Re: Europe wide licences for television programmes

On 22/July/1997, Richard Cole <richardcole[_at_]cix.compulink.co.uk> wrote:
>
> In 1981 in Coditel SA v Cine Vog Films the owner of seven-year
> exclusive distribution rights in Belgium of a film was able to
> restrain relaying by cable in Belgium of a German television
> broadcast of the film. The European Court of Justice took the view
> that as broadcasting was organised largely on the basis of statutory
> broadcasting monopolies it was impracticable to grant copyright
> licences other than on a geographical basis. Does anyone have any
> views on whether it would be decided the same way today? In the
> last 16 years the situation has changed markedly and we now do
> have pan-European broadcasting. Ted Turner broadcasts
> unencrypted from Intelsat, Eutelsat and Astra satellites, as does
> Eurosport. French and Italian terrestrial channels are receivable
> by satellite unencrypted in other member States and so are German
> satellite channels as well as some channels from Spain and Greece.
>
> In the August Personal Computer World Barry Fox comments on the
> UK Channel 5 transmission on Astra. It soft scrambles in Videocrypt,
> so that it is necessary to have a Videocrypt decoder, but not a
> subscription smartcard to receive the transmissions. He says the
> reason for this is that Channel 5 only has copyright licences for the
> UK. Apparently the right owners or the collecting societies are
> objecting that Videocrypt decoders are on sale in the Irish Republic
> which is not covered by the licences. Ought the European Commission
> to be asking the ECJ to reconsider whether the granting of licences
> restricted to a single member State offends against Article 59 of the
> Treaty of Rome?
>
> If the problem really is the geographical extent of the
> copyright licence I can't see how Videocrypt helps. There is probably
> copyright in the sound track and the works used in it. Videocrypt
> does not scramble the sound track.

Richard, Channel 5 is indeed being sued by Columbia (and possibly one or more of the other studios) for breaching their licence terms. The commercial issue is that the value to the studio of the Irish terrestrial rights is undermined by the same films being available free to air from C5.

On the issue of whether the ECJ would take the same decision today, I would say yes, particularly in the light of what was said in the recent de Agostini decision. Films are still exploited on a territory by territory (or linguistic region) basis and there is no impediment to the single market created by that practice. Moreover, the Commission is, I believe, clearly of the same view. Kerstin Jorna, who shepherded the cable and satellite copyright directive through the legislative process is on record as saying that that Directive is not intended to have the effect of undermining territorial explitation of licences and the recent Commission Information Society papers (both the Green Paper and the follow up communication) have come down against exhaustion of copyright through services distribution as against goods distribution.

Bear in mind also that it is not that UK and Eire rights are unavailable (BSkyB purchases on this basis), just that C5 did not ask for (or pay for) them.

John Enser
Olswang
www.olswang.co.uk
<jxe[_at_]olswang.co.uk> Received on Tue Jul 22 1997 - 21:10:56 GMT