Import of television programs from abroad: regulation of copyrights and broadcasting of advertising content in BiH

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Source/Author: Arman Fazlić, BHN Bulletin E-journalist

SARAJEVO, 28.06.2018.-Interview with Helena Mandić, Broadcasting Director Assistant at Communication Regulatory Agency of BiH.

Television contents which broadcast via cable operators in BiH contain program packages that are often purchased from neighboring countries. Advertisements, as well as authoring content, are broadcasted to the public in BiH through these channels. When it comes to advertising, little is known on the financing of the advertisements that are broadcasted to the public in BiH, as well as what are the prices for advertising on BiH market. We asked the Communications Regulatory Agency of Bosnia and Herzegovina (CRA) whether they are informed about these amounts and problems in general, and how this area could be regulated as well as whether the solution would include intervention in the laws that define the work of CRA?

Key questions regarding the distribution of program contents, through cable providers, IPTV and DTH have all become subjects to the analysis by the European Convention on cross-border television (the Convention) at Council of Europe level, including the Directive on Audio-Visual Media Services (the Directive) at European Union level. Article 4 of the Convention and Article 3 of the Directive define full freedom of receiving and retransmission of content launched from abroad. This principle includes the prohibition of any form of modification of program (which is a subject to distribution) is applicable in all countries, that is, members of Council of Europe, member countries of European Union and all countries with candidate status or country signees of the Stabilization and Association Agreement with European Union.

According to duties that Bosnia and Herzegovina has to complete, in terms of the fact that the Convention was ratified and in accordance with the Stabilization and Association Agreement with European Union, this principle has also become obligatory for Bosnia and Herzegovina and it is demonstrated through the rules and regulations by the Agency, which has been passed by the Council.

Pursuant to the above mentioned, only providers of audiovisual media services that fully meet and fulfill one of many criteria required, which was under the supervision of the Agency. All other program contents, that can be found in the offer of the distribution, in the territory of Bosnia and Herzegovina, are not under the competence of the Agency and thus can freely and easily be distributed without any modification in the territory of Bosnia and Herzegovina.

By viewing the practice in neighboring countries, including European Union member – states, it is determined that there are no limits in the distribution of commercial advertising material in foreign channels; instead, all legal and by – law norms are defined pursuant to Article 3 of the European Directive on Audio – Visual Media Services.

According to the above listed legally – obliged documents, certain foreign companies, providing audio and visual media services, may currently and with foreign regulatory bodies, be permitted to provide media services that are especially guided for BiH territory, including commercial advertising contents, which is the case with the certain number of channels.

The Agency is convinced that it would be required to take into consideration the measures that may result in an improvement of the economic power of broadcasters in BiH, which could additionally create more attractive program contents attracting thus commercial advertising industry to BiH media market. In this sense, the Agency considers that one should launch the imitative for the formation of the fund for advancing audiovisual media services and media services on radio, which would include the alterations in certain legislative regulations, such as the Law on Communications.

What about the payment for copyrights, regarding the contents which, through packages of programs purchased abroad, is broadcasted in BiH? Sometimes, the contents are unavailable on TV screens as we could see the messages such as:”This content is darkened at the request of copyright holders or broadcasters”? Why does this occur in certain cases and on certain program channels only, while on the other program channels this does not happen? It is clear that the Institute for Intellectual Property is held responsible for this particular issue, but the question is in what way the CRA does or could make the significant contribution, considering that the CRA is the entity defining the conditions for issuing the cable operators with operating permits?

As you say, these questions should primarily be directed towards the Institute for Intellectual Property. Namely, Agency legal competences, in the field of authors and related rights, are very limited. Accordingly, the Agency has, as part of their competence in terms of the regulations in the field of communications, determined a common obligation and duty of obeying copyrights for all parties being issued with permits. Namely, the Law on Communications (“Official Gazette of BiH”, number 31/03, 75/06, 32/10 and 98/12) in Article 3, item (4), line d) defines that the Agency shall take all reasonable measures in order to accomplish the protection of copyrights. Rule 56/2011 on permits for distribution of audiovisual media services and radio media services (“Official Gazette of BiH”, number 98/11 and 52/15), in Article 7 defines the obligation by the user of Permit where he/she should, prior to distribution of certain programs from their own countries, acquire written consent by the owners of program contents or their authorized representatives and additionally submit the statement on settled rights for the distribution to the Agency.

Normally, all contents are available, unless the owner of contents fails to inform the distributor (in the reasonable period of time and certainly before the predetermined deadlines) that particular contents must be darkened pursuant to regulations in relation with copyrights protection. Also, we want to emphasize that the Agency cannot be held responsible and is not in charge regarding the interpretation and of contract parties that use issued Permits with third parties and Permits users with whom the contracts are signed. This includes all court disputes deriving out of such contracts.

Consequently, we shall outline the explanation of the first instance verdict by the Court of BiH (U-1017/05) based on charges pressed by the SQN where the Court of BiH highlighted the following:”The conclusion by the defendant is correct regarding the validity of contract where the defendant stated that only the municipal court is entitled to make decisions in lawsuits procedure. On the other hand, during the administrative proceeding, the body in charge with this procedure, pursuant to Law on Procedures (Official Gazette of BiH”, number 29/02, 12/04, 88/07 and 93/09), is not entitled and cannot be in charge in making the decisions regarding legal actions and deeds and contract – party relations and contract details as well”. This attitude was confirmed by the Court of BiH and during the second instance proceedings, according to Verdict Uvl30/06, with additional explanation as per following:”The Appeal Administrative Council accepts and acknowledges the attitude by the Council of Administrative Disputes and defendant Agency that the validity of the contract can be subject to decision making during the administrative procedure, because only the municipal court can be in charge with lawsuit procedure”.

This text is a part of E-Bulletin– fifth edition of special serial of BHN online bulletin implemented through the “Media and Public Reputation” (origin. “Mediji i javni ugled”) project, also representing a contribution to public debate regarding the transparency of media ownership and upholding and encouraging the passing of set of laws aimed to advance media field and information market in BiH.