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EC Developments in it law
EC
EC DEVELOPMENTS A. INTELLECTUAL
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1. COPYRIGHT
author plus 50 years to the author’s life plus 70 years and was implemented in the UK by SI 1995/3297 with effect from 1 January 1996.
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IN IT LAW Related Rights in the Information Society (COM (95) 382) In July 1995, the Commission published a consultation paper aimed at
This is the latest edition of Baker & McKenzie’s column on recent developments in EC law relating to Intellectual Property, IT and Telecommunications. A summary of this information in tabular form will be printed (with any updates) in the next edition of CLSR.
Directive on Rental and Lending Rights (01 1992 L346/61) The Directive on Rental and Lending Rights harmonizes certain areas of sound recording and fihn rights and requires Member States to provide a rental right in respect of certain copyrights. It was implemented in the UK on 1 December 1996 by the Copyright and Related Rights Regulations 1996 (SI 1996/2967). Directive on Copyright and Rights Related to Copyright Applicable to Satellite Broadcasting and Cable Retransmissions (01 1993 U48/15) This Directive provides for an extension of copyright and related rights protection to broadcasting of works by satellite and to their retransmissionby cable. The Directive was implemented in the UK in conjunction with the Directive on Rental and Lending Rights on 1 December 1996 by the Copyright and Related Rights Regulations 1996 (SI 1996/2967). Proposal for a Council Decision (0) 1996 Cl 64/3) This proposal is for a Council Decision approving the Council of Europe Convention relating to Copyright and Neighbouring Rights in the frame-work of transborder broadcastingby satellite. The proposal is in abeyance pending ratification by Member Stateswho are signatories of the Convention. No Member State has yet ratified the Convention. Directive on Term of Protection of Copyright (01 1993 l290/9) This Directive extends the basic term of protection from the life of the
Copyright and Performances Treaties: Proposal for a Council Decision (COM (97) 193) This is a proposal for a Council Decision authorizing the signature on behalf of the Community of the WIPO Copyright and Performancestreaties. Two treaties were adopted by the WIPO on 20 December 1996, one relating to copyright and the other one to neighbouring rights. Articles 17(3) and 26(3) of the respective treaties provide that the European Community is able to become a contracting party. Directive on Legal Protection of Databases (OJ 1996 L77/20) The Directive on the Legal Protection of Databases adopted on 11 March 1996 is intended to harmonize protection of databases. Databases which are original (in the senseof the Software Directive) in their selection or arrangement enjoy copyright protection. In addition databases, irrespective of whether they qualify for copyright protection or not, are to enjoy a 15 year right to forbid unauthorized extraction or re-utilization of substantial parts of their contents of the database for commercial purposes. A consultation paper together with a draft Statutory Instrument was distributed in August by the DTI to interested parties. The DTI had askedfor comments to be returned by the end of September 1997 to allow it adequate time to prepare for the implementation date of 1 January 1998. Seethe full text of the Consultation Paper on page 4 19 of this issue. Green Paper on Copyright and
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seeking comments on the impact of new technology on the law of copyright. The Green Paper addressesthe fundamental question of whether further harmonization of copyright law is required and if so in what manner. It deals with nine areas of copyright law, including reproduction rights and digital dissemination and transmission rights. A follow-up communication consolidating the outcome of the consultation process was issued by the Commission on 20 November 1996 (COM (96) 568). The Commission identified areas where proposals will be made to eliminate significant barriers to trade in copyright goods and services and/or distortions of competition between Member States. These included (a) a harmonized right of ‘Communication to the Public’ accorded to authors and holders of neighbouring rights to protect their works when transmitted on the Internet and ocher online services; (b) the standardkzation of electronic copyright management systems and protection systems, with a view to achieving interoperability of systems; (c) the harmonization of distribution rights and exhaustion of rights principles; and (d) the strengthening of moral rights protection to take account of the technological advances in the Information Society. A draft Directive following the 1996 Communication is expected to be issued by DG XV in October/November this year.
2. PATENTS Agreement relating to Community Patents (OJ 1989 L401/1) This Agreement incorporates a revised version of the Community Patent Con-
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vention signed on 15 December 1975 which provides for a Community patent. The principle of the Convention is that at the end of the European granting procedure provided for in the European Patent Convention of 1973 a single patent for the Community will be granted if a patent is sought for any of the EU States.The advantage of the Community patent is the ability to enforce it in the Community by a single proceeding. The Agreement, which to date has only been ratified by eight Member States,seeks to deal with the complexity of such an enforcement procedure and is not in force. Green Paper on the Community Patents and the Patent System in Europe This Green Paper was adopted by the Commissionon 24 June 1997 and asks whether the patent system in Europe should be improved and modernized. More specifically, it asks whether interested parties would make use of a Community patent system established by Regulation, under Art. 235 of the EC Treaty. Other issuescovered include employee’s inventions, the use of patent agentsand the recognition of professional qualification. The consultation process is due to complete in November 1997 when the Commission is to hold a hearing at which interested parties will be able to comment further on the main points to emerge from the debate. Proposed Directive on Legal Protection of Biotechnology Inventions (COM (95) 661) This Directive is intended to establisha clear legal framework for the protection of biotechnological inventions through national patent law. It is principally a harmonizing and clarifying measure.The Commissionhas adopted an amended proposal which reflects the amendmentsto its previous proposal, which were adopted by the European Parliament on 16 July this year. The new proposal explicitly rules out the cloning of human beings and provides for the creation of an independent committee which will assess ethics. Council will consider the Commission’sposition at the meeting of the Single Market Council on 27 November 1997.
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Regulation on Creation of a Supplementary Protection Certificate for Plant Protection Products (Oj 1997 L198) The aim of the Regulation is to extend the patent protection given to plant protection products by providing for the creation of a Supplementary Protection Certificate effective for up to five years. The Regulation was implemented in the UK by SI 1996/3120 which came into force in full on 8 February 1997. The UK Regulations extend the power of the Secretary of State to make rules on, and set fees for, applications for the new Certibcate.
3. DESIGNS Proposed Directive on Legal Protection of Industrial Designs (OJ 1993 C345/14 as amended by OJ 1996 Cl 42) The draft Directive on the Legal Protection of Designs, which is to harmonize existing Member States’ laws on registered designs,is still under discussion. An amended draft was approved at its first hearing by the European Parliament in October 1995 and proposalswere issuedon 20 March 1996. Most notably, these exempted spare parts required for repair purposeswhich need to be the shapethey are to match the appearance of the whole product, subject to the original designer having reasonableremuneration rights. In March 1997, the Internal Market Council rejected several ‘of the amendments suggestedby Parliament, especially on the spare parts issue.It is now expected that a conciliation processwill follow early in 1998. A draft Regulation (Corn (93) 342) is designed to compliment the draft Directive by providing a Communitywide systemfor the legal protection of industrial designs(both registered and unregistered) and administered by a central Community Designs Office is also still under discussion. The progress of the draft Regulation has been stalled pending agreement on the draft Directive. Green Paper on the Protection of Utility Models (COM (95) 370) On 19 July 1995, the Commission produced a Green Paper on the pro-
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tection of utility models .which they describe as a registered right which confers exclusive protection for a technical invention which must be novel and involve an inventive step but which can be granted without a prior search. It would, in other words, be a ‘second tier’ patent-type right. The Green Paper states its approval of utility models as quick, simple, cheap and offering temporary protection pending the grant of a patent and proposes that the term of protection would be short (a maximum of 10 years), the level of inventiveness should be less than for patents and that the three-dimensional form requirement could be abolished. The Green Paper did not actually make any proposals for legislation, however, a Commissionpaper is now expected in October.
4. TRADEMARKS Directive approximating the laws of Member States relating to Trademarks (0) 1989 L40/1) This Directive approximates the laws of Member States relating to trade marks. It was implemented in the UK by the 1994 Trademarks ,4ct (effective from 1 November 1994). The 1994 Act altered the law of trademarks in the UK quite dramatically by, amongst other things, extending the definition of a ‘trademark’ so that it now includes shapes, colours, sounds and smells, extending the definition of infringement to include use of a mark on similar goods, applying a ‘capacity to distinguish’ test for all applications, providing protection for ‘well-known’ marks, and abandoning the requirement to register users of a mark.
Council Regulation on Community Trademarks (01 1994 LO11) The UK implemented the Regulation through the Trademarks Act 1994.The Community Trademark Office in Alicante started taking applications in January 1996 the Community Trademark entered into force on 1 April 1996. The Counterfeit Goods Regulation (EC 3295/94)
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This regulation sets out measures to prohibit the release for circulation, export, re-export or entry of counterfeit and pirated goods. This has been implemented in the UK by SI 1995/ 1445, SI 1995/1444, SI 1995/1447 and SI 1995/1430. Proposed Council Decision to Approve Community Accession to Madrid Protocol (0) 1996 C293/11: COM (95) 92) This proposal is for a Council Decision approving the accession of the European Community to the Protocol relating to the Madrid Agreement concerning the international registration of marks.The Protocol madeit possible for an intergovernmental organization which has a regional office for the purpose of registering marks (i.e. the EU) to become a party to the Protocol.
5. TOPOGRAPHY
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Directive 87/54 on the Legal Protection of Topographies of Semi Conductors (OJ 1987 l24/36) This Directive provides that Member Statesshallprotect the topographies of semiconductor products by adopting legislative provisions conferring exclusive rights in accordance with the provisions of the Directive. The Directive was implemented in the UK by SI 1989/l 100 as amended. The SI came into force on 1 August 1989.
B. PERSONAL DATA
Data (Oj 1995 L281/31) This Directive aims to ensure the free movement of data within the EU and to harmonize the level of protection of the processing of personal data. It was adopted on 24 October 1995 and is to be implemented by 24 October 1998. In the UK, this wiU require the Data Protection Act 1984 to be amended or replaced. A consultation document on the Directive was issuedby the Home Office on 22 March 1996. Consultation with industry is now complete but, due to the change in government, it is not yet clear how the Directive will be implemented. It is still expected, though, that the deadline of 24 October 1998 will be met. The proposed ‘ISDN Data Protection Directive’ (COM (90) 314 as amended by COM (94) 128, COM (95) 375 and COM (97) 94) This proposed directive is basedon the general Data Protection Directive outlined above but contains specific provisions regarding telecommunications equipment and services. On 5 March 1997 (COM (97) 94) the Commission issued an opinion on the Parliament’s amended proposal for this Directive rejecting four of the proposed amendments. The proposed implementation date is 24 October 1998, in line with the general Directive.
C. COMPETITION
Directive 95/46 on Protection of Individuals in relation to Personal
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undertakings do not exceed certain limits. The Regulation becameeffective on 1 March 1985. Technology Transfer Block Exemption Regulation (OJ 1996 L31/2) The Technology Transfer Block Exemption Regulation was enacted on 31 January 1996. The Regulation becameeffective on 1 April 1996 and wilI remain in force until 31 March 2005. The Patent Licensing Block Exemption Regulation (Regulation 234984) expired on 31 March 1996 and tbe Know-how Licensing Block Exemption Regulation (Regulation 556/89) was repealed with effect from 1 April 1996. Agreements in force on 31 March 1996 which fuIfll the exemption requirements laid down under Regulations234984 and 556/89 continue to be exempted. Exclusive Distribution and Exclusive Purchasing Agreements The Regulations on exclusive distribution and exclusive purchasing agreements (Nos. 1984/83 and 1983/83) were due to expire on 31 December 1997. The Commission has indicated that the term of the RegulationswiU be extended until 31 December 1999. In the meantime, issuesrelating to vertical restraints such as those permitted by the Regulationsare under review by the Commissionin its Green Paper on Vertical Restraints (see below).
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Research and Development Block Exemption Regulation (OJ 1985 L53/5)
Council Convention for Protection of Individuals with regard to Automatic Processing of Personal Data (European Treaty Series 108 Strasbourg 1981) The Convention, implemented in the UK on 12 July 1984 by the Data Protection Act 1984, provides for the registration by ‘Data Users’ of the fact and extent of their electronic storage of personal information. ‘Data Subjects’ are given the right to access this information and to demand correction/deletion of the data held.
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The Regulation provides that certain joint research and/or development agreements wiU not infringe Article 85 (1) of the Treaty of Rome. Among other requirements, each party must be free to exploit the results of the joint project and their combined production of the products capable of being improved or replaced by the agreement must not exceed 20% of the market for those products. The ambit of the Block Exemption was extended by Regulation 151/93 (OJ 1993 LO21/8), under which agreements for the joint distribution of products resulting from joint research and development are exempt from Article 85(l) provided that the aggregate turnover and market sharesof the
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Green Paper on V’ertical Restraints in EC Competition Policy (COM (96) 721) This Paper, which was issued by the Commission on 23~January 1997, reviewed the present position of and invited comment bly 31 July 1997 on vertical restraints such as exclusive purchasing, exclusive distribution, franchising and selective distribution. The Green Paper set out possible options for dealing with vertical restraints in future Block Exemptions. It invited comments on these, and on the issues of resale price maintenance, impediments to parallel trade, turnover thresholds, and use of the ‘non-opposition’ procedure. The consultation processis continuing. Draft Notice on Aagreements of Minor Importance (OJ 1997 C29/
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03) This draft notice suggestsa change to the de minimis rule for the application of Article 85(l) of the EC Treaty. The proposal is to remove the test which looks to the total turnover of the companies involved and concentrates, instead, on market share (5% for ‘horizontal’ agreements, 10% for ‘vertical’ ones). Although this is still only a proposal, it seems likely that the Commission will act on it. The Consultation period has now ended.
D. ADVERTISING Proposed Directive on Comparative Advertising (Oj 1996 C219/14) The proposed Directive would amend the Misleading Advertising Regulations implementing Directive 84/450/EEC which aims to protect business and the general public againstthe effects of misleading advertisements. It would extend the Regulations to allow comparative advertising provided that a number of specific conditions are met (e.g. it is not misleading, it does not create confusion, or it does not discredit or denigrate the advertiser’s competitors). Following Parliament’s Opinion on the proposed Directive issued on 23 October 1996, the Commissionissued an amendedproposal for the Directive in January 1997. The Commission rejected Parliament’s proposal that results of comparative tests should be published only with the consent of the person who carried out those tests on the basis that the measure went beyond what was necessary for the achievement of the Directive’s aims. The Commission added provisions to the effect that comparative advertising must not discredit or denigrate the personal qualities or circumstancesof a competitor and that national professional codes would be respected provided that those codes complied with the provisions of the Treaty of Rome.
E. STANDARDIZATION Council Recommendation 95/l 44/ EC on Common Information Technology Security Evaluation Criteria (OJ 1995 L93/27) The Senior Official Group for Security
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of Information Systems published the Information Technology Security Evaluation Criteria as a first step towards offering a common approach to the provision of security of information systems.These pre-standard, preferred criteria were recommended for adoption for an initial period of two years followed by a review. Commission Communication on Standardization and the Global Information Society: The European Approach (COM (96) 359) This Communication issuedon 2.4July 1996 examines, in light of the characteristics of the Information and Communications Technology (ICT) market and the ICT standard process, the best way to develop standardsfor the implementation of the Infomlation Society and provides for a review of standards-relatedobstaclesto the creation of new XT-based services and a commitment to protect competition and encourage open and non-discriminatory specifications and standardsfor new services and ICT applications.
F. PUBLIC PROCUREMENT Council Directive coordinating Procedures of Entities Operating in the Excluded Sectors (0) 1993 L199/84) This Directive (the ‘Utilities Directive’), which regulates the award of supply, works and services contracts by utilities, was implemented in the UK on 12 December 1996 by SI 1996/2911. In 1995 the Commission proposed amendments (OJ 1995 C138) aiming to simplify the procedure and avoid reverse discrimination in Member States. The proposal was rejected by Parliament in July 1996 but a new Council Position was adopted in December 1996 (Corn (96) 598) and this will be reconsidered by Parliament soon. Green Paper on Public Procurement in the EU This paper was adopted by the Commission on 27 November 1996. It invites comments on the current EU Public Procurement regime and the consultation process is continuing.
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G. TELECOMMUNICATIONS Commission Communication on Competitiveness of European Information and Communication Technologies (ICT). (CDM (97) 152) This Communication to the European Parliament and the Council from the CommissiondescribesICC as a critical component of the European economy. The main challenges facing the European ICT industries are discussedand priority areas for European Policy Initiatives are highlighted. Council Directive on the Application of Open Network Provision (ONP) to Voice Telephony (OJ 1995 L321/6) This Directive aims to ensure that all service providers and users, including residential customers,have guaranteed open and efficient accessto the voice telephony service and network. The Directive was adopted on 13 December 1995 and the Directive was implemented by Sl 1886/1997 which came into force on 22 August 1997. Proposed Directive on the Application of the Opfen Network Provisions (ONP) to Voice Telephony and on Universal Service for Telecommunications in a Competitive Environment (COM (96) 419 final)
This proposed Directive was adopted by the Commission on 5 November 1996. Its purpose is to revise the existing Directive 95/62 in order to take account of the forthcoming liberalization of the telecommunications market by I. January 1998. It introduces a new requirement for Member States to ensure that telephone services are affordable while taking into account naltional circumstances and sets out a mechanismfor monitoring the quality of service. At the Telecoms Council meeting in March 1997 political agreement was reached. The Council a.dopted a common position on 9 June and the Directive is effective from 31 December 1997. Directive amending Directive 90/ 388 with Regard to the Abolition of
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Restrictions on the Use of Cable Television Networks for the Provision of already liberalized Telecommunications Services (OJ 1995 L 256/49)
This Directive requires Member States to abolish all restrictions on the supply of transmission capacity by cable TV networks and allow the use of cable networks for the provision of telecommunications services, other than voice telephony. Member States must also ensure the interconnection of cable TV networks with the public telecommunications network. No legislation is required for implementation of the Directive in the UK. However, the UK has notified the Commission, as is permitted under the Directive, that it intends to defer until 1January 1998 its obligation to ensure that those cable TV operators who have an exclusive right to provide cable TV infrastructure maintain separate accounts for telecommunications activities if their turnover exceeds 50 million ECU. Directive amending Directive 90/ 388 with Regard to Mobile and Personal Communications (OJ 1996 L20/59)
The aim of this Directive was to open up mobile communications services to competition by the introduction of licensing schemesor declaration procedures. It did so by extending the application of Directive 90/388 (on the abolition of special or exclusive rights granted by Member States in the field of telecommunications services) to mobile and personal communications. The Directive entered into force on 15 February 1996.
Directive amending Directive 90/ 388 with Regard to Satellite Communications (0) 1994 L268/15)
The aim of this Directive is to allow for full liberalization of the satellite services and equipment sectors, including the abolition of all exclusive or special rights in this area and to set out a scheme for non-discriminatory and proportional licensing. The Directive entered into force on 8 November 1994 and was implemented in the UK on 14 August 1995 by the Telecommunications (Satellite Communications)
Services Regulations 1995 (SI 1995/ 1947). Council Directive 93/97 supplementing Directive 91/263 on Satellite Earth Station Equipment (OJ 1993 U90/1)
This Directive extends the provisions of Directive 91/263 on the mutual recognition of type approval for telecommunications terminal equipment within the Community, to satellite earth station equipment including one and two-way VSAT, mobile and transportable satellite earth station equipment, satellite news.gathering equipment and television receive-only satellite earth station equipment. The Directive enables manufacturers to have equipment tested in one country in the European Union and to export that equipment to all other countries in the Union without further administrative procedures. It was implemented in the UK on 1 May 1995 by SI 1994/
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en European services and industry in global satellite systems and in any future Universal Mobile Telecommumcations Services (uMTs). Decision 2717/9S on a Set of Guidelines for the Development of the EURO-ISDN (Ilntegrated Services Digital Network) as a Trans-European Network (OJ 1995 L282/16)
In an effort to ensure the harmonized introduction of ISDN services Europewide, the European Parliament and the Council adopted a decision on 9 November 1995 establishingguidelines identifying the objectives, priorities, broad categories of measures and a number of projects of common interest concerning the development of EUROISDN as a tram+European network. A review of these guidelines will take place in 1997 in light of any changesin the rules applicable to EURO-ISDN.
3129. Proposed Decision on a Coordinated Approach in the Field of Satellite Personal Communications Services in the Community (COM(95) 529)
This proposed Decision aims at ensuring in a timely fashion the introduction of satellite personal communications services (S-PCS)in the EU by meansof coordinated action at EU level. In March 1997 the Commissionaccepted Parliament’s amendments of February 1997 (COM (97) 101). The proposed Decision has been formally adopted by the Telecommunications Council.
Communication on the European Union and Space - Fostering Applications, Markets and Industrial Competitiveness. (COM (96) 617)
This Communication aims to highlight the need for action to establish an appropriate environment for the development of space applications and to improve the competitiveness of European industry at world level. It foreshadows the specific Action Plan on Satellite Communications which was published on 3 March 1997 (COM (97) 91). This setsout a strategy to strength-
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Decision on a Series of Guidelines for Trans-European Telecommunications Networks (Telecoms TEN’)(OJ 1997 L183)
On 31 May 1995, the Commission adopted a propos;al for a European Parliament and Council Decision on a series of guidelines for trans-European telecommunications networks. The decision was adopted on 11 July 1997. In line with the EURO-ISDN guidelines, these guidelines cover the objectives, priorities and broad categories of measures envisaged and the domains for projects of common interest in the field of trans-European telecommunications networks. This Decision setsup a programme to m;ake grants of funds to further its aims. Full Competition L74/13)
Directive
(OJ 1996
On 13 March 19916,the Commission adopted Directive 96/19 which requires Member Statesto introduce full competition for tel’ecoms services (meluding voice) and infrastructure by 1 January 1998. No new UK legislation is currently being contemplated to implement this Directive in the UK. Directive on Interconnection in Telecommunications (OJ 1997 L199)
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The Directive on interconnection in telecommunications (97/33/EC) sets out a harmonized regulatory framework for the regulation by National Regulatory Authorities of the interconnection of telecoms networks and services. This Directive is intended to ensure open access to networks and services and to guarantee the rights and obligations of operators and service providers in relation to the networks and services of others. A common position was adopted on 18 June 1996 which was followed by conciliation with the European Parliament. The text of the directive was finally adopted on 30 June 1997 and will require implementation by Member Statesby 31 December 1997. The DTI and OFIEL are aiming to issue a consultation paper to interested parties by the end of September 1997. Directive on Common Framework for General Authorizations and Individual Licences in Telecommunications (97/l 3/EC) This Directive is intended to facilitate accessto telecoms markets throughout the EU by providing a harmonized telecommunications licensing regime in all Member States.It was adopted by the Parliament and Council on 10 April 1997 with an implementation date of 31 December 1997. The DTI and OFIEL aimed to issue a consultation paper to interested parties by the end of September 1997 with a view to implementation by 31 December 1997. Commission Communication on Universal Service for Telecommunications in the Perspective of a Fully Liberated Environment (COM(96) 73) On 13 March 1996, the Commission issued a Communication detirting the basic obligations to provide telecommunications services which should be required by Member States.The Commission defines universal service as “guaranteed accesson affordable conditions to a range of telecom services, including voice telephony, fax and electronic data, allowing every citizen of the EU thereby to participate in the information society”. Affordability is a key element in the concept, but it is not yet an explicit requirement in the ONP and Voice Directive.
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Communication on Assessment Criteria for National Systems for Calculating the Cost and Financing of Universal Service in the Telecommunications Sector. (COM(96) 608). This Communication identifies the principal elements that the Commission will assessin looking at national universal service schemes.It also provides detailed guidelines for best practice in national approaches to the costing and financing of universal service. Green Paper on a Numbering Policy for Telecommunication Services in Europe (COM (96) 590 final) This paper was approved by the Commission on 20 November 1996. In it, the Commission invites discussion on the development of a single Europewide telecommunications numbering system. It sets out a number of objectives and a phased timetable, starting with the free selection of the operator on a call-by-call basis,number portability and restructuring of national numbering plans and space by 1 January 1998. The paper was endorsed by the Council in July 1997 and the draft Directive is due to be published in October. The UK is vigorously opposing the imposition of mandatory equal access. Draft Notice on the Application of Competition Rules to Telecommunications. (IP/96/1152). This draft Notice aims to clarify the rules of EU competition law when applied to access agreements in the telecommunications sector and in particular sets out how the Commission will apply general EU competition law principles of market definition, market power and essential facilities in the telecommunications sector.
H. MEDIA/BROADCASTING Proposed Amendment to Television Without Frontiers Directive (1989 U98/23) The proposal to ensure the unrestricted movement of television broadcasts within the European Union by making the broadcaster jurisdiction
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dependant on its place of establishment was adopted by Parliament in June 1997 and is to be liplemented before January 1999. Proposed Directive on Legal Protection of Television and Radio Broadcasting Where Access is Subject to Payment (No reference as yet.) In July, the Commission proposed this Directive to protect television and radio broadcasting and information services offered to the public at a distance where accessis subject to payment. If adopted, the Directive will require Member Statesto prohibit and provide appropriate sanctions against all commercial activities related to unauthorized accessto a protected service. Directive of the European Parliament and of the Council on the use of standards for the tralnsmission of television signals (Directive 95/47/ EC. Oj 1995 l281) This Directive provides for transparent, fair and non-discriminatory access to conditional accesssystems,used in TV transmissions. It was implemented in the UK by SI 1996/3151 as amended by SI 1996/ 3197 which both came into force on 7 January 1997. Green Paper on the Legal Protection of Encrypted Broadcast. (COM (96) 76 Final) The Commission adopted this Green Paper on 6 March 1996. The Paper notes that the fragmentation or absence of rules is preventing the Single Market from operating properly and is holding back the development of a European Market in encrypted services including, for example, pay television, video on demand and teleshopping. Wide ranging consultations with interested parties came to a close on 31 May 1997 and a final decision is now awaited from the Commission as to what action, if any, is needed.
I. INTERNET AND NIC COMMERCE
ELECTRO-
Commission Communication on IIlegal and Harmful Content on the
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Internet (COM (96) 487). This Communication was released on 16 October 1996. On 27 November 1996 the Telecoms Council adopted a position advocating that self-regulatory organizations be set up in which Internet Service Providers (ISPs) and content-providers would regulate the content of the Internet. Since then, a body called the Internet Watch Foundation has been lobbying the EU (and individual Member States) and the OECD to implement this proposal. A Parliament Resolution calling for an update was passedon 24 April 1997. The Internet Watch Foundation has launched a ‘Safety-Net’ initiative in conjunction with the Metropolitan Police and ISPs. A hot line has been set up for parents to report findings of potentially illegal or explicit material. The scheme has been successful and the Commissionwants it to be adopted acrossthe Community. Proposal on a Multiannual Community Programme to Stimulate the Establishment of the Information Society (COM(96) 592) The aim of this proposal, which was published on 13 December 1996, is to authorize the Commissionto promote the development of the Information Society in Europe by increasing public awarenessand promoting widespread access. Initiative for the Promotion of Electronic Commerce in Europe (COM (97) 157). The aim of this initiative, which was published on I6 April 1997, is to encourage the growth of electronic commerce in Europe. It provides a coherent framework for future EU action and aims at establishing a common EU position to achieve global consensusthrough international negotiations. In order to implement it, the Commissionplans to undertake several key actions by the year 2000. These include proposals to ensure accessto
the global marketplace, create a favourable regulatory framework and promote the businessenvironment.
J. MISCELLANEOUS Unfair Terms in Consumer Contracts Directive (OJ 1993 L95) The aim of this Directive is to provide a minimal level of protection to consumers when purchasing goods in any Member State. It requires Member States to implement provisions under which any standard term in a contract between a seller/supplier and a consumer wilI be voidable at the instance of the consumer if the term is ‘unfair’ under the Directive. The Directive was implemented in the UK by the Unfair Terms in Consumer Contracts Regulations SI 1994/3159, effective from 1 July 1995. Council Directive on Protection of Consumers in respect of Contracts Negotiated at a Distance (0) 1992 Cl56 as amended by OJ 1993 C308) This Directive alms to harmonize the laws of Member States on contracts between suppliers and customers for goods and services solicited and concluded at a distance aspart of a salesor service provision schemesuch as sales by mall order and by the Internet. The Directive provides that certain information must be given to the consumer before a distance contract is concluded including the identity of the supplier, the main characteristics of the goods or services, delivery costs where appropriate, the price of the goods or services including any applicable taxes, the existence of a right of withdrawal and details of payment, delivery and performance arrangements. Distance selling is largely regulated by codes of practice in the UK and general principles of contract law. New legislation will be required to implement aspects of the Directive.
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Proposed Directive on the Sale of Consumer Goods and Associated Guarantees (COM (95) 520) This proposal compliments Directive 93/l 3 concerning unfair contract terms. The aim is to harmonize the laws of Member States on guarantees and after-sales services in order to encourage consumers to enter into trans-border purchases. The proposal addressesboth legal and commercial guarantees. Green Paper on Commercial Communications in the Internal Market (COM (96) 192) This Green Paper imakesproposalsfor the future regulation of ‘commercial communications’. This includes all forms of advertising, direct marketing, sponsorship,salespromotions and public relations promoting products and services. Cross-border commercial communications are a growing phenomenon in the Internal Market and the current differences in national regulations could create obstacles for companies wanting to offer such services across national borders and create problems for consumers seeking redress.
For further information on any of the above, please contact Don Jerrard ([email protected]) or Harry Small ([email protected]), both of whom are partners in the Intellectual Property and Technology Law department of the London office of Baker 81 McKenzie (tel: +44 171 919 1000). Mr Jerrard and Mr Small were assisted in the preparation of this article by Robert Bratby ([email protected]) an associate in the same department.
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author plus 50 years to the author’s life plus 70 years and was implemented in the UK by SI 1995/3297 with effect from 1 January 1996.
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IN IT LAW Related Rights in the Information Society (COM (95) 382) In July 1995, the Commission published a consultation paper aimed at
This is the latest edition of Baker & McKenzie’s column on recent developments in EC law relating to Intellectual Property, IT and Telecommunications. A summary of this information in tabular form will be printed (with any updates) in the next edition of CLSR.
Directive on Rental and Lending Rights (01 1992 L346/61) The Directive on Rental and Lending Rights harmonizes certain areas of sound recording and fihn rights and requires Member States to provide a rental right in respect of certain copyrights. It was implemented in the UK on 1 December 1996 by the Copyright and Related Rights Regulations 1996 (SI 1996/2967). Directive on Copyright and Rights Related to Copyright Applicable to Satellite Broadcasting and Cable Retransmissions (01 1993 U48/15) This Directive provides for an extension of copyright and related rights protection to broadcasting of works by satellite and to their retransmissionby cable. The Directive was implemented in the UK in conjunction with the Directive on Rental and Lending Rights on 1 December 1996 by the Copyright and Related Rights Regulations 1996 (SI 1996/2967). Proposal for a Council Decision (0) 1996 Cl 64/3) This proposal is for a Council Decision approving the Council of Europe Convention relating to Copyright and Neighbouring Rights in the frame-work of transborder broadcastingby satellite. The proposal is in abeyance pending ratification by Member Stateswho are signatories of the Convention. No Member State has yet ratified the Convention. Directive on Term of Protection of Copyright (01 1993 l290/9) This Directive extends the basic term of protection from the life of the
Copyright and Performances Treaties: Proposal for a Council Decision (COM (97) 193) This is a proposal for a Council Decision authorizing the signature on behalf of the Community of the WIPO Copyright and Performancestreaties. Two treaties were adopted by the WIPO on 20 December 1996, one relating to copyright and the other one to neighbouring rights. Articles 17(3) and 26(3) of the respective treaties provide that the European Community is able to become a contracting party. Directive on Legal Protection of Databases (OJ 1996 L77/20) The Directive on the Legal Protection of Databases adopted on 11 March 1996 is intended to harmonize protection of databases. Databases which are original (in the senseof the Software Directive) in their selection or arrangement enjoy copyright protection. In addition databases, irrespective of whether they qualify for copyright protection or not, are to enjoy a 15 year right to forbid unauthorized extraction or re-utilization of substantial parts of their contents of the database for commercial purposes. A consultation paper together with a draft Statutory Instrument was distributed in August by the DTI to interested parties. The DTI had askedfor comments to be returned by the end of September 1997 to allow it adequate time to prepare for the implementation date of 1 January 1998. Seethe full text of the Consultation Paper on page 4 19 of this issue. Green Paper on Copyright and
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seeking comments on the impact of new technology on the law of copyright. The Green Paper addressesthe fundamental question of whether further harmonization of copyright law is required and if so in what manner. It deals with nine areas of copyright law, including reproduction rights and digital dissemination and transmission rights. A follow-up communication consolidating the outcome of the consultation process was issued by the Commission on 20 November 1996 (COM (96) 568). The Commission identified areas where proposals will be made to eliminate significant barriers to trade in copyright goods and services and/or distortions of competition between Member States. These included (a) a harmonized right of ‘Communication to the Public’ accorded to authors and holders of neighbouring rights to protect their works when transmitted on the Internet and ocher online services; (b) the standardkzation of electronic copyright management systems and protection systems, with a view to achieving interoperability of systems; (c) the harmonization of distribution rights and exhaustion of rights principles; and (d) the strengthening of moral rights protection to take account of the technological advances in the Information Society. A draft Directive following the 1996 Communication is expected to be issued by DG XV in October/November this year.
2. PATENTS Agreement relating to Community Patents (OJ 1989 L401/1) This Agreement incorporates a revised version of the Community Patent Con-
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vention signed on 15 December 1975 which provides for a Community patent. The principle of the Convention is that at the end of the European granting procedure provided for in the European Patent Convention of 1973 a single patent for the Community will be granted if a patent is sought for any of the EU States.The advantage of the Community patent is the ability to enforce it in the Community by a single proceeding. The Agreement, which to date has only been ratified by eight Member States,seeks to deal with the complexity of such an enforcement procedure and is not in force. Green Paper on the Community Patents and the Patent System in Europe This Green Paper was adopted by the Commissionon 24 June 1997 and asks whether the patent system in Europe should be improved and modernized. More specifically, it asks whether interested parties would make use of a Community patent system established by Regulation, under Art. 235 of the EC Treaty. Other issuescovered include employee’s inventions, the use of patent agentsand the recognition of professional qualification. The consultation process is due to complete in November 1997 when the Commission is to hold a hearing at which interested parties will be able to comment further on the main points to emerge from the debate. Proposed Directive on Legal Protection of Biotechnology Inventions (COM (95) 661) This Directive is intended to establisha clear legal framework for the protection of biotechnological inventions through national patent law. It is principally a harmonizing and clarifying measure.The Commissionhas adopted an amended proposal which reflects the amendmentsto its previous proposal, which were adopted by the European Parliament on 16 July this year. The new proposal explicitly rules out the cloning of human beings and provides for the creation of an independent committee which will assess ethics. Council will consider the Commission’sposition at the meeting of the Single Market Council on 27 November 1997.
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Regulation on Creation of a Supplementary Protection Certificate for Plant Protection Products (Oj 1997 L198) The aim of the Regulation is to extend the patent protection given to plant protection products by providing for the creation of a Supplementary Protection Certificate effective for up to five years. The Regulation was implemented in the UK by SI 1996/3120 which came into force in full on 8 February 1997. The UK Regulations extend the power of the Secretary of State to make rules on, and set fees for, applications for the new Certibcate.
3. DESIGNS Proposed Directive on Legal Protection of Industrial Designs (OJ 1993 C345/14 as amended by OJ 1996 Cl 42) The draft Directive on the Legal Protection of Designs, which is to harmonize existing Member States’ laws on registered designs,is still under discussion. An amended draft was approved at its first hearing by the European Parliament in October 1995 and proposalswere issuedon 20 March 1996. Most notably, these exempted spare parts required for repair purposeswhich need to be the shapethey are to match the appearance of the whole product, subject to the original designer having reasonableremuneration rights. In March 1997, the Internal Market Council rejected several ‘of the amendments suggestedby Parliament, especially on the spare parts issue.It is now expected that a conciliation processwill follow early in 1998. A draft Regulation (Corn (93) 342) is designed to compliment the draft Directive by providing a Communitywide systemfor the legal protection of industrial designs(both registered and unregistered) and administered by a central Community Designs Office is also still under discussion. The progress of the draft Regulation has been stalled pending agreement on the draft Directive. Green Paper on the Protection of Utility Models (COM (95) 370) On 19 July 1995, the Commission produced a Green Paper on the pro-
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tection of utility models .which they describe as a registered right which confers exclusive protection for a technical invention which must be novel and involve an inventive step but which can be granted without a prior search. It would, in other words, be a ‘second tier’ patent-type right. The Green Paper states its approval of utility models as quick, simple, cheap and offering temporary protection pending the grant of a patent and proposes that the term of protection would be short (a maximum of 10 years), the level of inventiveness should be less than for patents and that the three-dimensional form requirement could be abolished. The Green Paper did not actually make any proposals for legislation, however, a Commissionpaper is now expected in October.
4. TRADEMARKS Directive approximating the laws of Member States relating to Trademarks (0) 1989 L40/1) This Directive approximates the laws of Member States relating to trade marks. It was implemented in the UK by the 1994 Trademarks ,4ct (effective from 1 November 1994). The 1994 Act altered the law of trademarks in the UK quite dramatically by, amongst other things, extending the definition of a ‘trademark’ so that it now includes shapes, colours, sounds and smells, extending the definition of infringement to include use of a mark on similar goods, applying a ‘capacity to distinguish’ test for all applications, providing protection for ‘well-known’ marks, and abandoning the requirement to register users of a mark.
Council Regulation on Community Trademarks (01 1994 LO11) The UK implemented the Regulation through the Trademarks Act 1994.The Community Trademark Office in Alicante started taking applications in January 1996 the Community Trademark entered into force on 1 April 1996. The Counterfeit Goods Regulation (EC 3295/94)
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This regulation sets out measures to prohibit the release for circulation, export, re-export or entry of counterfeit and pirated goods. This has been implemented in the UK by SI 1995/ 1445, SI 1995/1444, SI 1995/1447 and SI 1995/1430. Proposed Council Decision to Approve Community Accession to Madrid Protocol (0) 1996 C293/11: COM (95) 92) This proposal is for a Council Decision approving the accession of the European Community to the Protocol relating to the Madrid Agreement concerning the international registration of marks.The Protocol madeit possible for an intergovernmental organization which has a regional office for the purpose of registering marks (i.e. the EU) to become a party to the Protocol.
5. TOPOGRAPHY
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Directive 87/54 on the Legal Protection of Topographies of Semi Conductors (OJ 1987 l24/36) This Directive provides that Member Statesshallprotect the topographies of semiconductor products by adopting legislative provisions conferring exclusive rights in accordance with the provisions of the Directive. The Directive was implemented in the UK by SI 1989/l 100 as amended. The SI came into force on 1 August 1989.
B. PERSONAL DATA
Data (Oj 1995 L281/31) This Directive aims to ensure the free movement of data within the EU and to harmonize the level of protection of the processing of personal data. It was adopted on 24 October 1995 and is to be implemented by 24 October 1998. In the UK, this wiU require the Data Protection Act 1984 to be amended or replaced. A consultation document on the Directive was issuedby the Home Office on 22 March 1996. Consultation with industry is now complete but, due to the change in government, it is not yet clear how the Directive will be implemented. It is still expected, though, that the deadline of 24 October 1998 will be met. The proposed ‘ISDN Data Protection Directive’ (COM (90) 314 as amended by COM (94) 128, COM (95) 375 and COM (97) 94) This proposed directive is basedon the general Data Protection Directive outlined above but contains specific provisions regarding telecommunications equipment and services. On 5 March 1997 (COM (97) 94) the Commission issued an opinion on the Parliament’s amended proposal for this Directive rejecting four of the proposed amendments. The proposed implementation date is 24 October 1998, in line with the general Directive.
C. COMPETITION
Directive 95/46 on Protection of Individuals in relation to Personal
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undertakings do not exceed certain limits. The Regulation becameeffective on 1 March 1985. Technology Transfer Block Exemption Regulation (OJ 1996 L31/2) The Technology Transfer Block Exemption Regulation was enacted on 31 January 1996. The Regulation becameeffective on 1 April 1996 and wilI remain in force until 31 March 2005. The Patent Licensing Block Exemption Regulation (Regulation 234984) expired on 31 March 1996 and tbe Know-how Licensing Block Exemption Regulation (Regulation 556/89) was repealed with effect from 1 April 1996. Agreements in force on 31 March 1996 which fuIfll the exemption requirements laid down under Regulations234984 and 556/89 continue to be exempted. Exclusive Distribution and Exclusive Purchasing Agreements The Regulations on exclusive distribution and exclusive purchasing agreements (Nos. 1984/83 and 1983/83) were due to expire on 31 December 1997. The Commission has indicated that the term of the RegulationswiU be extended until 31 December 1999. In the meantime, issuesrelating to vertical restraints such as those permitted by the Regulationsare under review by the Commissionin its Green Paper on Vertical Restraints (see below).
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Research and Development Block Exemption Regulation (OJ 1985 L53/5)
Council Convention for Protection of Individuals with regard to Automatic Processing of Personal Data (European Treaty Series 108 Strasbourg 1981) The Convention, implemented in the UK on 12 July 1984 by the Data Protection Act 1984, provides for the registration by ‘Data Users’ of the fact and extent of their electronic storage of personal information. ‘Data Subjects’ are given the right to access this information and to demand correction/deletion of the data held.
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The Regulation provides that certain joint research and/or development agreements wiU not infringe Article 85 (1) of the Treaty of Rome. Among other requirements, each party must be free to exploit the results of the joint project and their combined production of the products capable of being improved or replaced by the agreement must not exceed 20% of the market for those products. The ambit of the Block Exemption was extended by Regulation 151/93 (OJ 1993 LO21/8), under which agreements for the joint distribution of products resulting from joint research and development are exempt from Article 85(l) provided that the aggregate turnover and market sharesof the
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Green Paper on V’ertical Restraints in EC Competition Policy (COM (96) 721) This Paper, which was issued by the Commission on 23~January 1997, reviewed the present position of and invited comment bly 31 July 1997 on vertical restraints such as exclusive purchasing, exclusive distribution, franchising and selective distribution. The Green Paper set out possible options for dealing with vertical restraints in future Block Exemptions. It invited comments on these, and on the issues of resale price maintenance, impediments to parallel trade, turnover thresholds, and use of the ‘non-opposition’ procedure. The consultation processis continuing. Draft Notice on Aagreements of Minor Importance (OJ 1997 C29/
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03) This draft notice suggestsa change to the de minimis rule for the application of Article 85(l) of the EC Treaty. The proposal is to remove the test which looks to the total turnover of the companies involved and concentrates, instead, on market share (5% for ‘horizontal’ agreements, 10% for ‘vertical’ ones). Although this is still only a proposal, it seems likely that the Commission will act on it. The Consultation period has now ended.
D. ADVERTISING Proposed Directive on Comparative Advertising (Oj 1996 C219/14) The proposed Directive would amend the Misleading Advertising Regulations implementing Directive 84/450/EEC which aims to protect business and the general public againstthe effects of misleading advertisements. It would extend the Regulations to allow comparative advertising provided that a number of specific conditions are met (e.g. it is not misleading, it does not create confusion, or it does not discredit or denigrate the advertiser’s competitors). Following Parliament’s Opinion on the proposed Directive issued on 23 October 1996, the Commissionissued an amendedproposal for the Directive in January 1997. The Commission rejected Parliament’s proposal that results of comparative tests should be published only with the consent of the person who carried out those tests on the basis that the measure went beyond what was necessary for the achievement of the Directive’s aims. The Commission added provisions to the effect that comparative advertising must not discredit or denigrate the personal qualities or circumstancesof a competitor and that national professional codes would be respected provided that those codes complied with the provisions of the Treaty of Rome.
E. STANDARDIZATION Council Recommendation 95/l 44/ EC on Common Information Technology Security Evaluation Criteria (OJ 1995 L93/27) The Senior Official Group for Security
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of Information Systems published the Information Technology Security Evaluation Criteria as a first step towards offering a common approach to the provision of security of information systems.These pre-standard, preferred criteria were recommended for adoption for an initial period of two years followed by a review. Commission Communication on Standardization and the Global Information Society: The European Approach (COM (96) 359) This Communication issuedon 2.4July 1996 examines, in light of the characteristics of the Information and Communications Technology (ICT) market and the ICT standard process, the best way to develop standardsfor the implementation of the Infomlation Society and provides for a review of standards-relatedobstaclesto the creation of new XT-based services and a commitment to protect competition and encourage open and non-discriminatory specifications and standardsfor new services and ICT applications.
F. PUBLIC PROCUREMENT Council Directive coordinating Procedures of Entities Operating in the Excluded Sectors (0) 1993 L199/84) This Directive (the ‘Utilities Directive’), which regulates the award of supply, works and services contracts by utilities, was implemented in the UK on 12 December 1996 by SI 1996/2911. In 1995 the Commission proposed amendments (OJ 1995 C138) aiming to simplify the procedure and avoid reverse discrimination in Member States. The proposal was rejected by Parliament in July 1996 but a new Council Position was adopted in December 1996 (Corn (96) 598) and this will be reconsidered by Parliament soon. Green Paper on Public Procurement in the EU This paper was adopted by the Commission on 27 November 1996. It invites comments on the current EU Public Procurement regime and the consultation process is continuing.
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G. TELECOMMUNICATIONS Commission Communication on Competitiveness of European Information and Communication Technologies (ICT). (CDM (97) 152) This Communication to the European Parliament and the Council from the CommissiondescribesICC as a critical component of the European economy. The main challenges facing the European ICT industries are discussedand priority areas for European Policy Initiatives are highlighted. Council Directive on the Application of Open Network Provision (ONP) to Voice Telephony (OJ 1995 L321/6) This Directive aims to ensure that all service providers and users, including residential customers,have guaranteed open and efficient accessto the voice telephony service and network. The Directive was adopted on 13 December 1995 and the Directive was implemented by Sl 1886/1997 which came into force on 22 August 1997. Proposed Directive on the Application of the Opfen Network Provisions (ONP) to Voice Telephony and on Universal Service for Telecommunications in a Competitive Environment (COM (96) 419 final)
This proposed Directive was adopted by the Commission on 5 November 1996. Its purpose is to revise the existing Directive 95/62 in order to take account of the forthcoming liberalization of the telecommunications market by I. January 1998. It introduces a new requirement for Member States to ensure that telephone services are affordable while taking into account naltional circumstances and sets out a mechanismfor monitoring the quality of service. At the Telecoms Council meeting in March 1997 political agreement was reached. The Council a.dopted a common position on 9 June and the Directive is effective from 31 December 1997. Directive amending Directive 90/ 388 with Regard to the Abolition of
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Restrictions on the Use of Cable Television Networks for the Provision of already liberalized Telecommunications Services (OJ 1995 L 256/49)
This Directive requires Member States to abolish all restrictions on the supply of transmission capacity by cable TV networks and allow the use of cable networks for the provision of telecommunications services, other than voice telephony. Member States must also ensure the interconnection of cable TV networks with the public telecommunications network. No legislation is required for implementation of the Directive in the UK. However, the UK has notified the Commission, as is permitted under the Directive, that it intends to defer until 1January 1998 its obligation to ensure that those cable TV operators who have an exclusive right to provide cable TV infrastructure maintain separate accounts for telecommunications activities if their turnover exceeds 50 million ECU. Directive amending Directive 90/ 388 with Regard to Mobile and Personal Communications (OJ 1996 L20/59)
The aim of this Directive was to open up mobile communications services to competition by the introduction of licensing schemesor declaration procedures. It did so by extending the application of Directive 90/388 (on the abolition of special or exclusive rights granted by Member States in the field of telecommunications services) to mobile and personal communications. The Directive entered into force on 15 February 1996.
Directive amending Directive 90/ 388 with Regard to Satellite Communications (0) 1994 L268/15)
The aim of this Directive is to allow for full liberalization of the satellite services and equipment sectors, including the abolition of all exclusive or special rights in this area and to set out a scheme for non-discriminatory and proportional licensing. The Directive entered into force on 8 November 1994 and was implemented in the UK on 14 August 1995 by the Telecommunications (Satellite Communications)
Services Regulations 1995 (SI 1995/ 1947). Council Directive 93/97 supplementing Directive 91/263 on Satellite Earth Station Equipment (OJ 1993 U90/1)
This Directive extends the provisions of Directive 91/263 on the mutual recognition of type approval for telecommunications terminal equipment within the Community, to satellite earth station equipment including one and two-way VSAT, mobile and transportable satellite earth station equipment, satellite news.gathering equipment and television receive-only satellite earth station equipment. The Directive enables manufacturers to have equipment tested in one country in the European Union and to export that equipment to all other countries in the Union without further administrative procedures. It was implemented in the UK on 1 May 1995 by SI 1994/
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en European services and industry in global satellite systems and in any future Universal Mobile Telecommumcations Services (uMTs). Decision 2717/9S on a Set of Guidelines for the Development of the EURO-ISDN (Ilntegrated Services Digital Network) as a Trans-European Network (OJ 1995 L282/16)
In an effort to ensure the harmonized introduction of ISDN services Europewide, the European Parliament and the Council adopted a decision on 9 November 1995 establishingguidelines identifying the objectives, priorities, broad categories of measures and a number of projects of common interest concerning the development of EUROISDN as a tram+European network. A review of these guidelines will take place in 1997 in light of any changesin the rules applicable to EURO-ISDN.
3129. Proposed Decision on a Coordinated Approach in the Field of Satellite Personal Communications Services in the Community (COM(95) 529)
This proposed Decision aims at ensuring in a timely fashion the introduction of satellite personal communications services (S-PCS)in the EU by meansof coordinated action at EU level. In March 1997 the Commissionaccepted Parliament’s amendments of February 1997 (COM (97) 101). The proposed Decision has been formally adopted by the Telecommunications Council.
Communication on the European Union and Space - Fostering Applications, Markets and Industrial Competitiveness. (COM (96) 617)
This Communication aims to highlight the need for action to establish an appropriate environment for the development of space applications and to improve the competitiveness of European industry at world level. It foreshadows the specific Action Plan on Satellite Communications which was published on 3 March 1997 (COM (97) 91). This setsout a strategy to strength-
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Decision on a Series of Guidelines for Trans-European Telecommunications Networks (Telecoms TEN’)(OJ 1997 L183)
On 31 May 1995, the Commission adopted a propos;al for a European Parliament and Council Decision on a series of guidelines for trans-European telecommunications networks. The decision was adopted on 11 July 1997. In line with the EURO-ISDN guidelines, these guidelines cover the objectives, priorities and broad categories of measures envisaged and the domains for projects of common interest in the field of trans-European telecommunications networks. This Decision setsup a programme to m;ake grants of funds to further its aims. Full Competition L74/13)
Directive
(OJ 1996
On 13 March 19916,the Commission adopted Directive 96/19 which requires Member Statesto introduce full competition for tel’ecoms services (meluding voice) and infrastructure by 1 January 1998. No new UK legislation is currently being contemplated to implement this Directive in the UK. Directive on Interconnection in Telecommunications (OJ 1997 L199)
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The Directive on interconnection in telecommunications (97/33/EC) sets out a harmonized regulatory framework for the regulation by National Regulatory Authorities of the interconnection of telecoms networks and services. This Directive is intended to ensure open access to networks and services and to guarantee the rights and obligations of operators and service providers in relation to the networks and services of others. A common position was adopted on 18 June 1996 which was followed by conciliation with the European Parliament. The text of the directive was finally adopted on 30 June 1997 and will require implementation by Member Statesby 31 December 1997. The DTI and OFIEL are aiming to issue a consultation paper to interested parties by the end of September 1997. Directive on Common Framework for General Authorizations and Individual Licences in Telecommunications (97/l 3/EC) This Directive is intended to facilitate accessto telecoms markets throughout the EU by providing a harmonized telecommunications licensing regime in all Member States.It was adopted by the Parliament and Council on 10 April 1997 with an implementation date of 31 December 1997. The DTI and OFIEL aimed to issue a consultation paper to interested parties by the end of September 1997 with a view to implementation by 31 December 1997. Commission Communication on Universal Service for Telecommunications in the Perspective of a Fully Liberated Environment (COM(96) 73) On 13 March 1996, the Commission issued a Communication detirting the basic obligations to provide telecommunications services which should be required by Member States.The Commission defines universal service as “guaranteed accesson affordable conditions to a range of telecom services, including voice telephony, fax and electronic data, allowing every citizen of the EU thereby to participate in the information society”. Affordability is a key element in the concept, but it is not yet an explicit requirement in the ONP and Voice Directive.
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Communication on Assessment Criteria for National Systems for Calculating the Cost and Financing of Universal Service in the Telecommunications Sector. (COM(96) 608). This Communication identifies the principal elements that the Commission will assessin looking at national universal service schemes.It also provides detailed guidelines for best practice in national approaches to the costing and financing of universal service. Green Paper on a Numbering Policy for Telecommunication Services in Europe (COM (96) 590 final) This paper was approved by the Commission on 20 November 1996. In it, the Commission invites discussion on the development of a single Europewide telecommunications numbering system. It sets out a number of objectives and a phased timetable, starting with the free selection of the operator on a call-by-call basis,number portability and restructuring of national numbering plans and space by 1 January 1998. The paper was endorsed by the Council in July 1997 and the draft Directive is due to be published in October. The UK is vigorously opposing the imposition of mandatory equal access. Draft Notice on the Application of Competition Rules to Telecommunications. (IP/96/1152). This draft Notice aims to clarify the rules of EU competition law when applied to access agreements in the telecommunications sector and in particular sets out how the Commission will apply general EU competition law principles of market definition, market power and essential facilities in the telecommunications sector.
H. MEDIA/BROADCASTING Proposed Amendment to Television Without Frontiers Directive (1989 U98/23) The proposal to ensure the unrestricted movement of television broadcasts within the European Union by making the broadcaster jurisdiction
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dependant on its place of establishment was adopted by Parliament in June 1997 and is to be liplemented before January 1999. Proposed Directive on Legal Protection of Television and Radio Broadcasting Where Access is Subject to Payment (No reference as yet.) In July, the Commission proposed this Directive to protect television and radio broadcasting and information services offered to the public at a distance where accessis subject to payment. If adopted, the Directive will require Member Statesto prohibit and provide appropriate sanctions against all commercial activities related to unauthorized accessto a protected service. Directive of the European Parliament and of the Council on the use of standards for the tralnsmission of television signals (Directive 95/47/ EC. Oj 1995 l281) This Directive provides for transparent, fair and non-discriminatory access to conditional accesssystems,used in TV transmissions. It was implemented in the UK by SI 1996/3151 as amended by SI 1996/ 3197 which both came into force on 7 January 1997. Green Paper on the Legal Protection of Encrypted Broadcast. (COM (96) 76 Final) The Commission adopted this Green Paper on 6 March 1996. The Paper notes that the fragmentation or absence of rules is preventing the Single Market from operating properly and is holding back the development of a European Market in encrypted services including, for example, pay television, video on demand and teleshopping. Wide ranging consultations with interested parties came to a close on 31 May 1997 and a final decision is now awaited from the Commission as to what action, if any, is needed.
I. INTERNET AND NIC COMMERCE
ELECTRO-
Commission Communication on IIlegal and Harmful Content on the
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Internet (COM (96) 487). This Communication was released on 16 October 1996. On 27 November 1996 the Telecoms Council adopted a position advocating that self-regulatory organizations be set up in which Internet Service Providers (ISPs) and content-providers would regulate the content of the Internet. Since then, a body called the Internet Watch Foundation has been lobbying the EU (and individual Member States) and the OECD to implement this proposal. A Parliament Resolution calling for an update was passedon 24 April 1997. The Internet Watch Foundation has launched a ‘Safety-Net’ initiative in conjunction with the Metropolitan Police and ISPs. A hot line has been set up for parents to report findings of potentially illegal or explicit material. The scheme has been successful and the Commissionwants it to be adopted acrossthe Community. Proposal on a Multiannual Community Programme to Stimulate the Establishment of the Information Society (COM(96) 592) The aim of this proposal, which was published on 13 December 1996, is to authorize the Commissionto promote the development of the Information Society in Europe by increasing public awarenessand promoting widespread access. Initiative for the Promotion of Electronic Commerce in Europe (COM (97) 157). The aim of this initiative, which was published on I6 April 1997, is to encourage the growth of electronic commerce in Europe. It provides a coherent framework for future EU action and aims at establishing a common EU position to achieve global consensusthrough international negotiations. In order to implement it, the Commissionplans to undertake several key actions by the year 2000. These include proposals to ensure accessto
the global marketplace, create a favourable regulatory framework and promote the businessenvironment.
J. MISCELLANEOUS Unfair Terms in Consumer Contracts Directive (OJ 1993 L95) The aim of this Directive is to provide a minimal level of protection to consumers when purchasing goods in any Member State. It requires Member States to implement provisions under which any standard term in a contract between a seller/supplier and a consumer wilI be voidable at the instance of the consumer if the term is ‘unfair’ under the Directive. The Directive was implemented in the UK by the Unfair Terms in Consumer Contracts Regulations SI 1994/3159, effective from 1 July 1995. Council Directive on Protection of Consumers in respect of Contracts Negotiated at a Distance (0) 1992 Cl56 as amended by OJ 1993 C308) This Directive alms to harmonize the laws of Member States on contracts between suppliers and customers for goods and services solicited and concluded at a distance aspart of a salesor service provision schemesuch as sales by mall order and by the Internet. The Directive provides that certain information must be given to the consumer before a distance contract is concluded including the identity of the supplier, the main characteristics of the goods or services, delivery costs where appropriate, the price of the goods or services including any applicable taxes, the existence of a right of withdrawal and details of payment, delivery and performance arrangements. Distance selling is largely regulated by codes of practice in the UK and general principles of contract law. New legislation will be required to implement aspects of the Directive.
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Proposed Directive on the Sale of Consumer Goods and Associated Guarantees (COM (95) 520) This proposal compliments Directive 93/l 3 concerning unfair contract terms. The aim is to harmonize the laws of Member States on guarantees and after-sales services in order to encourage consumers to enter into trans-border purchases. The proposal addressesboth legal and commercial guarantees. Green Paper on Commercial Communications in the Internal Market (COM (96) 192) This Green Paper imakesproposalsfor the future regulation of ‘commercial communications’. This includes all forms of advertising, direct marketing, sponsorship,salespromotions and public relations promoting products and services. Cross-border commercial communications are a growing phenomenon in the Internal Market and the current differences in national regulations could create obstacles for companies wanting to offer such services across national borders and create problems for consumers seeking redress.
For further information on any of the above, please contact Don Jerrard ([email protected]) or Harry Small ([email protected]), both of whom are partners in the Intellectual Property and Technology Law department of the London office of Baker 81 McKenzie (tel: +44 171 919 1000). Mr Jerrard and Mr Small were assisted in the preparation of this article by Robert Bratby ([email protected]) an associate in the same department.
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