YouTube channel as a VOD service – notification obligation and other requirements under the Broadcasting Act.

The National Broadcasting Council has issued a communiqué reminding of the obligation to apply for an entry on the list kept by the Chairman of the National Broadcasting Council. The communiqué also confirms that – upon fulfilling certain prerequisites – the obligation to notify, and consequently other obligations incumbent on VOD providers, also covers entities operating professional channels on video sharing portals, including the popular YouTube platform.

Until now, many persons operating their channels on video sharing platforms disregarded their obligations under the Act of 29 December 1992 on radio and television. This resulted, inter alia, from the passivity of the National Broadcasting Council, which so far has not enforced compliance of such persons with the provisions of the Act with regard to on-demand audiovisual media services (i.e. VOD services). Until recently, there was also no obligation to be entered on the list of entities providing VOD services, so any actions of the National Council in this respect were hindered.

The obligation to apply for entry on the list of VOD providers was introduced by the latest amendment to the Broadcasting Act, which came into force on 1 November 2021. Although the amendments did not concern the scope of the on-demand audiovisual media service itself, the National Council made it clear that the scope of the definition of a VOD service also includes channels carried on video sharing platforms.

According to the Act, an on-demand audiovisual media service is a service

• provided within the framework of economic activity conducted in this respect;
• consisting in making audiovisual programmes available to the public on the basis of a catalogue;
• whose catalogue is established by the entity providing the service.

This means that if a channel on a video sharing platform is made available in the course of a business activity in this respect (which is often the case for influencers or producers), it should meet all the requirements of the Act on the National Broadcasting Council. This is particularly important in the case of channels with a high degree of organisation, commercial character and large reach.

The deadline for notification for inclusion in the lists for entities providing on-demand audiovisual media services (VOD providers) and video sharing platform providers that were in operation on 1 November 2021 is 1 February 2022. For entities that are yet to commence operations, the notification must be made no later than 14 days before the date on which the provision of VOD services or the provision of a video sharing platform commences.

This notification is only of a formal nature – obtaining an entry does not condition the ability to provide VOD content, but in the absence of notification, the National Council will be able to impose a fine of up to twenty times the average monthly remuneration in the enterprise sector.

It should be remembered that, in addition to the obligation to obtain a listing, the operation of a VOD service involves a number of other restrictions and obligations, including those relating to the submission of an annual financial report to the National Council, restrictions and labelling of commercial communications, protection of consumers, minors and facilities for the disabled.

We have written about the recent changes to the requirements for VOD services, among others, in the article: “New obligations for video content providers starting in November!” (https://server953774.nazwa.pl/wordpress/wpn_ipblog_test/pl/2021/11/nowe-obowiazki-dostawcow-tresci-wideo-juz-w-listopadzie/).

Authors:

Paweł Myrda – attorney at law. He specialises in intellectual property law, in particular copyright law, as well as protection of personal rights of natural persons and business entities. Provides ongoing legal services to film and television producers, in particular comprehensive legal services for film and television productions.

Marlena Kudła – trainee at LSW Leśnodorski Ślusarek and Partners.