Ref. Ares(2016)2471091 - 27/05/2016
Ref. Ares(2018)2688537 - 24/05/2018
Directorate E - Policy Co-ordination II
SG.E.2-Knowledge and Infrastructure
Minutes of the fifth meeting of the Copyright review Inter-Service Steering Group
Brussels, 23 May 2016
(SG.E2), opened the meeting and referred to the document
under consideration, which covers the chapters of the copyright draft impact assessment
related to measures aimed at ensuring wider access to content.
By way of introduction, DG CNECT recalled the specific objectives identified in the
December 2015 Copyright Communication with a view to improving access to content,
namely 1) enhancing online distribution of TV and radio programmes; 2) increasing access
to and availability of EU audiovisual works on VOD platforms; 3) facilitating the
digitisation and making available of out of commerce works based on easier licensing of
rights. Policy options under consideration to achieve the first objective will include the
application to online distribution of certain mechanisms that are similar to those in place
under the Satellite and Cable Directive. This will not entail a modification of the existing
regime for cable and satellite. Certain elements are still missing from the draft document
(some data, section on monitoring and evaluation and problem tree) and will be added as
soon as available. The document will also need to be shortened in order to comply with the
maximum number of pages set by the RSB.
The group reviewed the draft text section by section and made the following principal
DG TRADE asked for an explicit clarification that the country of origin (COO) principle,
which is proposed in policy options related to the online transmissions of broadcasting
organisations, does not apply to operators established outside the EU.
In relation to impacts on SMEs, and as a general remark concerning the assessment of
impacts throughout the document, SG stated that the draft IA should reflect all impacts in a
balanced way. In particular where a risk of negative impact exists and has been highlighted
by stakeholders, this should be reflected in the analysis in a neutral and objective manner.
3.2.2 Online transmissions of TV/radio programmes
DG COMP expressed support for the objectives and instruments proposed. Written
comments will be provided on references to exclusive licensing practices. DG COMP
questioned the exclusion of on-demand services- a growing means of access to content-
from the scope of the COO principle and asked for further justification of this limitation of
the scope to be added in the IA. The exclusion of on-demand services could also be
perceived as inconsistent with the measures proposed in the revised AVMSD, which extend
certain obligations to VOD services. DG COMP asked whether there could be any conflicts
between COO for satellite (where the COO is the country where the uplink takes place) and
the proposed COO for online (where the COO would be the country of establishment of the
operator). DG COMP also asked for information about the results of the study on the Cable
and Satellite (Cabsat) Directive.
DG CNECT explained that the approach to the scope resulted from a political decision,
reflected in the December 2015 Copyright Communication where it was announced that a
gradual approach would be adopted and that the initiative should apply to TV and radio
programmes. As regards the Cabsat study, it is currently being finalised. It aims at collecting
information on the functioning of the current regime and on licensing practices. It provides
only very limited data on costs of licensing, as this information is considered confidential by
the sector. The results of the study will be shared with the ISSG group as soon as possible
(not for further dissemination). There is no issue of consistency with AVMSD as the two
instruments follow a different logic, have different scopes, and regulate different domains.
As regards application of the COO rule, it makes more sense as regards online transmission
to determine the COO on the basis of the operator's place of establishment. Having different
approaches on this point for satellite and online should not create any problem.
DG TRADE asked for enforcement aspects, e.g. articulation with article 8.3 of the Infosoc
Directive, to be addressed.
DG CNECT indicated that as regards enforcement the legislative proposal could clarify that
the localisation of the making available right refers only to the act of licensing and does not
apply to enforcement.
SG enquired about the availability of further data on licensing and transaction costs. As the
main promoters and beneficiaries of Option 1, public broadcasters in particular should be
asked to provide more evidence. Option 1 is expected to facilitate the cross-border
availability of content but there is no guarantee as to the extent to which this would be the
case. To reinforce the effect of this measure, SG suggested considering how this could
actually be followed-up and incentivised, for instance through some form of monitoring
system. Economic impacts should be presented in a more balanced way, reflecting also
potential negative impacts, such as the potential increase in the cost of licenses (to reflect
potential/actual viewers), which – if applied to thousands of contracts- could have a
significant impact on broadcasters' programming budgets. In addition, the draft IA should
make adequate reference to the concern raised by a large majority of right holders and
commercial broadcasters that the COO could, taking into account the recent ECJ case-law
and policy context but also in itself, undermine the ability to guarantee territorial exclusivity
and complicate the enforcement of rights, and that this could affect their licensing decisions
to the detriment of smaller/secondary markets.
DG ECFIN suggested providing a clearer explanation of the COO rule: why is it not
currently available as a possibility? And in what ways would it be better than the current
regime which foresees voluntary multi-territorial licensing? The description of impacts on
right holders and commercial broadcasters could be revised in order to address the concerns
that these categories of stakeholders have raised. As it currently stands the IA seems to
suggest that no negative impacts are foreseen for them under preferred Option 2, however in
the consultation both stakeholders have expressed negative views on this option.
DG JUST echoed the comments by DG COMP on the exclusion of on-demand services. DG
JUST also supported the idea of a mechanism to monitor the effect of the COO on cross-
border availability of programmes. A number of statements related to territorial restrictions
should be re-drafted to ensure consistency with the geo-blocking proposal.
DG CNECT stressed the difficulties in obtaining additional data, despite repeated requests
to stakeholders. Some form of monitoring mechanism could be considered. COO and multi-
territorial licences have different merits, depending on the specific situation and the type of
right holder involved but in general transaction costs are expected to be lower with COO.
On the concerns raised by right holders and commercial broadcasters, it would be difficult
and sensitive to analyse in detail the potential consequences of the introduction of COO
combined with any form of limitations of contractual freedom that could potentially result
from the enforcement of competition law or from ECJ case-law.
SG stressed the need to indicate clearly why more data could not be obtained and to mention
the various efforts made to obtain them.
3.2.3. Digital retransmissions of TV and radio programmes
DG TRADE enquired about the link with international obligations (Berne Convention) and
the compliance with the three-step-test. DG TRADE also asked whether catch-up services
were covered by policy options.
DG CNECT responded that all the proposed option were in compliance with the Berne
Convention as they concerned retransmissions only (and not the making available right).
Catch-up services are not included, as the intervention only relates to 'unaltered and
SG suggested looking at whether there is any correlation between the number of foreign
channels available on IPTV services in MS and the existence of a mechanism facilitating the
licensing process at national level. SG also asked if there was any risk of disaggregation of
repertoire and whether the proposed intervention would also clarify the situation of direct
injection by broadcasters of their signals into the cable networks.
DG CNECT clarified that the risk of disaggregation of repertoire was not part of the likely
impact of this intervention; it could result from the policy options considered a regards the
transmission of programmes (COO) but not for retransmission. The intervention would not
clarify the question of direct injection.
DG ECFIN pointed out that the problem definition would benefit from a more
straightforward identification of the main issues. As it is currently presented, it does not
convey the idea that the market is failing to deliver in terms of digital retransmission of TV
programmes. The impact description, especially of preferred Option 1, should be more
balanced. The concerns of the stakeholders, especially the right holders, are not reflected in
the analysis. The IA should better justify its impact evaluation as regards impacts of
different modes of management of rights (collective and individual) on right holders.
DG CNECT indicated that compulsory collective management was perceived negatively by
certain categories of right holders and that it might impact their revenues in different ways
depending on their situation. However, data on revenues which would allow comparisons is
DG JUST stated that Option 2, which covers more types of services, appeared to be more
future-proof, therefore the choice of a narrower approach should be further justified. The
existence of a potential negative impact of Option 2 on consumers, in terms of lower
availability of premium content, should be better evidenced.
3.3 Access to and availability of EU audiovisual works on VOD platforms
SG asked whether the participation of parties in the negotiation mechanism (under Option 2)
needed to remain voluntary, given that there would be no obligation to reach an agreement.
SG also suggested including in the legislative intervention an obligation to respect a firm
timeline for conducting and completing the negotiation. SG also asked for an annex
detailing all other measures addressing this problem that are either already ongoing or
planned (as outlined in the December Copyright Communication), to be added to the IA.
DG TRADE referred to the complementarity of the proposed intervention with the new
obligations on VOD providers to be introduced by the AVMSD proposal.
DG CNECT replied that this mechanism was intended to address very specific situations of
lack of exploitation of rights. It would be preferable to keep the mechanism as flexible as
possible so as not to impose a disproportionate burden on the market and avoid strong
resistance. An obligation to respect a certain timeline could be envisaged but it would be for
each Member State to define it.
DG COMP questioned the concrete added value of Option 1 (Stakeholders' dialogue) and
the possibility of reaching concrete results in terms of facilitating the licensing process,
given that the market is characterised by a very high number of parties and contracts, in
contrast with the situation in other sectors.
DG JUST referred to the mandate of Hadopi in France, mentioned in the IA, which includes
receiving viewers' complaints regarding the lack of legal offer for certain works: could this
be further encouraged at EU level?
DG CNECT indicated that such complaint mechanism did not currently exist at EU level;
however several search tools, which provide information about available legal offers, already
exist in some Member States and a similar pan-European tool is being developed. 3.4. Out-of-commerce works in the collection of cultural heritage institutions
DG TRADE asked for the international dimension of this issue and related policy options to
also be reflected (the envisaged intervention could also affect authors from non-EU
countries, and there is growing cooperation between EU-based and non-EU cultural heritage
organisations). The way in which the status of out-of-commerce works (OOCs) would be
established should be better explained. Determining such status is essential: will specific
instruments be developed to support this process, for instance on the basis of the ARROW
SG enquired about the geographical scope to be taken into account when determining the
OOC nature of a work: only in the MS where the licence is sought or in the whole EU?
DG CNECT clarified that the definition of an OOC will follow the model of the existing
Memorandum of Understanding concerning OOC books. For the intervention to effectively
facilitate the use of such works the determination of the OOC status should not be too
burdensome, therefore a diligent search will not be required. MS will be able to introduce
additional criteria for the determination of an OOC to the definition provided at EU level
(e.g. cut-off dates). The ARROW database concerns only books. The OOC status will be
determined with reference to the Member State where the licence is sought. However, a
number of mitigating measures will be present, including notably a national attachment of
the work requirement, transparency/publicity obligations, and an EU transparency portal).
DGs are invited to send their comments or contributions to DG CNECT (
), with copy to the SG (
), by 27 May
. Revised versions of this
chapter and the one examined in the previous meeting (on exceptions) will be circulated
before the next ISSG meeting. The next meetings of the ISSG are tentatively scheduled for
14 June and 24 June. A preliminary version of the draft IA should be submitted to the RSB
by 22 June and a finalised version by 1 July, in view of the RSB meeting of 20 July.
Contact: Julie Ruff (SG.E2, tel. 65739)
Pauline ROUCH (Cab Juncker)
Ben SMULDERS, Liene BALTA (Cab Timmermans)
Juhan LEPASSAAR; Jorgen GREN (Cab Ansip)
Michael HAGER; Anna HEROLD (Cab Oettinger)
List of participants