简介
A complex network of regulatory systems has arisen around the provision of media in Europe. In this connection regulating content is a focal point, as content is not only of economic but of vital cultural importance. At Community level a wide variety of measures have been taken to promote this branch of industry, especially in fields in which new and innovative digital technologies are used to enhance the market potential of content and creative products and services. This important book focuses on regulatory interventions in the content industry under Community law. It offers an in-depth perspective on the functioning of the European legal framework for the content industry, its guiding principles, and its explicit and sometimes more fluid interface with policy areas falling largely into Member States competences. In this aspect the book can also be read as an analysis of the impact of the cooperation between European and Member State regulation when economic as well as social, democratic, and cultural policy goals are at stake. Among the areas of content regulation covered are: legal definitions related to the content industry; branches of the content industry broken down according to content category and distribution system; the division of competences between the EC and the Member States in cultural affairs;Community projects relevant to the content industry; competition rules relating to distribution; market entry and access regulation in the electronic communication markets; specific regulation for such considerations as the protection of minors, protection of health, protection of consumers, and protection of personal rights; ensuring and safeguarding functioning market structures in the content markets; and harmonization and coordination measures. The basis of this book was a research project commissioned by the Austrian Federal Chancellery in preparation for a seminar supported by the European Commission in connection with Austria?s Council Presidency in the first half of 2006. As a systematic overview and analysis of the legal bases of European content regulation, this book will be of extraordinary value to practitioners, policymakers, officials, and academics in the fields of media and communications law. Beyond that, the work sheds a clear and defining light on an area that has an important role to play in the future economic growth and the development of a competitive business environment in Europe.
目录
Table Of Contents:
List of Contributors v
Foreword vii
PART ONE THE LEGAL ASPECTS OF EUROPEAN CONTENT REGULATION 鈥?PURPOSE AND SCOPE OF THE STUDY 1
Chapter 1 Objective of the Book: A Horizontal Approach to European Content Regulation 3
I. The Background 鈥?Content as Part of Europe's Culture 3
II. A Systematic Review and Analysis of European Content Regulation on a Horizontal Basis 4
Chapter 2 Structure and Methods 7
I. Definition of the Subject Under Investigation 7
II. Analysis of the Individual Regulatory Areas of European Community Law Governing the Content Industry 7
III. Conclusion and Evaluation 13
Chapter 3 The European Content Industry 鈥?Categorization and Definitions 15
I. The Subject under Investigation 15
II. Categorization of the Content Industry 16
III. Legal Definitions Relating to the Content Industry 18
Figure 1 Focus of the Study 16
Figure 2 Branches of the Content Industry Broken down According to Content Category and Distribution System 17
Figure 3 Legal Definitions Related to the Content Industry 20
PART TWO THE INDIVIDUAL REGULATORY FIELDS 鈥?AN ANALYSIS OF THE DIFFERENT EUROPEAN PROVISIONS FOR THE CONTENT INDUSTRY 23
Chapter 1 Fundamentals of Community Law and Policies (Including Funding Programmes) Governing the Content Industry 25
I. Preliminary Remarks 25
II. Fundamentals of Primary Law 26
A. The Fundamental Freedoms 鈥?Treaty Establishing the European Community and Case-law of the European Court of Justice 26
1. Free Movement of Goods 28
2. Freedom to Provide Services 32
B. The Relevance of Fundamental Rights in Community Law 37
C. The Amsterdam Protocol on Public Broadcasting and the Exemption Clause for State Aid Aimed at Promoting Culture and Cultural Heritage 39
D. The Division of Competences Between the EC and the Member States in Cultural Affairs 41
1. Preliminary Remarks on the Concept of Culture Enshrined in the EC Treaty 41
2. The Concept of Division of Competences Between the EC and the Member States 41
3. The Cultural Policy of the Community Pursuant to Article 151 EC 42
4. European Cultural Policy in an International Context 44
III. Secondary Legislation of the EU for Promoting the Content Industry 45
A. The Lisbon Strategy 鈥?a New Impetus for Promoting the European Content Industry 45
B. General Information on the Funding Programmes of the Content Industry 46
C. Cultural Programmes 48
D. MEDIA Programmes 49
E. Special Funding Action in the Fields of Information and Communication Technologies (ICT) 52
1. The 'eContentplus' Funding Programme 53
2. The 'Safer Internet Plus' Funding Programme 54
IV. Community Projects Relevant to the Content Industry 54
A. Communication from the Commission 'i2010 鈥?A European Information Society for Growth and Employment' 54
B. Proposal for a Directive on Services in the Internal Market and its Implications for the Content Industry 55
1. General Information 55
2. The Scope of Application of the Services Directive 56
3. Open Questions Regarding the Service Directive 57
V. Content as a European Cross-cutting Subject 鈥?Conclusions and Evaluation 58
Chapter 2 The Content Industry and General Competition Law 61
I. Ensuring Functioning Market Structures 61
A. General Applicability of the Competition Rules to the Content Industry 62
1. Specific Relevance of Competition Rules 62
2. Personal Scope 63
B. Market Definitions for Media Content 64
C. Competition Rules Concerning the Production Level (Upstream) 66
1. General Cartel Prohibition 鈥?Article 81 EC 67
2. Prohibition to Abuse a Dominant Position Article 82 EC 69
3. Control of Concentrations 70
D. Competition Rules Relating to Distribution (Downstream') 72
1. General Ban on Cartels 鈥?Article 81 EC 72
2. Prohibition of the Abuse of a Dominant Position Article 82 EC 76
3. Control of Concentrations 77
II. Protecting Third Parties and Safeguarding General Interests 78
A. Protecting the Final Consumer 78
B. Protecting Competitors? 79
C. Protecting Trading Partners 79
III. Preserving the Single Market 80
IV. Interactions Between the Intended Aims 81
V. Direct Aids for Producing and Broadcasting Content 82
A. Article 81(3) EC 鈥?Exemptions General Ban on Cartels 82
B. Objective Justification According to Article 82 EC 83
VI. Safeguarding Undistorted Competition from Intervention by the Member States 83
A. Resale Price Maintenance for Books 83
B. Article 87 EC 鈥?Framework for State Aid in the Content Industry 84
VII. Summary and Conclusion 88
Chapter 3 Sector-specific Regulation at Infrastructure Level 91
I. Preliminary Remarks: Sector-specific Regulation at Infrastructure and Content Level 91
II. Market Entry and Access Regulation in the Electronic Communication Markets Ensuring Functioning Market Structures in the Content Industry 92
A. Infrastructure Regulation as Market Regulation 92
B. Regulation of Market Entry in the Electronic Communications Markets 92
1. Relevance for the Content Industry 92
2. General Versus Individual Authorization 鈥?Media and Culture Related Selection Criteria 94
C. Regulation of Access to Communications Networks and Services 95
1. Relevance for the Content Industry 95
2. The General Access Regulation Regime for the Communications Markets 98
3. The Specific Access Regulation Regime for the Field of Digital Television 100
D. Capability of the Market Entry and Access Regulation Regime to Ensure Cultural and Democratic Policy Objectives 鈥?Problem Analysis 101
E. Summary 102
III. Ensuring a Basic Supply of the Population with Content Protection of Third Party and Further General Interests 103
A. The Public Interest in the Content Markets 103
B. Universal Service Regime 104
C. Must-carry Provisions 105
D. Broadcasting of Major Events 106
E. The Special Importance and Role of Public Broadcasting Within the EU 107
F. Analysis of the Public Interest Regulation at Infrastructure Level 鈥?Problematic Aspects 108
1. Transition from Analogue to Digital Technologies 108
2. Access to Broadcasting and Programme Rights on a Sector-Specific Basis 109
3. Political Consensus Regarding the Role of the Public Service Broadcasting Organizations within the Community? 110
G. Summary 111
IV. Standardization Activities in the Content Industry Preservation of the Single Market 112
A. Standardization in the Online Content Market a Primarily Market Led Process 112
B. Specific Standardization Measures for Digital Interactive Television 113
C. Other Standardization Activities in the Content Industry 115
D. Problematic Aspects with Regard to the Standardization Processes on the Content Markets 115
E. Summary 116
V. Direct Promotion of the Production and Distribution of Content 117
VI. Summarizing Evaluation 鈥?Reciprocity and Interconnections between the Various Regulatory Instruments in Sector-specific Regulation at Infrastructure Level 117
Chapter 4 Sector-specific Regulation at Content Level 119
I. Preliminary Remarks 119
A. Objects and Systemization of Sector-specific Regulation at Content Level 119
B. Development of Sector-Specific Regulation at Content Level 121
II. The Protection of Third Parties and Further Public Interests 123
A. Review of Status Quo 123
1. Regulation of Content for the Protection of Human Dignity, as well as the Protection of Other Fundamental Values of a Democratic Society 123
2. Regulation of Content for the Protection of Minors 124
3. Regulation of Content for the Protection of Health 126
4. Regulation of Content for the Protection of Consumers 128
5. Regulation of Content for the Protection of Personal Rights 132
B. Analysis of the Problem 133
C. Summary 135
III. Promoting Production and Dissemination of Content 136
A. Review of Status Quo 136
1. Direct Promotion of Content 136
2. Indirect Promotion of Content 137
a. Promotion through tax breaks for film and television 137
b. Promotion by limiting regulatory possibilities 137
B. Analysis of the Problem 140
C. Summary 143
IV. Maintaining the Single Market 143
A. Review of the Status Quo 143
B. Analysis of the Problem 145
C. Summary 147
V. Conclusions 147
Chapter 5 Copyright and Related Rights 151
I. Legal Protection of Content Promotion of the Production and Distribution of Content 151
A. Review of the Status Quo 151
1. Database Directive 151
2. Information Society Directive 152
a. Reproduction Right 152
b. Communication, Including Making Available, to the Public 153
c. Limitations and Free Uses of Works 153
d. Legal Protection of Technological Protection Measures 153
e. Sanctions under the Information Society Directive 154
3. Enforcement Directive 154
4. Country-of-origin and Country-of-transmission Principles and Exceptions 154
a. Country-of-transmission Principle 154
b. Country-of-origin Principle 155
5. Rights Management and Collecting Societies 156
6. Resale Rights Directive 156
7. Harmonization of Copyright Contract Law 157
8. Consolidation of the European Copyright Laws 157
B. Problem Analysis 157
1. Scope of the Database Protection 157
2. Information Society Directive 159
a. Lack of Clarity Regarding the Scope of the 'Making Available' Right 159
b. Allocated Uses 160
c. Sanctions Under the Information Society Directive 162
3. Enforcement Directive 162
4. Country-of-origin and Country-of-transmission Principles 163
a. Country-of-transmission Principle 163
b. Country-of-origin Principle 164
5. Collective Exploitation of Rights and Collecting Societies 165
6. Resale Rights Directive 167
7. Harmonization of the Copyright Contract Law 167
8. Consolidation of the European Copyright Law 168
C. Summary 169
II. The Necessity for Exclusivity 鈥?Ensuring Functioning Market Structures on the Content Markets 170
III. Creating a Balance 鈥?Protection of Third Parties and Further General Interests 171
A. Review of the Status Quo 171
1. Information Society Directive 172
a. Limitations 172
b. Technological protection measures/DRM 172
c. Device and media charges, double remuneration 172
2. First Sale Doctrine Online 173
3. Enforcement Directive 173
4. Conditional Access Directive 174
5. Obligations to Provide Information and Transparency in E-commerce 174
B. Problem Analysis 174
1. Information Society Directive 174
a. Limitations 174
b. Technological Protection Measures 177
2. First Sale Doctrine Online 181
3. Enforcement Directive 181
4. Conditional Access Directive 182
5. Information Obligations and Transparency in e-commerce 182
C. Summary 183
IV. Making Ends Meet: Summarizing Evaluation Reciprocity and Interconnections between the Objectives Pursued 184
Chapter 6 Regulation of the Content Industry through Tax Measures 191
I. Promoting the Production and Distribution of Content through Tax Measures 191
A. The Framework Conditions 鈥?EC Law and Tax Law 191
B. Promotion through Indirect Tax Measures 193
1. General Remarks 193
2. Reduced Tax Rates Provided for by the Sixth VAT Directive 194
3. Exemptions under the Sixth VAT Directive 197
4. Subsidies Under the Sixth VAT Directive 199
C. Promotion through Direct Tax Measures 200
1. The Income Tax Treatment of Subsidies 200
2. The Interest and Royalty Directive 200
D. Summary 201
1. Indirect Taxation 201
2. Direct Taxation 202
II. Ensuring Functioning Market Structures on the Content Markets 203
A. The Prohibition of State Aid in Tax Matters 鈥?An Overview 203
B. Legal Protection in Tax Matters 鈥?An Overview 204
C. Prohibition of State Aid in Tax Matters and the Promotion of Content 206
D. Summary 208
III. The Promotion of the Content Industry and its Limits 208
A. Interdependencies 208
B. Summary 211
IV. Evaluation 211
Figure 1 Regulatory Approaches 120
Figure 2 Sector-specific Regulation at Content Level 120
Figure 3 Subject-matter-related Content Regulation 121
PART THREE SYSTEMATIZATION, EVALUATION AND CONCLUSION 鈥?A STRUCTURAL ANALYSIS 213
Chapter 1 The 'System' of European Content Regulation 鈥?a Horizontal Analysis of the Individual Regulatory Areas 215
I. Point of Departure: 'Content' as a Cross-sectional Subject Matter 215
II. Safeguarding Functioning Market Structures in the Content Industry 217
A. Antitrust Rules 218
B. Sector-specific Competition Regulation 220
C. Fundamental Freedoms 220
D. Harmonization and Coordination of Member States' Interventions into the Content Industry 221
E. Protection of Competition from Member States' Interventions 224
III. The Realization of Cultural, Democratic and Social Policy Concerns 225
A. Direct Support for the Production and Distribution of European Content 226
1. Funding Programmes 227
2. Incentives for the Production and Distribution of Content by Regulatory Measures 228
B. Safeguarding the Basic Supply of the Public with Content (and with Communications Infrastructure) 229
C. Safeguarding Certain Third-party Interests 231
Chapter 2 Evaluation and Conclusions: Basic Principles and Structural Elements of European Content Regulation 235
I. European Content Regulation 鈥?A Network of Regulation Systems 235
A. 'Economic' Market Structure Regulations and External 'Cultural Policy' Goals 240
B. The Online Content Market as a Focal Point 245
II. Some Theses for Further Discussion 247
Figure 1 The Individual Regulatory Areas and Objectives of European Content Regulation 216
Figure 2 Safeguarding Functioning Market Structures in the Content Industry 218
Figure 3 Harmonization Measures 224
Figure 4 Direct Support for the Production and Distribution of Content 226
Figure 5 Safeguarding Basic Supply of the Public with Content 231
Figure 6 Safeguarding Certain Third-party Interests 232
Bibliography 251
Table of Legislation 259
Table of Cases 265
Index 271
List of Contributors v
Foreword vii
PART ONE THE LEGAL ASPECTS OF EUROPEAN CONTENT REGULATION 鈥?PURPOSE AND SCOPE OF THE STUDY 1
Chapter 1 Objective of the Book: A Horizontal Approach to European Content Regulation 3
I. The Background 鈥?Content as Part of Europe's Culture 3
II. A Systematic Review and Analysis of European Content Regulation on a Horizontal Basis 4
Chapter 2 Structure and Methods 7
I. Definition of the Subject Under Investigation 7
II. Analysis of the Individual Regulatory Areas of European Community Law Governing the Content Industry 7
III. Conclusion and Evaluation 13
Chapter 3 The European Content Industry 鈥?Categorization and Definitions 15
I. The Subject under Investigation 15
II. Categorization of the Content Industry 16
III. Legal Definitions Relating to the Content Industry 18
Figure 1 Focus of the Study 16
Figure 2 Branches of the Content Industry Broken down According to Content Category and Distribution System 17
Figure 3 Legal Definitions Related to the Content Industry 20
PART TWO THE INDIVIDUAL REGULATORY FIELDS 鈥?AN ANALYSIS OF THE DIFFERENT EUROPEAN PROVISIONS FOR THE CONTENT INDUSTRY 23
Chapter 1 Fundamentals of Community Law and Policies (Including Funding Programmes) Governing the Content Industry 25
I. Preliminary Remarks 25
II. Fundamentals of Primary Law 26
A. The Fundamental Freedoms 鈥?Treaty Establishing the European Community and Case-law of the European Court of Justice 26
1. Free Movement of Goods 28
2. Freedom to Provide Services 32
B. The Relevance of Fundamental Rights in Community Law 37
C. The Amsterdam Protocol on Public Broadcasting and the Exemption Clause for State Aid Aimed at Promoting Culture and Cultural Heritage 39
D. The Division of Competences Between the EC and the Member States in Cultural Affairs 41
1. Preliminary Remarks on the Concept of Culture Enshrined in the EC Treaty 41
2. The Concept of Division of Competences Between the EC and the Member States 41
3. The Cultural Policy of the Community Pursuant to Article 151 EC 42
4. European Cultural Policy in an International Context 44
III. Secondary Legislation of the EU for Promoting the Content Industry 45
A. The Lisbon Strategy 鈥?a New Impetus for Promoting the European Content Industry 45
B. General Information on the Funding Programmes of the Content Industry 46
C. Cultural Programmes 48
D. MEDIA Programmes 49
E. Special Funding Action in the Fields of Information and Communication Technologies (ICT) 52
1. The 'eContentplus' Funding Programme 53
2. The 'Safer Internet Plus' Funding Programme 54
IV. Community Projects Relevant to the Content Industry 54
A. Communication from the Commission 'i2010 鈥?A European Information Society for Growth and Employment' 54
B. Proposal for a Directive on Services in the Internal Market and its Implications for the Content Industry 55
1. General Information 55
2. The Scope of Application of the Services Directive 56
3. Open Questions Regarding the Service Directive 57
V. Content as a European Cross-cutting Subject 鈥?Conclusions and Evaluation 58
Chapter 2 The Content Industry and General Competition Law 61
I. Ensuring Functioning Market Structures 61
A. General Applicability of the Competition Rules to the Content Industry 62
1. Specific Relevance of Competition Rules 62
2. Personal Scope 63
B. Market Definitions for Media Content 64
C. Competition Rules Concerning the Production Level (Upstream) 66
1. General Cartel Prohibition 鈥?Article 81 EC 67
2. Prohibition to Abuse a Dominant Position Article 82 EC 69
3. Control of Concentrations 70
D. Competition Rules Relating to Distribution (Downstream') 72
1. General Ban on Cartels 鈥?Article 81 EC 72
2. Prohibition of the Abuse of a Dominant Position Article 82 EC 76
3. Control of Concentrations 77
II. Protecting Third Parties and Safeguarding General Interests 78
A. Protecting the Final Consumer 78
B. Protecting Competitors? 79
C. Protecting Trading Partners 79
III. Preserving the Single Market 80
IV. Interactions Between the Intended Aims 81
V. Direct Aids for Producing and Broadcasting Content 82
A. Article 81(3) EC 鈥?Exemptions General Ban on Cartels 82
B. Objective Justification According to Article 82 EC 83
VI. Safeguarding Undistorted Competition from Intervention by the Member States 83
A. Resale Price Maintenance for Books 83
B. Article 87 EC 鈥?Framework for State Aid in the Content Industry 84
VII. Summary and Conclusion 88
Chapter 3 Sector-specific Regulation at Infrastructure Level 91
I. Preliminary Remarks: Sector-specific Regulation at Infrastructure and Content Level 91
II. Market Entry and Access Regulation in the Electronic Communication Markets Ensuring Functioning Market Structures in the Content Industry 92
A. Infrastructure Regulation as Market Regulation 92
B. Regulation of Market Entry in the Electronic Communications Markets 92
1. Relevance for the Content Industry 92
2. General Versus Individual Authorization 鈥?Media and Culture Related Selection Criteria 94
C. Regulation of Access to Communications Networks and Services 95
1. Relevance for the Content Industry 95
2. The General Access Regulation Regime for the Communications Markets 98
3. The Specific Access Regulation Regime for the Field of Digital Television 100
D. Capability of the Market Entry and Access Regulation Regime to Ensure Cultural and Democratic Policy Objectives 鈥?Problem Analysis 101
E. Summary 102
III. Ensuring a Basic Supply of the Population with Content Protection of Third Party and Further General Interests 103
A. The Public Interest in the Content Markets 103
B. Universal Service Regime 104
C. Must-carry Provisions 105
D. Broadcasting of Major Events 106
E. The Special Importance and Role of Public Broadcasting Within the EU 107
F. Analysis of the Public Interest Regulation at Infrastructure Level 鈥?Problematic Aspects 108
1. Transition from Analogue to Digital Technologies 108
2. Access to Broadcasting and Programme Rights on a Sector-Specific Basis 109
3. Political Consensus Regarding the Role of the Public Service Broadcasting Organizations within the Community? 110
G. Summary 111
IV. Standardization Activities in the Content Industry Preservation of the Single Market 112
A. Standardization in the Online Content Market a Primarily Market Led Process 112
B. Specific Standardization Measures for Digital Interactive Television 113
C. Other Standardization Activities in the Content Industry 115
D. Problematic Aspects with Regard to the Standardization Processes on the Content Markets 115
E. Summary 116
V. Direct Promotion of the Production and Distribution of Content 117
VI. Summarizing Evaluation 鈥?Reciprocity and Interconnections between the Various Regulatory Instruments in Sector-specific Regulation at Infrastructure Level 117
Chapter 4 Sector-specific Regulation at Content Level 119
I. Preliminary Remarks 119
A. Objects and Systemization of Sector-specific Regulation at Content Level 119
B. Development of Sector-Specific Regulation at Content Level 121
II. The Protection of Third Parties and Further Public Interests 123
A. Review of Status Quo 123
1. Regulation of Content for the Protection of Human Dignity, as well as the Protection of Other Fundamental Values of a Democratic Society 123
2. Regulation of Content for the Protection of Minors 124
3. Regulation of Content for the Protection of Health 126
4. Regulation of Content for the Protection of Consumers 128
5. Regulation of Content for the Protection of Personal Rights 132
B. Analysis of the Problem 133
C. Summary 135
III. Promoting Production and Dissemination of Content 136
A. Review of Status Quo 136
1. Direct Promotion of Content 136
2. Indirect Promotion of Content 137
a. Promotion through tax breaks for film and television 137
b. Promotion by limiting regulatory possibilities 137
B. Analysis of the Problem 140
C. Summary 143
IV. Maintaining the Single Market 143
A. Review of the Status Quo 143
B. Analysis of the Problem 145
C. Summary 147
V. Conclusions 147
Chapter 5 Copyright and Related Rights 151
I. Legal Protection of Content Promotion of the Production and Distribution of Content 151
A. Review of the Status Quo 151
1. Database Directive 151
2. Information Society Directive 152
a. Reproduction Right 152
b. Communication, Including Making Available, to the Public 153
c. Limitations and Free Uses of Works 153
d. Legal Protection of Technological Protection Measures 153
e. Sanctions under the Information Society Directive 154
3. Enforcement Directive 154
4. Country-of-origin and Country-of-transmission Principles and Exceptions 154
a. Country-of-transmission Principle 154
b. Country-of-origin Principle 155
5. Rights Management and Collecting Societies 156
6. Resale Rights Directive 156
7. Harmonization of Copyright Contract Law 157
8. Consolidation of the European Copyright Laws 157
B. Problem Analysis 157
1. Scope of the Database Protection 157
2. Information Society Directive 159
a. Lack of Clarity Regarding the Scope of the 'Making Available' Right 159
b. Allocated Uses 160
c. Sanctions Under the Information Society Directive 162
3. Enforcement Directive 162
4. Country-of-origin and Country-of-transmission Principles 163
a. Country-of-transmission Principle 163
b. Country-of-origin Principle 164
5. Collective Exploitation of Rights and Collecting Societies 165
6. Resale Rights Directive 167
7. Harmonization of the Copyright Contract Law 167
8. Consolidation of the European Copyright Law 168
C. Summary 169
II. The Necessity for Exclusivity 鈥?Ensuring Functioning Market Structures on the Content Markets 170
III. Creating a Balance 鈥?Protection of Third Parties and Further General Interests 171
A. Review of the Status Quo 171
1. Information Society Directive 172
a. Limitations 172
b. Technological protection measures/DRM 172
c. Device and media charges, double remuneration 172
2. First Sale Doctrine Online 173
3. Enforcement Directive 173
4. Conditional Access Directive 174
5. Obligations to Provide Information and Transparency in E-commerce 174
B. Problem Analysis 174
1. Information Society Directive 174
a. Limitations 174
b. Technological Protection Measures 177
2. First Sale Doctrine Online 181
3. Enforcement Directive 181
4. Conditional Access Directive 182
5. Information Obligations and Transparency in e-commerce 182
C. Summary 183
IV. Making Ends Meet: Summarizing Evaluation Reciprocity and Interconnections between the Objectives Pursued 184
Chapter 6 Regulation of the Content Industry through Tax Measures 191
I. Promoting the Production and Distribution of Content through Tax Measures 191
A. The Framework Conditions 鈥?EC Law and Tax Law 191
B. Promotion through Indirect Tax Measures 193
1. General Remarks 193
2. Reduced Tax Rates Provided for by the Sixth VAT Directive 194
3. Exemptions under the Sixth VAT Directive 197
4. Subsidies Under the Sixth VAT Directive 199
C. Promotion through Direct Tax Measures 200
1. The Income Tax Treatment of Subsidies 200
2. The Interest and Royalty Directive 200
D. Summary 201
1. Indirect Taxation 201
2. Direct Taxation 202
II. Ensuring Functioning Market Structures on the Content Markets 203
A. The Prohibition of State Aid in Tax Matters 鈥?An Overview 203
B. Legal Protection in Tax Matters 鈥?An Overview 204
C. Prohibition of State Aid in Tax Matters and the Promotion of Content 206
D. Summary 208
III. The Promotion of the Content Industry and its Limits 208
A. Interdependencies 208
B. Summary 211
IV. Evaluation 211
Figure 1 Regulatory Approaches 120
Figure 2 Sector-specific Regulation at Content Level 120
Figure 3 Subject-matter-related Content Regulation 121
PART THREE SYSTEMATIZATION, EVALUATION AND CONCLUSION 鈥?A STRUCTURAL ANALYSIS 213
Chapter 1 The 'System' of European Content Regulation 鈥?a Horizontal Analysis of the Individual Regulatory Areas 215
I. Point of Departure: 'Content' as a Cross-sectional Subject Matter 215
II. Safeguarding Functioning Market Structures in the Content Industry 217
A. Antitrust Rules 218
B. Sector-specific Competition Regulation 220
C. Fundamental Freedoms 220
D. Harmonization and Coordination of Member States' Interventions into the Content Industry 221
E. Protection of Competition from Member States' Interventions 224
III. The Realization of Cultural, Democratic and Social Policy Concerns 225
A. Direct Support for the Production and Distribution of European Content 226
1. Funding Programmes 227
2. Incentives for the Production and Distribution of Content by Regulatory Measures 228
B. Safeguarding the Basic Supply of the Public with Content (and with Communications Infrastructure) 229
C. Safeguarding Certain Third-party Interests 231
Chapter 2 Evaluation and Conclusions: Basic Principles and Structural Elements of European Content Regulation 235
I. European Content Regulation 鈥?A Network of Regulation Systems 235
A. 'Economic' Market Structure Regulations and External 'Cultural Policy' Goals 240
B. The Online Content Market as a Focal Point 245
II. Some Theses for Further Discussion 247
Figure 1 The Individual Regulatory Areas and Objectives of European Content Regulation 216
Figure 2 Safeguarding Functioning Market Structures in the Content Industry 218
Figure 3 Harmonization Measures 224
Figure 4 Direct Support for the Production and Distribution of Content 226
Figure 5 Safeguarding Basic Supply of the Public with Content 231
Figure 6 Safeguarding Certain Third-party Interests 232
Bibliography 251
Table of Legislation 259
Table of Cases 265
Index 271
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