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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. SEPT. – OCT. 2002
NEWS...................................................................11. ALTERNATIVE DISPUTE RESOLUTION......................1
LEBANON The new law 440 on arbitration.........................................12. COMPETITION...............................................................1
ITALY Significant power of operators in Internet access market........1SPAIN Penalties imposed to Telefónica by the TMC..........................1TURKEY New communiqué on vertical restraints..............................1
3. COMPUTER CRIME.......................................................2EU Opinion on cybercrime..................................................................2TURKEY The Internet and criminal law..............................................2
4. CONSUMER PROTECTION...........................................3GERMANY Federal Court rule on calls financed by advertising.........3
5. DATA PROTECTION......................................................3EU Personal data in the electronic communication sector..................3
6. DOMAIN NAMES............................................................3GERMANY District Court in Düsseldorf rules on "Domain-Grabbing" 3SINGAPORE Viacom International Inc. Vs. Elitist (mtv.com.sg)........4
7. ELECTRONIC COMMERCE...........................................4BRAZIL E-procurement.......................................................................4MEXICO Preservation of data messages...........................................4
8. ELECTRONIC SIGNATURE...........................................5GERMANY Modification of administrative procedural regulations......5
9. FINANCIAL SERVICES..................................................5TURKEY Hostile takeover prevented by white knight.........................5
10. INFORMATION SOCIETY POLICY................................5EU Radio Spectrum Policy Group and European Regulators Group..5SPAIN Law on Information Society services and e-commerce...........5
11. INTELLECTUAL PROPERTY........................................6COLOMBIA Common prefixes or suffixes in pharmaceutical TM.......6FRANCE Private copying tax..............................................................6ITALY Software copyright protection..................................................7
12. MARKET ACCESS.........................................................7IRELAND Allocation of 3G licences....................................................7
13. MEDIA.............................................................................7BRAZIL Foreign investment in journalistic and broadcasting Co........7IRELAND Report of forum on broadcasting........................................8LUXEMBOURG Law for protection of conditional access services....8SPAIN TMC analyses the merger of the two TV digital platforms......8
14. PRIVACY........................................................................9SOUTH AFRICA The Interception and Monitoring Bill........................9
15. TARIFFS.........................................................................9CHILE Confidentiality in tarification process.......................................9SPAIN New interconnection prices for mobile dominant operators....9
16. TELECOMMUNICATIONS.............................................9BRAZIL Personal Cellular Service bands D and E.............................9BRAZIL Personal Cellular Service regulations.................................10GERMANY Federal Court on constitutionality of the Telecom Act.. .10
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LUXEMBOURG Invoices issued by telecom licensees....................10MEXICO The new Telecom Law submitted to Congress..................10PORTUGAL The telecom market.....................................................10SPAIN Main operators in mobile and fixed telephony markets.........11
EDITOR / EDITORIAL BOARD..........................12TABLE OF CONTENTS BY COUNTRY.............13
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NEWS1. ALTERNATIVE DISPUTE
RESOLUTION
LEBANONTHE NEW LAW 440 ON ARBITRATION
On 17th July 2001, the “Conseil d’Etat”, the highest administrative court in the Republic of Lebanon, rendered two final decisions in the highly publicised arbitration disputes between the State and the cellular operators (FTML and LibanCell), declaring the arbitration clauses stipulated in the BOT Contracts concerned null and void.The said decisions were based, mainly, on Article 77 of the Lebanese Code of Civil Procedure (CCP), which gives Lebanese courts exclusive jurisdiction to rule over disputes related to Concessions of Public Services, and on a principle according to which, administrative contracts may not be subject to arbitration.This latest development was considered by the Government as a major impediment to its efforts to encourage international investment in the country, a matter that led to the enactment of Law No. 440 dated 29 th July 2002, which made amendments to the Code of Civil Procedure.
Indeed, law No. 440 expressly confirms the validity of arbitration clauses in administrative contracts, albeit under certain conditions.As of 1st August 2002 (date of promulgation of Law No. 440), the State and public entities may have recourse to “domestic” arbitration, irrespective of the nature of the contract concerned (new Articles 77 and 762 of the CCP).Accordingly, parties to administrative contracts (including Concessions of Public Services) concluded after 1st August will be able to refer their disputes to arbitration.This principle of the validity of “domestic” arbitration clauses in administrative contracts will also apply to international arbitration i.e., arbitration which involves interests of international trade. The new Article 77 of the CCP, providing for the validity of “domestic” and international arbitration in Concession contracts, confirms the above, especially since Article 809 of the CCP already upholds the right of the State and public entities to have recourse to international arbitration (the said article was surprisingly ignored by the Conseil d’Etat in its latest decisions).It should be mentioned, however, that “domestic” arbitration clauses in administrative contracts need to be approved by virtue of a decree issued by the Council of Ministers upon proposal by the competent Minister before they can be held valid (New Article 762 CCP). The said restriction does not seem to apply to international arbitration.For more information please contact: [email protected]
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2. COMPETITION
ITALYSIGNIFICANT POWER OF OPERATORS
IN INTERNET ACCESS MARKETOn 10th July 2002 the Italian Communications Authority approved the Decision which updates the list of operators having Significant Market Power (SMP) in the Internet access market (Decision No.219/02/CONS). The Decision has identified two relevant markets:
Internet services market with access via fixed network (dial–up); and wholesale market of the interconnection for termination of calls
addressed to Internet connected terminals.Taking into account the different market shares and characteristics, the Authority notified to the incumbent Telecom Italia a SMP in both markets, and notified to competitor Wind Telecomunicazioni a SMP in the wholesale market.Both operators will be notified to the European Commission as having SMP and will need to comply further with the provisions of Decree No. 318/97 addressed to the notified operators.The identification of market power is the result of an analysis of economic and competitive elements as well as:
market share; capability to affect the market conditions; turnover with respect to the market dimension; control of users’ means of access; possibility of access to financial resources; and experience in the provision of products and services in the market.
The Authority has also specified that it will perform a revolving analysis of the economic and competitive aspects in the two relevant markets whenever the new technology and the evolution of the market appear to change. In the execution of such activity the Authority will comply with the methodology provided by the new European regulatory framework for electronic communications.For more information visit: www.agcom.it/provv/d_219_02_cons.htm
SPAINPENALTIES IMPOSED TO
TELEFÓNICA BY THE TMCThe TMC, by means of two resolutions dated 23 rd July 2002, fined Telefónica de España, S.A.U. (“TESAU”), the Spanish incumbent, with EUR 18 million and 4.5 million penalties, respectively.The first fine is grounded on the incorrect use by TESAU of its Closed Users’ Group (“CLG”) service through which it applied significant discounts to certain users for the provision of the basic voice telephony service. Prices for voice telephone services of TESAU are regulated by the Administration and discounts are subject to previous authorisation. Prices for services rendered to CLGs are not subject to this regime. The TMC considers that TESAU, trying to avoid price regulation, was providing voice services under the CLG regime to clients that did not hold the legal requisites for being considered as CLG.The second fine, is based on the TESAU infringement of a previous resolution of the TMC, obliging the incumbent to modify the interconnection prices charged to Colt Telecom España for said services.
For more information please contact: [email protected]
TURKEYNEW COMMUNIQUÉ ON VERTICAL RESTRAINTS
Turkey has aligned its legislative framework in the area of antitrust policy in order to conform to the Community acquis and the obligations of the Customs Union Agreement. The Act on the Protection of Competition (“Act”) was passed in 1994 and the Turkish Competition Authority (the “Board”) started operations in 1997. The Act is largely modelled on the main principles of EU antitrust rules. Turkey has further adopted, to a considerable degree, secondary legislation, in particular in the area of block exemption regulations. On 14 th July 2002, the Board issued a new communiqué on the block exemption of vertical agreements (the “Communiqué”).The Communiqué aligns Turkish antitrust legislation with the Community’s new policies on block exemptions for vertical restraints. It replaces the existing block exemption communiqués for exclusive distribution agreements, exclusive purchasing agreements and franchising agreements. Agreements complying with the provisions of those communiqués but infringing the provisions of the new Communiqué must be amended by 14th July 2003 in line with the provisions of the new Communiqué in order to benefit from the block exemption.The Act prohibits all agreements and concerted practices between undertakings which have as their object or may effect the prevention, distortion or restriction of competition, in particular those which fix trading conditions, share markets or sources of supply, control supply or demand, foreclose other buyers or suppliers, raise barriers to entry, or apply dissimilar conditions to equivalent transactions. Thus, an agreement restraining competition must be in line with the provisions of the Communiqué in order to benefit from the block exemption.The Communiqué applies to vertical agreements, i.e. agreements entered into between two or more undertakings, each of which operates at a different level of the production or distribution chain, and relating to the purchase, sale or re-sale of goods or services. Vertical agreements between competing undertakings may benefit from the exemption only in cases where the supplying party is both manufacturer and distributor of the contractual product, whereas the buying party is not manufacturing but merely distributing a product competing with the contractual product. The Communiqué does not foresee a market share threshold for either the supplier or the buyer which once exceeded would automatically preclude the agreement from being exempted.The Communiqué enumerates a number of “hardcore” or “per se” restraints of trade. The existence of a hardcore restraint in an agreement will exclude the entire agreement from benefit of the block exemption. Disqualifying restraints are those imposing (i) fixed resale prices; (ii) restrictions on the territory or on customers to whom the contractual product may be sold, except for certain permissible restraints; (iii) restriction of active or passive sales to end users by members of a selective distribution system operating at the retail level; (iv) cross-supplies between distributors within a selective distribution system; and, (v) restrictions between a supplier of components and a buyer, who assembles those components, limiting the supplier to selling the components as spare parts.Further alignment of Turkish competition legislation, however, is still necessary in view of the Community’s new policies on block exemptions for horizontal co-operation agreements.For more information please see: http://www.rekabet.gov.tr/indexeng.htmlor contact: [email protected]
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3. COMPUTER CRIME
EUOPINION ON CYBERCRIME
On 2 August 2002, the Committee on Industry, External Trade, Research end Energy (hereafter the “Committee”) released a draft opinion on the framework decision on attacks on information systems (hereafter the “Opinion”). This document points out that the basic legal principles should not be violated to ensure repression.The European Commission presented the draft framework decision concerning attacks on information systems on 19 April 2002 (thereafter the “Decision”). The purpose of this text is to harmonise or to complete the laws of Member States regarding attacks on information systems.The Decision aims at creating new crimes, notably unauthorised access to information systems, execution of malicious software that modifies or destroys data, or interception of communications.The Committee considers in its Opinion that individual’s conduct should not be considered as criminial solely as a result of the use of new technologies. It adds that there is a difference to be operated between « forms of online political activity, civil disobedience, demonstrations and activities of little or no consequence » and « violent action directed not only against property, but also against physical persons ». In the first case « hacking » should not be punished, in the other case « cracking » should be punished.Therefore, Member States should not be bound to impose criminal penalties on activities which are already adequately regulated. The Committee concluded that the Decision should also refer explicitly to fundamental rights and freedoms.The use of new technologies in itself should not be criminalised, nevertheless, their misuse must be punished. The distinction may, in certain case, be difficult to find.The text of the Opinion can be accessed at:http://www.europarl.eu.int/meetdocs/committees/itre/20020826/474190en.pdfThe text of the Opinion can be accessed at:http://europa.eu.int/eur-lex/fr/dat/2002/ce203/ce20320020827fr01090113.pdfFor more information please contact : [email protected]
TURKEYTHE INTERNET AND CRIMINAL LAW
Rapid developments in technology have not only changed the operation of various subjects and areas, they have also necessitated many changes in judicial regulations. In Turkey, a specific law that regulates the Internet does not yet exist, but rulings on infringements of intellectual property rights have been secured by some articles of Turkish Criminal Law (the “TCL”). Nevertheless, one of the most important features of the Internet is its international nature and character, which has led to many international problems and disputes in terms of law.In Turkey it is much easier to resolve a dispute under private law since most judicial relations are based on agreements. Furthermore, in private law, analogy and interpretation methods can be utilised whereas such methods are forbidden by the TCL. Nevertheless, both the TCL and private law admit many ways of obtaining evidence such as written and signed documents, but it is very difficult to obtain evidence relating to the Internet
since the Internet relies on and uses so many numerical codes. Be that as it may, the government can regulate this area and, even if the task seems daunting, some records can be kept. These records are called “logs” and can be provided in the electronic arena by Internet Service Providers (“ISPs”). In addition, liabilities and responsibilities may be regulated between Internet users and the government. The TCL does not limit types of evidence and any trace can be used as evidence. Another way to obtain evidence under Turkish law is through designation by a Notary Public. Any web site found or thought to be committing a crime may be named and its contents considered as evidence by a Notary Public.A main principle of the TCL is known as “Regulated Crime and Punishment.” Every crime must be specifically provided for in the TCL along with its punishment, thus comparisons cannot be made.Because of the Internet’s international character, it is very important to designate the country in which the crime was committed. The enactment of multilateral and bilateral agreements can solve these problems. In obtaining evidence, international co-operation is also very important.In Turkey, responsibilities related to the Internet have not yet been regulated. ISPs in a number of countries have organised and created several control mechanisms for self-regulation.How can the Internet and Criminal Law be developed?In our opinion, the type of crimes should be specified and penalties set out, with NGOs called on to contribute their expertise. A specific code should be drafted to replace the current system of defining different crimes in different laws. Specific public prosecutors and courts should be established for Internet crimes and these courts should be presided over by specialised judges.In police departments, expert groups should be formed to deal specifically with the Internet and related crimes. ISPs’ scope of responsibilities should be defined. (i.e. recording logs).Appropriate regulations should be drafted in compliance with international laws and there should be a careful review of international regulation.For more information please contact: [email protected]
4. CONSUMER PROTECTION
GERMANYFEDERAL COURT RULE ON CALLS
FINANCED BY ADVERTISINGThe German Federal Supreme Court ruled that an offer of free telephone calls which are financed by interrupting the same with advertisements of 20 seconds every 90 seconds do not violate Article 1 of the German Law Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb – UWG).The plaintiff – the German Federal Association of Consumers´ Organisations and Associations (Bundesverband der Verbraucherzentralen und Verbraucherverbände) – claimed that the defendant's offer financed as described above constituted an illegitimate harassment of the callee according to Article 1 UWG. The Court stated that a telephone call for advertising purposes in the private sector would be contra bones mores on principle and would only be permissible if the callee had expressly or implicitly consented to the call beforehand. Such consent would not have to be given before the call but rather before the actual advertisement began. In the case under consideration, the call would be free of advertising for the first 90 seconds, which the caller would generally use to inform the callee of the subsequent advertising interruption. If the callee did not break off the conversation he would be giving his implied consent to the advertising interruption by continuing the conversation.
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Furthermore, the offer would not violate the "principles of lay advertising" developed under Article 1 UWG. According to these principles a tradesman may not ask laymen to advertise for him in their private environment (family, friends etc.) if such advertisement might constitute an unreasonable harassment for the persons wooed. The court stated that the callees would certainly dislike the advertising interruption. This adverse effect, however, would be comparable with that caused by advertising interruptions during a radio programme which would not violate the "principles of lay advertising" either.For more information please see: www.bundesgerichtshof.de or www.mmr.de
5. DATA PROTECTION
EUPERSONAL DATA IN THE ELECTRONIC
COMMUNICATION SECTORDirective 2002/58/EC of the European Parliament and the Council harmonises the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector. Moreover, the Directive ensures the free movement of such data and of electronic communication equipment and services in the Community.Directive 2002/58/EC is intended to replace Directive 97/66/EC of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector in order to adapt the dispositions to developments in the market and technologies for electronic communication services.The Directive will apply to the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks in the Community. Moreover, the Directive provides for protection of the legitimate interest of subscribers who are legal persons. The Member States will bring into force the provisions necessary to comply with this Directive before 31st October 2002.For more information please contact: [email protected]
6. DOMAIN NAMES
GERMANYDISTRICT COURT IN DÜSSELDORF RULES ON
"DOMAIN-GRABBING"In July the district court in Düsseldorf decided a case concerning so-called "domain-grabbing". The plaintiff, a magazine publisher that has been in business since 2000, sought to prevent the defendant, an Electronic Data Processing Company in the business of selling hardware and software from using and/or reserving the internet-domain and/or e-mail-address identical with the name of the magazine. The defendant had reserved several domain names in previous years, inter alia the domain name identical with the name of the plaintiff's magazine. Before bringing proceedings, the plaintiff had asked the defendant to transfer his rights to the domain name to the plaintiff for absorption of costs. However, the defendant requested a six-digit purchase price.
The court found that the defendant, not engaged in the business of designing web-sites, had reserved the domain names, all of which were suitable for the description of goods and services, solely for the purpose of selling them at a later date to prospective customers. Such reservation is contrary to public policy according to competition law and Article 826 of the German Civil Code, if the legal position resulting from the reservation is solely used to realise profits which have no connection with any kind of performance by the holder of the right, but rather depend on the importance the prospective customer attaches to the right. The plaintiff was accordingly entitled to demand that the defendant relinquish the registration of the domain name in dispute and refrain from reserving or using the domain name in future.For more information please see: www.heise.de and www.jurion.de
SINGAPOREVIACOM INTERNATIONAL INC. VS. ELITIST
(MTV.COM.SG)The Singapore Domain Name Dispute Resolution service of the Singapore Mediation Centre and the Singapore Arbitration Centre issued a decision on 15th
April 2002 that ruled that Viacom International Inc., a global entertainment company that operated an advertiser-supported television programming service known as MTV: Music Television (through MTV Networks, a division of Viacom), was not entitled to the domain name of mtv.com.sg.The said domain name was first registered by ROTA Corporation Pte Ltd, who then transferred the name to Presslink Automation Pte Ltd, and finally to Elitist Technologies Co. Ltd., a company incorporated in Taiwan. The web site at the said domain name contained a disclaimer that the site was not affiliated or associated with MTV Networks. The web site provides a free e-mail service with the suffix of @mtv.com.sg, and principally serves as an Internet portal and is described as “MTV Entertainment Web” (in Chinese), and supplies Chinese entertainment products and services. ROTA Corporation, the original registrant of the web site, had registered a series of other domain names containing generic terms, for example, movie.com.sg.The decision sets out that Viacom needed to establish these three requirements:
the domain name is identical or confusingly similar to the “MTV” mark in which Viacom has rights;
Elitist has no rights or legitimate interests in respect of the domain name; and
Elitist’s domain name (i.e. mtv.com.sg) has been registered or is being used in bad faith.
The Panel found that Viacom had registered about 11 “MTV”-related trademarks in Singapore, and has applied to register fourteen other “MTV”-related trademarks, it was noted that although the word “MTV” was identical to the “MTV” featured on all of Viacom’s marks, Viacom needed to show that it had exclusive rights to the use of the word “MTV” to succeed against Elitist. Viacom in the registration of its various marks had to offer numerous disclaimers, and had generally disclaimed rights to the words “Music Television” and separately the letters “M” and “TV”. Correspondingly, the Panel said that Viacom could not assert exclusive rights to the words “Music Television” and separately the letters “M” and “TV”. Viacom’s rights to the word element “MTV” is weak, notwithstanding its rights to the numerous “MTV” marks. It does not follow that the word “MTV” is necessarily associated with Viacom’s “MTV” marks. Viacom thus only has weak legal rights over the exclusive use of the word “MTV”.Elitist was able to demonstrate that the word “MTV” was customarily used in Singapore in the Chinese language as a generic term to refer to music videos. Clear evidence was shown in the form of Video CDs and Karaoke VCDs that contained music videos of Chinese artistes described as “MTVs”. These included reputable publishers. Local media and other web site operators have also regularly described such Chinese artiste music videos as “MTVs”. Even English-Chinese dictionaries included an entry that defined “MTV” as an
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abbreviation for “music television” in the Chinese Language. This definition is found in a Shanghai published edition of the dictionary from as early as 1993. The word “MTV” has entered the mainstream Chinese language in Singapore, Taiwan and Hong Kong as a substitute for the Chinese expression for “music videos” and is a generic term.The Panel thus found that Viacom would be unable to assert any monopoly rights on the use of the word “MTV”, or at least not in Singapore. For these reasons, Viacom was unlikely to succeed against Elitist in a claim of passing off as well.Although the finding that Viacom has no exclusive rights to the word “MTV” was sufficient to dispose of the matter, the Panel went on and also found that there is no clear or unequivocal evidence to show that Elitist has no rights or legitimate interests in the domain name, or that Elitist has registered or used the domain name in bad faith.As such, the Panel found in favour of Elitist, and did not grant the relief that is sought by Viacom to have the domain name mtv.com.sg transferred to it.
7. ELECTRONIC COMMERCE
BRAZILE-PROCUREMENT
On 17th July 2002, the Brazilian president approved Law No. 10.520 requiring the Brazilian State and city governments to use e-procurement tools for the acquisition of goods and services. Before enactment of the law, only the federal government was obliged to buy goods and services through the Internet, at the Federal Government web site for purchases (www.comprasnet.gov.br).Besides reducing costs and prices, e-procurement should make the process of acquiring goods and services clearer and more democratic, since it will make it easier for suppliers to obtain information and submit tenders.For more information please contact: [email protected]
MEXICOPRESERVATION OF DATA MESSAGES
E-commerce has brought with it the need for an adequate legal framework for electronic transactions.On 29th May 2000, Mexico recognised such need by expressly contemplating and recognising the use of electronic means for documenting the execution of contracts and other contractual obligations, through a series of amendments to the prevailing Civil Code for the Federal District in Common Matters and for the Republic in Federal Matters, the Federal Civil Procedure Code, the Commerce Code and the Federal Law on Consumer Protection. The legislative reforms and additions adopted contain those general legal principles which, as of today, govern the legal scheme regarding the use of electronic means, primarily with relation to the validity and value of “data messages” in civil and commercial activities. According to article 49 of the Commerce Code, data messages now have probative value provided the information is kept unaltered and incorruptible from the moment of its creation. In support of this provision, on 4th June 2002, the Ministry of Economy issued the Mexican Official Standard establishing the requirements to be complied with for the preservation of Data Messages.The most representative elements and aspects of this official standard are the following:
The provisions of the official standard must be generally observed by merchants who must keep the data messages containing contracts, agreements or commitments, as well as by every person with or to whom these merchants agree or grant such contracts, agreements or commitments.According to the official standard, a set of internal rules and regulations still needs to be established for the issuance of electronic and/or digital signatures, and for the rendering of the certification services, which will validate the proper preservation of the data messages.Generally speaking, the user will generate partial files from data messages to create a file, which will be the same as that sent to the certification service provider. The certification service provider will then issue a certificate for the file received, which will be registered in the data base of the certification service provider and a copy of which will be sent to the user for safekeeping.The provisions of the official standard will come into force once the Mexican authorities officially notify the existence of the required infrastructure, so that all services related to the certification procedures can be carried out in accordance with the Mexican Law of Metrology and Standardisation.For more information please see: www.se.gob.mxor contact: [email protected]
8. ELECTRONIC SIGNATURE
GERMANYMODIFICATION OF ADMINISTRATIVE PROCEDURAL
REGULATIONSIn Germany, official papers may now also be signed electronically if the technical requirements are available. According to the Act concerning the Modification of Administrative Procedural Regulations which was announced on 27th August 2002 and became effective the same day an electronic signature may be used whenever the respective law stipulates the requirement of written form. Furthermore, any type of public document may be transmitted to the public authorities via the Internet. As far as legislation is concerned, the Act was the last step remaining to be taken by the Federal Government in order to comply with the "BundOnline 2005" project, which requires the Federal Government to provide 350 Federal Administration services via the Internet.For more information please see: www.bund.de and www.heise.de
9. FINANCIAL SERVICES
TURKEYHOSTILE TAKEOVER PREVENTED BY WHITE KNIGHT
On 18th June 2002 Turkey's Banking Regulation and Supervision Agency (“BRSA”) rejected the planned merger of Pamukbank, which is one of the larger private sector commercial banks in Turkey, with its sister bank, Yapi Kredi Bankasi. After a thorough audit, BRSA had earlier taken over the cash-strapped Pamukbank, which thus became the 20th Turkish bank to be taken over by the state's banking regulators during the past five years. BRSA officers then declared that Pamukbank's liabilities were greater than its assets and the bank's management had not followed the regulator's advice to take steps to decrease its capital deficiency of $2 billion. Pamukbank is now operating under the supervision of the Savings Deposits Insurance Fund (“TMSF”), which provides a blanket guarantee for the payment of all liabilities of banks taken over by it.The TMSF is in the process of selling Pamukbank, which has an extensive retail presence and decent credit card operations. The proposed sale has already
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received good bids from other large retail banks in Turkey; e.g. Disbank, Isbank. The TMSF guarantee is intended to remove the uncertainty surrounding Pamukbank's takeover and improve the bank’s relative creditworthiness in Turkey.IMF officers declared that “BRSA’s decision marks a critical step in the re-capitalisation exercise of the private banking system, which needs to be completed soon. A healthy banking sector is needed to meet the financing needs of Turkey's businesses and help underpin economic growth.”For more information please see: www.bddk.org.tror contact: [email protected]
10. INFORMATION SOCIETY POLICY
EURADIO SPECTRUM POLICY GROUP AND
EUROPEAN REGULATORS GROUPOn 29th July 2002 the Commission created the Radio Spectrum Policy Group and European Regulators Group.The two advisory Groups will assist the Commission with further developing the Internal Market for the Information Society.The Radio Spectrum Policy Group will assist and advise the Commission on radio spectrum policy issues, on co-ordination of policy approaches and, where appropriate, on harmonised conditions with regard to the availability and efficient use of radio spectrum.The Group will provide opinions to assist the Commission in taking policy, regulatory or legislative action.The Group will comprise high level representatives from Member States and the Commission as well as observers, CEPT and ETSI and accession countries. The Group will also consult the commercial and non-commercial industry as well as with any other interested parties, in full transparency.The first meeting of the Group will be held during the second half of 2002.The European Regulators Group will act as an advisory group of independent national regulatory authorities to assist and advise the Commission in consolidating the Internal Market for electronic communications networks and services. It will allow co-operation between national regulatory authorities and the Commission so as to ensure the consistent application in all Member States of the regulatory framework.The Group will comprise the head(s) of each national regulatory authority responsible for overseeing the day-to-day interpretation and application of the provisions of the Directives relating to electronic communications networks and services.For more information please see:http://europa.eu.int/information_society/topics/telecoms/index_en.htm
SPAINLAW ON INFORMATION SOCIETY
SERVICES AND E-COMMERCEThe Spanish Parliament approved on 11th July 2002 the Law 34/2002 on Information Society Services and e-commerce (“LSSI”), in order to implement the recent EU Directive EC/2000/31, of 8th June 2002.The final text maintained the amendments introduced by the Senate after several drafts, which were subject to public opinion.
According to the LSSI, which will enter into force next 12 th October the “Information Society Services” are those provided electronically as a result of an individual petition from the user, including free services when may be considered as an economic activity for the service provider.The LSSI is not applicable to those services rendered by i) Public Notaries and registrars of the Property and Mercantile Registries, when performing their public faculties; or by ii) Lawyers and Procurators when performing their faculties of legal assistance on judicial or arbitration procedures.The LSSI applies to i) services providers established in Spain and to ii) services provided through a Spanish permanent establishment of a service provider established outside Spain. Nevertheless, and for some specific matters (such as Intellectual Property Rights, contracts with consumers, or Spaming), the LSSI also governs the relationship between service providers established in the EU/EEA and Spain-resident users.The LSSI also sets forth the obligations and liability regime applicable to service providers, encouraging the use of self-regulatory codes. It also prohibits the sending of unsolicited commercial communications (“Spaming”).The LSSI also states the validity and enforceability of the electronic contracts, setting forth the rules to determinate the applicable law and the minimum information that must be made available to the counterpart for being valid and binding.Providers infringing the obligations set forth in the LSSI may be penalised with fines of up to EUR 600,000.For more information please contact: [email protected]
11. INTELLECTUAL PROPERTY
COLOMBIACOMMON PREFIXES OR SUFFIXES IN
PHARMACEUTICAL TMTrademarks covering pharmaceutical products usually use prefixes or suffixes that allude to the active agents or to the purpose of the product. For example, prefix "DERMA" is used on drugs for skin treatment, and prefix “OFTA” for treatments relating to the eyes.These prefixes and suffixes have become expressions of common use, like generic or descriptive denominations, that may not be appropriated by anybody in an exclusive manner, according to a ruling of the Andean Court of Justice.1
The Court stated that what is important when two trademarks covering pharmaceuticals use the same prefix or suffix, is to compare the additional letters.The Council of State of Colombia applied this interpretation in deciding a nullity action filed by Smithkline Beecham Corporation, owner of trademark AMOXIL, registered in 1990, against the resolution that allowed the registration of trademark AMOXIGA, applied for by corporation Sociedad de Laboratorios La Santé S.A. in 1999.In this case, the Council of State said that AMOXI was an expression that is common among pharmaceutical products of class 5 of the International Classification of Nice, and that for this reason, it could not be exclusively owned by anybody. Consequently, the trademarks were compared with respect to their respective endings, GA and L.The Council found that these endings were sufficiently distinctive, and decided the nullity action in favour of trademark AMOXIGA, ruling that both trademarks could continue to be used in the market.
1 Andean Court of Justice, pre-judicial interpretation 68-IP-2001, 30th January 2002.
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FRANCEPRIVATE COPYING TAX
Article L 311-1 of the French Intellectual property code entitles authors, artists/interpreters of creations fixed on phonograms or videograms as well as the producers of these phonograms or videograms to remuneration as consideration for the reproduction of such creations. In France, the Brun Buisson Commission is responsible for determining, for all types of usable media, the rates and means of payment for the remuneration related to the private copying of creations fixed on phonograms and videograms. In two recent decisions, the Brun Buisson Commission ruled on the types of digital media concerned by a private copying tax and on the rates of remuneration.On 4th January 2001, the Brun Buisson Commission issued its first decision regarding a private copying tax, the amounts being converted into euros in a later decision of 6th December 2001. Following this decision, a tax is levied on digital recording media used to reproduce, for private use, the creations fixed on phonograms and videograms. Such digital recording media include minidisks, CD-Rs, CD-RWs, DVDRs, DVD-RWs, DVD-RAMs, DVHS, removable memory cards dedicated to audio recordings and integrated digital recording media (MP3 portable players/recorders). The Commission determined the amounts of the tax as follows:
analogue recording media (hourly remuneration)· audio cassette: 28.51 EUR for 100 hours;· video cassette: 42.84 EUR for 100 hours;
digital recording media (remuneration per media)· minidisks: 45.73 EUR per media for 100 hours;· CD-Rs and CD-RWs (audio): 45.73 EUR per media for 100 hours;· DVDRs and DVD-RWs (video): 126.77 EUR per media for 100
hours;· CD-Rs and CD-RWs (data): 50.43 EUR per media for 100 000
megabytes;· DVD-RAMs and DVD-Rs and DVD-RWs (data): 33.80 EUR per
media for 100 gigabytes;· DVD-Hs: 125.77 EUR per media for 100 hours;· removable memory cards dedicated to audio recordings: 1.05
EUR per media for 100 megabytes; integrated digital recording media (remuneration per media):· MP3 portable player recorders: 1.05 EUR per media for 100
megabytes.On 4th July 2002, the French Brun Buisson Commission fixed and voted in the amounts of tax to be applied to digital recording media dedicated to music and video use. The Commission’s decision was published on 26th
July 2002. The Commission adopted different rates depending on whether the recording medium was dedicated to the recording of images or sound. The amounts fixed by the Commission (per recording media) are as follows:
recording media dedicated to music (e.g. hi-fi systems and MP3 players with integrated hard disk):· from 0 to 5 gigabytes: 8 euros;· from 5 to 10 gigabytes: 10 euros;· from 10 to 15 gigabytes: 12 euros;· from 15 to 20 gigabytes: 15 euros;· from 20 to 40 gigabytes: 20 euros.
recording media dedicated to video (e.g. television, video recorder and decoder with integrated hard disk):· from 0 to 40 gigabytes: 10 euros;· from 40 to 80 gigabytes: 15 euros.
The application of the above taxes is effective from the publication of the decision of the Commission. The tax is paid when the product is sold to the end-user. Consequently, the burden of the extra charge will fall uniquely to the end-user.Two royalty collection agencies, namely SORECOP for music and COPIE FRANCE for video will be responsible for collecting the tax. They are not entitled to claim any amount exceeding the final rates nor claim back payments.However, it should be noted that to date no tax on hard disks integrated into computers has been instituted in France.It appears from a decision of the French Supreme Administrative Court (the "Conseil d'Etat") rendered on 10th October 2000 on the right to remuneration provided in article L 311-1 of the French Intellectual property code, that the Brun Buisson Commission could validly broaden the right to remuneration to recording media integrated into recording equipment and not dissociable from such recording equipment. The recording media that may be used to reproduce, for private use, creations fixed on phonograms or videograms were indeed interpreted by the French Supreme Administrative Court as including all devices that may fix, in a permanent or temporary fashion, a creation and enable the release of such creation for the purpose of its representation, independently of the nature such elements, or of the techniques or processes used to fix the creation, whether the said element is integrated or not into the recording equipment.A parliamentary report (the “Migaud report”), published on 13 th December 2001, found that the Brun Buisson Commission should not be able to rule on the amounts and on the conditions of the remuneration of private copying and recommended that Parliament deal separately with this matter and treat it as a tax issue. It appears from a study led by the GESAC ("Groupement Européen des Sociétés d’Auteurs et de Compositeurs": European Association of Authors' and Composers' Societies) that out of twenty countries where a private copying regime has been instituted, only four countries, including France, have appointed a commission to rule on private copying. The other countries have chosen to deal with the matter through legislation or parliament. The next months will show if the Commission Brun Buisson decides to deal with the delicate issue of a tax on hard disks integrated into computers…For more information please contact: [email protected] or [email protected]
ITALYSOFTWARE COPYRIGHT PROTECTION
On 24th April 2002, by means of Decision No. 15509, the Italian Supreme Court of Appeal extended software copyright protection when deciding on a case regarding the alleged violation of software copyright rules. The decision sets a milestone interpretation of Article 171bis of Law No. 633/1941 on the protection of intellectual property.In particular, Article 171bis penalises anyone who illegally copies software programs for profit. The Decision of the Court extends the enforcement of the Article also to parts or incomplete sections or copies of software programs, stating that trading in partial or inexact copies of software is illegal irrespective of the fact that such software may be regarded as complete in that the copied part may work independently or may interact, e.g. with a code-line or source code. The Decision also reaffirms a fundamental principle of criminal law, interpreting as the receipt of stolen goods (Article 648 of the Criminal Code) any act related to the trading of illegally copied software.Another important aspect of the Decision concerns the implementation of Regulation No.338/2001, exempting the payment of property rights in favour of SIAE (authors and editors association) on software programs where the percentage of sounds and/or music does not exceed a threshold of 50% of the total program content. In this respect, whilst the Decision reaffirms that no duty
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is due to SIAE in such case, it confirms the extension of software protection rules to such programs.For more information please see: http://www.giustizia.it
12. MARKET ACCESS
IRELANDALLOCATION OF 3G LICENCES
The Hong Kong conglomerate Hutchison Whampoa has been awarded a 3G ‘A’ licence by the Irish Telecommunications Regulator, the ODTR. The company already holds 3G licences in Italy and the UK. The award of Ireland’s ‘A’ licence, which provides that the holder must provide 80% population coverage, was decided by ‘beauty contest’ rather than by auction. Hutchison Whampoa will pay 50.7 million EUR to the Government over 15 years for the licence.3G ‘B’ licences were offered to the unsuccessful candidates for the ‘A’ licence, O2 and Vodafone (both of which operate 2G networks in Ireland). Both companies had made alternative applications for ‘A’ and ‘B’ licences. The ‘B’ licence includes minimum requirements of 33% demographic coverage to be fulfilled by the end of June 2006 and 53% demographic coverage to be fulfilled by the end of June 2008. The cost of the ‘B’ licence is 114.1 million EUR over 15 years.O2, which already holds 3G licences in the United Kingdom, Germany and the Netherlands, accepted the offer of a ‘B’ licence. Vodafone requested extra time to consider the offer of a licence, as provided under the tender rules, and the ODTR granted an extension.A third ‘B’ licence offered by the ODTR will not be awarded for the foreseeable future. It was hoped that Meteor or Orange would bid for this licence, but the difficulties in the telecoms market quelled the competition for 3G licences in Ireland.For more information see: http://www.odtr.ie/docs/pres150802.docor contact: [email protected]
13. MEDIA
BRAZILFOREIGN INVESTMENT IN JOURNALISTIC AND
BROADCASTING CO.On 28th May 2002, the Senate approved the proposal for the amendment of article 222 of the Brazilian Constitution, allowing journalistic and broadcasting companies to receive foreign investment up to the limit of 30% of their corporate capital. However, investment by foreigners is still subject to the passing of a supplementary law by the Brazilian Congress.After being submitted to public consultation, the final draft of the supplementary law was sent to the House of Representatives on 2nd
September 2002. However, the draft will only be submitted to the Brazilian Congress in October.The main aspects of the bill can be summarised as follows:
defines of the concept of foreign capital; establishes that the 30% foreign investment limit in the corporate
capital of journalistic and broadcasting companies will be calculated considering the several levels of investment in the companies’ corporate capital;
any change in the corporate control of journalistic and broadcasting companies will have to be communicated to the Brazilian Congress; and
once a year, journalistic companies will have to submit a statement detailing the breakdown of their corporate capital and voting capital to the relevant authority, including the names of the Brazilian direct and indirect owners of at least 70 % of their corporate capital and voting capital.
For more information please contact: [email protected]
IRELANDREPORT OF FORUM ON BROADCASTING
The first report of the Forum on Broadcasting to the Irish Minister for Communications, Marine and Natural Resources was published on 30th August 2002.The report was commissioned to examine various issues within the realm of broadcasting, with particular emphasis on the roles and responsibilities of public and commercial/independent broadcasters. The report states that it provides an opportunity to consider how Ireland might better structure its broadcasting sector for the maximum benefit of all, including citizens and broadcasters.The Forum expresses the view that, subject to the necessity of some regulatory changes, the existing broad framework for broadcasting in Ireland provides a satisfactory basis for future development.The Forum states that it believes that there is a clear necessity for public service broadcasting, and that the continued existence of a designated public service broadcaster, Radio Telefís Éireann (RTÉ), is the best guarantee of public service broadcasting in Ireland, now and for the foreseeable future.Equally, the Forum reports that commercial and community broadcasters play a vital role in providing audiences with a genuine choice of programming and alternative coverage of news and current affairs. The report states that these broadcasters have introduced an element of competition, which has had a positive impact on the quality of public service broadcasting.The Forum recognises a clear need for greater efficiencies within RTÉ, and states that increased public funding for RTÉ should be conditional upon its fulfilment of its public service obligations and upon its efficient operation.Based on the above principles, the Forum goes on to make recommendations for the future of broadcasting in Ireland. The full text of the report can be found at: http://www.dcmnr.gov.ie/files/BroadcastingFinal.doc.For more information contact: [email protected]
LUXEMBOURGLAW FOR PROTECTION OF
CONDITIONAL ACCESS SERVICESOn 2nd August 2002, the Grand Duchy of Luxembourg adopted a law on the legal protection of services based on or consisting of conditional access (hereinafter the “Law”).The purpose of the Law is thus to locally implement European Directive 98/84/EC (hereinafter the “Directive”).It indeed appears that the market development of pay-TV, video-on-demand, and other conditional access activities is currently threatened by the parallel development of piracy techniques.In order to offer better protection to service providers against piracy activities, the Law defines accordingly the activities which will henceforth be prohibited and considered as constituting a criminal offence under the laws of Luxembourg. These include:
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the manufacture, import, sale or possession, for commercial purposes, of illicit devices (including but not limited to decoders and smart cards);
the installation, maintenance, or replacement of an illicit device; and the use of commercial illicit devices.
The Law also foresees, in compliance with the provisions set forth in the Directive, the possibility for service providers to take appropriate legal action to effectively safeguard their rights. Thus, service providers whose interests are affected by infringing activities would be entitled to apply for an injunction or claim for damages. Pursuant to the Law, the district court will, in addition, be competent to decide on the seizure and destruction of illicit devices.The full text of the Law in French can be accessed at:http://www.chd.lu/fr/portail/role/lois/detail.jsp?order=descend&project=0&mode=number&page=1For more information please contact: [email protected]
SPAINTMC ANALYSES THE MERGER OFTHE TWO TV DIGITAL PLATFORMS
Following a specific request of the Minister of Economy, the TMC has written a report analysing the impact of the merger between the two Spanish TV digital platforms Canal Satellite Digital (Sogecable, Prisa and Canal + Group) and Vía Digital (Telefónica Group), under competition considerations.According to the conclusions stated in the report, the TMC considers that the proposed merger will strongly affect competition in eight different key markets.Therefore, the TMC considers that the Spanish Government, in case of approving the merger, shall order the appropriate measures in order to eliminate or avoid any disturbance of the competition in the referred markets.The considered affected markets are:
rights to broadcast premium movies; right to broadcast sport events; production and distribution of thematic channels; payment television; emerging market of video on demand; emerging market of interactive services via TV platform; supply of access to telecommunications network; and wholesaler services of TV platform.
The conclusions of the report are not binding for the final resolution, but nevertheless the report will be included as part of the relevant documentation to be considered by the Spanish Government in order to decide the compatibility of the proposed operation with the competition in the market.
14. PRIVACY
SOUTH AFRICATHE INTERCEPTION AND MONITORING BILL
The Interception and Monitoring Bill is currently being considered by the South African Parliament. This draft legislation aims to regulate the interception and monitoring of certain communications, to provide for the
interception of postal articles and communications and for the monitoring of communications in the case of serious offences or if the security or national interests of South Africa are threatened.The new measure will repeal the Interception and Monitoring Prohibition Act, 1992. It retains the need for judicial sanction of the interception and monitoring of communications by telephones, e-mails or post, which will only be granted if there are reasonable grounds to believe that this is necessary in the investigation of a serious offence or a threat, or alleged threat, to the security of the country. The Bill provides that, unless such judicial sanction is authorised, no person may intentionally and without the knowledge or permission of a dispatcher of a communication, intercept such a communication, or intentionally monitor any communication so as to gather confidential information on any person, body or organisation. Nevertheless, the Bill provides that any person may monitor a communication where that person is a party to the communication or one of the parties has consented to such monitoring.The Bill also provides for a request for call-related information by certain members of the police service and defence force, in certain circumstances (e.g. where it is necessary in an investigation of a serious offence). A service provider is obliged to comply with such a request.The Bill also stipulates that service providers will not be allowed to provide telecommunication services that do not have the capacity to be monitored. The service provider is, however, only responsible for decrypting any communication encrypted by a customer, if the facility for encryption was provided by the service provider. The Bill specifically provides that the cost of enabling a telecommunication service to be monitored, must be borne by the service provider.Criticism of the Bill has included concerns over its costs to telecommunication service providers and its impact on the protection of right to privacy, which is entrenched in South Africa's Constitution.A copy of the Bill is available at: www.policy.org.za
15. TARIFFS
CHILECONFIDENTIALITY IN TARIFICATION PROCESS
On 5th August 2002, Resolution N° 1,023 (the “Resolution”) issued by the Under-secretary of Telecommunications was published in the Chilean Official Gazette, declaring that certain documentation and administrative acts should be considered privileged or confidential.The Resolution states that those administrative acts, decisions and documentation filed in connection with the setting of tariffs by the Authority in accordance with Title V of the General Telecommunications Law shall be considered confidential.The Resolution is of particular importance since, in accordance with Title V of the General Telecommunications Law, the Authority sets, among others:
tariffs of the major fixed telephone services (where there is no free competition to allow a free tariff system to operate); and
access charges for the interconnection between telecom companies. Therefore, as a result of the Resolution, such tarification process will not be subject to public scrutiny and review, preventing any affected party from challenging the prices set by the Authority.
The above Resolution has generated hefty dispute in the telecom industry, since it is argued that the Resolution runs counter to the principles of “transparency” and “publicity” of governmental procedures and decisions, principles embedded in Law N° 19,653 on the “Probity Applicable to Administrative Bodies”. As a result, the legality of the Resolution has been challenged before the Chilean Courts.
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The Chilean Government has expressed in this respect that the Resolution aims to prevent the disclosure of industrial or privileged commercial information of petitioners. However, the issuance of the Resolution at this specific moment raises several questions since in parallel to the Resolution, the Chilean Government has expressed its intention to introduce an amendment to the General Telecommunications Law in order to bring transparency to and simultaneous and symmetric determination of tariffs.As a result of the above, the Chilean Government has confirmed that it is to review the Resolution and introduce some changes to it (if required) in the short term.For more information please contact [email protected], [email protected], or [email protected]
SPAINNEW INTERCONNECTION PRICES
FOR MOBILE DOMINANT OPERATORSOn 11th July 2002, the Telecommunications Market Commission (“TMC”) decided a 17 % reduction on termination prices for interconnection with the mobile networks of Telefónica Móviles España S.A. and Airtel Móvil S.A.New prices will be the following:
Price (EUR/minute)Normal price [Mon – Fri (8:00-20:00)] 0.171830Reduced price 0.094631
For more information please contact: [email protected]
16. TELECOMMUNICATIONS
BRAZILPERSONAL CELLULAR SERVICE BANDS D AND EThe National Telecommunication Agency (Anatel) scheduled for 22nd
October 2002 the action of radio frequency for mobile communications known as bands D and E that were not sold in previous bids. Any company will be able to participate in the process. However, in the case of fixed telephony companies, the rendering of the PCS services will only be possible after their universalisation goals are accomplished.For more information please contact: [email protected]
BRAZILPERSONAL CELLULAR SERVICE REGULATIONS
On 18th July 2002, the National Telecommunication Agency (“Anatel”) submitted for public consultation changes to the PCS regulation. The main changes proposed relate to the remuneration for the use of network, selection of long distance carrier by consumers and payment default by consumers.Anatel tried to make the existing rules more flexible and, thereby encourage mobile operators to adopt the new model. The term for the submission of comments expired on 19th August 2002. The final document has not been approved by Anatel yet.
For more information please contact: [email protected]
GERMANYFEDERAL COURT ON CONSTITUTIONALITY
OF THE TELECOM ACTAccording to a resolution of the Federal Constitutional Court (Bundesverfassungsgericht – BverfG) in Germany, property owners may not refuse to accept the laying of phone cables in the ground if certain circumstances as determined in the German Telecommunication Act (Telekommunikationsgesetz – TKG) are fulfilled.Several plaintiffs took legal action against the electric utility company "Bayerngas" for the removal of two pipes, each of which contained up to two fibre optic cables. The pipes had been laid in ground owned by the plaintiffs. Action, appeal and second appeal did not succeed. In the end, the Federal Constitutional Court refused to allow the case to be taken further, ruling that it would not have any chances of success. The Court argued that the TKG would be found, in accordance with the German Constitution, to set out the prerequisites for obligating a property owner to tolerate such work on his land. Under the TKG the works must not permanently restrict the use of the property, and the property owner can only claim compensation if the use of the property is substantially restricted or if there had never been any telecommunication pipelines in the ground prior to the laying of the new cables. Therefore, the Federal Constitutional Court ruled that the legislator would observe the principle of proportionality in balancing the property owners' interests and the extraordinary importance of telecommunications for the national economy. Thus, the TKG would be considered constitutional beyond any doubt.For more information please see: www.bverfg.de or www.heise.de
LUXEMBOURGINVOICES ISSUED BY TELECOM LICENSEES
The Institut Luxembourgeois de Régulation (“ILR”), the Luxembourg telecommunications authority, in a decision 02/51ILR of 19th July 2002, published on 1st August 2002 (the “Decision”), has decided to fix the level and the details of invoices issued by operators holding a telecommunications licence A and a telecommunications licence B.According to the Decision itemised invoicing should be available to end-users without any additional costs. The invoice must at least provide the following information on any outgoing communication:
the date; the hour; the called number; and the costs before taxes.
The only derogation with respect to the above information is for calls directed to the so-called “free call” numbers of the “800” numbering segment which are not invoiced to the appellant.The form of the itemised invoice providing the above mandatory information remains with the operators.The Decision will enter into effect as of 1st October 2002 at the latest. However, the ILR recommends that operators comply with the Decision forthwith.For more information please contact: [email protected]
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MEXICOTHE NEW TELECOM LAW
SUBMITTED TO CONGRESSAfter almost a year of works and negotiations organised and undertaken by the Mexican Parliamentary Conference on Telecommunications, an initiative to pass a new Federal Telecommunications Law was submitted before the Mexican Congress. It is still uncertain whether or not the new law will pass as drafted, as not all the political parties that participated in such works were in agreement with the proposal that was finally submitted to the Congress.Among the issues that will certainly continue to be discussed in Congress is whether the Mexican Antitrust Commission is able to determine whether or not antitrust practices are present in a given telecommunications activity. A proposal that was discussed in the process and that was abandoned included the possibility of granting broad powers to the Mexican Federal Telecommunications Commission to determine whether or not an antitrust practice exists.The recent override of the Dominance Rules issued against Telmex, which were basically revoked on the grounds that the elements serving as the basis for declaring the dominant carrier were not sufficiently supported by the Antitrust Commission, clearly demonstrate that the Federal Telecommunications Commission is the proper instance for making such an assessment. The unbundling of the local loop remains another controversial issue. As to foreign investment, the new law is not expected to modify the existing 49% foreign investment limitation (except for cellular telephony). The recent acquisition by Citigroup of Banamex (the Mexican investor in a joint venture with MCI Worldcom) and the Mexican Foreign Investment Commission's acceptance of a structure that will most certainly "de facto" leave administrative "control" of the company in the hands of foreign investors, ought to be sufficient to modify the law so that foreign investors are allowed a greater degree of control over Mexican telecommunications activities.For more information please see: www.cddhcu.gob.mxor contact: [email protected]
PORTUGALTHE TELECOM MARKET
The Portuguese telecommunications market is currently at a stage of unpredictability as rumours on mergers between fixed and mobile operators proliferate.The 2000 liberalisation process in the fixed market has partially failed. In fact, despite the entrance of 12 new players in the market, most of them gone bankrupt, others are facing serious financial problems and a very few are managing to succeed. Also, and notwithstanding the significant number of new players, their market share is little higher than 7%.As a result of the above, rumours of mergers are becoming more consistent and there are doubts as to whether the new entrants will have the ability to stay in the market on their own in the face of a powerful incumbent operator – PT Comunicações. Accordingly a merger between two of the new fixed operators - Oni and Novis - would be welcomed by both the public and commentators.On the other hand, the mobile market is somewhat ruffled by the constant rumours of a merger of all existing companies in the market and by the fact that OniWay (a new mobile operator) is likely to start operating soon.
In the light of what has been said the next few months are likely to be crucial for the telecommunications sector in Portugal as important changes are expected to occur at any time.For more information please contact: [email protected]
SPAINMAIN OPERATORS IN MOBILE AND FIXED TELEPHONY
MARKETSThe Royal Decree-Law 6/2000, of 23 June, as amended by Law 14/2000, of 28 December 2002, stated some limitations to cross ownership in telecommunications (mobile and fixed telephony) and energy markets, in order to increase the competition degree in the referred markets.According to art. 34 of the referred Royal Decree-Law, voting rights in more than one main operator in the same mobile or fixed telephony market are limited to a 3 % of the capital stock. It is neither allowed to have the right to appoint, directly or indirectly, members of the administration body in more than one of those main operators. The rule also states that a “main operator” is one of the five operators with the highest market shares in any of the referred markets, according to the list to be published by TMC.
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On 30 July 2002, the TMC published the list of main operators in each of the referred markets, introducing a new approach to determine which players should be considered main operators, consisting not only in the analysis of the operator on its own, but also considering the company group in which the operator is integrated as a whole, in order to determine whether it reaches the required market share.According to TMC main operators are:
in the fixed telephony market, the following company groups:· Telefónica: Telefónica de España, S.A.U; Telefónica Cable,
S.A.U.; Telefónica Data España, S.A.U.; and Telefónica Móviles España, S.A.U.;
· Auna: Retevisión, S.A.U.; Aragón de Cable, S.A.; Cable i Televisió de Catalunya, S.A.; Cabletelca, S.A.; Madritel Comunicaciones, S.A.; Supercable Almería Telecomunicaciones, S.A.; Supercable Andalucía, S.A.; and Supercable Sevilla, S.A.;
· France Telecom: Lince Telecomunicaciones, S.A.U.; and Catalana de Telecomunicacions, Societat Operadora de Xarxes, S.A.;
· Jazztel: Jazz Telecom, S.A.U.; and· Cableuropa: Cableuropa, S.A.; Cable y Televisión de Andalucía,
S.A.U.; Mediterránea Norte Sistemas de Cable, S.A.; Mediterránea Sur Sistemas de Cable, S.A.; Ono Net Comunicaciones, S.A.U.; Región de Murcia de Cable, S.A.; and Valencia de Cable, S.A.
in the mobile telephony market, the following company groups: · Telefónica: Telefónica Móviles España, S.A.U.;· Vodafone: Airtel Móvil, S.A.;· Auna: Retevisión Móvil, S.A.; and· Xfera: Xfera Móviles, S.A.
For more information please contact: [email protected]
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EDITOR / EDITORIAL BOARDEDITOR: Stephan LE GOUEFF, , Luxembourg
Country Firm Contact E-mail Site
EUROPEAustria Dorda, Brugger & Jordis Stephan POLSTER [email protected] www.dbj.at
Belgium Altius Herman DE BAUW [email protected] France Kahn & Associés Sabine LIPOVETSKY [email protected] www.kahnlaw.comFinland Roschier-Holmberg & Waselius Craig THOMPSON [email protected] www.rhw.fiGermany Wessing Jürgen A. HEILBOCK [email protected] www.wessing.de
Ireland McCann Fitzgerald Damian COLLINS [email protected] www.mccann-fitzgerald.ie
Italy Studio Legale Tonucci Fabrizio CUGIA [email protected] / European Union [email protected] Stéphan LE GOUEFF [email protected] www.vocats.com
Norway Thommessen Krefting Greve Lund Arne RINGNES [email protected] www.tkgl.no Portugal Vieira De Almeida & Associados Margarida COUTO [email protected] Spain Gomez Acebo & Pombo Almudena ARPON deMENDIVIL [email protected] www.gomezacebo-pombo.comSweden Advokatfirman Lindahl Erik BERGENSTRÄHLE [email protected] www.lindahl.se Switzerland Bär & Karrer Michael BERNASCONI [email protected] www.baerkarrer.ch The Netherlands Kennedy Van der Laan Martine DE KONING [email protected] www.kvdl.nl
Turkey Hergüner, Bilgen & Özeke Hakki GEDIK [email protected]
Ukraine Grischenko & Partners Sergei A. VOITOVICH [email protected] www.lawgris.kiev.ua United Kingdom Olswang Colin LONG [email protected] http://www.olswang.co.uk
NORTH AMERICACanada McCarthy Tétrault
Montreal: Michel RACICOTToronto: Lorne SALZMAN
[email protected]@mccarthy.ca
www.mccarthy.ca
USA Fried Frank Harris Shriver & Jacobson Thomas P. VARTANIAN [email protected] www.ffhsj.com
CENTRAL & SOUTH AMERICAArgentina Estudio Millé Gonzalo ZORRILLA [email protected] www.reis.com.ar/estudiomille Brazil Pinheiro Neto – Advogados Raphael de CUNTO [email protected] www.pinheironeto.com.br Chile Carey y Cía. Ltda. Alfonso SILVA [email protected] www.carey.cl
Colombia Cavelier Abogados Daniel PEÑA [email protected] www.cavelier-abogados.com
Mexico Barrera, Siqueiros y Torres Landa, S.C. Andrés ACEDO [email protected] www.bstl.com.mx
Venezuela Hoet Pelaez Castillo & Duque Fernando PELAEZ-PIER [email protected] www.hpcd-abogados.com
ASIA PACIFICIndia Nishith Desai Associates Vaibhav PARIKH [email protected] www.nishithdesai.com Malaysia Zaid Ibrahim & Co. Julian DING [email protected] China /Hong Kong Johnson Stokes & Master David ELLIS [email protected] New Zealand Bell Gully David G. BOSWELL [email protected] www.bellgully.com
AFRICA & MIDDLE EASTEgypt Kamel Law Office Mohamed KAMEL [email protected] www.ie-eg.com/kamellaw Israël Soroker – Agmon Law Offices Jonathan AGMON [email protected] Lebanon Alem & Associates Leila LAILA [email protected] www.alemlaw.com Nigeria Paul Usoro & co Paul USORO [email protected] www.paulusoro.com South Africa Webber Wentzel Bowens Peter GREALY [email protected] www.wwb.co.za UAE Afridi & Angell Antony WATSON [email protected] www.afridi.com
TABLE OF CONTENTS BY COUNTRYCountry Title Category
BRAZIL
E-procurement ELECTRONIC COMMERCE
Foreign investment in journalistic and broadcasting Co. MEDIA
Personal Cellular Service bands D and E TELECOMMUNICATIONS
Personal Cellular Service regulations TELECOMMUNICATIONS
CHILE Confidentiality in tarification process TARIFFS
COLOMBIA Common prefixes or suffixes in pharmaceutical TM INTELLECTUAL PROPERTY
EU
Opinion on cybercrime COMPUTER CRIME
Personal data in the electronic communication sector DATA PROTECTION
Radio Spectrum Policy Group and European Regulators Group INFORMATION SOCIETY POLICY
FRANCE Private copying tax INTELLECTUAL PROPERTY
GERMANY
Federal Court rule on calls financed by advertising CONSUMER PROTECTION
District Court in Düsseldorf rules on "Domain-Grabbing" DOMAIN NAMES
Modification of administrative procedural regulations ELECTRONIC SIGNATURE
Federal Court on constitutionality of the Telecom Act TELECOMMUNICATIONS
IRELANDAllocation of 3G licences MARKET ACCESS
Report of forum on broadcasting MEDIA
ITALYSignificant power of operators in Internet access market COMPETITION
Software copyright protection INTELLECTUAL PROPERTY
LEBANON The new law 440 on arbitration ALTERNATIVE DISPUTE RESOLUTION
LUXEMBOURGLaw for protection of conditional access services MEDIA
Invoices issued by telecom licensees TELECOMMUNICATIONS
MEXICOPreservation of data messages ELECTRONIC COMMERCE
The new Telecom Law submitted to Congress TELECOMMUNICATIONS
PORTUGAL The telecom market TELECOMMUNICATIONS
SINGAPORE Viacom International Inc. Vs. Elitist (mtv.com.sg) DOMAIN NAMES
SOUTH AFRICA The Interception and Monitoring Bill PRIVACY
SPAIN
Penalties imposed to Telefónica by the TMC COMPETITION
Law on Information Society services and e-commerce INFORMATION SOCIETY POLICY
TMC analyses the merger of the two TV digital platforms MEDIA
Country Title CategoryNew interconnection prices for mobile dominant operators TARIFFS
Main operators in mobile and fixed telephony markets TELECOMMUNICATIONS
TURKEY
The Internet and criminal law COMPUTER CRIME
Hostile takeover prevented by white knight FINANCIAL SERVICES
New communiqué on vertical restraints COMPETITION
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