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| Legal frame |
The basis upon which rights are granted to rightsholders when their works are retransmitted by cable systems can be found in the Berne Convention, in particular Article 11bis. It says that when a work is distributed by a means other than the original broadcast, there is a liability with respect to copyright when this distribution is made by an organisation other than the one responsible for the original broadcast. The Berne Convention speaks in this respect about ‘un autre organisme’. Cable operators do not form part of the same ‘organisme’ since they have no relationship with the broadcasters whose programs they retransmit. That is why they need the authorisation of all the rightsholders who have rights to a broadcast program. In the sixties and seventies many countries in Europe started to build cable systems. First of all because they wanted to get rid of the many individual aerials on houses but later this development was seen as a new commercial opportunity. Cable operators did not easily accept at that time that the legislation obliged them to honour claims from rightsholders whose works were distributed. They argued that a cable system was only an extra technical support to the existing broadcasting practices. They also stated that rightsholders would be remunerated twice if cable operators had to clear the rights. It was finally the Dutch Supreme Court which released a decisive verdict in this respect. It did so in a lawsuit which was initialised by a number of important American film producers and the Dutch Cinema Association on one side against the cable network of the city of Amstelveen, a small town just south of Amsterdam, on the other. The verdict left no room for doubt. Cable retransmission of existing broadcasting programs is a new communication to the public and as such liable for copyright. A number of verdicts in other European countries followed and the outcome was similar. It was during the time of the litigation that AGICOA as a collecting society for producers' rights was established. As a consequence of this jurisprudence, cable operators were obliged to start a search for the rightsholders in the programs they were actually retransmitting in order to ask for their permission. In practice this was not possible. The rightsholders grouped together at that time, formed their organisations specifically dedicated to deal with cable rights and started negotiations with cable operators. The first contract between the rightsholders concerned and cable operators was concluded in Belgium in 1984. The contract covered all the rights involved - authors, composers, photographers, broadcasters, producers of audiovisuals and movie films, etc. It guaranteed the rights and it protected cable operators from any claim from rightsholders who possibly might not feel bound by the global licensing agreement. Many countries followed and as a result of these so called global licensing agreements, in 1993 the European Commission published an important Directive on cable and satellite broadcasting, the 93/83/EEC. The relevant and important issue in this respect is that a rightowner cannot exercise his or her rights individually vis-ŕ-vis cable operators. He or she must make use of the services of a collecting society. This Directive confirmed the existing practice in many European countries and it protected cable operators once more against possible claims of individual rightsholders. It must be said here that broadcasters fall outside the scope of this obligation and that they still have the right to negotiate individually with cable operators. |
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