On 7 June 2019 a  European Directive came into force amending the 1993 ‘Cable and Satellite’ Directive. Its effect was to:

  • extend the EEA ‘country of origin’ rights clearance principle to a limited set of online broadcast and catch-up services;
  • extend the mandatory collective rights management of retransmission from cable distribution to all forms of retransmission; and
  • provide statutory clarification of the legal treatment of ‘direct injection’.

What is the reasoning behind the reform?

In an ever growing digital world, consumers are moving away from their traditional satellite or cable radio and television sets in favour of online television and radio content. This  trend left the 1993 Directive (which only facilitates cross-border cable and satellite broadcasting) outdated.

What are the key reforms?                     

  • Extension of the ‘country of origin’ principle to online simulcasts and/or catch-up services of a defined class of television and radio programmes –  ‘ancillary online services’;
  • Extension of the system of mandatory collective rights management for broadcast retransmission from cable distribution to any  retransmission of non-online originated transmissions – including retransmission via satellite, DTT, IPTV, mobile or the internet; and
  • Provision of statutory clarification of the legal treatment of ‘direct injection’.

What is the ‘Country of Origin’ principle and where does it stem from?

Broadcasting organisations transmit programmes containing a broad range of copyright protected content. As a result, broadcasters are faced with a complex web of rights to clear prior to a broadcast or transmission. This complexity only increases when the broadcast travels across multiple territories with differing local requirements.

The ‘Country of Origin’ principle facilitates cross-border rights clearance process by providing that EEA based broadcasters need only clear transmission rights  (i.e. the act of communication to the public) in their country of principal establishment instead of every EU Member State in which they wish to make the programme available. The legal mechanism used to achieve that outcome is that the Directive deems that the act of ‘making available to the public’, which would otherwise be reserved to the rights holder and require clearance in every Member State, takes place solely in the Member State in which the broadcaster has its principle EEA establishment.

The extension of the country of origin principle in the new Directive applies only to the following (limited) set of online audio-visual programmes:

  • Radio programmes;
  • News and current affairs television programmes; and
  • Productions which are exclusively financed by the broadcasting organisation.

The principle will not extend to broadcasts of sports events, TV productions acquired from third parties or commissioned by the broadcasting organisations from independent producers, and broadcasters are under no obligation to apply the principle.

How will the system of mandatory collective rights management be extended?

Under the 1993 Directive, cable operators benefit from mandatory collective rights management of retransmission rights. The new Directive extends this to other retransmissions on a technology-neutral basis, provided that the original transmission was not purely online. This simplifies the rights clearance process and facilitates cross-border access to content by allowing retransmission operators to clear the necessary rights with only the broadcaster and collective management organisation rather than each individual rightholder separately.

How has the new Directive clarified the principle of ‘Direct Injection’?

‘Direct injection’ is a process whereby broadcasters use a distributor for transmission of their programmes to the public. The new Directive confirms that when broadcasters transmit their programme-carrying signals to a distributor (and do not also directly communicate to the public), and the distributor transmits those programme-carrying signals directly to the public, the broadcaster and distributor will be deemed to have participated in a single act of communication to the public. This will, of course, require the relevant rightholder authorisation. This new provision ensures that rightholders receive adequate remuneration for their works when transmitted in this manner.

What happens now?

Member States have until 7 June 2021 to implement the new Directive at a national level. Of course the fate of the new EU broadcasting laws in the UK largely rests on the outcome of Brexit.