Friday, 26 April 2013

The Convergence Green Paper that the European Commission didn’t write

The new European Commission Green Paper “Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values” seems to have been a mouthful even for the Commission’s own PR department.  The press release translates it into ‘Internet on TV, TV on Internet’ - which does give a better flavour of what the Green Paper is about.

The Green Paper is a typical Commission mixture of current technology trends (dual screening gets a mention), market statistics leavened with a few anecdotes, lobbyists’ issues of the moment and hints of interventions that the Commission may have in mind for the future.  These are all underpinned by an unwavering belief in the efficacy of State-led intervention to achieve the Commission’s chosen public policy objectives.
As is de rigeur in documents such as this, the Commission has a grand vision:
“to seize the opportunity of this changing technological environment to ensure the widest possible access to European diversified content for all Europeans and, the widest choice of high quality offers”. 
That hints of a more interventionist Fortress Europe attitude than the Commission’s December 1997 Convergence Green Paper (PDF):
“This first step is intended to pave the way for the development of an appropriate regulatory environment which will facilitate the full achievement of the opportunities offered by the Information Society, in the interests of Europe and its citizens as the 21st century begins.”
Beyond the grand vision there is some fairly controversial stuff in the new Green Paper, particularly around the possibility of extending the Audiovisual Media Services Directive both in scope and to non-EU service providers. 

But I am afraid I tired of the DG-speak.  I started to imagine the 2013 Convergence Green Paper that the Commission could have written, but didn’t. 

Here it is.
“15 years ago, in December 1997, we at the Commission published a Convergence Green Paper.   We said:
“… the Commission's Communication on electronic commerce … proposed the principle of 'no regulation for regulation's sake'.   This principle applies equally to all areas of convergence.”
We tentatively suggested five key regulatory principles that should govern our activity in the field of convergence.  They included:

“Regulation should be limited to what is strictly necessary to achieve clearly identified objectives.”
Of those five regulatory principles that we suggested in 1997, this remains the most important.  We observed then that:

“public authorities must avoid approaches which lead to over-regulation, or which simply seek to extend existing rules in the telecommunications and media sectors to areas and activities which are largely unregulated today.”
The Commission recognises that the pursuit by government of general policy goals – such as media pluralism, cultural diversity, protection of consumers and minors, media literacy – carries with it the potential for unintended consequences and regulatory failure and to undo the general good that comes from freedom of private action.  The Commission appreciates that government failure is a more significant risk than market failure.    

Adhering to the principle of strict necessity, the Commission’s goal now must be to clear away all regulatory and legislative obstacles to future innovation in the audiovisual sphere.  The only permissible exception can be regulation that is conclusively demonstrated, by the most stringent criteria, to be both necessary and effective for the achievement of a generally agreed legitimate public policy objective; which carries a demonstrably minimal risk of unintended or damaging negative consequences, risk of regulatory capture or other regulatory failure; and which does not disproportionately interfere in fundamental human rights, in particular the right of freedom of speech.
The Commission recognises that the internet has brought forth the greatest flowering of individual communication and access to knowledge since the dawn of mankind.  Speech on the internet is a delicate flower which must not be damaged.  The Commission applauds the comments in the Joint Dissenting Opinion in the recent Animal Defenders case in the European Court of Human Rights:
“there seems to be an inherent contradiction in a viable democracy safeguarded by broadcasting restrictions. … A robust democracy is not helped by well-intentioned paternalism.”
Stated simply, the Commission’s role is now to clear the field of regulation and move out of the way.  This will enable the peoples of Europe to make their own viewing and listening choices at all levels: international, nation, group, community and individual.  If some people prefer Disney to Hugo, that is an expression of their individual autonomy and right to cultural self-determination.  As such it is outside the legitimate sphere of action of the Commission.

Each person in Europe must be free to choose and pursue their own personal goals.  It is not for the Commission to formulate policy goals and then to expect private actors, economic or otherwise, to pursue objectives that we set for them.  The Commission does not know what form any future innovation will take, or what the pace of innovation will be.  Nor can it ever know.  It is not the Commission’s place to attempt predictions, still less to formulate interventions based upon them. 
The Commission does not believe that it should set concrete targets to be achieved by some arbitrary future date.  We at the Commission shiver with embarrassment at the memory of the programme to ‘Complete the European Single Market by 31 December 1992’ - for all the world like some Soviet era tractor production plan.
The Commission recognises that innovation brings change.  It is no part of the Commission’s role to save legacy actors from the consequences of change, nor to try to influence future change in a particular direction.  The Commission recognises that any adverse consequences of change for particular sectoral and vested interests are outside the Commission’s legitimate sphere of action.  The Commission strongly believes that the European taxpayer should not to be compelled to subsidise historic industries in the name of cultural diversity. 
Turning specifically to the audio-visual sector, in the 1997 Green Paper the Commission said:
"… convergence may lead to less regulation in telecommunications and media sectors, and should not lead to more regulation in areas such as IT."
And
"Convergence may challenge current regulatory approaches, particularly, with regard to licensing of networks and allocation of resources, where such approaches reflect a perceived scarcity of both radio-frequency and of content."
"…in a fully digital environment, scarcity may over time become a less significant issue, calling for current regulatory approaches to be reassessed."  
Since scarcity has now all but disappeared, other than where artificially created by regulation, the time has come to reassess current regulatory approaches. 

Ideally the Commission would propose to sweep away the archaic structures of broadcast regulation, which have their roots in the government spectrum grabs of the mid 20th century.  However we recognise that most Member States will continue to cling to these regulatory models like the man with the red flag in front of the early motor car. 
Pragmatically, broadcast regulation is likely to wither as it becomes less and less relevant.  It is however imperative, as articulated in the 1997 Green Paper, to prevent outdated broadcast regulatory models from spreading any further, especially to the internet.  We now realise that it was a serious error in the AVMS Directive to extend regulation to so-called ‘TV-like’ on-demand services.  We will roll that back at the earliest opportunity.
The cross-border aspect of the internet is becoming increasingly significant.  The AVMS Directive does not apply to services originating outside the EU.  The Commission recognises that the people of Europe are readily able to understand that incoming foreign services are created under different sets of legal standards and to appreciate those services in that context. 
In the spirit of international cultural diversity the Commission believes that the fewest possible obstacles should be put in the way of incoming non-EU services, including where they are targeted at the EU.  The Commission would regard it as an act of unwarranted arrogance for the EU to seek to apply its content laws to services originating in non-EU countries and regions. 
The choice of European citizens to access and be informed about non-EU services that may not adhere to European content laws or standards should therefore not be denied or hindered by any Member State.  The Commission especially welcomes the opportunity for European citizens to share in the rich and diverse cultural heritage of the USA.”

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