Legal aspects of digital entertainment: VoD, UGC and Catch-up TV

Introduction: The legal nature of interactive accessibility

In the digital era, the way audiences engage with visual productions has undergone radical change, and an interactive approach to making them accessible to the public is taking centre stage. Under the Law on Copyright and Related Rights, this constitutes a specific property right of the copyright holder. The Act defines it as making an audiovisual work available to the public by wire or wireless means in a manner which enables individuals access at a time and in a place individually chosen by them.

The key distinction from traditional broadcasting - when a media service provider delivers programs for simultaneous viewing according to a fixed schedule – lies in its individualisation and time flexibility. Audiences are no longer passive recipients of a signal; they become active participants who initiate thedistribution of content at a time that suits them. Although the legal definition is straightforward, in practice, three dominant business models have developed around this right, each with its own specific implications for licensing and fee collection.

Model I: Classic On-Demand Media Services

The first and most straightforward model is the traditional on-demand media service. Under the Law on Electronic Media, this is defined as a service provided by a media provider that allows users to watch programs at a time of their choosing, upon request, from a catalogue curated and organised by the provider itself. 

Global giants such as Netflix, Amazon Prime, and HBO exemplify this model. Here, the provider retains full editorial control: it decides which content enters the catalogue and hosts it on its own servers.

Exercise of Rights:

In the case of film production, rights are typically exercised on an individual basis. This is mostly practical - producers of high-budget films, with clearly established chains of title, can negotiate directly with platforms. Contracts are concluded individually, often with strict clauses on territorial scope and duration of availability. Because the number of parties involved is relatively small and the economic value of each work is high, collective management organisations are generally not necessary in this model.

Model II: Content exchange platforms (User-Generated Content - UGC)

The second model, the prototype of which is YouTube, has fundamentally changed the legal landscape. These platforms also provide access to content at a time and place chosen by the user, but the defining feature is that the content is created and uploaded by users rather than the platform itself.

This model has generated decades of legal uncertainty. The central dilemma is: who is responsible for the act of public communication (interactive availability)? Is it the user who uploads the video, or the platform that makes it accessible to millions? This ambiguity directly affected the holders of rights ability to control the use of their works, leading to a so-called “value gap” – platforms profiting from advertising on protected content while authors receive little or no compensation.

Legal challenge and liability:

Domestic law places the obligation to obtain permission before publishing on users. In practice, however, this is unrealistic. Millions of hours of content are uploaded daily, with no direct contact between authors and consumers. Often, users do not know who holds the rights, and authors only discover unauthorised use when detection algorithms flag their works.

(EU) Directive 2019/790 and leaving the “safe harbour”

In response to longstanding uncertainty, Directive 2019/790 on copyright in the Digital Single Market introduced a historic shift. Platform operators can no longer rely on the “safe harbour” defence, portraying themselves as neutral intermediaries. Instead, they are directly responsible for the content published by their users. Platforms must make every effort to obtain authorisation from rights holders, and if permission is not secured, they are obliged to prevent the work from being made available.

This reform significantly strengthens the position of authors, enabling them to negotiate with digital platforms from a position of greater leverage. Yet for the system to function effectively, rights must be exercised through collective management. Given the sheer scale of content and the impossibility of platforms negotiating with thousands of individual rights holders, collective management organisations have become indispensable. They provide the infrastructure for mass licensing and efficient fee collection, ensuring fair remuneration for authors in the digital ecosystem.

Model III: Catch-up TV

The third model is Catch-up TV, offered by cable and OTT operators. This service allows users to rewind and watch programs that have already aired on linear channels, typically within a seven-day window.

Although the content has already been broadcast, the operator is legally performing a new act of exploitation - interactive availability. This enables users to access specific copyrighted works embedded in television programming (such as a song in a music show or a film) at a time of their choosing.

Exercising rights through collective management

Unlike the VoD model (Netflix), rights cannot be exercised individually in Catch-up TV.

• Rights holders (producers, directors, screenwriters) have no visibility into when or on which of hundreds of channels their work is replayed.
• Operators lack the technical capacity to track every individual copyrighted work across the vast hours of recorded programming they distribute.

Because of this information asymmetry and the sheer volume of works involved, collective management is the only viable solution. Organisations such as UFUS AFA Protection (and their counterparts elsewhere) can conclude umbrella agreements with operators, collect flat fees, and distribute remuneration to authors based on broadcast logs. Collective management thus acts as a bridge, enabling operators to legally provide a popular service while ensuring authors are compensated for uses that would otherwise remain “under the radar” of individual control.

Conclusion

Making audiovisual work available to the public interactively is a unique right that manifests itself in three distinct economic models. While VoD services rely on individual contractual freedom, UGC platforms and Catch-up TV services necessitate collective management as the only workable framework for legal compliance and efficient licensing. Recognising these differences is essential for rights holders seeking to safeguard their intellectual capital in a digital age.