Escolar Documentos
Profissional Documentos
Cultura Documentos
A. WHAT IS A SPECTRUM
B. TYPES OF SPECTRUM
C. ROLE OF SPECTRUM IN TELECOMMUNICATION
D. REGULATING THE SPECTRUM SPECTRUM SCARCITY AND
INTERFERENCE
A. CONSTITUTIONAL ASPECTS
B. REGULATORY FRAMEWORK FOR BROADCASTING
C. PUBLIC & PRIVATE BROADCASTING
D. CONTENT RESTRICTIONS
E. INNTERCONNECTION ARRANGEMENTS
A. INTRODUCTION
B. INTERNET GOVERNANCE NAMING AND ADDRESSING
C. NET NUTRALITY & LICENSING
D. PROTECTION OF PRIVACY AND SECURITY
E. REGULATION OF SOCIAL MEDIA
2
A. JURISDICTIONAL ISSUES
B. INFRASTRUCTURE OF INTERNET
C. ROLE OF TRAI
LIST CASES
B. Computer and Communications Industry Assoc. v. FCC 693 F.2d 198 (D.C. Cir. 1982)
C. United States v. Western Elec. Co., 673 F.Supp 525 (D.D.C. 1987)
D. Natl Cable & Telecomms. Assn v. Brand X Internet Servs., 545 U.S. 967 (2005)
E. United Church of Christ v. FCC, 327 F.3d 1222 (D.C. Cir. 2003)
F. United States v. Western Elec. Co., 673 F.Supp 525 (D.D.C. 1987)
G. Red Lion v. Red Lion Broadcasting Co., Inc. v. FCC 395 U.S. 367 (1969)
H. Centre for Public Interest Litigation V Union of India (UOI) and Ors.
MANU/SC/0372/2016
I. G. Sundarrajan vs. Union of India (UOI) and Ors.
J. Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal
AIR 1995 SSC 1236 2SCC 161
K. United States v. Warshak
L. MTNL Vs TRAI AIR 2000 Del 208 (2000) 1 Comp Lj 335 (Del)
M. Centre for Public Interest Litigation and Ors. Vs. Union of India (UOI) and Ors
1996 SCC (2) 405
4
Chapter 1
Communication has been one of the deepest needs of the human race throughout recorded
history. It is essential to forming social unions, to educating the young, and to expressing a
myriad of emotions and needs. Good communication is central to a civilized society.
Thevariouscommunicationdisciplinesinengineeringhavethepurposeofprovidingtechnological
aids to human communication. One could view the smoke signals and drum rolls of primitive
societies as being technological aids to communication, but communication technology as we
view it today became important with telegraphy, then telephony, then video, then computer
communication, and today the amazing mixture of all of these in inexpensive, small portable
devices.
Initially these technologies were developed as separate networks and were viewed as having
little in common. As these networks grew, however, the fact that all parts of a given network
had to work together, coupled with the fact that different components were developed at
different times using different design methodologies, caused an increased focus on the
underlying principles and architectural understanding required for continued system evolution.
This need for basic principles was probably best understood at American Telephone and
Telegraph (AT&T) where Bell Laboratories was created as the research and development arm
of AT&T. The Math center at Bell Labs became the predominant center for communication
research in the world, and held that position until quite recently. The central core of the
principles of communication technology were developed at that center.
DRAFT
TELECOMMUNICATIONS & BROADCASTING LAW COURSE
Perhaps the greatest contribution from the math center was the creation of Information Theory
[27] by Claude Shannon in 1948. For perhaps the first 25 years of its existence, Information
Theory was regarded as a beautiful theory but not as a central guide to the architecture and
design of communication systems. After that time, however, both the device technology and
the engineering understanding of the theory were sufficient to enable system development to
follow information theoretic principles.
A number of information theoretic ideas and how they affect communication system design
will be explained carefully in subsequent chapters. One pair of ideas, however, is central to
almost every topic. The first is to view all communication sources, e.g., speech waveforms,
image waveforms, and text files, as being representable by binary sequences. The second is to
design
The interface between the source coding layer and the channel coding layer is a sequence of bits.
However, this simple characterization does not tell the whole story. The major complicating factors are
as follows:
Unequal rates: The rate at which bits leave the source encoder is often not perfectly matched to the
rate at which bits enter the channel encoder.
Errors: Source decoders are usually designed to decode an exact replica of the encoded sequence,
but the channel decoder makes occasional errors.
Networks: Encoded source outputs are often sent over networks, traveling serially over several
channels; each channel in the network typically also carries the output from a number of different
source encoders.
The first two factors above appear both in point-to-point communication systems and in networks. They
are often treated in an ad hoc way in point-to-point systems, whereas they must be treated in a
standardized way in networks. The third factor, of course, must also be treated in a standardized way in
networks.
The usual approach to these problems in networks is to convert the superficially simple binary interface
above into multiple layers as illustrated in the below
6
How the layers in Figure operate and work together is a central topic in the study of networks and is
treated in detail in network texts such as [1]. These topics are not considered in detail here, except for
the very brief introduction to follow.
channel
Figure 1.6: The replacement of the binary interface in Figure 1.6 with 3 layers in an
oversimplified view of the internet: There is a TCP (transport control protocol) module
associated with each source/destination pair; this is responsible for end-to-end error recovery
and for slowing down the source when the network becomes congested. There is an IP (internet
protocol) module associated with each node in the network; these modules work together to
route data through the network and to reduce congestion. Finally, there is a DLC (data link
control) module associated with each channel; this accomplishes rate matching and error
recovery on the channel. In network terminology, the channel, with its encoder and decoder, is
called the physical layer.
The output of the source encoder is usually segmented into packets (and in many cases, such as email
and data files, is already segmented in this way). Each of the network layers then adds some overhead to
these packets, adding a header in the case of TCP (transmission control protocol) and IP (internet
protocol) and adding both a header and trailer in the case of DLC (data link control). Thus, what enters
the channel encoder is a sequence of frames, where each frame has the structure illustrated in Figure 1.7.
These data frames, interspersed as needed by idle-fill, are strung together and the resulting bit stream
enters the channel encoder at its synchronous bit rate. The header and trailer supplied by the DLC must
contain the information needed for the receiving DLC to parse the received bit stream into frames and
eliminate the idle-fill.
When the packet finally reaches its destination, the IP layer strips off the IP header and passes
the resulting packet with its TCP header to the TCP layer.
The TCP and IP layers are also jointly responsible for congestion control, which ultimately
requires the ability to either reduce the rate from sources as required or to simply drop sources
that cannot be handled (witness dropped cell-phone calls).
In terms of sources and channels, these extra layers simply provide a sharper understanding of
the digital interface between source and channel. That is, source encoding still maps the
source output into a sequence of bits, and from the source viewpoint, all these layers can
simply be viewed as a channel to send that bit sequence reliably to the destination.
In a similar way, the input to a channel is a sequence of bits at the channels synchronous input
rate. The output is the same sequence, somewhat delayed and with occasional errors.
Thus, both source and channel have digital interfaces, and the fact that these are slightly
different because of the layering is in fact an advantage.
The source encoding can focus solely on minimizing the output bit rate (perhaps with
distortion and delay constraints) but can ignore the physical channel or channels to be used in
transmission. Similarly, the channel encoding can ignore the source and focus solely on
maximizing the transmission bit rate (perhaps with delay and error rate constraints).
Network neutralitythe idea that Internet service providers (ISPs) should treat all data that
travels over their networks fairly, without improper discrimination in favor of particular apps,
sites or servicesis a principle that must be upheld to protect to future of our open Internet.
It's a principle that's faced many threats over the years, such as ISPs forging packets to tamper
with certain kinds of traffic or slowing down or even outright blocking protocols or
applications. In 2010, the Federal Communications Commission (FCC) attempted to combat
these threats with a set of Open Internet rules. But its efforts were full of legal and practical
holes. In 2014, after a legal challenge from Verizon, those rules were overturned, and the FCC
set about drafting a new set of rules better suited to the challenge.
9
Theres no silver bullet for net neutrality. The FCC order plays a role by forbidding ISPs
from meddling with traffic in certain ways. But transparency is also key: ISPs must be open
about how traffic is managed over their networks in order for both users and the FCC to know
when theres a problem. Local governments can also play a crucial role by supporting
competitive municipal and community networks. When users can vote with their feet,
service providers have a strong incentive not to act in non-neutral ways. Its our Internet, and
were going to fight to protect it We want the Internet to live up to its promise, fostering
innovation, creativity, and freedom.
We dont want regulations that will turn ISPs into gatekeepers, making special deals with a
few companies and inhibiting new competition, innovation and expression.
DRAFT
NET NUTRALITY
DRAFT
1 Most jurisdictions, including those that are said to have
adopted a NN framework, however, do not explicitly define this
term in their policy/regulatory framework. This idea of equal or
nondiscriminatory treatment of content while providing access to
the Internet, however, resonates in the principles adopted by
them. This is also the context in which this term is being used in
this consultation paper. 2.2 Setting out the Indian context
DRAFT
(ii) Licensing regime: India is divided geographically into many
license service areas and the boundaries of these areas may
vary for different types of license.
services that are delivered using IP but do not serve the same
functionality as the public Internet; or those that may require a level of
quality that cannot be guaranteed on the Internet. ii. Defining the core
principles of NN: Authorities in India are yet to take a final view on
whether and how the term NN should be defined for the purposes of
our legal/ regulatory framework.
DRAFT
Therefore, depending on the instrument that we use for adopting NN
principles in India, the monitoring responsibilities can vary from a
situation where the primary responsibility remains with the Authority
and other government agencies, to one where we consider other
participative /collaborative models for monitoring and sharing of
compliance information.
Traffic Management
11 3.1 Need for traffic management 3.1.1 As discussed, the proliferation of a vast
variety of applications, websites, and other forms of content on the Internet, has
enhanced user choice and paved the way for greater innovation and competition.
However, a fundamental feature of the Internet is that it operates on a best efforts
basis.
This means that the TSPs do not guarantee either the time of delivery of each and
every data packet transmitted over the Internet or even the fact of such delivery.
3.1.2 At the same time, we know that the diverse range of content available on the
Internet has varying characteristics, uses and bandwidth requirements. For
instance, some content (like video) requires high bandwidth whereas some
applications (like real-time gaming) have very stringent requirements.
The exponential increase in Internet traffic and the evolving nature of the content
that constitutes part of this traffic, can therefore lead to the overburdening of
networks. As a result, TSPs may not always be able to deliver an adequate level
of QoS to their users, which is problematic both from a regulatory compliance
perspective as well as for competitive reasons. Firstly, the regulations put in place
by the Authority require the TSP to adhere to certain QoS benchmarks that are
regarded as basic indicators of the satisfactory performance of the network.1
1 For instance, TRAIs Standards of Quality of Service for Wireless Data Services Regulations,
2012 put in place requirements relating to average latency, which refers to the time taken by a
packet to reach the receiving endpoint once it has been transmitted. Secondly, competitive forces
also drive TSPs to manage their networks in a manner that is conducive to attracting new
customers and retaining existing ones by offering them a satisfactory user experience.
DRAFT
As a result, TSPs tend to deploy various types of traffic management techniques
on their networks in order to meet the demands for delivering a satisfactory QoS.
This is often done by taking into account the specific nature and needs of the data
packets being transmitted.
3.1.4 Some of the common reasons for which TMPs may be deployed are
discussed below:
Network security and integrity: TSPs may need to deploy TMPs in order to
protect their networks from viruses, spam, denial of service attacks, hacking
attacks against network/terminal equipment, malicious software etc. These
activities have the potential to harm both the network and end-users.
TSPs have the incentives to ensure that their networks are managed in a manner
that offers the best possible experience to a large number of users using different
categories of content. However, the same commercial considerations that prompt
TSPs to use TMPs to improve network performance can also become the cause of
certain exclusionary or discriminatory practices. For instance, vertical integration
or partnerships with content providers are increasingly being seen as one such
source of additional financing or strategic engagement for TSPs.
3.2.2 Globally, there are several examples of TSPs interfering with their networks
by using TMPs to carry out service blocking, prioritizing affiliated content
provider services or throttling competing ones. Several stakeholders have also
pointed to the emergence of similar practices in the Indian context.
DRAFT
These practices can also distort competition in the content provider business,
thereby discouraging present and future innovation. If permitted, they could tilt
the playing field in favour of companies with the ability to form partnerships with
TSPs, often on account of their deep pockets, and TSP-owned content 15
companies.
Similarly, there is also a concern that TMPs may be used as a tool to preserve
legacy systems at the cost of new technologies that may be able to deliver more
useful or affordable solutions for users.
3.2.4 The resolution of these issues is closely related to TRAIs policy objectives
of protecting the interests of consumers and ensuring orderly growth of the sector.
The growth of the Internet has had a cascading effect on multiple other sectors of
the economy, both commercial businesses and different components of the social
sector. Innovation on the Internet and ensuring its openness is, therefore, critical
not just for the direct users of Internet access services but also all the providers
and users of numerous services that are built around the Internet ecosystem.
3.2.5 At the same time, TRAI is also concerned about taking into account the
interests of service providers, once again with the objective of protecting the
interests of the sector as a whole. This gives rise to the need to consider the
balance between allowing TSPs to manage their network in a reasonable manner
versus their obligation to do so in nondiscriminatory manner. In the absence of
21
3.3.1 In order to clarify the ambit and duty-bearers under any reasonableness
standard, it is essential to first understand the contours of the traffic that is
sought to be covered within the scope of the present discussion. For this purpose,
it is important to identify the meaning of Internet services and the persons who
are regarded as being providers of such services. For instance, should the
application of any TMP standards be limited to providers of last-mile Internet
access services or should any other categories of persons also be included within
its scope.
3.3.2 The Unified Access Service License (UASL) in India defines the Internet
to mean a global information system that is linked together by a globally unique
IP address and is able to support communications using the TCP/IP suite or other
IP compatible protocols.
The terms of the license identify the scope of services that can be offered by a
licensee that is authorized to provide Access Services or Internet Services.
These include, Internet Telephony, Internet Services including IPTV, Broadband
Services and triple play i.e. voice, video and data. The term Internet Services
itself has however not been explicitly defined.
DRAFT
and providing connectivity to virtually all or all or substantially all end points
on the Internet or any other criteria should also be used in India.
3.3.5 As a logical corollary to this discussion, any services that do not qualify as
Internet access services would fall outside the purview this makes it important
to discuss whether there is a need to define this residual category and what are the
types of services or arrangements that may be covered in its scope.
3.3.6 Some other jurisdictions have used terms like specialized services or
managed service to identify the services that are excluded from the scope of
NN regulations. One criteria for defining such services may be that such services
may require a guaranteed level of QoS that cannot be offered on the public
Internet.
This is the approach followed by the EU regulations, which exclude services that
are optimized for specific content, applications or services, where such
optimization is necessary in order to meet requirements of a specific level of
quality. Examples include health-care services like tele-surgery, Voice over
Internet Protocol (VoIP) and IPTV services.
23
3.3.7 The FCC on the other hand has observed that the use of the term
specialized services can be confusing as the critical point is not whether the
services are specialized but that they are not broadband Internet access
services.
While choosing not to define the scope of these non-broadband services on the
ground that this may limit future innovation and investment, the FCC did
however refer to the following general characteristics that were identified by the
Open Internet Advisory Committee in the United States:
1. These services are not used to reach large parts of the Internet;
2. They are specific application-level services, and not generic platforms; and
3. They use some form of network management to isolate the capacity being used
from that used by broadband Internet access services.
1. Enterprise solutions
DRAFT
3. Content Delivery Networks (CDN) and interconnection arrangements
3.3.9 As per the FCC, broadband Internet access service does not include VPN
services, CDN, hosting or data storage services, or Internet backbone services, as
they do not provide the capability to exchange data with all Internet endpoints.
Similarly, the Body of European Regulators for Electronic Communications
(BEREC) Guidelines, 2016 suggest that a specific 19 VPN that offers a private
network, with access to limited endpoints and is secured for internal
communications, could qualify as a specialized service.
2 Large content providers may also directly host their content inside the TSPs
network through direct interconnection arrangements. As noted above, the NN
frameworks adopted by some other jurisdictions have clarified that they do not
regard such services and arrangements as falling within the scope of Internet
traffic. This issue has however not yet yet been fully debated in the Indian NN
consultation processes and therefore merits further deliberations.
Some stakeholders take the view that the former case should be viewed more
strictly as it is clearly discriminatory and a strong indicator of commercial
motivations. On the latter case, while some others believe that video content,
which is bandwidth intensive, may pose greater congestion challenges than other
content and therefore would require differential treatment, others pointed out that
this should be addressed in a proportional and temporary manner, rather than 21
permanently discriminating against video content.
This points back to the principle that TSPs must deliver all traffic on a best-
efforts basis irrespective of the category of traffic. v. Proportionality:
DRAFT
(i) This might be useful for identifying those TMP that are discriminatory in effect but
not evidenced by an explicit commercial agreement or partnership.
(ii) Adequate disclosure to users about traffic management policies and tools to allow
them to make informed choices.
(iii) Application-agnostic controls may be used but application-specific control within
the Internet traffic class may not be permitted
(iv) Practices like deep packet inspection should not be used for unlawful access to the
type and contents of an application in an IP packet.
Improper (paid or otherwise) prioritization may not be permitted. Thus,
the DoT Committee recommended a framework that goes beyond testing
for commercial motivation (paid or otherwise) to broader principles of
transparency and nondiscrimination. They also took a strict view of
prohibiting application-specific controls, while suggesting that
application-agnostic controls could be utilized.
27
DRAFT
29
DRAFT
31
Spectrum Management
Ownership of Spectrum
It was once believed that spectrum is the property of the government, and hence
the government could use it in a manner that suited it and that the government
had exclusive rights to regulate and allocate spectrum. But post 1995 this belief
has changed. This has been possible due to a historic judgment given by the
Honble Supreme Court of India in 1995 in the case of Secretary, Ministry of
Information and Broadcasting, Govt. of India v. Cricket Association of Bengal
which decided that spectrum is actually public property. This judgment has
changed the perception of ownership of spectrum in India and the way the
government handles and manages spectrum in todays scenario
DRAFT
Spectrum management is the combination of administrative and technical procedures with legal
connotations necessary to ensure efficient operation of radio communication services without causing
harmful interference. There are two levels at which spectrum is managed:
1. National
2. International
Humans have divided territory into countries and continents, but spectrum knows no such bounds. Thus
there has to be international co-operation in the management of spectrum. There are various
international organizations for the purpose of harmonizing the use of spectrum between countries. The
organizations that are addressed are ITU and APT. The role played by these organizations have already
been discussed earlier.
The NFAP is the basis on which spectrum frequencies are allocated in India. The ITU issues the
international frequency table for the purpose of giving the member countries a basis on which they can
formulate their own frequency allocation plan. The NFAP is the frequency allocation plan of India. This
plan clearly allocates different frequency bands for different radiocommunication services. Although it
allocates frequency bands for certain services, it does not give ownership rights to those services. NFAP-
81 was in force till December 31, 1999 for commercial and other uses. NFAP-81 was formulated for a
time, when usage of frequency bands was primarily done by the government agencies with some
exploitation by private parties for their dedicated networks.
33
SACFA is a wing of the DoT which gives approval for radio frequency (spectrum) used by
telecom service providers. Obtaining a telecom license is not enough for the operator to begin
rolling out the services; a no objection from SACFA is required. This involves a detailed
technical evaluation including field studies in order to determine inter alia possible aviation
hazards and interference (Electro Magnetic Interference (EMI)/Electro Magnetic
Compatibility (EMC)) to existing and proposed networks.
To deal with frequency co-ordination problems referred to the committee by the administrative
Ministries/Departments.
DRAFT
REGULATORY PROTECTION ON DATA
FRAMEWORK
On data protection to the electronic communications sector, the impact of the new provisions on internet
service providers will be dealt with under Chang, If
is to ensure an equivalent level of protection, in particular as regards the rights to prime, resmct to the
processing of personal data in the electronic communications sector and to WW free movement of such
data and of electronic communications equipment and serum; m m Community. Accordingly, the E-
Privacy Directive applies to the processing of data mum}, hrix ate individuals or legal entities wholly or
partly by automatic means and, if by mam, means. \\ here the data will be maintained as part of a filing
system, in connection with the pronslob of publicly available communications services and networks in
the EU. This would apply 10% on. for instance, employees of a communications operator, its
customers, suppliers and Slim holders. Certain provisions apply only to digital networks and not to
analogue networks.lg [mm the Framework Data Protection Directive, the E-Privacy Directive also
covers the prowling the legitimate interests of legal persons.29 The E-Privacy Directive particularises
and complemmk the provisions of the Framework Data Protection Directive.30 It does not apply to
activities cm of the scope of the EC Treaty (e.g. provisions of the Treaty of the European Union
concerning a common foreign and security policy and police and judicial co-operation in criminal
matterst' 3Q to public security, defence, state security and activities in areas of criminal law.32
I 234 Scope of application of the E-Privacy Directive -The purpose of the E-Privm pm " ti
1-235 Rules for collecting, processing and transferring data As a general rule, Member State; must
ensure that personal data is: (i) processed fairly and lawfully; (ii) collected and processedonh for
specified, legitimate and explicit purposes; (iii) collected only if it is adequate, relevant and not
excessive in relation to the purposes for which it is collected; (iv) accurate and kept unto-date where
necessary; and (v) kept in a form which permits the identification of individuals for no longer than
necessary in view of the purposes of the processing. This means that traffic data relating to subscribers
and users34 that is processed and stored by a provider of a public communicanons
plan to reduce those differences, based on cooperation among Member States and between Member
States and the Commission: see First Report on the Implementation of the Data Protection Directive 95
46. COM (2003 265 tinal: and Commission Press Release IP/03/697, of May 16, 2003.
3 ibid., Art.3. In contrast to the Framework Data Protection Directive, para.l-233, n.24, the E-anacy
Directive. para.l-01 l, n.3l, specifically applies to legal persons.
35
1 ibid., Art.3(2) and (3). Their provisions relate to calling line and connected line identification (Art.8l~
location data (Art.9) and automatic call forwarding (Art.ll).
so ibid.
3 The term subscriber is defined as any natural or legal person who or which is party to a contract
with the provider of publicly available electronic communications services for the supply of such
services: E-Privacy Directive, para.l-Oll, n.31, Art.2 and Framework Directive, pawl-009, 11.25, Ami
The term user" is defined as any natural or legal person using a publicly available telecommunications
service. for private or business purposes, without necessarily having subscribed to this semee": E-
Privacy Immense.
arguably claim database protection" Nor does it apply to prootected under the Computer Software
Directive. '
The Database Directive establishes a dual regime of prom h % brotection for the strucmre of certain
databases and a newly called at gm. 1% he content of all databases. N
1-250 Conditions of eligibility Databases shall be preteen! byWt h. Selection or arrangement of their
content, they constitute the authors on w No other criteria shall be applied to determine the eligibility ii:
that M ASfN qualify for protection, a database must not have been copied or plagiarised and drug}
arrangement of data must Show a minimum of originalin This my man in km of a telephone directory
would not qualify for copyright plum although hymn: yellow pages may meet these requirements and
thus be entitled to Std m0
The protection under the Database Directive applicable to not extend to the contents of the database and
is without prudence to lights Including copyright protection, which will continue to be determined by
the [than N national law and any Community measures.
1-251 Beneficiaries of copyright protection for dambass -Copyright rests in kmWork. Authorship of a
database belongs to the naturized person or group of manual mucreated the database, or, when
DRAFT
permitted by national law, to the legal pawn Wank holder by that legislation. In contrast to the
Computer Programs Diraiive. II: [N Directive does not provide for the transfer as a matter of law to an
employer of thank relating to a database protected by copyright that is mated by an employee in the
mix} duties or following the instructions given by his employer. However, Mamba" Stan-35m for such a
statutory transfer in their national liitgisizuion.3
benefits from all the rights generally granted by copyright reproduction by any means and in any form,
in whole or in pan; (ii) translation. dram
16 ibid, Art.2(a). Likewise, Directive 91/250 concerning the prom of computer mm?
Data Protection
(iii) any form of distribution to the public of the database or of copies thereof:
(iv) any communication, display or performance to the public:
37
and (v) any reproduction. distribution. communication. display or performance to the public of any
translation. adaptation. arrangement or other alteration. With very broad restricted rights means that they
would cover the temporary storage or transfer of a database on another medium.
such that given browsing a database on the internet would be subject to the authors consent.
The authors exclusive right to any form of public distribution of a database or copies thereof in t1
physical form (tag. on a CD-ROM) includes distribution in a non-physical form (mg. online access).
EU-wide exhaustion of the distribution right applies only to the first sale of each physical copy ofa
database: the authors rights are only exhausted to that copy of the database and not the database
generally.86 The transfer of a database or part of it through online access alone should be analysed as the
provision ofa service with the result that there is no exhaustion of rights.X7 This also applies with regard
to a copy of all or part of an online database made by the user of online services with the consent of the
right holder. Thus, there is no exhaustion of the distribution right in a database in the case of a permitted
downloading and creation of a new copy and the author can prohibit any resale or further distribution of
such a copy.
1-253 Limitations on copyright protection -A lawful user of a database (Le. a purchaser or a licensee)
does not require the consent of the author for any of the restricted acts reserved to the author if they are
necessary for the purposes of access to the contents of the database and normal use of the contents.89 If
the user is permitted to use only part of the database, this exception applies only to that part.90 Any
contractual provisions to the contrary are null and void as a matter of law.
5 Lehmann (see para.1-249, n.7l), p.784. That said, these provisions are without prejudice to Directive
2001 29 of the European Parliament and of the Council of May 22, 2001 on the harmonisation of certain
aspects of copyright and related rights in the Information Society (also called Information Society
Copyright Directive), O.J. 2001 L167/ 10, aimed at harmonising the rights of reproduction, distribution
and communication to the public in the context of the Information Society. The Directive stipulates that
temporary storage or browsing of any copyrightable content is subject to the authors consent, although
it provides for an exception for temporary copies that enable the user to make use of the work, such as
caching. The provisions of the Copyright Directive are reviewed in paras 2-075 and 3 021 et seq.
1" Database Directive, para.l-249, n.7l, Art.5(c). The exhaustion of rights theory, which results from
the case law of the European Court of Justice, stipulates that an intellectual property right cannot be used
to prohibit the sale in a Member State of goods which have been marketed in another Member State by
the holder of the intellectual property right or with his consent. This theory, which is based on the rules
of the EC Treaty on free movement of goods (Art.28, ex 30), was developed initially in relation to
patents (Case 15/74 Centrafarm BVet Adriaan de Peijper v Sterling Drug Inc. [1974] E.C.R. 1147) and
has gradually been extended to other intellectual property rights, including copyrights (Case-78/70
Deutsche Grammophon Gesellschaft mbH v Metro-SB-Gro/ima'rkte GmbH & Co. KG. [1971] E.C.R.
487). For more details on the exhaustion of rights theory, see Bellamy and Child, Common Market Law
of Competition (Sweet & Maxwell, 5th ed., 2001), paras 8~009 and 8-067.
37 Database Directive, para. 1--249, n.7l, Recital 33. See Case 62/79 SA Compagnie gnrale pour la
diffusion delatlvision, Coditel v Cin Vog Films ( No.1 ) [1980] E.C.R. 881 and Case-262 81 Coditel
SA, Compagm'e
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gnrale pour la diffusion de [a tlvision v Cin-Vog Films SA (No.2) [1982] E.C.R. 3381. 3 Lehmann
(see pawl-249, n.72), p.786.
3" Database Directive, para.1-249, n.7l, Art.6(l). 9 ibid. 9' ibid., Art.15.
39
The FCC has ruled that AT&T must pay traditional local access charges to complete Internet
phone calls.
Coverage at http://news.com.com/2100-7352_3-5197204.html
FCC order at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-97A1.pdf
In a split decision, the FCC has approved a request from VoIP provider
Pulver.com to be immune from the set of government rules, taxes and
requirements that applied to 20th-century telephone networks. The decision does
not address whether traditional phone regulations might apply to VoIP services
that interconnect with the traditional telephone system.
http://news.com.com/2100-7352_3-5158105.html
http://www.nytimes.com/2004/02/12/technology/12CND-NET.html
http://www.siliconvalley.com/mld/siliconvalley/news/editorial/7939332.htm
In a series of letters made public Tuesday, the US Justice Department said it will request the FCC to
invoke the 1994 Communications Assistance for Law Enforcement Act. That law requires
telecommunications carriers to rewire their networks to government specifications to provide police with
guaranteed access for wiretaps. The DOJ wants VoIP providers to comply with the law, which would
permit police to wiretap conversations carried over the Internet.
http://news.com.com/2100-7352_3-5157282.html
California's Public Utilities Commission has decided to move forward with plans to regulate the VoIP
industry. In a unanimous vote, the commission tentatively assumed jurisdiction over any VoIP call that
connects with traditional phone networks. It also decided to begin drafting Net phone regulations.
http://news.com.com/2100-7352_3-5157628.html
<http://www.latimes.com/technology/la-fi-voip12feb12,1,250598.story>
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