involved in retransmission by cable
and  the  Commission  departments  concerned  that  certain  difficulties  in  the  context  of
negotiations under Article 9 of Directive 93/83/EEC stem in particular from the large number
of negotiators who may be present on either side of the table in some Member States.

In  this  respect,  it  is  interesting  to  note  that  mechanisms  designed  to  facilitate  negotiations
have already been put in place in some Member States.

– 

Overall negotiations

Within  this  particular  framework,  the  parties  concerned  negotiate  on  retransmissions  as  a
whole:  collecting  societies  -  representing  authors,  performers  and  audiovisual  production
organisations - and broadcasting organisations on one side, cable operators on the other.

This set-up offers the advantage that it brings all the parties together and makes it possible to
establish  a  single  remuneration  for  a  particular  work.  Nevertheless,  negotiations  may  be
protracted, and if one party terminates the agreement the entire edifice collapses.

8

See  recital  46  of  Directive  2001/29/EEC  on  the  harmonisation  of  certain  aspects  of  copyright  and
related rights in the information society (OJ L 167, 22.06.2001, page 10).

10

                                                
– 

Negotiations by rightholder category

In  this  set-up,  negotiations  take  place  between  cable  operators  on  the  one  side  and  a  single
category  of  rightholders  on  the  other  (either  the  collecting  society  representing  authors,
performers,  phonogram  producers  or  audiovisual  production  organisations,  or 
the
broadcasting organisation as the representative of a particular channel).

This alternative offers the opposite advantages and disadvantages to those resulting from  an
overall agreement: termination by one of the parties does not mean that negotiations have to
be  started  anew  for  all  rightholders,  but  the  remuneration  established  may  differ  from  one
rightholder to the next.

– 

Extended collective licence

This is an arrangement whereby a collecting society representing a significant proportion of
rightholders in the same category negotiates on behalf of all rightholders with an association
representing  cable  operators.  The  advantage  is  that  the  society  thus  mandated  has  strong
negotiating power.

This  idea  of  a  collecting  society  mandated  by  all  the  collecting  societies  as  a  whole
negotiating with an equivalent association representing cable operators depends on a  certain
line of negotiation having been laid down at the time of determining the respective mandates,
which ought to facilitate discussions between the two mandated bodies. This set-up could be
supplemented by back-up arrangements for termination of the agreement, whereby it could be
terminated only if the majority of the members of one of the associations so decided.

The question can  also be asked  as to whether  it  is  appropriate for such  a  mandated body to
become  involved  as  an  appeal  mechanism  in  a  situation  where  the  direct  representatives  of
rightholders have not succeeded in the first instance in concluding an overall agreement with
cable operators, or where notice has been served to terminate the contract.

It  is  not  for  the  Commission  to  set  negotiating  conditions,  as  this  would  jeopardise  the
principle  of  contractual  freedom,  but  it  is  not  indifferent  to  the  difficulties  encountered  and
can but encourage initiatives designed to improve negotiating conditions.

3.2.2. 

Introduction of a one-stop shop in the context of cable retransmission

As  already  mentioned,  some  broadcasting  organisations  manage  the  acquisition  of  all  cable
retransmission rights on behalf of the cable operator, who remains legally responsible for the
acquisition of such rights.

For  the  broadcasting  organisation,  this  procedure  means  that  negotiations  take  place  in
accordance  with  the  copyright  in  force  in  the  Member  State  in  which  retransmission  takes
place.  Even  if,  when  the  rights  for  initial  transmission  are  transferred,  the  broadcasting
organisation can simultaneously acquire the rights for retransmissions by cable, the requisite
contractual procedures then have to be followed at national level  for each retransmission, in
accordance with the law of each Member State in which retransmission takes place.

This  possible  proliferation  of  contractual  relations  has  resulted  in  the  presentation  to  the
Commission of a plan for a "one-stop shop". This role would be played by the broadcasting
organisation.

11

The broadcasting organisation would be obliged to negotiate, with the collecting societies of a
single  Member  State  (in  accordance  with  the  law  applicable  in  that  country),  an  "all  rights
acquired" contract which would determine the remuneration for initial transmission and also
lay  down,  in  principle,  the  payment  of  a  certain  percentage  of  the  sales  deriving  from
retransmission  by  cable  for  the  other  territories.  This  remuneration  would  have  to  be  paid
once actual retransmission had taken place. Where a contract was concluded between a cable
operator  and  the  broadcasting  organisation,  the  latter  would  inform,  and  organise
remunerations  for,  the  collecting  societies  with  which  it  had  negotiated  the  framework
agreement. These societies would be responsible for passing on to the members concerned the
information  in  question,  as  well  as  the  sum  linked  to  the  retransmission,  together  with  the
information required to divide up the amount concerned among the rightholders.

Attractive though it may be in the context of the internal market, the concept of the one-stop
shop  cannot  be  given  tangible  form  by  a  mechanism  which  relies  on  a  broadcasting
organisation,  as  the  legal  responsibility  and  financial  commitment  associated  with  the
retransmission rights and initially incumbent upon the cable operator might be too much of a
burden  for  some  broadcasting  organisations.  It  would  amount  to  setting  up  a  one-stop-shop
system  with  the  risk  that  it  would  be  an  empty  shell  in  view  of  the  specific  difficulties
involved  in  its  implementation  which  would  be  faced  by  some  broadcasting  organisations
when it came to determining the remuneration.

The  one-stop  shop  for  the  transfer  of  cable  retransmission  rights  represents  a  major  project
and is in keeping with the dynamic impetus of the internal market. It therefore needs to be the
subject  of  in-depth  consideration,  particularly  in  a  more  horizontal  context  linked  to
developments induced by the emergence of the information society in which the established
principles for the transfer of rights will have to undergo change.

3.2.3.  Rationalisation  of  the  management  of  rights  relating  to  the  installation  of  shared

antennas

With  more  and  more  apartment  blocks  being  built,  there  is  an  increasing  trend  towards  the
installation  on  such  buildings  of  parabolic  antennas  together  with  their  associated  internal
systems  (cables,  distribution/switch  panels)  enabling  residents  to  receive  satellite  TV
programmes9.

In some Member States, installers of parabolic antennas have to pay a fee when they install a
communal  antenna,  as  such  an  installation  is  recognised  as  representing  a  new  act  of
communication to the public.

Case law on this subject differs among the Member States. For instance, while it is generally
considered that the installation of such an antenna at a hotel represents a new communication
(as installation is carried out for business purposes), this conclusion is not arrived at across the
board, with some national courts taking the view that such an installation in the context of a
private jointly owned property does not constitute a communication to the  public  and  is  not
subject to the payment of fees in respect of copyright and related rights.

9

It  should  be  remembered  in  this  context  that  the  Commission  adopted,  on  17  June  2001,  a
communication concerning the application of the principles of the free movement of goods and services
to  the  use  of  parabolic  dish  antennas.  It  cites  the  "right  to  satellite  reception"  which  every  private
individual within the internal market must have (COM (2001) 351).

12

                                                
When asked to give a preliminary ruling10 concerning such an installation in a hotel, the Court
of Justice  clearly  took  the  view  that  this  question  did  not  fall  within  the  scope  of  Directive
93/83/EEC and that the case had to be decided on the basis of national law.

In the context of this case, the Court of Justice referred to Article 3(1) of the Commission's
proposal, which remained the same Article in Directive 2001/29/EC on the harmonisation of
certain  aspects  of  copyright  and  related  rights  in  the  information  society.  This  provision,
aimed  at  transposing  into  Community  law,  Article  8  of  the  World  Intellectual  Property
Organisation's  1996  Treaty  on  Copyright,  states  as  follows:  "Member  States  shall  provide
authors with the exclusive right to authorise or prohibit any communication to the public of
their works, by wire or wireless means, including the making available to the public of their
works in such a way that members of the public may access them from a place and at a time
individually chosen by them".

Under Directive 93/83/EEC, when rights are acquired in relation to satellite broadcasting, due
account must be taken of, amongst other things, the actual and potential audience. One of the
parameters  for  estimating  this  audience  should  therefore  be  the  number  of  signal  reception
installations  on  the  ground,  i.e.  parabolic  antennas  supplemented  by  internal  installations
enabling the number of connected homes per building to be accurately determined.

However,  as  the  concept  of  "public"  has  not  been  defined  at  either  international  or
Community  level,  the  fees  payable  in  respect  of  rights  relating  to  satellite  broadcasting,
including or not including those which can be linked to installations in apartment buildings,
are determined in accordance with national laws.

In this regard, it has to be stated that the payment of fees in the Member State in which the
collective installation takes place constitutes  a barrier to the free  movement  of broadcasting
services11. This affects both the recipients of these services, i.e. the viewers  concerned,  as it
tends to make the use of parabolic antennas and access to programmes broadcast on a cross-
border basis more expensive, and the suppliers, as the reception of their satellite broadcasts is
rendered less attractive. When even the protection of intellectual property represents a public
interest  objective  recognised  by  the  Court  of  Justice,  the  question  arises  as  to  the
proportionality of such measures in ensuring this protection.

The Commission regards the protection of copyright and related rights - solely in the context
of  satellite  broadcasting  -  as  being  in  compliance  with  the  internal  market,  provided  the
amount of the associated fees is determined in particular on the basis of the audience figure.
The  Commission  therefore  encourages  Member  States  to  take  the  measures  necessary  to
ensure  that  rightholders  are  afforded  full  protection  by  dint  of  the  fees  linked  to  satellite
broadcasting being determined on the basis of very precise criteria related to audience size.

4. 

THE FUTURE OF THE DIRECTIVE IN THE NEW MEDIA CONTEXT

The  context  in  which  the  media  are  evolving  has,  of  course,  changed  enormously  since  the
entry into force of the Directive, with the emergence of more broadcasting organisations, new
media and formats - hence the current proliferation and diversity of programmes.

10

11

Judgment of 3 February 2000 in Case C-293/98.
See the judgement of 29 November 2001 in Case C-17/00, De Coster

13

                                                
Numerous lines of thought concerning those developments relate specifically to the advent of
digital television, which is already firmly established on the satellite and terrestrial fronts and
is set to extend to cable transmissions soon.

This technological progress will not be discussed further in this report: it does not affect the
principles of the Directive, which remain equally applicable whether a transmission is analog
or digital. By contrast, the extension of the Directive to transmission methods other than those
already covered must be analysed.

4.1. 

Diversification of national broadcasting methods

It  can  be  stated  firstly  that,  at  the  level  of  the  Member  States,  terrestrial  means  of
communication no longer dominate broadcasting, as satellite technology  comes increasingly
to the fore.

However, under Article 3(2) of the Directive, a Member State may provide that a collective
agreement between a collecting society and a broadcasting organisation may be extended to
rightholders of the same category who are not represented by the collecting society, provided
that  the  programmes  are  broadcast  simultaneously  by  satellite  and  terrestrially.  Where  at
present,  programmes  are  in  some  cases  transmitted  via  satellite  only,  an  amendment  to  the
Directive could be proposed  to  take  this into account if  the Directive  needed to be  changed
more substantially.

4.2. 

Diversification of cross-border retransmission methods

Beyond  satellite  broadcasting,  development  is  at  varying  stages  of  advancement  on
retransmission by microwave channel of digital  programmes,  retransmission  of programmes
via the Internet, and retransmission by satellite.

The  question  has  therefore  arisen  as  to  whether  it  might  not  be  appropriate  to  transpose,
mutatis mutandis, the principles of the management of copyright and related rights applicable
to  retransmission  by  cable  to  other  means  of  simultaneous  cross-border  retransmission,
without changes, following the principle of technological neutrality.

In  this  regard,  Directive  92/100/EEC  on  rental  right  and  lending  right  and  on  certain  rights
related to copyright in the field of intellectual property12, as well as Directive 2001/29/EC on
the  harmonisation  of  certain  aspects  of  copyright  and  related  rights  in  the  information
society13  lay  down  that  authors,  performers,  phonogram  producers  and  broadcasting
organisations  hold  exclusive  rights  or  a  right  to  remuneration  for  the  various  simultaneous
retransmissions.

-  At  the  technological  level,  the  conditions  currently  required  for  digital  retransmission  by
microwave  channel  have  similarities  with  the  cable  retransmission.  However,  it  must  be
recognised  that  this  method  of  retransmission  is  still  in  its  infancy,  and  the  Commission
regards  it  as  necessary  to  consider  the  more  general  conditions  for  developing  this  form  of
transmission  before  envisaging  any  extension  of  the  current  system  of  administering
copyright and related rights for cable broadcasting.

12

13

OJ L 346, 27.11.92, p. 61.
OJ L 167, 22.06.2001, p. 10.

14

                                                
-  Since  certain  principles  and  conditions  have  been  laid  down  for  retransmission  via  the
Internet  by  Directives  2000/31/EC14  and  2001/92/EC,  the  Commission  considers  it  more
appropriate to reflect  on how to administer  the  copyright  and  related  rights  for  this  form  of
retransmission  in  the  framework  already  established  by  these  two  Directives,  particularly
since they are currently being transposed in the Member States.

-  In  the  case  of  retransmission  by  satellite,  in  which  a  satellite  distributor  (who  is  neither  a
broadcasting  organisation  nor  the  satellite  operator  providing  transport)  includes  in  a  single
package  a  number  of  channels  which  have  already  had  an  initial  broadcasting,  rents
transmission  bands  from  a  satellite  operator  and  makes  that  package  available  to  television
viewers against payment of a subscription.

In this context, implementation of the principle of mandatory collection would amount to an
equality of treatment in appearance only,  as  this approach would lead  to  different situations
being dealt with in one and the same way. Retransmission by cable has a relatively restricted
geographic  reach  (national  or  even  local),  and  is  thus  not  in  the  same  league  as  satellite
retransmission, which goes beyond Europe.

To impose the principle of collective management on retransmission activities would amount
to limiting considerably the freedom of rightholders, who would no longer be able to object to
the  retransmissions  in  question.  However,  some  of  the  programmes  contained  in  these
retransmissions  are  not  only  the  subject  of  an  act  of  communication  in  the  broadcasting
context, but may also be presented on other media, in accordance with a chronology designed
to maximise potential remuneration in respect of the work concerned. It should be noted that
the chronology for the various acts of communication for a particular work is organised on a
national basis, depending on the initial success achieved in the Member State where the work
was produced.

However, the retransmission of programmes in packages broadcast by satellite is part of this
media  chronology:  to  the  extent  that  the  technical  means  used  ensure  a  vast  reach  for  the
method  of  retransmission  concerned,  a  limitation  on  the  exercise  of  exclusive  rights  would
jeopardise this chronological chain and thus, to a certain extent, the potential remuneration in
respect of a work.

The  Commission  does  not  therefore  consider  it  appropriate,  at  this  stage,  to  extend  the
mandatory collective-management regime to other categories of retransmissions.

5. 

CONCLUSION

The expansion of the range of televisual services on offer has not only not diminished, but has
bolstered  the  scope  of  the  mechanisms  put  in  place  by  the  Directive  with  the  aim  of
facilitating some methods of cross-border transmission. Moreover, experience shows that the
measures  taken  under  the  "television  without  frontiers"  Directive  to  ensure  freedom  of
reception  and  transmission  of  television  programmes  from  other  Member  States  see  their
effect  diminished  if  the  difficulties  involved  in  transferring  copyright  and  related  rights  are
not resolved.

14

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L
170, 17.7/2000, page 1.

15

                                                
It is nevertheless evident that some principles in the Directive need to be examined in depth.
The Commission is particularly concerned about the difficulties which citizens  encounter in
trying  to  access  satellite  channels  transmitted  outside  the  Member  State  in  which  they  are
resident. This situation not only goes against the grain of a fundamental principle embodied in
Directive  93/83/EEC,  but  also  means  that  the  freedom  of  movement  of  goods  and  services
cannot  be  fully  exercised,  that  viewers'  expectations  cannot  be  met,  and  that  cultural  and
economic  opportunities  introduced  by  the  internal  market  cannot  be  exploited.  The
Commission  will  therefore  conduct  a  study  -  observing  the  protection  of  rightholders  -  into
possible ways of meeting citizens' expectations, which are set to continue rising in step with
increased mobility and the development of new technologies to which the general public has
access in the European Union. The Commission therefore intends to start work, without
delay, in close collaboration with the various interested parties and the representatives
of  the  competent  national  authorities,  thereby  fostering  a  thorough,  constructive  and
necessary  debate  on  a  clearly-defined  objective  whose  achievement  poses  undeniable
difficulties.

The  evolution  of  television  services  in  the  framework  of  the  information  society  leads  the
Commission  to  reflect  on  the  need  to  adapt  certain  current  mechanisms  relating  to  the
protection of copyright and related rights (settlement of disputes, role of collecting societies):
the  methods  of  managing  rights  to  cable  retransmission  and  mediation  will  thus  be
assessed in the general context of the evolution of the media in the information society,
before  considering  whether  or  not  to  revise  Directive  93/83/EEC.  Finally,  and  more
generally, ongoing technological developments (including digital television and the Internet)
will  generate  a  manifold  increase  in  the  possibilities  and  arrangements  for  the  cross-border
provision  of  audiovisual  services.  The  audiovisual  services  that  will  be  offered  in  the  near
future  will  lead  to  changes  in  viewers'  habits  through  providing  them  with  more
individualised and personalised access to these services. It is too early, however, to gauge the
content  and  impact  of  these  changes  and,  hence,  to  determine  at  this  stage  whether  it  is
necessary to extend the scope of Directive 93/83/EEC.

16