WRITTEN QUESTION E-3864/02

by Joost Lagendijk (Verts/ALE), Raina Echerer (Verts/ALE)and Heide Rühle (Verts/ALE) to the Commission

(10 January 2003)

Subject: Encryption digital satellite TV channels

On 4 December the Chief Director of the Westdeutsches Fernsehen WDR, Mr Pleitgen, made a plea to lift any obligation for European Public television channels to encrypt their digital satellite broadcasts for reception abroad. He argued that this would considerably contribute to cultural exchange and cultural diversity in Europe. The President of the German-French cultural channel ARTE, Jobst Plog, made an appeal to stick forcefully to the principle of a free flow of information.

1. Does the European Commission agree with us that the necessary protection of copyrights should not lead to hindrances in the free flow of information in Europe?

2. Does the Commission share our opinion that a free flow of information as given by the public broadcast systems should not be encrypted for the public in a country other than where the programmes originate?

3. Does the Commission share our view that such free exchange of information may also contribute to a better knowledge of foreign languages?

4. Does the Commission agree that a free access to public broadcasting in a country other than where the public channel is based also benefits expats of that country and is a contribution to a more flexible labour market?

5. Is the Commission willing to contact the relevant competent authorities at national, regional and European level and investigate whether existing barriers, which originate from the encryption of public digital channels broadcasting over satellite, or from legal restrictions, can be taken away?

Answer given by Mr Bolkestein on behalf of the Commission

(12 February 2003)

The principle of a free flow of information within the internal market is primarily based on the principles of the freedom of establishment (Article 43 of the EC Treaty) and the freedom to provide services (Article 49 of the EC Treaty). In this context, any obstacles to the broadcasting of programmes by public or private channels across national borders would only be compatible with these principles if they consisted of appropriate measures justified by a general-interest objective that did not go beyond what is necessary to protect the general-interest objective concerned (principle of proportionality).

Since the protection of intellectual property has been recognised by the Court of Justice as a general-interest objective(1), it is possible that this may justify obstacles to the cross-border broadcasting of television programmes which could be recognised as compatible with the principles in Articles 43 and 49 of the EC Treaty if they comply with the principle of proportionality.

With regard to satellite broadcasting, the Commission has been able to establish, as explained in its report of 26 July 2002(2), that whilst there has been a proliferation of television channels, these are more and more often encrypted and are not accessible to viewers who do not live in the Member State in which the transmission is organised. This restriction on access to these channels is, in particular, related to conditions governing the transfer of intellectual property rights for television programmes.

This situation is of some concern to the Commission because there are genuine benefits to be gained from broadcasting programmes across national borders, both for citizens residing in their Member State of origin (cultural and linguistic exchanges) and for those resident in a Member State other than their own (who can remain in touch with their culture of origin).

As indicated in its report, the Commission has started to hold in-depth discussions on the conditions governing the transfer of intellectual property rights for television programmes broadcast by satellite. It has, more specifically, set up a working group to bring together various representatives of the different parties involved in satellite broadcasting (including some of the competent authorities at national and European level), in order to find a solution which might reconcile the interests of rightholders and broadcasters.

Since work on this complex issue has still to be completed and is scheduled to continue in 2003, the Commission cannot, at this stage, comment on whether the encryption of programmes broadcast by either public or private bodies can be justified in accordance with the principles of the internal market.

(1) See judgment of 25 July 1991, Case 288/89, Mediawet.

(2) Report on the application of Council Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, COM(2002) 430 final.