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The Digital Single Market – the new, but still limited, copyright Directive for cross-border TV and radio programmes

17/04/2019
New EU rules intended to facilitate access to online TV and radio content across borders were formally signed in April at the European Parliament in Strasbourg.

New EU rules intended to facilitate access to online TV and radio content across borders were formally signed in April at the European Parliament in Strasbourg. The new Directive supplements the existing rules set out in the Satellite and Cable Directive (Directive 93/83/EEC) and has been received with a mixed reaction.  For now, independent productions would fall outside of the narrow scope of these rules and so members of the independent film and television industry can be confident that (for now) they will not need to address the provisions of the Directive in their own licensing arrangements.  However, the ultimate direction that the Commission is taking seems to be clear and it may only be a matter of time before the scope is broadened.

The new Directive aims to facilitate cross-border online broadcasting of TV and radio programmes from one Member State of the EU to other Member States. It does so by introducing a country of origin principle for certain programming when ancillary online services are provided by a broadcaster (on an on demand basis concurrently with, or within a defined period after, broadcast).For the purposes of copyright, the communication is deemed to happen in the country of origin, not the country of reception. 

This is similar to the principle introduced earlier allowing the "portability" of subscription services. However, the terms of the Directive only allow for a limited application of the country of origin principle in that these provisions of the Directive apply only to  radio programmes and television programmes which are news and current affairs programmes or fully financed "own productions" of broadcasters.  Sports events and works, and protected subject matter included in them, are specifically excluded from these provisions. The Directive goes on to state that the country of origin principle is without prejudice to the contractual freedom to limit the exploitation of such rights, provided the contractual arrangements are in compliance with EU law.

Broadcasters will need to stay vigilant as there are already questions around how the limitations of this Directive would work in the context of the "Geo-blocking Regulations" brought in at the end of last year, but they should expect that the EU will not change the primary focus of the increasing legislation in this area which is the facilitation of a Digital Single Market.

Thanks to Fieldfisher Trainee Rachel Bowley for authoring this article.

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