Scope

Evaluation of all the core provisions of the Satellite and Cable Directive (Directive 93/83/EEC) establishing, respectively, the ‘country of origin’ principle for satellite broadcasting and a two-stop-shop copyright clearing mechanism for cable retransmission (individual licensing of rights held by broadcasters combined with mandatory collective management of all other rights).

Evaluation findings

The evaluation showed that the mechanisms put in place by the directive have facilitated the clearance of copyright and related rights for cross-border satellite broadcasts and for the simultaneous retransmissions by cable of broadcasts from other Member States.

It however pointed out that the directive - due to the technology-specific nature of its provisions - does not apply to the new digital technologies used for transmission and retransmission of television and radio programmes that have emerged in recent years.

Effectiveness and efficiency: there are indications that the specific mechanisms introduced by the directive have facilitated the clearance of copyright and related rights for (free-to-view) cross-border satellite broadcasts and for simultaneous retransmissions by cable of broadcasts from other Member States. Similarly, these mechanisms can be considered to have contributed to ensuring a high level of protection for right holders and have improved, to different extents, access to television and radio programmes from other Member States. The negotiation and mediation mechanisms established under the directive have been used to a varying, but overall limited, degree; they were found helpful in the cases where they were used.

Relevance and EU added value: with regard to satellite broadcasting, the directive has provided significant added value, since no action with comparable results could have been taken at the Member State level. As regards cable retransmission, action at the Member State level is possible, but the directive has provided added value by establishing harmonised rules across the internal market.

Estimated savings and benefits

Despite a limited amount of evidence, the evaluation found that the directive has not created administrative burden or significant compliance / implementation costs for either stakeholders or Member States.

The directive has helped to reduce transaction costs for the licensors and the licensees. Certain identified specific costs resulting from the application of the directive (fees of collective management organisations charged for managing rights in cable retransmissions) have been outweighed by benefits (savings in transaction costs).

However, it was not possible to obtain quantitative data concerning the potential costs and benefits generated by the application of the directive.

This is mainly due to the following factors: (i) the confidentiality of such data; (ii) the difficulty of extracting data concerning the directive from wider data sets; (iii) the fact that the directive has been in place for a long time.

Which objective(s) does the Commission pursue?

The Commission proposal pursued the objective to improve cross-border access to television and radio programmes in Europe and to strengthen the single market in this area.

Building on the experience of the application of the Satellite and Cable Directive, the Commission proposed to adopt a new regulation, which aimed at facilitating online access to more television and radio programmes from other Member States and certain retransmissions of television and radio programmes from other Member States.

In particular, it introduced the application of the ‘country of origin’ principle to some online transmissions of broadcasting organisations, and mandatory collective management of rights to retransmissions by means equivalent to cable.

A review of the existing provisions of the Satellite and Cable Directive was not proposed, as no particular issues with its application were identified.

Estimated savings and benefits

Based on the impact assessment carried out by the Commission in 2016, the proposed measures would reduce transaction costs (in particular, for broadcasting organisations and operators of retransmission services), while it is not expected to have disruptive effects on right holders. The introduction of mandatory collective management of rights for certain retransmissions would affect the licensing choices of right holders but in a limited manner only. The proposed measures would enhance people’s access to television and radio programmes from other Member States and thus bring benefits to consumers.

However, it was not possible to obtain data allowing for the quantification of the estimated costs and benefits (data confidentiality).

Outcome of legislative procedure

Compared to the original Commission proposal, the main changes are:

• the legal act is a directive, not a regulation;

• the legal basis was changed from Article 114 of the Treaty on the Functioning of the European Union (TFEU) to Articles 53(1) and 62 TFEU;

• the scope of application of the ‘country-of-origin’ principle was restricted: it applies to all radio programmes but only to certain types of television programmes – news and current affairs programmes and fully financed own productions of the broadcasting organisations (in the Commission proposal it applied to all programmes – radio and TV – without distinction);

• the scope of the mandatory collective management regime, applicable to cross-border retransmissions, was extended to include retransmission by certain over-the-top service providers (if they are provided in a ‘managed environment’) ;

• the obligation for broadcasters and retransmission operators to negotiate in good faith was introduced, alongside of provision making available mediation possibilities for parties regarding the authorisation for the retransmission of a broadcast;

• new rules were introduced to regulate the use of protected works or subject matter via direct injection, a process increasingly used by broadcasters to transmit their programmes to the public.

Estimated savings and benefits

The outcome of the legislative process differs in some respects from the Commission proposal. No new impact assessment was carried out to calculate the impact of these changes on the estimated savings and the benefits.

Notwithstanding the changes made by the co-legislators, the legal framework introduced by the directive is expected to simplify the clearance of rights for broadcasters wishing to make certain of their programmes available online in other Member States and for retransmissions operators providing their services via means other than cable. In addition, the new rules on direct injection is deemed to improve legal clarity and certainty for the main actors involved.

Implementation by Commission

The Commission opened infringement proceedings in July 2021 by sending letters of formal notice to 21 Members States, which had not communicated complete transposition of Directive 2019/789/EU on online television and radio programmes. Following notifications of transposition from Member Stats in December 2022 there were only 5 infringement proceedings still open with: Bulgaria, Finland, Latvia, Poland and Portugal.

To date (December 2022), 21 Member States have communicated complete transposition.