REPORT on the Commission proposals for Council decisions concerning the signing and approval, on behalf of the European Community, of the European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite (COM(96)0006 - C4-0212/96 - 96/0017(CNS))
26 June 1996
Committee on Legal Affairs and Citizens' Rights
Rapporteur: Mr Manuel Medina Ortega
- By letter of 21 March 1996 the Council consulted the European Parliament, pursuant to Article 228(2), first sentence and (3), first subparagraph, Article 57(2) and Article 66 of the EC Treaty, on the Commission proposals for Council decisions concerning the signing and approval, on behalf of the European Community, of the European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite.
- A DRAFT LEGISLATIVE RESOLUTION
- B EXPLANATORY STATEMENT
- OPINION
- OPINION
By letter of 21 March 1996 the Council consulted the European Parliament, pursuant to Article 228(2), first sentence and (3), first subparagraph, Article 57(2) and Article 66 of the EC Treaty, on the Commission proposals for Council decisions concerning the signing and approval, on behalf of the European Community, of the European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite.
At the sitting of 15 April 1996 the President of Parliament announced that he had referred these proposal to the Committee on Legal Affairs and Citizens' Rights as the committee responsible and to the Committee on Economic and Monetary Affairs and Industrial Policy and the Committee on Culture, Youth, Education and the Media for their opinions.
At its meeting of 27 June 1995 the Committee on Legal Affairs and Citizens' Rights had appointed Mr Medina Ortega rapporteur.
At its meeting of 25, 26 and 27 June 1996 it considered the draft report.
At that meeting it adopted the draft legislative resolution unanimously.
The following were present for the vote: C. Casini, chairman; Palacio Vallelersundi, vice-chairman; Medina Ortega, rapporteur; Anastassopoulos, Añoveros Trias de Bes, Cot, Gebhardt, Mosiek-Urbahn and Schlechter.
The opinions of the Committee on Economic and Monetary Affairs and Industrial Policy and the Committee on Culture, Youth, Education and the Media are attached.
The report was tabled on 26 June 1996.
A DRAFT LEGISLATIVE RESOLUTION
Legislative resolution embodying the opinion of the European Parliament on the Commission proposals for Council decisions concerning the signing and approval, on behalf of the European Community, of the European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite (COM(96)0006 - C4-0212/96 - 96/0017(CNS))
The European Parliament,
- having regard to the Commission proposals for Council decisions (COM(96)0006 - 96/0017(CNS)),
- having regard to Article 228(2) of the EC Treaty,
- having been consulted by the Council pursuant to Article 228(3), first subparagraph, Article 57(2) and Article 66 of the EC Treaty (C4-0212/96),
- having regard to Rule 90(7) of its Rules of Procedure,
- having regard to the report of the Committee on Legal Affairs and Citizens' Rights and the opinions of the Committee on Economic and Monetary Affairs and Industrial Policy and the Committee on Culture, Youth, Education and the Media (A4-0215/96),
Approves the conclusion of the Convention;
Instructs its President to forward this opinion to the Council and Commission, the Governments and Parliaments of the Member States and the Council of Europe.
B EXPLANATORY STATEMENT
1. Background
The Council consulted Parliament by letter of 21 March 1996 on two proposals for decisions concerning the signing and approval on behalf of the Community of the European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite.
The present rapporteur raised a procedural question with the Committee on Legal Affairs and Citizens' Rights, as the committee responsible. This question, although raised before the discussion of the Convention, is of obvious importance from the legal point of view, as it affects the constitutional division of powers between the Member States and the Community as regards conclusion of the Convention.
The conclusion of this Council of Europe Convention raises the classical problem of 'mixed agreements'.
In its recent opinion of 15 November 1994 on the conclusion of the WTO agreement, the Court of Justice confirmed the application of its judgment of 31 March 1971 (AETR)[1] to the field of intellectual property. In that judgment, the Court stated that the Community's power to conclude international agreements does not derive exclusively from the explicit Treaty provisions and the acts adopted under the relevant provisions by the Community institutions; and that, in particular, where, with a view to the application of a common policy provided for by the Treaty, the Community adopts provisions establishing, in one way or another, common rules, the Member States are no longer permitted, either individually or collectively, to enter into obligations with third countries which might affect those rules. Only the Community may assume and execute, with effects over the entire field of application of Community law, agreements made with third countries.
The greater part of the subjects dealt with in this agreement have already been regulated at Community level, by Directive 9⅜3/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission[2], and, in part, by Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property[3].
There is an exception for the related rights of performers, producers of phonograms and broadcasting organizations in the case of communication to the public via satellite. The scope and substance of these rights are regulated by a combination of overlapping provisions from both the directives mentioned above. Article 6 of Directive 9⅜3/EEC states that Member States may grant right holders in this field a wider degree of protection than that provided for in Article 8 of Directive 92/100/EEC - provided, obviously, that any such enhanced protection remains within the definition and scope of 'communication to the public' laid down in Directive 9⅜3/EEC of 27 September 1993.
The Commission argues that the minimal nature of the provisions regulating certain related rights and the fact that a competence concerning enhanced protection is left to the Member States mean that this Convention must be considered a 'mixed' agreement. This is recognized by the Commission itself in the fifth recital of the proposal for a Council decision approving the Convention.
When an initial proposal for a Council decision approving this European Convention was sent to the Committee on Legal Affairs and Citizens' Rights, the present rapporteur pointed out that this procedure was not in line with Community constitutional law.
Article 10 of the Council of Europe Convention states that both individual countries so wishing and the Community may express their consent by:
- signature without reservation as to ratification, acceptance or approval, or;
- signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.
The Commission had opted for the first formula. Thus, the proposal for a decision approving the Convention on behalf of the Community stated, in Article 2, that the Council was authorized to name the persons mandated to sign the Convention, without reservation as to ratification, and to deposit the act of approval at the Secretariat of the Council of Europe.
The problem arose at that point that only two Member States (Spain and Luxembourg) had signed the Convention, and not a single Member State had ratified it.
The first option referred to in the proposal for a decision - signature by the Community without reservation as to ratification - could give the impression that the Convention would come into force before the Member States had proceeded to ratify, approve or accept it.
With mixed agreements of this type, the practice has to date been that the Community defers approval until all the Member States have approved the text; or, alternatively, as in the case of the recent GATT agreement (on the basis of the duty of cooperation between the Member States and the EEC with respect to international obligations), the Community deposits its instrument of approval at the same time as the Member States deposit their instruments of ratification. This latter possibility is compatible with the formal procedure called 'signature subject to ratification' which constitutes the second option provided for in the text of the Council of Europe Convention.
With respect to the European Parliament, the question arose concerning this framework as to when it should deliver its opinion. The usual procedure under Article 228(3) is that Parliament is consulted after the signature but before the conclusion of the Convention, by means of a Council decision.
The Commission recognized the existence of this problem at the initial exchange of views with the Committee on Legal Affairs and Citizens' Rights, at which the present rapporteur raised the procedural question. It subsequently withdrew the proposal for a decision.
On 31 January 1996 the Commission submitted two proposals for Council decisions concerning the signing and approval of the Convention on behalf of the Community.
In the first proposal for a decision, the Council decides to sign the Convention on behalf of the Community subject to approval.
The second proposal for a decision is the instrument by which the Convention is to be approved on behalf of the Community. This proposal is based on Articles 57(2) and 66 and on the first sentence of Article 228(2) and the first subparagraph of Article 228(3) of the EC Treaty, and the prior opinion of Parliament is therefore called for.
The rapporteur considers this procedure to be satisfactory and legally sound. The general procedure for Parliament's legislative participation concerning this Convention and its prerogatives appears to be correct, given that the Convention does not imply any alteration in the acquis communautaire adopted under the codecision procedure (which would require an assent procedure). Article 9(1) of the Convention states:
'In their mutual relations, Parties which are members of the European Community shall apply Community rules and shall not therefore apply the rules arising from this Convention, except in so far as there is no Community rule governing the particular subject concerned.'
2. The Council of Europe Convention
The Commission participated in the drawing-up of the Council of Europe Convention, on behalf of the Community and on the basis of the negotiating guidelines granted it by the Council. The guidelines referred to a Convention compatible with Directive 9⅜3/EEC.
On 24 September 1993 the Commission wrote to the Council of Europe requesting changes to the draft Convention on behalf of the Community. These changes were accepted.
The Council of Europe's delegates adopted the Convention at their meeting of 16 February 1994.
The content of the Convention falls to a large extent within the field of application of Directive 9⅜3/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, and, partially and in certain areas concerning related rights regulated by Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property.
Nonetheless, the scope of the Convention concerns only broadcasting by satellite. Unlike Directive 9⅜3/EEC, it does not cover cable broadcasting.
From the examination of the Council of Europe Convention, it may be concluded that there are quite close parallels between the subjects regulated by the relevant Community legislation in the field and the Council of Europe's provisions, especially as regards the key aspects. These are:
a) the notion of an act of broadcasting: As in Directive 9⅜3/EEC, the transmission of works and other contributions by fixed service satellite is considered to be comparable to transmission by direct broadcasting satellite, provided such transmissions can be captured directly by the general public. The transmission of programme-carrying signals in encrypted form is included in this notion, provided the means for decoding the broadcast are made available to the public by the broadcasting organization.
For the purposes of the Convention, the act of broadcasting by satellite includes both the up-link to the satellite and the down-link to the earth, provided the transmission takes the form of an uninterrupted and unaltered chain.
b) the applicable law: The Convention states that, for purposes of copyright and related rights, the sole applicable law is that of the state party within whose territory the broadcast originates (that is, the state party in which the programme-carrying signals transmitted by satellite are introduced, under the control and responsibility of the broadcasting organization, into an uninterrupted chain of communication and under the conditions described in the previous paragraph).
The Convention also provides a series of rules for determining the origin of a broadcast from a country not party to the Convention, with the aim of preventing any breach or evasion of the copyright of the holders concerned.
c) copyright: As most of the Council of Europe's member countries are also party to the Berne Convention (Act of Paris, 1971), the Convention lays down as a general principle that the authors of works mentioned in Article 2 of the Berne Convention are to be protected in conformity with that Convention's provisions.
Rights for transfrontier broadcasting by satellite concerning such works are to be acquired contractually, as is the case under Directive 9⅜3/EEC. Such an agreement may be concluded with one or more right holders on the basis of individual or collective negotiation. In the latter case, the Convention contains a number of provisions for extending such agreements to right holders for certain types of work not covered by the agreement concerned. However, these provisions do not apply to cinematographic works.
d) neighbouring rights: Article 5 of the Convention states that, as a general rule, performers, producers of phonograms and broadcasting organizations in the states parties are to be protected, as a minimum, by the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961).
This minimum protection is also to apply in the case of states parties to the Convention which have not signed the Rome Convention.
Nonetheless, Article 5(2) of the Convention states that the rights of performers regarding the fixation and reproduction of their performance are exclusive rights to authorize or prohibit. The same applies to the rights of performers concerning the broadcasting and communication to the public of their performance (except where the performance itself already a broadcast performance or made from a fixation).
The Convention also debars states parties from availing themselves of the facility provided under Article 19 of the Rome Convention, given that this article is not appropriate to the context of transfrontier broadcasting by satellite (it states that a performer shall cease to enjoy the protection offered by the Convention from the moment when he gives his consent for his performance to be included in a fixation of images or sound). However, without prejudice to this general rule, states parties may provide that the signing of a contract concluded between a performer and a film producer has the effect of authorizing the waiving of rights provided the contract provides for an equitable remuneration (which the performer cannot refuse).
The Convention also specifies that where phonograms published for commercial purposes are used for transfrontier broadcasting by satellite the states parties are to guarantee that the broadcasting organization concerned pays a single equitable remuneration, to be shared between the performers and producers of the phonograms.
Finally, as mentioned above, there are close parallels between the subjects governed by this Convention and the corresponding provisions of Community law. If, despite this, divergences persist, under Article 9 of the Convention the states parties are to apply, in their mutual relations, the relevant provisions of the acquis communautaire, and only then apply the provisions of the Convention if there is no Community rule governing the aspect concerned.
OPINION
of the Committee on Economic and Monetary Affairs and Industrial Policy
Letter from the chairman of the committee to Mr Carlo Casini, Chairman of the Committee on Legal Affairs and Citizens' Rights
Brussels, 30 May 1996
Subject: Proposals for Council Decisions concerning the signing and approval, on behalf of the European Community, of the European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite
COM(96)0006 - C4-0212/96 - 96/0017(CNS)
Dear Mr Chairman,
1. The purpose of the European Convention is to promote transfrontier broadcasting by satellite by introducing harmonized rules for national copyright law and neighbouring rights.
2. The Convention pursues the aim at the level of Europe as a whole of Council Directive 9⅜3/EEC of 27 September 1996 of coordinating rules concerning copyright and neighbouring rights applicable to satellite broadcasting and cable retransmission.
3. There is agreement between the Commission and the Member States that the Convention falls within the areas of competence of both the Community and the Member States.
4. Conclusions
(a) The Commission proposal should be approved, since it will approximate throughout Europe as a whole the rules of copyright applicable to transfrontier radio and television broadcasting by satellite. This will make possible larger-scale and thus lower-cost serial delivery of these services and enhance the free flow of news, culture and entertainment programmes throughout Europe.
(b) The Council and the Member States consequently should be requested to ratify the Convention without delay.
The above conclusions were adopted unanimously at the meeting of 30 May 1996*.
Yours faithfully,
Karl von Wogau
Draftsman: Karsten Friedrich Hoppenstedt
*Present for the vote: von Wogau, chairman; Metten and Theonas, vice-chairmen; Hoppenstedt, draftsman; Barton (for Billingham), de Bremond d'Ars, Carlsson, Cassidy, Caudron, Christodoulou, Cox (for Watson), Donnelly, Ewing, Glante, Harrison, Haug (for Kuckelkorn), Hautala, Hendrick, Herman, Kestelijn-Sierens, Lindqvist, Mather (for Friedrich), Mezzaroma, Miller, Pérez Royo, Randzio-Plath, Poettering (for Langen), Rapkay, Rönnholm, Secchi, Tappin (for Murphy), Thyssen and Torres Marques.
OPINION
of the Committee on Culture, Youth, Education and the Media
Letter from the chairman of the committee to Mr Carlo Casini, chairman of the Committee on Legal Affairs and Citizens' Rights
Brussels, 24 April 1996
Subject: Proposals for Council Decisions concerning the signing and approval, on behalf of the European Community, of the European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite (COM(96)0006 - C4-0212/96 - 96017(CNS))
Dear Mr Casini,
At its meeting of 23 April 1996 the Committee on Culture, Youth, Education and the Media considered the above subject.
At the same meeting it adopted the following conclusions unanimously.[1]
1. The Convention seeks to extend to the Council of Europe Member States the pursuit of the objectives set regarding satellite broadcasting by Directive 9⅜3/EEC of 27 September 1993.
2. Under Article 9(1) of the Convention, in their mutual relations, Parties which are members of the European Community shall apply Community rules - including the above Directive - and shall not therefore apply the rules arising from this Convention, except in so far as there is no Community rule governing the particular subject concerned.
3. Furthermore, under Article 9(2) of the Convention, Parties - and therefore the Community as well as its Member States - reserve the right to enter into international agreements among themselves in so far as such agreements grant at least as extensive protection of copyright as that granted by this Convention or contain other provisions supplementing this Convention or facilitating the application of its provisions.
4. Therefore the content of the Convention in no way hinders the smooth operation of Directive 93\83\EEC, and strengthens copyright protection in the sphere of transfrontier broadcasting by satellite and audiovisual creation.
5. The European Commission rightly emphasizes that, to mark the Community's presence within the Council of Europe and to underscore the importance it attaches to the Convention, the Council should now sign the instrument, subject to Community approval at a later stage, at a time chosen to reflect the desire for coordinated action between the Community and its Member States.
For these reasons, the Committee on Culture, Youth, Education and the Media recommends to the Committee on Legal Affairs and Citizens' Rights, committee responsible, that the proposals for Council decisions be adopted and the Convention signed subject to approval.
Yours sincerely,
(sgd) Luciana Castellina
- [1] The following took part in the vote: Banotti, vice-chairman and acting chairman; Sanz Fernández and Tamino, vice-chairmen; Bennasar (for Galeote Quecedo), Hawlicek, Heinisch, Lage (for Aparicio Sánchez), Leperre-Verrier, Mohamed Ali, Ryynänen, Seillier and Tongue.