Diseño del sistema electrónico y de control

A.4.3 Extraterritorial associated facilities provider

We have seen that it is possible that regulators will consider databases, such as presence management, to be an associated facility.

A key difference between such databases and existing associated facilities is that in practice, existing associated facilities (such as intelligent network nodes, co-location, etc.) are (almost) always located in the country where the ECS is being offered. National law is thus currently a viable means of regulating the providers of associated facilities.

This is not the case for databases such as DNS or presence management databases, which can be located either partly or wholly outside the country in which the service is offered and indeed be located outside the EU (we say ‘partly’ because the databases may have a distributed structure). In such a case, regulators may not be able to apply their national law to the providers of the associated facility unless they have some local presence (e.g. as a local service provider).

If we imagine a hypothetical case, an IM service provider could sell its presence database and licence it on an exclusive basis from a legally separate company with no presence in the EU. As Recital 19 to the Access Directive makes clear, “An operator with mandated access obligations cannot be required to provide types of access that are not within its power to provide”. In such a case it is difficult to see how the presence database could be regulated as an associated facility under the NRF, unless the Commission were to mandate a particular standard for presence management in the official journal. See below for a discussion of such remedies.

A.5 Remedies available to regulators in the associated convergent services markets

A.5.1 General conditions

If associated convergent services such as IM and PM were considered to be ECS (or associated facilities) then they would be subject to general conditions of authorisation.

Most of these are (in effect) concerned with consumer protection. Few of these would be of direct concern to IM and PM providers.

For example, only a few of the UK’s general conditions apply:

• Condition 1: Obligation to Negotiate Interconnection (if providers of public ECNs or associated facilities)

• Condition 2: Standardisation and specified interfaces

• Condition 9: Requirement to Offer Contracts with Minimum Terms (which is unlikely to be an issue for a free service)

• Condition 11: Metering and billing (which is unlikely to be an issue for a free service)

• Condition 15: Codes of practice and dispute resolution.

Conditions 1 and 2 might offer means of resolving a protocol interoperability dispute if one were to arise. For example, the EC could (if it thought it necessary) mandate a standard interface for (for example) presence management databases and publish this decision in the OJ.

We note that such an action could impose significant financial penalties on the presence management companies (in that it could in the worst case destroy their advertising funded business model, because third-party clients without adverts could be created).

The general conditions, though aiming to produce the same effects (implementing the Directives), are quite different in different countries. As a result of these differences, we note that any required remedies that rely on the use of the general conditions may be jurisdiction-dependent. These differences are as a result of, for example, different legal systems, and different ways in which the NRF has been transposed into national law.

A.5.2 Article 12 of the Access Directive and its relevance to associated convergent services

If an associated convergent service was considered to be an ECS (or an associated facility) and there was a relevant market which applied, and one player was dominant (or several were jointly dominant) then the NRF offers possible ex-ante remedies using Article 12 of

• Art 12(a): “operators may be required inter alia…to give third parties access to specified network elements and/or facilities, including unbundled access to the local loop.

• Art 12(e): “operators may be required inter alia…to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services”

• Art 12(g): “operators may be required inter alia…to provide specified services needed to ensure interoperability of end to end services to users, including facilities for intelligent network services or roaming on mobile networks”

• Art 12(h): “operators may be required inter alia…to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services”

‘Operator’ means “an undertaking providing or authorised to provide a public communications network or associated facility”.

A.5.3 Mandatory standardisation

Under the NRF (Framework Directive, Article 17) the Commission has the power to make a technical standard compulsory. This power is only available “to the extent strictly necessary to ensure…interoperability and to improve freedom of choice for users”.

As noted in the discussion of general conditions above, this power might offer means of resolving a protocol interoperability dispute if one were to arise.

A.5.4 Potential impact of other laws affecting the regulation of associated convergent services

The software directive and copyright protection laws

Decompilation (i.e. examination of computer executable code to determine its function) is allowed to reverse-engineer a protocol in order to provide interoperability, under Article 6

of the Software Directive. (Directive 91/250/EC of 14 May 1991). This might, in effect, solve the problem of a closed protocol for an associated facility such as a presence management server, because it would be legal to reverse engineer it. However, it does not ensure that the protocol is always available to third-party clients, because there will always be a delay in such reverse engineering.

Rights of end-users and software suppliers in this area may be subject to changes because they are (or can be) closely related to technical measures protecting intellectual property (typically digital rights management for video, audio, and image content, for example). In the USA, the wide-ranging Digital Millennium Copyright Act (DMCA) makes it (in effect) illegal to break such encryption systems even for uses that would have been considered fair use in traditional copyright law (such as enabling format conversion of electronic book material for the blind); therefore reverse engineering an encrypted presence management protocol could be (in effect) illegal if it was used to protect intellectual property. The relevant EU Directive, which is similar to the DMCA, is still in draft form.

The software patent directive

The European Parliament recently voted (24/9/03) for amendments to the proposed EU Directive on the Patentability of Computer-Implemented Inventions. The amendments included the following:

6a. Member States shall ensure that, wherever the use of a patented technique is needed for a significant purpose such as ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement.

This could prevent the use of patents to protect a “closed” protocol within, for example, an associated facility. However, it should be remembered that it may well not become part of the final Directive.