Public Consultation on the Review of the EU Satellite and Cable Directive

Public Consultation on the Review of the EU Satellite and Cable Directive ABOUT AGICOA AGICOA (Association for the International Collective Management of Audiovisual Works) is an international, not-for-profit organization established thirty years ago in Geneva to represent worldwide, collect and distribute royalties to independent producers of audiovisual works. We represent more than one million audiovisual works and more than 15.000 rights holders, including audiovisual producers and distributors whose works are retransmitted in the European Union and around the world. We operate in numerous countries all over the world through the AGICOA Alliance, a network of not-for-profit organizations and professional associations working on behalf of independent producers. AGICOA is an observer member of WIPO and its Standing Committee for Copyright and Related Rights and a founding member of WIPO’s TAG for Excellence Initiative aiming at establishing high level standards for transparency and efficiency of collective management. We also cooperate with the European Commission in awareness initiatives related with collective management of copyright. AGICOA licenses certain forms of the exclusive right of communication to the public, including in particular cable retransmission to enable use of audiovisual works contained in such retransmissions. AGICOA is mandated by its rights holders to authorize or prohibit the use of their exclusive rights and collect remuneration arising thereof, under the legal framework established in the Berne Convention and in Directive 93/83/EEC, as well as in national legislation implementing its provisions. Through a coalition of member and partner organizations, AGICOA is active in licensing said rights in the majority of EU Member States. AGICOA and its partners manage retransmission rights on behalf of audiovisual producers in a highly efficient and transparent manner. This alliance represents and defends the interests of producers, in a legal framework where collective management is required, ensuring that royalties due for retransmission of their works are delivered to rightsholders, as an important stream of revenue contributing to finance the production of quality content. EXECUTIVE SUMMARY The principle of country of origin for the communication to the public by satellite When licensing based on the country of origin, producers are often confronted with an unfairly reduced value of acquisition of their rights for other countries when compared to the country of production/initial broadcast. Thus, being required to assign rights on a multi-country basis to a 1 broadcaster or to an operator will diminish producers’ ability to recoup production investment which is accomplished through territorial licensing in markets where demand is strong. In the event the Directive is reopened, a more balanced solution would be one in which the principle of country of origin does not preclude or limit contractual freedom to select territories for license, obtaining appropriate remuneration. This is the de-facto situation today. Considering the evolution of commercial offers of satellite operators, which are to a large extent equivalent to the audiovisual services offered by cable operators, it should be made clear that said commercial offers involve an additional exploitation that should be remunerated. To this extent, a provision similar to article 8, paragraph 1 of the Directive could be adopted: Member States shall ensure that when works included in a linear audiovisual service are retransmitted or by any means communicated to the public by satellite in their territory the applicable copyright and related rights are observed and that such retransmission or communication to the public by satellite takes place on the basis of individual or collective contractual agreements between copyright owners, holders of related rights and satellite operators. In addition, satellite operators should be subject to transparency and information obligations (in relation to the channels offered and number of subscribers of their services in the various countries) consistent with the provisions of article 17 of Directive 2014/26/EU. The management of cable retransmission rights Establishing collective management as a system to clear rights required for cable retransmission has been an advantage for producers who do not avail themselves of Article 10 of the Directive and, also, for those who assign rights under Article 10 while retaining remuneration rights. Collective rights management has also eased administrative burdens for operators and been of benefit to consumers. In case the Directive would be reviewed, AGICOA invites the Commission to further consider harmonization in respect of the following topics: - To address imbalance that impedes some producers from monetizing retransmission rights when assigning the said rights to broadcasters, by alternatively: o Clarifying that when acquiring the exclusive rights from producers to license third parties, broadcasters shall be required or liable to demonstrate the remuneration paid to acquire those rights, as a condition to exercise said exclusive rights vis a vis third parties, including cable operators. o Providing the means for granting of extended collective licenses including the authorization for cable operators to retransmit works which rights are held by the broadcasters in the license granted by CMOs representing audiovisual producers. In line with the discussions held at WIPO on occasion of debating the Broadcasting Treaty, it should be clarified that the protection granted to broadcasters aims exclusively their own broadcast signal. Equal treatment with producers would be reached by enabling clearance of rights over all works, including those for which 2 the broadcasters hold exploitation rights, through CMOs, subject to an opt out right should this be necessary under relevant international law and the EU Copyright acquis. - To address technological evolutions that have impacted negatively the ability of producers to license retransmission rights directly or through their CMOs: o Clarifying that cable retransmission occurs whenever a linear broadcasting service is retransmitted or by any means communicated to the public by a third party other than the licensed broadcaster, in a simultaneous, unabridged and uninterrupted manner. - To provide for transparency and effective rights clearance mechanisms: o Providing for obligations of users to grant access to information required for an effective application of the tariffs set by CMOs, as required by the provisions of article 17 of Directive 2014/26/EU. o Introducing appropriate mechanisms to enforce rights, such as provisional and precautionary measures including requirement that pending resolution of a tariff, cable operators would have to pay royalties at a previously agreed amount or at the tariff set by the CMO for similar users or uses. o Clarifying that the burden of proof related with the acquisition of all rights from broadcasters favours right holders and not cable operators, without which the infringement of producers’ copyrights is assumed. Assessment of the need for the extension of the Directive If the Directive is reopened and prior to any move to extend the scope of the country of origin principle, there should be an assessment to identify potential market failures that require such regulation. Multiterritorial licenses already exist and are available for users on the basis of producers being effectively remunerated for the exploitations of their works in several countries. If the Directive is reopened, additional regulation imposed should be balanced and not erode the monetization of exclusive rights. It should thus not preclude a territorial model of licensing and establishing value, even if the licensing is taken in one initial territory. When assessing the market of online services, a distinction needs to be made between services provided by broadcasters (to be licensed directly by producers within the primary exploitation rights) and services provided by third parties based on the linear broadcast. With regards to the latter, in case collective management would not impair primary licensing of digital rights, it could and is considered at producers’ discretion. As an example, AGICOA has been developing licensing schemes for those producers that require collective tariffs to license cable operators’ TV Everywhere services because direct licensing did not reveal possible or desirable. It should be noted that this is a decision of producers within a context of contractual freedom where collective licensing becomes the producers’ choice. 3 To the extent that producers had a preference for implementing collective licensing schemes (such as in the Nordic countries), extended collective licensing is a useful tool to include works of non- members in the licensing scheme while maintaining individual contractual freedom for those producers that prefer to opt out and license directly. 4 II. Assessment of the current provisions of the Satellite and Cable Directive 1. The principle of country of origin for the communication to the public by satellite For satellite broadcasting, the Directive establishes (Article 1.2) that the copyright relevant act takes place "solely in the Member State where, under the control and responsibility of the broadcasting organization, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth" (often referred

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