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 The EPC Members' Newsletter

 

Legislative update 101 July/August - 2001

1. ELECTRONIC COMMERCE
1.1 Yahoo!'s challenge continues
1.2 Data Protection update
1.3 Domain name newsv
1.4 Germany reforms retail laws
1.5 eConfidence progress
1.6 European Extra Judicial Network report
1.7 UK consultation on eCommerce Directive

2. INTERNET (CONTENT) REGULATION
2.1 Cybercrime
2.2 Safer Internet Awareness day

3. COPYRIGHT
3.1 Court upholds RosettaBooks' right to publish e-books
3.2 Study on contribution of copyright to the European Economy
3.3 EU/US agreement on copyright dispute

4. ADVERTISING
4.1 Commission moves on Loi Evin
4.2 Duty to Trade Fairly proposal fails to appear
4.3 Hearing on new Forms of Advertising Techniques
4.4 Advertising of Medical Products
4.5 Discussion paper on nutritional claims
4.6 Recommendation on Green Claims
4.7 GATS services proposal for the US concerning advertising services

5. AUDIOVISUAL AND GENERAL MEDIA POLICY
5.1 Guidelines for State Aid Ð Hearing 10th September
5.2 Council of Europe Mass Media Committee
5.3 Market Manipulation discussion
5.4 Notices in the Official Journal
5.5 Review of Transfrontier Television Contention.
5.6 Funding for digital TV and video archive
5.7 TWF reports in the Parliament

6. GENERAL
6.1 Jurisdiction and applicable law in electronic commerce Ð Rome II
6.2 White Paper on Governance produced
6.3 Debate on Contract Law reform
6.4 European Services Forum meeting
6.5 Postal Services News
6.6 Commission acts on German book pricing system
6.7 Preparations for the WTO Ministerial in Qatar


Dates for your diary

August - September
28th Aug Ð Duty to Trade Fairly meeting
28th Aug Ð EP Committee week begins
3rd Sept Ð Meeting with publishers to discuss Publishers' Forum
7th Sept Ð EPC Corporate Affairs Group meeting in Munich
10th Sept Ð Hearing on guidelines on State Aid and Broadcasting
17th & 18th Sept Ð Rightholders' Coalition meeting
20th Sept Ð Postal Users Group meeting
4th Oct Ð Commission hearing on UPM/Haindl merger in Borchette Centre.

Note: See http://www.eu2001.be for all Presidency events


General enquiries: Angela Mills
Telephone: +44 (0)1865 310 732
Facsimile: +44 (0)1865 310 739
Annabella Coldrick
Telephone: +32 2 231 1299
Facsimile: +32 2 230 7658

Press Enquiries: Heidi Lambert
Telephone: +32 2 732 5546
Facsimile: +32 2 735 3603



1 Electronic commerce

1.1 Yahoo!'s challenge continues
On June 7th 2001 a Federal Court in California has denied a motion to dismiss Yahoo!'s request to declare the French ruling - on Yahoo holding auctions with access to illegal Nazi content - unenforceable. This decision will now allow the US court to take up the merits of Yahoo's claim that the French court had exceeded its jurisdiction. The US court ruling and the French decision can be found at http://www.cdt.org/jurisdiction

1.2 Data Protection update
The Telecoms Council was unable to reach an agreement on unsolicited e-mails in July. A majority in the Council support the "opt-in" proposal but France, Ireland, the UK and Luxembourg support opt-out. A compromise was proposed to provide for an opt-in system with a four-year transition period but this was opposed by the European Commission. The Rapporteur of the Justice and Home Affairs Committee, Marco Cappato, managed to secure support for opt-out with the exception of "cookies" which would require explicit prior consent. The report will go to plenary in September. Meanwhile, calls for tender for a study on the legal protection of databases as well as a Commission Decision on Standard Contractual Clauses for the Transfer of personal data to third countries have been published in the Official Journal. More information available on request.

1.3 Domain name news
Two new top level domain names .biz and .info have been authorised by ICANN. They will only be available initially for information websites but general registration will be launched this September. Separately US lawmakers have demanded the introduction of a .kids domain to act as a safe haven for children. ICANN have been forced to adopt this proposal and the lawmakers said they would not have introduced legislation mandating the creation of a ".kids" Internet domain if Internet addressing authorities had been more responsive to the needs of the online public. See http://www.icann.org/ for more info.

1.4 Germany reforms retail laws
Germany has finally abolished laws restricting the use of promotional offers and reductions on products. These laws did not allow reductions of more than 3% on goods or two-for-one offers and free gifts. The move was a result of growing pressure from the Commission and the development of eCommerce.

1.5 eConfidence progress
The two working parties on trust-mark requirements and Third Party Assessment have nearly completed their work and will provide drafts to a panel made up of delegates from UNICE and BEUC. Commissioner Byrne will then decide whether or not to produce a recommendation on the basis of their proposals.

1.6 European Extra Judicial Network report
The Parliament has adopted a report on the planned creation of a European Extra-Judicial Network (EEJ Net). The MEPs request better coordination of the parties involved in out of court settlements of consumer disputes. They insist that Consumers should be allowed to use their own language and that the complaint forms should be easily understandable. More information available on request.

1.7 UK consultation on eCommerce Directive
A public consultation has been launched by the British Government on the implementation of the Electronic Commerce Directive (00/31/EC). A full consultation document and draft regulatory impact assessment is available from http://www.dti.gov.uk/cii/ecommerce/europeanpolicy/ecommerce_directive.shtml. The consultation will end on 2nd November and the Government expect to have the regulation in force by 16th Jan 2002.


2 Internet (content) regulation

2.1 Cybercrime vote in EP Committee
The Parliament Committee on Citizens Freedoms and Rights has now voted on the Commission Communication on Cybercrime. The adopted amendments call for a balance to be struck between the preservation of safe infrastructure and the protection of privacy and request the creation of a Cybercrime Forum and more dialogue with the US. The report will be voted on in plenary in September. More information available on request.

2.2 Safer Internet Awareness day
The Commission is hoping to improve awareness of the dangers of the Internet and to also improve coordination between various national projects. The event will take place on Thursday 25th October and on Friday 26th October there will also be an information day on the various calls for proposals. See http://www.saferinternet.org for more information.


3 Copyright

3.1 Court upholds RosettaBooks' right to publish e-books
A federal court in Manhattan has ruled against Bertlesmann-owned publisher Random House Inc. in the lawsuit it brought in February this year, which sought an injunction against e-book publishing firm RosettaBooks. When RosettaBooks published eight books in digital format to which Random House holds Ôbook form' publishing rights, the latter claimed it was also entitled to exclusive rights to release the books in electronic format. RosettaBooks, however, had secured specific electronic rights directly with the authors of the books, and is now free to continue publishing them in accordance with the judge's ruling that Random House "is not the beneficial owner of the right to publish the eight works as e-books."

3.2 Study on contribution of copyright to the European Economy
The Commission has published a call to tender for a study on the contribution of copyright and related rights to the European Economy in the Official Journal. The tenderer must have an appreciation of current economic thinking on the future of the information society and the media sector. More information on request.

3.3 EU/US agreement on copyright dispute
The WTO has agreed to postpone the deadline for the US to alter its copyright legislation by 27th July 2001. This relates to the US Copyright Act which exempts shops and restaurants from paying royalty fees for the music they play which goes against the TRIPS agreement. The EU and US are now looking into just compensation agreements until the Act is amended.


4 Advertising

4.1 Commission moves on Loi Evin
The Commission has finally referred France to the European Count of Justice over the legal restrictions on televised advertising promoting alcoholic drinks. The EC has finally taken steps after 7 years of discussions (and lobbying by industry) to initiate proceedings over the infringement of the EC freedom to provide services. The Commission stresses that it fully supports the objective to protect public health and that this action does not concern the application of the Loi Evin's provisions in France. The Commission's action relates to the extra-territorial effects of the Loi Evin, which it considers to be disproportionate and therefore incompatible with EC Treaty rules on the freedom to provide services (Article 49).

4.2 Duty to Trade Fairly proposal fails to appear
This proposal still hasn't emerged as a Green Paper, a consultation document or in any other form due to internal fighting in the Commission. A Conference on consumer protection has been organized by the Belgian Presidency on 4th to 6th October in Brussels by the Ministry of Economic Affairs and it is expected that the proposal will be discussed then. Another Conference on Consumer Credit will follow on 13th November in Charleroi. The proposal is also thought to be on the agenda of the Internal Market, Consumers and Tourism Council on 26th November.

4.3 Hearing on new Forms of Advertising Techniques
The Commission hosted a workshop on the 5th July on the evolution of new forms of advertising techniques as part of the revision of the Television Without Frontiers Directive. The conference covered new media technologies, analogue and digital TV, Internet and mobile multimedia and virtual advertising and sport. The Legal questionnaire and Economic questionnaire which were distributed at the meeting are available on the Europa website at http://www.europa.eu.int/comm/avpolicy/stat/studi_en.htm and the deadline for participation is 15 September 2023

4.4 Advertising of Medical Products
The Commission has proposed a comprehensive reform of EU pharmaceutical legislation. The current ban on public advertising of medicines in Europe will be complemented by a pilot system aimed at guaranteeing the availability of better, clear and reliable information on authorised. Pharmaceuticals. This will at first be tried on treatments for diabetes, AIDS and asthma which are long term and chronic and there is a strong patient demand for information. More information is available on request.

4.5 Discussion paper on nutritional claims
DG Sanco has produced a discussion paper on "Nutritional and Functional claims." The documents and any comments will be part of the Commission work in drawing up a proposal for a measure on this issue. Paper available on request.

4.6 Recommendation on Green Claims
The Commission is pushing for a recommendation on Green claims with a minimal reference in the misleading advertising directive. This has received lukewarm support from the "expert group" of interested parties. The whole directive may be reviewed soon but at present this is on hold due to the Duty to Trade Fairly proposal.

4.7 GATS services proposal for the US concerning advertising services
The United States have put forward a negotiating proposal for the Qatar 4th Ministerial in November which attempts to initiate a dialogue on the importance of continued liberalization of the advertising services sector and offer a framework for negotiation in the WTO. The proposal states that "advertising is the foundation and financial support of a free press" and that mentions the growth of Internet advertising. 51 WTO members have already made commitments in advertising services (inc. the EU) but many national restrictions remain. The proposal suggests the removal of these restrictions and the use of advertising industry self-regulations as a worthwhile and affective alternative. A copy of the US proposal is available on request.


5 Audiovisual and general media policy

5.1 Guidelines for State Aid Ð Hearing 10th September
The hearing for private broadcasters on guidelines for State Aid will take place in DG Competition on 10th September. At a previous hearing for Member States representatives the UK and France expressed concern that the paper did not address the question of broadcasters moving into online services. The Commission also expressed concern on the issue of proportionality in the use of public funds e.g. if an entertainment channel would be proper use of public money. A hearing is also due to take place in November dealing with the finance and other aspects of Public Service broadcasting. It is being organized by the Council and will be chaired by Richard Miller the Belgian Walloon minister for audiovisual policy.

5.4 Council of Europe Mass Media Committee
At the last meeting of the CDMM two recommendations were discussed on freedom of expression to be considered at the next meeting. The Committee reached agreement on the independence of regulatory authorities and this will be discussed by ministers in September. The Committee has also agreed to be more open and to publish their documents on the Internet for open consultation.

5.5 Market Manipulation discussion
The Commission's proposal for a Market Abuse Directive which may introduce liability on media companies for unknowingly publishing misleading information was discussed in Committee in July. The Rapporteur spoke of the need to tighten up definitions and Piia Noora Kauppi (EPP Ð Finland) said the existing wording was too strict for the Media. However Theresa Villiers disagreed and said the Directive should apply to journalists the same as anyone else and prevent them from buying shares which they then analyse in the papers. The discussion will continue in Committee in September. A more detailed report of the meeting is available on request.

5.4 Notices in the Official Journal
The measures enforced by Denmark, Italy, the UK and Germany were published in the Official Journal (C 208/25) in respect to the use of television broadcasting rights to events of major importance to society (mainly sports events). A call for proposals for Support for the Networking of Cinema Screening European Films was published in the Official Journal (C206/11). Lastly, a call for tender for a study on 'interoperability, service diversity and business models in digital broadcasting markets'. More information is available on request.

5.5 Review of Transfrontier Television Contention.
The Council of Europe Standing Committee on Transfrontier Television met to debate the rights of the public to access through free to air broadcasters' events of major importance. Split screen advertising was also a major issue as concern was expressed over the separation of advertising and editorial content. Turkey and Germany were the most actively supportive of the technique whilst Portugal, Sweden and Norway were not as keen. The UK did not take a position despite the fact that the regulatory body Ð the Independent Television Commission Ð has drawn up a code of conduct with Industry addressing this. The next Council of Europe meeting will be on 6th and 7th December.

5.6 Funding for digital TV and video archive
The European Union has committed _1 million to create a digital archive for TV and video material called Amicitia. The project is being run by three public broadcasters, the BBC, SWR (Germany), ORF (Austria), the Dutch audiovisual archive the NAA and a German technology firm Tecmath. The archive should be available next year and it is hoped its material will facilitate the production of new TV programs.

5.7 TWF reports in the Parliament
The EP Culture Committee has now adopted Ruth Hieronymi's (EPP- Germany) report on the Commission's Third Implementation Report on the Television Without Frontiers Directive. A copy of the final report is available on request. Meanwhile the ECJ ruled against the Italian Government declaring that it had failed to fulfill its obligations under the TWF directive and ordered it to pay costs. More information available on request.


6 General

6.1 Jurisdiction and applicable law in electronic commerce Ð Rome II
The International Chamber of Commerce has produced a paper commenting on Commission plans for applicable law in eCommerce (notably Rome II). The paper states that the "ICC urges governments to 1) avoid expansive jurisdictional claims by applying principles of "country-of-origin" and party autonomy, 2) allow self-regulation to demonstrate its efficacy, and 3) combat fraud and crime on the Internet." A copy of the ICC paper is available on request. On Rome II itself it is expected that the interservice consultation will finish by November and the Parliament is planning to sponsor a separate hearing in October.

6.2 White Paper on Governance produced
The Commission adopted a White Paper on governance on 25 July which it hopes will be the first step in the restoration of its credibility with the citizens of the Union. Romano Prodi stated "Our challenge is to boost confidence in the Union before the next round of institutional reform." The Commission says that its proposals are based on five principles: openness, participation, accountability, effectiveness and coherence. Proposals include a code of conduct for consultation with civil society; more systematic dialogue between the Commission and the regions; new regulatory models combining legislation with non-legislative and self-regulatory solutions to improve the effectiveness of policy objectives. A consultation process will run until March 2002. A copy of the White Paper on Governance is available on request.

6.3 Debate on Contract Law reform
The European Commission's consumer protection DG has published a Communication on European Contract Law. This aims to identify problems with the functioning of the Internal Market resulting from the divergence of national contract law and seek comments on the need for Community action in this area. The Commission would like to examine whether the existing approach of sectoral harmonisation is able to solve all the problems which can arise. In addition the Commission is seeking information on potential practical problems for the uniform application of Community and national contract law across the European Union. The consultation lasts until 15th October, and the Communication will be discussed by the European Parliament in the autumn. Full text available on request.

6.4 European Services Forum meeting
The European Services Forum has now adopted a shortened declaration for the 4th Ministerial in Qatar. The delegates present were again divided into the public sector who wished to include a cultural exemption noting the "specificity of certain services" and the private sector who did not. Also mentioned were submissions by the US, Switzerland and Brazil on audiovisual. In Brazil's AV proposal; they raise the following issues: Creating additional instruments (mechanisms for subsidies) in AV sector, especially motion picture production and distribution; 'dumping' of AV products by multinationals in foreign countries; a need to develop appropriate trade defense mechanisms (e.g. specific antidumping mechanisms) for the sector. The Commission has decided to organise a consultation of the various services sectors after the summer break, with the objective of having detailed discussion on the requests and offers. They urgently invited all ESF members to have a close look at the existing sector specific negotiating proposals, which have been tabled by many countries. A full report of the meeting, copies of the ESF declaration and WTO docs are available on request.

6.5 Postal Services News
It has been reported that the Commission has fined Deutsche Post for abuse of the market place by delaying mail from other Member States but it was only able to fine a token _1000 due to a technicality. The original complaint was brought by the UK post office and the Commission hopes that Deutsche Post will refrain from anti-competitive practices in the future. Meanwhile the Postal Users Group (PUG) of which EPC is a member has written to the Commission concerning the proposal made by the REIMS signatories to extend the duration of the exemption of the REIMS II agreement. This calls for the exemption to be rejected as the REIMS participants are proposing to postpone further the ultimate level of remuneration and the quality of service targets originally approved by the Commission. It considers that postal operators appear to be raising cross-border and domestic prices in a manner which poses serious questions as to the value of REIMS to postal users and its effectiveness as a transitional arrangement to fairer, more transparent, and cost-based cross-border mail charges. A copy of the letter is available on request. The next PUG meeting with members of the Commission to discuss terminal dues will be on Thursday 20 September at 14:00 at FEDMA offices.

6.6 Commission acts on German book pricing system
The Commission has now announced that it will open a procedure concerning the German system for prices imposed on books due to its effects on cross border trade through the internet. The Commission had previously accused the German retailers of a tacit agreement to boycott bookstores by selling their prices on the internet to beat competition. This way of applying the "Sammelrevers" system (German fixed book prices system) is considered to be an illegal agreement between the actors concerned.

6.7 Preparations for the WTO Ministerial in Qatar
Four of the European Public Service Broadcasting organizations have held a seminar to discuss the developments at WTO level which affect the film and broadcasting sector. They argued for the need to foster cultural diversity and media pluralism in a globalised economy. Once of the organizers FERA (European Film Directors) has been lobbying the Russian Minister of Culture. The letter in return said that Russia's position "coincides with the position of the majority of European Countries" and states "We are investing in supporting the national audiovisual sector and are not interested in uncontrolled expansion of American audiovisual production on the Russian Market." Lastly, the Economic and Social Committee is calling for comments from civil society to draft their opinion entitled "the preparation of the 4th WTO Ministerial in Qatar". Comments to be sent to Mr. Vever: Phone +(32-2) 546.91.37.



Upcoming Conferences of relevance to EPC members:

Data Protection Conference in Brussels Ð 5th November
A Conference will be organised by Hawksmere on Data Protection on 5th November. This will discuss the proposed Electronic Communications Data Protection Directive (update of 1997), issues with Global Transfers of data, the Safe Harbour Agreement, model data contracts and the role of national data protection authorities. See http://www.hawskmere.com/international for more information.

World Services Conference in Hong Kong to discuss audiovisual issues.
The World Services Conference to be held on the 20 and 21st September will include a working group on Film and Entertainment Services "To examine the trade prospects of the fast growing film and entertainment industries and the wide range of related service sectors involved in production, distribution, infrastructure, programming, content provision etc and to discuss their linkage with other technology and information industries." See http://www.chamber.ork.hk/wsc for more details.

Annual GBDe conference in Tokyo, Japan on
September 13th and 14th from 12:00 pm to 3:00 pm.

The GBDe Annual Conference will take place in Tokyo. On the agenda is an IPR/Cyber Security Roundtable, Convergence and eGovernment, Consumer Confidence Roundtable, Cultural Diversity and Cyber Ethics Roundtable and a Trade Roundtable. There is also a separate agenda on the 13th for GBDe Consumer Confidence and Trustmark Network Meeting. Many representatives of government and international organizations are expected to be present to contribute to the debate. Please see http://www.gbdeconference.org/register for more info.

WIPO Second International Conference on eCommerce
and Intellectual Property 19th to 21st September

To address the latest legal and technical developments. See www.wipo.org for more information.


Belgian Presidency Events
Expert Seminar on Culture in the Information Society 26th September 2001 in Mons led by French speaking Belgians Cabinet Demotte and Miller.

Seminar for Directors of International Cultural Cooperation on 03- 6th October 2001 in Brussels (La Hulpe), Bruges, Lige organized by Flemish Department of Foreign Policy and the French Community General Commissariat for international relations

Seminar entitled "The culture industry" organized by the Belgian Presidency (Cabinet Van Cauwenberghe + Kubla (Walloon Region)) in Mons on 5th and 6th October.

Conference on competition policy on 11th and 12th October in Antwerp organized by the Belgian Ministry of Economic Affairs.

Second conference of civil society on the theme of governance and organized civil society organized by the Economic and Social committee on 8th November in Brussels.

Conference on Media Concentration and Diversification of Services " L'audiovisuel public face aux phŽnomnes de concentration et de diversification des services" on 15th and 16th November in Brussels organized by Cabinet Miller (French-speaking Community)

Forum on e-security organized by: Cabinet Daems (Federal Government) on 20th November in Brussels

Culture Council on 5th November and Informal Culture Council on the 4th December.