IRIS Special

Digitisation and Online Exploitation of Broadcasters' Archives

Edition 2010, 91 pages

On 5 November 2010, Commissioner Neelie Kroes spoke – not for the first time – on the opportunities that digitisation of cultural works offer to artists, the general public, the question of cultural diversity and Europe as such. Forward looking, she pointed out that the variety of copyright laws could be a potential stumbling block for using these opportunities and announced that “Instead of a dysfunctional system based on a series of cultural Berlin walls,…” she wanted “…a return to sense“.

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As the European Commissioner rightfully reminds us, digitisation projects can turn out to be costly and time consuming mainly because of the need to clear copyrights. This challenge might even render a whole undertaking impossible. Exactly because of this, is it very important to understand what aspects of the legal field of copyright make rights clearance so difficult and how these difficulties could best be solved. As a matter of fact despite some harmonization through EU directives, copyright is still a national domain and as a result of this we have as many different copyright laws as we have states in Europe. But is this the weightiest problem as we are often told as well as the main stumbling block especially for broadcasters’ archives?

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In line with the general policy of the European Audiovisual Observatory, this publications seeks to inform its readership on this topic, given that the discussion about the digitisation and online exploitation of audiovisual works is of great importance to the audiovisual sector and it matters that policy and lawmakers take informed decisions. This IRIS Special very concretely contributes to the dialogue about digitisation and exploitation of cultural works that Commissioner Kroes called for. It does so by presenting the many facets of the copyright and competition law issues that should be raised even when looking only at one well-defined portion of the cultural works whose accessibility is at stake – i.e., the broadcasters’ archives.

The following thoughts and questions could serve as a crosscheck:

• If we were to accept that all broadcasters’ archives in Europe would be subject to one single copyright system, would this system be likely to offer solutions for uses that did not exist at the time when the system was established? Would such a system offer solutions covering tomorrow’s technology and, if so, what would they look like?
• Let us further concede, de facto, that the mere magnitude of rights that exist for audiovisual works and that need for clearance under no matter what copyright regime poses a huge challenge. What, then, does this mean for the struggle to find fair and efficient ways to deal with orphan works? How can the interest of the public in seeing these works and the interest of the media service providers to offer them online be reconciled with the interest of rightsholders to be remunerated or even not show their works at all?
• What are the other reasons that might account for, or at least contribute to, the difficulties in the digitization of broadcasters’ archives in a legally correct manner? Might language barriers, cultural preferences or financing models play a role? Do we know enough about the market without frontiers that we seek to establish? Is there a demand for European-wide accessible archives and services?
• If we had a copyright system that facilitated the establishment of European-wide exploitable digital archives, how would we deal specifically with the archives of public service broadcasters? Who would have the right to access these archives and what would be the reasonable conditions of access and use that the legal framework could stipulate? Does the fact that archives of public service broadcasters were established with public money generate an obligation to open them to competitors or the public? Does it matter that the citizens of the country where the public service broadcaster in question is established have provided the financing of these works?
• The main function of copyright law is to protect rightsholders and to incite creativity. If we assume that consumers ask to remove copyright barriers that stand in the way of desired European-wide services, would rightsholders agree? And if so, how much copyright protection and contractual freedom would they be willing to give up and in exchange for what? At what point would the creative forces loose their interest to create new works because of the lack of copyright protection?

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Editorial

Broadcasters’ Archives – National, International and Regional Copyright Aspects

1. Broadcasters’ archives
2. Applicable law
3. Transmissions in broadcasting and by making available on demand
4. Territorial division of rights
5. Identification of rightsholders
6. Diversity of applicable exceptions
7. Term of protection
8. Collecting society administration
9. Obtaining global licences
10. Conclusion: the global imperative in exercise and licensing of Internet rights

The ORF Television Archive’s Rights - Data Collection System

1. The ORF television archive
2. The computer programmes/databases
   1. Farao/Fesad
   2. Orfeus
   3. Rights cases in Farao/Fesad
   4. Diva
3. ORF – Staff/Organisational responsibilities
4. Summary

State Socialist Heritage – Audiovisual Archives in Hungary

Rights Management – An Example of Practical Experience

1. Introduction
2. Broadcasting environment
3. Rights clearance
4. Digital rights management
5. Identifying rights
6. Conclusion

Digitisation and Online Exploitation of Broadcasters’ Archives
Practical Experience of Rights Licensing

1. Introduction
2. The BBC Archive
3. BBC Strategy Review
4. BBC iPlayer
5. BBC Archive Trial
6. Current rights administration
7. Archive clearance solutions
8. Conclusion

Collective Management of Music Rights in the Case of the Online Exploitation of TV Archives

The Exploitation of the Audiovisual Cultural Heritage in Broadcasters’ Archives
A Competition Law and Policy Perspective

1. Introduction
2. Markets, competition policy and exploitation of PSB archives online
3. Competition law and access to PSB archives
4. State aid law considerations
5. Concluding remarks

Audiovisual Archives across Borders – Dealing with Territorially Restricted Copyrights

1. Introduction
2. The territorial nature of copyright
   1. Disparities in national law
   2. Territorial application of the law
   3. Territorially fragmented rights
3. Judicial and legislative responses
   1. Community exhaustion
   2. The satellite broadcasting solution
4. Possible solutions
   1. Extending the satellite broadcasting model to the Internet
   2. Promoting multiterritorial licensing
   3. Unification of European copyright law

The Desirability of Cross-border Exploitation from a Political and Economic Point of View – Working towards an Internal Market

1. Citizens’ expectations
2. “An ever closer union among the people of Europe”
3. An internal market
4. The Audiovisual Media Services Directive.
5. The SatCab Directive
6. The Communication on Public Service Broadcasting
7. The Monti Report
8. Convergence come true
9. EU 2020 and the Digital Agenda
10. Conclusion

The Desirability of Cross-border Online Exploitation of Broadcasters’ Archives from a Political and Economic Point of View – A Rightsholders’ Perspective

1. Scope of the discussion
   1. Broadcasters’ archives
       1.1. Ratione materiae
       1.2. Ratione temporis
   2. Online exploitation
       2.1. Online services
       2.2. Cross-border exploitation
2. Desirability of cross-border online exploitation of broadcasters’ archives from the audiovisual authors’ perspective
   1. Audiovisual authors are fully committed to the widest possible access to audiovisual works
   2. The online circulation of audiovisual works in Europe
3. How to facilitate the online cross-border exploitation of broadcasters’ archives?
   1. The current legal framework
   2. Collective administration of rights is a facilitator for the dissemination of broadcasters’ archives and a guarantee that audiovisual authors are paid
   3. EBU White Paper: modern copyright for digital media
       3.1. Extension of the country of origin principle for online licensing
       3.2. Unlocking broadcasters’ archives
4. Conclusion

Expert Workshop on “Digitisation and Online Exploitation of Broadcasters’ Archives” – Summary of the Discussion

1. Introduction
2. Defining the scope of the subject and establishing the legal framework
   1. Defining broadcasters’ archives
   2. The (European) legal framework with regard to copyright and digitisation
        2.1. Subject matter, rights and rightsholders involved
        2.2. European Copyright Law and the Realisation of a Single Digital Market
3. Competition aspects of the digitisation of broadcasters’ archives
4. Rights clearance
5. Collecting societies
6. Cross-border exploitation
7. Conclusion

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