We have previously reported that the EU Commission has been conducting a public consultation on the Satellite and Cable Directive (93/83/EEC). This Directive governs the application of copyright and related rights to satellite and cable TV in the EU.
The consultation, which was held from August to November 2015, is part of the DSM strategy and has as one of its objectives the enhancement of cross-border access to TV programmes across the EU. The most interesting IP angle of this consultation concerns the principle of "country of origin" and its possible extension to online transmissions. Currently, this principle only applies to the clearance of copyright works for satellite broadcasting and means that a satellite broadcast is deemed to happen from the country where the signal is sent and not where the signal is received.
The Commission has now released its report on the responses it has received to this consultation, which shows that stakeholder views are divided on whether there is a need to extend the country of origin principle to online transmissions:
- Consumers are in favour of this principle covering all online services. They also don't believe that there needs to be any rule prohibiting technical or contractual restrictions on "passive sales" across EU borders (i.e. restrictions on responding to unsolicited requests from consumers residing in other Member States).
- Member States, have called for caution. In their view, any reform should not undermine contractual freedom, a high level of IP protection and the need for a level playing field.
- Rights holders are, in general, against any extension of the principle. They think that any such extension would lead to pan-European copyright licences and would restrict their ability to license rights on a territorial basis. In particular, they are concerned about an extension that would cover broadcasters' Video on Demand services and any online services by any service providers. In their view: (a) this could have negative consequences for the value chain of production; (b) they won't be able to decide for which EU territories they license their rights; and (c) the extension is not needed because voluntary multi-territorial licensing schemes already exist.
- Broadcasters share the view that, in all cases, full contractual freedom should be maintained, enabling them to limit the exploitation of their rights by territories. However, commercial broadcasters argue that an extension would amount to Pan-European licences so object on the same grounds as rights holders. Public service broadcasters have called for the application of the principle to EU broadcast transmissions by any technical means as well as to all broadcast related online services. They argue that this would enable them to expand their services to other Member States, which would provide them with legal certainty and reduce the administrative burden and costs associated with rights clearance.
- Other service providers argue that contractual freedom should be maintained. They claim that, if the extension of the principle were to lead to pan-European licensing, it would put European and local market players at a competitive disadvantage in relation to multinational operators as they would not have the means to acquire pan-European licences.
Comment
It is easy to see why these different stakeholders hold differing views on the benefit of a country of origin principle for online transmissions. It would clearly be a major change for copyright licensing arrangements across the EU. We therefore wait to see what the Commission's next steps will be in light of these mixed responses.