Documents considered by the Committee on 27 March 2019 Contents

2Copyright in the Digital Single Market Proposal

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; but scrutiny waiver granted

Document details

Proposal for a Regulation of the European Parliament and of the Council 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.

Legal base

Article 114 TFEU; ordinary legislative procedure; QMV

Department

Business, Energy and Industrial Strategy

Document Number

(38077), 12258/16 + ADDs 1–4; COM (16) 594

Summary and Committee’s conclusions

2.1The proposal is part of the Commission’s “Copyright in the Single Market” package of September 2016. It aims to enable the wider dissemination of television and radio programmes across Member States, by “facilitating licensing of copyright and related rights in works and other protected subject-matter contained in broadcasts”.1

2.2The then Minister (Mr Sam Gyimah MP) wrote to the Committee in November 2018, to provide an update to the effect that a trilogue to consider the proposal had been scheduled for the “near future”. The Minister of State for Universities, Science, Research and Innovation (Chris Skidmore MP) now writes to inform the Committee that the trilogue discussions have advanced and agreed a text, and to request that the proposal be cleared from scrutiny.

2.3The details of the Minister’s reservations about the previous version of the proposal are set out in the Committee’s report of 28 February 2018. In summary, the main points of contention were: whether the proposal would be a regulation or a directive; the scope of the rule on country of origin; and whether direct injection would be included (and connections to retransmissions).

Conversion to a Directive

2.4The Minister explains that several Member States had made their support for the proposal contingent on the Regulation being converted to a Directive, so as to give greater freedom in its implementation and ensure greater consistency with related existing legislation from the Satellite and Cable Directive. The agreed text confirms that the text will be a Directive, not a Regulation. While the Government had not shared this concern, it was content for the legislative text to be adopted as a Directive, so is satisfied with this position.

Country of origin rule

2.5The European Parliament had sought to narrow the country of origin rule, to limit it to news and current affairs for television ancillary online services. The Minister notes that the Government would favour such an approach on the basis that it could preserve the practice of territorial licensing in the sector. The Minister implies, but does not explicitly state, that this is the position in the negotiated text, in that he states that the text “meets the Government’s negotiation objectives”.

Direct injection

2.6‘Direct injection’ refers to a technical means of broadcast, whereby a broadcasting organisation provides the signal directly to a distributor. Some Member States had advocated for direct injection to be included in the proposal, while others were content to accept it provide the proposal was adopted as a Directive rather than a Regulation. The Commission had resisted the inclusion of new provisions on direct injection.

2.7The Minister explains that the position in the negotiated text includes direct injection, which will be treated as a retransmission when a broadcast is distributed by a distributor in parallel with the original broadcasting organisation, attracting mandatory collective rights management. We note from the Minister’s letter that the Government “expects” that pure direct injection (where the broadcaster provides the signal to a distributor but does not broadcast itself) will “require both the broadcasting organisation and the signal distributor to obtain authorisation, although Member States can choose how this should be done”. The Minister states that the Government believes that the proposal’s provisions on direct injection provide “adequate protection” for rights holders and “sufficient flexibility” for implementation. While we welcome this information from the Minister, we do query whether his use of the verb “expects” indicates some element of doubt in the manner in which pure direct injection is incorporated into the negotiated text.

2.8The Minister concludes that the text of the proposal resulting from trilogues is one that meets the Government’s negotiation objectives and one that the Government would wish to vote in favour of.

2.9We thank the Minister for his letter of 6 March 2019 and the information that he provided. We also thank the Minister for his clear indication that the Government would wish to vote in favour of the proposal.

2.10We note the Minister’s request for the proposal to be cleared from scrutiny. In the context we are content to grant a scrutiny waiver on the basis that the text of the proposal, as agreed at trilogue, proceeds to a vote in Council. We do however have a number of points which we would be grateful for the Minister to address, before we consider granting scrutiny clearance.

2.11We ask the Minister to confirm whether there is any underlying uncertainty about how pure direct injection (see paragraph 2.7 above) will operate under the provisions of this proposal. If there is, we ask the Minister to clarify the position and confirm why the Government is content with it.

2.12We note that the Minister has not included any information regarding what the timing of any implementing period for the proposed Directive would be. In a letter of 6 April 2018 the then Minister (Mr Sam Gyimah MP) suggested that the Government did not expect any implementation period to “exceed 18 months”. If this expected timeline were accurate, if the proposal is passed soon, and if the draft Withdrawal Agreement were ratified by the UK and EU, it is likely that the UK would be required to introduce this proposal into UK law during the Withdrawal Agreement’s transition period. On the basis of the current information, we are unable to comment on the likelihood of this occurring. We request an update from the Minister on this point.

2.13As a related point we also note that the Minister has not provided any assessment on the impacts of this proposal (if any) that would be relevant to the UK as a third country rather than a Member State. We would welcome an assessment from the Minister on this point.

2.14We request clarification on the above points by the end of April 2019. To assist our scrutiny of this matter we request a copy of the final text of the Directive, as adopted at Council.

Full details of the documents

Proposal for a Regulation of the European Parliament and of the Council 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 :12258/16 + ADDs 1–4: (38077), COM (16) 594.

Previous Committee Reports

Seventeenth Report HC 71–xv (2016–17), chapter 5 (2 November 2016), Sixteenth Report HC 301–xvi (2017–19), chapter 1 (28 February 2018).





Published: 2 April