When the European Commission’s Green Paper on Convergence hit the
streets in December last year, telecoms and media regulation-watchers
may have been disappointed.
For months the mandarins within the five Directorate Generals with
fingers in the convergence pie had been wrestling with the two core
convergence regulation issues (as well as with each other).
First, there was the question of whether more competition legislation
was needed to curb concentrations of media ownership. Second, there was
content and what further rules, if any, should be introduced to protect
commerce, consumers, cultural values and children, not to mention legal
rights such as copyright.
Alas, the Green Paper contained no clear proposals on either question,
but it did contain encouraging noises about the undesirability of
rushing in new legislation without checking that existing regimes
weren’t perfectly adequate.
But what about the overarching question of a date for analogue
switch-off? In April, the Commission President, Jacques Santer, was
advocating a quick switch-off as a spur to better EU competitiveness.
The latest indications, however, are less decisive. The Working Document
(available on http.//www. ispo.cec.be) summarises the 3,000 pages of
comments received from the 274 parties who responded to the December ’97
The document reports a not unpredictable split of opinion between a
laissez-faire, market-led transition, without government or EU-level
regulation, and those feeling that a switch-off set at national level
would stimulate the development of digital broadcasting. Only in the
last few days, our own ITC slipped a note to the Government indicating
UK compulsory analogue switch-off would be inadvisable inside the next
20 years. This is a slight contrast to the US position, where the
Government has come out clearly with a 2006 switch-off. Will the EU’s
on-the-fence position be the same when the Commission finally produces
convergence policy proposals towards the end of 1998? My prediction is
support for nationally imposed switch-offs.
In the meantime, there are specific issues which will not wait for the
outcome of these EU grand designs. Copyright owners and users are
pressing to know where they stand in a communications landscape which
offers hugely increased potential for making valuable intellectual
property freely available (eg easy downloading of a whole day’s or
week’s TV schedule).
And with the time only just around the corner when direct response means
clicking an icon in the TV ad to go straight into the advertiser’s
website for an online purchase, e-commerce players want reassurance on
how to take the ’con’ out of convergence by way of clear transnational
rules on internet/interactive security and encryption. Added to which,
consumer organisations want comfort on collection and use of personal
What do the regulators have to say about these issues? Germany has
already introduced digital signature legislation creating a legally
recognised process whereby advertisers receiving data, including
purchase orders, can confirm the source and check it has not been
Following Germany’s lead, the European Commission has just adopted a
draft directive setting up a common framework for the legal recognition
of electronic signatures to apply across Europe. Electronic signature
certificates would be at the core of the new regime, with business doers
prohibited from discriminating against signatures merely because they
Our own Government is on the case too, with proposals recently published
for a Secure Electronic Commerce Bill and a six-month pilot operation
launched in collaboration with Barclays Bank and others, including
Microsoft, using smart technology. With a fair wind, real progress will
have been made here within the next 12 months.
With the EU directive-driven Data Protection Act due for implementation
early in the new year, the personal data aspect is under control -
subject, of course, to the massive gulf between EU and US personal data
protection rules and the threat this presents, considering that the
internet is still very much a US-dominated medium. The Distance Selling
Directive, due for implementation here soon and already the subject of a
Government consultation paper, will also give greater consumer
protection for online purchasers by introducing cooling off periods and
other protective measures.
But what of copyright? In December last year the EU issued a draft
directive ’on the harmonisation of certain aspects of copyright and
related rights in the information society’. This contains five key
proposals (see box), all designed to update tired wording in EU states’
copyright statutes and relieve us poor lawyers of the remunerative task
of squeezing digital piracy into analogue definitions of infringement.
The suggestions have been criticised across the board, but constructive
cynics have commented that a draft that has induced equal condemnation
from all sides has probably got the balance about right, and it remains
to be seen how the final directive shapes up.
Finally, what has the EU to say about media ownership concentration? The
short answer is that all efforts until now to introduce
new-media-specific rules to sit on top of the existing Treaty of Rome
Articles 85 and 86 (controlling agreements or practices preventing,
restricting or distorting competition within the EU and abuse of
dominant position) have failed dismally. After British Interactive
Broadcasting’s long wait for EU approval of its joint venture between
BSkyB, BT, Midland Bank and Matsushita, and the travails of Kirch and
Bertelsmann with the Commission over their digital TV venture in
Germany, some might say that the existing rules are tight enough.
For the future, the Green Paper Working Document reports loud calls from
within the telecom and IT sectors for ’a lighter touch’ - bearing in
mind the increasing competition that will inevitably flow from the EU
legislation that is already breaking up Europe’s remaining telecoms
Broadcasters, however, seem to have put forward less coherent and
forceful views, although the following issues were among the divergent -
as opposed to convergent - messages clearly received: access to set-top
boxes, protection of the very large investments needed at a time of
uncertain demand for new-media services and the rigorous application of
competition rules to the commercial activities of public broadcasters
and discriminatory behaviour by existing network operators.
Again, time will tell whether the previously sidelined EU directive on
media ownership will rise from the ashes, but there has to be
considerable force in the arguments for allowing greater ’convergence’
of broadcast media owners, arguments which are already seeing a
loosening of the rules affecting UK networks.
THE FIVE KEY COPYRIGHT PROPOSALS
- Broadcast media owners, performers, producers of recorded music and
films, and now authors, to have the exclusive right to authorise or
prohibit permanent or temporary copying, such as in the working memory
of the computer, whether on- or off-line
- A new right of ’communication to the public’ for authors and
performers, giving them control of their work - when it is being
accessed through digital on-demand services or offered on publicly
accessible websites - before the consumer even inputs any particular
- A new ’distribution right’ making it clear that, once tangible works
such as books, CDs or tapes are sold in the EU, the author has no
further control over their onward sale
- Standardising what will not be regarded as copyright infringement eg
cache copies dictated by technology and with no independent economic
significance and - less helpfully from the point of view of achieving a
level playing- and policing field across Europe - entitling rather than
obliging member states to make other exceptions for the likes of home
copying and copying by libraries, as well as areas including criticism
and review which are presently covered by the UK’s ’fair dealing’
- Obliging all member states to outlaw devices designed to stymie
software which would otherwise thwart copiers.