While the internet and new technology offers opportunities to the audiovisual sector to develop further and to reach wider audiences, it also increases the complexity of rights clearances and compensation to performers. In the previous article we started considering the relevant legislation applying to online distribution of content, the subject of a European Commission Green Paper and in particular how the intellectual property rights of such content can be protected. In our previous article we looked at the appliable legislation in online distribution of content. In this article, we continue highlighting the key issues discussed in the Green Paper.

1) Intellectual Property Rights clearance for online transmission of audiovisual media services.

When broadcasting consists mainly of the traditional broadcasting over the air, satellite or cable, the broadcasters in order to use audiovisual works, have to clear the reproduction rights and the broadcasting/communication rights of authors, performers and producers to the public.

Nowadays broadcasters make available a portion of their programming on an on-demand basis (through catch-up TV services and downloads). This requires broadcasters to clear the making available right, as well as the reproduction right. When they distribute these services beyond the territory of the initial broadcast, they need to clear the rights for each additional territory.

The economic rights in an audiovisual work are transferred from the contributors (authors, performers) to the producer in exchange for an upfront payment, so that the producer can license the majority of forms of exploitation of the audiovisual work, including on-demand uses, on an individual basis. However, clearing the online exploitation rights for works and other subject matter incorporated in the audiovisual fixation (notably in relation to background music) for online uses and across multiple territories appears in some cases and for some rights-holders to involve significant administrative effort and transaction costs.

2) Intellectual Property Rights clearance for retransmission of audiovisual media services.

New digital platforms have facilitated the simultaneous retransmission of programmes across different networks. Retransmission is a separate copyright act, also requiring authorisation from rights-holders. Operators of internet protocol television, mobile networks and other digital platforms now also operate broadcast retransmission services.

The paper is questioning whether the provisions of the Satellite and Cable Directive, that currently is governing the copyright licensing for cable retransmission should be reviewed and expanded beyond cable, for the cross-border retransmission of audiovisual media services. Claims have also been made that rights clearance, under the current rules for cable retransmission in the Satellite and Cable Directive, may require multiple transactions with different rights representative organisations, and that there could be a lack of clarity and certainty as to who has the mandate to licence which rights. There has also been some debate around the need to maintain mandatory collective licensing for cable retransmission as opposed to giving freedom to rights owners to license on an individual basis.

3) Intellectual Property Rights clearance for transactional video-on-demand (VoD) services.

The emerging market for VoD services (including rental and downloads) in Europe is growing rapidly and estimated that VoD turnover in Europe will increase dramatically over the next few years. Over-the-top Video (video services delivered through devices outside the traditional video delivery structure such as internet-connected set top boxes, tablets or games consoles), IPTV and internet-connected TV are developing. This means that television channels, cable network and broadband operators and new entrant service providers will compete to provide VoD services. The landscape is further characterised by the fast development of social networking and social media sites such as Facebook and Youtube, which rely on the creation and upload of online content by end-users, and the advent of "cloud-based" services.

The question arises whether any changes would be needed to the regulatory framework to facilitate the emergence of multi-territorial services in the EU. The economic rights in audiovisual works (including the making available right) are normally transferred from authors and performers to the producer. This enables the producer to licence most of the required rights for VoD services directly. Rights clearance may be laborious and expensive for some VoD operators because, among other things, as part of pre-financing arrangements, producers may have split the exploitation rights across territories, with a different distribution partner having been appointed to manage marketing and distribution in each territory.

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