GATS and the Over-the-Top Services: A Legal Outlook

Abstract

Over-the-Top (OTT) services refers to content delivery through an Internet platform; hence, an OTT application is any service that provides a product over the Internet and bypasses traditional distribution. Examples of OTT services may include chat applications (e.g., WhatsApp, Line, WeChat) and streaming video services (e.g., Netflix, Apple TV).This article is of the view that, based on the GATS jurisprudence, it is at least arguable whether OTT voice and messaging services fall under the GATS definition of Computer and Related Services. This article also suggests that the OTT TV, in the case that a Member did not base its “audiovisual services” schedules on the CPC and makes no reference to CPC codes, should fall under section 2. D. of W/120 as the use of a different medium to provide a service did not create a new service. In addition, with respect to the vertical competition between “infrastructure” and “content,” there is a “disconnection” between traffic and revenue, leading many operators to block or degrade OTT traffic. This article stresses the position that any further action to introduce the concept of “network neutrality” into TiSA should bear in mind that a proper balance should be struck between developed countries’ trade interests and developing countries’ development needs. Moreover, with respect to the horizontal competition between “foreign content” and “domestic content,” local broadcasters who supplied services within a Member’s jurisdiction are at a significant disadvantage compared to OTT service suppliers who housed their servers outside the member’s territory. The recent leak of TiSA negotiating texts on e-commerce, in which the U.S. advocates the need to ensure that governments do not require ICT service suppliers to use local infrastructure or establish a local presence as a condition of supplying services, have also caused some concern.