Activities of Lidia Joanna GERINGER DE OEDENBERG related to 2016/0284(COD)
Legal basis opinions (0)
Amendments (31)
Amendment 59 #
Proposal for a regulation
Recital 6
Recital 6
(6) Council Directive 93/83/EEC17 facilitates cross-border satellite broadcasting and retransmission by cable of television and radio programmes from other Member States of the Union. However, the provisions of that Directive on transmissions of broadcasting organisations are limited to satellite transmissions and therefore do not apply to online services ancillary to broadcast while the provisions concerning retransmissions of television and radio programmes from other Member States are limited to simultaneous, unaltered and unabridged retransmission by cable or microwave systems and do not extend to such retransmissions by means of other technologies. _________________ 17 Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission OJ L 248, 6.10.1993, p. 15– 21.
Amendment 80 #
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 broadcastgiving access to television and radio content offered by broadcasting organisations. 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 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. 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 , as well as material genuinely produced for the digital environment. Such access is particularly important to reach younger audiences. Younger audiences are the main users of the internet as a means of watching television and listening to radio programmes. Therefore it is essential to enable broadcasters to disseminate also such kinds of programmes online across national borders. In particular broadcasters with a public service mission, which are financed by public funds, paid by citizens' contributions, need to adapt to this changing consumer behaviour. Otherwise their right to exist might be put into questionl ine servic the future.
Amendment 81 #
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,services giving access to television and radio content including services giving access to television and radio programmes which have been previously broadcasted by the broadcasting organisation (so-called catch- up services). In addition, ancillary online servicesThey include services which give access to 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 , as well as content genuinely produced or licensed for other protected subject matter that have been incorporated in a television or radio programme should not be regarded as an ancillary online service. Similarly online environment. Public broadcasters in particular need to be able to use different dissemination channels to reach different audiences in order to fulfil their public service mandate. In order to reach younger audiences, the possibility to disseminate services designed for the online environment is crucial. Therefore, 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 licensed for the broadcaster, and webcasting are included in the scope of the definition of ancillary online services.
Amendment 96 #
Proposal for a regulation
Recital 10
Recital 10
(10) Since the provision of, the access to or the use of an ancillary online service is deemed to occur solely in the Member State in which the broadcasting organisation has its principal establishment, while de facto the ancillary online service can be provided across borders to other Member States, it is necessary to ensure that in arriving at the amount of the payment to be made for the rights in question, the parties should take into account all aspects of the ancillary online service such as the features of the service, the audience, including the audience in the Member State in which the broadcasting organisation has its principal establishment and in other Member States in which the ancilonline service is accessed and used, and all available language versions. The consideration of language versions is particularly online service is accessed and used, and the language version. important as they often limit the audience in Member States other than the Member States in which the broadcasting organisation has its principal establishment considerably. The use of freely licensed content by broadcasters, such as public sector information which is regularly published under a free license in line with Directive 2003/98/EC, is an important public policy goal. This goal would be undermined by the imposition of any unwaivable remuneration, as unwaivable remuneration is fundamentally incompatible with free licenses, which by definition allow a non-exclusive re-use free of charge. In order to ensure that broadcasters can continue to use freely licensed content under the country of origin principle set out in this Regulation, it is necessary to exclude any imposition of unwaivable remuneration by Member States.
Amendment 98 #
Proposal for a regulation
Recital 10
Recital 10
(10) Since the provision of, the access to or the use of an ancillary online service is deemed to occur solely in the Member State in which the broadcasting organisation has its principal establishment, while de facto the ancillary online service can be provided across borders to other Member States, it is necessary to ensure that in arriving at the amount of the payment to be made for the rights in question, the parties should take into account all aspects of the ancillary online service such as the features of the service, the audience, including the audience in the Member State in which the broadcasting organisation has its principal establishment and in other Member States in which the ancillary online service is accessed and used, and the language version. However, that does not imply any particular fee calculation methods, such as fees calculated on a 'per use' basis.
Amendment 112 #
Proposal for a regulation
Recital 11 a (new)
Recital 11 a (new)
(11 a) While the principle of contractual freedom remains untouched by this regulation, an abuse of negotiating positions through the application of the "country of origin principle" should be prevented. Therefore Member States should ensure that either party may call upon the assistance of impartial mediators, whose task is to assist negotiations and who may submit proposals, in order to enable them reaching an agreement on terms acceptable to both parties.
Amendment 115 #
Proposal for a regulation
Recital 12
Recital 12
(12) Operators of retransmission services offered on satellite, digital terrestrial, 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 . They should therefore be within the scope of this Regulation and benefit from the mechanism introducing mandatory collective management of rights. In order to adapt to the development of digital technologies and to the changing user behaviour, this mechanism should include the retransmission, 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 thn an unaltered manner, via the Internet (so called over- the-top (OTT) service providers). The retransmission does not have to be simultaneous, as this would run counter to the principle of technological neutrality, whereas some mtechanism 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 envirnologies may require a certain delay in retransmission, and because catch-up TV services by cable retransmission providers should also be facilitated, in order to achieve a level playing-field. The inclusion of OTT is crucial for allowing, in line with consumer expectations, portability of such services within the Member State of residence, as well as beyond, through the mechanism established by Regulation 2017/... of the European Parliament and of the Council1a. _________________ 1aProposal for a Regulation of the European Parliament and of the Council onm ent is limited wsuring then compared for example to cable or closed circuit IP-based networks. ross-border portability of online content services in the internal market, COM(2015)0627.
Amendment 145 #
Proposal for a regulation
Recital 14 a (new)
Recital 14 a (new)
(14 a) To prevent the abuse of negotiating positions, Member States should ensure by means of civil or administrative law, that the parties enter and conduct negotiations regarding authorisation for retransmission in good faith and do not prevent or hinder negotiation without valid justification.
Amendment 148 #
Proposal for a regulation
Recital 14a (new)
Recital 14a (new)
(14 a) Distributors, such as cable or platform operators, that receive programme carrying signals through a direct injection process for reception by the public should be covered by the mandatory collective management provisions outlined in this Regulation, even if a communication to the public has not taken place prior to the transmission of the signal by the distributor. Distributors should therefore obtain an authorisation from the relevant rightholders as concerns their respective participation in such acts, subject to mandatory collective management. The notion of "direct injection" is a technical term for the specific situation in which cable or other platform operators receive the broadcast signal directly from the broadcaster's premises or via a privately- closed network, so that such broadcast signal is not transmitted for reception by the public before it is transmitted by the operator receiving the signal. In this situation, which typically occurs within a Member State, there is only one, single communication to the public of such a programme-carrying signal. This clarification is important in order to avoid further complexity in the interpretation of the notion of communication to the public, which would have consequences beyond the issue of retransmission.
Amendment 149 #
Proposal for a regulation
Recital 14 b (new)
Recital 14 b (new)
Amendment 150 #
Proposal for a regulation
Recital 14 c (new)
Recital 14 c (new)
(14 c) In a number of Member States, rights clearance for the communication to the public or making available of television and radio programmes or related services, in a linear or non-linear form, is facilitated through extended collective licencing agreements. In order to take account of this situation and to improve legal certainty for all concerned parties in light of the judgment of the Court of Justice in Case C-301/15, this Regulation clarifies that such agreements are in line with Union law. The definition of information society services already exists in Directive 98/34/EC of the European Parliament and of the Council1a and in Directive 98/84/EC of the European Parliament and of the Council1b ; this definition covers any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service. The definition of linear and non-linear audiovisual media service should be in line with Directive 2010/13/EU. _________________ 1aDirective 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services (OJ L 204, 21.7.1998, p. 37). 1b Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (OJ L 320, 28.11.1998, p. 54).
Amendment 151 #
Proposal for a regulation
Recital 14d (new)
Recital 14d (new)
(14 d) In light of the case law of the Court of Justice of the European Union, it is also necessary to provide an additional exception to the rights of reproduction and communication to the public laid down in Article 2(a) and Article 3(1) of Directive 2001/29/EC, as established in Article 5(2) of that Directive, in order to provide legal certainty, and to allow service providers to make such programmes and services available on the basis of extended collective licencing.
Amendment 152 #
Proposal for a regulation
Recital 14e (new)
Recital 14e (new)
(14 e) The application of copyright and related rights is in some cases divided into numerous territorially defined national rights, with different rightholders and exercised in some cases by a different entity. A database maintained by collective management organisations is therefore needed to facilitate the identification of rightholders and the ability of broadcasting organisations and retransmission operators to conclude licensing agreements.
Amendment 176 #
Proposal for a regulation
Recital 17
Recital 17
(17) In order to achieve the objective of promoting the cross-border provision of ancillary online services and of facilitating retransmissions of television and radio programmescontent originating in other Member States, it is appropriate to adopt a Regulation, which directly applies in Member States. A Regulation is necessary in order to guarantee a uniform application of the rules across Member States and their entering into force at the same time with regard to all the concerned transmissions and retransmissions. The direct applicability of a Regulation reduces legal fragmentation and provides greater uniformity by introducing a harmonised set of rules which promote the free circulation of television and radio programmes originating in other Member Statescontent originating in other Member States. At the same time, the Regulation should not in any way limit or prohibit already existing mandatory collective management systems in Member States that go beyond what is required by this Regulation, particularly in domestic situations, because this would run counter to the Regulation's objective of facilitating retransmissions. Therefore, this regulation should be without prejudice to any existing mandatory or extended collective management solutions for retransmission existing in a Member State that go beyond what is required in this Regulation.
Amendment 191 #
Proposal for a regulation
Article –1 (new)
Article –1 (new)
Article -1 Subject Matter 1.This Regulation establishes legal mechanisms to facilitate the clearance of copyright and related rights relevant for the cross-border provision of online services and to facilitate digital retransmissions of television and radio content as well as broadcasting organisations' on-demand services originating in other Member States. 2.Those legal mechanisms include the establishment of the country of origin principle as regards the exercise of those rights. The legal mechanisms also include provisions on mandatory collective management of copyright and related rights relevant for retransmission, on legal presumptions of representation by collective management organisations, on the exercise of retransmission rights by broadcasting organisations and on the application of the mandatory collective management rules set out in this Regulation to direct injection.
Amendment 198 #
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, before, during or after their broadcast by the broadcasting organisation as well as of any material produced, co-produced or commissioned by or for the broadcasting organisation whichor licenced to ist ancillary to such broadcastd any service by the broadcasting organisation providing access to works under the editorial responsibility of the broadcasting organisation;
Amendment 202 #
Proposal for a regulation
Article 1 – paragraph 1 – point a
Article 1 – paragraph 1 – point a
(a) "ancillary online service" means an online service provided via the internet consisting in the provision to the public, by or under the control and responsibility of a broadcasting organisation, of linear and non-linear radio or television programmes before, simultaneously with or for a defined period of time, during or after their broadcast by the broadcasting organisation, as well as of any materialnd of any content produced by or for the broadcasting organisation which is ancillary to suchincluding without any connection to the broadcast;
Amendment 218 #
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 point to point via a private line, in such a way that the programme-carrying signals cannot be received by the general public during the transmission, to a distributor who then offers these programmes to the public in an unaltered and unabridged manner, for viewing or listening on cable, microwave systems, satellite, digital terrestrial, IP- based or similar networks.
Amendment 233 #
Proposal for a regulation
Article 2 – title
Article 2 – title
Application of the principle of ‘country of origin’ to ancillary online services by broadcasters
Amendment 240 #
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. Any disputes over the exercise of these rights shall fall under the jurisdiction of that Member State.
Amendment 256 #
Proposal for a regulation
Article 2 – paragraph 2
Article 2 – paragraph 2
(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 thall available language versions. Member States shall not impose any unwaivable remuneration for the rights subject to the country of origin principle set out in paragraph 1.
Amendment 263 #
Proposal for a regulation
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
(2 a) Member States may decide to exclude an online service from the application of paragraph 1 only in the case that the broadcasting organisation responsible for the online service establishes itself in one Member State while targeting exclusively an audience in another Member State market for the sole purpose of circumventing national copyright rules.
Amendment 268 #
Proposal for a regulation
Article 2 a (new)
Article 2 a (new)
Article 2 a Mediation 1.Where an agreement is being negotiated between a broadcasting organisation and a producer of audiovisual works regarding the clearance of rights for the provision of such works on an online service provided in accordance with Article 2, Member States shall ensure that either party may call upon the assistance of one or more mediators in order to enable reaching an agreement on terms acceptable to both parties. 2.Member States shall also ensure that the mechanism set out in paragraph 1 can apply in the context of the implementation of an agreement concluded between a broadcasting organisation and a producer of audiovisual works, in particular where the parties enter into a dispute or fail to reach an agreement in relation to the amount of the payment to be made to the producer or in relation to the online exploitation of the works. 3.The task of the mediators shall be to provide assistance with negotiation.They may also submit proposals to the parties. 4.The mediators shall be so selected that their independence and impartiality are beyond reasonable doubt.
Amendment 301 #
Proposal for a regulation
Article 3 – paragraph 5 a (new)
Article 3 – paragraph 5 a (new)
(5 a) Paragraphs 1 to 5 shall also apply to the integral re-use of the broadcasting organisation's on-demand services by a party other than the broadcasting organisation under whose control and responsibility such services were primarily made available.
Amendment 302 #
Proposal for a regulation
Article 3 – paragraph 5 b (new)
Article 3 – paragraph 5 b (new)
(5 b) Collective management organisations shall maintain a database providing information related to the application of copyright and related rights including the owner of a right, the type of use, the territory and period of time.
Amendment 310 #
Proposal for a regulation
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
Member States shall ensure by means of civil or administrative law, as appropriate, that the parties enter and conduct negotiations regarding authorization for retransmission in good faith and do not prevent or hinder negotiation without valid justification.
Amendment 317 #
Proposal for a regulation
Article 4 a (new)
Article 4 a (new)
Article 4 a Direct Injection Article 3 shall also apply to cases of direct injection, as defined in point (b a) of Article 1.
Amendment 318 #
Proposal for a regulation
Article 4 b (new)
Article 4 b (new)
Article 4 b Agreements on passive sales Agreements imposing on broadcasters or retransmission services obligations, in respect of passive sales, to act in violation of Article 101(1) of the Treaty on the Functioning of the European Union and Regulation (EU) No 330/2010, shall be automatically void.
Amendment 319 #
Proposal for a regulation
Article 4 c (new)
Article 4 c (new)
Article 4 c Extended collective licencing 1.Member States may extend the application of a non-exclusive licence concluded by a collective management organisation, on behalf of its members, with an information society service or a linear audiovisual media or radio service provider for the communication to the public or making available of, as well as the acts of reproduction which are necessary for the provision of, broadcasters' radio or television programmes and audiovisual works provided by the broadcasting organisation to the public, to rightholders of the same category as those covered by the licence who are not represented by the collective management organisation, provided that: (a) the collective management organisation is, on the basis of mandates from rightholders, broadly representative of rightholders in the category of works or other subject-matter and of the rights which are the subject of the licence; (b) equal treatment is guaranteed to all rightholders in relation to the terms of the licence; (c) the collective management organisation makes available to all rightholders information about the exploitation of the works subject to this paragraph; (d) all rightholders may at any time exclude the application of the licence to their works or other subject-matter. 2.Exceptions or limitations introduced by Member States to the rights provided for in Articles 2 and 3 of Directive 2001/29/EC apply in cases related to the provision to the public by an information society service provider of works covered by paragraph 1, insofar as the relevant rightholder does not exclude the application of the non-exclusive license.
Amendment 325 #
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) + 21 years, to be inserted by OPOCE] if they expire after that date.
Amendment 330 #
Proposal for a regulation
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
(2 a) The extension of this Regulation to include video-on-demand platforms in its scope shall be considered together with the review of Article 10 of Directive 2017/....1a _________________ 1aProposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market, COM(2016)0593.