The cable and satellite Directive of 27 September 1993

Directive 93/83 of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (the cable and satellite directive)=> Download PDF file ...

The necessity of determining the applicable law in the case of programs transmitted across frontiers by satellite has led the European Commission to include in this directive a general principle for all Member States of the European Union.

Article 1 of this Directive defines the act of communication to the public by satellite as “the act of introduction, under the control and responsibility of the broadcasting organisation, of program-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth.”

In this connection, the Directive adopts the principle that:

“The act of communication to the public by satellite occurs solely in the Member State where, under the control and responsibility of the broadcasting organisation, the program carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth”.

In principle, it is thus the law of the place from where programs are emitted towards the satellite which is applicable to these activities, when this place is one of the Member States of the European Union.

It has to be noted that when an act of communication to the public by satellite occurs in a non-community state, the Directive provides the possibility of attaching this act to a Member State when the broadcasting organisation has its principal establishment in that Member State.

In its Article 4, the Directive refers to the rules of articles 6, 7, 8 and 10 of Directive 92/100.

The broadcasting by satellite of live performances is thus submitted to the exclusive right of performers. The broadcasting of phonograms published for commercial purposes gives rise to a right of equitable remuneration for performers and phonogram producers.

It has however to be remembered that:

- no protection is granted for the broadcasting by satellite of fixations of audiovisual performances,and
- the payment of the equitable remuneration is limited to the broadcasting of phonograms published for commercial purposes, the same broadcasting or communication to the public of a fixation of sounds which is not published for commercial purposes will not be protected.

Concerning cable retransmission, Article 8 of the Directive provides that “Member States shall ensure that when programs from other Member States are retransmitted by cable in their territory the applicable copyright and related rights are observed ...”

The exercise of this cable retransmission right is entrusted to collective management societies. The Directive establishes the principle of compulsory collective management: collecting societies will manage the cable retransmission right of their members as well as of non-members to the extent that they correspond to the category of right holders the society represents (Article 9, 2).

It is also specified that a right holder who is not a member of a collecting society “shall have the same rights and obligations resulting from the agreement between the cable operator and the collecting society which is deemed to be mandated to manage his rights, as the rightholders who have mandated that collecting society...”

However, these dispositions do not apply to the rights exercised by a broadcasting organisation in respect of its own transmissions.

Anticipating possible conflicts between users and rightholders, the Directive has put in place the possibility, at member states' level, of turning to mediators “when no agreement is concluded regarding the authorisation for the cable retransmission of a broadcast” (article 11).

This or these mediators -so selected that their independence and impartiality are beyond reasonable doubt "shall provide assistance with negotiation and may also submit proposals to the parties”.

It is also specified that when a proposal has been submitted to the parties, these are assumed to have accepted this proposal if none of them has expressed opposition within a period of three months.

Article 12 of the Directive lays down that Member States shall ensure by means of civil or administrative laws, that the parties “enter and conduct negotiations regarding the authorization for cable retransmission, in good faith and do not prevent or hinder negotiation without valid justification.

The directive does not establish general principles in relation with the collective management of rights. As specified under Article 13 “the Directive shall be without prejudice to the regulation of the activities of collecting societies by the Member States”.