EN    EN EN 
 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 30.9.2008 
SEC(2008) 2506 
  
COMMISSION STAFF WORKING PAPER 
Public consultation on piracy protection fo r services protected by conditional-access 
systems 
  
{COM(2008) 593} 
 
EN 2   EN This document comment on the contributions the Commission received during the public 
consultation held between 11 February and 4 April 2008. The consultation focused on the 
following themes: development of the single market for conditional access services, effectiveness of the Member States' implemen tation of the Directive, new services, its 
contribution to copyright protection, digita l rights management, and reasons for using 
conditional access. 
The contributions can be consulted on the single market website at:  
http://ec.europa.eu/internal_m arket/media/elecpay/index_en.htm
. 
1. C ONTENT OF THE DIRECTIVE  
Protected services  
Since the planning stage, the scope of th e Directive has been intended to extend 
beyond pay-TV alone and also to cover:  - television and radio broa dcasting services, and  
- information society services  when protected by a conditional access system and provided against payment. 
Moreover, conditional access services themselves are included among the services 
protected. Such services comprise technica l protection hardware or software enabling 
access to the service to be restricted to addressees duly authorised by the service 
provider, normally upon payment for the service in question. 
A number of consultation contributions asked for clarification of what services were 
protected by virtue of the adoption of the 'Audiovisual Media Services' Directive 
2007/65/EC
1 amending the 'Television Without  Frontiers' Directive 89/552/EC. 
Article 2 of Directive 98/84/EC refers to the definition of television broadcasting  
contained in Article 1(a)  of Directive 89/552/EEC. 
Directive 2007/65/EC extende d the scope of the origin al 'Television Without 
Frontiers' Directive and added a number of definitions in Article 1. Television broadcasting services
2 are now defined in Article 1( e) rather than 1(a) of the 
amended Directive. This is a technical deta il which in no way changes the scope of 
Directive 98/84/EC. There is indeed a di fference inasmuch as the new definition no 
longer refers to the means of transmission but  to the characteristic s of the television 
programming; this does not, how ever, affect the identification of television channel 
broadcasters. 
Directive 2007/65/EC also introduces the de finition of an 'on-demand audiovisual 
media service'3, defining and limiting the information society services which fall 
                                                 
1 OJ L 332, 18.12.2007, p. 27. 
2 Article 1(e): 'television broadcasting' or 'televisi on broadcast' (i.e. a linear audiovisual media service) 
means an audiovisual media service provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule. 
3 Article 1(g): 'on-demand audiovisual media service' (i.e. a non-linear audiovisual media service) means 
an audiovisual media service provided by a media service provider for the viewing of programmes at 
 
EN 3   EN within the scope of the new Directive. In  any case, the definition of the scope of 
Directive 98/84/EC continues to be a broa d one and is unchanged in this respect 
since it covers a priori any information society service by vi rtue of the fact that it is 
provided via a conditional access service (regard less of the fact that it may also be an 
on-demand audiovisual media service). 
However, the two Directives govern differe nt fields and the difference in scope, 
which also existed before 2007, has no b earing on their respective operation. 
Illicit devices  
Article 2(e) of Directive 98/84/EC defines an illicit device as ' any equipment or 
software designed or adapted to give access to  a protected service in an intelligible 
form without the authorisa tion of the service provider '. 
This definition should cover any infringeme nt of a conditional access system over 
and above the first decoders used by pay-TV . The definition thus covers the act of 
circumventing the software used for conditional access purposes. 
As a result, as far as new forms of pira ting are concerned, it s hould be noted that 
disclosing decryption keys online or converti ng cards into pirate cards are covered by 
the definition of illicit devices. Pirating is onl y punishable, however, if it is linked to 
commercial activities, and such  links are often difficult to prove (cf. section 3.2). 
Infringing activities  
Article 4 of the Directive lists the infr inging activities. These are any commercial 
activities associated with the life cycle of  illicit devices: manufacture, import, 
distribution, sale, rental , possession for commercial purposes, installation, 
maintenance, replacement, and commercial communications of same. 
It should be emphasised that the Direct ive requires that Member States impose 
sanctions only in the case of commercial  activities linked with the illicit devices. 
Recital 21 of the Directiv e indicates that national provisions may, nonetheless, 
prohibit the private possession of illicit devices. 
2. C OMMUNITY -WIDE HARMONISATION  
In March 1996, the Commission published its  Green Paper 'Legal protection for 
encrypted services in the internal market' (COM(96) 76)4 justifying the need for 
Community-wide action. It conc luded that differences in legislation were preventing 
any development in cross-border encrypted  services and that harmonisation was 
needed in order to complete the regulato ry framework establishing the single market 
in television broadcasting services cr eated at the time of Directive 89/552/EEC 
                                                                                                                                                         
the moment chosen by the user and at his individual request on the basis of a catalogue of programmes 
selected by the media service provider; 
4 Available at:  
http://europa.eu/documents/comm/green_papers/pdf/com96_76_en.pdf .  
 
EN 4   EN (Television Without Frontiers) and Dir ective 93/83/EEC (Cable and Satellite)5. This 
is why Articles 57(2) and 100A of the Trea ty (now Articles 47 and 95 of the EC 
Treaty) were chosen as the basis for th e Directive aimed at protecting conditional 
access services. These Articles deal respecti vely with the harmonisation of service 
activities and establishment of the single market. 
3. T HE 'GREY ' MARKET  
In the consultation, the subject of the grey market provoked many reactions and 
troubled the majority of contributors, some of whom even denied that the Directive 
was in any way aimed at achieving a single market, claiming it was adopted solely to 
prevent piracy at the European level.  
Other responses highlighted practical diffi culties: the low level of cross-border 
demand rendering such services of little economic interest, particularly given the language barriers between Member States, even though the principles of free movement form the very basis of the single market.  
Finally, contributors cited examples of pa y-TV offers available on a cross-border 
basis, thus mitigating an excessively negativ e view of the impact of the Directive on 
the single market: A German pay-TV channe l also broadcasts in Austria, a British 
channel in Ireland, a Greek channel broa dcasts to the entire Greek population 
throughout Europe, a Polish channel is available in Germany
6 and several cross-
border TV offers cover all th e Scandinavian countries. 
4. L EVEL OF PENALTIES  
Contributors differed in their assessments of  the effectiveness of national legislation. 
While, for example, Danish and French cont ributors expressed satisfaction with the 
level of fines imposed, this view was not shared by German and Italian contributors. 
It should be noted that the level of sa tisfaction depends not only on the amount but 
also on the nature of the sanctions impos ed. Operators expressed preference for 
criminal penalties sufficiently stringent to  represent a deterren t in view of the 
commercial damages incurred. The contributio ns suggest two approaches: the first 
involves assessing sanctions in relation to th e benefits drawn from piracy, the second 
adjusting the level of sanctions to those appl ied in respect of othe r offences, such as 
theft, fraud or counterfeiting. On this point, it is interesting to note that German operators prefer to base their actions on the provisions regulating copyright since 
sanctions laid down in that area are more stringent than those applied for piracy 
involving conditional access systems. 
                                                
 
5 Council Directive 93/83/EEC of 27 September 1993 on the co-ordination of certain rules concerning 
copyright and rights related to copyright applicable  to satellite broadcasting and cable retransmission, 
OJ L 248, 6.10.1993, p. 15. 
6 As well as in the United States and Australia. 
 
EN 5   EN 5. S ANCTIONS UPON PRIVATE POSSESSION  
Contributions from the sector's stakeholders , service providers and rightholders are in 
favour of extending restrictions to cove r the private domain. They approve the 
existence of such laws in some States and re gret that they are not available in others. 
Consumers' representatives did not answer  this question, focusing rather on the 
necessary accessibility of services for all consumers. 
Sanctioning private possession has two major advantages, according to operators. 
Firstly, it is a clear indication that particip ating in piracy, which all too often is not 
condemned by society, is actually criminal in nature. By deterring consumers from 
purchasing pirated systems or services, it would thus limit the market for same. 
It could, secondly, help sanc tion new types of piracy based on a combination of 
different actions, some of which may be pr ivate, such as the online disclosure of 
encryption codes, codes subsequently used directly by the consum er to programme a 
chip card purchased unprogrammed, whose sale (the commercial transaction) is a 
priori  lawful.  
6. N EW MODES OF DISTRIBUTION  
The protection afforded by the Directive to  new forms of cont ent distribution was 
one of the subjects raised in the consultation. 
Virtually all the contributors who responded on this subject considered that the new 
forms of content distribution are effectivel y covered by Directive 98/84/EC. A priori, 
national legislation should re flect this extension in scope , but this should be checked 
in the Member States. 
Some contributions mentioned a need for st andardisation in terms of the conditional 
access systems used to receive services. Th e development of these new markets may 
be checked by the lack of equipment inter operability, slowing consumer mobility and 
the entry of new operators, or by a sl owdown in proprietary system innovation 
following what may be a compulsory standardisation. Nonetheless, some stakeholders are afraid that sta ndardisation would benefit pirates. 
This sensitive issue was topical at the time when pay-TV was being developed and 
has been covered by a number of European  acts. Currently Article 6(1) of the 
'Access' Directive 2002/19/EC
7 imposes certain conditions on conditional access 
systems detailed in Anne x 1 of the Directive.  
7. N EW FORMS OF PIRACY  
Some legal decisions, particularly in Scandinavia, have overcome the problems 
associated with identifying new forms of piracy thanks to intensive work in compiling evidence and stakeholder cooperatio n with the national authorities. This 
                                                
 
7 Directive 2002/19/EC on access to, and interconnection of, electronic communications networks and 
associated facilities (Access Direc tive) OJ L 108,  24.4.2002. 
 
EN 6   EN example illustrates the importance of working in collaboration with national 
administrations and the need to train competent staff. 
8. E XTENSION OF PROTECTION TO RIGHTHOLDERS  
One of the subjects of the consultation was the potential extension of the protection 
afforded by the Directive to rightholders a nd holders of rights to sports events.  
The latter may be interested in taking action themselves in the event of piracy involving the retransmission of conten t to which they hold the rights. 
Responses clearly differed depending on whet her they were from rightholders, most 
of whom were in favour of extending the protection in their favour, or audiovisual 
service providers, who tende d to be opposed to this. Se rvice providers highlighted 
the protection already provided by copyri ghts, which, as indicated above, can in 
some countries result in more stringent sanc tions than those applied to the protection 
of conditional access. 
In the first place, the position of rightholders  must be distinguished from that of the 
holders of rights to sports events. While  the former are directly protected by 
copyright rules, the latter are unable to be nefit directly from them and retransmission 
of a sports event will not be protected by copyright except under rights associated 
with copyright which are held by the broadcas ter, who is the only party that may take 
action against retransmission piracy. The counter argument of the duplication of 
protection can therefore be upheld only in the case of the retran smission of sports 
events in relation to the holde rs of rights to these events. 
9. P
ROTECTION OF REMUNERATION , THE ONLY CRITERION FOR PROTECTION  
The majority of contributions in response to the public consulta tion launched by the 
Commission were in favour of extending th e protection afforded by the Directive and 
most often mentioned the objectives of terr itorial restrictions and the protection of 
minors. One contribution also mentioned se curing the signal transmitted from the 
network head-end to the lo cal distribution network. 
On this subject, a number of contributions were in favour of signal theft being taken 
into account in the Directive. Thus, interc eption and decoding of an encrypted signal 
sent to local distribution networks c ould – subject to a more detailed legal 
examination in cooperation with the Member States – be considered to be prohibited 
by the Directive if the purpose were the co mmercial use of the content intercepted. 
However, a general protection under Direct ive 98/84/EC against any pirating of a 
signal, even a non-encrypted one, woul d go far beyond its original scope. 
In general, the contributions express some frustration with the fact that protection is 
limited solely to the objective of ensuring the remuneration of the service provider.