Commentary on Copyright and Related Rights applicable to Certain Online Transmissions of Broadcasting Organisations and Retransmissions of Television and Radio Programmes Regulations

NEWS

02 Jul 2021

Nowadays users increasingly expect to have access to television and radio programmes both live and on demand. This has brought about the rise of use of online services ancillary to broadcasts, such as simulcasting and catch-up services. With the large variety of content being distributed, the use of such services would entail a complex process of clearing rights from authors, performers, and producers, especially since the authorizations required would differ according to territory. This has given rise to a significant rights clearance burden, as the rights would often need to be cleared in a short time frame, particularly in relation to news or current affairs programmes.

Legislative intervention was sought out to streamline the process, with the hopes of diminishing the risk of protected subject matter being used without authorization or appropriate remuneration. This was required since 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 merely applied to the retransmission by cable of television and radio programmes. It was silent about online services having the aim of giving users access to television and radio programmes, as well as previewing, extending, reviewing, or supplementing the programmes’ content (‘simulcasting’ and ‘catch-up services’).

DIRECTIVE AND REGULATIONS

This led to the adoption of Directive (EU) 2019/789 of The European Parliament and of The Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, (“Directive”). The Directive seeks to improve the cross-border availability of television and radio programmes in European Union Member States, thereby contributing to the proper functioning of the internal market as well as the digitization of the Union. This objective is achieved through facilitating the control of use of work and remuneration granted to performers, producers and broadcasters as well as facilitating the licensing of copyright and related rights contained in broadcasts of certain TV and radio types. No novel concepts were introduced. Instead, pre-existing concepts found in Council Directive 93/83/EEC, meaning the country-of-origin principle and mandatory collective exercise of cable rights, were extended to apply to the digital world.

In Malta, this Directive has been transposed by means of L.N. 234 of 2021, Copyright and Related Rights applicable to Certain Online Transmissions of Broadcasting Organisations and Retransmissions of Television and Radio Programmes Regulations (“Maltese Regulations”). As in the Directive, four key areas are outlined:

  1. 1. The country-of-origin rights clearance principle;
  2. 2. Mandatory collective rights management for retransmissions;
  3. 3. Direct injection; and
  4. 4. Application and transition.

(1) COUNTRY OF ORIGIN PRINCIPLE

Article 3 of the Maltese Regulations sets out the country-of-origin principle, which requires broadcasters to obtain authorization only in the Member State where they have their principle establishment. Thus, a legal fiction is created, deeming acts of communication to the public and the rights implicated thereto, to take place solely in that Member State. This simplifies the lengthy process of clearing rights from authors (in respect of the original and copies of their work), performers (in respect of fixations of their performances), phonogram producers (in respect of their phonograms) and producers of the first fixation of a film (in respect of the original and copies of films).

This principle applies exclusively to the relationship between rights holders or entities representing organizations and broadcasters. Moreover, it applies only to:

  • ancillary online service by or under the broadcasting organization’s control and responsibility or;
  • reproduction of works which are necessary for the provision of, access to or use of such online service for the same programmes;

and;

  • to radio programmes and television programmes which are news and current affairs programmes or;
  • fully financed own productions of the broadcasting organization (excluding sports events) – this would exclude independent productions and co-productions.

When computing the payable compensation for rights, all the aspects of the ancillary online service should be considered including:

  • the duration of online availability of programmes provided in the service,
  • the audience; and
  • the language versions provided.

Issues may arise due to the lack of definition of broadcasting organization both in the Directive as well as the Maltese Regulations. Whilst this may be straightforward in relation to licensing of content by producers directly to vertically integrated pay TV-platforms, in the case of channel providers which are distinct from the pay-TV platform, it may be unclear whether the broadcasting organization should be the channel provider or the pay-TV platform.

Furthermore, the principle’s application is very limited, affecting only broadcasting organisation’s own ancillary services, which contains a very narrow range of content (news and current affairs programmes and broadcasters’ own productions). It does not seem to apply for broadcasters’ licensing their own or acquired content to another platform, for an ancillary service which is not their own.

(2) MANDATORY COLLECTIVE RIGHTS MANAGEMENT FOR RETRANSMISSIONS

Article 4 of the Maltese Regulations stipulates that rightholders may only exercise their right to grant or refuse the authorization for a retransmission by delegating this responsibility to a collective management organization, meaning an organization collecting, managing and distributing earnings from the exploitation of rights. Since Directive 93/83/EEC already deals with retransmission via cable, the retransmission referred to here is held via the open internet, such as parallel transmissions/ simulcasting or catch-up services when consumers can view/listen to programmes at a time later than the original broadcast. This is if this takes place within a secure environment and to a group of authorized users.

If the rightholder has not delegated such management, the organization having the right to grant or refuse authorization shall be deemed to be the one which manages the rights of the same category for Malta. The rightholder would have a period of three years to claim his rights under the agreement between the organization and the broadcasting organization. This would start to apply from the date of transmission pertaining his/ her work or other protected subject matter.

This provision is meant to facilitate obtaining copyright holders’ authorization for the retransmission of radio and television programmes from different Member States. In order to continue facilitating such matters, it is stipulated that where no agreement is concluded between the collective management organization and the operator of a retransmission service, either party may call upon the assistance of one or more mediators, appointed by Malta Mediation Centre. Moreover, it is required that negotiations between broadcasting organisations and retransmission operators are conducted in good faith which is not strictly speaking a requirement under Maltese law in other contexts.

Whilst this provision could diminish the effects of the significant rights clearance burden, mandatory collective rights management could potentially also limit the ability of individual right holders to license their content directly, undermine the value of individual works and hinder the ability of producers to directly negotiate the terms of use with regard to content protection. Accordingly, as Recital 25 points out, the application of this mechanism had to be restricted so that it did not interfere with rights and principles recognized in the Charter of Fundamental Rights of the EU.

In fact, three restrictions are being imposed on the application of the mandatory collective management mechanism;

  • (1) Retransmissions of initial online transmissions are excluded;
  • (2) This applies only to retransmissions of initial transmissions from other Member States;
  • (3) Retransmission must be carried out by a party other than the broadcasting organization that made the initial transmission or under whose control and responsibility the initial transmission was made.

However, this limitation may also provide flexibility to producers who may license their retransmission rights up front to the initial broadcaster or exercise their rights through a collective management organization.

(3) DIRECT INJECTION

Direct injection refers to the transmission of a signal between a broadcaster and distributers by means of a private line prohibiting access to the public of those signals until the distributer offers the relevant programmes. According to Article 7 of the Maltese Regulations, when direct injection is used in retransmission, and there is no parallel transmission of the same programmes by the broadcaster itself, the broadcasting organization and the signal distributer are deemed to be participating in a single act of communication to the public.

This means that both parties would need to obtain authorization from the rights holders but they are not jointly liable, an approach which may prove useful vis-à-vis platforms and signal theft. It may be noted that, in contrast to the Directive, the Maltese Regulations make no distinction between ‘pure’ direct injections (where broadcaster uses only direct injection to deliver its channels to the platform) and ‘impure’ direct injections (where broadcaster transmits directly to public and concurrently uses direct injection to other platforms). On the other hand, the Directive provided discretion for Member State in case of the authorization required for pure direct injections.

(4) APPLICATION AND TRANSITION

The country-of-origin principle will start affecting agreements from 7th June 2023, if they expire after that date (Article 8). Authorisations obtained in relation to direct injections shall be subject to this law from 7 June 2025.

CONCLUSION

As aforementioned, the purpose of the Directive was to provide legal certainty to the operators of retransmission services, rather than oblige broadcasters or operators of retransmission services to provide cross-border services, or to limit the rightholders’ right to grant or refuse authorization for acts of retransmission.

Having said this, whilst it was necessary to strike a balance between enhancing cross-border availability of content and ensuring rightholders’ interest to obtain adequate remuneration and protection for their works, one may question the effectiveness of the Directive, and the Maltese Regulations. This is because their enunciated principles, especially the country-of-origin principle, apply only in restrictive circumstances, thus hampering the effect such legislation may ever have on facilitating the clearance of rights. One may question whether it would have been more fruitful to cater for more scenarios rather than purely broadcasting organisations’ ancillary services covering a narrow range of content, whilst providing other safeguards in order to protect copyright territorially, the individual exercise of rights and contractual freedom.

Authors: Christina Borg Debono, Therese Lia