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  1. 1. EU Communication law and Culture: the future of the «Satellite and Cable» Directive 93/83By Elsa Deliyanni,Dr in Law Paris II, Lawyer, Assistant Professor,Dept of Journalism and Mass Communication –Aristotle University of Thessaloniki,elsa@jour.auth.gr 1. Introduction Copyright has operated, since its emergence in the 18th century, as a motive for theproduction of intellectual works1, 2 and the ideas contained in them and as a pillar forthe adoption of a cultural policy aiming at the strengthening of pluralism. Thus,legislative choices in the field of copyright are traditionally integrated in the field ofnational and/or European cultural policy. The emergence of mass Media and later on, in the early eighties, the launch of theEuropean project “TV without frontiers”, destabilized the above balance. E.U.authorities, in its aim to establish a European audiovisual Market, without internalfrontiers, considered that the exclusive right of the copyright holder, grants him amonopolistic position in the market, raising an obstacle to the free movement ofservices and the free circulation of broadcasts throughout E.U. territory3. Free flow ofinformation, the right of the citizen to be informed and –with the emergence of privatetelevision- freedom of competition, were gaining momentum at that stage. A conflictbetween media policy and the aims of cultural policy and, more precisely, betweencultural industry on the one hand, versus broadcasting organizations and cabledistributors, on the other, aroused in the European public agenda during the adoptionprocedure regarding the television without frontiers Directive4.1 J. Ginsburg, A tale of two copyrights : Literary Property in Revolutionary France and America,Tulane Law Review, Vol. 64, No. 5, 1990, 993, 996, 998, 999, 1006..2 See, indicatively, G. Koumantos, Litterary property, (in Greek), 8th edition, Ant. Sakkoulaspublishing, Athens 2002.3 European Commission, Television without Frontiers, Green Paper, COM (84) def, Brussels, 14 June19844 See Ε. Deliyanni, Le droit de représentation des auteurs face a la télévision transfrontalière parsatellite et par câble, Préface A. Françon, LGDJ, Paris 1993 ; Idem, Contenu et application de laDirective 93/83 du Conseil, relative à la coordination de certaines règles du droit d’auteur et des droitsvoisins, applicables à la radiodiffusion par satellite et à la retransmission par câble, in Derecho Europeodel Audiovisual, Actas del Congresso Organisado por la Associacion Europea de Derecho delAudiovisual, Sevilla, Octubre 1996, 675. 1
  2. 2. The initial Directive proposal (1986) contained special copyright provisions forsatellite and cable Trans frontier transmissions. However, the divergence of points ofview recorded between broadcasters, cable distributors and copyright holders at thatmoment, obliged E. U. authorities to withdraw, copyright provisions from the initialproposal, in order to facilitate the adoption of Directive 552/895. Thus, we arrived to aspecific Directive proposal, regarding Copyright aspects of Satellite and Cable TV,which was finally adopted in 1993 (Directive 93/83)6. Τhe latter (Council Directive 93/83/EEC of 27 September 1993, on thecoordination of certain rules concerning copyright and rights related to copyrightapplicable to satellite broadcasting and cable retransmission), reflects, as itspredecessor, a compromise of conflicted points of view, reducing to the lowestpossible common denominator, all interested parties’ claims and the requirements ofcultural policy, as well7. Few years after the adoption of satellite and cable Directive, the process of mediaconvergence and the progressive digitalization of media and platforms, inaugurated anew kind of relationship between cultural production and communication sectors.Meanwhile, in its review report of 2002 which examined the practical application ofthe Directive, ten years after its adoption8, the European Commission was obliged toadmit that the Directives goals had, only partially been achieved. More precisely: 1. the vision of a pan-European satellite broadcasting market had not beenrealized, as right holders’ and broadcasters’ licensing synergies, reinforced by theapplication of signal encryption techniques, continued segmenting markets alongnational borderlines9.5 See E. Deliyanni, op. cit §6 Idem, §7 Idem §8 Report from the European Commission on the application of Council Directive 93/83/EEC on thecoordination of certain rules concerning copyright and rights related to copyright applicable to satellitebroadcasting and cable retransmission [COM/2002/0430 final]9 P.B. Hugenholtz, Copyright without Frontiers: is there a Future for the Satellite and Cable Directive?http://www.ivir.nl/index.html ; Jόrgen Burggraf, Current Developments in the German BroadcastingSystem, 23rd November 2001, http://www.incd.net/html/english/res/ana.htm. See my docs, 2
  3. 3. 2. in addition, the aforesaid process of convergence between production andcommunication, has limited dramatically the application field of the above Directive.In fact, the Directive seems to be outdated and completely overlapped by the morerecent Directive on “Copyright in the Information Society”, which, reflecting the newconditions of horizontal and interactive communication established by new digitalmedia, introduces a more traditional territorial approach. In its recent communication on Creative Content on-line in the Internal Market10,the Commission expresses again a desire for the realization of a pan- European“creative content” market, and makes a vague reference to a potential revision of the“Satellite and Cable Directive”11. To the extent that this idea reveals not only an inefficiency in conducting a mediapolicy in accordance with cultural requirements, but also an ignorance of market’spriorities, this paper aims to discuss critically the impact, which this Directive hasalready had on the European audiovisual market and culture and its actual role in aworld of converging media. Further more, we will query, at a more general level,whether European choices at the common field of policy for new converging mediaand culture, express the will for taking under account the double requirement: that, ofenhancing “creators’” protection without prejudicing the aims of freedom ofcommunication, as both of them contribute jointly to the stimulation of creativity andto the preservation of pluralism and quality of “creative content” circulating throughthe networks. 2. Application of Satellite and Cable Television Directive (93/83): how market’spriorities and cultural parameters contributed to the circumvention of the Directive’sprovisions.10 Communication on Creative Content Online in the Single Market ,http://ec.europa.eu/avpolicy/other_actions/content_online/index_en.htmhttp://ec.europa.eu/avpolicy/other_actions/content_online/consultation_2006/index_en.htm11 3
  4. 4. 2.1. Content of Satellite and Cable Television Directive. The purpose of 93/83was, as its predecessors 552/89, to promote free cross-border satellite broadcasting ofprogrammes and their cable retransmission in the internal market and remove theobstacles arising from disparities between national provisions on copyright, as well12. Following the example of the Television without Frontiers Directive, and in orderto ensure free circulation of broadcasts , 93/83: - introduced the “emission theory” according to which, when a satellite communication, of a protected work occurs, copyright can only be exercised in the country of origin (uplink) of a satellite transmission, and, - set out a system of compulsory collective management of cable retransmission rights. 2.2. Media chronology and satellite Tran frontier transmissions. In an attempt to prevent the European audiovisual market from being fragmentedand avoid black-outs in simultaneous cable retransmissions13, 93/83 Directiveprovides in article 2: 2. (a) For the purpose of this Directive, communication to the public by satellitemeans the act of introducing, under the control and responsibility of the broadcastingorganization, the programme-carrying signals intended for reception by the publicinto an uninterrupted chain of communication leading to the satellite and downtowards the earth. (b) The act of communication to the public by satellite occurs solely in theMember State where, under the control and responsibility of the broadcastingorganization, the programme-carrying signals are introduced into an uninterruptedchain of communication leading to the satellite and down towards the earth. This provision serves a double objective: 1. it gives a definition of the act ofcommunication to the public via satellite, determining where this trans-national12 See Recitals 2, 3, of 93/83 Directive.13 See E.C.J., cases 52/79 and 62/79, so called CODITEL I and II. 4
  5. 5. communication takes place and, 2. it identifies the broadcaster liable towardscopyright holders for the clearance of rights. Art 1. 2 (b). By specifying the place where the act of communication occurs, this provisiondetermines the applicable copyright legislation, either to contractual relations(between right holders and broadcasters) regarding the transfer of rights at theCommunity level, or even, to the conflict, which may arise between them, in case ofunauthorized inclusion of works in signals transmitted via satellite. According to theabove provision, the applicable law, is the one of the Member State in which theprogramme-carrying signals are transmitted. As the aforesaid broadcasts areessentially trans frontier, its application extends beyond national borders into theMember States in which the signals are received. This principle avoiding thecumulative application of several national legislations of the various Member Statescovered by the footprint,14 should put an end to the legal uncertainty regarding theacquisition of rights, The Directive has completely abandoned the Bogsh theory and other “reception”or “foot print” theories, which have been trendy during the eighties, in view of takingunder account cinematography’s cultural requirements and market’s priorities, in EUcommunication policy15. According to these theories, communication to the public ofa work via satellite should take place, in all the countries where the work can beperceived by viewers (and where the copyright holder suffers a loss). As a result, thebroadcaster should, in most cases, (and principally in case of transmission ofaudiovisual works) acquire licences from all right holders within the footprint. Thisobligation should permit copyright holders to keep control of their national marketand preserve the national “chronology of media” (that is, the calendar of release ofeach film to different media). The broadcaster including protected works in programcarrying signals without authorization, should engage his responsibility according tothe law of any country within the footprint, where the right holder suffers a loss. Thistheory was considered extremely restrictive of the free circulation principle.14 See (recitals 14 and 15).15 See; in addition the provisions of article.. determining, who is the broadcaster responsible to acquirecopyright licences from right holders of the whole footprint. According to this provision it is the one,who takes the global decision on the content of the signals and on their destination as well. 5
  6. 6. The EU Commission considered that fixing the legal principles was sufficient toestablish the single audiovisual area, laid down in Directive 89/552/EEC. Finally, thereality of the audiovisual market denied her. As it has been foreseen, by manyspecialists of the legal theory and practice, just after its adoption16, copyright holdersmaintained their contractual freedom, notwithstanding the provisions of the Directive(their freedom to determine the content and terms of any license, co production anddistribution agreements and specify the means, the modes and the dates of release oftheir works). Indeed, the principle of “Media chronology” constitutes an almost sacred rule inthe field of film industry. This principle is achieved by means of a chain ofcontractual provisions, which determine for every copyright holder (co producers,licensees or national distributors), situated in a different country, the exact calendar ofeach release of the film to a different medium. Its strict respect by all interestedparties has been considered through the time, as the only means to protect theexploitation of film in cinema theaters, from any simultaneous communication of thesame film by other Medias (video, satellite, cable television…), originated from thesame or a different country. With its application, in the framework of 93/83 Directive,the emission theory as well as the ideal of a pan European television faded away:market fragmentation persisted17. 2. 3. Encryption technology. The encryption technology strengthened further morethe above contractual provisions. Film producers and distributors imposed the use ofencryption techniques upon broadcasting organisations (even to the public serviceones) in order to avoid spill-over beyond national borders, which means, thatterritorial clearance of rights persisted18. 2.4. Broadcasters’ priorities. Additionally, it seems that most broadcasters inEurope were not really interested in a pan-European right of satellite broadcasting.16 E. Deliyanni (1993) § and E. Deliyanni (1996)17 E. Deliyanni (1993) § and E. Deliyanni (1996)18 Bourgois??? 6
  7. 7. European television has developed on a national basis since its beginnings and is stilldeeply rooted in national culture, language and tradition. As a result, public servicebroadcasters, whose mandate is in most of the cases, limited to a single Member State(and to the subsequent national audience that pays the broadcast license fees), are notwilling to pay rights for the whole EU footprint, even if copyright holders are readyto grant such licences. In fact, only some providers of specialized content (e.g. newsand sports), which interest the whole EU public, and very few public servicebroadcasters –those who can afford the financial cost that implies a pan Europeansatellite transmission-have been engaged in such an investment. 2.4.1. Concerning cable retransmission: broadcasters acting as a “one stopshop” for cable rights. The chapter of the Directive concerning cable retransmissionof broadcasts aimed to facilitate cross-border cable retransmission of televisionprograms and avoid black-outs in retransmitted broadcasts, due to individual exerciseof rights by copyright holders not represented by a collective society19. According to article 9 “Member States shall ensure that the right of copyrightowners and holders or related rights to grant or refuse authorization to a cableoperator for a cable retransmission may be exercised only through a collectingsociety”. The Directive introduces here, a system of compulsory collective management ofcable retransmission rights. In the framework of this system, copyright holders oftelevision programs, (film producers, film makers, screen writers, etc) loose their rightto negotiate their fees for cable retransmission on an individual basis. Respectively,only collecting societies duly representing cable rights of a certain category of worksare habilitated to grant consequent authorizations to cable operators. This system of compulsory collective management introduced in 1993 replaced aprecedent system of compulsory licensing20, contained in the initial proposal of the19 E. Deliyanni (1993) § and E. Deliyanni (1996)20 E. Deliyanni (1993) § and E. Deliyanni (1996); European Commission, Television withoutFrontiers, Green Paper, COM (84) def, Brussels, 14 June 1984. 7
  8. 8. E.C. with the latter having been abandoned because of the reactions of both copyrightholders and legal theory. Indeed, compulsory licenses have been considered verydangerous for the future of creativity in Europe as they stripped the right holders fromtheir exclusive right, undermining thus, their sole and unique arm in negotiating a faircompensation for the use of their works. According to article 10, collective administration of right does not apply to therights exercised by a broadcasting organization in respect of its own transmission,irrespective of whether the rights concerned are its own or have been transferred to itby other copyright owners and/or holders of related rights”. Indeed, broadcasting organisations are easily identifiable, by cable operators whocan obtain rights directly by them on an individual basis. So, the above exceptionpermitted the introduction of a contractual practice which already existed at themoment of the adoption of the Directive: providers of satellite-to-cable servicesoffered already at that moment, programs free of copyright to cable operators,granting to those, wishing to transmit such programs, the opportunity to retransmit,without having to ask a new authorisation to collecting societies and pay additionalcopyright fees21. The aforesaid exception encouraged further the development of suchpractises which consist in the clearance of cable retransmission rights at the source,broadcasters acting in this case as a one-stop shop for cable rights. As this practise facilitated cross border circulation of programs the Commissionnot only expressed its enthusiasm22, but further more, its desire to generalize it in thedigital environment. Clearly, the Commissions trust in a system of collective rightsmanagement has been somewhat undermined, in favour of freedom of contract. Thismay spell good news for broadcasters and cable operators, but not necessarily for theauthors who rely on collecting societies to receive adequate remuneration23.21 Idem22 Report from the European Commission on the Application of Council Directive 93/83/EEC on theCoordination of Certain Rules Concerning Copyright and Rights Related to Copyright Applicable toSatellite Broadcasting and Cable Retransmission, COM(2002) 430 final, Brussels, 26 July 2002;Communication on Creative Content Online in the Single Market,http://ec.europa.eu/avpolicy/other_actions/content_online/index_en.htm23 P.B. Hugenholtz, op. cit., http://www.ivir.nl/index.html 8
  9. 9. 3. The Convergence Era 3.l. Radical changes to the procedure of communicating. The convergence erabrings radical changes in the media field and in the whole procedure ofcommunicating: i. technical and economic differences between media and digital platforms beginto vanish, analogue television services is being converted to digital, radio andtelevision programs are being simulcast over the internet and cable operatorsbecome providers of broadband video services. ii. Communication is no more vertical and one track, it becomes horizontal andinteractive. iii. As a consequence, borderlines between the one who transmits and those whoreceive a message or a work, fade away: every transmitter can at the same time bereceiver and vis – versa; at the same time, digital transmission fragments thetraditional concept of “public” of the “analogue era, as its members may access works“from a place and at a time individually chosen by them”.24 iv. This act of communicating is global and transnational, can be distinguished intwo different acts functionally linked between them: the act of making available to thepublic and the act of receiving. ii. However, this act is no more the fact of a sole and unique transmitter, steadily located in a country who “takes the initiative to include a program in an uninterrupted chain of communication”, (as 93/83 Directive provided). A legal uncertainty is, thus, gaining momentum, concerning the entity, legally liable towards copyright holders. We can conclude, then, that, if the introduction and circulation of works through networks can be challenging for right holders, it presents quite important risks for them: risks of piracy and risks to loose control over their market. The above considerations led to the adoption of a new directive: Directive 29/2001 on “Copyright and Related Rights in the Information Society”24 9
  10. 10. 3.2. Directive 29/2001 on Copyright and related rights in the Information Society.This Directive, unlike satellite and Cable Directive, proceeds to a large harmonizationof copyright aspects in the digital environment. It deals with all kind of copyrightissues, and applies to all media, digital or analogue. As its scope was to supplementnational rules so as to grant more efficient protection to right holders when theirworks are released or used by any means in the digital environment, its provisions are,technologically neutral and may cover all kind of uses as well. Indeed, Directive 29/2001 applies to all communications to the public of protectedworks, whereas Directive 93/83 provides only for a minimal harmonisation of certainaspects of protection of copyright and related rights in the case of communication tothe public by satellite or cable retransmission of programmes from other MemberStates). The question arising is, if Satellite and Cable Directive applies to the world of newdigital media after the adoption of 29/2001, to which extent and, whether the formerhas still a role to play in a world where technical differences between media graduallyfade away. 3.2.1. Rejection of the application of satellite and cable Directive in the digitalenvironment, by the European Court of Justice. The Court of Justice already in 2000,just before the adoption of the 2001 Directive25, had determined the limited scope ofthe satellite and cable Directive, which sets out minimum rules applicable to this kindof transmissions. Indeed, according to the Court, the question, whether the receptionby a hotel establishment of satellite or terrestrial television signals and theirdistribution by cable to the various rooms of that hotel is an “act of communication tothe public” or “reception by the public”, is not governed by Council Directive93/83/EEC, as the latter doesn’t deal with the question of determining borderlinesbetween communication to the public and reception in the field of cabletransmissions. Consequently, according to the Court, national laws were competent todetermine the above borderlines.25 JUDGMENT OF THE COURT (Sixth Chamber); 3 February 2000 (1), (Egeda v. Hoasa, C-293/98). 10
  11. 11. In a more recent decision, (December 7, 2006)26 the Court of Justice went evenfurther in the above direction, as it clearly rejected the application of Directive 93/83,in a similar case (works communicated by means of television sets installed in hotelroom where the signals were transmitted by satellite), and applied directly article 3 ofthe new Directive 29/2001, according to which: “Member States shall provide authors with the exclusive right to authorise orprohibit any communication to the public of their works, by wire or wireless means,including the making available to the public of their works in such a way thatmembers of the public may access them from a place and at a time individuallychosen by them”. The E.C.J. observed that the Directive “doesn’t contain a definition of the term ofcommunication to the public”, but this time it doesn’t make a direct reference to theMember States legislation for the purpose of determining the meaning and scope ofthis concept. In the opposite, it decides that this concept “must be given anautonomous and uniform interpretation throughout the Community”. As clarified inRecital 23 of the Directive 29/2001, the right of communication to the public “…should be understood in a broad sense covering all communication to the public notpresent at the place where the communication originates. This right should cover anysuch transmission or retransmission of a work to the public by wire or wireless means,including broadcasting. This right should not cover any other acts..” As we may see,this broad definition not only excludes the application of Directive 93/83 to the newdigital media, but also undermines its application to analogue media (…anytransmission or retransmission of a work to the public by wire or wireless means,including broadcasting). We may then conclude, that the latter has been completelyoverlapped by the more recent and general directive 29/2001. 3.2.2. Impact of the application 29/2001, to digital transmissions The CopyrightDirective 29/2001 requires Member States to provide for a general right ofcommunication to the public, including a right to make content available on-line. Thisright is supposed to be exercised at the national level, where communication to thepublic takes place. This means that, rights for any act of making available to the26 11
  12. 12. public through Internet by means of P2P or web casting, or any other kind ofcommunication to the public, must be cleared for every territory where a work ismade available to the public. We may notice here, that, according to the previousDirective, the broadcasting right was supposed to be exercised exclusively in theemission country, according to the law of this country. In this sense, Directive 29/2001 brings to the foreground the reception theorieselaborated and abandoned during the eighties27. That means that any copyright holderwhose work has been made available to the public without his consent, may claimdamages in the courts of his country, according to the law of this country or to thelaw of any other country where he suffers a loss. National jurisdictions, as well asrecent legal theory are oriented towards this direction28: indeed, while Internet streaming / simulcasting may be assimilated tobroadcasting, in case of on-demand services and “online retail” of films or music, therelevant act under copyright may take place in the country where the consumer hasaccess to the relevant services (in fact it is in this country where consumption takesplace, that the copyright owner suffers a loss). 3.3. Revision of the Directive 93/83 ? The European Commission has neverabandoned the vision of a pan European television and of the construction of a singleEuropean audiovisual area, and this, in spite of the lack of interest of bothbroadcasting and film sectors, as mentioned above29. The proposal to revise Directive93/83 in order to extend its application or extend the emission theory to the digitalMedia has come to the European public agenda more than once30 and this, besides ofthe strong reaction of right holders. EBU and British broadcasters claimed, howeverthe extension of the emission theory in the digital environment, as the footprinttheories adopted by the 29/2001 Directive always present a danger for broadcastingservices. The most important right holders argument versus the extension of the27 Deliyanni28 Lucas nomologia2930 12
  13. 13. emission theory, was, that, in fact, any digital communication to the public concernsnot only public communication right, but reproduction right, as well31. 3.4. “Creative content on-line”: new trends in E.U. Communication policy. In itsrecent Communication on “Creative Content on-line”, the Commission plans topromote Community-wide licensing arrangements in all segments of the copyrightindustry, because, as a result of copyright territoriality, due in particular to theaforementioned provisions of the 29/2001 Directive, content providers are obliged toobtain licenses to make content available on-line, in every Member State. Indeed, “thelack of multi-territory copyright licenses make it difficult for on-line services to fullybenefit from the Internal Market potential…”. The issue of multi-territorial licensing has become relevant in some of the sectorsproducing creative content. In the audiovisual sector, however, while the newdirective on audiovisual media services32 contains provisions facilitating cross borderdevelopment of on-demand services, many copyright holders still choose to grantlicenses for only few national territories, applying the Media chronology principle,slowing thus, the availability of films in video-on-demand catalogues abroad. The Commission proposes but simultaneously rejects the idea of extending theapplication of the emission theory to digital transmissions and on-line services: “Theapplication of the country of transmission (emission) principle was introduce by thesatellite and cable Directive, in view of an overspill that could not be avoided, in thecontext of a specific broadcasting. In the case of online services the issue is theaccessibility of content services at European level. Further more, the extension of thisprinciple raises a number of concerns, such as the difficulties of locating the act oftransmission, the risk of devaluation of copyright if a single tariff and license … wereto be applied to the whole Internal Market…” Hence, the question of whether or notthe Satellite and Cable Directive and the emission theory should be madetechnologically neutral, and apply to digital online services, should be addressedthrough a review of this Directive. But the Commission seems no more willing toproceed to an immediate revision of this Directive.31 European Commission, Copyright and Related Rights in the Information Society, Green Paper,COM(95) 382 final, Brussels, 19 July 1995, p. 4132 Directive…. 13
  14. 14. Generally, it becomes clear that the Commission has gradually abandoned itsinterventionist approach in the field of copyright. In the opposite, if we observe someof the copyright provisions adopted by the “Information Society Directive”,(29/2001), we may discover an extreme protectionism, which leads to an unjustifiedextension of copyright monopoly to the benefit of ICT industry, and to the loss offreedom of communication. For example, provisions of articles 6 and next, protectingtechnological measures, used by right holders, in order to prevent non authorizeddown loadings of their works33 against circumvention, lead to an unfair restriction of“fair use”, (users freedoms to perceive and use privately, protected works). Thosemeasures go beyond the traditional scope of copyright as a cultural right stimulatingfreedom of speech and free communication of ideas incorporated in protected works.To the extent that the EU Commission has appeared until lately as a proponent of thefree circulation of audiovisual programs, or today, of “creative content” available on-line, ignoring cultural priorities, the above super-protection, allowing copyright holderthe possibility to control any access of his works, may sound strange. One may thinkthat the Commissions interests have moved, towards the protection of cultural goods.The reality is however quite different: the above protection has been granted, forpurpose of giving to right holders full control of their market, in order to enhancetheir entrepreneurship and profit, rather, than to enhance creativity. Of course thispoint of view is not incompatible with the mercantile philosophy of the copyrightsystem. Nevertheless, it is to far from the humanistic approach of the continental“author’s right”. 4. Conclusion The analysis of the history, the application, as well as the future of the satellite andcable Directive in the convergence era, leads us to some general conclusions,concerning the directions and trends of EU communication and cultural policy. Thequestion which persists in the new digital environment is, whether, and to what extent,33 (Recital 47) Technological development will allow rightholders to make use of technologicalmeasures designed to prevent or restrict acts not authorised by the rightholders of any copyright, rightsrelated to copyright or the sui generis right in databases. The danger, however, exists that illegalactivities might be carried out in order to enable or facilitate the circumvention of the technicalprotection provided by these measures. In order to avoid fragmented legal approaches that couldpotentially hinder the functioning of the internal market, there is a need to provide for harmonised legalprotection against circumvention of effective technological measures and against provision of devicesand products or services to this effect. 14
  15. 15. the convergence of communication and content production sectors has persuaded theCommission to take sufficiently into account cultural parameters when conductingcommunication policy and, also, to respect fundamental European principles asfreedom of communication in the field of copyright policy? One may observe that European communication policy continues to presentvacuums and contradictions and lacks in cohesion. It is therefore impossible, even inthe framework of convergence, to consider this policy as a global communicationpolicy for culture. Further more, it becomes more and more obvious, thatcommunication policy as well as copyright policy are market oriented: - Indeed, since the beginning of E. Community, intellectual property issues wereintegrated in the G.D. Internal Market. This fact demonstrates that the E.U. interest inthe field of copyright was at that moment, focused on the economic aspects of theinstitution. This entrepreneurial approach for copyright has not changed through thetime, even in the framework of the Information Society Directive. The superprotection granted by this Directive to copyright holders, rather expresses a need toprotect enterprises which constitute the pillars of the Knowledge Economy than toenhance cultural diversity or pluralism. At this point we may identify the most serious deficit of EU authorities concerningcultural policy: cultural parameters are still taken under account only in exceptionalcases, and, this, rather by the Court of Justice, than by the EU Commission.34 34 See in particular Coditel v. Cinevogue and Cinetheque v. Warner decisions and decisionsconcerning delocalisations 15

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