CELEX: 51996PC0006(01)
Language: en
Date: 1996-01-31
Title: Proposal for a Council Decision approving the European Convention relating to questions on copyright law and neighbouring rights in the framework of tranfrontier broadcasting by satellite

COMMISSION OF THE EUROPEAN COMMUNITIES
                                       Brussels, 31.01.1996
                                      COM(96) 6 final
                                      96/0017 (CNS)
 PROPOSALS FOR COUNCIL DECISIONS CONCERNING THE SIGNING
 AND APPROVAL, ON BEHALF OF THE EUROPEAN COMMUNITY, OF
   THE EUROPEAN CONVENTION RELATING TO QUESTIONS ON
COPYRIGHT LAW AND NEIGHBOURING RIGHTS IN THE FRAMEWORK
      OF TRANSFRONTIER BROADCASTING BY SATELLITE
                (presented by the Commission)
 ---pagebreak---  ---pagebreak---                                EXPLANATORY MEMORANDUM
 1.   . INTRODUCTION
 In the Community the legal framework for creating a single audiovisual area, as laid
 down in Council Directive 89/552/EEC,1 was supplemented, as regards copyright and
 neighbouring rights, by Council Directive 93/83/EEC of 27 September 1993 on the
 coordination of certain rules concerning copyright and rights related to copyright
 applicable to satellite broadcasting and cable retransmission.2
 Similarly, in the course of its deliberations in 1987 on the European Convention on
Transfrontier Television,3 the Council of Europe decided not to include specific
provisions on copyright and neighbouring rights and embarked on separate work in that
field. That work led to the adoption, on 16 February 1994, of the European Convention
relating to questions on copyright law and neighbouring rights in the framework of
transfrontier broadcasting by satellite.
It will be clear from what follows that the subject-matter of this latter Convention falls
largely within the scope of the Community Directive, and it is this which, in the light of
the case-law of the Court of Justice, justifies the proposals for Council Decisions on the
signing and approval of the Convention.
2.      SECONDARY LEGISLATION ADOPTED WITHIN THE COMMUNITY FRAMEWORK
On 3 October 1989 the Council adopted Directive 89/552/EEC on the coordination of
certain provisions laid down by law, regulation or administrative action in Member States
concerning the pursuit of television broadcasting activities. This directive provides for
measures which promote the distribution and production of European television
programmes, as well as measures concerning advertising and sponsorship, the protection
of minors and the right of reply.
However, achievement of those objectives in respect of cross-border satellite
broadcasting and cable retransmission of programmes from other Member States was still
obstructed by differences between national copyright rules and by some degree of legal
uncertainty regarding the rights to be acquired.
        Council Directive of 3 October 1989 on the coordination of certain provisions laid down by law,
        regulation or administrative action in Member States concerning the pursuit of television
        broadcasting activities, OJ No L 298 of 17 October 1989, p. 23.
        OJ No L 248 of 6 October 1993, p. 15.
        Convention of 5 May 1989.
                                                                                                    ±
 ---pagebreak---  The Council, therefore, decided to supplement the legal framework established by
 Directive 89/552/EEC with measures concerning copyright and neighbouring rights that
 were set out in Directive 93/83/EEC of 27 September 1993.
 In the satellite broadcasting field, that Directive, which is based on Articles 57(2) and 66
 of the Treaty, is designed to promote freedom to broadcast programmes in the
 Community by reducing the disparities between national rules relating to copyright and
neighbouring rights and by removing the legal uncertainty regarding the rights to be
acquired through the inclusion of définitions of the concepts of communication to the
public by satellite at Community level and of the place where this act of communication
occurs.
Directive 93/83/EEC abolishes in the copyright field the difference in legal terms
between communication to the public by direct satellite and communication to the public
by communications satellite. Furthermore, where programme-carrying signals are
encrypted and the means for decoding them are made available to the general public by
the broadcasting organization or with its consent, the Directive deems this to be
communication to the public by satellite.
As already mentioned, the Directive defines communication to the public by satellite and
the place of such an act, so as to prevent cumulative application of the laws of a number
of countries to a single act of broadcasting; the contractual acquisition of exclusive
broadcasting rights should comply with the legislation on copyright and related rights in
force in the Member State in which communication to the public by satellite occurs.
By deeming them to have occurred in the Community if certain conditions are met, the
Directive also takes account of communications to the public by satellite from a third
country which does not guarantee the same level of protection.
Under the Directive, Member States are to provide for the author to have the exclusive
right to authorise the communication to the public by satellite of works protected by
copyright; such authorization may be acquired only by agreement, and arrangements are
laid down regarding collective agreements concluded between collecting societies and
broadcasting organizations.
For the purposes of communication to the public by satellite, the rights of performers,
phonogram producers and broadcasting organizations are protected in accordance with
Articles 6, 7, 8 and 10 of Directive 92/100/EEC.4
On one issue only - the rights of performers and phonogram producers regarding
communication to the public by satellite - Directive 93/83/EEC provides for minimum
protection, stipulating that Member States may provide for more far-reaching protection
for holders of rights related to copyright than that required by Article 8 of
Directive 92/100/EEC (Article 6 of Directive 93/83/EEC).
        Council Directive of 19 November 1992 on rental right and lending right and on certain rights
        related to copyright in the field of intellectual property, OJ No L 346 of 27 November 1992,
        p. 61.
 ---pagebreak--- Finally, Directive 93/83/EEC contains transitional provisions applicable to agreements in
force.
3.      WORK CARRIED OUT BY THE COUNCIL OF EUROPE
(a)     Negotiating directives given by the Council to the Commission
        In 1987 a committee of legal experts on the media was entrusted with the task of
        compiling information on matters relating to copyright and neighbouring rights in
        the satellite broadcasting field; in 1991 it was decided to draw up a specific
        convention on this subject.
        The Commission participated in this work on behalf of the Community and in
        consultation with Member States on the basis of negotiating directives given it by
       the Council. Those directives called for the conclusion of a convention that was
        consistent with the principles contained in Directive 93/83/EEC regarding rights
       of authors, performers, phonogram producers and broadcasting organizations and
       for the inclusion in that convention of clauses permitting the European
       Community's accession and guaranteeing the application of Community rules
       between the members of the Community.
(b)    Progress of work and adoption of the Convention
       Each meeting of the Council of Europe's group of experts was preceded by
       coordination meetings at Community level.             On 24 September 1993 the
       Commission sent the Council of Europe a letter containing the Community's
       requests for amendments to the draft convention.
       Following acceptance of those amendments, a final coordination meeting at
       Community level took place on 9 February 1994. At that meeting, the
       Member States' representatives agreed that the draft convention should be adopted
       and opened for signing at the meeting of the Council of Europe's Committee of
       Ministers scheduled for 16 February; in addition, they undertook not to proceed
       with the signing of the Convention before the Council of the European Union had
       adopted a position based on a Commission communication concerning the results
       of the negotiations and the action to be taken by Member States and the
       Community.
       The representatives of the Ministers of the Council of Europe adopted the
       Convention at their meeting on 16 February 1994, and on 11 May 1994 the
       Convention was opened for signing by the member countries of the
       Council of Europe, the other countries party to the European Cultural Convention
       and the European Community.
 ---pagebreak--- (c)  Content of the Convention
    For the purposes of copyright and neighbouring rights, the Convention treats
     signals transmitted by fixed service satellite under conditions permitting direct
    reception by the general public as direct broadcasting by satellite. Furthermore,
    where programme-carrying signals are transmitted in encrypted form and the
    means for decoding the broadcast are made available to the general public by, or
    with the consent of, the broadcasting organization, such transmissions are also
    deemed to be an act of broadcasting.
    The Convention defines an act of broadcasting and designates the law applicable
    to transmissions of works and other contributions it covers by reference to the
    place of origin of the communication to the public, which is defined in the
    Convention.
    The Convention also takes account of transmissions originating in a country
    which is not party to it and whose law does not provide the same level of
    protection for right-holders, by stipulating that such transmissions are to be
    deemed, subject to certain conditions, to originate in a country which is party to
    the Convention.
    The Convention further stipulates that authors have the exclusive right to
    authorise the broadcasting of their protected works in accordance with the
    provisions of the Berne Convention for the Protection of Literary and Artistic
    Works (Paris Act, 1971). Rights for the cross-frontier broadcasting of such works
    by satellite are acquired contractually; rules are laid down regarding collective
    agreements concluded between collecting societies and broadcasting
    organizations.
    The Convention also provides for minimum protection for holders of
    neighbouring rights in accordance with the provisions of the Rome Convention
    for the Protection of Performers, Producers of Phonograms and Broadcasting
    Organizations (1961). That minimum protection is supplemented by a number of
    rules designed to achieve a more harmonized level of protection for holders of
    neighbouring rights in the specific field of cross-frontier broadcasting by satellite.
    None of those provisions prevents countries that are party to the Convention from
    providing more favourable protection for the right-holders concerned.
    In addition to the provisions traditionally found in this type of convention
    (multilateral consultations, amendments, other international agreements or
    arrangements, and final clauses), the Convention provides for a transitional period
    to enable existing contracts to be adapted to the new rules, particularly in the case
    of international co-productions.
    It is further stipulated that, in their mutual relations, parties to the Convention
    who are members of the European Community will apply Community rules and
    will not apply those arising from the Convention unless there is no Community
    rule governing the particular subject concerned.
 ---pagebreak---          The Convention is open for signing by the member countries of the Council of
         Europe, the other countries party to the European Cultural Convention and the
         European Community. It will come into force on the first day of the month
         following the expiry of a period of three months after the date on which
         seven countries, including at least five member countries of the Council of
         Europe, have expressed their consent to be bound by the Convention.
         Application of the Convention by the parties to it is not of such a kind as to alter
         the protection of copyright and neighbouring rights in the field of cross-frontier
         broadcasting by satellite afforded by those parties, under the Agreement on
         Trade-related Aspects of Intellectual Property Rights (TRIPs), to the other
         signatories to the Agreement establishing the World Trade Organization. The
         Community must, in any event, ensure that application of the Convention is fully
         consistent with the provisions of the TRIPs Agreement, and in particular the
         national-treatment and most-favoured-nation clauses.
4.       COMPETENCE IN CONNECTION WITH THE CONCLUSION OF THE CONVENTION
It will be seen from the above that the Convention seeks to extend to European level the
pursuit of the objectives set regarding satellite broadcasting in the context of intellectual
property by Directive 93/83/EEC on the basis of Articles 57(2) and 66 of the Treaty.
The subject-matter of the Convention falls largely within the scope of
Directive 93/83/EEC.
In its Opinion 1/94, delivered on 15 November 1994, on the division of competence
between the Community and the Member States regarding the conclusion of the WTO
Agreement and its annexes, the Court of Justice confirmed5 the application, in the
intellectual property sphere, of the AETR judgment, delivered on 31 March 1971 in
Case 22/70.6
In that judgment,7 the Court stressed that the Community's authority to enter into
international agreements arose not only from an express conferment by the Treaty but
could equally flow from other provisions of the Treaty and from measures adopted,
within the framework of those provisions, by the Community institutions: "In particular,
each time the Community, with a view to implementing a common policy envisaged by
the Treaty, adopts provisions laying down common rules, whatever form these may take,
the Member States no longer have the right, acting individually or even collectively, to
undertake obligations with third countries which affect those rules. As and when such
common rules come into being, the Community alone is in a position to assume and carry
out contractual obligations towards third countries affecting the whole sphere of
application of the Community legal system."
         Paragraph 102 of Opinion 1/94.
         [1971] ECR263.
        Paragraphs 16, 17 and 18 of the AETR judgment.
 ---pagebreak---  According to the Court,8 to the extent to which Community rules are promulgated for the
 attainment of the objectives of the Treaty, the Member States cannot, outside the
 framework of the Community institutions, assume obligations which might affect those
rules or alter their scope.
In transposing the principles laid down by the Court to the European Convention, it can
be concluded that, since the subject-matter of that Convention falls to a large extent
wkhin the scope of Directive 93/83/EEC, the Community has, since the date on which
that Directive came into force, been empowered to the same extent to negotiate and agree
the Convention. These Community powers exclude the possibility of concurrent powers
on the part of Member States, since any steps taken outside the framework of the
Community institutions would be incompatible with the unity of the common market and
the uniform application of Community law.9
However, this conclusion must be qualified in the light of Opinion 2/91, delivered by the
Court on 19 March 1993, on Convention No 170 of the International Labour
Organization (ILO) concerning safety in the use of chemicals at work.10 That
qualification relates to the protection of the rights of performers and phonogram
producers in connection with communication to the public by satellite. As pointed out
above, Directive 93/83/EEC provides in this context for minimum protection and gives
Member States the option of providing more far-reaching protection for those
right-holders.
In Opinion 2/91, the Court, having noted that Convention No 170 of the ILO fell within
the Community's area of competence, took the view that that competence could not be
exclusive since the Community rules adopted in that connection laid down minimum
requirements.11 On the basis of that conclusion, the Court pointed out that the provisions
of Convention No 170 are not of such a kind as to affect rules adopted pursuant to
Article 118a. If, on the one hand, the Community decides to adopt rules which are less
stringent than those set out in an ILO convention, Member States may, in accordance
with Article 118a(3), adopt more stringent protective measures as regards working
conditions or apply to that end the ILO convention. If, on the other hand, the Community
decides to adopt more stringent measures than those provided for under an
ILO convention, there is nothing to prevent full application of Community law by the
Member States under Article 19(8) of the ILO Constitution, which allows members to
adopt more stringent measures than those provided for in conventions or
recommendations adopted by that organization.
        Paragraph 22 of the AETR judgment.
        Paragraphs 30 and 31 of the AETR judgment.
        [1993] ECR 1061.
        Paragraphs 18 and 21 of Opinion 2/91.
 ---pagebreak---  In transposing the Court's line of argument in Opinion 2/91 to the situation under
 examination, it should be noted that the conclusion of an international convention of the
type in question cannot be of such a kind as to affect rules adopted at Community level as
regards the particular aspect - mentioned above - of protecting the rights of performers
and phonogram producers in connection with communication to the public by satellite. If
the Convention provides for more far-reaching protection than the Community Directive,
Member States may apply the Convention without infringing the Directive since that
Directive provides for minimum protection. If, on the other hand, the Convention
provides for less far-reaching protection, there is nothing to prevent full application of
Community law by Member States because Article 1 of the Statute of the Council of
Europe stipulates that the participation of members in the Council's work should not
affect their contribution to the work of international unions to which they are party.
It is clear from the above that the powers to conclude the Council of Europe Convention
described above belong jointly to the Community and its Member States.
5.       PROCEDURE WHEREBY THE COMMUNITY CAN CONCLUDE THE CONVENTION
Under Article 10 of the Convention, the Member States of the Council of Europe and the
other States party to the European Cultural Convention, and the European Community
may express their consent to be bound by:
(a)      signature without reservation as to ratification, acceptance or approval, or
(b)      signature subject to ratification, acceptance or approval.
The number of Member States which have signed the Convention is not very high at
present, so it would seem premature for the Community to sign the instrument without a
reservation as to approval.
The Community should approve the Convention at a later stage, at a time chosen to
reflect the desire for coordinated action between the Community and those of its
Member States ready to conclude the Convention in the near future.
Nevertheless, to mark the Community's presence within the Council of Europe and to
underscore the importance it attaches to the Convention, the Council should now sign the
instrument, subject to approval.
6.       PROPOSAL
Accordingly, it is proposed that the Council:
         decide to sign, subject to approval, the European Convention relating to questions
         on copyright law and neighbouring rights in the framework of transfrontier
         broadcasting by satellite where matters falling within the scope of Community
         law are concerned and, to that end, authorize the President of the Council to
         designate the person or persons authorized to sign the instrument;
 ---pagebreak--- decide at a later stage to approve the Convention on the basis of Articles 57(2)
and 66, read in conjunction with the first sentence of Article 228(2) and the first
subparagraph of Article 228(3) of the Treaty, after consulting the European
Parliament.
 ---pagebreak---                Proposal for a Council Decision authorizing the signing,
        on behalf of the European Community, of the European Convention
           relating to questions on copyright law and neighbouring rights
              in the framework of transfrontier broadcasting by satellite
The Decision of the Council of the European Union will take the form of a statement to
be entered in the minutes of its meeting.
"At the meeting on                  , the Council of the European Union decided:
•      to sign, subject to approval, on behalf of the Community, the European
       Convention relating to questions on copyright law and neighbouring rights in
       the framework of transfrontier broadcasting by satellite, adopted by the Council
       of Europe on 16 February 1994;
•      to authorize its President to designate the persons authorized to sign the
       Convention.
The text of the European Convention is annexed to this Decision. "
 ---pagebreak---          Proposal for a Council Decision approving the European Convention
             relating to questions on copyright law and neighbouring rights
                in the framework of transfrontier broadcasting by satellite
                                                                     9 6 | o o 1 ^        (CMS\
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular
Articles 57(2) and 66, read in conjunction with the first sentence of Article 228(2) and
the first subparagraph of Article 228(3) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament,
Whereas Council Directive 93/83/EEC of 27 September 1993 on the coordination of
certain rules concerning copyright and rights related to copyright applicable to satellite
broadcasting and cable retransmission,1 which is based on Articles 57(2) and 66 of the
Treaty, is designed to promote freedom to broadcast programmes in the Community;
whereas, to that end, it reduces the disparities between national rules relating to copy-
right and neighbouring rights and removes the legal uncertainty regarding the rights to
be acquired by defining communication to the public by satellite at Community level
and the place of the act of communication;
Whereas the European Convention relating to questions on copyright law and
neighbouring rights in the framework of transfrontier broadcasting by satellite, which
was adopted by the Council of Europe on 16 February 1994 and signed by the Council
of the Union on behalf of the European Community on                              , is designed
to extend to European level the pursuit of the objectives set by Directive 93/83/EC
regarding satellite broadcasting in the intellectual property sphere;
Whereas, according to the AETR case-law of the Court of Justice,2 each time the
Community, with a view to implementing a common policy envisaged by the Treaty,
adopts provisions laying down common rules, whatever form these may take, the
Member States no longer have the right, whether acting individually or collectively, to
undertake obligations with third countries which affect those rules; whereas, as and
when such common rules come into being, the Community alone is in a position to
assume and carry out contractual obligations towards third countries affecting the
whole sphere of application of the Community legal system;3
Whereas the subject-matter of the European Convention falls largely within the scope
of Directive 93/83/EEC;
        O J N o L 2 4 8 , p. 15.
        Judgment delivered on 31 March 1971 in Case 22/70 ([1971] ECR 263) and confirmed by the
        Court of Justice in its Opinions 2/91 of 19 March 1993 ([1993] ECR 1061) and 1/94 of
        15 November 1994, not yet published.
        Paragraphs 17 and 18 of the AETR judgment.
                                                                                             ^ O
 ---pagebreak--- Whereas it follows that the powers to conclude the above-mentioned European
Convention belong jointly to the Community and its Member States;
Whereas the Convention should, therefore, be approved on behalf of the
European Community in respect of those fields falling within the scope of Community
law,
HAS DECIDED AS FOLLOWS:
                                        Article 1
The European Convention relating to questions on copyright law and neighbouring
rights in the framework of transfrontier broadcasting by satellite is hereby approved on
behalf of the European Community.
The text of the Convention is attached to this Decision.
                                        Article 2
The President of the Council is hereby authorised to deposit this instrument of approval
with the Secretary General of the Council of Europe.
Done at Brussels,
                                                    For the Council
                                                    The President
                                                                                    n '1
 ---pagebreak---  ---pagebreak--- COUNCIL OF EUROPE
   European Convention relating to questions on copyright law and
 neighbouring rights in the framework of transfrontier broadcasting by
                                satellite
Strasbourg, 11.5.1994
European Treaty Series /153
                                                                    1Z
 ---pagebreak--- Preamble
The member States of the Council of Europe and the other States Party to the European
Cultural Convention, signatory hereto,
Considering that the aim of the Council of Europe is to achieve a greater unity between its
members for the purpose of safeguarding and realising the ideals and principles which are
their common heritage and facilitating their economic and social progress;
Recalling their commitment to freedom of expression and information and the free flow of
information and ideas as expressed, in particular, in the Declaration of 29 April 1982 of the
Committee of Ministers of the Council of Europe on the freedom of expression and
information;
Bearing in mind the concerns which inspired the adoption, by the Committee of Ministers,
of Recommendation No. R (86) 2 on principles relating to copyright law questions in the
field of television by satellite and cable, notably the need to safeguard the rights and interests
of authors and other contributors when protected works and other contributions are broadcast
by satellite;
Having regard to technical developments, in particular in the field of broadcasting by
satellite, which have resulted in the blurring of the technical differences between direct
broadcasting satellites and fixed service satellites, making it necessary to consider further
legal aspects of broadcasting by satellite from the viewpoint of copyright law and
neighbouring rights;
Bearing in mind, at the same time, the need not to hamper these new technical developments
as well as the interest of the general public in having access to the media;
Concerned to promote the broadest possible harmonisation of the law of the member States,
and the other States Party to the European Cultural Convention, on copyright and neigh-
bouring rights with regard to new technical developments in the field of broadcasting by
satellite,
Have agreed as follows:
For the purposes of copyright and neighbouring rights:
                                                                                            13
 ---pagebreak---                         Chapter I - The notion and act of broadcasting
 Article 1 - The notion of broadcasting
 1. The transmission of works and other contributions by direct broadcasting satellite is
 broadcasting.
 2. The transmission of works and other contributions by fixed service satellite under
 conditions which, as far as individual direct reception by the general public is concerned, are
 comparable to those prevailing in the case of direct broadcasting satellites, shall be treated as
broadcasting.
3. The transmission of programme-carrying signals in encrypted form is considered to be
broadcasting, in cases where the means for decoding the broadcast are made available to the
general public by the broadcasting organisation, or with its consent.
Article 2 - The act of broadcasting
An act of broadcasting by satellite shall be considered to comprise both the up-link to the
satellite and the down-link to the earth.
                                Chapter II -The applicable law
Article 3 - The applicable law
 1. A transmission of works and other contributions covered by Article 1 occurs in the State
Party in the territory of which the transmission originates and, therefore, shall be governed
exclusively by the law of that State.
2. The State Party in the territory of which the transmission originates means the State Party
in which the programme-carrying signals transmitted by satellite are introduced, under the
control and responsibility of the broadcasting organisation, into an uninterrupted chain of
communication via the up-link and down to the earth.
3. When the transmission originates in a State which is not a party to this Convention, the
law of which does not provide the level of protection of right holders foreseen in Articles 4
and 5 of this Convention, and when the programme-carrying signals are transmitted by
satellite from an up-link station situated in a State Party to this Convention, the transmission
shall be deemed to originate in the State Party concerned. Such shall also be deemed to be
the case when a broadcasting organisation established in a State Party to this Convention is
responsible for the transmission.
Article 4 - Copyright
1. Authors of works mentioned in Article 2 of the Berne Convention for the Protection of
Literary and Artistic Works shall, as far as transfrontier broadcasting by satellite is
concerned, be protected in conformity with the provisions of that Convention (Paris Act,
1971). In particular, rights for transfrontier broadcasting by satellite concerning such works
shall be acquired contractually.
 ---pagebreak--- 2. Subject to the provisions of paragraph 3 and where the relevant applicable law according
to Article 3 of this Convention has already provided so on the date of opening for signature
of this Convention, a collective agreement concluded with a broadcasting organisation for a
given category of works may be extended to right-holders of the same category who are not
represented, on the following conditions:
- a non-represented right-holder, at any time, shall have the possibility of excluding, in his
respect, the effect of an extended collective agreement and of exercising his rights on an
individual basis. He may do so himself or through a collective organisation entitled to
manage his rights;
- the transmission by satellite shall simulcast a terrestrial broadcast by the same broadcasting
organisation.
3 The preceding paragraph shall not apply to cinematographic works, including works
created by a process analogous to cinematography.
4 Where a State Party's legislation provides for the extension of a collective agreement in
accordance with the provisions of paragraph 2, that State Party shall determine the
broadcasting organisations entitled to avail themselves of such legislation
Article 5 - Neighbouring rights
 1. As far as transfrontier broadcasting by satellite is concerned, performers, producers of
phonograms and broadcasting organisations from States Parties to this Convention shall be
protected, as a minimum, in accordance with the provisions of the Rome Convention for the
Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961 )
2. However, for the purposes of the present Convention, the rights of performers regarding
the fixation and the reproduction of their performance shall be exclusive rights to authorise
or prohibit. The same applies to the rights of performers concerning the broadcasting and the
communication to the public of their performance, except where the performance is itself
already a broadcast performance or made from a fixation.
3. A State Party shall not avail itself of the faculty provided for under Article 19 of the Rome
Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (1961).
4. Without prejudice to the provisions of the preceding paragraph, a State Party may provide
that the signing of a contract concluded between a performer and a film producer concerning
the production of a film has the effect of authorising the acts mentioned in the preceding
paragraph provided that such contract provides for an equitable remuneration which cannot
be waived by the performer.
5. For the purposes of this Convention, when phonograms published for commercial
purposes, or reproductions thereof, are used for transfrontier broadcasting by satellite, States
Parties shall provide a right under their national legislation in order to ensure that a single
equitable remuneration is paid by the broadcasting organisation concerned and that this
remuneration is shared between the relevant performers and producers of such phonograms.
                                                                                           -1-T
 ---pagebreak---                                 Chapter III - Field of application
 Article 6 - Retransmission
 The simultaneous, complete and unchanged retransmission by terrestrial means of
broadcasts by satellite are not, as such, covered by this Convention.
                             Chapter IV- Multilateral consultations
Article 7 - Multilateral consultations
 1. The Parties shall, within two years from the entry into force of this Convention and every
two years thereafter, and, in any event, whenever a Party so requests, hold multilateral
consultations withn the Council of Europe to examine the application of this Convention
and the advisability of revising it or extending any of its provisions. These consultations
shall take place at meetings convened by the Secretary General of the Council of Europe.
2. Each Party shall have the right to appoint a representative to participate in these
consultations. Any State referred to in Article 10 of this Convention, which is not a party to
the Convention, and the European Community, shall have the right to be represented by an
observer in these consultations.
3. After each consultation, the Parties shall forward to the Committee of Ministers of the
Council of Europe a report on the consultation and on the functioning of the Convention,
including, if they consider it necessary, proposals for the amendment of the Convention.
                                    Chapter V - Amendments
Article 8 - Amendments
1. Any proposal for the amendment of this Convention made in accordance with the
provisions of Article 7, paragraph 3, of this Convention, shall be subject to the approval of
the Committee of Ministers of the Council of Europe. After its approval, the text shall be
forwarded to the Parties for acceptance.
2. Any amendment shall enter into force on the thirtieth day after all the Parties have
informed the Secretary General of their acceptance thereof.
                Chapter VI - Other international agreements or arrangements
Article 9 - Other international agreements or arrangements
1. In their mutual relations, Parties which are members of the European Community shall
apply Community rules and shall not therefore apply the rules arising from this Convention,
except in so far as there is no Community rule governing the particular subject concerned.
                                                                                          AG
 ---pagebreak--- 2. Parties reserve the right to enter into international agreements among themselves in so far
as such agreements grant to authors, performers, producers of phonograms or broadcasting
organisations at least as extensive protection of their rights as that granted by this Convention
or contain other provisions supplementing this Convention or facilitating the application of its
provisions. The provisions of existing agreements which satisfy these conditions shall remain
applicable.
3. Parties which avail themselves of the faculty provided for in the preceding paragraph shall
notify the Secretary General of the Council of Europe who shall transmit this notification to
the other Parties to this Convention
                                    Chapter VII- Final clauses
Article 10 - Signature and entry Into force
1 This Convention shall be open for signature by the member States of the Council of
Europe and the other States party to the European Cultural Convention, and by the European
Community, which may express their consent to be bound by:
a signature without reservation as to ratification, acceptance or approval; or
b signature subject to ratification, acceptance or approval, followed by ratification, accep-
tance or approval.
2 Instrument of ratification, acceptance or approval shall be deposited with the Secretary
General of the Council of Europe.
3 The Convention sha'l enter into force on the first day of the month following the expiration
of a period of three months after the dare on which seven States, of which at least five
member States of the Council of Europe, have expressed their consent to be bound by the
Convention in accordance with the provisions of this article.
4 In order to avoid any delay in the implementation of this Convention, a State may, at the
time of signature or at any later date prior to the entry into force of the Convention in respect
of that State, declare that it shall apply the Convention provisionally.
5. In respect of any signatory State, or the European Community, which subsequently
expresses its consent to be bound by it, this Convention shall enter into force on the first day
of the month following the expiration of a period of three months after the date of signature
or of the deposit of the instrument of ratification, acceptance or approval.
Article 11. - Accession by other States
1. After the entry into force of this Convention, the Committee of Ministers of the Council of
Europe, after consulting the Contracting States, may invite any State which is not referred to
in Article 10, paragraph 1, to accede to the Convention by a decision taken by the majority
provided for in Article 20 d of the Statute of the Council of Europe and by the unanimous
vote of the representatives of the Contracting States entitled to sit on the Committee of
Ministers
                                                                                            11
 ---pagebreak--- 2. In respect of any acceding State, the Convention shall enter into force on the first day of
the month following the expiration of a period of three months after the date of the deposit of
the instrument of accession with the Secretary General of the Council of Europe.
Article 12 - Territorial application
 1. Any State may, at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, specify the territory or territories to which this
Convention shall apply.
2. Any State may, at any later date, by declaration addressed to the Secretary General of the
Council of Europe, extend the application of this Convention to any other territory specified
in the declaration. In respect of such territory the Convention shall enter into force on the
first day of the month following the expiration of a period of three months after the date of
receipt of such declaration by the Secretary General.
3. Any declaration made under the two preceding paragraphs may, in respect of any territory
mentioned in such declaration, be withdrawn by a notification addressed to the Secretary
General. Such withdrawal shall become effective on the first day of the month following the
expiration of a period of six months after the date of receipt of the notification by the
Secretary General.
Article 13 - Transitional arrangements
A State shall, at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, specify what rules shall apply to existing contracts. These
rules should provide in particular that:
a. agreements concerning the exploitation of works and other protected subject matter which
are in force on 1 January 1995 shall be subject to the provisions of Article 3 as from 1
January 2000, if they expire after that date;
b. where an international co-production agreement concluded before 1 January 1995 between
a co-producer from a State Party and one or more co-producers from other States Parties or
a third State expressly provides for a system of division of exploitation rights between the
co-producers by geographical areas for all means of communication to the public, without
distinguishing the arrangement applicable to communication to the public by satellitefromthe
provisions applicable to the other means of communication, and where communication to the
public by satellite of the co-production could prejudice the exclusivity, in particular the
language exclusivity of one of the co-producers or his assignees in a given territory, the
authorisation by one of the co-producers or his assignees for a communication to the public
by satellite shall require the prior consent of the holder of that exclusivity, whether
co-producer or assignee.
Article 14 - Reservations
No reservation may be made in respect of the provisions of this Convention.
                                                                                         •18
 ---pagebreak--- Article 15 - Notification of legislation
A State, the legislation of which provides for the extension of collective agreements, as
foreseen in Article 4 of this Convention, shall, at the time of signature, ratification,
acceptance or approval in accordance with Article 10, paragraph l.a or b, notify to the
Secretary General of the Council of Europe the text of the said legislation, together with a
list of broadcasters entitled to avail themselves of such extended collective agreements.
Thereafter, the State concerned shall notify the Secretary General of the Council of Europe
of any subsequent modification of the said legislation and of the list of broadcasters entitled
to avail themselves of it.
Article 16 - Denunciation
1. Any Party may, at any time, denounce this Convention by means of a notification
addressed to the Secretary General of the Council of Europe.
2. Such denunciation shall become effective on the first day of the month following the
expiration of a period of six months after the date of receipt of the notification by the
Secretary General
Article 17- Notifications
The Secretary General of the Council of Europe shall notify the member States of the
Council of Europe, the other States Party to the European Cultural Convention, the European
Community and any other State which has acceded or has been invited to accede to this
Convention of:
a any signature in accordance with Article 10;
b. the deposit of any instrument of ratification, acceptance, approval or accession in
accordance with Articles 10 or 11 :
c. any date of entry into force of this Convention in accordance with Articles 10 or 11;
d. any notification made in accordance with Articles 10, paragraph 4 and 15;
e. any other act, declaration, notification or communication relating to this Convention.
In witness whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at Strasbourg, this 11th day of May 1994, in English and French, both texts being
equally authentic, in a single copy which shall be deposited in the archives of the Council of
Europe. The Secretary General of the Council of Europe shall transmit certified copies to
each member State of the Council of Europe, to the other States party to the European
Cultural Convention, to the European Community and to any State invited to accede to this
Convention.
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 ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                              COM(96) 6 final
                                              DOCUMENTS
EN                                                                       06 16
                                     Catalogue number : CB-CO-96-010-EN-C
                                                             ISBN 92-77-99481-9
Office for Official Publications of the European Communities
L-2985 Luxembourg
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