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Media Bulletin January 2020

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United Kingdom

Satellite and Cable Directive – Copyright clearance

Up until now, UK-based satellite broadcasters have been able to rely on "country-of-origin" copyright clearance under the Satellite and Cable Directive (93/83/EEC) (SACD Directive) when broadcasting into the EEA, meaning that separate copyright clearance was not required for individual territories once obtained in any given member state. An implication of Brexit for these providers will be that, following exit, they may need to clear copyright in each member state into which they broadcast – losing the benefit of this single point of clearance.  
 
Under the SACD (as implemented into UK law by amendments to the CDPA), provided the "uplink station" (ie the place of transmission of programme-carrying signals to satellite) is located within the EEA, that place is treated as the place from which the broadcast or 'communication' is made, alleviating the need for separate copyright licensing arrangements between EEA jurisdictions transmitting and receiving broadcasts.  
 
When the UK leaves the EU (and therefore the EEA), and if no amendment to this provision is made to the EU, this legal fiction would cease to apply and the UK based broadcasters would need to clear rights with each EEA state receiving their broadcast signal. On the current drafting of the CDPA, the same would not be true for EU broadcasters transmitting into the UK, and the government has said it has no plans to reverse this at present: it will continue to apply the country-of-origin principle (such that UK copyright clearance will not be required where clearance has already been obtained in the originating state, whether a member of the EEA or not, except where the broadcast originates in a country with lower levels of copyright protection). However, this will not aid UK broadcasters absent an amendment to existing EU law.

Portability Regulation
 
The Portability Regulation ((EU) 2017/1128), as implemented by the Portability of Online Content Services Regulations 2018 (SI 2018/249) in the UK (PROCS Regulations), has been responsible for ensuring that subscribers to portable online content services (such as Netflix) in their member state of residence are able to access and use those services when temporarily present in another member state (for example, when on holiday). It creates the obligation on service providers to allow this, and facilitates their ability to do so by way of the deemed country of origin principle (ie, that provision, access and use of the online service shall be deemed to occur in the subscriber's state of residence), meaning that the act of communication of the protected copyright works occurs only in the that state, and no additional copyright clearance is required.
 
Currently, the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018 are set to revoke the PROCS Regulations following Brexit, and the UK to lose the benefit of the reciprocal arrangement. The effect will be that not only will EU online content service providers not be required to or able to offer cross-border access to their subscribers when temporarily present in the UK, but that equally, UK consumers may see restrictions to their online content services when they visit the EU. For UK online service providers, this means they will need to rely on their treatment by EU law, and an amendment to this would be required to maintain the status quo.
 
A portability arrangement with EU member states after exit would therefore be welcomed by all. Of course, service providers could decide to allow access to subscribers when they are abroad – however they would need to ensure that the relevant territorial copyright clearance is put in place if doing so.
 
AVMS Directive – Licensing
 
To date, the broadcasting sector has been able to benefit from the "country-of origin" principle to enjoy a more integrated licensing framework under the Audiovisual Media Services Directive (2010/13/EU) (AVMS Directive), whereby a license obtained and regulatory standards observed in one EU member state has been sufficient to offer its services in other member states without further authorisation. The landscape of broadcasting is set to change if and when the UK steps out of this framework, meaning that broadcasters regulated in the UK will no longer have access to EU member states under this provision, and vice versa. Whilst the government has confirmed that existing Ofcom licences will not be revoked following the UK's exit from the EU, under the Broadcasting (Amendment) (EU Exit) Regulations 2019, s.211 of the Communications Act 2003 will be amended to require that any television services available in the UK be licensed by Ofcom, regardless of its origin, subject to a limited number of exceptions (such as in cases of services broadcast from countries which are parties to the European Convention on Transfrontier Television (ECTT)).
 
In respect of Ofcom licences granted to UK broadcasters for 'non-domestic channels' broadcast from the UK to other countries, providers wishing to continue broadcasting into the EU will need to consider whether they need to apply for new licences in various member states, or whether there is an alternative regime they can rely on (eg the ECTT).
 
AVMS Amendment and Digital Copyright – Implementation
 
It now seems likely that the UK will leave the EU but with a transition period to 31 December 2020, during which it will continue to be bound by EU rules.  This means that the UK Government will need to implement the EU's amendment to the AVMS Directive by 19 September 2020 (the implementation date): meaning that video-sharing platforms will be brought within the scope of applicable AVMS Directive rules.
 
Having said that, the UK's departure from the EU means it will eventually cease to be a member state of the EU.  So for content created in the UK to continue to qualify as European for the purposes of AVMS quotas, producers will be relying on the fact that UK content is European by virtue of the UK being a party to the Council of Europe Convention on Transfrontier Television.  This means that the UK's continuing as a party to this Convention (and the AVMS Directive not being amended so as no longer to accept content from states that are parties to the Convention as European) will become matters of interest for UK producers.
 
In contrast to the AVMS Amendment, the implementation date for the EU Digital Copyright Directive (Digital Copyright Directive ((EU) 2019/790)) is not until June 2020 meaning that, assuming the UK does leave the EU and the transition period ends on 31 December 2020, the Government will not (subject to anything to the contrary in any trade deal negotiated with the EU) be bound to implement its terms (including those regarding rights clearance obligations for user-generated content services and the "best seller" provisions) – although it may choose to do so if it sees a benefit in continuing alignment between the UK and EU copyright regimes.
 
Recovering television licence fees
 
In the run up to the General Election there had been a good deal of speculation that a majority conservative Government might seek to decriminalise the payment of the BBC licence fee, which commentators have suggested may have a detrimental effect on the BBC's finances, but there is no mention of this in the December 2019 Queen's Speech, following the election, nor the associated guidance note.
By contrast, with the UK now almost certain to leave the EU, the Government will be free to implement new legislation in relation to satellite decoders without worrying about the impact of EU law.  For some time the position in relation to the use in the UK of satellite decoders lawfully obtained in other EU member states has been less than clear; particularly following the 2011 decision of the European Court of Justice in the Murphy Case (Football Association Premier League Ltd and others v QC Leisure and others; Karen Murphy v Media Protection Services Ltd, Joined cases C-403/08 and C-429/08, 4 October 2011). In its guidance on the use of satellite decoder cards intended for EU audiences after Brexit the Government indicated that it will amend existing legislation to make it an offence after the UK leaves the EU to use a satellite broadcast decoder device, intended for an EU audience, to access a programme included in a broadcast made from the UK to avoid payment. This would put an end to any perceived legal loophole whereby people have avoided paying for UK satellite subscriptions by obtaining satellite decoder cards through subscriptions in other EU countries.
 
Online Harm
 
Online Harm was a key interest area for Theresa May's Government, which published a white paper on the subject in April 2019.  In the December 2019 Queen's Speech, following the election, the following statement was made: "My Ministers will develop legislation to improve internet safety for all."  The associated guidance note indicate that the Government intends to publish an Online Harms Bill (and, in the interim, codes of practice on tackling the use of the internet by terrorists and those engaged in child sexual abuse and exploitation). However they also hint that the new Government may take a less aggressive regulatory approach than might have been anticipated following the April White Paper, stating that "the Government want to keep people safe online, but we want to do this in a proportionate way, ensuring that freedom of expression is upheld and promoted online, and that the value of a free and independent press is preserved… ensuring that companies have the right processes and systems in place to fulfil their obligations, rather than penalising them for individual instances of unacceptable content.
 
Online Newspapers
 
VAT being chargeable in relation to online copies of newspapers has been a thorn in the side of the news sector for some time (a sector already struggling with ways to monetise their content in an increasingly online world). A March 2018 First Tier Tribunal decision had determined that digital editions were not exempt from VAT and that VAT was therefore chargeable, but the news sector will have been heartened by the December 2019 Upper Tribunal decison in News Corp UK and Ireland Ltd v Revenue and Customs: [2019] UKUT 404 (TCC). which held that digital editions of certain newspapers were "newspapers" under VAT legislation and therefore were not subject to VAT as they should be zero rated for VAT purposes.