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28 . 1 . 93 Official Journal of the European Communities No C 25 / 43

Amended proposal for a Council Directive on the coordination of certain rules concerning copy ­
right and rights related to copyright applicable to satellite broadcasting and cable retransmis ­

sion (')

( 93 / C 25 / 04 )

COM ( 92 ) 526 final — SYN 358

( Submitted by the Commission pursuant to Article 149 ( 3 ) of the EEC Treaty on 2 December 1992 )

0 ) OJ No C 255, 1 . 10 . 1991, p. 3 .

ORIGINAL PROPOSAL AMENDED PROPOSAL

Proposal for a Council Directive on the coordination of
certain rules concerning copyright and neighbouring rights
applicable to satellite broadcasting and cable retransmis ­

Proposal for a Council Directive on the coordination of
certain rules concerning copyright and rights related to
copyright applicable to satellite broadcasting and cable

sion retransmission

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Economic Community, and in particular Article 57 ( 2 )
thereof,

Having regard to the proposal from the Commission,

In cooperation with the European Parliament,

Having regard to the opinion of the Economic and Social
Committee,

( 1 ) Whereas the objectives of the Community as laid
down in the Treaty include establishing an ever closer
union among the peoples of Europe, fostering closer
relations between the States belonging to the Com ­
munity, and ensuring the economic and social progress
of the Community countries by common action to eli ­
minate the barriers which divide Europe ;

( 2 ) Whereas to that end the Treaty provides for the estab ­
lishment of a common market and an area without

frontiers ; whereas this is to include the abolition of

obstacles to the free movement of services and the

institution of a system ensuring that competition in the
common market is not distorted ; whereas to that end
the Council may adopt directives for the coordination
of the provisions laid down by law, regulation or
administrative action in Member States concerning the
taking up and pursuit of activities as self-employed

persons ;

Having regard to the Treaty establishing the European
Economic Community, and in particular Articles 57 ( 2 )
and 66 thereof,

Having regard to the proposal from the Commission,

In cooperation with the European Parliament,

Having regard to the opinion of the Economic and Social
Committee,

Unchanged

Unchanged

I

No C 25 / 44 Official Journal of the European Communities 28 . 1 . 93

ORIGINAL PROPOSAL AMENDED PROPOSAL

( 3 ) Whereas broadcasts transmitted across frontiers Unchanged
within the Community, in particular by satellite and
cable, are one of the most important ways of pursuing
these Community objectives, which are at the same
time political, economic, social, cultural and legal ;

( 4 ) Whereas the Council has already adopted Directive Unchanged
89 / 552 / EEC of 3 October 1989 on the coordination of

certain provisions laid down by law, regulation or
administrative action in Member States concerning the
pursuit of television broadcasting activities 0 ), which
makes provision for the promotion of the distribution
and production of European television programmes
and for advertising and sponsorship, the protection of
minors and the right of reply ;

( 5 ) Whereas, however, the achievement of these objec - Unchanged
tives in respect of cross-border satellite broadcasting
and the cable retransmission of programmes from
other Member States is currently still obstructed by a
series of differences between national rules of copy ­
right and some uncertainties as to the law ; whereas
this means that holders of rights are exposed to the
threat of seeing their works exploited without pay ­
ment of remuneration or that the individual holders of

exclusive rights in various Member States block the
exploitation of their rights ; whereas the legal uncer ­
tainty in particular constitutes a direct obstacle to the
free circulation of programmes within the Community ;

( 6 ) Whereas a distinction is currently drawn for copyright

purposes between broadcasting by direct satellite and
broadcasting by communications satellite ; whereas
since individual reception is possible and nowadays
affordable with both types of satellite, there is no lon ­
ger any justification for this differing legal treatment ;

( 6 ) Whereas a distinction is currently drawn for copyright

purposes between communication to the public by
direct satellite and communication to the public by
communications satellite ; whereas since individual
reception is possible and nowadays affordable with
both types of satellite, there is no longer any justifica ­
tion for this differing legal treatment ;

( 7 ) Whereas the free broadcasting of programmes is fur - Unchanged
ther impeded by the current legal uncertainty as to
whether broadcasting by a satellite whose signals can
be received directly affects the rights in the country of
transmission only, or in all countries of reception
together ; whereas since communications satellites and
direct satellites are treated alike for copyright pur ­
poses, this legal uncertainty now affects almost all pro ­
grammes broadcast in the Community by satellite ;

( 8 ) Whereas, furthermore, the legal certainty, which is a Unchanged
prerequisite for the free movement of broadcasts
within the Community, is missing where programmes
transmitted across frontiers are fed into and retrans ­

mitted through cable networks ;

0 ) OJ No . L 298, 17 . 10 . 1989, p . 23

28 . 1 . 93 Official Journal of the European Communities No C 25 / 45

ORIGINAL PROPOSAL AMENDED PROPOSAL

( 9 ) Whereas the development of the acquisition of rights Unchanged
on a contractual basis is already making a vigorous
contribution to the creation of the desired European
audiovisual area ; whereas the continuation of such
contractual agreements should be ensured, and their
smooth application in practice should be promoted
wherever possible ;

( 10 ) Whereas at present cable operators in particular can ­ Unchanged

not be sure to have actually acquired all the pro ­
gramme rights covered by such an agreement ;

( 11 ) Whereas, lastly, parties in different Member States are

not all similarly bound by obligations which prevent
them from improperly refusing to negotiate on the
acquisition of the rights necessary for cable distribu ­
tion or improperly allowing such negotiations to fail ;

( 12 ) Whereas the legal framework for the creation of a sin ­

gle audiovisual area laid down in Directive 89 / 552 /
EEC must therefore be supplemented with reference
to copyright ;

( 11 ) Whereas, lastly, parties in different Member States are

not all similarly bound by obligations which prevent
them from, without valid reason, refusing to negotiate
on the acquisition of the rights necessary for cable dis ­
tribution or allowing such negotiations to fail ;

Unchanged

( 13 ) Whereas, therefore, an end should be put to the differ ­ Unchanged

ences of treatment of the transmission of programmes
by communications satellite which exists in the Mem ­
ber States, so that the vital distinction throughout the
Community becomes whether protected works and
other protected matter are communicated to the
public ; whereas this will also ensure equal treatment
of the suppliers of cross-border broadcasts, regardless
of whether they use a direct broadcasting satellite or
communications satellite ;

( 14 ) Whereas the legal uncertainty regarding the rights to

be acquired which impedes cross-border satellite
broadcasting will be overcome by defining the notion
of communication to the public by satellite at a Com ­
munity level ; whereas this definition will at the same
time specify where the act of communication takes
place ; whereas such a definition is necessary to avoid
the cumulative application of several national laws to
one single act of broadcasting ; whereas communica ­
tions to the public occurs only when and in the Mem ­
ber State where a broadcasting organization takes a
single decision on the content and the transmission of
programme-carrying signals ; whereas there is no com ­
munication if the chain of broadcasting equipment
between the point where such single decision is taken
and the transmission of the relevant signals from the
satellite is interrupted ;

( 14 ) Whereas the legal uncertainty regarding the rights to

be acquired which impedes cross-border satellite
broadcasting will be overcome by defining the notion
of communication to the public by satellite at a Com ­
munity level ; whereas this definition will at the same
time specify where the act of communication takes
place ; whereas such a definition is necessary to avoid
the cumulative application of several national laws to
one single act of broadcasting ; whereas communica ­
tion to the public by satellite occurs only when and in
the Member State where the programme carrying sig ­
nals are introduced under the control and responsabil ­

. ity of the broadcasting organization into an uninter ­

rupted chain of communication leading to the satellite
and down towards the earth ; whereas normal technical
procedures relating to programme-carrying signals
may not be considered as interruptions to the chain of
broadcasting ;

No C 25 / 46 Official Journal of the European Communities 28 . 1 . 93

ORIGINAL PROPOSAL AMENDED PROPOSAL

( 15 ) Whereas the acquisition on a contractual basis of

exclusive broadcasting rights should comply with any
legislation on copyright and rights related to copyright
in the Member State in which ' communication to the

public by satellite ' occurs ;

( 16 ) Whereas the principle of contractual freedom, on

which this Directive is based, will make it possible to
continue limiting the exploitation of these rights, espe ­
cially as far as certain technical means of transmission
or certain language versions are concerned ;

( 15 ) Whereas in arriving at the amount of the payment to

be made for the rights acquired the parties should take
account of the actual or potential audience throughout
the area in which the broadcast can be received ;

( 17 ) Whereas in arriving at the amount of the payment to

be made for the rights acquired the parties should take
account of all aspects of the broadcast, such as the
actual audience, the potential audience and the lan ­
guage version ;

( 16 ) Whereas a special transitional provision applicable to ( 18 ) Unchanged
existing agreements should be provided for so that at
the latest by 1998 these agreements will be adapted in
the light of the new legal framework ;

( 17 ) Whereas programmes broadcast from non-member

countries to the territory of the Community will be
outside the scope of this Directive ; whereas they may
be treated differently in the law of the Member States
from programmes transmitted from a Member State if
the protection provided for by this Directive is not
granted in the non-member country or only granted to
a lesser extent ;

( 18 ) Whereas the arrangements made should also include

provisions for the protection of holders of copyrights
and neighbouring rights ; whereas it is necessary to
ensure that protection for specific categories is
accorded in all Member States to the extent provided
for by this Directive and that this protection is not
subject to a statutory licence system ; whereas only in
this way is it possible to ensure that any difference in
the level of protection within the common market will
not create distortions of competition which might
result in an unjustified disadvantage for programme
suppliers and holders of rights in Member States with
a high level of protection ;

( 19 ) Whereas communications to the public by satellite

from non-member countries will under certain condi ­

tions be deemed to occur within a Member State of

the Community ;

( 20 ) Whereas it is necessary to ensure that protection for

authors, performers, producers of phonograms and
broadcasting organizations is accorded in all Member
States and that this protection is not subject to a statu ­
tory licence system ; whereas only in this way is it pos ­
sible to ensure that any difference in the level of pro ­
tection within the common market will not create

distortions of competition ;

( 21 ) Whereas the harmonization of legislations envisaged

in this Directive entails the harmonization of the prov ­
isions ensuring a high level of protection of authors,
performers, phonogram producers and broadcasting
organizations ; whereas this harmonization will no lon ­
ger allow a broadcasting organization to take advan ­
tage of differences in levels of protection by relocating
activities, to the detriment of audiovisual production ;

28 . 1 . 93 Official Journal of the European Communities No C 25 / 47

ORIGINAL PROPOSAL AMENDED PROPOSAL

( 19 ) Whereas the minimum protection provided for neigh ­

bouring rights is mainly taken from the substance of
the Rome International Convention on the Protection

of Performers, Producers of Phonograms and Broad ­
casting Organizations which at present must be con ­
sidered to provide the most comprehensive standard
of protection of neighbouring rights in the interna ­
tional field ; whereas this standard has been accepted
by the majority of Member States ; whereas, however,
in accordance with the aims of this Directive, it is not
appropriate to allow for derogations corresponding to
those provided for in the Rome Convention ;

( 20 ) Whereas the cable retransmission of programmes

from other Member States is an act subject to copy ­
right and neighbouring rights ; whereas the cable oper ­
ator must therefore obtain the authorization from

every holder of rights in each part of the programme
retransmitted ; whereas, under this Directive, the
authorizations should be granted contractually unless
an exception is provided for in the case of existing
legal licence schemes ;

( 22 ) Whereas the protection provided for rights related to

copyright is aligned to that contained in Council
Directive 92 / 100 / EEC (*) for the purposes of commun ­
ication to the public by satellite ; whereas in particular
this will ensure that performers and phonograms prod ­
ucers are guaranteed an appropriate remuneration for
the communication to the public by satellite of their
performances or phonograms ;

( 23 ) Whereas the cable retransmission of programmes

from other Member States is an act subject to copy ­
right and, as the case may be, rights related to copy ­
right ; whereas the cable operator must therefore
obtain the authorization from every holder of rights in
each part of the programme retransmitted ; whereas,
under this Directive, the authorizations should be
granted contractually unless a temporary exception is
provided for in the case of existing legal licence
schemes ;

( 21 ) Whereas this Directive, through the obligation to have ( 24 ) Unchanged
recourse to a collecting society, provides for the exclu ­
sive collective exercise of the authorization right to the
extent that this is required by the special features of
cable retransmission ; whereas this Directive is thereby
seeking to ensure that the smooth operation of con ­
tractual arrangements is not called into question by
the intervention of outsiders holding rights in indivi ­
dual parts of the programme ; whereas the authoriza ­
tion right as such remains intact and only the exercise
of this right is regulated to some extent, so that the
right to authorize a cable retransmission can still be
assigned ; whereas this Directive does not affect the
exercise of moral rights ;

( 25 ) Whereas the exemption provided for in Article 10

does not limit the choice of holders of rights to trans ­
fer their rights to a collecting society and thereby have
a direct share in the remuneration paid by the cable
distributor for cable retransmission ;

0 ) OJ No L 346, 27 . 11 . 1992, p . 61 .

No C 25 / 48 Official Journal of the European Communities 28 . 1 . 93

ORIGINAL PROPOSAL AMENDED PROPOSAL

( 22 ) Whereas contractual agreements regarding the author ­

ization of cable retransmission shall be promoted by
additional measures ; whereas, to begin with, all the
rights necessary for a cable retransmission should be
acquired in the form of a general contract ; whereas,
furthermore, any party shall be entitled, at any
moment, to call upon the assistance of impartial
mediators whose task it is to assist negotiations and to
put forward non-binding proposals ; whereas, finally, it
is necessary to ensure that the negotiations are not
improperly blocked or that individual holders of rights
are not improperly prevented from taking part in the
negotiations ; whereas none of these measures for the
promotion of the acquisition of rights calls into ques ­
tion the contractual nature of the acquisition of cable
rights ;

( 26 ) Whereas contractual agreements regarding the author ­

ization of cable retransmission shall be promoted by
additional measures ; whereas a party seeking the con ­
clusion of a general contract should for its part be
obliged to submit collective proposals for an agree ­
ment ; whereas, furthermore, any party shall be enti ­
tled, at any moment, to call upon the assistance of
impartial mediators whose task it is to assist negotia ­
tions and to put forward non-binding proposals ; wher ­
eas, finally, it is necessary to ensure that the negotia ­
tions are not blocked without valid justification or that
individual holders are not prevented without valid jus ­
tification from taking part in the negotiations ; whereas
none of these measures for the promotion of the
acquisition of rights calls into question the contractual
nature of the acquisition of cable rights ;

( 23 ) Whereas, however, Community rules are not needed ( 27 ) Unchanged
to deal with all of those matters whose effects, perhaps
with some commercially insignificant exceptions, are
felt only inside the borders of a single Member State ;

( 24 ) Whereas this Directive lays down the minimum rules ( 28 ) Unchanged
needed to establish and guarantee free and uninter ­
rupted cross-border broadcasting by satellite and
simultaneous, unaltered cable retransmission of pro ­
grammes broadcast from other Member States, on
what is essentially a contractual basis ;

( 25 ) Whereas this Directive does not prejudice further har ­

monization in the field of copyright and neighbouring
rights and the collective administration of such rights ;

( 26 ) Whereas it is therefore a matter for the Member

States to supplement the general provisions needed to
achieve the objectives of this Directive by taking legis ­
lative and administrative measures in their domestic

law, provided these do not run counter to the objec ­
tives of this Directive and are compatible with Com ­
munity law ; whereas, in particular, Member States are
accordingly free to lay down rules for the protection of
rights related to copyright which go beyond those
provided for in this Directive ;

( 29 ) Whereas this Directive does not prejudice further har ­

monization in the field of copyright and rights related
to copyright and the collective administration of such
rights ;

( 30 ) Whereas it is therefore a matter for the Member

States to supplement the general provisions needed to
achieve the objectives of this Directive by taking legis ­
lative and administrative measurs in their domestic

law, provided these do not run counter to the objec ­
tives of this Directive and are compatible with Com ­
munity law ;

( 27 ) Whereas this Directive does not affect the applicabil ­ ( 31 ) Unchanged

ity of the competition rules in Article 85 and 86 of the
Treaty,

28.1.93 Official Journal of the European Communities No C 25 / 49

ORIGINAL PROPOSAL AMENDED PROPOSAL

HAS ADOPTED THIS DIRECTIVE :

CHAPTER I

DEFINITIONS

Article 1

For the purpose of this Directive :

( a ) ' satellite ' means any satellite operating either on fre ­

quencies which under telecommunications law allow
reception by the public (a broadcasting satellite ) or on
frequencies which are reserved for closed, point-to ­
point communication (a communications satellite ). In
the latter case, however, the circumstances in which
individual reception of the signals takes place must be
comparable to those which apply in the case of broad ­
casting satellites ;

( b ) ' communication to the public by satellite ' inside the

Community means the act of taking a single decision
on the content and the transmission by satellite of pro ­
gramme  - carrying signals by the broadcaster . This act
of communication to the public by satellite occurs in
the Member State where the broadcaster takes the sin ­

gle decision on the content and the transmission by
satellite of programme-carrying signals . If the pro ­
gramme-carrying signals are encrypted, communica ­
tion to the public by satellite means the act of taking a
single decision on the content and the transmission of
the programme carrying signals under the condition
that decoders are provided to the public by the broad ­
caster himself or with his approval . There is no com ­
munication to the public by satellite, however, if there
is any interruption of the chain of broadcasting equip ­
ment between the point where a single decision is
taken and the transmission of the relevant signals from
the satellite ;

CHAPTER I

GENERAL PROVISIONS

Article 1

For the purpose of this Directive :

1 . ' satellite ' means any satellite operating on frequency
bands which, under telecommunications law, are
reserved for the broadcast of signals for reception by
the public or which are reserved for closed, point-to ­
point communication . In the latter case, however, the
circumstances in which individual reception of the sig ­
nals takes place must be comparable to those which
apply in the first case ;

2 . ' communication to the public by satellite ' means the
act of introducing, under the control and responsibility
of the broadcasting organization, the programme-car ­
rying signals intended for reception by the public into
an uninterrupted chain of communication leading to
the satellite and down towards the earth .

( a ) The act of communication to the public by satel ­

lite occurs solely in the Member State where
under the control and responsibility of the broad ­
casting organization the programme-carrying sig ­
nals are introduced into an uninterrupted chain of
communication leading to the satellite and down
towards the earth .

( b ) If the programme-carrying signals are encrypted,

then there is communication to the public by
satellite under the condition that means for the

decrypting of the broadcast are provided to the
public by the broadcasting organization or with
his consent .

( c ) Where an act of communication to the public by

satellite occurs in a non-Community State in
which the protection provided under Chapter II
of this Directive does not exist, and

— if the progamme-carrying signals are trans ­
mitted to the satellite from an uplink station
situated in a Member State, the act of com ­
munication to the public shall be deemed to
have occured in that Member State and the

rights provided for under Chapter II shall be
exercisable against the person operating the
uplink station, or

— if there is no use of an up-link station situated
in a Member State but a broadcasting organ ­
ization established in a Member State has

commissioned the act of communication to

the public, that act shall be deemed to have
occurred in that Member State and the rights
provided for under Chapter II shall be exer ­
cisable against the broadcasting organization ;

No C 25 / 50

9 Official Journal of the European Communities 28 . 1 . 93

ORIGINAL PROPOSAL AMENDED PROPOSAL

(c) ' cable retransmission ' means the simultaneous, unal ­

tered and unabridged retransmission of a broadcast
from another Member State by a cable or microwave
system for reception by the public ;

3 . ' cable retransmission ' means the simultaneous,
unaltered and unabridged retransmission by a
cable or microwave system for reception by the
public of an initial transmission from another
Member State, by wire or over the air, including
that by satellite, of television or radio pro ­
grammes intended for reception by the public ;

( d ) ' broadcasting ' means the initial transmission, by wire Deleted

or over the air, including that by satellite, of television
or radio programmes intended for reception by the
public ;

( e ) ' collecting society ' means an organization whose mem ­

bers have appointed it to manage copyright or related
rights .

CHAPTER II

BROADCASTING OF PROGRAMMES BY SATELLITE

Article 2

Broadcasting right

Member States shall provide a right for the auther to
authorize or to prohibit the communication to the public
by satellite of copyright works, subject to the provisions set
out in this Chapter .

A rticle 3

Acquisition of broadcasting rights

1 . Member States shall ensure that the right refered to in
Article 2 may be acquired only by agreement .

2 . Where, on 31 July 1991, it is provided by a Member
State that an agreement between a collecting society and a
broadcasting organization may be extended to include
holders of rights not represented by the collecting society,
this shall continue to be possible until 31 December 1997 .

4 . ' collecting society ' means any organization which
manages or administers copyright or rights related to
copyright ;

5 . for the purposes of this Directive the principal director
of a cinematographic or audiovisual work shall be con ­
sidered as its author or one of its authors . Member

States may provide for others to be considered as its
co-authors .

CHAPTER II

BROADCASTING OF PROGRAMMES BY SATELLITE

Article 2

Broadcasting right

Member States shall provide an exclusive right for the
author to authorize or prohibit the communication to the
public by satellite of copyright works, subject to the provi ­
sions set out in this Chapter .

Article 3

Acquisition of broadcasting rights

1 . Member States shall ensure that the authorization

referred to in Article 2 may be acquired only by agree ­
ment . The remuneration shall be stated in the agreement
and shall take account of all aspects of the broadcast .

2 . A Member State may provide that a collective agree ­
ment between a collecting society and a broadcasting
organization concerning a given category of works may be
extended to rightholders of the same category who are not
represented by the collecting society provided that :

— the communication to the public by satellite similcasts
a terrestrial broadcast by the same broadcasting
organization, and

— the unrepresented rightholder shall, at any time, have
the possibility of excluding the effect of the extension
of the collective agreement to his rights and of exercis ­
ing his rights either individually or collectively .

3 . Paragraph 2 shall not apply to cinematographic works, Unchanged
including works created by a process analogous to cinema ­
tography .

28 . 1 . 93 Official Journal of the European Communities No C 25 / 51

ORIGINAL PROPOSAL AMENDED PROPOSAL

Article 4

Performers

Member States shall provide that performers shall enjoy
the right :

— to authorize or prohibit the communication to the
public by satellite of their performance except where
the performance used in the broadcasting is itself
already a broadcast performance or is made from a
fixation,

— to authorize or prohibit the fixation of their unfixed
performances,

— to authorize or prohibit the reproduction of a fixation
of their performance .

Article 4

Rights related to copyright

1 . For the purposes of communication to public by satel ­
lite, the Member States shall provide that the rights of per ­
formers, phonogram producers and broadcasting organiza ­
tions are protected in accordance with the provisions of
Articles 6, 7, 8 and 10 of Directive 92 / 100 / EEC .

2 . For the purposes of paragraph 1, ' broadcasting by
wireless means ' in Directive 90 / 100 / EEC shall be under ­

stood as including communication to the public by satellite
as set out in Article 1, paragraph 2 .

3 . The provisions laid down in Article 3, paragraph 1, of
this Directive shall aply to the acquisition of rights granted
to performers and broadcasting organizations pursuant to
Article 8 of Directive 92 / 100 / EEC, without prejudice to
the provisions of Article 10 of Directive 92 / 100 / EEC .

A rticle 5 Deleted

Remuneration for the use of phonograms

Member States shall provide that if a phonogram pub ­
lished for commercial purposes, or a reproduction of such
phonogram, is used directly for a communication to the
public by satellite, a single equitable remuneration shall be
paid to the performers, or to the producers of the phono ­
grams, or to both .

Article 6 Deleted

Broadcasting organizations

Member States shall provide that broadcasting organiza ­
tions shall enjoy the right to authorize or prohibit :

— the simultaneous retransmission of their broadcasts by
satellite,

— the fixation of their broadcasts,

— the reproduction of fixations of their broadcasts .

Article 7 Deleted

Limitations on rights

1 . Member States may provide for limitations to the pro ­
tection guaranteed by Articles 4, 5 and 6 only as regards :

— private use,

— use of short excerpts in connection with the reporting
of current events,

— ephemeral fixation by a broadcasting organization by
means of its own facilities and for its own broadcasts,

— use solely for purposes of teaching or scientific
research .

No C 25 / 52 Official Journal of the European Communities 28 . 1 . 93

ORIGINAL PROPOSAL AMENDED PROPOSAL

2 . Notwithstanding paragraph 1 of this Article, any Mem ­
ber State may provide for the same kinds of limitation with
regard to the protection of performers, producers of phon ­
ograms and broadcasting organizations as it provides for in
its legislation concerning the protection of copyright in lit ­
erary and artistic works . However, compulsory licences
may be provided for only to the extent to which they are
compatible with the Rome International Convention for
the Protection of Performers, Producers of Phonograms
and Broadcasting Organizations .

A rticle 5

Relation between copyright and related rights

Protection of copyright-related rights under this Directive
shall leave intact and shall in no way affect the protection
of copyright .

Article 8

Minimum protection

1 . Member States may provide for more far-reachingpro ­
tection for authors, and holders of neighbouring rights
under their jurisdiction than that required by Articles 2 to
6 .

2 . In applying paragraph 1 Member States shall observe
the definitions contained in points ( a ) and ( b ) of Article 1 .

Article 9

Transitional provision

Agreements concerning the exploitation of protected
works and services, in force on 1 January 1995, shall not be
subject to Articles 2 to 8 until 31 December 1997 if they
expire after that date .

CHAPTER III

CABLE RETRANSMISSION

Article 10

Cable retransmission right

1 . Member States shall ensure that when programmes
from other Member States are retransmitted by cable in
their territory the applicable copyright and neighbouring
rights are observed, and that such retransmission takes
place on the basis of agreements between copyright own ­
ers, holders of neighbouring rights and cable operators .

A rticle 6

Minimum protection

1 . Member States may provide for more far-reaching
protection for holders of rights related to copyright than
that required by Article 8 of Directive 92 / 100 / EEC .

2 . In applying paragraph 1 Member States shall observe
the definitions contained in paragraphs 1 and 2 of Article
1 .

A rticle 7

Transitional provision

Agreements concerning the exploitation of protected
works and subject matter, in force on 1 January 1995, shall
be subject to the provisions of Articles 2, 3 and 4, para ­
graph 2, from 1 January 1998 on if they expire after that
date .

CHAPTER III

CABLE RETRANSMISSION

Article 8

Cable retransmission right

1 . Member States shall ensure that when programmes
from other Member States are retransmitted by cable in
their territory the applicable copyright and rights related
to copyright are observed, and that such retransmission
takes place on the basis of agreements between copyright
owners, holders of rights related to copyright and cable

operators .

28 . 1 . 93 Official Journal of the European Communities No C 25 / 53

ORIGINAL PROPOSAL AMENDED PROPOSAL

2 . Notwithstanding paragraph 1, Member States may 2 . Unchanged
retain until 31 December 1997 such statutory licence sys ­
tems that are in operation or expressly provided for by
national law on 31 July 1991 .

A rticle 1 1

Exercise of the cable retransmission right

1 . Member States shall ensure that the right of copyright
owners and holders of neighbouring rights to authorize or
prohibit the cable retransmission of a broadcast may be
exercised only through a collecting society .

2 . A holder of a right who has not transferred the man ­
agement of his rights to a collecting society shall have a
claim to compensation on the collecting society which
manager rights of the same category . His claim shall be
confined to the sum which he would have received if he

had mandated the collecting society to exercise his rights .

Article 9

Exercise of the cable retransmission right

1 . Member States shall ensure that the right of copyright
owners and holders of rights related to copyright to grant
or refuse authorization to a cable operator for the cable
retransmission of a broadcast may be exercised only
through a collecting society representing the professional
categories concerned .

2 . Where a rightholder has not transferred the manage ­
ment of his rights to a collecting society, the collecting
society which manages rights of the same category shall be
deemed to be mandated to manage his rights . Where more
than one collecting society manages rights of that category,
the rightholder shall be free to choose which of those col ­
lecting societies is deemed to manage his rights . A right ­
holder referred to in this paragraph shall enjoy the same
rights and obligations resulting from the agreement
between the cable operator and the collecting society
which is deemed to be mandated to manage his rights as
the members of that collecting society and he shall be able
to claim those rights, within a period of two years .

Article 12 Article 10

Exercise of the cable retransmission right by broadcasting

organizations

Article 11 shall not apply to the rights exercised by a
broadcasting organization in respect of its own transmis ­
sions .

Exercise of the cable retransmission right by broadcasting

organizations

1 . Member States shall ensure that Article 9 does not

apply to the rights exercised by a broadcasting organ ­
ization in respect of its own transmissions, irrespective of
whether the rights concerned are its own or have been
transferred to it by other copyright owners and / or holders
of rights related to copyright .

2 . The derogation provided for in paragraph 1 shall be
without prejudice to the option for copyright owners and
holders of rights related to copyright to claim, through
their collecting societies, direct participation in the remu ­
neration paid by cable operators for cable retransmission .

No C 25 / 54 Official Journal of the European Communities 28 . 1 . 93

ORIGINAL PROPOSAL AMENDED PROPOSAL

Article 13 Deleted

General contracts

Member States shall ensure that a party seeking the con
elusion of a general contract is for its part obliged to sub
mit collective proposals for an ageement .

Article 14

Mediators

1 . Where no agreement is concluded regarding authoriza ­ 1 . Unchanged
tion of the cable retransmission of a broadcast, Member
States shall ensure that either party may call upon the
assistance of one or several mediators referred to in para ­
graphs 2 and 3 .

2 . The mediators shall have the task of providing assist ­ 2 . Unchanged
ance with negotiation . They may also submit non-binding
recommendations to the parties .

Article 11

Mediators

3 . Member States shall ensure that the mediators are so

selected that their impartiality is beyond doubt .

3 . If neither of the parties expresses and motivates its
opposition to this recommandation within a period of
three months from the notification of the recommendation

to the parties it is presumed that all the parties accept the
recommendation .

4 . The mediators shall be so selected that their neutrality
and impartiality are beyond doubt .

Article 15 Article 12

Prevention of the abuse of negotiating positions Prevention of the abuse of negotiating positions

Member States shall ensure that the parties do not impro ­
perly prevent negotiation regarding authorization for cable
retransmission .

Member States shall ensure, by means of civil or adminis ­
trative law, as appropriate, that the parties do not without
valid justification prevent negotiation regarding authoriza ­
tion for cable retransmission .

CHAPTER IV CHAPTER IV

GENERAL PROVISIONS GENERAL PROVISIONS

Article 16 Deleted

Competition rules

This Directive shall be without prejudice to the Com ­
munity competition rules .

Article 17

Collective administration of rights

The regulation of the activities of collecting societies shall
be a matter for the Member States .

Article 13

Collective administration of rights

The provisions of this Directive shall be without prejudice
to the regulation of the activities of collecting societies by
the Member States .

28 . 1 . 93 Official Journal of the European Communities No C 25 / 55

ORIGINAL PROPOSAL AMENDED PROPOSAL

Article 18 Article 1 4

Final provisions Final provisions

1 . Member States shall bring into force the laws, regula - 1 . Unchanged
tions and administrative provisions necessary to comply
with this Directive by 1 January 1995 . They shall immedia ­
tely inform the Commission thereof .

When Member States adopt these provisions, these shall
contain a reference to this Directive or shall be accompa ­
nied by such reference at the time of their official publica ­
tion . The procedure for such reference shall be adopted by
Member States .

2 . Member States shall communicate to the Commission 2 . Unchanged
the provisions of national law which they adopt in the field
covered by this Directive .

Article 19 Article 15

This Directive is addressed to the Member States Unchanged