Scooping the scope of the SatCab II Directive
The ‘SatCab II’ Directive (EU) 2019/789, on copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes expanded the scope of the first Directive 93/83/EEC. It regulated retransmissions by other means than cable, direct injection and domestic retransmissions. What is the outcome of the implementation in the 24 Member States that have transposed the Directive so far?
Several Member States already provided for a broader scope of retransmission not limited to cable retransmission either by law or practice. With the transposition of the Directive, the majority of them introduced mandatory collective management mechanisms for the direct injection and domestic retransmissions of audiovisual works. Some Member States even seized this opportunity to introduce unwaivable and non-transferable rights to remuneration for audiovisual authors or expanded the already existing ones. However, few of them have failed to complete the transposition and further delays are by now unacceptable.
The technologically neutral definition of retransmission.
After the implementation of the Directive, all Members States adopted in their national law either a technologically neutral definition of retransmission or provided for separate cable and by other means retransmissions’ definitions. In some Member States the expansion of the retransmission’s definition was of pivotal importance. For example, in Italy the act of cable retransmission does not exist at all, due to the country’s geomorphology that does not allow for the installation of cables. The new technologically neutral definition of retransmission will apply now to other kinds of retransmission, such as satellite and over-the-top media services provided in a managed environment. The Directive confirmed the mandatory collective management regime of the retransmission right, which is a systematic and sustainable solution, balancing the interests of all parties involved. When implemented properly in the law, it secures that rightholders receive remuneration for the exploitation of their works and guarantees that operators obey the law.
Member States opted for the mandatory collective management of direct injection and domestic retransmissions.
Moreover, all Members States introduced the notion of transmission of programmes through direct injection, a technical process that was used by operators to bypass the mandatory collective management of retransmission, following closely the wording of the Directive. Direct injection is a technical process by which broadcasting organisations transmit their programmes-carrying signals to a distributor in a way that the signals are not accessible to the public during the transmission. Then the distributor transmits the programmes-carrying signals to the public. Both the broadcaster and the distributor are deemed to participate in a single act of communication to the public and shall obtain authorisation from the rightholders. Following the justification of the harmonised rules on the retransmission of television and radio programmes, most of the Member States implemented the mandatory collective management regime of retransmission to the distributors’ activity of transmitting the programmes received through direct injection. They have done so because their activity of distributing the programmes is the same, no matter how they received the signals.
Almost all the Member States opted for the mandatory collective management regime to cover also domestic channels’ retransmissions, i.e., where both the initial transmission and the retransmission take place within the same national territory. This way the retransmission rules apply evenly to domestic and cross-border retransmissions without distinguishing between them. The implementation of the Directive in Finland provided clarifications on the matter. The Finnish Copyright Act already provided for technologically and geographically neutral provisions. With the Directive it was amended to illuminate that the retransmission rules would apply to all retransmissions no matter how the party carrying out the retransmission receives the programmes signal from the broadcasting organisation and regardless of the state in which the broadcast originated.
New unwaivable and non-transferable rights to remuneration.
Several Member States provided for an unwaivable and non-transferable right to remuneration, with mandatory collective management, for the retransmission of audiovisual works. If not, they provided for an equivalent system that secures that audiovisual authors’ CMOs collect royalties for audiovisual authors from distributors in spite of the possible transfer of their exclusive right to the producer/broadcaster. That is the case of Slovenia, which regulated this field efficiently and, by joining the most advanced European countries in protecting author’s rights, introduced among others a statutory remuneration right for each retransmission and direct injection of the audiovisual works. Member States like France and Germany expanded the already established remuneration rights to also cover other kinds of retransmission and the newly introduced direct injection.
Remaining EU countries
On 15 February 2023, the European Commission decided to refer Bulgaria, Finland, Latvia, Poland and Portugal to the Court of Justice of the European Union following their failure to notify complete transposition of the Directive. In the meantime, Finland and Latvia concluded the transposition of the Directive. Portugal is currently in a phase of public consultation for the transposition of the Directive and Bulgaria suffers from political instability - five national elections took place during the last two years. In Poland a second draft law was published, however, national elections will take place in autumn. It has been already 4 years since the Directive came into force and almost 2 years since the transposition deadline for the Member States has expired. Further delays are undesirable.
The transposition of the Directive, which is of a crucial importance for audiovisual authors, is a unique opportunity, not only to implement the new provisions set in the Directive, but also to fix the longstanding legal uncertainties that may exist in national laws. The improper implementation of the Directive would prevent audiovisual authors from receiving remuneration for the retransmission and direct injection of their works. The transposition of the Directive by all Member States would allow the Commission to proceed to its conformity assessment and identify possible flaws during the transposition process and non-compliant national provisions with the Directive.
It is in the interest of the SAA and all the audiovisual authors that our members represent that the remaining Member States implement the Directive without further delays providing for efficient mechanisms that ensure the audiovisual authors’ right to remuneration for the exploitation of their works, paid by end distributors and with mandatory collective management. After 4 years of delay and a COVID-19 crisis that highlighted the fragile and unstable position of authors and artists, a minimum implementation is simply not acceptable.
Legal and Policy Officer, SAA