1. Information, public service and copyright
in the digital
ecosystem
(panel 3)
Eurovisioni, Roma
27 October 2017
Heijo Ruijsenaars
EBU Head of IP

2. DIGITAL ECOSYSTEM: Always online and Full portability

3. INFORMATION AND PUBLic SERVICE?

4. DSM: SHORT TERM Challenges for media
Regulatory
Obligations for non-linear media? Territoriality of copyright?
Contractual / Competition
Exclusivity arrangements (notably film/sports rights)?
Technical (+ costs!)
Control/monitoring of remote access
(online/cloud)?

5. The EU Commission’s view – work in progress
“Geo-blocking is against the core principles of the Single Market” (Ansip, EP hearing Nov. 2014)
“No discrimination based on nationality or unjustified geo-blocking” (Ansip, )
“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, )
“I cannot understand why I can watch my favourite Danish channels on my tablet in Copenhagen – a service I paid for – but I cannot when in Brussels. Or why I can buy a film on DVD back home and watch it abroad, but I cannot do the same online.” (Vestager, )

6. Easy and simple solutions

7. EU COPYRIGHT REFORM 2015 - ? Cross-border "portability”
Harmonisation of (some) exceptions
Ensure wider online access
(Sat-Cab+ or beyond)?
Facilitate VOD?
“Re-balance” fair remuneration
via transparency + “bestseller”?
“communication to the public” to be fine-tuned (i.p. embedding/framing)?
“Value gap”:
Social media platforms to pay (more)?
New right for publishers?

8. EBU: adapt EU rules to new media
Provide legal certainty for broadcasters‘ online services (satellite CoO model)
Make licensing schemes for programme
retransmission technologically-neutral
Promote “extended collective licensing“
– the Nordic success of ECL ?

9. Some clarifications about the Country-of-origin (1) Copyright law
Broadcast signals have never stopped at borders (overspill)
“absolute” territorial exclusivity has never existed
Reception of a signal is not a copyright relevant act (Art. 11bis BC)
“Bogsch theory” never applied by courts
Satellite model is softest CoO (cf. Services Directive, AVMS Dir)
no compulsory licensing tool, only legal certainty
Exclusive territorial licensing for satellite is maintained, as of today
with success: over 1/3 of all TV channels in Europe available on satellite (ca 4500 channels - of which 1500 without encryption)

10. Some Clarifications about the Country-of-origin (2): Studies
CRA report (2014); De Wolf & Co. (2013/2014); Oxera/O&O (2016):
None of them contradict the CoO
(3) Competition law
Competition law principles apply irrespective of CoO
Paramount allows restrictions on active sales outside licence

11. Some clarifications about the Country-of-origin
(4) EU Regulation maintains Contractual freedom (i.e. FOR both Territoriality + Exclusivity)
Sat/Cab Directive, Recital 16: Whereas the principle of contractual freedom …
… possible to continue limiting the exploitation …
…technical means of transmission or certain languages
Recital 36: Directive does not affect … competition rules … of Treaty
EU Regulation, Recital 11: Through the principle of contractual freedom …
…technical means of transmission or certain languages …
provided … limitations … are in compliance with Union law

12. What makes broadcasters SO special?
uniquely intensive rights clearance (24/7) +
key cultural players (both user and right-holder)
strictest a-v policy / media law obligations (quid pro quo)

13. Legislative recognition of broadcasters’ rights clearance
Art. 11bis(2) Berne Convention (allowing for compulsory licensing)
Art. 12 Rome Convention (legal licence for broadcasting of phonograms)
Satellite & Cable Directive (satellite injection rule + mandatory collective licensing of programme-underlying rights for cable retransmission)
Art. 5(2) sub d) InfoSoc Directive (exception for ephemeral reproduction)
Recital 26 InfoSoc Directive (record producers encouraged to enable collective licensing of online rights to broadcasters)
Orphan Works Directive (acknowledgement of PSM archives’ problem)
Art. 32 CRM Directive (exemption from new multi-territorial licensing regime)
National laws (special solutions e.g. ECL or mandatory CRM)

14. recognition of SPECIAL rights clearance FOR BROADCASTERS
Music licensing
European Court on CISAC (12 April 2013):
Collecting societies’ reciprocal agreements are lawful
No reason for competition (w.r.t. users) at national level

15. Impact of non-contractual clearance
Typical (and non-harmonised) limitations & exceptions:
works located in public places
ephemeral recordings
reporting of a current event
political speeches
incidental inclusion (e.g. work in background during an interview)
quotations
official celebrations
parody
[format-shifting]
Any documentary, news report, live event or other non-fiction programme can easily involve several or more exceptions

16. Why is Country-of-Origin important for broadcasters
Unique level of rights clearance administration (recognized in EU/Treaties)
- legal certainty for programme contributor contracts
(uniform conditions for use of acquired online rights)
- legal certainty for multi-platform licensing by broadcasters themselves
- legal certainty for exceptions & limitations (compliance with national law only)
thus, CoO avoids excessive multi-territorial administrative costs (not fees)
Third-party platforms re-using programming from other MS (e.g. cable, IP-TV) also benefit from legal certainty – positive impact on cross-border availability
Support for aims of AVMS Directive
(as Sat-Cab Directive for aims of TwF Directive)

17. 300.000 (in-house) contracts p.a.
Example BBC:
(in-house) contracts p.a.
£10 million per year on administrative costs of rights clearance (= money not rewarding creativity)

18. Copyright DSM: Long term effects of “doing nothing”
Competitiveness of EU media v. non-EU companies (e.g. Netflix, Amazon etc.)
Rights clearance as roadblock?
Consumers` respect for copyright
Enforcement v. legal offers?
Global investment in creativity
Value of copyright?

19. Or we just Leave the world to others?

20. thank you!
ANY QUESTIONS?