Digital Single Market
Fieldfisher issued a report on the DSM following the EU Commission's objective to streamline EU Copyright Law. The report was based on feedback from our Media Crammer session on 3 February 2015. Attendees included representatives of TV broadcasters, film producers, intermediaries and others, all with different takes on the EU Commission’s agenda. The results from the survey were fascinating, with the following being the highlights:
78% of attendees believe the market should be left to address any need for reform: they would like to create and foster industry initiatives where market operators can experiment with new business models and respond to the fast moving evolution of the digital market place.
A substantial majority were against a single unitary copyright title, to substitute the current systems of national copyright titles.
70% believe geo-blocking in the online distribution of audio-visual content is necessary, saying restrictions on territorial licensing would be a hindrance to business models, jobs and diversity of content in the industry.
In summary, it appears that the creative industries are concerned that reform of the kind advocated by the Commission may disrupt the market conditions required to enable a healthy environment for the creation of high quality content.
For further information from the survey and to download the report itself, please follow this link:
As anticipated by the report, the Commission released its Communication entitled "A Digital Single Market Strategy for Europe" on 6 May 2015. Announcing the Commission's DSM Strategy, Jean-Claude Juncker repeated his vision of "pan-European…digital services that cross borders…"
The Commission's Communication is a strategy paper, so is short on specific detail, but gives a clear roadmap for the direction its initiatives will take.
It covers a wide range of initiatives, from consumer protection to digital infrastructure and, of course, the breaking down of geographic barriers. They are grouped on what the Commission refers to as three "pillars": better access, creating conditions for digital networks and services to flourish and maximising growth.
Almost all the initiatives will have an impact on the media sector: for example initiatives to drive digital infrastructure will have the indirect benefit of allowing greater and faster access to media content across Europe, enhancing the media sector's online audience.
In terms of specific initiatives that directly affect the media sector, the Communication reiterates the Commission's view that unfair discrimination against consumers when they try to access content online in the EU needs to be prevented (and that this discrimination can come in the form of geographical location), with a promise this year to make a proposal covering harmonised EU rules for online purchases of digital content and to make legislative proposals in the first half of 2016 to end unjustified geo-blocking.
The Commission also indicates its desire for a more harmonised copyright regime "which provides incentives to create and invest while allowing transmission and consumption of content across borders" indicating that it will make legislative proposals before the end of 2015. This will include addressing the portability of legally purchased online services and ensuring cross-border access to legally purchased online services, although the Communication adds the following qualification: "whilst respecting the value of rights in the audiovisual sector." The Commission will also look at extending the Cable and Satellite Directive (which addresses copyright in relation to cross border transmissions) to online transmissions and examine whether changes are needed to the way in which the Audiovisual Media Services Directive applies to traditional and new media services.
Whilst being wary of measures that might undermine the existing economic model for content licensing in Europe, industry players may take some comfort from the fact that the Commission accepts that there could be some cases of justified geo-blocking and that there is a balance to be struck between greater access and the incentives to create and invest. They might also take comfort from phrases such as "whilst respecting the value of rights" and Gunther Oettinger's (Commissioner for the Digital Economy and Society) comment that the proposals will balance "interests of consumers and industry".
One measure that will likely be music to the ears of many media sector businesses will be the commitment before the end of 2015 to review the need to improve measures to tackle illegal content on the internet.
In summary, the Strategy continues a direction of travel already sign-posted in previous statements and comments from the Commission, but does, at least, seem to leave open the opportunity to make the case for protecting legitimate business interests to some degree in the process of freeing up the digital market. All interested parties should ensure they engage actively in the Commission's consultation process.