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Click on a table of contents entry to go directly to the desired title.To return to the table of contents use Ctrl + Home or Ctrl + End. JAN. – FEB. 2003

FROM THE EDITOR"the l.i.n.k." is now two years old (although LABnews, its predecessor, dates back to 1997 !).To highlight this, and to continue to better serve our readers, we are pleased to introduce certain changes.First, you will note that the appearance of the newsletter has been revamped and modernised;Second, "the l.i.n.k." web site has been created: www.thelink.lu. The newsletter, past issues and other useful features are available on this site;Third, in order to use the wealth of materials contained in all the past issues of "the l.i.n.k.", we have created a search engine allowing to dig into the entire database (containing nearly 1.000 articles) and get the most out of the newsletter.We wish to express our warmest thanks to Erin, the promoter of www.eLexPortal.com, an e-Commerce legislation and regulatory policy information portal which complements our newsletter, for their help to achieve the above. Stephan LE GOUEFF, ,

Luxembourg

NEWS...................................................................21. COMPUTER CRIME.......................................................2

BRAZIL Internet crimes.......................................................................22. CONSUMER PROTECTION...........................................2

CANADA Ontario imposes Internet consumer contract protections. . .2LUXEMBOURG Consumer protection in distance contracts..............3

3. DATA PROTECTION......................................................3COLOMBIA Limit to personal data access in government databases 3FRANCE CNIL report on spamming...................................................3UK Public authorities’ access to communications data.......................4

4. DIGITAL SIGNATURES.................................................4LEBANON Central Bank proposed as certification authority..............4MEXICO Bill on eSignatures and certification institutions...................5

5. DOMAIN NAMES............................................................5NETHERLANDS Modification of rules on registration of “.nl”.............5SWEDEN The “.se” top-level domain.................................................5

6. ELECTRONIC COMMERCE...........................................6CANADA Webtrading disclaimers held unenforceable.......................6NEW ZEALAND The Electronic Transactions Act 2002.....................6

7. ELECTRONIC GOVERNMENT......................................6BRAZIL On-line Official Gazette deemed valid...................................6

8. EMPLOYMENT...............................................................6GERMANY Employees’ survey by foreign parent company...............6

9. FINANCIAL SERVICES..................................................7TURKEY Capital market legislation update and projections...............7

10. INFORMATION SOCIETY POLICY................................7BRAZIL Changes in Internet access...................................................7COLOMBIA Regulation on protection of minors on the Internet.........7

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COLOMBIA Options to reduce thee digital gaps................................8EU Consultation on digital TV and 3G................................................8SPAIN Expert Committee to assess basis for Infosoc development. .8SPAIN Bills to regulate telecom and audiviosual................................9

11. INTELLECTUAL PROPERTY........................................9CANADA Higher life form held not patentable....................................9EU Eastern enlargement: what meaning for CTM............................10GERMANY More holder rights for copyright infringement................10LUXEMBOURG Higher costs for Benelux trademarks.....................11SOUTH AFRICA Amendments to trademarks..................................11

12. MARKET ACCESS.......................................................11CHILE Free trade agreement between Chile and USA....................11

13. MEDIA...........................................................................12EU 4th report on application of “Television without Frontiers”...........12GERMANY Rules on advertising liberalized.....................................12INDIA Parliament passes Cable Television Bill................................12MEXICO New Radio and Television Law initiative presented..........13SPAIN Changes in the television regulatory framework...................13SWEDEN Freedom of speech in new media....................................13

14. TELECOMMUNICATIONS...........................................14BRAZIL Expected changes in the Communication Policy................14BRAZIL Renewal of fixed telephony licenses...................................14COLOMBIA Controversy due to emergence of 3G standards..........14COLOMBIA Prepaid services to be regulated..................................15INDIA Supreme Court sets aside TDSAT's order on WLL................15INDIA TRAI issues voice quality norms for ILD operators................15ITALY Incentives in favour of new telecom investments...................15MEXICO Amendments to the regulations of Telecom Commission?16NEW ZEALAND First access determination under Telecom Act......16PORTUGAL Telecom incumbent purchases public fixed network....16PORTUGAL The closing of Oniway..................................................16SPAIN Agreement on UMTS............................................................16SPAIN New Chairman for Telecom Market Commission..................17UK Auction of 3.4 GHz radio spectrum for 2003...............................17UK Communications Bill introduced..................................................17UK Oftel consults on wholesale line rental product...........................17UK LLU: Oftel to provide co-mingling................................................18

15. UNIVERSAL SERVICE.................................................18AUSTRIA Procedure for cost allocation............................................18MEXICO Mexican Universal Service Fund.......................................18

16. WEB SITES...................................................................19EU National legislation on e-Commerce, the easy way....................19

COMMENTARY..................................................19CANADA Ownership and control restrictions: time for a change?....19

EVENT................................................................22Young Lawyers Writing Competition.................................................22

EDITOR / EDITORIAL BOARD..........................24TABLE OF CONTENTS BY COUNTRY.............26

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NEWS1. COMPUTER CRIME

BRAZILINTERNET CRIMES

The Public Security and Organised Crime Defence Commission approved, on 11th December 2002, the substitution of the law that covers crimes committed through the Internet and defines related penalties.Some of the crimes that would be covered are hacking, creation and dissemination of viruses, violation of PIN security protection, unauthorised downloading of software, data file destruction and commercial and industrial espionage through the Internet. The proposed penalties are one to six years in jail.If the bill is enacted as currently written, it will also forbid the inclusion of data identification of users in any data base, such as address, without the user's authorisation.The bill will be examined by the Constitutional and Justice Commission and then sent to Congress for approval.For more information please contact: rapdecunto@pinheironeto.com.br

2. CONSUMER PROTECTION

CANADAONTARIO IMPOSES INTERNET CONSUMER CONTRACT

PROTECTIONSOn 13th December 2002, the Ontario Consumer Protection Act, 2002 received Royal Assent after being passed unanimously by the legislature for the Canadian Province of Ontario. The Act will take effect upon proclamation, which the Ontario Ministry of Consumer and Business Services expects later this year once applicable regulations are finalised. Upon taking effect, the Act will, among other things, place new requirements on Internet consumer contracts and allow consumers to cancel such contracts if such requirements are not met. Businesses selling goods or services to Ontario consumers over the Internet will be required to disclose information prescribed by regulations of the Ontario Ministry of Consumer and Business Services to the customer, provide an express opportunity to accept or decline the agreement and deliver a copy of the agreement in writing to the customer within a prescribed time period.The Internet provisions of the Act will apply to all consumer contracts over a dollar amount to be set by regulation, in which either the supplier or the consumer is located in Ontario when the transaction takes place. Consumer rights are not waivable by consumers.Once the Act takes effect, before a consumer enters into an Internet agreement, the supplier will be required to disclose certain information prescribed by regulation to the consumer. Disclosure must be accessible and available to the consumer in a manner that ensures that:- the consumer has accessed the information; and- the consumer is able to retain and print the information.The supplier will also be required to provide the consumer an express opportunity to accept or decline the agreement and to correct errors immediately before entering into it.After the consumer enters into the agreement, the supplier will be required to deliver a copy of the agreement in writing to the consumer within a time period to be prescribed by regulation. The copy of the agreement must include certain information to be prescribed by regulation. Forthcoming regulations will specify when a copy of the Internet agreement may be deemed to be delivered to the consumer.The Act provides that consumers will be able to cancel an Internet agreement at any time up to seven days after the consumer receives a copy of the agreement if:- the supplier did not disclose the required information to the consumer; or- the supplier did not provide the consumer an express opportunity to accept or decline the agreement or to correct errors immediately before entering into it.Furthermore, a consumer will be able to cancel an Internet agreement within 30 days after the agreement is entered into if the supplier does not provide a copy of the agreement to the consumer.The "Internet Agreements" section of the Act closely tracks the Internet Sales Contract Harmonisation Template (the "Internet Sales Template") adopted by Canadian federal and provincial ministers on 29th May 2001 as a template for consumer protection legislation governing Internet sales and services contracts (available online at: http://strategis.ic.gc.ca/pics/ca/sales_template.pdf).A spokesperson for the Ontario Ministry of Consumer and Business Services advises that the Ministry plans to begin drafting the regulations shortly, and that the regulations will likely be based on the federal Principles of Consumer Protection for Electronic Commerce (available online at:

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http://strategis.ic.gc.ca/SSG/ca01185e.html) approved by the Working Group of Electronic Commerce and Consumers in August 1999.For more information visit: http://www.ontla.on.ca/documents/Bills/37_Parliament/Session3/index.htmFor more information please contact: rpfohl@mccarthy.ca

LUXEMBOURGCONSUMER PROTECTIONIN DISTANCE CONTRACTS

On 26th November 2002, the Council of State published an additional opinion on the amendment of Economics, Post and Transport Committee ("the Committee"), in connection with the consumer protection in distance contracts draft bill debates.The Council of State has favourably admitted most of the Committee propositions, notably those aiming at excluding from the scope of the law distance contracts related to financial services as well as contracts concluded by electronic means, because of the e-Commerce Act of 14thAugust 2000, which is already protecting consumers in such a case.However, the Council of State has rejected some of the Committee’s proposals, for example, a provision of the draft bill aimed at allowing the bringing of a cessation proceeding against any breach of the collective interests of consumers, either on Luxembourg law grounds or foreign law grounds, implementing Directive 97/7/CE of the 20th May 1997 related to consumer protection in distance contracts. Thus, the Council of State is pointing out that applying foreign law in Luxembourg is not possible under certain circumstances.The opinion of the Council of State related to the law’s application focuses attention on the difficulty of locating the place of conclusion of a distance contract. Pursuant to the Convention of Rome of the 19th June 1980 on the law applicable to contractual obligations, a consumer can benefit from the obligatory provisions of the law of the country in which he has his usual residence, notably when the conclusion of the contract was preceded, in the country of the consumer, by an advertisement. In such a case, the consumer must have accomplished in his home country all the acts necessary to bring about the contract. Finally, the place where the advertisement is realised also determines the law that will apply.For more information visit: http://www.chd.lu/servlet/DisplayServlet?id=20333&path=/export/exped/sexpdata/Mag/010/003/022292.pdfFor more information please contact: LE_GOUEFF@vocats.com

3. DATA PROTECTION

COLOMBIALIMIT TO PERSONAL DATA ACCESS

IN GOVERNMENT DATABASESThe possibility of obtaining information about the assets, health and tax payment history of natural persons through the Internet by merely entering their citizenship identification number infringes the right to free self-determination through information technology systems, according to a recent decision of the Colombian Constitutional Court (Constitutional Court, Sentence on Writ of Mandamus T-729 of 5th September 2002).The Court resolved favourably an action that had been filed by a citizen against the Internet-based databases operated by the Bogota Land Registry Office and the Superintendency of Health. In the Court's view, the

conduct of such entities in not providing adequate safeguards violates the principle of freedom, the principle of ultimate purpose and the principle of individuality established in the Colombian Political Constitution. In fact, the publication and disclosure of personal information of individuals without their prior and express authorisation infringes the principle of freedom, said the Court.Also, the possibility of obtaining access to the aforementioned data bases infringes the principle of purpose, since it facilitates indiscriminate access to aliens without visible interests to personal information. Finally, it infringes the principle of individuality, the Court found, since it facilitates the exchange of data concerning private and reserved information that enables the construction of individual profiles.For more information visit: www.gobiernoenlinea.gov.coFor more information please contact: cavelier@cavelier.com

FRANCECNIL REPORT ON SPAMMING

At present, no specific French legislation directly prevents spamming. However, on 15th January 2002, the Tribunal de Grande Instance of Paris adopted a contractual approach to solving the issue of spamming by ruling that sending unsolicited emails was a breach of "netiquette", utilising the access providers own general terms and conditions of use. The French Tribunal de Grande Instance of Rochefort-sur-Mer, in a decision dated 9th July 1999, had previously ruled that netiquette had legal value and that users should comply with the rules of netiquette.Since the publication of the report "Electronic Mailing and Data Protection" in 1999, the French data protection authority (Commission Nationale de l'Informatique et des Libertés, the "CNIL") has continued to be active. In July 2002 the CNIL started collecting evidence via a "spam box", and taking legal action against senders of unsolicited email. A CNIL report relating to spamming was published on 21st November 2002 and clarifies the CNIL’s position on spamming. The report indicates clearly that spamming is contrary to the provisions of French Law No. 78-17 of 6 January 1978 known as "Loi Informatique et Libertés" (the "Law"). The Law is expected to be amended in line with European Directive 95/46/EC of 24 October 1995 that has not yet been implemented by France.The CNIL Report defines spamming as sending multiple copies of an unsolicited message to many individuals, with whom the spammer has never had any contact and whose addresses were wrongly obtained by the spammer.Spamming involves the automated processing of IP addresses and of first names and surnames. This places spamming within the scope of the Law since the Law applies to all "personal data" which is "automatically processed" in whole or in part in France, irrespective of the nationality of the data subject. "Personal data" is defined as information that allows, in any way, directly or indirectly, the identification of individuals to which it refers. IP addresses constitute "personal data" within the meaning of the Law as they allow indirect identification of persons. "Automatically processed" is defined as every set of operations performed automatically, relating to the collection, recording, preparation, modification, storage and destruction of personal data as well as every set of operations of the same nature relating to the use of data files or databases and including interconnections or aggregated use, consultation or disclosure of personal data. Temporary storage and deletion of IP addresses, both essential elements of spamming, constitute automatic processing within the meaning of the Law. The collection of electronic individual addresses used for spamming is considered to be unlawful because the electronic address of each person is collected without such person’s knowledge. Pursuant to article 25 of the Law, the collection of data made by any fraudulent, unfair or unlawful means is prohibited.

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Moreover, persons receiving unsolicited e-mails are not offered the possibility to oppose to the commercial use of their personal data or to the transfer of those data to third parties, although this right of opposition is granted to all persons by article 26 of the Law and article 14 of Directive 95/46 of 25th October 1995. According to the 2002 CNIL report, no means of opposition to spamming messages are offered to persons and when such means are offered, they are inefficient or, worse yet, they are used to record the electronic address of the Internet user, i.e. to qualify this address as valid due to the response of the user. This practice may be sanctioned under article 226-18 of the French Criminal Code which provides that the collection of data by fraudulent, unfair or unlawful means, or the processing of name-bearing information relating to a natural person despite this person's opposition, is punishable by five years imprisonment and a fine of EUR 300,000.In addition, the automated processing of data containing names or IP addresses is subject to a declaration to the CNIL, in compliance with article 16 of the Law. Any breach of this obligation is punishable under article 226-16 of the French Criminal Code. To carry out, or to cause to be carried out, the automated processing of data containing names without having observed, prior to the operation, the preliminary formalities laid down by law, is punishable by three years imprisonment and a fine of EUR 45,000, even when committed negligently and without criminal intent.In conclusion, the 2002 CNIL report may be considered a first step towards the legal prohibition of spamming in France. The CNIL report follows on the heels the French draft Law implementing Article 6 of European Directive 2000/31 of 8th June 2000 on certain legal aspects of information society services in the Internal Market which prohibits commercial electronic communications sent to addressees who have not expressed their consent before receiving such communications. By derogation, commercial communications may be sent when the details used are directly provided by the addressee in the course of a sale or the provision of services if the addressee has the possibility to refuse the promotional email freely and easily. In addition, the draft law institutes an obligation on any person sending unsolicited commercial emails to expressly and clearly specify the nature of the promotional message (discounts, premiums and gifts, promotional competitions and games) so that the addressee may unambiguously identify it as a commercial message.Finally, European Directive 2002/58 of 12th July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector adopts a similar opt-in approach, prohibiting spamming except with respect to subscribers who have indicated that they are willing to receive unsolicited emails for direct marketing purposes.For more information please contact: slipovetsky@kahnlaw.com

UKPUBLIC AUTHORITIES’ ACCESS

TO COMMUNICATIONS DATAThe Home Office is to re-open the controversial issue of which public bodies may access intercepted communications data under section 22 of the Regulation of Investigatory Powers Act, 2000 ("RIPA") by publishing a consultation paper shortly. This follows a much-publicised climb-down by Home Secretary David Blunkett in June over proposals to greatly extend the range of public bodies with power to require ISPs and telcos to hand over communications data.Chapter II of Part I of RIPA governs the lawful acquisition and disclosure of communications data. Under section 22, certain "designated persons" in "relevant public authorities" (which include the Police, the National Criminal Intelligence Service, the Intelligence Services, the Inland Revenue and Customs & Excise) may require a postal or telecoms operator to obtain and/or disclose communications data in its possession. This may only be

done if necessary on a limited range of grounds, which include the interests of national security, crime detection and/or prevention, public safety and public health. The Home Secretary may extend the range of "relevant public authorities" by secondary legislation under section 25.The Home Secretary caused a public outcry in June last year when he attempted to add another twenty or so public bodies - which included the Food Standards Agency - to the list of relevant public bodies using this power. The Home Secretary was forced to drop the draft Order. The Home Office has publicly acknowledged that the proposal was mis-handled, and announced in December 2002 that it will launch a public consultation on a new Order this year. It promises greater transparency this time - i.e. that it will make it clear why these additional public authorities are justified in having the right to call on communications data. What is not clear at this stage is whether the list of new public bodies is as extensive as that proposed this past summer.For more information please contact: Cdl@olswang.co.uk

4. DIGITAL SIGNATURES

LEBANONCENTRAL BANK PROPOSED AS CERTIFICATION

AUTHORITYWhile pending revision by the appropriate Parliamentary Committee, the Lebanese Draft Law on Electronic Signatures was complemented by the submission of a Draft Decree to be revised simultaneously with the Draft Law.The Draft Law on Electronic Signatures proposes amendments to certain articles of the Lebanese Code of Civil Procedures related to authentication and proof. The Draft Law provides that the Council of Ministers, at the proposal of the Minister of Justice, should issue decrees to set forth rules and procedures necessary to confirm the validity of documents generated, stored and transmitted through electronic means, including rules and procedures for repudiating electronic signatures, claiming forgery as well as the basics of identifying the signatory and the safety of the document.The Draft Decree, provides, among other things, that the Lebanese Central Bank (Banque du Liban) shall exclusively, either directly or through the empowerment of a third party, act as the sole Certification Authority for banks and financial institutions under its control and supervision.This proposed exclusivity makes sense since the Banque du Liban, since its establishment in 1963, has had the sole authority to supervise and regulate the banking system including the relations between banks and their customers.Furthermore, the Banque du Liban seems to take into consideration the recent recommendations of the Basle Committee on Risk Management in Electronic Banking. In this respect, a special committee was formed by the Central Bank and the Association of Banks in Lebanon for improving, with the help of new technologies, the efficiency of the Lebanese banking systems and the standardisation of its activities.For more information please contact: leila@alemlaw.com

MEXICOBILL ON ESIGNATURES

AND CERTIFICATION INSTITUTIONSOn 27th November 2002, the House of Representatives overwhelmingly approved a series of amendments to the Commerce Code to include specific regulations on the formation of contracts through electronic or other optical means, electronic signatures, certifying institutions and acknowledgement of certificates and electronic signatures generated outside Mexico.

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The bill is a continuation to the amendments on electronic commerce that were enacted in Mexico a few years ago on:- formation of contracts;- the validity of electronic communications as evidence in the formation of contracts; and- the protections afforded to consumers acquiring goods through electronic means.The bill is the result of more than one and a half years of work between the private and public sectors. The amendments were made substantially in accordance with the provisions of the UNICTRAL Model Law in this subject. These amendments still need to be approved by the Senate and will, if passed, enter into effect 90 days after their enactment. Some important topics included in this amendment are:- the rules to determine when an electronic communication is deemed to have been issued by the issuer (whether directly or through third parties) and when it is deemed to have been received;- the requirements to consider an electronic signature an "advanced or reliable" signature;- which entities can qualify as certification entities (according to the bill, notaries public, and certain private and public entities);- security and confidentiality requirements to become a certification entity and register before the Ministry of Commerce; and- validity requirements for certificates issued by the certification entities.For more information visit: www.sct.gob.mx or www.cddhcu.gob.mxFor more information please contact: aam@bstl.com.mx

5. DOMAIN NAMES

NETHERLANDSMODIFICATION OF RULES

ON REGISTRATION OF “.NL”New rules and regulations of the Stitching Internet Domeinregistratie Nederland (SIDN) will become effective on 29th January 2003. One important modification of these new rules and regulations concerns the registration of domain names in the ".nl" zone. In the current situation ".nl" domain names can only be registered by companies which are registered in the Dutch Commercial Register. As of 29th January 2003 it will be possible for companies with a statutory seat or place of business outside The Netherlands to directly register ".nl" domain names in their own name. Already existing registered domain names in the ".nl" zone file can be transferred from foreign companies as of 29 January 2003. The new Regulations also introduce arbitration as the means of dispute resolution. Owners of domain names which were registered or transferred after 29th January 2003 must accept arbitration in advance.For more information visit:http://www.domain-registry.nl/sidn_english/flat/Home/For more information please contact: martine.de.koning@kvdl.nl

SWEDENTHE “.SE” TOP-LEVEL DOMAIN

At the end of 2002 new rules for the Swedish top-level domain ".se" were presented by the II-foundation. In principle, the new rules, planned to enter into force by the end of April 2003, open the ".se" registry to anyone to

register any name. This is true for both companies and individuals and the applicant will no longer have to be situated in Sweden. There is, however, a requirement that the applicant provide an address in Sweden where notifications from NIC-SE, the registry and co-ordinator of ".se", may be sent.Under the current (and more restrictive) rules, only organisations with permanent business or operation within Sweden may register a domain name and the domain name has to reflect the name of the organisation. As a consequence, until now, there have been relatively few disputes regarding domain names under ".se", and cyber-squatters have had little chance of registering domain names that corresponds to known trademarks. The new rules, however, will change the Swedish domain name landscape thoroughly.To give holders of trademarks the chance to protect their marks, the new rules will be implemented step by step. During an initial period, holders of trademarks will be given priority when new domain names are registered. This applies to trademarks registered in Sweden, European Community trademarks and international trademarks registered under the Madrid protocol. Furthermore, although not yet finalised, some type of dispute resolution procedures will be implemented.As under the current regime, all applications for a ".se" domain name must go through a certified representative of NIC-SE.For more information visit: http://www.nic-se.se/englishFor more information please contact: erik.bergenstrahle@lindahl.se

6. ELECTRONIC COMMERCE

CANADAWEBTRADING DISCLAIMERS

HELD UNENFORCEABLEIn a recent decision, Wei Zhu v. Merrill Lynch HSBC, 2002 BCPC 0535, the British Columbia Provincial Court held that disclaimers found on the Merrill Lynch HSBC "NetTrader" web site were not enforceable. The court ruled against the online brokerage arm of Merrill Lynch HSBC in a dispute over a cancelled securities transaction. While the court alluded to the fact that it had not been given an "executed copy" of the Terms of Use and while the court also noted disparagingly that the Terms of Use were 36 pages of fine print, the court's opinion regarding the non-enforceability of the disclaimers does not appear to based on either of these facts. Accordingly, the decision does not explicitly treat whether Terms and Conditions were entered into by "clickwrap", "webwrap" or otherwise and does not affect the current Canadian law on the issue of online contract formation. Rather, the court held that the exclusion of liability clause was unenforceable because it excludes liability even for gross negligence.The court also indicated that the online broker's onscreen "cancellation" instructions were confusing. Moreover, due to the nature of the respondent's services, the court held that the respondent owed a higher duty of care than ordinarily expected in the provision of services and that the respondent's computer system did not meet that standard. The judgment is a "must read" not only for online brokerage firms and other financial institutions, but also for any company conducting e-commerce activities targeting the Canadian market. This is because it makes practical suggestions regarding how to clarify "cancellation" instructions and provides a cautionary tale against the use of overly broad liability disclaimers.For more information visit: http://www.provincialcourt.bc.ca/judgments/pc/2002/05/p02%5F0535.htmFor more information please contact: cmorgan@mccarthy.ca

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NEW ZEALANDTHE ELECTRONIC TRANSACTIONS ACT 2002

In a previous edition of "the l.i.n.k.", we commented on New Zealand’s Electronic Transactions Bill, which was introduced into Parliament on 9th November 2000. On 10th October 2002, the Bill was passed into law as the Electronic Transactions Act 2002 (the "Act").The Act is the first piece of legislation in New Zealand that relates specifically to electronic commerce. The purpose of the Act is to ensure that transactions are not denied legal effect merely because they take place using electronic technology. Generally, the Act clarifies that where another law requires information to be provided "in writing", this may be done electronically provided certain conditions are met. The Act also contains default rules relating to the time and place of despatch and receipt of electronic messages, which are designed to increase certainty in respect of contract formation by electronic means.A limited number of exceptions and exclusions are set down in Schedule 1 to the Act. There is to be a mandatory review of the exclusions after two years.For more information visit: http://rangi.knowledge-basket.co.nz/gpacts/public/text/2002/an/035.htmlFor more information please contact: david.boswell@bellgully.com

7. ELECTRONIC GOVERNMENT

BRAZILON-LINE OFFICIAL GAZETTE DEEMED VALID

In Brazil all legal documents and acts of the government authorities must be published in the Brazilian Official Gazette in order to become public and effective. Since 17th December 2002, in an attempt to reduce bureaucracy, copies of all documents published in the Brazilian Official Gazette's on-line system are considered valid and are as authentic as an official printed document. This measure is part of a project of Electronic Official Gazettes initiated two years ago that intends to give digital certification to documents published on-line.For more information please contact: rapdecunto@pinheironeto.com.br

8. EMPLOYMENT

GERMANYEMPLOYEES’ SURVEY BY

FOREIGN PARENT COMPANYThe Regional Labour Court (Landesarbeitsgericht - LAG) in Frankfurt am Main recently decided a case affecting the legal limits of economic globalisation with respect to the German Works Constitution Act (Betriebsverfassungsgesetz - BetrVG). The LAG Frankfurt concluded that a survey conducted among employees of the subsidiary company in Germany conducted by the parent company located outside of Germany needs to be approved by the works council of the German subsidiary company. The facts of the case were as follows:

- the American parent company intended to conduct a world-wide survey among all employees of the entire affiliated group. The employees participating in the survey were supposed to be selected by an electronic random generator. All answers were to be collected and evaluated at the global level so that absolute anonymity of each participant was assured. The survey was not co-ordinated with the German subsidiary company and the management of the latter was not able to influence the content or the processing of the survey.- despite the "helplessness" of the German management, the LAG Frankfurt ordered the German subsidiary company to omit the survey due to the right of co-determination of the works council of the German subsidiary company pursuant to § 94 para. 1 BetrVG. According to § 94 para. 1 BetrVG personnel questionnaires require the consent of the works council. In case the employer still intends to conduct a survey containing personnel questionnaires - as in the case at hand - without the works council's consent, the works council does have a claim for omission of such survey pursuant to § 23 para. 3 BetrVG.- the LAG Frankfurt reasoned that the claim for omission would not be barred due to the fact that the German subsidiary itself was not sending the personnel questionnaires to its employees. The German subsidiary would conduct its business in the scope of the BetrVG and would have set up work stations equipped with PCs for its employees. Via this EDP-equipment its employees would be connected with the intranet of the affiliated group and would be reachable by email. Therefore, the conduct of the survey would be attributable to the German subsidiary since its employees were exposed to the survey even if the German subsidiary did not induce or conduct the survey.This decision demonstrates that even internationally affiliated groups are obliged to comply with the provisions of the German Works Constitution Act. In particular, the protection granted to employees by this Act may not be evaded by leaving decisions on measures requiring the German works council's consent to foreign affiliated companies.For more information visit: www.mmr.deFor more information please contact: j.heilbock@wessing.com

9. FINANCIAL SERVICES

TURKEYCAPITAL MARKET LEGISLATION

UPDATE AND PROJECTIONSThe Capital Market Board (the "CMB") issued two new items of legislation during December 2002. The first is a new Communiqué on the Procedure and Principles concerning the Recording of Dematerialised Capital Market Instruments (the "Communiqué"). The Communiqué permits electronic record keeping of securities and rights related thereto in the Central Registry Corporation (the "CRC") in accordance with a recording system to be determined by the CRC under the supervision of the CMB. The Communiqué sets forth different types of accounts and determines the procedures in connection with:- recording of securities transactions to be carried out by the account holders;- recording the exercise of financial and shareholding rights, including the procedure for attending general assembly meetings;- establishment of encumbrances over the securities; and- restriction of account holders' rights.

The second item of legislation, issued on the last day of 2002, is an amendment to Article 25 of the Securities Market Regulation of the Istanbul Stock Exchange. This amendment determines that companies whose securities transactions are

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temporarily restricted due to non-compliance with applicable laws must overcome this restriction within two months. At the end of that period, the Istanbul Stock Exchange Board is entitled to desist the company failing to comply with the relevant legislation.The CMB has also announced its projections for the year 2003. Some of the highlights in the CMB's program are as follows:- establishment of an arbitration organisation for enabling efficient dispute resolution concerning securities;- increase of the publicly traded share ratio in publicly held companies from 15% to 25%;- participation in the commission working on an amendment of the Turkish Commercial Code in order to enable publicly held companies to purchase their own shares; - establishment of a "best practice code" in order to foster the implementation of corporate governance principles; - elimination of the going public requirement for venture capital companies;- improvement of the accounting and independent auditing legislation in line with international and European Union standards; and- harmonisation of the capital market legislation with the relevant European Union legislation.For more information visit: http://www.spk.gov.tr/english/regulations/entrance.htmFor more information please contact: kucer@hbo-law.com.tr

10. INFORMATION SOCIETY POLICY

BRAZILCHANGES IN INTERNET ACCESS

The Brazilian Telecom Regulatory Agency Anatel has published for public comment a proposed regulation establishing new models for dial-up Internet access. Anatel's objective is to increase the number of users who have access to the Internet and to permit users to have control over monthly expenses for Internet access (including phone bills).Due to the debate prompted by the proposed regulation, the deadline for submission of comments was extended to 31st January 2003 and Anatel also decided to call public hearings held on 15th January 2003 in Brasilia and 16th January 2003 in São Paulo.The proposed regulation introduces two new models for dial-up Internet access and will also allow flat rates for the service. The proposed regulation has created discussions regarding the continuity of the current model and the future of the free access providers.For more information please contact: rapdecunto@pinheironeto.com.br

COLOMBIAREGULATION ON PROTECTIONOF MINORS ON THE INTERNET

A provision recently issued in Colombia obliges suppliers, server operators, administrators and users of global information networks operating in Colombia to include in all contracts a clause expressly prohibiting the hosting of sites containing child pornography.

Decree 1524 of 24th July 2002 prohibits the hosting or transmission of any image, text, document or audio-visual file showing, directly or indirectly, sexual activities involving minors.Therefore, suppliers, server operators, administrators and users of global information networks operating in Colombia must report to all competent authorities any criminal sexual act performed against minors of which they may know, and establish blocking mechanisms with which users can protect themselves and their children from unlawful, offensive or undesirable material involving minors.The Ministry of Communications will sanction the violation of this regulation with fines of up to 100 monthly legal minimum salaries (equivalent to USD 11,500), the temporary suspension of the electronic page and the permanent cancellation of the electronic page.For more information visit: http://www.presidencia.gov.co/decretoslinea/2002For more information please contact: cavelier@cavelier.com

COLOMBIAOPTIONS TO REDUCE THEE DIGITAL GAPS

Developing countries, often acutely aware of their technological backwardness, are working every day to close the digital gap.Large low-income population sectors, low literacy levels, and even language (most technological tools are in English) are all significant barriers to the dissemination of information technologies.The problem, though, will not be solved simply by connecting a number of computers in the most depressed zones at no cost to the communities. Integrated strategies are required. These strategies should combine technological education, low-cost Internet access, and programs compatible with the culture and language of the communities. Colombia is a good example of the efforts being made to achieve this goal. For example, a program known as "Biblored", a network of public libraries connected to the Internet, received last month the "Access to Learning Award" granted annually by the "Bill and Melinda Gates Foundation" (www.gatesfoundation.org), along with a contribution of one million dollars for project development.BibloRed (www.biblored.org) is an integrated library network created in Bogota 4 years ago. It attracts some 10,000 visitors every day (Bogota has 5,000,000 inhabitants), most of them from low-income sectors of the city. In addition to free access to the Internet and interconnection with all the libraries in the city, BibloRed offers training programs for children, adults, and teachers.For more information please contact: cavelier@cavelier.com

EUCONSULTATION ON DIGITAL TV AND 3G

On 9th December 2002, the European Commission launched a public consultation scheduled for 4th February 2003 on a report on barriers to the achievement of widespread access to new services and applications of the Information Society through open platforms in digital television and third generation mobile communications. Such report was ordered following the Barcelona European Summit of March 2002 and the Seville European Council of June 2002.The report states that the widespread access by all EU citizens to the services and application of the Information Society is one of the goals of the EU for the coming decade.Digital television could be the key for access to Information Society services. 3G mobile communications will also offer Information Society services as well as

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the Internet which will remain a major delivery mechanism. Open platforms for digital television and 3G mobile will contribute to user choice and interoperability. Although both 3G and digital television currently use proprietary standards, in 3G mobile communication the industry is taking the steps to reach agreement on standards that will deliver interoperable 3G services. For digital TV, Memoranda of Understanding have been agreed at national and regional levels between broadcasters and manufacturers of digital interactive TV to promote the future use of the Multimedia Home Platform (MHP) standard. The report notes that this is an area that is evolving rapidly and that the Commission services will follow developments closely.The reports further acknowledges that the "openness" of 3G and DTV platforms is an important element among several that affect access to Information Society services. Other issues, such as the development of attractive consumer services, the creation of a secure environment to inspire consumer confidence, and an environment of regulatory clarity for new electronic services, and the recognition of European cultural diversity are equally important. Public authorities must ensure that legislative and regulatory conditions create a favourable environment for business that attracts investment and favours innovation and economic development.The final report is intended to be adopted as a formal communication addressed to the European Parliament, the Council, the Committee of the Regions and Economic and Social Committee once the public consultation is concluded.For more information visit: http://europa.eu.int/information_society/topics/telecoms/regulatory/publiconsult/index_en.htmFor more information please contact: LE_GOUEFF@vocats.com

SPAINEXPERT COMMITTEE TO ASSESS

BASIS FOR INFOSOC DEVELOPMENTThe Spanish Government has created a Special Committee to assess the development of the Information Society in Spain. The Committee has a term of four months to present its recommendations to the Ministry of Science and Technology, which in turn will report to the Council of Ministers.The assessment will take into account, amongst other matters, the following:- comparison among Spain, other EU member states and USA as regards implementation of the Information Society.-Main existing barriers to change;- specific issues to deal with as regards SMEs; and- communication infrastructures which are required.The recommendations of the Committee will include specific measures to be adopted by the different entities of the Public Administration which are in charge of promoting development of the Information Society.For more information please contact: Aam@gomezacebo-pombo.com

SPAINBILLS TO REGULATE TELECOM AND

AUDIVIOSUAL1. New Telecommunications LawThe new EU regulatory framework for electronic communication networks and services will be implemented before 24th July 2003. In Spain, this new

framework will be implemented by means of a new General Law on Telecommunications that will take the place of the current one, in force since 1998.The Council of Ministers approved the new draft law on 17th January 2003. The draft will be reported by the Council of State and, afterwards, discussed within the Parliament.The main changes in the new law are as follows:- the Licensing regime will be simplified and telecom operators will only be required to notify the Telecommunications Market Commission ("TMC") in order to be entitled to operate networks or to provide services;- existing regulation will be lessened: certain regulatory obligations imposed on « dominant operators » (those with a market share above 25%); will be replaced by those applicable to operators with "significant market power"; the qualification of an operator as such will not be automatically determined by its market share (the TMC will assess the degree of competition in the relevant markets and will decide on the obligations to be imposed if it finds that there is an operator with significant market power in a particular market);- universal service will be enhanced: the new concept of universal service will ensure that users are able "to make and receive local, national and international telephone calls, facsimile communications and data communications, at data rates that are sufficient to permit functional Internet access, taking into account prevailing technologies used by the majority of subscribers and technological feasibility"; this had already been implemented in Spain by means of an amendment to the current General Law on Telecommunications enacted on 12th July 2002; and- transfer of spectrum will be allowed: the new law will permit the transmission of rights to use the radio-electric spectrum between operators, subject to the supervision of the regulator.2. New Audio-visual LawThe Minister of Science and Technology also announced recently that his department is drafting a law which will govern the audio-visual sector. Regulation of broadcasting in Spain is included in different laws, which lack the desired coherence for easy understanding. The new law will aim to clarify and regularise the legal regime of the sector.Some important changes in this regime are likely to be introduced. For example, the Government has announced that under the new law, broadcasting services will not longer be considered « public services ». This will also lead to a change in the financing of the public TV stations.The text of the draft law will likely be made public at the end of February. Its enactment is foreseen by before the end of year 2003.For more information please contact: Aam@gomezacebo-pombo.com

11. INTELLECTUAL PROPERTY

CANADAHIGHER LIFE FORM HELD NOT PATENTABLE

In a 5-to-4 decision rendered on 5th December 2002, the Supreme Court of Canada held that a higher life form is not patentable subject matter since it does not constitute an "invention" within the meaning of Section 2 of the Patent Act.At issue in the case of President and Fellows of Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76, was whether the oncomouse, a genetically modified rodent with heightened genetic susceptibility to cancer, is an invention and thus patentable.The answer to this question was key to Harvard College's ability to secure patent protection in Canada for its oncomouse. However, the import of the Supreme Court's holding in this case extended far beyond the oncomouse,

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affecting the patentability in Canada of all non-human higher life forms. For this reason the outcome of these judicial proceedings was anxiously anticipated by all those seeking to patent a higher life form in Canada.The Trial Division of the Federal Court of Canada held that the oncomouse could not be patented. For its part, the Federal Court of Appeal arrived at the opposite conclusion and overturned the Trial Division's ruling in this matter. In reversing the Federal Court of Appeal's decision, Bastarache J., on behalf of the majority of the Supreme Court, concluded that neither the word "manufacture" nor the expression "composition of matter" in the definition of "invention" in Section 2 of the Patent Act includes a higher life form such as an oncomouse. He held further that since patenting higher life forms would involve a radical departure from the traditional patent regime, and since patenting of such life forms is a highly contentious matter that raises a number of extremely complex issues, clear and unequivocal legislation is required for higher life forms to be patentable.In a strong dissent, Binney J. for the minority stated that the extraordinary scientific achievement of altering every single cell in the body of an animal which does not in this altered form exist in nature, by human modification of the genetic material which of which it is composed, is an inventive "composition of matter" within the meaning of Section 2 of the Patent Act. The context and scheme of the Patent Act reinforce the expansive sense of the words "composition of matter" to render the oncomouse patentable. Binney J. added that the Commissioner of Patents had no discretion to refuse a patent on the grounds of morality, public interest, public order, or any other ground if the statutory criteria are met. For the minority of the Supreme Court, the Commissioner’s handling of this case sounded a highly discordant note. In their view, the massive private sector investment in biotechnological research is precisely the type of research and innovation that the Patent Act was intended to promote.The effect of the Supreme Court of Canada's decision here is to deny applicants the possibility of obtaining patent protection in Canada for higher life forms, which includes plants as well as non-human animals. Legislation will be required to change the state of the law in this regard.For more information visit: http://www.lexum.umontreal.ca/csc-scc/en/rec/For more information please contact: kbritt@mccarthy.ca

EUEASTERN ENLARGEMENT:WHAT MEANING FOR CTM

EU enlargement to the East is soon to become a reality: by 2004 at the latest the first of the 13 candidate states are due to be admitted to membership in the European Union. It is already clear that this integration will result in certain changes in the laws on trademarks.It has already been decided that even when the candidate States have joined the Union, the Community Trademarks shall retain their uniform character.Therefore the geographic scope of all registered Community Trademarks for which an application was filed or registration existed before the accession date will be extended to include the new member states from the date of entry onwards. This extended coverage is automatic: it is not necessary to notify or apply to the EU Office for Harmonisation in the Internal Market. Similarly, trademark holders need not pay additional fees for the extension of the area in which their trademark is valid.Once the Community Trademarks become applicable, new member states will find both the Community Trademark system and the state’s own national copyright laws existing side by side, which can lead to legal conflicts.The holder of an older national right, one which existed in the new Member State before the accession date, may forbid the holder of the extended

Community Trademark to use his trademark in the new member’s territory by virtue of the older right.Also, under EU law, the complete cancellation of the Community Trademark due to an older national right is, however, possible only if the application for a Community Trademark was filed within a 6-month period prior to the date of accession (so-called "cut-off date").The above regulations are designed to protect bona fide holders of older rights in the candidate countries. However, they also create a real danger of brand piracy. Third parties could use the time to file applications for national trademarks in the candidate countries and have them registered. These national trademarks could then lead to claims compelling the holder to refrain from using his extended Community Trademark. This could mean that the Community Trademark holder would be obliged to purchase the right to use the trademark in that country. Otherwise he may be unable to market his product or services under his customary brand name.So far, no suitable mechanism to protect people from this kind of brand piracy is in sight. There is, however, discussion of various possible ways to counter the problem of trademark applications filed in bad faith, but it is questionable whether and when they will take effect.Companies with an interest in the candidate countries' markets should, therefore, not rely entirely on the extended applicability of their Community Trademark.Rather, they should ensure in advance that their trademark rights are protected in the relevant candidate countries under existing national law. This may be effected either by filing an application for a national trademark in the candidate country or by obtaining an international registration under the terms of the Madrid Trademarks Agreement.For more information visit: www.marken-recht.de or www.mmr.deFor more information please contact: j.heilbock@wessing.com

GERMANYMORE HOLDER RIGHTS FORCOPYRIGHT INFRINGEMENT

The owners of copyrights or industrial property rights often find themselves in the unpleasant situation of being unable to investigate thoroughly a suspected infringement because they have no access to the objects whose manufacture or sale may violate their rights.This difficulty is encountered when, for example, it is not financially possible to make a test purchase, or the object in question is not readily available on the market, as is the case with a custom-built device in a production plant or the source code of a computer program. In these circumstances there is considerable difficulty in proving the violation of rights necessary to succeed with a legal action to refrain from use and/or to pay damages.The German Civil Code (Bürgerliches Gesetzbuch - BGB) establishes a helpful principle: art. 809 BGB states that whosoever wishes to gain certainty as to whether "in consideration of the object" he may have a claim, is entitled to demand of the object's owner an opportunity to inspect it. This applies also to owners of copyrights or industrial property rights regarding objects which may have been manufactured and/or sold in violation of their rights.As a general rule, this right to inspect may be enforced through a summary proceeding. The Federal Court of Justice's (Bundesgerichtshof - BGH) 1st division for civil matters, which is responsible for copyright affairs, recently published a verdict which details the prerequisites for the right and scope of inspection, redefining material elements thereof in favour of the copyright holder (judgment of 02 May 2002, Ref. I ZR 45/01 "Faxkarte").At issue in this particular case was the opportunity to access the source code of a computer program in order to determine whether it had in part been copied from another program.

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The appellate court (Higher Regional Court Hamburg - Oberlandesgericht Hamburg, judgement of 11.01.2001, ref. 3 U 120/00) had held that the right to inspect referred only to an opportunity to inspect hard- and software.The Federal Court of Justice, in contrast, found that this right may also apply to the source code of the software, if it is not otherwise possible to gain the certainty contemplated in art. 809 BGB on whether copyrights have been infringed.It was, moreover, the Court's view that substantial probability of copyright infringement was not an prerequisite to suit. The appellate court had made strict interpretation of the prerequisites, quoting an earlier decision by the Xth division for civil matters, responsible for patent law affairs (BGHZ 93, 191 - "Druckbalken").According to the 1st division for civil matters, the probability that rights had been infringed was only one aspect of the process of duly weighing interests.In doing so, the court should ask what possibilities the rights owner has to demonstrate these rights and to what extent the fair and reasonable interests of the presumed infringing party are harmed by the inspection(any damage to such party could be limited by using a qualified third party, who is enjoined to secrecy, to conduct the inspection).Finally, regarding the scope of inspection, the Federal Court of Justice ruled that the right to inspect can include intervention in the substance of the object at issue- in other words the insertion or removal of parts, putting it into operation or immobilizing it.This too extends the rights of the copyright holder compared with the previous legal position based on the Federal Court of Justice's "Druckbalken" ruling.The redefinition of the prerequisites for and scope of a right of inspection pursuant to art. 809 BGB refers, according to the decision, only to copyright law, which was the only law applicable to the case at issue.However, it is not clear why there should be any fundamental difference in the application of such principle of interpretation to other technical property rights or registered designs.The judgment rendered does contain some indications in that direction. As matters now stand, the fax card decision reached by the Federal Court of Justice considerably improves the legal position of copyright or industrial property right holders in terms of being able to procure the necessary body of facts to win a lawsuit.For more information visit: www.bundesgerichtshof.deFor more information please contact: j.heilbock@wessing.com

LUXEMBOURGHIGHER COSTS FOR BENELUX TRADEMARKS

The Benelux trademark office (the "BTO"), has decided to increase by 7% its tariffs on Benelux trademarks as of 1st January 2003.Due to a strong reduction in its income, the BTO closed the 2002 accounting year in the red. In comparison with its budget, the loss was due to loss of income originating from researches on community trademarks, accelerated researches, applications, copies and information and interest products.The BTO is confronted with the problem that its personnel expenses are decreasing slowly while its incomes are decreasing more rapidly. According to the BTO, 2003 will probably not bring any substantial improvement in its income. Accordingly, the BTO must considerably reduce expenditures as well as its personnel costs.

Measures taken by the BTO directorate should result in savings of EUR 700,000 per year. Such reduction notwithstanding, the BTO will still have to raise its tariffs in order to balance income and expenditures.The 7% increase already approved will not be sufficient to attain this balance if the BTO's income remains stable; a 15% increase would be required to achieve such a balance. Consequently, yet another tariff increase may arise if the BTO's business volume remains stable.After the 7% increase, the registration of a trademark for a 10 year term will cost EUR 207.For more information visit:http://www.bmb-bbm.org/fr/pdf/tarieven200301.pdfFor more information please contact: LE_GOUEFF@vocats.com

SOUTH AFRICAAMENDMENTS TO TRADEMARKS

The South African Merchandise Marks Amendment Bill, 2002 ("the Bill") was introduced to Parliament by Trade and Industry Minister Alec Erwin on 21st October 2002. Its stated aim is to amend the Merchandise Marks Act, 1941 ("the 1941 Act") in order to define the terms "event" and "protected event" and to prohibit the abuse of trademarks in relation to events as defined.The clear intention of this Bill is to toughen South Africa's "ambush marketing" legislation in anticipation of the Cricket World Cup.The 1941 Act was aimed at the protection of merchants, manufacturers and the public from the abuse of trademarks by competitors.The Bill seeks to extend this protection in order to protect the sponsors of major events from what has been termed "ambush marketing by way of intrusion". The memorandum on the objects of the Bill describes "ambush marketing by way of intrusion" as the use of an event as a springboard to promote a brand or product, "without incurring the financial and other obligations of a sponsor". Such marketing may include:- the placing of advertisements for products outside a venue where a sponsored event is to take place;- the running of advertisements which refer to a sponsored event without suggesting that the advertiser is a sponsor of that event;- bringing a product or its promotion to the attention of people interested in a sponsored event without suggesting or implying sponsorship of the sponsored event.The Bill defines an "event" as "any exhibition, show or competition" and empowers the Minister (subject to certain conditions) to designate an event, by notice in the Government Gazette, as protected for a specified period.For the period of protection, "no person may use a trademark in relation to such event in a manner which is calculated to achieve publicity for that trademark and thereby to derive special promotional benefit from the event, without prior authority of the organiser of such event".The Cricket World Cup is scheduled to begin in South Africa on 8th February 2003 and it is expected that the legislature will be making every effort to ensure that the amendments are promulgated in time for the launch of that event.For more information visit: www.polity.org.zaFor more information please contact: peterg@wwb.co.za

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12. MARKET ACCESS

CHILEFREE TRADE AGREEMENT

BETWEEN CHILE AND USAAfter fourteen rounds of negotiations, on 11th December 2002, the governments of Chile and the United States of America reached a free trade agreement (the "Agreement"), aimed at boosting commerce, services and investment between both countries. The Chilean Congress will now have to ratify the Agreement before it comes into force. This free trade agreement, in addition to those signed with the European Union and South Korea during 2002, confirms Chile's role as the leading free market economy within Latin America.The main areas covered in the Agreement are as follows:- upon entering into force, over 85% of the bilateral trade will be tariff-free; most remaining tariffs will be eliminated within four years;- both countries shall guarantee full access to the services of the other, including banking, finance, insurance, telecom services and electronic commerce (excluding only sensitive services);- foreign investment made by nationals and companies belonging to the other party shall be protected and subject to a secure and predictable legal framework;- intellectual property rights are reinforced;- nationals and companies are provided non-discriminatory treatment regarding government procurement by the other country;- both parties commit to effectively enforcing and improving their domestic labour and environmental laws and standards;- a dispute settlement mechanism is established to deal with all controversies arising as a result of the Agreement; and- the parties agreed to establish common rules of origin and standardisation of goods.For more information please contact: asilva@carey.cl

13. MEDIA

EU4TH REPORT ON APPLICATION OF

“TELEVISION WITHOUT FRONTIERS”As provided by article 26 of Directive 89/552/EEC, amended by Directive 97/39/EC, the Commission submitted to the European Parliament, the Council and the Economic and Social Committee the fourth report on the application of the Directive "Television without Frontiers".This report describes and analyses application of the provisions concerning the events of major importance for society, the rules on protection of minors, the rules on advertising and the co-ordination between the national authorities and the Commission.Furthermore, the present report analysed the audio-visual regulation in the applicant countries wishing to join the European Union.

In an annex to the report, the Commission proposes a work programme for 2003 to open a debate in order to provide it with the necessary input to evaluate the need to update or adapt the current regulation. Depending on the result of this series of consultation, the Commission will assess the need to propose measures to reinforce European audio-visual policy to the Community legislator.For more information please contact: LE_GOUEFF@vocats.com

GERMANYRULES ON ADVERTISING LIBERALIZED

Until the Ordinance on Bonuses (Zugabeverordnung) was rescinded in the summer of 2001, retailers were forbidden to grant or promise bonus items to a consumer provided that he bought a specified article.In addition, courts had ruled that advertising which included free gifts was, under certain circumstances, to be regarded as unfair advertising pursuant to section 1 of the Law against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb - UWG), since such offers constituted an excessive enticement and customers ceased to base their purchase decision on rational arguments.Since the abolition of the Ordinance on Bonuses the German Federal Supreme Court (Bundesgerichtshof - BGH) has taken the view that free gifts and other forms of tie-in offers are now generally permissible.The federal judges at the Ist Division for Civil Matters were called upon to find for or against a ban on such advertising in three cases: two cases concerned two Cologne-based branches of the "Media-Markt"-chain which advertised a television set for the price of 1.00 DM, provided that the customer was prepared to sign a contract with an electricity supplier for a period of at least 2 years.The third case involved a similar campaign by the Frankfurt-based company, Saturn Electro, where a video recorder was offered for 49.00 DM instead of 249.00 DM; in exchange for the customer signing a contract with an electricity supplier for a term of at least 2 years.The Higher Regional Court (Oberlandesgericht - OLG) in Cologne stopped the Media-Markt advertising on the grounds that there was no relevant "functional unity" between a TV set and a contract for electricity supplies.By contrast, the OLG with jurisdiction for Saturn Electro in Frankfurt ruled that advertising campaign permissible, since there was no danger that it would generate an excessive consumer enticement.The BGH ruled that since the Ordinance on Bonuses had been abolished, it was the intention of the legislature to limit narrowly the type of free gifts and bonus items which could be banned, even when applying section 1 of the Law against Unfair Competition.Therefore, retailers should be generally permitted to grant free gifts and other tie-in offers. The only exceptions, in the court's view, would be improper tie-in offers, which mislead the consumer about the value of the offer or fail to provide sufficient information. In effect, the BGH upheld the disputed rulings. The advertising by the Cologne Media-Markt branches failed to fulfil all legal requirements in that it did not make a clear enough statement of the financial burden created by signing the electricity supply contract.Clarifying the point, the BGH declared that whenever the especially low price of one part of a tie-in offer is stressed, the price of the other element must be equally clearly stated.Since there was no reason to fault the advertising in the Frankfurt case on this point, the verdict of the lower court was upheld (Ref. no.: BGH I ZR 71/01, I ZR 72/01 and I ZR 173/01).For more information visit: www.bundesgerichtshof.de For more information please contact: j.heilbock@wessing.com

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INDIAPARLIAMENT PASSES CABLE TELEVISION BILL

The upper house of the Indian Parliament cleared the controversial and much-debated Cable Television Networks (Regulation) Amendment Bill, 2002 ("the Bill") on 10th December 2002.The Bill had been passed by the lower house of Parliament in May 2002 and introduces a Conditional Access System ("CAS") to India, thus making set-top boxes mandatory for pay channels.With the Bill becoming law, the cable television industry in India is likely to undergo a sea change. According to the Bill, consumers will now be charged only for those pay channels they watch and will be required to pay a fixed rate for free-to-air channels.It is also proposed that the Government will regulate the cost of free-to-air channels, which would be made available in the present mode, without set-top boxes. The charge for the pay channels will be determined by market forces.The introduction of CAS is likely to provide a level playing field for broadcasters, cable operators and consumers. Earlier, consumers were required to pay their cable operators the amount charged by them and they had no option but to pay for all the pay channels offered by broadcasters.In addition, the Bill also puts to rest the long running controversy between broadcasters and cable operators. Broadcasters are of the view that cable television operators do not report accurate numbers of subscribers, which results in loss of revenue to the broadcasters.On the other hand, cable operators are of the view that they are at the mercy of the broadcasters, who can stop access to channels whenever there was an important event.There is, however, some ambiguity in the decision of the Government to maintain what they term a 'basic tier' of free-to-air channels to ensure that those who cannot afford pay channels have access to these free channels.This ambiguity arises as the Government will be fixing a maximum price that may be charged for the basic tier, at the same time that these channels are free to air! The Bill has also revived concerns of increased Government control over the cable television business because the Government will have control over fixing the price and the number of channels to be offered in this basic tier.However, It would be left to broadcasters to decide which channels would be free-to-air and which would be pay and this may also result in the shift of some free-to-air channels to the pay regime. As for implementation of CAS, the transition will be carried out in a phased manner beginning with the metros. The cable operators will have to make arrangements to transmit programmes of pay channels through an addressable system within six months from a date which will be specified in the official notification issued by the Government. The cable television industry network is emerging as the key infrastructure for the growth of the country’s information technology industry, because of the growth of convergence technologies which make it possible to provide other data services on the same network.The high penetration of cable television in India presents opportunities for providing interactive services, including Internet, on TV. This, in turn, can potentially benefit especially the 'information poor' and thus reduce the 'information gap' in the society. With the passing of this Bill the cable television industry in India is entering a new era and only time will tell if it will be a success or not.For more information please contact: vaibhav@nishithdesai.com

MEXICONEW RADIO AND TELEVISION LAW

INITIATIVE PRESENTEDThe current Federal Radio and Television Law of Mexico was enacted by Congress in 1938. Despite some amendments made since then, it is clear that the law needs major overhaul. Recently, an initiative to significantly amend the Federal Radio and Television Law was filed before Congress. Some of the most important issues that will be introduced in this legislation are:- regulating the duopoly that currently exists in commercial television between Televisa and TV Azteca;- creation of new rules to govern programming and marketing;- increasing flexibility in the granting of permits to operate and exploit non-commercial stations;- limiting the licenses to 12 years; and- modifying the process for granting radio and television licenses.At present, all access to radio and television licenses is controlled solely by the Federal government. In order for an individual or entity to even aspire to obtain a license to install, operate and exploit a commercial television station, the government has to allocate and "open" a given radio or television frequency for such purpose. Once the frequency is available, the interested party has to apply for the license. The licenses are granted on a discretionary basis by the Federal government. Having clear rules outlining the manner in which the licenses will be granted and eliminating (or at least narrowing) the discretion that has been unfairly monopolised for decades should promote the opening of the market to new players.For more information visit: www.sct.gob.mx or www.senado.gob.mxFor more information please contact: aam@bstl.com.mx

SPAINCHANGES IN THE TELEVISIONREGULATORY FRAMEWORK

Law 53/2002, of 30th December 2002 on Tax, Administrative and Social Measures introduced important changes in the television regulatory framework. These changes are in advance of a new regime to be implemented by a new law on the audio-visual sector which is currently being drafted.Law 53/2002 establishes conditions for planning the procedure to grant licences to operate local TV stations (those covering municipalities). Although the Law governing local television was enacted in 1995, the market has been characterised by a lack of development. The new conditions are aimed to set up a National Plan for the Digital Local Television, which will govern the granting of licences in June 2004.The most important changes introduced by Law 53/2002 into the television regulatory regime are the following:- any person may have 100% ownership of the share capital of TV stations (removing the former 49% limit); and- the prohibition of cross-ownership has been strengthened; until now, cross-ownership was prohibited between national TV stations, although a shareholder of a national TV station could participate in the share capital of local TV stations; the new regulation also prohibits a shareholder of a national TV station from, directly or indirectly, participating in the share capital of another TV station; cross ownership among local TVs are is allowed subject to certain limits and provided that the territory covered is not coincident.For more information please contact: Aam@gomezacebo-pombo.com

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SWEDENFREEDOM OF SPEECH IN NEW MEDIA

On 1st January 2003 important amendments in the Fundamental Law on Freedom of Expression Act entered into force.The Act was adopted in the early 1990's and has since ensured the freedom to express thoughts and opinions on radio and television, in films and on video. The Act also safeguards against censorship in these media.The law reform updates the Act, and brings it into line with recent technical advances in electronic means of communication and provision of information from databases, first and foremost by the use of Internet and web-based technology.For traditional mass-media enterprises, the protection shall, as previously, be automatic. For players in new media (for example, providers of information on web sites), an opportunity is introduced to obtain voluntary protection through a publishing licence. The Radio and TV Authority is the governmental authority that issues such license.A prerequisite for the applicability of the new provisions is that the information be provided from a database, sensu lato, by the request of the recipient. Also, it must be impossible for the recipient to amend the content of the database.Apart from ordinary web sites, the amended Act covers the use of a number of new communication technologies. This includes "direct transmission request" (real time webcasting), print on demand and push technology.Some of the more significant and practical consequences that militate in favour of an entity's obtaining a publishing license are that activities that fall within the issued license, and the constitutional protection, are exempted from certain laws to the extent the application of these are contrary to the Act. Examples of such laws are the Personal Data Act and the Marketing Act.For more information visit: http://www.rtvv.seFor more information please contact: erik.bergenstrahle@lindahl.se

14. TELECOMMUNICATIONS

BRAZILEXPECTED CHANGES IN THE

COMMUNICATION POLICYOn 2nd January 2003, as part of the new administration of President Luis Inacio "Lula" da Silva, Federal Congressman Miro Teixeira replaced Juarez Quadros as Communication Minister.Representatives of telecommunications services operators and suppliers believe that although Mr. Teixeira has not been involved with telecommunications issues he can work to implement positive measures for the sector. Much is contingent upon how Mr. Teixeira will form his team.In public addresses given in the beginning of the year the new minister emphasised his intention to narrow the relations between the Communication Ministry and the Brazilian Telecom Regulatory Agency - Anatel, and to better structure the use of the Universalisation Fund paid by telecommunications services operators (FUST) in projects related to education and digital inclusion.For more information please contact: rapdecunto@pinheironeto.com.br

BRAZILRENEWAL OF FIXED TELEPHONY LICENSES

On 27th December 2002, Anatel, the Brazilian Telecom Regulatory Agency, published Guidelines for the renewal of the fixed telephony concession agreements which expire in 2005 and may be renewed for an additional 20 years, at the concessionaire's request.The Guidelines list some issues that are being revised by Anatel, such as public rates structure, interconnection policy and access number portability, but do not give details on how these core issues will be regulated.The separation of the local and long distance authorisation is being debated with a view to avoid cross-subsidy between the two services and guarantee fair competition between the owners of local infrastructure (who may also hold long distance licenses) and the long distance incumbent and new entrants.The new drafts of the Concession Agreements are under public comment until 17th March 2003.For more information please contact: rapdecunto@pinheironeto.com.br

COLOMBIACONTROVERSY DUE TO

EMERGENCE OF 3G STANDARDSThe two most important cellular operators in Colombia recently disclosed plans to offer third generation (3G) technology through their networks. BellSouth will soon offer services with the CDMA (Code Division Multiple Access) 1X standard.Comcel, on the other hand, is also in transition towards the GSM (Global System for Mobile Telecommunications) standard and has requested the Ministry of Communications to amend the grant contract in order to implement such change. Overall, it is a positive development for Colombia to have third generation technology to be used in our country.In contrast, The government, however, is studying the possible legal consequences of BellSouth having launched its product without previous governmental authorisation.This could cause the lapsing of Bell South's contract to render cell telephone services in Colombia. Some in Colombia think that even though these new opposing technologies will supply voice, data and video transmissions at very high speed, supposedly at lower prices, this could also present an obstacle to users wanting to change their service provider. The Ministry of Communications has expressed that its approval of the technological change by the operators will be conditioned to the implementation of a plan to minimise the impact on end users, who represent approximately 10% of the Colombian population. The foregoing coincides with the re-launching by the Colombian government of the bidding process to award Personal Communication Systems (“PCS”) operating system rights which will directly compete with the traditional operators of cell telephony.For more information visit: www.mincomunicaciones.gov.coFor more information please contact: cavelier@cavelier.com

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COLOMBIAPREPAID SERVICES TO BE REGULATED

Prepaid telephone cards, popular among cellular phone users in Colombia, were recently subject to a new regulation by the Commission of Telecommunication Regulation ("CRT") by means of Resolutions 489 and 526 of 2002. The regulation requires prepaid cards to clearly state the name of the operator responsible for providing such service as well as the operator's customer service telephone number where users of such service may have questions answered and claims taken.In addition, prepaid cards must include information on the time-unit used in calculating and deducting from the card balance charges for use and the applicable rates, which under no circumstance may be higher than those valid at the card’s issuing date.As for validity, service providers are required to inform prospective prepaid card buyers "by a prominently displayed notice" the term of validity of the card from its first use, which may be freely determined by the operator, as well as the expiration date, which cannot be less than one year.For more information visit: www.sic.gov.coFor more information please contact: cavelier@cavelier.com

INDIASUPREME COURT SETS ASIDE

TDSAT'S ORDER ON WLLA three member bench of the Supreme Court, on 17th December 2002 set aside an order of the Telecom Dispute Settlement and Appellate Tribunal ("TDSAT") which had upheld the Indian Government's decision to allow basic telecommunications operators to provide limited mobility services using wireless in local loop ("WLL").In January 2001, the Cellular Operators Association of India ("COAI") had opposed the Government's decision to permit basic telecommunications operators to offer limited mobility services using WLL before the TDSAT. The cellular operators contended that basic service providers and cellular operators should be given a level playing field with regard to license fees, access charges, spectrum allocation etc. However, the TDSAT ruled in favour of the basic telecommunications operators. Thereafter, the COAI filed a petition with the Supreme Court.The Supreme Court referred the matter back to the TDSAT, who have been directed to adjudicate the matter anew while keeping in mind the contentious issue of creating a level playing field. However, the Supreme Court declined to put a stay on basic operators offering WLL because to have done so would be detrimental to consumers and also because several basic operators had already provided WLL services.According to the Supreme Court, a viable solution to the controversy would be to level the presently unequal terms of WLL and cellular operators. By declining to stop basic telecommunications operators from taking new subscribers on WLL, the plans of companies such as Tata Teleservices and Reliance Infocomm to launch WLL services this month will not be changed. However, by setting aside the TDSAT order, the entire concept of limited mobility would have to be re-examined by the TDSAT.Pending a final word on the matter, and with each side claiming that the Supreme Court's decision is in its favour, the two-year-old turf war between cellular operators and basic telecommunications operators on the issue of limited mobility is far from over and the uncertainty has only been extended.

For more information please contact: vaibhav@nishithdesai.com

INDIATRAI ISSUES VOICE QUALITYNORMS FOR ILD OPERATORS

The Telecom Regulatory Authority of India ("TRAI") has, via a notification dated November 15, 2002, issued Regulations on Quality of Service ("QoS") for voice over Internet protocol ("VoIP") based International Long Distance ("ILD") Service, 2002 ("Regulations") for monitoring the quality of voice for ILD operators by establishing a benchmark to be met for the QoS rendered.The Regulations define QoS as the indicator of performance of a network and of the degree to which the network conforms to the stipulated norms. The Regulations deal with, among other things, acceptable levels of packet loss, jitter and signalling delay.The Regulations prescribe two kinds of services that the ILD operators are permitted to offer using VoIP; namely 'Toll Quality Networks' and 'Below Toll Quality Networks'. The aforesaid services are differentiated on the basis of the quality of the service, with the former being superior to the latter.The Regulations also establish that the testing agency for network quality will be the Telecom Engineering Centre ("TEC").TRAI has prescribed a two-step testing procedure for the ILD networks: lab tests, where the tests will be conducted at the actual VoIP installation, and pre-commissioning tests which shall extend to the entire international connection.The Regulations were finalised after taking into account the recommendations of an expert committee, which included representatives from the Department of Telecommunications, TEC, Centre for Development of Telematics and academia.For more information please contact: vaibhav@nishithdesai.com

ITALYINCENTIVES IN FAVOUR OF

NEW TELECOM INVESTMENTSWith the desire to assist competition among national industries and to soften the effects of the crisis in the telecommunications sector, on 27th November 2002 a Law (the "Law") was enacted introducing incentives for investments adopted by companies during fiscal year 2002.Telecommunications operators registering negative results in 2002 are exempted, under Article 6 of the Law, from paying the annual contribution requested of public licensees for the installation and provision of telecommunications networks to the public.The incentive is referred to investments for the installation of telecommunications broadband or digital networks and limited to operators having an annual turnover lower than Euro 100 million in 2002.In addition to the above measure, Article 87 of the Finance Bill (Law no 289 of 27th December 2002) which entered into force on 1st January 2003, provides for incentives in favour of any party having entered into agreements for the provision of digital or broadband infrastructures.With respect to satellite and digital cable systems, for 2003 an incentive has been granted for new purchases of receiving television digital earth apparatus (T-DVB) up to a maximum of EUR 150.Grants-in-aid of 75 Euro are also provided in favour of whoever buys, hires out or holds an apparatus for broadband data transmission.

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The grant-in-aid consists of a discount on the economic provisions of agreements entered into between users and operators after 1st December 2002.For this year, the total incentives available amount to EUR 31 million.The publication of the Decree providing the terms for the release of the incentives is expected, at latest, within March 2003.For more information visit: http://www.edscuola.it/archivio/norme/leggi/fin2003.htmlFor more information please contact: f.cugia@lexjus.com

MEXICOAMENDMENTS TO THE REGULATIONS

OF TELECOM COMMISSION?More than a year has passed since the Telecommunications Parliamentary Commission began to prepare a new Federal Telecommunications Law that would, among other things, clarify the role that the Federal Telecommunications Commission would play vis-à-vis the Ministry of Communications and Transportation. After a year of debates, the submission of a draft law to Congress and the subsequent boycott by opposition parties to such initiative, Mexico now finds itself with three different initiatives, and no clear resolution as to when, if at all, Congress will approve a new law. The Federal Telecommunications Commission (COFETEL) has indicated that it will seek to obtain greater autonomy from the Ministry of Communications and Transportation through an amendment to its internal regulations. COFETEL is seeking greater autonomy in order to become a true independent agency with authority to grant concession titles (licenses) and to impose penalties. Whether or not the President will amend COFETEL's internal regulations will depend on how the three initiatives are discussed in Congress during 2003.For more information visit: www.cft.gob.mxFor more information please contact: aam@bstl.com.mx

NEW ZEALANDFIRST ACCESS DETERMINATION

UNDER TELECOM ACTIn previous editions of "the l.i.n.k.", we followed the progress of the New Zealand Government's overhaul of the telecommunications regulatory environment. The reform process culminated in the enactment of the Telecommunications Act, 2001 (the "Act") on 20th December 2001. The Act established the Telecommunications Commissioner who is responsible for resolving industry disputes over regulated services.On 5th November 2002, the Telecommunications Commissioner released the first access determination under the Act. The determination related to price and non-price terms for interconnection between Telecom New Zealand Limited (New Zealand’s incumbent telecommunications service provider) and TelstraClear Limited. The interconnection price was set at 1.13 cents per minute which is a price described by the Telecommunications Commissioner as being comparable with Australia and United Kingdom, above the United States and Canada and below Ireland and continental European prices.For more information visit: http://www.comcom.govt.nz/telecommunicationsregulation/commissiondecisionFor more information please contact: david.boswell@bellgully.com

PORTUGALTELECOM INCUMBENT PURCHASES

PUBLIC FIXED NETWORK In December 2002, the Portuguese government approved the sale of the public fixed telecommunications network to Portugal Telecom (“PT”) – the Portuguese incumbent – for EUR 365 million.Pursuant to the terms of the concession agreement under which PT has been operating, all the public fixed telecommunication network’s clients, assets and contracts are to revert to the Portuguese State upon termination of the agreement in 2025. This will have a serious impact on PT’s net worth as a substantial amount of its investments will be in the above mentioned network.

PORTUGALTHE CLOSING OF ONIWAY

After the legal wrangling described in issue 17 of the l.i.n.k., Oniway, the new entrant in the market that had received a UMTS license, recently signed an agreement with its competitors – TMN, Vodafone and Optimus, the three Portuguese GSM operators who also hold UMTS licenses – to sell all its assets for approximately EUR 160 million.Oniway’s UMTS licence, which was granted in 2000, is now to be shared equally between the other three mobile phone operators – Optimus, TMN and Vodafone Telecel. The purchasing operators will not be required to pay for the spectrum they are acquiring, as the government considers that payment for the radio frequencies has already been made. However, these operators will be bound to fulfil the obligations undertaken by Oniway when its licence was awarded. Among other things,, they will have to develop and operate certain information society projects involving an investment of approximately EUR 500 million. These projects are, at this stage, being negotiated by the purchasing operators with the Portuguese government. The competition authorities have not taken any position on this transaction. Our belief is that no position will be taken, as this transaction was not considered to be a concentration transaction because Oniway had not yet initiated its activity in the market.For more information please contact: mc@vieiradealmeida.pt

SPAINAGREEMENT ON UMTS

The Ministry of Science and Technology and the four mobile operators holding a UMTS licence, reached agreement on 26th December 2002 on the timetable for launching UMTS services.Reportedly, the operators are committed to deploy the necessary network and to invest as needed to make the first tests of multimedia mobile services in the second half of 2003 and to reach full commercial development of the technology by the summer of 2004.To this end, the companies involved will guarantee investments of EUR 1,464 million during 2003, 20% above the figure for 2002. On the other hand, the Government will reduce the bank guarantees it required of the companies when it awarded the UMTS licences. By virtue of this agreement, about EUR 5 billion in bank guarantees will be returned to the companies.For more information please contact: Aam@gomezacebo-pombo.com

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SPAINNEW CHAIRMAN FOR

TELECOM MARKET COMMISSIONCarlos Bustelo has been appointed Chairman of the Telecommunications Market Commission ("TMC"). His predecessor, José María Vázquez Quintana, was head of the regulatory agency since its creation in 1996.Mr. Bustelo has occupied different top management positions both in the public and private sectors. He was Minister of Industry in 1979 - 1980.The Board of the TMC consists of a Chairman, a Vicechairwoman, seven Directors and a Secretary with no voting rights. Its members are partially renewed for 6-year periods.Together with the appointment of the new Chairman, three directors were re-elected and the economist Crisanto Plaza substituted for another, Juan José Zubeldia.For more information please contact: Aam@gomezacebo-pombo.com

UKAUCTION OF 3.4 GHZ RADIO

SPECTRUM FOR 2003On 9th January 2003, the Government announced that it would auction licenses for the 3.4 GHz spectrum. What effect will this have? Increase wireless broadband? Just wireless telephony? If all blocks of spectrum are not auctioned, the licences will remain available for up to a year after the auction. The announcement states that applications for licences will be invited from March 2003, with the auction itself taking place in May 2003.Although further details are to be made available shortly, the auction will be for 15 regional licences to be granted within the UK, with one licence available for each region. Unlike previous auctions, it is proposed that successful applicants will be required to make payments in stages, rather than on licence award only. There are to be no roll-out obligations in the licences and no service restrictions on licensees.This announcement only covers auctions of 3.4 GHz spectrum. Consultations conducted previously with regard to "Public Fixed Wireless Access" considered the auctioning of the 10 GHz band. It is understood that further work is being carried out with regard to spectrum packaging before proceeding with the licensing of spectrum within this band. In addition, there will be a consultation concerning the making available of spectrum up to the 3.6 GHz waveband for the provision of broadband services.For more information please contact: Cdl@olswang.co.uk

UKCOMMUNICATIONS BILL INTRODUCED

On 20th November 2002, the Communications Bill was published after being introduced in the House of Commons on 17 November 2002. The Bill sets out the duties and functions for the new sectorial super-regulator, the Office of Communications ("Ofcom") in relation to electronic communications networks and electronic communications services, broadcasting and radio-communications.The proposed provisions for electronic communications networks and services will substantially overhaul the current telecommunications licensing and regulatory regime as set out in the Telecommunications Act 1984. Further, the existing Telecommunications Code, which is set out at

Schedule 2 to the Telecommunications Act 1984 will also be substantially amended. The Code is currently applied through licenses granted to public telecommunication operators, enabling them to draw upon rights of access to public and private land and expedited planning procedures.The Communications Bill also amends part of the Wireless Telegraphy Act 1949 and 1998, to include powers for Ofcom to introduce spectrum trading.The Radio-communications Agency has completed its initial consultation on the options available for spectrum trading. Another new concept is "recognised spectrum access", which enables spectrum users currently not required to obtain a licence, for example, foreign broadcasters broadcasting into the UK, to obtain "recognised spectrum access" rights.This new regulatory category enables the relevant spectrum to be registered in the UK, and to be protected from interference to a greater or lesser degree. The ability to provide for spectrum trading derives from the EU Directives on electronic communications networks and services.The Communications Bill also provides for Ofcom to impose penalties. Where operators are in breach of a network or service authorisation, or of the general conditions which may apply to such authorisations or have not paid any authorisation fee which may be levied, Ofcom may issue a notice of contravention, which, if its terms are not met, will be followed by an enforcement notice.In the case of a breach of a condition of an authorisation, both breach of the notice of contravention and breach of the enforcement notice may, on further notice, give rise to the imposition of penalties.Appeal procedures are also provided for in the Bill. Appeals are made to the Competition Commission Appeal Tribunal.For more information please contact: Cdl@olswang.com

UKOFTEL CONSULTS ON WHOLESALE

LINE RENTAL PRODUCTOn 14th November 2002, Oftel published a consultation document on Wholesale Line Rental ("WLR"). Oftel's proposals relate to enhancements to the WLR product, which was introduced by British Telecom ("BT") in September 2002.Oftel's consultation considers services in addition to line rental and call conveyance supplied by BT and considers that these should be made available to WLR service providers. In order to achieve this, BT's ordering system will need to be upgraded.Other adjustments will need to be made to enable a service provider's customers to be able to dial helpline numbers and be directly routed to the provider's service centres.Oftel also considered the position of WLR service providers who intend to set up a service using Carrier Pre-Selection ("CPS"). Where customers are transferred to a WLR-based product where CPS routing is used, the two services should be activated, as far as possible, contemporaneously.In the short term, however, a delay is likely for any enhanced WLR product activation. Oftel has tasked the industry to work together to reduce or eliminate potential delay, which ideally should not exceed one day. In relation to the enhancements, Oftel's initial view is that the current determined WLR charge and the means of allocation of development costs should remain in place.For other options which Oftel is requiring BT to make available to WLR service providers, such as barring of indirect access calls and routing directly to service provider help-lines, the set-up costs for these network upgrades will be recovered from both BT and the WLR service providers.

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In its consultation, Oftel highlighted the need to protect customers from mis-selling and the transfer of service without the customer's knowledge (so-called "slamming").To address this, Oftel will require WLR service providers to develop a code of practice on sales and marketing, which will be subject to Oftel approval. Oftel is also proposing that between the placing of a new order by a WLR service provider and the transfer of service by BT, there should be a period of 10 working days. Both the losing operator and the WLR provider are to contact the customer in writing advising of the change in their service.For more information please contact: Cdl@olswang.co.uk

UKLLU: OFTEL TO PROVIDE CO-MINGLING

On 11th December 2002, Oftel published a consultation document addressing the issue of co-mingling of telecommunications equipment at BT main distribution frame ("MDF") sites.BT is required, by a direction made by Oftel of 10th October 2001, to provide to telecoms operators wishing to obtain from BT unbundled lines ("Local Loop Unbundling Operator" or "LLUO") a co-mingling product.Under the direction, BT must offer co-mingling to an LLUO or give reasons why it will not.Co-mingling enables sitting of operator equipment in an MDF exchange site in a space which is suitable for the location of similar BT equipment, in accordance with the LLU Agreement and without any permanent physical partition between operator equipment and relevant BT equipment.The Oftel investigation leading to the current consultation arose out of a number of complaints by LLUOs that not only was BT including in its offers for co-mingling specifications for physical partitions, but also requiring from LLUOs an up-front fee for the erection of partitions.Oftel considers that this approach does not meet the terms of the direction. The consultation document confirms Oftel's original direction and requires BT to give reasons for any refusal of a request in accordance with that direction.Oftel also proposes to impose a set of obligations to ensure that BT meets the terms of the co-mingling direction. Either BT forwards to a requesting LLUO a co-mingling offer within 28 days of receiving a request or BT should promptly provide reasons for any refusal, such reasons to be provided in writing and copied to Oftel.Oftel is also proposing to modify BT's operating licence to ensure that speedy enforcement mechanisms are available should BT breach the terms of the direction again.For more information please contact: Cdl@olswang.co.uk

15. UNIVERSAL SERVICE

AUSTRIAPROCEDURE FOR COST ALLOCATION

Under the Austrian Telecommunications Act ("TKG"), the incumbent telecommunications operator and only designated SMP operator in the fixed voice telephony market, Telekom Austria ("TA"), is obliged to provide Universal Service.Other telecommunications operators must contribute to the net costs of TA if their turnover exceeded Euro 18,168.280 According to section 29 of the Telecommunications Act, the Universal Service provider may not request

such co-funding of the Universal Service net costs if its market share on the "market for public voice telephony" in the respective year amounts to 80% or more.On 20th December 2001, Telekom Austria submitted its request for funding under the Telecommunications Act for its provision of Universal Service in 1999.The regulator, Telekom-Control-Kommission then initiated a procedure to determine the relevant costs and, where appropriate, to determine the contributions of other operators to that net cost.The request was heavily contested by the other operators who faced significant liabilities to TA. The regulatory authority's interim decisions caused significant controversy.For instance, the Telekom-Control-Kommission decided that the relevant "market for public voice telephony", in its view, consisted of both fixed and mobile voice telephony markets.The effect of this interpretation was to fix TA's market share at under 80% in 1999 (even though, on the fixed voice telephony market, it still enjoyed a virtual monopoly) thus granting TA the right to the co-funding.However, no final decision was awarded in this procedure, because on 4th October 2002, TA withdrew its request due to problems in calculating the net cost to be refunded; Telekom Austria, however, stated that it intends to keeps open the possibility of submitting a new request once having calculated the Universal Service cost.For more information visit: www.rtr.atFor more information please contact: Stephan.polster@dbj.at

MEXICOMEXICAN UNIVERSAL SERVICE FUND

The Federal Telecommunications Law of 1995 incorporated a number of provisions outlining the social need to bring telecommunications services to all Mexicans.The Ministry of Communications and Transportation (SCT) was in charge of creating adequate programs to ensure this social goal. President Fox´s administration has sought to achieve such purpose through the e-Mexico project.Additionally, the administration is proposing to create a universal service fund that would provide the necessary resources to build the infrastructure necessary to bring telecom services to distant areas.According to the SCT, in contrast to other countries, no subsidies would be granted to the telephony services provided in such areas, as it is difficult to guarantee that the end-user located in rural areas will have the resources to pay for the service.One of the most important challenges is to define the policy for financing the universal service fund and determining the costs of its implementation.The universal service fund will be funded by both private and public resources deposited into a special trust that has already been created by the Federal Government.As a first step, the government has allocated 750M MXN, from its budget to promote the development of the necessary telecom infrastructure. This amount will be allocated by the Federal Telecommunications Commission among the local and long distance carriers interested in establishing telecommunications infrastructure in non-profitable areas.Telmex's proposal is to have long distance carriers assign between 0.5% to 1% of each private operator’s net income to the fund. The SCT proposal calls for the allocation of 1% to 1.5% of the operators’ income to the fund, with the understanding that such amounts would be deductible for tax purposes.For more information visit: www.cft.gob.mx

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For more information please contact: aam@bstl.com.mx

16. WEB SITES

EUNATIONAL LEGISLATION ON

E-COMMERCE, THE EASY WAYThis IST-funded project provides users with tailored answers about national e-Commerce regulation throughout the EU.eLexPortal.com is an e-Commerce Legislation and Regulatory Policy Portal. It offers full coverage of national legislation on e-Commerce and a single entry point for visitors giving data on policy and regulation in all the EU member states, a Directory service, sources of information and links to relevant web sites. National legislation and regulations are collected by experts in each EU Member State. The result is legal information available and tailored by means of a "Regulatory Engine" which gives clear explanations on e-Commerce regulatory issues for the business entrepreneur, with specific relevance to particular business activities and processes.Mr Robert Verrue, Director-General of the EC's DG INFSO, referred to eLexPortal during the SME Union Workshop held in the European Parliament at the beginning of the project, as a European Commission action to enhance trust and confidence of EU entrepreneurs and citizen about e-Commerce.eLexPortal is now seeking support from legal organizations active in the e-Commerce domain to continue providing this service throughout Europe.eLexPortal.com is run in partnership by two European specialist firms, ERIN S.A. and Cullen International S.A. with the support of the European Commission. For more information visit: www.eLexPortal.comFor more information please contact: carlo@erin.lu

COMMENTARYCANADA

OWNERSHIP AND CONTROL RESTRICTIONS:TIME FOR A CHANGE?

by Hank Intven and Anthony KeenleysideMcCarthy Tétrault s.r.l. / LLP

On 19th November 2002, Canadian Industry Minister Allan Rock released a discussion paper on foreign investment restrictions as they apply to Canadian telecommunications common carriers. He referred the issues related to investment restrictions to the House of Commons Standing Committee on Industry, Science and Technology. The committee was requested to report back to the Canadian government by the end of February 2003.These recent events raise several questions. First, what is the likelihood that the ministry will make changes to the restrictions? Second, if changes are made, will they enable non-Canadians to establish new telecommunications networks or significantly increase their participation in existing Canadian facilities-based telecommunications common carriers? This Legal Update Article examines these questions and discusses recent

broadcast sector developments and the public hearing process, which is scheduled to begin in late January 2003.

BACKGROUNDUnlike some other countries, such as the United States, Canada did not, until recently, impose any foreign ownership restrictions on telecommunications carriers. During the late 1980s and early 1990s, the federal government placed restrictions on non-Canadian ownership and control of some facilities-based telecommunications carriers. In 1984, ownership controls were placed on the newly-licensed cellular communications carriers. In July 1987, the minister of communications stated that Canadian ownership and control restrictions would be placed on all facilities-based telecommunications carriers. This approach would accommodate the grandfathering of the long-standing foreign control of what was then British Columbia Telephone Company. Formal restrictions were also placed on Canada's overseas telecommunications carrier, Teleglobe Canada in 1987 and on the country's domestic satellite service carrier, Telesat Canadian 1991.It was not until 1993 however that such policies became entrenched in law. With the passage of the new federal Telecommunications Act, all facilities-based telecommunications common carriers ("Canadian carriers") had to qualify as Canadian owned and controlled corporations. In order to do this, at least 80 per cent of their boards of directors had to be "Canadians" (as that word was subsequently defined in Regulations). In addition, Canadians had to own at least 80 per cent of the voting shares of the corporation. The key requirement was that the corporation could not be "otherwise controlled by persons that are not Canadians." This last criterion was intended to ensure that a corporation's affairs could not be arranged so that the entity would appear to be controlled by Canadians while the true decision-making power would lie with foreigners.In late 1994, a year after the introduction of the new legislation, the government issued the Canadian Telecommunications Common Carrier Ownership and Control Regulations. The Regulations defined a "Canadian", and expanded the percentage of voting shares or similar interests that could be held by non-Canadians. Under the Regulations, a Canadian carrier continued to qualify as "Canadian" if the 80 per cent voting interest that was not owned by foreigners was owned by a "qualified corporation." A corporation would be qualified if at least two-thirds of its voting shares were owned by Canadians and again, if it were not "otherwise controlled" by non-Canadians.The cumulative effect of the ownership restrictions set out in the Act and the Regulations was that non-Canadians can beneficially own 20 per cent of the voting shares of the Canadian carrier and an additional one-third of the voting shares of a "qualified corporation". Of course, various innovative financing arrangements have been permitted, involving non-voting shares and debt instruments, provided that their impact has not been to shift control of the undertaking to non-Canadians.There have been subsequent pressures on the Canadian government to reduce or remove the foreign ownership restrictions in the communications industry, notably from the US during the negotiations that led to the World Trade Organisation’s ("WTO") 1997 Agreement on Basic Telecommunications, know as the Fourth Protocol to the General Agreement on Trade in Services ("GATS"). There have also been calls to review the foreign ownership regime from some Canadian industry sources, as well as from government-commissioned reports related to telecommunications. Since 1984, there has been some liberalisation of the foreign ownership regime. As part of its GATS commitments in 1997, the federal government of Canada agreed to remove all restrictions on foreign investment in international submarine cables that are licensed in Canada. At the same time, the government also agreed that mobile and fixed satellite systems owned and controlled by foreign service providers may be used to provide service in Canada.

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WHY NOW?In February 2002, the government released its Innovation Strategy, a plan to increase jobs and economic growth through fostering a more competitive economy. According to the discussion paper, the Innovation Strategy is designed to "ensure that Canada enhances its status as a magnet for foreign direct investment". This approach would appear to favour relaxation or possible elimination of the current Canadian ownership and control restrictions. Indeed, the principal focus of the discussion paper is to question whether the current rules inappropriately inhibit or impair access to capital on acceptable terms in a very capital-intensive industry. The Canadian nationalist lobby has been relatively quiet in its response to the Innovation Strategy. Some sceptics have asked whether the Innovation Strategy actually represents a policy shift in the government's overall approach to the question of ownership and control of telecommunications facilities in Canada, or if it will only serve to buttress the status quo. However, no one has called for outright rejection of any consideration of this issue, a response one might have expected a few years ago. As one observer noted, the issue has not moved from the business pages of newspapers to the political or news columns.Could this be because the foreign investment horse is already out of the telecom barn? In recent months we have witnessed the end of SBC Communications Inc.'s 20 per cent investment in Canada’s largest telecommunications carrier, Bell Canada. For its part, AT&T Corp. has stated that it will not maintain an equity stake in its namesake, AT&T Canada, the largest Canadian alternative telecommunications service provider, when it emerges from court- supervised restructuring proceedings in early 2003. However, this retrenchment may equally be reflective of larger global downturn in telecommunications investment activities, rather than a specific reaction to the existing rules.At the international level, under the GATS, a signatory must grant service suppliers of another member country no less favourable market access treatment than that set out in the signatory’s Schedule of Specific Commitments.In fact, except as set out in that schedule, there is a prohibition against a member adopting or maintaining any limitations on the participation of foreign capital by way of maximum percentage limits on foreign shareholding. In addition, the GATS obliges members to enter into successive rounds of negotiations, with a view to progressively higher levels of liberalisation.While Canadian ownership and control restrictions have been incorporated into Canada's schedule to the GATS Fourth Protocol, there are exceptions. There are no longer any ownership limitations on international submarine cables, mobile satellite systems or fixed satellite systems (either for intranational or international service provision).Industry sources have indicated that the release of the discussion paper is not linked to the GATS, but that the process represents a genuine opportunity for change. Moreover, they emphasise that the government response to the process will be dependent upon what is said to the committee during the public consultation phase.

BROADCASTING SECTOR DEVELOPMENTSGenerally, similar ownership rules as those applicable to the telecommunications sector also apply to Canada's broadcasting sector. However, the broadcasting rules are not part of the review initiated by the minister. In fact, the responsible minister of Canadian heritage has made it clear that she does not favour any liberalisation of the ownership rules applicable to that sector. This position has already provoked a sharp reaction from representatives of the broadcasting distribution industry (cable and direct-to-home satellite carriers) who argue that, between their delivery mechanisms and those of the carriers, there is no distinction that would justify a different ownership framework. They also point out that both compete in the delivery of Internet services, that cable will soon be able to

offer telephony and that some telephone companies have been licensed to deliver broadcasting services.A separate review of the broadcasting sector is currently underway before a different Parliamentary committee. That committee may address ownership issues in its report. However, in light of the responsible minister's current views on the subject, any committee recommendations in this area may not move forward in the near future.The separate ownership reviews highlight the two solitudes of communications regulation in Canada. The Canadian Radio-Television and Telecommunications Commission ("CRTC"), which regulates both the telecommunications and broadcasting sectors, has made numerous rulings that when a facilities-based entity operates as a telecommunications service provider, it will be regulated under the Telecommunications Act. However, when that same entity provides broadcasting services, the CRTC has ruled that it will be licensed under the Broadcasting Act. Consistent with the convergence trend of the 1990s, several cable TV licensees expanded their existing distribution infrastructures, in order to offer various telecommunications services, ranging from dark or lit fibre capabilities to Internet and business telecom services. Similarly, a number of telephone companies levered their networks to offer licensed cable distribution services. Although arguments about synergies and convergence may have been persuasive to investors (and the regulator, to the extent that a broadcasting licence was required), the regulation of each activity has continued within separate statutory frameworks.Given the current split in ministerial approaches, the cable and direct-to-home distribution sector has two choices: to convince the minister of Canadian heritage to track ownership changes on the telecom side of the ledger, or to restructure itself. This would typically involve a "deconvergence" strategy in which the cable company would spin off its telecom assets into a separate legal entity that could benefit from liberalised ownership rules and the increased financing flexibility that could ensue.Implicit in any such reorganisation is the concession that convergence and synergies of the 1990s are now outweighed by the tangible benefits offered through relaxed ownership conditions. However, the practical issues will be legion. To take just one obvious example, how will the affected parties allocate the capital cost of digging trenches for coaxial cable or fibre used for broadcasting activities as well as the separate fibres used for telecom services? How will companies apportion the associated costs? Should the commercial treatment match that required by the regulator? These are not insuperable difficulties, but they will have to be addressed in a thoughtful manner.

PUBLIC HEARINGS AND THE COMMITTEE'S MANDATEThe Parliamentary committee will conduct a number of public hearings into 13 questions posed in the discussion paper and to report back to the government, with recommendations.The questions cover three broad topics. First is the issue of overall investment in the telecommunications sector and whether the current ownership restrictions are getting in the way of adequate access to capital, especially when measured against investment levels of other countries. The second topic relates to the experience of other countries and the relevance their approaches may have for Canada. For example, is it appropriate to apply the existing rules only to the incumbent carriers or possibly just to the "large" incumbents (presumably Bell Canada in Ontario and Quebec and TELUS Communications in Alberta and British Columbia at a minimum)? Could existing ownership restrictions be replaced with a more flexible licensing regime that would theoretically intervene only in the case of "major" take-over proposals?The final area for consideration relates to the actual timing of any changes, assuming that changes are implemented. The chair of the committee, who is from the Liberal party, has stated that the review cannot be completed until at

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least the end of March 2003. One of the two vice-chairs, representing the major opposition party, stated that a more realistic timetable would be for an April - June 2003 report. It is our understanding that the committee will not begin to hear submissions from interested parties until 27th or 28th January 2003.

HOW TO RESPOND?The timing of the discussion paper's release suggests the government's commitment to the results of the review process. It has not been issued in the heat of WTO negotiations and it has been put forward at this point on a unilateral basis. The review of Canada’s telecommunications ownership and control restrictions is not merely a bilateral or multilateral "bargaining chip", to be pursued only if other countries reduce their subsidies of agricultural products. Of course, that does not preclude the committee from recommending - or Parliament enacting - a relaxation of the ownership framework that would apply only in favour of nationals (or corporations that were controlled by such nationals) from countries that had reciprocal regulatory frameworks in place. That said, the discussion paper does not, of course, reflect any legal obligation on the part of the government to effect policy change.There has been considerable discussion about the role of backbench members of Parliament, who have chafed at their relative lack of authority or influence in the decision-making process. Having adopted this rather unusual process at this time, the minister may have heightened expectations among affected committee members, that their review work will be acted upon.Those who favour a change are thus faced with something of a Hobson's Choice. It may be that no change will emerge from the review. However, this is the first formal review of the Canadian ownership and control restrictions since they were implemented more than eight years ago. If advocates of change do not participate in the process, telecommunications nationalists who do respond will be able to assert that there is no need to change, as demonstrated by the lack of interest from the internationalists. Our contacts at Industry Canada have confirmed that this is a very real risk to those who do support change. In the words of one spokesperson: "if you want change - be heard!"The discussion paper makes very clear in its questions that the government is open to the possibility of asymmetrical liberalisation. This means that the rules could change for "smaller" players without the government necessarily having to countenance the possibility of a take-over bid for Bell Canada or TELUS Communications. This opens up the possibility that numerous smaller participants could also enter the telecommunications sector on a facilities-based basis in niche markets. If the rules were changed, this additional market participation by non-Canadians could clearly take place on a stand-alone basis. Alternately a foreigner with capital might partner with a Canadian within an existing telecommunications infrastructure, using an ownership model that is not currently acceptable, because the foreigner may feel that it cannot adequately control what happens to its capital. A final reason for participating in this review is the opportunity that it presents to propose additional, related changes to the legislation. One obvious area relates to the potential for double regulation of a transmission facility’s owner and its operator. The typical example is the case of the dark fibre IRU, which is granted by an owner to an operator, both of whom must currently qualify as Canadian carriers. This review process may offer an opportunity for parties to argue that regulation should be limited to one, rather than both, of the parties.Another potential technical change involves the case of an international telecom network, in which the Canadian portion is an important, but clearly minor, segment. The traditional example is the telecom network linking dozens of US centres and perhaps one or two Canadian sites. As matters currently stand, one entity can own and operate the entire US portion of

the network but - assuming that it is not "Canadian" - must delegate the small Canadian portion to a qualified entity. This is arguably economically inefficient and, to some proponents of relaxed-ownership restrictions, appears to be unduly preferential treatment of the Canadian facilities-based carriers.

PROCESS MATTERSAs noted above, the Parliamentary committee will likely hold public hearings, beginning in late January 2003, to hear submissions from interested parties. At the moment, the committee is creating a list of entities to invite to make representations to it. The very practical challenge that this approach presents is that the committee may be unaware of specific (generally non-Canadian) parties who would like to appear.While the outcome is by no means certain, the current review presents involved parties with a unique opportunity to make their views known to the federal government in a relatively direct and cost-effective manner. If the rules are in fact changed, the pressure to make similar changes to the distribution sector of the broadcasting industry may become insurmountable for the government, regardless of the outcome of the broadcasting sector review. A detailed overview of the Canadian ownership and control rules can be found in a paper entitled "Canadian Ownership and Control of Canadian Communications Companies" by Grant Buchanan, Monique T. Lafontaine and Lorne P. Salzman of McCarthy Tétrault. The paper can be found on our web site at mccarthy.ca. The paper reviews approaches taken by two key regulators, the CRTC and Industry Canada, in applying the ownership and control rules during the past six years. It concludes with a review and summary of the key factors considered relevant in control reviews. Accordingly, broadcasting entities - and those who might be interested in acquiring positions in such entities but cannot because of ownership restrictions - must consider very seriously the merits of intervening in this process as well. For more information please contact: hintven@mccarthy.caor akeenleyside@mccarthy.ca

EVENTYOUNG LAWYERS WRITING COMPETITION

Organised by Committee Cm (Communications Law) on the occasion of the Conference of Committees C (Antitrust and Trade Law) and Cm, to be held in

Budapest on 19-20 May 2003.

IBA Committee Cm is to launch a special project for young lawyers – the ‘Committee Cm Young Lawyers Writing Competition’.Lawyers up to and including the age of 35 may participate by submitting a paper on the following topic: ‘Looking to the future: towards the exclusive application of competition law’.The subject of the paper concerns the growing trend in a number of the main liberalised electronic communications markets, as exemplified in jurisdictions such as the United States, the European Union and Australia, away from sector-specific rules towards control, particularly of undertakings with market power, through application of general competition law principles, or a hybrid of regulation and competition law as in the European Union.This trend is seen by some critics as one which is accelerating too quickly, with some markets yet to mature and therefore in the meantime being in need of continuing specific regulation as well as the back-up of competition law.The key factor is the interface between regulation and competition law, whether they are complementary or mutually exclusive and the test, if any, to apply to determine how, when or whether competition law should succeed to or have primacy over sector regulation.

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Other considerations include the extent to which cross-ownership and/or structural limitations and requirements (often stemming from national policy concerns) can and should be applied in the future, particularly in the light of the forthcoming restrictions on the scope and nature of authorisation conditions that will be permitted pursuant to the EU Authorisation Directive.

RULES FOR PARTICIPATION1. The Young Lawyers Writing Competition is free to enter. It is open to lawyers up to and including the age of 35 (i.e. lawyers born in 1968 or later), whether or not they are members of the IBA.2. Papers should be based on the following topic: ‘Looking to the future: towards the exclusive application of competition law’. 3. Papers should be original, unpublished works. They should not be under consideration for any commercial contract by any publishing house. The author is warranting his/her unrestricted copyright to the paper submitted.4. Participation with a pen name will be permitted, provided that an operative contact and a valid address are provided for a term until 31 May 2003. If authors using pen names are chosen as finalists, they will be required to prove their identity, age and qualification as lawyers. If these requirements are not met, the candidature will automatically fail. Submissions with pen names will in any case need to be disclosed by all participants once the winner has been chosen, on the request of the Judging Committee. Pen names are mandated for lawyers working in the law firms of the members of the Judging Committee, i.e. Olswang and Jones Day. In case of papers submitted under a pen name, the e-mail address or any other reference of the sender should not disclose the real details of the participant. In the case of e-mail addresses, for example, this can be achieved by using free e-mail services.5. Joint submissions will be permitted. In this case, the prize will have to be split among the joint participants in the way they consider appropriate.6. Papers should be sent by e-mail, preferably as Word documents, to the following three recipients: - Bernard Amory, Jones Day, Brussels, at: bamory@jonesday.com;- Colin Long, Olswang, London, at: colin.long@olswang.com;- Michael Bernasconi, Baer & Karrer, Zurich, at: m.bernasconi@baerkarrer.ch.7. Papers should be written in English and should be between 7,000 and 14,000 words in length. The text should be double-spaced. Each paper should contain the author’s name, or the author’s pen name, and a valid contact address on the front page.

8. Papers must be submitted and received by Sunday 16 March 2003. Papers received after this time will not be considered.9. The Judging Committee will consist of two former Chairs of Committee Cm, Bernard Amory and Colin Long, who will judge the papers submitted on the basis of legal argumentation, research, style, logic, originality and overall quality of the content. An international, rather than a strict domestic, approach will be appreciated.10. The decision of the Judging Committee will be communicated to the winner and four additional finalists between 26 April and 2 May 2003 along with a request for their identification as per rule 4.11. The winner will be announced by Friday 2 May 2003. The decision of the Judging Committee is final and no correspondence will be entered into. The decision may be published on the IBA web site or in IBA publications or communicated to IBA members by any other means. Winners will be contacted at the address indicated by them on the paper. They will be requested to provide a biographical note giving details of their legal careers, studies and professional appointments.12. The prize for the winning paper is as follows:- free registration for the Telecommunications and Competition Law Conference of the IBA Committees C and Cm to be held on 19-20 May 2003, in Budapest, Hungary (including the lunch and dinner of 19 May).- EUR 800 to cover travel expenses and hotel fees (or part thereof). This sum will be paid once the winner gives sufficient detail to the IBA and to Michael Bernasconi on how this will be allocated. - the chance to present the paper on the first day of the Conference.13. Committee Cm has the right to publish a selection of the papers submitted, including but not limited to the winning paper (either the full text or extracts thereof) up to 12 months after the competition has ended; this includes but is not limited to publication in the Conference documentation and/or on the IBA web site and/or in the Committee Cm Newsletter and/or in other IBA publications. In any event, the name of the author will be indicated appropriately. Authors should include a biographical note giving details of their legal careers, studies and professional appointments. Papers received that are not in this form may not be considered.14. Each participant may only submit one paper. Employees of the IBA or Officers of any IBA Committee are excluded from the competition.15. The IBA, Committee Cm, the Judging Committee and the organisers of the competition are not responsible for the loss, damage or non-arrival of any paper, nor for any costs or expenses incurred in the preparation or submission of any paper.16. Participants shall be expected to have read and accepted the above rules.For more information please contact: m.bernasconi@baerkarrer.ch

ISSUE 18 JANUARY – FEBRUARY 2003

EDITOR / EDITORIAL BOARDEDITOR IN CHIEF: Stephan LE GOUEFF, , Luxembourg

MANAGING EDITOR: Neil I. JACOBS, NI Jacobs & Associates, New York

Country Firm Contact E-mail Site

EUROPEAustria Dorda, Brugger & Jordis Stephan POLSTER Stephan.polster@dbj.at www.dbj.at

Belgium Altius Herman DE BAUW herman.debauw@altius.com France Kahn & Associés Sabine LIPOVETSKY slipovetsky@kahnlaw.com www.kahnlaw.comFinland Roschier-Holmberg & Waselius Craig THOMPSON Craig.thompson@rhw.fi www.rhw.fiGermany Wessing Jürgen A. HEILBOCK j.heilbock@wessing.com www.wessing.de

Ireland McCann Fitzgerald Damian COLLINS Mccann-Fitzgerald@pophost.eunet.be www.mccann-fitzgerald.ie

Italy Studio Legale Tonucci Fabrizio CUGIA fcugia@Tonucci.itLuxembourg / European Union LE_GOUEFF@vocats.com Stéphan LE GOUEFF Le_Goueff@vocats.com www.vocats.com

Norway Thommessen Krefting Greve Lund Arne RINGNES Arne.ringnes@tkgl.no www.tkgl.no Portugal Vieira De Almeida & Associados Margarida COUTO mc@vieiradealmeida.pt Spain Gomez Acebo & Pombo Almudena ARPON deMENDIVIL Aam@gomezacebo-pombo.com www.gomezacebo-pombo.comSweden Advokatfirman Lindahl Erik BERGENSTRÄHLE erik.bergenstrahle@lindahl.se www.lindahl.se Switzerland Bär & Karrer Michael BERNASCONI m.bernasconi@baerkarrer.ch www.baerkarrer.ch The Netherlands Kennedy Van der Laan Martine DE KONING martine.de.koning@kvdl.nl www.kvdl.nl

Turkey Hergüner, Bilgen & Özeke Hakki GEDIK hgedik@hbo-law.com.tr

Ukraine Grischenko & Partners Sergei A. VOITOVICH btv@lawgris.carrier.kiev.ua www.lawgris.kiev.ua United Kingdom Olswang Colin LONG Cdl@olswang.co.uk http://www.olswang.co.uk

NORTH AMERICACanada McCarthy Tétrault

Montreal: Michel RACICOTToronto: Lorne SALZMAN

mracicot@mccarthy.calsalzman@mccarthy.ca

www.mccarthy.ca

USA Fried Frank Harris Shriver & Jacobson Thomas P. VARTANIAN Vartath@ffhsj.com www.ffhsj.com

CENTRAL & SOUTH AMERICAArgentina Estudio Millé Gonzalo ZORRILLA gonzaloz@mille.com.ar www.reis.com.ar/estudiomille Brazil Pinheiro Neto – Advogados Raphael de CUNTO rapdecunto@pinheironeto.com.br www.pinheironeto.com.br Chile Carey y Cía. Ltda. Alfonso SILVA asilva@carey.cl www.carey.cl

Colombia Cavelier Abogados Daniel PEÑA cavelier@cavelier.com www.cavelier-abogados.com

Mexico Barrera, Siqueiros y Torres Landa, S.C. Andrés ACEDO aam@bstl.com.mx www.bstl.com.mx

Venezuela Hoet Pelaez Castillo & Duque Fernando PELAEZ-PIER fpelaez@hpcd-abogados.com www.hpcd-abogados.com

ASIA PACIFICIndia Nishith Desai Associates Vaibhav PARIKH vaibhav@nishithdesai.com www.nishithdesai.com Malaysia Zaid Ibrahim & Co. Julian DING julian.ding@my.zaidibrahim.com China /Hong Kong Johnson Stokes & Master David ELLIS dae@jsm.com.hk New Zealand Bell Gully David G. BOSWELL david.boswell@bellgully.com www.bellgully.com

AFRICA & MIDDLE EASTEgypt Kamel Law Office Mohamed KAMEL kmlaw@kamelaw.com www.ie-eg.com/kamellaw Israël Soroker – Agmon Law Offices Jonathan AGMON mail@ip-law.co.il Lebanon Alem & Associates Leila LAILA leila@alemlaw.com www.alemlaw.com Nigeria Paul Usoro & co Paul USORO paul@paulusoro.com www.paulusoro.com South Africa Webber Wentzel Bowens Peter GREALY peterg@wwb.co.za www.wwb.co.za UAE Afridi & Angell Antony WATSON aaadh@emirates.net.ae www.afridi.com

TABLE OF CONTENTS BY COUNTRYCountry Title Category

AUSTRIA Procedure for cost allocation UNIVERSAL SERVICE

BRAZIL

Internet crimes COMPUTER CRIME

On-line Official Gazette deemed valid ELECTRONIC GOVERNMENT

Changes in Internet access INFORMATION SOCIETY POLICY

Expected changes in the Communication Policy TELECOMMUNICATIONS

Renewal of fixed telephony licenses TELECOMMUNICATIONS

CANADA

Ontario imposes Internet consumer contract protections CONSUMER PROTECTION

Webtrading disclaimers held unenforceable ELECTRONIC COMMERCE

Higher life form held not patentable INTELLECTUAL PROPERTY

CHILE Free trade agreement between Chile and USA MARKET ACCESS

COLOMBIA

Limit to personal data access in government databases DATA PROTECTION

Regulation on protection of minors on the Internet INFORMATION SOCIETY POLICY

Options to reduce thee digital gaps INFORMATION SOCIETY POLICY

Controversy due to emergence of 3G standards TELECOMMUNICATIONS

Prepaid services to be regulated TELECOMMUNICATIONS

EU

Consultation on digital TV and 3G INFORMATION SOCIETY POLICY

Eastern enlargement: what meaning for CTM INTELLECTUAL PROPERTY

4th report on application of “Television without Frontiers” MEDIA

National legislation on e-Commerce, the easy way WEB STES

FRANCE CNIL report on spamming DATA PROTECTION

GERMANY

Employees’ survey by foreign parent company EMPLOYMENT

More holder rights for copyright infringement INTELLECTUAL PROPERTY

Rules on advertising liberalized MEDIA

INDIA

Parliament passes Cable Television Bill MEDIA

Supreme Court sets aside TDSAT's order on WLL TELECOMMUNICATIONS

TRAI issues voice quality norms for ILD operators TELECOMMUNICATIONS

ITALY Incentives in favour of new telecom investments TELECOMMUNICATIONS

LEBANON Central Bank proposed as certification authority DIGITAL SIGNATURES

LUXEMBOURGConsumer protection in distance contracts CONSUMER PROTECTION

Higher costs for Benelux trademarks INTELLECTUAL PROPERTY

Country Title Category

MEXICO

Bill on eSignatures and certification institutions DIGITAL SIGNATURES

New Radio and Television Law initiative presented MEDIA

Amendments to the regulations of Telecom Commission? TELECOMMUNICATIONS

Mexican Universal Service Fund UNIVERSAL SERVICE

NETHERLANDS Modification of rules on registration of “.nl” DOMAIN NAMES

NEW ZEALANDThe Electronic Transactions Act 2002 ELECTRONIC COMMERCE

First access determination under Telecom Act TELECOMMUNICATIONS

PORTUGALTelecom incumbent purchases public fixed network TELECOMMUNICATIONS

The closing of Oniway TELECOMMUNICATIONS

SOUTH AFRICA Amendments to trademarks INTELLECTUAL PROPERTY

SPAIN

Expert Committee to assess basis for Infosoc development INFORMATION SOCIETY POLICY

Bills to regulate telecom and audiviosual INFORMATION SOCIETY POLICY

Changes in the television regulatory framework MEDIA

Agreement on UMTS TELECOMMUNICATIONS

New Chairman for Telecom Market Commission TELECOMMUNICATIONS

SWEDENThe “.se” top-level domain DOMAIN NAMES

Freedom of speech in new media MEDIA

TURKEY Capital market legislation update and projections FINANCIAL SERVICES

UK

Oublic authorities’ access to communications data DATA PROTECTION

Auction of 3.4 GHz radio spectrum for 2003 TELECOMMUNICATIONS

Communications Bill introduced TELECOMMUNICATIONS

Oftel consults on wholesale line rental product TELECOMMUNICATIONS

LLU: Oftel to provide co-mingling TELECOMMUNICATIONS

COMMENTARY

Canada : Ownership and control restrictions: time for a change?

EVENT

Young Lawyers Writing Competition

Contact “the l.i.n.k.” at: editor@the-link.lu

© opyright: Stephan LE GOUEFF, , Luxembourg

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