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# 51998AP0136

**Legislative resolution embodying Parliament's opinion on the proposal for a Council Directive on the legal protection of services based on, or consisting of, conditional access (COM(97)0356 C4-0475/97 97/0198(COD)) (Decision procedure: first reading)** 
  
*Official Journal C 152 , 18/05/1998 P. 0059*

  

A4-0136/98

Proposal for a European Parliament and Council Directive on the legal protection of services based on, or consisting of, conditional access (COM(97)0356 - C4-0475/97 - 97/0198(COD))

The proposal was approved with the following amendments:

(Amendment 1)

Recital 2

>Original text>

Whereas the cross-border provision of broadcasting and information society services may contribute significantly to the achievement of those objectives;

>Text following EP vote>

Whereas the cross-border provision of broadcasting and information society services may contribute

, from the individual point of view, to the full effectiveness of freedom of expression as a fundamental right and, from the collective point of view, to the achievement of the objectives laid down in the Treaty;

(Amendment 2)

Recital 3

>Original text>

Whereas the Treaty provides for the free movement of all services provided for remuneration; whereas this right, as applied to broadcasting and information society services, is also a specific manifestation in Community law of more general principle, namely the freedom of expression as enshrined in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms;

>Text following EP vote>

Whereas the Treaty provides for the free movement of services

which are, as a rule, provided for remuneration; whereas this right, as applied to broadcasting and information society services, is also a specific manifestation in Community law of more general principle, namely the freedom of expression as enshrined in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; whereas this Article explicitly recognises the right of citizens to receive and impart information regardless of frontiers and whereas any restriction of that right must be based on due consideration of other legitimate interests deserving of legal protection;

(Amendment 3)

Recital 3a (new)

>Original text>

>Text following EP vote>

Whereas conditional access systems should not be used for the sole purpose of refusing access for consumers in some Member States to services which are freely available in other Member States;

(Amendment 4)

Recital 3b (new)

>Original text>

>Text following EP vote>

Whereas this Directive should grant protection against illicit (pirated) devices i.e. devices which are explicitly designed or technically adapted for unauthorised reception;

(Amendment 5)

Recital 5a (new)

>Original text>

>Text following EP vote>

Whereas the recent developments in technology and audiovisual media and their impact on the public also justify extending this legal protection to services provided in the context of a more general economic activity, or at least to some of those services;

(Amendment 25)

Recital 5b (new)

>Original text>

>Text following EP vote>

Whereas the encryption of broadcasting services must not inconsiderately deprive the average viewer of these services if they were orginally available without charge;

(Amendment 6)

Recital 6

>Original text>

Whereas the opportunities offered by digital technologies provide the potential for increasing consumer choice and contributing to cultural pluralism by developing an even wider range of services within the meaning of Articles 59 and 60 of the Treaty; whereas the viability of those services will often depend on the use of conditional access in order to obtain the remuneration of the service provider;

>Text following EP vote>

Whereas the opportunities offered by digital technologies provide the potential for increasing consumer choice and contributing to cultural pluralism by developing an even wider range of services within the meaning of Articles 59 and 60 of the Treaty; whereas the viability of those services will often depend on the use of conditional access in order to obtain the remuneration of the service provider;

whereas accordingly the legal protection of service providers against illicit devices which allow access to these services free of charge seems necessary in order to ensure the economic viability of the services;

(Amendment 7)

Recital 8a (new)

>Original text>

>Text following EP vote>

Whereas this Directive is without prejudice to Community or national provisions meant to ensure that a number of broadcasting services, recognised as being of public interest, are not based on conditional access;

(Amendment 8)

Recital 8b (new)

>Original text>

>Text following EP vote>

Whereas this Directive is without prejudice to the cultural aspects of any further Community action concerning new services;

(Amendment 9)

Recital 10

>Original text>

Whereas the application of the Treaty is not sufficient to remove these internal market obstacles; whereas those obstacles should therefore be removed by providing for an equivalent level of protection between Member States; whereas this implies an approximation of the national rules relating to the commercial activities which concern illicit devices.

>Text following EP vote>

Whereas the application of the Treaty is not sufficient to remove these internal market obstacles; whereas those obstacles should therefore be removed by providing for an equivalent level of protection between Member States; whereas this implies an approximation of the national rules relating to the commercial activities

and other activities, for the most part of an economic nature, which concern illicit devices.

(Amendment 10)

Recital 10a (new)

>Original text>

>Text following EP vote>

Whereas it seems necessary to ensure that Member States provide adequate legal protection against any individual or group using an illicit device for direct or indirect financial gain knowing, or with reasonable grounds to know, that they will enable or facilitate without authority the circumvention of any effective technological measures designed to protect the remuneration of a legally provided service;

(Amendment 11)

Recital 11

>Original text>

Whereas those commercial activities are detrimental to consumers who are misled about the origin of illicit devices; whereas a high level of consumer protection is needed in order to fight against this kind of consumer fraud; whereas Article 129a(1) of the Treaty provides that the Community should contribute to the achievement of a high level of consumer protection by the measures it adopts pursuant to Article 100a.

>Text following EP vote>

Whereas those activities are detrimental to consumers who are misled about the origin of illicit devices; whereas a high level of consumer protection is needed in order to fight against this kind of consumer fraud; whereas Article 129a(1) of the Treaty provides that the Community should contribute to the achievement of a high level of consumer protection by the measures it adopts pursuant to Article 100a.

(Amendment 12)

Recital 13a (new)

>Original text>

>Text following EP vote>

Whereas the sanctions and remedies provided for under this Directive are without prejudice to any other sanction or remedy for which provision may be made under national law, such as preventive measures in general or seizure of illicit devices;

(Amendment 13)

Recital 14a (new)

>Original text>

>Text following EP vote>

Whereas in accordance with Article 5 of the Treaty, the Member States are required to take all measures necessary to guarantee the application and effectiveness of Community law, in particular by making the penalty chosen effective, proportionate and dissuasive;

(Amendment 14)

Recital 14b (new)

>Original text>

>Text following EP vote>

Whereas, when adopting the provisions laid out by this Directive, Member States should act in accordance with the Communication from the Commission to the Council and the European Parliament on the role of penalties in implementing Community internal market legislation which states "only a consistent approach to the question of penalties in the internal market context is capable of ensuring both fair competition under fair trading conditions and the protection of those aspects of the general good covered by common rules¨;

(Amendment 15)

Recital 15

>Original text>

Whereas this Directive should be without prejudice to the application of national provisions which may prohibit the private possession of illicit devices; whereas this Directive is without prejudice to the application of Community competition rules; whereas this Directive is without prejudice to the application of Community rules concerning intellectual property rights.

>Text following EP vote>

Whereas this Directive

is without prejudice to any measures by Member States seeking to prohibit the private possession of illicit devices; whereas this Directive is without prejudice to the application of Community competition rules; whereas this Directive is without prejudice to the application of Community rules concerning intellectual property rights.

(Amendment 16)

Recital 15a (new)

>Original text>

>Text following EP vote>

Whereas this Directive is without prejudice to the right of the viewer to have access to free-to-air channels within a conditional access service platform without being required to pay an additional fee beyond the normal charge for accessing the platform;

(Amendment 17)

Recital 16a (new)

>Original text>

>Text following EP vote>

Whereas a balance must be secured between the interest of the service providers and copyright holders to be remunerated for their services (by encryption) on the one hand and the interest of the general public not to be excluded more and more from information and cultural events;

(Amendment 18)

Article 1(a)

>Original text>

(a) 'Protected service' means any of the following services, were provided on the basis of conditional access:

- television broadcasting, as defined in point (a) of Article 1 of Directive 89/552/EEC;

>Text following EP vote>

(a)

'Protected service' means any of the following services, were provided on the basis of conditional access:

- television broadcasting, as defined in point (a) of Article 1 of Directive 89/552/EEC, in conjunction with Article 2a of that Directive as amended by Directive 97/36/EC(3a);

>Original text>

- radio broadcasting, meaning any transmission by wire or over the air, including that by satellite, of radio programmes intended for reception by the public;

- information society services within the meaning of Article 1, point 2 of Council Directive 83/189/EEC, as amended by Directive.../...(5),

>Text following EP vote>

- radio broadcasting, meaning any transmission by wire or over the air, including that by satellite, of radio programmes intended for reception by the public;

- information society services within the meaning of Article 1, point 2 of Council Directive 83/189/EEC, as amended by Directive.../...(5).

>Original text>

or the provision of conditional access to the above services as a service in its own right.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(5) OJ L ...

>Text following EP vote>

This term also covers the provision of conditional access to the above services, considered as a service in its own right.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(3a) OJ L 202, 30.7.1997, p. 60.

(5) See proposal for a Directive COM(96)0392 final, OJ C 307, 16.10.1996, p. 11.

(Amendment 20)

Article 1(b)

>Original text>

(b) 'conditional access¨ means any technical measure and/or arrangement whereby access to the service in an intelligible form is made conditional on a prior individual authorization aiming at ensuring the remuneration of that service;

>Text following EP vote>

(b)

'conditional access¨ means any technical measure and/or arrangement whereby access to the service in an intelligible form is made conditional on a prior individual authorization aiming at protecting the economic value of that service;

(Amendment 21)

Article 1(c)

>Original text>

(c) 'conditional access device' means any equipment or software designed or adapted to give access to a protected service in an intelligible form;

>Text following EP vote>

(c)

'conditional access device' means any equipment or software designed, assembled or adapted to give access to a protected service in an intelligible form;

(Amendment 22)

Article 1(e)

>Original text>

(e) 'illicit device' means any equipment or software designed or adapted to give unauthorized access to a protected service.

>Text following EP vote>

(e)

'illicit device' means any equipment or software designed, assembled or adapted to give unauthorized access to a protected service.

(Amendment 23)

Article 3(aa) (new), (b) and (c)

>Original text>

>Text following EP vote>

(aa) making available an illicit device for direct or indirect financial gain;

>Original text>

(b) the installation, maintenance or replacement for commercial purposes of an illicit device;

>Text following EP vote>

(b)

the installation, maintenance or replacement for commercial purposes or for direct or indirect financial gain of an illicit device;

>Original text>

(c) the use of commercial communications to promote illicit devices.

>Text following EP vote>

(c)

the use of commercial communications to promote illicit devices, advertising, direct marketing, sponsorship, sales promotion, public relations, etc.;

>Original text>

>Text following EP vote>

(ca) advertising concerning the manufacture, import, sale and availability in general of illicit devices;

>Original text>

>Text following EP vote>

(cb) advertising concerning activities and measures facilitating unauthorized access;

(Amendment 24)

Article 4(2)

>Original text>

2. Each Member State shall take the measures necessary to ensure that service providers, whose interests are affected by an infringing activity carried out on its territory, can bring an action for damages and seek an injunction and, where appropriate, apply for the seizure of illicit devices.

>Text following EP vote>

2.

Each Member State shall take the measures necessary pursuant to its legislation to ensure that service providers, whose interests are affected by an infringing activity carried out on its territory, can bring an action for damages and seek an injunction and, where appropriate, apply for the seizure of illicit devices.

Legislative resolution embodying Parliament's opinion on the proposal for a Council Directive on the legal protection of services based on, or consisting of, conditional access (COM(97)0356 - C4-0475/97 - 97/0198(COD))(Decision procedure: first reading)

The European Parliament,

- having regard to the Commission proposal to the Council, COM(97)0356 - 97/0198(COD) ((OJ C 314, 16.10.1997, p. 7.)),

- having regard to Articles 189b(2), 57(2), 66 and 100a of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C4-0475/97),

- having regard to Rule 58 of its Rules of Procedure,

- 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 and the Committee on Culture, Youth, Education and the Media (A4-0136/98),

1. Approves the Commission proposal, subject to Parliament's amendments;

2. Calls on the Commission to alter its proposal accordingly, pursuant to Article 189a(2) of the EC Treaty;

3. Calls on the Council to incorporate Parliament's amendments in the common position that it adopts in accordance with Article 189b(2) of the EC Treaty;

4. Should the Council intend to depart from the text approved by Parliament, calls on the Council to notify Parliament and requests that the conciliation procedure be initiated;

5. Points out that the Commission is required to submit to Parliament any modification it may intend to make to its proposal as amended by Parliament;

6. Instructs its President to forward this opinion to the Council and Commission.

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