The European Commission today announced further details of the implementation of the Digital Single Market Strategy. The announcement includes draft Regulations to enhance content portability within Europe by banning geo-blocking in certain circumstances. It also gives an indication of the potentially far-reaching copyright reforms due to be developed further in 2016.

Background

The EU Commission's Digital Single Market Strategy is a wide-ranging and ambitious proposal to reform the digital market place within the EU. The aim of the strategy is to create an online market across the EU where consumers and businesses can carry out online activities easily, irrespective of nationality or place of residence. The implementation of this strategy will impact upon a host of regulations and laws applying to online content and its users and providers.

Geo-blocking

The Commission views geo-blocking - restricting access to content on the basis of the territorial location of a user - as one of the primary obstacles to a true digital single market. Today’s proposed legislation will permit consumers to watch content that they can enjoy in their home state throughout the EU. From an EU law perspective, a consumer seeking to use a Netflix subscription or watch the iPlayer whilst abroad will be treated as if they were doing so at home. This is designed to get round the problem that, frequently, content providers do not have the legal right to make content available across multiple jurisdictions.

The proposals are good news for consumers, but it remains to be seen how easy they will be for content providers to implement. For example, if the proposed change in law goes ahead so that the BBC's on demand content is included within the licence fee, the regulations would appear to apply to content on the iPlayer. However, there is at present no authentication system for iPlayer access so the (unspoken) implication appears to be that the BBC must now create a system which can distinguish between UK citizens who are seeking to access content abroad and other EU citizens. Both rights owners and content providers will also need to review their licence agreements carefully and consider whether amendments are required if the proposal is implemented.

Sports and media rights owners will be pleased that today’s proposal is relatively limited and should not interfere with the traditional structure of licensing content on a territorial basis. There were concerns that the Commission’s proposals might have, in effect, compelled pan-European licensing, which would have seriously undermined the total value of sports rights in particular. However, the Commission plans to announce further action in Spring 2016, so today's proposals may only signify a first step towards the Commission's ultimate goal of enabling full cross-border access to content across Europe.

The Commission's wider vision for copyright

Whilst the introduction of portability requirements was described as the "appetiser", the Commission's "main course" is the modernisation of the EU copyright framework. The Commission wants to make sure that EU citizens can access a wide range of content whilst ensuring fair remuneration and improved protection for rightsholders.

To this end, the reforms will focus on:

  • widening access to content (beyond the enhancement of content portability discussed above);
  • revising/harmonising exceptions to copyright infringement;
  • creating a fairer marketplace in terms of rightsholder remuneration (this may involve redefining the communication to the public and making available rights); and
  • making it easier to enforce copyright in the online world.

These plans will be developed alongside the ongoing review of intermediary liability.

Whilst the specific details of these reforms are not scheduled to be set out until Spring 2016 (and will depend on the results of several public consultations), the education, culture and R&D sectors are expected to be the principal beneficiaries. In the longer term, the Commission has stated its aim to create a single European copyright title. This would no doubt be extremely complicated to deliver, but without it the goal of a genuine digital single market is likely to be hard to attain.