CELEX: 51988PC0154
Language: en
Date: 1988-03-21
Title: Amended Proposal for a COUNCIL DIRECTIVE on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of broadcasting activities (submitted by the Commission to the Council pursuant to Article 149(3) of the EEC Treaty)

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DOCUMENTS "COM"
COM (88) 154
Vol. 1988/0046
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                       COM(88 ) 154 final - SYN 52
                                                       Brussels , 21 March 1988
                                   Amended Proposai for a
                                              L DIRECTIVE
 on the coordination of certain provisions laid down by law, regulation
    or administrative
    or administrative action
                          action fin    fin Member
                                            Member ^states  concerning the
                                                    States concerning  the pursuit
                                                                            pursuit
                I
                   .     v   .•
                                of
                                of  broadcasting
                                    broadcasting
                                      }      A
                                                    activities
                                                    Activities
                                                  C_ I
                \    <    t:                     C ?/
        ( submitted by the Commission to the Council pursuant to
                       Article 149(3 ) of the EEC Treaty )
 ---pagebreak---                              EXPLANATORY MEMORANDUM
On 30 April 1986 , the Commission submitted to the Council its proposal for a
                                                     1
Council Directive concerning broadcasting activities .
The Economic and Social Committee delivered an Opinion on the proposal on 1
July 19872 .
The European Parliament , consulted under the co-operation procedure , discussed
the proposal in detail in its Committees and on 19 January 1988 , debated the
report drawn up on behalf of the Committee on Legal Affairs and Citizens'
Rights by Mr. Barzanti , voting overwhelmingly in support of the proposed
Directive as amended by Parliament on 20 January 1988^.
The amended proposal for a Directive is intended primarily to take into
account those Opinions . Moreover , several minor amendments are introduced in
the light of discussions and deliberations which have taken place since the
original proposal was first made .                           ,
The amended proposal contains three major modifications of the original
proposal . First , the concept of a Community work , relevant to the chapter
concerned wi~th promotion of distribution and production of television
programmes , has been considerably enlarged, in particular in order to allow
works produced in European countries which are not Member States of the
European Community to be taken into account . Such a possibility would be
based on agreements allowing for reciprocal treatment .
Second,    the amended proposal considerably strengthens the position of
copyright holders . In order to ensure free circulation of broadcasts, it no
longer requires the establishment of a legal licence in the context of
1 0J C 179 of 17.7.1986, p.4
20J C 232 of 31.8.1987, p.29.
^Minutes of proceedings of the sitting of Wednesday, 20 January 1988, PE
  120.0&3, p.11 .                                                     г
 ---pagebreak---                                           II
 copyright but proposes     the setting up of bodies representing the interests
 involved which will be called upon to arbitrate in cases            of remaining
 conflicts should all efforts to come to a contractual arrangement fail .
 Third , the amended proposal contains a new chapter introducing the possibility
of a right of reply for natural or legal persons whose legitimate interests
have been     damaged  by  the  insertion    of incorrect facts  in   a broadcast
originating in the Community .       Several other amendments have equally been
introduced to the proposal following the Opinion of the European Parliament .
In particular , the formal distinction between internal and cross-frontier
broadcasts has been abolished . However , in the context of advertising the
original approach has been maintained of allowing Member States to be more
flexible in setting the levels for advertising in respect of the broadcasters
under their jurisdiction . At the same time the Directive continues to provide
a threshold for Member States to prohibit excessive amounts of advertising
contained in programmes originating in other Member States .      The proposal no
longer requires the grouping of advertisements in blocks .     A two tier system ,
operating mainly on the basis of a time threshold , has been introduced in the
Chapter concerned with youth protection and definitions on sponsoring and
independent producers have been added in the Chapter containing the final
provisions .
The Commission has taken into account the requirements of Article 8C of the
Treaty in the preparation of this proposal and has concluded that no special
provision seems to be justified at this stage .
                                                                          Λ
 ---pagebreak---                                           III
 COMMENTARY ON THE RECITALS
 The recitals have been adapted in line with most amendments , adopted by
 Parliament .  Minor drafting changes have been introduced .
 Thirty ninth recital .
 The Comission maintains the original wording of its proposal ,      in a slightly
 modified version , in order to maintain coherence of the text .
 COMMENTARY ON THE ARTICLES
Article 1
 In conformity with the Opinion of the European Parliament , Article 1(1 ) no
 longer contains any reference to internal broadcasts .     However , in order to
underline the . major principle of the exclusive responsibility of the
transmitting state for ensuring that broadcasts originating from broadcasters
under their jurisdiction comply with the provisions of the directive the
proposal now refers to broadcasters under the jurisdiction of a Member State .
In doing so , the proposal takes up the concept proposed by Parliament in its
amended version of Article 6 .
Article 2
The amended proposal follows the amendment' proposed by the European
Parliament , with some minor editorial changes , emphasising the final quota to
be reached at the end of a transitional period and allowing for greater
flexibility in attaining such a quota in the three year transitional phase .
First , the reference to internal broadcasts has been omitted since Article
1(1 ) now already clearly refers to the responsibility of each Member State for
broadcasters under its jurisdiction . Second , it has proved necessary to make
specific reference to cable operators retransmitting television broadcasts as
the definition of       'broadcasting' in Article 21 no longer refers to
retransmissions .         The change of this definition allows considerable
lightening of the conceptual framework of the directive and no longer
                                                                          V
 ---pagebreak---                                           IV
  necessitates references to concepts such as initial transmissions ( Article 2 ),
  primary broadcasts or original programmes ( Article 3 as amended by Parliament )
  without changing the regulatory content of the proposed Directive .       Third , in
 order to take into account Parliament 's amendments relating to the definition
 of a 'Community work' ,   the amended proposal now regroups all elements of such
  a definition in a new version of Article 4 .    Fourth , in line with the Opinion
 of Parliament the amended proposal extends the              definition of 'first
 broadcasts' to co-productions with non-Member States .       Whereas the Opinion of
 Parliament limited itself to co-productions with EFTA and Council of Europe
 States ,   the  amended  proposal  proposes   to  extend   this   principle  to   all
 co-productions involving at least one Community co-producer .            This would
 stimulate co-productions without affecting the main provision requiring a 60%
 European content of programmes .
 Article 3
 The amended proposal follows the Opinion of Parliament .        For the reasons set
 out above     reference to 'internal' broadcasters ,      'initial transmissions' .
   primary broadcasts' and 'original programmes' is no longer necessary .          All
 elements of the definition of 'Community work' are contained in Article 4 .
 Article 4
This Article has been reworded in order to take into account all the essential
elements of the definition of a Community work as amended by the European
Parliament in Article 2 , 3 and 4 .
The first major addition to the proposal of the Commission is that a Community
work is defined not only by reference to producers but also to authors and
workers residing in one or more Member States .     This condition relates to all
types of Community works as defined .
Second , supervision of the production by a Community producer is considered to
be a sufficient criterion to establish the Community nature of a work , thus
acknowledging the preponderance of creative Community input over the origin of
the capital .
Third , the level of the Community contribution to the total production cost is
reduced from 70% to 51% for similar reasons .
                                                                             O
 ---pagebreak---                                    V
 Fourth, where the Community contribution to the production costs of a work
 Lies below the 51% threshold, provision is made for this work to be counted
 towards the quota on a pro rata basis equal to the level of Community
 investment in the production of such a work . Fifth, the definition of a
Community work has been enlarged in order to encompass works produced in,
or co-produced with producers from EFTA or Council of Europe States not
Members of the Community . Such a possibility would be based on agreements
ensuring that Community works would also receive preferential treatment in
these countries . It equally emphasizes the creative input by authors and
workers .
 Article 4a
 The exception in favour of local television broadcasters has been proposed by
 the European Parliament . Paragraph 2 enables Member States who wish to do so
 to be more   stringent or specific' as regards all or some of their own
broadcasters  by introducing the same type of provision already existing in the
 chapters on  broadcast advertising and sponsoring and on the protection of
 children and young persons .
Article 4b
This Article invites the Commission to enter into the necessary negotiations in
order to make the provisions on the mutual recognition of Community works and
works from States of EFTA or Council of Europe operational .
Chapter III :  Broadcast advertising and sponsoring
In accordance with the wishes of Parliament ,   this chapter no longer contains
two distinct sections , the one relating to internal broadcasts and the other
to cross-frontier television broadcasts .
Article 5
The new proposal follows the line of the amendment proposed by Parliament . It
makes the regulation of advertising subject to the general criteria mentioned
and adds to these the objective of safeguarding the pluralism of information .
                                                                      €
 ---pagebreak---                                             VI
  Artide 6
 This amendment takes up the wish of the European Parliament to delete any
  reference to prior checking of broadcasts but maintains the objective that
 advertising , not in conformity with the rules of this chapter , should be
 prevented from transmission .     Any reference to a broadcaster being under the
 jurisdiction of a Member State or to internal broadcasts is no longer
 necessary in view of the rephrasing of Article 1(1 ).
 Article 7
 This amendment takes up the amendment of the European           Parliament ,    deleting
 any reference to 'block advertising' in the text of the proposal .             The means
 by which advertising has to be separated from other programmes are identified .
 Article 8
 This Article has been changed       in line with the Opinion of            the European
 Parliament , deleting any reference , to 'good taste' and adding 'discrimination
 on grounds of nationality' and a new requirement relating to the 'respect for
 the dignity of women' .     The amended proposal has further been enlarged by
 adding 'the protection of the environment' to line ( e ).
 Article 10
The    amended   proposal  takes  up    the    drafting   proposed   by    the   European
Parliament .
Article 12
The   amended    proposal follows    the   Opinion    of   the  European     Parliament .
Paragraph 1 contains the clarification that the sponsoring of programmes is
allowed .     Paragraph 2 is reinforced by excluding any de jure or de facto
influence of undertakings on the content of sponsored programmes .              Lit . d )
prohibits    advertising  where  there    is    any  " direct " link    in   content   or
presentation with the programme .
 ---pagebreak---                                       - VII
 Article 13
 The amended proposal follows the Opinion of the European Parliament but refers
 to the concept used in Article 1(1 ) rather than to 'internal' broadcasts .
 Moreover , an exemption contained in paragraph 3 is granted to local
 broadcasters in order to be able to compensate for the limited target audience
 by more flexible rules as to volume and presentation of advertising .
 Article 14
 The amended proposal follows the Opinion of Parliament, in deleting the
distinction between internal and cross-frontier broadcasts whilst maintaining
the possibility for Member States to oppose the reception and retransmission
of television broadcasts exceeding a proportion of advertising equal - to 15%
per day and 18% in any given hour in line with the amendment proposed by
Parliament to Article 5 .
Article 15
The amended proposal takes up the amendments proposed by the European
Parliament , introducing a flexible time limit for certain programmes which do
not consist of pornography, gratuitous violence or incitement to racial hatred
but which nevertheless might harm the physical , mental or moral development of
children and young persons .
Paragraph 2 has been adapted to correspond with the amended proposal of Art .
6.
Article 16
The amended proposal takes into account the deletion of the concept of
internal broadcasts .
Articles 17 to 19
The amended proposal adopts the line proposed by the European Parliament and
the Economic and Social Committee . First , the priority of contractual
agreements on the cross-frontier retransmission by cable of broadcasts is
underlined by the introduction of a new obliglation on Member States to
                                                                          6
 ---pagebreak---                                          VIII
 encourage negotiations between the interested parties to that effect . Second ,
 failing these efforts and insofar as free circulation of broadcasts in the
 Community is impeded , the Member States shall provide for bodies representing
 the interests involved to be called upon to arbitrate on the level of
 remuneration in those few cases where conflict remains .
 Article 20a
 The amended proposal introduces , in conformity with the Opinions of the
 European Parliament and the Economic and Social Committee , a new chapter
 consisting of a single Article on the right of reply .    The amended proposal
 follows the wording proposed by Parliament closely but makes minor changes
mainly in order to simplify the text and at the same time to accomodate
different systems of reply already exisitng in some Member States .
Article 21
The amended proposal takes up the amendments proposed by the European
Parliament ,   in particular the deletion of internal and cross-frontier
broadcasts and the addition of two new definitions relating to sponsoring and
independent producers .    As already explained under Article 1 , the amended
proposal deletes the reference to retransmissions in the definition of
'broadcasting' in order to make it clear that the obligation of Member States
to ensure the respect of the Directive by broadcasters under their
jurisdiction does not extend to cable operators retransmitting broadcasts from
other Member States .
Article 23
The amended proposal adopts the time span proposed by the European Parliament .
                                                                          ?
 ---pagebreak---                                       - 1 -
                  AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE
        on the coordination of certain provisions Laid down by Law,
      reguLation or administrative action in Member States concerning
                   the pursuit of broadcasting activities
OriginaL ProposaL                              Amended Proposal
The Counci L of the European Communities ,
Having regard to the Treaty estabLishing       Unchanged.
the European Economic Community, and in
particuLar ArticLes 57(2 ) and 66 thereof,
Having regard to the proposal from the         Having regard to the proposal from the
Commission ,                                   Commission, ( 1 )
Having regard to the opinion of the            In cooperation with the
European Parli ament ,                         European Parliament , ( 2 )
Having regard to the opinion of the            Having regard to the opinion of the
Economic and Social Committee ,                Economic and Social Committee , ( 3 )
Whereas the objectives of the                  Unchanged .
Community as Laid down in the Treaty
include an ever closer union among
the peoples of Europe and closer
relations between the States belonging
to the Community, ensuring the economic
and social progress of its countries
                                             (
by common action to eliminate the
barriers which divide Europe, the
constant improvement of the living
conditions of its peoples as well as
the preservation and strengthening of
peace and liberty;                           (1 ) OJ C 179 of 17.7 . 06, p.
                                              ( 2 ) Minutes of the proceedings of the
                                                    sitting of Wednesday 20.1.1988,
                                                    PE 120.083, p. 11 .
                                              (3 ) OJC 232 of 31.8.1987, p. 29 ,
                                                                            "?o
 ---pagebreak--- Original Proposai                       Amended Proposal
Whereas for these purposes , the Treaty Unchanged .
provides for establishing a common
market , including the abolition , as
between Member States , of obstacles to
freedom of movement for services , the
institution of a system ensuring that
competition in the common market is
not distorted , and the approximation
of the provisions of Member States to
the extent required for the proper
functioning of the common market ;
Whereas broadcasts transmitted across   Unchanged ,
frontiers within the Community , in
particular by satellite and cable ,
are one of the principal means to
promote the above objectives of the
Community which are at the same time
of a political , economic , social ,
cultural and legal nature ;
Whereas the attainment of the above     Unchanged .
objectives of the Community calls ,
almost 30 years after the establishment
of the Community , for transition from
the stage of the opening up of national
markets for the production and
distribution of broadcasts to the stage
of one internal market for broadcasts ;
 ---pagebreak---                                      - 3 -
Original Proposai                          Amended Proposal
Whereas the achievement of this common     Unchanged .
market presupposes , in addition to the
elimination of obstacles to the free
movement of broadcasts , the adaptation
and promotion of the factors of
production and distribution in the
Community of broadcast programmes
in order to ensure that the enlarged
market for broadcast programmes will
operate similarly to a domestic market ;
Whereas for this purpose or , in the       Unchanged .
words of the Treaty, in order to make
it easier for persons to take up and
pursue activities as self-employed
persons, including the activities of
producing or distributing broadcast
programmes , the Treaty provides for
the issuing of directives for the
coordination of the provisions
concerning the taking up and pursuit
of such activities ;
                                           Whereas an essential condition for attaining
                                           the objectives of this Directive is to
                                           ensure the efficiency of the public
                                           broadcasting system by establishing
                                           conditions of fair competition in
                                           the common market;
                                                                                'l <L
 ---pagebreak---                                          - 4 -
 Original Proposai                             Amended Proposai
 Whereas the broadcasting of commercial        Delete .
 advertisements is a service within the
 meaning of the Treaty because it is
 provided for remuneration ; whereas the
 liberalization of this service helps
 to promote trade in goods and services
 and has therefore to be given priority
 under the Treaty ;
 Whereas the broadcasting of other             Whereas the broadcasting of messages ,
messages is also a service within the          including advertising , is a service
meaning of the Treaty because this             within the meaning of the Treaty
activity is normally provided for              because this activity is normally
 remuneration and is , by its nature , not     provided for remuneration and is ,
governed by the provisions of the Treaty       by its nature , not governed by the
relating to freedom of movement for goods      provisions of the Treaty relating to
such as other media like videocassettes ,      freedom of movement for goods such as
videodiscs , records , newspapers ,            other media like videocassettes ,
magazines , periodicals and books ;            videodiscs , records , newspapers ,
                                               magazines , periodicals and books ;
Whereas the granting by a foreign              Unchanged .
broadcasting organization or other
right holder to a domestic cable
operator of the authorization required
by copyright or other laws to relay
the foreign programmes also constitutes
a service within the meaning of the
Treaty because it is normally
provided for remuneration;
 ---pagebreak---                                         - 5 -
 Original Proposai                             Amended Proposal
Whereas the Treaty does not exclude           Unchanged .
 from its scope any such service, by
 reason of its particular nature,
such as its cultural aspects or
 implications , but provides for the
 liberalization and free movement
of all services normally provided
for remuneration which are therefore
and without prejudice as to their
cultural or other contents considered
by the Treaty to be economic activites ,
a harmonious development of which is
one of the objectives of the Community ;
Whereas the Treaty guarantees freedom         Unchanged .
to provide services within the Community,
including broadcasts , without restrictions
in respect of nationals of Member States
who are established in a State of the
Community other than that of the person
for whom the services are intended;
Whereas this individual right to provide      Unchanged .
broadcasts to recipients in other Member
States , including cable operators , free
of restrictions is a specific Community
law manifestation of the more general
European human right to freedom of
expression which includes freedom to
receive and impart information and
ideas without interference by public
authority and regardless of frontiers ,
 ---pagebreak--- Original Proposai                          Amended Proposai
 enshrined in Article 10(1 ) of the
 Convention for the Protection of
Human Rights and Fundamental
 Freedoms , signed in Rome on
4 November 1950 and ratified by all
Member States ;
Whereas , for this reason , freedom to     Unchanged .
provide broadcasts under Community
 law must be implemented , when
applying the Treaty and issuing
directives for the coordination of
the provisions concerning the pursuit
of the activities of broadcasters and
cable operators , in the light of and
at least to the extent guaranteed by
the corresponding freedoms provided
for in Article 10(1 ) of the European
Convention on Human Rights ;
Whereas the same parallelism must be       Unchanged .
respected when applying the Treaty and
issuing directives for the coordination
of provisions limiting the exercise ,
on the one hand , of freedom to provide
broadcasts which are authorized under
Article 56(1 ) of the Treaty or justified
on grounds of general interest and , on
the other hand , of the freedom to receive
and impart information and ideas through
broadcasts which are authorized under
Article 10(2 ) of the European Convention
on Human Rights ;
 ---pagebreak---                                        - 7 -
Original Proposai                            Amended Proposal
Whereas the laws , regulations and           Unchanged .
administrative measures in Member
States concerning the pursuit of
activities as broadcasters and cable
operators contain disparities in
respect of their applicability and
content , on producing and distributing
programmes , on advertising and
sponsoring , on protecting children
and young persons , and on copyright ,
which may impede the free movement
of broadcasts within the Community
and may distort competition’ within
the common market ;
 Whereas the disparities referred to           Unchanged .
 in the field of broadcast advertising
 have the additional effect of impeding
 the free movement Of goods and services
 inasmuch as the opportunities to
 advertise those goods and services
 throughout the Community , which are
 an integral part of the process of
 marketing them, are subject to variable
 restrictions and prohibitions ;
 Whereas the free movement of broadcast        Unchanged .
 within the Community is also impeded
 where the right to communicate a
 particular programme is assigned to
 different persons in different Member
 States , allowing the assignees to rely
 upon their rights to prohibit the cable
 retransmission of a foreign broadcast
 in different Member States ;
 ---pagebreak---                                           - 8
Original Proposai                             Amended Proposai
Whereas all such restrictions on              Unchanged .
freedom to provide broadcasting
services within the Community shall
be abolished under the Treaty both
by applying Article 59 of the Treaty
and , in so far as such restrictive
rules treat broadcasting services
identically whatever their origin
or the nationality or place of
establishment of the persons providing
them and in so far as those laws are
justified on grounds of general
interest , by issuing directives for
the coordination of the provisions
concerning the pursuit of activities
as self-employed persons , including
activities of broadcasters and cable
operators ;
 Whereas the purpose of this coordination       Unchanged .
 is to make it easier for persons to
 pursue activities as self-employed
 persons , in particular , to make it easier
 for broadcasters and cable operators to
pursue the transmission and the
 retransmission of broadcast programmes
and advertisements and thus to abolish
obstacles to the free movement of
broadcasts and , more generally , to the
free flow of information and ideas
within the Community ;
 ---pagebreak---                                      - 9 -
Original Proposai                           Amended Proposai
Whereas under the Treaty , nationals of     Unchanged .
Member States providing services from
within a Member State to a person in
another Member State may pursue their
activities exclusively under the
conditions imposed by the law of the
first Member State ;
Whereas for this reason , for the reason    Unchanged .
mentioned before the last recital and
in order to avoid the cumulative
application to the same broadcast ,
broadcaster or cable operator of the
broadcasting law of all or several Member
States , it is necessary but sufficient
that all broadcasts comply with the law
of the Member State in which they
originate ;
                                           Whereas this Directive lays down the
                                           minimum rules needed to guarantee
                                           freedom of transmission in
                                           broadcasting ; whereas , therefore , it
                                           does not affect the responsibility
                                           of the Member States and subdivisions
                                           thereof with regard to the organization
                                           and financing of broadcasting and the
                                           content of programmes ; whereas the
                                           independence of cultural developments
                                           in the Member States and the preservation
                                           of cultural diversity in the Community
                                                  therefore remain unaffected ;
                                                                           'i y
 ---pagebreak---                                       10 -
 Original Proposal                         Amended Proposal
Whereas it is necessary in the common       Unchanged .
market that all broadcasts originating
and intended for reception with the
Community , and in particular those
intended for reception in another
Member State , should respect the law
of the originating Member State
applicable to broadcasts intended for
reception by the public in that Member
State and the provisions of the present
Directive in order to protect consumers
as listeners and viewers , in particular
young persons , as well as authors ,
producers , broadcasters and performers ,
advertisers and advertising agencies
and the interests of the public in
general ;
                                            Whereas it is vital that the        accuracy
                                            and source of all news and information
                                            should be checked by broadcasters with
                                            the utmost care prior to transmission ;
Whereas checks on respect for national      Whereas the requirement that the origi-
 law as coordinated by this Directive in    nating Member State should verify respect
the originating Member State are            for national law as coordinated by this
sufficient under Community law to           Directive is sufficient under Community
ensure free circulation of broadcasts        law to ensure free movement of
without secondary control on the same       broadcasts without secondary control
grounds in each of the receiving Member     on the same grounds in each of the
States ;                                    receiving Member States ;
 ---pagebreak---                                    - 11
Original Proposai                       Amended Proposai
                                        Whereas it is essential for the
                                        satisfactory implementation of
                                        this Directive to ensure the
                                        prevention of any acts which may
                                        prove detrimental to freedom of
                                        movement and trade in broadcasts
                                        or which may promote the creation
                                        of dominant positions which would
                                        lead to restrictions on pluralism
                                        and freedom of broadcast information
                                        and of the information sector as
                                        a whole ;
Whereas the present Directive is        Unchanged .
without prejudice to existing or
future Community acts of
harmonization which are or will
be necessary, in particular to
satisfy mandatory requirements
concerning the protection of
consumers and the fairness of
commercial transactions ;
Whereas the coordination of             Unchanged ,
national laws designed to secure
and promote distribution and
production of television
programmes in respect of
provisions that are not based
upon grounds of general interest .
                                                                      го
 ---pagebreak---                                         12 -
Original Proposai                            Amended Proposai
public policy , public security
or public health is not necessary
since they cannot be invoked to
restrict the free   movement of
broadcasts within the Community;
 Whereas such coordination is                  Unchanged .
 nevertheless needed at the Community
 level to make it easier for persons
 and industries producing programmes
 having a cultural objective to take
 up and pursue their activities ;
Whereas minimum requirements in respect        Unchanged-
 of all public or private Community
 television programmes for audio-visual
 productions originating in the
 Community are an effective means to
promote production , independent
production and distribution in the
above-mentioned industries and are
 complementary to other instruments
which are already or will be proposed
to favour the same objective ;
                                             Whereas in addition to this Directive
                                             other Community measures to promote
                                             the international competitiveness of
                                             European cinema and television
                                             production are needed, in view of the
                                             strength of the non-European media
                                             industry , not only in order to achieve
 ---pagebreak---                                         13 -
Original Proposal                          Amended Proposal
                                           the economic objectives of the
                                           Community but also to counteract
                                           any loss of linguistic and
                                           cultural identity;
Whereas the vulnerability of European        Unchanged .
cultural industries is not due to lack
of creative talent , but to fragmented
production and distribution systems and
whereas it is therefore necessary to -
promote markets of sufficient size for
television productions in the Member
States to recover necessary investments
not only by establishing common rules
opening up national markets but also by
offering productions of each kind from
the Community an adequate part in
television programmes of all Member
States , which will at the same time
promote the presence of other European
cultures in the television programmes
of each Member State ;
Whereas the progressive establishment       Unchanged .
of a general preference for the
distribution of television programmes
of all kinds produced within the
Community , and specific measures
 ---pagebreak--- 0 ri g i naL Propos a L                    Amended Proposai
designed to promote employment and small
and medium-sized enterprises within the
Community 's cultural industries , allows
for the necessary adaptation of audio¬
visual production facilities to meet
the increasing demand for television
programmes ;
Whereas , in particular , a preference     Unchanged .
for the first broadcast of new
Community productions of a creative
kind will promote actual and future
employment in the industries mentioned
in the preceding recitals ;
Whereas , in addition , a preference for   Unchanged .
independent productions , made outside
the broadcast undertaking , will stimulate
new sources of television production ,
especially the creation of small and
medium-sized enterprises and offer new
opportunities and outlets to the
marketing of creative talents of
employment of cultural professions and
workers ;
Whereas the admission of advertising in    Delete .
cross-frontier broadcasts will create the
conditions in which broadcast advertising
should become lawful in all Member States
thereby establishing a common market for
broadcast advertising throughout the
Community ;
 ---pagebreak---                                           15 -
Original Proposai                              Amended Proposai
Whereas Member States should limit the        Whereas Member States should limit the
volume of broadcast advertising , so          volume of broadcast advertising , so
that it does not detract from the function    that it does not detract from the function
of radio and television as media for          of radio and television as media for
information , education , culture and         information, education , culture and
entertainment and the demand for              entertainment and so that the demand for
advertising in internal broadcasts of         advertising in internal broadcasts of
each Member State is largely met taking       each Member State is largely met taking
also into account the interests of other      also into account the interests of other
media ;                                       media , with a view to safeguarding the
                                              pluralism of the information sector as
                                              a whole ;
Whereas in order to ensure that the           Whereas in order to ensure that the
interests of consumers as listeners           interests of consumers as listeners
and viewers of broadcasts are fully           and viewers of broadcasts are fully
and properly protected, it is essential       and properly protected, it is essential
for broadcast advertising to be subject       for broadcast advertising to be subject
to a number of rules and standards , the      to a number of rules and standards ;
compliance with which is checked prior
to transmission ;
Whereas the implementation of the free         Unchanged .
cross-frontier , movement of broadcasts
implies a legal framework at Community
level containing certain minimum
standards on advertising , but it is for
the Member States to complete these
provisions at the national level ; and
whereas the Member States must maintain
the right to introduce stricter standards
for domestic transmissions such as
refusing to permit the broadcasting of
advertisements on Sundays or public
holidays ;
 ---pagebreak---                                          16 -
 Original Proposal                             Amended Proposal
 Whereas it is necessary to ensure that        Unchanged .
 consumer interests are respected ,
 especially bearing in mind the
 considerable impact of advertising
 on listeners and viewers , and thus
 it is necessary , in accordance with
 the solution adopted in the majority
 of Member States , to prohibit all
 advertisements promoting cigarettes
 and tobacco products and to introduce
 strict rules relating to the
 advertisement of alcoholic products and
to permit those Member States which
wish to do so to prohibit completely
such advertisements in their internal
broadcasts ;
Whereas , more particularly, advertisements   Unchanged .
can unduly influence younger people if
special standards are not laid down to
prevent it ;
Whereas because of the constant rise in       Whereas because of the constant rise in
the cost of audio-visual programmes           the cost of audio-visual programmes
sponsorship is developing greatly and         sponsorship is developing greatly and
playing an increasing role in the             playing an increasing role in the
financing of programmes ; whereas             financing of programmes ; whereas
sponsorship should not be excluded from       sponsorship should not be excluded from
such financing , but it should be strictly    such financing , but it should be strictly
ensured that sponsors do not exercise         ensured that sponsors do not exercise
any improper influence on the contents        any influence on the contents of
 ---pagebreak--- Original Proposai                               Amended Proposai
of programmes and that there is no link        programmes and that there i s no direct
between programmes and advertising       link between programmes and advertising
within or around them which can be             within or around them which can be
taken to suggest this ;                        taken to suggest this ;
Whereas , given the large degree of            Whereas , given the large degree of
flexibility for Member States to fix the       flexibility for Member States to fix the
total volume of advertising time in            total volume of advertising time in
internal broadcasts , Member States may         television broadcasts, each Member State should
restrict the retransmission of cross¬           be permitted to restrict     retransmission of
frontier broadcast advertising                  television advertising from other Member
exceeding 151 of each broadcast              . States exceeding 15% per day and 18% per
receivable each day by the public in           hour of the television broadcist receivable
those Member States , in order to give         by the public in that Member State, in
a certain guarantee to consumers in            order to give a certain guarantee to
receiving countries and to avoid               consumers in receiving countries and
important distortions of competition           to avoid important distortions of
between broadcasters in the Community;         competition between broadcasters in the
                                               Community;
Whereas a lower limit than 15% could           Unchanged .
have the effect to excluding certain
existing broadcasters in some Member
States from free provision of their
services within the Community ;
Whereas it is accepted that the                Unchanged .
protection of the physical , mental
and moral development of children
and young persons is in the general
interest ;
 ---pagebreak---                                            18 -
 OriginaL Proposal                               Amended Proposal
 Whereas in a common market for                 Unchanged .
 broadcasting , broadcasters should
 be subject to similar obligations
 in relation to the protection of
 children and young persons against
possible harmful effects of
 confrontation with inappropriate
audio and audio-visual material ;
Whereas the Community , while ensuring          Unchanged .
the free movement of broadcasts , must
ensure respect for copyright and
related rights ;
Whereas a preference to arrive at this          Unchanged .
result by an agreement freely entered
into by the various interested parties ,
that is a contractual solution , is
generally recognized ;
Whereas a sufficiently long period for          Unchanged .
negotiation should be allowed to permit
these parties to conclude such agreements
respecting the interests of each of them ;
Whereas , nevertheless , in the absence of      Whereas , nevertheless , in the absence of
an agreement and if a cable operator has        an agreement and if a cable operator has
manifested his desire to retransmit a           manifested his desire to retransmit a
certain programme coming from another           certain programme coming from another
Member State , the balance between these        Member State , the balance between these
interests has to be safeguarded by a            interests has to be safeguarded by the
system of legal licences providing for          decision of an arbitration body fixing
 ---pagebreak---                                     19 -
Original Proposai                         Amended Proposai
for adequate remuneration which the       the adequate remuneration which the
particular Member State will be          particular Member State will be
obliged to introduce under these         obliged to introduce under these
circumstances ;                           circumstances ;
                                         Whereas in a common market for
                                         broadcasting , broadcasting companies
                                         should be subject to similar obligations
                                          in relation to the right to reply, to
                                         ensure that this right may be
                                         effectively exercised by anyone whose
                                           legitimate . interests have been harmed by
                                         a statement in a radio or television
                                         broadcast ;
                                         Whereas the Council must ensure by
                                         means of , a separate decision that the
                                         Community directive takes precedence
                                         over the European Convention on
                                         broadcasting without frontiers currently
                                         being drawn up at the Council of Europe ,
                                         to enable the Community, through the
                                         work of its institutions, to fulfil the
                                         task assigned to it of creating a
                                         common market in the field of
                                         broadcasting ;
                                         Whereas it is vital to stress the
                                         requirement that , in accordance with
                                         Article 5 of the Treaty, Member States
                                         should refrain from conclu#Tng
                                         international agreements*on tlrfs “Subject
                                         before the Council has adopted this
                                         Directive ;
                                                                            /.
                                                                       гг
 ---pagebreak---                              20 -
 Original Proposai                Amended Proposai
                                  Whereas this Directive is only an
                                  initial step towards the necessary
                                  gradual development of the
                                  comprehensive European 'media' policy
                                  advocated by the European Parliament
                                  in its resolution of 10 October 1985 ; ( 4 )
HAS ADOPTED THIS DIRECTIVE :      Unchanged.
                               ( 4 ) 0J No . C 288 , 11.11.1985 , p. 113 .
 ---pagebreak---                                          - 21
Original Proposai                             Amended Proposai
Chapter I
GENERAL PROVISION
Article 1                                     Article 1
1 . Each Member State shall ensure that       1 . Each Member State shall ensure that
all internal broadcasts originating on        all broadcasts transmitted by
its territory comply with its law             broadcasters under its jurisdiction
applicable to broadcasts intended for         comply with its law applicable to
the public in that Member State .             broadcasts intended for the public
                                              in that Member State .
2 . Without prejudice to Article 14 and       2 . Unchanged .
the provisions of Chapter V , the Member
States shall not restrict the reception
and retransmission on their territories
of broadcasts from other Member States
for reasons which fall within the
fields coordinated by this Directive
                                                        t
3 . This Directive does not apply to          3 . Unchanged ,
broadcasts intended exclusively for
reception in States other than Member
States .
 ---pagebreak---                                        22 -
 Original Proposât                          Amended Proposai
 Chapter II
PROMOTION OF DISTRIBUTION AND
PRODUCTION OF TELEVISION
PROGRAMMES
Article 2                                   Article 2
1 . The Member States shall ensure that     1 . Member States shall ensure that
internal broadcasters of television         television broadcasters and cable
reserve at least 30% of their               operators retransmitting television
programming time not consisting of          broadcasts reserve at least 60% of
news , sporting events and game shows,      their programming time not consisting
advertising or teletext services for        of news , sporting events , game shows ,
broadcasts of Community works within        advertising or teletext services for
the meaning of Article 4 , of which in      Community works of which at least
the case of initial transmissions at        one third shall be reserved for first
least one third shall be reserved for       broadcasts in the Community .
first broadcasts in the Community .         This percentage shall be achieved
                                            gradually on the basis of appropriate
                                            criteria within a period of three
                                            years from the date specified in
                                            Article 22 .
2 . This percentage shall be progressively  2 . Delete .
increased to reach at least 60% after the
expiry of three years from the date
specified in Article 22 .
                                                                            2Ί
 ---pagebreak---                                        - 23 -
Original Proposai                             Amended Proposai
3 . For the purposes of this Article ,        2 . For the purposes of paragraph 1 :
- in cases of simultaneous, unaltered         - in cases of simultaneous , unaltered
and unabridged retransmission , internal      and unabridged retransmission ,
broadcasts from other Member States           broadcasts from other Member States
shall be regarded in their entirety as        shall be regarded in their entirety
Community works ;                             as Community works ;
- in cases of coproduced Community            - in cases of coproductions , the first
works , the first broadcast by each of        broadcast by each of the Community
the coproducers shall be considered           coproducers shall be considered to be
a first broadcast in the Community .          a first broadcast in the Community .
Article 3                                     Article 3
1 . The Member States shall ensure that ,     1 . Member States shall ensure that
as regards their initial transmissions ,      television broadcasters reserve at
internal television broadcasters reserve      least 5% of their programming budget for
at least 5% of their programming budget       Community works created by producers who
for Community works, within the meaning       are independent of the television
of Article 4, created by independent          companies . .
producers ..
 ---pagebreak---                                       24 -
Original Proposa L                          Amended Proposai
2 . This percentage shall be progressi vely 2 . This percentage shall be progressi vely
 increased to reach at least 10X after the  increased to at least 101 after the
expiry of three years from the date         expiry of three years from the date
specified in Article 22 .                   specified in Article 22 and shall be
                                            achieved by allocating an adequate
                                            proportion to recent works , that is , works
                                            produced within a reasonable period
                                            before their transmission .   Such a
                                            period shall be considered reasonable
                                            where it does not exceed five years .
Article 4                                   Article 4
The Member States shall apply the           1 . Community works within the meaning of
provisions of this Chapter to :             this Chapter are works mainly made with
                                            authors and workers residing in one or
                                            more Member States provided that they
                                            comply v/xith one of the following three
                                            condi t ions :
( a ) works made by producers from a        ( a ) such works are made
Member State ;                              by one or more producers established in
                                            one or more Member States ; or
( b ) works made by producers from          ( b ) production of the works is supervised
several Member States ;                     and actually controlled by one or more
                                            producers established in one or more
                                            Member States ; or
                                                                             ■JJ
 ---pagebreak---                                    25 -
Original Proposai                       Amended Proposai
( c ) works made by producers from       ( c ) the contribution of Community
one or several Member States and        co-producers to the total co-production
non-Member States where the             costs is preponderant and the co­
Community proportion of the total       production is not controlled by one or
production costs is equal to at         more producers established outside the
least 70% .                             Community .
                                        2 . Works made either exclusively or
                                         in co-production with producers
                                        established in one or more Member
                                        States , by producers established in
                                        one or more of the EFTA or Council
                                        of Europe States that have concluded
                                        agreements based on reciprocity with
                                        the Community shall be considered to
                                        be Community works . for the purposes
                                        of this Chapter if they are made
                                        mainly with authors and workers
                                        residing in one or more Member States
                                        or EFTA or Council of Europe States .
                                        3 . Works not being Community works within
                                        the meaning of paragraph 1 but made
                                        mainly with authors and workers
                                        residing in one or more Member States
                                        shall be considered to be      Community
                                        works to an extent corresponding
                                        to the proportion of the contribution
                                        of Community co-producers to the total
                                        production costs .
                                                                         3 «y
 ---pagebreak---                   26 -
Original Proposai      Amended Proposai
                       Article 4a
                       1 . This Chapter shall not apply to local
                       television broadcasts not forming part
                       of a national network .
                       2 . Member States shall remain free in
                       relation to some or all of the
                       television broadcasters under their
                       jurisdiction to provide for more
                       detailed or stricter rules in order to
                       promote the distribution and production
                       of television programmes .
                       Article 4b
                       The Commission shall enter into
                       negotiations with the States of EFTA
                       and the Council of Europe with a view to
                       the agreements referred to in Article 4(2 ).
                                                        3-r
 ---pagebreak---                                         27 -
 Original Proposal                            Amended Proposal
 Chapter III
BROADCAST ADVERTISING AND SPONSORING
Section 1                                     Delete .
INTERNAL BROADCASTS                           Delete .
Article 5                                    Article 5
The Member States shall fix the amount .     Member States shall ensure that
of time allowed for broadcast advertising    broadcast advertising and the maximum
so that :                                    amount of time allowed for it is
                                             determined for each broadcaster
                                             authorized to broadcast advertising
                                             so that :
( a ) it does not detract from the           ( a ) Unchanged .
function of radio and television as
media for information , education ,
culture and entertainment ; and
( b ) the demand for broadcast advertising   ( b ) the demand for broadcast advertising
can be largely met , also taking into        can be largely met , also taking into
account the interests of other media .       account the interests of other media ,
                                             with a view to safeguarding the pluralism
                                             of information .
 ---pagebreak---                                        28
 Original Proposal                         Amended Proposal
 Article 6                                Article 6
 1 . Without prejudice to the provisions   1 . Without prejudice to the provisions
 of other Community acts , the Member     of other Community acts , Member States
 States shall ensure that broadcast        shall ensure that advertising is
 advertising in internal broadcasts is    broadcast only if it complies with the
 checked prior to transmission and is      rules of this Chapter .
broadcast only if it complies with the
 rules of this section .
2 . The Member States shall ensure that , 2 . Unchanged .
in the case of broadcasts that do not
respect these requirements , appropriate
remedies sufficient to secure compliance
with the rules are imposed on the
broadcasters concerned .
Article 7                                 Article 7
1 . Broadcast advertising shall be        1 . Unchanged .
clearly recognizable as such .
2 . Broadcast advertising shall be        2 . Broadcast advertising shall be kept
grouped in blocks and kept quite          quite separate from the other programme
separate from the other programme         material by optical or accoustic means .
materia l .
3 . Broadcast advertising shall not       3 . Unchanged .
interrupt coherent programme items
except where the interruption does not
constitute an unreasonable interference
because :
 ---pagebreak---                                      - 29 -
Original Proposai                           Amended Proposai
 ( a ) the advertising is scheduled in
such a way as to avoid prejudice to the
integrity and value of programmes or
their natural continuity ;
( b ) the advertising is inserted in a
natural break within the programme ;
and
( c ) the duration and nature of the
programme is such as to permit that
advertising break .
Article 8                                   Article 8
Broadcast advertising shall not :           Broadcast advertising shall not :
( a ) offend against prevailing standards   ( a ) offend against prevailing standards
of decency and good taste ;                 of decency;
Cb ) containg any racial or sexual          ( b ) contain any discrimination on the
discrimination;                             grounds of race , sex or nationality;
Cc ) be offensive to religious or           Cc ) Unchanged .
political beliefs ; ■
( d ) seek to rely on fear without          ( d ) seek to rely on fear ;
justifiable reason ;
 ---pagebreak---                                       30
Original Proposai                        Amended Proposai
( e ) encourage behaviour prejudicial to ( e ) encourage behaviour prejudicial to
health or safety .                       health or safety or the protection of
                                         the environment ;
                                         Cf ) employ forms of expression which
                                         contravene       respect for the dignity
                                         of women .
Article 9                                Arti c le 9
Broadcast advertising for cigarettes     Unchanged .
and other tobacco products shall be
prohibited .
Article 10                               Article 10
Broadcast advertising for alcoholic      Broadcast advertising for alcoholic
beverages shall comply with the          beverages shall comply with the
following rules :                        following criteria :
( a ) it shall avoid anything that might ( a ) it shall avoid anything that might
prompt or encourage children and young   prompt or encourage children and young
persons to consume alcohol ;             persons to consume alcohol ; the
                                         participation of children and young
                                         persons in such advertising shall be
                                         prohibited ;
                                                                         Sf
 ---pagebreak---                                    - 31
Original Proposai                           Amended Proposal
( b ) it shall not link the consumption     ( b ) Unchanged .
of alcohol to physical performance or
to driving ;
( c ) it shall not create the impression    ( c ) Unchanged .
that the consumption of alcohol
contributes to social or sexual success ;
( d ) it shall not claim that alcohol has
therapeutic qualities or that it is a
stimulant , a sedative or a means of
resolving personal conflicts ;
( e ) it shall not encourage immoderate     ( e ) Unchanged .
consumption of alcohol or present
abstinence or moderation in a negative
light ;
Cf ) it shall not place undue emphasis on ' ( f ) Unchanged .
the alcoholic content of beverages .
 ---pagebreak---                                       - 32 -
Original Proposai                            Amended Proposal
Article 11                                   Article 11
Broadcast advertising shall further          Unchanged .
comply with the following rules for
the protection of children and young
persons :
( a ) it shall not directly exhort
children and young persons to buy a
product or a service or exploit their
immaturity of judgement and inexperience ;
( b ) it shall not encourage children
and young persons to persuade their
parents or others to purchase the
goods or services being advertised ;
( c ) it shall not exploit the special
trust children and young persons place
in parents , teachers or other persons ;
( d ) it shall not unreasonably show
children and young persons in
dangerous situations .
 ---pagebreak---                                      - 33 -
Original Proposai                           Amended Proposai
Article 12                                  Article 12
                                            1 . Member States shall allow the
                                            sponsorship of broadcast programmes .
Undertakings shall not exert improper       2 . Undertakings shall not exert any
influence over parts of the programme       de jure or de facto influence over
that do not consist of advertising .        the programme as a whole or over parts
Nothing shall be included in any            of the programme that do not < consist'
broadcast advertising or programme          of advertising . Nothing shall be
which could reasonably be taken to          included in any broadcast advertising
suggest or imply that undertakings ,        or programme which could be reasonably
for advertising purposes / have             taken to suggest or imply that
influenced parts of the programme           undertakings , for advertising purposes ,
which are not an advertisement .            have influenced parts of the programme
In particular ,                             which are not an advertisement .
                                            In particular ,
( a ) programmes shall not refer to         ( a ) Unchanged .
specific undertakings , products or
services in a way not necessary for
their content ;
( b) programmes which are funded or co¬     ( b ) Unchanged .
funded by non-broadcasters shall be
identified as such ; however , the
identification shall be restricted
to a credit at the beginning and end
of the programme ;
( c ) programmes shall not contain any      ( c ) Unchanged .
promotion equivalent to advertising ,
especially on behalf of those who
funded or co-funded them;
                                                                             7С
 ---pagebreak---                                        34 -
Original Proposal                           Amended Proposal
( d ) advertising within or around          ( d ) advertising within or around
programmes shall not be allowed if          programmes shall not be allowed if
there is any link in content or             there is any direct link in content or
presentation with the programme .           presentation with the programme .
Article 13                                  Article 13
1 . The Member States shall remain free     1 . As regards broadcasters under their
to prohibit or restrict broadcast           jurisdiction Member States shall remain
advertising on Sundays and public           free to prohibit or restrict broadcast
holidays and to prohibit all                advertising on Sundays and public
broadcast advertising for alcoholic         holidays and to prohibit all broadcast
beverages .                                 advertising for alcoholic beverages .
2 . Member States shall remain free to      2 . Member States shall remain free to
apply more detailed or stricter rules       require broadcasters under their
with regard to Articles 7 , 8 and           jurisdiction to apply more detailed
10 to 12 .                                  or stricter rules than are contained in
                                            Articles 7 , 8 and 10 to 12 .
                                            3 . Member States shall remain free not
                                            to apply Articles 5 and 6 and Article
                                            7(2 ) and ( 3 ) to local broadcasts .
                                                                                VÈ
 ---pagebreak---                                       - 35
Original Proposai                           Amended Proposal
Section 2                                  Delete .
CROSS-FRONTIER TELEVISION BROADCASTS       Delete .
Article 14                                 Article 14
The Member States shall admit the           Each Member State shall permit the
reception and retransmission of ad ¬       reception and retransmission of
vertising in cross-frontier tele ¬         advertising in television broadcasts
vision broadcasts which does not           from other Member States which does not
exceed 15% of the broadcast                exceed 15% per day and 18% per hour
receivable each day by the public          of the broadcast receivable by the
in those Member States . Where a Member    public in that Member State . Where a
State allows one or several internal       Member State allows one or more television
television broadcasters to carry           broadcasters under its jurisdiction to
advertising for more than 15%              carry more advertising it shall permit
of daily broadcasting time , it shall      an equal proportion of advertising in
admit comparable types of cross-frontier   comparable types of broadcasts from
broadcasts which contain amounts of ad¬    other Member States . .
vertising that . do not exceed those per ¬
mitted for internal television broad ¬
casts of the same category .
 ---pagebreak--- Original Proposai                  Amended Proposai
Chapter IV
PROTECTION OF CHILDREN AND YOUNG
PERSONS
Article 15                         Art i c le 15
1 . The Member States shall ensure 1 . Member States shall ensure that
that internal broadcasts do not    broadcasts do not include programmes
include programmes which might     which are likely seriously to harm
seriously harm the physical ,      the physical , mental or moral
mental or moral development of     development of children and young
children and young persons , in    persons , in particular those that
particular   those that involve    involve pornography pr gratuitous
pornography , gratuitous violence  violence . This shall also apply to
or incitement to race hatred .     programmes which , although not
                                   covered by the preceding sentence ,
                                   might harm the physical , mental or
                                   moral development of children and
                                   young persons , except where it is
                                   ensured , by selecting the time of
                                   the broadcast or by any technical
                                   measure , that children and young
                                   persons cannot normally hear or see
                                   such broadcasts .
                                   Member States shall also ensure that
                                   broadcasts do not contain any
                                   incitement to racial hatred .
 ---pagebreak---                                      - 37 -
Original Proposal                           Amendment Proposal
2 . They shall ensure that internal         2 . Member States shall ensure that
broadcasts are checked prior to              programmes are broadcast only if they
transmission and broadcast only if          comply with the requirements under
they comply with the requirements           paragraph 1 and that , in the case of
under paragraph 1 above . The Member        broadcasts that do not respect these
States shall ensure that , in the           requirements , appropriate remedies
case of broadcasts that do not respect      sufficient to secure compliance with
these requirements , appropriate            the rules are imposed on the broadcasters
remedies sufficient to secure               concerned .
compliance with the rules are imposed
on the broadcasters concerned .
Article 16                                  Article 16
The Member States shall remain free         Member States shall remain free to
to apply more detailed or stricter          require broadcasters under their
rules for the protection of children        jurisdiction to apply more detailed
and young persons to internal               or stricter rules for the protection
broadcasts .                                of children or young persons .
                                                                                ЧЬ
 ---pagebreak---                                    - 38 -
Original Proposal                          Amended Proposal
Chapter  V
COPYRIGHT
Article 17                                 Article 17
The Member States shall ensure             1 . Member States shall ensure that
that the retransmission by cable           the retransmission by cable in their
in their territory of internal             territory of broadcasts from other
broadcasts from other Member              Member States may take place with
States may take place with                 respect for applicable copyright and
respect for applicable copyright           related rights , in particular on the
and related rights , in particular        basis of contractual agreements
on the basis of contractual               between right owners and cable
agreements between right owners           operators . To this end Member States
and cable operators . When a              shall encourage negotiations between
cable operator retransmits a              the collective bodies responsible
broadcast before a contractual            for managing copyright and related
agreement has been reached or a           rights and the cable operators with
statutory licence is applied , he         a view to the conclusion of agreements
shall be subject to civil and              laying down the legal and financial
penal sanctions provided for in           conditions governing the retransmission
the law of the Member State where         of the broadcasts in question .
the retransmission takes place
sufficient to secure compliance           2 . When a cable operator retransmits
with the rules .                          a broadcast before a contractual
                                          agreement has been concluded or a
                                          decision enabling such retransmission
                                          has been taken by the arbitration
                                          body specified in Article 19 , he shall
                                          be subject to civil and penal sanctions
                                          provided for in the law of the Member
                                          State    where the retransmission takes
                                          place . Such sanctions . shall be sufficient
                                          to secure compliance with the rules .
 ---pagebreak---                                    - 39
Original Proposai                            Amended Proposal
Article 18                                    Article 18
1 . Where a cable operator notifies a        1 . Where a cable operator notifies a
Member State that the simultaneous ,         Member State that the simultaneous ,
unaltered and unabridged retrans ¬           unaltered and unabridged retransmis¬
mission by cable of an internal              sion by cable of a broadcast from
broadcast from another Member State          another Member State has been prevented
has been prevented by the invocation         by the invocation of copyright or
of copyright or related rights , the         related rights , the Member State that
Member State that has been notified          has been so notified , shall ensure ,
shall ensure , within aiperiod of            within a period of two years from the
two years from the notification ,            notification , that the retransmission
that the retransmission is made              is made possible through a decision
possible by the application of a             of the arbitration body specified in
statutory licence . However, such a          Article 19 . However , such a decision
statutory licence need not be granted        shall not be necessary if , during the
if , during the two year period , the        two year period , the obstacle to
obstacle to retransmission has been          retransmission has been removed , in
removed , in particular , by a contrac¬      particular by a contractual agreement
tual agreement between right owners          between right owners and one or
and one or several cable-operators .          more    cable operators .
2 . Where the right invoked is a related     2 . Where the right invoked is a related
right held by a broadcasting undertaking     right held by; a broadcasting undertaking
by virtue ^ of the European Agreement on     by virtue of the European Agreement
the Protection of Television . Broadcasts    on the Protection of Television
of 22 June 1960 , and the Agreement is an    Broadcasts of 22 June 1960 , and the
obstacle to the introduction of the          Agreement is an obstacle to the
statutory licence , the Member State s'n - - establishment of a compulsory
shall denounce the Agreement to the          arbitration scheme , the Member State
extent necessary to permit the statutory     shall adopt appropriate procedures
licence to be introduced in accordance       with a view to securing its establish¬
with paragraph 1 .                           ment in accordance with' paragraph 1.'
                                                                               M2
 ---pagebreak---                                         40 -
  On'ginaL Proposal                          Amended Proposal
  Article 19                                 Article 19
  1 . The statutory licence introduced       1 . Thedecision taken in accordance
  in accordance with Article 18 shall        with Article 18 shall secure an
  secure an equitable remuneration           equitable remuneration for the holders
  for the holders of copyright and           of copyright and related rights .
  related rights .
 2 . In determining the remuneration ,       2 . Unchanged .
  in particular all the following
 criteria shall be taken into account :
  ( a ) the usual level of contractual
  licence fees for comparable cable
 transmissions ;
 ( b ) the usual level of remuneration
paid for the first broadcast ;
 ( c ) the number of subscribers linked
to the cable network and the level
of fees paid by them ;
 ( d ) the likelihood and the extent of
àny impairment of other marketing
opportunities , in particular the
showing of films and the performance
of dramatic or dramatic musical works .
3 . The remuneration may be claimed           3 . Unchanged .
only by collecting societies .
4 . In the absence of an amicable            4 . Deleted .
agreement , the remuneration shall be
determined by the competent authority .
 ---pagebreak---                                       - 41
Original Proposai                          Amended Proposai
5 . The competent authority may be         4 . Member States shall determine the
a court , an administrative                composition of the arbitration body
authority or an arbitration body .         in such a way that holders of
It shall be composed so as not to           copyright and related
cast doubt on its impartiality .           rights are adequately represented
It shall give reasons for its              thereon . It shall be so composed
decisions . Where it is not a court ,      as not to cast doubt on its impartia¬
provision shall be made for proce ¬        lity . It shall give reasons for its
dures whereby improper or unreaso¬          decisions . Member States shall make
nable exercise of the competent            provision for procedures whereby
authority 's powers or improper or         improper or unreasonable exercise
unreasonable failure to exercise           of the arbitration body 's powers or
the said powers can be the subject         improper or unreasonable . fai lure to
of judicial review .                       exercise the said powers can be
                                           subject to judicial review .
Article 20                                 Article 20
The provisions of this Chapter shall       Unchanged .
not affect the moral rights of
copyright owners and equivalent
personal rights of owners of related
rights .
                                            Chapter Va
                                            RIGHT OF REPLY
                                            Article 20a
                                            1 . Without prejudice to other - .
                                            provisions adopted by the Member
                                            States under civil or criminal law ,
                                            any natural or legal person whose
                                            legitimate interests , in particular
                                            reputation and good name , have been
                                            damaged by an assertion of incorrect
                                            facts in a broadcast programme shall
                                            have a right of reply .
                                                                            Xo
 ---pagebreak---                   42
Original Proposai     Amended Proposai
                      2.    A  right of reply shall exist in
                      relation to all broadcasters under
                      the jurisdiction of a Member State .
                      3 . Member States shall adopt the
                      measures needed to establish the
                      right of reply and shall determine the
                      procedure for the exercise thereof .    In
                      particular , they shall ensure that
                      sufficient time is allowed for the
                      right to be exercised effectively
                      by natural or legal persons resident
                      or established in other Member States .
                      4 . An application for exercise of the right of
                      reply may be rejected if such a
                      reply is not justified according to
                      the conditions laid down in paragraph 1 ,
                     would involve a punidiable act , would
                      render the broadcaster liable to
                      civil law proceedings or would transg-ess
                      standards of oublic decency .
                      5 . Provision     shall be made for
                      procedures whereby disputes as to
                      the exercise of the right of reply can be
                      subject to judicial review .
                                                          SS)
 ---pagebreak--- Original Proposai                               Amended Proposai
Chapter VI
FINAL PROVISIONS
Article 21                                      Artide 21
For the purpose of this Directive :       1 . For the purpose of this Directive :
1 . "Broadcasting " means the initial         ( a ) "Broadcasting " means the initial
transmission or retransmission by wire          transmission by wire or over the air ,
or over the air , including those by            including that by satellite , in
satellite , in unencoded or encoded               unencoded or encoded form , of radio
form , of radio and television program-,        and television programmes intended
mes intended for reception by the               for       reception by the public .
public . Except for the purposes of             Except for the purposes of
Chapter V on Copyright , it includes             Chapter V , it includes the
the communication of programmes                 communication of programmes between
between undertakings with a! view to            undertakings with a view to their
their being relayed to the public .             being relayed to the public . It
It does not include communication              does not include communication
services providing items of informa¬            services providing items of infor¬
tion or other messages on individual           mation or other messages onsindividual
demand such as telecopying , electronic        demand such as telecopying , electronic
data banks and other similar services .        data banks and other similar services .
2 . "Broadcast advertising " means an        ( b ) "Broadcast advertising " means an
annoucement in any form broadcast by           announcement   in any form broadcast-
a public or private undertaking in             by a public or private undertaking
connection with a trade , business ,            in connection with a trade , business ,
craft orj profession in order to               craft or profession in order to
promote the supply of goods or                 promote the supply against payment of
services , including immovable property ,      goods or services , including immovables
rights and obligations . It does not           property , rights and obligations .
include sponsored programmes .
 ---pagebreak--- Original Proposai                            Amended Proposai
3 . " Internal broadcasts " means          (c)   " Sponsoring " means any contribution
initial transmission by public               made by a public or private undertaking
or private undertakings engaged              not engaged in broadcasting activities
in broadcasting on the territory             or in tne production of audio-visual
of a Member State , including                works , to the financing of broadcast
transmissions exclusively intended           programmes with a view to promoting
for reception in other Memver States .       its name , its trade mark , its image ,
It also includes the initial retrans ¬       its activities or its products .
mission by such undertakings of
broadcast transmissions originating
from an undertaking engaged in
broadcasting on the territory of a
State other than a Member State .
4 . " Cross-frontier broadcasts " means      4 . Delete .
internal transmissions that' can be
received directly by the public in
another Member State or by way of
retransmission even where they are
retransmitted by an undertaking
established in the territory of that
other Member State .
                                        2 . Member States shall take measures ro
                                            establish the concept of the
                                            independent producer by providing
                                            sufficient opportunities for smaller
                                            producers and reserving the right
                                            to allow financial contributions
                                            by co-production subsidiaries of
                                            television companies .
 ---pagebreak---                                          45 -
  Original Proposai                           Amended Proposal
Article 22                                    Article 22
 1 . The Member States shall bring into       Unchanged .
force the laws , regulations and adminis
trative provisions necessary to comply
with this Directive not later than ...
 They shall forthwith inform the
 Commission thereof .
 2 . The Member States shall communicate
 to the Commission the text of the main
 provisions of national law which they
 adopt in the fields governed by this
 Directive .
Article 23                                    Article 23
Before the end of the sixth year              Before the end of the third year
after the date mentioned in                   after the date mentioned in
Article 22 , the Commission shall             Article 22 and every two years
submit to the Council , the                   thereafter , the Commission shall
European Parliament and the                   submit to the Council , the European
Economic and Social Committee                 Parliament and the Economic and
a report on the manner in which               Social Committee a report on the
this Directive has operated and ,             manner in which this Directive has
if necessary , make further                   operated and , if necessary , make
proposals to adapt it to the                  further proposals to adapt it to
developments in the broadcasting              developments in the broadcasting
field .                                       field .
Article 24                                    Article 24
This Directive is addressed to the            Unchanged .
Member States .