The negotiating positions of the European Parliament and the Council of the EU on ending audiovisual geo-blocking are expected to be announced this week.
MEPs are expected to make their announcement at the plenary on 12 December and the Estonian Presidency of the Council will submit a proposal for a mandate to the Committee of Permanent Representatives to the EU (Coreper). This mandate will also limit the scope of the country of origin principle.
It should be recalled that the legislative proposal seeks to promote the cross-border provision of ancillary online services and facilitate the digital retransmission of television and radio from other member states (see EUROPE 11624).
Country of origin principle
On Friday, the Estonian Presidency will suggest to Coreper that it reduce the scope of the country of origin principle (article 2). Under the terms of this principle, the copyright applicable to satellite broadcasts will only apply to the “country of origin” of the emission and not for the countries receiving the signal.
The Presidency is effectively proposing to exclude all sports events disseminated on the radio or television. For TV programmes specifically, it is suggesting the exclusion of all content conferred to a broadcasting body by a third-party. In other words, for televised programmes, the application of the country of origin principle will be limited: (1) to programmes that are produced and financed exclusively by a broadcasting body, (2) exclusively commissioned and owned by this kind of body or (3) co-produced by the broadcasting body (with the exclusion of co-produced films and television series).
For these kinds of co-productions, the draft compromise explains that the country of origin principle should not affect, “agreements concluded by the co-producers and their respective territorial use of these rights”.
It should be pointed out that the report adopted by Parliament's legal affairs committee (JURI) on 21 November – which could be reopened following a vote at the plenary on 12 December on the negotiating mandate – limits the application of the country of origin principle to news and current affairs programmes (see EUROPE 11909).
Other provisions
On retransmission (article 3), the Estonian Presidency is proposing a distinction between the obligations of rights holders and those of the broadcasting bodies. It is therefore maintaining – similarly to the JURI Committee – the obligation on rights holders to go through a collective management company to manage the retransmission of protected content.
Nonetheless, according to the draft Estonian compromise, if several collective management companies are active within the same content category, it will be the member state (and no longer the holder, as proposed by the Commission and retained by the JURI Committee) to choose the competent collective management company.
In the new article 4, the Presidency exempts the broadcasting bodies whose content is to be retransmitted, from going through a collective management company. In article 4a it also explains that the member states can apply the provisions of the regulation to situations where the initial transmission and retransmission occurs in the same member state.
For all other questions, the Presidency follows the position of the JURI Committee by modifying the transposition period to 18 months instead of the six months proposed by the Commission. As opposed to the MEPs, Tallinn is not suggesting any provision to tackle the phenomena of direct injection (this allows broadcasters to directly relay their programmes to retransmission networks).
Next steps
During its plenary session on 12 December, the European Parliament will give its verdict on the negotiating mandate for the JURI Committee. If a majority of MEPs reject it, the dossier will be reopened and the MEPs will be able to submit new amendments that will definitely be put to a vote at the January plenary (article 69c of the internal regulation of the Parliament).
On 15 December, the Committee of Permanent Representatives to the EU at the Council will be invited to reach a position on the draft Estonian compromise. If there is a qualified majority of member states, the forthcoming Bulgarian Presidency will be able to begin negotiations with the Parliament on this basis at the beginning of 2018. It is quite possible that Tallinn will add changes to the text in an effort to obtain as broad a majority of states as possible in an effort to obtain a common formulation.
To see the Estonian proposal: http://bit.ly/2Bz7gOE (Original version in French by Sophie Petitjean)