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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
RECOMMENDATION No. R (91) 5
OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
ON THE RIGHT TO SHORT REPORTING ON MAJOR EVENTS
WHERE EXCLUSIVE RIGHTS FOR THEIR TELEVISION BROADCAST
HAVE BEEN ACQUIRED IN A TRANSFRONTIER CONTEXT
(Adopted by the Committee of Ministers on 11 April 1991,
at the 456th meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage;
Noting that the development of transfrontier television services has led the broadcasters operating them to acquire exclusive television rights in major events for countries other than their country of origin;
Recalling that Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms embodies freedom of expression and freedom to receive and impart information;
Recalling also Article 9 of the European Convention on Transfrontier Television, concerning the access of the public to major events, according to which "each Party shall examine the legal measures to avoid the right of the public to information being undermined due to the exercise by a broadcaster of exclusive rights for the transmission or retransmission, within the meaning of Article 3, of an event of high public interest and which has the effect of depriving a large part of the public in one or more other Parties of the opportunity to follow that event on television";
Aware of the importance of the issues raised by the practice of exclusive rights for major events, particularly from the perspective of smaller broadcasters in Europe, notably those in countries with a limited geographical or linguistic area;
Resolved to pursue consideration of those issues with a view to determining the possibility of achieving additional legal solutions in this area,
Recommends the governments of the member States to take into account the principles set out below in the elaboration and adoption of measures to safeguard the public's right of access to information on major events where exclusive rights for their television broadcast have been acquired in a transfrontier context;
Instructs the Secretary General to transmit this Recommendation to the States Parties to the European Convention on Transfrontier Television which are not members of the Council of Europe.
For the purposes of this Recommendation:
"Major event" means any event in which a broadcaster holds the exclusive rights for its television broadcast and which is considered by one or more broadcasters from other countries as being of particular interest for its (their) public.
"Exclusive rights" means the rights acquired contractually by a broadcaster from the organiser of a major event and/or from the owner of the premises where the event is taking place, as well as from the authors and other rights holders, with a view to the exclusive television broadcast of the event by that broadcaster for a given geographical zone.
"Primary broadcaster" means the broadcasting organisation which holds the exclusive rights for the television broadcast of a major event.
"Secondary broadcaster" means any broadcasting organisation from a country other than the primary broadcaster wishing to provide information, by means of short reports, on a major event for which the primary broadcaster holds the exclusive rights.
"Short report" means such brief sound and picture sequences about a major event as will enable the public of the secondary broadcaster to have a sufficient overview of the essential aspects of such an event.
Principle 1 - Conditions for the exercise of the public's right to information
In order to enable the public in a given country to exercise its right to information, the property right of the primary broadcaster should be subject to limitations which are in accordance with the terms and conditions set out hereafter.
Principle 2 - Making of short reports
1. Subject to other contractual agreements between the broadcasters concerned, any secondary broadcaster should be entitled to provide information on a major event by means of a short report :
a. by recording the signal of the primary broadcaster, for the purpose of producing a short report; and/or
b. by having access to the site to cover the major event, for the purpose of producing a short report.
2. In the implementation of the foregoing principle, the following aspects should be taken into consideration :
a. if a major organised event is composed of several organisationally self-contained elements, each self-contained element should be deemed to be a major event;
b. if a major organised event takes place over several days, it should give the right to produce at least one short report for each day;
c. the authorised duration of a short report should depend on the time needed to communicate the information content of the major event.
Principle 3 - Use of short reports
When fixing the conditions for the use of short reports by the secondary broadcaster(s), the following should be taken into account :
a. the short report should be used exclusively by the secondary broadcaster and only in regularly scheduled news bulletins;
b. in the case of a major organised event, the short report should not be broadcast before the primary broadcaster has had the opportunity to carry out the main broadcast of the major event;
c. unless otherwise agreed by the broadcasters concerned, the short report should mention the name and/or insert the logo of the primary broadcaster as the source of the material, where the short report has been made from the signal of the primary broadcaster;
d. a short report which has already been broadcast should not be reused, unless there is a direct link between its content and another topical event;
e. all original programme material within the possession of the secondary broadcaster which has been used for the making of the short report should be destroyed after production of the short report, and the primary broadcaster should be informed of its destruction;
f. short reports may be preserved in archives but may not be reused except in the circumstances referred to in paragraph d.
Principle 4 - Financial terms
1. Unless otherwise agreed between them, the primary broadcaster should not be able to charge the secondary broadcaster for the short report. In any event, no financial charge should be required of the secondary broadcaster towards the cost of television rights.
2. If the secondary broadcaster is granted access to the site, the event organiser or site owner should be able to charge for any necessary additional expenses incurred.
* * *
1. The growth in the number of national and transfrontier broadcasters in Europe increases the possibilities for freedom of expression, the pluralism of information as well as the possibility of exchanges between different opinions and cultures at European level. At the same time, it gives rise to increased competition among broadcasters in order to attract audiences.
2. Such competition is illustrated in particular by the increasingly widespread practice whereby a given broadcaster acquires exclusive rights for the television broadcast of major events, notably sports events.
3. In particular, broadcasters operating in a transfrontier context acquire these rights for countries other than their country of origin.
4. Now that television is one of the major sources of information for the public, the exercise of exclusive rights for the television broadcast in a transfrontier context of a major event may prove to be detrimental to the right of access of the public to information in one or several of the countries covered by the broadcaster which holds the exclusive rights.
5. The right of the public to information derives from Article 10 of the European Convention on Human Rights 1 and it has been given specific recognition in Article 9 of the European Convention on Transfrontier Television2.
6. Nevertheless, a balance should be struck between this right and the rights of :
- the broadcaster, holder of the exclusive rights (the "primary broadcaster") ;
- the owner of the premises where the major event takes place ;
- the organiser of the major event ;
- authors and other right holders of works used in the framework of a major event.
7. In particular, it is necessary to avoid an excessive interference with the property right of the primary broadcaster. However, it should be stressed that the public's right of access to information involves the right of other broadcasters ("secondary broadcasters") to communicate information on an event which is the subject of exclusive rights.
8. At this stage, the form of a recommendation has been chosen so as to assist the member states in their action, at the national level, in favour of the public's right of access to information on major events where exclusive rights for their television broadcast have been acquired in a transfrontier context. This recommendation is designed therefore to provide guidelines for national legislation or regulations on the subject.
9. It constitutes a first step in the framework of the general consideration of the issues raised by the practice of exclusivity rights to major events. Consideration will given to determining the possibility of bringing about additional legal solutions in this area, taking into account, in particular, the point of view of smaller broadcasters in Europe, notably those broadcasters in countries with a limited linguistic or geographic area.
10. The main terms employed are defined for the purposes of this recommendation.
11. Major event is to be understood as comprising any event, irrespective of whether it is organised or not, in which exclusive television broadcasting rights are held by the primary broadcaster and which - in the opinion of one or more broadcasters from other countries - is of particular interest for its (their) public. The term "from other countries" means countries other than the country in which the primary broadcaster is established.
12. The public may be the public as a whole, or relevant sectors thereof, who have particular areas of interest, according to their professional or extra-professional activities, age, etc.
13. The fact that a broadcaster has acquired exclusive rights in an event is an indication that the particular event is major in character. In practice, however, its major character will be determined by the secondary broadcaster, whose public risks being deprived of the right of access to information. The secondary broadcaster is, in the final analysis, in the best position to assess the specific expectations of its public with regard to a given event.
14. Major events may or may not be organised:
- a major organised event means any sports, cultural, social, political event which occurs as a result of the decision of an organiser and which is organised by public or private natural or legal persons. In cases where the access of the public to the venue of the event is forbidden or restricted (for example, for certain major cultural or social events), its television broadcast may be all the more important. In such cases, the exercise of exclusive rights may have important consequences for the right of the public to have access to information;
- a major non-organised event means, notably, topical events such as those which are normally shown in the framework of news and current affairs programmes (for example, an accident, a natural disaster, an armed conflict). In most cases, any broadcaster can cover this type of event, access to which is free ; for example, an oil slick. On the other hand, in some cases, access to a non-organised major event is limited because, in particular, the owner of the premises of the event has so decided (for example, the management of a mine can forbid access by more than one broadcaster to a mining disaster). Such a limitation may also be the result of a decision of the public authorities for security reasons (for example, authorisation of only one broadcaster to accompany a life-saving team), or of the authors of the event (for example, hijackers authorising only one broadcaster to enter the plane during a technical stop-over).
15. Such situations, where the exclusivity is given de facto to only one broadcaster, justify other broadcasters having the possibility of informing their public by means of a short report.
16. Exclusive rights are defined in this recommendation as the rights acquired contractually by a broadcaster from the organiser of a major event and/or, as the case may be, the owner of the premises where the event takes place, the authors and other right holders, with a view to the exclusive television broadcast of the event by that broadcaster for a given geographic zone.
17. As a general rule, any major organised event may be the subject of an exclusive television broadcast agreement concluded between the organiser of the event and the broadcaster of his choice in the framework of free competition between broadcasters.
18. Nevertheless, it should be recalled that in certain European countries, national authorities have removed certain major events from the framework of free contractual negotiations. They have drawn up a list of major organised events which may only be broadcast by a given broadcaster designated by those authorities. The elaboration of such a list at the European level is nevertheless difficult to envisage, given the different national approaches in media policy and the diverse expectations of the different national audiences.
19. The primary broadcaster is to be understood as the broadcasting organisation which holds exclusive rights for the television broadcast of a major event.
20. It may be noted that there may be more than one primary broadcaster (for example, where several broadcasters act in association so as to acquire exclusive rights to a major sports event).
21. The secondary broadcaster is to be understood as any broadcasting organisation (from a country different from that of the primary broadcaster) wishing to provide information, by means of short reports, on a major event in which a broadcaster holds the exclusive rights. The secondary broadcaster benefits from limitations on the primary broadcaster's rights so as to ensure the access of its public to information.
22. It follows from this definition, as well as that of a "major event" (see above, paragraph 11) that this recommendation does not cover purely national situations (that is if a broadcaster from country A acquires the exclusivity for this country, other broadcasters from country A will or will not be entitled to a short report depending on the domestic legislation or regulations in country A).
23. Thus, any broadcaster from a country other than the primary broadcaster - whether or not its signal covers or reaches the country covered by the exclusive rights - would be entitled to a short report (that is if a broadcaster from country A acquires the exclusivity for countries A, B and C, broadcasters from countries B and C, but also from other countries, would be entitled to a short report, even though no exclusivity has been acquired by broadcaster A for such other countries).
24. This is unavoidable; attempts to confine the right to short reports to broadcasters based in or serving a particular country or area could lead to unequal treatment between transfrontier and domestic broadcasters.
25. Such unequal treatment would arise particularly in the context of television broadcasting by satellite. For example, if the right to short reports were to be limited to broadcasters from countries covered by the exclusivity, then in cases where a broadcaster from country A acquires the exclusivity for country B and a satellite broadcaster from country B transmits the short report - which it is entitled to have - over country C, the broadcasters of country C would not be entitled to a short report since broadcaster A has not acquired the exclusivity for country C. Such broadcasters would therefore be disadvantaged in relation to broadcaster B.
26. This is why, according to the definition, any broadcaster from a country other than the primary broadcaster would be entitled to a short report irrespective of whether or not the primary broadcaster's exclusivity covers that country.
27. The term "short report" means brief sound and picture sequences about a major event such as to enable the public in general or the relevant public in a given country to have a sufficient overview of the essential aspects of the event in which a broadcaster from another country holds exclusive rights. Such short reports are intended for inclusion in regularly scheduled news bulletins of secondary broadcasters, but this does not prevent the primary broadcaster from using short reports for its own programmes or for any other use of its choice.
Principle 1 - Conditions for the exercise of the public's right to information
28. With a view to enabling the public in a given country to exercise its right to information, this principle indicates that limitations should be placed on the property rights of the primary broadcaster. The primary broadcaster does not relinquish its property rights, but exercises them subject to certain limitations.
29. Furthermore, such limitations must respect the rules defined by international conventions and national legislation concerning matters such as personality rights, copyright and neighbouring rights.
Principle 2 - Making of short reports
30. This principle stresses that any secondary broadcaster should be entitled to provide information on a major event by means of a short report produced according to certain arrangements. This means that, according to the regulatory framework of the member state concerned, secondary broadcasters will need to have access to the primary broadcaster's material and/or the events which it is covering. This principle is to be understood as being subject to other contractual agreements concluded between the broadcasters concerned.
31. It is principally through the intermediary of secondary broadcasters - which are in the best position to meet the expectations of their public - that the right of access of the public in question can be realised. It is therefore important that they - and not the primary broadcaster - should be able to make short reports.
32. Accordingly, secondary broadcasters should enjoy one, or both, of the following options :
- recording the entire signal produced by the primary broadcaster in order to make a short report; and/or
- going itself to the site of the major event in order to make its own pictures for making the short report.
33. It will be for the member state in which the major event takes place to determine, in the framework of its legislation or regulations, which of these options should be made available generally to secondary broadcasters, or both.
34. In this context, "signal" is to be understood as the entirety of the pictures and sounds recorded or transmitted by a given broadcaster for the television broadcast of an event.
35. The number of short reports that the secondary broadcaster may claim depends, in the case of a major organised event, on its composition and duration.
36. If a major event is composed of several self-contained elements, from an organisational point of view - for example, competitions of different sports disciplines in the framework of the Olympic games - each element should be deemed to be a major event, giving the right to produce a short report.
37. Where the major event takes place over several days, the secondary broadcaster should have the possibility of broadcasting at least a short report for each day in question.
38. As to the duration of a short report, it should be limited to the time needed to communicate news information about a major event. Subject to the provisions of subsequent paragraphs - in particular paragraph 41 - and taking into account current practices, duration should not normally exceed 90 seconds.
Principle 3 - Use of short reports
39. Short reports are designed to provide the public with sufficient information about the essential aspects of a major event and not to provide supplementary elements of information or entertainment. This principle therefore recommends fixing the conditions for the use of short reports by secondary broadcasters so as to ensure that the use made of a short report does not entail unjustified limitations on the rights of the primary broadcaster.
40. Firstly, it is indicated that the short report should be used exclusively by the secondary broadcaster. The latter should not, therefore, make it available to a third party, either for remuneration or free of charge. The short report should be broadcast only within the regularly scheduled news bulletins of the secondary broadcaster, such as news or weekly information bulletins. It should not be broadcast, therefore, within other programmes, notably those which indiscriminately mix information and entertainment. It should, however, be possible to show short reports in self-contained sports news programmes.
41. In any event, a secondary broadcaster should not be able to make up an entire programme or a large part of such a programme with short reports on a linked series of events. By relying on the right of access of the public to information, it could thus produce attractive current affairs programmes in particularly inexpensive conditions. This would clearly be an abuse.
42. The short report should not be broadcast by the secondary broadcaster before the primary broadcaster has had the opportunity to carry out the main broadcast of the major event. This main broadcast should be carried out, at the latest, during the first prime time period following each self-contained element of a major event (for example, after each discipline in the framework of the Olympic games). This is because it is legitimate that the latter should enjoy priority of the broadcast during prime time, free from competition from other broadcasters.
43. Unless otherwise agreed by the broadcasters concerned, the secondary broadcaster should mention the name and/or insert the logo of the primary broadcaster as the source during the broadcast of a short report taken from a recording of the latter's signal. Such a reference would meet the need to inform the viewers of the origin of information, in so far as the primary broadcaster so wishes. Indeed, some broadcasters may prefer not to have their name or logo mentioned within programmes broadcast by other channels so as to avoid confusing viewers.
44. In so far as the short report is designed to inform the public of the secondary broadcaster in the framework of current affairs, it follows, a contrario, that when the major event is no longer topical, there is no justification for enabling the secondary broadcaster to re-broadcast the short report, except where a fresh event makes the short report topical again. For example, a broadcaster wishing to report, in its news bulletin, the victory of a football team in the final of a championship should be able to broadcast short reports of previous matches of the team in question.
45. In order to avoid abusive use by the secondary broadcaster of the original programme elements which it has for the making of the short report, the secondary broadcaster should destroy them after having produced the short report. The primary broadcaster should be informed in due course of the destruction of the material. Nevertheless, a secondary broadcaster wishing, for legitimate reasons, to preserve such original programme material, may only do so with the express authorisation of the primary broadcaster.
46. As regards the short report itself, this may be archived by the secondary broadcaster. This is so as to take account of situations covered by sub-paragraph d in which the short report is re-broadcast because of its direct link with a fresh event. This possibility also takes account of the obligation which is sometimes imposed on broadcasters by national legislation to archive material.
Principle 4 - Financial terms
47. Given the fact that the access of the public to news information about major events can only be fully realised if such access is free, this principle provides that, unless otherwise agreed between them, the primary broadcaster should not be able to charge the secondary broadcaster for the short report. In any event, no financial charge should be required of the secondary broadcaster towards the cost of television rights. Indeed, secondary broadcasters, notably those with limited resources, should be guaranteed the possibility of having access to a short report on an equal footing, it being understood that such access usually takes place by means of reciprocal arrangements between the broadcasters concerned.
48. Nevertheless, it should be noted that, where the signal of the primary broadcaster does not reach the territory of the secondary broadcaster, additional expenses incurred by the transport of the signal to that territory should not be charged to the primary broadcaster. Rather, they should be charged to the secondary broadcaster in accordance with financial terms freely negotiated between them.
49. Furthermore, if the secondary broadcaster is authorised to have physical access to the site, the event organiser or site owner should be able to charge the former for any necessary additional expenses incurred. This takes account of the fact that the provision of extra facilities by the event organiser or site owner for the purposes of enabling a secondary broadcaster to make a short report does not necessarily produce any return benefit for the organiser or site owner.
1 Article 10 of the European Convention on Human Rights provides that :
1. "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2.The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
2 Article 9 of the European Convention on Transfrontier Television, entitled "access of the public to major events", provides that :
"Each Party shall examine the legal measures to avoid the right of the public to information being undermined due to the exercise by a broadcaster of exclusive rights for the transmission or retransmission, within the meaning of Article 3, of an event of high public interest and which has the effect of depriving a large part of the public in one or more other Parties of the opportunity to follow that event on television."