30 Amendments of Mady DELVAUX related to 2016/0284(COD)
Amendment 26 #
Proposal for a regulation
Recital 2
Recital 2
(2) The development of digital technologies and internet has transformed the distribution of and access to television and radio programmes. Users increasingly expect to have access to television and radio programmes both live and on- demand, using traditional channels such as satellite or cable and also through online services. Broadcasting organisations are therefore increasingly offering, in addition to their own broadcasts of television and radio programmes, online services ancillary to their broadcasthat are complementary to their traditional linear output, such as simulcasting, webcasting and catch-up services. Furthermore, broadcasting organisations are also making television- and radio-like programmes available only online or online first, which represent a growing reality due to changing market realities and consumer demands. Retransmission services operators, which aggregate broadcasts of television and radio programmes into packages and provide them to users simultaneously to the initial transmission of the broadcast, unaltered and unabridged, use various techniques of retransmission such as cable, satellite, digital terrestrial, closed circuit IP-based or mobile networks as well as the open internet. The distribution of and access to television and radio programmes is therefore increasingly done on a multi- platform and technology-neutral basis. On the part of users, there is a growing demand for access to broadcasts of television and radio programmes on any platform in a borderless environment, therefore not only originating in their Member State but also in other Member States of the Union, including from members of linguistic minorities of the Union as well as from persons who live in another Member State than their Member State of origin.
Amendment 29 #
Proposal for a regulation
Recital 2
Recital 2
(2) The development of digital technologies and internet has transformed the distribution of and access to television and radio programmes. Users increasingly expect to have access to television and radio programmes both live and on- demand, using traditional channels such as satellite or cable and also through online services. Broadcasting organisations are therefore increasingly offering, in addition to their own broadcasts of television and radio programmes, online services ancillary to their broadcast, such as simulcasting and catch-up services. Retransmission services operators, which aggregate broadcasts of television and radio programmes into packages and provide them to users simultaneously to the initial transmission of the broadcast, unaltered and unabridged, use various techniques of retransmission such as cable, satellite, digital terrestrial, closed circuit IP-based or mobile networks as well as the open internet. On the part of users, there is a growing demand and need for access to broadcasts of television and radio programmes, including catch-up services, not only originating in their Member State but also in other Member States of the Union, includingespecially from members of linguistic minorities of the Union as well as from, persons who live in another Member State than their Member State of origin as well as persons who study other languages than their mother tongue.
Amendment 40 #
Proposal for a regulation
Recital 3
Recital 3
(3) A number of barriers hinder the 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. 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 matter. 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 61 #
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 70 #
Proposal for a regulation
Recital 7
Recital 7
(7) Therefore, cross-border provision of online services ancillary tof broadcasters 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.
Amendment 76 #
Proposal for a regulation
Recital 8
Recital 8
(8) The ancillary online services covered by this Regulation are exclusively 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 in a non linear manner during, before or after the broadcast, to television and radio programmes which have been previously or will be broadcast by the broadcasting organisation (so-callede.g. catch- up services). In addition, ancillary online services, webcasting or previews). In addition, they include services which give access to material which enriches or, otherwise expands or improves the accessibility of 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 tIn order to reach younger audiences, which mainly consume audio iandi audiovidsual 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, tcontent online, it is crucial to enable broadcasting organisations to also disseminate across borders content designed for the online environment. Therefore, online services also include services by or under the control and responsibility of a broadcasting organisation giving access only online to audio and audiovisual content. The provision of access to individual works or other protected subject matter independently of broadcast, such as services giving access to individual musical or audiovisual works, music albums or videos, by service providers other than broadcasting organisations, e.g. video-on-demand or music-streaming platforms, do not fall under the definition of ancillary online service for the purpose of this Regulation.
Amendment 78 #
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 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 online service.
Amendment 107 #
Proposal for a regulation
Recital 11
Recital 11
(11) Through the principles of territorial exploitation of rights and contractual freedom it will beremain possible to continue limiting the exploitation of the rights affected by the principle of country of origin laid down in this Regulation, as the implementation of Council Directive 93/83/EEC has proven, 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 111 #
Proposal for a regulation
Recital 11a (new)
Recital 11a (new)
(11 a) The underlying rationale of many international co-production agreements is that the rights in the co-production are exercised separately and independently by each co-producer, by dividing the exploitation rights between them along territorial lines. In exercising the rights of each co-producer, the rights of another co-producer have to be taken into account while respecting the financing share of the parties. In the situation where authorisation of communication to the public or making available of co-produced audiovisual works by one co-producer would seriously prejudice the value of the exploitation rights of another co- producer, agreements between the co- producers could foresee that the latter co- producer has to give his consent to the authorisation by the former co-producer. This is for example the case where the language version or versions of the making available, including where the version is dubbed or subtitled, coincide with the language or the languages widely understood in the territory allotted by the agreement to another co-producer. Therefore, agreements between the co- producers could request, to the extent compatible with Union law, the use of technical measures in order to prevent the party from interfering in other party's agreed territorial exploitation.
Amendment 121 #
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 and via an internet access service in accordance with Regulation (EU) No 2015/2120 of the European Parliament and of the Council, provide services whichthat 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 excludingas well as 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 whichthat are offered on the open internet should only 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 toif they cannot ensure a controlllosed environment is limited when compared for example to cable or closed circuit IP-based networks.
Amendment 141 #
Proposal for a regulation
Recital 13a (new)
Recital 13a (new)
(13 a) In order to meet with consumer demands, the exercise of retransmission rights as defined in this Regulation and in Council Directive 93/83/EEC should also apply to functionalities, which are closely connected to the linear broadcast for which the retransmission rights are obtained. Time shifted services, which are only made available for a certain period of time, as agreed by contract between the parties, during or after the retransmission, such as internet-based PVR (personal video recording) and restart-TV, should be regarded as such functionalities. A functionality which substitutes a broadcasting organisation's online services should not be considered as a functionality, which is closely connected to the linear broadcast for which the retransmission rights are obtained. The exercise of retransmission rights should therefore not apply to such a functionality offered by a retransmission operator.
Amendment 142 #
Proposal for a regulation
Recital 13b (new)
Recital 13b (new)
(13 b) Nevertheless, there is a growing demand for the re-use of online services offered by broadcasting organisations, in particular their catch-up services, on a cross-platform basis. The licensing system therefore needs to be facilitated in order to be able to respond to this user expectation. Extended collective licensing (ECL) has proved to be a flexible and effective mechanism to facilitate voluntary collective agreements where individual licensing would be cumbersome and inefficient. These agreements can be extended by law to non-represented right-holders, who have a possibility to opt out of such arrangements and exercise their rights differently.
Amendment 144 #
Proposal for a regulation
Recital 14
Recital 14
(14) Any rights held by broadcasting organisations themselves in respect of their broadcasts, including rights in the content of the programmes, should be exempted from the mandatory collective management of rights applicable for retransmissions. Operators of retransmission services and broadcasting organisations generally have ongoing commercial relations and as a result the identity of broadcasting organisations is known to operators of retransmission services and hence the clearance of rights with broadcasting organisations is comparatively simple. Thus, to obtain the necessary licences from broadcasting organisations that are necessary for each means of retransmission and for each service or functionality, operators of retransmission services do not face the same burden as they face to obtain licences from holders of rights in works and other protected subject matter included in the retransmitted television and radio programmes. Therefore, there is no need for the simplification of the licensing process with regard to rights held by broadcasting organisations.
Amendment 164 #
Proposal for a regulation
Recital 15
Recital 15
(15) In order to prevent circumvention of the application of the country of origin principle through the extension of the duration of existing agreements concerning the exercise of copyright and related rights relevant for the provision of an ancillary online service as well as the access to or the use of an ancillary online service, it is necessary to apply the principle of country of origin also to existing agreements but with a transitional period.
Amendment 177 #
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 programmes 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 as well as of audio and audiovisual content exclusively disseminated online originating in other Member States.
Amendment 199 #
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 timetheir broadcast, during their broadcast, before and/or after their broadcast by the broadcasting organisation as well as, of any material produced by or for the broadcasting organisation which is ancillary to such broadcast; supplementing the linear broadcast as well as of any content produced by or for the broadcasting organisation for the online dissemination only;
Amendment 203 #
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 linear and non-linear radio or television programmes before, simultaneously with or for a defined period of time after their broadcast by the broadcasting organisation as well as of any material produced by or for the broadcasting organisation which is ancillary to such broadcast;
Amendment 208 #
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 but excluding online transmissionrrespective of the retransmission technology or network used providing that the retransmission takes place in a closed environment, of television or radio programmes 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 220 #
Proposal for a regulation
Article 1 – paragraph 1 – point b a (new)
Article 1 – paragraph 1 – point b a (new)
(b a) "closed environment" means any environment in which a retransmission operator only provides a retransmission service to a definable group of consumers;
Amendment 236 #
Proposal for a regulation
Article 2 – title
Article 2 – title
Application of the principle of ‘country of origin’ to ancillary online services
Amendment 237 #
Proposal for a regulation
Article 2 – title
Article 2 – title
Application of the principle of ‘'country of origin’' to ancillary online services
Amendment 246 #
(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 247 #
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 248 #
Proposal for a regulation
Article 2 – paragraph 1 a (new)
Article 2 – paragraph 1 a (new)
(1 a) Paragraph 1 shall not undermine the contractual freedom in copyright law and shall be without prejudice to the rights set out in Directive 2001/29/EC.Rights holders and rights users may therefore agree to limit the geographical scope of rights affected by the principle of country of origin, provided that they respect the relevant rules.
Amendment 251 #
Proposal for a regulation
Article 2 – paragraph 1 b (new)
Article 2 – paragraph 1 b (new)
(1 b) Paragraph 1 shall not undermine the possibility of co-producers to exercise the rights separately and independently from each other.
Amendment 261 #
(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.
Amendment 272 #
Exercise of the rights in retransmission and in re-use of broadcasting organisations' on-demand services by right holders other than broadcasting organisations
Amendment 298 #
Proposal for a regulation
Article 3 – paragraph 5 a (new)
Article 3 – paragraph 5 a (new)
(5 a) The rights clearance mechanism regarding the exercise of the rights in retransmission by rightholders other than broadcasting organisations established in paragraphs 1 to 5 of this Article as well as in Chapter III of Council Directive 93/83/EEC also applies to functionalities that are closely connected to the linear retransmission and made available for a limited period of time after or during the retransmission.
Amendment 299 #
Proposal for a regulation
Article 3 – paragraph 5 b (new)
Article 3 – paragraph 5 b (new)
(5 b) A Member State shall provide, for the integral re-use of broadcasting organisation's on-demand services by third parties, that a collective agreement between a representative association of collecting societies and an association of rights-users or individual rights-users concerning a given category of works may be extended to right holders of the same category who are not represented by the representative association of collecting societies, provided that the unrepresented rightholder shall, at any time, have the possibility of excluding the extension of the collecting agreement to his works and of exercising his rights either individually or collectively.
Amendment 300 #
Proposal for a regulation
Article 3 – paragraph 5 a (new)
Article 3 – paragraph 5 a (new)
(5 a) The principles of paragraphs 1 to 5 shall apply also 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.