convergence of communications

8/9/2019 Convergence of Communications

1/15

Convergence of

Communications: Some

reflections

Venkat IyerBSc (Hons), LLB, LLM, PhD, Barrister

Schoolof Law, University ofUlsterLaw Commissioner, Northern Ireland


2/15

The c

hanging landscape

Shift in the balance of power between those whoown/controlcommunication networks and thosewhouse/benefit from the networks

Growing importance of socialcommunities anduser-generated content and a correspondingdecline in unidirectional broadcasting

Increasing demand for a spirit of neutrality andcompetition in the states regulatory approach(consistently with due regard for consumer

protection) Expanding view offree speech principles and the

chilling effect of restrictions on public discourse


3/15

The c

hanging landscape: IPRs

Shifting dynamics in the fight againstcopyright piracy e.g. Copyrouter/Kazaa,Napster litigation

The Google Book Searchlitigation BookRights Registry


4/15

Conceptual ch

allenges Need to rethink the evolution ofcommunication/

media policy as adequately served by disjointedincrementalism

Need toovercome a mindset whichcompartmentalises public nature of broadcastingand personal nature ofcommunication

Need to avoid situations where the government isboth the regulator and a major player in thecommunications/ broadcasting market/s

Need to ensure that incentives to develop andexploit new technologies are inbuilt into theregulatory framework/system


5/15

Practical ch

allenges Need to ensure better and more efficientuse of bandwidth in the face of everincreasing demand

Need to review constitutional/administrative regimes where federal-state demarcation issues impinge onsmoothfunctioning of the regulatoryregime

Need to strengthen copyright regimes atnationallevel, in terms of both substantivelaw and enforcement capacity


6/15

L

egal ch

allenges Continuing relevance of traditional

principles of substantive law

Adequacy and appropriateness of existingrules of procedurallaw (e.g. onjurisdiction, venue and applicable law forlitigation concerning copyrightinfringement and other disputes)


7/15

D

omestic law issues Lacunae in domesticlegal regimes e.g.

in relation to rights informationmanagement, sharing of infrastructure by

the media, broadcasting & telecom sectors

Territorial segmentation ofmarkets e.g.in relation tocable TV

Rights, powers, responsibilities and controlofcollecting societies, including disputeresolution mechanisms


8/15

The European experience: Satellite & Cable

D

irective History and evolution of the Directive

- rationale: encouragement ofcable TV, esp. in urban centres,across Europe, and use ofcable networks for simultaneoustransmission of TV programmes in remote areas

- demand by copyright holders of remuneration for retransmission

- resistance by cable network owners on grounds oforganisationaland technical non-feasibility

- resolution (by the courts) of dispute in favour of right holders

- searchfor solution to provide uninterrupted cross-borderreception ofcable programmes

- growthof satellite TV and problems with transmission ofmovies(distribution ofwhichhad been organised territorially and inaccordance with release windows cinema release, selling ofcassettes, lending ofcassettes, TV release)


9/15

Satellite & CableD

irective Incompatibility of territorially segmented rights

enforcement with EU principle offree movementof services

Plan toharmonise copyright provisions across allmember-states eventually unsuccessful

Plan to issue compulsory statutory licences forcross-border transmissions also abandonedafter fierce opposition from rights holders

Parties allowed tocontractually agree ondisallowing reception in particular countriesthrough encryption or other technicalmeans


10/15

Satellite & CableD

irective In relation tocable TV, rights holders only allowed to

exercise their rights throughcollecting societies, butexception made in respect ofbroadcasters (as theyare easily identifiable)

Given the multitude of rights holders, even collectingsocieties may not be able toobtain rights fromeveryone involved provision made forindemnification for damages (not injunctions) bycollecting societies vis-a-vis cable operators

Safeguards against abuse, in terms of bad faithrefusalofpermissions by collecting societies, orimposition ofunfair terms by cable operators, arebuilt into the Directive


11/15

Satellite & CableD

irective Overall verdict - not very favourable:

The envisaged future of a pan-European satellite broadcasting

market has not materialised. Instead, contractuallicensingpractices reinforced by the application of signal encryptiontechniques have allowed broadcasters and rights holders tocontinue segmenting markets along national borderlines.

- Bernt Hugenholtz

Also, future of the Directive not clear in the era ofincreasing convergence esp. given itsdedicated regimes for satellite and cabletransmissions


12/15

Internet broadcasting Proposal to apply country oforigin rule rejected

by rights holders internet broadcasting was not,they argued, simply communication to the

public, b

ut a

lso

invol

ves the rig

htof

reproduc

tion

Territoriality still a seriously contentious issuewithin the EU


13/15

Ch

allenges Existence of regulatory differentiation between

distribution platforms terrestrial TV, satelliteTV, DTH &mobile TV (deemed directcommu

nicati

on t

othe p

ublic), b

utcab

le TV andinternet-based TV (deemed secondary

communication to the public) and differentcopyright clearance regimes

Lack of globalonline database of rights holders in

various types ofcopyrighted work - impedimenttolegalcertainty and ease ofcopyrightclearance?


14/15

Ch

allenges Compensation feefrom ISPs forunauthorised file-sharing by theirsubscribers and the creation of a fund for

affected rights holders? (EU ReflectionDocument*) simple solution to a vexedproblem, or an unfair blunt instrument setto penalise law-abiding users?

* Creative Content in a European Digital Single Market


15/15

Minor adjustment or major overhaul?

Some fundamental questions Does convergence require a reconsideration of policy goals

by regulators?

Convergence and de-regulation: is convergence likely to aid or at least not hinder the process ofliberalisation that

has been the dominant trend worldwide? Does convergence pose a threat to the beneficiaries of

entrenched advantage (e.g. law enforcement agenciesenjoying untrammelled power of intrusion into individualscommunications, or recipients of subsidy for universalaccess)?

Does convergence require an overarching competition law

or mere sector-specificcompetition rules in a countryslegislative framework?

convergence of communications

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