The Broadcasting Directive

The existing principle of mandatory collective management of rights for cable TV operators for their retransmitted channels was extended by some Member States to forms of retransmission other than cable. Though this was challenged in some other Member States, referring to technology-specific language of the Directive 93/83/EEC. The new Broadcasting Directive provides that all forms of retransmissions, including over-the-top (OTT) media services, fall under the scope of the mandatory collective management regime, if provided in a managed environment (Article 2.2 a) and b), Article 4, Recital 14).

A legal loophole due to contradicting rulings of the Court of Justice of the European Union was causing significant uncertainty in the market, putting the fair remuneration of creators at risk. The technical possibility to directly inject programme-carrying signals from broadcasters to operators with the intention of eventually communicating them to public was interpreted by certain players in the market (sometimes broadcasters, sometimes distributors, sometimes both) as an exemption from remunerating creators for their commercial exploitation. Considering that 78% of the TV market is operated based on direct injection technology and it is likely to grow further, the issue needed to be solved to ensure sustainable market growth for all players.

The new directive provides that both the broadcaster and the operators should remunerate creators for the use of their works based on their own business models. If direct injection technology is used as the only way for reaching the public, then it is optional for the Member States to make the right clearance for distributors subject to mandatory collective management. If it is used in parallel to broadcasters initial broadcast for the efficiency and practicality of sending the signals to distributors for retransmission purposes, then the existing rules of mandatory collective management for “retransmission” are applied.

The adoption of the Broadcasting Directive has been widely welcomed by European creators, as it provides a sound and sustainable framework for appropriate remuneration of creators from this important market. See GESAC’s press release.

The Commission

In September 2016, the Commission published its proposal for a Broadcasting Regulation.

Read the proposal and other relevant Commission documents here.

The European Parliament

In the European Parliament, the file was led by MEP Tiemo Wölken in the Legal Affairs Committee (JURI). MEP Wölken however chose to withdraw his name from the report.

Read the Report here.

The Council

• • • Read the Council’s agreed compromise proposal on the Regulation here (dated 15/12/2017)