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Legal protection of services based on, or consisting of, conditional access

The objective of the directive on the legal protection of services based on conditional access is to protect electronic pay services against piracy. It prohibits all commercial activities involving the manufacture, distribution or marketing of smart cards and other devices which make it possible to circumvent protected access to television, radio and Internet pay services.

ACT

European Parliament and Council Directive 98/84/EC of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access.

SUMMARY

Scope

The proposal covers all services supplied on the basis of conditional * access, such as pay-television and pay-radio services, on-demand video and audio services, electronic publishing and a large range of on-line services that are available to the public on a subscription or pay-per-view basis.

Illicit activities

Each Member State is required to take the measures necessary to prohibit on its territory the following activities:

  • the manufacture, import, sale, renting or possession for commercial purposes of illicit devices, i.e. any equipment or software designed or adapted to give unauthorised access to a protected service *;
  • the installation, maintenance or replacement for commercial purposes of an illicit device;
  • the use of commercial communications to promote illicit devices.

Sanctions and remedies

Each Member State is required to take the measures necessary:

  • to provide sanctions which are effective, deterrent and proportional to the potential impact of the infringing activity;
  • to ensure that service providers whose interests are affected by an infringing activity carried out on its territory can bring an action for damages and seek an injunction and, where appropriate, apply for the seizure of illicit devices.

Principles relating to the internal market

Member States are not permitted:

  • to restrict the provision of protected services, or associated services, that originate in another Member State;
  • to restrict the free movement of conditional access devices, except those devices designated by the Directive as illicit.

Key terms used in the act

  • Protected service: television broadcasting, radio broadcasting or information society service provided against remuneration and on the basis of conditional access.
  • Conditional access: technical measure and arrangement whereby access to the protected service in an intelligible form is made conditional upon prior individual authorisation.

REFERENCES

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Directive 98/84/CE [adoption: codecision COD/1997/0198]

28.11.1998

28.05.2000

OJ L 320 of 28.11.1998

RELATED ACTS

Second report of 30 September 2008 on the implementation of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998, on the legal protection of services based on, or consisting of, conditional access [COM(2008) 593 final – Not published in the Official Journal].
The Commission notes that the transposition of Directive 98/84/EC has allowed piracy to be reduced in the European Union, and particularly in countries where accession is recent. It underlines however two major difficulties: the lack of technical knowledge on the part of the authorities responsible for implementation, related in particular to fast developments in this field, and the low level of sanctions. The Commission insists moreover on the importance of allowing European citizens living in a Member State other than their State of origin to have access to a legal audiovisual offer in their native language, which would contribute to the free movement of persons and services.
The Commission proposes to set up an expert group on conditional access which will act to reinforce administrative cooperation between Member States and discuss problems related to the application of the Directive. The subjects to be tackled as priorities would be in particular: new forms of piracy, the deterrent nature of sanctions, the possible sanction on the possession of systems enabling access to services in an illicit way, links with provisions on copyright protection and the inclusion of digital rights management (DRM) in conditional access services.

Report from the Commission of 24 April 2003 on the implementation of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, and consisting of, conditional access [COM(2003) 198 final – Not published in the Official Journal].
This first Commission report on the implementation of Directive 98/84/EC is part of the Commission’s comprehensive Internal Market strategy to remove barriers to services.
It describes and analyses the salient facts relating to the key provisions of the Directive, looks at how these provisions are implemented and enforced by Member States and candidate countries, and highlights current trends in piracy.
It covers the period from adoption of the Directive in November 1998 through to the end of 2002.
The report shows that the implementation of the Directive has not yet been fully achieved within the enlarged Union, and stresses that enforcement at national level has to be consolidated and that joint efforts will be instrumental in fighting piracy effectively.
The report observes that pirating electronic pay services is considered to be a cyber crime. It concludes that it would be premature to propose amendments to the Directive, but that the consultations and assessment undertaken in the context of the Report have enabled the Commission to identify several issues that deserve further reflection. These issues include the need to create a balanced and coherent enforcement framework applicable to all kinds of piracy and counterfeiting and the distribution of keys and illicit devices via the Internet.

Last updated: 05.12.2008
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