Copyright

COPYRIGHT REVIEW

During the last 20 years, new technologies together with the Internet have changed the way content is created and consumed. The digital environment presents challenges and the law should ensure that the different legal mechanisms (rights, exceptions, enforcement…) are fit for purpose in the digital world.

As foreseen in the Digital Single Market Strategy, the Commission launched in 2016 the review of the EU copyright framework by adopting a number of documents, namely a communication on ‘Promoting a fair, efficient and competitive European copyright-based economy in the Digital Single Market’, a draft directive on ‘copyright in the Digital Single Market’, and a draft regulation on ‘the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions’.


CABLE RETRANSMISSION

The growing complexity of much of the European cable business does not sit comfortably alongside today’s EU rules on retransmission. The current rights clearance system put in place by the 1993 Satellite and Cable Directive (SATCAB) no longer corresponds to the needs of cable operators for meeting customers’ demand for innovative TV services.

Cable Europe has been calling for the current licensing regime for cable retransmission to apply in a technological neutral manner in order to improve the overall availability of content anytime, anywhere, and on any device. We have also been calling for the current licensing regime to apply to ancillary interactive services which are in close connection to the linear TV content such as Catch-Up TV and Re-Start TV.

As the trilogue negotiations on the draft copyright regulation stand, it is unclear whether the future regulation will achieve its intended objectives, i.e. those of “creating the conditions allowing broadcasters and operators of retransmission services to offer wider access to TV and radio programmes across the EU”.


PORTABILITY OF ONLINE CONTENT SERVICES

Cable Europe believes that the portability of content within and across borders is important to enable subscribers to benefit from the content they have already paid for regardless of their location.

This is a logical consequence driven by the emergence of IP technology, new devices and changes in customer habits.

Long before the entry into force of the EU Portability Regulation, cable operators had already launched new services to meet such customer demand, for example, services enabling cable subscribers to watch their content on computers, tablets and/or smartphones.

Under the new portability rules, it is now possible for costumers to temporarily take a subscription to live sport or a favourite TV show along with them when travelling abroad in the EU.  However, in order to fulfil the promise of the Portability Regulation, the service provider needs to have acquired a range of content rights, including the out-of-home rights which allow a customer to watch a TV show online when away from his home.

Under today’s EU cable retransmission framework, cable operators may not be able to provide the full range of portability services because of the complexities surrounding copyright clearance for “online” content. That is why Cable Europe has been calling for the draft Sat Cab regulation to deliver the necessary streamlining of online copyright clearance, for the benefit and enjoyment of all European consumers.


IPR ENFORCEMENT DIRECTIVE

The EU IPR Enforcement (IPRED) Directive defines civil and administrative measures to fight intellectual property rights (IPRs) infringements.

At the end of 2017, the European Commission published guidance, in the form of a communication, to facilitate the interpretation and application of the Directive. Despite the initial aim of revising the Directive, there is no indication that the IPRED Directive will be reviewed soon through a legislative proposal. The Communication says that next steps will involve identifying areas where further practical guidance is useful. It also says that ISP liability issues are being handled separately, for example, in recent guidelines for online platforms (hosting services) to tackle illegal content.

In 2016, Cable Europe responded to a Commission’s public consultation on the evaluation and modernisation of the legal framework for the enforcement of IPRs, where we argued that rather than reviewing the directive, the Commission should focus on a better implementation of its provisions, for example by providing guidance on how to apply the case law of the Court of Justice of the EU on the balancing of the different rights at stake (i.e. those of copyright holders, service providers and users). Cable Europe had also responded in 2011 to a Commission’s consultation on the implementation of the IPRED Directive and in 2013 to the Commission’s consultation on the civil enforcement of IPR rights together with a joint statement co-signed by Cable Europe, ECTA, ETNO and EuroISPA.


COLLECTIVE MANAGEMENT OF RIGHTS

The 2014 Collective Rights Management Directive  aims to improve the standards for transparency/governance of collecting societies and make the multi-territorial licensing of music for the provision of online services easier.

Based on common principles, Cable Europe has worked intensively  with CUP (Copyright Users Platform) – gathering Cable Europe, EBU, HotRec (hotels & restaurants), AER (radios), Pearle (Theatres), GSMA, ETNO, ECTA and Digital Europe – in order to improve users’ position in negotiating with collecting societies. We have succeeded in having copyright users’ interests well safeguarded, in particular with regards to the transparency of repertoire and the way tariffs are negotiated and calculated by collecting societies.