Convergence of

Communications: Some
reflections

Venkat Iyer
BSc (Hons), LLB, LLM, PhD, Barrister
School of Law, University of Ulster
Law Commissioner, Northern Ireland
The changing landscape
 Shift in the balance of power between those who
own/control communication networks and those
who use/benefit from the networks
 Growing importance of ‘social communities’ and
user-generated content and a corresponding
decline in ‘unidirectional’ broadcasting
 Increasing demand for a spirit of neutrality and
competition in the state’s regulatory approach
(consistently with due regard for consumer
protection)
 Expanding view of free speech principles and the
‘chilling’ effect of restrictions on public discourse
The changing landscape: IPRs
 Shifting dynamics in the fight against
copyright piracy – e.g. Copyrouter/Kazaa,
Napster litigation
 The Google Book Search litigation – ‘Book
Rights Registry’
Conceptual challenges
 Need to rethink the evolution of communication/
media policy as adequately served by ‘disjointed
incrementalism’
 Need to overcome a mindset which
compartmentalises public nature of broadcasting
and personal nature of communication
 Need to avoid situations where the government is
both the regulator and a major player in the
communications/ broadcasting market/s
 Need to ensure that incentives to develop and
exploit new technologies are inbuilt into the
regulatory framework/system
Practical challenges
 Need to ensure better and more efficient
use of bandwidth in the face of ever
increasing demand
 Need to review constitutional/
administrative regimes where federal-
state demarcation issues impinge on
smooth functioning of the regulatory
regime
 Need to strengthen copyright regimes at
national level, in terms of both substantive
law and enforcement capacity
Legal challenges
 Continuing relevance of traditional
principles of substantive law
 Adequacy and appropriateness of existing
rules of procedural law (e.g. on
jurisdiction, venue and applicable law for
litigation concerning copyright
infringement and other disputes)
Domestic law issues
 Lacunae in domestic legal regimes – e.g.
in relation to rights information
management, sharing of infrastructure by
the media, broadcasting & telecom sectors
 Territorial segmentation of markets – e.g.
in relation to cable TV
 Rights, powers, responsibilities and control
of collecting societies, including dispute
resolution mechanisms
The European experience: Satellite &
Cable Directive
 History and evolution of the Directive
- rationale: encouragement of cable TV, esp. in urban centres,
across Europe, and use of cable networks for simultaneous
transmission of TV programmes in remote areas
- demand by copyright holders of remuneration for retransmission
- resistance by cable network owners on grounds of organisational
and technical non-feasibility
- resolution (by the courts) of dispute in favour of right holders
- search for solution to provide uninterrupted cross-border
reception of cable programmes
- growth of satellite TV and problems with transmission of movies
(distribution of which had been organised territorially and in
accordance with ‘release windows’ – cinema release, selling of
cassettes, lending of cassettes, TV release)
Satellite & Cable Directive
 Incompatibility of territorially segmented rights
enforcement with EU principle of free movement
of services
 Plan to harmonise copyright provisions across all
member-states – eventually unsuccessful
 Plan to issue compulsory statutory licences for
cross-border transmissions – also abandoned
after fierce opposition from rights holders
 Parties allowed to contractually agree on
disallowing reception in particular countries
through encryption or other technical means
Satellite & Cable Directive
 In relation to cable TV, rights holders only allowed to
exercise their rights through collecting societies, but
exception made in respect of broadcasters (as they are
easily identifiable)
 Given the multitude of rights holders, even collecting
societies may not be able to obtain rights from
everyone involved – provision made for indemnification
for damages (not injunctions) by collecting societies
vis-a-vis cable operators
 Safeguards against abuse, in terms of ‘bad faith’
refusal of permissions by collecting societies, or
imposition of unfair terms by cable operators, are built
into the Directive
Satellite & Cable Directive
 Overall verdict - not very favourable:
“The envisaged future of a pan-European satellite broadcasting
market has not materialised. Instead, contractual licensing
practices reinforced by the application of signal encryption
techniques have allowed broadcasters and rights holders to
continue segmenting markets along national borderlines.”
- Bernt Hugenholtz
 Also, future of the Directive not clear in the era of
increasing convergence – esp. given its
‘dedicated’ regimes for satellite and cable
transmissions
Internet broadcasting
 Proposal to apply ‘country of origin’ rule rejected
by rights holders – internet broadcasting was not,
they argued, simply ‘communication to the
public’, but also involves the right of reproduction
 Territoriality still a seriously contentious issue
within the EU
Challenges
 Existence of regulatory differentiation between
distribution platforms – terrestrial TV, satellite
TV, DTH & mobile TV (deemed ‘direct
communication to the public’), but cable TV and
internet-based TV (deemed ‘secondary
communication to the public’) – and different
copyright clearance regimes
 Lack of global online database of rights holders in
various types of copyrighted work - impediment
to legal certainty and ease of copyright
clearance?
Challenges
 ‘Compensation fee’ from ISPs for
unauthorised file-sharing by their
subscribers and the creation of a fund for
affected rights holders? (EU Reflection
Document*) – simple solution to a vexed
problem, or an unfair blunt instrument set
to penalise law-abiding users?

* Creative Content in a European Digital Single Market

‘Minor adjustment or major overhaul’?
Some fundamental questions
 Does convergence require a reconsideration of policy goals
by regulators?
 Convergence and de-regulation: is convergence likely to aid
– or at least not hinder – the process of liberalisation that
has been the dominant trend worldwide?
 Does convergence pose a threat to the beneficiaries of
entrenched advantage (e.g. law enforcement agencies
enjoying untrammelled power of intrusion into individuals’
communications, or recipients of subsidy for universal
access)?
 Does convergence require an overarching competition law
or mere sector-specific competition rules in a country’s
legislative framework?