Posts Tagged Satellite and Cable Directive
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
It’s not just the European Commission working on a revision of copyright legislation. Before the different national governments broke up for summer recess, 3 managed to squeeze through copyright legislation.
The first is the Netherlands which has adopted a very interesting law for screenwriters and directors with a number of provisions that should help them secure fair remuneration for their work.
It includes provisions requiring written contracts that clearly state which rights are being transferred as well as providing for an unwaivable right to proportional fair remuneration with compulsory collective management for broadcasting (including catch-up services) and retransmission services. On-demand exploitation isn’t covered by the new agreement but we understand that a voluntary collective agreement is under negotiation. There has been significant conflict in recent years over the application of the Satellite and Cable Directive with Dutch cable operators refusing to pay authors and performers. The new law should help resolve this but discussions won’t be easy as the authors’ and performers’ societies must negotiate with a possibly cartel-like collective body (RODAP) made up of all the cable operators, producers and broadcasters.
Despite the difficult conditions the new law could be a possible source of inspiration for other countries and even the European Commission as it prepares its legislative initiative on copyright? You can read a short summary of the law, which came into force on 1st July, in English here. The authors and performers societies have made a video describing the law here.
Things are less positive in Austria, however. The new law there extended the list of devices subject to private copying levies. While this may seem like positive news for authors, the law contains a number of details which undermine the headline benefits to creators. The law comes into force on 1st October.
In addition, the Austrian government has updated its law on film copyright following the Luksan judgement. The new law doesn’t have much for screenwriters and directors, confirming the presumption of transfer of rights to the producer. There are even concerns that the wording of the law may prevent authors from mandating CMOs to manage certain rights.
Finally, in Portugal, on 5th July, the revision of law concerning private copying levies came into force. The new law, which had an arduous path to adoption including an initial veto by the Portuguese President, extends the range of devices subject to private copying levies as well as the exceptions for payment for certain professional activities. The law also fixes the total value of levies that can be collected by rightsholders’ organisations at €15m while setting governance and transparency standards for these CMOs. Any levies above this figure go to the Portuguese cultural development fund to finance cultural initiatives. An excellent summary of the new law by Pedro Malaquias can be found on the blog of the Journal of Intellectual Property Law and Practice here.
On the issue of private copying, the UK government has now withdrawn its private copying legislation following the final High Court judgement in the judicial review of the regulations brought by BASCA, the Musicians’ Union and UK Music. It is unclear whether a new piece of legislation will be put forward. You can read a more detailed summary on the Kluwer Copyright blog here.
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