The challenges and opportunities raised by the changes in the way audiovisual works are produced, marketed, distributed and protected via the various intellectual property rights due to digital technology and the internet are set out in the recent Green Paper published by the European Commission.

The Green Paper investigates:

-        the problems in relation to intellectual property rights clearance for the online distribution of audiovisual media services and the possible options at EU level to resolve them; and

-       the audiovisual intellectual property rights-holders' remuneration for the online use of their works.

The publication of the Green Paper brings the Commission closer to completing its digital agenda published in May 2010 aimed at delivering sustainable economic and social benefits and achieving its comprehensive strategy for intellectual property rights.

Two European directives are important in this regard: the Copyright Directive and the Satellite and Cable Directive

Under the Copyright Directive, which was implemented into UK law and amended the Copyright, Designs and Patents Act 1988 (Act), there are various acts regarding literary works, artistic works, films, sound recordings and broadcasts which are prohibited without the consent or licence of the copyright owner.  

Such acts include:

(a) Copying a copyright work (the reproduction right) and

(b) Communicating the work to the public, which means (i) broadcasting the work in question (the broadcasting right); or (ii) making the relevant work available to the public via electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them (the making available right). “Making available”  covers on-demand or other interactive services.

On the other hand, performers are entitled to various rights in fixations of their performances under the Act and the Copyright Directive, including the right to control reproduction of or communication to the public of such fixations of their performances.

The Satellite and Cable Directive provides a copyright clearing process exclusively for the simultaneous retransmission, by cable, of programmes broadcast from other member states. In particular, it provides that:

·         Broadcasters may license their own rights, as well as the rights that have been transferred to them by contract on an individual basis, to cable operators.

·         All other rights necessary for the retransmission of a specific programme by cable may only be managed by a collecting society.

However, there is no legal instrument specifically addressing the clearing of copyright and related rights for cross-border online audiovisual media services.

While traditional distribution networks for audiovisual content are national in scope, broadcast and cable networks cater primarily to national audiences or particular linguistic areas. Digital technology and the internet are rapidly changing the way in which content is produced, marketed, and distributed to consumers. Converged networks and devices, the availability and delivery of TV and internet via cable, and the emergence of internet-enabled TVs and the availability of web-based services, including cloud computing are increasing following the demand of consumers for immediate and easily accessible content.

These developments are putting pressure on the traditional distribution networks for audiovisual media services on the one hand and on the traditional release sequences for film on the other.

Furthermore, the internet offers the audiovisual sector opportunities to develop further and to reach wider audiences both within Europe and beyond, as well as to increase revenues for rights-holders.

The paper addresses rights-clearances issues, and suggests a long-term copyright reform in the form of a unitary European Copyright Code. Such issues if addressed could be the forefront of a wider copyright reform such as the creation of a Copyright Code. It also includes the suggestion that authors and performers should be provided with a right that could not be waived to remuneration in relation to online exploitation of audiovisual works in respect of which they have rights.    

Copyright 2011 Anassutzi & Co Limited. All rights reserved. Information may be shared or reproduced only if accompanied by the author’s name and bio.