Media content that is released to the general public by means of open content licenses is also crucial for the sharing of knowledge. For public actors as licensors of such content, however, the question arises here as to whether the publication of content under free licenses can be a relevant process under competition law.
As a follow-up to the first roundtable on "Releases of Public Broadcasting Content for Knowledge Projects" on July 04, 2018, we commissioned an expert opinion on this question from Prof. Dr. Roland Broemel and Prof. Dr. Hans-Heinrich Trute.
Prof. Dr. Roland Broemel, Maîtrise en Droit has been Professor of Public Law, Economic and Monetary Law, Financial Market Regulation and Legal Theory at Goethe University Frankfurt since July 2018. Prof. Dr. Hans-Heinrich Trute has been Professor of Public Law, Media and Telecommunications Law at the University of Hamburg since October 2001.
The expert opinion question was: "Does the release of public broadcasters' content to the general public, specifically under an everyman license such as CC BY, which also allows commercial uses, constitute an impermissible subsidy?"
The key findings are:
In principle, the granting of a CC BY license does not favor any particular company or industry.
In individual cases, a so-called de facto selectivity may exist. An indication against this would be the separation of the production decision from the CC licensing decision.
De facto selectivity would be permissible in the context of a cooperation. This regularly requires, among other things, a telemedia concept tested in the so-called 3-step test.
In detail:
The granting of rights within the framework of CC BY takes place free of charge, while the uses of protected content according to market conditions suggest a paid license, at least in a commercial context. The CC BY can thus be understood as an advantage relevant under state aid law. However, since the licensing is not for the benefit of a specific company but in general, the granting of a CC BY license does not favor a specific company or a specific sector of the economy. In the absence of selectivity, it is therefore in any case generally permissible to make content available to the general public for use under a CC BY license.
However, the selectivity of a benefit can arise from the circumstances of the individual case despite the formally general nature of the benefit (so-called de facto selectivity). Thus, a targeted production of the subsequently licensed content with a view to the needs of Wikimedia in the context of a cooperation will have to be rated as de facto selective aid.
As a result, it can be stated that releases by public broadcasters under a CC BY license are in principle permissible under state aid law if they lack selectivity. At the same time, the granting of non-selective licenses to the general public is compatible with the regulatory objective of the so-called state aid compromise, which led to changes in the Interstate Broadcasting Treaty regarding the regulations on telemedia of public broadcasters. However, they violate the prohibition of state aid if they have a predictably distorting effect due to de facto selectivity. A permanent publication of content under a CC BY license may also violate some broadcasting law provisions currently still in force, in particular the requirements for so-called telemedia concepts and the time limit still applicable to publication. Thus, the use of CC licenses in a field in which corresponding content has previously only been offered under market licensing conditions can have significant effects, and this should be taken into account accordingly in the 3-step test.
Translated with www.DeepL.com/Translator (free version)
_______________________________________________Op 13 mrt. 2021, om 22:56 heeft Ciell Wikipedia <ciell.wikipedia@gmail.com> het volgende geschreven:Hi Bernd,We have several years of broadcasts of DWDD, of populair daily show on Dutch national tv (public service) available on Commons - and a lot of derived stills from all the guests. Until at one point, they stopped using the free license on YT, so maybe this was per mistake? https://commons.wikimedia.org/wiki/Category:De_Wereld_Draait_DoorYes, I had contact with them and it was by accident, but their legal team was not unwilling. However, the Dutch public broadcasting organisation NPO doesn’t allow publications under Creative Commons. Reason is that it is produced with public money and therefore the public broadcasting organisations viewpoint is that it is unethical to give it away for free...Another reason is that they need permission for each work by the Dutch government to publish it under a free license as it can be seen as a ‘commercial activity’ (distribution of content that might economical disturb other video content providers). Public broadcasters in the Netherlands are not allowed to have commercial activities unless they have a permission for such exception case by case by the national government.Universiteit van Nederland (on YT and now also on Spotify), seems like the same story: new content is only available for NC-restrictions.they switched from cc-by to youtube license as they said a third party was misusing their content.They only donated the public domain ones.The Dutch institute for Sound and Vision donated a lot of old news broadcasts in 2014 already: https://commons.wikimedia.org/wiki/Category:PolygoonjournaalHannolans (in cc:) is a frequent importer of Dutch language videos from YT to Commons: maybe he knows about present day projects.We have Drugslab, published by BNNVARA on youtube that is published under CC-BYVriendelijke groet,CiellOp vr 12 mrt. 2021 om 17:31 schreef Bernd Fiedler <bernd.fiedler@wikimedia.de>:_______________________________________________Hello to all of you!tl;dr: I'm searching for suggestions / partners in approaching public broadcasters. They could provide free content. Let's tell them all about it!As you know, the international language communities in the Wikimedia Projects have adapted and built upon the content provided by the ZDF (biggest Public Service Broadcaster in Germany). There are dubbed versions available in English, Dutch, Welsh and Esperanto. There are subtitles available in numerous other languages.Read more (3 min read) in this Wikimedia Foundations Blogpostor find more detailed "lessons learned" here (30 minutes talk + Q&A @rc3 )The international public broadcasters can benefit from the experiences we've made here. They should now follow the leadership of various cultural institutions like the Dutch Rijksmuseum who make their content more visible and beneficial to artists and educators worldwide and licence it freely. In a time of crisis, we can learn together.So... I know of some Institutions who already tried out stuff with Creativecommons. But I don't want to approach international broadcasters w/o consulting with you first. Maybe there's already some cooperation on other projects going on that I should know about or you know exactly the people to talk to.If not, I'll just be sending mails and calls all over the place and hope to wake up the right people. But everything is more fun if we do it together ;)Sincerely yours,Bernd--Bernd FiedlerProjektmanager Politik
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