IRIS Plus 2010-5: New Services and Protection of Broadcasters in Copyright Law
Author: Anne Yliniva-Hoffmann/Peter Matzneller, Institute for European Media Law (EMR), Saarbrücken/Brussels
“New game – new chances!” Or, as the Latin scholar would say: “ Hodie mihi, cras tibi. ” Does this phrase also apply to broadcasters who are hoping that the debate recently launched at the Council of Europe concerning the protection of their interests will finally give them the level of protection for their programmes that they have long been craving?
A European Audiovisual Observatory publication had already investigated one aspect of the debate in autumn 2004. In IRIS plus “The Legal Protection of Broadcast Signals”, Lucie Guibault and Roy Melzer described in detail current provisions for the international protection of broadcast signals. Due to the lack of a successful conclusion to the WIPO negotiations, this snapshot from 2004 has remained largely unchanged. Therefore, a description of the legal protection of broadcast signals can, as before, be found in this IRIS plus, which can be downloaded free of charge from http://www.obs.coe.int/oea_publ/iris/iris_plus/ iplus10_2004.pdf .
The aforementioned publication did not examine the protection of broadcasters in relation to the content of their programmes. In the meantime, the fact that broadcasters are extending their traditional broadcasting services to include more comprehensive audiovisual media services is increasing the need for this information gap to be filled. Consequently, the lead article considers whether the protection of broadcasting rights is adequately regulated for broadcasters in the current context, which is characterised by the advantages and disadvantages of digital technology. What does it all mean for authors and holders of copyright-related rights? What conflicting interests must be taken into account? What different scenarios are there and what legal developments? Under the committed guidance of Alexander Scheuer, Anne Yliniva-Hoffmann and Peter Matzneller have sounded out the current situation and investigated the protection of broadcasting organisations, particularly with regard to content that lies outside that of traditional television services. They have also looked into the current political debate concerning a possible Council of Europe instrument regulating copyright-related rights of broadcasters. The lead article explains which issues have been discussed in the Council of Europe since the start of this year, and why.
The lead article is again supplemented with additional information on the international legal framework, significant legislative activities and relevant court decisions. These can be found in the Related Reporting section. We have not included the very extensive range of important decisions of the Court of Justice of the European Union, since these, although still relevant, are mostly rather old and therefore easy to research. The IRIS Merlin database may be helpful in this respect (http://merlin.obs.coe.int). However, the Related Reporting section looks in greater detail at themes covered in the lead article, such as the protection of broadcast signals using digital rights management systems or the supposed right to access to broadcast signals, which have recently been discussed by national authorities.
It appeared essential that we should add an overview of the international and European instruments relating to the protection of broadcasting organisations. For, despite some obvious gaps in the regulations, these instruments govern the protection of signals and broadcast content, the potential expansion of which has already been wrestled with for so long. You can see from the overview that starts the ZOOM section which agreements and EU directives are relevant and which European states are bound by these legislative instruments. The following table shows, at a glance, which international and European regulatory instruments protect which copyright-related rights held by which rightsholders in relation to the distribution of audiovisual media content via various distribution methods. The term of protection and any exceptions are also listed. Supplementing the information on current protection for broadcasting organisations, the second table describes measures available to them for the enforcement of the related legislation. These tables are both as complex as the subject matter itself and are therefore explained by means of a legend. Once again, we are grateful to our partner institution, the Institute of European Media Law, for compiling both tables.