‘Must carry/must offer’ rules and copyright
Before issuing these new rules, the IFT considered the obligation foreseen in articles 6 and 7 of the Mexican Constitution, which establish that the state shall guarantee the right of access to communication and broadcasting services and telecommunications.
As a result of the approved regulations, open TV operators must allow cable and DTH satellite operators to broadcast signals free of charge and on a non-discriminatory basis, in the same geographical coverage area, including the same advertisements and quality of the original signal (must offer).
Additionally, cable and DTH satellite operators are obliged to broadcast simultaneously the open TV operators’ signal, free of charge and on a non-discriminatory basis (must carry). This broadcast must be made in the same geographical coverage area, including the same contents and advertisements, with the same original signal quality and without any change. Broadcasts must then include no additional cost to the contracted services used by subscribers and users of the cable and satellite services.
"Open TV operators must allow cable and DTH satellite operators to broadcast signals free of charge and on a non-discriminatory basis, in the same geographical coverage area."
In light of these new rules, it is necessary to review the rights regulated in the Mexican Federal Law on Copyright in connection with broadcasters and copyright owners. Among others: (i) the copyright owner may authorise or prohibit the transmission or re-transmission of its works; and (ii) broadcasters have the right to authorise or prohibit the retransmission of their signals.
Clarity for copyright owners
Notwithstanding the aforementioned, and in light of the recent amendments to the Mexican copyright law (July 2014), the rights of the broadcasters and copyright owners are limited to the obligations of ‘must offer/must carry’ stated in the Federal Telecommunications Law. However, such an exception is again limited to the rights of the copyright owners. Therefore the scope of the copyright owner’s rights regarding the new disposition on ‘must offer/must carry’ is not clear.
One of the problems of this lack of clarity relates to a right owner determining the transmission or retransmission of its works, because it can “deny” the obligation of the cable and DTH satellite operators to broadcast the open TV operators’ signal, considering that they are retransmitting its work.
Notwithstanding the above, we should consider that cable and DTH satellite operators are incorporating in their signal the open TV signal and not the works of any author or owner of any work; if so, cable and DTH satellite operators are just carriers of the original signal.
In the case of broadcasting rights it is important to mention that cable and DTH satellite operators are compelled to incorporate the open TV signal to their signal. Mexican copyright law establishes that any broadcaster has the right to allow or prohibit the retransmission of its signal. The law defines retransmission as the simultaneous emission by a broadcaster of an emission/signal of another broadcasting organisation.
Is this is a retransmission? According to Mexican copyright law, it is. However, the original open TV operators’ signal cannot be decoded or modified in any way. Then, this second operator is just a ‘carrier’ of the original signal. These carriers cannot negotiate or obtain any kind of profits from the producers of the contents—works—included in the original signal.
However, the rights of the broadcasters contained in the Mexican copyright law are limited in order to implement the obligations of ‘must offer/must carry’.
Mexican copyright law should be amended in order to regulate the specific rights of the aforementioned players in order to be able to co-exist with ‘must offer/must carry’ regulations. The rights of the copyright owners and broadcasters must be clear and in accordance with any other regulation or law.
The rationale of ‘must offer/must carry’ regulations is explained as a tool to preserve the right of free circulation of information and cultural diversity through access to the most important TV channels. The differentiating element in the competition between cable and DTH satellite operators and open TV operators cannot be the open signal, and the rights of one person or one corporation cannot be greater than the rights of the Mexican population.
Emilio Garate is an associate at Becerril, Coca & Becerril. He can be contacted at: egarate@bcb.com.mx
