Why Relying on the ECTT is a High-Risk Strategy
Updated: Jan 16, 2020
By David McMunn & Ed Hall
As we enter the last few days before Brexit, our Brexit team has seen comments in various industry forums, including statements made in the DCMS Brexit briefings for the creative industries, that suggest broadcasters may be able to rely on the European Convention on Transfrontier Television (ECTT) after the UK leaves the EU, and at the end of the transitional period in December 2020. It is our view that the ECTT is very unlikely to be fit for purpose for current OFCOM licensees who wish to broadcast into the EU from the UK.
In this briefing, we outline the reasons why we believe the ECTT is not a reliable option for UK-licensed broadcasters developing plans for continued European distribution post-Brexit.
1. Any treaty will only work where the receiving country is a signatory. Denmark, Greece, Ireland, Luxembourg, the Netherlands and Sweden are all examples of EU members who are not signatories and as such the ECTT cannot be a basis to broadcast into these territories.
2. A treaty is only effective in respect of its subject matter. The ECTT was originally intended to be complementary to and mirror a lot of the original 1989 Television Without Frontiers Directive. Accordingly, it does not deal with on demand/non-linear services, which means that any OTT or related VOD and/or streaming services that a broadcaster makes available in an EU state would not be covered by the ECTT.
3. The ECTT does not have any enforcement or dispute resolution mechanisms built in. There is a reference to a Convention Standing Committee, but this no longer exists (see 4. below). You will note from these articles and also the Council of Europe Information Notice that, by general assent, EU law is considered “superior” to the ECTT provisions (see articles referenced below 3. and 4.). This is sometimes reflected in actual member states' law. For example an ECTT member state can stop another ECTT member state broadcaster from broadcasting into it, if that broadcaster does not meet the destination state's laws on issues such as advertising. This is set out in Article 16 of the ECTT. Note in relation to this that issues such as advertising and product placement and other commercial matters are set out in considerable detail in the AVMSD, but not addressed in detail in the ECTT or are otherwise out-of-date, arguably making the treaty irrelevant, and potentially providing a receiving state with grounds to deem transmission illegal if they don't comply with the receiving state laws.
4. There are other issues dealt with under EU law that are not dealt with under the ECTT. The obvious ones are:
Retransmission of signals and payments of music rights (AGICOA). These rights and obligations are dealt with under the Cable and Satellite Directive and Collective Rights Management Directive.
EPG/Carriage arrangements with platforms - These almost universally refer to EU law (AVMSD)
Licensing (again underlying rights) - This ties in with retransmission rights. If the EU system is not followed and international treaties are used, this means depending on the Berne Copyright Convention and the TRIPS Agreement (Trade Related Aspect of Intellectual Property) 1995. TRIPS lacks any special provision on trade barrier rules, portability of content or facilitation of rights clearances. Section 8 of TRIPS does put in place provision for controlling anti-competitive practice, but it does not facilitate or mandate any specific mechanism for doing so. The overall aim of Berne/WTO type arrangement is to put in place minimum rights and oblige contracting parties to define their own national rules. The normal protections rights owners generally seek for their channels and content may well not be available to or enforceable by channels retransmitted into a territory under ECTT.
5. It is clear that (at a minimum) there are the issues related to rights protection that will need further clarity in any FTA or similar arrangement in relation to the audiovisual sector. The problem here is that there is no precedent of any such provision in EU trade deals, with some limited exceptions for Manga in Japanese and South Korean trade deals. Also President Macron has made it clear that he will exercise veto rights in relation to “cultural exceptions” (See articles referenced below no. 2.).
6. We are aware of at least one example in the last 3 years where a UK platform, regulator and the DCMS have not supported the contention from a broadcaster from another ECTT signatory country that they could rely on the ECTT to transmit in the UK. It is therefore not certain that UK platforms will recognise the ECTT and carry non-UK licensed channels on that basis alone.
The following is a useful summary:
The ECTT is a theoretical and largely untested legal framework which has not been updated since the 1980s and does not apply across the EU, in particular in Ireland. Unlike the AVMSD, it is not a functional framework for inter-country broadcasting that is based on any clear jurisdictional principles, and is likely to be fraught with problems if it is used to try and protect copyright in retransmitted signals.
We have seen specific proposals related to a number of alternative jurisdictions, in particular Spain, as a proposed option for broadcasters.
1. If the ECTT is being relied upon for a Spanish-licensed channel, then we believe there are serious flaws with this approach, namely:
Not all EU countries are ECTT signatories.
The ECTT will not work for on demand type services.
The ECTT will not assist with advertising issues (as above)
The ECTT has no dispute resolution mechanism (as above)
2. Our first question is that unless the broadcaster's HQ and editorial decision-making is moving to Spain by what criteria is a Spanish licence being obtained? If this is because of a satellite uplink from Spain how does the signal get into Spain from where it originates? EU member receiving states are entitled to assess whether a service being broadcast into their territory has been properly established in the originating country using the correct hierarchy of establishment rights set out in the AVMSD (i.e. HQ first etc.).
3. If Spanish EU membership and the AVMSD is being relied upon then broadcasters would be well advised to note that:
Spain has significant restrictions on alcohol advertising (no spirits may be advertised, and other alcohol only between 8pm-6am)
Betting/gaming channels are only permitted between 1am-5am
Content on paranormal/exorcism is only permitted 10pm-7pam
Language obligations: 25% of output must be in one of the 3 Spanish languages (Spanish/Catalan/Basque)
On demand providers must provide 15% of their back catalogue in an official language of Spain.
Spain has specific rules on the protection of minors.
Note that the EU Centre for Media Plurality and Media Freedom has issues with Spain in respect of media plurality and (more importantly) the 2015 “Gag Law”. This law provides for specific controls on what can be transmitted in news programming, particularly in respect of the portrayal of law enforcement.
There are advantages and disadvantages to different potential strategies for managing broadcast licensing on a pan-European basis post-Brexit, but it is our view that an Ofcom-licensed service relying on the ECTT to distribute in Europe will face significant barriers, and increase risks related to intellectual property protection. Channels licensed elsewhere and hoping to rely on the ECTT to allow retransmission in the UK, are at risk of platforms taking a different view, and with little likelihood of access to a simple legal remedy, in those circumstances.
The EMP team has managed multiple licence applications across EU and EEA states, and has published the Brexit Broadcast Licensing Directory, providing comparative analysis of all EU and EEA jurisdictions, and is well-placed to provide recommendations on potential jurisdictions for broadcasters seeking a new licence.