Copyright reform: A delicate balance between creators and broadcasters
by Thierry Leclercq
- Already largely known on the eve of its formal adoption, the copyright reform promised by the European Commission tries to play to the interests of both authors and radio broadcasters
The two texts being prepared in Brussels – one directive and one regulation – essentially aim to facilitate the online broadcasting of audiovisual works, including outside of their country of origin, to allow them to be used for educational purposes or to promote cultural heritage and to strengthen the negotiation powers of beneficiaries.
The Commission points out that it is very difficult and costly for radio broadcasters to identify then purchase the relevant rights when they decide to (re-)broadcast their programmes online, all the more so when works can be watched outside of their country of origin. This is the main reason for the use of geoblocking, which is highly frustrating for the 13.6 million European expats who can’t watch programmes broadcast on their national channels.
Hence the idea to fall back on the country of origin principle, which is already applied to television programmes broadcast via satellite: once the rights have been acquired nationally, broadcasters can re-broadcast online, for both live (simulcast) or pre-recorded (catch-up) programmes during a limited period of time (usually between 7 and 30 days). The royalties paid to beneficiaries would obviously be adjusted depending on the size of the audience.
The Commission explains, however, that territorial exclusivity could be kept for ‘premium’ content, basically films and TV series which are funded by the transfer of rights to a particular territory. This also excludes de facto the VoD services of broadcasters or OTT services like Netflix, which are too easy to delocalise. The directive will, on the other hand, apply to all services available on a closed network such as an IPTV, mobile or digital terrestrial television, as long as the rights are covered by licensing agreements concluded with collective management organisations.
For Video on Demand platforms, which are covered by the directive, the approach could not be clearer: an ‘impartial body’ established in each Member State may intervene to facilitate the conclusion of licensing agreements between beneficiaries and platforms, without being under any obligation to achieve a result. There are doubts that this is enough to increase the availability of European works in catalogues.
The Commission also proposes a number of options to strengthen the position of beneficiaries and creators when it comes to copyright. First of all, by calling upon video sharing platforms such as YouTube, Dailymotion and Vimeo to uphold the copyright of works even if they are ‘posted’ by their users; technical mechanisms for identifying content should make it possible to fix any breaches in copyright.
Moreover, in their contractual relations with producers and broadcasters, creators will be obliged to make sure they receive ‘regular and adequate’ information on how their works will be used, takings and the remuneration they will receive; mechanisms will be put in place to make it possible to adjust contracts and remuneration and resolve any disputes that may arise.
Last but not least, the Commission is trying to strengthen legal certainty when works are used for educational, teaching and research purposes or to preserve cultural heritage. These applications will be covered by an exception to copyright rules, ensuring fair compensation for rights holders. Cultural heritage preservation institutions will be able to promote works in a ‘non-commercial’ sense provided that they have concluded non-exclusive agreements with the relevant collective management organisations.
A meeting has been scheduled for 21 September for an official presentation of these proposals by the Commission. MEP Julia Reda has already accused it of "allowing the reform to be hijacked by the biggest stakeholders in the publishing, film and music industries" to the detriment of Internet users and start-ups. Commissioner Günther Oettinger has defended the proposal, arguing that he "wants to guarantee Europeans access to a wide range of legal content and fairer protection for stakeholders".
(Translated from French)