Online response of Pearle to the questionnaire Response to selected questions targeted to business federations

Transcription

1 Public consultation on the future of electronic commerce in the internal market and the implementation of the Directive on Electronic commerce (2000/31/EC) 5 November 2010 Online response of Pearle to the questionnaire Response to selected questions targeted to business federations Issue 1: the development and practice of electronic commerce 19. What are your views on the growth of the economic development of electronic commerce and information society services in Europe, in general and compared to its most important competitors? All Pearle is the European trade federation representing the live performance sector. Electronic commerce in the sector is used in several ways. In first instance it is used for online ticket sales, which is in the domestic market well developed but has still potential with regard to cross-border ticket selling. A small retail market for the live performance sector concerns the offer of merchandising goods, books or magazines, recordings and dvd s of performances. Commercial communication on the event (for example excerpt of a performance, citations from the press, photos, ) is a tool to convince the potential buyer of electronic commerce services or goods and although this communication in itself does not give a direct economic return, due to the fact that it often concerns copyright protected material will contribute to the economy of intellectual property. Offer of creative content online, through streaming of performances or other formats, is in fact still a premature market. 20. More specifically, do you have any indications that delivery problems would be an obstacle to the development of your electronic commerce activity? If so, which? BUS, BUS FED, PUBSER Live performance organisers are confronted with different kinds of delivery problems: - physical delivery (such as uncertainty of delivery in time by post), - additional costs with regard to payments (fraud, non-payments, ) and investment to avoid this by setting up a control system - possibility to provide information in another language (or more languages), - complexity regarding intellectual property rights in case of viewing live events (all forms of live entertainment, and not only music) in particular in cross-border online delivery. - Non-regulated or non-controlled secondary ticket market for performances and events 21. Do you encounter problems in raising capital for your electronic commerce activities from banks or venture capital? If so, please specify? BUS, BUS FED The majority of SMEs in the sector have great difficulties to raise capital, obtain loans, or others. This is not exclusively the case for electronic commerce but goes for any activity in the live performance sector. 1

2 Being a sector that is composed of thousands of SMEs (non-profit and profit) it is extremely difficult to raise capital due to the highly cost-related nature of live events. Only a small top level of entreprises (larger corporations) are profit making and have easier access to venture capital or obtain support from banks. 22. Is a lack of knowledge of your legal or fiscal obligations in the context of electronic commerce or of the provision of information society services an element dissuading you from entering into such activities? BUS, BUS FED Entreprises in the live performance sector need clear and straightforward information regarding their obligations when conducting electronic commerce. The recent information on the Sweep investigation on tickets for cultural and sporting events, published by the European Commission on 16 September 2010, listed the most common problems found on websites. The sector acknowledges that a targeted campaign is necessary to inform organisers selling tickets on the internet about the requirements and obligations regarding the information to be provided. The sector is wary about traders selling tickets for non-existent or cancelled events, as it gives a bad reputation to the organisers. It is felt that for consumers it is often difficult to know through which source they are buying the ticket, which may result in unpleasant surprises. The ignorance and uncertainty on the legal and fiscal obligations for ticket selling and other information society services used by the sector (as described in question 19) is definitely a barrier to start up e- commerce. In particular for cross-border offer there are questions related to the applicable law in other countries, the most pertinent with regard to intellectual property. 23. Are you deterred from undertaking such activity by insufficient offer of competitive legal or fiscal advisory services, specialised in electronic commerce or information society services? BUS, BUS FED Legal and fiscal advisory services are just one form of accessing information. There is an important role to be played by the responsible ministry, chamber of commerce, sector or business federations, or specific governmental agencies. The basic and core information should be available for free if Europe wants to stimulate growth in e-commerce. Also the European Consumers Centres should be able to deliver information to which businesses can have access. SMEs that are at the heart of Europe s economy, such as it is recognised in the Small Business Act and in the recent Single Market Act, need easy and ready-tohand information to avoid extraordinary costs of legal and financial advise. Information and advise in relation to intellectual property is expensive as questions are complex and need specialised expertise. 24. Do you have information according to which payment problems (lack of choice in terms of methods of payment, confidentiality issues, refusal of payment cards from another Member State, etc) would be an obstacle to the development of your electronic commerce activity? If so, can you assess and illustrate these problems? BUS, BUS FED A problem in relation to the method of payment concerns the fact that credit cards are not yet commonly used across Europe as a mode for payment by consumers. In particular in case of a cross-border selling activity credit card payment is an obstacle as young people (students) often do not have a credit card. card. Whereas in the domestic market bank cards or debetcards can be used as a method of payment, this causes problems for cross-border payments, resulting in a diminished access to the online offer. In addition from a business viewpoint the costs payable to the credit card companies can be relatively high compared to the price of a ticket to a performance, so that organisers may be reluctant to add this as an option for payment mode. 25. Do high bank charges for accepting payments hinder your online activities and do you think that, at European level, there are sufficient alternative payment schemes without high charges for the retailer? 2

3 As explained above in question 24, the sector sees the ratio bank charges and charges of credit card companies compared to the price of certain categories too high. Whereas for the domestic market payments with bank cards or debetcards are fairly common, this is not the case across Europe for cross border payments. Electronic payment from one bank account to the other, after reception of an invoice, has most prominently in the eurozone- decreased the costs on bank charges. Other lesser used alternative payment methods are cheques, tokens, cash. 26. Do you experience problems in accepting payments of small amounts due to the high level of bank charges (for instance merchant service charges) or, in general, due to the scarce availability of payment methods which are suitable for this purpose? BUS, BUS FED Tickets for performances are often available at very democratic prices (sometimes only 5 or even less), but the costs related to the transaction are relatively high. A problem is that there is often a fix bank charge no matter what the amount is that is paid. 27. Are you aware of statistics or general or sectoral studies at national level on the electronic commerce market and in particular its cross-border aspects? If in the affirmative, which? All except PRIV Information, including statistics, is sometimes available for certain subsectors (for example in the theatre sector or for the music sector) or for certain big events in different EU Member States. There are no statistics or sectoral studies available on the live performance sector as a whole in the EU. 28. Are you aware of information on the types and growth of e-commerce businesses and on whether this substitutes or complements off-line retail services? If so, please specify All except PRIV The core activity of the live performance sector is the live experience. E-commerce is therefore primarily used to attract audiences and public to an event, by facilitating easier access through online ticketing and marketing. New services are being developed and experimented to reach audiences in other countries, to allow for sold out performances to be seen on screen, to reach out to audiences who physically cannot get to a concert hall (example older people in a elderly house), to young people who are given tools to manipulate a performance themselves, etcetera. In almost all of these cases business is not profitable. Moreover the costs to produce for the internet and the investments to be made are still extremely high. Collecting management societies, and also the phonogram, film and book industry, have data on the growth of e-commerce in the copyright protected sectors. 29. In your view, what are the economic sectors where electronic commerce has developed significantly over the past decade and the fields where, on the other hand, its potential has not yet been sufficiently exploited? All except PRIV Sectors where individual consumers have a advantage when they can directly access to purchase a good or service and manage the choice and price according to their own desires, at any moment in time or place inn the world instead of having to pass through intermediairies or distributors, or be limited by the opening hours of a shop. It s obvious that for example the travell and tourism sector have benefited from this opportunity. Within the live performance sector sales of tickets have well developed for large events or festivals or in metropolitan areas, both for local, European and overseas markets. The ticket sales for middle scale and smaller events through e-commerce has still potential to further grow. There are several reasons why this is still underdeveloped : huge fragmentation of the market with each organiser having own ticket systems, regulatory obstacles, problem of financing, lack of knowledge, lack of funding and capital to finance the investment of cross-border selling, problem of clearing rights and the high costs of using copyright protected material for the purpose of communication and marketing. The market of offer of creative content online for live performances is hardly developed, as it is not clear what the rights are for the 3

4 producers or organisers when streaming performances, but for the majority of events taken place in the live performance sector investment is often too high compared to the possible economic return. 30. Do you consider that the offer of viewing sporting and cultural events on the internet, for example by direct streaming, is sufficiently developed? If not, in your view, what are the obstacles to such development? CONS and CONS ASSO 31. As organisers of sporting or cultural events, do you see an interest in proposing direct on-line access to your events, in particular if they are not broadcast on traditional media, at national level or in other Member States? BUS, BUS FED The live performance sector underlines that the first aim of live events is to invite people to one particular performance to have a great evening with friends and alikes. No matter the number of performances a consumer may attend, there is always an aspect of celebration connected to attending a live event, which is a unique experience. The sector is also seeing benefits in delivering on-line access to events, although it is understood that performances and events that are meant for broadcasting or streaming demand another way of acting or performing. The offer of on-line access to performances is considered to be interesting under certain conditions: in case a concert or event is sold-out, to allow for wider audiences in Europe and overseas to access to performances, to reach out to specific target groups (for example: people staying in an elderly house, or viewing in a cinema), to give young people modes to be part of the staging and programming by their favourite band, etcetera. Almost all initiatives in these area so far have been considered as an investment, a way to develop fidelity with fans and audiences rather than being profitable. An issue is that the copyright acquis gives no clear answer to the online offer of live events by live performance organisers, which leads to legal insecurity. Issue 2: Questions concerning derogations from Article 3 (Article 3(4) and Annex) The Electronic Commerce Directive includes in its Article 3 a so-called "internal market clause", with case by case derogations provided for in Article 3(4). This clause allows information society service providers to offer cross-border services whilst remaining subject to the legislation of their Member State of establishment. Member States may, under certain conditions, impose case by case derogations to this principle to ensure the protection of certain interests such as public order, public health, public safety or consumer protection. Any such derogations must be necessary and proportionate to the objective pursued. They must be adopted within the framework of an administrative cooperation mechanism between Member States and notified beforehand to the European Commission. Moreover, the Annex to the Directive provides for exemptions from Article 3, in particular for contractual obligations relating to contracts concluded with consumers. Since 2000, the EU's legislative framework has evolved, in particular Community legislation having as an objective consumer protection (in particular the application of the directives on distance contracts and on the sale and guarantees of consumer goods; the adoption of the Directive on the unfair commercial practices and the proposal for a Directive on consumer rights in 2008), and with the Directive on services in the Internal Market, which was due to be transposed by the end of Article 20 of the Services Directive is likely to have a direct impact on the issue of cross-border sales to consumers as its paragraph 2 prohibits the application of discriminatory provisions relating to the nationality or place of residence of the recipient of a retail service. Differences of treatment are allowed only if such service providers can demonstrate that they are justified directly by objective criteria. 32. Are you aware of cases where a Member State applied the derogation possibility provided for in Article 3(4) of the Directive described above? If so, please describe how, indicating the information society services restricted (e.g. on-line media, on-line pharmacies, advertising or promotion of certain products like 4

5 alcohol, services provided by regulated professions, broadcasting of cultural events or on-line sport events) and the basis for the derogation (public order, consumer protection, public safety or public health)? All EXCEPT PRIV no answer 33. In the event of an affirmative reply to the previous question, were you restricted in the exercise of your professional activity by the use of such a derogation? All EXCEPT PRIV, INFOSOC LAW PUBSERV no answer 34. In your view, is the derogation to the internal market clause covering contractual obligations concerning contracts concluded by consumers, set out in the Annex to the Directive, still useful, despite the development over the last ten years of Community and national legislation concerning consumer protection? If yes, could you provide the reasons justifying the maintenance of such an exemption? All EXCEPT PRIV AND RP 35. Have you practised or been subject to discrimination on the basis of nationality or place of establishment/residence, or are you aware of such discriminations? If so, please indicate the information society services affected and the reasons given to justify this discrimination. All EXCEPT PUB SERV 36. In your view, does the purchase and sale of copyright protected works subject to territorial rights and the territorial distribution of goods protected by industrial property rights, encourage or impede cross-border trade in information society services? All The online offer of streamed live performances is often hindered by the legal framework applicable to intellectual property rights. The expected proposal for a framework directive on collective management of online rights to be published in 2011 should help to clarify the difficulties in relation to the offer of creative content online and hopefully lift barriers to the electronic commerce of live performance. 37. In your view, are there other rules or practices which hinder the provision or take-up of cross-border on-line services? If so, which? All In connection to the access to live performance online, there are unclear legal situation with regard to commercial communication on the event, in particular in case of showing excerpts of the performance. This hinders service providers in the sector to fully benefit from the advantages of the online commercial communication. Issue 7: The resolution of on-line disputes The Internet can entail risks, and may even, in some contexts, resemble a place beyond the law. Despite the introduction of on-line mediation and resolution systems, this impression persists and may curb the development of information society services. For example, there is a very high number of internet sites in Europe which do not comply with the transparency conditions provided for in the Directive and transposed in the legislation of all Member States. It also appears that the efforts of Member States have been limited to adapt their legal systems to new communication technologies, in particular through the development of mechanisms of on-line dispute settlements so as to make justice more accessible to citizens. 74. What knowledge do you have of on-line dispute settlement systems (legal and 5

6 extrajudicial) in your Member State or in other Member States? All 75. To your knowledge, are the financial costs, the necessary processing time and the facility to solve a traditional dispute (personal data theft, non-delivery of ordered services, fraud, non-payment, misleading advertising, illegal copy etc.) equivalent if the resolution takes place on-line or off-line? If not, can you explain the reasons for any differences? All 77. Do you take the view that the services of on-line disputes settlements (judicial and non-judicial) where these exist have improved victims' rights in European society? If so, how? If not, how can these services be improved? All except PRIV 6