Source: EURLEX
Language: en
Format: md

#### **COMMISSION OF THE EUROPEAN CQMVIUNITIES**

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                            C0M(91) 276 final - SYN 358

                            Brussels, 11 September 1991

                 Proposal for a

                 COUNCIL DIRECTIVE

    on the coordination of certain rules concerning copyright

   and neighbouring rights applicable to satellite broadcasting

              and cable retransmission

             (presented by the Commission)

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                      2 
                    CONTENTS

SUMMARY

EXPLANATORY MEMORANDUM

PART ONE: GENERAL

A. INTRODUCTION

B. THE NEED FOR ACTION ON THE PART OF THE COMMUNITY AND THE PURPOSE OF

   THE DIRECTIVE PROPOSED:

   I. The legal position in the Member States and under international law

     Satellite broadcasting

     Cable retransmission

   II. The need for action at Community level

     Satellite broadcasting

     Cable retransmission

     Summary

C. TYPE OF HARMONISATION SOUGHT

D. LEGAL BASIS

PART TWO: PARTICULAR PROVISIONS

Chapter I: Definitions

Chapter II: Broadcasting by satellite

Chapter III: Cable retransmission

Chapter IV: General provisions

PROPOSAL FOR A COUNCIL DIRECTIVE

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                     - 3 
                    SUMMARY

The draft proposal intends to provide a missing element in the creation of

the European audiovisual area, since the directive "Television without

Frontiers" has been adopted on 3 October 1989 without a chapter relating to

questions of copyright.

In its communication on audiovisual policy COM(90)78 final of 21 February

1990 the Commission confirmed that the single European audiovisual area

required a set of common rules in the field of copyright. The Commission

observed:

"The legal framework established by the Directive (Television without
Frontiers) still has to be amplified on the question of copyright. At a
time when cross-frontier broadcasting has, as a result of technology,
become a reality and, by legislation a free right, this exercise must be
accompanied by an effective protection of copyright in all the Member
States in order that the holders of such rights may benefit fully from the
European dimension of broadcasting".

The Commission published a discussion paper on "Broadcasting and Copyright

in the Internal Market" in November 1990 which was submitted to the

professionals and formed the subject of a hearing on 5 February 1991. The

present draft proposal reflects the outcome of this consultation process.

The draft proposal covers two distinct areas: satellite broadcasting and

cable retransmission.

Satellite broadcasting

Satellite broadcasting by its very nature is "transnational". However,

national copyright legislation in most cases is only inadequately adapted

to the new technological reality. Legal insecurity as to where and when

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                     - 4 
and how satellite broadcasting involves copyright has seriously hampered

satellite broadcasting to develop satisfactorily. This was detrimental not

only to broadcasters wishing to transmit their programme by satellite but

also to rightholders such as authors, performing artists, phonogram

producers and film producers who wished to exploit their rights by way of

satellite broadcasting.

The draft proposal seeks to limit this legal gap by proposing a "two-legged

solution".

In the first place, the draft proposal defines at Community-1 eve I what

constitutes the act of satellite broadcasting for copyright purposes and,

therefore, requires authorization of the rightholders. As a consequence,

the authorization to transmit protected works by satellite must be acquired

in the country of establishment of the broadcaster while the remuneration

should be paid according to the actual or potential audience (which might

well be situated in several countries).

Yet, it has to be avoided that one "country of establishment" decides to

create a copyright haven which would receive all the satellite broadcasters

within the Community, leaving the creative professions without protection.

The "second leg" of the draft proposal, therefore, provides a common

minimum standard of protection for authors, performing artists, phonogram

producers and broadcasters throughout the Community.

Cable retransmission

Legal insecurity prevailing in the field of cable retransmission of foreign

television broadcasts is of a different nature than that in the field of

satellite broadcasting.

Cable retransmission of television broadcasts constitutes an act subject to

copyright, that is prior authorization of right-owners. However, in the

case of a simultaneous, unaltered and unabridged cable retransmission it is

impossible for the cable-operator to acquire the necessary rights in

advance for lack of information about both content and identity of right
owners of the retransmitted programme.

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                     - 5 
The way out of this dilemma has been shown by contractual practice in the

most cabled Member States such as Belgium, the Netherlands and, partly

Germany. In those countries the authorization for cable retransmission is

negotiated in a centralized form by the collective organizations

representing the different categories of rightholders, the cable operators

and the broadcasters.

The draft proposal's "umbrella model" is based on the experience gained

from this conractual practice and seeks to eliminate the remaining flaws.

According to the draft proposal cable retransmission rights should be

exclusively negotiated under the umbrella of collective organizations that

would represent the various categories of right-owners. This type of

centralized negotiation between cable-operators, broadcasters and umbrella

organizations should be promoted by two additional measures. In the first

place, a neutral platform for negotiations in the form of a friendly non
binding mediation should be available at request of one of the parties

involved in the negotiations. Furthermore, all the parties should be

subject to an obligation not to refuse negotiation on unreasonable grounds.

Both measures are intended to open negotiations on cable retransmission

without, however, forcing the parties concerned to conclude an agreement.

This will remain entirely in the contractual sphere.

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                     - 6 
                EXPLANATORY MEMORANDUM

                 PART ONE: GENERAL

A. INTRODUCTION

1. The Commission first put forward proposals on the law governing

   cross-border broadcasting in the common market in its 1984 Green Paper

   on the establishment of the common market for broadcasting, especially

   by satellite and cable. [1] The proposal that a single market should be

   established in broadcasting was included in the list of measures to be

   taken by the end of 1992 which the Commission set out in its White

   Paper on completing the internal market. [2 ]

2. On 3 October 1989 the Council adopted Directive 89/552/EEC, the

   "Television Without Frontiers" Directive. [3] In its final form the

   Directive departed from the Commission's original proposal, and from

   Parliament's opinion, in that it did not include a chapter on

   copyright. On 21 February 1990 the Commission in its Communication on

   audiovisual poI icy observed: [4 ]

   COM(84) 300 final, 14.6.1984.

   COM(85) 310 final, 14.6.1985.

   Council Directive 89/552/EEC of 3 October 1989 on the coordination of

   certain provisions laid down by law, regulation or administrative
   action in Member States concerning the pursuit of television
   broadcasting activities: OJ No L 298, 17.10.1989, p. 23.

   COM(90) 78 final, 21.2.1990.

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                     - 7 
   "The legal framework established by the Directive has still to be
   amplified on the question of copyright. At a time when cross-frontier
   broadcasting has, as a result of technology, become a reality and, by
   legislation, a free right, this exercise must be accompanied by an
   effective protection of copyright in all the Member States in order
   that the holders of such rights may benefit fully from the European
   dimension of broadcasting."

3. The Commission then included this task in its programme of

   harmonization measures, [5] it submitted a discussion paper to all

   interested parties setting out its thinking on the shape of a system

   of copyright protection in the future European audiovisual area, [6] and

   held a hearing on the subject on 5 February 1991.

4. Without a Community approach the European audiovisual area will be set

   up solely on the basis of those legal opportunities which are left

   open, to the detriment of artistic creation in Europe. The proposal

   for a Directive accordingly includes general rules for copyright which

   take account of the need to maintain a balance between the various

   interests involved and to facilitate the management of copyright and

   related or "neighbouring" rights on a European scale. The rules

   ensure that protection is as effective as possible and that authors

   and neighbouring right owners are fairly remunerated in all

   Member States. At the same time they serve to encourage investment in

   promoting creativity and cross-border programme transmission, and as

   far as possible to minimize the associated risks, to the extent that

   they derive from uncertainty as to -the law or heterogeneous national

   rules.

   Follow-up to the Green Paper - working programme of the Commission in
   the field of copyright and neighbouring rights, COM(90) 584 final,

   17.1.1991.

   Broadcasting and Copyright in the Internal Market - discussion paper
   prepared by the Commission of the European Communities on copyright
   questions concerning cable and satellite broadcasts, I Il/F/5263/90,

   November 1990.

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                  - 8 
5. The Directive here proposed therefore does not try to put over ideas

   already rejected in the discussion of the "Television Without

   Frontiers" Green Paper [7] and the subsequently adopted Directive. [8 ]

   Rather, the concern is now, through the introduction of supporting

   measures, to safeguard and supplement the acquisition of rights to

   simultaneous, unaltered and unabridged retransmission of programmes

   via cable, which in practice has since been largely organized through

   collective agreements. This will promote cross-border cable

   retransmission and underpin the European audiovisual area.

6. Above all, the system of regulation proposed includes the primary

   broadcasting of programmes via satellite (the need to cover this

   aspect in Community law was not acknowledged in the Green Paper). The

   rapidly growing number of satellites used for programme transmission,

   the introduction of medium-power and direct broadcast satellites and

   improved aerial technology, which is making good quality individual

   reception increasingly attractive, mean that a solution which is

   confined simply to cable retransmission would be incomplete.

7. The arrangements adopted for the Community will, moreover, have to be

   consistent with the territorially wider design currently being

   discussed in the Council of Europe as a supplement to the European

   Convention on Transfrontier Television of 5 May 1989. But the

   objectives of the Community are different, because they aim at

   creating the Common Market. The proposal for a directive tries to

   fulfil this obligation by stepping up copyright protection, promoting

   cross-border transmission of programmes and, hence, creating the

   intended audiovisual area.

7 Loc. cit.

8 Loc. cit.

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                     - 9 
   The proposal for a Directive essentially falls into two parts. Both

   contain provisions on the law governing the cross-border transmission

   of television and radio programmes in the common market. Chapter I

   defines the terms used, and thereafter Chapter II deals with satellite

   broadcasting and Chapter III deals with the simultaneous, unaltered

   cable retransmission of terrestrial or satellite broadcast programmes.

B. THE NEED FOR ACTION ON THE PART OF THE COMMUNITY AND THE PURPOSE OF

   THE DIRECTIVE PROPOSED

I. * The legal position in the Member States and under international law

Satellite transmission

9. Article 11 [b i s] (1)(i) of the Revised Berne Convention on the

   protection of literary and artistic works (RBC) in the Brussels

   version, by which or by whose subsequent versions all Member Statesare

   bound, grants copyright owners the exclusive right of authorizing

   wireless radio-diffusion (primary transmissions). The principle

   applies to both terrestrial and satellite broadcasting. Under

   Article 11 [b j s] (2), it is to be a matter for the countries of the

   Union to determine the conditions under which the right mentioned may

   be exercised, without prejudice to the moral right of the author or to

   his right to obtain equitable remuneration.

10. The application of Article ll [bis] (1) RBC to the transmission of

   protected works via satellites raises a series of questions, however.

11. Since the notion of broadcasting presupposes that programme signals

   can be received by the public, a distinction has hitherto been drawn,

   as regards satellite programme transmission, between the broadcasting

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                      - 10 
   of protected works by communications and direct satellite. While the

    latter operate at relatively high power over frequencies provided

   under international telecommunications law for reception by the public

   and their signals can be received by the public directly, the former

   transmit signals at much lower power over frequencies which the

   public, under telecommunications law, is not allowed to

   receive. [9] Although these signals were at first beamed only to the

   head-ends of cable networks, their individual reception has now become

   affordable as a result of improved aerial technology and is being

   allowed by national telecommunications authorities to an increasing

   extent. [1] ^ Recently, medium-power satellites have appeared on the

   scene; these continue to use telecommunications frequencies but their

   signals can also be received directly without any difficulty in large

   parts of their footprint. Nevertheless, this direct reception of

   programme signals transmitted via communications satellites has

   hitherto not come within the scope of copyright law, and the

   distinction hitherto made in telecommunications law has continued to

   be applied for copyright purposes. Accordingly, only the broadcasting

   of programme signals via direct satellite is considered as a

   communication of a work to the public for the purposes of copyright,

   but not transmission via communications satellite; in the latter

   case, only the subsequent retransmission of the programme signals via

   cable networks is relevant for copyright purposes. In contrast to

   what happens when signals emitted by direct satellite are fed into a

   network, cable retransmission seems therefore to be comparable not to

   wireless transmission but to a primary transmission by wire, against

   which authors are protected by Article 11(1)(1) of the Brussels

   Revision, and Articles 11 [t e r] (1)(ii), 14(1)(ii) and 14 [b i s] (2)(b) of

   the Paris Revision, of the Berne Convention.

9 See the International Telecommunications Convention and Article 1 para
   37 of the Radio Regulations.

10 See Chapter 3 of the Satellite Communications Greenpaper, to be
   C0M(90)490 final of 20 November, 1990.

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                  - 11 
12. The question whether a uniform approach to the satellite transmission

   of protected works is discernible for copyright purposes, covering

   both uplink and downlink and including any conversion on the satellite

   itself, or whether some of these operations require special

   authorization for copyright purposes has been answered on various

   occasions in various ways.

13. Which copyright applies to the transmission of programmes via direct

   satellite has not yet been clarified. Since an author, by virtue of

   the principle of territoriality, is in fact entitled to a bundle of

   territorially limited copyrights in respect of all those countries

   where he enjoys protection, a user of protected works must be granted

   a right of use for each country in which he performs a relevant act of

   use for copyright purposes. With conventional terrestrial

   broadcasting, such a relevant act of use is generally acknowledged to

   be carried out in the country in which the broadcast originates; the

   - sometimes not inconsiderable - spillover of the broadcast signals

   into neighbouring countries has been neglected as irrelevant for

   copyright purposes.

14. According to this approach the transmission of programmes via direct

   broadcasting satellite would only be subject to an authorization by

   the right owners in the broadcasting country and not by the right

   owners in the countries of reception. This can be justified on the

   ground that as regards copyright only the actof transmission is

   relevant and the direct satellite must simply be considered an

   extended aerial in space, whereas in all other countries reception is

   simply free of copyright.

15. A more recent view, however, is that the relevant act of use for

   copyright purposes in the transmission of programmes via direct

   satellite takes place not only in the broadcasting country but at the

   same time in all those countries in which the programme signals are

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                        12 
   directly receivable. Consequently, any person intending to transmit

   programmes via a direct satellite would require authorization not only

   from right owners in the broadcasting country but from right owners in

   all the receiving countries. To protect authors it is sometimes

   proposed that the highest level of protection available at the time

   under the copyright system of the receiving countries should be

   applied, and sometimes that the law of the receiving countries should

   be applied only alternatively, where no, or only inadequate,

   protection exists in the broadcasting country.

16. For a long time this controversy was of theoretical interest only.

   Since the first direct satellites have started broadcasting - to be

   followed by a great many more in the foreseeable future - and since

   programmes transmitted via medium-power satellites can be received

   directly, the question of the relevant law has assumed central

   importance in the matter of the acquisition of rights.

17. Under the national copyright laws of the Member States authors

   generally hold the right to communicate protected works to the public

   not Just terrestrially but via satellite, as part of their

   broadcasting right. The copyright laws of France and Spain contain

   specific provisions concerning the beaming of protected works to a

   commun i cat i ons sate I Ii te (droi t d'inject ion) ; 11 » 12 t ^e

   United Kingdom, following a legislative change made in 1988, also

   regards the diffusion of programme signals via communications

   satellites, which are "capable of being lawfully received by members

   of the public", as broadcasting activity. [13] In the other

   Member States it is at least the general rule that only the

11 Article 27(3) in conjunction with Article 45(3) of Law No 57/298 of
   11 March 1957 on literary and artistic property, as amended by
   Law No 85-660 of 3 July 1985.

12 Article 20(2)(c) in conjunction with Article 36(2) of Law No 22/1987
   of 11 November 1987 on intellectual property.

13 Section 6(1 )(a) and (2) of the Copyright, Designs and Patents Act

   1988.

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                     - 13 
   transmission of signals via direct satellite, but not the transmission

   of signals to a communications satellite, constitutes an act of

   broadcasting under copyright law. It is also unclear at national

   level whether in the case of diffusion by direct satellite only

   copyright in the broadcasting country or the copyrights in all

   receiving countries are relevant.

18. For historical reasons the protection of neighbouring rights,under the

   1961 Rome Convention for the Protection of Performers, Producers of

   Phonograms and Broadcasting Organizations, is lessdeveloped. Denmark,

   Germany, France, the United Kingdom, Italy and Luxembourg have acceded

   to the Convention, but not Belgium, Greece, the Netherlands, Spain or

   Portugal.

19. Performers are protected, under Article 7(1)(a) of the Rome

   Convention, against the broadcasting of their live performances only.

   If their performance, however, has been fixed with their consent on a

   phonogram, videogram or video-phonogram, their consent is not required

   for broadcasting of the fixation. If commercial phonograms are used

   for the broadcast either the performer, or the producer of the

   phonogram, or both, are at least entitled to equitable remuneration

   pursuant to Article 12. Apart from the fact that in this respect the

   Rome Convention leaves an option for the contracting States, the right

   to remuneration can be annulled either in part or in full by entering

   an appropriate reservation (Article 16(1)(a)). Thus, Denmark and

   Italy essentially exclude the right to remuneration with regard to <t

   transmission for non-commercial purposes only, [1] ^ whereas by contrast,

   Luxembourg has entered a reservation with regard to the whole of

   Article 12.I [5] Broadcasting organizations are protected, under

   Article 13(a) and (b) against the simultaneous use of parts of their

   transmissions in primary satellite broadcasts by the right to

   authorize rebroadcasting, and from deferred use by the right to

   authorize fixation of their broadcasts.

14 See Copyright 1965, p. 214 (Denmark) and Copyright 1975, p. 44
   (Italy).

15 See Copyright 1976, p. 24.

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                     - 14 
20. At nat ional level, however, there are many differences with regard to

   neighbouring rights. Thus, first of all, neighbouring rights have not

   hitherto been protected by statute in Belgium, Greece and the

   Netherlands, although draft laws on this subject are currently being

   discussed in Belgium and the Netherlands. In the meantime, the courts

   in the Member States have granted protection to a certain extent on

   non-copyright grounds. Where neighbouring rights have been protected

   by statute performers can prevent the broadcast of their live

   performances without their consent, in accordance with the

   international protection afforded by Article 7(1)(a) of the Rome

   Convention. [1] ** The draft laws of Belgium and the Netherlands also

   confer such a right on performers. [17] However, the rights which

   performers and/or producers of phonograms enjoy as regards direct use

   for the broadcasting of phonograms published for commercial purposes

   are regulated differently. Thus, Luxembourg and Portugal currently

   grant neither performers nor phonogram producers independent rights

   with regard to the use of phonograms for broadcasting purposes. By

   contrast, the United Kingdom and Ireland refuse independent rights

   regarding the use of phonograms for broadcasting purposes only to

   performers; but in both these Member States phonogram producers are

16 § 45(1)(b) of Law 158 on Copyright in literary and artistic works
   (Denmark); § 76(1) of the Urhebergesetz (UrhG) (Germany);
   Article 18(1) of Law No 85/660 (France); Section 182(1)(b) of the
   Copyright, Designs and Patents Act 1988 (United Kingdom); Section 5
   of the Performers' Protection Act (Ireland); Article 80(1) of Law
   No 633 on the Protection of copyright and other rights associated with
   its exercise (Italy); Article 3(1)(a) of the Law on the Protection of
   performers, producers of phonograms and broadcasting organizations
   (Luxembourg); Article 178(a) of the Code on copyright and related
   rights (Portugal); Article 102(1) of Law 22/1987 (Spain).

17 See Article 51(1) of the draft Law on copyright, Documents du Sénat
   No 329-1 (1988) (Belgium), and Article 2(1)(b) of the draft Law on
   Neighbouring rights, Second Chamber, 1988-89, 21 244 (Netherlands).

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                     - 15 
   entitled under copyright law to authorize the use of phonograms. [18 ]

   On the other hand, in Germany, [19] Denmark, [20] France, [21] Italy [22] and

   Spain [23] both performers and producers of phonograms have a right to a

   share of an additional remuneration for the broadcasting of

   phonograms. Comparable rules are also provided for in the draft laws

   of Belgium and the Netherlands. [24] However, the procedures for

   claiming the remuneration and the method of allocating remuneration

   between beneficiaries differ considerably in detail. Lastly,

   broadcasting organizations are protected in all Member States which

   have statutory neighbouring rights or grant such organizations

   copyright protection, against the fixation and the rebroadcasting of

   their broadcasts. [2] ^

18 Section 16(1)(d) and 20(b) of the Copyright, Designs and Patents Acts
   1988 (United Kingdom) and Section 17(1) and (4)(b) and (c) in
   conjunction with Section 2(3) of the Copyright Act 1963 (Ireland).

19 §§ 76(2) and 86 UrhG.

20 § 47 of Law 158 on Copyright in literary and artistic works.

21 Article 22(2) to (5) of Law No 85-660.

22 Articles 73 and 80(2) of Law No 633 on the Protection of copyright and

   other rights relating to its exercise.

23 Articles 103 and 109(1) of Law 22/1987.

24 See Articles 56 and 61 of the draft Law on copyright, Documents du
   Sénat No 329-1 (1988) (Belgium), and Article 6 of the draft Law on
   Neighbouring rights, Second Chamber, 1988-89, 21 244 (Netherlands).

25 See § 48(1) of Law 158 of Copyright in literary and artistic works
   (Denmark); § 87(1)(1 ) and (2) UrhG (Germany); Article 27(1) of Law
   No 85-660 (France); Section 16(1)(a) and (d) in conjunction with
   Section 17(1) and (4) and Section 20(c) of the Copyright, Designs and
   Patents Act 1988 (United Kingdom); Section 19(1) and (5)(a), (b) and
   (d) of Copyright Act 1963 (Ireland); Article 79 of Law No 633 on the
   Protection of copyright and other rights relating to its exercise
   (Italy); Article 10(a) and (b) of the Law on the Protection of
   performers, producers of phonograms and broadcasting organizations
   (Luxembourg); Article 187(a) and (b) of the Code on Copyright and
   related rights (Portugal); Article I16(1)(a) and (b) of Law 22/1987
   (Spain).

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                      - 16 
Cable Retransmission

21. The transmission by cable of a programme broadcast either

   terrestrially or via direct broadcasting satellite constitutes an

   indépendant act of broadcasting in accordance with Article 11 bis

   (1)(ii) of the Berne Convention. This qualification is valid for both

   a simultaneous and unchanged transmission of a programme broadcast and

   a defered transmission thereof. Where the programme signals from the

   primary broadcast are retransmitted via cable networks in a country

   other than the primary broadcasting country, the national

   retransmission right in each individual country is affected by that

   retransmission. The only condition is that the signals are fed into

   the network by a party other than the primary broadcasting

   organizat ion.

22. It has hitherto been argued that in order to qualify as a broadcast it

   should comply with an additional criterion, namely that cable

   retransmission must reach an additional audience vis-à-vis the primary

   broadcast. Retransmission within the national service area or even

   within the direct reception area of commercial broadcaster would thus

   be admissible without the author's renewed consent and would not give

   rise to an entitlement to additional remuneration. The rebroadcasting

   right in Article 11 [b i s] (1)(ii) of the Berne Convention Just like the

   primary broadcasting right in (i) is subject to the possibilities of

   restriction provided for in Article 1 1 [b i s] ( 2 ) . It can therefore be

   made subject to exclusively collective management or even to a

   statutory Iicence.

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                 - 17 
23. Under the Member States' copyright laws, too, cable retransmission is

   subject to the author's consent. [2] ** Denmark has introduced a

   statutory licence with respect to the retransmission of domestic and

   foreign programmes broadcast terrestrially or via direct broadcasting

   satellite, but not via communications satellite. [27] In the

   United Kingdom [28] - and similarly in Ireland [29] - the law assumes that

   the cable retransmission of programmes which network operators are

   obliged to retransmit under the legislation governing the media, as

   well as the retransmission of programmes within their intended

   reception area are classed as primary broadcasts, and as such do not

   need the special consent of right owners. This does not apply to the

   retransmission of satellite broadcasts.

24. By contrast, the Rome Convention does not deal with the retransmission

   of primary broadcast signals in an international context. The rules

   of the Convention afford protection only against rebroadcasting by

   wireless means (see Article 3(f) and (g)), and do not cover

26 See §§ 15(2), 20 UrhG (Germany); Article 27 of Law No 57-298, as
   amended by Law No 85-660 (France); Section 16(1)(d), 20 in
   conjunction with Section 7, 178 of the Copyright, Designs and Patents
   Act 1988 (United Kingdom); Section 8(6)(e), 9(7)(d) and 18(4)(d) in
   conjunction with Section 2(3) Copyright Act 1963 (Ireland);
   Article 16 of Law No 633 on the Protection of Copyright and other
   rights relating to its exercise (Italy); Article 23(l)(2) of the
   Copyright Act of 29 March 1972 (Luxembourg); Article 68(2)(e) in
   conjunction with Article 153(3) of the Code on copyright and related
   rights (Portugal); Article 17 in conjunction with Article 20(2)(e) of
   Law 22/1987 (Spain).

27 See § 22(a) and § 45(2) (compulsory licence for the rebroadcast ing
   right of broadcasting organizations) of Law No 158 on Copyright in
   literary and artistic works, and § 11(a) of Law No 157 on the Right to
   photographic images.

28 Section 73 of the Copyright, Designs and Patents Act 1988.

29 Section 52(3) and (4) of the Copyright Act 1963.

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                     - 18 
   retransmission by wire. Even if a cable retransmission should be

   considered as "communication to the public" within the meaning of the

   Rome Convention, the simultaneous, unaltered cable retransmission

   which is the only form concerned by this Directive would not affect

   any of the entitlements conferred by the Rome Convention:

   Article 7(1)(a) of the Convention does not protect performers where

   what is communicated to the public is a performance that has already

   been broadcast; the right to remuneration for the use of phonograms

   provided for in Article 12 requires that the phonograms be used

   "direct" for broadcasting purposes; and, finally, broadcasting

   organizations are protected only against a retransmission of their

   broadcasts by wireless means (Article 13(a) in conjunction with

   Article 3(g)).

25. However, under Article 1(1 M b ) of the 1960 European Convention on the

   Protection of Television Broadcasts, whose signatories include

   Belgium, Denmark, Germany, France, the United Kingdom and Spain,

   broadcasting organizations are also protected against the

   retransmission of their broadcasts by wire. The United Kingdom,

   however, has excluded such protection generally by entering a

   reservation; Belgium has excluded the protection only for Belgian

   broadcasting organizations and restricted theprotection of foreign

   broadcasting organizations to 50% of the weekly broadcasting time.

26. Of very minor importance in this respect is the 1974 Convention

   relating to the distribution of programme-carrying signals transmitted

   by satellite, to which of the Member States only Germany and Italy

   have so far acceded. The Convention provides protection only against

   unauthorized "tapping" of programme-carrying signals not intended for

   reception by the general public and hence essentially only against

   unauthorized reception of point-to-point broadcasts via satellite.

   Broadcasts which are transmitted via satellite direct to the public

   are specifically excluded from the protection of the Convention under

   Article 3.

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                     - 19 
27. By contrast, the Member States' legislation on copyright or

   neighbouring rights frequently grants, in this respect, a level of

   protection that exceeds the minimum provided for in international law.

   Thus, in particular, broadcasting organizations in many Member States,

   e.g. in Germany, [30] France, [31] the United Kingdom [32] or Spain [33] are

   protected not only against wireless retransmission of their broadcasts

   but as well, in principle, against any retransmission by wire. As

   regards neighbouring rights for performers the disparities are

   relatively large: In certain Member States, such as Germany, [34 ]

   France [35] or Spain, [3] ^ their right also includes the right to

   authorize the retransmission of their performance - it is sometimes

   presumed that such authorization is granted when authorization is

   given to broadcast a performance or fix it on a videogram or audio
   videogram - while in other countries, such as recently the

   United Kingdom, [37] rebroadcasting is specifically exempt. If a

   commercial phonogram is used for the primary broadcast, the laws of

   the Member States frequently also grant performers and/or producers

30 § 87(1)(1) in conjunction with § 20 of UrhG.

31 Article 27(1) of Law No 85-660 in conjunction with Article 27 of Law
   No 57-298 as amended by Law No 85-660.

32 Sections 16(1)(d) and 20(c) of the Copyright, Designs and Patents Act

   1988.

33 Article 116(1)(a) of Law 22/1987.

34 See § 76, UrhG.

35 Article 18(1) of Law No 85-660.

36 Article 101(1) of Law 22/1987.

37 See Sections 182 and 183 of the Copyright, Designs and Patents Act

   1988.

```

```
                     - 20 
   of phonograms a right to remuneration for the retransmission of that

   broadcast [38] in addition to the minimum protection in the

   Rome Convention; the United Kingdom and Ireland even grant an

   independent right to authorize the retransmission of the broadcast. [39 ]

II. The need for action at Community level

28. In both fields, satellite broadcasting and cable retransmission,

   copyright law has been unable to keep pace in ail respects with the

   expanding technological possibilities and commercial realities of

   cross-border broadcasting. In international law, and especially in

   the domestic laws of the Member States, therefore, there are currently

   certain areas of serious uncertainty as to the law; but there are also

   shortcomings in the protection offered which impede the objective of

   promoting creative work. In addition, right owners are exposed to the

   threat of seeing the exploitation of their rights blocked by other

   right-owners who hold an exclusive right in another part of that same

   programme.

29. For copyright purposes, however, a distinction has to be drawn between

   primary broadcasting and the simultaneous, unabridged retransmission

   of programmes by cable. In a primary broadcast, which includes the

   broadcast of an original programme via satellite, the broadcaster

   himself decides the composition of the programme. He will include

   only works and protected performances for which he has already secured

   the broadcasting rights. In cable retransmission, on the other hand,

38 See for instance, §§ 76(2) and 86 in conjunction with § 20 UrhG
   (Germany) or Article 103 in conjunction with Article 20(2)(d) and (e)
   of Law 22/1987 (Spain).

39 Sections 16(1)(d), and 20(b) of the Copyright, Designs and Patents Act
   1988 (United Kingdom) and Section 17(1), (4)(b) and (c) in conjunction
   with Section 2(3) of the Copyright Act 1963 (Ireland).

```

```
                     - 21 
   the cable operator cannot make up his programmes on the basis of a

   portfolio of rights which he has acquired beforehand. The cable

   operator can decide only whether he wants to retransmit the primary

   broadcast in full or not at all.

Satellite broadcasting

30. In considering the broadcasting of programmes via satellite there is

   no longer any justification from the point of view of right owners,

   broadcasters or viewers for excluding an activity which has to be

   described as broadcasting from the scope of copyright on the sole

   ground that it uses technology that was originally reserved under

   telecommunications law for closed point-to-point communication. For

   the purposes of copyright the decisive question is simply whether the

   use made of protected works and performances constitutes communication

   to the pub Iic.

31. Where programmes are broadcast via satellite there is legal

   uncertainty as to whether the rights must be acquired only in respect

   of the country from which the programme is transmitted, or in all

   countries of reception too; and once the broadcasting of programmes

   via a communications satellite is placed on the same footing with

   broadcasting via direct satellite, as the Directive proposes, this

   uncertainty will extend to the overwhelming majority of programmes

   already being broadcast via satellite in the Community.

32. Given the right owner's interest in seeing his protected work or

   performance exploited, the only commercially sound way of resolving

   this legal uncertainty is to determine that the broadcasting rights

   must be acquired only in respect of the country of transmission, which

   will have to be more precisely defined.

33. If a broadcaster were to have to acquire the rights in all receiving

   countries, the difficulty would immediately arise of deciding in

```

```
                      - 22 
   which countries the programme signals could in fact be received

   directly. A satellite footprint cannot be defined with enough

   precision to allow the individual countries of reception to be

   determined exactly. A satellite broadcast beamed at western Europe

   may also be receivable in eastern Europe and parts of Scandinavia,

   albeit with more expensive aerials. With recent satellite technology

   footprints are becoming more sharply defined, but the edges are still

   blurred. There is a margin where reception is possible but requires

   increasingly large and more powerful aerials. In the circumstances,

   it is not possible for a broadcaster to determine with sufficient

   certainty where the public can receive direct and where not.Finally, a

   failure of negotiations with any one of the right owners in any one of

   the Member States would now have the consequence that the entire

   satellite transmission would be obstructed. This would not benefit the

   author, who has an interest in seeing his work exploited; it would not

   be in the general interest either.

34. The proposal for a directive does not rule out the possibility, for a

   rightowner to authorize the transmission of a protected work, such as

   a film, exclusively by one broadcaster or exclusively for one

   linguistic version. These limited authorizations can still be granted

   in the framework of a contractual arrangement.

35. But a decision that only the law of the broadcasting country rs to be

   relevant requires that copyright and the neighbouring rights of

   performers, producers of phonograms and broadcasting organizations be

   properly protected by means of a minimum alignment of the rules in

   force in the individual states. Where one Member State does not

   provide protection against the broadcasting of protected works by

   satellite, the transmission via direct satellite from that country

   throughout the Community would require neither the consent of right

   owners nor the payment of remuneration, and would render ineffective

   the protection that the legislation of another Member State may grant.

   If the law of the broadcasting country does confer protection in

   principle, but makes a primary broadcast via direct satellite subject

   to a statutory licence, right owners in the entire footprint are

```

```
                      - 23 
   prevented from deciding how their works will be exploited and simply

   receive remuneration that has been fixed by the competent authority in

   the broadcasting country. The same applies to the owners of

   neighbouring rights; but here the disparity between the rights

   protected in the different Member States is currently much wider than

   in the case of copyright protection, as there is still no systematic

   protection of neighbouring rights in a number of Member States.

36. For this reason the proposal for a Directive rules out the

   introduction of statutory licences for satellite broadcasts. If on

   the date of the proposal the legislation of a Member State allows

   agreements between an entitled organization of right owners and a

   broadcaster to be declared generally binding, this possibility may be

   maintained subject to certain conditions. In the field of

   neighbouring rights the proposal is explicitly confined to introducing

   a standard minimum level of protection; any additional entitlements in

   respect of the protection of neighbouring rights will continue to be a

   matter for the Member States.

Cable retransmission

37. This proposal for a directive provides regulation only for cable

   retransmission of broadcasts from another Member State. For the time

   being the Commission cannot establish the need for harmonisation, as

   far as cable retransmission of broadcasts from one Member State within

   that same Member State are concerned. The reason is that such a

   purely national situation does not in general affect the creation of a

   single European audiovisual area.

38. The rights needed for a primary broadcast can be acquired on an

   individual basis, but this is difficult in the case of the rights for

   simultaneous, unaltered cable retransmission, on account of its

   dependence on the primary broadcast. In Belgium, Germany and the

   Netherlands, at least, such rights are already being acquired on the

   basis of general contracts to which the cable operators and where

```

```
                     - 24 
   possible all groups of right owners are party. In France the

   collecting societies, representatives of film right owners and some

   broadcasting organizations have each concluded special contracts with

   individual cable operators. Contractual acquisition of rights for

   cable retransmission does not exist in Denmark, where the law provides

   for statutory licensing.

39. This type of collective acquisition of rights - in the form of a

   general contract in most cases - has largely managed to solve the

   initial problems associated with the acquisition of rights to

   simultaneous, unaltered cable retransmission of terrestrially

   broadcast programmes. Basically, though, two problems still remain,

   which may Jeopardize the retransmission of national programmes and the

   cross-border retransmission of programmes from other Member States.

40. Firstly, the idea underlying general contracts at least is that the

   parties to them should be the owners of all rights, thus dispensing

   with the need for detailed proof of title. Yet network operators can

   never be sure that outsiders will not claim individually a right to

   authorize the retransmission (the "outsider problem"). Although the

   right owners party to a contract do undertake to indemnify network

   operators against claims by third parties whose rights fall within the

   category of rights managed or represented by them, such an arrangement

   gives network operators partial protection only. For one thing, the

   indemnity clause is limited to the amount which the outsider, had he

   been represented when the contract was concluded, could have claimed

   as his share of the total remuneration under the contract. Whether

   this is enough to cover the damages a network operator may have to

   pay, plus any legal costs, is doubtful. Indemnification protects only

   against damages claims, and not against injunctions preventing a

   retransmission or criminal sanctions. The network operator is anyway

   wholly unprotected against claims by those right owners whose

   categories of rights were not represented by any of the groups of

   right owners involved in the conclusion of the contract.

```

```
                     - 25 
41. The second potential threat is that, when conducting new negotiations,

   the parties may not be able to agree in time to modify or continue the

   existing contract. This may be the result differing of opinions as to

   the amount and composition of the remuneration or, more recently, as

   to the inclusion of new, satellite-broadcast programmes. Thus, in

   Belgium and the Netherlands it has so far only been possible to reach

   agreement on a one to two-year temporary extension of the original

   contract. Moreover, suppliers of new satellite programmes sometimes

   encounter difficulties in being included in these general contracts,

   which are created by those who are already parties to them.

42. The proposal for a Directive seeks to deal with these problems in two

   ways.

   Firstly, it would introduce a requirement that the right to authorize

   or prohibit cross-border cable retransmission be exercised only

   through a collecting society. The rule would not apply to

   broadcasters' rights in their own broadcasts, whether originally their

   own or assigned to them.

   Secondly, it would as far as possible alleviate difficulties in the

   conclusion of agreements for the grant of rights to cross-border cable

   retransmission by requiring that the parties may call upon the

   assistance of impartial mediators. Furthermore, measures to prevent

   the abuse of negotiating positions, should be provided for, without

   however taking away from the exclusive character of cable

   retransmission rights.

   Finally, the proposal for a directive seeks to stimulate the parties

   to transfer the rights needed for cable retransmission in a single

   general contract in every Member State; all right-owners and cable

   operators should be party to these agreements.

```

```
                     - 26 
Summary

43. Thus the proposal for a Directive covering satellite broadcasting and

   cable retransmission seeks to overcome the adverse effects of the

   inadequate protection available where cross-border broadcasting is

   concerned, and so, in line with the other planned harmonization

   measures, to establish the legal and economic foundations for

   continued creative work in the European cultural sphere, which merits

   particular protection. The diversity of European culture, as was

   recently emphasized in the proposal for a Council Directive on rental

   right, lending right and on certain rights related to copyright, [40] is

   not merely deserving of protection: it must have a high level of

   protection in order to preserve its identity.

C. TYPE OF HARMONIZATION SOUGHT

44. Like the other plans for harmonization in the field of copyright, this

   proposal does not aim at a general harmonization of the protection of

   copyright and related rights, but seeks only to harmonize areas which

   are currently of foremost importance. One of these areas is the

   creation of a European audiovisual area, which has partly been

   established by the directive "Television without Frontiers" of 3

   October 1989 [41] leaving for harmonisation the field of copyright

   rules. The proposal therefore provides for harmonization only to the

   extent that it is absolutely necessary in order to meet the need for

   action at Community level.

45. The national approaches to copyright in the Member States are

   therefore left as far as possible untouched. Only where the purpose

40 COM(90) 586 final - SYN 319, 24.1.1991.

41 Council Directive 89/552/EEC of 3 October 1989, OJ No L 298,

   17.10.1989.

```

```
(5)

```

```
                     - 27 
   of the proposed Directive requires it are Member States to be obliged

   to enact harmonized rules. A number of the measures proposed here,

   particularly regarding neighbouring rights, in any event already form

   part of the legislation on the protection of copyright and related

   rights in several Member States. The proposal for a directive mainly

   seeks to avoid both, the existence of "protection-free" areas and the

   possibility of their introduction in the future within the Community.

46. In the case of satellite broadcasting, for example, the Member States

   will remain free to decide how the broadcasting right which they must

   provide for is to be incorporated into their national systems of

   rights management. As regards the obligation to protect neighbouring

   rights, this proposal confines itself to an indispensible level of

   protection. The Member States remain free to lay down more

   far-reaching protective measures. Neither would the proposal in any

   way affect national rules on remuneration in respect of sound

   recordings, including the allocation of payments between phonogram

   producers and performers. The proposal for a directive provides for a

   protection of neighbouring rights which is mainly taken from the

   substance of the Rome Convention for the Protection of Performers,

   Producers of Phonograms and Broadcasting Organisations which, at

   present, must be considered the most comprehensive standard for a

   protection of neighbouring rights on the international level and which

   has been accepted by the majority of Member States. In some areas,

   however, the proposal for a directive seeks to go above the standard

   of the Rome Convention, in particular with regard to the exclusion of

   the reservations. The transcription of a minimum standard of

   protection for the purposes of this proposal, however, does not imply

   that further harmonization in the field of neighbouring rights might

   not strive to establish a higher level of protection throughout the

   Commun i t y.

```

```
                      - 28 
47. The Directive also takes account of the special mechanisms operating

   in particular countries, such as the possibility of declaring

   collective agreements generally binding in the field of satellite

   broadcasting, or the existence of statutory licences for cable

   retransmission. Lastly, the proposal would leave the Member States'

   existing rules on the activities of collecting societies unaffected.

48. Lastly, the proposal avoids interfering with existing agreements for

   the exploitation of works enjoying copyright protection and other

   protected matter, except where this is indispensible for the

   achievement of the objective pursued. The same applies to the

   practice of contractual acquisition of the rights needed for cable

   retransmission, where that practice has established itself. Similarly,

   the proposal will not form an obstacle to future contractual

   arrangements that result from the economic situation.

49. This proposal does not prejudice the harmonization proposed in other

   fields of copyright, in particular the proposal for a Council decision

   concerning the accession of the Member States to the Berne Convention

   for the Protection of Literary and Artistic Works, as revised by the

   Paris Act of 24 July 1971, and the International Convention for the

   Protection of Performers, Producers of Phonograms and Broadcasting

   organizations of 26 October 1961 and the proposal for a Council

   Directive on Rental Right, Lending Right and on certain rights related

   to copyr ight.

50. The proposal for a decision of the Council concerning the accession of

   Member States to the Berne Convention and to the Rome Convention seeks

   to introduce a basic standard for the protection of copyright and

   neighbouring rights. The intention of the present proposal is to

   establish a common level of protection for neighbouring rights insofar

   as such level is required to avoid the development of low-protection

   countries to attract satellite broadcasters. The proposal for a

   directive on rental right finally provides for an absolute

   harmonization of certain neighbouring rights within the Community.

   Within the comprehensive approach of the Commission in the field of

   copyright as laid down in the working programme of the

```

```
                     - 29 
   Commission each of the three proposals must be considered as a self
   relying set of rules which reflects the three different objectives of

   harmonization. Partial overlaps during the proposa I-stage are the

   consequence and will have to be eliminated in a way depending on the

   progress of the adoption of each of these proposals.

   LEGAL BASIS

51. Article 2 of the EEC Treaty gives the Community the task of promoting

   a harmonious development of economic activities and closer relations

   between the states belonging to it. To this end the Treaty calls for

   the establishment of a common market and for the approximation of the

   laws of the Member States.

52. As far as the audiovisual field is concerned, a first step towards a

   European audiovisual area was made in the "Television without

   Frontiers" Directive. [42 ]

53. In its subsequent Communication from the Commission to the Council and

   Parliament on audiovisual policy the Commission confirmed that the

   legal framework established by that Directive had still to be

   amplified on the question of copyright. [43] "Failing a Community

   approach on this question," the Commission said, "the legislative

   compartmentalization and legal insecurity due to differences in the

42 Loc. cit.

43 C0M(90) 78 final, 21.2.1991.

```

```
                     - 30 
   various national protection systems will constitute a disincentive to

   investment in creativity, limit opportunities for the exploitation of

   creative works...and prove detrimental or advantageous, depending on

   the nature of the legal system applied, to certain of the interested

   parties." There was "a common interest among all the parties

   concerned that the question of copyright be handled within a Community

   context".

54. The Directive proposed here is intended to make it easier for

   broadcasting organizations, performers, producers of phonograms and

   cable operators to work in a single audiovisual area.

55. The Court of Justice has consistently held that broadcasting and the

   relay of broadcasts represent services rather than goods. It makes no

   difference here whether a broadcast is a conventional terrestrial one

   (Sacchi), [44] or takes place by cable (Debauve) [45] or by satellite.

   The technical medium used is irrelevant to the question whether a

   service is being provided. The exploitation of rights by the author

   or right owner also constitutes a service.

56. An important part of the activity of a satellite broadcaster is the

   broadcasting of television and radio-programmes via satellite. The

   prerequisite acquisition of broadcasting rights is governed by the

   individual copyright laws of the Member States, which vary

   considerably if they address satellite broadcasting at all. Only a

   few national legal systems expressly grant authors a satellite

   broadcasting right, in other countries it has still to be established

   whether the author's general broadcasting right includes a satellite

44 Case 155/73 [1974] ECR 409

45 Case 52/79 [1980] ECR 833.

```

```
                      - 31 
   broadcasting right, and whether that right is separable. Neither is

   it clear in the laws of most countries which of the author's rights

   are affected by a satellite broadcast. The present state of the law

   means that the acquisition of the rights for a programme to be

   broadcast by satellite is subject to serious uncertainties, and these

   have a dissuasive if not a prohibitive effect on the organization of

   satellite broadcasts.

57. Furthermore, the existing legal uncertainties hamper the activities of

   right-owners (authors, artists, producers of phongrams and

   broadcasting organizations themselves) because the exploitation of

   their rights by granting a satellite broadcasting right is encumbered

   by the above mentioned legal problems.

58. The proposal for a Directive seeks to coordinate the national

   copyright rules in this sphere so as to remove the uncertainties

   surrounding the acquisition of rights for satellite broadcasting.

59. The proposal for a Directive would also provide for the coordination

   of the rules on the related rights held by performers, broadcasting

   organizations and the producers of phonograms. The rules governing

   these related rights, like the other copyright rules on broadcasting

   rights, form part of the legal framework of a single European

   audiovisual area.

60. Performers, broadcasting organizations and the producers of phonograms

   are not protected against the use of their work for broadcasting

   purposes in all Member States. In the absence of any coordination of

   these rules, satellite broadcasters might establish themselves in

   whichever Member State provided the lowest level of protection for

   these related rights.

61. Given the disparities which exist it is conceivable that the Court of

   Justice could follow its findings in Codite I v Ciné Vog [4 6] and hold

   that there has not yet been established a single audiovisual area.

46 Case 62/79 [1980] ECR 881, 903

```

```
                     - 32 
62. The second set of provisions in the proposal concerns the cable

   retransmission of broadcasts. The acquisition of the rights for the

   cable retransmission of broadcasts is an essential part of the

   activity of a cable operator, as retransmission requires that the

   necessary broadcasting rights be acquired beforehand. There is a need

   for a provision requiring that such rights be exercised through a

   collecting society, in order to ensure that cable retransmission

   rights can be acquired in their entirety. This would make it

   impossible for the retransmission of a comprehensive programme to be

   prevented by the refusal of a single right owner exercising a right

   which relates only to one component in that programme. Cable operators

   would be able to retransmit the whole of the programme, and at the

   same time the right holders with an interest in a cable retransmission

   would not be prevented from exploiting their rights.

63. The acquisition of cable retransmission rights, which must necessarily

   be on a contractual basis, is further facilitated by providing for a

   mediation body which can assist where right holders and cable

   operators have difficulty in reaching agreement. A prohibition on the

   abuse of negotiating positions is also included, in order to prompt

   the parties to engage in serious negotiation.

64. It follows from the above-mentioned that the proposal for a directive

   seeks to facilitate the pursuit of the activities of satellite

   broadcasters, cable operators as well as those of authors, performing

   artists and phonogram producers. To that end article 57 paragraph 2

   provides for the coordination of the provisions laid down by law,

   regulation or administrative action in Member States.

65. In the presentation of this directive, the Commission has taken into

   account the requirements of Article 8c of the EEC-Treaty and has

   concluded that no special provisions or derogations seem warranted or

   justified at this stage.

```

```
                     - 33 
             PART TWO; PARTICULAR PROVISIONS

                CHAPTER I - DEFINITIONS

                    Article 1

                   Def in it ions

1. This provision seeks to define the terms used in the Directive.

2. In view of the technical development of satellites and receiving

aerials there is no longer any Justification from the point of view of

right owners or broadcasters for excluding from the scope of copyright an

activity which has to be described as broadcasting, on the sole ground that

it uses technology that was originally reserved under telecommunications

law for closed point-to-point communication. The broadcasting of programme

signals via a communications satellite should therefore be put on the same

footing as far as copyright and related rights are concerned as

broadcasting by direct satellite, provided it is comparable to the latter

in terms of direct reception. This is the case when the reception of the

programme bearing signals is enabled with aereals conceived for individual

reception of television and radiobroadcasts.

3. Communication to the public of protected works and other protected

matter by satellite is to require the prior authorization of the right

holder. The purpose of this provision is to determine when the

broadcasting of programmes via satellite constitutes communication to the

public, and who is to be responsible for such communication.

```

```
                      - 34 
4. Responsibility for communication to the public will arise only at the

point where a single decision is taken on the content and the transmission

of the signals, provided the chain of broadcasting equipment from the point

where this decision is taken to the transmission of the signals from the

satellite to the public is uninterrupted. Thus a decision on the content

alone (such as a decision to produce a particular film, or the act of

acquiring broadcasting rights, or the filming of a football match) would

not constitute communication to the public. In the same way a decision to

transmit, taken in isolation (such as the decision of an engineer at a

satellite ground station) would not constitute communication to the public

either. Lastly, there would be no act giving rise to responsibility in

copyright law where a broadcasting organization planned its programmes and

drew up a schedule months in advance. Such a decision is translated into

action only when the programme is cleared for broadcasting in its final

form, with any commercials and current programme references incorporated.

Only then is there an uninterrupted chain of broadcasting equipment from

the point where the decision to act is taken to the transmission of the

signal .

5. The responsibility in copyright law, so described, arises where the act

requiring authorization takes place, that is to say where the decision on

content and transmission is taken. As a rule this will be the headquarters

of the broadcasting organization. This will still be so if the signals are

first sent to a ground station in another Member State and transmitted to

the satellite from there. The decisive test is that the chain of

broadcasting equipment used must be uninterrupted from the place of the

decision on the content and on transmission up to the point of

transmission.

```

```
                     - 35 
6. This does not mean that the question whether a broadcasting

organization's transmission can be received in more than one Member State

loses its importance. Even though reception as such may be irrelevant for

copyright purposes, there can be no doubt that it can have commercial

repercussions on any other exploitation of the work received in the country

of reception. Thus the extent of reception will usually be taken into

account when the remuneration to be paid is arrived at. The relationship

between the transmission of a satellite programme and other forms of use or

exploitation will as a rule be coordinated by contract too.

7. The proposal for a Directive says nothing of the treatment of cases in

which the decision on the content and transmission of the programme-bearing

signals is taken in a non-Community country. The reason for this is that

Community law cannot lay down any compulsory standard of protection for

copyright and related rights in a non-member country, as it can inside the

Community. Member States are accordingly free to make the responsibility

in copyright law for satellite broadcasts from non-member countries depend

on alternative tests.

8. Furthermore, the proposal for a directive deals with questions

relating to the simultaneous, unchanged and unabridged cable retransmission

of broadcasts from another Member State.

9. With regard to the retransmission of broadcasts of one Member State

within that same Member State Community action, at present, is not required

in order to establish the European audiovisual area. SimiMarly a need for

Community intervention concerning copyright treatment of simultaneous,

unaltered cable retransmission of the programmes of domestic broadcasters

within their so-called "distribution zone" must be denied. Finally, this

reasoning also applies to the question how transmitting equipment which is

relevant for copyright purposes must be distinguished from mere receiving

equipment which is irrelevant for copyright purposes.

```

```
                     - 36 
10. The proposal for a directive does not make a distinction regarding

the mode of transmission of the primary broadcast that is retransmitted.

The rules proposed, therefore, apply irrespective of whether the primary

broadcast is a satellite or a terrestrial broadcast. However, there is no

cable retransmission in the sense of this proposal, if the programme is

merely delivered by point-to-point communication to the cable head end

without being the subject of a simultaneous primary broadcast.

11. The notion of cable-retransmission extends to multipoint micro-wave

distribution systems where the latter perform the role of broadcast
retransmission in areas where the establishment of a cable network is not

economi caIi y viable.

           CHAPTER M - BROADCASTING BY SATELLITE

                    Art icle 2

                 Broadcasting right

12. Article 2 of the proposal provides that the satellite broadcasting of

works which are protected under copyright law is to require the prior

authorization of the right owners.

13. It is not proposed, however, that a new satellite exploitation right

should be introduced. The intention is simply to make it clear that

communication by satellite can constitute communication to the public in

this same way as communication via a terrestrial broadcasting network.

Both forms of communication are covered by the broadcasting right.

14. This will, under no circumstances limit the existing practise of

contractual arrangements for the exploitation of rights. In particular, it

is still possible to limit the exploitation of rights contractually to

specific modes of transmission or to specific linguistic versions.

```

```
                       37 
                     Art icle 3

             Acquisition of broadcasting rights

15. Under the proposal the only law which would apply to the broadcast of

a television or radio programme by satellite would be that of the

Member State in which a single decision is taken on the content and

transmission of the programme-bearing signals. If there were to be

statutory licensing in that Member State, right owners would have to accept

the direct reception of their works broadcast by satellite throughout the

entire satellite footprint.

16. This would be too far-reaching an effect; and in order to prevent it,

the Directive would not allow statutory licences to restrict the right to

communicate works enjoying copyright protection by satellite to the public.

17. In line with harmonisation rules put forward by the Nordic Council

Scandinavian countries allow collective agreements concluded between an

entitled organization of right owners and a broadcasting organization to be

extended to right owners not represented by the relevant organization.

18. Where on 31 July 1991 such a possibility exists in a Member State,

and covers satellite broadcasting as well, this may be retained until 31

December 1997 provided that an extended collective agreement system is not

applied to cinematographic works. Cinematographic works in this context,

refers to the definition of Articles 2, paragraph 1 and 14bis of the Berne

Convention on the protection of Artistic and Literary Works.

```

```
                     - 38 
                    Art icle 4

                    Performers

19. The current variations in the level of protection of performers,

producers of phonograms and broadcasting organizations in the Member States

could be exploited by satellite broadcasters who established themselves in

the Member State which granted the most limited protection to these

categories. The proposal therefore provides for a harmonization of the

protection of performers, producers of phonograms and broadcasting

organizations in the Community to the extent required to achieve the

objective of the proposal.

20. This would mean that performers would be entitled to authorize or

prohibit the transmission of their live performances by satellite. To

avoid this right being deprived of substance through the use of recorded

performances, the Directive also provides for a fixation right and a

reproduction right.

21. When an audiovisual work is produced the contract between the artist

and the producer will as a rule settle the remuneration of the artist,

while the later commercial exploitation of the work, including the artist's

performance, will, in practise, mostly be in the producer's hands. This

practice is reflected in the legislations of a number of Member States.

These legislations mostly provide for a presumption of assignment according

to which the artist who participates in the production of an audiovisual

work and has concluded a contract with the producer is presumed to have

assigned his rights to this producer. In some Member States the

presumption of assignment is rebuttable. It is not the intention 4f the

present proposal to interfere with the rules on the assignment of rights.

Member States, therefore, can leave the assignment of performer's rights to

the individual negotiation between the parties or make the assignment of

performers rights subject to a system of legal presumption.

```

```
                      - 39 
                     Art icle 5

            Remuneration for the use of phonograms

22. Sound recordings are extensively used in the composition of broadcast

programmes. The Rome Convention therefore provides that performers or the

producers of phonograms, or both, singly or severally, are to be given a

share in this form of use of a phonogram by a broadcasting organization,

through the grant of a right of remuneration. It would be advisable to

adopt this principle at Community level. The Member States would remain

free to determine whether they wish to grant this right of remuneration to

both categories of right holders, to a single category, or to one category

with some participation by the other. The rules on the division of the

remuneration would also be a matter for the Member States.

                     Art icle 6

               Broadcasting organizations

23. In order to protect broadcasting organizations from seeing parts of

their broadcasts taken over by other broadcasting organizations without

authorization, the proposal provides that broadcasting organizations would

have the right to authorize or to prohibit the simultaneous retransmission

of their transmissions by satellite, the fixation of their transmissions

and the reproduction of any fixation of their transmissions.

```

```
                     - 40 
                    Art icle 7

                Limitations on rights

24. The proposal avoids any detailed harmonization of the rules providing

for limitations on related rights in the Member States-, its wording is

based on Article 15 of the Rome Convention. In most Member States

limitations on related rights are regulated in whole or in part by means of

a reference to the corresponding provisions of copyright law proper. To

attempt a detailed harmonization here would run counter to this principle,

and the result might be that owners of related rights would be placed in a

better position than authors. This would conflict with the approach to

copyright and related rights in most Member States.

25. This in no way prevents steps being taken to harmonize such

limitations at Community level at a later stage.

                    Art icle 8

                 Minimum protection

26. Articles 4 to 7 seek to lay down a minimum level of protection for

performers, producers of phonograms and broadcasting organizations in

respect of satellite broadcasting. The Member States remain free, however,

to provide for more far-reaching protection of these categories of right

owners or other categories. In any event Member States should be bound by

the definition of a communication to the public by satellite when granting

rights above the minimum standard. Article 8 paragraph 1 does not preclude

any further harmonization in the field of copyright and neighbouring

r ights.

```

```
                  - 41 
27. The Directive provides for recognition of the rights only of nationals

of Community Member States, and of companies or firms within the scope of

Article 58 of the EEC Treaty, so as to prevent any discrimination against

right owners from other Member States which would be incompatible with the

EEC Treaty. The question whether the rules in this Directive can be

applied to the nationals of non-member countries will therefore depend on

the relevant bilateral and international agreements between the

Member States and non-Community countries. Where those agreements provide

for national treatment of nationals of non-Community countries this

Directive may also apply to them.

                     Art icle 9

                 Transitional Provision

28. The immediate application of Chapter 2 of the Directive to works could

be a source of difficulty where their exploitation is the subject of an

existing agreement. This would be the case where broadcasting rights have

been divided between different right holders in defined areas. Under the

circumstances obtaining at the time the agreement was concluded, rights

were conferred whose exploitation was not to affect the exploitation of the

sister rights. In the bulk of these cases the difficulty can be resolved

by reinterpreting or if necessary renegotiating the agreement. The grant

of a three-year period of grace is intended to allow satisfactory agreed

solutions to be found where a genuine problem arises.

```

```
                     - 42 
             CHAPTER III: CABLE RETRANSMISSION

                   Article 10

               Cable retransmission right

29. The cable retransmission of broadcasts constitutes communication to

the public of the works and other protected matter contained in the

broadcast, and is protected by copyright. The cable retransmission of

broadcasts therefore requires the authorization of the relevant right

owners.

30. But this does not tell us which are the relevant right owners, nor

does it define types of use which may be outside the scope of copyright.

The Member States are consequently free to decide which categories of right

owners are to be entitled to authorize or to prohibit the cable

retransmission of a broadcast. It is likewise a matter for the

Member States to determine the view to be taken for copyright purposes of a

communal aerial, for example, or of the coverage of a domestic broadcaster.

31. Neither is the proposal intended to harmonize moral rights in relation

to cable retransmission. It does not affect rules in the Member States

allowing a cable retransmission to be interrupted on grounds of

infringement of moral rights.

32. While the cable retransmission of broadcasts is in future to be

carried out on a purely contractual basis, account has to be taken of the

developed cable retransmission systems which exist in the Member States and

which operate in a satisfactory way. Where on 31 July 1991 a Member State

has introduced a statutory licensing system covering cable retransmission,

```

```
                     - 43 
that possibility will remain open until 1998 too. This is equally valid for

a situation where the national copyright legislation expressly provides for

the possibility of the introduction of a statutory licence system by

administrative regulation. However, there is no need to maintain such

systems after 1998, when the contractual system envisaged by this proposal

will have shown its merit of rendering a statutory licence solution

superfluous.

                   Article 11

          Exercise of the cable retransmission right

33. A cable network operator takes over a primary broadcast without

alteration, and has no say in the composition of the programmes he relays.

This means that he is not usually in a position to identify the owners of

rights in particular parts of the programme in advance. In order to

prevent rights in individual programme components from standing in the way

of the cable retransmission operation as a whole, it is proposed that cable

retransmission rights should be exercised centrally by one or more

collecting societies. The right of each individual right owner to

authorize or to prohibit cable retransmission could be exercised only

through the intermediary of these collecting societies.

34. The obligation to exercise the cable retransmission right only through

a collecting society would not affect the questions of ownership and

transfer of ownership; the obligation to act through a collecting society

would apply only to the exercise of the cable retransmission right against

a cable operator.

35. Lastly, right owners as members of the collecting society would remain

free to take steps through the society to protect their commercial interest

in seeing their works exploited in an orderly fashion. The collecting

society might for example be told to include an escape clause in agreements

authorizing cable retransmission. Such a clause might provide that the

society may oppose the retransmission of a work where this would result in

serious and irreparable damage to the right owner.

```

```
                     - 44 
36. Neither does the obligation to act through a collecting, society mean

that right owners would be required to Join such a society. A right owner

who has not transferred the exercise of his rights to a collecting society

would have a claim for compensation on the society which manages rights of

the same kind. The claim would be confined to the sum which the right

owner would have received if he had transferred his rights to the society.

This implies that as far as this compensation is concerned the right-owner

who is not a member of the collecting society must be put on the same

footing as the members of that society. Furthermore, the non-member must

have the possibility to enforce his claim for equal treatment before the

national courts.

                   Article 12

 Exercise of the cable retransmission right by broadcasting organizations

37. The number of broadcasting organizations can be determined at the time

a cable retransmission agreement is concluded, and every cable operator

knows which programmes he is feeding into his network. It is not

necessary, therefore, to extend the obligation to act through a collecting

society to cover broadcasting organizations' own rights and rights assigned

to them.

38. Where a right owner transfers the rights for a primary broadcast and

for any associated cable retransmission to a broadcasting organization,

these cable retransmission rights are to be exercised by the broadcasting

organization and not by a collecting society.

```

```
                     - 45 
                   Article 13

                 General contracts

39. Both cable operators and right owners can have an interest in

regulating authorization for the cable retransmission of one or more

broadcasts by one or more cable operators in a single general contract.

Right owners and cable operators should therefore be encouraged to do so.

The parties would conclude such general contracts freely, but any party

seeking such an agreement must himself be prepared to negotiate on a

collect ive basis.

40. This does not mean that the other side could be required to act

collectively. It is conceivable, therefore, that negotiations might be

individual on the one side and collective on the other. A cable operator

might negotiate with all right owners together, for example, or a

collecting society might negotiate with all cable operators regarding a

particular category of rights.

                   Article 14

                    Mediators

41. Orderly cable retransmission requires that the parties be

fundamentally available for negotiations on the acquisition of rights. To

ensure that this is so the parties may have recourse to the assistance of

mediators if they encounter an unwillingness to negotiate. The mediators

body would help with negotiation, and if necessary could submit non-binding

amicable proposals. The mediators should be impartial experts to ensure

that proper account is taken of the interests involved. The details of the

procedure would remain a matter for the Member States.

```

```
                     - 46 
                   Article 15

        Prevention of the abuse of negotiating positions

42. The willingness of the parties to negotiate is also to be promoted by

a ban on the abuse of negotiating positions. In general terms, the

existence of an abuse of a negotiating position should be considered if a

position taken with regard to an ongoing negotiation can in no way be

justified by the circumstances. There would be such abuse, for example,

where one of the parties refused absolutely to enter into negotiation. The

same would apply where a purported offer was in no way based on rational

elements. In effect, therefore, this ban on the abuse of negotiating

positions constitutes a requirement at least to enter into bona f i de

negotiation. But it is only an aid to negotiation, and does not force the

parties to reach agreement. A proposal of an improperly high or low level

of consideration would be inadmissible. But the Directive does not give a

definition of what constitutes a fair proposal.

43. If no agreement is reached and there has been no abusive conduct,

cable retransmission will not be possible in that particular case.

44. Member States remain free to determine the way in which they will seek

to prevent such abuse. A civil-law remedy or administrative supervision

would both be conceivable.

```

```
                     - 47 
             CHAPTER IV; GENERAL PROVISIONS

                   Article 16

                 Compet it ion Rules

45. The application of the competition rules of the Community and of the

   Member States are not affected by the provisions of the draft

   directive. In particular, the measures to prevent the abuse of

   negotiating positions is intended only to promote the willingness to

   negotiate in a given situation, quite independently from the rules of

   conduct imposed by the competition laws in force.

                   Article 17

            Collective administration of rights

46. Regulation of the activities of collecting societies will continue to

be a matter for the Member States, which must however comply with Community

law. This article does not preclude any further harmonization with regard

to the collective administration of rights.

```

```
                     - 48 
                  Proposal for a

                 COUNCIL DIRECTIVE

     on the coordination of certain rules concerning copyright

     and neighbouring rights applicable to satellite broadcasting

               and cable retransmission

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

   Community, and ensuring the economic and social progress of the

   Community countries by common action to eliminate the barriers which

   divide Europe;

(2) Whereas to that end the Treaty provides for the establishment 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;

```

```
                     - 49 
(3) Whereas broadcasts transmitted across frontiers 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 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 [1], 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 objectives 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 copyright 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

   payment of remuneration or that the individual holders of exclusive

   rights in various Member States block the exploitation of their

   rights; whereas the legal uncertainty in particular constitutes a

   direct obstacle to the free circulation of programmes within the

   Community;

   OJ No L 298, 17.10.1989, p. 23.

```

```
                     - 50 
(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 longer any justification for this differing legal treatment;

(7) Whereas the free broadcasting of programmes is further 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 purposes, this legal

   uncertainty now affects almost all programmes broadcast in the

   Community by satellite;

(8) Whereas, furthermore, the legal certainty, which is a prerequisite for

   the free movement of broadcasts within the Community, is missing where

   programmes transmitted across frontiers are fed into and retransmitted

   through cable networks;

(9) Whereas the development of the acquisition of rights 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 cannot be sure to

   have actually acquired all the programme 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 distribution or improperly allowing such negotiations to fail;

(12) Whereas the legal framework for the creation of a single audiovisual

   area laid down in Directive 89/552/EEC must therefore be supplemented

   with reference to copyright;

```

```
                     - 51 
(13) Whereas, therefore, an end should be put to the differences of

   treatment of the transmission of programmes by communications

   satellite which exists in the Member 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

   Community 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 communication

   to the public occurs only when and in the Member State where a

   broadcasting organization takes a single decision on the content and

   the transmission of programme-carrying signals; whereas there is no

   communication 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;

(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;

(16) Whereas a special transitional provision applicable to 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;

```

```
                     - 52 
(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 the minimum protection provided for neighbouring rights is

   mainly taken from the substance of the Rome Convention of the

   Protection of Performers, Producers of Phonograms and Broadcasting

   Organizations which at present must be considered to provide the most

   comprehensive standard of protection of neighbouring rights in the

   international 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 copyright and neighbouring rights; 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 an exception is provided for in the case of

   existing legal licence schemes-,

```

```
                     - 53 
(21) Whereas, this Directive, through the obligation to have recourse to a

   collecting society, provides for the exclusive 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 contractual

   arrangements is not called into question by the intervention of

   outsiders holding rights in individual parts of the programme; whereas

   the authorization 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-,

(22) Whereas contractual agreements regarding the authorization 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 question the contractual nature of the acquisition of cable

   rights;

(23) Whereas, however, Community rules are not needed 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 needed to establish

   and guarantee free and uninterrupted cross-border broadcasting by

   satellite and simultaneous, unaltered cable retransmission of

   programmes broadcast from other Member States, on what is essentially

   a contractual basis;

```

```
                     - 54 
(25) Whereas this Directive does not prejudice further harmonization 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 legislative and administrative measures in their

   domestic law, provided these do not run counter to the objectives of

   this Directive and are compatible with Community 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;

(27) Whereas this Directive does not affect the applicability of the

   competition rules in Articles 85 and 86 of the Treaty,

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I: DEFINITIONS

Article 1

For the purpose of this Directive:

a) "satellite" means any satellite operating either on frequencies 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 broadcasting satellites;

```

```
                      55 
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 programme-carrying signals by the

   broadcaster. This act of communication to the public by satellite

   occurs in the Member State where the broadcaster takes the single

   decision on the content and the transmission by satellite of

   programme-carrying signals. If the programme-carrying signals are

   encrypted, communication 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 broadcaster himself or with his

   approval. There is no communication to the public by satellite,

   however, if there is any interruption of the chain of broadcasting

   equipment between the point where a single decision is taken and the

   transmission of the relevant signals from the satellite;

c) "cable retransmission" means the simultaneous, unaltered and

   unabridged retransmission of a broadcast from another Member State by

   a cable or microwave system for reception by the public;

d) "broadcasting" means the initial transmission, by wire 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 members 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 author to authorize or to

prohibit the communication to the public by satellite of copyright works,

subject to the provisions set out in this Chapter.

```

```
                     - 56 
Article 3: Acquisition of broadcasting rights

(1) Member States shall ensure that the right referred 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.

(3) Paragraph 2 shall not apply to cinematographic works, including works

   created by a process analogous to cinematography.

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.

```

```
                     - 57 
Article 5: Remuneration for the use of phonograms

Member States shall provide that if a phonogram published 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 phonograms, or

to both.

Article 6: Broadcasting organizations

Member States shall provide that broadcasting organizations 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: Limitations on rights

(1) Member States may provide for limitations to the protection guaranteed

   by Articles 4, 5 and 6 only as regards:

     - pr ivate 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.

```

```
                    - 58 
(2) Notwithstanding paragraph 1 of this Article, any Member State may

   provide for the same kinds of limitation with regard to the protection

   of performers, producers of phonograms and broadcasting organizations

   as it provides for in its legislation concerning the protection of

   copyright in literary and artistic works. However, compulsory

   licences may be provided for only to the extent to which they are

   compatible with the Rome Convention for the Protection of Performers,

   Producers of Phonograms and Broadcasting Organizations.

Article 8: Minimum protection

(1) Member States may provide for more far-reaching protection 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.

```

```
                    - 59 
CHAPTER M l : 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 owners, holders of neighbouring rights and cable operators.

(2) Notwithstanding paragraph 1, Member States may retain until

   31 December 1997 such statutory licence systems that are in operation

   or expressly provided for by the national law on 31 July 1991.

Article 11: 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

   collect ing society.

(2) A holder of a right who has not transferred the management of his

   rights to a collecting society shall have a claim to compensation on

   the collecting society which manages 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 12: 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 transmissions.

```

```
                    - 60 
Article 13: General contracts

Member States shall ensure that a party seeking the conclusion of a general

contract is for its part obliged to submit collective proposals for an

agreement.

Article 14: Mediators

(1) Where no agreement is concluded regarding authorization 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 paragraphs 2 and 3.

(2) The mediators shall have the task of providing assistance with

   negotiation. They may also submit non-binding recommendations to the

   parties.

(3) Member States shall ensure that the mediators are so selected that

   their impartiality is beyond doubt.

Article 15; Prevention of the abuse of negotiating positions

Member States shall ensure that the parties do not improperly prevent

negotiation regarding authorization for cable retransmission.

```

```
                     - 61 
CHAPTER IV: GENERAL PROVISIONS

Article 16: Competition rules

This Directive shall be without prejudice to the Community 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 18: Final provisions

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

administrative provisions necessary to comply with this Directive by

1 January 1995. They shall immediately inform the Commission thereof.

When Member States adopt these provisions, these shall contain a reference

to this Directive or shall be accompanied by such reference at the time of

their official publication. The procedure for such reference shall be

adopted by Member States.

2. Member States shall communicate to the Commission the provisions of

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

Article 19

This Directive is addressed to the Member States.

Done at Brussels, For the Council

                            The President

```

```
                  - 62 
         NOTE ON THE FINANCIAL IMPACT

The present proposal does not have budgetary consequences

for the Community.

```

```
                    - 63 
   NOTE ON THE EFFECT ON COMPETITIVENESS AND EMPLOYMENT

I. What Is the main Justification for the measure?

  establishment of the Internal market;

  definition of common rules of the game for a European

  audovisual area;

  strengthening of the position of European culture by the

  provision of remuneration to those Involved In the

  production and dissemination of protected works;

I I. Characteristics of the enterprises concerned

The proposal affects firms of all descriptions. Film

producers, phonogram producers, satellite broadcasters and

cable operators vary from multinationals to medium size

national companies. Authors and performers normally conduct

business as private Individuals or as small companies.

III. What obligations are Imposed directly on enterprises?

Satellite broadcasting organizations and cable operators

which broadcast or retransmit protected works will have to

respect the rights of authors, of performers and of

producers of film works and phonograms to allow the use of

their works. The participants of negotiations concerning

cable retransmission rights will have to accept the

```

```
                  - 64 
Intervention of one or more mediators and may not

unreasonably refuse negotiations.

IV. What obligations may be Imposed Indirectly on

   enterprises by local authorities?

None

V. Are there any special measures for SMEs?

##### `No`

VI. What foreseeable effects are there?

(a) on the competitiveness of enterprises?

Rightholders will benefit from the direct effect of

receiving remuneration for the broadcasting by satellite or

the retransmission of their works. The directive will

enhance their competitiveness by establishing the country of

origin principle for authorization of satellite

broadcast ing.

Film right owners, in particular, which have acquired the

relevant rights of use In one Member State will be given

legal security to be able to exploit these rights by

satellite broadcasting In competition with rightholders In

other Member States. This will lead to a more competitive

environment favourable to the strengthening of a single

European audiovisual area.

The competitiveness of broadcasters and cable-operators will

be increased by the enhanced legal security with regard to

the applicable rules on copyright and neighbouring rights.

```

```
                     - 6*3 
(b) on employment

The e s t a b l i s h m e n t of common rules of the game for all

e c o n o m i c o p e r a t o r s implied in a s a t e l l i t e b r o a d c a s t or a

cable r e t r a n s m i s s i o n will promote the p r o d u c t i o n and

d i s t r i b u t i o n of broadcast p r o g r a m m e s and should t h e r e f o r e

have a p o s i t i v e impact on e m p l o y m e n t .

V I I . What c o n s u l t a t i o n s have there been on this p r o p o s a l ?

A d i s c u s s i o n paper on " B r o a d c a s t i n g and C o p y r i g h t In the

Internal M a r k e t " on copyright q u e s t i o n s c o n c e r n i n g cable and

s a t e l l i t e b r o a d c a s t s was p u b l i s h e d In November 1 9 9 0 . All

Interested c i r c l e s ( a u t h o r s, p e r f o r m e r s, b r o a d c a s t e r s,

p h o n o g r a m p r o d u c e r s, film p r o d u c e r s, c a b l e - o p e r a t o r s ) were

invited to p a r t i c i p a t e In a w r i t t e n c o n s u l t a t i o n p r o c e d u r e

In December 1990 and January 1 9 9 1 . A hearing on the

d i s c u s s i o n paper was held on 5 February 1991 In B r u s s e l s .

P r o f e s s i o n a l s agreed on the n e c e s s i t y for C o m m u n i t y action

in this field.

```

### **-**
## **_G(,_**

##### ISSN 0254-1475

### COM(91) 276 final

# **DOCUMENTS**

### E N 15 08 Catalogue number : CB-CO-91-384-EN-C ISBN 92-77-75616-0

##### Office for Official Publications of the European Communities L 2985 Luxembourg