Protection of broadcasters' neighbouring right

Broadcast piracy causes serious harm to broadcasters, who therefore need substantial legal protection. Particularly for the transmission of individual news items, and major sports or cultural events, the existing level of protection is far from sufficient to combat modern-day piracy (above all via the Internet) in an effective manner. Moreover, the availability of illicit copies of radio and television programmes prevents all rightowners concerned from licensing the content of such programmes in certain ways or in certain countries.

To illustrate the various forms of unauthorized use of the broadcast signal (whether or not such an act may also infringe rights other than the broadcasters' neighbouring right), the Appendix hereto lists, by way of example, different acts of piracy which have been experienced by various broadcasters in Europe. Needless to say, what becomes publicly known is only the tip of the iceberg. Frequently, the specific piracy act remains undiscovered, it is too late to take effective legal action or the identity and/or address of the pirate cannot be traced.

The direct material harm to the investment in the costly organizational and technical undertaking of broadcasting has various implications. For example, with particular regard to sports events, if such broadcasts are also available other than on the channel operated by the broadcaster which has paid for the exclusive broadcasting rights, the authorized broadcaster's advertising revenue will be substantially reduced and income from sublicensing will no longer be a feasible prospect. At the same time, the funding of popular sports events, including major events such as the Olympic Games, will generally be at risk.

Protection against broadcast piracy is thus not only necessary for broadcasters but also in the interests of both the public at large and the copyright society as a whole.

What exactly is protected? It is important to avoid any confusion between the proper subject of protection, namely the broadcast as such (the programme output) and the programme content (which may be protected independently). A broadcast may thus be defined as the electronically-generated signal which transports radio or television programmes for reception by the public, irrespective of the origin of such programmes or the ownership of the content thereof. Other main issues, including the scope of protection, are set out in further detail in the (appended) Explanatory Notes.

In recent years, the EBU and other broadcasting unions have achieved a broad worldwide consensus on the need for urgent improvements to broadcasters' rights, i.e. to update the international protection currently granted under the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. At present, governmental experts' discussions on a possible new Treaty are being held at the World Intellectual Property Organization (WIPO) in Geneva. The full text of the Treaty and the Explanatory Memorandum as proposed by all broadcasting unions worldwide is available (as the first two parts of the texts) at http://www.wipo.int/eng/meetings/1999/sccr_99/sccr2_6.htm. The EBU has also been asking the EC Commission to carry out work on this matter, which, mainly in respect of protection against on-demand Internet use, is reflected in the recent EC Copyright Directive.

In a parallel initiative, the Council of Europe has embarked upon a legal instrument to enhance the protection of broadcasting organizations against piracy in the digital environment, particularly since its European Agreement for the Protection of Television Broadcasts is already a highly advanced text, given the time when it was enacted (1960). A Working Group of Experts recently finalized a draft Recommendation and Explanatory Memorandum, which reflect several legal provisions proposed by the EBU and other broadcasting unions.

The EBU believes that European and other legislators should take the necessary action now to draft new, effective provisions for the national protection of broadcasters' rights.

For further details, see the article on The Broadcasters' Neighbouring Right by Werner Rumphorst.

Appendix - Examples of unauthorized use of a broadcast signal

retransmission of live or recorded broadcasts by a pirate station operating in a neighbouring country
commercial sale to the public of videocassettes of unauthorized copies of a sports programme, in the broadcaster's country and abroad
cable distribution of complete broadcast programmes in the broadcaster's neighbouring country
sale to the public of records of a music concert derived from an unauthorized reproduction of the soundtrack of a live television broadcast
rental of unauthorized recordings of a television broadcast by a video club
offering the "service" of making an unauthorized copy of a pre-selected television programme with a view to the sale thereof in video form
commercial use by a business firm of privately-made copies of a radio broadcast
manufacture, importation and distribution of pirate decoders and/or smart cards specifically designed to permit unauthorized access to encrypted television services
public "large-screen" showing of live broadcasts of international sports events
showing of unauthorized copies of television programmes to customers in various types of shops, or to the public at fairs or exhibitions
sale to the public of unauthorized recordings of broadcast programmes by a dealer in radio or television equipment
broadcasting or cable distribution of pre-broadcast satellite signals, which carry sports programmes
publication in newspapers, magazines and books of still photos taken from the television screen, particularly of broadcasts of news and sports programmes
distribution of television and radio broadcasts to hotel rooms by internal hotel cable services
retransmission of live broadcasts of football matches via the Internet, partly "framing" the broadcast images with the pirate's own advertisements.