
Regulating Content
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This important book focuses on regulatory interventions in the content industry under Community law. It offers an in-depth perspective on the functioning of the European legal framework for the content industry, its guiding principles, and its explicit and sometimes more fluid interface with policy areas falling largely into Member States competences. In this aspect the book can also be read as an analysis of the impact of the cooperation between European and Member State regulation when economic as well as social, democratic, and cultural policy goals are at stake.
Among the areas of content regulation covered are:
legal definitions related to the content industry; branches of the content industry broken down according to content category and distribution system; the division of competences between the EC and the Member States in cultural affairs;Community projects relevant to the content industry; competition rules relating to distribution; market entry and access regulation in the electronic communication markets; specific regulation for such considerations as the protection of minors, protection of health, protection of consumers, and protection of personal rights; ensuring and safeguarding functioning market structures in the content markets; and harmonization and coordination measures.
The basis of this book was a research project commissioned by the Austrian Federal Chancellery in preparation for a seminar supported by the European Commission in connection with Austria¿s Council Presidency in the first half of 2006.
As a systematic overview and analysis of the legal bases of European content regulation, this book will be of extraordinary value to practitioners, policymakers, officials, and academics in the fields of media and communications law. Beyond that, the work sheds a clear and defining light on an area that has an important role to play in the future economic growth and the development of a competitive business environment in Europe.
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Content
- Cover
- Half Title Page
- Editorial Page
- Title Page
- Copyright Page
- List of Contributors
- Foreword
- Table of Contents
- PART ONE THE LEGAL ASPECTS OF EUROPEAN CONTENT REGULATION - PURPOSE AND SCOPE OF THE STUDY
- Chapter 1 Objective of the Book: A Horizontal Approach to European Content Regulation
- I. The Background - Content as Part of Europe's Culture
- II. A Systematic Review and Analysis of European Content Regulation on a Horizontal Basis
- Chapter 2 Structure and Methods
- I. Definition of the Subject Under Investigation
- II. Analysis of the Individual Regulatory Areas of European Community Law Governing the Content Industry
- III. Conclusion and Evaluation
- Chapter 3 The European Content Industry - Categorization and Definitions
- I. The Subject under Investigation
- II. Categorization of the Content Industry
- III. Legal Definitions Relating to the Content Industry
- Figure 1 Focus of the Study
- Figure 2 Branches of the Content Industry Broken down According to Content Category and Distribution System
- Figure 3 Legal Definitions Related to the Content Industry
- PART TWO THE INDIVIDUAL REGULATORY FIELDS - AN ANALYSIS OF THE DIFFERENT EUROPEAN PROVISIONS FOR THE CONTENT INDUSTRY
- Chapter 1 Fundamentals of Community Law and Policies (Including Funding Programmes) Governing the Content Industry
- I. Preliminary Remarks
- II. Fundamentals of Primary Law
- A. The Fundamental Freedoms - Treaty Establishing the European Community and Case-law of the European Court of Justice
- 1. Free Movement of Goods
- 2. Freedom to Provide Services
- B. The Relevance of Fundamental Rights in Community Law
- C. The Amsterdam Protocol on Public Broadcasting and the Exemption Clause for State Aid Aimed at Promoting Culture and Cultural Heritage
- D. The Division of Competences Between the EC and the Member States in Cultural Affairs
- 1. Preliminary Remarks on the Concept of Culture Enshrined in the EC Treaty
- 2. The Concept of Division of Competences Between the EC and the Member States
- 3. The Cultural Policy of the Community Pursuant to Article 151 EC
- 4. European Cultural Policy in an International Context
- III. Secondary Legislation of the EU for Promoting the Content Industry
- A. The Lisbon Strategy - a New Impetus for Promoting the European Content Industry
- B. General Information on the Funding Programmes of the Content Industry
- C. Cultural Programmes
- D. MEDIA Programmes
- E. Special Funding Action in the Fields of Information and Communication Technologies (ICT)
- 1. The 'eContentplus' Funding Programme
- 2. The 'Safer Internet Plus' Funding Programme
- IV. Community Projects Relevant to the Content Industry
- A. Communication from the Commission 'i2010 - A European Information Society for Growth and Employment'
- B. Proposal for a Directive on Services in the Internal Market and its Implications for the Content Industry
- 1. General Information
- 2. The Scope of Application of the Services Directive
- 3. Open Questions Regarding the Service Directive
- V. Content as a European Cross-cutting Subject - Conclusions and Evaluation
- Chapter 2 The Content Industry and General Competition Law
- I. Ensuring Functioning Market Structures
- A. General Applicability of the Competition Rules to the Content Industry
- 1. Specific Relevance of Competition Rules
- 2. Personal Scope
- B. Market Definitions for Media Content
- C. Competition Rules Concerning the Production Level (Upstream)
- 1. General Cartel Prohibition - Article 81 EC
- 2. Prohibition to Abuse a Dominant Position - Article 82 EC
- 3. Control of Concentrations
- D. Competition Rules Relating to Distribution ('Downstream')
- 1. General Ban on Cartels - Article 81 EC
- 2. Prohibition of the Abuse of a Dominant Position - Article 82 EC
- 3. Control of Concentrations
- II. Protecting Third Parties and Safeguarding General Interests
- A. Protecting the Final Consumer
- B. Protecting Competitors?
- C. Protecting Trading Partners
- III. Preserving the Single Market
- IV. Interactions Between the Intended Aims
- V. Direct Aids for Producing and Broadcasting Content
- A. Article 81(3) EC - Exemptions General Ban on Cartels
- B. Objective Justification According to Article 82 EC
- VI. Safeguarding Undistorted Competition from Intervention by the Member States
- A. Resale Price Maintenance for Books
- B. Article 87 EC - Framework for State Aid in the Content Industry
- VII. Summary and Conclusion
- Chapter 3 Sector-specific Regulation at Infrastructure Level
- I. Preliminary Remarks: Sector-specific Regulation at Infrastructure and Content Level
- II. Market Entry and Access Regulation in the Electronic Communication Markets - Ensuring Functioning Market Structures in the Content Industry
- A. Infrastructure Regulation as Market Regulation
- B. Regulation of Market Entry in the Electronic Communications Markets
- 1. Relevance for the Content Industry
- 2. General Versus Individual Authorization - Media and Culture Related Selection Criteria
- C. Regulation of Access to Communications Networks and Services
- 1. Relevance for the Content Industry
- 2. The General Access Regulation Regime for the Communications Markets
- 3. The Specific Access Regulation Regime for the Field of Digital Television
- D. Capability of the Market Entry and Access Regulation Regime to Ensure Cultural and Democratic Policy Objectives - Problem Analysis
- E. Summary
- III. Ensuring a Basic Supply of the Population with Content - Protection of Third Party and Further General Interests
- A. The Public Interest in the Content Markets
- B. Universal Service Regime
- C. Must-carry Provisions
- D. Broadcasting of Major Events
- E. The Special Importance and Role of Public Broadcasting Within the EU
- F. Analysis of the Public Interest Regulation at Infrastructure Level - Problematic Aspects
- 1. Transition from Analogue to Digital Technologies
- 2. Access to Broadcasting and Programme Rights on a Sector-Specific Basis
- 3. Political Consensus Regarding the Role of the Public Service Broadcasting Organizations within the Community?
- G. Summary
- IV. Standardization Activities in the Content Industry - Preservation of the Single Market
- A. Standardization in the Online Content Market - a Primarily Market Led Process
- B. Specific Standardization Measures for Digital Interactive Television
- C. Other Standardization Activities in the Content Industry
- D. Problematic Aspects with Regard to the Standardization Processes on the Content Markets
- E. Summary
- V. Direct Promotion of the Production and Distribution of Content
- VI. Summarizing Evaluation - Reciprocity and Interconnections between the Various Regulatory Instruments in Sector-specific Regulation at Infrastructure Level
- Chapter 4 Sector-specific Regulation at Content Level
- I. Preliminary Remarks
- A. Objects and Systemization of Sector-specific Regulation at Content Level
- B. Development of Sector-Specific Regulation at Content Level
- II. The Protection of Third Parties and Further Public Interests
- A. Review of Status Quo
- 1. Regulation of Content for the Protection of Human Dignity, as well as the Protection of Other Fundamental Values of a Democratic Society
- 2. Regulation of Content for the Protection of Minors
- 3. Regulation of Content for the Protection of Health
- 4. Regulation of Content for the Protection of Consumers
- 5. Regulation of Content for the Protection of Personal Rights
- B. Analysis of the Problem
- C. Summary
- III. Promoting Production and Dissemination of Content
- A. Review of Status Quo
- 1. Direct Promotion of Content
- 2. Indirect Promotion of Content
- a. Promotion through tax breaks for film and television
- b. Promotion by limiting regulatory possibilities
- B. Analysis of the Problem
- C. Summary
- IV. Maintaining the Single Market
- A. Review of the Status Quo
- B. Analysis of the Problem
- C. Summary
- V. Conclusions
- Chapter 5 Copyright and Related Rights
- I. Legal Protection of Content - Promotion of the Production and Distribution of Content
- A. Review of the Status Quo
- 1. Database Directive
- 2. Information Society Directive
- a. Reproduction Right
- b. Communication, Including Making Available, to the Public
- c. Limitations and Free Uses of Works
- d. Legal Protection of Technological Protection Measures
- e. Sanctions under the Information Society Directive
- 3. Enforcement Directive
- 4. Country-of-origin and Country-of-transmission Principles and Exceptions
- a. Country-of-transmission Principle
- b. Country-of-origin Principle
- 5. Rights Management and Collecting Societies
- 6. Resale Rights Directive
- 7. Harmonization of Copyright Contract Law
- 8. Consolidation of the European Copyright Laws
- B. Problem Analysis
- 1. Scope of the Database Protection
- 2. Information Society Directive
- a. Lack of Clarity Regarding the Scope of the 'Making Available' Right
- b. Allocated Uses
- c. Sanctions Under the Information Society Directive
- 3. Enforcement Directive
- 4. Country-of-origin and Country-of-transmission Principles
- a. Country-of-transmission Principle
- b. Country-of-origin Principle
- 5. Collective Exploitation of Rights and Collecting Societies
- 6. Resale Rights Directive
- 7. Harmonization of the Copyright Contract Law
- 8. Consolidation of the European Copyright Law
- C. Summary
- II. The Necessity for Exclusivity - Ensuring Functioning Market Structures on the Content Markets
- III. Creating a Balance - Protection of Third Parties and Further General Interests
- A. Review of the Status Quo
- 1. Information Society Directive
- a. Limitations
- b. Technological protection measures/DRM
- c. Device and media charges, double remuneration
- 2. First Sale Doctrine Online
- 3. Enforcement Directive
- 4. Conditional Access Directive
- 5. Obligations to Provide Information and Transparency in E-commerce
- B. Problem Analysis
- 1. Information Society Directive
- a. Limitations
- b. Technological Protection Measures
- 2. First Sale Doctrine Online
- 3. Enforcement Directive
- 4. Conditional Access Directive
- 5. Information Obligations and Transparency in e-commerce
- C. Summary
- IV. Making Ends Meet: Summarizing Evaluation - Reciprocity and Interconnections between the Objectives Pursued
- Chapter 6 Regulation of the Content Industry through Tax Measures
- I. Promoting the Production and Distribution of Content through Tax Measures
- A. The Framework Conditions - EC Law and Tax Law
- B. Promotion through Indirect Tax Measures
- 1. General Remarks
- 2. Reduced Tax Rates Provided for by the Sixth VAT Directive
- 3. Exemptions under the Sixth VAT Directive
- 4. Subsidies Under the Sixth VAT Directive
- C. Promotion through Direct Tax Measures
- 1. The Income Tax Treatment of Subsidies
- 2. The Interest and Royalty Directive
- D. Summary
- 1. Indirect Taxation
- 2. Direct Taxation
- II. Ensuring Functioning Market Structures on the Content Markets
- A. The Prohibition of State Aid in Tax Matters - An Overview
- B. Legal Protection in Tax Matters - An Overview
- C. Prohibition of State Aid in Tax Matters and the Promotion of Content
- D. Summary
- III. The Promotion of the Content Industry and its Limits
- A. Interdependencies
- B. Summary
- IV. Evaluation
- Figure 1 Regulatory Approaches
- Figure 2 Sector-specific Regulation at Content Level
- Figure 3 Subject-matter-related Content Regulation
- PART THREE SYSTEMATIZATION, EVALUATION AND CONCLUSION - A STRUCTURAL ANALYSIS
- Chapter 1 The 'System' of European Content Regulation - a Horizontal Analysis of the Individual Regulatory Areas
- I. Point of Departure: 'Content' as a Cross-sectional Subject Matter
- II. Safeguarding Functioning Market Structures in the Content Industry
- A. Antitrust Rules
- B. Sector-specific Competition Regulation
- C. Fundamental Freedoms
- D. Harmonization and Coordination of Member States' Interventions into the Content Industry
- E. Protection of Competition from Member States' Interventions
- III. The Realization of Cultural, Democratic and Social Policy Concerns
- A. Direct Support for the Production and Distribution of European Content
- 1. Funding Programmes
- 2. Incentives for the Production and Distribution of Content by Regulatory Measures
- B. Safeguarding the Basic Supply of the Public with Content (and with Communications Infrastructure)
- C. Safeguarding Certain Third-party Interests
- Chapter 2 Evaluation and Conclusions: Basic Principles and Structural Elements of European Content Regulation
- I. European Content Regulation - A Network of Regulation Systems
- A. 'Economic' Market Structure Regulations and External 'Cultural Policy' Goals
- B. The Online Content Market as a Focal Point
- II. Some Theses for Further Discussion
- Figure 1 The Individual Regulatory Areas and Objectives of European Content Regulation
- Figure 2 Safeguarding Functioning Market Structures in the Content Industry
- Figure 3 Harmonization Measures
- Figure 4 Direct Support for the Production and Distribution of Content
- Figure 5 Safeguarding Basic Supply of the Public with Content
- Figure 6 Safeguarding Certain Third-party Interests
- Bibliography
- Table of Legislation
- Table of Cases
- Index
- Back Cover
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