A4-0119/97

Resolution on the Commission Green Paper on legal protection for encrypted services in the internal market (consultation on the need for Community action) (COM(96)0076 - C4-0190/96)

The European Parliament,

- having regard to the Articles 7a, 52 et seq., 59 et seq. and 100a of the EC Treaty,

- having regard to the Commission Green Paper on legal protection for encrypted services in the internal market (COM(96)0076 - C4-0190/96)

- having regard to the report of the Committee on Legal Affairs and Citizens' Rights and the opinions of the Committee on Economic and Monetary Affairs and Industrial Policy, the Committee on the Environment, Public Health and Consumer Protection and the Committee on Culture, Youth, Education and the Media (A4- 0119/97),

A. whereas the European Community has, on the initiative of the Commission of the European Communities, taken substantial action to harmonize the protection of copyright and related rights throughout the Member States,

B. whereas one of the recent initiatives taken by the Commission in this field is its Green Paper on copyright and related rights in the information society (COM(95)0382 - C4-0354/95) which refers specifically to the particular problems created by, and relating to, the development and introduction of new technologies, principally in the retransmission to the broad public of works protected by intellectual property rights; whereas these problems consist in piracy,

C. whereas the various systems for the conditional accessing of specific televisual services are one expression of the new technologies; whereas this 'conditional accessing' is achieved by means of special devices - decoders - which allow the encoding of certain services, thereby limiting access to the relevant programmes to persons who pay the necessary fee or subscription,

D. convinced that these conditional accessing systems to certain services are the result of the development of specialised industries in the field of new technologies and that, by spreading to certain specific activities of the information society, they contribute towards the protection and exploitation of works which are covered by intellectual property rights and are transmitted by television programmes, provided there is strict respect for cultural diversity and guaranteed access for all citizens to programmes of public interest; it is indicative of this contribution towards the protection and exploitation of the above-mentioned works that, according to official statistics, television programmes operating conditional accessing systems are the biggest source of income of the film industry in Europe at an estimated 34% of total income,

1. Welcomes the Commission's new Green Paper which addresses a matter whose importance and topicality can be gauged from the relatively high number of television channels operating today in Europe which use more or less developed forms of encoding in order to transmit their programmes;

2. Takes the view that this form of transmission forms part of the broader framework of technological development in the field of the information society and has direct consequences, on the one hand, for the operation of the internal market - through the involvement of specialised branches of industry in the construction of decoding devices - and, on the other, for the protection of intellectual property rights, owing to the retransmission of works which are protected by these rights;

3. Expresses its concern for the defence of consumers' interests and recalls that it recently stressed in paragraph 12 of its resolution of 19 September 1996 on the Green Paper on copyright and related rights in the Information Society ((OJ C 320, 28.10.1996, p. 177.))the need to call on the institutions of the European Union and of the Member States to take the appropriate measures to allow citizens equal access to works and services considered to be of public interest;

4. Takes the view that both now and in the immediate future the protection of copyright and related rights will not be feasible - at least from the point of view of the possibilities of broadcasting protected works to the public - unless measures are also taken to protect the means and systems of broadcasting; considers that this view is in line with the positions expressed by the Commission in its Green Paper on copyright and related rights in the information society and by Parliament in its abovementioned resolution of 19 September 1996 on the Green Paper;

5. Considers that this 'dual' protection system is jeopardized by piracy which contributes to the development of a parallel industry involved in the unauthorized production of decoding equipment which is marketed without the authorization of the body operating the encoded service, thus enabling this service to be used without a fee and that there is an even greater risk of this occurring considering that recent developments in advanced technology - the spread of the Internet, for example - facilitate the advertising and commercial promotion of such equipment in an increasingly uncontrolled manner;

6. Expresses its disquiet at the dangers posed by the development of piracy in this sector and recalls that it drew attention recently in paragraph 33 of its abovementionied resolution of 19 September 1996 to 'the need for harmonized common rules in national legislation that provide for civil and criminal penalties for those who produce, market, possess, use, manufacture, sell or install devices or who offer, solicit, advertise or perform services capable of rendering systems of protection ineffective';

7. Notes that the present legal regime in this area is inadequate, since the principal provisions of Directive 93/83/EEC (the cable and satellite directive) protect right-holders, but only in respect of the unauthorized retransmission of their works, and not in respect of unauthorized reception; notes that this points to the need for a special provision to combat piracy which should at first sight, at least, opt between:

- protecting the encoded service itself, giving it the character of an absolute right, or

- banning 'preparatory activities' relating to the manufacture, importation, distribution and possession - either for commercial purposes, or for private use - and the commercial promotion and advertising of decoding devices used for pirating;

8. Considers that with the further develpment of the internal market - which finds expression principally in a high degree of liberalization of the movement of goods and services - a harmonizaton of national legislations is indispensable to ensure the above-mentioned 'dual protection' in the context of the information society; believes that without this there will be a progressive serious distortion of market conditions, which will have serious consequences for the industrial branches concerned and thus for employment;

9. Believes that the most appropriate legal instrument for regulating a matter of this kind is the directive, the advantage being that it can provide a minimum level of protection in the European Community through the harmonization of national legislation; considers that provision should be made for appropriate sanctions which are indispensable if this arrangement is to prove effective; takes the view that any attempt to secure common rules of protection through a regulation - however desirable - would prove particularly difficult, and consequently ineffective, owing to the substantial divergences that exist between national arrangements;

10. Expresses its sensitivity as regards the expected consequences for consumers of the harmonization of national rules on combating piracy; considers that ultimately these consequences usually affect the cost and quality of the services provided, and expresses its conviction that the optimum, i.e. most effective and durable, correlation between these two 'parameters' can be achieved only by an appropriate approach involving the harmonization of national rules at the highest possible level; believes that in this way the conditions will be fulfilled for progressively discouraging and combating piracy;

11. Considers, in this instance, that there is no basis to the argument that regulations will not produce the expected result of curbing piracy because the pirates are always capable of making up 'lost ground' in technological developments; believes, on the contrary, that the existing gaps in national regulations assist the further development of piracy and that only harmonized protection at the highest level would be the most appropriate means of eradicating it;

12. Agrees with the Commission that the measure under review should, as far as legally feasible, cover all encoded services in respect of which encoding is used to ensure payment of a fee: in addition to traditional and new television retransmission services, these are deemed to include the so-called information society services which are provided electronically from a distance on the individual demand of the service receiver;

13. Considers that this approach will ensure a framework for comprehensive - rather than fragmentary - arrangements to combat piracy in sectors in which information society services are being developed; considers, however, that this reversal of these priorities - i.e. combating piracy before the approval by sector of rules for protecting copyright holders -would not justify any delay on the part of the Commission in proposing the approval of measures aimed at protecting copyright and related rights, where these are necessary within the framework of the information society;

14. Calls finally on the Commission, in respect of the specific arrangements it intends to propose, to justify in each case the proposed measures by presenting the European Parliament with a complete set of the most recent statistics and other information relating to the spread of the phenomenon of piracy by sector of activity; considers that adequate justification is indispensable for measures which are intended to have an important impact on the free circulation of goods and services in the European Community and on consumer protection;

15. Instructs its President to forward this resolution to the Commission, the Council and the governments of the Member States.