Source: EURLEX
Language: en
Format: md

**EUROPEAN UNION**

**THE EUROPEAN PARLIAMENT** **THE COUNCIL**

**Strasbourg, 17 April 2019**
**(OR. en)**

**2016/0284 (COD)**
**LEX 1912**

**PE-CONS 7/1/19**

**REV 1**

**PI 7**

**RECH 24**

**EDUC 16**

**COMPET 32**

**AUDIO 4**

**CULT 9**

**DIGIT 6**

**TELECOM 14**

**CODEC 84**

**DIRECTIVE**

**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,**

**AND AMENDING COUNCIL DIRECTIVE 93/83/EEC**

PE-CONS 7/1/19 REV 1

# **EN**

**DIRECTIVE (EU) 2019/…**

**OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**of 17 April 2019**

**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, and amending Council Directive 93/83/EEC**

**(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 53(1) and Article 62 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 Committee **[1]**,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure **[2]**,

**1** OJ C 125, 21.4.2017, p. 27.
**2** Position of the European Parliament of 28 March 2019 (not yet published in the Official
Journal) and decision of the Council of 15 April 2019.

PE-CONS 7/1/19 REV 1 1

# **EN**

Whereas:

(1) In order to contribute to the proper functioning of the internal market, it is necessary to

provide for wider dissemination in Member States of television and radio programmes that

originate in other Member States, for the benefit of users across the Union, by facilitating

the licensing of copyright and related rights in works and other protected subject matter

contained in broadcasts of certain types of television and radio programmes. Television

and radio programmes are important means of promoting cultural and linguistic diversity

and social cohesion, and of increasing access to information.

PE-CONS 7/1/19 REV 1 2

# **EN**

(2) The development of digital technologies and the 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, through 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 such broadcasts, such as

simulcasting and catch-up services. Operators of retransmission services, which aggregate

broadcasts of television and radio programmes into packages and provide them to users

simultaneously with the initial transmission of those broadcasts, unaltered and unabridged,

use various techniques of retransmission, such as cable, satellite, digital terrestrial, and

mobile or closed circuit IP-based networks, as well as the open internet. Furthermore,

operators that distribute television and radio programmes to users have different ways of

obtaining the programme-carrying signals of broadcasting organisations, including by

means of direct injection. There is a growing demand, on the part of users, for access to

broadcasts of television and radio programmes not only originating in their Member State,

but also in other Member States. Such users include members of linguistic minorities in the

Union, as well as persons who live in a Member State other than their Member State of

origin.

PE-CONS 7/1/19 REV 1 3

# **EN**

(3) Broadcasting organisations transmit daily many hours of television and radio programmes.

Those programmes incorporate a variety of content, such as audiovisual, musical, literary

or graphic works, protected under Union law by copyright or related rights or both. That

results in a complex process of clearing the rights of a multitude of rightholders, and for

various 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 programmes. 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

clearance of such rights.

(4) Operators of retransmission services typically offer multiple programmes comprising a

multitude of works and other protected subject matter and have a very short time frame for

obtaining the necessary licences and, hence, face a significant rights clearance burden.

Authors, producers and other rightholders also risk having their works and other protected

subject matter used without authorisation or payment of appropriate remuneration. Such

remuneration for the retransmission of their works and other protected subject matter is

important to ensure that there is a diverse content offer, which is also in the interest of

consumers.

PE-CONS 7/1/19 REV 1 4

# **EN**

(5) The rights in works and other protected subject matter are harmonised, _inter alia_, through

Directive 2001/29/EC of the European Parliament and of the Council **[1]** and

Directive 2006/115/EC of the European Parliament and of the Council **[2]**, which provide for

a high level of protection for rightholders.

(6) Council Directive 93/83/EEC **[3]** facilitates cross-border satellite broadcasting and

retransmission by cable of television and radio programmes from other Member States.

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 broadcasts. Furthermore, 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 cover

retransmissions by means of other technologies.

**1** 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).
**2** 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).
**3** 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).

PE-CONS 7/1/19 REV 1 5

# **EN**

(7) Accordingly, cross-border provision of online services that are ancillary to broadcasts, 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. That adaptation should be done by taking

account of the financing and production of creative content, and, in particular, of

audiovisual works.

PE-CONS 7/1/19 REV 1 6

# **EN**

(8) This Directive should cover ancillary online services offered by a broadcasting

organisation, which have a clear and subordinate relationship with the broadcasting

organisation’s broadcasts. Those services include services that give access to television and

radio programmes in a strictly linear manner, simultaneously to the broadcast, and services

that give 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, the ancillary online services covered by this

Directive include services that give access to material that 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. This Directive should apply to ancillary online services that are provided to users

by broadcasting organisations together with the broadcasting service. It should also apply

to ancillary online services that, while having a clear and subordinate relationship with the

broadcast, can be accessed by users separately from the broadcasting service without there

being a precondition for the users to have to obtain access to that broadcasting service, for

example via a subscription. This does not affect the freedom of broadcasting organisations

to offer such ancillary online services free of charge or against payment. The provision of

access to individual works or other protected subject matter that have been incorporated in

a television or radio programme, or to works or other protected subject matter that are not

related to any programme broadcast by the broadcasting organisation, such as services

giving access to individual musical or audiovisual works, music albums or videos, for

example video-on-demand services, should not fall within the scope of the services

covered by this Directive.

PE-CONS 7/1/19 REV 1 7

# **EN**

(9) 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 that occur

in the course of the provision of, the access to or the use of an ancillary online service.

That principle should cover the clearance of all rights that are necessary for a broadcasting

organisation to be able to communicate to the public or make available to the public its

programmes when providing ancillary online services, including the clearance of any

copyright and related rights in the works or other protected subject matter used in the

programmes, for example the rights in phonograms or performances. That country of

origin principle should apply exclusively to the relationship between rightholders, or

entities representing rightholders, 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 country of origin principle should not apply to

any subsequent communication to the public of works or other protected subject matter, by

wire or wireless means, or to any subsequent making available to the public of works or

other protected subject matter, by wire or wireless means, in such a way that members of

the public may access them from a place and at a time individually chosen by them, or to

any subsequent reproduction of the works or other protected subject matter which are

contained in the ancillary online service.

PE-CONS 7/1/19 REV 1 8

# **EN**

(10) Given the specificities of the financing and licensing mechanisms for certain audiovisual

works, which are often based on exclusive territorial licensing, it is appropriate, as regards

television programmes, to limit the scope of application of the country of origin principle

set out in this Directive to certain types of programmes. Those types of programmes should

include news and current affairs programmes as well as a broadcasting organisation’s own

productions which are exclusively financed by it, including where the funds for the

financing used by the broadcasting organisation for its productions come from public

funds. For the purposes of this Directive, broadcasting organisations’ own productions

should be understood as covering productions carried out by a broadcasting organisation

with the use of its own resources, but excluding productions commissioned by the

broadcasting organisation to producers that are independent from the broadcasting

organisation and co-productions. For the same reasons, the country of origin principle

should not apply to television broadcasts of sports events under this Directive. The country

of origin principle should apply only when programmes are used by the broadcasting

organisation in its own ancillary online services. It should not apply to the licensing of a

broadcasting organisation’s own productions to third parties, including to other

broadcasting organisations. The country of origin principle should not affect the freedom

of rightholders and broadcasting organisations to agree, in compliance with Union law, on

limitations, including territorial limitations, to the exploitation of their rights.

(11) The country of origin principle set out in this Directive should not result in any obligation

for broadcasting organisations to communicate or make available to the public

programmes in their ancillary online services, or to provide such ancillary online services

in a Member State other than the Member State of their principal establishment.

PE-CONS 7/1/19 REV 1 9

# **EN**

(12) Since the provision of, the access to or the use of an ancillary online service is, under this

Directive, 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

setting the amount of the payment to be made for the rights in question, the parties take

into account all aspects of the ancillary online service, such as the features of the service,

including the duration of the online availability of programmes included in 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 versions provided. It should

nevertheless remain possible to use specific methods for calculating the amount of

payment for the rights subject to the country of origin principle, such as methods based on

the revenues of the broadcasting organisation generated by the online service, which are

used, in particular, by radio broadcasting organisations.

(13) On account of the principle of contractual freedom, it will remain possible to limit the

exploitation of the rights affected by the country of origin principle set out in this

Directive, provided that any such limitation is in compliance with Union law.

PE-CONS 7/1/19 REV 1 10

# **EN**

(14) Operators of retransmission services can use different technologies 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. The

programme-carrying signals can be obtained by operators of retransmission services from

broadcasting organisations, which themselves transmit those signals to the public, in

different ways, for example by capturing the signals transmitted by the broadcasting

organisations or receiving the signals directly from them through the technical process of

direct injection. Such operators’ services can be offered on satellite, digital terrestrial,

mobile or closed circuit IP-based and similar networks or through internet access services

as defined in Regulation (EU) 2015/2120 of the European Parliament and of the Council **[1]** .

Operators of retransmission services using such technologies for their retransmissions

should therefore be covered by this Directive and benefit from the mechanism that

introduces mandatory collective management of rights. In order to ensure that there are

sufficient safeguards against the unauthorised use of works and other protected subject

matter, which is particularly important in the case of services that are paid for,

retransmission services which are offered through internet access services should be

included in the scope of this Directive only where those retransmission services are

provided in an environment in which only authorised users can access the retransmissions

and the level of content security provided is comparable to the level of security for content

transmitted over managed networks, such as cable or closed circuit IP-based networks, in

which content that is retransmitted is encrypted. Those requirements should be feasible and

adequate.

**1** 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).

PE-CONS 7/1/19 REV 1 11

# **EN**

(15) To retransmit initial transmissions of television and radio programmes, operators of

retransmission services have to obtain an authorisation from the holders of the exclusive

right of communication to the public of works or other protected subject matter. In order to

provide legal certainty to the operators of retransmission services 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 under 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. Under those rules, the right to grant or refuse authorisation as such remains

intact, and only the exercise of that right is regulated to some extent. Rightholders should

receive appropriate remuneration for the retransmission of their works and other protected

subject matter. When determining reasonable licensing terms, including the license fee, for

a retransmission in accordance with Directive 2014/26/EU of the European Parliament and

of the Council **[1]**, the economic value of the use of the rights in trade, including the value

allocated to the means of retransmission, should, _inter alia_, be taken into account. This

should be without prejudice to the collective exercise of the right to payment of a single

equitable remuneration for performers and phonogram producers for the communication to

the public of commercial phonograms as provided for in Article 8(2) of

Directive 2006/115/EC, and to Directive 2014/26/EU, in particular its provisions

concerning the rights of rightholders with regard to the choice of a collective management

organisation.

**1** 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).

PE-CONS 7/1/19 REV 1 12

# **EN**

(16) This Directive should allow agreements concluded between a collective management

organisation and operators of retransmission services for rights that are subject to

mandatory collective management under this Directive to be extended to apply to the rights

of rightholders who are not represented by that collective management organisation,

without those rightholders being allowed to exclude their works or other subject matter

from the application of that mechanism. In cases where there is more than one collective

management organisation that manages the rights of the relevant category for its territory,

it should be for the Member State, in respect of the territory of which the operator of a

retransmission service seeks to clear the rights for a retransmission, to determine which

collective management organisation or organisations have the right to grant or refuse the

authorisation for a retransmission.

PE-CONS 7/1/19 REV 1 13

# **EN**

(17) Any rights held by broadcasting organisations themselves in respect of their broadcasts,

including rights in the content of programmes, should not be subject to 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. Accordingly, it is comparatively simple for those operators to

clear the rights with broadcasting organisations. As a consequence, to obtain the necessary

licences from broadcasting organisations, operators of retransmission services do not face

the same burden as they face when seeking to obtain licences from holders of rights in

works and other protected subject matter included in the television and radio programmes

they retransmit. Therefore, there is no need for simplification of the licensing process with

regard to rights held by broadcasting organisations. It is, however, necessary to ensure that

where broadcasting organisations and operators of retransmission services enter into

negotiations, they negotiate in good faith regarding the licensing of rights for the

retransmissions covered by this Directive. Directive 2014/26/EU provides for similar rules

applicable to collective management organisations.

(18) The rules provided for in this Directive concerning the rights in retransmission exercised

by broadcasting organisations in respect of their own transmissions should not limit the

choice of rightholders to transfer their rights either to a broadcasting organisation or to a

collective management organisation, thereby allowing them to have a direct share in the

remuneration paid by the operator of a retransmission service.

PE-CONS 7/1/19 REV 1 14

# **EN**

(19) Member States should be able to apply the rules on retransmission established in this

Directive and in Directive 93/83/EEC to situations where both the initial transmission and

the retransmission take place within their territory.

(20) In order to ensure that there is legal certainty and to maintain a high level of protection for

rightholders, it is appropriate to provide that when broadcasting organisations transmit

their programme-carrying signals by direct injection only to signal distributors without

directly transmitting their programmes to the public, and the signal distributors send those

programme-carrying signals to their users to allow them to watch or listen to the

programmes, only one single act of communication to the public is deemed to occur in

which both the broadcasting organisations and the signal distributors participate with their

respective contributions. The broadcasting organisations and the signal distributors should

therefore obtain authorisation from the rightholders for their specific contribution to the

single act of communication to the public. Participation of a broadcasting organisation and

a signal distributor in that single act of communication to the public should not give rise to

joint liability on the part of the broadcasting organisation and the signal distributor for that

act of communication to the public. Member States should remain free to provide at

national level for the arrangements for obtaining authorisation for such a single act of

communication to the public, including the relevant payments to be made to the

rightholders concerned, taking into account the respective exploitation of the works and

other protected subject matter, by the broadcasting organisation and signal distributor,

related to the single act of communication to the public.

PE-CONS 7/1/19 REV 1 15

# **EN**

Signal distributors face, in a similar manner to operators of retransmission services, a

significant burden for rights clearance, except as regards rights held by broadcasting

organisations. Member States should therefore be allowed to provide that signal

distributors benefit from a mechanism of mandatory collective management of rights for

their transmissions in the same way and to the same extent as operators of retransmission

services for retransmissions covered by Directive 93/83/EEC and this Directive. Where

signal distributors merely provide broadcasting organisations with ‘technical means’,

within the meaning of the case-law of the Court of Justice of the European Union, to

ensure that the broadcast is received or to improve the reception of that broadcast, the

signal distributors should not be considered to be participating in an act of communication

to the public.

(21) When broadcasting organisations transmit their programme-carrying signals directly to the

public, thereby carrying out an initial act of transmission, and also simultaneously transmit

those signals to other organisations through the technical process of direct injection, for

example to ensure the quality of the signals for retransmission purposes, the transmissions

by those other organisations constitute a separate act of communication to the public from

the one carried out by the broadcasting organisation. In those situations, the rules on

retransmissions laid down in this Directive and in Directive 93/83/EEC, as amended by

this Directive, should apply.

PE-CONS 7/1/19 REV 1 16

# **EN**

(22) To ensure the efficient collective management of rights and the accurate distribution of

revenues collected under the mandatory collective management mechanism introduced by

this Directive, it is important that collective management organisations maintain proper

records of membership, licences and the use of works and other protected subject matter, in

accordance with the transparency obligations set out in Directive 2014/26/EU.

(23) 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 that service, it is necessary to apply the country of origin

principle also to existing agreements, but with a transitional period. During that transitional

period, the principle should not apply to those existing agreements, thus providing time to

adapt them, where necessary, in accordance with this Directive. It is also necessary to

provide for a transitional period in order to allow broadcasting organisations, signal

distributors and rightholders to adapt to the new rules on the exploitation of works and

other protected subject matter through direct injection set out in the provisions in this

Directive on transmission of programmes through direct injection.

(24) In line with the principles of better regulation, a review of this Directive, including its

provisions on direct injection, should be undertaken after a certain period of time of this

Directive being in force, in order to assess, _inter alia_, its benefits for Union consumers, its

impact on the creative industries in the Union, and on the level of investment in new

content, and hence also the benefits regarding improved cultural diversity in the Union.

PE-CONS 7/1/19 REV 1 17

# **EN**

(25) This Directive respects the fundamental rights and observes the principles recognised in

the Charter of Fundamental Rights of the European Union. While this Directive may result

in an interference with the exercise of the rights of rightholders, insofar as mandatory

collective management takes place for the exercise of the right of communication to the

public with regard to retransmission services, it is necessary to prescribe the application of

mandatory collective management in a targeted manner and to limit it to specific services.

(26) Since the objectives of this Directive, namely promoting the cross-border provision of

ancillary online services for certain types of programmes and facilitating retransmissions

of television and radio programmes originating in other Member States, cannot be

sufficiently achieved by Member States but can rather, 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 Directive

does not go beyond what is necessary in order to achieve those objectives. As concerns the

cross-border provision of ancillary online services, this Directive does not oblige

broadcasting organisations to provide such services across borders. Neither does this

Directive oblige operators of retransmission services to include in their services television

or radio programmes originating in other Member States. This Directive 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 with regard to television and radio

programmes originating in other Member States.

PE-CONS 7/1/19 REV 1 18

# **EN**

(27) In accordance with the Joint Political Declaration of 28 September 2011 of Member States

and the Commission on explanatory documents **[1]**, Member States have undertaken to

accompany, in justified cases, the notification of their transposition measures with one or

more documents explaining the relationship between the components of a directive and the

corresponding parts of national transposition instruments. With regard to this Directive, the

legislator considers the transmission of such documents to be justified,

HAVE ADOPTED THIS DIRECTIVE:

**1** OJ C 369, 17.12.2011, p. 14.

PE-CONS 7/1/19 REV 1 19

# **EN**

## **CHAPTER I** **GENERAL PROVISIONS**

_Article 1_

_Subject matter_

This Directive lays down rules that aim to enhance cross-border access to a greater number of

television and radio programmes, by facilitating the clearance of rights for the provision of online

services that are ancillary to the broadcast of certain types of television and radio programmes, and

for the retransmission of television and radio programmes. It also lays down rules for the

transmission of television and radio programmes through the process of direct injection.

_Article 2_

_Definitions_

For the purpose of this Directive, the following definitions apply:

(1) ‘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 television or

radio programmes simultaneously with or for a defined period of time after their broadcast

by the broadcasting organisation, as well as of any material which is ancillary to such

broadcast;

PE-CONS 7/1/19 REV 1 20

# **EN**

(2) ‘retransmission’ means any simultaneous, unaltered and unabridged retransmission, other

than cable retransmission as defined in Directive 93/83/EEC, intended for reception by the

public, of an initial transmission from another Member State of television or radio

programmes intended for reception by the public, where such initial transmission is by

wire or over the air including that by satellite, but is not by online transmission, provided

that:

(a) the retransmission is carried out by a party other than the broadcasting organisation

which made the initial transmission or under whose control and responsibility that

initial transmission was made, regardless of how the party carrying out the

retransmission obtains the programme-carrying signals from the broadcasting

organisation for the purpose of retransmission, and

(b) where the retransmission is over an internet access service as defined in point (2) of

the second paragraph of Article 2 of Regulation (EU) 2015/2120, it is carried out in a

managed environment;

(3) ‘managed environment’ means an environment in which an operator of a retransmission

service provides a secure retransmission to authorised users;

(4) ‘direct injection’ means a technical process by which a broadcasting organisation transmits

its programme-carrying signals to an organisation other than a broadcasting organisation,

in such a way that the programme-carrying signals are not accessible to the public during

that transmission.

PE-CONS 7/1/19 REV 1 21

# **EN**

## **CHAPTER II** **ANCILLARY ONLINE SERVICES** **OF BROADCASTING ORGANISATIONS**

_Article 3_

_Application of the country of origin principle to ancillary online services_

1. The acts of communication to the public of works or other protected subject matter, by

wire or wireless means, and of making available to the public of works or other protected

subject matter, by wire or wireless means, in such a way that members of the public may

access them from a place and at a time individually chosen by them, occurring when

providing to the public:

(a) radio programmes, and

(b) television programmes which are:

(i) news and current affairs programmes, or

PE-CONS 7/1/19 REV 1 22

# **EN**

(ii) fully financed own productions of the broadcasting organisation,

in an ancillary online service by or under the control and responsibility of a broadcasting

organisation, as well as the acts of reproduction of such works or other protected subject

matter which are necessary for the provision of, the access to or the use of such online

service for the same programmes shall, for the purposes of exercising copyright and related

rights relevant for those acts, be deemed to occur solely in the Member State in which the

broadcasting organisation has its principal establishment.

Point (b) of the first subparagraph shall not apply to the broadcasts of sports events and

works and other protected subject matter included in them.

2. Member States shall ensure that, when setting the amount of the payment to be made for

the rights to which the country of origin principle, as set out in paragraph 1, applies, the

parties take into account all aspects of the ancillary online service, such as features of the

service, including the duration of online availability of the programmes provided in that

service, the audience, and the language versions provided.

The first subparagraph shall not preclude calculation of the amount of the payment on the

basis of the broadcasting organisation’s revenues.

3. The country of origin principle set out in paragraph 1 shall be without prejudice to the

contractual freedom of the rightholders and broadcasting organisations to agree, in

compliance with Union law, to limit the exploitation of such rights, including those under

Directive 2001/29/EC.

PE-CONS 7/1/19 REV 1 23

# **EN**

## **CHAPTER III** **RETRANSMISSION** **OF TELEVISION AND RADIO PROGRAMMES**

_Article 4_

_Exercise of the rights in retransmission by rightholders_

_other than broadcasting organisations_

1. Acts of retransmission of programmes have to be authorised by the holders of the exclusive

right of communication to the public.

Member States shall ensure that rightholders may exercise their right to grant or refuse the

authorisation for a retransmission only through a collective management organisation.

2. Where a rightholder has not transferred the management of the right referred to in the

second subparagraph of 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 a retransmission service seeks to

clear rights for a retransmission shall be deemed to have the right to grant or refuse the

authorisation for a retransmission for that rightholder.

PE-CONS 7/1/19 REV 1 24

# **EN**

However, where more than one collective management organisation manages rights of that

category for the territory of that Member State, it shall be for the Member State for the

territory of which the operator of a retransmission service seeks to clear rights for a

retransmission to decide which collective management organisation or organisations have

the right to grant or refuse the authorisation for a retransmission.

3. Member States shall ensure that a rightholder has the same rights and obligations resulting

from an agreement between an operator of a retransmission service and a collective

management organisation or organisations that act pursuant to paragraph 2, as rightholders

who have mandated that collective management organisation or organisations.

Member States shall also ensure that that rightholder is 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.

_Article 5_

_Exercise of the rights in retransmission_

_by broadcasting organisations_

1. Member States shall ensure that Article 4 does not apply to the rights in retransmission

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

rightholders.

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2. Member States shall provide that, where broadcasting organisations and the operators of

retransmission services enter into negotiations regarding authorisation for retransmission

under this Directive, those negotiations are to be conducted in good faith.

_Article 6_

_Mediation_

Member States shall ensure that it is possible to call upon the assistance of one or more mediators as

provided for in Article 11 of Directive 93/83/EEC where no agreement is concluded between the

collective management organisation and the operator of a retransmission service, or between the

operator of a retransmission service and the broadcasting organisation regarding authorisation for

retransmission of broadcasts.

_Article 7_

_Retransmission of an initial transmission_

_originating in the same Member State_

Member States may provide that the rules in this Chapter and in Chapter III of Directive 93/83/EEC

apply to situations where both the initial transmission and the retransmission take place within their

territory.

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## **CHAPTER IV** **TRANSMISSION OF PROGRAMMES** **THROUGH DIRECT INJECTION**

_Article 8_

_Transmission of programmes through direct injection_

1. When a broadcasting organisation transmits by direct injection its programme-carrying

signals to a signal distributor, without the broadcasting organisation itself simultaneously

transmitting those programme-carrying signals directly to the public, and the signal

distributor transmits those programme-carrying signals to the public, the broadcasting

organisation and the signal distributor shall be deemed to be participating in a single act of

communication to the public in respect of which they shall obtain authorisation from

rightholders. Member States may provide for arrangements for obtaining authorisation

from rightholders.

2. Member States may provide that Articles 4, 5 and 6 of this Directive apply _mutatis_

_mutandis_ to the exercise by rightholders of the right to grant or refuse the authorisation to

signal distributors for a transmission referred to in paragraph 1, carried out by one of the

technical means referred to in Article 1(3) of Directive 93/83/EEC or point (2) of Article 2

of this Directive.

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# **EN**

## **CHAPTER V** **FINAL PROVISIONS**

_Article 9_

_Amendment to Directive 93/83/EEC_

In Article 1 of Directive 93/83/EEC, paragraph 3 is replaced by the following:

‘3. For the purposes of this Directive, “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 programmes intended for reception by the

public, regardless of how the operator of a cable retransmission service obtains the

programme-carrying signals from the broadcasting organisation for the purpose of

retransmission.’.

_Article 10_

_Review_

1. By … [6 years after the entry into force of this Directive], the Commission shall carry out a

review of this Directive and present a report on the main findings to the

European Parliament, the Council and the European Economic and Social Committee. The

report shall be published and made available to the public on the website of the

Commission.

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2. Member States shall provide the Commission, in a timely manner, with the relevant and

necessary information for the preparation of the report referred to in paragraph 1.

_Article 11_

_Transitional provision_

Agreements on the exercise of copyright and related rights relevant for the acts of communication

to the public of works or other protected subject matter, by wire or wireless means, and the making

available to the public of works or other protected subject matter, by wire or wireless means, in

such a way that members of the public may access them from a place and at a time individually

chosen by them, 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 such online

service which are in force on … [2 years after the entry into force of this Directive] shall be subject

to Article 3 as from … [4 years after the entry into force of this Directive] if they expire after that

date.

Authorisations obtained for the acts of communication to the public falling under Article 8 which

are in force on … [2 years after the entry into force of this Directive] shall be subject to Article 8 as

from … [6 years after the entry into force of this Directive] if they expire after that date.

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_Article 12_

_Transposition_

1. Member States shall bring into force the laws, regulations and administrative provisions

necessary to comply with this Directive by … [2 years after the entry into force of this

Directive]. They shall immediately inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive

or shall be accompanied by such reference on the occasion of their official publication. The

methods for making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the measures of national

law which they adopt in the field covered by this Directive.

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_Article 13_

_Entry into force_

This Directive shall enter into force on the twentieth day following that of its publication in the

_Official Journal of the European Union_ .

_Article 14_

_Addressees_

This Directive is addressed to the Member States.

Done at Strasbourg,

_For the European Parliament_ _For the Council_

_The President_ _The President_

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# **EN**