Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes
Date: 2016-09-14
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: EU Member State, Internet, audiovisual programme, broadcasting, copyright, digital technology, information system, single market, television, transmission network

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   EUROPEAN COMMISSION  Brussels, 14.9.2016  COM(2016) 594 final 2016/0284 (COD)   Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes (Text with EEA relevance) {SWD(2016) 301} {SWD(2016) 302}  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Digital  technologies  facilitate  the  distribution  of  and  access  to  works  and  other  protected 
subject matter, with 49% of European internet users accessing music, audiovisual content and 
games online.1 Broadcasters and retransmission service providers are increasingly investing in 
the  development  of  digital  and  online  services  for  the  distribution  of  radio  and  television 
programmes.  The  online  offerings  of  broadcasters  include  notably  simulcasting  services 
(TV/radio  channels  which  are  transmitted  online  alongside  traditional  broadcasting  by 
satellite,  cable  or,  terrestrial),  TV  catch-up  services2  and  podcasts.  Despite  the  growing 
variety  of  online  services,  broadcasters’  programmes  often  remain  unavailable  online  to 
European  citizens  living  in  other  Member  States.  In  addition,  the  variety  of  TV  and  radio 
channels from other Member States provided by retransmission services differs across the EU. 

Broadcasting  organisations  transmit  on  a  daily  basis  a  high  number  of  news,  cultural, 
political, documentary or entertainment programmes that they license from others or produce 
themselves. These programmes incorporate a variety of protected content such as audiovisual, 
musical,  literary  or  graphic  works.  This  requires  a  complex  clearance  of  rights  with  a 
multitude  of  right  holders.  Often,  the  rights  need  to  be  cleared  in  a  short  time-frame,  in 
particular when preparing programmes such as news or current affairs. In order to make their 
services available across borders, broadcasting organisations need to have the required rights 
for  the  relevant  territories  and  this  increases  the  complexity  of  the  rights'  clearance.  For 
satellite  broadcasting  the  clearance  of  rights  has  been  facilitated  by  the  application  of  the 
country  of  origin  principle  enshrined  in  the  Satellite  and  Cable  Directive  (Directive 
93/83/EEC),  allowing  broadcasters  to  clear  the  rights  only  in  one  Member  State.  That 
Directive does not apply when a broadcaster clears rights for its online services. 

Operators  of  retransmission  services,  which  aggregate  a  high  number  of  TV  and  radio 
channels  into  packages,  also  face  difficulties  for  acquiring  all  the  rights  necessary  to 
retransmit  the  television  and  radio  programmes  of  broadcasting  organisations.  The  Satellite 
and  Cable  Directive  provides  for  a  system  of  mandatory  collective  management  for 
retransmissions by cable of TV and radio broadcasts from other Member States. This system, 
facilitating  the  clearance  of  rights,  does  not  extend  to  retransmission  services  provided  by 
means  other  than  cable  over  closed  electronic  communication  networks,  such  as  IPTV 
(TV/radio over closed circuit  IP-based networks). Operators  of such retransmission services 
therefore face a heavy rights clearing burden in order to be able to provide their services, in 
particular when they retransmit TV and radio broadcasts from other Member States.  

This  proposal  aims  to  promote  the  cross-border  provision  of  online  services  ancillary  to 
broadcasts  and  to  facilitate  digital  retransmissions  over  closed  networks  of  TV  and  radio 
programmes originating in other Member States by adapting the Union legal framework. By 
addressing the difficulties related to the clearance of rights, it creates the conditions allowing 
broadcasters  and  operators  of  retransmission  services to  offer  wider  access  to  TV  and  radio 
programmes across the EU. As a result, this proposal will promote consumers' access to more 
TV  and  radio  programmes  originating  in  other  Member  States,  both  as  concerns  ancillary 
online  services  of  broadcasting  organisations  and  retransmission  services.  The  proposal 

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Source: Eurostat, ‘Community survey on ICT usage in households and by individuals’, 2014. 
The  concept  of  ‘catch-up’  television,  enabling  consumers  to  view  programmes  at  the  own  choice  of 
timing, is generally based on clearance of the rights for programming within a limited window, typically 
7 to 30 days after transmission. 

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introduces a common approach in the Union while maintaining a high level of protection for 
right holders. In doing so, it contributes to the functioning of the internal market as an area 
without internal borders.  

Consistency with existing provisions in the policy area 

• 
The Digital Single Market Strategy3 puts forward a range of initiatives in order to create an 
internal market for digital content and services. In December 2015, a first step was undertaken 
by the Commission with the proposal for a Regulation of the European Parliament and of the 
Council  on  ensuring  the  cross-border  portability  of  online  content  services  in  the  internal 
market4.  

This  proposal  responds  to  one  of  the  key  objectives  identified  in  the  Digital  Single  Market 
Strategy: to enhance wider online access to TV and radio programmes by users across the EU. 
Promoting the cross-border provision of online services ancillary to broadcasts and facilitating 
digital retransmissions of TV and radio programmes originating in other Member States is a 
significant step that addresses a specific obstacle to cross-border access to broadcast content 
for the benefit of users.  

This proposal is consistent with the legal instruments in the domain of copyright, in particular 
Directive  93/83/EEC,  Directive  2001/29/EC,  Directive  2006/115/EC  and  Directive 
2014/26/EU.  Those  Directives,  as well  as  this proposal,  contribute  to  the  functioning  of  the 
internal market, ensure a high level of protection for right holders and facilitate the clearance 
of rights.  

This  proposal  also  contributes  to  the  improvement  of  the  cross-border  reach  of  audiovisual 
media services and hence complements Directive 2010/13/EU5. 

• 

Consistency with other Union policies 

According to Article 167 of the Treaty on the Functioning of the European Union (TFEU), the 
Union shall take cultural aspects into account in its action under the Treaties. By facilitating 
access to TV and radio programmes, this proposal would enhance access to cultural content, 
news and information. 

This proposal contributes to promoting the interests of consumers by promoting more access 
to  TV  and  radio  programmes  from  other  Member  States  and  thus  is  consistent  with  the  EU 
policies in the field of consumer protection and Article 169 TFEU. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal for a Regulation is based on Article 114 TFEU. This Article confers on the EU 
the power to adopt measures which have as their object the establishment and functioning of 
the internal market. This includes the freedom to provide and to receive services. 

The EU has harmonised the rights which are relevant for the online dissemination of works 
and  other  protected  subject  matter  as  well  as  for  the  retransmission  of  TV  and  radio 
programmes  (notably  the  rights  of  reproduction,  communication  to  the  public  and  making 
available) in Directive 2001/29. 

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COM(2015) 192 final. 
COM(2015) 627 final. 
OJ L 95, 15.4.2010, p. 1–24. 

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The present proposal for a Regulation concerns the facilitation of the clearance of rights for 
ancillary online services by broadcasting organisations by introducing a principle of country 
of origin, according to which the copyright relevant act takes place solely in the Member State 
where the broadcasting organisation is established. It also facilitates the clearance of rights for 
retransmission services provided over closed networks (other than cable), by introducing rules 
on mandatory collective management. The aim of the proposal is to take account of, inter alia, 
the  changes  in  technology  which  necessitate  adaptation  of  the  previously  harmonised  legal 
framework.  

The  proposed  instrument  is  a  regulation  given  the  need  to  ensure  that  the  rules  achieve  the 
objective in a uniform manner and are directly applicable. 

• 

Subsidiarity (for non-exclusive competence)  

The issue addressed by this proposal, namely wider access to TV and radio programmes by 
citizens across the Union, is in essence of a cross-border nature. Only a Union instrument can 
establish a rule that applies the principle of the country of origin to cross-border transmissions 
of TV and radio programmes. Concerning the exercise of retransmission rights, only a Union 
instrument can remove the existing market fragmentation in the way rights are managed for 
digital retransmission services and thereby ensure legal certainty to retransmission operators. 
Nevertheless,  certain  specific  provisions  concerning  the  application  of  mandatory  collective 
management to retransmission services provided over closed networks should be determined 
by Member States. 

• 

Proportionality 

The proposal establishes enabling mechanisms in order to facilitate the clearance of copyright 
and related rights in relation to certain types of online transmissions and retransmissions over 
closed networks of TV and radio programmes. It is targeted and covers only specific segments 
of  the  market  (ancillary  online  services  of  broadcasters  and  certain  retransmission  services 
provided  by  means  of  IPTV  and  other  “closed”  electronic  communications  networks)  while 
other  services  (e.g.  on-demand  services  not  linked  to  a  broadcast)  are  outside  its  scope.  In 
addition,  the  proposal  does  not  oblige  broadcasting  organisations  to  provide  their  online 
ancillary  services  across  borders,  nor  does  it  oblige  operators  of  retransmission  services  to 
offer  programmes  from  other  Member  States.  The  proposal  does  not  prevent  either  the 
exercise of the contractual freedom of the parties to limit the exploitation of the rights affected 
by the principle of country of origin done in compliance with Union law. 

Concerning  the  country  of  origin  rule  applicable  for  clearing  rights  for  the  broadcasters' 
ancillary  online  services,  it  only  localises  the  relevant  copyright  acts  for  the  purposes  of 
exercising the rights (e.g. obtaining a licence). Therefore, the country of origin does not affect 
the  localisation  of  the  relevant  copyright  acts  when  rights  have  not  been  cleared  (i.e.  in  the 
case of unauthorised transmissions). 

As  concerns  the  retransmission  rights,  the  proposal  only  affects  the  exercise  of  the 
retransmission  rights  while  leaving  these  rights  intact.  Moreover,  the  proposal  covers 
retransmissions  insofar  as  they  concern  TV  and  radio  programmes  originating  in  other 
Member States.  

• 

Choice of the instrument 

A regulation is directly applicable in Member States and therefore this instrument guarantees 
a uniform application of the rules across the Union and their entering into force at the same 
time. This would allow ensuring full legal certainty to service providers operating in different 
territories.  The  direct  applicability  of  the  provisions  of  this  proposal  would  prevent  legal 

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fragmentation and provide a harmonised set of rules to facilitate the cross border provision of 
TV and radio programmes online and of the retransmission services. 

3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

• 
The  Commission  carried  out  an  evaluation  of Directive  93/83/EEC6  and  in  particular  of  the 
effectiveness and relevance of the principle of the country of origin as it applies  to satellite 
transmissions and of the rules on mandatory collective management for cable retransmissions. 
The evaluation showed that these mechanisms have facilitated the clearance of copyright and 
related rights for cross-border satellite broadcasts and for the simultaneous retransmissions by 
cable  of  broadcasts  from  other  Member  States.  It  however  pointed  out  that  Directive 
93/83/EEC  -  due  to  the  technology-specific  nature  of  its  provisions  -  does  not  apply  to  the 
new  digital  technologies  used  for  transmission  and  retransmission  of  TV  and  radio 
programmes that have emerged in recent years.  

Stakeholder consultations 

• 
A public consultation on the review of Directive 93/83/EEC was conducted from 24 August to 
16 November 2015.7 It invited respondents to give feedback  on the functioning of the rules 
related to the clearance of rights for satellite broadcasters and cable operators and to assess the 
possible  need  to  extend  these  rules  to  online  transmissions  and  to  retransmissions  by  other 
means  than  cable.  In  addition,  the  Commission  had  extensive  discussions  with  stakeholders 
(public  and  commercial  broadcasters,  telecommunications  operators,  right  holders  and 
collective  management  organisations  (CMOs))  in  2015-2016  to  discuss  issues  related  to 
online transmissions and retransmissions of TV and radio programmes. 

Consumers are generally in favour of a broad extension of the country of origin principle to 
cover  all  online  services,  even  if  some  of  them  consider  that  this  mechanism  may  not  be 
sufficient to ensure cross-border access. All public service broadcasters as well as commercial 
radios  call  for  the  application  of  the  country  of  origin  principle  to  broadcast-related  online 
services.  By  contrast,  commercial  broadcasters,  right  holders  and  CMOs  express  strong 
reservations on extending the application of the country of origin principle. They consider that 
any such extension would restrict their ability to license rights on a territorial basis.  

Consumers, cable and telecommunication operators, public service broadcasters and the vast 
majority of CMOs are in favour of a possible extension of mandatory collective management 
to  the  simultaneous  retransmissions  of  TV  and  radio  programmes  on  platforms  other  than 
cable.  Many  CMOs  and  public  service  broadcasters  as  well  as  some  cable  and 
telecommunication  operators  insist  that  the  extension  should  be  limited  to  "closed 
environments"  which  function  in  a  manner  comparable  to  cable.  Most  right  holders  are 
against  a  possible  extension  of  the  mandatory  collective  management  regime  due  to  the 
potential disruptive effect on the markets. Commercial broadcasters also tend to oppose it.  

The  measures foreseen  in  this  proposal  take into account a number of concerns signaled by 
stakeholders,  notably  as  regards  the  scope  of  extension  of  the  principle  of  the  country  of 
origin (e.g. broadcasters' video-on-demand services are outside the scope and the intervention 

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See Ex-post (REFIT) Evaluation of the Satellite and Cable Directive (93/83/EEC) 
See  Synopsis  Report  on  the  Responses  to  the  Public  Consultation  on  the  Review  of  the  Satellite  and 
Cable  Directive 
https://ec.europa.eu/digital-single-market/en/news/full-report-public-consultation-
review-eu-satellite-and-cable-directive 

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only relates to the clearance of rights that are necessary for the ancillary online services) and 
of the mechanism of mandatory collective management of rights (which is limited to closed 
networks).  

• 

Collection and use of expertise 

Legal8 and economic9 studies have been conducted on the application of EU copyright rules 
to  the  digital  environment  (in  particular  with  regard  to  online  transmissions  and 
retransmissions in digital networks). In addition, a study has been carried out in 2015/2016 to 
support the evaluation of the Satellite and Cable Directive and the assessment of its possible 
extension.10  

Impact assessment 

• 
An  impact  assessment  was  carried  out  for  this  proposal.11  On  22  July  2016,  the  Regulatory 
Scrutiny Board gave a positive opinion on the understanding that the impact assessment will 
be further improved.12 The final Impact Assessment takes on board the comments contained 
in that opinion. 

The impact assessment examines two sets of policy options, aimed at facilitating the clearance 
of  rights  (i)  for  the  online  transmissions  of  TV  and  radio  programmes;  and  (ii)  for  digital 
retransmissions of TV and radio programmes. 

As  regards  online  transmissions  of  TV  and  radio  programmes,  three  policy  options  were 
examined  further  to  the  baseline  option.  A    non-legislative  option  (Option  1),  consisting  in 
promoting  voluntary  agreements  to  facilitate  the  clearing  of  rights  for  certain  broadcasters' 
online  services,  was  not  retained  as  its  outcome  would  be  uncertain,  depending  on  the 
stakeholders'  willingness  to  license  rights,  and  would  not  ensure  a  homogenous  licensing 
regime.  The  application  of  the  country  of  origin  principle  to  online  transmissions  was 
examined  through  two  legislative  options:  under  Option  2,  the  scope  of  application  was 
limited  to  broadcasters'  online  services  which are  ancillary  to  the  initial  broadcasts (notably 
simulcasting  and  catch-up  services);  under  Option  3  the  application  was  extended  to  online 
transmissions  which  are  not  linked  to  a  broadcast  (webcasting  services).  Option  2  would 
significantly  reduce  the  transaction  costs  faced  by  broadcasters  willing  to  make  their 
transmissions  available online and across  borders. Option  3  would in  principle extend these 
benefits  to  webcasters;  however,  considering  that  the  webcasting  market  is  still  at  a 
development stage and that online operators may easily relocate their establishment in the EU, 
it would also generate legal uncertainty for right holders and could lead to a lowering of the 
level of protection. Option 3 was therefore rejected. The application of the country of origin 
principle  only  to  certain  well-identified  online  services  of  broadcasters  (Option  2)  was 
considered  more  appropriate.  By  reducing  the  transaction  costs  related  to  cross-border 
transmissions,  this  option  will  open  new  opportunities  for  broadcasters  to  offer  their  online 

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Study  on  the  application  of  Directive  2001/29/EC  on  copyright  and  related  rights  in  the  information 
society  (see  in  particular  the  part  on  "retransmission  of  copyright-protected  content  in  digital 
networks"): http://ec.europa.eu/internal_market/copyright/studies/index_en.htm;  
Study  on  the  making  available  right  and  its  relationship  with  the  reproduction  right  in  cross-border 
digital transmissions: http://ec.europa.eu/internal_market/copyright/docs/studies/141219-study_en.pdf 
Economic  Analysis  of 
the  Territoriality  of 
http://ec.europa.eu/internal_market/copyright/docs/studies/1403_study1_en.pdf 
Survey and data gathering to support the evaluation of the Satellite and Cable Directive 93/83/EEC and 
assessment of its possible extension, 2016 [Add reference when published].  
Add link to IA and Executive Summary 
Add link to RSB opinion 

the  Making  Available  Right 

the  EU: 

in 

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services  across  borders,  in  particular  as  concerns  content  which  does  not  rely  on  territorial 
exclusivity. This option does not restrict right holders and broadcasters' possibility to continue 
licensing rights on a territorial basis, subject to the requirements of EU and national law. 

As  regards  digital  retransmissions  of  TV  and  radio  programmes,  two  policy  options  were 
considered  in  addition  to  the  baseline  option.  Under  Option  1,  the  scope  of  application  of 
mandatory collective management of rights was limited to IPTV retransmission services and 
other  retransmission  services  provided  over  "closed"  electronic  communications  networks, 
while under Option 2 it would also cover over-the-top retransmission services, as long as they 
are provided to a defined number of users. Although Option 2 would allow a wider range of 
retransmission services to benefit from reduced transaction costs for the clearance of rights, it 
would also entail risks of undermining right holders' exclusive online rights and distribution 
strategies, leading to a reduction of licensing revenues. Option 1 did not present such a risk, as 
most  of  the  retransmission  services  provided  over  "closed"  electronic  communications 
networks rely on the established infrastructures located in a particular territory. Option 1 was 
chosen  as  the  preferred  option.  It  is  expected  to  increase  consumer  choice  in  terms  of 
retransmission services of TV and radio broadcasts from other Member States.   

The proposal is expected to yield positive results in terms of benefits versus costs. Transaction 
costs  associated  with  the  clearance  of  rights  should  decrease,  fostering  better  choice  to 
consumers  without  disruptive  effects  on  right  holders.  Furthermore,  the  proposal  could 
generate new licensing opportunities for right holders and additional licensing revenues. 

• 

Regulatory fitness and simplification 

The proposal will reduce the transaction costs faced by TV and radio broadcasters as well as 
retransmission service providers and would therefore be positive for SMEs active in this area. 
It  is  also  expected  to  be  beneficial  to  right  holders,  in  particular  individual  right  holders, 
micro-companies  and  SMEs  that  do  not  have  the  capacity  to  manage  individual  licensing 
deals with a high number of service providers in different territories. Therefore, exemptions of 
micro-companies or mitigating measures in favor of SMEs have not been deemed necessary. 

New technological developments have been carefully examined and taken into account in this 
proposal, which focuses on online transmissions and digital retransmissions of TV and radio 
programmes.  Certain  types  of  online  transmission  and  retransmission  services  have  been 
excluded  from  the  scope  of  this  proposal,  mainly  on  the  basis  of  the  uncertainty  linked  to 
ongoing market developments and the nascent nature of certain services.  

• 

Fundamental rights 

By  establishing  the  licensing  regimes  applicable  to  certain  types  of  cross-border  online 
transmissions  and  retransmissions  over  closed  networks,  the  proposal  will  have  a  limited 
impact on copyright as a property right and on the freedom to conduct a business, protected 
under Articles 17 and 16 of the Charter of Fundamental Rights of the European Union. At the 
same  time,  the  proposal  will  have  a  beneficial  impact  on  the  freedom  of  expression  and 
information,  protected  under  Article  11  of  the  Charter,  as  it  will  increase  the  cross-border 
provision and receipt of TV and radio programmes which originate in other Member States.  

4. 

BUDGETARY IMPLICATIONS 

The proposal has no impact on the European Union budget. 

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5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The first data collection should take place when the Regulation enters into force in order to 
establish  the  baseline  for  future  evaluations.  The  monitoring  process  would  then  focus  on 
progress made in relation to the cross-border availability of TV and radio programmes, with 
data collection taking place every two to three years.  

Pursuant  to  Article  6  of  the  proposal,  the  Commission  will  carry  out  a  review  of  the 
Regulation  and  will  present  a  report  on  the  main  findings  to  the  European  Parliament,  the 
Council  and  the  European  Economic  and  Social  Committee.  That  report  will  include  an 
assessment  of  the  effects  of  the  Regulation  on  the  cross-border  accessibility  of  ancillary 
online  services.  The  review  shall  be  conducted  according  to  the  Commission's  Better 
Regulation Guidelines. 

• 

Detailed explanation of the specific provisions of the proposal 

Article 1 defines the services covered by the measures (notably "ancillary online services" and 
"retransmission"  services).  These  definitions  will  be  applied  in  a  uniform  manner  in  the 
Union.  

Article 2 establishes  that the  copyright acts  relevant for the provision  of an ancillary online 
service occur solely in the Member State where the broadcasting organisation is established. 
The  notion  of  the  "principal  establishment"  of  a  broadcasting  organisation  would  be  in 
accordance with Union law. 

Articles 3 and 4 regulate the exercise of the right of retransmission covered by the proposal. 
They  lay  down  rules  that  are  similar  to  those  laid  down  in  Articles  9  and  10  of  Directive 
93/83/EC  concerning  cable  retransmissions.  Article  3  leaves  certain  discretion  to  Member 
States  as  in  the  case  of  cable  retransmission  under  Directive  93/83/EC.  Articles  3  and  4 
include  provisions  on  mandatory  collective  management  of  copyright  and  related  rights 
relevant for retransmission, on legal presumptions of representation by collective management 
organisations  and  on  the  exercise  of  the  cable  retransmission  right  by  broadcasting 
organisations. 

Article 5 sets out transitional provisions. 

Article 6 provides that the Commission shall carry out a review of the Regulation and present 
a  report  on  its  main  findings.  It  obliges  Member  States  to  provide  the  Commission  with 
necessary information for the preparation of that report.  

Article 7 sets out the final provisions, namely the date of entry into force of the Regulation 
and the date from which the Regulation shall apply.  

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2016/0284 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

laying down rules on the exercise of copyright and related rights applicable to certain 
online transmissions of broadcasting organisations and retransmissions of television and 
radio programmes 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee13,  
Having regard to the opinion of the Committee of the Regions14,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

In  order  to  contribute  to  the  functioning  of  the  internal  market,  it  is  necessary  to 
provide  for  wider  dissemination  of  television  and  radio  programmes  originating  in 
other Member States for the benefit of users across the Union by facilitating licensing 
of copyright and related rights in works and other protected subject-matter contained 
in  broadcasts  of  such  programmes.  Indeed,  television  and  radio  programmes  are 
important  means  of  promoting  cultural  and  linguistic  diversity,  social  cohesion  and 
access to information.  

The development of digital technologies and internet has transformed the distribution 
of and access to television and radio programmes. Users increasingly expect to have 
access to television and radio programmes both live and on-demand, using traditional 
channels  such  as  satellite  or  cable  and  also  through  online  services.  Broadcasting 
organisations are therefore increasingly offering, in addition to their own broadcasts of 
television and radio programmes, online services ancillary to their broadcast, such as 
simulcasting  and  catch-up  services.  Retransmission  services  operators,  which 
aggregate  broadcasts  of  television  and  radio  programmes  into  packages  and  provide 
them to users simultaneously to the initial transmission of the broadcast, unaltered and 
unabridged,  use  various  techniques  of  retransmission  such  as  cable,  satellite,  digital 
terrestrial, closed circuit IP-based or mobile networks as well as the open internet. On 
the part of users, there is a growing demand for access to broadcasts of television and 
radio  programmes  not  only  originating  in  their  Member  State  but  also  in  other 
Member States  of the Union, including  from  members of  linguistic minorities of the 

13 
14 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 

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(3) 

(4) 

(5) 

(6) 

Union as well as from persons who live in another Member State than their Member 
State of origin.  

A  number  of  barriers  hinder  the  provision  of  online  services  which  are  ancillary  to 
broadcasts and the provision of retransmission services and thereby the free circulation 
of  television  and  radio  programmes  within  the  Union.  Broadcasting  organisations 
transmit  daily  many  hours  of  news,  cultural,  political,  documentary  or  entertainment 
programmes. These programmes incorporate a variety of content such as audiovisual, 
musical,  literary  or  graphic  works,  which  is  protected  by  copyright  and/or  related 
rights  under  Union  law.  That  results  in  a  complex  process  to  clear  rights  from  a 
multitude  of  right  holders  and  for  different  categories  of  works  and  other  protected 
subject matter. Often the rights need to be cleared in a short time-frame, in particular 
when  preparing  programmes  such  as  news  or  current  affairs.  In  order  to  make  their 
online  services  available  across  borders,  broadcasting  organisations  need  to  have  the 
required  rights  to  works  and  other  protected  subject  matter  for  all  the  relevant 
territories which further increases the complexity of the rights' clearance.  

Operators of retransmission services, that normally offer multiple programmes which 
use  a  multitude  of  works  and  other  protected  subject  matter  included  in  the 
retransmitted  television  and  radio  programmes,  have  a  very  short  time-frame  for 
obtaining  the  necessary  licences  and  hence  also  face  a  significant  rights  clearing 
burden. There is also a risk for right holders of having their works and other protected 
subject matter exploited without authorisation or payment of remuneration.  

The rights in works and other protected subject matter are harmonised, among others, 
through  Directive  2001/29/EC  of  the  European  Parliament  and  of  the  Council15  and 
Directive 2006/115/EC of the European Parliament and of the Council.16 
Council  Directive  93/83/EEC17  facilitates  cross-border  satellite  broadcasting  and 
retransmission by cable of television and radio programmes from other Member States 
of  the  Union.  However,  the  provisions  of  that  Directive  on  transmissions  of 
broadcasting  organisations  are  limited  to  satellite  transmissions  and  therefore  do  not 
apply  to  online  services  ancillary  to  broadcast  while  the  provisions  concerning 
retransmissions  of  television  and  radio  programmes  from  other  Member  States  are 
limited  to  simultaneous,  unaltered  and  unabridged  retransmission  by  cable  or 
microwave  systems  and  do  not  extend  to  such  retransmissions  by  means  of  other 
technologies.  

(7) 

Therefore,  cross-border  provision  of  online  services  ancillary  to  broadcast  and 
retransmissions  of  television  and  radio  programmes  originating  in  other  Member 
States  should  be  facilitated  by  adapting  the  legal  framework  on  the  exercise  of 
copyright and related rights relevant for those activities.  

(8) 

The ancillary online services covered by this Regulation are those services offered by 
broadcasting  organisations  which  have  a  clear  and  subordinate  relationship  to  the 

15 

16 

17 

Directive  2001/29/EC  of  the  European  Parliament  and  of  the  Council  of  22  May  2001  on  the 
harmonisation  of  certain  aspects  of  copyright  and  related  rights  in  the  information  society  OJ  L  167, 
22.6.2001, p. 10–19. 
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental 
right and lending right and on certain rights related to copyright in the field of intellectual property OJ L 
376, 27.12.2006, p. 28–35. 
Council  Directive  93/83/EEC  of  27  September  1993  on  the  coordination  of  certain  rules  concerning 
copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission OJ 
L 248, 6.10.1993, p. 15–21. 

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broadcast. They include services giving access to television and radio programmes in a 
linear  manner  simultaneously  to  the  broadcast  and  services  giving  access,  within  a 
defined  time  period  after  the  broadcast,    to  television  and  radio  programmes  which 
have  been  previously  broadcast  by  the  broadcasting  organisation  (so-called  catch-up 
services). In addition, ancillary online services include services which give access to 
material  which  enriches  or  otherwise  expands  television  and  radio  programmes 
broadcast  by  the  broadcasting  organisation,  including  by  way  of  previewing, 
extending,  supplementing  or  reviewing  the  relevant  programme's  content.  The 
provision  of  access  to  individual  works  or  other  protected  subject  matter  that  have 
been  incorporated  in  a  television  or  radio  programme  should  not  be  regarded  as  an 
ancillary online service. Similarly, the provision of access to works or other protected 
subject matter independently of broadcast, such as services giving access to individual 
musical or audiovisual works, music albums or videos, do not fall under the definition 
of ancillary online service.  

In  order  to  facilitate  the  clearance  of  rights  for  the  provision  of  ancillary  online 
services across borders it is necessary to provide for the establishment of the country 
of origin principle as regards the exercise of copyright and related rights relevant for 
acts occurring in the course of the provision of, the access to or the use of an ancillary 
online  service.  That  principle  of  country  of  origin  should  apply  exclusively  to  the 
relationship  between  right  holders  (or  entities  representing  right  holders  such  as 
collective  management  organisations)  and  broadcasting  organisations  and  solely  for 
the purpose of the provision of, the access to or the use of an ancillary online service. 
The principle of country of origin should not apply to any subsequent communication 
to  the  public  or  reproduction  of  content  which  is  protected  by  copyright  or  related 
rights and which is contained in the ancillary online service.  

(9) 

(10)  Since the provision of, the access to or the use of an ancillary online service is deemed 
to  occur  solely  in  the  Member  State  in  which  the  broadcasting  organisation  has  its 
principal  establishment,  while  de  facto  the  ancillary  online  service  can  be  provided 
across borders to other Member States, it is necessary to ensure that in arriving at the 
amount of the payment to be made for the rights in question, the parties should take 
into  account  all  aspects  of  the  ancillary  online  service  such  as  the  features  of  the 
service,  the  audience,  including  the  audience  in  the  Member  State  in  which  the 
broadcasting organisation has its principal establishment and in other Member States 
in which the ancillary online service is accessed and used, and the language version. 

(11)  Through  the  principle  of  contractual  freedom  it  will  be  possible  to  continue  limiting 
the exploitation of the rights affected by the principle of country of origin laid down in 
this Regulation, especially as far as certain technical means of transmission or certain 
language versions are concerned, provided that any such limitations of the exploitation 
of those rights are in compliance with Union law. 

(12)  Operators  of  retransmission  services  offered  on  satellite,  digital  terrestrial,  closed 
circuit  IP-based,  mobile  and  similar networks,  provide  services  which  are  equivalent 
to those provided by operators of cable retransmission services when they retransmit 
simultaneously, in an unaltered and unabridged manner, for reception by the public, an 
initial  transmission  from  another  Member  State  of  television  or  radio  programmes, 
where  this  initial  transmission  is  by  wire  or  over  the  air,  including  by  satellite  but 
excluding online transmissions, and intended for reception by the public. They should 
therefore  be  within  the  scope  of  this  Regulation  and  benefit  from  the  mechanism 
introducing  mandatory  collective  management  of  rights.  Retransmission  services 
which  are  offered  on  the  open  internet  should  be  excluded  from  the  scope  of  this 

EN 

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(13) 

Regulation as those services have different characteristics. They are not linked to any 
particular infrastructure and their ability to ensure a controlled environment is limited 
when compared for example to cable or closed circuit IP-based networks.   

In  order  to  provide  legal  certainty  to  operators  of  retransmission  services  offered  on 
satellite, digital terrestrial, closed circuit IP-based, mobile or similar networks, and to 
overcome  disparities  in  national  law  regarding  such  retransmission  services,  rules 
similar to those that apply to cable retransmission as defined in Directive 93/83/EEC 
should apply. The rules established in that Directive include the obligation to exercise 
the  right  to  grant  or  refuse  authorisation  to  an  operator  of  a  retransmission  service 
through a collective management organisation. This is without prejudice to Directive 
2014/26/EU18 and in particular to its provisions concerning rights of right holders with 
regard to the choice of a collective management organisation.  

(14)  Any  rights  held  by  broadcasting  organisations  themselves  in  respect  of  their 
broadcasts,  including  rights  in  the  content  of  the  programmes,  should  be  exempted 
from  the  mandatory  collective  management  of  rights  applicable  for  retransmissions. 
Operators  of  retransmission  services  and  broadcasting  organisations  generally  have 
ongoing commercial relations and as a result the identity of broadcasting organisations 
is known to operators of retransmission services and hence the clearance of rights with 
broadcasting  organisations  is  comparatively  simple.  Thus,  to  obtain  the  necessary 
licences from broadcasting organisations, operators of retransmission services do not 
face the same burden as they face to obtain licences from holders  of rights in  works 
and  other  protected  subject  matter  included  in  the  retransmitted  television  and  radio 
programmes. Therefore, there is no need for the simplification of the licensing process 
with regard to rights held by broadcasting organisations.  

(15) 

In order to prevent circumvention of the application of the country of origin principle 
through the extension of the duration of existing agreements concerning the exercise 
of copyright and related rights relevant for the provision of an ancillary online service 
as well as the access to or the use of an ancillary online service, it is necessary to apply 
the  principle  of  country  of  origin  also  to  existing  agreements  but  with  a  transitional 
period.   

(16)  This Regulation respects fundamental rights and observes the principles recognised in 
the  Charter  of  Fundamental  Rights  of  the  European  Union.  Whilst  there  may  be  an 
interference  with  the  exercise  of  the  rights  of  right  holders  insofar  as  mandatory 
collective  management  is  required  for  the  exercise  of  the  right  of  communication  to 
the  public  with  regard  to  retransmission  services,  it  is  necessary  to  prescribe  such  a 
condition  in  a  targeted  manner  for  specific  services  and  in  order  to  allow  more 
widespread  cross-border  dissemination  of  television  and  radio  programmes  by 
facilitating the clearance of these rights.  

(17) 

In order to achieve the objective of promoting the cross-border provision of ancillary 
online services and of facilitating retransmissions of television and radio programmes 
originating  in  other  Member  States,  it  is  appropriate  to  adopt  a  Regulation,  which 
directly applies in Member States. A Regulation is necessary in order to guarantee a 
uniform application of the rules across Member States and their entering into force at 
the same time with regard to all the concerned transmissions and retransmissions. The 
direct  applicability  of  a  Regulation  reduces  legal  fragmentation  and  provides  greater 

18 

Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective 
management of copyright and related rights and multi-territorial licensing of rights in musical works for 
online use in the internal market, OJ L 84, 20.3.2014, p. 72–98. 

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12 

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uniformity by introducing a harmonised set of rules which promote the free circulation 
of television and radio programmes originating in other Member States.  

(18)  A  review  of  the  Regulation  should  be  undertaken  after  the  Regulation  has  been  in 
force for a period of time, in order to assess, among others, to what extent  the cross-
border provision of ancillary online services has increased to the benefit of European 
consumers and hence also to the benefit of improved cultural diversity in the Union. 

(19)  Since the objective of this Regulation, namely promoting the cross-border provision of 
ancillary  online  services  and  facilitating  retransmissions  of  television  and  radio 
programmes  originating  in  other  Member  States,  cannot  be  sufficiently  achieved  by 
Member States and can therefore, by reason of the scale and effects, be better achieved 
at  Union  level,  the  Union  may  adopt  measures  in  accordance  with  the  principle  of 
subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In  accordance 
with the principle of proportionality, as set out in that Article, this Regulation does not 
go beyond what is necessary in order to achieve its objective. As concerns the cross-
border  provision  of  ancillary  online  services,  this  Regulation  establishes  enabling 
mechanisms to facilitate the clearance of copyright and related rights. This Regulation 
does  not  oblige  broadcasting  organisations  to  provide  such  services  across  borders. 
Neither does this Regulation oblige operators of retransmission services to include in 
their services television or radio programmes originating in other Member States. This 
Regulation  concerns  only  the  exercise  of  certain  retransmission  rights  to  the  extent 
necessary  to  simplify  the  licensing  of  copyright  and  related  rights  for  such  services 
and only with regard to television and radio programmes originating in other Member 
States of the Union,   

HAVE ADOPTED THIS REGULATION: 

For the purpose of this Regulation, the following definitions shall apply: 

Article 1 
Definitions 

(a) 

(b) 

19 

"ancillary online service" means an online service consisting in the provision to the 
public, by or under the control and responsibility of a broadcasting organisation, of 
radio or television programmes simultaneously with or for a  defined period of time 
after  their  broadcast  by  the  broadcasting  organisation  as  well  as  of  any  material 
produced  by  or  for  the  broadcasting  organisation  which  is  ancillary  to  such 
broadcast; 

"retransmission" means any simultaneous, unaltered and unabridged retransmission, 
other  than  cable  retransmission  as  defined  in  Directive  93/83/EEC  and  other  than 
retransmission  provided  over  an  internet  access  service  as  defined  in  Regulation 
(EU)  2015/2120  of  the  European  Parliament  and  of  the  Council19,  intended  for 
reception by the public of an initial transmission from another Member State, by wire 
or  over  the  air,  including  that  by  satellite  but  excluding  online  transmission,  of 
television  or  radio  programmes  intended  for  the  reception  by  the  public,  provided 
that such retransmission is made by a party other than the broadcasting organisation 

Regulation  (EU)  2015/2120  of  the  European  Parliament  and  of  the  Council  of  25  November  2015 
laying  down  measures  concerning  open  internet  access  and  amending  Directive  2002/22/EC  on 
universal  service  and  users’  rights  relating  to  electronic  communications  networks  and  services  and 
Regulation  (EU)  No  531/2012  on  roaming  on  public  mobile  communications  networks  within  the 
Union, OJ L 310, 26.11.2015, p. 1. 

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(1) 

(2) 

(1) 

(2) 

(3) 

(4) 

which made  the initial transmission  or  under whose  control and responsibility such 
transmission was made. 

Article 2 
Application of the principle of ‘country of origin’ to ancillary online services 

The  acts  of  communication  to  the  public  and  of  making  available  occurring  when 
providing an ancillary online service by or under the control and responsibility of a 
broadcasting organisation as well as the acts of reproduction which are necessary for 
the provision of, the access to or the use of the ancillary online service shall, for the 
purposes of exercising copyright and related rights relevant for these acts, be deemed 
to  occur  solely  in  the  Member  State  in  which  the  broadcasting  organisation  has  its 
principal establishment.   

When  fixing  the  amount  of  the  payment  to  be  made  for  the  rights  subject  to  the 
country  of  origin  principle  as  set  out  in  paragraph  1,  the  parties  shall  take  into 
account all aspects of the ancillary online service such as the features of the ancillary 
online service, the audience, and the language version.  

Article 3 
Exercise of the rights in retransmission by right holders other than broadcasting 
organisations 

Holders  of  copyright  and  related  rights  other  than  broadcasting  organisations  may 
exercise  their  rights  to  grant  or  refuse  the  authorisation  for  a  retransmission  only 
through a collective management organisation.  

Where a right holder has not transferred the management of the right referred to in 
paragraph  1  to  a  collective  management  organisation,  the  collective  management 
organisation  which  manages  rights  of  the  same  category  for  the  territory  of  the 
Member  State  for  which  the  operator  of  the  retransmission  service  seeks  to  clear 
rights  for  a  retransmission  shall  be deemed  to  be  mandated  to  manage  the  right  on 
behalf of that right holder.  

Where  more  than  one  collective  management  organisation  manages  rights  of  that 
category  for  the  territory  of  that  Member  State,  the  right  holder  shall  be  free  to 
choose  which  of  those  collective  management  organisations  is  deemed  to  be 
mandated to manage his or her right. If in such a situation the right holder does not 
choose the collective management organisation, it shall be for the Member State for 
whose territory the operator of the retransmission service seeks to clear rights for a 
retransmission  to  indicate  which  of  the  collective  management  organisations  is 
deemed to be mandated to manage the right of that right holder. 

A  right  holder  shall  have  the  same  rights  and  obligations  resulting  from  the 
agreement  between  the  operator  of  the  retransmission  service  and  the  collective 
management organisation which is deemed to be mandated to manage his or her right 
as the right holders who have mandated that collective management organisation and 
shall be able to claim those rights within a period, to be fixed by the Member State 
concerned,  which  shall  not  be  shorter  than  three  years  from  the  date  of  the 
retransmission which includes his or her work or other protected subject matter.  

(5) 

A  Member  State  may  provide  that,  where  a  right  holder  authorises  the  initial 
transmission within its territory of a work or other protected subject matter, the right 
holder  shall  be  deemed  to  have  agreed  not  to  exercise  his  or  her  rights  in 

EN 

14 

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retransmission  on  an  individual  basis  but  to  exercise  them  in  accordance  with  this 
Regulation.  

Article 4 
Exercise of the rights in retransmission by broadcasting organisations 

Article 3 shall not apply to the rights exercised by a broadcasting organisation in respect of its 
own  transmission,  irrespective  of  whether  the  rights  concerned  are  its  own  or  have  been 
transferred to it by other holders of copyright or by holders of related rights.  

Article 5 
Transitional provision  

Agreements  on  the  exercise  of  copyright  and  related  rights  relevant  for  the  acts  of 
communication to the public and the making available occurring in the course of provision of 
an ancillary online service as well as for the acts of reproduction which are necessary for the 
provision of, the access to or the use of an ancillary online service which are in force on [the 
date mentioned  in  Article  7(2), to  be inserted by OPOCE ]    shall  be  subject to  Article 2 as 
from [the date mentioned in Article 7(2) + 2 years, to be inserted by OPOCE] if they expire 
after that date. 

Article 6 
Review 

(1) 

(2) 

(1) 

(2)  

No  later  than  [3  years  after  the  date  mentioned  in  Article  7(2)  to  be  inserted  by 
OPOCE], the Commission shall carry out a review of this Regulation and present a 
report  on  the  main  findings  to  the  European  Parliament,  the  Council  and  the 
European Economic and Social Committee.  

Member States shall provide the Commission with the necessary information for the 
preparation of the report referred to in paragraph 1.  

Article 7 
Final provisions 

This  Regulation  shall  enter  into  force  on  the  twentieth  day  following  that  of  its 
publication in the Official Journal of the European Union. 

It  shall  apply  from  [6  months  following  the  day  of  its  publication,  to  be  inserted  by 
OPOCE]. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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