Campaign Report - European Media - EU rules around the corner - Stephen Groom examines the range of draft EU documents on telecoms and media which, once they have been finalised, will impact on the switch from analogue to digital TV, media ownership and c

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.

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. summarises the 3,000 pages of

comments received from the 274 parties who responded to the December ’97

Green Paper.

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

tampered with.

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

were electronic.

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.


- 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.

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