France is one of the nine European countries to have transposed the directive into national law, thus modifying the French intellectual property code. As part of the Digital Single Market (DSM) strategy, the OnlineSatCab Directive lays down rules on the exercise of copyright and related rights, aimed at improving the cross-border provision and access of ancillary online services broadcasts and facilitate digital retransmissions of television and radio programs by means other than cable in the single market of the European Union.
The Ordinance remains close to the Directive, in particular by implementing the following measures:
Facilitate the clearance of copyright and related rights of the auxiliary online service for cross-border digital broadcasting and retransmissions
This applies to services which give access to television and radio programs in a strictly linear fashion, simultaneously with the broadcast, and to services which give access, within a defined period after the broadcast, to television and radio programs. previously broadcast by the broadcaster, also called “catch-up services”. Video on demand (VOD) services and sporting events are excluded from the scope of the Ordinance. The offer of such an ancillary service online should be deemed to take place on French territory where broadcasting organizations have their main establishment. Rights holders have the right
nevertheless to remuneration close to or equal to the economic value of the cross-border use of works protected by copyright.
Clarify the legal framework for the transmission of programs by “direct injection”
Direct injection is a two-step technical process. First, the broadcaster transmits its program-carrying signals to a signal distributor without these signals being accessible to the general public during that transmission. Then the signal distributor receives the programs and distributes them to its subscribers. According to the Ordinance, both the broadcaster and the signal distributors are deemed to participate in a single act of communication to the public by direct injection, but this will not entail joint liability. In addition, they must obtain the authorization of the rights holders and pay them appropriate remuneration for their works and performances.
Extend the compulsory collective management system to means other than cable retransmissions
The Ordinance provides that the right to authorize simultaneous, unchanged and unchanged retransmissions on French territory of television and radio programs originating either from French territory or from another Member State can only be exercised by a mechanism of compulsory collective management of rights. It also specifies that only retransmissions by cable or by broadcasting system using ultra-short waves are concerned. With regard to the transmission of programs by direct injection, signal distributors will also benefit from this mechanism.
All the aforementioned provisions are applicable to neighboring rights.
The Ordinance establishes a framework within which broadcasters and signal distributors can define their relationship in order to release copyrights to provide ancillary online services. Although it applies to all radio programs, it is limited to certain television programs, such as news or current affairs as well as the broadcaster’s own productions which are exclusively funded by the broadcaster. In addition, the Ordinance ensures that rights holders are properly remunerated when their works are used in programs transmitted by direct injection.
The Ordinance will enter into force on September 1, 2021, so mandatory collective management organizations will have to obtain authorization to operate by then. However, to allow existing agreements to comply with the new rules, the Ordinance provided for transitional arrangements for the provisions to be enforceable:
- all agreements in force on June 7, 2021 and those concluded between that date and June 24, 2021 (date of publication of the Ordinance), authorizing acts of representation and communication to the public of works or other protected objects arising in the course of the provision of an ancillary online service as well as the acts of reproduction which are necessary for the provision of access or use of this online service are subject to the new provisions of the Code of intellectual property resulting from the Ordinance, of June 7, 2023 if they expire after this date;
- all agreements in force on June 7, 2021 and those concluded between that date and June 25, 2021 authorizing acts of representation and communication to the public of works or other protected subject matter are subject to the new provisions of the Intellectual Property Code. resulting from the Ordinance, from June 7, 2025 if they expire after that date.