The International Framework

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 Trade Organisation.

There 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.

The 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.

As 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.

Broadcasting 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.

The 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 itself.

The 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.

In 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.

Cable 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.

The 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 Royalty Tribunal.

In 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.

A 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.

 

The 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.

Since 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 licensing organisations.

Transfrontier Broadcasting

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.

All 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.

Home Taping

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?

The 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 the author.

In 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.

The 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.

-Vincent Porter

Copyright 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 laws themselves.