CELEX: 51992PC0526
Language: en
Date: 1992-12-02
Title: Amended proposal for a COUNCIL DIRECTIVE on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission

28. 1 . 93                                       Official Journal of the European Communities                               No C 25/43
                  Amended proposal for a Council Directive on the coordination of certain rules concerning copy­
                   right and rights related to copyright applicable to satellite broadcasting and cable retransmis­
                                                                        sion (')
                                                                     (93/C 25/04)
                                                            COM(92) 526 final — SYN 358
                     (Submitted by the Commission pursuant to Article 149 (3) of the EEC Treaty on 2 December 1992)
                   0)   OJ No C 255 , 1 . 10. 1991 , p. 3.
                          ORIGINAL PROPOSAL                                                         AMENDED PROPOSAL
  Proposal for a Council Directive on the coordination of                        Proposal for a Council Directive on the coordination of
  certain rules concerning copyright and neighbouring rights                    certain rules concerning copyright and rights related to
  applicable to satellite broadcasting and cable retransmis­                    copyright applicable to satellite broadcasting and cable
                                  sion                                                                 retransmission
  THE COUNCIL OF THE EUROPEAN COMMUNITIES ,                                      Having regard to the Treaty establishing the European
  THE COUNCIL OF THE EUROPEAN COMMUNITIES,                                       Economic Community, and in particular Articles 57 (2)
                                                                                 and 66 thereof,
  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,                             Having regard to the proposal from the Commission,
  In cooperation with the European Parliament,                                   In cooperation with the European Parliament,
  Having regard to the opinion of the Economic and Social                        Having regard to the opinion of the Economic and Social
  Committee ,                                                                    Committee ,
  ( 1 ) Whereas the objectives of the Community as laid                          Unchanged
         down in the Treaty include establishing an ever closer
         union among the peoples of Europe, fostering closer
         relations between the States belonging to the Com­
         munity, and ensuring the economic and social progress
         of the Community countries by common action to eli­
         minate the barriers which divide Europe;
   (2) Whereas to that end the Treaty provides for the estab­                    Unchanged
         lishment of a common market and an area without
         frontiers; whereas this is to include the abolition of
         obstacles to the free movement of services and the
         institution of a system ensuring that competition in the
         common market is not distorted ; whereas to that end
         the Council may adopt directives for the coordination
         of the provisions laid down by law, regulation or
         administrative action in Member States concerning the
         taking up and pursuit of activities as self-employed
         persons ;
I
 ---pagebreak--- No C 25/44                                 Official Journal of the European Communities                                    28. 1 . 93
                       ORIGINAL PROPOSAL                                                   AMENDED PROPOSAL
(3) Whereas broadcasts           transmitted   across   frontiers     Unchanged
     within the Community, in particular by satellite and
     cable, are one of the most important ways of pursuing
     these Community objectives, which are at the same
     time political, economic, social, cultural and legal;
(4) Whereas the Council has already adopted Directive                 Unchanged
     89/552/EEC of 3 October 1989 on the coordination of
     certain provisions laid down by law, regulation or
     administrative action in Member States concerning the
     pursuit of television broadcasting activities 0 ), which
     makes provision for the promotion of the distribution
     and production of European television programmes
     and for advertising and sponsorship, the protection of
     minors and the right of reply;
(5) Whereas, however, the achievement of these objec-                 Unchanged
     tives in respect of cross-border satellite broadcasting
     and the cable retransmission of programmes from
     other Member States is currently still obstructed by a
     series of differences between national rules of copy­
     right and some uncertainties as to the law; whereas
     this means that holders of rights are exposed to the
     threat of seeing their works exploited without pay­
     ment of remuneration or that the individual holders of
     exclusive rights in various Member States block the
     exploitation of their rights; whereas the legal uncer­
     tainty in particular constitutes a direct obstacle to the
     free circulation of programmes within the Community;
(6) Whereas a distinction is currently drawn for copyright            (6) Whereas a distinction is currently drawn for copyright
     purposes between broadcasting by direct satellite and                purposes between communication to the public by
     broadcasting by communications satellite; whereas                    direct satellite and communication to the public by
     since individual reception is possible and nowadays                  communications satellite; whereas since individual
     affordable with both types of satellite , there is no lon­           reception is possible and nowadays affordable with
     ger any justification for this differing legal treatment;            both types of satellite, there is no longer any justifica­
                                                                          tion for this differing legal treatment;
(7) Whereas the free broadcasting of programmes is fur-               Unchanged
     ther impeded by the current legal uncertainty as to
     whether broadcasting by a satellite whose signals can
     be received directly affects the rights in the country of
     transmission only, or in all countries of reception
     together; whereas since communications satellites and
     direct satellites are treated alike for copyright pur­
     poses, this legal uncertainty now affects almost all pro­
     grammes broadcast in the Community by satellite;
 (8) Whereas, furthermore, the legal certainty, which is a            Unchanged
     prerequisite for the free movement of broadcasts
      within the Community, is missing where programmes
      transmitted across frontiers are fed into and retrans­
      mitted through cable networks;
 0)   OJ No. L 298, 17. 10. 1989, p. 23
 ---pagebreak--- 28 . 1 . 93                                Official Journal of the European Communities                                   No C 25/45
                         ORIGINAL PROPOSAL                                                    AMENDED PROPOSAL
(9) Whereas the development of the acquisition of rights              Unchanged
      on a contractual basis is already making a vigorous
      contribution to the creation of the desired European
      audiovisual area; whereas the continuation of such
      contractual agreements should be ensured, and their
      smooth application in practice should be promoted
      wherever possible;
(10) Whereas at present cable operators in particular can­            Unchanged
      not be sure to have actually acquired all the pro­
      gramme rights covered by such an agreement;
(11 ) Whereas, lastly, parties in different Member States are         (11 ) Whereas, lastly, parties in different Member States are
      not all similarly bound by obligations which prevent                   not all similarly bound by obligations which prevent
      them from improperly refusing to negotiate on the                      them from, without valid reason, refusing to negotiate
      acquisition of the rights necessary for cable distribu­                on the acquisition of the rights necessary for cable dis­
      tion or improperly allowing such negotiations to fail;                 tribution or allowing such negotiations to fail;
( 12) Whereas the legal framework for the creation of a sin­          Unchanged
      gle audiovisual area laid down in Directive 89/552/
      EEC must therefore be supplemented with reference
      to copyright;
(13) Whereas, therefore, an end should be put to the differ­          Unchanged
      ences of treatment of the transmission of programmes
      by communications satellite which exists in the Mem­
      ber States, so that the vital distinction throughout the
       Community becomes whether protected works and
       other protected matter are communicated to the
       public; whereas this will also ensure equal treatment
       of the suppliers of cross-border broadcasts, regardless
       of whether they use a direct broadcasting satellite or
       communications satellite;
(14) Whereas the legal uncertainty regarding the rights to            (14) Whereas the legal uncertainty regarding the rights to
       be acquired which impedes cross-border satellite                      be acquired which impedes cross-border satellite
       broadcasting will be overcome by defining the notion                  broadcasting will be overcome by defining the notion
       of communication to the public by satellite at a Com­                 of communication to the public by satellite at a Com­
       munity level; whereas this definition will at the same                munity level; whereas this definition will at the same
       time specify where the act of communication takes                     time specify where the act of communication takes
       place; whereas such a definition is necessary to avoid                place; whereas such a definition is necessary to avoid
       the cumulative application of several national laws to                the cumulative application of several national laws to
       one single act of broadcasting; whereas communica­                    one single act of broadcasting; whereas communica­
       tions to the public occurs only when and in the Mem­                  tion to the public by satellite occurs only when and in
       ber State where a broadcasting organization takes a                   the Member State where the programme carrying sig­
       single decision on the content and the transmission of                nals are introduced under the control and responsabil­
       programme-carrying signals; whereas there is no com­                . ity of the broadcasting organization into an uninter­
       munication if the chain of broadcasting equipment                     rupted chain of communication leading to the satellite
       between the point where such single decision is taken                 and down towards the earth; whereas normal technical
        and the transmission of the relevant signals from the                procedures relating to programme-carrying signals
       satellite is interrupted;                                              may not be considered as interruptions to the chain of
                                                                             broadcasting;
 ---pagebreak--- No C 25/46                               Official Journal of the European Communities                                      28. 1 . 93
                      ORIGINAL PROPOSAL                                                     AMENDED PROPOSAL
                                                                    (15) Whereas the acquisition on a contractual basis of
                                                                          exclusive broadcasting rights should comply with any
                                                                          legislation on copyright and rights related to copyright
                                                                          in the Member State in which 'communication to the
                                                                          public by satellite' occurs;
                                                                    (16) Whereas the principle of contractual freedom, on
                                                                          which this Directive is based, will make it possible to
                                                                          continue limiting the exploitation of these rights, espe­
                                                                          cially as far as certain technical means of transmission
                                                                          or certain language versions are concerned;
(15) Whereas in arriving at the amount of the payment to            (17) Whereas in arriving at the amount of the payment to
     be made for the rights acquired the parties should take              be made for the rights acquired the parties should take
     account of the actual or potential audience throughout               account of all aspects of the broadcast, such as the
     the area in which the broadcast can be received;                     actual audience, the potential audience and the lan­
                                                                          guage version;
(16) Whereas a special transitional provision applicable to         (18) Unchanged
     existing agreements should be provided for so that at
     the latest by 1998 these agreements will be adapted in
     the light of the new legal framework;
(17) Whereas programmes broadcast from non-member                   (19) Whereas communications to the public by satellite
     countries to the territory of the Community will be                  from non-member countries will under certain condi­
     outside the scope of this Directive; whereas they may                tions be deemed to occur within a Member State of
     be treated differently in the law of the Member States               the Community;
     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              (20) Whereas it is necessary to ensure that protection for
     provisions for the protection of holders of copyrights               authors, performers, producers of phonograms and
     and neighbouring rights; whereas it is necessary to                  broadcasting organizations is accorded in all Member
     ensure that protection for specific categories is                    States and that this protection is not subject to a statu­
     accorded in all Member States to the extent provided                 tory licence system; whereas only in this way is it pos­
     for by this Directive and that this protection is not                sible to ensure that any difference in the level of pro­
     subject to a statutory licence system; whereas only in               tection within the common market will not create
     this way is it possible to ensure that any difference in             distortions of competition;
     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;
                                                                    (21 ) Whereas the harmonization of legislations envisaged
                                                                          in this Directive entails the harmonization of the prov­
                                                                          isions ensuring a high level of protection of authors,
                                                                          performers, phonogram producers and broadcasting
                                                                          organizations; whereas this harmonization will no lon­
                                                                          ger allow a broadcasting organization to take advan­
                                                                          tage of differences in levels of protection by relocating
                                                                          activities, to the detriment of audiovisual production;
 ---pagebreak--- 28. 1 . 93                                 Official Journal of the European Communities                                   No C 25/47
                       ORIGINAL PROPOSAL                                                    AMENDED PROPOSAL
(19) Whereas the minimum protection provided for neigh­               (22) Whereas the protection provided for rights related to
      bouring rights is mainly taken from the substance of                 copyright is aligned to that contained in Council
      the Rome International Convention on the Protection                  Directive 92/100/EEC (*) for the purposes of commun­
      of Performers, Producers of Phonograms and Broad­                    ication to the public by satellite; whereas in particular
      casting Organizations which at present must be con­                  this will ensure that performers and phonograms prod­
      sidered to provide the most comprehensive standard                   ucers are guaranteed an appropriate remuneration for
      of protection of neighbouring rights in the interna­                 the communication to the public by satellite of their
      tional field; whereas this standard has been accepted                performances or phonograms;
      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                   (23) Whereas the cable retransmission of programmes
      from other Member States is an act subject to copy­                  from other Member States is an act subject to copy­
      right and neighbouring rights; whereas the cable oper­               right and, as the case may be, rights related to copy­
      ator must therefore obtain the authorization from                    right; whereas the cable operator must therefore
      every holder of rights in each part of the programme                 obtain the authorization from every holder of rights in
      retransmitted; whereas, under this Directive, the                    each part of the programme retransmitted; whereas,
      authorizations should be granted contractually unless                under this Directive, the authorizations should be
      an exception is provided for in the case of existing                 granted contractually unless a temporary exception is
      legal licence schemes;                                               provided for in the case of existing legal licence
                                                                           schemes;
(21 ) Whereas this Directive, through the obligation to have          (24) Unchanged
      recourse to a collecting society, provides for the exclu­
      sive collective exercise of the authorization right to the
      extent that this is required by the special features of
      cable retransmission; whereas this Directive is thereby
      seeking to ensure that the smooth operation of con­
      tractual arrangements is not called into question by
      the intervention of outsiders holding rights in indivi­
      dual parts of the programme; whereas the authoriza­
      tion right as such remains intact and only the exercise
      of this right is regulated to some extent, so that the
      right to authorize a cable retransmission can still be
      assigned; whereas this Directive does not affect the
      exercise of moral rights;
                                                                      (25) Whereas the exemption provided for in Article 10
                                                                           does not limit the choice of holders of rights to trans­
                                                                           fer their rights to a collecting society and thereby have
                                                                           a direct share in the remuneration paid by the cable
                                                                           distributor for cable retransmission;
                                                                      0) OJ No L 346, 27. 11 . 1992, p. 61 .
 ---pagebreak--- No C 25/48                                Official Journal of the European Communities                                      28. 1 . 93
                       ORIGINAL PROPOSAL                                                      AMENDED PROPOSAL
(22) Whereas contractual agreements regarding the author­             (26) Whereas contractual agreements regarding the author­
     ization of cable retransmission shall be promoted by                   ization of cable retransmission shall be promoted by
      additional measures; whereas, to begin with, all the                  additional measures; whereas a party seeking the con­
      rights necessary for a cable retransmission should be                 clusion of a general contract should for its part be
      acquired in the form of a general contract; whereas,                  obliged to submit collective proposals for an agree­
     furthermore, any party shall be entitled, at any                       ment; whereas, furthermore, any party shall be enti­
     moment, to call upon the assistance of impartial                       tled, at any moment, to call upon the assistance of
      mediators whose task it is to assist negotiations and to              impartial mediators whose task it is to assist negotia­
     put forward non-binding proposals; whereas, finally, it                tions and to put forward non-binding proposals; wher­
     is necessary to ensure that the negotiations are not                  eas, finally, it is necessary to ensure that the negotia­
     improperly blocked or that individual holders of rights               tions are not blocked without valid justification or that
     are not improperly prevented from taking part in the                  individual holders are not prevented without valid jus­
     negotiations; whereas none of these measures for the                  tification from taking part in the negotiations; whereas
     promotion of the acquisition of rights calls into ques­               none of these measures for the promotion of the
     tion the contractual nature of the acquisition of cable               acquisition of rights calls into question the contractual
     rights;                                                               nature of the acquisition of cable rights;
(23) Whereas, however, Community rules are not needed                (27) Unchanged
     to deal with all of those matters whose effects, perhaps
     with some commercially insignificant exceptions, are
     felt only inside the borders of a single Member State ;
(24) Whereas this Directive lays down the minimum rules              (28) Unchanged
     needed to establish and guarantee free and uninter­
     rupted cross-border broadcasting by satellite and
     simultaneous, unaltered cable retransmission of pro­
     grammes broadcast from other Member States, on
     what is essentially a contractual basis;
(25) Whereas this Directive does not prejudice further har­          (29) Whereas this Directive does not prejudice further har­
     monization in the field of copyright and neighbouring                 monization in the field of copyright and rights related
     rights and the collective administration of such rights;              to copyright and the collective administration of such
                                                                           rights;
(26) Whereas it is therefore a matter for the Member                 (30) Whereas it is therefore a matter for the Member
     States to supplement the general provisions needed to                 States to supplement the general provisions needed to
     achieve the objectives of this Directive by taking legis­             achieve the objectives of this Directive by taking legis­
     lative and administrative measures in their domestic                  lative and administrative measurs in their domestic
     law, provided these do not run counter to the objec­                  law, provided these do not run counter to the objec­
     tives of this Directive and are compatible with Com­                  tives of this Directive and are compatible with Com­
     munity law; whereas, in particular, Member States are                 munity law;
     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 applicabil­          (31 ) Unchanged
     ity of the competition rules in Article 85 and 86 of the
     Treaty ,
 ---pagebreak--- 28.1.93                                  Official Journal of the European Communities                                 No C 25/49
                     ORIGINAL PROPOSAL                                                    AMENDED PROPOSAL
HAS ADOPTED THIS DIRECTIVE :
                         CHAPTER I                                                            CHAPTER I
                        DEFINITIONS                                                    GENERAL PROVISIONS
                          Article 1                                                             Article 1
For the purpose of this Directive :                                 For the purpose of this Directive :
(a) 'satellite ' means any satellite operating either on fre­       1.  'satellite' means any satellite operating on frequency
    quencies which under telecommunications law allow                   bands which, under telecommunications law, are
    reception by the public (a broadcasting satellite) or on            reserved for the broadcast of signals for reception by
    frequencies which are reserved for closed, point-to­                the public or which are reserved for closed, point-to­
    point communication (a communications satellite). In                point communication. In the latter case , however, the
    the latter case , however, the circumstances in which               circumstances in which individual reception of the sig­
    individual reception of the signals takes place must be             nals takes place must be comparable to those which
    comparable to those which apply in the case of broad­               apply in the first case ;
    casting satellites;
(b) 'communication to the public by satellite' inside the           2.  'communication to the public by satellite ' means the
    Community means the act of taking a single decision                 act of introducing, under the control and responsibility
    on the content and the transmission by satellite of pro­            of the broadcasting organization, the programme-car­
    gramme-carrying signals by the broadcaster. This act                rying signals intended for reception by the public into
    of communication to the public by satellite occurs in               an uninterrupted chain of communication leading to
    the Member State where the broadcaster takes the sin­               the satellite and down towards the earth.
    gle decision on the content and the transmission by                 (a) The act of communication to the public by satel­
    satellite of programme-carrying signals. If the pro­                     lite occurs solely in the Member State where
    gramme-carrying signals are encrypted, communica­                        under the control and responsibility of the broad­
    tion to the public by satellite means the act of taking a                casting organization the programme-carrying sig­
    single decision on the content and the transmission of                   nals are introduced into an uninterrupted chain of
    the programme carrying signals under the condition                       communication leading to the satellite and down
    that decoders are provided to the public by the broad­                   towards the earth .
    caster himself or with his approval. There is no com­
                                                                        (b) If the programme-carrying signals are encrypted,
    munication to the public by satellite, however, if there
                                                                             then there is communication to the public by
    is any interruption of the chain of broadcasting equip­                  satellite under the condition that means for the
    ment between the point where a single decision is
                                                                             decrypting of the broadcast are provided to the
    taken and the transmission of the relevant signals from
    the satellite;
                                                                             public by the broadcasting organization or with
                                                                             his consent.
                                                                        (c) Where an act of communication to the public by
                                                                             satellite occurs in a non-Community State in
                                                                             which the protection provided under Chapter II
                                                                             of this Directive does not exist , and
                                                                             — if the progamme-carrying signals are trans­
                                                                                   mitted to the satellite from an uplink station
                                                                                   situated in a Member State , the act of com­
                                                                                   munication to the public shall be deemed to
                                                                                   have occured in that Member State and the
                                                                                   rights provided for under Chapter II shall be
                                                                                   exercisable against the person operating the
                                                                                   uplink station, or
                                                                             — if there is no use of an up-link station situated
                                                                                   in a Member State but a broadcasting organ­
                                                                                   ization established in a Member State has
                                                                                   commissioned the act of communication to
                                                                                   the public, that act shall be deemed to have
                                                                                   occurred in that Member State and the rights
                                                                                   provided for under Chapter II shall be exer­
                                                                                   cisable against the broadcasting organization;
 ---pagebreak--- No C 25/50    9
                                          Official Journal of the European Communities                                       28. 1 . 93
                      ORIGINAL PROPOSAL                                                     AMENDED PROPOSAL
(c) 'cable retransmission' means the simultaneous, unal­             3.         'cable retransmission' means the simultaneous,
     tered and unabridged retransmission of a broadcast                         unaltered and unabridged retransmission by a
     from another Member State by a cable or microwave                         cable or microwave system for reception by the
     system for reception by the public;                                       public of an initial transmission from another
                                                                               Member State, by wire or over the air, including
                                                                               that by satellite, of television or radio pro­
                                                                               grammes intended for reception by the public;
(d) 'broadcasting' means the initial transmission, by wire           Deleted
     or over the air, including that by satellite, of television
     or radio programmes intended for reception by the
     public;
(e) 'collecting society' means an organization whose mem­            4.   'collecting society' means any organization which
     bers have appointed it to manage copyright or related                manages or administers copyright or rights related to
     rights.                                                              copyright;
                                                                     5.   for the purposes of this Directive the principal director
                                                                          of a cinematographic or audiovisual work shall be con­
                                                                          sidered as its author or one of its authors . Member
                                                                          States may provide for others to be considered as its
                                                                          co-authors .
                         CHAPTER II                                                            CHAPTER II
   BROADCASTING OF PROGRAMMES BY SATELLITE                              BROADCASTING OF PROGRAMMES BY SATELLITE
                           Article 2                                                              Article 2
                      Broadcasting right                                                     Broadcasting right
Member States shall provide a right for the auther to                Member States shall provide an exclusive right for the
authorize or to prohibit the communication to the public             author to authorize or prohibit the communication to the
by satellite of copyright works, subject to the provisions set       public by satellite of copyright works, subject to the provi­
out in this Chapter.                                                 sions set out in this Chapter.
                           A rticle 3                                                             Article 3
              Acquisition of broadcasting rights                                    Acquisition of broadcasting rights
1 . Member States shall ensure that the right refered to in          1.   Member States shall ensure that the authorization
Article 2 may be acquired only by agreement.                         referred to in Article 2 may be acquired only by agree­
                                                                     ment. The remuneration shall be stated in the agreement
                                                                     and shall take account of all aspects of the broadcast.
2. Where, on 31 July 1991 , it is provided by a Member               2. A Member State may provide that a collective agree­
State that an agreement between a collecting society and a           ment between a collecting society and a broadcasting
broadcasting organization may be extended to include                 organization concerning a given category of works may be
holders of rights not represented by the collecting society,         extended to rightholders of the same category who are not
this shall continue to be possible until 31 December 1997.           represented by the collecting society provided that:
                                                                     — the communication to the public by satellite similcasts
                                                                          a terrestrial broadcast by the same broadcasting
                                                                          organization, and
                                                                     — the unrepresented rightholder shall, at any time, have
                                                                           the possibility of excluding the effect of the extension
                                                                           of the collective agreement to his rights and of exercis­
                                                                           ing his rights either individually or collectively.
3. Paragraph 2 shall not apply to cinematographic works,             Unchanged
including works created by a process analogous to cinema­
tography.
 ---pagebreak--- 28. 1 . 93                                Official Journal of the European Communities                                  No C 25/51
                      ORIGINAL PROPOSAL                                                    AMENDED PROPOSAL
                            Article 4                                                             Article 4
                          Performers                                                   Rights related to copyright
Member States shall provide that performers shall enjoy              1 . For the purposes of communication to public by satel­
the right:                                                           lite, the Member States shall provide that the rights of per­
— to authorize or prohibit the communication to the
                                                                     formers, phonogram producers and broadcasting organiza­
                                                                     tions are protected in accordance with the provisions of
     public by satellite of their performance except where           Articles 6, 7, 8 and 10 of Directive 92/100/EEC.
     the performance used in the broadcasting is itself
     already a broadcast performance or is made from a               2. For the purposes of paragraph 1 , 'broadcasting by
     fixation ,                                                      wireless means ' in Directive 90/100/EEC shall be under­
                                                                     stood as including communication to the public by satellite
— to authorize or prohibit the fixation of their unfixed
                                                                     as set out in Article 1 , paragraph 2.
     performances,
                                                                     3. The provisions laid down in Article 3, paragraph 1 , of
— to authorize or prohibit the reproduction of a fixation
                                                                     this Directive shall aply to the acquisition of rights granted
     of their performance.
                                                                     to performers and broadcasting organizations pursuant to
                                                                     Article 8 of Directive 92/100/EEC, without prejudice to
                                                                     the provisions of Article 10 of Directive 92/100/EEC.
                            A rticle 5                               Deleted
           Remuneration for the use of phonograms
Member States shall provide that if a phonogram pub­
lished for commercial purposes, or a reproduction of such
phonogram, is used directly for a communication to the
public by satellite, a single equitable remuneration shall be
paid to the performers, or to the producers of the phono­
grams, or to both.
                            Article 6                                Deleted
                  Broadcasting organizations
Member States shall provide that broadcasting organiza­
tions shall enjoy the right to authorize or prohibit:
— the simultaneous retransmission of their broadcasts by
     satellite ,
— the fixation of their broadcasts,
— the reproduction of fixations of their broadcasts.
                            Article 7                                Deleted
                     Limitations on rights
1 . Member States may provide for limitations to the pro­
tection guaranteed by Articles 4, 5 and 6 only as regards:
— private use,
— use of short excerpts in connection with the reporting
     of current events,
— ephemeral fixation by a broadcasting organization by
     means of its own facilities and for its own broadcasts,
— use solely for purposes of teaching or scientific
     research .
 ---pagebreak--- No C 25/52                               Official Journal of the European Communities                                   28. 1 . 93
                     ORIGINAL PROPOSAL                                                   AMENDED PROPOSAL
2. Notwithstanding paragraph 1 of this Article , any Mem­
ber State may provide for the same kinds of limitation with
regard to the protection of performers, producers of phon­
ograms and broadcasting organizations as it provides for in
its legislation concerning the protection of copyright in lit­
erary and artistic works. However, compulsory licences
may be provided for only to the extent to which they are
compatible with the Rome International Convention for
the Protection of Performers, Producers of Phonograms
and Broadcasting Organizations.
                                                                                               A rticle 5
                                                                            Relation between copyright and related rights
                                                                    Protection of copyright-related rights under this Directive
                                                                    shall leave intact and shall in no way affect the protection
                                                                    of copyright.
                           Article 8                                                          A rticle 6
                     Minimum protection                                                 Minimum protection
1 . Member States may provide for more far-reachingpro­             1 . Member States may provide for more far-reaching
tection for authors, and holders of neighbouring rights             protection for holders of rights related to copyright than
under their jurisdiction than that required by Articles 2 to        that required by Article 8 of Directive 92/100/EEC.
6.
2. In applying paragraph 1 Member States shall observe              2. In applying paragraph 1 Member States shall observe
the definitions contained in points (a) and (b) of Article 1 .      the definitions contained in paragraphs 1 and 2 of Article
                                                                    1.
                            Article 9                                                          A rticle 7
                    Transitional provision                                              Transitional provision
Agreements concerning the exploitation of protected                 Agreements concerning the exploitation of protected
works and services, in force on 1 January 1995 , shall not be       works and subject matter, in force on 1 January 1995 , shall
subject to Articles 2 to 8 until 31 December 1997 if they           be subject to the provisions of Articles 2, 3 and 4, para­
expire after that date.                                             graph 2, from 1 January 1998 on if they expire after that
                                                                    date .
                         CHAPTER III                                                        CHAPTER III
                  CABLE RETRANSMISSION                                               CABLE RETRANSMISSION
                           Article 10                                                          Article 8
                   Cable retransmission right                                         Cable retransmission right
1 . Member States shall ensure that when programmes                 1 . Member States shall ensure that when programmes
from other Member States are retransmitted by cable in              from other Member States are retransmitted by cable in
their territory the applicable copyright and neighbouring           their territory the applicable copyright and rights related
rights are observed, and that such retransmission takes             to copyright are observed, and that such retransmission
place on the basis of agreements between copyright own­             takes place on the basis of agreements between copyright
ers, holders of neighbouring rights and cable operators.            owners, holders of rights related to copyright and cable
                                                                    operators .
 ---pagebreak--- 28. 1 . 93                               Official Journal of the European Communities                                  No C 25/53
                     ORIGINAL PROPOSAL                                                    AMENDED PROPOSAL
2. Notwithstanding paragraph 1 , Member States may                  2.   Unchanged
retain until 31 December 1997 such statutory licence sys­
tems that are in operation or expressly provided for by
national law on 31 July 1991 .
                           A rticle 1 1                                                        Article 9
           Exercise of the cable retransmission right                         Exercise of the cable retransmission right
1 . Member States shall ensure that the right of copyright          1 . Member States shall ensure that the right of copyright
owners and holders of neighbouring rights to authorize or           owners and holders of rights related to copyright to grant
prohibit the cable retransmission of a broadcast may be             or refuse authorization to a cable operator for the cable
exercised only through a collecting society.                        retransmission of a broadcast may be exercised only
                                                                    through a collecting society representing the professional
                                                                    categories concerned.
2. A holder of a right who has not transferred the man­             2. Where a rightholder has not transferred the manage­
agement of his rights to a collecting society shall have a          ment of his rights to a collecting society, the collecting
claim to compensation on the collecting society which               society which manages rights of the same category shall be
manager rights of the same category. His claim shall be             deemed to be mandated to manage his rights. Where more
confined to the sum which he would have received if he              than one collecting society manages rights of that category,
had mandated the collecting society to exercise his rights.         the rightholder shall be free to choose which of those col­
                                                                    lecting societies is deemed to manage his rights. A right­
                                                                    holder referred to in this paragraph shall enjoy the same
                                                                    rights and obligations resulting from the agreement
                                                                    between the cable operator and the collecting society
                                                                    which is deemed to be mandated to manage his rights as
                                                                    the members of that collecting society and he shall be able
                                                                    to claim those rights, within a period of two years.
                           Article 12                                                         Article 10
 Exercise of the cable retransmission right by broadcasting          Exercise of the cable retransmission right by broadcasting
                         organizations                                                      organizations
Article 11 shall not apply to the rights exercised by a             1.   Member States shall ensure that Article 9 does not
broadcasting organization in respect of its own transmis­           apply to the rights exercised by a broadcasting organ­
sions .                                                             ization in respect of its own transmissions, irrespective of
                                                                    whether the rights concerned are its own or have been
                                                                    transferred to it by other copyright owners and/or holders
                                                                    of rights related to copyright.
                                                                    2. The derogation provided for in paragraph 1 shall be
                                                                    without prejudice to the option for copyright owners and
                                                                    holders of rights related to copyright to claim, through
                                                                    their collecting societies, direct participation in the remu­
                                                                    neration paid by cable operators for cable retransmission.
 ---pagebreak--- No C 25/54                               Official Journal of the European Communities                                     28. 1 . 93
                     ORIGINAL PROPOSAL                                                    AMENDED PROPOSAL
                          Article 13                                Deleted
                      General contracts
Member States shall ensure that a party seeking the con
elusion of a general contract is for its part obliged to sub
mit collective proposals for an ageement.
                          Article 14                                                          Article 11
                          Mediators                                                           Mediators
1.   Where no agreement is concluded regarding authoriza­           1.   Unchanged
tion of the cable retransmission of a broadcast, Member
States shall ensure that either party may call upon the
assistance of one or several mediators referred to in para­
graphs 2 and 3 .
2. The mediators shall have the task of providing assist­           2.   Unchanged
ance with negotiation. They may also submit non-binding
recommendations to the parties.
                                                                    3. If neither of the parties expresses and motivates its
                                                                    opposition to this recommandation within a period of
                                                                    three months from the notification of the recommendation
                                                                    to the parties it is presumed that all the parties accept the
                                                                    recommendation .
3.   Member States shall ensure that the mediators are so           4. The mediators shall be so selected that their neutrality
selected that their impartiality is beyond doubt.                   and impartiality are beyond doubt.
                          Article 15                                                          Article 12
       Prevention of the abuse of negotiating positions                    Prevention of the abuse of negotiating positions
Member States shall ensure that the parties do not impro­           Member States shall ensure, by means of civil or adminis­
perly prevent negotiation regarding authorization for cable         trative law, as appropriate, that the parties do not without
retransmission .                                                    valid justification prevent negotiation regarding authoriza­
                                                                    tion for cable retransmission .
                        CHAPTER IV                                                           CHAPTER IV
                  GENERAL PROVISIONS                                                   GENERAL PROVISIONS
                          Article 16                                Deleted
                      Competition rules
This Directive shall be without prejudice to the Com­
munity competition rules.
                          Article 17                                                          Article 13
             Collective administration of rights                                  Collective administration of rights
The regulation of the activities of collecting societies shall      The provisions of this Directive shall be without prejudice
be a matter for the Member States.                                  to the regulation of the activities of collecting societies by
                                                                    the Member States .
 ---pagebreak--- 28. 1 . 93                             Official Journal of the European Communities                  No C 25/55
                     ORIGINAL PROPOSAL                                             AMENDED PROPOSAL
                          Article 18                                                   Article 1 4
                      Final provisions                                              Final provisions
1 . Member States shall bring into force the laws, regula-        1. Unchanged
tions and administrative provisions necessary to comply
with this Directive by 1 January 1995. They shall immedia­
tely inform the Commission thereof.
When Member States adopt these provisions , these shall
contain a reference to this Directive or shall be accompa­
nied by such reference at the time of their official publica­
tion. The procedure for such reference shall be adopted by
Member States .
2. Member States shall communicate to the Commission              2. Unchanged
the provisions of national law which they adopt in the field
covered by this Directive .
                          Article 19                                                   Article 15
This Directive is addressed to the Member States                  Unchanged