The EU Commission’s comprehensive Digital Single Market strategy was one of the hot topics relating to the ever-changing ‘connected world’ we covered in our ‘Intellectual Values’ seminar series. Al Shaw, Counsel in our London IPMT team, focussed on the content, copyright and broadcasting initiatives within it.
Al explained that the Commission is reviewing the Audio-Visual Media Services Directive, the EU’s copyright regime and the Satellite and Cable Directive and there are various legislative proposals coming out of these reviews. The only legislation to be enacted so far has been the ‘Portability Regulation’.
Al explained that the Portability Regulation (the Regulation on ensuring the cross-border portability of online content services in the EU) will come into force in April 2018. Under the new rules service providers must allow subscribers to access content while they are temporarily in another Member State e.g. on holiday or travelling on business. The legal mechanism to achieve this , is that the provision of, access and use of the service is ‘deemed’ to occur in the subscriber’s state of residence and therefore there are no infringing acts in any other Member State. He said the rules are mandatory for providers of paid-for content and opt-in for providers of free content. By June 2018 providers will have to verify where all their subscribers are based.
Audio-visual and Media Services (“AVMS”) Reform
Al said that the most controversial aspect of the reform of the AVMS Directive is the proposal to extend the scope of the AVMS Directive to video-sharing platforms in relation to hate speech and protection of minors. The definition of video-sharing platforms is broad. It captures those services storing “large amounts” of programmes or UGC, where the provider has no editorial control but has control over the organisation of the content on the platform. This is an area where the Commission is struggling with the overlap between the various legislative proposals, in this case the AVMS Directive reforms and the copyright reforms.
Al gave an overview of the Commission’s proposals to modernise and reform copyright, explaining that the most controversial aspect of the proposed reforms is Article 13 of the draft Copyright Directive, which relates to the use of protected content by online services. Alastair said Article 13 is the so-called “Value Gap” provision. “Value Gap” is the term given to the perception that online service providers are taking useful content (either themselves or via users) and depriving content owners of fair remuneration for that content. The Commission proposal would mean that Member States have to take steps to ensure that service providers enter into functioning agreements with rightsholders in relation to that content, or take measures to ensure that the content is not available. It is particularly controversial, because it would require service providers to use content recognition technology and there is an inbuilt assumption in the proposed legislation that service providers would be infringing copyright by ‘making available’, which is not necessarily the case.
Online Transmissions and Retransmissions
Currently, the SatCab Directive includes a ‘country of origin’ principle, which means broadcasters only need to clear rights for broadcast in the country from which the broadcast is made and not in every country which receives the broadcast. However, there is no mechanism for broadcasters’ online transmissions or third party retransmissions of the original broadcast. The proposed Online Transmissions and Re-Transmissions Regulation seeks to address this by introducing a ‘country of origin’ principle for the broadcasters’ own online transmissions and by introducing a mandatory collective licensing scheme for third party retransmissions of the broadcast. Al said content producers are concerned that the new rules may undermine their ability to licence their content territory by territory and damage production funding arrangements.
Al wrapped up the session with some comments about which proposals are likely to end up as law in the UK, post-Brexit. He said the Portability Regulation will come into force in April 2018. If the revisions to the AVMS Directive come into force before Brexit, the UK government is largely content with these and therefore they are likely to be implemented. The changes to the copyright regime are more controversial and the UK government has said it will look at whether they want to bring in only certain aspects of the changes rather than implement all. Finally, the Online Transmissions and Retransmissions Regulation is likely to have direct effect before the UK withdraws from the EU.
The full video is available here. For more information on the Commission’s DSM strategy visit our microsite http://dsmwatch.com/, which includes our interactive timeline, displaying the core initiatives and their current status.