Broadcasting Regulation: When is retransmission retransmission?

The digital evolution of broadcasting, with the development of on-demand services, has led the European institutions to propose a reform of the 1993 CabSat Directive in the form of a new Regulation.

While the audiovisual industry has come together to defend the principle of the territoriality of rights and therefore oppose the application of the country of origin principle to broadcasters’ ancillary online services (Art 2), another aspect of the Regulation is also very important for audiovisual authors. It deals with the exercise of the retransmission rights by rightholders other than broadcasters (Art 3). Cable retransmission has been the proven success story of cross-border access to foreign channels and the EC proposes to extend the cable retransmission regime to retransmission techniques other than cable. We applaud this proposal.

So, what’s the problem?

There are court cases in a number of Member States where the retransmission regime of the CabSat Directive is being undermined by retransmission operators, claiming that the broadcasters’ signal transmission technique, known as “Direct Injection”, means that their retransmission are not retransmissions anymore. In turn, this means they are not liable for royalty payments to authors on the basis of the retransmission regime. Unfortunately, some courts have agreed and the CJEU case-law is contradictory. Worse still, the judgements of the courts in these cases are leading some broadcasters to consider that they are not liable for royalties for the communication to the public as they are not the final link in the chain.

Given the proliferation of litigation and conflicting jurisprudence, SAA joined together with the collective management organisation for producers, AGICOA, to prove that a technology neutral European solution is needed. This means a strong and incontestable legal regime that covers Direct Injection. We commissioned Ampere Analysis to analyse the retransmission market in Europe. Their findings are clear. Not only is Direct Injection becoming the industry standard for getting a channel to a retransmission operator, but 79% of all cross-border retransmissions are via Direct Injection. Direct injection is only a technical means of delivery of the signal to retransmission operators, with no impact on the business model and economics of the broadcasting and retransmission markets.

The repercussions could be dramatic for screenwriters’ and directors’ remuneration if the EU does not amend its proposal to recall a simple truth: the retransmission regime includes channels directly injected for retransmission purposes. This clarification would make a world of difference to audiovisual authors.