Major European media companies are demanding rejection of a proposal meant to avert an antitrust ruling on a model contract for collective management of copyrighted music on cable, satellite and the Internet. The contract was created by the International Confederation of Societies of Authors and Composers (CISAC), which also put forth the disputed plan. In its July 10 letter to EC President Jose Barroso and Competition Commissioner Neelie Kroes, the media company coalition said CISAC’s proposal would fragment music rights licensing and harm smaller authors’ rights societies. CISAC declined to comment on the letter, citing a pending inquiry.
Competition in Europe’s internal telecommunications market is improving but roadblocks remain, the European Commission (EC) said Thursday in its final official report before this fall, when it unveils proposals to reform the regulatory framework (NRF). The report, the second on how well so-called Article 7 procedures for gauging and ensuring competition in national markets is working, shows the “glass is at least half full,” a spokesman for Information Society and Media Commissioner Viviane Reding said. While national regulatory authority (NRA) analyses are more consistent as to competitiveness in their markets, they do not impose more uniform remedies in cases of significant market power, which keeps the cross-border market from reaching its potential, the EC said. Under Article 7 NRAs must assess 18 different markets, then report to the commission on their findings and propose any pertinent remedies. The 600-plus notifications received show that remedies do not always work as well as they could and that regulation varies by nation, even when market circumstances are similar, the report said. It noted areas of concern. In the retail fixed access market, involving connection to a fixed telephony network enabling calls and related services, some NRAs failed to mandate cost accounting and accounting separation, complicating efforts to set effective price regulation for related wholesale products and to monitor compliance. Wholesale line rental conditions vary across borders, and are not alway justified by diverging market conditions, the report said. In the fixed and mobile termination markets a large spread persists in average mobile termination rates; some regulators have allowed small operators to charge more, perhaps discouraging them from seeking more market share, the EC said. In the wholesale broadband markets for bitstream access and local loop unbundling, the high cost of duplicating the last mile of publicly switched phone networks means former monopolists retain a very strong position in the market for unbundled access, the report said. Retail call markets are noticeably more competitive now across the European Union, it said, urging NRAs to stress wholesale regulatory enforcement to make retail rules unnecessary. The wholesale mobile access and call origination market, generally deemed competitive, needs study to see if competition through mobile virtual operator networks suffices, the EC said. The report laid out “horizontal issues,” some to be addressed in the October NRF review. Experience since the NRF took effect in 2003 shows a need to streamline Article 7 procedures for cooperation between the EC and national regulators, the report said. And while the European Regulators Group (ERG) continues to work with the EC cooperatively, and NRAs admit the remedies they impose lack consistency, regulatory guidelines “aren’t coming in time,” Reding’s spokesman said. The issue of which entity should be the “EU FCC,” authorized to impose and enforce competition remedies, is expected to loom in the coming NRF reform. The EC recently nominated itself for the job (CD June 1 p6). The revised NRF framework is not expected to take force before 2009 or 2010, the report said. Meanwhile, the EC will adopt a new version of its recommendation on relevant markets to be analyzed and Article 7 procedures later this year, it said.
The U.S. leads the world in information technology (IT) competitiveness but like other top players must guard against losing its edge, the Economist Intelligence Unit (EIU) said Wednesday. The EIU is part of the Economist magazine. Its white paper, The Means to Compete: Benchmarking IT Industry Competitiveness, gauged the IT industry environment in 64 nations, ranking countries according to sector performance. The findings are meant as a “road map” for governments, said Business Software Alliance (BSA) President Robert Holleyman, whose organization sponsored the study.
Debate on a requirement that communications service providers store data on Internet and phone traffic began Friday in the German Parliament’s lower house. The measure would adopt into national law the European Union (EU) Data Retention Directive, mandating that traffic data on all voice communications and data messages be held for six months. Some German states represented through Parliament’s upper house want longer terms, said Axel Spies, an attorney representing the German Competitive Carriers Association (VATM). Alternate telecom providers fear the German bill because it does not say how carriers and Internet service providers will be reimbursed, he said. Providers now get a lump 17 euros an hour to handle interception requests, far below cost; data retention rules will demand costly gear, infrastructure and personnel, Spies said. VATM wants the retention period to run no more than six months, he said. The directive also faces objections in Austria, European Digital Rights (EDRI) said. A spokesman for Austria’s Federal Ministry of Transport, Innovation and Technology said the government will not meet the adoption deadline the directive set due to strong response to a proposed national law, EDRI said. The 90 comments included several from the entertainment industry demanding longer retention terms, lower thresholds and access to retained data for copyright violations, EDRI said. The ministry will be diligent in processing the comments even if that brings a warning from the EU, the organization said. A “general aversion” to data retention has emerged in Austria, with resistance fairly broad, EDRI said. Labor and the Chamber of Commerce both oppose the measure, and even the federal chancellor’s office worries about constitutional violations, the organization said.
The World Intellectual Property Organization (WIPO) broadcast treaty is not dead, but Friday its future seemed uncertain. Delegates to the Standing Committee on Copyright and Related Rights (SCCR) met informally for several nights before urging the WIPO General Assembly to keep the proposal on the committee agenda, but with no more special sessions, and no diplomatic conference, pending accord on terms, Paul Salmon, senior counsel in the U.S. Patent and Trademark Office’s international relations office, said Fri. Left undecided, he told us, was whether webcasting might be considered.
Negotiations over a treaty updating broadcast protections apparently have failed. Late Thursday, IP Justice Executive Director Robin Gross told us that the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights could not reach agreement, and that the treaty will not happen, “at least not this year.”
Nine non-governmental organizations (NGOs) urged delegates to reject the draft World Intellectual Property Organization (WIPO) broadcast treaty, saying Wednesday that a nine-year effort to find a formulation protecting broadcast signals without hurting copyright owners has failed. The proposal, intended to update broadcaster protections, is being debated this week at a special WIPO Standing Committee on Copyright and Related Rights (SCCR) meeting. One outcome could be agreement to proceed to a high-level conference (CD June 19 p4). Broadcast and cablecast signals are protected by law, and WIPO should not create new economic rights for those companies, the groups said. The link between the treaty and the Internet is “highly problematic,” because establishment of non-copyright controls over reuses of information online will harm access to knowledge, they said. The draft calls for broadcasters to get exclusive rights to authorize retransmission or deferred transmission by any means to the public of fixed transmissions. The opponents included the Civil Society Coalition, Electronic Frontier Foundation, Electronic Information for Libraries, European Digital Rights, International Federation of Library Associations, IP Justice, Knowledge Ecology International, Public Knowledge and Third World Network. Wednesday’s session was like “watching water boil,” said Sarah Deutsch, Verizon vice president and associate general counsel. SCCR Chairman Jukka Liedes tossed NGOs out of the room early in the day to move from a formal, article-by-article discussion to more informal talks, she said., and talks ran into the evening. Verizon still says that if broadcasters have an issue to resolve, it should be done via a narrow signal-theft treaty, Deutsch said. The latest document distills over 100 pages into around 10, but still gives broadcasters the most important right, that of authorizing retransmission, she said. Talks seemed to stall at around 10 p.m. over U.S. support for including the phrase “by any means” in the draft, said Thiru Balasubramaniam, Knowledge Ecology International Geneva representative. For India, Brazil and other developing countries, and many technology sector players and public interest NGOs, the phrase “would leave open the specter of webcasting and simulcasting” returning to the proposed instrument, upending the intent simply to protect against signal theft over traditional platforms, he said.
Deep disparities between delegations remained after a second day of talks on a proposed World Intellectual Property Organization (WIPO) treaty to update broadcasting protections (CD June 19 p4). With Chairman Jukka Liedes away on personal business, the Standing Committee on Copyright and Related Rights focussed Tuesday on the draft preamble, said Ville Oksanen, co-chairman of the European Digital Rights working group on intellectual property (IP). Cultural diversity, access to knowledge and competition law’s role remain stumbling blocks, he said. The U.S. will not accept a treaty including provisions on them as substantive clauses, but Brazil, Chile and others feel the opposite, and the European Union has yet to state a position, Oksanen said. The “conflict is quite profound,” and it will be interesting to see how Liedes resolves it, particularly with only two days of talks left, he said. Some nations want language on cultural diversity, public interest issues and competition in the draft (dubbed the “non-paper"), said an official from a developing country. Rights conferred, exclusive rights over retransmission and deferred transmission by any means to the public of fixed broadcasts benefit from strict technical protection measures and rights management provisions, the official said: “All this together makes for a very powerful treaty, unlike what is being claimed.” Even worse, the official said, the treaty covers works lacking substantive creativity, apart from investing to transmit. You can criminalize the act of stealing a signal without recognizing broadcast entities’ exclusive rights of a commercial nature, he said. It is unclear whether consensus will emerge sufficiently to warrant a diplomatic conference later this year, but the chairman of one non-governmental organization has said he remains optimistic. A treaty has “a good chance, much better than Arnold Schwarzenegger being elected Miss France this year,” Mihaly Ficsor, Central and Eastern European Copyright Alliance chairman and former WIPO assistant general director, told an April Fordham University property conference. Success hinges on the international IP atmosphere, complicating accord on new substantive terms, a difference from 1996, when the WIPO Internet treaties were devised, he told us. Ficsor sees a link between the Doha Round of trade talks and events at WIPO, he said. If World Trade Organization talks end with an appropriate compromise, “it would certainly improve the conditions for the necessary treaty-making activities in WIPO,” he said.
Consensus was elusive on the latest version of a treaty updating broadcasting protections as the second and final meeting of the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) opened Monday in Geneva. The April 20 “non-paper” continues to stir debate over whether the treaty merely protects broadcasters and cablecasters from signal theft or widens copyright protections. It remains to be seen if this week’s meeting can narrow the gap enough that a diplomatic conference can occur later this year, said Electronic Frontier Foundation Finland board member Ville Oksanen.
The EC role in Europe’s telecom regulatory scheme needs rethinking, Paul Ryan, Vodafone exec.-public policy & regulatory governance, said Thurs. at a mobile telecom and competition law conference in Brussels. Ryan lauded the overall EC approach, citing e-communications regulatory framework elements that have taken the politics out of regulation: (1) Independent national regulators. (2) Spectrum reform. (3) Alignment of remedies with competition law. (4) Access to full substantive appeals to expert bodies. (5) The “3-criteria” test for deciding if a particular national telecom market needs pre-emptive (ex ante) regulatory intervention. But Ryan urged substantial reform in the “Art. 7” process under which national regulators assess competition in 18 specific markets because EC interference is causing headaches, Ryan said. Most commenters, including the European Commission, European Regulators Group and many firms, call the Art. 7 process administratively burdensome and in need of streamlining, he said. But Vodafone believes the EC is the real problem, he said, because it acts in ways that suggest it’s involved in the process yet has no accountability for it. “Comments” by the EC on proposed national market assessments assume the status of “decisions” or “approvals” in disputes, he said: In effect, the Commission uses Art. 7 letters and press releases to make back-door policy while insisting it’s not involved. The EC can’t be “half-pregnant,” Ryan said: If it’s going to intervene, it must be accountable for its actions. Vodafone also questions the need for keeping the mobile access market within the Art. 7 process. Access is the only element of Vodafone’s market not regulated and, given the “fiercely competitive” nature of Europe’s mobile market, it should be off the ex ante list, he said. An audience member from the Spanish regulator said her study showed that half of all regulatory problems result from industry lobbying. Ryan said his lobbying efforts are aimed at removing market barriers, not more regulatory intervention.