ABU COPYRIGHT FORUM

DR. HEIJO RUIJSENAARS

HEAD OF INTELLECTUAL PROPERTY

3RD IP AND LEGAL COMMITTEE

STEIN STUDIOS, COLOMBO (SRI LANKA)

12 MARCH 2019

EU COPYRIGHT REFORM

&

ITS RELEVANCE FOR BROADCASTERS

IP LAW CHALLENGES:

WHAT MAKES BROADCASTERS SO SPECIAL?

uniquely intensive rights clearance (24/7)

+

cultural actors (both user and right-holder)

+

AV policy / media law obligations (quid pro quo)

Broadcasters have enhanced need for legal certainty (country-of-origin), and for protection, also of their online signals

TYPICAL FOR / UNIQUENESS OF / BROADCASTING

SIGNALS DO NOT STOP AT BORDERS….

- Free-to-air

- Digital terrestrial

- Cable

- Satellite

- IP-TV / Broadband

- Webcasting / Streaming

- Mobile (phone) networks

- Videogame consoles

- USB sticks/dongles (e.g. Roku/Chromecast)

- 5G (2020) / Internet of Things ?

PROGRAMME EXPLOITATION CHALLENGES: MULTIPLE PLATFORMS FOR SIGNAL DISTRIBUTION

Consequence: New forms of digital signals • Online (linear or on-demand) transmissions (real-time streams)

• “Red-button” or OTT services:

1. simulcasts of regular broadcasts

2. catch-up of regular broadcasts

3. pre-transmission of regular broadcasts (previews)

4. online signals with parts of regular broadcasts (e.g.highlights)

5. online extensions of regular broadcasts

(e.g. timely concurring Olympic Games’ disciplines);

6. signals with other related programming

(e.g. additional documentary material not broadcast offline)

7. signals with other (stand-alone) online-only material

8. streaming-only web channels

NB Still no international (WIPO) protection for any of these signals !!!

Digital Single Market

(incl. review of EU

copyright framework)

EU

COMMISSION

2014 - 2019

THE EU COMMISSION’S VIEW – A FRAGMENTED EUROPE

“No discrimination based on nationality or unjustified geo-

blocking” (Ansip, 24.2.2015)

“Europe cannot be at the forefront of the digital revolution

with a patchwork of 28 different rules for

telecommunications services, copyright, IT security and

data protection.” (Oettinger, 25.3.2015)

“I cannot understand why I can watch my favorite Danish

channels on my tablet in Copenhagen – a service I paid for

– but I cannot when in Brussels.” (Vestager, 26.3.2015)

(Or: how to reduce “unjustified” geo-blocking)

GEO-BLOCKING V. EU SINGLE MARKET

(CLAIMED) BENEFITS FROM A BORDERLESS EUROPE

Job growth (50% by online startups)

Adds €340 billion to GDP of the EU

Cost savings

("digital by default" would save

EU public sector €10 billion p.a.)

More access to (online) services from other Member States

Benefits for media from pan-European market (in theory)

Regulatory - Media / AV policy / Antitrust - Territoriality of copyright Contractual - New media uses - Exclusivity arrangements

(film/sports rights) Technical Control/monitoring/costs of remote access (via online / cloud services)

MAIN CHALLENGES

FOR THE MEDIA

Digital

intermediaries

DSM regulatory - All relevant policies for broadcast media have now been reviewed

Portability

AV Media

Services Telecoms

E-Commerce Copyright

Data Protection

Global media

Convergence

Platforms /

Big data /

A.I.

1989: TwFDir adopted country-of-origin for linear;

2010: AVMSDir extended to (certain) on-demand;

Digital Single Market: distinction will become blurred

EU MEDIA / AV POLICY OBJECTIVES

Relation with copyright:

1993: Sat/CabDir to facilitate licensing for cable and satellite

1996: WIPO Treaties introduced new "on-demand" right

Digital Single Market: (so far) no rule on licensing for online services

Single market for production / distribution

of “TV-like” content:

MAIN POLICIES

EU copyright policy: Modernising copyright in the light of the digital revolution (i.e. new platforms/devices), new consumer behaviour (i.e. on-demand use) and Europe's cultural diversity (i.e. cross-border access)

EBU priorities: Facilitate licensing (process) for broadcasters’ online services across platforms and (where desired) across EU borders

(Non-)Liability of

online intermediaries Stricter rules? Consequences?

EU COPYRIGHT REFORM – MAIN RELEVANT ISSUES FOR EBU

Cross-border portability PSM: opt-in or stay out?

Review of 1993 Sat-

Cab Directive

Clarification of

"communication"Framing always lawful?

EU Copyright

Update broadcasters’ right (+ WIPO Treaty)

Enforcement of IP

SEPTEMBER 2016: MULTIPLE COPYRIGHT PACKAGES

Regulation on portability (December 2015)

Regulation on broadcasters’ online transmissions and programme retransmission

Directive on Copyright in Digital Single Market (various issues)

Implementation of the WIPO Marrakesh Treaty (for people with print disabilities)

Soft-law to make European works more accessible (e.g. search tool, identifiers)

Later (?) : Update of IPR Enforcement Directive (notice and take-down process)

LINKAGES WITH COPYRIGHT REFORM E-Commerce Directive (intermediaries’ (non-)liability)

Review (+ aims) of AVMS Directive (e.g. country-of-origin)

Services Directive (non-discrimination of EU residents, unless required by law)

Draft Regulation on Geo-blocking (ban on passive sales)

Draft Directive on digital sales (e.g. CDs, DVDs, but “IPR not affected”)

DG COMP investigations on E-Commerce + Pay-TV (contractual restrictions)

FA Premier League (“Murphy”) case 2011:

ECoJ: Recalibration of IP v. EU competition law & EU freedom of services

territorial rights’ sales (continue to be) allowed,

but no “artificially high” remuneration for rightholders

Application to Pay-TV film contracts (Paramount and Canal+ cases):

DG Comp: Right-holders cannot oblige Pay-TV to refuse foreign unsolicited requests

But: how to reconcile this with territorial exclusivity?

EU COMPETITION LAW: FROM MURPHY TO PARAMOUNT & CANAL+

2016 – 2019:

DISCUSSION (AND ADOPTION)

BY EU MEMBER STATES

AND EUROPEAN PARLIAMENT

2018 EU REGULATION ON CROSS-BORDER PORTABILITY Access to online content services paid for at home

(free-of-charge services allowed to “opt-in”)

Potential impact on (territorial exclusive) rights’ contracts;

Solution: “temporary abroad” = at home (legal fiction)

Right-holders can neither forbid use nor demand extra payment

Right-holders may require from providers to implement reasonable

measures to verify their costumers’ residence

Meaning of “temporary” left to political battle….

Complementary to

Sat-Cab review

Free-of-charge online

content services:

Opt-in approach;

Verification of

residence: Flexibility

(no one-size-fits-all,

keep technical costs

reasonable)

EBU VIEW ON CROSS-BORDER PORTABILITY

NEW DRAFT REGULATION (NOW DIRECTIVE):

ORIGINAL DRAFT FOR

BROADCASTERS’ ONLINE TRANSMISSIONS

1) “Country-of-origin”, based on place of establishment

2) Payment to take account of all aspects (features, audience, language)

= similar to satellite rule, but

a) expressly includes reproduction right

b) retroactive application to ongoing agreements

c) ECL ?

DRAFT REGULATION (NOW DIRECTIVE):

BROADCASTERS’ ONLINE TRANSMISSIONS

Limited to “ancillary” online services:

i.e. simulcast, catch-up but also online-only if “enriching” or “expanding” offline broadcasts, incl. “previews” (trailers, pre-broadcasts etc.) “extending” (unused footage, additional material etc.) “reviewing” (updates, interviews, new reports etc.), or “supplementing” (parallel match, specials for youth, etc.)

But (EP): Only if produced in-house !

a) Simultaneous retransmission on other-than-cable platforms

(EBU view: make cable retransmission regime technology-neutral)

b) 3rd party re-use of broadcasters’ on-demand (e.g. catch-up) services

(EBU view: collective licensing to apply for underlying rights)

Result:

Modernizing cable licensing regime in the 1993 Sat-Cab Directive,

but only item a) was adopted

HOW TO LICENSE BROADCASTERS’ SERVICES

TO THIRD-PARTY MEDIA PLATFORMS

DRAFT DSM

DIRECTIVE (?)

Exceptions & limitations: Text & data mining / Teaching / Preservation of cultural heritage

Out-of-Commerce works: Special ECL (with cross-border effect)

ECL: General conditions but no cross-border effect)

VOD services: MS to create mechanism for rights negotiation

Press publishers New neighbouring right (aimed at search engines)

(Large) UGC platforms: ‘’New” obligation to agree on take-down process

+ technology + increased liability

Fair remuneration: New (horizontal) obligations on transparency

of exploitation / revenues as well as on

possible contract adjustment (“bestseller”)

and revocation of rights (non-use)

“EXTENDED”

COLLECTIVE

LICENSING

(ECL)

Recognized in EU

Directives

For secondary use of

multiple ‘’underlying’’ rights

Guarantee of remuneration

Future-proof

(technologically neutral)

Voluntary (allowing opt-out)

Legal certainty

(no 3-step-test)

to be used only where appropriate,

e.g.

- archives (+ orphan works),

- programme ‘start-over’ services,

- net-PVR services

- certain online services (music, visual arts, literary works)

Advantages of ECL for broadcasters

28

YouSee Play (Denmark) - TV channels in on-demand service of broadband provider

ECL: REAL BENEFITS FOR RIGHTS-HOLDERS

2010 2011 2012 2013 2014

Index 100 114 128 151 163

(Source: CopyDan Verdens/UBOD)

E.g. collective income for IP-uses of TV programmes (retransmission,

Start Over, extended Start Over up to 48 hours and catch-up services)

under Danish ECL regime (for rights not held by broadcasters) rose

between 2010 - 2014 with 63%:

1) Transparency Obligations (Article 14)

- Revenue reporting to be proportionate (e.g. a-v sector)

- Buy-outs to remain possible

- Not apply to insignificant contributors

- Exemption for coll. bargaining/joint remuneration deals

- Info may be required also from sublicensees

2) Contract Adjustment (Article 15)

- Only if income is disproportionate to revenue

- Not apply to agreements with CMO’s (or insignificant contributors)

- Exemption for coll. bargaining/joint remuneration deals

3) Dispute Resolution Procedures (Article 16)

- No obligation for MS if alternative DRP already exists

DSM COPYRIGHT

DIRECTIVE

FINAL IMPROVEMENTS OF

CONTRACT LAW RULES

Modified (copyright) liability of UGC-sharing platforms (YouTube etc.)

New obligation to conclude licences with right-holders (if latter so wish)

No more general exemption under E-Commerce Directive

Ensure «stay down» after taking down infringing content

Establish dispute settlement process (if UGC uploader opposes take-down)

But: No liability if platform makes «best efforts» to prevent unlawful UGC uploads

New right for press publishers

Intended only for (written) press

Against online use by (mainly) search engines, with 1 year term

Journalists to receive fair share of (new) revenue

But: Not applicable to «insubstantial parts» (i.e. less than «snippets»)

DSM DIRECTIVE: POLITICALLY MOST CONTROVERSIAL TOPICS

Harmonisation of few exceptions (data mining, education, out-of-commerce)

Ensure wider access

(beyond Net-Cab)?

“Re-balance” remuneration?

“communication”

not fine-tuned

(embedding/framing)

Social networks to pay licence fees?

Others?

NEW EU COPYRIGHT RULES SOLVE ALL?

THANK YOU!