• Recently Written

  • Coming up: ECJ to give judgment in C-280/08 P Deutsche Telekom on 14 October
  • “This is a strange abuse”*: advocate general Mazák on margin squeeze, once again
  • “in regard of causes now in hand”*: a midsummer roundup of ECJ cases
  • “a joint burden laid upon us all”*: advocate general on universal service financing
  • “Confusion now hath made his masterpiece!”* Advocate general reprimands Council and Commission

• Categories

  • communication technologies
  • competition/mergers/state aid
  • copyright
  • digital content
  • events / publications
  • fundamental rights
  • national regulatory authorities
  • public services
  • spectrum policy

• Archives

  • September 2010
  • August 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • July 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • February 2008
  • January 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007

• Blogroll/Links

  • antitrustlawblog
  • antitrustprof
  • e-comm (in German)
  • Electronic Communications Regulation Update
  • Eoin O'Dell
  • informationoverlord
  • lexferenda
  • Media Law Prof Blog
  • MediaPal @ LSE
  • Net Neutrality in Europe
  • Online Journal on International Constitutional Law
  • professor geradin
  • telemedicus (in German)
  • Virtual Law @ LSE

• RSS-Feed

  

  • Admin

    • Login
    • Wordpress

A great deal of crime

Posted on April 25, 2007 | Filed Under digital content

Today, april 25th the EP will vote on the proposal for a directive on criminal measures aimed at ensuring the enforcement of intellectual property rights. The new directive was drafted in response to the growing concerns about counterfeiting and piracy becoming an international phenomenon. Already 1998 the EC pointed out the possible repercussions at economic and social level as well as in terms of consumer protection, but only now the time for actual measures has come. In the eyes of the commission certain criminal provisions at member state level need to be harmonised to combat piracy effectively.
Read more

Out on the (numbering) range: decide first, ask questions later

Posted on April 24, 2007 | Filed Under communication technologies

Sometimes, telephony seems to be a numbers game, whether it’s tariffs (the recent report on Telecoms Price Developments from Teligen for the Commission is here) or simply the numbers we dial.

Although numbering may not be the hottest issue of the framework for electronic communication networks and services, some aspects of numbering are addressed in each of the directives: Read more

The Austrian Constitutional Broadcasting Act – time for a change …

Posted on April 20, 2007 | Filed Under public services

The Austrian constitution contains a provision concerning broadcasting – the “BVG Rundfunk”. The provision is, in particular for the subject it regulates, let’s say, a bit outfashioned. It was developed 1974. In short, it ensures the objectivity and independence of broadcasting, requires that broadcasting shall be governed by more detailed rules to be set out in a federal law and states (anything but clear) that broadcasting is a public task. Finally it also defines the subject matter it regulates – (as I couldn’t find an official English translation of it, I will try myself):

“broadcasting is the transmission of representations of all kinds, in words, tone or pictures by wire or fixed lines (interpreted freely by the author) as well as the operation of the technical equipment for these purposes.”

This really wide definition of broadcasting at constitutional level (!), which literally covers anything transmitted electronically in a point to multipoint way, is still in force, albeit technological innovations like webstreaming and mobile TV and new services like youtube and joost. This causes absurd results and for the Austrian execution lots of problems. For the time being we take it easy (for Austria not so unusual) and just ignore it. But we also realize: it’s time for a change. At the latest we will have to adapt this constitutional provision when the audiovisual media service directive will have to be transformed. And this will be soon.

That’s why this week an Austrian research institute on the law of electronic mass media (REM) organized a workshop to discuss some fundamental questions with regard to the future of the Austrian constitutional provision on broadcasting, one of the most fundamental to be: do we still need such a constitutional provision at all, in particular a definition of broadcasting at constitutional level? For what? Very diverse opinions were expressed, but in the end there seemed to be one common denominator: in the future it will be necessary to guarantee at least the concept of public service broadcasting at constitutional level. The question still open is: in which form? Is it necessary to guarantee by the constitution the institution of a public service broadcaster or just the service itself?

Market sharing in online music distribution? Commission sends SO to Apple and record labels

Posted on April 16, 2007 | Filed Under competition/mergers/state aid

It’s hard not to notice that music distribution has undergone severe changes in the last decades. Some of our readers (though probably not too many) may remember digging for hidden treasures in dimly lit record (i.e. vinyl!) stores. Worse even, it seems like my father’s generation couldn’t even benefit from regular sales outlets but needed to place orders with private individuals, importing hot music directly from the source, mostly England and the US. If you didn’t have a hip friend like that (I can’t help imagining these guys with tight leather jackets and whiskers), life must’ve been hard (ignorance saved many – I believe).

Those days are long gone and today’s youth downloads whatever it fancies from the internet. Of course, this is a blog about law and so we talk about legal downloading only. So if you think my dad’s friend, who brought back music from his trips to London and sold it in his one-bedroom apartment in Vienna (however legal that was…) is outdated, take a closer look at iTunes. You can buy a lot there – granted. But you can only buy it from your homecountry’s on-line store. Apple makes sure you’re not hopping national fences by way of checking where your credit card has been issued. It’s all part of a deal between Apple and mayor record companies aiming at territorial sales restrictions. Divide et impera. Rule price by dividing markets. Article 81 of the EC Treaty has been written to deal with issues like that and it’s high time the Commission did something about it. Last week, Europe’s Antitrust authority issued a statement of objections (SO) alleging a violation of Article 81 EC. Apple and the music companies now have two months to reply. I will comment on developments.

However, all one could’ve found on the other side of the national fence is a better deal (99 cents/song in Germany instead of 79 pence=1.2 Euro in Britain). This may be late justice for the fact that the Brits had all the good music readily available in the old days while fans behind the seven mountains needed to revert to obscure procurement practices (see above) but it doesn’t necessarily mean that all that more, better, or newer content would be available on another country’s iTunes online store. That is the common market. You can get everything everywhere in the EEA, and someday even at the same price.

Cases to watch out for: the regulatory framework and the ECJ

Posted on April 13, 2007 | Filed Under communication technologies

Five years ago - 24 April 2002 - the first four directives of the (then: new) regulatory framework for electronic communications networks and services were published in the Official Journal. And while the Commission is already busy reviewing this framework (and looking through the responses to the consultation), it has taken some time for the first cases which address issues of the regulatory framework to reach the European Court of Justice.

True, some of the “old cases” - dealing with the first “reform package” in telecommunications - may still provide guidance under the new framework, especially in areas where there has not been a fundamental change in the regulatory system. So for instance the decisions concerning directory services (C-109/03, KPN) or license and other fees (C-292/01, Albacom; C-250/02, Telecom Italia; C-392/04, i-21 Germany) will continue to be of interest, even though the directives interpreted by the ECJ are not in force in any more.

But the toughest questions of the new framework certainly are those concerning market analysis and regulatory obligations (”remedies”) - issues that are specific to the new framework and thus cannot be solved by looking at interpretations of outdated directives. Apart from the “non transposition”-cases, only two cases explicitly touching new framework-directives have been decided by the ECJ so far:

• The better-known case is the Mobistar-Case, C-438/04, concerning interconnection pricing related to mobile number portability, as referred to in Article 30 (2) of the Universal Service Directive (2002/22/EC); it also addresses the question of appeal and states that Article 4 of the Framework directive (2002/21/EC) requires that the body responsible for hearing an appeal must have at its disposal all necessary information, including if necessary, confidential information that the regulatory authority has taken into account.
• The second case was C-256/05, Telekom Austria (currently only available in German and French), concerning a request by the Austrian national regulatory authority for a preliminary ruling on the validity of a Commission decision to “veto” a proposed decision by the NRA in relation to market analysis under Article 7 of the Framework Directive (I will return to that issue in a later post). The Court found that there was no dispute, and that the NRA had - “of its own initiative” - just asked a question to the Commission. I take it that this is not exactly how the Commission would describe the “Article 7″-procedures.

As of now, interesting cases concerning the new framework for electronic communications networks and services pending at the ECJ include:

• C-64/06, Ceský Telecom: a reference for a preliminary ruling by a court of first instance in Prague; as the Advocate General states in his opinion (not yet available in English) it is “um conjunto de questões de difícil articulação, que escondem um problema jurídico mais simples” (roughly translated: complicated questions, hiding a simple problem); it boils down to the issue of direct application of articles concerning market analysis and access in the Framework and the Access Directives.
• C-426/05, Tele2UTA (opinion of the Advocate General already published), and C-366/06, DNA Verkot, both touch the question of the right to appeal NRA-decisions in market analysis cases.
• Tricky questions relating to the use of SIM-gateways, covering the Framework, Access, and Authorisation Directives as well as the RTTE-Directive, are to be discussed in the Case C-190/06, Belgacom, where the Hearing before the ECJ’s Second Chamber is scheduled for 19 April.
• Finally, two cases originating in Germany (C-262/06, Deutsche Telekom, and C-453/06, 01051 Telecom) , adress important issues of the transitional regime.

We will keep you updated on this blog as the cases evolve.

Financial Review of Channel 4

Posted on April 12, 2007 | Filed Under digital content, public services

Ofcom published a report on Channel 4’s financial and operating perfomance. Channel 4 is one of the designated commercially funded public service broadcasters in the UK (besides ITV1, GMTV, Five, S4C and Teletext - BBC is exclusively funded by licence fees). It operates on a not-for-profit basis, financing its public service remit from the profits it earns in the commercial market, supported by a fixed share of the UK television advertising market sold through the ITV companies, and by gifted analogue and digital terrestrial spectrum. It’s the first time such an external review of Channel 4’s financial status has been carried out. It comes within the context of the general review of the UK Public Service Broadcasting sector by OFCOM started in 2004. The core conclusion of the report is that due to the changing digital market environment Channel 4 will face some serious pressures on its funding model which could limit its ability to deliver its public service remit up to the end of switchover and beyond. From this some essential issues arise with regard to the delivery of public service content in the future. Which funding models and regulatory interventions are necessary and appropriate to ensure public service broadcasting in the digital age? These are issues not only of relevance for Great Britain but throughout Europe, as in the majority of cases in Europe the financing of PSB is (at least partially) also based on the revenues from the commercial market. They will have to be considered in particular in light of the European Commission’s state aid policy on activities of public service broadcasters. OFCOM will carry out further examinations on this topic with regard to Channel 4 in the near future and issue a statement on what will happen next in early summer. We will report.

Joost - an audiovisual media service provider?

Posted on April 11, 2007 | Filed Under digital content

On the 29th of march the consolidated text of the new Audiovisual Service Directive was revealed and will now go into a second reading by the European Parliament and Council. Reason enough to test the directive’s scope on the new internet television service - joost. Joost is an upcoming (currently still in beta-status) comercial broadcasting service that provides free tv, a service as defined by Article 50 of the Treaty (See ECJ Sacchi, Case No. 155/73 [1974] ECR 428), but is it also a media service provider according to the Audiovisual Service Directive? When defining the role of the media service provider the question of editorial responsibility is essential. In terms of article 1 lit b of the proposed new directive a media service provider is the natural or legal person which has the editorial responsibility for the choice of the audiovisual content of the service and the way it is organized. Joost doesn’t produce the content it distributes, but acts as a global platform providing TV content of other content owners through the internet. It has recently closed a deal with a leading global entertainment company that will take over the role of joost’s key content partner when starting the service. Joost will be able to choose from a huge content-backcatalogue and organize the offer for its customers. But is this enough to meet the criteria of editorial responsibility? According to recital 17 of the amended commission proposal, editorial responsibility can already apply to sheer programme listing. In that case it is hard not to qualify joost as the holder of editorial responsibility and thereby as a media service provider, since it not only chooses special shows an films it wants to offer but also rearanges them in categories such as the “Alliance Atlantis Sci-Fi Channel”. Since the content distributed by joost was originally produced for classic television and now only becomes part of a digital catalogue available on-demand, it also matches the directive’s definiton for programme: “comparable to the form and content of television broadcasting.” It is joost’s principle purpose to provide such ‘programmes’ via a network according to Article 2(a) of the Directive 2002/21/EC - the internet - and inform, entertain or educate the general public. To sum up: joost can be qualified as a provider of audiovisual media services in terms of the new directive. Having the commission’s idea of a level playing field on the audiovisual media market in mind, this conclusion seems reasonable.
Read more on the consequences of this subsumption here soon!

E-books and E-content Conference

Posted on April 10, 2007 | Filed Under events / publications

E-books and E-content 2007

This one-day conference will bring together participants from all sectors and provide presentations from the library, publishing and systems communities to look at current practices in e-book delivery and how they might develop in the near future. Expert speakers will provide assessments of market trends and technologies and researchers will look at current evaluative studies on the take up of, and user reaction to, e-books and e-content generally.

8 May 2007
10.00 to 16.30
University College London

For more information CLICK HERE!

Regulating Content

Posted on April 10, 2007 | Filed Under events / publications

Holoubek/Damjanovic/Traimer
Regulating Content - The European Regulatory Framework for the Media and Related Creative Sectors

A complex network of regulatory systems has arisen around the provision of media in Europe. In this connection regulating content is a focal point, as content is not only of economic but of vital cultural importance. At Community level a wide variety of measures have been taken to promote this branch of industry, especially in fields in which new and innovative digital technologies are used to enhance the market potential of content and creative products and services. This important book focuses on regulatory interventions in the content industry under Community law. It offers an in-depth perspective on the functioning of the European legal framework for the content industry, its guiding principles, and its explicit and sometimes more fluid interface with policy areas falling largely into Member States competences. In this aspect, the book can also be read as an analysis of the impact of the cooperation between European and Member State regulation when economic as well as social, democratic, and cultural policy goals are at stake. Among the areas of content regulation covered are: legal definitions related to the content industry; branches of the content industry broken down according to content category and distribution system; the division of competences between the EC and the Member States in cultural affairs; Community projects relevant to the content industry; competition rules relating to distribution; market entry and access regulation in the electronic communication markets; specific regulation for such considerations as the protection of minors, protection of health, protection of consumers, and protection of personal rights; ensuring and safeguarding functioning market structures in the content markets; and, harmonization and coordination measures. The basis of this book was a research project commissioned by the Austrian Federal Chancellery in preparation for a seminar supported by the European Commission in connection with Austria’s Council Presidency in the first half of 2006. As a systematic overview and analysis of the legal bases of European content regulation, this book will be of extraordinary value to practitioners, policymakers, officials, and academics in the fields of media and communications law. Beyond that, the work sheds a clear and defining light on an area that has an important role to play in the future economic growth and the development of a competitive business environment in Europe.