law is the economic linchpin of the television broadcasting business.
In nearly every country of the world, the domestic law permits the
owner of the copyright in a literary or artistic work to prevent
that work from being copied, broadcast or communicated to the public
by cable. The right owner can then license other parties to use
the work on either an exclusive or a non-exclusive basis. As broadcasting
becomes ever more international in scope and reach, the international
framework of copyright law has become as important as the national
Nearly every country has ratified the Berne Convention for the
Protection of the Rights of Authors in Literary and Artistic Works,
which was last revised in 1971. This lays down the minimum requirements
for the national laws of all signatory states. There is a second
international convention, the Rome Convention for the Protection
of Performers, Producers of Phonograms and Broadcasting Organisations,
which dates from 1961 and extends protection to performers, record
producers and broadcasters. But this has been ratified by far fewer
states. Although both conventions are administered by the World
Intellectual Property Organisation, the Rome Convention is
managed in association with UNESCO and the International Labour
Organisation. Finally, a chapter protecting Trade-Related Aspects
of Intellectual Property Rights (TRIPS) is included in the WTO
Agreement, which was agreed in 1994 and is administered by the World
are formal linkages between each of the three international legal
instruments. A state cannot ratify the Rome Convention unless
it has also signed the Berne Convention; and a country which
ratifies the TRIPS Agreement must comply with the provisions
of the Berne Convention, but with one significant exception.
It does not have to protect the moral rights of authors to prevent
any distortion or other modification of their work which would damage
their honour or reputation.
origins of these three international legal instruments can be traced
back to the late eighteenth century. Some countries, with common
law systems, such as the United Kingdom and the United States, gave
copyright protection to the work itself. But others, whose legal
systems were based on Roman Law, such as France and most of continental
Europe, gave protection to the author of the work. The difference
is often insignificant, since in practice it is normally the same
for an author to license the economic rights in a work which s/he
has authored, as it is for the owner to license the rights in a
work for which s/he owns the copyright. Furthermore, the text of
the Berne Convention, which affords protection of the rights
of authors in their literary and artistic works (but not to rights
in the literary and artistic works themselves), has been ratified
both by countries with common law and those with Roman law systems.
This is because there is no definition of the word "author" in the
Convention; and the definition of the phrase "literary and artistic
works" has been extremely carefully drafted. A literary and artistic
work includes "every production in the literary, scientific or artistic
domain, whatever may be the mode or form of its expression, such
as ... ." There then follows an extensive list of forms of literary
and artistic expression. But although this list includes cinematographic
works, it does not include broadcasts. Thus the Berne Convention
can be ratified both by Roman law countries, where "an author's
right" can only be granted to a natural person, and by common law
countries, where the copyright in a work can be owned by either
a natural or a legal person.
broadcasters were clearly not natural persons, Roman Law countries
originally denied them protection as authors. Instead, they awarded
a broadcaster a separate, but secondary right, called a neighbouring
right. A key reason for negotiating the Rome Convention was
to afford international protection to holders of neighbouring rights,
including broadcasters. But by protecting the rights of performers,
as well as those of phonogram producers and broadcasters, the drafters
of the Rome Convention gave performers rights which many
countries, such as the United States, considered excessive. They
have therefore declined to ratify the Rome Convention. The
TRIPS Agreement includes some, but not all, the provisions
of the Rome Convention. It only protects performers against
the unauthorised recording and broadcasting of live performances--
i.e. bootleg recordings and broadcasts.
However, the main reason for establishing a parallel system of protecting
intellectual property rights within the WTO Agreement was
to strengthen enforcement procedures for protecting intellectual
property rights. Each country must ensure that its laws provide
enforcement procedures that are backed by rapid and effective action.
Judicial authorities must be given powers to serve an injunction
requiring an alleged infringer to desist, and to require the destruction
of infringing goods, or the tools and materials with which the infringing
activities were carried out. They must also require the infringer
to pay damages and costs to the right holder. Furthermore, under
the most favoured nation clause of the WTO Agreement, each
country must afford equal immediate and unconditional protection
to nationals from all other signatories. Finally, any dispute as
to the implementation of the provisions of the WTO Agreement
must be settled under its Dispute Settlement Procedures. This is
a new departure, as there are no enforceable disputes procedures
in the Berne and the Rome Conventions.
Rights in Literary and Artistic Works
The author of every literary and artistic work has the exclusive
right to license the work to be broadcast or communicated to the
public by wire. As most broadcasts include literary or artistic
works, the broadcaster must normally acquire these rights in advance.
When recorded music is used, it is also necessary to acquire a separate
neighbouring right in the sound recording of the performance; and
in many countries the performers also have a separate right in their
performance. If a cinematographic recording is used during a broadcast,
the broadcaster must also acquire its broadcasting right. By acquiring
the broadcasting rights in all the constituent literary or artistic
works which are included in a broadcast, the broadcaster can thus
protect the broadcast itself from being copied, broadcast or communicated
to the public by cable.
broadcaster has only five key issues to negotiate when acquiring
a licence to broadcast a literary or artistic work. They are: (a)
the territories for which the right should be acquired; (b) the
period of time for which the right should be acquired; (c) whether
the right should be licensed on an exclusive or non-exclusive basis;
(d) whether to acquire any ancillary rights, such as cable rights;
and (e) whether payment to the original right holders should be
made immediately, or stage by stage with each successive broadcast.
Thus, once the broadcaster has acquired the constituent rights in
the broadcast, these can form the basis of protection for the broadcast
Copyright of Broadcasts
In some broadcasts however, there may be no constituent literary
or artistic work. The broadcaster cannot rely therefore on the licences
to the constituent works in order to protect the broadcast itself.
Two typical examples would be a live broadcast of a sports event
or a discussion programme. In common law countries, the broadcaster
is normally granted a copyright in the broadcast itself. But in
Roman law countries, a broadcaster is only given a neighbouring
right. The international protection afforded by the Berne Convention
does not extend to these broadcasts therefore.
order to facilitate international trade in television programmes,
a number of European states used the umbrella of the Council of
Europe to establish the European Agreement Concerning Programme
Exchanges by Means of Television Films in 1958 and the European
Agreement to Protect Television Broadcasts in 1960. But in the
following year, broadcasters were also afforded more limited, although
more widespread protection by the Rome Convention for the Protection
of Performers, Phonogram Producers and Broadcasting Organisations.
Even so, broadcasters that are established in states which are not
signatories to the Rome Convention, may have to rely for protection
on bilateral agreements between the country where they are established
and that where protection is claimed. Elsewhere, the broadcaster's
only protection could depend on the terms of the contract between
the broadcaster and the foreign user.
Relays of Broadcasts
Once a television programme has been broadcast, it is technically
possible to capture it and relay it to new audiences by cable. In
the early days, cable was often used to improve signal reception,
particularly in the so-called "shadow zones," or to distribute the
signal through large buildings. The Berne Convention permits
states to determine the conditions under which authors of literary
and artistic works may exercise their rights to communicate their
works to the public by wire, provided that those conditions are
prejudicial neither to the moral rights of the author, nor to the
right to receive equitable remuneration. Many states therefore impose
compulsory licences on the cable rights of literary and artistic
works which were incorporated in broadcasts. The Rome Convention
affords even less protection. It denies a performer the right to
prevent a performance from being communicated to the public by cable
when the performance is already part of a broadcast; and it only
allows a broadcaster a separate cable right in its television broadcasts
if they are relayed to places where the public must pay an entrance
fee. In many countries therefore, cable operators can relay both
domestic and foreign broadcasting services to their subscribers
without a sub-license from the original broadcaster.
U.S. Supreme Court originally held that it was not an infringement
of copyright to relay broadcasts to paying subscribers. But the
1976 Copyright Act drew a distinction between "secondary
transmissions" which simultaneously retransmit network programmes
or programmes within the local service area of a broadcaster, and
the retransmission of far away non-network programmes. The former
are deemed to have no adverse economic effect on the copyright owners,
whereas the latter are determined to have such an effect, since
they distribute the broadcast to a new audience which the original
right owner did not anticipate when the works were first licensed.
Each distant signal is therefore given a "distant signal equivalent",
with different values for independent station networks and educational
stations. The total royalty is calculated by applying a formula
based on these values to the cable operator's gross receipts. This
is then redistributed to the appropriate authors by the Copyright
Europe the situation is variable. The United Kingdom permits licensed
cable operators to retransmit the broadcasts of British broadcasting
organisations. But in Germany, copyright owners are fully protected
against their works being retransmitted by cable. In addition, both
broadcasters and cable operators have a 25-year neighbouring right
against rebroadcasting and retransmission. In Austria, complete
and unaltered transmissions of the public broadcaster ORF can be
retransmitted throughout the country. On the other hand, cable retransmissions
of foreign broadcasts are subject to copyright under a statutory
licence which sets out the remuneration criteria.
cable operator can now pick up a broadcast signal from a foreign
satellite and relay it to its domestic subscribers. In its Council
Directive on the co-ordination of certain rules concerning copyright
and rights related to copyright applicable to satellite broadcasting
and cable retransmission (93/83), the European Union harmonised
the rules for the internal market between its fifteen member states.
When a programme from another member state is retransmitted by cable,
the applicable copyrights and related rights must be observed. Any
retransmission must be licensed by individual or collective contractual
arrangements between cable operators and the relevant right holders.
But this provision does not automatically apply to cable retransmissions
of broadcasts from countries outside the European Union. Furthermore,
although there are several European states that are members of the
Council of Europe but not of the European Union, the parallel convention
of the Council of Europe--the European Convention Relating to
Questions of Copyright Law and Neighbouring Rights in the Framework
of Transfrontier Broadcasting by Satellite--does not cover the
simultaneous, complete and unchanged retransmission of satellite
broadcasts by terrestrial means.
Collective Administration of Rights
For many broadcasters the time and effort in negotiating copyright
clearance for all the literary, musical and artistic works used
in their broadcasts is potentially extremely expensive and time-consuming.
Conversely, many rights owners have neither the means nor the ability
to monitor the use of their work by broadcasters. In practice therefore,
many rights are collectively administered by collecting societies.
These collecting societies are effectively co-operatives between
different categories of rights holder. Originally, this form of
administration was mainly confined to musical works. But when sound
recording and radio broadcasting arrived, composers and music publishers
soon realised that the performing rights of their works in gramophone
recordings and radio broadcasts would far outstrip sales of sheet
music. They therefore transferred the right to authorise the use
of their works to a collecting society. The collecting society can,
in turn, authorise recording companies and broadcasters to use a
wide range of music in one general contract. Depending on the agreement,
the fee which the broadcaster has to pay may either be standard,
or vary according to some agreed criterion, such as the broadcaster's
net advertising revenue. The collecting society then passes its
revenues back to its members, after deducting its administration
costs. On the other hand, broadcasting licences for cinematographic
works or dramatico-musical works are still normally acquired by
individual negotiation and the payment of a specific fee.
1926, an international organisation--The International Confederation
of Societies of Authors and Composers (CISAC)--has provided an international
framework of co-operation and financial exchange between national
collecting societies. In many countries, similar collecting organisations,
or sometimes the same ones, have also been established to licence
the recording rights for musical works. A parallel international
bureau of societies administering those rights (BIEM) has also been
set up, which negotiates model agreements with broadcasters and
others which serve as the basis for licensing recordings throughout
many parts of the world. Today collecting societies administer collectively
the authors rights and neighbouring rights for radio and television
broadcasting, the public reception of broadcasts and cable transmission
(including retransmission of broadcasts). Indeed, in Europe, the
simultaneous cable transmission of broadcasts, both domestic and
foreign, has led to the formation of "super-collectives" which are
able to grant licences on behalf of several different collective
High power and medium power satellites have now made transfrontier
broadcasting possible. In some situations, the signals are broadcast
direct to home, elsewhere they are relayed by cable. Some channels,
financed by advertising and sponsorship, broadcast open signals.
Others, which are financed by subscription, broadcast encrypted
signals. But in practice, every transfrontier service also has to
negotiate the appropriate copyright clearances, both for the literary
and artistic works in the programme and for the broadcast itself.
A key issue which the international community has still to resolve
is to agree upon the relevant jurisdiction for a transfrontier broadcast.
Is it where the broadcast originates, or where it is received? Although
this issue has not been formally resolved at the international level,
the international community will probably follow the regional lead
which has been given by the European Union (EU), and through them,
the EEA. The EU's Directive specifies that the broadcast takes place
"where the programme-carrying signals are introduced under the control
and responsibility of the broadcasting organisation into an uninterrupted
chain of communication leading to the satellite and down towards
earth." Thus if a broadcast starts life in country A, but is then
relayed by cable to country B, where it is up-linked to a satellite
owned by an organisation whose headquarters are registered in country
C, using frequencies allocated to country D, the broadcast is deemed
to originate in country A.
EU (and EEA) Member States now provide an exclusive right for the
author of a copyright work to authorize the communication to the
public by satellite. In countries where there is a collective agreement
between a collecting society covering a particular category of works,
the law may extend that agreement to right holders of the same category
who are not represented by the collecting society, provided that
two conditions are met. First, the satellite broadcast must be a
simulcast of a terrestrial broadcast by the same broadcaster. But
second, an unrepresented right holder may be able to exclude the
extension of the collective agreement to cover his works. This provision
does not apply to cinematographic works however. Furthermore, broadcasters
retain their exclusive right to authorise or prohibit their broadcasts
from being rebroadcast or communicated to the public by cable if
such communication is made to places where an entrance fee is payable.
Finally, they also have the exclusive right to make fixations of
their broadcasts available to the public.
The advent of the video recorder means that the ordinary viewer
can now tape television programmes off air, to be stored and replayed
at a later time. Many educational institutions also tape broadcasts
off air for educational use. There is still no firm agreement at
the international level as to whether these activities are a breach
of copyright. There are two distinct, but related, issues. First,
does the act of making a video or audio recording infringe copyright?
And second, does the replaying of the recording infringe copyright?
Berne Convention allows countries to permit the reproduction
of literary and artistic works "in certain special cases, provided
that such reproduction does not conflict with a normal exploitation
of the work and does not unreasonably prejudice the legitimate interests
of the author;" [art. 9(2)] and there is a parallel provision for
broadcasts in the Rome Convention. [art. 15(2)] Therefore
it is not necessarily an infringement of copyright to make an off
air video recording, provided that the manner in which the recording
is used does not conflict with the normal exploitation of the work
and does not unreasonably prejudice the legitimate interests of
general, common law countries, such as the United Kingdom and the
United States, permit video recording for domestic use, but although
most countries in continental Europe consider video recording to
be a breach of the author's right, they simultaneously recognise
that they cannot prevent the onward march of technology. Many therefore
impose a levy, either on the sale of video recorders, or on the
sale of blank recording tape, or both, to "compensate" right owners
for their "lost" revenues. Conversely, many right owners consider
these levies to be a compulsory licence which has been imposed on
their right to licence the video recordings of television broadcasts
of their works. In some countries however, these levies are also
used to subsidise the domestic film production industry. The principles
on which these levies have been established and the levels at which
they have been set have often been ambiguous.
regulations governing the educational use of video recordings are
even more confused. The Berne Convention allows states to
permit the use of literary or artistic works by way of illustration
in broadcasts or visual recordings for teaching, provided such use
is compatible with fair practice. In the United States and the United
Kingdom a clear distinction is made between the domestic use of
off air recordings which is free, and their educational use which
must be paid for. In Germany and the Nordic countries however, schools
and universities may use educational broadcasts for educational
purposes. In Norway, they pay a nominal fee for educational broadcasts,
whereas in Germany, the recordings have to be erased at the end
of the following year.
The policy differences between individual states carry significant
implications for domestic educational policies, but some degree
of international harmonisation may emerge. In the Europe Union,
the Commission has prepared a draft directive to introduce a system
of blank tape levies in all member states, although at the time
of writing, this proposal has not commanded the consent of a qualified
majority in the Council of Ministers. Furthermore, a producer state
could choose to use the stronger mechanism for resolving international
disputes set down in the WTO Agreement, in order to challenge a
lax interpretation by a user state of the ambiguous provisions in
the Berne Convention regulating off air recording.
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