Great news are expected in EU and Italian media landscape, as 2016 will be crucial for the implementation of the Digital Single Market Strategy of the EU Commission. Hence, this one could not be merely a transitional year, but an actual boost for the media industry, both from a regulatory and business perspective.

AVMS Directive Reform: Towards a Level-Playing Field?

The Consultation launched by the EU Commission on the AVMS Directive (see here for one of our posts on the topic) expired on September 30, 2015 and had a great success among stakeholders.

As regards the level-playing field, the EU Commission appears to be aligned with its Communication on “A Digital Single Market Strategy for Europe” of May 6, 2015 (see here our previous post on the matter): OTT service providers should be subject to a regulatory framework very similar to the one encompassing linear and non-linear AVMS.

The EU Commission by means of the Consultation seems to confirm that, at least in connection with the promotion of EU audiovisual works and protection of minors, a level-playing field among linear, non-linear and OTT services providers is necessary.

As we pointed out in one of our previous posts (available here), also the Italian Deputy Chamber is getting involved. The final report of its AVMS official survey (click here), stated, inter alia, that a unique regulatory framework for any type of AVMS provider (linear, on-demand, OTT), in particular in the fields of promotion of European works, minors’ protection and advertising thresholds, would be strongly advisable.

It will be really interesting to analyse how the EU institutions will face the unavoidable progress of the OTT providers in the provision of audiovisual contents.

Sat-Cab Directive Reform

The consultation launched by the EU Commission (ended up on November 16, 2015) on the Sat and Cab Directive of 1993 is aimed at facilitating 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, 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.

In parallel, the Commission is conducting a study to assess the functioning and relevance of the Sat and Cab Directive as well as the legal and economic aspects of the evolving broadcasting landscape. According to the Commission, the results of the study will be made available to the general public in Spring 2016.

The review of the Satellite and Cable Directive is linked to the Commission’s plans to modernise EU copyright rules as set out in the plan for the Digital Single Market. The cross-border fruition of copyrighted (audiovisual) content is probably more than a mere prediction!

Geo-blocking 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.

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.

AGCOM Regulation for On-Line Copyright Protection: will it pass the next scrutiny of the Constitutional Court?

Finally, a completely Italian-based prediction: very recently the Italian Constitutional Court declared inadmissible the two orders of the Italian Administrative Court of First Instance (“T.A.R. Lazio“) which contested the legal basis of the AGCOM powers to impose the removal of online (unlawfully) exploited copyrighted contents or even the block to the access to “pirate” website.

With its judgment, however, the Constitutional Court did not clarify if such (broad) administrative powers are legally grounded or not. Therefore, it is not difficult to predict that other parties in different proceedings will try to invalidate the Regulation for On-Line Copyright Protection, in our opinion probably without results.