Future of Electronic Commerce in the Internal Market

The Association of European Radios (AER) is a Europe-wide trade body representing the interests of over 4,500 commercially-funded radio stations across the EU27 and in Switzerland.

AER is located at:
Association Européenne des Radios
76, av. d’Auderghem,
1040 Brussels,

AER’s Interest Representative Register ID Number is 6822083232-32.

AER’s main objective is to develop and improve the most suitable framework for private commercial radio activity. AER constantly follows EU actions in the fields of media, telecommunications and private radio transmission, in order to contribute, to enrich and develop the radio sector.

On-air broadcasting radios reach massive audience on a daily basis in all EU Member States: between 60 and 85% of the EU population on average listens to radio for at least 2 or 3 hours per day, as shown by national audience measurement. Commercially-funded radios indeed constitute a unique network of small and medium-sized enterprises (SMEs), contributing to cultural diversity, media pluralism, access to creativity, social inclusion. They also offer free-to-air services of general interest:
– they evolve in highly competitive environments
– their programmes encompass, broadly speaking, all possible formats, from debates to music-only
– As for the music broadcast, within one market, as soon as there is demand expressed, it has to be fulfilled; so, most of the musical expressions are represented
– most of them are non-politically affiliated, and certainly keep the freedom to express their opinion or to participate to the public expression of the opinions of their listeners
– their audiences are local, regional, or national
– they strive to develop on all possible platforms
– during natural, major or minor disasters, radio is one of the first tool to inform the public
Radio is the most intimate medium, and has been so for the past 50 years at least: it is indeed ubiquitous, mobile, simple-to-use and free-to-air. All these features enable our audience to cultivate a personal relationship with our programmes, our DJs, our hosts, and our brands. Our listeners thereby access programming they enjoy, and useful information .

With changing consumption models, radios have to develop their presence on all possible platforms: in order to maintain audience, radios should be accessible on-air, online, via cable or satellite transmission in a linear and non-linear manner. While the transmission of radio programmes via the internet is increasing across Europe, most of the listening is still performed thanks to broadcasting. So, for radios, access to spectrum is vital, and access to internet has become paramount.

The European Commission opened a public consultation on “the future of Electronic Commerce in the Internal Market and on the implementation of the Directive on Electronic Commerce (2000/31/EC)” on August 10th, 2010. AER welcomes the intention of the European Commission to assess the results of the adoption of this essential tool for the Internal Market. AER would first like to underline that the Directive on Electronic Commerce as it exists has enabled so far appropriate development of radios online. To secure and further radios’ development online, one should mainly consider the following aspects – as radios are still developing their activities online, and as this is a fast-changing environment, the following points should be seen as a reply to the European Commission consultation:

Country-of-Origin Principle
The Directive on Electronic Commerce’s so far positive influence on the development of radios online activities is seen mainly due to the existence of the Country-of-Origin principle, in the right conditions: this principle provides the media sector, and especially radios, with legal certainty regarding activities developed. The appropriate safeguards are set in the Directive on Electronic Commerce, in article 3(4), with the derogations to the Country-of-Origin “principle to ensure the protection of certain interests such as public order, public health, public safety or consumer protection” . In a time when most of the EU population is now (or will soon) be able to access the internet at relevant speed and optimum service, it is essential to guarantee the right environment for content providers – key to further radios’ development online and to internet’s appeal. Any exception to the Country-of-Origin principle must be considered carefully and restrictively.

Radios’ further and secured development online depends now on a “friendly” advertising environment, on the quality of its transmission online, and on its “copyright environment” – which are issues overall addressed by other EU initiatives.

“Friendly” Advertising Environment
Commercially-funded radios are by definition funded by advertising. In the current Directive on Electronic Commerce, the section on “commercial communications” constitutes a positive point: while it sets relevant principles, it has to be read in conjunction with a very dense European and national regulatory and self-regulatory set of texts – inter alia, the so-called “Unfair Commercial Practices” Directive (2005/29/EC), “Data Protection” Directive (95/46/EC), “Electronic Privacy” Directive (2002/58/EC), and “Audiovisual Media Services” Directive (2010/13/EU). These EU rules are complemented by extensive and appropriate self-regulation. Our industry has indeed proved to act responsibly in this context and to apply successful self-regulation in delicate areas. In order to enable viable business models for radios in the future, unjustified over-regulation and new restrictions in the field of advertising (online and offline) should be avoided.

Quality of Service
When it comes to online transmissions, the quality of services provided should be at least equal to broadcasting on-air: uninterrupted transmission of programmes . However, and as mentioned earlier, commercially-funded radios in Europe are, in their vast majority, SMEs: they are in no position to financially compete for access to the internet with other market players.

Access to Copyright
In terms of access to copyright-protected works, AER should recall that radio programmes are sound-only. Besides, radios are broadcasters, and not retailers: while the development of any service online might depend on the right regulatory conditions as currently set in the Directive on Electronic Commerce, the core activity of a radio on any platform depends on access to copyright-protected works. The provision of radio programmes online (in traditional formats or in new format, such as on a time-shifted basis) is indeed still not secured due to inexistent, overly complex or too expensive copyright environment.

One solution to tackle the problem for radios / music on the internet could actually also be based on another “country-of-origin principle”: clearing the rights in one EU country would equate clearing the rights for the entire EU. Additionally, radios would benefit from a one-stop-shop solution for rights clearance. For radios, easy-to-handle licensing is seen as a very positive step towards a true EU internal market, via fair competition amongst collecting societies and legal certainty for radios in their online activities. They would make use only of one license valid in all territories where their target audience can pick up the programmes (country-of-origin-principle ). This could be facilitated via the application of the country-of-origin-principle of the Cable and Satellite Directive (Directive 93/38/EEC). Such a solution will foster better conditions for both copyright holders and users. Compulsory multi-territorial licenses do not reflect radio business models and would lead to additional unsustainable costs. Furthermore, the licensing of accessory music in time shifted/on-demand programmes should be facilitated through collective rights’ management. Finally, radios should be able to choose the proper offer from any collecting society, via fair competition on administrative fees .

Radios are as much copyright users as copyright holders: the programmes they create are essential in terms of cultural diversity, media pluralism or disaster relief. Radios are exposed to the threats of piracy, especially concerning their online activities. Radios’ rights on their content must be adequately protected and infringements efficiently sued.

AER remains available to explain this position in further details, should this be helpful to the European Commission.


Contact details: Frederik Stucki
AER Secretary General
76, av. d’Auderghem,
B-1040 Brussels,
Tel: +32 2 736 9131
Fax: +32 2 732 8990
vincent.sneed @ aereurope.org