Just before Christmas the European Commission published preliminary statistics on the responses to the Satellite and Cable Directive (or SatCab as it is affectionately known). The Commission’s Communication on Copyright published on 9th December also made a point of identifying the SatCab Directive review as a possible solution to improving cross-border access to audiovisual content.
As we point out in our contribution (summary here), the Satellite and Cable Directive is an important one for the sector, facilitating the licensing of linear programming for use outside of home markets by direct satellite and cable operators. As we have said before, the Commission’s observation that European works don’t circulate well enough is not new, hence the creation of Directives like Satellite and Cable and Audiovisual Media Services. Other than the cross-border aspect of the Directive, it is also important because it guarantees some of the only exploitation-based remuneration received by screenwriters and directors in Europe.
Satellite and cable – what’s the difference?
An important starting point is to recognise the differences between the two parts of the Directive.
The satellite part recognises an exclusive right for the author to authorise the communication to the public by satellite of their works. However, it considers that the act of communication to the public by satellite occurs solely in the Member State where, under the control and responsibility of the broadcasting organisation, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth. This is the Satellite country of origin principle. It enables broadcasters to include their direct satellite broadcasting in their original rights acquisition with authors and other rightholders, taking into account all aspects of the broadcast (such as the number of people reached, language version, etc.) for the amount to be paid. The system was created to provide legal certainty to broadcasters and their satellite operators who, due to the technical nature of satellite broadcasting, couldn’t limit the signals to precise individual territories.
The cable part made it easier and cheaper for cable operators to obtain licences for the retransmission of linear channels from other territories to add to their subscriber packages. It provides authors and other rightholders with a cable retransmission right that may be exercised only through a collective management organisation (CMO), except for the rights of broadcasting organisations. By imposing collective management to the content providers of the programmes (authors, performers and producers), the Directive prevents black holes when broadcasters have authorised their channels to be retransmitted and ensures these content providers are remunerated for the retransmission of their works.
How has that translated in practice?
In practice, the application of the satellite mechanism is very limited as it only addresses direct satellite broadcasting by broadcasters themselves. It does not apply to the most high-profile satellite services that are based on subscriptions and successfully operate out of this model. SAA believes that the fact that most of the satellite business is made outside this framework limits it as a model for other exploitations. In addition, the extension of the Satellite country of origin principle to online exploitations would open the doors to forum shopping and go against the territorial licensing system that ensures the financing of European productions.
On the other hand, the cable system has proved a success as it has given cable operators legal certainty and generated remuneration for screenwriters and directors. SAA believes this model should be source of inspiration for improving online availability of works while guaranteeing fair remuneration for authors. It certainly inspired our own calls for the unwaivable right to remuneration for screenwriters and directors outlined in the second edition of our white paper.
There are other aspects of the Directive that need looking at too. The Directive has not been implemented in a technology neutral way everywhere, meaning that almost identical services to those provided by cable operators, such as IPTV, are not always required to apply the Directive. This creates unfair competition and needs to be resolved. In addition, SAA opposes the use of “all rights included” contracts and prefers to see screenwriters and directors remunerated for the use of their work by cable operators through their representative CMOs, as provided for by the compulsory collective management system. This is the only way to enable authors to be remunerated wherever their works are retransmitted.
SAA certainly welcomes the Commission’s investigations into the Directive (they have also commissioned a study) and encourages the Commission to look at the cable part of the Directive more closely as part of their thoughts not only on how to improve cross-border access to audiovisual content, but also on how to ensure authors receive a fair share for all exploitations of their works.
CD & JT