Bulgaria amends Copyright and Neighbouring Rights Act to implement DSM and CabSat directives - Part II

Transposition of Directive (EU) 2019/ 789 after a serious debate on Article 21 of the Bulgarian Copyright and Neighbouring Rights Act

Most of the TV channels in Bulgaria are distributed to end viewers through electronic communications networks (i.e. cable, DTH, IPTV) of electronic communication services providers (i.e. cable, DTH, IPTV signal distributors). More than 90% of the audience receives TV programmes via the networks of electronic communications networks and services providers. Thus, the main debate related to the implementation of the CabSat Directive in Bulgaria was over the interpretation of Article 8 of Chapter IV Transmission of programmes through direct injection.

Article 2, paragraph 4 of Directive (EU) 2019/ 789 defines the “direct injection: as a technical process “by which a broadcasting organisation transmits its programme-carrying signals to an organisation other than a broadcasting organisation, in such a way that the programme-carrying signals are not accessible to the public during that transmission.” This definition is transposed in 5e of paragraph 2 of the CNRA’s Supplementary provisions. According to Article 8, paragraph 1 of the CabSat Directive, when a broadcasting organisation transmits by direct injection its programme-carrying signals to a signal distributor, without the broadcasting organisation itself simultaneously transmitting those programme-carrying signals directly to the public and the signal distributor transmits those programme-carrying signals to the public, the broadcasting organisation and the signal distributor will be deemed to be participating in a single act of communication to the public in respect of which they will obtain authorisation from rightholders. This provision is interpreted in line with the Recitals of the CabSat Directive and in particular with Recital 20, which emphasises that in such cases the transmission to the public by the broadcasting organisation and the signal distributor “only one single act of communication to the public is deemed to occur in which both the broadcasting organisations and the signal distributors participate with their respective contributions.” The broadcasting organisations and the signal distributors should obtain authorisation from the rightholders for their specific contribution to the single act of communication to the public. EU member states may provide that signal distributors benefit from the mechanism of mandatory collective management of rights for their transmissions as is provided for the retransmission rights.

Following considerable lobbying pressure by the CMOs, Article 21 CNRA was amended to provide a rights settlement mechanism where in case of transmission of the programme to the public through direct injection, both the broadcasting organisation and the signal distributor participate in a unified action of transmission to the public for which both the broadcaster and the signal distributor must obtain separate authorisations, each for its specific contribution. The latter means that both the broadcaster and the signal distributor must clear transmission rights with the rightholders. It is not clear how the specific contribution to the common/single act of transmission will be valued. During the discussions in the working group, the Ministry of Culture took the view that the TV broadcasting tariffs of the CMOs must not take into account the distribution revenues of the TV broadcasters since the revenue stream of the signal distributors will be taken into account in the transmission tariff and the corresponding remuneration paid by the signal distributors.

Bulgaria has implemented mandatory collective management of both the transmission and retransmission rights when they are licensed to signal distributors/operators of retransmission services, with the exception for the rights exercised by the broadcasting organisations.

New wording is adopted in paragraph 5 of Article 21 that aims to secure a separate remuneration for the authors for the retransmission of their works by electronic communication services providers (i.e. operators of retransmission services). Where an author has licensed the right to authorise the retransmission of a work to a producer of a phonogram, film or other audiovisual work, the operators of the retransmission services must pay a separate retransmission royalty to the author of that work. Any waiver of such remuneration by the author will be considered null and void. This paragraph will apply mutatis mutandis to the signal distributor for the transmission of works to the public by the signal distributor in the case of direct injection of the signal by the broadcaster. The royalties payable for the authors by the operators of retransmission services or signal distributors are collected only through CMOs (see paragraph 6 of Article 21 CNRA).

New definitions are introduced for “broadcasting of a work” that refers to the terrestrial transmission and satellite transmission to the public as part of a radio or TV programme; “transmission of a work” now applies to all other forms of linear transmission via electronic communication networks, including webcasting as part of a radio and TV programme; “providing electronic access” is the new term for “making available to the public” but now includes live streaming.

The new definition of “retransmission” in 5c of paragraph 2 is close to the wording of the Directive (EU) 2019/ 789. A new nationally specific rule is that the “retransmission” will also include retransmission of an initial transmission originating in Bulgaria. This may cause some difficulties in defining the distribution of TV channels since TV channels that are distributed via the electronic communications network of a cable operator may in certain cases be considered “retransmitted” and in other cases “transmitted” to the public, which may lead to the application of different tariffs. The law leaves some room for agreement between TV broadcasters and cable operators on the exact qualification of the programme distribution.

Article 21 and the respective accompanying definitions are encumbered with an extensive array of clarifications, adding considerable complexity to the text. The main purpose of the Ministry of Culture and the Parliament's Committee on Culture and Media was to secure the payments to CMOs and ultimately to the authors. The latter also requires better procedures for adopting the tariffs of the CMOs and a significant improvement in the monitoring and control of the collective management organisations’ activity.

For more information on the amendments of the Bulgarian Copyright and Neighbouring Rights Act, contact your regular CMS advisor or local CMS experts Anna Tanova and Eva Petrova.