The EU Satellite and Cable Directive provides a country-of-origin principle for licensing of copyright material in cross-border satellite broadcasts. This means that when a satellite broadcaster transmits a copyright work, eg a film, from one EEA (European Economic Area) state to another, they are only required to get the copyright holder’s permission for the state in which the broadcast originates. This avoids satellite broadcasters having to secure individual licences for every member state in which their broadcasts are received.
Actions for UK satellite broadcasters
UK broadcasters may no longer benefit from the country-of-origin principle for broadcasts into the EEA from 1 January 2021 and might need to get additional right holder permissions covering the EEA states to which they broadcast.
This will depend on how the domestic legislation of each EEA member state treats broadcasts originating in non-EEA countries – for example, whether they apply the country-of-origin principle to non-EEA broadcasts, as UK law does.
UK broadcasters should:
- check the domestic legislation of each EEA member state into which they broadcast to identify how they treat broadcasts originating in non-EEA countries
- consider whether their licensing arrangements will need to change after the from 1 January 2021 to allow them to continue to broadcast into the EEA
Broadcast of works transmitted into the UK
In the UK, the country-of-origin principle will continue to be applied to broadcasts from any country.
Legitimate satellite broadcasts of copyright works transmitted into the UK from abroad will not need specific right holder permission for the UK, except where both of the following apply:
- the broadcast is commissioned or uplinked to a satellite in the UK
- it originates from a country that provides lower levels of copyright protection
Use of satellite decoders from 1 January 2021
From 1 January 2021, it will become an offence to use satellite broadcast decoder devices intended for EU audiences to access a programme included in a broadcast made from the UK with the intent of avoiding a charge associated with the programme. This is already the case for satellite decoder devices intended for non-EU audiences.
If you do this in the UK you will need to:
- stop using EU satellite decoder devices to avoid committing an offence
- consider instead purchasing the relevant UK satellite broadcast package to view the programmes.
Using EU decoders for purposes other than to avoid a charge
The change will not affect those who use EU decoder devices to access programmes included in UK broadcasts for purposes other than the avoidance of a charge.
For example, expats living in the UK who use decoder devices intended for EU audiences to view programmes in their native language are not, nor will they be, covered by the offence of section 297, provided there is no intent to avoid any charge associated with the programmes.
Background
Satellite broadcasters often restrict their broadcasts on a territorial and paid-for basis by encrypting their transmissions. To access a broadcast, consumers buy or lease ‘decoder devices’ (such as set top boxes), which convert the encrypted transmissions to a watchable form.
Illicit (for example, cloned) decoder devices or decoder devices intended for use in another country are sometimes used to access programmes that are otherwise available via a legitimate, UK broadcasting service. Section 297 of the Copyright, Designs and Patents Act 1988 (CDPA) makes this a criminal offence when done dishonestly to avoid paying a charge to the UK broadcaster.
In 2011, the Court of Justice of the European Union ruled that section 297 should not apply where it prevented people in the UK from using legitimate decoder devices intended for use elsewhere in the EU, even when they do so to avoid a charge for the relevant UK broadcasting service.
This is because such a restriction is inconsistent with the EU’s ‘freedom of services’, provided by the Treaty on the Functioning of the European Union.
What is changing
The government is disapplying provisions on freedom of establishment and the free movement of services from 1 January 2021. See The Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019 for further information on freedom of establishment and freedom of services.
Under these changes, the existing restriction to the criminal offence defined in section 297 of the CDPA will fall away. It will become an offence to use satellite broadcast decoder devices intended for EU audiences to access a programme included in a broadcast made from the UK with the intent of avoiding a charge.
This change will not weaken or change in any way the illegality of illicit decoder devices for the acts specified by section 297 (for example, cloned, counterfeit, or stolen decoder devices).
Access to copyright works for visually impaired people from 1 January 2021
The Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled, is an international agreement to improve the access of visually impaired people to copyright works around the world.
The EU is party to the treaty and has implemented it via a directive and a regulation:
- the directive allows people in the EU with visual impairments and authorised bodies that support them (for example charities) to make or distribute accessible format copies of copyright works.
- the regulation allows the import and export of such copies between EU member states and other treaty countries.
The UK implemented the directive via the Copyright and Related Rights (Marrakesh Treaty etc.) (Amendment) Regulations 2018.
The Marrakesh Treaty from 1 January 2021
The regulation and the UK’s implementation of the directive will be retained in UK law from 1 January 2021.
In the UK, people with visual impairment or authorised bodies will still be able to make and distribute accessible format copies of copyright works. However, the cross-border exchange of accessible format copies of works may be affected.
The UK is party to the Treaty through its membership of the EU. The government is on track to ratify the treaty in its own right by 1 January 2021.