On 23 June 2021, the French Government issued a Statutory Instrument (“Ordonnance”)1 transposing Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and neighbouring rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC (the “Directive”, also referred to as the “Online SatCab Directive”).
France is one of the nine European countries that has now transposed the Directive into national law, thus modifying the French Intellectual Property Code. In the framework of the Digital Single Market (DSM) strategy, the OnlineSatCab Directive establishes rules on the exercise of copyright and neighbouring rights, aiming to improve cross-border provision and access of online services ancillary to broadcasts and to facilitate digital retransmissions of television and radio programmes by means other than cable in the European Union single market.
The Ordonnance stays close to the Directive, including implementing the following measures:
Facilitating the clearance of copyright and neighbouring rights of ancillary online service for cross-border digital broadcast and retransmissions
This applies to services that give access to television and radio programmes in a strictly linear manner, simultaneously to the broadcast, and services that give access, within a defined time period after the broadcast, to television and radio programmes which have been previously broadcast by the broadcasting organisation, also referred to as “catch-up services”. Video-on-demand (VOD) services and sports events are excluded from the scope of the Ordonnance. The offer of such ancillary online service should be deemed to occur within the French territory where the broadcasting organisations have their principal establishment. Right holders are entitled
nonetheless to remuneration nearing or equalling the economic value of the cross-border use of the copyrighted works.
Clarifying the legal framework of transmission of programmes through "direct injection"
Direct injection is a two-step technical process. First, the broadcasting organisation transmits its programme-carrying signals to a signal distributor without these signals being accessible for the general public during this transmission. Then, the signal distributor receives the programmes and distributes them to its subscribers. According to the Ordonnance, both broadcasting organisation and signal distributors shall be deemed to be participating in a single act of communication to the public by direct injection, however this will not give rise to joint liability. In addition, they shall obtain authorisation from right holders and pay them an appropriate remuneration for their works and performance.
Extending the system of mandatory collective management to means other than cable retransmissions
The Ordonnance provides that the right to authorise simultaneous, unaltered and unchanged retransmissions on the French territory of television and radio programmes coming from either the French territory or another Member State can only be exercised through a mechanism of mandatory collective management of rights. It also specifies that only retransmissions by cable or by broadcasting system using ultra-short waves are concerned. With regard to transmission of programmes through direct injection, the signal distributors shall also benefit from this mechanism.
All the above-mentioned provisions are applicable to neighbouring rights.
The Ordonnance establishes a framework within which both broadcasters and signal distributors can define their relationship in order to clear copyright to offer ancillary online services. Although it applies to all radio programmes, it is limited to certain television programmes, such as news or current affairs as well as broadcasting organisation’s own productions which are exclusively financed by it. In addition, the Ordonnance ensures that right-holders are adequately remunerated when their works are used in programmes that are transmitted through direct injection.
The Ordonnance will enter into force on 1 September 2021, therefore mandatory collective management organisations shall obtain authorisation to operate by then. However, to allow existing agreements time to meet the new rules, the Ordonnance set out transitional arrangements for the provisions to be enforceable:
- all agreements in force as of 7 June 2021 and those that have been concluded between that date and 24 June 2021 (the date of publication of the Ordonnance), authorising acts of representation and communication to the public of works or other protected subject matter occurring in the course of provision of an ancillary online service as well as acts of reproduction which are necessary for the provision of the access to or the use of such online service are subject to the new provisions of the French Intellectual Property Code resulting from the Ordonnance, from 7 June 2023 if they expire after that date;
- all agreements in force as of 7 June 2021 and those that have been concluded between that date and 25 June 2021 authorising acts of representation and communication to the public of works or other protected subject matter are subject to the new provisions of the French Intellectual Property Code resulting from the Ordonnance, from 7 June 2025 if they expire after that date.
Authored by David Taylor and Hortense le Dosseur
1 Ordonnance n° 2021-798 du 23 juin 2021 portant transposition de la directive (UE) 2019/789 du 17 avril 2019 établissant des règles sur l'exercice du droit d'auteur et des droits voisins applicables à certaines transmissions en ligne d'organismes de radiodiffusion et retransmissions de programmes de télévision et de radio, et modifiant la directive 93/83/CEE du Conseil.