EC Directive on legal protection of conditional access services

Subject: EC Directive on legal protection of conditional access services
From: Barbara Schleihagen (
Date: ma 14 heinš† 1997 - 14:28:54 EEST

EBLIDA would like to draw your attention to a new proposal for EC Directive:

The European Commission has proposed a Directive on legal protection of
television and radio broadcasting and information society services offered
to the public at a distance where access is subject to payment.

Such services include pay-TV, video-on-demand, music-on-demand, electronic
publishing and a wide range of other on-line services.

If adopted by the Council of Ministers and the European Parliament
(co-decision procedure) the Directive will require Member States to
prohibit and provide appropriate sanctions against all commercial
activities related to unauthorised access to a protected service, such as
the sale of pirate decoders, smart cards or software. It will also
prohibit Member States from invoking "anti-piracy" grounds to restrict the
free movement of legitimate services and conditional access devices
originating in another Member State. The proposal does not address the use
of encryption for security or confidentiality reasons. It forms part of a
package of measures related to electronic commerce foreseen in the Single
Market Action Plan and the Commission's Electronic Commerce Communication
(full text of the Communication, including links to a variety of relevant
other sites:


The type of services covered in the proposal's scope include all forms of
television broadcasting (by terrestrial broadcast, satellite or wire),
broadcasting of radio programmes for reception by the public (by
terrestrial broadcast, satellite or wire) and all forms of on-line
Information Society services, insofar as they are provided on a conditional
access basis.

"Conditional access" means that access to the service at a distance is made
conditional upon a prior authorisation, which aims at ensuring the
remuneration of the service provider. The proposed Directive would apply
also to the provision of conditional access as a service in its own right.

The proposal has been put forward in the light of the results of
consultations on the Commission's 1996 Green Paper on the Legal Protection
of Encrypted Services and of the European Parliament Resolution of 13 May
1997. The proposal takes into account, for example, the fact that some
services available in return for payment are not encrypted but subject to
access through a password.

Effective sanctions

The proposal would require Member States to prohibit the manufacture,
import, sale, advertising, possession, installation, maintenance or
replacement of illicit devices such as pirate decoders and smart cards
which allow unauthorised access to conditional access services. The
proposal would also require Member States to provide for effective,
deterrent and proportional sanctions in case of violations. Moreover,
service providers would be entitled to bring an action for damages, for an
injunction and, where appropriate, for the seizure of illicit devices,
before national authorities to be designated by the Member States.

Promoting free movement of goods and services

By establishing an equivalent level of protection, the proposed Directive
aims at creating a Single Market for the supply of services on a
conditional access basis, and for conditional access devices. A Member
State would not, for example, be able to invoke "anti-piracy" grounds to
restrict the sale, installation or maintenance of conditional access
devices. However, the proposed Directive would not affect Member States'
right to restrict access to services from another Member State on grounds
not covered by the Directive, such as the protection of minors. Nor would
the Directive prevent the application of EU competition rules or EU rules
concerning intellectual property rights.

The proposed Directive does not address technical issues such as encryption
methods or the use of encryption for reasons of security or confidentiality
(such as payments).

The proposal will be forwarded to the European Parliament and the EU's
Council of Ministers for adoption under the co-decision procedure. Once
adopted, the proposed Directive would have to be implemented within one year.

Further information is available at:

Barbara Schleihagen, Director
Heidi Grootscholten, EU Policy Officer
P.O. Box 43300
NL-2504 AH The Hague
Tel: +31-70-309 06 08
Fax: +31-70-309 07 08

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