GREEN PAPER on the online distribution of audiovisual works in the European Union: opportunities and challenges towards a digital single market
Date: 2011-07-13
Institutions: European Commission
Subjects: audiovisual equipment, film industry, single market, technical barriers to trade

EUROPEAN COMMISSION 

Brussels, 13.7.2011 
COM(2011) 427 final 

GREEN PAPER 

on the online distribution of audiovisual works in the European Union: opportunities 
and challenges towards a digital single market 

 
 
 
 
  
 
TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

3. 

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

The opportunities offered by technology developments.............................................. 3 

The purpose and scope of the Green Paper.................................................................. 4 

The Digital Single Market for Audiovisual Media Services........................................ 5 

Rights clearance for online transmission of audiovisual media services..................... 8 

Rights clearance for retransmission of audiovisual media services............................. 8 

Rights clearance for transactional Video on Demand services.................................... 9 

European film production and distribution ................................................................ 10 

Policy approaches....................................................................................................... 12 

3.1. 

Questions.................................................................................................................... 13 

4. 

4.1. 

4.2. 

4.3. 

5. 

5.1. 

5.2. 

5.3. 

5.4. 

6. 

Rights holders' remuneration for online exploitation of audiovisual works .............. 15 

Authors' remuneration for online exploitation ........................................................... 16 

Performers' remuneration for online exploitation ...................................................... 16 

Questions.................................................................................................................... 17 

Special uses and beneficiaries.................................................................................... 18 

Film heritage institutions............................................................................................ 18 

Questions.................................................................................................................... 18 

Accessibility of online audiovisual works in the European Union ............................ 18 

Questions.................................................................................................................... 19 

Next Steps .................................................................................................................. 19 

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1. 

INTRODUCTION 

1.1. 

The opportunities offered by technology developments 

This Green Paper is published within the context of the Europe 2020 Strategy, which aims to 
boost  smart,  sustainable  and  inclusive  growth  in  Europe,  of  the  Digital  Agenda  for  Europe1 
and  of  the  Commission  Communication  "A  Single  Market  for  Intellectual  Property  Rights" 
(the "IPR Strategy").2 As identified in the IPR Strategy, while the internet is borderless, online 
markets in the EU are still fragmented by multiple barriers and a Single Market has still not 
been  achieved.  This  Green  Paper  is  intended  to  contribute  to  the  development  of  a  digital 
single  market  by  launching  a  debate  specifically  on  the  opportunities  and  challenges  of  the 
online distribution of audiovisual works.  

The  cultural  industries  in  Europe,  including  the  audiovisual  sector,  make  a  significant 
contribution  to  the  EU  economy,  creating  about  3%  EU  GDP  corresponding  to  an  annual 
market value of 500 billion EUR and employing about 6 million employees.3 The EU records 
the second highest TV viewing figures globally, produces more films than any other region in 
the  world,  and  is  home  to  more  than  five  hundred  online  video-on-demand  services.  The 
sector  also  makes  an  invaluable  contribution  to  Europe's  cultural  diversity,  unlocking  its 
tremendous creative potential. 

Traditional distribution networks for audiovisual content are national in scope: broadcast and 
cable networks cater primarily to national audiences or particular linguistic areas. Audiovisual 
content,  in  particular  film,  is  often  regarded  as  much  as  a  cultural  as  an  economic  product, 
bound to national contexts and cultural preferences. European audiovisual policy recognises 
this  as  well  as  the  vital  importance  of  maintaining  cultural  diversity  in  a  Single  Market. 

At the same time, digital technology and the internet are rapidly changing the way in which 
content is produced, marketed, and distributed to consumers. With converging technologies, 
the  same  content  may  be  transmitted  over  different  networks,  whether  via  traditional 
broadcasting (terrestrial, cable and satellite) or via the internet and may be delivered to any 
one  of  a  number  of  devices:  TV,  PC,  games  console,  mobile  media  device.  Converged 
networks  and  devices  are  increasingly  common  in  the  market,  including  the  delivery  of  TV 
and  internet  via  cable;  and  the  emergence  of  internet-enabled  TVs.  Further  possibilities 
emerging with the deployment of web-based services, including "cloud computing", are likely 
to  accelerate  this  trend.  Consumers  increasingly  expect  to  be  able  to  watch  anything, 
anywhere,  anytime,  and  over  any  device.  These  developments  are  putting  pressure  on  the 
traditional distribution networks for audiovisual media services on the one hand; and on the 
traditional  release  sequences  for  film  on  the  other,  as  feature  films  may  equally  be  made 
available to consumers in more flexible ways than has been the case hitherto. The traditional 

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A Digital Agenda for Europe: COM (2010) 245 of 19.05.2010. 
A  Single  Market  for  Intellectual  Property  Rights  -  Boosting  creativity  and  innovation  to  provide 
economic  growth,  high  quality  jobs  and  first  class  products  and  services  in  Europe:  COM(2011)  287 
final of 24.05.2011. 
Study: The Economy of Culture in Europe < http://www.keanet.eu/en/ecoculturepage.html. In the UK 
alone, the audiovisual sector generates about 4 billion GBP direct production investment per year and 
about  132,000  direct  jobs  in  the  UK  (2011  Study  Creative  UK,  The  Audiovisual  Sector&  Economic 
Success, p. 7). 

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value  chains  are  in  flux  and  business  models  are  evolving  to  meet  consumer  expectations, 
including making services available cross-border.  

The internet offers the audiovisual sector opportunities to develop its potential further, and to 
reach wider audiences both within Europe and beyond. Indeed, from a cultural and creative 
perspective, boosting the single market makes sense: while national markets may not be large 
enough  for  niche  productions,  aggregation  could  increase  the  commercial  viability  of  the 
overall  market.  Furthermore,  attractive  offers  of  new  audiovisual  media  services,  including 
across  borders,  should  increase  revenues  for  rights  holders,  and,  alongside  appropriate 
measures  to  address  infringing  behaviour  including  enforcement  and  cooperation  by 
intermediaries,  could  help  to  address  the  significant  levels  of  piracy  observed  in  the 
audiovisual  sector.  Such  developments  should  also  stimulate  demand  for  higher  speed  and 
network capacity, which creates the business case for investments in faster networks.  

1.2. 

The purpose and scope of the Green Paper 

This  paper  reflects  on  the  effect  of  technological  developments  on  the  distribution  of,  and 
access to, audiovisual  and  cinematographic works, and looks to start a debate on the policy 
options to develop a framework within which European industry and European consumers can 
benefit from the economies of scale offered by the digital single market. It is grounded in the 
view  that  an  in-depth  analysis  is  required  in  order  to  identify  the  existence  and  range  of 
obstacles to the development of a digital single market.  

In  the  case  of  audiovisual  content,  a  number  of  reasons  for  the  fragmentation  of  the  online 
market  have  been  cited,  including  technological  barriers,  complexity  of  copyright  licensing 
processes,  statutory  and  contractual  provisions  relating  to  release  windows,  lack  of  legal 
certainty for service providers, payment methods, consumer confidence and the prevalence of 
deep-seated cultural and linguistic differences.  

The  Single  Market  Act4  has  already  underlined  that,  in  the  internet  age,  collective 
management  must  be  able  to  evolve  towards  European  models  which  facilitate  licences 
covering several territories. In addition, and as set out in the Digital Agenda for Europe, the 
Commission will report by 2012 on the need for additional measures, beyond the facilitation 
of collective rights management, allowing EU citizens, online content services providers and 
right-holders to benefit from the full potential of the digital single market, including measures 
to promote cross-border and pan-European licences.5  

The first part of this Green Paper (Sections 2 and 3) focuses on rights clearance for the online 
distribution  of  audiovisual  media  services.  An  assessment  is  needed  of  the  extent  to  which 
there are problems in this area, and the precise nature of such problems. Analysis is further 
required of possible options at EU level, including whether and to what extent the legal and 
regulatory framework needs to be modernised to provide European businesses the incentives 
to develop new business models and to offer content to consumers throughout Europe.  

The second part (Section 4) deals with audiovisual rights holders' remuneration for the online 
use of their works and asks, essentially, whether additional measures should be taken at EU 

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"Single  Market  Act  -  Twelve  levers  to  boost  growth  and  strengthen  confidence;  Working  together  to 
create new growth", COM/2011/0206 final, 13 April 2011. 
A Digital Agenda for Europe: COM (2010) 245 of 19.05.2010, p. 10. 

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level to ensure the adequate remuneration of authors and performers in relation to online uses 
of works and performances in which they hold rights.  

The  third  part  (Section  5)  deals  with  certain  special  uses  of  audiovisual  works  and 
beneficiaries of exceptions. On the one hand it asks whether legislative changes are required 
to  increase  legal  certainty  for  film  heritage  institutions;  and  on  the  other  poses  questions  in 
relation to access by persons with disabilities to cultural materials. 

Each  section  is  followed  by  a  non-exhaustive  list  of  questions  to  guide  stakeholders' 
contributions.  

2. 

THE DIGITAL SINGLE MARKET FOR AUDIOVISUAL MEDIA SERVICES

6 

The European TV market is the second largest regional market in the world, after the US. It 
grew by 12% between 2006 and 2010, with over half of that growth occurring between 2009 
and  2010  to  reach  an  annual  turnover  of  €84.4  billion  in  2010.  The  European  share  of  the 
global market remained stable at around 29% in 2010.7  

TV  broadcast  distribution  is  increasingly  diversified.  In  2009,  satellite  broadcast  accounted 
for 31% of the EU TV market, cable for 30%, digital terrestrial TV for 25% and IPTV8 for 
5%.9 Western Europe is the largest IPTV market, accounting for 40% of global subscribers in 
2010. France is the leading country in the world for IPTV (23% of the global total), followed 
by China (16%) and the US (16%).10 EU TV viewing is higher than the global average, and 
also showed the greatest increase globally over 2009-2010.11 

As  the  opportunities  proffered  by  technological  developments  multiply,  so  the  entire 
audiovisual value chain is in a state of flux. With the development  of over  the  top Video,12 
IPTV  and  connected  TV,13  the  online  video  space  will  increasingly  be  shared  not  only 
between  television  channels,  cable  network  and  broadband  operators  but  also  with  new 
entrant service providers.14 The landscape is further characterised by the fast development of 

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As defined in the Audiovisual Media Services Directive (2010/13/EU): "a service as defined by Articles 
56  and  57  of  the  Treaty  on  the  Functioning  of  the  European  Union  which  is  under  the  editorial 
responsibility  of  a  media  service  provider  and  the  principal  purpose  of  which  is  the  provision  of 
programmes,  in  order  to  inform,  entertain  or  educate,  to  the  general  public  by  electronic 
communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC. Such 
an audiovisual media service is either a television broadcast as defined in point (e) of this paragraph or 
an on-demand audiovisual media service as defined in point (g) of this paragraph."  
Idate News 541, 12 January 2011. 
IPTV is the delivery of a video feed channeled over a dedicated part of the telephone network. The feed 
is separate from the internet stream, and the content channeled onto the TV via a set-top box dedicated 
both to linear TV and on-demand services. The service is increasingly offered by telecommunications 
operators. (European Audiovisual Observatory, "Video on Demand and catch-up TV in Europe", p. 22) 
In terms of primary TV sets per household, data provided by Screen Digest. 
http://www.telegeography.com/products/commsupdate/articles/2011/03/17/iptv-subs-reach-45-million-
as-telcos-achieve-10-penetration-rate/ 
Eurodata Press Release, 24 March 2011. 
Usually  refers  to  video  services  delivered  through  devices  outside  the  traditional  video  delivery 
structure such as internet-connected set top boxes, tablets or games consoles. 
Describes the integration of the internet into television sets (internet enabled TVs). 
At the end of 2008, 33% of VoD services in Europe were originally TV service providers; 17% telecom 
operators; 14% content aggregators; 9% subsidiaries of US majors. Other providers of VoD services 

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social  networking  and  social  media  sites  which  rely  on  the  creation  and  upload  of  online 
content by end-users (user-generated content), and the advent of "cloud-based" services.15 

Transactional Video-on-Demand (VoD) services include the online retail and rental of "stock 
catalogue" audiovisual works, primarily feature films, but also including audiovisual fiction, 
documentaries, educational programmes, cartoons etc. The emerging market for VoD services 
in  Europe  is  dynamic,  diverse  and  growing  rapidly,  though  nevertheless  currently  lagging 
behind  the  US.  All  in  all,  more  than  500  on-demand  audiovisual  services  were  available  in 
Europe  in  2008  on  a  range  of  different  business  models,16  and  VoD  generated  turnover  of 
€544 million. It is predicted that VoD turnover in  Europe will increase dramatically over the 
next few years and thus will represent a more significant aspect of the audiovisual markets.17 
There  is  a  well-established  framework  for  the  cross-border  transmission  and  reception  of 
broadcasting  services  across  the  EU.  On  the  one  hand,  the  Audiovisual  Media  Services 
Directive underpins the principle of the freedom to transmit and receive TV programmes in 
the EU. On the other hand, the Satellite and Cable Directive18 complements this framework, 
its  purpose  being  the  facilitation  of  the  clearing  of  copyright  and  related  rights  for  cross-
border  satellite  broadcasting  and  cable  retransmission  services.  There  is  currently  no  legal 
instrument specifically addressing the clearing of copyright and related rights for cross-border 
on-line audiovisual media services.  

It must be borne in mind that all agreements between private parties must respect competition 
law. 

As  highlighted  in  the  introduction,  the  majority  of  audiovisual  media  services  focus  on  a 
national  audience  or  a  particular  linguistic  area.19  Multi-territory  broadcast  services  have 
largely  not  emerged,  and  broadcasters  often  refrain  from  clearing  rights  on  a  pan-European 
basis  because  the  consumer  demand  abroad  and  the  potential  for  advertising  generated 
revenue does not currently justify the additional costs related to the setting up of services and 
the  licensing  of  content.20  To  date  it  has  been  thematic  services,  focusing  on  cinema, 

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included cable and satellite operators, film companies, retailers, multimedia publishers and equipment 
manufacturers - European Audiovisual Observatory, 'Video on demand and catch-up TV in Europe', 
October 2009, p.116. 
Cloud computing refers to the use of multiple server-based computing resources via a digital network. 
Contrary to classic computing, the user of a cloud-based service no longer stores data and applications 
on the user's computer but on the service operator's servers which may be located in another country. 
The user can then access his data through a network, usually the internet, from any place.  
European  Audiovisual  Observatory,  'Video  on  demand  and  catch-up  TV  in  Europe',  October  2009, 
p.113. 
Source: KEA Study "Multi-territory Licensing of Audiovisual Works in the European Union", pp. 108 
and 109. In the UK, VoD accounted for €139 million or 3% of filmed entertainment revenues in 2009, 
and 8% of the retail/rental market (UK Competition Commission 'Movies on Pay TV Market 
Investigation', Background paper "Pay TV and movies on pay TV"). VoD climbed 33% on a year-on-
year basis to account for 13% of retail/rental spend on filmed entertainment in the US in 2010. (Digital 
Entertainment Group, "Year End 2010 Home Entertainment Report"). 
Council  Directive  93/83/EC  of  27  September  1993  "on  the  coordination  of  certain  rules  concerning 
copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission". 
See  application  report  of  the  Satellite  and  Cable  Directive  of  2002,  COM/2002/0430  final,  in  this 
respect  see  also  Bernt  Hugenholtz,  "Nouvelle  lecture  de  la  directive  Satellite  Câble:  passé,  présent  et 
avenir". 
Indeed,  the  geographical  scope  of  broadcasters'  services  is  also  driven  by  factors  such  as  the 
geographical scope of interest for advertisers (in the case of broadcasters which rely upon advertising 
funding), and whether the cost of rights is sustainable in relation to the business of the core market. In 

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children's programmes, sports, travel etc. with a strong brand identity that have been able to 
extend their activities abroad.  

A  range  of  platforms  offering  transactional  on-demand  services  span  multiple  territories.21 
These  tend  to  continue  the  practice  of  addressing  customers  "in  their  own  language",  and 
tailoring  content  to  local  preferences  such  as  language,  film  classification,  dubbing  or 
subtitling  requirements,  advertising,  holiday  periods,  and  general  consumer  tastes.  This  is 
consistent with the experience of producers and distributors whether large or small scale, who 
have indicated that although they license content on a multi-territorial basis where there is a 
business  case  to  do  so,  targeted  and  local  investments  in  distribution  and  marketing  are 
nevertheless required in order to promote and sell films in each country.22  

Where multi-territory  services are emerging, they tend to be tested first in high income and 
technologically  sophisticated  markets.  As  a  result,  smaller  markets  or  Member  States  with 
lower average incomes risk falling behind in terms of access to innovative audiovisual offers. 
Moreover, the fact that high-quality content is available only to consumers in some Member 
States is difficult to explain to European citizens who believe they should have the possibility 
to access content offers irrespective of their Member State of residence.23  

The issue of territorial licensing practices has recently come to the fore in the Premier League 
case.24  This  case  concerns  the  practice  of  territorially  restricting  access  by  means  of 
conditional  access  technology  to  sports  broadcasts  which  are  transmitted  via  satellite  to 
various Member States.25 The judgment of the Court is awaited. In earlier rulings, the CJEU 
has held that the freedom to provide sevices does not prohibit the imposition of geographical 
limits on broadcasting licences.26  

the EU, TV subscriptions accounted for 38% of the sector's revenues, advertising for 32% and public 
funding for 30% in 2009 (Screen Digest). Put quite simply, the pay-tv model requires content that the 
customer is willing to pay for.  
E.g. Acetrax, Chello, Headweb, iTunes, Playstation Network Live, Voddler, Xbox Live.  
E.g.  New  Paramount  releases  are  available  in  21  EU  Member  States  in  the  VoD  window,  whether 
online or through digital cable, satellite or IPTV networks. 
In this respect, account should be taken of Article 20 Services Directive (Directive 2006/123/EC of 12 
December 2006 on services in the internal market) which provides that Member States shall ensure that 
recipients of services are not made subject to discriminatory requirements based on their nationality or 
place of residence. 
Cases C-403/08, Football Association Premier League Ltd, v QC Leisure and C-429/08, Karen Murphy 
v Media Protection Services Limited.  
A  UK  publican  showed  Premier  League  matches  using  a  decoder  card  imported  from  Greece.  The 
Greek satellite broadcaster had bought the broadcasting rights only for Greece and the Greek decoder 
cards were considerably cheaper than those being sold for the UK by the UK broadcaster. According to 
the  Advocate  General´s  opinion  of  3  February  2011,  the  freedom  to  provide  services  precludes 
provisions  that  prohibit  the  use  of  conditional  access  devices  for  encrypted  satellite  television  in  a 
Member  State,  if  they  have  already  been  placed  on  the  market  in  another  Member  State  with  the 
consent  of  the  rightholder.  Furthermore,  according  to  the  Advocate  General  a  contractual  obligation 
requiring  a  broadcaster  to  prevent  its  satellite  decoder  cards  from  being  used  outside  the  licensed 
territory is incompatible with the rules on competition.  
Coditel vs Ciné Vog Films, ECJ, 19 March 1980, Case 62/79; and Coditel vs Ciné Vog Films (Coditel 
II), ECJ, 6 Oct 1982, Case 262/81.  

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2.1. 

Rights clearance for online transmission of audiovisual media services 

Until recently, broadcasters' activities consisted mainly of linear broadcasting (whether over 
the  air,  satellite  or  cable)  and  broadcasters  only  needed  to  clear  the  reproduction  and 
broadcasting/communication  to  the  public  rights,  of  authors,  performers  and  producers,  for 
the use of audiovisual works. Increasingly, however, broadcasters make at least a portion of 
their programming available on an on-demand basis after the initial broadcast (catch-up TV 
services, downloads). Indeed most of the major European television channels provide a catch-
up TV service.27 Programmes available include news, magazines, series and feature films. In 
order to provide such online (on-demand) services, broadcasters need to clear a different set 
of rights than those required for the initial broadcast, namely the  reproduction right and the 
making available right.28  

Where  broadcasters  distribute  their  online  services  beyond  the  territory  of  the  initial 
broadcast, they need to clear the rights for each additional territory. Ordinarily, the economic 
rights in an audiovisual work are transferred from the contributors (authors, performers) to the 
producer  in  exchange  for  an  upfront  payment,  by  law  or  by  contract.29  This  enables  the 
producer to licence the majority of forms of exploitation of the audiovisual work, including 
on-demand uses, on an individual basis. On the other hand, clearing the on-line exploitation 
rights for works and other subject matter incorporated in the audiovisual fixation (notably in 
relation to background music) for online uses and across multiple territories appears in some 
cases and for some rights holders to involve significant administrative effort and transaction 
costs. 

2.2. 

Rights clearance for retransmission of audiovisual media services  

Retransmission  of  broadcast  programmes  –  generally  understood  as  the  simultaneous 
transmission  of  a  broadcast  by  a  different  entity  such  as  a  cable  operator  -  is  a  separate 
copyright act, also requiring authorisation from right holders. 

The  Satellite  and  Cable  Directive  provides  a  twin-track  copyright  clearing  process  for  the 
simultaneous retransmission, by cable, of programmes broadcast from other Member States. 
On  the  one  hand,  broadcasters  may  licence  their  own  rights  as  well  as  the  rights  that  have 
been transferred to them by contract on an individual basis to cable operators.30 On the other 
hand, the Directive requires that all other rights necessary for the retransmission of a specific 
programme  by  cable  may  only  be  managed  by  a  collecting  society.  This  was  deemed 
necessary  in  the  case  of  simultaneous  cable  retransmission  because  of  the  difficulty, 
otherwise,  for  cable  operators  to  ensure  that  they  had  cleared  all  rights  in  the  programmes 
transmitted  to  them  by  broadcasters  in  time  and  therefore  to  prevent  the  risk  of  black-outs 

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European Audiovisual Observatory, 'Video on demand and catch-up TV in Europe', October 2009,  
p. 220. 
It is noted that these rights are technology neutral. The need to clear the making available right arises 
from the service provided (the making available of a work "on demand") regardless of delivery platform 
or  protocol  used  (e.g.  cable  network,  internet  protocol  or  other).  These  rights  are  provided  by  the 
international treaties of which the EU and its Member States are members (the WIPO Copyright Treaty 
and the WIPO performances and phonograms Treaty) and in the EU acquis (Directive 2001/29/EC of 
22 May 2001, the "Information Society Directive").  
See section 4 below for more detail. 
Satellite and Cable Directive, Art. 10.  

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during  programming.31  The  provisions  of 
to  "the 
simultaneous, unaltered and unabridged retransmission by a cable or microwave system of an 
initial transmission from another Member State".32  

the  Directive  apply  exclusively 

New  digital  platforms  have  enabled  programmes  to  be  retransmitted  simultaneously  across 
different  networks.  Operators  of  DSL,33  IPTV,  mobile  networks  and  other  digital  platforms 
such  as  DTT34  also  operate  broadcast  retransmission  services.  The  act  of  retransmission  by 
internet  of  a  broadcast  is  normally  referred  to  as  "simulcasting".  The  question  arises  as  to 
whether  the  technology-specific  provisions  of  the  Satellite  and  Cable  Directive  need  to  be 
reviewed  to  develop  a  framework  for  cross-border  retransmission  of  audiovisual  media 
services that is technology neutral with regard to the delivery platform. It could be argued that 
in  practice  this  seems  to  be  already  applied  in  part,  as  broadband  operators  providing  an 
analogous service – "simultaneous, unaltered and unabridged" retransmission - are included in 
global  arrangements  for  cable  redistribution.  On-demand  services  and  web  originating 
streaming services (normally referred to as "webcasting") are excluded.  

Claims  have  also  been  made  that  rights  clearance,  under  the  current  rules  for  cable 
retransmission  in  the  Satellite  and  Cable  Directive  may  require  multiple  transactions  with 
different  rights  representative  organisations,  and  that  there  could  be  a  lack  of  clarity  and 
certainty as to who has the mandate to licence which rights. In this context there has also been 
some  debate  around  the  need  to  maintain  mandatory  collective  licensing  for  cable 
retransmission  as  opposed  to  giving  freedom  to  rights  owners  to  license  on  an  individual 
basis.  

2.3. 

Rights clearance for transactional Video on Demand services  

Audiovisual  markets  across  the  world  are  predicated  upon  exclusive  release  arrangements, 
with theatrical release playing a crucial element in the creation of a "brand identity" of a film 
in  each  country  in  which  it  is  released.  Producers  and  distributors  maximize  revenues  by 
staggering the media platform through which a film is marketed ("media windows").35 Such 
windows  or  "chronologies"  differ  across  Member  States,  but  the  standard  sequence  for  a 
feature film, for example, would be cinema release, video/DVD/Blu Ray, VoD, pay-TV and 
finally free-to-air TV. In the vast majority of Member States, the chronology as well as the 
length of each release window is a matter of contract between rightholders and distributors. 
Two Member States, however, maintain national regulatory measures with regard to release 
windows,36 while some others link the grant of film subsidies to respect for agreed theatrical 
release windows.37  

Marketing  for  exploitation  on  future  versions  (in  future  windows)  is  based  on  the  initial, 
theatrical release, which is considered to play a major role in determining the overall return on 

31 

32 
33 
34 

35 

36 
37 

Cable operators therefore do not have to obtain licences from all the individual rightholders in broadcast 
programmes, but rather negotiate a licence with a collecting society (for rights held by third parties) and 
the relevant broadcaster (for rights directly held by the broadcaster). 
Satellite and Cable Directive, Art. 1(3). 
DSL (Digital Subscriber Line) provides digital data transmission over a telephone network. 
DTT  (Digital  Terrestrial  Television)  is  the  transmission  of  broadcasts  in  digital  form  on  radio 
frequencies. As analogue terrestrial television, DTT is received by an aerial antenna.  
See KEA study "Multi-territory Licensing of Audiovisual Works in the European Union", p. 56 for a 
description of media windows post theatrical release.  
France and Portugal. See Media Windows in Flux by Martin Kuhr, IRIS plus, pp. 4 and 5. 
E.g. Germany, Austria, ibid. 

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any given film. Film producers and distributors have begun to realign the traditional release 
windows  to  include  VoD  windows,  including,  for  example,  making  films  available  to 
transactional VoD services at the same time as in the cinema or on DVD.38 This development 
has  partly  been  triggered  by  the  fact  that  marketing  momentum  can  be  lost  if  the  period 
between the first release of a work and its subsequent exploitation through other channels is 
too  long.  At  the  same  time,  the  current  system  of  staggered  platform  distribution  and 
territorial release is seriously challenged by the growing consumer interest in having access to 
audiovisual  and  cinematographic  works  almost  immediately  after  their  first  release, 
irrespective  of  where  they  reside.  Pirated  copies  of  a  film  are  increasingly  made  available 
online  even  before  its  initial  distribution  in  cinemas  or  on  television,  imposing  further 
pressure to shorten release windows.39  

European film producers consider theatrical release to be particularly important for European 
films in light of their relatively modest promotion budgets.40 It appears that any approach that 
removed  from  producers  and  distributors  the  opportunity  to  recoup  investments  through 
contractual distribution and marketing arrangements, would be likely to lead to a significant 
loss of incentive to invest in film production.  

As explained above, the economic rights in audiovisual works (including the making available 
right)  are  normally  transferred  from  authors  and  performers  to  the  producer  (by  law  or  by 
contract). This enables the producer to licence most  of the required  rights for VoD  services 
directly.  It  appears  that  rights  clearance  may  nevertheless  be  laborious  and  expensive  for 
some VoD operators. Firstly, as part of pre-financing arrangements, producers may have split 
the  exploitation  rights  across  territories,  with  a  different  distribution  partner  having  been 
appointed  to  manage  marketing  and  distribution  in  each  territory.  Secondly,  lack  of  clarity 
with respect to the relevant rights which need to be cleared for works and other subject matter 
incorporated in the audiovisual fixation is sometimes seen as an issue.  

2.4. 

European film production and distribution 

The  EU  has  become  one  of  the  largest  producers  of  films  in  the  world:  1,168  feature  films 
were  produced  in  the  EU  in  2009  (compared  to  677  produced  in  the  US)41  European  films 
represent  an  estimated  25%  of  cinema  admissions  in  the  EU  with  US  films  having  a  68% 
market share.42. Conversely, US films enjoyed a 93% share of the US market, while EU films 
had a 7% market share in 2009. There is no publicly available data on online market shares. 

38 

39 

40 

41 

42 

E.g. Warner Bros' "Day and Date" initiative whereby VOD is released on the same date as the DVD. 
Date and Date titles are released in the majority of EU Member States. European operators have also 
started  to  experiment  such  alternative  distribution  models.  Curzon  Artificial  notably  released  Fatih 
Akin's The Edge of Heaven. The film was released in cinemas at the beginning of 2008 and was offered 
general release for a limited period (14 days) on Sky's VOD service at a premium price (more or less 
the same as the cinema tocket). Curzon believes that this VOD trial has boosted admissions at cinemas 
for this film and has since then renewed this experience with several films. 
European Audiovisual Observatory, Video on demand and catch-up television in Europe, October 2009, 
p. 75 
This  is  even  more  crucial  for  co-productions  since  co-producer(s)  in  other  territories  (producer 
distributors) expect in return to their investment to enjoy the exclusive rights in their territory. It is also 
true  for  other  productions.  Distributors  in  other  Member  States  are  granted  exclusive  rights  in  their 
territory by the sales agent. 
For  comparison,  India  Japan  and  China  produced  respectively  819,  456,  and  445  films  in  2009. 
European Audiovisual Observatory, "Focus 2010".  
Including films produced in Europe with incoming investment from the US. 

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These figures reflect the fact that the European cinematographic industry is confronted with 
some  unique  structural  characteristics  including  the  language  and  cultural  specificities  and 
preferences of national markets and the limited availability of financial sources. The European 
audiovisual sector is deeply fragmented, consisting of a large number of small- and medium-
sized enterprises (SME's).43 Europe has not been in a position to develop a studio system of 
the  nature  developed  by  the  Hollywood  majors.  It  suffers  from  underinvestment  in 
comparison  with  other  countries44  and  the  average  film  budget  is  a  fraction  of  that  of  the 
major studios.45 European films often enjoy success in their home territory, but, as the figures 
above demonstrate, tend to have limited distribution and appeal outside the territory of their 
production.  

Given the structural challenges for European cinema, the development of this sector has not 
been left solely to market forces. Pluralism, cultural and linguistic diversity and protection of 
minors are some of the objectives of general interest safeguarded by EU legislation, notably 
the  Audiovisual  Media  Services  (AVMS)  Directive.  In  the  same  vein,  the  AVMS  Directive 
and the MEDIA programme46 promote the production and distribution of European works in 
both  linear  and  non  linear  services.  The  MEDIA  programme  aims  notably  to  increase  the 
circulation  and  viewership  of  European  audiovisual  works  inside  and  outside  the  EU.  The 
Communication  on  state  aid  to  the  cinema  sector,47  currently  under  review,  provides  an 
appropriate  framework  allowing  Member  States  to  provide  financial  support  for  the 
distribution  and  production  of  films  whilst  maintaining  a  level  playing  field  in  the  internal 
market.  

The  European  Commission  recognizes  that  national  funding  systems  are  vital  to  maintain 
investment in local productions and the close linkages across multiple platforms, as traditional 
broadcasters  are  major  commissioners  and  distributors  of  audiovisual  and  cinematographic 
production.48 They are also, in some instances, required by law to invest a certain percentage 
of turnover in local productions.  

The  MEDIA  programme,  which  has  developed  in  response  to  the  fragmented  nature  of 
European  cultural  markets,  provides  a  successful  support  mechanism  both  to  multi-territory 
availability of European films, and to emerging VoD platforms. Among 16 projects supported 

43 
44 

45 

46 
47 

48 

In 2007, there were over 600 film production companies in France, 400 in the UK and 200 in Germany. 
Investment  per  capita  amounts  to  $41  per  capita  in  the  US,  $20  in  Japan  and  $13  in  Europe  (Screen 
Digest, 2011) 
The  average  budget  of  a  French  initiative  film  in  2010  was  5.48M€,  CNC  "La  production 
cinématographique en 2010" p. 10 
http://ec.europa.eu/culture/media/index_en.htm 
Commission  Communication  "on  certain  legal  aspects  relating  to  cinematographic  and  other 
audiovisual works" COM(2001)534 of 26.09.2001.  
In the UK, for example, TV channels accounted for 31% of filmed entertainment revenues in 2009 (UK 
Competition  Commission  'Movies  on  Pay  TV  Market  Investigation',  Background  paper  "Pay  TV  and 
movies  on  pay  TV").  In  France,  co-production  and  pre-sale  of  rights  to  broadcasters  together  with 
distribution arrangements financed some 55% of films produced on a budget higher than €7M in 2010 
(CNC "La production cinématographique en 2010" p. 17). 

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in 2010 only 4 are of a purely national coverage.49 The other 12 projects have an international 
reach as not necessarily limited to the borders of the European Union.50  

3. 

POLICY APPROACHES  

The  European  Commission  has  expressed  its  commitment  to  help  to  close  gaps  in  the 
availability  of  online  services  for  consumers  by  creating  a  European  framework  for  online 
copyright licensing of multi-territorial and pan-European services.51 As announced in the IPR 
Strategy,  the  Commission  will  present  a  legislative  proposal  in  early  2012  to  improve  the 
collective  management  of  copyright  including  by  increased  transparency  and  better 
governance of collecting societies, and thus to ensure that collective management evolves and 
responds  to  the  needs  of  multi-territorial  licensing.  As  regards  audiovisual  works  where 
licensing directly through a one stop shop (the producer) is often possible, this framework to 
facilitate  the  collective  licensing  of  rights  may  be  particularly  important  for  certain  aspects 
such as the clearing of rights for music incorporated in the audiovisual work.  

Other options have been put forward. One is to extend the "country of origin" principle that 
underpins acts of broadcasting by satellite (as set out in the Satellite and Cable Directive) to 
the delivery of programming online, in particular for the delivery of services made available 
on demand that are ancillary  to  broadcast activities (e.g. catch up TV). Under this scenario, 
the  applicable  law  would  be  that  of  the  country  where  the  online  transmission  originates, 
though parties would also be able to ensure that the licence fee took account of all aspects of 
the transmission, including the actual and potential audience as well as the language version.52 
In  addition,  the  application  of  this  "country  of  origin"  approach  would  not  affect  the 
contractual  freedom  of  the  parties  i.e.  when  setting  the  licence  terms,  rightholders  and 
commercial users would be able to agree by contract the territorial scope of the licence.53  

Questions arise as to how the “country of origin” would be determined in respect of on line 
transmissions.54  This  is  particularly  relevant  in  relation  to  transactional  on-demand  services 
where  the  introduction  of  the  "country  of  origin"  approach  could  easily  entail  regulatory 
arbitrage  with  regard  to  the  choice  of  country  of  establishment  of  the  service  provider. 

49 

50 

51 

52 
53 
54 

These platforms must have a "minimum European dimension" (they should include works from at least 
five  eligible  countries  representing  five  official  languages  of  the  EU).  Among  the  award  criteria  a 
special bonus is accorded to platforms offering cross border and language distribution. 
VOD  platforms  such  as  MUBI,  UNIVERSCINE,  EUROVOD  are  supported  by  the  MEDIA 
programme,  e.g.  EUROVOD  and  MUBI  (http://mubi.com)  have  acquired  brand  recognition  and 
through  their  deal  with  Sony  Playstation  have  a  reasonable  prospect  of  establishing  themselves;  they 
offer a European wide offer of films for a limited part of their catalogue and, in addition, offer various 
catalogues on a territory basis; MEDICI (www.Medici.TV) has become internationally well-known in a 
specific area (classical music) and offers streaming services of live music performances on the Internet; 
Mobile  projects  benefiting  from  the  MEDIA  programme  such  as  Shortz  (www.shortz-tv.com)  also 
have a pan-European reach. 
See  Communication  of  the  European  Commission  on  "A  Single  Market  for  Intellectual  Property 
Rights", COM (2011) 287, p. 11. 
Recital 17 of Directive 93/83/EC. 
Satellite and Cable Directive, Recital 16. 
In respect of satellite broadcasts, the act of communication occurs solely in the Member State where, 
under the control and responsibility of the  broadcasting organization, the programme-carrying signals 
are  introduced  into  an uninterrupted  chain  of  command  leading  to  the  satellite  and  down  towards  the 
earth. See Satellite and Cable Directive, Art. 1(2)b.  

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Audiovisual works are language-specific in value and most audiovisual media services focus 
primarily  on  a  national  audience,  or,  at  their  broadest,  on  common  language  groups.  The 
precise  extent  of  the  problem,  and  the  added  value  of  an  extension  of  a  country  of  origin 
principle,  need  to  be  assessed.  Other  questions  relating  to  the  level  of  protection  of 
rightholders and the need for further harmonisation should also be examined. Reasons for the 
fact that, more than fifteen years after the application of the relevant Directive, this approach 
does  not  seem  to  have  led  to  a  broad  emergence  of  pan-European  satellite  broadcasting 
services also need to be considered.55  

The Commission undertook in the "IPR Strategy" to examine the more far-reaching approach 
of  the  creation  of  a  comprehensive  unitary  European  Copyright  Code.  Such  a  unitary 
European  Copyright  Code  could  be  based  on  a  codification  of  the  existing  EU  copyright 
directives where the need to go beyond the current harmonisation will be examined.  

It  could  also  provide  the  opportunity  to  examine  whether  the  exceptions  and  limitations  to 
copyright allowed under the Information Society Directive56
 need to be updated. In addition to 
such  a  Code,  the  feasibility  of  creating  an  optional  unitary  copyright  title  on  the  basis  of 
Article  118  TFEU  could  be  examined.57  An  optional  title  could  be  made  available  on  a 
voluntary  basis  and  co-exist  with  national  titles.  Future  authors  or  producers  of  audiovisual 
works would have the option to register their works and then obtain a single title that would 
be  valid  throughout  the  EU.  The  feasibility,  actual  demand  for,  and  the  tangible  advantages 
of, such a title, together with the consequences of its application alongside existing territorial 
protection must be thoroughly examined. 

Finally,  concerns  have  been  raised  in  this  area,  as  in  others,  about  the  accuracy  of  rights 
ownership  information.  There  seems  therefore  to  be  merit  in  examining  the  options  for 
developing  data  management  systems  for  the  ownership  of  rights  in  audiovisual  works.58 
Furthermore,  in  light  of  the  need  for  rights  clearance  for  pre-existing  works  and  subject 
matters incorporated in the audiovisual work there seems to be merit in exploring the ways in 
which sources of rights ownership information could be shared across sectors. 

3.1. 

Questions  

1.  What  are  the  main  legal  and  other  obstacles  –  copyright  or  otherwise  -  that  impede  the 
development  of  the  digital  single  market  for the  cross-border  distribution  of  audiovisual 
works? Which framework conditions should be adapted or be put in place to stimulate a 
dynamic  digital  single  market  for  audiovisual  content  and  to  facilitate  multi-territorial 
licensing? What should be the key priorities?  

55 

56 

57 

58 

In  many  cases,  the  geographical  scope  of  satellite  broadcasts  remains  limited,  and  few  pan-European 
services  have  emerged.  One  study  has  found  that  under  half  of  the  EU  satellite  channels  are 
international, these being primarily information channels, adult-content and minority-language channels 
(see KEA Study "Multi-territory Licensing of Audiovisual Works in the European Union", p 146). 
Directive  2001/29/EC  on  the  harmonisation  of  certain  aspects  of  copyright  and  related  rights  in  the 
information society, 22 May 2001. 
See  Communication  of  the  European  Commission  on  "A  Single  Market  for  Intellectual  Property 
Rights", COM (2011) 287, p. 11. 
Audiovisual producers are working on an international identification numbering system for audiovisual 
works  (ISAN,  International  Standard  Audiovisual  Number).  To  date  ISAN  does  not  contain  rights 
ownership information and participation is on a voluntary basis. Some of the major US film studios are 
working on a similar system (EIDR, Entertainment Identifier Registry). 

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2.  What practical problems arise for audiovisual media services providers in the context of 
clearing  rights  in  audiovisual  works  (a)  in  a  single  territory;  and  (b)  across  multiple 
territories? What rights are affected? For which uses?  

3.  Can copyright clearance problems be solved by improving the licensing framework? Is a 
copyright system based on territoriality in the EU appropriate in the online environment? 

4.  What  technological  means,  for  example  individual  access  codes,  could  be  envisaged  to 
enable  consumers  to  access  "their"  broadcast  or  other  services  and  "their"  content, 
irrespective  of  their  location?  What  impact  might  such  approaches  have  on  licensing 
models? 

5.  What  would  be  the  feasibility,  and  what  would  be  the  advantages  and  disadvantages  of, 
extending the "country of origin" principle, as applied to satellite broadcasting, to online 
audiovisual  media  services?  What  would  be  the  most  appropriate  way  to  determine  the 
country of origin" in respect to online transmissions?  

6.  What  would  be  the  costs  and  benefits  of  extending  the  copyright  clearance  system  for 
cross-border  retransmission  of  audiovisual  media  services  by  cable  on  a  technology-
neutral basis? Should such an extension be limited to "closed environments" such as IPTV 
or should it cover all forms of open retransmissions (Simulcasting) over the internet?  

7.  Are  specific  measures  needed  in  light  of  the  fast  development  of  social  networking  and 
social  media  sites  which  rely  on  the  creation  and  upload  of  online  content  by  end-users 
(blogs, podcasts, posts, wikis, mash-ups, file and video sharing)? 

8.  How  will  further  technological  developments  (e.g.  cloud  computing)  impact  upon  the 
distribution  of  audiovisual  content,  including the  delivery  of  content  to  multiple  devices 
and customers' ability to access content regardless of their location?  

9.  How  could  technology  facilitate  the  clearing  of  rights?  Would  the  development  of 
identification systems for audiovisual works and rights ownership databases facilitate the 
clearance of rights for online distribution of audiovisual works? What role, if any, is there 
for the European Union?  

10. Are the current models of film financing and distribution, based on staggered platform and 
territorial release options, still relevant in the context of online audiovisual services? What 
is  the  best  means  to  facilitate  older  films  which  are  no  longer  under  an  exclusivity 
agreement being released for online distribution across the EU?  

11. Should  Member  States  be  prohibited  from  maintaining  or  introducing  legally  binding 

release windows in the context of state funding for film production?  

12. What measures should be taken to ensure the share and/or prominence of European works 
in  the  catalogue  of  programmes  offered  by  on-demand  audiovisual  media  service 
providers? 

13. What  are  your  views  on  the  possible  advantages  and  disadvantages  of  harmonizing 

copyright in the EU via a comprehensive Copyright Code? 

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14. What are your views on the introduction of an optional unitary EU Copyright Title? What 
should be the characteristics of a unitary Title, including in relation to national rights?  

4. 

RIGHTS  HOLDERS'  REMUNERATION  FOR  ONLINE  EXPLOITATION  OF  AUDIOVISUAL 
WORKS 

The European Commission considers that an appropriate remuneration for rightholders should 
be  ensured.  In  parallel,  it  is  essential  for  the  development  of  cross-border  services  in  the 
digital  single  market  that  the  ownership  and  rights  for  cross-border  services  are  transparent 
and  that  the  costs  of  launching  new  services  are  predictable.  Ultimately,  the  facilitation  of 
successful cross-border services will lead to more remuneration for creators.  

While there has been extensive harmonization in the EU as regards exclusive economic rights 
and  the  term  of  protection,59  rules  on  authorship  and  first  ownership  in  the  EU  have  only 
partially been  harmonised.  As identified by the Commission in its report on the question of 
authorship of cinematographic or audiovisual works in the Community:60 

"As  a  result  of  this  harmonisation,  all  Member  States  consider  the  principal  director  of  the 
film as one of its authors now. However, Community legislation has not resulted in complete 
harmonisation  of  the  notion  of  authorship  in  cinematographic  and  audiovisual  works. 
Differences  in  detail  still  exist  with  respect  to  the  question  of  who,  among  the  group  of 
persons  involved  in  the  making  of  the  film,  are  to  be  considered  as  co-authors  besides  the 
principal director".61 

Furthermore,  national  rules  on  transfers  and  assignments  of  rights  diverge,  as  do  those  on 
legal  succession.  The  scope  of  the  transfer  of  rights  also  differs  in  Member  States.62  The 
patchwork  of  approaches  across  the  EU  is  considered  by  some  to  pose  a  challenge  to  the 
licensing  of  audiovisual  works  within  the  European  Union,  making  it  complex  and  time-
consuming.  

59 

60 
61 

62 

Directive  93/83/EECon  the  coordination  of  certain  rules  concerning  copyright  and  rights  related  to 
copyright  applicable  to  satellite  broadcasting  and  cable  retransmission;  Directive  2001/29/EC  on  the 
harmonisation  of  certain  aspects  of  copyright  and  related  rights  in  the  information  society,  Directive 
2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of 
intellectual  property  and  Directive  2006/116/ECon  the  term  of  protection  of  copyright  and  certain 
related rights. 
COM/2002/0691 final, 6 December 2002. 
For example, French law considers several contributors to an audiovisual work as authors: the author of 
the  scenario,  the  author  of  the  film  adaptation,  the  author  of  the  dialogue,  the  author  of  musical 
compositions  specifically  composed  for  the  film,  the  director  and  the  composer  of  the  author  of  the 
work  which  has  been  cinematographically  adapted.  In  Germany,  anyone  making  a  certain  creative 
contribution  may  be  regarded  as  co-author;  German  courts  have  to  date  deemed  the  director,  the 
cameraman and the editor to be authors. In the UK, Ireland and Luxembourg the film producer is also a 
co-author of the audiovisual work.  
For example, the French law on audiovisual productions is based on the assumption that all economic 
rights  in  a  film  have  been  transferred  to  the  producer,  while  in  Austria  or  Italy,  the  producer  is  the 
original owner of all cinematographic exploitation rights. In the UK, the principal director is presumed 
to be the film's original author and the rights are transferred to the producer under the "works for hire" 
doctrine, which presupposes that the director is employed by the producer. Other Member States such 
as  Belgium,  Denmark,  Finland,  Greece,  Portugal,  Sweden  or  the  Netherlands  also  provide  for 
presumptions of various scope. 

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4.1. 

Authors' remuneration for online exploitation 

For the most part, authors transfer their exclusive economic rights to the producer in return for 
a  lump  sum  or  "buy  out"  payment  for  their  contribution  to  an  audiovisual  work  (writing 
and/or  directing  etc).  It  is  not  the  norm  for  authors  to  receive  a  per  use  remuneration  for 
primary  uses  of  their  work  such  as  cinema  exhibition  or  the  sale  of  DVDs.63  Equally,  the 
majority of Member States do not provide a framework for audiovisual authors to receive a 
"per-use" payment for the online exploitation of their works.64  

In  some  Member  States  (France,  Belgium,  and  Bulgaria)  collective  management  societies 
representing audiovisual authors are contractually entitled to collect remuneration on a per use 
basis  on  behalf  of  their  members  for  the  TV  broadcasting  of  their  works.  In  some  other 
countries (Spain, Italy, Poland) the final distributor, usually the broadcaster, is considered by 
law to be responsible for per use payments to the author. The producer nevertheless is vested 
with the economic rights that need to be cleared for exploitation. 

It could be argued that authors have no economic benefit from the online exploitation of their 
works if no proportional remuneration is being passed on a per use basis. To remedy this, one 
option  would  be  the  introduction  of  an  unwaivable  right  to  remuneration  for  their  "making 
available"  right  managed,  compulsorily,  on  a  collective  basis.  Another  option  would  be  to 
promote authors' ability to undertake negotiations individually or collectively. This could be 
seen  as  the  best  way  to  maximize  the  value  of  authors'  exclusive  rights,  especially  as  the 
making available right could prove to be one of their most valuable negotiating assets in the 
future. 

4.2. 

Performers' remuneration for online exploitation  

As  with  audiovisual  authors,  in  most  EU  countries  the  exclusive  economic  rights  of 
audiovisual performers, including the "making available" right for interactive online use, are 
usually transferred to the producer by law or by contract upfront, in exchange for a lump sum. 
Only  a  few  Member  States,  such  as  Spain,  provide  for  an  equitable  remuneration  for 
audiovisual  performers,  in  order  to  ensure  that  they  receive  a  proportionate  share  in  the 
proceeds of the exploitation of their performances.  

It  could  be  argued  that  performers  should  equally  be  entitled,  on  a  harmonised  basis,  to  an 
unwaivable  right  to  remuneration  from  which  they  would  benefit  even  after  they  have 
transferred  their  exclusive  right  of  making  available.  This  right  could  also  be  compulsorily 
collected  by  collective  management  societies.  Again,  other  means  to  ensure  that  performers 
can individually or collectively negotiate adequate remuneration should be considered. 

With regard to authors' and performers' remuneration, it could be argued that the creation of 
another layer of remuneration rights might increase uncertainties as to where and from whom 
licences need to be cleared (particularly in the absence of harmonised rules on authorship in 
the EU) and require users to administer and reconcile multiple remuneration claims for each 
audiovisual  work.  This  option  could  therefore  be  seen  as  detrimental  to  the  development  of 

63 

64 

The Rental and Lending Directive provides for authors and performers an unwaivable right to equitable 
remuneration which would be applicable in the case of DVD rental. The remuneration is not subject to 
compulsory collective management. 
The  "making  available"  right  granted  under  the  2001  Information  Society  Directive  is  in  most  cases 
transferred to the producer upfront. 

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online distribution platforms for audiovisual works by increasing transaction costs and legal 
and economic uncertainty.  

It  is  important  to  assess  whether  the  creation  of  new  remuneration  rights  to  be  collectively 
managed  is  the  only  means  to  ensure  adequate  remuneration,  or  whether  alternative 
mechanisms  could  be  established  to  ensure  that  authors'  and  performers'  remuneration 
adequately reflects the success of a work.65 

4.3. 

Questions  

15. Is the harmonisation of the notion of authorship and/or the transfer of rights in audiovisual 
productions required in order to facilitate the cross border licensing of audiovisual works 
in the EU?  

16. Is an unwaivable right to remuneration required at European level for audiovisual authors 
to  guarantee  proportional  remuneration  for  online  uses  of  their  works  after  they 
transferred  their  making  available  right?  If  so,  should  such  a  remuneration  right  be 
compulsorily administered by collecting societies?  

17. What would be the costs and benefits of introducing such a right for all stakeholders in the 
value  chain,  including  consumers?  In  particular,  what  would  be  the  effect  on  the  cross-
border licensing of audiovisual works? 

18. Is  an  unwaivable  right  to  remuneration  required  at  European  level  for  audiovisual 
performers to guarantee proportional remuneration for online uses of their performances 
after they transferred their making available right? If so, should such a remuneration right 
be compulsorily be administered by collecting societies?  

19. What would be the costs and benefits of introducing such a right for all stakeholders in the 
value  chain,  including  consumers?  In  particular,  what  would  be  the  effect  on  the  cross-
border licensing of audiovisual works? 

20. Are there other means to ensure the adequate remuneration of authors and performers and 

if so which ones? 

65 

For example, one approach to ensuring that authors' and performers' remuneration adequately reflects 
the  success  of  a  work  could  be  the  introduction  of  legally  binding  provisions  on  transparency  and 
remuneration in contracts.  

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5. 

SPECIAL USES AND BENEFICIARIES  

5.1. 

Film heritage institutions 

Film  heritage  institutions66  have,  in  line  with  their  public  interest  missions  such  as 
preservation, restoration and the provision of cultural and educational access to works in their 
collections,  a  strong  interest  in  digitising  their  archives,  making  them  available  online  and 
projecting  them  in  digital  format  in  their  cinémathèques.  These  institutions  do  not  own  the 
rights in the audiovisual works in their possession, but merely hold such works as a function 
of  their  role  as  cultural  depositories.  Such  institutions  have  expressed  the  concern  that 
clearing the rights for the works they hold is time-consuming and costly. They are concerned 
that the current EU framework does not provide them with sufficient legal certainty to carry 
out all the necessary processes for the fulfilment of their responsibilities, which might include 
media and format migration, and the transmission of works to one or more remote locations 
for preservation purposes, etc.  

The Green Paper on "Copyright in the knowledge economy",67 followed by the Commission 
Communication on "Copyright in the knowledge economy",68 opened discussion on the non-
mandatory  exceptions  of  Article  5(2)(c)  (reproduction  for  preservation  in  libraries)  and  of 
Article 5(3)(n) (in situ consultation for researchers) of Directive 2001/29/EC on copyright in 
the information society. In order to provide them with legal certainty to carry out their tasks, 
European  film  archives  have  expressed  the  view  that  these  exceptions  should  become 
mandatory and their application harmonised among Member States.  

5.2. 

Questions 

21. Are  legislative  changes  required  in  order  to  help  film  heritage  institutions  fulfil  their 
public  interest  mission?  Should  exceptions  of  Article  5(2)(c)  (reproduction  for 
preservation  in  libraries)  and  of  Article  5(3)(n)  (in  situ  consultation  for  researchers)  of 
Directive 2001/29/EC be adapted in order to provide legal security to the daily practice of 
European film heritage institutions? 

22. What other measures could be considered? 

5.3. 

Accessibility of online audiovisual works in the European Union 

The European Disability Strategy 2010-2020 refers to accessibility problems that person with 
disability experience. In particular it mentions that many television broadcasters still provide 
few subtitles and audio-described programmes.  

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67 
68 

Film heritage institutions or archives refer to those public bodies which Member States have designated 
to  systematically  collect,  catalogue,  preserve,  restore  and  make  accessible  for  educational,  cultural, 
research  or  other  non-commercial  uses  cinematographic  and  other  audiovisual  works  (see  point  2  of 
Recommendation 2005/865/EC of the European Parliament and of the Council of 16 November 2005 
on  film  heritage  and  the  competitiveness  of  related  industrial  activities,  OJ  L.323,  9.12.2005,  pp.  57-
61). A system of legal deposit of cinematographic works exists in the majority of Member States, either 
through legal deposit or through the compulsory deposit of cinematographic works that have received 
public funding.  
COM(2008) 466 of 16.07.2008. 
COM(2009) 532 of 19.10.2009. 

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The strategy proposes to optimise accessibility in line with the Digital Agenda and includes 
among the list of actions for 2010-2015 the intention to systematically evaluate accessibility 
in  the  revision  of  legislation  undertaken  under  the  Digital  Agenda  following  the  UN 
Convention on the Rights of Persons with Disabilities (UNCRPD).69 

5.4. 

Questions 

23. Which  practical  problems  arise  for  persons  with  disabilities  to  have  access  on  an  equal 

basis with others to audiovisual media services in Europe?  

24. Does the copyright framework need to be adapted to improve accessibility to audiovisual 

works for persons with disabilities? 

25. What would be the practical benefits of harmonising accessibility requirements to online 

audiovisual media services in Europe?  

26. What  other  actions  should  be  explored  to  increase  the  availability  of  accessible  content 

across Europe? 

6. 

NEXT STEPS 

All interested parties are invited to comment on the ideas raised in this Green Paper, including 
by responding to the specific questions listed, to the following address: 

DG Internal Market and Services, Unit D-1 "Copyright" 
E-mail: markt-d1@ec.europa.eu  

Postal address: European Commission 
Internal Market Directorate General, Unit D-1 
Rue de Spa 2 
Office 06/014 
1049 Brussels 
Belgium 

Please  submit  your  comments  by  18  November  2011  in  electronic  format.  Received 
contributions will be published on the on the DG Internal Market and Services website unless 
a contributor requests otherwise. It is important to read the specific privacy statement attached 
to this consultation for information on how your personal data and contribution will be dealt 
with. 

69 

This Convention stipulates in its Article 30 on Participation in cultural, recreation, leisure and sport that 
State  Parties  shall  recognise  the  right  of  persons  with  disabilities  to  take  part  on  an  equal  basis  with 
others in cultural life, and shall take appropriate measures to ensure that persons with disabilities inter 
alia  enjoy  access  to  television  programmes,  films,  theatre  and  other  cultural  activities  in  accessible 
formats.  Furthermore  it  mentions  that  State  Parties  shall  take  appropriate  steps,  in  accordance  with 
international  law,  to  ensure  that  laws  protecting  intellectual  property  rights  do  not  constitute  an 
unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials. 

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