European Collecting Societies Under Fire From Cable Operators

By Dugie Standeford for Intellectual Property Watch
AMSTERDAM – The current scheme for clearing broadcast retransmission rights harms cable operators and should be revamped, speakers said at this week’s Cable Europe 07 conference in Amsterdam. An alternative to collective rights management organisations (CRMs) – central licensing or all-rights-included packages – could give the cable industry an economic boost, they said.

Collecting societies, however, accused cablecasters of blaming them for revenue problems caused by stiff competition from telecommunications companies.

There are too many inefficiencies in the collecting society approach, a Solon Management Consulting study gauging the economic impact of copyright on European cable operators concluded.

Its complexity creates high transaction costs, and digitisation and Internet Protocol TV will up the expense of rights acquisition even more, said Dorothea von Wichert-Nick, who heads Solon’s telecommunications practice. Cablecasters often overpay for rights that have been bundled and copyright prices often do not reflect market value. The monopolistic behaviour of CRMs forces cable companies to delay investment and innovation, and, because the societies are monopolies, they lack incentive to cut operating and management costs, she said.

The study proposed a simplified system involving either central licensing or all-rights-included packages. Under the former, each cable operator would choose one single collecting society to handle rights clearance across Europe, von Wichert-Nick said. The latter approach would allow broadcasters to clear all rights needed for communicating a particular program to the public, including retransmission, regardless of the platform used.

The real price of copyright clearance includes not only the copyright itself, but also transaction and negotiating time costs, and revenue not realised due to delays, said von Wichert-Nick. Among other benefits, simplifying the mechanism would drastically cut the number of relationships involved in clearance, lower transaction costs, foster market-based pricing, and force collecting societies to adjust operating costs to remain competitive, she said.

The result would be a win-win situation for all market players, she said. Content creators would receive fair distribution of fees and increased remuneration from new services and transmission platforms. Consumers would gain faster access to new technologies and products, with more content available at lower prices. Central licensing would reduce the number of negotiations for broadcasters. CRMs would have access to new markets and the motivation to streamline their organisations. The alternative approaches would mostly cut out cablecasters’ negotiations with collecting societies and give them fully cleared channels based on a fair market price, von Wichert-Nick said.

The all-rights-included package probably has a better chance of success than central licensing, said Tilman Lueder, head of the European Commission Internal Market directorate unit on copyright and related rights. It lets broadcasters seeking clearance of specific content negotiate for cable retransmission, either by themselves or a third party, at the same time. Central licensing, on the other hand, could raise cartel issues, he said.

Central licensing is “one step too far” at the moment, said Ton Tuijten, senior vice president and general counsel for cable operator Liberty Global Europe. With new CRMs popping up across Europe, vying to represent rights owners, and harmonisation of copyright systems continuing to elude “old” European Union states, one-shop licensing will not be competitive now, he said.

Cable operators gripe about having to clear retransmission rights when satellite and digital TV providers do not, said Christian Hauptmann, deputy general counsel for broadcaster RTL Group. But cablecasters have shifted in recent years from merely providing infrastructure to offering triple-play services directly to consumers, putting them in competition with broadcasters. They should be subject to the same rules, he said.

The panel discussion was interrupted by outbursts from collecting society representatives in the audience. Cable companies pretend it is impossible to work with CRMs because they are slow and complicated, AGICOA Legal and Business Manager Helmut Koszuszeck told Intellectual Property Watch later. But AGICOA, which handles clearance for Sony, Warner and other movie studios, has struck deals with cable companies in more than 30 countries over 25 years, he said.

The assault on CRMs is taking place as cablecasters lose their monopoly on distribution of television channels to the home, Koszuszeck said. With mounting competition from telecommunications firms retransmitting TV programs, cable operators are trying to slash their costs by having broadcasters, rather than collecting societies, clear their rights.

The problem, Koszuszeck said, is that broadcasters are sometimes more interested in getting their programming to consumers than in insisting on copyright.

Dugie Standeford may be reached at info@ip-watch.ch.