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Public Service Media (PSM) are not a phenomenon exclusive for Europe. However, on this continent they are probably most prominent. First created in the turbulent times in the middle of the 20th century, often as an instrument of state propaganda, PSM have evolved together with the societies that spawned them. These days they operate in the interest of the public, bound by a legally defined public mission (the so-called “public remit”). But the broadcasting era seems to be heading towards zenith and PSM find themselves in a challenging situation. New technologies and disruptive models of media distribution are changing the expectations of the audience. Legal obligations and accountability to the public make PSM ill-equipped to adapt quickly to changes in their environment. Adding to that, the PSM’s history as state-owned broadcasting monopolies puts a stain on their image in many European countries.

In June 1997, the EU Member States adopted a protocol to the Amsterdam Treaty on public service broadcasting. The Amsterdam Protocol explicitly recognized the need for the existence of public broadcasting and its funding by Member States. Twenty years later, amidst an unprecedented broadening of the notion of “media” the question arises are PSM still a vital and important part of the EU media ecosystem, or are they just a remnant of the past that refuses to go away?

From the point of view of copyright and the market for protected works, PSM take up a unique space in the value chain. They are in the same time producers and consumers of copyrighted content, as well as a platform for its distribution. A quick look at the numbers reveals exactly how important PSM are for the European media content. According to a study by the European Broadcasting Union (EBU) – the largest organization of PSM in Europe – in 2014 alone public media invested 16.65 billion Euros in content. 84 % of that was invested in the production of original content. When that is combined with the legal obligations most PSM have to produce content in their national language and to support national art and culture, it becomes clear that public media still play a vital role in the content ecosystems of their respective states.

Now that the EU is moving towards a Digital Single Market, PSM are faced with a major difficulty. They are, by their definition, national media. They use national public funding and target their content at national audiences. Their traditional method of distribution – terrestrial broadcasting – is also territorially limited. However, these days public media can no longer afford to be mere broadcasters. The increased mobility of their audiences and the new possibilities for the distribution of content are pushing PSM beyond national boundaries. Their ability to “translate” their national remit into the multi-national Single Market may very well be the difference between retaining their importance in the new media world and slowly fading into irrelevance.

While its highly unlikely that the funding of PSM or the definition of their public remit will become anything other than national in the short- or mid-term, these traditional flagships of the “old media” world could benefit a lot from the European Commission’s Digital Single Market initiative and more specifically the planned update to the copyright regulatory framework. Current legislative proposals include a Regulation on cross-border portability of online content services, a Regulation laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes and a Directive on copyright in the Digital Single Market. These new rules could allow for PSM to gain a much better footing as they try to reposition themselves in the new media landscape.

Historically copyright has always been the major challenge before widening the availability of broadcasted media content. There are two sets of rights over the broadcasted content – the neighbouring right of the broadcasting organisations in their own broadcasts, as recognized at EU level in Directive 2001/29/EC and the copyright and related rights in works contained in these broadcasts. It is this second category that is difficult and expensive to license for cross-border availability and is the main barrier before offering PSM content over the internet to audiences throughout the EU. The Proposed Regulation on online transmissions of broadcasting organisations and retransmissions of television and radio programmes aims to change that and to allow for a wider availability of media content by making copyright licensing easier for broadcasting organisations’ online services. The Regulation adopts the “country of origin” principle which already applies to satellite transmissions and has allowed for the availability of over 1500 decoded satellite channels throughout the EU. The Regulation provides that the acts of communication to the public and of making available occurring when providing an ancillary online service shall be deemed to occur solely in the Member State in which the broadcasting organisation has its principal establishment. This brings a degree of legal certainty when clearing the rights necessary to make ancillary online services provided by broadcasting organisations available across borders.

Another principle the proposed Regulation borrows from Directive 93/83/EEC is the mandatory collective licensing. According to Article 3 of the Regulation, holders of copyright and related rights other than broadcasting organisations may exercise their rights to grant or refuse the authorisation for a retransmission only through a collective management organisation. This will make it much easier for broadcasters to offer their programs for retransmission. Once they have a deal with the broadcaster, which alone may exercise its rights individually, all interested third parties will need to do is go to the respective collecting society to clear all the necessary rights with regards to the retransmission of a broadcast.

When applied, the rules of the proposed Regulation should make EU-wide availability of broadcasting content online a common thing within the next few years. Naturally, all broadcasting organisations shall benefit from the new rules, but since PSM invest significantly more in original content than commercial media, they will feel the effect of the new rules to a much larger extent.

It is important to note that the Regulation would only apply to online services provided by or under the control of a broadcasting organization which have a clear and subordinate relationship to the broadcast. That is because the main goal of this particular document is to bring “traditional” broadcasting content up to date with new technologies and audience behavior. But in their efforts to remain relevant for their audience many PSM now also offer online-only services that are not directly connected to their broadcasts. Those services will not be covered by the legal fiction of the country of origin. They, however, could fall under the Regulation on cross-border portability. This will require providers of online content services to allow their users to access and use these services throughout the EU. Admittedly, the cross-border portability has a much more limited scope than the making available of ancillary online services as it would require a user to be legally entitled to access the service in his Member State of residence. Still, this would significantly improve the users’ experience with online services.

The obligation for portability relates to the possibility to verify a user’s Member State of residence. Therefore, it is in principle only mandatory for paid services. As most PSM are legally obliged to offer their services for free, they would in practice have an option whether to put a verification mechanism in place and make their services “portable” or not. This is another way in which public media may differentiate their offerings, according to their target audience.

There have been many arguments in recent years, mainly raised by the commercial broadcasters and print media, that PSM engage in unfair competition, using public funding to branch from their traditional business into market segments these organisations see as their own. Any cross-border services offered by PSM would almost certainly raise the question whether they are consistent with their public remit and by extension with the EU State Aid rules. There lies the significance of the two proposed Regulations. When the European legislators acknowledge the importance of providing a consistent service to the audience throughout the EU and that it is a natural extension to the Single Market and the free movement of people, it will be much easier to make the case that closing online services within national borders is unwarranted.

The proposed Directive on copyright in the Digital Single Market is perhaps the most controversial of the Commission’s new initiatives. Indeed, the publishers’ neighbouring right introduced in Article 11 of the Directive and the (admittedly unclear) obligation for distributors of user-generated content to prevent unauthorized use of protected works set in Article 13 are likely to cause much dispute. However, PSM may find another part of the Directive very useful. For historical reasons, most public media have at a certain point been the only radio, respectively television organisation in their country. Therefore, they are the only holders of precious historical documents in the form of audio and video recordings. Article 5 of the Directive could clear potential controversies regarding the transfer of PSM archives in digital format. This will not only help the preservation of these archives, but also allow for the future use of historical recordings. Where this use is for academic or educational purposes it will again be covered by the exceptions proposed in the Directive. In this way, PSM may further increase the value they return to the societies that invest in them.

Modernising the copyright legal framework is not an easy task. Even today there doesn’t seem to be a clear consensus on where to draw the lines between the interests of rights holders, service providers and the public. This is why current initiatives are either limited in their scope or provoking a lot of debate. The slow and careful pace of changes could, however, benefit a traditional stalwart of independent news and media pluralism – the public broadcasters. In order to continue to serve their purpose they need to reinvent themselves as modern media, transcending national borders and technological platforms. The success or failure to do so could become a question of their future existence.

The proposed changes in EU copyright legislation may help to resolve that question by removing many of the obstacles on the PSM’s road to the future. The Digital Single Market provides them with a great opportunity to retain and even strengthen their importance. It will be interesting to see the ways in which they take advantage of this chance and how this may affect the distribution of copyrighted works in the Digital Single Market.

Public Service Media (PSM) are not a phenomenon exclusive for Europe. However, on this continent they are probably most prominent. First created in the turbulent times in the middle of the 20th century, often as an instrument of state propaganda, PSM have evolved together with the societies that spawned them. These days they operate in the interest of the public, bound by a legally defined public mission (the so-called “public remit”). But the broadcasting era seems to be heading towards zenith and PSM find themselves in a challenging situation. New technologies and disruptive models of media distribution are changing the expectations of the audience. Legal obligations and accountability to the public make PSM ill-equipped to adapt quickly to changes in their environment. Adding to that, the PSM’s history as state-owned broadcasting monopolies puts a stain on their image in many European countries.

In June 1997, the EU Member States adopted a protocol to the Amsterdam Treaty on public service broadcasting. The Amsterdam Protocol explicitly recognized the need for the existence of public broadcasting and its funding by Member States. Twenty years later, amidst an unprecedented broadening of the notion of “media” the question arises are PSM still a vital and important part of the EU media ecosystem, or are they just a remnant of the past that refuses to go away?

From the point of view of copyright and the market for protected works, PSM take up a unique space in the value chain. They are in the same time producers and consumers of copyrighted content, as well as a platform for its distribution. A quick look at the numbers reveals exactly how important PSM are for the European media content. According to a study by the European Broadcasting Union (EBU) – the largest organization of PSM in Europe – in 2014 alone public media invested 16.65 billion Euros in content. 84 % of that was invested in the production of original content. When that is combined with the legal obligations most PSM have to produce content in their national language and to support national art and culture, it becomes clear that public media still play a vital role in the content ecosystems of their respective states.

Now that the EU is moving towards a Digital Single Market, PSM are faced with a major difficulty. They are, by their definition, national media. They use national public funding and target their content at national audiences. Their traditional method of distribution – terrestrial broadcasting – is also territorially limited. However, these days public media can no longer afford to be mere broadcasters. The increased mobility of their audiences and the new possibilities for the distribution of content are pushing PSM beyond national boundaries. Their ability to “translate” their national remit into the multi-national Single Market may very well be the difference between retaining their importance in the new media world and slowly fading into irrelevance.

While its highly unlikely that the funding of PSM or the definition of their public remit will become anything other than national in the short- or mid-term, these traditional flagships of the “old media” world could benefit a lot from the European Commission’s Digital Single Market initiative and more specifically the planned update to the copyright regulatory framework. Current legislative proposals include a Regulation on cross-border portability of online content services, a Regulation laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes and a Directive on copyright in the Digital Single Market. These new rules could allow for PSM to gain a much better footing as they try to reposition themselves in the new media landscape.

Historically copyright has always been the major challenge before widening the availability of broadcasted media content. There are two sets of rights over the broadcasted content – the neighbouring right of the broadcasting organisations in their own broadcasts, as recognized at EU level in Directive 2001/29/EC and the copyright and related rights in works contained in these broadcasts. It is this second category that is difficult and expensive to license for cross-border availability and is the main barrier before offering PSM content over the internet to audiences throughout the EU. The Proposed Regulation on online transmissions of broadcasting organisations and retransmissions of television and radio programmes aims to change that and to allow for a wider availability of media content by making copyright licensing easier for broadcasting organisations’ online services. The Regulation adopts the “country of origin” principle which already applies to satellite transmissions and has allowed for the availability of over 1500 decoded satellite channels throughout the EU. The Regulation provides that the acts of communication to the public and of making available occurring when providing an ancillary online service shall be deemed to occur solely in the Member State in which the broadcasting organisation has its principal establishment. This brings a degree of legal certainty when clearing the rights necessary to make ancillary online services provided by broadcasting organisations available across borders.

Another principle the proposed Regulation borrows from Directive 93/83/EEC is the mandatory collective licensing. According to Article 3 of the Regulation, holders of copyright and related rights other than broadcasting organisations may exercise their rights to grant or refuse the authorisation for a retransmission only through a collective management organisation. This will make it much easier for broadcasters to offer their programs for retransmission. Once they have a deal with the broadcaster, which alone may exercise its rights individually, all interested third parties will need to do is go to the respective collecting society to clear all the necessary rights with regards to the retransmission of a broadcast.

When applied, the rules of the proposed Regulation should make EU-wide availability of broadcasting content online a common thing within the next few years. Naturally, all broadcasting organisations shall benefit from the new rules, but since PSM invest significantly more in original content than commercial media, they will feel the effect of the new rules to a much larger extent.

It is important to note that the Regulation would only apply to online services provided by or under the control of a broadcasting organization which have a clear and subordinate relationship to the broadcast. That is because the main goal of this particular document is to bring “traditional” broadcasting content up to date with new technologies and audience behavior. But in their efforts to remain relevant for their audience many PSM now also offer online-only services that are not directly connected to their broadcasts. Those services will not be covered by the legal fiction of the country of origin. They, however, could fall under the Regulation on cross-border portability. This will require providers of online content services to allow their users to access and use these services throughout the EU. Admittedly, the cross-border portability has a much more limited scope than the making available of ancillary online services as it would require a user to be legally entitled to access the service in his Member State of residence. Still, this would significantly improve the users’ experience with online services.

The obligation for portability relates to the possibility to verify a user’s Member State of residence. Therefore, it is in principle only mandatory for paid services. As most PSM are legally obliged to offer their services for free, they would in practice have an option whether to put a verification mechanism in place and make their services “portable” or not. This is another way in which public media may differentiate their offerings, according to their target audience.

There have been many arguments in recent years, mainly raised by the commercial broadcasters and print media, that PSM engage in unfair competition, using public funding to branch from their traditional business into market segments these organisations see as their own. Any cross-border services offered by PSM would almost certainly raise the question whether they are consistent with their public remit and by extension with the EU State Aid rules. There lies the significance of the two proposed Regulations. When the European legislators acknowledge the importance of providing a consistent service to the audience throughout the EU and that it is a natural extension to the Single Market and the free movement of people, it will be much easier to make the case that closing online services within national borders is unwarranted.

The proposed Directive on copyright in the Digital Single Market is perhaps the most controversial of the Commission’s new initiatives. Indeed, the publishers’ neighbouring right introduced in Article 11 of the Directive and the (admittedly unclear) obligation for distributors of user-generated content to prevent unauthorized use of protected works set in Article 13 are likely to cause much dispute. However, PSM may find another part of the Directive very useful. For historical reasons, most public media have at a certain point been the only radio, respectively television organisation in their country. Therefore, they are the only holders of precious historical documents in the form of audio and video recordings. Article 5 of the Directive could clear potential controversies regarding the transfer of PSM archives in digital format. This will not only help the preservation of these archives, but also allow for the future use of historical recordings. Where this use is for academic or educational purposes it will again be covered by the exceptions proposed in the Directive. In this way, PSM may further increase the value they return to the societies that invest in them.

Modernising the copyright legal framework is not an easy task. Even today there doesn’t seem to be a clear consensus on where to draw the lines between the interests of rights holders, service providers and the public. This is why current initiatives are either limited in their scope or provoking a lot of debate. The slow and careful pace of changes could, however, benefit a traditional stalwart of independent news and media pluralism – the public broadcasters. In order to continue to serve their purpose they need to reinvent themselves as modern media, transcending national borders and technological platforms. The success or failure to do so could become a question of their future existence.

The proposed changes in EU copyright legislation may help to resolve that question by removing many of the obstacles on the PSM’s road to the future. The Digital Single Market provides them with a great opportunity to retain and even strengthen their importance. It will be interesting to see the ways in which they take advantage of this chance and how this may affect the distribution of copyrighted works in the Digital Single Market.

Milen Mitev

Milen Mitev

Senior Legal Adviser for the Bulgarian National Radio.

Author:

Milen works as a Senior Legal Adviser for the Bulgarian National Radio. He graduated from the English Language School in Plovdiv in 2002 and went on to study Law at the Sofia University “St. Kliment Ohridski” where he graduated with a Master’s degree in 2007. After several years working as a lawyer’s assistant in different fields of law and teaching seminar classes at the Plovdiv University “St. Paisii Hilendarski”, Milen joined the Bulgarian National Radio – the public service radio of Bulgaria – as a Legal Adviser in 2009. There he started working on public procurement and contracts.

Since June 2010, Milen holds the position of Senior Legal Adviser at BNR and works mainly on copyright issues, media law and administrative procedures. As a representative of BNR, Milen was involved in the drafting process of several amendments in the Bulgarian copyright and media legislation.

In May 2013, Milen was elected as a member of the Legal and Policy Committee of the European Broadcasting Union – the largest organisation of public service media in Europe. He is now in his third mandate as a member of the Committee, working on the EBU’s policy and strategy and monitoring the changes in the European Union’s Copyright and Media Law.