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Strasbourg, 15 November 1999

MM-S-PR(1999)009 def

 
 

GROUP OF SPECIALISTS ON THE PROTECTION
OF RIGHTS HOLDERS IN THE MEDIA SECTOR

(MM-S-PR)

______

Neighbouring rights protection of broadcasting organisation: Current problems and possible lines of action

Study by a consultant

______

Secretariat memorandum
prepared by the Directorate General of Human Rights

_____

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 Possibly, protection could be extended to ancillary data, texts, etc.

ˇ Possibly, protection could be extended to programme carrying signals.

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.

 

RC

EAT

SC

Other Council of Europe initiatives

What is protected

"Transmission by wireless means for public reception of sounds or of images and sounds"

No definition

No definition

 
 

Generally, radio and television broadcasting +

Radio broadcasting -

Radio broadcasting +

 
 

Cable transmitted broadcasting –

Cable transmitted broadcasting -

 

Rec. No. R (86)2

 

Webcasting –

Webcasting -

 

(Draft) Cyber Crime Convention?

 

Digital broadcasting?

Digital broadcasting?

   
 

Satellite broadcasting?

Satellite broadcasting?

Satellite broadcasting +

Rec. No. R(86)2

 

Encrypted broadcasting?

Encrypted broadcasting?

Encrypted broadcasting +

 
 

Programme carrying signals –

Programme carrying signals –

   
 

Text, ancillary data -

Text, ancillary data -

   

Who is protected

Broadcasters

Broadcasters

Satellite broadcasters +

(Rec. No. R (86)2)

 

Cable casters –

Cable casters –

   
 

Webcasters -

Webcasters -

   

Rebroadcasting right

"Simultaneous broadcasting by one broadcasting organisation of the broadcast of another broadcasting organisation."

No definition

See RC

 
 

Retransmission by wire –

Retransmission by wire +
(but not deferred)

 

Recs. No. R (86)2, (86)9; (95)1; Declaration on neighbouring rights

 

Deferred retransmission –

Deferred retransmission +

   
 

On-line transmission -

On-line transmission -

   
 

Retransmission. by individuals –

Retransmission by Individuals –

   

Fixation right

No definition

No definition

See RC

Rec. (95)1

 

Intangible fixations?

Intangible fixations? ("any ...")

   
 

Still photographs -

Still photographs +

   
 

Fixations from cable transmitted programmes -

Fixations from cable transmitted programmes -

   

Reproduction right

"Making of a copy or copies of a fixation"

No definition

See RC

Recs. No. R (86)9, (88)1), (95)1, Handbook piracy

 

Limited per definitionem

No limitation per definitionem

   
 

Reproductions from cable transmitted programmes -

Reproductions from cable transmitted programmes -

   
 

Multiple copies –

Multiple copies?

   
 

Permanent copies?

Permanent copies?

   
 

In intangible form?

In intangible form?

   

Distribution right

-

-

See RC

Recs. No. R (86)9, (88)1, (95)1,
Handbook piracy

Importation

-

+

See RC

Recs. No. R (86)9, (88)2, (95)1

Communication to the public

No definition

No definition

See RC

 
 

Restrictions:
Places accessible to the public
Payment of an entrance fee

No restriction

   
 

Any means of communication +

Any means of communication +

   
 

Making available on-line -

Making available on-line -

   

Exceptions

Private use

Private use (subject to reservation)

 

Recs. No. R (86)9, (88)1, (91)5

 

Ephemeral copies of television

Ephemeral copies of television (non-obligatory)

   
 

Short reporting

Reporting on current events (non-obligatory)

   
 

Education, science

     

Rental, lending right

-

-

-

 

Making available right

-

-

-

 

Decoding right

-

-

-

 

Technological measures

-

-

-

Recs. No. R (91)14, (95)1, Handbook on Piracy,
Draft Convention Conditional Access

Rights Management
Information

-

-

-

 

Term of protection

20 years

20 years

20 years

 

1 Hereafter termed "RC".

2 22 June 1960, text as amended according to the provisions of the Protocols to the Agreement (ETS No. 54, 81, 113) – hereafter termed "EAT".

3 11 May 1994 – hereafter termed "SC".

4 Recommendation No. R (86)2 of the Committee of Ministers to member States – On Principles Relating To Copyright Law Questions In the Field of Television By Satellite and Cable, 14 February 1985;
Recommendation No. R (86)9 of the Committee of Ministers to member States - On Copyright and Cultural Policy, 22 May 1986;
Recommendation No. R (88)1 of the Committee of Minsters to member States - On Sound and Audiovisual Private Copying, 18 January 1988;
Recommendation No. R (88)2 of the Committee of Ministers to member States - On Measures to Combat Piracy in the Field of Copyright and Neighbouring Rights, 18 January 1988;
Recommendation No. R (91)5 of the Committee of Ministers to member States – On the Right to Short Reporting on Major Events Where Exclusive Rights for their Television Broadcast have been Acquired in a Transfrontier Context, 11 April 1991;
Recommendation No. R (91)14 of the Committee of Ministers to member States on the Legal Protection of Encrypted Television Services, 27 September 1991;
Declaration on Neighbouring Rights, Committee of Ministers, 17 February 1994;
Recommendation No. R(94)3 of the Committee of Ministers – On the Promotion of Education and Awareness in the Area of Copyright and Neighbouring Rights Concerning Creativity, 5 April 1994;
Recommendation No. R (95)1 of the Committee of Ministers to member States – On Measures against Sound and Audiovisual Piracy, 11 January 1995.

5 In the sense of the electronically generated carrier which transports radio or television programmes for reception by the public.

6 A. Kerever, Should the Rome Convention be revised and, if so, is this the right moment?, Copyright Bulletin, Vol 25, 1991, p. 4, 6

7 See Article 1 of the RC, Article 6 of the EAT.

8 See C. Jehoram, Neighbouring Rights of Performers, Phonograms Producers and Broadcasting Organisations, Law & the Arts, Vol. 15, No. 1, 1991, p. 76.

9 W. Nordemann, International Copyright and Neighboring Rights Law, Commentary with special emphasis on the European Community, Weinheim, 1990, Commentary RC, Article 3, Paragraph 21.

10 This aspect may be of particular importance as regards certain acts of unauthorised secondary exploitation of parts of broadcasts on the basis of previous fixations.

11 Nordemann, Commentary RC, Article 2, Paragraph 6.

12 Nordemann, Commentary EAT, Article 4, Paragraph 2.

13 Nordemann, Commentary EAT, Introduction, Paragraph 4.

14 Denmark, France, Germany, Norway, Sweden and the United Kingdom.

15 But see Article 13 (1) of the Agreement as amended by the first protocol, 22 January 1965.

16 Article 5 (1) of the SC.

17 Cyprus and Norway.

18 Council Directive 92/100/EEC, 19 November 1992 – On Rental and Lending Rights related to Copyright in the Field of Intellectual Property, O.J. L 346, p. 61, 27 November 1992 – hereafter referred to as "Rental and Lending Rights Directive".

19 Council Directive 93/83/EEC, 27 September 1993 – On the Co-ordination of Certain Rules Concerning Copyright and Rights Related to Copyright Applicable to Satellite Broadcasting and Cable Retransmission, O.J. L 248, p. 15, 6 October 1993 – hereafter referred to as "Satellite and Cable Directive".

20 Council Directive 93/98/EEC of 29 October 1993 – Harmonising the Term of Protection of Copyright and Certain Related Rights, O.J. L 290, p. 9, 29 October 1993 – hereafter referred to as "Term Directive".

21 Commission of the European Communities, Amended Proposal for a European Parliament and Council Directive – On the Harmonisation of certain Aspects of Copyright and Related Rights in the Information Society hereafter referred to as "draft Copyright Directive".

22 15 April 1994.

23 The protection granted to broadcasters under the TRIPS Agreement is subject to an opting-out according to Article 14 (3) in fine. If a Member State does not grant such a right to broadcasters, it still has to provide owners of authors rights with rights in the subject matter of broadcasting.

24 21 May 1974 – hereafter referred to as "Brussels Satellite Convention".

25 WIPO, Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions, Geneva, 2 – 20 December 1996, WIPO Copyright Treaty, 20 December 1996 – hereafter termed "WCT".

26 WIPO, Diplomatic Conference on Certain Copyrights and Neighbouring Rights Questions, Geneva, 2 – 20 December 1996, WIPO Performances and Phonograms Treaty, 20 December 1996 – hereafter termed "WPPT".

27 See, for example, WIPO World Symposium on Broadcasting, New Communication Technologies and Intellectual Property, organised by the World Property Organisation (WIPO) in cooperation with the Government of the Philippines and with the assistance of the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), Manila, 28-30 April 1997.

28 WIPO, Standing Committee, Second Session, Geneva, 4 –11 May 1999, Agenda Item 4: Protection of the Rights of Broadcasting Organisations, Submissions Received from member States of WIPO and the European Community by 31 March, 1999, SCCR/2/5 (including the European Community, Japan, Switzerland), SCCR/2/6 (non-governmental organisations), SCCR/2/7 (Mexico), SCCR/2/8 (UNESCO).

29 See European Commission, Green Paper on the Convergence of the Telecommunications, Media and Information Technology Sectors and the Implications for Regulation. Towards an Information Society Approach, COM(1997)623, December 1997 – hereafter referred to as "Green Paper Convergence", p. 7.

30 I.e. a service which includes a transactional element or enhanced broadcast.

31 The broadcaster provides the user with access to the Internet from the television screen, e.g. combined with an electronic programming guide.

32 See European Commission, Green Paper on the Legal protection of Encrypted Services in the Internal Market, March 1996, COM(96)76 – hereinafter referred to as "Green Paper Encrypted Services", p. 5.

33 See Council of Europe, The Fight against Sound and Audiovisual Piracy, Handbook, 1995, p. 8 and subsq.

34 Preamble of the RC.

35 Generalbericht zur Rom-Konferenz (1961), UFITA 40(1963), p. 99, 107.

36 Article 3 (g) of the RC.

37 But see Article 6 (2) of the Rental and Lending Rights Directive, below.

38 See draft Copyright Directive, Explanatory Memorandum, p. 33.

39 See also K. Weatherall, An End to Private Communications in Copyright? The Expansion of Rights to Communicate Works to the Public; Part 1, European Intellectual Property Review, Vol 21, Issue 7, July 1999, p. 342, 346.

40 See also F. v. Gamm, Urheber- und urhebervertragsrechtliche Probleme des digitalen Fernsehens, ZUM 1994, p. 591, 592.

41 Another question is whether an unauthorised interceptor might be held liable, for example, under national telecommunication law and therefore exposed to sanctions and remedies, see e.g. Articles 87 and 95 of the German Telecommunication Law.

42 Nordemann, Commentary Satellite Convention, Article 3 Paragraph 26. Different opinion, J.v. Ungern-Sternberg, Die Satellitensendung des Rundfunks, GRUR Int. 10/1970, p. 303, 308: argues that the transmission via satellite would not constitute a transmission directly to the public but to the transmitter. However, P. Masouye pointed out rightly that the term "to the public should be interpreted in a broadly way in the sense of "intended for public reception" to comply with the intention of the regulation, P. Masouye, EBU Review 1969, Vol. 115, p. 43, 44.

43 But see Recommendation No. R (86) 2, below.

44 Article 1 (2) of the SC. See also Article 1 (1) of the Satellite and Cable Directive.

45 Another question is whether the transmission could be prevented on the basis of intellectual property law, competition law or other general laws.

46 See Green Paper Copyright, Section VI, p. 56, 61.

47 See G. Schricker, T. Dreier, S. von Lewinsky, Urheberrecht auf dem Weg zur Informationsgesellschaft, Gutachten für das Bundesministerium der Justiz, Baden-Baden, 1997, p. 125: "Problem der sukzessiven Öffentlichkeit."

48 Article 1 (a) of the Draft Convention [on Cyber Crime].

49 For example, even the transmission of a public debate outside the lecture hall may be considered as broadcasting (when transmitted by wireless means).

50 See Australian Government, Exposure Draft and Commentary: Copyright Amendment (Digital Agenda) Bill 1999, Commentary, Paragraph 8. At the 9th meeting of the MM-S-PR, 2-3 September 1999, it was generally felt that the concept of wireless broadcasting should be maintained. The study, therefore, will follow that approach.

51 See, for example, the Directive 96/9/EC of the European Parliament and the Council, 11 March 1996 – On the legal protection of databases, O.J. L 77, 27.3.1996, p. 20.

52 See J. Rheinbote, S. von Lenwinsky, The EC Directive on Rental and Lending Rights and on Piracy, London, 1993, p. 88.

53 See Article 4 of the Satellite Directive; Article 6 (2) of the Rental and Lending Rights Directive.

54 Submission from non-governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Article 2 (b). NAB-Japan, Article 2 (d).

55 Submission from non-governmental organisations, IAB, Paragraph 3; Submission by EC, Paragraph 1.

56 Submission from non-governmental organisations, Digital Media Association (DiMA), Section 2.

57 Submission from non governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Article 2 (c); NAB-Japan, Article 2 (d).

58 Submission from member States, Article 4; Submission from non-governmental organisations, draft WIPO Broadcasters‘s Treaty, Article 5 (h).

59 Article 3 (g) RC.

60 This does not necessarily mean that an act of unauthorised retransmission of signals is lawful. It might, for example, infringe copyright in the content of the transmission. Additionally, the unauthorised retransmission might, under certain circumstances, be considered as an act of unfair competition under national laws. See H. Hubmann, M. Rehbinder, Urheber- und Verlagsrecht, 8th Edition, München 1995, Paragraph 56 Section 3.

61 See Peter Weber, Digital Services and their legal protection, EBU Copyright Symposium, Amsterdam, 4 June 1999.

62 For further information see e.g. Powerline Communications (PLC) - http:// www.rwe.de and www.plcnet.com.

63 See Council of Europe, Droits de propriété intellectuelle et distribution par câble de programmes de télévision, Dossiers sur les mass media No. 5, Strasbourg 1992, p. 47, Paragraph 2.

64 Recommendation No. R (86)9, recommendation No. II.

65 Recommendation No. R (95)1, Explanatory Memorandum, Paragraph 53.

66 See Droits de propriété intellectuelle et distribution par câble de programmes de télévision, Council of Europe, p. 15 subsq.

67 See Council of Europe, Protection of Neighbouring Rights - Discussion Document, Strasbourg, 1996, Issue No. 7 (c).

68 Nordemann, Commentary EAT, Article 4, Paragraph 10.

69 Droits de propriété intellectuelle et distribution par câble de programmes de télévision, p. 49.

70 See Article 6 (2) and (3) of the Rental and Lending Rights Directive.

71 But see Article 11 bis (1) Nr. 2 of the Berne Convention.

72 Not clear in the case of the EAT.

73 They might, however, infringe copyrights or other related rights in the content of the broadcast.

74 R. Calleja, Convergence: Gone digital, going interactive – markets and regulation in the audiovisual sector, Entertainment Law Review, Vol. 10, Issue 3, May 1999, p. 64, 66.

75 Due to the existence of improved devices for copying, the making of fixations has become much easier.

76 Generalbericht zur Rom-Konferenz (1961), 108.

77 The broadcasting signals are apportioned in a block of memory (a buffer) in the random access memory of a user‘s computer with some seconds worth of audiovisual information so that the user can watch it while the next seconds worth information are downloaded. See Calleja, op.cit., p. 65.

78 Nordemann, Commentary EAT, Article 1 Note 4 (a).

79 E.g. Portugal Article 176 (9) of the Portuguese Copyright Act grants neighbouring rights protection to "bodies which effect the diffusion of sounds and (or) images by cable." (Act. No 63 of 14 March 1985, as amended by Acts No. 45 of 3 September 1991). In the UK, cable programme services are recognised as holders of neighbouring rights (Copyrights, Designs and Patents Act 1988, sec. 185). The same applies for Austria (Section 76a and 17 (2) of the Copyright Statute, Federal Act on Copyright in Works of Literature and Art and on Related rights, as amended up to 29 November 1989).

80 But see Article 10 of the Satellite and Cable Directive which says that these provisions do not apply to rights exercised by a broadcasting organisation in respect of its own transmission. It may be questionable whether the later restriction is justified.

81 Article of the 10 Satellite and Cable Directive. Critical M. Vogel, Vorschlag der EG-Kommision für eine Richtlinie zur Koordinierung bestimmter urheber- und leistungsschutzrechtlicher Vorschriften betreffend Satellitenrundfunk und Kabelweiterverbreitung, ZUM 1/1992, p. 21, 24.

82 Submission from member States, EC, Paragraph 3; Japan, Paragraph 3 (a); submission from non-governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Article 5.

83 Submission from member States, Switzerland, Article 4.

84 Submission from non-governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Article 2 (e).

85 Submission from non-governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Article 2 (d).

86 Considering that the reason for the protection of broadcasters is the labour and money invested in the broadcasting programmes as a whole, one may doubt if this also justifies giving broadcasters an exclusive right with regard to any single picture of their programming. See also Schricker, p. 285.

87 Germany and the the United Kingdom have issued reservations.

88 Nordemann, Commentary RC, Article 13, Paragraph 3.

89 See e.g. § 87 (1) No. 2 of the German Copyright Act which clarifies that only the fixation on an audio- or videotape is covered.

90 Submission from non-governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Article 2 (g).

91 Submissions from member States, Switzerland, Article 7.

92 Submission from non-governmental organisations, draft WIPO Broadcasters Treaty, Article 5 (e).

93 Submission from member States, Switzerland, Article 7.

94 See Council of Europe, The Fight against Sound and Audiovisual Piracy, Handbook, p. 12.

95 See Schricker, p. 110.

96 Nordemann, Commentary RC, Article 13, Paragraph 4.

97 The possibility remains, however, for broadcasters to prevent the unauthorised reproduction on the basis of their intellectual property rights in the content of broadcasts.

98 Recommendation No. R (95)1, Appendix, Paragraph 4.

99 Article 1 (1) (e) of the EAT.

100 Another option would be to make acts of temporary reproduction subject to a specific exception, see Article 5 (1) of the draft Copyright Directive.

101 Concerning the right to "authorise or prohibit the direct or indirect reproduction, for broadcasting organisations, of fixations of their broadcasts."

102 Article 10 (a) of the draft Copyright Directive.

103 Draft Copyright Directive, Explanatory Memorandum to Article 2, Paragraph 3.

104 Article 5 (2) of the Draft Copyright Directive.

105 Submission from member States, European Communities, Paragraph 3.

106 Submission from member States, Switzerland, Article 8; submission from non-governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Article 5 (f).

107 Submission from non-governmental organisations, draft WIPO Broadcasters Treaty, Article 5 (j).

108 Eugen Ulmer, Das Rom-Abkommen über den Schutz der ausübenden Künstler, der Hersteller von Tonträgern und der Sendeunternehmen, Grur Int. 1961, p. 569, 601.

109 See Article 1 (c) of the EAT.

110 Nordemann, Commentary RC, Article 13, Paragraph 6.

111 For example Article 48 of the Icelandic Copyright Act no. 73 1972.

112 For example Denmark, the Netherlands and Switzerland.

113 Belgium, Denmark, Norway, Germany, Sweden and the United Kingdom have made use of this reservation.

114 See Copyright Sub-Committee of the Working Group on Canadian Content and Culture, Copyright and the Information Highway, March 1995 (Chapter 4).

115 See, for example, Article 10 of the WCT and Articles 10 and 14 of the WPPT.

116 See draft Copyright Directive, Explanatory Memorandum, Paragraph 3.

117 Submission from non-governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Article 2 (f). Submission from member States, Switzerland, Article 5.

118 Submission from non-governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Articles 5 (d) and 2 (f).

119 Submission from member States, Switzerland, Article 5.

120 Particularly the interests of the broadcaster in appropriate conditions of access to protected works and of the user in free access to contents, especially with regard to his right under Article 10 of the ECHR.

121 Council of Europe, Proceedings of the Seminar "Copyright and neighbouring rights in the digital era: New challenges for rights holders, rights management and users", Oslo, 28-29 May 1996.

122 Article 15 (2) of the RC.

123 Article 3 (1) (c) EAT. The EAT does not include any obligations concerning exceptions on private use. Member States are left free to decide whether they want to restrict broadcasters’ right as regards private use.

124 See P.B. Hugenholtz, Adapting copyright to the information superhighway, in: P.B. Hugenholtz (ed.), The future of copyright in a digital environment. Proceedings of the Royal Academy Colloquium organised by the Royal Netherlands Academy of Sciences (KNAW) and the Institute for Information Law (Amsterdam 6-7 July 1995), Den Haag 1996, p. 81-102, p. 93 subsq.

125 See Council of Europe, Declaration on the Freedom of Expression and Information, 29 April 1982, sections II. (d), III. (c), (e).

126 See also Article 9 of the European Convention on Transfrontier Television.

127 See for example Article 10 (1) of the WCT.

128 Submission from non-governmental organisations, draft WIPO Broadcasters Treaty, Article 5 (e), (f), (g), (j); Submission from member States, Switzerland, Article 9 (1); Japan, Paragraph 3.

129 Submission from member States, Japan, Paragraph 3 (b).

130 Articles 10, 14 of the WPPT. Submission from non-governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Article 5 (g); submission from member States, Switzerland, Article 10; Japan, Paragraph

131 See European Commission, Submission from member States and the European Commission, Note 3. See also Nordemann, who explains that from a formal point of view, for example authors' rights may remain unaffected. But the introduction of new rights would have the effect that broadcasting organisations no longer would have to acquire rights in order to forbid the use of their own television productions by third parties. The consequence is not the loss of their own rights, but the indirect weakening of their legal and factual negotiating position: Nordemann, Commentary EAT, p. 347.

132 Submission from non-governmental organisations, proposal for a draft WIPO Broadcasters’ Treaty, Article 5 (i); Submission from member States, Switzerland, Article 6.

133 See Recommendation No. R (91) 14, Principle 1 and Article 3 of the Draft Conditional Access Convention.

134 Hugenholtz, p. 92.

135 Recommendation No. R (95)1, Appendix Paragraph 4, Explanatory Memorandum, Paragraph 50.

136 Recommendation No. R (95)1, Appendix, Paragraph 4.

137 Hereinafter referred to as "draft Conditional Access Convention".

138 See Articles 1 and 2 (b) of the draft Conditional Access Convention.

139 Recommendation No. R (91)14, Explanatory Memorandum, Paragraph 1.

140 See N. Helberger, Hacken von Premiere bald europaweit verboten?, ZUM, 4/1999, 295, 305.

141 See K. Koelmann, Protection of Technological Measures, Imprimatur Study, Institute for Information Law, Amsterdam 1998, p. 31 subsq.

142 Recommendation No. R (91)14, Explanatory Memorandum, Paragraph 8.

143 Article 10 of the submission from non-governmental organisations, submission by Japan, Note 4; Article 13 of the proposal from Switzerland.

144 See A. de Kroon, Protection of Copyright Management Information, Imprimatur Study, Institute for Information Law, Amsterdam 1998, p. 7.

145 Articles 14 of the RC, 2 (1) of the EAT, 5 (1) of the SC.

146 Submission by Switzerland, Article 12; submission by the non-governmental organisations, proposal for a draft WIPO Broadcasters‘ Treaty, Article 7.

147 See WIPO, Standing Committee on Copyrights and Related Rights, Existing International, Regional and National Legislation Concerning the Protection of the rights of Broadcasting Organisations, Memorandum prepared by the International Bureau, SCCR/1/3, 7 September 1998.

148 Recommendations No. R (86)2, (95)1.

149 Recommendations No. R (86)2, (95)1, Handbook on the Fight against Sound and Audiovisual Piracy.

150 Recommendations No. R (86)9, (88)1, (91)5.

151 Recommendation No. R (88) 2.

152 Recommendations No. R (95)1, (91)14, draft Conditional Access Convention.

153 See Part 1 of the study.

154 This study does not examine under which conditions and according to which provisions a revision process of instruments in question would have to proceed.

155 This study does not examine any closer the possibility to update the RC (see for this e.g. the study by M. M. Walter, International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention 1961), 31 May 1999, ILO/UNESCO/WIPO/ICR.17/6). This study recognises the RC as an important instrument of broadcasters rights protection which still influences many existing national and international regulations in this field. Apart from the limited competence of the Council of Europe to initiate an update of the RC, however, it is questionable whether an amendment of the RC is a realistic option. One may doubt whether it will be possible to unite the representatives of the three categories of neighbouring right holders.

156 Draft Recommendation on measures to increase the protection of copyright and neighbouring rights and to combat piracy especially in the digital environment; document MM-S-PR (99)12 rev.

157 See Article 13 (1) of the EAT in its original version (22 June 1960); see also Nordemann, Commentary EAT.

158 An alternative solution would be to extend the communication to the public right.

159 An alternative solution would be, while considering temporary storage as an act of reproduction, to grant specific exceptions regarding temporary reproduction for the sole purpose of enabling a transmission process to work. See Articles 2 (e) and 5 of the draft Copyright Directive.

160 An alternative solution would be to extend the rebroadcasting right or to introduce an on-line transmission right.