Thank you all for attending our webinar on the “Digital Single Market”. This is a very exciting time for those passionate about media regulations. For those who could not attend, the main conclusions are summarized below:
Geoblocking and Copyright reform
The Commission’s plan to legislate against “unjustified” geo-blocking and amend the copyright regime, including promoting “portability” of online content are both, at least potentially, material disrupters of current territorial licensing models. The Commission says that the changes are necessary to satisfy consumer demand and are vital for a move to the digital single market – many in the industry dispute this, both in terms of “proportionality” of the response and also querying whether it will in fact benefit the consumer or have adverse effects. The Commission is in fact-finding and negotiation mode right now, with its proposals for legislative change due (in the case of copyright reform) later this year and (in the case of preventing “unjustified geo-blocking) in the first half of 2016. Although this process, including any agreement as to final legislative change and national implementation is likely to take a number of years, the issues involved are complex and relevant to the entire industry.
The Digital Single Market strategy includes a review of the Audio Visual Media Services Directive. The Directive is the principal EU legislation dealing with content regulation and includes the general principle that providers of audio visual media services are regulated in their “country of origin”, even if received in other Member States. The first step in the review was a consultation, which recently closed, with the review to be completed in 2016. It appears that the scope of the Directive is the area the Commission is most interested in revising: the consultation asks whether all of the regulatory principles applicable to linear services should be extended to on-demand services (which are currently subject to lighter regulation), whether to extend the Directive’s application beyond content that is “television-like” and to platforms who publish third party content (e.g. user generated content platforms) and even whether to extend regulation to operators outside the EU who target viewers or listeners in the EU. Although the consultation says little about some areas of the Directive such as “listed events” and the use of short extracts, all areas are up for review and so those with interest in any aspect of the Directive should follow the review closely.
The current consultation complements the prior consultations on the Commission Green Paper on the Online Distribution of Audiovisual Works and on the review of the EU Copyright Rules. The underlying objective remains to facilitate cross-border clearances, taking into account the existing technology landscape. According to some commentators, this may lead to a review of the country of origin principle (see here our previous post on the consultation here), to be extended also to the making available on the internet, which may well be redefined so as to localize the country of origin to the place where there is the main center of activity of the uploader. It will also be of interest to assess the market response as to the extension of the mediation system and obligation to negotiate. Some commentators may in fact push for stronger measures to facilitate cross border availability of online services when no agreement is concluded.
The Commission’s e-commerce sector inquiry is one piece of the Digital Single Market jigsaw. In launching the inquiry, the Commission is aiming to promote its strategy of a single digital market using its competition / antitrust powers. The inquiry was launched in May earlier this year, and since then the Commission has sent over 2,000 questionnaires to companies across the EU. The Commission’s goal is to build a detailed picture of the competitive conditions in the e-commerce sector, both for good such as clothing and consumer electronics and for digital content such as films and sports events. These are the areas in which the Commission considers online trade to be most wide spread. The inquiry is in the data gathering phase at the moment, and the Commission is expected to issue its preliminary report mid-2016 and its final report in early 2017. Key areas the Commission is expected to focus on are contractual barriers on resellers, unjustified geoblocking and restrictions on passive sales.