2002cm107






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    Ministers’ Deputies
    CM Documents

    CM(2002)107 2 August 2002
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    807 Meeting, 11 September 2002
    5 Media


    5.1 Steering Committee on the Mass Media (CDMM) -

    57th meeting of the CDMM (Strasbourg, 14-17 May 2002)

    List of decisions

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    1. The Steering Committee on the Mass Media (CDMM) held its 57th meeting from 14-17 May 2002 in Strasbourg. The meeting was chaired by Mr Frithjof BERGER (Germany). The agenda, as adopted, appears in Appendix I. 1

    2. In the light of the progress made on the Action Plan set for it at the 6th European Ministerial Conference on mass media policy (Cracow, June 2000) and the topical political questions that had since arisen in its field of competence, the CDMM set new terms of reference for its different subordinate bodies for 2003 and decided, in addition, to set up a new Advisory Panel on Media and Terrorism. The Committee of Ministers is invited to approve the terms of reference of these different subordinate bodies (see Appendices III to IX). The Committee of Ministers is also invited to adopt the new terms of reference of the CDMM itself, as set out in Appendix II, which should expire in 2005.

    3. The Committee of Ministers may wish to note that as well as setting up the new Panel mentioned above, the CDMM decided to organise, on the eve of its next meeting on 25 November 2002, a conference on questions concerning the media and terrorism, in order to gather more detailed information for use in its future work on the subject.

    4. The CDMM took stock of the work done by its different subordinate bodies and set the course for the work still to be done. In this respect, the CDMM approved a draft Recommendation on measures to enhance the protection of the neighbouring rights of broadcasting organisations and the draft Explanatory Memorandum thereto. The Committee of Ministers is invited to adopt the Recommendation and to take note of the Explanatory Memorandum (see Appendices X and XI).

    5. The CDMM also examined the opinion which the Bureau of the European Committee on Crime Problems (CDPC) had submitted to the Ministers’ Deputies at their 794th meeting (30 April 2002) concerning the draft Declaration on freedom of political expression in the media which the CDMM had previously submitted to the Deputies for adoption. In the light of this examination, the CDMM had revised certain elements of the draft Declaration, which would be re-examined with a view to a final decision at its next meeting.

    6. The CDMM also held a hearing on issues concerning freedom of expression and information and terrorism and, in the light of the outcome of the hearing, discussed the advisability of proposing that the Steering Committee on Human Rights (CDDH) include a text on the subject in the draft guidelines on the protection of human rights in the fight against terrorism which the CDDH would be submitting to the Committee of Ministers for adoption.

    7. The CDMM adopted an opinion (see Appendix XII) on Parliamentary Assembly Recommendation 1543 (2001) on racism and xenophobia in cyberspace, in accordance with the terms of reference the Ministers’ Deputies had given it at their 773rd meeting (21 November 2001).

    8. Lastly, the CDMM took note of the initiatives taken in its field of competence with a view to strengthening exchanges of information and co-operation between the European Commission and the Council of Europe; took note of a number of recent legal and technical developments in the media field, in particular under the Spanish Presidency of the European Union; set the dates of its meetings and those of its subordinate bodies for the remainder of 2002; finalised a list of items for inclusion in its next meeting agenda; took note of the work under way in the Standing Committee on Transfrontier Television and of the state of advancement of the preparation of the World Summit on the Information Society that would take place in December 2003.

    Appendix I

    Agenda

    1. Opening of the meeting

    2. Adoption of the agenda

    3. Hearing on questions concerning freedom of expression and information and the fight against terrorism (14 May 2002, 9.30am-1pm)

    4. Elaboration of a guideline on freedom of expression and information and terrorism for the Steering Committee on Human Rights (CDDH)

    5. Information on the decisions of the Committee of Ministers of interest to the CDMM

    6. Group of Specialists on on-line services and democracy (MM-S-OD)

    (i) Work concerning illicit or harmful content on the Internet
    (ii) Work concerning the democratic potential of new communication services
    (iii) Draft Declaration of the Committee of Ministers on freedom of Internet communication

    7. Group of Specialists on freedom of expression and other fundamental rights (MM-S-FR)

    (i) Draft Declaration of the Committee of Ministers on freedom of political debate in the media
    (ii) Draft Recommendation and draft Declaration of the Committee of Ministers on the provision of information through the media in relation to criminal proceedings
    (iii) Other work of the MM-S-FR

    8. Group of Specialists on the democratic and social implications of digital broadcasting (MM-S-DB): draft Recommendation of the Committee of Ministers on the democratic and social impact of digital broadcasting

    9. Draft Recommendation of the Committee of Ministers on measures to enhance the protection of the neighbouring rights of broadcasting organisations

    10. Advisory Panel on media diversity (AP-MD): draft report on media diversity in Europe

    11. Definition of orientations for the work programme of the CDMM in 2003 and re-examination of the terms of reference of the CDMM and its subordinate bodies

    (i) Content of the work programme for 2003
    (ii) Terms of reference of the CDMM and its subordinate bodies and composition of the subordinate bodies of the CDMM
    (iii) Working methods of the CDMM and its subordinate bodies

    12. State of progress of the negotiations concerning the liberalisation of trade in services within the framework of the WTO and their impact on the audiovisual sector

    13. Co-operation with the European union in the media field

    14. Progress of work and recent technical and legal developments in the media field of interest to the CDMM

    15. Report on the Spanish Presidency of the European Union

    16. Dates of forthcoming meetings

    17. Items to be included on the agenda of the 58th meeting of the CDMM

    18. Other business

    (i) Standing Committee on Transfrontier Television
    (ii) World Summit on the Information Society
    (iii) Formulation of an Opinion on Recommendation 1543 (2001) of the Parliamentary Assembly on racism and xenophobia in cyberspace

    Appendix II

    Terms of reference of the CDMM

    Specific terms of reference

    1. Name of committee:

    Steering Committee on the Mass Media (CDMM)

    2. Type of committee:

    Steering committee

    3. Source of terms of reference:

    Committee of Ministers

    4. Terms of reference:

    Having regard to the objectives spelled out for the Council of Europe at the Summits of Heads of State and Government of the Organisation and taking account, in particular, of the orientations provided at the European Ministerial Conferences on Mass Media Policy, the Steering Committee on the Mass Media shall, within the framework of the annual Intergovernmental Programme of Activities:

    i. develop European co-operation on means of public communication with a view to further enhancing freedom of expression and information in a pluralistic democratic society, as well as the free flow of information and ideas across frontiers, and to fostering a plurality of independent and autonomous means of public communication reflecting a diversity of opinions and cultures, taking account of political, economic and technological changes in the area of means of public communication, as a result in particular of globalisation;

    ii. to this effect, work out concerted European policy measures and appropriate legal and other instruments to address the issues raised notably by the functioning of means of public communication in a democratic society, in particular their impact on human rights and democratic values, as a result of the progressive disappearance of technological boundaries between broadcasting, telecommunications and informatics, while bearing in mind the need to develop activities which advance the goals of democratic security and cultural cohesion and pluralism in a pan-European perspective;

    iii. monitor the implementation by member states of the non-binding instruments prepared under its authority;

    iv. follow-up, in its area of competence, the monitoring procedure of the Committee of Ministers concerning freedom of expression and information, on the basis of the relevant decisions of the Committee of Ministers;

    v. prepare the European Ministerial Conferences on Mass Media Policy and to ensure their follow-up on the basis of the relevant decisions of the Committee of Ministers;

    vi. develop co-operation and exchanges with other countries and organisations, in particular in neighbouring regions of Europe, on questions falling within its area of competence;

    vii. having regard to the Secretary General's co-ordinating role, co-operate with other steering committees, ad hoc committees and any other structures set up within the framework of the Council of Europe dealing with issues of relevance to its work programme such as the Integrated Projects established by the Secretary General.

    5. Membership of the committee:

    a. In principle, delegates representing each member state should be senior civil servants in competent administrations responsible for policy-making in this area. However, if a high-ranking media professional is nominated, he/she should liaise in advance with the relevant administration in order to obtain any necessary instructions for the proper discharge of his/her mandate.

    The Council of Europe's budget bears travelling and subsistence expenses for one expert per member state (two in the case of the State whose expert has been elected to the Chair).

    b. The Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe may send two representatives to meetings of the Committee without the right to vote or defrayal of expenses.

    c. The European Audiovisual Observatory may send a representative to meetings of the Committee without the right to vote or defrayal of expenses.

    d. The European Commission may send representatives, without the right to vote or defrayal of expenses, to meetings of the Committee.

    e. The following observers with the Council of Europe may send a representative, without the right to vote or defrayal of expenses, to meetings of the Committee:

    Canada
    Holy See
    Japan
    Mexico
    United States of America

    f. The following observers with the Committee may send representatives, without the right to vote or defrayal of expenses:

    Belarus
    Federal Republic of Yugoslavia

    Nordic Council of Ministers
    OSCE
    Audiovisual EUREKA
    European Broadcasting Union
    Association of Commercial Television in Europe
    European Federation of Journalists
    European Newspaper Publishers Association
    European Internet Service Providers’ Association

    6. Working structures and methods:

    Within the framework of its terms of reference, the CDMM shall have the possibility, as the case may be, to establish committees of experts, groups of specialists, working parties, advisory panels, etc. of limited membership for the consideration of specific issues. It will also have the possibility to have whatever contacts or consultations with professional or other bodies that it deems necessary for the implementation of its terms of reference.

    The Bureau of the committee will comprise 7 members.

    7. Duration

    These terms of reference shall be reviewed before 31 December 2005.

    Appendix III

    Terms of reference of the Group of Specialists on freedom of expression and other fundamental rights (MM-S-FR)

    Specific terms of reference

    1. Name of Committee:

    Group of Specialists on freedom of expression and other fundamental rights (MM-S-FR)

    2. Type of Committee:

    Group of Specialists

    3. Source of terms of reference:

    Steering Committee on the Mass Media (CDMM)

    4. Terms of reference:

    Under the authority of the CDMM, and following the Declarations adopted at the 2nd Summit of Heads of State and Government (Strasbourg, October 1997) and the 6th European Ministerial Conference on Mass Media Policy (Cracow, June 2000), the MM-S-FR will finalise its work on the question of the balance between freedom of expression and the right to privacy.

    Furthermore, the MM-S-FR will prepare, on the basis of the information provided by the Advisory Panel on media and terrorism (AP-MT), and its own analysis, a draft Declaration on ways of safeguarding freedom of expression and information in the context of the fight against terrorism.

    In addition, the MM-S-FR will suggest possible initiatives which the Council of Europe and its member states could take, or support, regarding the contribution of the media to better understanding between peoples, including intercultural, inter-religious and interethnic dialogue.

    Upon request by the CDMM, the MM-S-FR shall provide advice and assistance to the CDMM and/or its subordinate bodies on issues concerning freedom of expression and other fundamental rights, and carry out any ad hoc assignments given to it by the CDMM.

    5. Membership:

    The MM-S-FR shall be composed as follows:

    Albania, Bulgaria, Croatia, Cyprus, Georgia, Germany, Hungary, Latvia, Lithuania, Malta, Moldova, Russian Federation, Switzerland, “The Former Yugoslav Republic of Macedonia”, Turkey, Ukraine.

    a. The Council of Europe will bear the travel and subsistence expenses of one specialist from each of the above countries for attendance at meetings of the Group of Specialists.

    Other member states expressing an interest in the work of the Group may designate, at their own expense, specialists to participate in meetings of the Group.

    b. The Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe may send representatives to meetings of the Group without the right to vote or defrayal of expenses.

    c. The European Audiovisual Observatory may send a representative to meetings of the Group without the right to vote or defrayal of expenses.

    d. The European Commission may send representatives to meetings of the Group without the right to vote or defrayal of expenses.

    e. The following observers with the Council of Europe may send a representative without the right to vote or defrayal of expenses to meetings of the Group:

    Canada
    Holy See
    Japan
    Mexico
    United States of America

    f. The following observers with the MM-S-FR may send representatives, without the right to vote or defrayal of expenses to meetings of the Group:

    Belarus
    Federal Republic of Yugoslavia

    Nordic Council of Ministers
    OSCE
    Audiovisual EUREKA
    European Broadcasting Union
    Association of Commercial Television in Europe
    European Federation of Journalists
    European Newspaper Publishers Association
    European Internet Service Providers’ Association
    Article 19

    6. Qualification expected from the experts:

    The members of the MM-S-FR shall be appointed on the basis of their expertise in the field of media law, in particular on the above-mentioned issues.

    7. Working structures and methods:

    The MM-S-FR shall undertake the necessary research and consultations with relevant parties. Where necessary, the MM-S-FR may organise hearings and/or colloquies, or have recourse to consultants.

    8. Duration:

    These terms of reference shall be reviewed before 31 December 2003.

    Appendix IV

    Terms of reference of the Group of Specialists on on-line services and democracy (MM-S-OD)

    Specific terms of reference

    1. Name of Committee:

    Group of Specialists on on-line services and democracy (MM-S-OD)

    2. Type of Committee:

    Group of Specialists

    3. Source of terms of reference:

    Steering Committee on the Mass Media (CDMM)

    4. Terms of reference:

    Under the authority of the CDMM, and following the Declarations adopted at the 2nd Summit of Heads of State and Government (Strasbourg, October 1997) and the 5th and 6th European Ministerial Conferences on Mass Media Policy (Thessaloniki, December 1997 and Cracow, June 2000), the MM-S-OD will:

    - finalise its work on the use of new communication services to promote their widespread adoption and enhance their democratic potential as a means of society-wide exchange of information and opinions, in co-operation with the Integrated Project “Making democratic institutions work”,

    - finalise its work on the right of reply on-line,

    - finalise its work on Internet literacy, in co-operation with other relevant Council of Europe committees, so as to educate users towards greater understanding and responsibility as regards the use of new communication and information services,

    - continue to monitor the development of self-regulatory and co-regulatory initiatives taken in member states regarding illicit and harmful content on the Internet with a view, as appropriate, to taking any measures in order to promote such initiatives at the pan-European level,

    with a view to proposing appropriate action by the CDMM.

    Upon request by the CDMM, the MM-S-OD shall provide advice and assistance to the CDMM and/or its subordinate bodies on issues concerning on-line services and new information and communication technologies, and carry out any ad hoc assignments given to it by the CDMM.

    5. Membership:

    The MM-S-OD shall be composed as follows:

    Belgium, Estonia, Finland, France, Greece, Iceland, Portugal, Romania, Slovakia, Spain.

    a. The Council of Europe will bear the travel and subsistence expenses of one specialist from each of the above countries for attendance at meetings of the Group of Specialists.

    Other member states expressing an interest in the work of the Group may designate, at their own expense, specialists to participate in meetings of the Group.

    b. The Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe may send representatives to meetings of the Group without the right to vote or defrayal of expenses.

    c. The European Audiovisual Observatory may send a representative to meetings of the Group without the right to vote or defrayal of expenses.

    d. The European Commission may send representatives to meetings of the Group without the right to vote or defrayal of expenses.

    e. The following observers with the Council of Europe may send a representative without the right to vote or defrayal of expenses to meetings of the Group:

    Canada
    Holy See
    Japan
    Mexico
    United States of America

    f. The following observers with the MM-S-OD may send representatives, without the right to vote or defrayal of expenses to meetings of the Group:

    Belarus
    Federal Republic of Yugoslavia

    Nordic Council of Ministers
    OSCE
    Audiovisual EUREKA
    European Broadcasting Union
    Association of Commercial Television in Europe
    European Federation of Journalists
    European Newspaper Publishers Association
    European Internet Service Providers’ Association

    6. Qualification expected from the experts:

    The members of the MM-S-OD shall be appointed on the basis of their expertise in the field of media law and policy, in particular on the above-mentioned issues.

    7. Working structures and methods:

    The MM-S-OD shall undertake the necessary research and consultations with relevant parties. Where necessary, the MM-S-OD may organise hearings and/or colloquies, or have recourse to consultants.

    8. Duration:

    These terms of reference shall be reviewed before 31 December 2003.

    Appendix V

    Terms of reference of the Group of Specialists on the democratic and social implications of digital broadcasting (MM-S-DB)

    Specific terms of reference

    1. Name of Committee:

    Group of Specialists on the democratic and social implications of digital broadcasting (MM-S-DB)

    2. Type of Committee:

    Group of Specialists

    3. Source of terms of reference:

    Steering Committee on the Mass Media (CDMM)

    4. Terms of reference:

    Under the authority of the CDMM, following the Declaration adopted at the 6th European Ministerial Conference on Mass Media Policy (Cracow, June 2000) and the Resolution on public service broadcasting adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, December 1994), and taking into account the results of the conference on “new digital platforms for audiovisual services and their impact on the licensing of broadcasters” (Strasbourg, September 2000) and other work of the MM-S-AD, the MM-S-DB will:

    - finalise the draft Recommendation on the democratic and social impact of the development of digital broadcasting services,

    - examine ways of promoting the principles contained in the aforementioned draft Recommendation, for example by providing a forum for the exchange of information and experience among member states,

    with a view to proposing appropriate action by the CDMM.

    In addition, the MM-S-DB will, in co-operation with the Advisory Panel on intellectual property (AP-IP), assist the CDMM on how to address the problems concerning news access resulting from the holding of exclusive reporting rights to an event or from digital gateways, with a view to ensuring the right of the public to information, bearing in mind Recommendation No. R (91) 5 of the Committee of Ministers on the right to short reporting on major events where exclusive rights for their television broadcast have been acquired in a transfrontier context.

    Upon request by the CDMM, the MM-S-DB shall provide advice and assistance to the CDMM and/or its subordinate bodies on issues concerning broadcasting regulation and practice, and carry out any ad hoc assignments given to it by the CDMM.

    5. Membership:

    The MM-S-DB shall be composed as follows:

    Armenia, Austria, Czech Republic, Denmark, Italy, Norway, Poland, Slovenia, Sweden, United Kingdom.

    a. The Council of Europe will bear the travel and subsistence expenses of one specialist from each of the above countries for attendance at meetings of the Group of Specialists.

    Other member states expressing an interest in the work of the Group may designate, at their own expense, specialists to participate in meetings of the Group.

    b. The Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe may send representatives to meetings of the Group without the right to vote or defrayal of expenses.

    c. The European Audiovisual Observatory may send a representative to meetings of the Group without the right to vote or defrayal of expenses.

    d. The European Commission may send representatives to meetings of the Group without the right to vote or defrayal of expenses.

    e. The following observers with the Council of Europe may send a representative without the right to vote or defrayal of expenses to meetings of the Group:

    Canada
    Holy See
    Japan
    Mexico
    United States of America

    f. The following observers with the MM-S-DB may send representatives, without the right to vote or defrayal of expenses to meetings of the Group:

    Belarus
    Federal Republic of Yugoslavia

    Nordic Council of Ministers
    OSCE
    Audiovisual EUREKA
    European Broadcasting Union
    Association of Commercial Television in Europe
    European Federation of Journalists
    European Newspaper Publishers Association
    European Internet Service Providers’ Association

    6. Qualification expected from the experts:

    The members of the MM-S-DB shall be appointed on the basis of their expertise in the field of media law and policy, in particular on the above-mentioned issues.

    7. Working structures and methods:

    The MM-S-DB shall undertake the necessary research and consultations with relevant parties. Where necessary, the MM-S-DB may organise hearings and/or colloquies, or have recourse to consultants.

    8. Duration:

    These terms of reference shall be reviewed before 31 December 2003.

    Appendix VI

    Terms of reference of the Advisory Panel on media diversity (AP-MD)

    Specific terms of reference

    1. Name of Committee:

    Advisory Panel on media diversity (AP-MD)

    2. Source of terms of reference:

    Steering Committee on the Mass Media (CDMM)

    3. Terms of reference:

    Under the authority of the CDMM, and following the Declaration adopted at the 6th European Ministerial Conference on Mass Media Policy (Cracow, June 2000), the AP-MD will:

    - follow from a media perspective the developments on cultural diversity at the international level, including concerning the preparation of a draft international instrument on this matter, with a view as appropriate to making recommendations to the CDMM on how to address this question,

    - follow legislative developments concerning the regulation of media ownership with a view to pinpointing any such developments which could be of interest to other countries,

    - follow the failures and successes of digital terrestrial television and their implications for media ownership and concentrations,

    and regularly report to the CDMM and other interested Council of Europe committees on the above questions in accordance with its instructions.

    Upon request by the CDMM, the AP-MD shall provide advice and assistance to the CDMM and/or its subordinate bodies on issues concerning media pluralism, and carry out any ad hoc assignments given to it by the CDMM.

    4. Membership:

    The AP-MD shall be comprised of five experts nominated by the CDMM ad personam, upon proposal by the Bureau.

    The Council of Europe will bear the travel and subsistence expenses of these experts.

    5. Qualification expected from the experts:

    The members of the AP-MD shall be appointed on the basis of their expertise on the above-mentioned issues from the point of view of media law and policy.

    6. Working structures and methods:

    The AP-MD shall undertake the necessary research and consultations with relevant parties. Where necessary, the AP-MD may organise hearings for the benefit of the CDMM, invite individual experts or have recourse to consultants.

    7. Duration:

    These terms of reference shall be reviewed before 31 December 2003.

    Appendix VII

    Terms of reference of the Advisory Panel on convergence (AP-CV)

    Specific terms of reference

    1. Name of Committee:

    Advisory Panel on convergence (AP-CV)

    2. Source of terms of reference:

    Steering Committee on the Mass Media (CDMM)

    3. Terms of reference:

    Under the authority of the CDMM, and following the Declaration adopted at the 6th European Ministerial Conference on Mass Media Policy (Cracow, June 2000), the AP-CV will:

    - follow developments in member states as regards the adaptation of regulatory structures and the legal framework in the light of convergence, and analyse, in particular, whether content delivered on different platforms can be regulated and if so, how,

    - follow developments and work under way in other international fora, in particular within the framework of the European Union, as regards legal and technical standards for digital transmission,

    and regularly report to the CDMM on the above questions in accordance with its instructions.

    In the discharge of its terms of reference, the AP-CV will follow the work undertaken in the European Union on convergence, in particular the draft Directives on infrastructure questions proposed by the European Commission insofar as they have a bearing on content-related matters, as well as the activities carried out on the same topic in other international fora.

    Upon request by the CDMM, the AP-CV shall provide advice and assistance to the CDMM and/or its subordinate bodies on issues related to convergence, and carry out any ad hoc assignments given to it by the CDMM.

    4. Membership:

    The AP-CV shall be comprised of five experts nominated by the CDMM ad personam, upon proposal by the Bureau.

    The Council of Europe will bear the travel and subsistence expenses of these experts.

    5. Qualification expected from the experts:

    The members of the AP-CV shall be appointed on the basis of their expertise on the above-mentioned issues from the point of view of media law and policy.

    6. Working structures and methods:

    The AP-CV shall undertake the necessary research and consultations with relevant parties. Where necessary, the AP-CV may organise hearings for the benefit of the CDMM, invite individual experts or have recourse to consultants.

    7. Duration:

    These terms of reference shall be reviewed before 31 December 2003.

    Appendix VIII

    Terms of reference of the Advisory Panel on intellectual property (AP-IP)

    Specific terms of reference

    1. Name of Committee:

    Advisory Panel on intellectual property (AP-IP)

    2. Source of terms of reference:

    Steering Committee on the Mass Media (CDMM)

    3. Terms of reference:

    Under the authority of the CDMM, and following the Declaration adopted at the 6th European Ministerial Conference on Mass Media Policy (Cracow, June 2000), the AP-IP will:

    - monitor and examine the impact on the protection of copyright and neighbouring rights of the development of new communication and information services, taking into account the need for an adequate balance between such protection and the wide circulation of works and other protected material,

    - monitor piracy of works and other protected subject matter in member states,

    - follow the work on copyright and neighbouring rights undertaken in other international organisations, in particular the European Union and WIPO,

    and regularly report to the CDMM on the above questions in accordance with its instructions.

    In addition, the AP-IP will examine, in co-operation with other relevant Council of Europe committees, the question of how free access by the public to content on the Internet for information, cultural and educational purposes can be reconciled with copyright and neighbouring rights.

    Upon request by the CDMM, the AP-IP shall provide advice and assistance to the CDMM and/or its subordinate bodies on issues concerning copyright and neighbouring rights, and carry out any ad hoc assignments given to it by the CDMM.

    4. Membership:

    The AP-IP shall be comprised of five experts nominated by the CDMM ad personam, upon proposal by the Bureau.

    The Council of Europe will bear the travel and subsistence expenses of these experts.

    5. Qualification expected from the experts:

    The members of the AP-IP shall be appointed on the basis of their expertise on the above-mentioned issues from the point of view of media law and policy.

    6. Working structures and methods:

    The AP-IP shall undertake the necessary research and consultations with relevant parties. Where necessary, the AP-IP may organise hearings for the benefit of the CDMM, invite individual experts or have recourse to consultants.

    7. Duration:

    These terms of reference shall be reviewed before 31 December 2003.

    Appendix IX

    Terms of reference of the Advisory Panel on media and terrorism (AP-MT)

    Specific terms of reference

    1. Name of Committee:

    Advisory Panel on media and terrorism (AP-MT)

    2. Source of terms of reference:

    Steering Committee on the Mass Media (CDMM)

    3. Terms of reference:

    Under the authority of the CDMM, and taking account of the work already carried out or under way within the Council of Europe on the question of terrorism, the AP-MT will assist the Group of Specialists on freedom of expression and other fundamental rights (MM-S-FR) in the discharge of its mandate concerning the interrelationship between freedom of expression and information and the fight against terrorism.

    For this purpose, the AP-MT will collect information on existing regulatory and self-regulatory initiatives concerning media coverage of terrorism, and the fight against it, and assess their adequacy and effectiveness. It will examine restrictions that are being placed on media freedoms in various countries in such a context and consider their justification in the light of Article 10 of the European Convention on Human Rights and the need to fight terrorism.

    Furthermore, the AP-MT will collect information on existing initiatives by the media to explain the causes of terrorism and promote better understanding between peoples.

    4. Membership:

    The AP-MT shall be comprised of eight experts nominated by the CDMM ad personam, upon proposal by the Bureau.

    The Council of Europe will bear the travel and subsistence expenses of these experts.

    5. Qualification expected from the experts:

    The members of the AP-MT shall be appointed on the basis of their expertise on the above-mentioned issues from the point of view of media law and policy or from the point of view of the fight against terrorism.

    6. Working structures and methods:

    The AP-MT shall undertake the necessary research and consultations with relevant parties. Where necessary, the AP-MT may organise hearings for the benefit of the CDMM, invite individual experts or have recourse to consultants.

    7. Duration:

    These terms of reference shall be reviewed before 31 December 2003.

    Appendix X

    Draft Recommendation Rec(2002)..
    of the Committee of Ministers to member states

    on measures to enhance the protection of the neighbouring rights
    of broadcasting organisations

    (Adopted by the Committee of Ministers on .. .. 2002
    at the ..th meeting of the Ministers’ Deputies)

    The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

    Considering that the aim of the Council of Europe is to achieve greater unity between its members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress;

    Reaffirming the significance of the protection of copyright and neighbouring rights as an incentive for literary and artistic creation and production;

    Concerned about the increasing exposure of European broadcasting organisations to piracy of their programmes due to technological developments over the last decades;

    Recognising that the valuable contribution of European broadcasting organisations to creative and cultural activity requires major investment and effort in order to ensure quality and diversity of programmes and that this contribution is in imminent danger if protection against piracy is insufficient;

    Recognising the need to balance broadcasting organisations’ rights with the general public interest, in particular as regards education, research and access to information, and the further need for broadcasting organisations to recognise the rights of holders of copyright and neighbouring rights over the works and other protected items contained in their broadcasts;

    Recognising the importance of the work undertaken within the framework of WIPO on the protection of broadcasting organisations, as well as the need to take account of any new developments in the international legal framework;

    Recommends that governments of member states take account of the provisions in the appendix to this Recommendation in protecting the neighbouring rights of broadcasting organisations and adapting these rights to the digital environment.

    Appendix to Recommendation Rec(2002)..

    Rights to be granted

    In order to increase the level of protection of the neighbouring rights of broadcasting organisations, member states should grant them the following rights if they have not already done so, bearing in mind that limitations and exceptions to these rights may be provided to the extent permitted by international treaties:

    a) the exclusive right to authorise or prohibit the retransmission of their broadcasts by wire or wireless means, whether simultaneous or based on fixations;

    b) the exclusive right to authorise or prohibit the fixation of their broadcasts;

    c) the exclusive right to authorise or prohibit the direct or indirect reproduction of fixations of their broadcasts in any manner or form;

    d) the exclusive right to authorise or prohibit the making available to the public of fixations of their broadcasts, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them;

    e) the exclusive right to authorise or prohibit the making available to the public through sale or other transfer of ownership of fixations and copies of fixations of their broadcasts;

    f) the exclusive right to authorise or prohibit the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.

    Pre-broadcast programme carrying signals

    Member states should consider taking measures to ensure that broadcasting organisations enjoy adequate protection against any of the acts referred to in a) to f) above in relation to their pre-broadcast programme carrying signals.

    Technological measures

    Member states should provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures which are used by broadcasting organisations in connection with the exercise of their neighbouring rights and which restrict acts in respect of their broadcasts which are not authorised by the broadcasting organisations concerned or permitted by law.

    Rights management information

    Member states should provide adequate and effective legal remedies against any person who knowingly removes or alters electronic rights management information without authority, knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Recommendation. The same should apply if a person knowingly simultaneously retransmits a broadcast or transmits, distributes, imports for distribution, communicates or makes available to the public fixations or copies of broadcasts knowing that electronic rights management information has been removed or altered without authority.

    Term of protection

    Member states should consider granting to broadcasting organisations a term of protection which lasts, at least, until the end of a period of 50 years computed from the end of the year in which the broadcast took place.

    Appendix XI

    Draft Explanatory Memorandum

    Introduction:

    1. For several reasons, the Council of Europe’s Steering Committee on the Mass Media and its Group of Specialists on the Protection of Rights Holders in the Media Sector decided in the year 2000 to embark on a standard-setting activity aimed at improving the protection of the neighbouring rights of broadcasting organisations.

    2. The most important international convention in this field, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention), has not been revised since its adoption in 1961. Another important instrument in this field, the European Agreement on the Protection of Television Broadcasts, has not been subject to substantial revision since it was drawn up by the Council of Europe in 1960. In many respects, the latter is more modern than the Rome Convention. However, for reasons of technical nature, it now has only a limited number of ratifications, some of which have been accompanied by important reservations, which related exactly to those provisions which went further than the Rome Convention.

    3. Although the decision to prepare a new instrument was taken as recently as in year 2000, the Declaration on neighbouring rights adopted by the Committee of Ministers of the Council of Europe on 17 February 1994 should be recalled, as it recognised that there was need for a general improvement in the protection of neighbouring rights. It was considered, at that time, that priority should be given to the study of, inter alia, the rights of performers, producers of phonograms and broadcasting organisations with regard to cable retransmission.

    4. The Council of Europe has always stressed the need to secure a balance between the different categories of rights holders. However, other categories of holders of neighbouring rights, i.e. producers of sound recordings and performers (other than audiovisual performers), benefited from the WIPO Performances and Phonograms Treaty (WPPT) adopted in 1996. The preparation of a specific treaty for broadcasters is on the WIPO agenda, but in all likelihood, it will take some years before it will enter into force. Therefore, an instrument focusing on the rights of broadcasting organisations seems justified.

    5. Furthermore, the piracy problems which European broadcasting organisations are facing, are to a large extent of a regional dimension, due to cultural proximity and the limited geographical area of coverage of satellites. This fact makes a regional solution particularly appropriate.

    6. One of the main difficulties in drafting the Recommendation was a disagreement on whether there was a need to include a definition of the term “broadcasting”. From a legal point of view, it may have been appropriate to include such a definition. Bearing in mind, however, that it would have led to unforeseeable complications and delays to seek a definition which took into account technological advances in broadcasting since the adoption of the Rome Convention, it was finally decided to refrain from including any definition of that term. This being said, it is clear that the aim of the Recommendation is first and foremost to respond to the urgent need of broadcasting organisations in the traditional sense to receive better protection against piracy.

    Scope of the Recommendation:

    7. The Recommendation is aimed at enhancing the protection of the neighbouring rights of broadcasting organisations. Member states should consider granting not only a protection to the broadcast itself, but also to the pre-broadcast programme carrying signals. It is of little use for the broadcasting organisation to claim rights to its broadcasts if pirates can circumvent that right by picking up the programme-carrying signal before it is actually broadcast (cf. paragraphs 25-26). Furthermore, the Recommendation seeks to protect the broadcast as such, and this protection is separate from any rights under copyright or neighbouring rights in the content of the broadcast, which are not affected or prejudiced by the protection given to the broadcast.

    Commentary on the provisions of the Recommendation:

    Rights to be granted

    8. It is recommended that member states should consider granting broadcasting organisations a certain number of exclusive neighbouring rights. Those rights build on the Rome Convention, as well as the European Agreement on the Protection of Television Broadcasts. However, they go further, taking into account the level of protection reached under the 1996 WIPO treaties for other categories of rights holders. The level of protection reached or proposed within the European Union is also taken into account.

    9. Therefore, some of the proposed rights and measures have already been granted/taken at the national level in many Council of Europe member states.

    10. In most cases, it is recommended to grant the rights in the form of exclusive rights to authorise or prohibit a given use. However, it has to be stressed that those rights which should be granted are not absolute. They may be subject to exceptions and limitations. It was not deemed necessary to elaborate further on that issue in this Recommendation. International instruments in this field allow for limitations and exceptions such as with regard to private use, for purposes of news reporting and for the purposes of teaching or scientific research. Any limitations or exceptions must be confined to certain specific cases which do not conflict with the normal exploitation and do not unreasonably prejudice the legitimate interests of the rights holders (the so-called three-step test).

    a) retransmission right

    11. The unauthorised retransmission of broadcasts constitutes the most serious form of piracy which European broadcasters are facing. Therefore, it is of paramount importance that broadcasters be protected against such transmissions. This is clearly the single most important issue to be dealt with by the member states as they seek to enhance the protection of broadcasting organisations.

    12. The Rome Convention, in Article 13, only grants the right of re-broadcasting, which is defined as simultaneous wireless transmission, and therefore gives no protection against cable retransmission or deferred retransmission. The European Agreement in Article 1 went further, granting also a right to authorise or prohibit wire diffusion, whether simultaneous or based on fixations.

    13. The Recommendation builds on the standard achieved under the European Agreement and, for sake of simplicity, refers to it as the “right to retransmission”, covering all forms of re-diffusion by whatever means.

    b) fixation right

    14. It is important to grant broadcasters a right to authorise or prohibit fixations of their broadcasts since the fixation is the precursor of all later acts of exploitation.

    15. This right is already contained in the Rome Convention, Article 13, and in the European Agreement, Article 1. The latter is more detailed since it refers to fixations of “still photographs thereof”.

    c) reproduction right

    16. This right is already contained in the Rome Convention, Article 13, and in the European Agreement, Article 1. Article 13 (c) of the Rome Convention provides for some limitations to this right. It was not considered necessary to keep these limitations.

    17. It is recommended that a broad reproduction right be granted, which covers both direct and indirect reproduction of fixations in any manner or form. An indirect reproduction is when a copy is made of copies of fixations.

    d) making available right

    18. It was the great merit of the 1996 WIPO treaties to introduce the making available right for the categories of rights holders covered by those treaties. In that manner, it is made clear that rights holders are protected against their work and other protected matter being made available to the public, without their consent, in such a way that members of the public may access them from a place and at a time individually chosen by them.

    19. Broadcasting organisations are also in need of such a right. This need is becoming ever more urgent as increased bandwidth makes it easier to send audiofiles and audiovisual material through cyberspace.

    20. The Recommendation closely follows the wording of the WIPO treaties in this respect.

    e) distribution right

    21. A distribution right, which is protected neither by the Rome Convention nor the European Agreement, can be important for broadcasting organisations, especially when a programme is not subject to copyright. This is the case, for example, where public events are broadcast. Even in such a case, the broadcasting organisation has a legitimate interest in protecting its product from unauthorised sale, for example in the form of videocassettes.

    22. A distribution right was granted to other categories of holders of neighbouring rights by the WIPO treaties in 1996.

    23. When formulating this right in national law, the legislator will have to take into account the need to determine conditions, if any, under which the exhaustion of this right applies after the first sale or other transfer of ownership of the fixation or its copy.

    f) right of communication to the public

    24. This right is already contained in the Rome Convention and the European Agreement on the Protection of Television Broadcasts. The Rome Convention uses the formulation “in places accessible to the public against payment of an entrance fee” (cf. Article 13 (d) of the Rome Convention). The Recommendation follows the Rome Convention approach, but bearing in mind that it is for the member states to define the term “entrance fee” in national law and that they may consider covering also indirect entrance fees.

    Pre-broadcast programme carrying signals

    25. Member states should bear in mind that it is of little use to provide rights in the programme-carrying signals once broadcast if pirates, by the simple expedient of gaining access to the signal before it is broadcast, can circumvent the protection. This issue was addressed by the 1974 Convention relating to the Distribution of Programme-Carrying Signals by Satellite, known as the Brussels Satellite Convention, and 12 member states of the Council of Europe have adhered to the Convention. Under the Convention, Contracting States must take adequate measures to prevent the unauthorised distribution of pre-broadcast programme-carrying signals.

    26. Among the measures referred to in the Recommendation, member states may consider providing protection under national unfair competition law or civil law or granting broadcasting organisations an exclusive right in respect of such signals. These measures would be aimed at protecting broadcasting organisations against unauthorised acts referred to in indents a) to f) of the section on “Rights to be granted”, i.e. the retransmission, fixation, reproduction of fixations, making available to the public of fixations in such a way that members of the public may access them from a place and at a time individually chosen by them, making available to the public through sale or other transfer of ownership of fixations, and communication to the public against payment of an entrance fee, of their signals.

    Technological measures and rights management information

    27. Technological developments are not only a threat to the rights of broadcasting organisations. They may also provide a solution to their problems and help them avoid unauthorised acts of exploitation. The so-called rights management information is also an important tool for rights holders to protect their rights. Interested circles, including rights holders, are already engaged in efforts to introduce, and agree on, such technology.

    28. It may, however, prove necessary to grant a special legal protection to those new methods of protecting rights. Provisions to this effect are already to be found in the 1996 WIPO treaties regarding other categories of rights holders. The Recommendation follows the wording of those treaties.

    Term of protection

    29. It is recommended that member states consider granting to broadcasting organisations a term of protection, which lasts, at least, until the end of a period of 50 years as from the end of the year in which the broadcast took place. Indeed, the majority of Council of Europe member states have already granted such a term.

    30. This is the same term as granted to other holders of neighbouring rights under the WPPT and Article 14 (5) of the TRIPS Agreement, whereas the Rome Convention in Article 14 only foresees a term of 20 years.

    Appendix XII

    Opinion on Recommendation 1543 (2001) of the Parliamentary Assembly

    1. The CDMM shares the Parliamentary Assembly’s concern to effectively and resolutely combat the dissemination of racism and intolerance in cyberspace, as in all means of communication. In this connection, it recalls Recommendation No. R (97) 20 on hate speech adopted by the Committee of Ministers on the CDMM’s initiative on 30 October 1997, in which the governments of member states were urged to “take appropriate steps to combat hate speech” on the basis of the principles set out in the Recommendation. In the same vein, the CDMM points out that, in Resolution No. 1 adopted at the 5th European Ministerial Conference on Mass Media Policy (Thessaloniki, December 1997), the participating states condemned the use of new communication services “for spreading any ideology, or carrying out any activity, which is contrary to human rights, human dignity, and democratic values” and confirmed their resolve to combat such use.

    2. The CDMM also agrees that the adoption and effective implementation of appropriate legal measures is one of the essential requirements for success in efforts to combat the dissemination of racism and intolerance, including in cyberspace. In this connection, Recommendation No. R (97) 20 already highlighted the fact that “the governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech.” At the same time, this should “enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.” From this point of view, any initiative taken in response to the Parliamentary Assembly’s Recommendation would have to comply with Article 10 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights.

    3. In addition to the adoption of legal measures, the CDMM entirely agrees with the view expressed in paragraph 4 of the Assembly Recommendation that “a dialogue must be initiated with all service providers to convince them of the need to take steps themselves to combat the existence of racist sites.” Only with the active participation of service providers and representatives of other interested parties such as the education sector will it be possible to achieve tangible and lasting results in the fight against the dissemination of racism and xenophobia in cyberspace.

    4. That said, efforts to raise the awareness of the Internet industry must not be confined to highlighting its responsibilities. As indicated in paragraph 5 of the Assembly Recommendation, they must also involve promoting on the widest possible geographical basis examples of good practices developed by the industry to prevent, or at least restrict, the dissemination of racist or xenophobic messages in cyberspace. In view of the global nature of the new communication networks, a related objective must also be to foster exchanges of information and co-operation at cross-border level, both between bodies representing the Internet sector and between them and the authorities, with a view to combating the dissemination of such messages.

    5. Those are the aims of Recommendation (2001) 8 on self-regulation concerning cyber content, which the Committee of Ministers adopted in September 2001 and which refers to several of the means mentioned in paragraph 5 of the Assembly Recommendation for encouraging “self-disciplinary efforts.” The CDMM believes that the Parliamentary Assembly could play a useful part in helping publicise and implement Recommendation (2001) 8 in the member states.

    6. These were also the aims of a Forum on self-regulation of cyber content organised by the CDMM in Strasbourg on 28 November 2001, which was attended by around 100 participants from all over Europe, including a number of representatives of the Internet industry. Lastly, and in the same spirit, a website designed to gather and disseminate information on initiatives taken to combat the dissemination of harmful and illegal content on the Internet at European level was launched on the occasion of the above-mentioned Forum and can be visited at: www.coe.int/cyberforum. Here again, the Parliamentary Assembly could support this initiative in the member states by publicising the website and encouraging people to visit it.

    7. Provided it is allocated adequate resources, the CDMM wishes to continue its efforts to combat the dissemination of racist content on the Internet, for instance by organising a new Forum for exchanging information, pooling experience and fostering co-operation between Internet industry representatives from all member states. If it was interested, the Parliamentary Assembly could possibly co-operate in such a Forum.

    8. However, the CDMM has some reservations at this stage about the suggestion made by the Parliamentary Assembly in paragraph 6 of the Recommendation that a consultation or joint regulation body could be set up within the Council of Europe. It believes that any co-regulatory initiative should be based on a clear desire and a joint decision by the authorities and the Internet sector. For the time being, however, it would not appear that the industry feels that there is any particular need for such a body at the European level. There is also the question of the feasibility of an initiative of this kind, given that the establishment of such a body could require financial and human resources of a level that exceeded the Council of Europe’s possibilities.

    9. The CDMM therefore believes that the first step should be to consult widely among all interested parties in the member states in order to see whether they really feel a need to set up such a body within the Council of Europe, and to agree with them on the exact areas of competence, means of action and resources it should have if it were actually set up. The CDMM is willing to take part in this exercise and offer its know-how in this area if its suggestion is accepted.

    10. Lastly, the CDMM shares the view expressed by the Parliamentary Assembly in paragraph 7 of the Recommendation about the importance of educating and training the public. In this connection, it would draw attention to Chapter VI (User information and awareness) of Committee of Ministers Recommendation (2001) 8. In addition to the latter, one of the CDMM’s subordinate bodies, the Group of Specialists on on-line services and democracy (MM-S-OD), has decided to look into this area in 2002, in the light of the results of a hearing held during the Group’s last meeting on 25 March 2002. The CDMM will inform the Parliamentary Assembly of the results of the hearing and of any follow-up action the MM-S-OD may take, if the Assembly so desires. If the Assembly was interested, it could possibly co-operate in implementing any initiatives the MM-S-OD might take.

Note 1 The complete list of participants appears in the meeting report prepared by the Department (cf. document CDMM (2002) 12 add).


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