Leg Convergence

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    EUROPEAN BROADCASTING UNION

    Legal Department

    UNION EUROPEENNE DE RADIO-TELEVISION

    Dpartement juridique

    30.4.1998

    DAJ

    EBU REPLY

    TO THE

    CONVERGENCE GREEN PAPER

    APRIL 1998

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    I

    Executive summary

    THE INFORMATION SOCIETY: FROM SCARCITY OF FREQUENCIES

    TO SCARCITY OF CONTENT AND SCARCITY OF ACCESS TO

    THE AUDIENCE?

    Convergence does not affect the basic distinction between the provision of content

    and technical transmission, or, in other words, between issues of content and

    distribution infrastructure. The two aspects need to be examined separately and

    require different regulatory approaches.

    1. Content

    Content is the key element in a convergent environment, in both economic and

    societal terms. An information society without socially relevant content would not be

    worthy of the name. Users, as consumers and citizens, will embrace new services and

    new technical devices (e.g. set-top boxes) only if these allow them access to

    interesting content.

    = Content must be diverse, responding to mass appeal as well as to variousminority-type interests. As far as possible, it should be of (high) quality. Such

    content constitutes a merit goodwhich - at least in a free-to-air environment - the

    market itself cannot deliver. Theoretically, the merit goodconstraint could, to acertain extent at least, be overcome in a pay-environment. However, this raises the

    still more fundamental problem of information society haves and have-nots.

    = The remit of public service broadcasting covers exactly this type of programming,and the public funding of public service broadcasting continues to be the best

    means of ensuring that it will actually be produced and will be available to every

    member of the information society. The more audiences become fragmented, the

    more the public funding of public service broadcasting will be necessary to ensure

    production of such content.

    = The role which public service broadcasting is called upon to play in this field isbound to become still more important, given that the possibilities for regulators to

    enforce "positive" content regulations vis--vis commercial operators will be

    increasingly limited in a global competitive environment. This applies to

    traditional broadcasting and, even more so, to new on-line services, where the

    enforcement of "negative" content regulations is already becoming difficult.

    = Content which is of interest, relevance and importance to society as a whole("major events") must continue to be available to the entire population, via free-to-

    air broadcasting which reaches the highest possible proportion of the population.

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    II

    = Content needs to respect human dignity and other basic rights and social values.To ensure that unsuitable material, including pornography and matter inciting

    racial hatred, is not communicated to the public, so-called "negative" contentregulations will remain necessary. In applying such regulations to a whole new

    range of on-line multimedia services, the characteristics of those services need to

    be respected. This will imply a graduated approach which takes into account

    factors such as the "publicness" (public accessibility) of services, the relevance of

    the content (in cultural, political and social terms) and the amount of effective

    consumer control (through filtering systems).

    = Diverse content, a result of true pluralism of opinion, will not be available wherediverse programme sources do not exist in the first place, or where access to

    programme material is unduly restricted. Horizontal concentration, including

    cross-media concentration (television/radio/publishing), constitutes a seriousthreat in this regard. No less serious is the threat from vertical integration on the

    programme supply side, where a broadcaster or other programme service provider

    simultaneously owns or controls a sports rights agency, an advertising agency, a

    film rights agency, a major television or film production company, a major

    phonogram production company, a football or other sports club or, indeed, a

    combination and a multitude thereof. "Globalization" cannot serve as a valid

    excuse, and competition law cannot provide an appropriate (media-specific)

    remedy here.

    =Huge amounts of invaluable radio and television output, reflecting Europe'sunique audiovisual heritage, are held in public broadcasters' archives. Subject to

    legislative assistance with copyright clearance, public broadcasters could make

    this material available to the information society thanks to the new communication

    channels and methods opened up by convergence. Otherwise, ...

    = Finally, content provision must not be unduly hampered, or even madeimpossible, by measures proposed to be taken (such as the extension of the

    reproduction right) or not envisaged (such as the introduction of an incidental

    reproduction exemption or the limitation of phonogram producers' on-demand

    delivery right in connection with radio and TV productions) in the field of

    copyright legislation.

    2. Access to the audience

    Access to the audience is the indispensable concomitant to content. Even the best

    content is useless if content providers are denied access to the audience or if the

    audience (or at least a substantial part thereof) is incapable of finding content that is

    available.

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    III

    = The interoperability of technical systems is of key importance in all areas oftechnological convergence. Interoperability should allow viewers access to all

    broadcasting services via a single set-top box. And it should allow them, if theywish, to have access to the broadest possible range of interactive multimedia

    services through the same home terminal.

    = Digital gateways (conditional access systems, EPGs, APIs, etc.) open, or block, abroadcaster's door to the audience. In the absence of open systems and effective

    regulation ensuring non-discrimination, gate-keepers are in a de facto position to

    cause a serious threat to media pluralism as well as to competition. This is one of

    the most important regulatory challenges at the crossroads of telecommunications,

    broadcasting and information technology.

    = Vertical concentration on the programme delivery side, where a broadcaster orother programme service provider owns or controls satellite transponders,

    terrestrial transmission networks, cable distribution systems, multiplex services or

    digital gateway providers, may result in serious constraints and competition

    disadvantages for other programme providers wishing to reach their intended

    audience.

    = Broadcasters can play a major role in preparing the general public for theinformation society and enabling it to use new information and communicationtools. Education (especially for the "older" section of the population) is an

    indispensable prerequisite for everyone to be able to find his way through thetechnical maze and to the programming of his choice. As long as that result is not

    ensured, the public is entitled to be given automatic first access (or, at least, easy

    and straightforward access) to those programmes which, through the scope and

    quality of their content, serve as a reference point for the entire population.

    For EBU members, convergence and, in particular, the information society which is

    expected to result from convergence, constitute a challenge and offer positive

    opportunities. However, the avoidance of foreseeable, undesired consequences as well

    as the furtherance and promotion of desired results will need regulation which

    addresses the specific issues of content provision as well as, separately, technical

    infrastructure and competition, and which is placed at the appropriate geographicallevel.

    The EBU's members are determined to play an active role in, and for, the

    information society, by providing socially relevant content and making it

    available to the audience via the most appropriate channels and means which

    exist at any given time in an increasingly converging environment.

    ____________

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    i

    Table of contents

    Executive summary.........................................................................................I

    Table of contents ............................................................................................i

    Questions in the Green Paper and Answers................................................1

    Question 1 ......................................................... ........................................................... ............................1

    Convergence at the technological level................................................................................................1

    Starting-point: the scope of the convergence phenomenon ...................................................... ......1

    Numerous competing delivery mechanisms... and several factors for success................................1There is no certain universal recipe for success in new multimedia delivery systems....................2

    The convergence of terminal equipment ........................................................... ..............................3

    Is the convergence phenomenon happening at the industry, service and market levels?