Concept of Broadcasting in the Legal Context
The term “broadcasting” (“Ausstrahlung”) has different meanings in German law and is relevant in various fields and areas of law. The following presentation provides a comprehensive overview of the forms broadcasting takes in law, particularly with regard to copyright, media law, labor law, social security law, and European law.
Broadcasting in Copyright and Media Law
Broadcasting as Public Communication
In copyright law, “broadcasting” primarily refers to the public communication of works, for example via radio, television, web radio, or streaming. Broadcasting includes any transmission of protected content to the public by technical means.
Legal Requirements and Consequences
For the broadcasting of works protected by copyright, an appropriate exploitation permit from the rights holders is generally required (§ 15 UrhG). Without such permission, it constitutes an infringement that may give rise to claims for injunctive relief and damages. In particular, the repeated broadcasting of the same work (e.g., via media libraries or on-demand services) is relevant under copyright law and must be licensed separately.
Distinction: Transmission, Retrieval, and Broadcasting
The terms broadcasting, transmission, and broadcasting (“Sendung”) are sometimes used synonymously in media law but should be legally distinguished. Broadcasting refers to a form of public communication, whereas a broadcast requires the input of content into a broadcasting or communication service.
Broadcasting in the International Context
Principle of Territoriality and the ‘Broadcast Spillover Effect’
The principle of territoriality dictates that the protection of intellectual property rights is generally limited to the territory for which the right was obtained. However, technological developments (e.g., satellite television, internet) allow media services to be broadcast across national borders. This leads to the so-called ‘broadcast spillover effects’, that is, the impact of a broadcast in one country on another country and vice versa.
International Regulations and Conflict of Laws
International law, especially private international law and intellectual property law, contains special provisions for determining the applicable law in cases of cross-border broadcasting. Relevant agreements include, for example, the Rome II Regulation, the Revised Berne Convention (RBC), and the Directive on Satellite Broadcasting and Cable Retransmission (SatCab Directive). The applicable law is usually determined by the place of first broadcast or, depending on the reach of the signal, by a ‘fallback provision’.
Broadcasting in Labor and Social Law
Broadcasting Principle in Social Security Law
In the area of social security, the term ‘broadcasting’ (Ausstrahlung) serves as a technical term: According to the so-called broadcasting principle, German social security law remains applicable when employees are temporarily posted abroad under certain conditions (§ 4 SGB IV). This is particularly relevant when an employment relationship with a domestic employer is temporarily moved abroad.
Requirements for Broadcasting under the Social Code
Broadcasting as defined in § 4 SGB IV exists when
- the employment relationship exists with an employer domiciled in Germany,
- the posting is to a country with which there is no bilateral or supranational social security agreement,
- and the expected duration of employment abroad does not exceed the statutory limit (usually 24 months).
The legal consequence: the entire social security coverage (pension, health, unemployment, and accident insurance) remains – regardless of the temporary employment abroad – subject to German law. The aim is to maintain uniform social protection for posted employees.
Distinction from ‘Einstrahlung’
Analogously, ‘Einstrahlung’ exists as the counterpart, when employment relationships are temporarily transferred from abroad to Germany.
Broadcasting in Constitutional and European Law
Radiating Effect of Fundamental Rights
In constitutional law, ‘broadcasting’ describes the effect that fundamental rights and other constitutional norms can have on ordinary statutes and on private law. Thus, fundamental rights do not only protect against public authority but also have an indirect third-party effect in relation to private individuals.
Practical Significance
This radiating effect gains particular importance, for example in labor and civil law. Courts, when interpreting and applying the laws, are required to consider the value judgments of the fundamental rights, for instance in the protection of personality or in prohibitions of discrimination.
Radiating Effect of Principles under European Law
Union law also recognizes the concept of broadcasting, for example when fundamental freedoms or prohibitions of discrimination affect domestic circumstances, requiring national courts to consider European law principles in their decisions.
Significance of Broadcasting in Specific Legal Areas
Broadcast Law
In broadcast law, broadcasting means the technical transmission of broadcast programs via terrestrial transmitters, cable networks, or satellites. It is often subject to licensing; relevant regulations include the Interstate Broadcasting Treaty (RStV) and the State Media Treaty (MStV).
Telecommunications Law
In telecommunications law, broadcasting refers to the transmission of signals via various technical carriers. Regulation is carried out by the Telecommunications Act (TKG) and related directives.
Conclusion
The legal concept of broadcasting is used in a versatile way and is highly relevant across different legal fields. Depending on the context, broadcasting may describe the technical transmission of media content, international conflict of laws rules, the effects of legal norms, or social security principles. What is always crucial is its precise legal classification and distinction with respect to each norm and the interests involved. A profound understanding of the particular legal interpretation of the term is essential for its proper application and understanding.
Frequently Asked Questions
What legal framework applies to the broadcasting of television and radio programs in Germany?
In Germany, the broadcasting of television and radio programs is subject to a wide range of legal provisions, deriving in particular from the State Media Treaty (MStV), the Interstate Broadcasting Treaty (RStV), and the relevant State Media Laws. As a rule, broadcasters of radio and television programs require a license (broadcast license) from the competent State Media Authority. For nationwide programs, the State Media Authority of the state where the company is based is typically responsible. Licensing requirements include, among others, the reliability of the broadcaster, financial stability, safeguarding diversity of opinion, and protection from concentration in the media sector. In addition, public broadcasters are required by special rules, such as the Interstate Broadcasting Treaty and special broadcasting laws at the federal and state level, to guarantee transparency, program diversity, and political independence. Other regulations, such as the Youth Media Protection Treaty and copyright law, also play a central role.
What is the copyright situation regarding the broadcasting of content?
The broadcasting of content on television and radio is always subject to compliance with copyright law, particularly the Copyright Act (UrhG). Anyone wanting to broadcast works such as films, music, texts, or other protected content usually needs the express permission (license) of the respective rights holders. Broadcasting companies typically enter into contracts with collecting societies such as GEMA (for music), VG Wort (for texts), or VG Bild-Kunst (for visual works). Unauthorized broadcasting regularly constitutes a copyright infringement and can be met with claims for injunction, damages, and removal. Additionally, personality rights, data protection provisions, and related rights must also be observed, for instance with live transmissions or the broadcasting of interviews and reports.
What youth protection requirements must be observed in broadcasting?
Youth protection is of particular importance in the broadcasting of content. The Youth Media Protection Treaty (JMStV) sets binding rules regarding times of transmission, age ratings (FSK, USK), and the protection from content harmful to or unsuitable for the development of children and young people. Certain content—such as that involving violence or sexuality—may only be broadcast at certain times (e.g., violent content typically only after 10 p.m.). Broadcasters must adhere to the statutory age restrictions and ensure that children and young people are adequately protected. Violations of youth protection rules can result in substantial fines or even the withdrawal of the broadcast license.
What role do license agreements and syndication play in international broadcasting?
In the international context, the broadcasting of programs is additionally governed by license agreements and syndication rights, as copyright is bound to national law and foreign content cannot simply be broadcast in Germany (and vice versa). Rights holders provide program content to other broadcasters for a fee, often with limitations as to time, territory, or content. Such agreements govern not only the permission to broadcast, but also editing rights, translations, secondary uses, and format adaptations. International coordination of these legal issues is primarily achieved through multilateral agreements such as the Berne Convention or the WIPO Treaty, as well as through national laws on international enforcement of rights.
What should be considered concerning licensing and supervision of private broadcast operators?
Under German media law, private broadcast operators must obtain a license, which is issued by the relevant State Media Authority. In the licensing process, not only ownership structure and financial conditions are checked, but especially compliance with minimum program requirements (such as respect for diversity of opinion and independence), youth protection regulations, and advertising rules. After the license is granted, ongoing monitoring by the State Media Authorities takes place, for example through program observation and complaints procedures. Penalties for violations include fines, restrictions, or in extreme cases the withdrawal of the broadcasting license.
What restrictions apply to the broadcasting of advertising and sponsorship?
Specific legal restrictions apply to advertising and sponsorship in broadcasting, primarily for the protection of viewers and to ensure the independence of editorial content. According to the State Media Treaty and State Media Laws, advertising must not be misleading, discriminatory, or hazardous to health. There are particularly strict or even absolute bans on tobacco, alcohol, pharmaceutical, and political advertising. Moreover, advertising must be clearly distinguishable from editorial programming and labeled as such. Sponsorship contributions are permitted if the sponsor does not influence the content or manner of presentation of the program and is appropriately named. Violations can result in sanctions by the State Media Authorities.
