1. EU Communication law and Culture: the future of the «Satellite and Cable»
Directive 93/83
By 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 the
production of intellectual works1, 2 and the ideas contained in them and as a pillar for
the 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 of
national and/or European cultural policy.
The emergence of mass Media and later on, in the early eighties, the launch of the
European project “TV without frontiers”, destabilized the above balance. E.U.
authorities, in its aim to establish a European audiovisual Market, without internal
frontiers, considered that the exclusive right of the copyright holder, grants him a
monopolistic position in the market, raising an obstacle to the free movement of
services and the free circulation of broadcasts throughout E.U. territory3. Free flow of
information, the right of the citizen to be informed and –with the emergence of private
television- freedom of competition, were gaining momentum at that stage. A conflict
between media policy and the aims of cultural policy and, more precisely, between
cultural industry on the one hand, versus broadcasting organizations and cable
distributors, on the other, aroused in the European public agenda during the adoption
procedure 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. Sakkoulas
publishing, Athens 2002.
3
European Commission, 'Television without Frontiers', Green Paper, COM (84) def, Brussels, 14 June
1984
4
See Ε. Deliyanni, Le droit de représentation des auteurs face a la télévision transfrontalière par
satellite et par câble, Préface A. Françon, LGDJ, Paris 1993 ; Idem, Contenu et application de la
Directive 93/83 du Conseil, relative à la coordination de certaines règles du droit d’auteur et des droits
voisins, applicables à la radiodiffusion par satellite et à la retransmission par câble, in Derecho Europeo
del Audiovisual, Actas del Congresso Organisado por la Associacion Europea de Derecho del
Audiovisual, Sevilla, Octubre 1996, 675.
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2. The initial Directive proposal (1986) contained special copyright provisions for
satellite and cable Trans frontier transmissions. However, the divergence of points of
view recorded between broadcasters, cable distributors and copyright holders at that
moment, obliged E. U. authorities to withdraw, copyright provisions from the initial
proposal, in order to facilitate the adoption of Directive 552/895. Thus, we arrived to a
specific 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 the
coordination of certain rules concerning copyright and rights related to copyright
applicable to satellite broadcasting and cable retransmission), reflects, as its
predecessor, a compromise of conflicted points of view, reducing to the lowest
possible common denominator, all interested parties’ claims and the requirements of
cultural policy, as well7.
Few years after the adoption of satellite and cable Directive, the process of media
convergence and the progressive digitalization of media and platforms, inaugurated a
new kind of relationship between cultural production and communication sectors.
Meanwhile, in its review report of 2002 which examined the practical application of
the Directive, ten years after its adoption8, the European Commission was obliged to
admit that the Directive's goals had, only partially been achieved.
More precisely:
1. the vision of a pan-European satellite broadcasting market had not been
realized, as right holders’ and broadcasters’ licensing synergies, reinforced by the
application of signal encryption techniques, continued segmenting markets along
national 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 the
coordination of certain rules concerning copyright and rights related to copyright applicable to satellite
broadcasting 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 Broadcasting
System, 23rd November 2001, http://www.incd.net/html/english/res/ana.htm. See my docs,
2

3. 2. in addition, the aforesaid process of convergence between production and
communication, has limited dramatically the application field of the above Directive.
In fact, the Directive seems to be outdated and completely overlapped by the more
recent Directive on “Copyright in the Information Society”, which, reflecting the new
conditions of horizontal and interactive communication established by new digital
media, 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 media
policy in accordance with cultural requirements, but also an ignorance of market’s
priorities, this paper aims to discuss critically the impact, which this Directive has
already had on the European audiovisual market and culture and its actual role in a
world 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 media
and culture, express the will for taking under account the double requirement: that, of
enhancing “creators’” protection without prejudicing the aims of freedom of
communication, as both of them contribute jointly to the stimulation of creativity and
to the preservation of pluralism and quality of “creative content” circulating through
the networks.
2. Application of Satellite and Cable Television Directive (93/83): how market’s
priorities and cultural parameters contributed to the circumvention of the Directive’s
provisions.
10
Communication on Creative Content Online in the Single Market ,
http://ec.europa.eu/avpolicy/other_actions/content_online/index_en.htm
http://ec.europa.eu/avpolicy/other_actions/content_online/consultation_2006/index_en.htm
11
3

4. 2.1. Content of Satellite and Cable Television Directive. The purpose of 93/83
was, as its predecessor's 552/89, to promote free cross-border satellite broadcasting of
programmes and their cable retransmission in the internal market and remove the
obstacles arising from disparities between national provisions on copyright, as well12.
Following the example of the Television without Frontiers Directive, and in order
to 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 fragmented
and avoid 'black-outs' in simultaneous cable retransmissions13, 93/83 Directive
provides in article 2:
2. (a) For the purpose of this Directive, 'communication to the public by satellite'
means the act of introducing, under the control and responsibility of the broadcasting
organization, the programme-carrying signals intended for reception by the public
into an uninterrupted chain of communication leading to the satellite and down
towards the earth.
(b) The act of communication to the public by satellite occurs solely in the
Member State where, under the control and responsibility of the broadcasting
organization, the programme-carrying signals are introduced into an uninterrupted
chain 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 of
communication to the public via satellite, determining where this trans-national
12
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. communication takes place and, 2. it identifies the broadcaster liable towards
copyright holders for the clearance of rights. Art 1. 2 (b).
By specifying the place where the act of communication occurs, this provision
determines the applicable copyright legislation, either to contractual relations
(between right holders and broadcasters) regarding the transfer of rights at the
Community level, or even, to the conflict, which may arise between them, in case of
unauthorized inclusion of works in signals transmitted via satellite. According to the
above provision, the applicable law, is the one of the Member State in which the
programme-carrying signals are transmitted. As the aforesaid broadcasts are
essentially trans frontier, its application extends beyond national borders into the
Member States in which the signals are received. This principle avoiding the
cumulative application of several national legislations of the various Member States
covered by the footprint,14 should put an end to the legal uncertainty regarding the
acquisition 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 taking
under account cinematography’s cultural requirements and market’s priorities, in EU
communication policy15. According to these theories, communication to the public of
a work via satellite should take place, in all the countries where the work can be
perceived by viewers (and where the copyright holder suffers a loss). As a result, the
broadcaster should, in most cases, (and principally in case of transmission of
audiovisual works) acquire licences from all right holders within the footprint. This
obligation should permit copyright holders' to keep control of their national market
and preserve the national “chronology of media” (that is, the calendar of release of
each film to different media). The broadcaster including protected works in program
carrying signals without authorization, should engage his responsibility according to
the law of any country within the footprint, where the right holder suffers a loss. This
theory 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 acquire
copyright 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. The EU Commission considered that fixing the legal principles was sufficient to
establish the single audiovisual area, laid down in Directive 89/552/EEC. Finally, the
reality of the audiovisual market denied her. As it has been foreseen, by many
specialists of the legal theory and practice, just after its adoption16, copyright holders
maintained their contractual freedom, notwithstanding the provisions of the Directive
(their freedom to determine the content and terms of any license, co production and
distribution agreements and specify the means, the modes and the dates of release of
their works).
Indeed, the principle of “Media chronology” constitutes an almost sacred rule in
the field of film industry. This principle is achieved by means of a chain of
contractual provisions, which determine for every copyright holder (co producers,
licensees or national distributors), situated in a different country, the exact calendar of
each release of the film to a different medium. Its strict respect by all interested
parties has been considered through the time, as the only means to protect the
exploitation of film in cinema theaters, from any simultaneous communication of the
same film by other Medias (video, satellite, cable television…), originated from the
same 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 more
the above contractual provisions. Film producers and distributors imposed the use of
encryption techniques upon broadcasting organisations (even to the public service
ones) in order to avoid 'spill-over' beyond national borders, which means, that
territorial clearance of rights persisted18.
2.4. Broadcasters’ priorities. Additionally, it seems that most broadcasters in
Europe 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. European television has developed on a national basis since its beginnings and is still
deeply rooted in national culture, language and tradition. As a result, public service
broadcasters, 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 not
willing to pay rights for the whole EU footprint, even if copyright holders are ready
to grant such licences. In fact, only some providers of specialized content (e.g. news
and sports), which interest the whole EU public, and very few public service
broadcasters –those who can afford the financial cost that implies a pan European
satellite transmission-have been engaged in such an investment.
2.4.1. Concerning cable retransmission: broadcasters acting as a “one stop
shop” for cable rights. The chapter of the Directive concerning cable retransmission
of broadcasts aimed to facilitate cross-border cable retransmission of television
programs and avoid 'black-outs' in retransmitted broadcasts, due to individual exercise
of rights by copyright holders not represented by a collective society19.
According to article 9 “Member States shall ensure that the right of copyright
owners and holders or related rights to grant or refuse authorization to a cable
operator for a cable retransmission may be exercised only through a collecting
society”.
The Directive introduces here, a system of compulsory collective management of
cable retransmission rights. In the framework of this system, copyright holders of
television programs, (film producers, film makers, screen writers, etc) loose their right
to negotiate their fees for cable retransmission on an individual basis. Respectively,
only collecting societies duly representing cable rights of a certain category of works
are habilitated to grant consequent authorizations to cable operators.
This system of compulsory collective management introduced in 1993 replaced a
precedent system of compulsory licensing20, contained in the initial proposal of the
19
E. Deliyanni (1993) § and E. Deliyanni (1996)
20
E. Deliyanni (1993) § and E. Deliyanni (1996); European Commission, 'Television without
Frontiers', Green Paper, COM (84) def, Brussels, 14 June 1984.
7

8. E.C. with the latter having been abandoned because of the reactions of both copyright
holders and legal theory. Indeed, compulsory licenses have been considered very
dangerous for the future of creativity in Europe as they stripped the right holders from
their exclusive right, undermining thus, their sole and unique arm in negotiating a fair
compensation for the use of their works.
According to article 10, collective administration of right does not apply to the
rights 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 it
by other copyright owners and/or holders of related rights”.
Indeed, broadcasting organisations are easily identifiable, by cable operators who
can obtain rights directly by them on an individual basis. So, the above exception
permitted the introduction of a contractual practice which already existed at the
moment of the adoption of the Directive: providers of satellite-to-cable services
offered 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 additional
copyright fees21. The aforesaid exception encouraged further the development of such
practises 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 Commission
not only expressed its enthusiasm22, but further more, its desire to generalize it in the
digital environment. Clearly, the Commission's trust in a system of collective rights
management has been somewhat undermined, in favour of freedom of contract. This
may spell good news for broadcasters and cable operators, but not necessarily for the
authors who rely on collecting societies to receive adequate remuneration23.
21
Idem
22
Report from the European Commission on the Application of Council Directive 93/83/EEC on the
Coordination of Certain Rules Concerning Copyright and Rights Related to Copyright Applicable to
Satellite 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.htm
23
P.B. Hugenholtz, op. cit., http://www.ivir.nl/index.html
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9. 3. The Convergence Era
3.l. Radical changes to the procedure of communicating. The convergence era
brings radical changes in the media field and in the whole procedure of
communicating:
i. technical and economic differences between media and digital platforms begin
to vanish, analogue television services is being converted to digital', radio and
television programs are being 'simulcast' over the internet and cable operators
become providers of broadband video services.
ii. Communication is no more vertical and one track, it becomes horizontal and
interactive.
iii. As a consequence, borderlines between the one who transmits and those who
receive a message or a work, fade away: every transmitter can at the same time be
receiver and vis – versa; at the same time, digital transmission fragments the
traditional 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 in
two different acts functionally linked between them: the act of making available to the
public 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. 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 harmonization
of copyright aspects in the digital environment. It deals with all kind of copyright
issues, and applies to all media, digital or analogue. As its scope was to supplement
national rules so as to grant more efficient protection to right holders when their
works 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 protected
works, whereas Directive 93/83 provides only for a minimal harmonisation of certain
aspects of protection of copyright and related rights in the case of communication to
the public by satellite or cable retransmission of programmes from other Member
States).
The question arising is, if Satellite and Cable Directive applies to the world of new
digital media after the adoption of 29/2001, to which extent and, whether the former
has still a role to play in a world where technical differences between media gradually
fade away.
3.2.1. Rejection of the application of satellite and cable Directive in the digital
environment, 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 of
the satellite and cable Directive, which sets out minimum rules applicable to this kind
of transmissions. Indeed, according to the Court, the question, whether the reception
by a hotel establishment of satellite or terrestrial television signals and their
distribution by cable to the various rooms of that hotel is an “act of communication to
the public” or “reception by the public”, is not governed by Council Directive
93/83/EEC, as the latter doesn’t deal with the question of determining borderlines
between communication to the public and reception in the field of cable
transmissions. Consequently, according to the Court, national laws were competent to
determine the above borderlines.
25
JUDGMENT OF THE COURT (Sixth Chamber); 3 February 2000 (1), (Egeda v. Hoasa, C-293/98).
10

11. In a more recent decision, (December 7, 2006)26 the Court of Justice went even
further 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 hotel
room where the signals were transmitted by satellite), and applied directly article 3 of
the new Directive 29/2001, according to which:
“Member States shall provide authors with the exclusive right to authorise or
prohibit 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 that
members of the public may access them from a place and at a time individually
chosen by them”.
The E.C.J. observed that the Directive “doesn’t contain a definition of the term of
communication to the public”, but this time it doesn’t make a direct reference to the
Member States' legislation for the purpose of determining the meaning and scope of
this concept. In the opposite, it decides that this concept “must be given an
autonomous and uniform interpretation throughout the Community”. As clarified in
Recital 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 not
present at the place where the communication originates. This right should cover any
such 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 new
digital media, but also undermines its application to analogue media (…any
transmission or retransmission of a work to the public by wire or wireless means,
including broadcasting). We may then conclude, that the latter has been completely
overlapped by the more recent and general directive 29/2001.
3.2.2. Impact of the application 29/2001, to digital transmissions The Copyright
Directive 29/2001 requires Member States to provide for a general right of
communication to the public, including a right to make content available on-line. This
right is supposed to be exercised at the national level, where communication to the
public takes place. This means that, rights for any act of making available to the
26
11

12. public through Internet by means of P2P or web casting, or any other kind of
communication to the public, must be cleared for every territory where a work is
made available to the public. We may notice here, that, according to the previous
Directive, the broadcasting right was supposed to be exercised exclusively in the
emission country, according to the law of this country.
In this sense, Directive 29/2001 brings to the foreground the reception theories
elaborated and abandoned during the eighties27. That means that any copyright holder
whose work has been made available to the public without his consent, may claim
damages in the courts of his country, according to the law of this country or to the
law of any other country where he suffers a loss. National jurisdictions, as well as
recent legal theory are oriented towards this direction28:
indeed, while Internet streaming / simulcasting may be assimilated to
broadcasting, in case of on-demand services and “online retail” of films or music, the
relevant act under copyright may take place in the country where the consumer has
access to the relevant services (in fact it is in this country where consumption takes
place, that the copyright owner suffers a loss).
3.3. Revision of the Directive 93/83 ? The European Commission has never
abandoned the vision of a pan European television and of the construction of a single
European audiovisual area, and this, in spite of the lack of interest of both
broadcasting and film sectors, as mentioned above29. The proposal to revise Directive
93/83 in order to extend its application or extend the emission theory to the digital
Media has come to the European public agenda more than once30 and this, besides of
the strong reaction of right holders. EBU and British broadcasters claimed, however
the extension of the emission theory in the digital environment, as the footprint
theories adopted by the 29/2001 Directive always present a danger for broadcasting
services. The most important right holders' argument versus the extension of the
27
Deliyanni
28
Lucas nomologia
29
30
12

13. emission theory, was, that, in fact, any digital communication to the public concerns
not only public communication right, but reproduction right, as well31.
3.4. “Creative content on-line”: new trends in E.U. Communication policy. In its
recent Communication on “Creative Content on-line”, the Commission plans to
promote Community-wide licensing arrangements in all segments of the copyright
industry, because, as a result of copyright territoriality, due in particular to the
aforementioned provisions of the 29/2001 Directive, content providers are obliged to
obtain licenses to make content available on-line, in every Member State. Indeed, “the
lack of multi-territory copyright licenses make it difficult for on-line services to fully
benefit from the Internal Market potential…”.
The issue of multi-territorial licensing has become relevant in some of the sectors
producing creative content. In the audiovisual sector, however, while the new
directive on audiovisual media services32 contains provisions facilitating cross border
development of on-demand services, many copyright holders still choose to grant
licenses 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 the
application of the emission theory to digital transmissions and on-line services: “The
application of the country of transmission (emission) principle was introduce by the
satellite and cable Directive, in view of an overspill that could not be avoided, in the
context of a specific broadcasting. In the case of online services the issue is the
accessibility of content services at European level. Further more, the extension of this
principle raises a number of concerns, such as the difficulties of locating the act of
transmission, the risk of devaluation of copyright if a single tariff and license … were
to be applied to the whole Internal Market…” Hence, the question of whether or not
the Satellite and Cable Directive and the emission theory should be made
technologically neutral, and apply to digital online services, should be addressed
through a review of this Directive. But the Commission seems no more willing to
proceed 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. 41
32
Directive….
13

14. Generally, it becomes clear that the Commission has gradually abandoned its
interventionist approach in the field of copyright. In the opposite, if we observe some
of the copyright provisions adopted by the “Information Society Directive”,
(29/2001), we may discover an extreme protectionism, which leads to an unjustified
extension of copyright monopoly to the benefit of ICT industry, and to the loss of
freedom of communication. For example, provisions of articles 6 and next, protecting
technological measures, used by right holders, in order to prevent non authorized
down loadings of their works33 against circumvention, lead to an unfair restriction of
“fair use”, (users' freedoms to perceive and use privately, protected works). Those
measures go beyond the traditional scope of copyright as a cultural right stimulating
freedom 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 the
free circulation of audiovisual programs, or today, of “creative content” available on-
line, ignoring cultural priorities, the above super-protection, allowing copyright holder
the possibility to control any access of his works, may sound strange. One may think
that the Commission's interests have moved, towards the protection of cultural goods.
The reality is however quite different: the above protection has been granted, for
purpose of giving to right holders' full control of their market, in order to enhance
their entrepreneurship and profit, rather, than to enhance creativity. Of course this
point of view is not incompatible with the mercantile philosophy of the copyright
system. 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 and
cable Directive in the convergence era, leads us to some general conclusions,
concerning the directions and trends of EU communication and cultural policy. The
question 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 technological
measures designed to prevent or restrict acts not authorised by the rightholders of any copyright, rights
related to copyright or the sui generis right in databases. The danger, however, exists that illegal
activities might be carried out in order to enable or facilitate the circumvention of the technical
protection provided by these measures. In order to avoid fragmented legal approaches that could
potentially hinder the functioning of the internal market, there is a need to provide for harmonised legal
protection against circumvention of effective technological measures and against provision of devices
and products or services to this effect.
14

15. the convergence of communication and content production sectors has persuaded the
Commission to take sufficiently into account cultural parameters when conducting
communication policy and, also, to respect fundamental European principles as
freedom of communication in the field of copyright policy?
One may observe that European communication policy continues to present
vacuums and contradictions and lacks in cohesion. It is therefore impossible, even in
the framework of convergence, to consider this policy as a global communication
policy for culture. Further more, it becomes more and more obvious, that
communication policy as well as copyright policy are market oriented:
- Indeed, since the beginning of E. Community, intellectual property issues were
integrated in the G.D. Internal Market. This fact demonstrates that the E.U. interest in
the field of copyright was at that moment, focused on the economic aspects of the
institution. This entrepreneurial approach for copyright has not changed through the
time, even in the framework of the Information Society Directive. The super
protection granted by this Directive to copyright holders, rather expresses a need to
protect enterprises which constitute the pillars of the Knowledge Economy than to
enhance cultural diversity or pluralism.
At this point we may identify the most serious deficit of EU authorities concerning
cultural policy: cultural parameters are still taken under account only in exceptional
cases, 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 decisions
concerning delocalisations
15