Decree-Law no. 84/2005, of 28 April
Published in D.R. number 82 (Series I-A) of 28 April 2005
Presidência do Conselho de Ministros (Presidency of the Council of Ministers)
Paragraph 5 of article 8 of the Television Act - Law no. 32/2003, of 22 August, compels holders of exclusive rights for the transmission of any events to cede the respective signal to operators who carry out international broadcasts.
The mentioned legal provision has due regard to the public interest, put into effect by the guarantee of the right to information and the protection of linguistic and cultural links of Portuguese communities abroad, and aims also to promote Portuguese culture and language, with a particular relevance as regards Portuguese-speaking countries.
On the other hand, safeguarding the interests of holders of ceded rights, it is established that the setting of the retribution by the regulatory entity shall correspond to the market value of such rights, thus abandoning the former regime of administrative setting of maximum and minimum values.
The provision concerning the mandatory constitution of a deposit with the regulatory entity, intended to ensure a swift settlement of set retribution amounts, should be highlighted.
In case a plurality of operators seem interested in broadcasting a certain event at international level, the option of apportioning the acquisition price among all operators is maintained, thus favouring the international broadcasting of events.
The High Authority for the Mass Media was heard.
Pursuant to point a) of paragraph 1 of article 198 of the Constitution and under paragraph 5 of article 28 of Law no. 32/2003, of 22 August, the Government hereby decrees the following:
The present statutory instrument establishes the conditions for the cession of rights provided for in paragraph 5 of article 28 of Law no. 32/2003, of 22 August.
Cession of signal
Television operators, under the jurisdiction of the Portuguese State, who hold exclusive rights for the transmission of events which are considered to be of general public interest, pursuant to paragraph 4 of article 28 of Law no. 32/2003, of 22 August, are obliged to cede the respective signal, via live coverage or deferred coverage, if requested to do so, against payment of a retribution, to operators who carry out international broadcasts intended for Portuguese communities abroad or to Portuguese-speaking countries, for the restricted use thereof in such broadcasts.
Communication to the regulating entity
The acquirers of exclusive rights for television broadcasting are obliged to notify the regulatory entity of the respective acquisition, as well as of the main particulars of the contract, operators referred to in the last part of the preceding paragraph being ensured the right of access to such information.
1 - The notification referred to in the preceding paragraph shall be performed within forty eight hours from the acquisition of rights, or until the date of the event, where they have been acquired on the eve of or two days before the event takes place.
2 - In the case provided for in the final part of the preceding paragraph, operators who carry out international broadcasts shall be likewise notified.
3 - The acquisition of exclusive rights for television broadcasting prior to the entry into force of the present statutory instrument shall be notified within 15 days from that date.
Criterion to determine retribution
The cession of signal and of rights inherent thereto shall be retributed according to the respective market value.
Television operators who wish to exercise the right regulated under this statutory instrument shall present to the holder of the exclusive right a proposal with the date and hour planned for the broadcast, as well as the retribution proposed for the cession of the right.
Intervention of the regulatory entity
1 - In the absence of an agreement, any of the interested parties may request the arbitration of the regulatory entity, within at the least 15 days ahead of the date planned for the primary broadcast of the event, via live coverage or deferred coverage.
2 - The regulatory entity may request of the parties all particulars deemed necessary to regulate the exercise of the arbitration, the issued decision having a binding nature.
3 - The request for arbitration, submitted to the regulatory entity, shall attach a deposit, the amount of which shall be calculated pursuant to article 9, with the regulatory entity, otherwise the request shall be rejected.
Exercise of the right to broadcast
1 - Where the notification of the acquisition of exclusive rights referred to in the preceding article 2 is made within 20 days ahead of the date of the event, the television operators interested in the international broadcast may exercise their right, even where an agreement on the retribution amount has not has not been reached with the holder of the exclusive rights.
2 - The right referred to in the preceding paragraph may only be exercised where the television operator has carried out the deposit referred to in paragraph 3 of the preceding article up to the eve of the day the event is to take place.
3 - The exercise of the right provided for in paragraph 1 triggers the arbitration process described in the preceding article.
1 - In events the deferred coverage of which affects in a significant way the respective interest, namely as far as sports are concerned, the deposit to be made shall refer to the following amounts:
a) (euro) 365 per minute, concerning a live broadcast;
b) 50% of the amount established in the preceding paragraph, where the deferred coverage is broadcast within twenty four hours after the event has finished;
c) 10% of the amount referred to in point a), where the deferred coverage is broadcast after twenty four hours have elapsed from the end of the event.
2 - In events, namely of a social or cultural nature, the interest in which is not significantly affected by a deferred broadcast, having regard to criteria of timeliness and informative relevance, the deposit shall correspond to 20% of the respective acquisition price.
Decision of the regulatory entity
Following the notification of the arbitral decision, the holder of the exclusive rights may draw the fixed amount.
1 - In case the set amount is in excess of the value deposited, the owner of the exclusive rights benefits from the additional deposit which is to take place, according to the decision of the regulatory authority.
2 - The additional deposit referred to in the preceding paragraph shall be carried out by the television operator within five days from the notification of the arbitral decision issued by the regulatory entity.
Reimbursement of the amount deposited
Where the arbitrated amount is lower than the deposited amount, the depositor is entitled to the reimbursement of the difference, being notified for this purpose by the regulatory entity.
Plurality of operators interested in the international broadcast
1 - In case the exclusive rights for the television broadcast have been previously acquired by an operator who carries out international broadcasts, under article 1, and other operators wish to exercise the same right, the amount paid by the first acquirer shall be apportioned among those who come to acquire them.
2 - Where the events referred to in article 9 are concerned, the operators who wish to benefit from the apportionment provided for in the preceding paragraph shall carry out the television broadcast within the same time parameters as the first acquirers.
3 - The operator who wishes to trigger the mechanism provided for in paragraph 1 shall carry out the deposit with the regulatory entity of the due proportional amount.
4 - The first acquirers may draw the amounts paid in excess following the determination of the amounts to be paid by each.
Signal cession costs
The technical costs resulting from the signal provision shall be borne by the beneficiary operator.
Application to cessions of broadcasts on national territory
The provisions of the preceding article shall apply, duly adapted, to the cession of rights pursuant to paragraph 2 of article 28 of Law no. 32/2003 of 22 August.
1- Non-compliance with the provisions of articles 3 and 4 herein constitute breach liable to a fine from (euro) 500 to (euro) 44800.
2 - Negligence shall be punishable, in which case the fine amount shall be reduced by half.
Processing and application
The processing and application of fines provided for in the preceding article are incumbent upon the regulatory entity.
For the purposes of the present statutory instrument, the regulatory entity is deemed to be the High Authority for the Mass Media.
Checked and approved at the Council of Ministers of 2 February 2005. - Pedro Miguel de Santana Lopes - Nuno Albuquerque Morais Sarmento - António Victor Martins Monteiro - José Pedro Aguiar Branco.
Promulgated on 9 April 2005.
Let it be published.
The President of the Republic, JORGE SAMPAIO.
Counter-signed on 18 April 2005.
The Prime Minister, José Sócrates Carvalho Pinto de Sousa.
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