The draft regulation on facilitating the broadcasting of copyright protected audiovisual content still has a long way to go.
A copy of the report by Tiemo Wölken (S&D, Germany) has been obtained by EUROPE and proposes to include linear services covered in the scope of the regulation. This proposal had, however, been rejected a few days earlier during the internal market and consumer protection committee (IMCO), which had been consulted for its opinion (see EUROPE 11787).
The proposal was published in the middle of September 2016 and seeks to promote the provision of online ancillary services in broadcasts and to facilitate digital retransmissions over closed networks of TV and radio programmes originating in other member states (see EUROPE 11624). In practice, the Commission is proposing to apply the country of origin principle enshrined in the Satellite and Cable Directive (Directive 93/83/EEC) to content broadcast on the Internet live or by catch up through online alternative broadcasters such as MyTFI. It also introduces specific rules for compulsory collective management for retransmission services provided by closed networks (apart from cable).
The draft report put together by Tiemo Wölken for the legal affairs committee (JURI) (for the main part) – and the reasons explaining the reasons for the report (currently available only in German) – goes a step further than the European Commission proposal.
Broader scope
Tiemo Wolken is proposing to cover linear and non-linear programmes, including those that are “genuinely and exclusively produced for the digital environment” and to introduce a time limit for catch up services. Contrary to the Commission, it believes that retransmission services proposed on an open Internet, “should not be excluded from the scope of this Regulation, unless their ability to ensure a controlled environment is significantly limited”. It also explains that this condition is only fulfilled when the user is registered or has a subscription. It also emphasises that the country of origin principle applies to films and television series and episodes that are purchased and not productions that have been commissioned three years after the date of entry into force of these new rules.
Compensation for rights holders
The draft report explains that remuneration must reflect the cross-border aspect of the broadcast and take into account its features, the potential size of the audience, relevant language versions and the duration of online availability. The proposal could also generate “additional licensing revenues” for the rights holders when the “country of origin” principle exists in favour of broadcasters. Additional revenues, according to the report, should be higher for niche artistic content.
Jurisdiction: preventing “forum shopping”
MEP Wölken applies direct responsibility for broadcasting bodies that transmit their programme frequencies through a direct injection process for distributors and where broadcasters and distributors are both responsible for copyright questions (Directive 2001/29/EC). It also includes several provisions in a clause to tackle forum shopping more effectively. It therefore highlights the fact that the country of origin does not apply to online services that are mainly or exclusively aimed at public audiences other than that in the member state in which the broadcasting body is mainly located and that the features of the service and the languages can be used to help develop this kind of assessment. It clarifies the fact that any dispute relating to rights resulting from the present article will be covered by the courts of the member state in which the broadcasting body is officially established.
Tiemo Wölken’s report concludes with a suggestion of the new text being assessed five years (not three years as proposed by the Commission) after it enters into force. He explains that this assessment should help check whether the “the country of origin” has not been extended to other online platforms.
The report by Tiemo Wölken will be examined by the JURI Committee on 29 May. The date for submitting amendments has been set for 22 June and the vote is planned for 20 September, according to the provisional calendar of the parliamentary committee. It should be pointed out that the IMCO committee had already given its opinion on 11 May (see EUROPE 11787) to limit the services affected by the regulation to programes broadcast, “a month before, at the same time, during or for a period of time defined after the broadcast”.
The vote by the CULT (committee also involved) and ITRE committees are both planned for 21 June.
The draft ‘Wölken’ report is available at: http://bit.ly/2riJIoP (Original version in French by Sophie Petitjean)