This document reproduces the final version of the study prepared by a consultant, Ms Natali Helberger (The Netherlands), on "Neighbouring rights protection of broadcasting organisations: current problems and possible lines of action".
1. Scope of the study
This study analyses to what extent the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 26 October 1961 (the Rome Convention)1 and relevant instruments of the Council of Europe in the intellectual property field provide for sufficient protection of broadcasters in the digital environment, particularly as regards convergence of telecommunications, media and information technologies, piracy and the development of new services by broadcasting organisations in Europe such as digital broadcasting.
In the first part of the study the provisions of the Rome Convention and the relevant instruments of the Council of Europe in the field of neighbouring rights, in particular the European Agreement on the Protection of Television Broadcasts,2 the European Convention Relating to Questions on Copyright Law and Neighbouring Rights in the Framework of Transfrontier Broadcasting by Satellite3 and the relevant Recommendations,4 will be analysed to ascertain whether gaps exist in the neighbouring rights regime under which broadcasting organisations are protected at the international and national levels. The study does not examine to what extent other national, regional and international regulations in the field of intellectual property rights, general competition law, penal law, broadcasting law and telecommunication law apply and complete the protection of broadcasters. A short overview of the existing regional and international instruments on the protection of broadcasters will be given within the introduction. Additionally, current legal developments at EC and WIPO level will be introduced. Although the study does not provide a general analysis on the legal situation in the member States of the Council of Europe, where appropriate, certain examples of national legislation will be given.
In addition, an overview to the technological developments in the audiovisual sector since 1960 will be given within the introduction.
For the purpose of the study, the analysis focuses generally on television broadcasting. Where differences in protection of radio and television broadcasting exist, they will be outlined.
On the basis of the conclusions of the first part of this study and the legal developments within the European Community and WIPO, the second part then examines further activities which could be undertaken within the framework of the Council of Europe to ensure the satisfactory protection of the rights of broadcasting organisations.
2. Neighbouring rights for broadcasting organisations
The Rome Convention (RC), administered by WIPO, UNESCO and ILO in 1961, was the first worldwide instrument to introduce neighbouring rights for broadcasters.
Unlike authors rights protection, the protection of neighbouring rights is not made conditional upon the existence of a certain degree of originality but rather on the personal or commercial investment linked, for example, to the dissemination of such works. Neighbouring rights of broadcasting organisations were introduced in acknowledgement of the organisational, technical and economic effort invested in a programme and its broadcasting. The protection is granted irrespective of whether the content of the broadcast contains material which is subject to an intellectual property regime. Thus, broadcasters are granted certain neighbouring rights to protect the broadcast output5 against piracy and unfair competition and, in general, all acts whereby a third party derives unfair commercial profit from their investment.6
The protection of broadcast output as subject to neighbouring rights must be distinguished from the protection of the content of broadcasts, for example, under intellectual property law. A considerable part of material broadcast will be subject to intellectual property rights of authors, performers, film producers etc.7 Where broadcasters are involved in the production of material for broadcasts, they may be granted additional intellectual property rights8 in the content of the broadcast.9 However, the RC as well as the EAT and the SC address broadcasting organisations exclusively as undertakers of the transmission of broadcasting. However, although not subject to this analysis it should be born in mind that there may be in certain cases additional rights for broadcasters to prevent certain unauthorised activities such as intellectual property rights of broadcasters in the content of the broadcasting.10 Additionally, the protection of broadcasters may be completed by the application of general laws. On the other hand, even if acts of unauthorised exploitation of broadcasts are not unlawful under the RC, EAT and SC, they might infringe the rights of, for example, rights holders or performers involved.
3. Introduction of existing regional and international provisions on the protection of broadcasting organisations
The RC focuses on three groups of neighbouring rights holders namely performers, producers of phonograms and broadcasting organisations. In Article 13, the Rome Convention provides for certain minimum rights of prohibition for broadcasting organisations, which will be analysed in this study. Subject to protection is the programme output, not the content of broadcasts. The rights are formulated in such specific terms that they can be self-executing and, therefore, may be enforced directly in States which are Party to the Convention if the national constitution allows.11 The Convention has served as a model for most of the existing national provisions on the protection of broadcasters as holders of neighbouring rights. At present, the Convention is binding upon 57 States.
European Agreement on the Protection of Television Broadcasts
The EAT was the first international instrument to provide for neighbouring rights protection for broadcasting organisations. Unlike the RC, the EAT specifically addresses the question of neighbouring rights for broadcasting organisations. The rights granted under the EAT broadly coincide with the rights provided for under the RC but go further than the provisions of the RC in some important aspects. Similar to the rights under the RC, they may be the basis for direct claims under private law in contracting States.12 The EAT exists independently and alongside with the RC in the sense that its more far-reaching provisions also apply to those States which are Party to the RC.13 Until now, the Agreement is binding upon six States.14 According to the will of the contracting parties, the Agreement was originally planned to cease to be effective upon the entry into force of a universal neighbouring rights convention.15
European Satellite Convention
The SC was opened for signature in May 1994, under the auspices of the Council of Europe. The Convention, inter alia, deals with certain questions concerning transfrontier broadcasting by satellites, such as the definition of the act of broadcasting by satellite and its localisation in a single country. The Convention also provides for certain minimum rights for authors and holders of neighbouring rights. As regards the scope of protection of neighbouring rights, the SC refers explicitly to the provisions of the RC.16 The SC will enter into force upon ratification by 7 States, 5 of which must be members of the Council of Europe. Since, until now, only 2 States17 have ratified the Convention, it has not yet entered into force.
The Council of Europe has, additionally, adopted various recommendations and other initiatives in the field of neighbouring rights with view to improving the protection of broadcasters. These will be discussed below.
Following is a short overview of the most important other existing regional and international instruments on the protection of broadcasting organisations as subject to neighbouring rights.
At the level of the EC, several Directives have been adopted which also deal with broadcasting organisations as subject to neighbouring rights. In particular, the Rental and Lending Rights Directive18 provides for certain neighbouring rights for broadcasters and, in doing so, exceeds the RC to some extent. The Cable and Satellite Directive19 provides that the rights of broadcasting organisations, which communicate to the public by satellite, shall be protected in accordance with the relevant provisions of the Rental and Lending Rights Directive. The Term Directive20 fixed the term of protection of neighbouring rights for broadcasters at 50 years. At the moment, a new instrument in the field of intellectual property is being drafted, the proposed Directive on the Harmonisation of Certain Aspects of Copyrights and Related Rights in the Information Society.21 The draft Directive seeks to adapt the current law of copyright and related rights to respond to technological development and economic realities.
Other international regulations
As regards other international regulations on the protection of broadcasting organisations, consideration must be given to Article 14 (3) of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).22 Parties to the TRIPS Agreement are the 132 member States of the WTO. Under the TRIPS Agreement, broadcasters are granted, on the basis of the principle of national treatment, the right to prohibit the fixation, reproduction of fixations, rebroadcasting by wireless means as well as the communication to the public of television broadcasts.23 As regards the provision of exceptions, the TRIPS Agreement refers to the RC.
The 1974 Brussels Convention Relating to the Distribution of Programme Carrying Signals Transmitted by Satellite24 deals with the protection of satellite signals by which programmes are transmitted between broadcasting organisations or between such organisations and cable distributors. Twenty-two countries have ratified this convention. Under the Brussels Convention, contracting States are required to undertake adequate measures to prevent the distribution on or from their territories of any program-carrying signal by any distributor for whom the signal is not intended.
Subsequently to the WIPO Copyright Treaty25 and the WIPO Performances and Phonograms Treaty (WPPT),26 the strengthening of the protection of broadcasters in a digital environment is currently being subject to debates at WIPO. Negotiations recently began with view to the adoption of some form of an international instrument (a recommendation, guidelines, a protocol to the WPPT or a separate treaty on the protection of broadcasting organisations and distributors of cable orientated programmes).27 The Standing Committee on Copyrights and Neighbouring Rights, accordingly, included the issues of the impact of recent technology on intellectual property rights and the adequate improvement of protection of broadcasting organisations on its agenda. The last meeting of the Committee was held in early May 1999. For this meeting, several member States and organisations submitted proposals for a possible new instrument, including proposals for a WIPO treaty on the protection of rights of broadcasting organisations.28 At present, a new instrument is expected to be adopted in the years 2000-2001. The next meeting of the Committee, which will be held in November 1999, is expected to be decisive.
An overview of the scope of the proposed rights will be given below. The proposals correspond widely to the provisions of the WCT and the WPPT.
4. Technological developments in the audiovisual sector since 1960
Over the past 40 years the situation of broadcasting has changed considerably, as a result of the technological development of transmission technology and equipment. When the RC and the EAT were drafted, broadcasting was mostly transmitted by hertzian waves cable distribution was at best at its beginnings. Commercial broadcasting was unknown in most countries. Recording equipment was generally not available to individual users. Due to the restricted transmission techniques, television broadcasting was mostly a national phenomenon. With the introduction of cable and satellite technology, broadcasting becameinternational.
The adoption of digital technologies for the creation, protection, storage and distribution of content is currently driving the latest media developments. Digitisation in the first place is a new means of encoding signals for broadcasting transmission. Digital signals may be transmitted over the air by terrestrial transmitters or via satellite; they can also be sent over land lines, whether these form part of a telecommunications network or a cable system. One of the principal advantages of digital over analogue signals is that the former is a much more effective carrier of information. The same content can be delivered with better picture quality, occupying much less bandwidth. However, a second aspect of digitisation which can be said to be more directly responsible for the substantial change in the situation of broadcasting is the application of digital technologies to systems and networks associated with the delivery of services which makes it possible to carry both broadcasting and telecommunication services via one network. Thus, digitisation is the basis for convergence in the sense of:
- the combination of previously separate media resulting from the ability of different network platforms to carry essentially similar kinds of services;
- the combination of different consumer devices, such as the telephone, the television and the personal computer.29
The increased independence from the boundaries of platforms and transmission capacity has favoured the development of new forms of presenting and marketing television and radio broadcasting; it has now become possible to transmit via a multitude of channels, to interact directly with the user, to select who may receive a broadcast and to use the Internet as an additional platform for enhanced services. Some services still appear to be similar to the broadcasting provided traditionally, such as near-video-on-demand, homeshopping channels or subscription television. With others, particularly the interactive ones such as video-on-demand, WebPages of broadcasters but also interactive TV30 and "Portal TV"31 it is difficult to assess whether they still fit the definition of broadcasting in the traditional sense. A related question recently discussed at both national and international levels is the qualification of broadcasters using the Internet as a medium for the transmission of their programmes (i.e. webcasting). At the moment, this concerns mostly Internet radio broadcasting, but soon the transmission of pictures in acceptable quality will be possible with the consequence that the transmission of both radio and television broadcasting will become increasingly attractive due to the low costs of transmission and the range of this medium. Broadcasters may use the Internet, for example to transmit traditional terrestrial, satellite or cable broadcasting either from other organisations or from their own, via the Internet (live streaming) or to transmit original programming exclusively transmitted on the Internet (webcasters) as well as for the on-demand use of radio and TV programmes via the Internet.
Moreover, the traditional broadcasting activity in the sense of a transmission to the public of sounds and/or pictures is no longer reserved to broadcasters. Cable and even telecommunication network providers, for example, offer their own programming. Due to the emergence of various audio or audio-visual services which are difficult to classify, broadcasters experience growing competition not only from an increasing number of other broadcasters but, additionally, from cable operators and providers of audiovisual services from all over Europe to say the least.
And indeed, new forms of copying equipment appear to have considerably changed the situation for broadcasters. Digital technology (DVD) allows for significantly better quality of copies than was possible with the application of analogue techniques; additionally, large segments of the public have access to broadcasting services. At the same time, copying devices are becoming much cheaper and easier to use and the illegal distribution of decoding devices is increasing.32
As a result of new recording and transmission techniques and the increased commercial significance of broadcasting contents, broadcasters are exposed to a new variety of forms of piracy which were unknown when the RC and the EAT were drafted.33
II. Analysis of the Rome Convention and the relevant instruments of the Council of Europe
Below it will be examined whether the recent technological developments have significant consequences for the application of the RC, EAT and SC and to what extent these regulations prohibit piracy. Furthermore, the initiatives already undertaken by the Council of Europe, and the Council’s recommendations in particular, will be discussed below.
For the purpose of the analysis, the single provisions of Article 13 of the RC shall be discussed. Where relevant, the provisions of the EAT and the SC will be introduced and analysed. A short summary and suggestions for possible actions will be given at the end of each section.
1. Who and what is protected under the RC and relevant instruments of the Council of Europe?
Article 13 of the RC applies in respect of "broadcasting organisations",34 but includes no definition of the term itself. Neither do the EAT and the SC provide an adequate definition. When the RC was drafted, a proposal to define "broadcasting organisations" was rejected.35 However, in the debate it was clarified that entities, which do not own technical facilities for transmission themselves but use those belonging to third parties, fall under the concept. On the other hand, if a programme is produced by, e.g., an independent film producer but transmitted by a broadcasting organisation, the latter organisation is considered to be the broadcaster.
The development of various new forms of transmission and presentation of broadcasting makes more uncertain which services are to be considered broadcasting. This is also due to the fact that the transmission of broadcasting is no longer reserved to broadcasting organisations but is also performed by third parties such as cable operators and providers of audiovisual services.
"Broadcasting" is defined as the "transmission by wireless means for public reception of sounds or of images and sounds".36 Consequently, a broadcaster is considered to be any organisation, which is responsible for the transmission of images and sounds for reception by the public via wireless transmission means. As opposed to the RC, the EAT focuses exclusively on television broadcasters. Thus, the EAT does not provide for any protection of radio broadcasters.
Entities who transmit their programmes originally via cable networks (cable casters) are not considered broadcasters even if the programme is identical to a terrestrial broadcast. The same applies to the increasing number of cable operators who do not concentrate on the retransmission of programmes scheduled by a third party but provide their own programming.37 Even certain telecommunications network operators have shown interest in distributing their own programming. Are they to be considered broadcasters? Not under the regime of the RC since the programmes are sent by wire.
Digital broadcasters providing new forms of audiovisual services
Certain difficulties are raised by the qualification of (digital) broadcasters, which do not confine themselves to transmitting traditional broadcasts in digital quality but provide enhanced or interactive programme services, for example by using the Internet as an additional platform. As far as new presentation forms such as multichannel-TV or near video on-demand are concerned, such broadcasting still involves the transmission of sounds and signals for reception by the public, irrespective of whether this is done on 1 or 50 channels. However, forms of encrypted or interactive services, which are transmitted upon prior request, do not appear to fit the concept of transmission "to the public". One could argue that at least such distribution forms such as pay- and subscriber-TV do not constitute a transmission "to the public" in the sense of the RC but rather to a selected number of consumers. On the other hand, the services may be still intended for the public as long as any "member of the public"38 has at least the opportunity to access the service. The same could be argued for on-demand and interactive services.
The example of certain new forms of audiovisual services indicates that the concepts of "transmission to the public" and "individual reception" cannot be applied without difficulty to some of the new forms of audiovisual presentations.39 One aspect of convergence is the elimination of the public sphere to the extent that a direct connection can be made between service provider and user.
2. What is broadcasting?
Sounds and images
The RC expressly characterises broadcasting as the transmission of sounds and images.
The distinction between text/data and sounds/images, appears to be a rather unconvincing criterion to distinguish broadcasting services from other services. Digital technology allows the effortless combination and delivery of texts, graphics, ancillary data and moving pictures alongside "traditional" broadcasting. Such additional information can be used by broadcasters as an extra service for consumers, providing them with program-related background information, interviews, biographies of the actors, different language versions etc. In practice, as regards digital transmissions, it will be extremely difficult to distinguish which signals carry (protected) sounds and pictures and which carry (unprotected) text and data. But also analogue broadcasters provide for text transmissions such as the BBC´s CEEFAX service which provides news, weather, programme information etc., but are not protected under the RC, EAT or SC.
Digitised broadcasting signals
Is the form in which signals are transmitted relevant? Does the RC, for example, cover digital broadcasting, i.e. the transmission of broadcasting in digitised form? Primarily, the RC provides that broadcasting is the transmission of sounds or images and sounds. What happens, if broadcasting signals become digitised? In the first place, digitisation does not mean more than transforming traditional broadcasting signals into sequences of binary codes and, thus, another form of "packing" signals for their transport. However, those symbols still represent the same sound and/or image. Art. 3 (f) RC does not stipulate in which form signals must be transmitted as long as they can be transmitted by wireless means, i.e. in the same way as analogue signals. 40
Do encrypted signals fall under the concept of broadcasting? Neither the RC nor the EAT mentions encrypted television signals. Article 1 (3) of the Satellite Convention on the other hand expressly considers encrypted satellite transmissions as broadcasting if the decoding devices have been made available to the public by the broadcasting organisation or with the consent of the broadcaster. This also makes clear that the encryption of broadcasting signals principally does not alter the character of the broadcasting transmission. The transmission might still be intended for reception by the public.
Protection of the programme-carrying signal
The protection of broadcasting under the RC and the EAT does not begin before the first act of transmission to the public. This means, for example, that the RC does not cover broadcasting signals, which are exchanged between two broadcasting organisations. The same applies for parts of programmes which have been produced outside the broadcasting organisation and are on their way to the broadcaster. Still, unsent signals might be exposed to piracy to the same extent as broadcasting signals sent to the public. Thus, there might be a gap in the protection of broadcasters, particularly where the broadcaster has no intellectual property rights in the content which has been transmitted.41 It should be noted that a programme-carrying signal emitted to or passing through a satellite might be protected against unauthorised distribution under the Brussels Satellite Convention, Article 2 (1).
As far as satellite communication is concerned, the definition of broadcasting as "transmission by wireless means … to the public" in the sense of the RC does not expressively exclude satellite transmissions.42
Article 1 (1) of the SC clarifies that "the transmission of works and other contributions by direct broadcasting satellite is broadcasting." The Satellite Convention distinguishes between so called fixed satellites (FSS), which were originally used as communication satellites and, thus, for the point-to-point transmission of signals, and direct broadcasting satellites (DBS) which allow for the direct reception of signals by the public. It was argued, that only the transmission via DBS constituted transmission to the public, since consumer satellite dishes were capable of receiving signals only from high power satellites that were designated direct broadcasting satellites. Nowadays however, advanced satellite antennas allow users to receive also signals, which are transmitted by fixed satellites.43 Accordingly, the Convention states that the "transmission of works and other contributions by fixed service satellites under conditions which, as far as individual reception by the general public is concerned, are comparable to those prevailing in the case of direct broadcasting satellites, shall be treated as broadcasting". 44
Is the transmission of signals via the Internet considered broadcasting under the RC?
If this was not the case, the unauthorised retransmission, fixation and reproduction of Internet transmitted programmes would not be a restricted act under the RC.45 Internet broadcasting is especially vulnerable to piracy, due to the anonymity of this medium and the ease with which contents can be accessed or copied.
The qualification of Internet transmission of broadcasts is still very unclear. At present, access to the Internet as well as the Internet itself are mainly based on telecommunication networks, i.e. wire communication. Thus, under the definition of the RC, Internet broadcasting is probably not included. However, the underlying distinction between wire and wireless broadcasting does not seem to be applicable to the transmission via Internet since it is already possible to have wireless access to the Internet. Instead, it might be preferable to consider the transmission via the Internet as a new form of transmission which is neither dealt with in the RC nor the instruments of the Council of Europe.
The second problem when qualifying on-line transmissions is the concept of transmission "for public reception". Unlike traditional broadcasting, online transmission of broadcasting is comprised of an unlimited number of point-to-point transmissions.46 However, from the point of view of the online "broadcaster", the broadcast is transmitted not to an individual user but to the public.47 The same applies to certain forms of interactive transmissions (see below).
It should be noted that the Committee of Experts on Crime in Cyber-space (PC-CY) is currently drafting a Convention on Cyber Crime. To the extent that broadcasters use the Internet as a means of transmission, they may be covered by the Convention. The draft Convention is aimed at protecting confidentiality, integrity and availability of computer data and systems by outlawing unauthorised access, interception, data interference, systems hindrance, computer forgery and fraud. "Computer systems" are defined as "any device or a group of inter-connected devices, which pursuant to a programmeperforms automatic processing of data [or any other function]".48 In the case of webcasting, the transmission of "webcast" programmes requires the establishment of a connection between the server of the organisation and the computer of the user. Thus, the technical connection between the transmitting webcaster and the receiving consumer may qualify as a computer system in the sense of the draft Cyber Crime Convention.
The concept of broadcasting under the RC as well as under the EAT is, on one hand, extremely technology-dependent. A technology-dependent definition of broadcast/broadcasting, however, does not seem appropriate in an environment where the means of transmission are becoming increasingly exchangeable. This makes it very difficult to classify services provided on the basis of new transmission techniques or converging media. On the other hand, as far as definitions exist they are rather content-independent focusing on the transmission of sounds and images. Interestingly, the RC does not provide for additional criteria which would allow distinguishing a broadcaster from any other unit transmitting images and sounds.49 Thus, it is extremely difficult to draw the borderline between what is commonly understood as broadcasting and non-broadcasting services.
Consequently, a definition of broadcasting should be given which is as technology-independent as possible and covers satellite transmission, transmission in digitised and encrypted form as well as ancillary text. Another question is whether the definition of broadcasting should be extended to such programmes which are transmitted by means of wire.50 Still, a restricted definition of broadcasting is needed, which reflects the protection worthy effort for which broadcasters are granted neighbouring rights in order to prevent an unreasonable extension of neighbouring rights and to distinguish broadcasting from other audiovisual services with less amount of investment involved. One characteristic of broadcasting as, up to now, subject to the RC and similar regulations seems to be a prescheduled sequence of contents which is regularly offered to the public. Consequently, one possible criterion to characterise the entrepreneurial effort of broadcasters may be the existence of a certain programme output. Unlike broadcasting, services such as on-demand services, a WebPage, or an interactive information service offer consumers a certain choice on the basis of an existing collection. The financial and organisational investment in the choice and realisation of such services is, unlike in the case of broadcasting, a unique investment and constitutes only a preparatory activity, whereas in the case of broadcasts the choice of contents in the sense of a pre-scheduled programme is part of the product and involves regularly considerable investment.
There is no evident reason to extend the notion of broadcasting in the sense of the transmission of a pre-scheduled programme to the public to non-programmed audiovisual services. The unique investment in such audiovisual services will generally be protected under existing laws such as intellectual property right in the content or competition law. In the case of a video-on-demand service, for example, the provisions on the protection of databases might be applicable.51
Another question is whether entities which transmit programmes by wire (not merely retransmitting the programmes of other broadcasters) should be entitled to the same rights as broadcasters.
In a long-term-perspective it might be studied whether Internet broadcasters also deserve the same protection as "traditional" broadcasters and which aspects then will have to be considered. The answer also depends on the development of such services in general. On the other hand, the draft Cyber Crime Convention might possibly provide sufficient protection.
Under relevant EC Directives, the notion of "broadcasting" or "broadcasting organisation" is not defined. Interestingly, Article 6 of the Rental and Lending Rights Directive of the EC grants certain rights to broadcasting organisations with respect to their broadcast "whether these broadcasts are transmitted by wire or over the air, including by satellite…" Consequently, one could argue that the concept of broadcasting under this Directive no longer reflects the distinction between wire and wireless means of transmission.52 On the other hand, Article 8 (3) of the Directive refers to broadcasts by wireless means. Thus, it is not clear whether the EC has adopted a broader concept of broadcasting.53
It has been proposed to introduce a definition of the notion "broadcasting organisation" in the sense of any "organisation, which assembles and schedules the programme output broadcast by or on behalf of that organisation".54 This definition recognises that part of the protection-worthy investment of broadcasters is a certain output in the form of a programme. Additionally, it was proposed that cable operators be granted, under certain conditions, the same intellectual property rights and obligations as broadcasting organisations.55
The qualification of webcasters has also been subject to discussion. A submission proposed to give broadcasting a broader sense as the "transmission for public reception of sounds or of images and sounds, and any ancillary data or text transmitted".56 Additionally, it has been proposed to understand the concept of public to include the making available of transmissions whether via the broad dissemination of signals or point to point transmission. However, the general feeling seems to be that it is still too early to undertake initiatives with regard to webcasting.
As regards the definition of broadcasting, at the level of WIPO, apparently it was felt that the concept of wireless broadcasting should be maintained. It was also argued that there was no reason to distinguish between satellite and terrestrial broadcasting as regards the definition of broadcasting.
Recent proposals for a future initiative of WIPO have suggested clarifying that transmission in encrypted and in digitised form should also fall under the definition of broadcasting.57 Additionally, it was proposed to extend the protection of programme carrying signals.58
3. Rights granted under the RC, EAT and SC
Under the RC, EAT and SC broadcasters are granted the following rights:
a) The rebroadcasting right
Broadcasting organisations enjoy the right to decide who, once their programme has been broadcast, may retransmit the programme to the public. Thus, the provision protects broadcasters against the unauthorised retransmission of their programmes. This is important, since, due to the growing competition in the audiovisual market, piracy in programmes poses a serious threat to broadcasters.
However, the RC does not protect broadcasters against every form of retransmission. "Rebroadcasting" is defined as the "simultaneous broadcasting by one broadcasting organisation of the broadcast of another broadcasting organisation."59 Thus, the notion of "rebroadcasting" does not cover:
- the retransmission by wire means,
- the deferred retransmission of broadcasting,
- the retransmission by individuals,
- the retransmission of broadcasting signals, which are not intended for public reception,
- the retransmission of text and data.
The RC does not grant a right of wire distribution. Consequently, under the RC, broadcasters cannot prohibit the unauthorised retransmission of their signals by cable operators. Where no such protection exists, it might be attractive for cable organisations to retransmit broadcasting signals without authorisation while raising considerable revenue for the provision of cable broadcasting.60 Very often the signals transmitted by broadcasters are not only illegally retransmitted but are also dubbed or synchronised in other languages thus reducing the ability of broadcasters from "selling" their broadcasts in other countries in the relevant national languages.61 Moreover, increasingly cable operators are gaining additional profit by providing their own original programming (e.g. through advertising revenue). Additionally, broadcasters nowadays are not only exposed to unauthorised retransmission by cable but also by telecommunication networks and through electricity lines.62 From the point of view of the unauthorised retransmitter, these forms of wire retransmission are particularly attractive since they are cheap and far-reaching.
When the RC was drafted, it was proposed that the problem be solved by qualifying the transmission by cable as a "communication to the public" in the sense of Article 13 (d) RC.63 However, due to the limited scope of this provision (see below), the benefit to broadcasters would be fairly restricted.
Unlike the Rome Convention, the EAT in article 3 (1) grants broadcasters the additional right to authorise or prohibit the diffusion of broadcasting by wire. It is not quite clear whether the term "wire" includes the unauthorised retransmission by telecommunication or other networks. It should be noted that Article 3 (1) of the EAT allows the contracting Parties to make reservations.
As regards unauthorised cable distribution, the Council of Europe has already undertaken several additional initiatives.
Already in Recommendation No. R (86) 9 the Council of Europe suggested that member States take appropriate measures to protect certain groups of rights holders, including broadcasting organisations, with regard to cable distribution and satellite transmission.64 The Recommendation, however, does not suggest any concrete measures to be undertaken, such as e.g. the introduction of a cable distribution right. In Recommendation No. R (95) 1, the Council of Europe points out the problem of unauthorised cable distribution. It is recommended that the governments of member States take into account the issue of unlawful cable distribution when developing their anti-piracy policies. In particular, it was suggested that states should consider the introduction of appropriate administrative measures, which could have an impact on the fight against unauthorised cable distribution.65 Again, the Recommendation refrained from making more concrete suggestions. In the Council of Europe Declaration on neighbouring rights it was agreed, inter alia, to give priority to the issue of protection of broadcasting organisations with regard to cable retransmission.
The relation between broadcasting organisations, rights holders and cable distributors
To the extent that the concept of a cable distribution right for broadcasters is new to many European countries, no adequate national rules may exist which govern in particular the relationship between broadcasting organisations, rights holders and cable operators (in the case of international transmission, eventually several operators from different countries) and the conditions for exercising the cable distribution rights.66 Finally, it is also in the interest of users to install instances for mediation and arbitration.67
Article 3 (3) of the EAT suggests a system of arbitration as regards the exercise of the wire distribution right. Contracting Parties may, in respect of their own territory, provide for a body with jurisdiction over cases where the right of diffusion to the public by wire has been unreasonably refused or granted on unreasonable terms by the broadcasting organisation in which the said rights vest. The same applies with regard to the communication right. In case the tribunal finds that such a situation exists, it may issue licenses for cable broadcasting against the will of the broadcasting organisation. However, the provision considers exclusively the interests of cable operators and fails to acknowledge the interests of rights holders, broadcasters or competing cable operators. For example the provision does not address acts such as where the broadcasting organisation grants cable-broadcasting licences to its own subsidiaries but not to third parties.68
Some questions in respect to the establishment of appropriate conditions for the exercise of cable distribution rights have already been considered in Recommendation No. R (86) 2 concerning copyright and neighbouring rights in relation to television by satellite and cable. The aim of the Recommendation is to ensure the most uniform possible interpretation of the concept of cable and satellite transmission at the European level. The introduction of contractual solutions among all parties involved is recommended since it allows for efficient handling of cases of international operating organisations. On the other hand, where various different rights are involved in cable distribution, additional measures might be needed to ensure the success of negotiations (e.g. collective exercise of rights, systems of arbitration, mediation). The Recommendation does not provide any solutions to ensure fair and successful negotiations.69 It focuses exclusively on the distribution by cable of protected material diffused by means of satellites. Thus, the transmission by broadcasters of their programmes originally via cable or physical conductors is not covered. As a result, for example, cable operators providing their own programming are not subject to the Recommendation. Apparently, this outcome is the intention of the Recommendation when it requires member States to distinguish between "distribution by cable of broadcasts" (if it is simultaneous, complete and unchanged) and "cable-originated" programmes. However, it is likely that at least the member States of the EC will introduce for providers of cable-originating programmes rights which correspond to those granted to broadcasting organisations.70 Thus it is questionable whether the distinction between cable originated programmes and distribution by cable of broadcasts should be maintained.71 Furthermore, the Recommendation makes a distinction between direct broadcasting satellites and fixed satellite services. As already explained, the distinction between FSS and DBS systems under certain conditions no longer justified, with the introduction of advanced satellite dishes.
The Working Party on Cable Distribution (JU-GT-CD) has already studied the legal questions raised by cable distribution of programmes - on the basis of work previously done at EC level and with a view to the elaboration of specific policy measures in this field, particularly a new Recommendation or an update of Recommendation No. R (86) 2. The Working Party agreed not to elaborate specific policy measures in this field for the time being, having regard to the work of the European Commission (see below).
Transmission by individuals
Furthermore, the RC and the EAT do not provide broadcasters with an instrument for preventing the transmission of broadcasting signals by providers who cannot be qualified as broadcasting organisations.72 In these cases, providers of certain on-line services, cable distributors, even individuals would not infringe broadcasters neighbouring rights under the RC, EAT or SC when picking up broadcasting signals for their own profit.73 It should be noted that some of the new platforms, such as the Internet, make it very easy, even for individuals, to transmit broadcasts. 74
As already mentioned, "rebroadcasting" in the sense of the RC only covers the "simultaneous" broadcasting of signals. The time-delayed or "deferred" transmission is, thus, excluded. As a consequence, the unauthorised retransmission on the basis of previous fixations75 might not be covered under the RC. It has been argued that all instances of time-delayed retransmission would be covered by Article 13 (b) of the RC, since such transmission requires the previous fixation of the signal.76 However, the scope of the fixation right is far from being clear (see below). For example, it is not clear whether the RC covers also fixation in an intangible form.77 In the case of unauthorised transmission via the Internet, the transmission process requires a time-delayed transmission based on previous fixation in the computer working memory, i.e. in an intangible form. In addition, the unit which rebroadcasts a programme without authorisation is not necessarily the same as the unit which is responsible for the fixation. Time-delayed rebroadcasting falls however under article 1 (e) of the EAT.78
It is not clear when exactly a transmission is considered time-delayed. Is the making of a previous fixation necessarily a precondition for time-delayed transmissions? Is a transmission considered time-delayed, where an intercepting organisation first sends the signal to an associated broadcasting organisation via communication satellite and the latter then rebroadcasts the programme?
Another question is whether the RC and EAT protect broadcasters against the, increasingly attractive, unauthorised retransmission of their programmes via the Internet (live-streaming). This issue is related to the question of the legal qualification of webcasters.
The rebroadcasting right granted under the RC and the SC is heavily restricted. In order to provide sufficient protection, the rebroadcasting rights granted under the RC should be extended to cover deferred transmissions or transmissions by "non-broadcasters". In addition, a corresponding wire distribution right should be introduced which is designed sufficiently broadly to cover all forms of physical conductors. Article 1 (b) and (e) of the EAT covers deferred retransmissions as well as retransmission by means of cable and could be interpreted to cover also other forms of physical conductors such as telephone lines.
In a long term perspective, it should be considered to protect broadcasters also against the unauthorised retransmission of their programmes via the Internet.
When introducing a cable transmission right for broadcasters, the recommendation of certain principles and guidelines might be needed to accompany the establishment of this right. In Recommendation No. R (86) 2, the Council of Europe already undertook first initiatives in this context. As regards further initiatives, for example an update of Recommendation No. R (86) 2, it might be helpful to examine the experience of the EC member States with regard to the transformation of the Satellite and Cable Directive and, in particular, of those member States which have already introduced a cable retransmission right. 79
No cable distribution right has been introduced yet at the level of the EC. Article 8 (3) of the Rental and Lending Rights Directive grants cable operators the same rights as broadcasting organisations in certain cases. The Satellite and Cable Directive addresses the issue of cable distribution. However, the Directive does not establish a cable transmission right at the community level, but regulates the conditions of its exercise where it already exists. The Directive stipulates in Article 8 (1) that cable retransmission has to be performed on the basis of individual or collective agreements between rights holders and cable operators. The Cable and Satellite Directive introduced certain rules with regard to rights acquisition in its Articles 9 and 10, and in particular a system of voluntary negotiations on the basis of collective rights administration.80 In respect of their own transmission, broadcasters are free to decide whether they want to exercise their rights, irrespective of whether those are their own rights or have been transferred to them by rights holders or holders of neighbouring rights, without the intervention of a collection society.81 Furthermore the Directive contains certain rules on arbitration and mediation.
At the level of WIPO, it has repeatedly been proposed to grant broadcasters a right to control the transmission of their broadcast by cable, either as an additional right82 or in the form of a broad retransmission right, covering the transmission of broadcasting in any manner or form whatsoever.83 Furthermore, it has been proposed to adopt a broad definition of the notion "cable distribution" according to which it would mean the "simultaneous or deferred transmission of broadcasts via physical conductors, such as wires, cables, telephone lines or optical fibres, or microwave systems…"84 No proposals have been submitted regarding the conditions under which a cable distribution right should be exercised.
It has also been proposed to extend the definition of "rebroadcasting" to deferred broadcasting.85
b) The fixation right
The fixation of broadcasting is a precondition for its, increasingly profitable, secondary exploitation, i.e. such forms of use of broadcasting which go beyond the mere transmission of broadcasting signals, such as the making of copies of broadcasting. This includes the sale of reproductions of broadcasts or parts thereof or their insertion into a multimedia production or an audiovisual service. Thus, broadcasters have a strong interest in controlling the fixation of their broadcasts as closely as possible in order to prevent piracy.
Under the RC and EAT, broadcasters have the right to control the fixation of their broadcast or parts thereof. Article 1 (1) EAT goes so far as to extend the rights of broadcasters to fixation rights also in respect of still photographs of their broadcasts.86 The protection of still photographs, however, is subject to reservations under Article 3 (d) of the EAT.87
The notion of fixation is not defined in the RC and the EAT. From the context it can be concluded, that "fixation" is the first embodiment of a fleeting broadcasting transmission.88
The RC and EAT do not require the application of a certain recording method. Therefore, the fixation in digitised form on new carriers such as a CD-ROM is also subject to protection.
Tangible/intangible forms of fixation
It is unclear, however, whether the term "fixation" is limited to the recording on tangible carriers such as phonograms, CDs, and audio/video-tapes (see above).89 Digitisation is blurring the boundaries between tangible and intangible forms of fixation and reproduction. One form of intangible fixation may be storage in a computer memory, something which was hardly known at the time of drafting the RC. This form of fixation is important, for example, with regard to the so-called multi-media computers designed to receive conventional broadcasts. Using such devices, parts of the broadcast can readily be loaded directly on the computer’s memory. Unlike the RC, Article 1 (d) of the EAT grants broadcasters the right to control "any fixation of such broadcast". The broader wording of Article 1 (d) could be interpreted as stating that fixations are covered irrespective of the way in which they are made.
The concept of broadcasting
Fixations which are not made from the first transmission of television or radio broadcasts are not subject to any exclusive rights as provided for under the RC, EAT or SC. Consequently, and as a result of the narrow concept of broadcasting, the unauthorised fixation of wire- (or online-) transmitted programmes is lawful under the RC, EAT and SC. The same applies to unauthorised fixations of programme carrying signals.
For a fixation right for broadcasters to be complete in a digital environment, it would have to be defined broadly enough to cover fixations of broadcasts (irrespective of the form in which the broadcast is transmitted) in whole or in part, irrespective of the medium of fixation (tangible/intangible), as well as indirect fixations on the basis of reproductions. Article 1 (d) of the EAT could be interpreted in a sense that covers intangible forms of fixation.
Article 6 (2) of the Rental and Lending Rights Directive provides broadcasters with a fixation right, without defining the notion of "fixation". However, the fixation right is granted irrespective of whether the broadcast is transmitted by wire or over the air, including by cable and satellite. Thus, the scope of protection granted exceeds the rights available under the RC and EAT. The draft Copyright Directive does not grant a separate fixation right, but rather a right to control reproductions of fixations of broadcasts.
It has been proposed to introduce a precise definition of the notion of "fixation". One proposal described fixation as the "embodiment of sounds or images and sounds, or of the representation thereof, from which they can be perceived, reproduced or communicated through a device."90 Submitted proposals clarify that fixation is considered as the embodiment on tangible carriers only.91 As regards the fixation right, it was agreed to define a broad right of fixation, for example in the sense of "any fixation of their broadcasts"92 or "the fixation in whole or in part, direct or indirect, of their broadcasts or phonograms, videograms or other data carriers."93
c) The reproduction of fixations of broadcasts without the consent of the broadcaster
The significance of the reproduction right increases steadily with the improvement of recording methods such as modern DVD technology which allows the making of high-quality and multigenerational copies. Particularly in the digital environment, both on- and off-line, many different types of reproduction are made, such as tangible permanent copies (printout) or non-tangible temporary copies (e.g. in the working memory of a computer) of broadcasts or reproductions thereof. Additionally, the expected multichannel and special interest television will allow for a wide choice of contents - mostly undisturbed by advertisement breaks. As a consequence, it will become more and more attractive to copy parts of programmes such as films, live concerts etc., also without authorisation, and to sell the recordings. Since broadcasters themselves participate increasingly in the secondary exploitation of their broadcasts, unauthorised copying might constitute a serious economic threat.94 The reproduction right is an important instrument in preventing unauthorised secondary exploitation of broadcasting in the form of unauthorised copying and distribution of such copies for commercial purposes.
The RC defines in Article 3 (e) "reproduction" of broadcasts as the "making of a copy or copies of a fixation." The EAT, however, offers no definition of the term. It is unclear whether the reproduction has to be permanent or if the temporary storing is also subject to the exclusive right. According to Article 13 (e) and 15 (1) c of the RC, only ephemeral copies, which are made by broadcasters by means of their own facilities are not subject to the reproduction right. The question whether temporary copies are covered is relevant particularly as regards reproductions taking place in the transmission process within computer networks. The same may apply for the process of digitisation of signals.95 If the broadcaster would have to consent to each act of reproduction in the framework of an automatic working process, this would considerably hamper the transmission process. In particular the wording of Article 1 (d) of the EATcould be interpreted so as to cover any form of reproduction ("any reproduction of such a fixation"), including temporary reproductions. Consequently, a solution may be needed which excludes temporary copies from the scope of the reproduction right.
Under the RC, only the making of reproductions of the first fixation of broadcasts is covered (the "reproduction of fixations").96 The same applies to the EAT. Thus, the making of a reproduction of a reproduction is not restricted under the RC or the EAT. In the past, this could be explained by the considerable loss of quality during multiple copying. However, with the introduction of digital technologies, the making of multigenerational copies with no significant loss in quality is possible.
The concept of broadcasting
Recordings which are not made from the transmission of broadcasts, such as the occasional recording of programme material (before its transmission to the public) or the re-recording from wire or or on-line transmission are not covered under the RC. This is a consequence of the narrow concept of broadcasting under the RC and the EAT.
Tangible/intangible forms of reproductions
Again it is unclear under both the RC and the EAT whether acts of reproductions in immaterial form, such as the storing in a computer memory, are also covered. Similar to what has been said with regard to the fixation right, the question of whether immaterial copies are covered is of particular interest as regards the use of multimedia computers.
Limitations to the reproduction right
Unlike the reproduction right under the EAT, the reproduction right under Article 13 of the RC is limited per definitionem to:
- fixations, made without the consent of broadcasters, of their broadcasts;
- fixations, made in accordance with the exemptions provided under Article 15 (see below) if the reproduction is made for purposes other than those referred to in those provisions.
As a result of the first limitation, once the broadcaster has consented to the fixation of his broadcast, he practically gives up the reproduction rights granted to him under Article 13 of the RC, since Article 13 (c) of the RC grants an exclusive reproduction right only with respect to unauthorised fixations. Thus, a broadcaster might be exposed to uncontrollable acts of exploitation:
- by entities other than those which have been authorised to make fixations of the broadcast or
- in the form of reproductions which exceed the number of copies previously agreed to.
As regards the second limitation, it is not quite clear whether it is a precondition for the coming into existence of the reproduction right that a fixation has been made for purposes other than those allowed for under Article 15 of the RC. The other possible interpretation would be that Article 13 (c) merely refers to the exemptions laid down in Article 15 of the RC. If the former case is true, it is not quite clear how broadcasters can practically prevent the unauthorised reproduction of their broadcasting. In that case, the broadcaster would have to prove that the reproduction was not made for private purposes, short reporting or scientific and educational reasons as allowed by Article 15 of the RC. However, the mere application of copying devices is neutral. Thus, it will be extremely difficult to prove such an illicit intention, unless the copies are not distributed for e.g. commercial purposes.
Distribution of reproductions and fixations
It is somewhat unclear how broadcasters can enforce the fixation and reproduction right in practice. Unlike the situation in 1960, nowadays devices to make reproductions and fixations such as video recorders are cheap, transportable and easy to obtain. Broadcasters probably first realise that an unauthorised fixation has been made only, when this fixation (or copy thereof) has been distributed. And even then it will be difficult to prove that the person distributing the fixation/reproduction is the person responsible for making the fixation/reproduction.
Neither the RC nor the EAT give broadcasters the right to prevent the distribution of reproductions or fixations. Thus, the practical effect of the reproduction or fixation right is limited. Once the fixation has been made, the broadcaster will generally not be able to prevent the exploitation of his fixed broadcast in any form on the basis of neighbouring rights as granted by these regulations. This might cause gaps in the protection, particularly where the party copying the broadcast (with the authorisation of the broadcaster) is not the party redistributing the fixed programme.97
In Recommendation No. R (88) 2, as well as in Recommendation No. R (95) 1, the Council of Europe pays attention to, inter alia, the problem of unauthorised distribution of copies. Recommendation No. R (88) 2 concluded that effective action could be taken against piracy through both appropriate measures at national and co-operation at international level. The Recommendation, however, refers to broadcasters only as producers of audiovisual recordings. In Recommendation No. R (95) 1 it is pointed out that the introduction of technical anti-piracy devices may increase the security and protection of contributions against the threat of sound and audiovisual piracy.98
Additionally, the Council of Europe has provided information on certain technical features which could be effective against piracy in the handbook: "The Fight against Sound and Audiovisual Piracy".
Rebroadcasting, wire diffusion or public performance with the aid of fixations or reproductions
The EAT goes beyond the RC when granting broadcasters the right to control "rebroadcasting, wire diffusion or public performance with the aid of fixations or reproductions."99 This right is granted irrespective of whether the broadcaster has consented to the previous fixation. As a result, forms of deferred transmission and communication to the public fall under the EAT.
The definition of reproduction should be as technology independent as possible in order to cover broadcasts irrespective of their means of transmission. To provide for a sufficient protection in the digital environment, a reproduction right should be designed sufficiently broadly to cover both tangible and intangible as well as multiple forms of reproduction irrespective of whether the fixations have been made with the consent of the broadcaster. Acts of temporary reproductions as inevitable part of electronic transmission processes, however, should be excluded explicitly from the definition.100 The enforcement of the fixation right would be facilitated if broadcasters were given a possibility to prevent the unauthorised distribution of fixations and reproductions. The application of technological anti-piracy devices could help to complete the protection of broadcasters. In addition, the Council of Europe’s handbook on "The Fight against Sound and Audiovisual Piracy" may be updated to inform about new technical features.
It is planned to replace Article 7 (1) of the Rental and Lending Rights Directive101 with Article 2 (e) of the proposed Copyright Directive.102 The latter provision will grant to broadcasters a broad reproduction right in the sense of an exclusive right to authorise or prohibit "direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite." This definition is designed to cover all relevant acts of reproduction, whether on-line or off-line, in material or immaterial form, permanent or temporary.103 Additionally, Article 5 of the draft Copyright Directive introduces a differentiated system of exceptions as regards temporary acts of reproduction for the purpose of enablingelectronic transmission processes. Furthermore, the proposed directive pays special attention to possible exceptions as regards copying for private and non-commercial use.104
Also within WIPO, it has been proposed that the concept of the reproduction right105 be clarified and a broad right of reproduction such as the right to control the "direct or indirect reproduction of fixations of their broadcasting in any manner or form whatsoever"106 be introduced. This, quite broad wording, aims at covering all sorts of reproduction such as ephemeral, incidental copies as well as the reproduction in tangible and intangible form. However, no proposals have been made on the issue of reproduction as part of an automatic transmission process.
d) Importation of certain unauthorised fixations and their reproductions
The EAT goes one step further than the RC and combats the importation of certain unauthorised fixations and their reproductions in the Contracting States. Article 4 (1) of the EAT states, that, under certain conditions, fixations of a broadcast in which protection under that Agreement subsists, or still photographs thereof, as well as reproductions of such photographs, made in a territory to which the EAT does not apply shall be liable to seizure in the territory of a Party to the EAT. The provision applies, where the fixations etc. would be unlawful under the law of the Party to the EAT.
Recommendation No. R (88) 2 addresses the importation and distribution of pirated material and encourages international co-operation in this field.
Within WIPO, it has been proposed to add an importation right to the legal protection of broadcasters.107
e) The communication to the public of television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee
The reason for the introduction of a right to show broadcasts in public in Article 13 of the RC may be seen to prevent broadcasts, as the entrepreneurial activity of a broadcaster, from being used without authorisation by a third party for commercial purposes. Originally, this provision was introduced to strengthen the position of broadcasting organisations in negotiations with organisers of sports and cultural events. The latter were hesitant to grant licences for the transmission of sports and cultural events, fearing that third parties would make the transmission available to the public (for payment).108 According to Article 13 (d) of the RC broadcasters have the right to prohibit a communication to the public if "such communication is made in places accessible to the public against payment of an entrance fee". At the time of drafting the RC, this applied to cinemas and television rooms. Since nowadays nearly every household possesses at least one television set, this provision appears somewhat archaic.
The RC and the EAT do not define the term "communication to the public". However, from the wording and context it can be concluded that the focus of the communication right lies on the activity of performing broadcasts in public for commercial purposes.
Means of transmission
It is unclear whether the communication right does apply to all means of transmission, including wire. According to the used wordings, the communication right apparently does not require any specific means of transmission. Being technology independent, communication to the public might include any means or instrument for the transmission of signs, sounds or images.109 As opposed to "places" such as cinemas and TV-rooms, transmissions via Internet are probably not considered to constitute performances in a "place accessible to the public" in the sense of the RC.
The communication right focuses exclusively on the distribution of television broadcasts. Thus, under both the RC, SC and the EAT, radio broadcasters could not prevent a discotheque from entertaining the audience by playing radio broadcasts. Only where radio broadcaster act as producers of phonograms could they claim, according to the conditions laid down in Article 12 of the RC, adequate remuneration in respect of any communication to the public of their broadcast.
In places accessible to the public and against payment of an entrance fee
The effect of the communication right is limited. With the availability of television sets to the average consumer, the significance of this provision has faded considerably. The provision might still apply to discotheques, pubs etc. where entrance fees are required. Nowadays, however, it is more likely that when a television transmission takes place in a commercial framework it is only as an incidental service (in particular where no entrance fee is required), e.g. in the form of "background" entertainment (e.g. in cafés, clubs, railway stations, hotels, restaurants, doctors surgeries), for advertising (e.g. in shop windows) or special attractions (e.g. in a pub during the soccer world championships).110 Accordingly, some member States have replaced the condition of payment of an entrance fee with the requirement that such a communication must be commercial or made for the purposes of making profits.111 Others have granted the communication right without the limitation regarding a paying audience.112
Article 1 (1) (c) of the EAT goes further by granting broadcasters a right to authorise the "communication of [their] broadcasts to the public by means of any instrument for the transmission of signs, sounds or images". This communication right applies in principle to any form of communication to the public, irrespective of the means of transmission, the place of communication and the requirement of an entrance fee. To this extent, the communication right might overlap with the rebroadcasting and cable distribution rights. It should be noted that the reservation under Article 3 (b) of the EAT enables contracting States to limit the level of protection to the rule of Article 13 (d) of the RC.113
An interesting question is whether the communication right under the EAT also covers the making available of a broadcast on-line, e.g. on a homepage. The answer will depend on the definition of the notion "to the public".
The wording of Article 1 (1) (c) of the EAT includes the diffusion of broadcasting in hotels and restaurants, irrespective of whether an entrance fee has to be paid. In principle, broadcasters may even prevent the non-commercial transmission of broadcasting in railway stations or shop windows.
It is not quite clear whether the communication right under the RC and the SC also covers the transmission of broadcasting on the basis of previous fixations. As far as the EAT is concerned, apparently, this issue has already been addressed by Article 1 (1) (e) (see above). In so doing, this provision constitutes the only, heavily restricted distribution right of the EAT.
The communication right granted under the RC is clearly outdated. In particular the notion of "in places accessible to the public and against the payment of an entrance fee" should be replaced. For example, broadcasters could be granted the right to control communications to the public in places accessible to the public where this is done for direct or indirect commercial profit. Furthermore, it does not seem justified to exclude radio broadcasting from the scope of the right. On the other hand, the communication right as granted under the EAT seems to be too far-reaching. It is unclear why the showing of broadcast in public, as such, should infringe the legal position of broadcasters, considering that broadcast generally is intended for reception by the public.
A new way of communicating to the public may be considered the presentation of contents on a digital platform for commercial purposes such as on a homepage.114 Accordingly, the term "in places accessible to the public" could be understood in a broader sense, covering not only public places in the sense of restaurants and cinemas but also digital platforms accessible to members of the public.115 This would allow covering the increasingly popular on-line exploitation of broadcasts. However, the term "to the public" would have to be interpreted in a broader fashion, for example in the sense of transmission to "members of the public".116
Article 8 (3) of the Rental and Lending rights Directive does not go beyond the scope of the communication rights as granted under the RC as regards the condition of communication made in places accessible to the public against payment of an entrance fee. However, at the EC level, radio broadcasters also enjoy a communication right.
The submitted proposals for a WIPO initiative suggest broadening the "communication to the public" right so as to cover also the public reception of broadcasts in hotels, restaurants and other public premises, irrespective of whether an entrance fee is required.117 Furthermore, there seems to be an agreement to include radio broadcasting. Suggestions which have been made vary from the "making the broadcast or a fixation thereof audible or visible in places accessible to the public"118 to a right of communication to the public "in any manner and form whatsoever."119
Exceptions to exclusive rights in intellectual property serve to achieve balance between the various interests involved in the creation of works or, in the case of broadcasting, the provision of broadcasts.120 The Seminar on copyright and neighbouring rights in the digital era, held in Oslo in 1996 concluded that the scope of exceptions concerning the use of material subject to intellectual property right could prejudice the interests of rights holders in the new digital context and, in the long term, the audiovisual industry as a whole as well as the interests of the public.121
The set of limitations stipulated in the RC and the EAT is rather restricted. Article 15 of the RC (1) lists four kinds of exceptions (private use, ephemeral copies, short reporting and educational or scientific reasons). Furthermore, member States are free to provide, additionally, for the same kinds of limitations with regard to broadcasting organisations, as they have done in domestic law and regulations concerning copyright in literary and artistic works.122 Article 3 (2) of the EAT mentions only two types of exceptions: the reporting on current events and "the making of ephemeral fixations of television [not radio] broadcasts by a broadcasting organisation by means of its own facilities and for its own broadcasts".123 Furthermore, the EAT leaves it expressly to the Contracting Parties to decide whether they want to grant the aforementioned exceptions in their national legislation.
The sets of exceptions found in national laws differ considerably in accordance with each nation's practices and culture. In particular, the protection of freedom of information, access to information, privacy, individual use, educational, scientific and social interests, the preservation of cultural, artistic and public heritage and the promotion of creation are interests which are provided for by national legislators.
To the extent that broadcasters and rights holders are granted more rights and have improved facilities to control access and use of works, a broader set of exceptions in favour, for example, of the users might be needed to maintain the balance between the interests involved.124 As regards broadcasting, particular exceptions protecting the rights granted under Article 10 of the ECHR such as short reporting and quotation and ensuring the availability of current information are of evident interest, for example in the case of encrypted broadcasts.125
In addition, the application of existing limitations may have different consequences in the digital environment. Existing national sets of limitations have often technology-dependent definitions and are, thus, only to a limited extent applicable to the converging media (for example, where exceptions are bound to the transmission of programmes by wireless means, tangible forms of copying for private purposes, etc).
The digital environment may also call for specifically designed exceptions such as the procedural downloading into working memory, but also as regards private copying which may, under certain circumstances, conflict with the normal exploitation of broadcasts.
In Recommendation No. R (86) 9 and Recommendation No. R (88) 1, the Council of Europe recommends that member States examine the existing sets of exceptions to the national intellectual property rights from this perspective. However, the Recommendations focus exclusively on national exceptions relating to private copying. In addition, unlike Recommendation No. R (86) 9, Recommendation No. R (88) 1 deals only with the exception of private copying in favour of authors, performers and producers but not of broadcasters.
Recommendation No. R (91) 5 seeks to prevent that the exercise by broadcasters of certain exclusive rights for the transmission of events undermines the right of the public to information.126 In view of Article 10 of the ECHR, it is recommended to grant secondary broadcasters the right to provide information on major events by means of a short report. An interesting question, which is not dealt with in the Recommendation, is, how such limitations can be enforced in practice where broadcasters apply technological measures to secure their broadcasting.
When updating the existing set of neighbouring rights for broadcasting organisations, the scope of the exceptions may also require rethinking. For example, an update of Recommendation No. R (91) 5, taking cable orientated and encrypted programming into account, might be advisable. According to what has been said before, there may be a need to ensure that member States, when updating their national laws on the protection of broadcasters, correspondingly amend the sets of exceptions available nationally.
Different approaches can be observed at the international level. The EC tends to define possible exceptions as precisely as possible to achieve the highest possible degree of harmonisation (See Article 5 of the draft Copyright Directive and recital 26).
Following the approach of the WPT and the WCCT, submitted proposals for a WIPO treaty tend to leave member States relatively free to define exceptions to intellectual property rights.127
4 New rights proposed in the EC and WIPO
The broadcasting environment has become competitive and broadcasting is a more or less commercial activity. Consequently, the existing set of exploitation rights does not necessarily meet the needs of broadcasters in the digital environment. At the level of the EC and WIPO and in several member States, it was, and still is, discussed to provide for certain new "economic" rights for broadcasters and, by doing so, exceed the set of rights granted under the RC, the EAT and the SC. In the following, an overview will be given on the current legal situation in the European Community as regards the aforementioned "new" rights. Additionally, the relevant proposals, which have been submitted to the Standing Committee of the WIPO, will be introduced.
a) Distribution Right
Article 9 (1) of the Rental and Lending Rights Directive provides for the territory of the European Community the right for broadcasters to make available fixations and copies of their broadcasts. At the same time, the Directive states a rule of exhaustion according to which right holders are no longer able to prohibit, on the basis of an exclusive right, the further distribution of material once the right holder has consented to its distribution. This is to prevent the distribution right from being used to restrict every act of import/distribution within the Internal Market.
At the level of WIPO, many proposals contain an exclusive distribution right for broadcasters.128
b) Rental and Lending right
Under the Rental and Lending Right Directive (Article 2 (1)), broadcasters are granted the exclusive right to control the rental and lending of films and copies thereof where the first fixation of the film was made by the broadcaster. In this sense, "rental" means the making available for use for a limited period of time and for direct or indirect economic or commercial advantage, whereas "lending" covers the making available of films for no direct or indirect advantage, when made through establishments which are accessible to the public (Articles 1 (2) and 3 of the Directive).
Within WIPO, it has been proposed that broadcasters be granted a general rental right, irrespective of whether they are producers of the first fixation of the film.129
c) Making available right
Article 3 (2) of the draft Copyright Directive intends to give broadcasters the right to control "the making available to the public, by wire or wireless means, in such a way that members to the public may access them from a place and at a time individually chosen by them…for broadcasters of fixations of their broadcast, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite." As a result, broadcasters will be granted the right to control the on-demand delivery of their broadcast or parts thereof. In doing so, Article 3 (2) of the draft Copyright Directive follows the approach of Article 8 of the WCT and Articles 10 and 14 of the WPPT.
The submissions for a possible WIPO instrument include proposals to introduce a right to make available for broadcasters corresponding to the right already granted to performers and producers of phonograms.130
For the territory of the EC, three new rights have been introduced or proposed with view to the secondary exploitation of broadcasts or parts thereof on the basis of previous fixations or copies. At the level of WIPO, too, new rights as regards the secondary exploitation on the basis of fixations of broadcasts are being discussed.
Before introducing new rights for broadcasters, however, it should be examined carefully, whether they are still covered by the rationale of neighbouring rights. The exploitation of the original broadcast exhausts with the transmission of the programme to the public. Consequently, the activity of realisation and transmission of a broadcast to the public is subject to the exclusive neighbouring right of broadcasters to prevent acts of its unauthorised exploitation. However, the distribution, rental or making available of copies of this broadcast or parts thereof (for example in the form of sale, rental, making available on demand) are new content-based forms of exploitation on the basis of previous fixations. Consequently, it could be argued, that broadcasters may prevent these forms of exploitation on the basis of existing fixation and reproduction rights. On the other hand, it could also be stated that the distribution right is necessary to enable broadcasters to enforce existing fixation and reproduction rights. Still, it remains questionable if the same can be said for a making available or rental right.
Secondly, acts of secondary exploitation of broadcasts, such as the sale of copies, generally focus rather on the content of broadcasts or parts thereof than on the broadcast transmission as such (as was the case for example with the unauthorised rebroadcasting and communication to the public of broadcasts). The entrepreneurial investment of the broadcaster in the creation of fixations and reproductions of broadcasts and their distribution is the same as that invested by other producers of content based products such as audiovisual products, phonograms or videograms. Thus, it is questionable whether it is justified to treat broadcasters differently by granting them additional rights. It is also questionable whether there is a need to do so. When broadcasters act as producers of phonograms and videograms, they might already be afforded sufficient protection under national intellectual property law or general law. The existence of corresponding rights may thus serve as an indicator for the actual need of an extension.
On the other hand, a comprehensive research into the applicable law may also show that existing laws do not provide for sufficient protection, in which case an extension of broadcasters rights may be necessary. Thus, further research which would go beyond the scope of this study may be needed to assess to what extent there is a concrete legal as well as economic need to introduce additional rights for broadcasters.
Finally, where new rights are introduced, their interrelation with existing rights, in particular intellectual property rights, and other interests such users or public interests involved should be examined carefully to prevent possible distortions of the existing balances. 131
d) Decoding right
Additionally within WIPO, it has been proposed to introduce a right of decoding of encrypted broadcasts.132
The decoding right, as proposed in WIPO, would go beyond the existing approach of the Council of Europe, which focuses with regard to the protection of encrypted services exclusively on preparatory activities such as the manufacture, sale, import etc. of decoding devices.133 Furthermore, the act of decoding as such is not a restricted act under neither international nor national intellectual property law.134 In so far as encryption technology serves to protect neighbouring rights, the protection of the technology should be included in a broader provision covering a wide range of technological measures and not only encryption technology (see below). As far as encryption serves other interests, such as receiving an adequate remuneration in return for the provision of broadcasting services, this is not a matter for intellectual property law.
5. Technological measures
The development of technological measures gives broadcasters an effective instrument to control access to and the use of their broadcasts. For example, providers of pay-TV broadcasting services use technological measures to guarantee payment for their services. As the Council of Europe has already pointed out, they also provide new means of identification and protection of broadcasts for example preventing unauthorised copying and other forms of secondary exploitation of broadcasting.135
The RC, EAT and SC do not include any specific provisions on the protection of technological measures. However, the Council of Europe has already undertaken some measures with regard to the use and protection of technological measures.
In Recommendation No R (95) 1, the Council of Europe recommended that member States consider technical anti-piracy devices as a means to increase the security and protection of works and other contributions against the threat of sound and audiovisual piracy.136
The Group of Specialists on the legal protection of services based on or consisting of conditional access (MM-S-CA) is drafting a Convention on the legal protection of services based on, or consisting of, conditional access137. The draft Convention addresses not only television and radio broadcasting services but also information society services. However, this Convention is designed to deal exclusively with the use of conditional access techniques to protect remuneration interests while excluding other interests such as the protection of intellectual property rights.138
Recommendation No. R (91) 14, however, deals with the legal protection of technological measures used for all possible purposes, including the protection of neighbouring rights.139 The Recommendation suggests that member States treat as unlawful certain preparatory activities, which facilitate the unauthorised circumvention of technological measures. Additionally, it is recommended that adequate sanctions and remedies be introduced into the national penal, administrative and civil laws. However, the Recommendation is restricted to the application of encryption techniques, while encryption techniques are only a number of various different techniques to protect services (such as scrambling, digital locks, password-based systems, etc.). Thus, no specific guidelines exist with regard to the protection of technological measures protecting neighbouring rights through other techniques than encryption. Furthermore, Recommendation No. R (91) 14 focuses on television broadcasting while radio broadcasters may be equally exposed to piracy of their electronic protection systems.
The protection of technological measures is a controversial issue and involves many conflicting interests. Some of them have already been addressed in Recommendations of the Council of Europe. In some respects, an update of Recommendations No. R (91) 14 and No. R (95) 1 may be considered.
The task of creating an appropriate legal framework for the protection of technical measures is rendered difficult by the fact that the debate is still going on.140 The concept of protection of technical measures is relatively new and raises various questions. Privacy and unfair competition have to be taken into account, the need for certain legal limitations to the application of technical measures, the relationship between technological measures and intellectual property rights limitations141 as well as the public interest in the availability of information. The Council of Europe has already recognised the possibility of conflicts between the application of technological measures and the principle of freedom of expression and of the free access to information.142
The legal protection of technological measures has already been the subject of several initiatives at the level of the European Union. The Conditional Access Directive grants protection to, inter alia, broadcasters using conditional access devices in order to ensure remuneration for their (pay TV) services. In addition, with Article 6 of the draft Copyright Directive, it has been proposed to declare unlawful the circumvention of technical measures which are designed to protect copyright and neighbouring rights.
At present, the European Commission is planning to conduct a study examining the various reasons for using technical measures and their possible interrelation. Before undertaking future initiatives in this field, it might be helpful to wait for the outcome of this study.
Within WIPO, it has been proposed to consider obligations concerning technological measures that are used by broadcasting organisations in connection with the exercise of their rights.143 The proposals correspond widely to the relevant provisions in the WCT and WPPT.
6. Rights management information
In connection with the current issue of collective rights management of copyrights and related rights, the legal protection of electronic rights management information has become an additional and important issue when talking about intellectual property rights.
Rights management information comprises all information, be it in electronic form or not, that identifies a protected work, the owner of any rights in the work as well as information about terms and conditions of use of a protected item. Rights management information is generally attached to a copy of a protected item or appears in connection with the transmission of a work to the public. Rights management information enables right holders to trace and monitor the use and, in doing so, facilitate exploitation of protected items and management of rights.144
None of the examined instruments provides for any protection of such rights management information.
In the draft Copyright Directive, it is proposed to introduce provisions making it illegal to remove or change rights management information.
Similar to what has been stated in the WCT and the WPPT, it has been proposed to introduce a legal protection of electronic rights management information used by broadcasters.
7. Terms of protection
In the RC, the SC and the EAT the minimum term of protection is fixed at 20 years from the end of the year when the transmission occurred.145 Member States are however free to provide for a longer term of protection.
The Term Directive stipulates in Article 3, as regards the rights of broadcasting organisations, that the term of protection shall expire 50 years after the first transmission of a broadcast, irrespective of the means by which the broadcast is transmitted.
The submissions for a possible WIPO initiative propose that the term of protection shall be 50 years computed from the end of the year in which the broadcast was broadcast for the first time.146
Conclusions and possible lines of action
This section presents the main conclusions from the first part of the study and provides recommendations for possible further initiatives by the Council of Europe to improve the situation of broadcasters. A summary of the gaps identified appears in Appendix.
The analysis has shown various gaps in the provisions of the RC when applied in the modern technological environment. The same applies, consequently, for the protection of satellite broadcasts under the SC. In particular, where broadcasters use new transmission techniques and forms of presentation of their contents, there is considerable legal uncertainty. The provisions of the EAT are broader and go beyond the RC in some respects. However, as with the RC, the lack of adequate definitions raises considerable legal uncertainty as regards the application in the modern broadcasting environment.
The provisions of the EAT are wider in scope and go beyond the RC in several important aspects, for example as regards unauthorised cable retransmission, public communication, still photographs, retransmission of broadcast material after its unauthorised fixation as well as the importation of unauthorised fixations or reproductions. Furthermore, the rights granted are generally less restrictive in notion and thus could be interpreted as covering recent forms of exploitation, such as the permanent copying or copying in intangible form as well as digital transmission or transmission via telephone or fibre lines, etc. On the other hand, the effects of the EAT may be reduced by the number of possible reservations to the agreement.
In several European countries, in particular in the member States of the EC, modernisation processes of existing neighbouring right regulations for broadcasters have begun. Still, a large number of national regulations seem to reflect to some extent the standard of protection provided for under the RC.147
The analysis has shown that, at present, more advanced legislation at the supranational level only exists within the European Union.
The Council of Europe has already taken additional initiatives to improve the situation of broadcasters in the fields of unauthorised cable retransmission,148 unauthorised reproduction of broadcasting and distribution of such copies,149 exceptions,150 remedies and sanctions 151and the protection of technological measures.152 However, these Recommendations are not focusing directly on the amendment of existing national laws, but constitute supplementary initiatives to create an appropriate environment for the provision and protection of broadcasting services.
As a result, for the time being, no legally binding instrument exists at the international level which provides broadcasters with sufficient protection against new forms of piracy. Thus, there is a need to update the existing rights for broadcasting organisations to meet the requirements of the new technologies.
2. Current initiatives at regional and international level
At the level of the EC, the process of updating the legal protection of broadcasters has already begun.153 The protection of broadcasters within the member States of the European Union already exceeds to some extent the protection under the RC, EAT and SC, particularly as regards satellite and cable transmission, the fixation right, the reproduction right and the recently introduced distribution right. Further initiatives seek to extend the reproduction right and introduce an interactive making available right. On the other hand, the study has to some extent identified a need for initiatives, which go beyond the existing EC-regulations regarding the concept of broadcasting, wire transmission, the fixation right and the communication to the public right. However, the provisions of the relevant EC regulations reflect a minimum standard and, thus, would generally not conflict with more far-reaching initiatives. The experience of the member States of the EU as regards the implementation of the relevant EU directives might also provide useful information for further initiatives by the Council of Europe, for example regarding the definition of the reproduction right, conditions for the exercise of the cable distribution right or questions in the context of satellite transmission.
At the WIPO level, detailed proposals have been submitted on how to modernise neighbouring rights protection for broadcasters in the current situation. Some of the proposals give reason to expect that, if adopted, they will considerably improve the situation of broadcasters. These proposals largely coincide with the suggestions made in this study. However, it is not yet clear whether negotiations will lead to a binding instrument and, if so, to what extent submitted proposals will be reflected in such an instrument.
3. Recommendations for further initiatives by the Council of Europe to improve the situation of broadcasters
The Council of Europe is particularly well suited to provide for modernised principles of protection for the greater Europe. This would also serve to avoid considerable differences in protection between EU member States and non-member States. Initiatives could be based on previous initiatives by the Council of Europe to improve the situation of, inter alia, broadcasters. When updating existing neighbouring rights, different forms of initiatives by the Council of Europe would be possible. 154
a. Update of Recommendations No. R (86)2, (88)2, (91)5, (91)14, (95)1 and the handbook on The Fight against sound and audiovisual piracy
First of all, the study has identified that an update of some of the Councils’ Recommendations (in particular, (86)2, (88)2, (91)5, (91)14, (95)1) may be beneficial, as may further initiatives. The same applies to the handbook on The Fight against Sound and Audio-Visual Piracy.
Secondly, a concrete update of existing neighbouring rights for broadcasters could be envisaged.
b. Update of existing neighbouring rights by either drafting a new Recommendation or updating Recommendations No. R (95) 1 or R (88) 2
One option would be to either update Recommendations No. R (95) 1, (88) 2 or draft a new Recommendation, which would focus on suggestions to the member States on how to update existing definitions and rights, in particular for broadcasting organisations.155 Recommendation No. R (95) 1 already draws attention to the current lacunae in protection, for example regarding unauthorised cable retransmission, distribution of fixations and reproductions of broadcasts as well as the protection of technological measures. In this context, it should be mentioned that the MM-S-PR is drafting a revised Recommendation No. R (88) 2156 which focuses on those principles which are of particular importance in the digital era.
Considering that Recommendations No. (95) 1 and (88) 2 do not exclusively deal with the protection of broadcasters and that, on the other hand, no modernised international legislation exists for this group of holders of neighbouring rights, the drafting of a new Recommendation especially for broadcasters may be preferable.
In view of the recent technological developments, a possible initiative could refer to existing relevant recommendations and international instruments. It could recommend to member States to take immediate action against audiovisual piracy, ensure speedy and more effective action at the national and international levels and take into consideration the gaps in existing international regulations, as identified in this study and summarised in the Appendix to this study, when developing their anti-piracy policies.
Pros and contras of an initiative such as a Recommendation
One advantage of an instrument such as a Recommendation is that it does not require a time-consuming ratification process before it can come into force. Thus, a Recommendation could enable the Council to react immediately. The instrument of a recommendation gives the possibility to draw attention to points that are more difficult to consider in an agreement or convention, such as the need to define the relationship between broadcasters and other entities which transmit programmes, the need to rethink existing concepts of exceptions or the relation between technological measures to protect neighbouring rights and existing exceptions. Thus, a Recommendation could serve as a very flexible instrument to provide for modernised principles in Europe as regards the protection of broadcasters neighbouring rights.
On the other hand, a Recommendation is not a legally binding instrument. Thus, it could be used to improve the situation of broadcasters only indirectly, since it would have to be incorporated into national laws to make it effective. Consequently, a Recommendation cannot serve as a basis for direct claims, as may be the case with, for example, the EAT. Secondly, with the EAT a specific instrument on the protection of broadcasters´ rights exists. Against this background, it is questionable whether an update of Recommendation No. (95)1, (88)2 or the drafting of a new Recommendation goes far enough.
c. Revision of the EAT
The second option would be to update the EAT.
Considering the advanced nature of the provisions of the EAT, the scope of revision needed is relatively modest. The suggestions made in this study, and in particular those summarised in the Appendix, could serve as a basis for a revision.
Pros and contras of a revision of the EAT
The EAT was the first regional instrument to introduce neighbouring rights protection for broadcasters and is still the most advanced of the regulations analysed. With the EAT, a regulation exists at level of the Council of Europe which provides specialised protection focused on European broadcasters. This is also a reason why the revision of the EAT may be preferred to similar options, such as the drafting of a new convention or agreement. A revision of the EAT, in addition, would be in line with recent initiatives of the Council of Europe, in particular the draft revised Recommendation No. R (88) 2. Another advantage of the EAT (as opposed to, for example, a Recommendation) is its binding nature and the fact that where national law of the member States foresees this possibility, it can be used as the basis for direct claims by private law in contracting States.
It should be born in mind, however, that the EAT was conceived as an interim measure pending the elaboration of an international convention on the protection of neighbouring rights.157 In view of the ongoing negotiations at the level of WIPO, it may therefore be questionable whether a successful outcome would render a Council of Europe initiative in this direction unnecessary. Should a legally binding instrument be adopted within WIPO, the Council may wish to reconsider the possibility of taking similar initiatives in this particular field in order to avoid possible duplication of the work of WIPO. All the more since it cannot be excluded that the existence of two international regulations on the same issue may lead to possible conflicts or confusion in transformation, in particular regarding those member States which are members of both the Council of Europe and WIPO. Additionally, only a relatively small number of States are signatories to the EAT, and it is likely that other States will prefer to delay ratifying the agreement until the work at WIPO has been completed.
d. Possible lines of action
Consequently, in a situation where it is decided at the level of WIPO to adopt a legally binding instrument – such as a WPTT broadcasters treaty or protocol – the Council of Europe may still decide that a Recommendation would be the best way to use its influence on member States to encourage them to undertake immediate action to improve the situation of broadcasters, and thus achieve greater unity between member States.
On the other hand, it is not yet clear whether the negotiations at the level of WIPO will lead to the adoption of a legally binding instrument. If the outcome of the negotiations were to lead to the adoption of a non-binding Recommendation, it is doubtful whether sufficient protection for broadcasters would be guaranteed. Furthermore, the standard of protection of broadcasters at the international level would clearly lag behind the protection of other holders of neighbouring rights, such as performers and producers of phonograms. In this case, it seems advisable to provide for advanced protection, at least at the European level, for example by revising the EAT.
Even if a treaty or similar regulation is adopted in WIPO, it should be taken into account that the standard finally agreed upon at the level of WIPO may represent only a minimum level of protection. Considering the number of participants in the consensus process from countries all over the world, this possibility cannot be excluded. The Council of Europe may thus recognise that the standard of protection provided will not meet the demand of broadcasters in Europe in the current situation. In addition, the specific situation of broadcasters in Europe may require specific protection, which may be not granted under such an international instrument. This would also avoid a situation in which there would be considerable differences in protection between the EU members and non-members.
The EAT, in this context, could serve as a suitable basis from which to achieve this goal. Secondly, the decision of the Council of Europe whether an initiative such as a revision of the EAT should be undertaken may also depend on the date on which a possible WIPO treaty or protocol can be expected to come into force. If it becomes clear that a possible ratification of such an international instrument cannot be expected in the near future, then there will be a need to provide at least broadcasters in Europe with sufficient protection, bearing in mind that the threat of piracy is always present.
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Gaps in protection of neighbouring rights for broadcasters
under the examined international regulations
The analysis has revealed various gaps in the examined international regulations concerning the protection of neighbouring rights for broadcasters when applied in the modern technological environment. Consequently, the same may be true for national laws which have been designed on the basis of such international regulations. As a result, broadcasters may be exposed to various new forms of audiovisual piracy without being adequately protected.
In the following, the gaps identified by this study are summarised. The point of reference is the legal protection as granted under the RC since it served as a model for most of the existing national laws. Where the EAT provides more far-reaching provisions, this is indicated by an asterisk.
1. The definition of broadcasting
A clear definition is needed in order to indicate that the notion of broadcasting includes at least transmission by satellite (FSS and DBS), in encrypted as well as digitised form in so far as the transmission is intended for reception by the public.
Ancillary data, texts, etc. are not protected.
Programme carrying signals are not protected.
2. Protection of cable casters
No rights similar to those of broadcasters exist for providers of programming who use wire as the original means of transmission and who do not merely transmit by cable the broadcasting of other organisations.
3. Protection of webcasters
No rights similar to those of broadcasters exist for providers of programming via the Internet and which do not merely transmit via Internet the broadcasting of other organisations.
4. Rebroadcasting right
No sufficient protection may exist against the unauthorised deferred transmission of broadcasts.*
No sufficient protection may exist against the unauthorised retransmission by means of cable or other physical conductors.*
No sufficient protection exists against the unauthorised on-line transmission of broadcasts.
No sufficient protection exists against the unauthorised retransmission by entities other than broadcasting organisations, such as individuals, providers of on-line services, cable distributors, etc.
Possibly, additional rules governing the relationship between the units transmitting programmes via wireless and wire means (e.g. arbitration rules) could be introduced.*
5. Fixation right
No sufficient protection exists against the unauthorised fixation in intangible form.
No sufficient protection exists against the unauthorised fixation of programming transmitted by means other than wireless transmission, such as wire or on-line transmitted programmes.
6. Reproduction right
It should be clarified that the reproduction right does not cover temporary storage as part of the transmission process in computer networks in order not to hamper electronic transmission processes.
No sufficient protection may exist against unauthorised reproductions in intangible form as well as against indirect reproductions.*
No sufficient protection exists against unauthorised reproductions of programming transmitted by means other than wireless transmission, such as wire transmitted programmes.
7. Distribution right
No right to prevent the unauthorised distribution (including importation)* of fixations and reproductions exists.
8. Communication to the public right
The criterion of "in places accessible to the public, against payment of an entrance fee" is fairly outdated and should be replaced by a more general criterion such as "in places accessible to the public where this is done for direct or indirect commercial profit".
No right to prevent unauthorised communication to the public exists for radio broadcasters.
There is a need to review existing sets of exceptions and limitations to neighbouring rights. Exceptions should be formulated in such a way that they are as independent of technology as possible. In particular, the existing set of exceptions should correspond to the (revised) rights of broadcasters, e.g. by extending the quotation right to programmes that were originally transmitted by cable.
Specific additional exceptions may be needed in view of recent technological developments, for example as regards procedural downloading (if not excluded per definitionem from the scope of the reproduction right); means of copying; exceptions as regards Article 10 of the ECHR (e.g. as regards encrypted broadcasting).
Clarification may be needed regarding the exercise of exemptions in the context of the application of technological measures which prevent unauthorised access or usage.
10. Technological measures
No protection exists for technological measures used to prevent piracy.
11. Rights management information
No protection exists for electronic rights management information.
12. New rights
Possibly, the introduction of new economic rights could be considered, such as the distribution (including importation) of fixations and reproductions of broadcasts or parts thereof, the making available of broadcasting or parts thereof on-demand, a rental and lending right, etc. However, in order to avoid unreasonable extensions of the neighbouring rights regime, the introduction of additional new rights should be confined to situations where a concrete economic and legal need for such rights has been clearly identified and additional legislation is justified by the rationale of neighbouring rights.
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Suggestions for a possible revision of the EAT
The following suggestions are based on the results of part 1 of this study.
When updating current neighbouring rights protection for broadcasters, rights should be designed so that they are as independent of technology as possible. The study has shown that the regime of neighbouring rights protection as granted under the EAT needs to be improved in several aspects. In the following, the gaps identified and, at the same time, concrete suggestions on how the existing rights could be updated in order to provide for sufficient protection are summarised.
1. Definition of broadcasting:
ˇ A clear definition should be introduced in order to indicate that the notion of broadcasting includes at least transmission by satellite (FSS and DBS), in encrypted as well as digitised form in so far as the transmission is intended for reception by the public.
ˇ On the other hand, a restrictive element should be introduced in the definition of broadcasting in order to avoid an unreasonable extension of neighbouring rights. It has been pointed out that it is increasingly difficult to define broadcasting/a broadcast, especially where broadcasters participate in the provision of new, enhanced services. The rationale behind neighbouring rights for broadcasters certainly does not justify the protection of every transmission of sounds and signals. Therefore, it has been proposed to make the protection of broadcasting, inter alia, conditional upon the existence of a pre-scheduled programme.