Can I get a licence in one country that will cover music included in multi-territory distribution of VOD services?

Although the digital technologies that make these services available are “without borders”, communication to the public/making available rights are generally licensed on a territorial basis.

That is not a direct result of laws (local or otherwise) but rather the way in which the collecting societies administer these rights.

Collecting societies work together on the basis of a network of reciprocal (sometimes called ‘bilateral’) agreements. These allow each collecting society to grant to licensees the rights to ‘global repertoire’ in their respective territories (i.e. not just their own repertoires but also the repertoires of their counterparts from around the world). Due to the nature of these reciprocal arrangements, rights in both local and international repertoire have to be cleared with the applicable local collecting society(ies) in each territory. In effect, collecting societies have given up the right to license their repertoire for restricted acts that take place outside the country they operate in.

So, where do the acts of communication to the public/making available take place where VOD services are distributed on a multi-territorial basis?

The answer is in each country in which end users access those VOD services. As a result, the relevant licences have to be obtained from the appropriate collecting society in each territory where that access occurs.

This country-by-country licensing regime may seem an imperfect solution from a business point of view but, at least, it delivers a level of certainty (from a risk perspective) which may not exist if these rights were licensed directly from the original rights holders. Direct licensing from original rights holders is a more fragmented process carrying with it the risk that not all repertoire use is covered off.

There is nothing in theory that would prevent collecting societies changing the way they do business by allowing a single collecting society to seek mandates from its counterparts that would enable them to grant multi-territorial VOD rights in a ‘one-stop’ licence. Although this would reduce the number of licensing points, it would also increase the chances of creating a licensing ‘super monopoly’ and that would certainly not be desirable for the licensee. In any event, there appears to be little incentive amongst collecting societies themselves for them to work in this way, so the country-by-country licensing regime is here with us to stay for the foreseeable future.