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RS 0.784.03 European Convention of 24 January 2001 on the legal protection of conditional access services and conditional access services

Original Language Title: RS 0.784.03 Convention européenne du 24 janvier 2001 sur la protection juridique des services à accès conditionnel et des services d’accès conditionnel

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0.784.03

Original text

European Convention on the Legal Protection of Conditional Access Services and Conditional Access Services

Conclue in Strasbourg on 24 January 2001

Approved by the Federal Assembly on December 14, 2004 1

Instrument of ratification deposited by Switzerland on 11 May 2005

Entry into force for Switzerland on 1 Er September 2005

(Status on 25 June 2010)

Preamble

The member states of the Council of Europe, the other States and the Community O Peel,

Signatories to this Convention,

Whereas the aim of the Council of Europe is to achieve a closer union among its members;

Bearing in mind Recommendation No. O R (91) 14 of the Committee of Ministers on the legal protection of encrypted television services;

Whereas the piracy of decoders of encrypted television services is still a problem throughout Europe;

Noting that new types of services and conditional access devices, as well as new forms of illegal access to them, have emerged since the adoption of the above-mentioned recommendation;

Noting the wide disparity in legislation governing the protection of conditional access services and conditional access services in European states;

Noting that illicit access threatens the economic viability of organizations providing broadcasting and information society services and, as a result, may affect the diversity of programs and services Available to the public;

Convinced of the need to follow a common policy to protect services with conditional access and conditional access services;

Convinced that criminal, administrative or other sanctions can play an effective role in preventing illicit activities against services with conditional access;

Considering that particular attention should be paid to illicit activities that are carried out for commercial purposes;

Taking into account existing international legal instruments which contain provisions on the protection of conditional access services and conditional access services,

Agreed to the following:

Section I General provisions

Art. 1 Purpose and Purpose

This Convention concerns the services of the information society and broadcasting services provided for payment and based on, or consisting of, conditional access. The purpose of this Convention is to make unlawful in the territory of the Parties a number of activities that permit unauthorized access to protected services, and to approximate the laws of the Parties in this area.

Art. 2 Definitions

For the purposes of this Convention:

A.
"Protected service" means any of the following services provided that it is provided against payment and on the basis of conditional access:
-
Television program services, as defined in s. 2 of the European Convention on Transfrontier Television 1 Amended;
-
Audio broadcasting services, namely, radio programs for the public that are transmitted with or without wire, including by satellite;
-
The services of the information society, heard as services provided by electronic means, at a distance and on individual request from the recipient of the services;
-
Or the provision of conditional access to the above-mentioned services, considered as a full service;
B.
"Conditional access" means any measure and/or technical device making access in an intelligible form, subject to prior individual authorisation, to any of the services referred to in subs. Has this section;
C.
"Conditional access device" means any equipment, software and/or device designed or adapted to allow access in an intelligible form to any of the services referred to in subs. Has this section;
D.
"Illicit device" means any equipment, software and/or device designed or adapted to permit access in an intelligible form to any of the services referred to in subs. In this section, without the authorization of the service provider.

Art. 3 Beneficiaries

This Convention shall apply to any natural or legal person providing a protected service, as defined in Art. 2, let. Above, irrespective of their nationality and whether or not they fall within the competence of a Party.

Section II Illicit activities

Art. 4 Offences

The following activities shall be considered unlawful in the territory of a Party:

A.
The manufacture or production of illicit devices for commercial purposes;
B.
The importation for commercial purposes of illicit devices;
C.
Distribution for commercial purposes of illicit devices;
D.
The sale or rental for commercial purposes of illicit devices;
E.
Detention for commercial purposes of illicit devices;
F.
The installation, maintenance or replacement of illicit devices for commercial purposes;
G.
Commercial promotion, marketing or advertising for illicit devices.

Each Party may, at any time, in a declaration addressed to the Secretary General of the Council of Europe, declare that it will also make illegal activities other than those mentioned in par. 1 of this article.

Section III Sanctions and legal remedies

Art. 5 Sanctions for unlawful activities

The Parties shall adopt measures to make the illicit activities referred to in Art. 4 above, subject to criminal, administrative or other sanctions. These measures are effective, dissuasive and proportionate to the potential impact of the illicit activity.

Art. 6 Measures of confiscation

The Parties shall adopt appropriate measures which may be necessary in order to enable the seizure and confiscation of illicit devices or of promotional, marketing or advertising material used to commit an offence, as well as Forfeiture of all profits and financial gains resulting from the illicit activity.

Art. 7 Civil Procedures

The Parties shall adopt the measures necessary to ensure that protected service providers whose interests are affected by an unlawful activity specified in s. 4 above have access to appropriate legal remedies, in particular that they may bring an action for damages and obtain an injunction or other preventive measure, as well as, where appropriate, request that the unlawful devices Be eliminated from commercial channels.

Section IV Implementation and amendments

Art. 8 International cooperation

The Parties undertake to provide mutual assistance for the implementation of this Convention. The Parties shall accord each other, in accordance with the provisions of the relevant international instruments in the field of international cooperation in the criminal or administrative field and their domestic law, the widest measure of Cooperation in investigations and judicial proceedings relating to criminal or administrative offences established in accordance with this Convention.

Art. Multilateral Consultations

The Parties shall, within two years of the entry into force of this Convention and every two years thereafter, proceed and, in any case, whenever requested by a Party, to multilateral consultations within the Council of Europe, with a view to examining the application of this Convention, as well as the desirability of its revision or enlargement of some of its provisions, in particular as regards the definitions referred to in Art. 2. These consultations shall take place during meetings convened by the Secretary General of the Council of Europe.

2. Each Party may be represented at multilateral consultations by one or more delegates. Each Party shall have the right to vote. Each State Party to this Convention shall have one vote. On matters within its competence, the European Community shall exercise its right to vote and shall express a number of votes equal to the number of its member States which are Parties to this Convention. The European Community does not vote when the vote is on a matter which does not fall within its competence.

3. Any State referred to in Art. 12, para. 1, or the European Community, which is not a party to this Convention, may be represented at the consultation meetings by an observer.

4. After each consultation, the Parties shall submit to the Committee of Ministers of the Council of Europe a report on the consultation and the operation of this Convention, including, if they consider it necessary, proposals for Amend the Convention.

5. Subject to the provisions of this Convention, the Parties shall establish the rules of procedure for consultation meetings.

Art. 10 Amendments

1. Any Party may propose amendments to this Convention.

2. Any proposed amendment shall be notified to the Secretary General of the Council of Europe, who shall communicate it to the member States of the Council of Europe, to the other States party to the European Cultural Convention 1 , to the European Community and to each non-member State which has acceded or has been invited to accede to this Convention in accordance with the provisions of Art. 13.

3. Any amendment proposed in accordance with the provisions of the preceding paragraph shall be considered, within six months of the date of its transmission by the Secretary General, at a multilateral consultation meeting where this amendment may Be adopted by a two-thirds majority of the States that have ratified the Convention.

4. The text adopted by the multilateral consultation meeting is subject to the approval of the Committee of Ministers. After its approval, the text of the amendment shall be transmitted to the Parties for acceptance.

5. Any amendment shall enter into force on the thirtieth day after all Parties have informed the Secretary General that they have accepted it.

6. The Committee of Ministers may, on the basis of a recommendation issued by a multilateral consultation meeting, decide, by a majority provided for in Art. 20, let. D the Statute of the Council of Europe 2 And by unanimity of the votes of the representatives of the Parties entitled to sit on the Committee, that a particular amendment shall enter into force on the expiration of a period of two years from the date on which it has been transmitted for acceptance, except If a Party has notified the Secretary General of the Council of Europe of an objection to its entry into force. Where such an objection has been notified, the amendment shall enter into force on the first day of the month following the date on which the Party to the Convention which has notified the objection has deposited its instrument of acceptance with the Secretary General of the Council of Europe.

7. If an amendment has been approved by the Committee of Ministers, but has not yet entered into force in accordance with the provisions of s. 5 or 6 above, a State or the European Community cannot express their consent to be bound by the Convention without at the same time accepting this amendment.


Art. 11 Relations with other conventions or agreements

(1) This Convention shall not affect the rights and obligations arising from multilateral international conventions on specific matters.

2. The Parties to the Convention may enter into bilateral or multilateral agreements relating to matters dealt with in this Convention, for the purpose of supplementing or strengthening the provisions of this Convention or facilitating the implementation thereof The principles it enshrine.

(3) Where two or more Parties have already concluded an agreement or treaty on a subject covered by this Convention, or where they have otherwise established their relations in relation to this subject, they shall have the right to apply that agreement, Treaty or arrangement instead of this Convention, if it facilitates international cooperation.

In their mutual relations, Parties which are members of the European Community shall apply the rules of the Community and therefore apply the rules deriving from this Convention only to the extent that there are no rules The Community governing the particular subject.

Section V Final clauses

Art. 12 Signature and entry into force

This Convention shall be open for signature by the member States of the Council of Europe and the other States Parties to the European Cultural Convention, as well as to that of the European Community. These States and the European Community may express their consent to be bound by:

A.
Signature without reservation of ratification, acceptance or approval; or
B.
Signature, subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.

2. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

(3) This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which three States have expressed their consent to be bound by the Convention in accordance with the provisions of the Previous paragraph.

4. For any signatory State or the European Community which subsequently expresses its consent to be bound by the Convention, it shall enter into force on the first day of the month following the expiration of a period of three months after the date Of its consent to be bound by the Convention in accordance with the provisions of subs. 1.

Art. 13 Accession by non-member States to the Convention

After the entry into force of this Convention, the Committee of Ministers of the Council of Europe may, after consulting the Parties to the Convention, invite any State which is not mentioned in art. 12, para. 1. To accede to this Convention by a decision taken by a majority provided for in Art. 20.d of the Statute of the Council of Europe 1 And unanimously by the representatives of the Contracting States having the right to sit on the Committee.

2. For any acceding State, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.


Art. 14 Territorial Application

(1) Any State or the European Community may, at the time of signature or deposit of its instrument of ratification, acceptance, approval or accession, designate the territory or territories to which this Convention shall apply.

2. Any State or the European Community may, at any other time thereafter, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory designated in the declaration. The Convention shall enter into force in respect of that territory on the first day of the month following the expiration of a period of three months after the date of receipt of the declaration by the Secretary General.

(3) Any declaration made under the two preceding paragraphs may be withdrawn, in respect of any territory designated in that declaration, by notification addressed to the Secretary General. The withdrawal shall take effect on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.

Art. 15 Reservations

No reservation may be made to this Convention.

Art. 16 Dispute Settlement

In the event of a dispute between the Parties on the interpretation or application of this Convention, the Parties shall endeavour to reach an amicable settlement of the dispute through negotiation or other peaceful means of their choice, including the Submission of the dispute to a arbitral tribunal which will make decisions binding the Parties to the dispute.

Art. 17 Denunciation

1. Any Party may, at any time, denounce this Convention by sending a notification to the Secretary General of the Council of Europe.

(2) Denunciation shall take effect on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.

Art. 18 Notifications Field of application on 25 June 2010

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, the other States Parties to the European Cultural Convention, the European Community and any State which has acceded to this Convention:

A.
Any signature in accordance with s. 12;
B.
The deposit of any instrument of ratification, acceptance, approval or accession in accordance with Art. 12 and 13;
C.
Any date of entry into force of this Convention in accordance with Art. 12 and 13;
D.
Any declaration made under s. 4;
E.
Any proposed amendment under s. 10;
F.
Any other act, notification or communication relating to this Convention.

In witness whereof, The undersigned, duly authorized to that effect, have signed this Convention.

Done at Strasbourg, on 24 January 2001, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member state of the Council of Europe, to the other States party to the European Cultural Convention, to the European Community and to any State invited to Accede to this Convention.

(Suivent signatures)

Scope on 25 June 2010 2

States Parties

Ratification

Entry into force

Bosnia and Herzegovina

5 May

2010

1 Er September

2010

Bulgaria

17 July

2003

1 Er November

2003

Cyprus

27 November

2002

1 Er July

2003

Croatia

4 July

2007

1 Er November

2007

France

1 Er September

2006

1 Er January

2007

Moldova *

26 March

2003

1 Er July

2003

Netherlands A

23 January

2004

1 Er May

2004

Romania

26 August

2002

1 Er July

2003

Switzerland

11 May

2005

1 Er September

2005

*

Reservations and declarations.

Reservations and declarations are not published in the RO. The texts in English and French can be consulted at the Council of Europe website: http://conventions.coe.int/treaty/FR/cadreprincipal.htm or obtained in the Directorate of Public International Law (DDIP), Treaty Section International, 3003 Berne.

A

The Convention applies to the Kingdom of Europe.


RO 2006 247 ; FF 2004 1937


1 RO 2006 245
2 RO 2006 255 And 2010 3433 An updated version of the scope of application is published on the DFAE website (http://www.dfae.admin.ch/traites).


Status on 25 June 2010