Activities of Bogdan Brunon WENTA related to 2016/0284(COD)
Shadow opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes
Amendments (27)
Amendment 28 #
Proposal for a regulation
Recital 3
Recital 3
(3) A number of barriers hinder tThe provision of online services which are ancillary to broadcasts and the provision of retransmission services and thereby the free circulation of television and radio programmes within the Union are reliant on contractual freedom. Broadcasting organisations transmit daily many hours of news, cultural, political, documentary or entertainment programmes. These programmes incorporate a variety of content such as audiovisual, musical, literary or graphic works, which is protected by copyright and/or related rights under Union law. That results in a complex process to clear rights from a multitude of right holders and for different categories of works and other protected subject matFor audiovisual works, the rights are consolidated with the producers by law or by contract which facilitates the complex process of rights clearance that is part of daily functions of broadcasters. Often the rights need to be cleared in a short time- frame, in particular when preparing programmes such as news or current affairs. In order to make their online services available across borders, broadcasting organisations need to have the required rights to works and other protected subject matter for all the relevant territories which further increases the complexity of the rights’ clearance.
Amendment 38 #
Proposal for a regulation
Recital 5
Recital 5
(5) The rights in works and other protected subject matter are harmonised, among others, through Directive 2001/29/EC of the European Parliament and of the Council15 and Directive 2006/115/EC of the European Parliament and of the Council.16 The principal objective of these instruments is to establish a high level of protection for rightholders. _________________ 15 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society OJ L 167, 22.6.2001, p. 10–19. 16 Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property OJ L 376, 27.12.2006, p. 28–35.
Amendment 45 #
Proposal for a regulation
Recital 7
Recital 7
(7) Therefore, cross-border provision of online services ancillary to broadcast and retransmissions of television and radio programmes originating in other Member States should be facilitated by adapting the legal framework on the exercise of copyright and related rights relevant for those activities. Whereas the adaptation of the legal framework may result in limitations on the exercise of exclusive rights, it should only apply in certain special cases which do not conflict with the normal exploitation of the work or other protected subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.
Amendment 51 #
Proposal for a regulation
Recital 4
Recital 4
(4) Operators of retransmission services, that normally offer multiple programmes which use a multitude of works and other protected subject matter included in the retransmitted television and radio programmes, have a very short time- frame forthe possibility, in the context of contractual freedom, of obtaining the necessary licences and thence also face a significant rights clearing burden. There is also a risk for right holders of having their works and other protected subject matter exploited without authorisation or payment of remunerationreby guaranteeing right holders the necessary equitable remuneration they need so that they can continue to offer a wide variety of content, also in the consumer's interest.
Amendment 54 #
Proposal for a regulation
Recital 8
Recital 8
(8) The ancillary online services covered by this Regulation are those services offered by broadcasting organisations which have a clear and subordinate relationship to the broadcast. They include services giving access to television and radio programmes in a linear manner simultaneously to the broadcast and services giving access, within a defined time period after the broadcast, to television and radio programmes which have been previously broadcast by the broadcasting organisation (so-called catch-up services). In addition, ancillary online services include services which give access to promotional material which enriches or otherwise expands television and radio programmes broadcast by the broadcasting organisation, including by way of previewing, extending, supplementing or reviewing the relevant programme’s content. The provision of access to individual works or other protected subject matter that have been incorporated in a television or radio programme should not be regarded as an ancillary online service including in particular all types of video on-demand services whether based on subscription or transactional. Similarly, the provision of access to works or other protected subject matter independently of broadcast, such as services giving access to individual musical or audiovisual works, music albums or videos, do not fall under the definition of ancillary online service.
Amendment 57 #
Proposal for a regulation
Recital 5
Recital 5
(5) The rights in works and other protected subject matter are harmonised, among others, through Directive 2001/29/EC of the European Parliament and of the Council15 and Directive 2006/115/EC of the European Parliament and of the Council.16 _________________ 15 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society OJ L 167, 22.6.2001, p. 10–19. 16 Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property OJ L 376, 27.12.2006, p. 28–35., which serves in particular to ensure protection of right holders. Directive 2006/115/EC of the European
Amendment 65 #
Proposal for a regulation
Recital 7
Recital 7
(7) Therefore, cross-border provision of online services ancillary to broadcast and retransmissions of television and radio programmes originating in other Member States should be facilitated by adapting the legal framework on the exercise of copyright and related rights relevant for those activities. Whereas the adaptation of the legal framework may result in limitations on the exercise of exclusive rights, it should only apply in certain special cases which do not conflict with the normal exploitation of the work or other protected subject-matter and do not unreasonably prejudice legitimate interests of the rightholders.
Amendment 66 #
Proposal for a regulation
Recital 9
Recital 9
(9) In order to facilitate the clearance of rights for the provision of ancillary online services across borders it is necessary to provide for the establishment of the country of origin principle as regards the exercise of copyright and related rights relevant for acts occurring in the course of the provision of, the access to or the use of an ancillary online service. That principle of country of origin should apply exclusively to the relationship between right holders (or entities representing right holders such as collective management organisations) and broadcasting organisations and solely for the purpose of the provision of, the access to or the use of an ancillary online service. The principle of country of origin should not apply to any subsequent communication to the public or reproduction of content which is protected by copyright or related rights and which is contained in the ancillary online service.
Amendment 74 #
Proposal for a regulation
Recital 8
Recital 8
Amendment 77 #
Proposal for a regulation
Recital 11
Recital 11
(11) Through the principle of contractual freedom it wiand in order to support existing licensing models, such as exclusive territorial licensing which enables the financing mechanisms which are vital to audiovisual production, optimal distribution and the promotion of cultural diversity it shall be possible to continue limiting the exploitation of the rights affected by the principle of country of origin laid down in this Regulation, especially as far as certain technical means of transmission, such as geo-blocking and geo-filtering, or certain language versions are concerned, provided that any such limitations of the exploitation of those rights are in compliance with Union law.
Amendment 83 #
Proposal for a regulation
Recital 11 a (new)
Recital 11 a (new)
(11a) Direct injection technologies allow the programme-carrying signal of a broadcaster organisation to be transmitted exclusively to operators of retransmission services. The operators in turn package the signals and deliver them to their customers, frequently including other value added related services such as catch-up, local portability, streaming services. Delivering programming that is bundled and managed by broadcaster organisations accounts for a significant share of revenue for operators of cable retransmission services. Operators of retransmission services should continue to remunerate rights holders irrespective of the technology used.
Amendment 103 #
Proposal for a regulation
Recital 11
Recital 11
(11) Through the principle of contractual freedom it willand in order to support existing licensing models, such us exclusive territorial licensing which enables the financing mechanism which are vital to audiovisual production, optimal distribution and the promotion of cultural diversity it should be possible to continue limiting the exploitation of the rights affected by the principle of country of origin laid down in this Regulation, especially as far as certain technical means of transmission, such as geoblocking an geo-filtering, or certain language versions are concerned, provided that any such limitations of the exploitation of those rights are in compliance with Union law.
Amendment 125 #
Proposal for a regulation
Recital 12
Recital 12
(12) Operators of retransmission services offered on satellite, digital terrestrial, or closed circuit IP-based, mobile and similar networks, provide services which are equivalent to those provided by operators of cable retransmission services when they retransmit simultaneously, in an unaltered and unabridged manner, for reception by the public, an initial transmission from another Member State of television or radio programmes, where this initial transmission is by wire or over the air, including by satellite but excluding online transmissions, and intended for reception by the public. They should therefore be within the scope of this Regulation and benefit from the mechanism introducing mandatory collective management of rights. Retransmission services which are offered on the open internet should be excluded from the scope of this Regulation as those services have different characteristics. They are not linked to any particular infrastructure and their ability to ensure a controlled environment is limited when compared for example to cable or closed circuit IP-based networks.
Amendment 131 #
Proposal for a regulation
Recital 13
Recital 13
(13) In order to provide legal certainty to operators of retransmission services offered on satellite, digital terrestrial, or closed circuit IP-based, mobile or similar networks, and to overcome disparities in national law regarding such retransmission services, rules similar to those that apply to cable retransmission as defined in Directive 93/83/EEC should apply. The rules established in that Directive include the obligation to exercise the right to grant or refuse authorisation to an operator of a retransmission service through a collective management organisation. This is without prejudice to Directive 2014/26/EU18 and in particular to its provisions concerning rights of right holders with regard to the choice of a collective management organisation. The right of prohibition as such is maintained, and only the way in which it is exercised is regulated to a certain extent. This also means that retransmission rights remain assignable. _________________ 18 Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi- territorial licensing of rights in musical works for online use in the internal market, OJ L 84, 20.3.2014, p. 72–98.
Amendment 133 #
Proposal for a regulation
Article 1 – paragraph 1 – point a
Article 1 – paragraph 1 – point a
(a) “ancillary online service” means an online service consisting in the provision to the public, by or under the control and responsibility of a broadcasting organisation, of radio or television programmes simultaneously with or for a defined period of time afterproduced by the broadcasting organisation and not licensed to any third parties, simultaneously with their broadcast by the broadcasting organisation as well as of any promotional material produced by or for the broadcasting organisation and not licensed to any third parties which is ancillary to such broadcast;
Amendment 146 #
Proposal for a regulation
Recital 14 a (new)
Recital 14 a (new)
(14a) Broadcasters that transmit their programme carrying signals through a direct injection process to distributors (in accordance with the Bern Convention, these are third parties in relation to the broadcaster) for reception by the public should be jointly liable with their distributors for the single and indivisible acts of communication to the public and making available to the public, as defined in Article 3 of Directive 2001/29/EC, which they carry out together. Such broadcasting organisations and such distributors should therefore obtain an authorisation from the right holders in question for their respective participation in such acts.
Amendment 148 #
Proposal for a regulation
Article 1 – paragraph 1 – point b
Article 1 – paragraph 1 – point b
(b) “retransmission” means any simultaneous, unaltered and unabridged retransmission, other than cable retransmission as defined in Directive 93/83/EEC and other than retransmission provided over an internet access service as defined in Regulation (EU) 2015/2120 of the European Parliament and of the Council19 , intended for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite or by direct injection but excluding online transmission, of television or radio programmes ultimately intended for the reception by the public, provided that such retransmission is made by a party other than the broadcasting organisation which made the initial transmission or under whose control and responsibility such transmission was made. _________________ 19 Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union, OJ L 310, 26.11.2015, p. 1.
Amendment 150 #
Proposal for a regulation
Article 1 – paragraph 1 – point b a (new)
Article 1 – paragraph 1 – point b a (new)
(ba) “Direct injection” means the transmissions of by a broadcasting organisation of its programme-carrying signals exclusively to signal distributors without those signals being accessible to the public during, and as of result of that transmission;
Amendment 161 #
Proposal for a regulation
Article 2 – paragraph 1
Article 2 – paragraph 1
(1) The acts of communication to the public and of making available occurring when providing an ancillary online service by or under the control and responsibility of a broadcasting organisation as well as the acts of reproduction which are necessary for the provision of, the access to or the use of the ancillary online service shall, for the purposes of exercising copyright and related rights relevant for these acts, be deemed to occur solely in the Member State in which the broadcasting organisation has its principal establishment.
Amendment 172 #
Proposal for a regulation
Recital 16
Recital 16
(16) This Regulation respects fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union while also taking account of the rules laid down in Directive 2001/29/EC, which aims to ensure a high level of protection of the affected copyright, related rights and other subject-matter. Whilst there may be an interference with the exercise of the rights of right holders insofar as mandatory collective management is required for the exercise of the right of communication to the public with regard to retransmission services, it is necessary to prescribe such a condition in a targeted manner for specific services and in order to allow more widespread cross-border dissemination of television and radio programmes by facilitating the clearance of these rightsn the light of contractual freedom, such a condition should be voluntary. The possibility provided for the Member States to regulate the activities of collective management organisations does not impinge on the free contractual negotiation of rights provided for in this Regulation.
Amendment 190 #
Proposal for a regulation
Recital 19 a(new)
Recital 19 a(new)
(19 a) The retransmission of programmes from other Member States is an act subject to copyright and, as the case may be, rights related to copyright. The online- service must, therefore, obtain the authorisation from every holder of rights in each part of the programme retransmitted. Pursuant to this regulation, the authorisations should be granted contractually unless a temporary exception is provided for in the case of existing legal licence schemes.
Amendment 196 #
Proposal for a regulation
Article 1 – paragraph 1 – point a
Article 1 – paragraph 1 – point a
Amendment 197 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
Agreements on the exercise of copyright and related rights relevant for the acts of communication to the public and the making available occurring in the course of provision of an ancillary online service as well as for the acts of reproduction which are necessary for the provision of, the access to or the use of an ancillary online service which are in force on [the date mentioned in Article 7(2), to be inserted by OPOCE ] shall be subject to Article 2 as from [the date mentioned in Article 7(2) + 25 years, to be inserted by OPOCE] if they expire after that date.
Amendment 213 #
Proposal for a regulation
Article 1 – paragraph 1 – point b a (new)
Article 1 – paragraph 1 – point b a (new)
(b a) "Direct injection" means a two- or more step process by which broadcasting organisations transmit their programme- carrying signals for reception by the public to distributors (organisations other than the broadcasting organisation - see the Berne Convention) point to point via a private line – by wire or over the air, including by satellite – in such a way that the programme-carrying signals cannot be received by the general public during such transmission; the distributors then offer these programmes to the public simultaneously, in an unaltered and unabridged form, for viewing or listening on cable networks, microwave systems, digital terrestrial, IP-based and mobile networks or similar networks.
Amendment 227 #
Proposal for a regulation
Article 2
Article 2
Application of the principle of ‘country of origin’ to ancillary online services (1) The acts of communication to the public and of making available occurring when providing an ancillary online service by or under the control and responsibility of a broadcasting organisation as well as the acts of reproduction which are necessary for the provision of, the access to or the use of the ancillary online service shall, for the purposes of exercising copyright and related rights relevant for these acts, be deemed to occur solely in the Member State in which the broadcasting organisation has its principal establishment. (2) When fixing the amount of the payment to be made for the rights subject to the country of origin principle as set out in paragraph 1, the parties shall take into account all aspects of the ancillary online service such as the features of the ancillary online service, the audience, and the language version.rticle 2 deleted
Amendment 294 #
Proposal for a regulation
Article 3 – paragraph 5
Article 3 – paragraph 5
Amendment 312 #
Proposal for a regulation
Article 4 a (new)
Article 4 a (new)