EU Broadcasting Law Updated To Facilitate The Cross-Border Provision Of Online Audiovisual Content

Author:Ms Colette R. Deamer
Profession:Arnold & Porter

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 This trend left the 1993 Directive (which only facilitates cross-border cable and satellite broadcasting) outdated.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...

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