The arrival of digital technology has opened up a myriad of new platforms for content distribution in a quality that was impossible in the analogue age. In short, a broadcaster’s dream. But the nightmare scenario starts when one considers that content is also much easier to pirate in the age of web and simulcasting. On the one hand, there are a certain number of technical devices to guard against the Jack Sparrows of digital broadcasting, but one may well raise the question, on the other, as to the protection offered by the legal framework. How does current European legislation actually guard against the pirating of audiovisual content broadcast via digital means. The Strasbourg-based European Audiovisual Observatory, part of the Council of Europe, asks this question in its latest IRIS plus report:

New Services and Protection of Broadcasters in Copyright Law

The lead article of this new report has been produced by Saarbrücken’s Institute of European Media Law. Its authors, Anne Yliniva-Hoffmann and Peter Matzneller make a useful distinction between the copyright protection accorded to the broadcaster’s programme-carrying signal, on the one hand, and the protection of actual programme content on the other.

In their analysis of new offers of audiovisual programme content and the protection of broadcasters, the authors focus on new models such as internet portals which allow the real-time onward transmission of broadcast content or make programmes available on a time-shift basis. One such portal, Zattoo.de, was taken to court by Warner Bros. and Universal film studios due to breach of German copyright law for having re-transmitted ARD and ZDF broadcasts of feature films without having the right to do so. Indexing services on the internet providing links to websites offering audiovisual content are also examined in terms of possible copyright breach. Electronic programme guides either on line or provided as part of an IPTV service may also be an area where breach of copyright can occur. The report cites a German court decision against online programme magazine tvtv.de which was forbidden to reproduce still photographs and text elements concerning TV programmes yet to be broadcast.

The authors then go on to examine personal video recorders (PVR - a service provider’s offer to record specific programmes and make them available later for downloading) and intelligent recording technologies (IRT - which enable users to make copies of broadcast content both from analogue radio and streamed internet radio broadcasts). The interaction between these services and the respective private copy exception determines whether or not they are acting illegally. The report cites the case of French broadcast M6 vs Wizzgo, a PVR provider, which decided that a programme recorded by means of PVR did not fall under the private copy exception. Wizzgo was condemned to pay damages and forbidden to offer its PVR service.

Moving on to technical measures for protection against unauthorized use and the making of private copies, the authors examine the role of DRMs and their compatibility with the private copy exception in force in countries such as France.

Copyright law is, however, not the only area, where broadcasters may invoke their rights in the context of new media. Consequently the lead article also includes some examples relating to unfair competition law. The technological devices which allow ad-skipping, in other words, to switch channels automatically at the start of a commercial break, were the subject of a complaint by an private television channel in 2004. The complaint was not upheld, given that such devices do not directly influence transmissions or the commercials in question. The so-called hybrid TV devices which allow the reception of internet transmitted signals have also come under fire in Germany as broadcasters have tried to argue that placing internet based content next to or on a television programme will unfairly exploit’s the broadcaster’s initial outlays and investment. For the moment this position is not upheld by national legislation, with the result that broadcasters in Germany are currently trying to widen the scope of current legal instruments to offer greater protection of their broadcast content.

The lead article concludes with a useful analysis of the current legal discussion at the international level. Given that the WIPO came to a standstill in its attempts to produce a legal instrument capable of offering protection for broadcaster’s signals, the Council of Europe is gearing up to play a leading role in this field. Its Steering Committee on the Media and New Communication Services set up an ad hoc advisory group to begin discussions on a Council of Europe convention for the protection of broadcasting organisations’ neighbouring rights. By January of this year, the group had laid down the main parameters to be taken into account for the creation of a binding legal instrument in this field. A second meeting will take place in November and the process of exploring the potential for the creation of a binding legal instrument will continue. WIPO, for its part, has published a study on this subject which will be examined at the meeting of its Standing Committee on Copyright and Related Rights in November.

The Related Reporting section of this report deals with some of the history of the difficult – and so far unsuccessful – endeavours to create an international legal instrument aimed at protecting broadcasters’ rights. The various entries provide examples for recent national legislation that enhances protection. Finally it presents relevant national (court and administrative) decisions on various disputes that illustrate the range of copyright disputes focusing on the protection of broadcasters in the context of new media services.

The final ZOOM section provides for information on the existing international norms which currently provide for protection of broadcasters’ rights. Not only WIPO and the COE but also WTO, UNESCO and especially the various European Union rules are of importance. In order to judge on the current level of protection of broadcasters and their claim for “more”, it is important to understand how the various sources interplay and what geographic scope as well as subject matter they cover so far.