Collective Management Of Audiovisual Works Facing The Challenges, Then And Now

Genesis of cable television

Cable retransmission rights are granted to right holders in the Berne Convention for the Protection of Literary and Artistic Works, in particular Article 11 bis, which states that when a work is distributed by a means other than the original broadcast, there is a liability issue with respect to copyright when that distribution is done by an organization not responsible for the original broadcast. The Berne Convention refers to "an organization other than the original one." Cable operators do not form part of the same "organization" since they have no relationship with the broadcasters whose programs they retransmit. That is why they need the authorization of all right holders in a broadcast program.

Many European countries started building cable systems in the 1960s and 1970s to eliminate un- sightly aerials from crowded rooftops, but savvy entrepreneurs soon saw a new commercial opportunity. Cable operators began retransmitting programs for a fee to consumers who had difficulty tuning into weak television broadcast signals. These operators did not agree that legislation obliged them to honor the claims of right holders whose works they distributed. They argued that a cable system was only an extra technical support system for existing broadcasting networks - and further claimed right holders would be remunerated twice if cable operators had to clear the rights.

The Dutch Supreme Court issued a judgment in a lawsuit brought by a number of U.S. film producers and the Dutch Cinema Association against the cable network of the city of Amstelveen, a small town south of Amsterdam (Case No. 12.281). The decision, handed down in 1984, left no room for doubt: Cable retransmission of existing broadcasting programs is a new communication to the public and, as such, is subject to copyright. A number of similar judgments followed in other European countries.

Consequently, cable operators were obliged to seek right holders' permission before retransmitting their programs - in practice, an impossible task. To find a workable solution, right holders began to form organizations specifically dedicated to dealing with cable rights and started negotiations with cable operators. The first contract between right holders and cable operators, concluded in Belgium in 1984, covered all right holders: authors, composers, photographers, broadcasters, producers of audiovisual works and films, etc. It guaranteed their rights on the one hand, and, on the other, protected cable operators from potential claims by right holders who did not feel bound by the global licensing agreement.

Many other countries followed suit. In order to standardize all these global agreements, the European Commission published Council Directive 93/83/EEC of September 27, 1993, on the coordination of certain rules concerning copyright and related rights applicable to satellite broadcasting and cable retransmission. It expressly states that right owners cannot exercise their rights individually vis-à-vis cable operators, but that the services of a collecting society must be used. The Directive confirmed existing practice in many European countries and gave further protection to cable operators against possible claims from individual right holders. Broadcasters...