COPYRIGHT AND RELATED RIGHTS APPLICABLE TO CERTAIN ONLINE TRANSMISSIONS OF BROADCASTING ORGANISATIONS AND

CERTAIN ONLINE TRANSMISSIONS OF BROADCASTING

ORGANISATIONS AND RETRANSMISSIONS OF

TELEVISION AND RADIO PROGRAMMES

SUBSIDIARY LEGISLATION 415.07

COPYRIGHT AND RELATED RIGHTS APPLICABLE

TO CERTAIN ONLINE TRANSMISSIONS OF

BROADCASTING ORGANISATIONS AND

RETRANSMISSIONS OF TELEVISION AND RADIO

PROGRAMMES REGULATIONS

1st June, 2021

LEGAL NOTICE 234 of 2021.

(1)

The title of these regulations is the Copyright and

Related Rights applicable to Certain Online Transmissions of

Broadcasting Organisations and Retransmissions of Television And

Radio Programmes Regulations.

(2)

The scope of these regulations is to transpose Directive

(EU) 2019/789 of the European Parliament and of the Council of 17

April 2019 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,

and amending Council Directive 93/83/EEC.

In these regulations, unless the context otherwise

requires

"Act" means the Copyright Act;

"ancillary online service" means an online service consisting in

the provision to the public, by or under the control and responsibility

of a broadcasting organisation, of television or radio programmes

simultaneously with or for a defined period of time after their

broadcast by the broadcasting organisation, as well as of any material

which is ancillary to such broadcast;

"cable retransmission" shall have the same meaning as assigned

to it in article 2 of the Act

Provided that this definition shall apply regardless of

how the operator of a cable retransmission service obtains the

programme-carrying signals from the broadcasting organisation for the

purpose of retransmission;

"direct injection" means 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

CERTAIN ONLINE TRANSMISSIONS OF BROADCASTING

ORGANISATIONS AND RETRANSMISSIONS OF

TELEVISION AND RADIO PROGRAMMES

that the programme-carrying signals are not accessible to the public

during that transmission;

"managed environment" means an environment in which an

operator of a retransmission service provides a secure retransmission

to authorised users;

"retransmission" means any simultaneous, unaltered and

unabridged retransmission, other than cable retransmission as defined

above, intended for reception by the public, of an initial transmission

from another Member State of television or radio programmes

intended for reception by the public, where such initial transmission is

by wire or over the air including that by satellite, but is not by online

transmission, provided that

(a)

the retransmission is carried out by a party other

than the broadcasting organisation which made the initial

transmission or under whose control and responsibility that

initial transmission was made, regardless of how the party

carrying out the retransmission obtains the programme-carrying

signals from the broadcasting organisation for the purpose of

retransmission; and

(b)

where the retransmission is over an internet access

service as defined in point (2) of the second paragraph of

Article 2 of Regulation (EU) 2015/2120, it is carried out in a

managed environment.

(1)

The acts of communication to the public of works

or other protected subject matter, by wire or wireless means, and of

making available to the public of works or other protected subject

matter, by wire or wireless means, in such a way that members of the

public may access them from a place and at a time individually chosen

by them, occurring when providing to the public

(a)

radio programmes; and

(b)

television programmes which are

(i)

news and current affairs programmes; or

(ii)

fully financed own productions of the

broadcasting organisation,

in an ancillary online service by or under the control and

responsibility of a broadcasting organisation, as well as the acts

of reproduction of such works or other protected subject matter

which are necessary for the provision of, the access to or the use

CERTAIN ONLINE TRANSMISSIONS OF BROADCASTING

ORGANISATIONS AND RETRANSMISSIONS OF

TELEVISION AND RADIO PROGRAMMES

of such online service for the same programmes shall, for the

purposes of exercising copyright and related rights relevant for

those acts, be deemed to occur solely in the Member State in

which the broadcasting organisation has its principal

establishment

Provided that paragraph (b) of this sub-regulation shall

not apply to the broadcasts of sports events and works and other

protected subject matter included in them.

(2)

(a)

When setting the amount of the payment to be

made for the rights to which the country of origin principle, as set out

in sub-regulation (1) applies, the parties shall take into account all

aspects of the ancillary online service, such as features of the service,

including the duration of online availability of the programmes

provided in that service, the audience, and the language versions

provided.

(b)

Sub-regulation (2)(a) shall not preclude calculation of

the amount of the payment on the basis of the broadcasting

organisation's revenues generated by the online service.

(3)

The country of origin principle set out in sub-regulation

(1), shall be without prejudice to the contractual freedom of the

rightholders and broadcasting organisations to agree, in compliance

with Union law, to limit the exploitation of such rights, including those

under article 7 of the Act.

(1)

(a)Acts of retransmission of programmes have to

be authorised by the holders of the exclusive right of communication

to the public.

(b)

Rightholders may exercise their right to grant or refuse

the authorisation for a retransmission only through a collective

management organisation.

(2)

Where a rightholder has not transferred the management

of the right referred to in paragraph (b) of sub-regulation (1) to a

collective management organisation, the collective management

organisation which manages rights of the same category for Malta, for

which the operator of a retransmission service seeks to clear rights for

a retransmission shall be deemed to have the right to grant or refuse

the authorisation for a retransmission for that rightholder

Provided that, where more than one collective

management organisation manages rights of that category for the

territory of Malta, it shall be for the Member State for the territory of

which the operator of a retransmission service seeks to clear rights for

CERTAIN ONLINE TRANSMISSIONS OF BROADCASTING

ORGANISATIONS AND RETRANSMISSIONS OF

TELEVISION AND RADIO PROGRAMMES

a retransmission to decide which collective management organisation

or organisations have the right to grant or refuse the authorisation for a

retransmission.

(3)

A rightholder shall have the same rights and obligations

resulting from an agreement between an operator of a retransmission

service and a collective management organisation or organisations that

act pursuant to sub-regulation (2) as rightholders who have mandated

that collective management organisation or organisations

Provided that the rightholder shall also be able to claim

those rights within a period of three (3) years from the date of the

retransmission which includes his or her work or other protected

subject matter.

(1)

Regulation 4 does not apply to the rights in

retransmission exercised by a broadcasting organisation in respect of

its own transmission, irrespective of whether the rights concerned are

its own or have been transferred to it by other rightholders.

(2)

Where broadcasting organisations and the operators of

retransmission services enter into negotiations regarding authorisation

for retransmission under these regulations, those negotiations are to be

conducted in good faith.

(1)

Where no agreement is concluded between the

collective management organisation and the operator of a

retransmission service, or between the operator of a retransmission

service and the broadcasting organisation regarding authorisation for

retransmission of broadcasts, either party may, unless otherwise

agreed to by all parties, call upon the assistance of one or more

mediators appointed by Malta Mediation Centre in accordance with

the procedure stipulated under the Mediation Act. The task of the

mediator shall be to provide assistance with negotiation. The mediator

shall act impartially and with confidentiality and shall facilitate the

discussion between the parties to find ways and means and draw up

proposals, in order for the parties to seek and resolve their differences.

The mediators shall nonetheless not take decisions for the parties.

(2)

Mediations falling within the remit of these regulations

shall only be conducted on a voluntary basis.

(3)

When calling upon the assistance of one or more

mediators appointed by the Malta Mediation Centre and thereafter

entering into mediation proceedings, such proceedings shall be

conducted in accordance with the procedures and formalities

stipulated under the Mediation Act.

CERTAIN ONLINE TRANSMISSIONS OF BROADCASTING

ORGANISATIONS AND RETRANSMISSIONS OF

TELEVISION AND RADIO PROGRAMMES

(4)

Mediation shall only commence and proceed on

condition that before the commencement of the mediation process, the

parties sign beforehand and submit to the Malta Mediation Centre, a

statement declaring that they are fully aware and cognisant of the

implications of the Act and these regulations

Provided that this also implies that disclosure may have

to be permitted in accordance with article 27 of the Mediation Act.

(5)

Subject to the formalities required under this regulation,

if a proposal is formally submitted to the parties by the mediator and

the parties do not register their objection thereto in writing with the

mediator and the other party, within three (3) months from the

electronic notification of such proposal, then in accordance with

Council Directive 93/83/EEC such proposal shall be assumed to be

binding upon all the parties.

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

shall be deemed to be participating in a single act of communication to

the public in respect of which they shall obtain authorisation from

rightholders.

Agreements on the exercise of copyright and related

rights relevant for the acts of communication to the public of works or

other protected subject matter, by wire or wireless means, and the

making available to the public of works or other protected subject

matter, by wire or wireless means, in such a way that members of the

public may access them from a place and at a time individually chosen

by them, occurring in the course of provision of an ancillary online

service as well as for the acts of reproduction which are necessary for

the provision of, the access to or the use of such online service which

are in force on 7 June 2021 shall be subject to regulation 3 as from 7

June 2023 if they expire after that date

Provided that authorisations obtained for the acts of

communication to the public falling under regulation 7 which are in

force on 7 June 2021 shall be subject to regulation 7 as from 7 June

2025 if they expire after that date.