Public consultation on piracy protection for services protected by conditional-access systems
Contribution of the Social Communications Office of the Italian Episcopal Conference
Introduction
- Name, postal and e-mail address of your organisation.
Ufficio per le Comunicazioni Sociali della Conferenza Episcopale Italiana
Circonvallazione Aurelia, 50
00165 Rome
Italy
- What is your interest in conditional access services?
The national social communications office (UCS) of the Italian Episcopal Conference (CEI), set up within the CEI Secretariat, is a direct expression of the pastoral activities of the Italian Church in this sector (press, cinema, radio, TV, etc.).
The office’s activities can be split into two basicareas: services and relations within the ecclesiastical world and external services and relations.
Internal communication relates to the management of communication and information between the General Secretariat of the CEI and the associated offices, services and organisations (Caritas Italiana, Migrantes Foundation, Missio Foundation, etc.) and between the pastoral offices and services themselves.
External communication relates to relations with the “lay” press and contacts with reporters from the printed press, television and radio, as well as information managers of weekly and periodical publications.
- In which EU country/countries do you operate?
Italy
Issue 1. The “grey market” in cross-border services
The most recent data from market research surveys confirms that European Union consumers are interested in receiving pay-TV services such as news, culture or sports programmes, from EU countries other than their own.
Even though there are no accurate figures or estimates of the size of the cross-border access market and grey market, it seems clear that, in order to avoid cases of piracy, strict controls are required for these services too.
The difficulties that prevent the purchase of broadcasting rights for events taking place outside national borders include the trend towards creating de facto monopolies by engaging in the mass purchase of rights, thus making them unavailable to any other operators and leading to a considerable hoarding of rights.
Issue 2. Effectiveness of national implementation of the Directive
Pay-TV is subject to continuous crypto-analytical or other forms of attack, aimed at descrambling programmes in order to allow people to view them who are not authorised to do so because they are not paying viewers. These are considered to be “cracking” activities with clear commercial aims, consisting of the sale or modification of systems for the unauthorised reception of pay-TV programmes.
Analyses carried out by independent companies and industry operators may disagree on the size of the problem but they all present an alarming picture. Television companies and various States have incurred damages running into billions of euros from the loss of subscriptions and the loss of tax revenue respectively, while several thousand jobs have been lost due to non-investment.
The European Union, its Member States and industry operators have taken some legislative and technical action, but it does not seem to have affected the phenomenon, given that it has continued to expand.
Because of the failure of this action, and the expected increase in the number of pay-TV services following the shift to terrestrial digital television, we believe that further action is necessary.
The first form of action is of an exclusively cultural nature.
The parties damaged by piracy should take action to convince people that unauthorised viewing is “unacceptable” in both legal and financial terms.
At the present time, this awareness-building action, which also applies to other kinds of piracy (software, music, film), is carried out rarely and with little conviction. The problem is almost always dealt with in a sensationalist way, and only discussed when a pirating organisation is uncovered or an encryption is introduced, updated or forced, without this having any significant effects in terms of education or greater awareness.
The cultural path is a very long one that requires a great deal of time but, putting rhetoric to one side, it appears to be the only one that will ensure that solid and long-lasting results are achieved.
The second kind of action is of a legislative nature.
With the encouragement of pay-TV companies, the European Union issued Directive98/84/EC in 1998 on the legal protection of services based on, or consisting of, conditional access, in which activities and systems that allow unauthorised viewing are declared illegal.
In Italy, the Directive was definitively transposed by Law no. 22 of 15 January 2003, incorporating Legislative Decree no. 373 of 15 November 2000. Italian legislation does not appear to be entirely satisfactory when it comes to adequately preventing and cracking down on illegal activities. This is because the sanctions do not appear to be sufficient, despite the fact that Law no.22/03 reintroduced criminal sanctions for piracy offences. It seems appropriate in this respect to increase the severity of sanctions, not in a general way but specifically for each individual type of illegal activity, as well as to suspend and inhibit the identified activities.
The laws introduced in EU countries after the Directive was issued have allowed small pirate organisations to be dismantled and websites hosted on servers in the same countries, which distributed software and keys, to be closed down.
Big organisations have however continued to operate and administer sites in countries in Eastern Europe and the former USSR where the field is not regulated.
Partial legislative action by a small number of countries does not appear to be sufficient to combat the piracy. Legislative harmonisation which considers unauthorised viewing illegal in the largest possible number of countries or, better still, throughout the world, seems to be the only strategy for achieving a significant reduction in the phenomenon.
The final area for action relates to technology.
The current conditional-access system does not appear capable of guaranteeing security but, for the time being, there do not seem to be any more effective alternatives.
Proposals for more secure conditional-access systems or techniques for discovering “traitors”, i.e.unauthorised users who distribute keys to the public to allow unauthorised viewing, have not yet been implemented. Therefore, the only viable solutions seem to lie in strengthening and correctly administering the existing conditional-access system.
Broadcasters should implement all the action planned to ensure the correct administration of the conditional-access system, such as frequent changes of the Service Keys (several times a day) and periodic changes of smart cards (every six to twelve months).
3. New services covered by the Directive
The so-called open web and mobile telephony are the biggest unknowns when it comes to assessing the development of technology in the near future, given that both services are creating a new relationship between producers and goods, particularly between providers and telephone companies on the one hand and consumers on the other, the latter having taken on a more active role. This relationship, assuming it is legal and based on transparency, satisfaction and efficiency, could furthermore bring about a significant change in the current framework, while however making the rules imposed by current legislation obsolete. Specific attention needs to be paid to minors in this respect, given that they are intensive users of mobile phones and therefore most frequently exposed to the harm caused by the programmes viewed and by potential acts of piracy.
Issue 4. The Directive has increased copyright protection
Piracy and the illegal downloading and distribution of copyright protected content continue to raise concerns. The fight against piracy requires a series of complementary actions: 1) the development of a legal supply; 2) educational initiatives; 3) the enforcement of rights; 4) the search for more effective co-operation between Internet service providers (ISP) in order to put a stop to the distribution of illegal content. Education and awareness-building on the importance of copyright in ensuring the availability of content are widely recognised as efficient tools for fighting piracy.
It makes sense to encourage the establishment of co-operation procedures (code of conduct) between access and service providers, copyright owners and consumers, in order to guarantee a diversified and attractive online supply, easily accessible online services, adequate protection of works protected by copyright, awareness-building on the importance of copyright in guaranteeing the availability of content and greater co-operation in the fight against piracy and illegal file sharing.
Issue 5. Digital rights management (DRM) systems
The term “Digital Rights Management” normally describes the set of hardware and software systems used to protect the holders of rights to intellectual works produced in digital format.
The purpose of these technologies is to allow the description, protection, control and tracking of all forms of sale of a specific digital content protected by intellectual property rights.
The purpose of DRM systems is to protect information consistently throughout its commercial lifecycle.
Various DRM systems have been eluded by hackers and there is a constant battle going on between people who produce Digital Rights Management systems and people trying to crack them in order to gain free access to the content.
One way of avoiding the duplication of intellectual works is to prevent them being viewed, which is obviously absurd. By using DRM technologies, regulation for the industry could however provide rights holders with the opportunity to achieve an equal or greater level of security than the one with which the rights associated with the media are normally sold.
Issue 6. Use of conditional access for purposes other than revenue protection
Conditional-access services should respect the rules regarding the protection of minors. It is therefore desirable, for example, for broadcasting times to be respected and, as regards the sale of videophone top-up cards, for a ban to be imposed on them being sold to people of any age. More generally, it would be appropriate in any case for the current rules regarding content in the new TV without Frontiers Directive (Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, Official Journal of the European Union L 332/27 of 18.12.2007), which establishes a minimum package of provisions aimed at protecting minors, to be adapted.
Conditional-access systems with a purpose other than that of protecting profits include Parental Control, which does not however fully satisfy safety requirements in terms of the measures adopted and/or the methods used to inform users. It seems important in this respect to stress the role of parents and, more generally, of the people responsible for educating minors. The greater protection of minors from illegal or harmful content must also be pursued by increasing the knowledge and ability of parents, a purpose which must be pursued jointly by public institutions and the operators themselves, avoiding the distorted use of new technological opportunities for commercial ends.
The experience gained in Italy, particularly with the non-widespread use of Parental Control, resulting from the use by conditional-access broadcasters of a system that gives users a simple choice of whether to use the filtering system for programmes that are harmful to minors, leads to the following considerations, which are intended to make the system of protections used by conditional-access systems more efficient and reliable. The purpose of these is to ensure, among other things, that the system is not perceived by the public to be exclusively intended to protect the economic interests of the author and producer but also to fulfil essential social requirements, which include defending human dignity and protecting minors.
The system, as it is implemented in Italy, only allows for a very small number of broadcasters to use a method which requires a PIN-Password to be entered every time, therefore providing more effective protection and requiring an actual, conscious choice to be made about viewing a given programme accompanied by a content warning (which applies to hardcore or adults-only broadcasts, occasionally close to the limits of pornography, or programmes that exalt gratuitous violence which would be prosecutable under the law).
In normal circumstances, however, a subscription and/or insertion of a card (which can be purchased or recharged without effective checks being made even on the age of the person requesting it) are sufficient for conditional-access broadcasts, which means that the user’s inertia, by not making a positive choice to adopt parental control, is enough to make the content accessible indefinitely, even though it may be classified as harmful to minors.
All of this leads one to express justified doubts – which are confirmed by current legal disputes and as a result of initiatives taken by bodies responsible for the protection of minors under the terms of the Self-regulation code on TV and Minors – about the evasion of specific European Community decisions, which provide for the following even in conditional-access sectors:
a)a general ban on broadcasts that might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence, requiring specific transmission times and technical measures to be selected in the case of “other programmes” to ensure that “minors in the area of transmission will not normally hear or see such broadcasts” (clearly with a general reference, given that the subsequent paragraph provides for further duties to give warnings and directions in the case of “programmes broadcast in clear”: Article 22 Council Directive 89/552/EEC);
b)the duty to adopt measures suited to ensuring that on-demand audiovisual media services that may seriously impair the physical, mental or moral development of minors are only made available to the public in such a way as to ensure that minors will not normally see or hear such on-demand audiovisual media services (Article 3(i) of Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007: in this respect it is worth noting that the English and French versions are much more forthright than the Italian translation);
c)the provisions on the protection of minors to be retained, including those adopted in pursuance of Directive 89/552/EEC (Recital 24, Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access). It is worth pointing out that an extremely welcome initiative was recently taken in Italy by the Associazione per il digitale terrestre (digital terrestrial broadcasting association), the members of which are RAI, Mediaset, Telecom Italia, DFREE, FRT and Aeranti-Corallo, to promote a “common specification” aimed at the manufacturers of decoders and integral televisions, which allows users not only to exclude a particular channel, but implements a block based on a rating associated with a specific event (a rating that can be transmitted by the broadcaster together with other information).
We should underline that under the terms of the Italian digital broadcasting association’s specification, receivers are set by default with a rating threshold for programmes that are banned to people under the age of 18, which means that, if no action is taken by the user, the receiver always asks for a PIN to be entered.
The system could be perfected and spread to all kinds of decoders and equipment (including satellite equipment), naturally provided that the criteria on the basis of which the rating is set by the broadcasters are stated and generally shared.
This would ensure greater uptake of the whole conditional-access system, with the resulting acknowledgement of its general usefulness and its positive value for users as well as broadcasters, and therefore that it should be respected not only for the purpose of protecting the producer’s assets.
Beyond the technical aspects and the devices used allegedly to protect users in respect of the increasingly widespread use among young people and adults of the various means of communication, the issue is now emerging of respect for the dignity of individuals and ethical principles, which cannot be ignored in commercial relations or sidestepped or deemed to be surmountable in view of the level of market demand.
Conclusion
The Consultation provides an opportunity to focus on various aspects of the purpose of conditional-access audiovisual services, i.e. encrypted services that can only accessed by users who pay a subscription. These services too must ensure pluralism, freedom of expression and a real opportunity to form opinions, guaranteeing the presence of the various intellectual and cultural strains that exist in the community. Among these, the religious dimension is particularly important, both as an expression of the spiritual dimension and because it inspires personal choices and guides people in the choice of personal and collective lifestyles.
The recognised influence that audiovisual media have on the way in which the public form their opinions, and the ability that these means have not only to mirror customs but to make them conform, implies that they offer a real opportunity to express and communicate ideas, convictions and lifestyles, even through conditional-access services.
The opportunity for the religious dimension and for a culture inspired by Christian values to have a place in a pluralistic context is essential for freedom of thought and expression and needs to be guaranteed by broadcasters who are specifically defined as public service broadcasters, by the production and distribution of broadcasting services and by the management of broadcasters who provide for their distribution.