THE FLASH REGULATION: ACQUIRE PERMISSION FIRST

The flash regulation: acquire permission first A claim based on the flash regulation is practically only useful when you have permission from the copyright owner of the footage to be broadcasted. As from December 2009 the “flash regulation” is in force. The flash regulation enables broadcasting services to receive footage from important events from other broadcasting services who acquired the exclusive rights with regard to these important events. Eredivisie Media & Marketing manages the media and sponsor rights of the Dutch premier league clubs. In this context it operates, amongst others, the television channel “Eredivisie Live” which broadcasts live premier league matches. Eredivisie Media & Marketing may be considered as a broadcast service. The Netherlands Broadcasting Corporation (NOS) owns the exclusive rights to broadcast recapitulations of the premier league matches. The copy and neighbouring rights of the reports of the premier league matches belong to the premier league (home) club (represented by Eredivisie Media & Marketing). Based on the flash regulation ROOS, the representative of the regional public broadcasters, asked Eredivisie Media & Marketing to provide them with footage of the premier league matches. The regional broadcaster wants to use short fragments of the matches in their news programme. However, Eredivisie Media & Marketing does not want to provide this footage. According to her, ROOS must have permission from the copyright owner of the footage to actually broadcast the footage and ROOS does not have this permission. Since ROOS may also not put forward a plea against the requirement to obtain permission (such as the right to quote), Eredivisie Media & Marketing does not see the importance of providing this footage. ROOS is not able to broadcast the footage without permission of the copyright owner anyway. The court (as for now) agrees with Eredivisie Media & Marketing. To actually broadcast the footage the regional broadcaster first needs permission from the copyright owner of the footage, in this case the premier league (home) clubs. The flash regulation only gives access to the footage but does not also include a right to use the footage. However, according to the court the flash regulation is not useless. The added value of this regulation lies in the choice and quality of the footage: as soon as the broadcasting services have acquired permission to broadcast footage of a certain event they are no longer dependant on the (often poor quality) footage they record from television or download from the internet. Based on the flash regulation they will be able to require the original footage. The broadcaster owning the exclusive rights of the important event is then obligated to provide the footage. But first you should acquire permission to broadcast the footage. Read the ruling

Eva den Ouden

Hoogenraad & Haak advocaten

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THE FLASH REGULATION: ACQUIRE PERMISSION FIRST