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III. ACTION LINE 2:

REMOVING LEGAL AND ADMINISTRATIVE BARRIERS



1. SETTING THE SCENE

The Recommendations to the European Council in June 1994, Europe and the Global Information Society, give particular emphasis to a number of legal issues, some of which are being addressed in the context of IMPACT and IMPACT 2 and some are new ones, since they relate to very recent developments or to new activities proposed in the context of the information society.

The first category includes intellectual property rights, privacy protection and access to public sector information, while in the second category, apart from these three, the legal aspects of technology convergence and of new applications (telework, telemedicine, road-traffic control, trans-European networks, etc.) and the possibilities for more effective legal protection of information and networks as a result of the globalisation of information services are considered. These are elaborated in the Commission Communication "Europe and the Information Society: The Way Forward. An Action Plan" (COM(94)347). The IMPACT 2 1995 work programme will continue work already underway, while giving emphasis to more recent technological and market developments, and will undertake a preliminary study of the legal issues affecting a number of specific information society applications.

2. SUMMARY OF ACTION AREAS

The activities of IMPACT in the legal field have three main objectives: These activities concentrate on the following areas:

3. SCOPE OF ACTIONS

3.1 Personal Data Protection

To the extent that the information industry processes personal data (either as part of the information services content or in the context of relations with employees and users) personal data protection legislation is important in the information market context.

3.1.1 The personal data protection directive

DG XIII has been one of the two Commission services sharing responsibility on this directive (the other being DG XV) and has invested considerable efforts in both the drafting and the negotiation stages. These negotiations are coming to a conclusion, with the adoption of a common position in 1994. The common position will be submitted to Parliament for an opinion and follow up actions will be taken as a result of this opinion (adoption of the directive or setting up the conciliation procedure leading to final adoption). Adoption will be followed by administrative measures relating to the two advisory committees provided for in the directive (setting up of a Secretariat, running the committee meetings) in which DG XIII will continue to participate.

Expected result: Adoption of the Directive by Council.

3.1.2 Accession to the Council of Europe Convention 108

When the Directive is adopted, it will be possible for the Community to accede to the Council of Europe Convention 108.

This will give a legal basis for harmonised practice in data protection and encourage data flows with regard to non-Member States such as Switzerland. Negotiations for E.U. accession could start as soon as the directive is adopted (very probably in 1995) and will involve DG XIII's participation.

Expected result: European Union accession to the Council of Europe Convention 108.

3.1.3 Establishing a personal data protection mechanism in Commission services

All Commission services process personal data of some kind and do not fall under the national laws' jurisdiction. This situation has caused strong criticism and may still be a delaying factor in the adoption of a directive. Following preparatory work in 1993 and 1994, relevant actions should be taken in 1995. This will require the cooperation and agreement of a number of services among which DG XIII has a major role.

3.2 Facilitating the marketing of information by appropriate legal protection for information providers

3.2.1 Legal Protection of databases

DG XIII has been following negotiations with Parliament and Council as an associated service (DG XV being the chef de file). The modified proposal is now being discussed with the Council working group with a view to reaching a common position by the end of 1994. This will be submitted again to Parliament for an opinion before it goes to Council for adoption in 1995 (following the co-decision procedure of the Union Treaty). Given its obvious importance for the information market, DG XIII will continue to follow the progress of this draft directive very closely until it is adopted.

3.2.2 Copyright clearing systems

The big increase in the production and use of electronic information products and services has led to national collective licensing systems being set up to manage these rights. With the advent of new technology applications, such as multimedia, and the globalisation of the electronic information market that will result from the EU Information Society initiatives and the U.S. National Information Infrastructure project, the problems of identifying intellectual property right holders, monitoring the use of information products enjoying intellectual property protection and ensuring the management of these rights will increase considerably. In this context, setting-up a pan-European copyright clearing system seems a possible option to be taken by the copyright industry itself. As a follow-up to the Translic study, the Commission is launching a study to examine the feasibility of such a project and the existing different options.

Expected result: Providing support, in the form of appropriate pilot projects, for improving the management of content ownership in the EU (copyright clearing).

3.2.3 Publication of legal guides

In the absence of a pan-European clearing system, the information industry, especially multimedia producers, need to have a practical guide on how intellectual property rights may be cleared under the current system. This guide (called Translic) has been prepared and will be published in 1995. Another guide, aimed at providing legal advice to information service providers and users in layman's language, will also be published in 1995. Expected result: Publication of the guides.

3.3 Access to public sector information and public/private sector synergy

The studies PUBLAW 1 (legal problems for access to public sector documents) and PUBLAW 2 (evaluation of the public/private sector synergy guidelines and relevant policies in the US and Canada) have shown that Europe lags behind the US with regard to exploitation of the public sector information potential. In the U.S. the Freedom of Information Act (FOIA) and a number of detailed public sector policy circulars (foremost among which is the revised Office of Management of Budget circular A-130) have contributed considerably to the growth of the private sector information industry using public sector information for the provision of value added information measures while being at the same time a valuable tool for the citizen seeking government transparency. A new study PUBLAW 3 has been launched which will also involve discussions with all parties concerned before arriving at proposals for action in 1995.

3.4 Ensuring integrity of information flows

A first study on this issue had been undertaken in 1987, before the Council of Europe had issued its relevant Recommendation (1989), before the information security action plan had been adopted by Council (1992), before the Union Treaty - providing in its third pillar for judicial co-operation - had been adopted and before the European Council had approved the Recommendation concerning the Information Society. Already that study, however, and the LAB discussion that followed it, had produced specific action recommendations which at that point in time had been considered premature. The time has come to update that study, examining the current legal situation in the Member States and in selected third countries, and taking into account more recent work of other international organisations, especially the Council of Europe.

In the light of the Commission action plan COM(94)347 possible actions under present circumstances and expected future developments will have to be reconsidered.

Expected result: Action proposals on regulating encryption and dissuading computer, networks and information misuse.

3.5 Other legal issues, including the impact of regulation on the development of the information market

3.5.1 Regulatory environment for basic services and new applications concerning the information society

Discussions concerning the Information Society have identified three layers of services where regulatory arrangements may be needed in networks, basic services, e.g. electronic mail, interactive multimedia and specific applications (the ten applications included in the Bangemann Group recommendations and accepted by the Corfu summit). As regards networks, the ONP and related Directives have already established a regulatory framework which is in the process of implementation. It has to be carefully examined whether existing (or non-existing) national legal frameworks concerning basic services allow for an unimpeded trans-European provision of the different new applications. In parallel it will have to be examined whether a specific regulatory framework will be necessary or useful for these applications.

Preliminary discussions are currently underway and will be closely monitored. If appropriate, studies will be launched and discussion stimulated in the context of the Legal Advisory Board.

3.5.2 Legal implications of convergence between audio-visual, telecommunications and information technologies

There are a number of legal differences in national legal frameworks applicable to the press, to audio-visual services and to electronic information services. As distinction among these is becoming increasingly difficult, the maintenance of such differences may be irrelevant if not harmful to the creation and provision of new, multimedia products and services as it may create legal uncertainty and confusion. Following a preliminary discussion with the LAB in December 1994, these issues will be further examined if direct implications for the information market need to be addressed.

3.6 Legal Advisory Board: stimulating discussion

As in the last three years, the independent group of legal experts on the information market called Legal Advisory Board (LAB) will be supported by a qualified external chairman, a 5-member bureau and the services of one or two contractors that will prepare discussion documents. This support has contributed considerably to the LAB operation.

The LAB will be considerably enriched with new experts following the expected accession of new Member States to the European Union.

It will broaden its scope to include issues resulting from technology convergence and to examine the positive role of the law in relation to the Information Society. It will also focus on producing specific policy suggestions for the Commission. The role of users will take a prominent place in the discussions. To address these legal issues more efficiently the LAB will improve its working procedures, in particular by means of specialised LAB task groups.

4. EXPLOITING SYNERGIES

For actions relating to IPR and data protection there is synergy with DG XV which has the main regulatory responsibility. For actions relating to access to public sector information DG X and the Secretariat-General, which have worked together with DG XIII on the Commission transparency initiatives, and DG III, currently working on Trans European Public Administration Networks, will be involved. Actions relating to technology convergence and basic services will be considered in co-operation with DG XIII-A (Telecommunications), B (Advanced Technologies) and C (Telematics Applications). Actions relating to legal aspects of encryption and computer crime will be co-ordinated with actions undertaken in the context of the information security action plan by DG XIII-B. Actions relating to the different Information Society Applications concern a large number of Commission services (for example DG V as regards teleworking and telemedicine (also involving DG XIII-B), DG VII as regards air and road traffic control (the latter also involving DG XIII-B), DG XII and DG XIII A and B as regards networks for research centres, DG XXIII and DG XIII-C as regards SMEs).

5. INTERACTION WITH THE MARKET

Information market actors will be consulted with regard to any new action proposal. This applies in particular to actions on public/private sector synergy, technology convergence and basic services. With regard to the two draft directives (data protection and databases) such consultation has already taken place.

6. REVIEW, EVALUATION AND FINAL RESULTS

The 1995 programme builds on the steady progress achieved since the start of the IMPACT programme in increasing awareness among lawyers of the legal problems of the information industry.

Particularly significant in this respect is the availability of reports covering legal issues of the information market from a European perspective. Most other publications in this area concentrate on a single legal system. The recently launched LAB brochure listing over 30 available documents has had a very high response rate among the industry, consultants, university libraries and law firms.

Many of the ideas produced during the Legal Advisory Board's discussions can be found in the drafts of the Data Protection and Databases Directives. If they are adopted, it will be necessary to observe their impact and to ensure that the needs of the information market are properly addressed by the Member States implementing the new rules.

1995 will bring progress on a European public sector information policy, and encryption and computer/information misuse.

The Lisbon Conference on Multimedia and Geographic Information Systems held in October 1994 has given a new impulse for activity in these areas where producers and information providers seek solutions, and whose importance is also recognised by action line 4. The publications due in 1995 such as the Translic guide will give practical assistance. On a longer term basis, resources should be devoted to a pan-European copyright clearing system.

7. IMPLEMENTATION AND BUDGET

Activity  Commitment     Commitment    Commitment    Planned       Estimated   Areas     91 Budget in   92 Budget in  93 budget in  94 Budget in  95 Budget in            ECU       %    ECU       %   ECU       %   ECU       %   ECU       %  7.1        36,706  19    177,350  34    70,000  19   140,000  26    pm   7.2        pm      -      20.000   4     pm      -     pm      -    pm  7.3        -       -        -      -    70,000  20     pm      -   280,000  38  7.4       156,410  81     33,500   6    40,000  11   100,000  19   150,000  20  7.5        -       -        -      -     pm      -    30,000   5    50,000   7  7.6        pm      -      33,150   6    40,000  11   100,000  19    50,000   7  7.7        pm      -     150,000  28    50,000  14   100,000  19   130,000  17  7.8        pm      -     116,000  22    90,000  25    70,000  12    80,000  11  TOTAL     193,116  100   530,000  100  360,000  100  540,000  100  740,000  100    7.1  Personal data protection  7.2  Legal protection of databases  7.3  Improving transparency of licensing bodies/copyright clearing  7.4  Access to public sector information Public/private sectors synergy in the  information market  7.5  Ensuring integrity of information flows  7.6  Principles for a legal framework concerning electronic information  services  7.7  Awareness of legal problems affecting the information market  7.8  LAB: stimulating discussion  

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