AMO conducted an investigation related to the broadcasting of Czech TV stations in Slovakia

AMO has not detected the infringement of the Act on Protection of Competition. However, it does not perceive the possible termination of broadcasting of entire TV stations in Slovakia positively.

Based on several complaints, the Antimonopoly Office of the Slovak Republic (AMO) conducted an investigation into the distribution of television programme services in the territory of the Slovak Republic (SR), namely in connection with the distribution of broadcasts by Czech broadcasters. An investigation alone does not imply that the Act on Protection of Competition has been infringed; the investigation was aimed at determining whether there was a reason to initiate an administrative proceeding.

The complaints contained objections to restricting the content of broadcast/retransmission of certain Czech TV stations in the SR. The largest commercial broadcasters in the SR (Slovak broadcasters) addressed the request to Slovak retransmission operators (operators). As a part of the retransmission of broadcasts of certain Czech TV stations, they demanded from the operators to restrict the retransmission of specific titles (e. g. films and series) for which they have acquired exclusive license rights for the territory of the SR. It is important to emphasize that Slovak broadcasters did not request to restrict the retransmission of all Czech TV stations, nor of their entire broadcasts, the request concerned only a certain part of the broadcasts of some Czech TV stations. The broadcasters justified it by exclusive distribution or territorial exclusivity granted to them for the territory of the SR by the owners of rights or licenses for broadcast titles.

During the investigation, AMO requested the submission of documentation and information from Slovak broadcasters, the most important operators, associations bringing together operators, the Ministry of Culture of the SR and the Council for Media Services. Through its partner competition authorities (namely those in countries sharing the same official language and a common border), it also investigated the conditions of TV broadcast distribution in other EU Member States.

Slovak broadcasters justified the request to restrict the content of broadcasting/retransmission of certain Czech TV stations by saying that the broadcasting of specific titles on Czech TV stations in the territory of the SR would be an interference with their exclusive licensing rights. Taking into account the content of contractual relations of Slovak broadcasters and license owners, which AMO obtained during the investigation and also in view of publicly available information, from which certain doubts arise about the legitimacy of broadcasting some parts of TV programmes of affected Czech TV stations in the territory of the SR, AMO concluded that the essence of the request of Slovak broadcasters may be justified from the point of view of copyright protection, but only the competent court is authorized to make a valid decision in the given matter.

In this case, market participants can be divided into several levels. The first level are the owners of rights or licenses for broadcasted titles (i. e. foreign film studios or owners of licenses for specific broadcasted titles). They sell their rights to TV broadcasters (in this case to Slovak ones) for a fee. Subsequently, the broadcasters' TV stations are a part of the operators' offer.

The relationships are thus predetermined by the superior contractual relations between the broadcasters and the owners of the rights/licenses to the broadcasted titles (mentioned film studios or owners of licenses for specific broadcasted titles). The owners sell their rights to broadcasters by default, with a validity for the territory of a certain state, while these rights can be granted exclusively or non-exclusively. Exclusive distribution or territorial exclusivity determined by the territory of a state is not unique at all. From European competition jurisprudence it flows that the mere fact that the rights owner has granted a license with exclusivity for a certain territory for a certain period of time is not itself sufficient to state that such an agreement has an anti-competitive aim. However, contrary to competition rules, there could be other additional contractual obligations, the application of which would strengthen the granted exclusivity for a certain territory. But in this case AMO did not identify such additional contractual obligations.

The retransmission of broadcast of any broadcaster in the territory of a certain state should be settled for that territory in accordance with granted license rights. In practice, for example, the the original broadcaster creates a modified TV station, which does not include those titles for which it does not own the license rights for the given territory. In this case, the content of broadcast of original and modified TV station differ. Another solution, according to the findings of AMO, is that broadcasting rights are acquired separately for neighbouring member states as well. Thus, retransmission in the territory of neighbouring Member States does not take place without proper compliance with license rights for broadcasting/retransmission of the content.

The investigation showed that it is impossible to rule out a conflict between the license rights granted to Slovak broadcasters and the license rights granted to certain titles broadcasted on the affected Czech TV stations. However, only the competent court can decide on this issue.

Despite this, AMO does not perceive the possible en bloc termination of distribution of foreign (in this case, Czech) TV stations in the territory of the SR positively. It can result in the reduction of choice for the consumer/watcher, at least in terms of programmes that are not licensed for a certain territory (own children's programmes, news or entertainment programmes, etc.).

Terminating the entire broadcasting of a foreign TV station is not desirable and cannot be forced on operators. Shutting down a specific copyrighted work is a technical, legal and economic issue, and the termination of broadcasting en bloc due to copyright protection thus appears to be disproportionate and unjustified. The complete termination of distribution of a certain Czech TV station thus reduces the possibility of choice for the consumer, which AMO does not perceive positively. Since the subject of Slovak broadcasters' request was not the restriction of retransmission of entire broadcast of some Czech TV stations, but only of a certain part of them, AMO recommends that the operators consider other options than the complete shutdown of the entire TV station, while respecting the rules for the protection of copyright or licensing rights.

Based on the above stated, AMO did not detect the infringement of the Act on Protection of Competition and it came to the conclusion that there is currently no reason to continue the investigation or to open an administrative proceeding in the matter. However, AMO will continue to monitor the development in this area and, in a justified case, is ready to deal with the issue again.