Ukraine’s Integration into European Information Space
Ukraine ratified the European Convention on Transfrontier Television on 17 December 2008.
This event allowed Ukraine to fully integrate itself into European Information Space. Under the Convention Ukraine guaranteed freedom of reception and transmission of all program services that conform to the Convention’s requirements.
From 1 July 2009 any broadcaster coming from a jurisdiction that is a signatory to the mentioned Convention is entitled to freely transmit its programs on the territory of Ukraine.
Ukraine also ratified the European Charter for Regional and Minority Languages. In Ukraine the Charter applies to the following languages: Byelorussian, Bulgarian, Gagauz, Greek, Jewish, Crimea — Tatar, Romanian, Moldavian, German, Polish, Russian, Slovak, and Hungarian.
With regard to the aforementioned languages Ukraine undertook an obligation to allow free reception of broadcasts in these languages or languages similar to those from neighboring countries as well as not to obstruct the transmission of these TV or radio broadcasts in these languages from neighboring countries.
Certainly even before the Convention had been ratified, the Ukrainian public had access to foreign programs broadcast or transmitted via satellite under the condition of no violation of copyright or neighboring rights.
The broadcasting organization was not required to register a representative office or a subsidiary company in Ukraine. Nonetheless, rebroadcasting of programs via multi-channel telecommunication network is only allowed for so-called program service providers — companies incorporated in Ukraine.
The major regulation in this area is the On TV and Radio Broadcasting Act of Ukraine.
Rebroadcasting of programs under that Act is only allowed for licensed broadcasting companies or program service providers incorporated in Ukraine.
According to Ukrainian legislation foreign companies and individuals, as well as stateless individuals are not permitted to be corporate rights holders in Ukrainian broadcasting companies.
However, according to Ukrainian legislation foreign companies and individuals, as well as stateless individuals are not permitted to be corporate rights holders in Ukrainian broadcasting companies.
There are no such restrictions when it comes to program service providers.
A program service provider is a licensed company incorporated in Ukraine that provides its subscribers (clients) an access to programs on a basis of an agreement with the use of the multi-channel telecommunication networks.
The rebroadcasting of radio and TV programs is carried out on the basis of a license issued by the National Television and Radio Broadcasting Council of Ukraine. In order to obtain such a license a company must submit all relevant contracts with broadcasting companies allowing for rebroadcasting of their programs.
Under the Copyright regulations of Ukraine the economic rights of a broadcasting company can be passed to another person under an agreement, indicating the ways that a program is to be used, the term of use, fee, territory that the mentioned rights cover.
Ukraine is a party to the International Copyright Convention (1952) and to the Rome Convention on Protection of Performers’, Phonograms Producers’ and Broadcasters’ rights, which guarantees sufficient protection of respective rights.
It is also necessary to take into consideration the coming into force of Cabinet of Ministers of Ukraine Resolution No. 450. Under the latter a program service provider is required not to only pay a fee to the broadcaster but also 5% of total profits received for rebroadcasting to a collecting society.
One program service provider has initiated proceedings in the Kiev District Court to annul the mentioned Resolution. However, no decision has yet been issued.
The claim was prepared and the legal support in the proceedings is provided by the Golovan and Partners law firm.
Another issue worth mentioning here is that a company resident in Ukraine intending to rebroadcast a program the owner of which does not fall under the jurisdiction of the EU or of a country-signatory to the Convention is required to adapt the content of the program to the requirements of Ukrainian regulations.
The adaptation procedure is not laid out in any of the regulations. The National Television and Radio Broadcasting Council of Ukraine attempted to make up for this omission by stipulating that a program is adapted if it fits the requirements of the On TV and Radio Broadcasting Act of Ukraine, On Public Morality Protection Act of Ukraine, On Advertising Act of Ukraine, On Copyright and Neighboring Rights Act of Ukraine.
Unfortunately, the attempts of the National Television and Radio Broadcasting Council in this sphere have failed. The problem is that rebroadcasting itself implies unchanged and simultaneous reception and transmission of a program to third parties. A program service provider cannot in any way alter, that is, “adapt”, the content of a program that it rebroadcasts.
Hence at this point there are no adequate legal regulations regarding adaptation of programs in Ukraine.
Some broadcasters falling outside the scope of the Convention’s application now simply create separate modified versions of their programs to fit the requirements of Ukrainian authorities in order to get permission to transmit to the territory of Ukraine.
There is also a list of foreign programs approved by the National Television and Radio Broadcasting Council of Ukraine for rebroadcasting or broadcasting on the territory of Ukraine.
The list is contained in National Television and Radio Broadcasting Council’s Resolutions No.652 (2 April 2008) and No.2347 (23 December 2008).
There is no doubt that within the framework of the Convention these Resolutions are unlawful. Nonetheless, the reality is that the National Television and Radio Broadcasting Council still applies them.
In case of rebroadcasting of programs that are not on the list, programs service providers are subject to sanctions up to license annulment.
It is advisable for broadcasting companies to take the abovementioned facts into consideration if transmission on the territory of Ukraine is planned.
The Golovan and Partners law firm launched a suit against one of the controversial Resolutions mentioned above. As a result the Kiev District Administrative Court declared the Resolution 2347 annulled.
Despite the obstacle posed by the National Television and Radio Broadcasting Council the number of satellite TV users increased by 200% and is now 2.5 million, while the number of cable TV users rose by 7% to 5.5 million.
Despite the world financial crisis the pay TV services market has grown and become even more attractive. The growth of the High Definition TV market is particularly evident, as is that of IPTV, DTH segments and TV signal broadcast via the networks of mobile operators.
According to the National Statistics Bureau the profits of cable operators grew by 33% in the first 9 months of 2009 compared to the same period in 2008.
This market’s investment attractiveness is further increased by the fact that cable operators are Internet access providers as well.
This market is regulated primarily by the On Telecommunications Act of Ukraine. Under the latter no licenses or permits are required for Internet access providers.