On the back of Jean-Claude Juncker’s annual “State of the Union” address this morning, the European Commission has unveiled the latest in a number of developments in the Digital Single Market initiative. The Digital Single Market (“DSM”) strategy is essentially Europe’s answer to the developing nature of technology, increased connectivity, and consumers’ expectations that they will be able to stay connected and continue to access content abroad. This answer comes in the form of legislation designed to facilitate cross-border portability of paid-for (and in some cases free) digital content. Put simply, the basic concept is that we can all take our Sky Sports subscriptions on holiday (provided we’re holidaying in the EU).
So far so good for consumers. We can all look forward to reclining on the beach whilst watching the football. But the position is less comfortable for rights owners and licensees, who have traditionally relied on the ability to distribute content in numerous distinct markets as a way of maximising value in their digital and broadcast assets. The Premier League, for example, generates huge amounts of revenue from sale of rights on a market-by-market basis, although it has also pointed out that it is already offering aspects of portability (in response to the demands of the market rather than any legislative initiative).
In fact, intellectual property rights in the online environment generally have been a hot topic this year. A number of court decisions – on issues such as the legality of sharing sports clips online, linking to third party content, and the availability of blocking injunctions against online IP infringers) – have clarified rightsholders’ position on a number of important legal issues. At the same time, developments in the DSM strategy have been laying the landscape for the future, with the stated aim being to introduce the new Regulation during the course of 2017. One aspect of the new Regulation is the proposed introduction of an obligation on online intermediaries (e.g. YouTube) to effectively police copyright infringing content appearing on their networks (currently the onus is on the rightsholder to do this and enforce their rights via a take-down request). Indeed the Open Rights Group has this afternoon issued a press release, in response to the Commission, criticising this aspect of the proposed reforms.
Exploiting and protecting IP rights in the digital sphere is often challenging, though in recent years it has presented unprecedented opportunities for fan engagement and connectivity. The basic underlying factor is the age-old issue: new technology creates both opportunities and challenges (by disrupting the status quo, sometimes in ways that the law isn’t equipped to deal with). Rightsholders have learnt to adapt to, and capitalise on, technological advancement and change. Taking online streaming as an example, a concept that was once associated with online piracy has been transformed into a legitimate, high-value rights package (see, for example, the NFL’s partnership with Twitter to deliver live OTT digital streaming of Thursday night games). It will be interesting to see how the debate on DSM develops, in light of the ongoing debate and consumer-industry tensions, in the run-up to the new legislation next year.
For the Commission’s full proposal, see here.
For more on the challenges facing rightsholders online, see here.