The Draft Regulation
On 14 September 2016, the European Commission presented the proposal for a regulation laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organizations and retransmissions. The Commission’s goal was and still is the facilitation of the clearance of rights related to broadcasts within the European Union. Therefore, the draft focuses on two main areas: (1) the extension of the “country of origin” principle to broadcasters own online services (so called “ancillary online services”), and (2) the technologically neutral extension of the retransmission right to certain closed networks.
Meanwhile, we are in the middle – or perhaps almost at the end? – of an intense debate on how the future regime should look . In particular, the question whether the suggested regulation could damage the general territoriality principle of copyright has been discussed with great impetus. For instance, rapporteur Tiemo Wölken published his first draft report of 10 May 2017 strongly arguing in favour of even more far-reaching provisions. The extension of the “country of origin” principle was suggested to be applied to “over-the-top” (OTT) content not directly related to a specific broadcast. Naturally, this proposal triggered manifold counter-arguments.
The Leaked Paper
The new draft report dated 4 October 2017 shows quite some changes compared to the May version. The document gives the strong impression that by now JURI has made quite some progress towards a consolidated position as regards the draft regulation. Of course, it is still a working paper we talk about. However, it may be assumed that most of what we can read now will be part of JURI’s final statement.
The Committee is apparently moving away from an all-embracing extension of the “country of origin” principle as laid down in Article 2(1) of the draft. The definition of an “ancillary service” shall now remain fairly unchanged compared to what the Commission suggested in the first place. Moreover, the limitations and exceptions in Article 2(1a) are fleshed out. According to that provision, the “country of origin” principle shall not apply to (1) audio-visual sporting events, (2) purchased cinematographic works, audio-visual series and fictions, (3) cinematographic and audio-visual co-productions, and (4) audio-visual commissioned works, which are not predominantly financed by the broadcaster. Obviously, JURI is aiming for a differentiating rather than a one-fits-all approach. The question, however, remains whether equals are now treated equally.
Noteworthy are also the provisions relating to the parties’ extended freedom to agree on specific methods or criteria for calculating the payment to be made for the rights being subject to the “country of origin” principle. Also, JURI aims to clarify the definition of “retransmission“. This term shall now cover “any simultaneous, unaltered and unabridged retransmission… irrespective of the retransmission technology or network used, provided that the retransmission takes place in a closed environment…”.
It is not yet certain when JURI will finally vote on the report. The next JURI meetings are scheduled for 20/21 November and 7 December 2017. As of today, it seems to be more likely that the topic will hit the agenda of JURI’s meeting inNovember.
The Council’s Proposal
The latest paper of the European Council supports the assumption that the suggested provisions in the compromise proposal by JURI are likely to become part of the final regulation. On 10 October 2017, a Revised Presidency Compromise Proposal was published holding fairly similar amendments.
We’ll keep you posted!
Authored by Nils Rauer, Alastair Shaw and Penelope Thornton