Digital Single Market Update
Communication - 'Towards a modern, more European copyright framework'
On 9 December 2015, the European Commission published the communication 'Towards a modern, more European copyright framework', providing further guidance for the future of copyright. This largely mirrors the previous leaked proposals which we have commented on, with a commitment to ensure 'portability' of online content services by Spring 2016 and a harmonised exception to copyright infringement to benefit people with disabilities implementing the WIPO Marrakech Treaty. One specific change, however, is that the Commission will consider whether "any specific action on news aggregators is needed, including intervening on rights". In the communication itself ancillary rights are not discussed, but from the Q&A documents it can be seen that the Commission will continue to monitor national systems in order to decide whether to implement EU-wide ancillary rights over news content, as employed on a national basis in Spain and Germany. All being well, legislative proposals should follow within the next six months.
Following this Communication on 3 February 2016, the European Parliament adopted a Resolution on the ratification of the Marrakech Treaty to facilitate access to published works for persons who are blind, visually impaired or otherwise disabled. The Treaty will come into force once it has been ratified by 20 World Intellectual Property Organisation members and then, as anticipated by the Communication, legislation will follow to implement the Treaty by introducing a mandatory, harmonised EU exception.
Since our last bulletin, the Commission have also published a proposed Regulation on portable content with the aim of enabling consumers to use their home online subscription services whilst 'temporarily' staying in another Member State. Legislative proposals aimed at further enhancing cross-border access to online television and broadcasting services due in spring 2016 are likely to provide greater clarity. On the point of copyright, the Regulation neatly skirts around this by stating that the relevant acts of reproduction, communication to the public and the making available of works are deemed to occur in the subscriber's home state. It is anticipated that the Regulation will be approved by the European Parliament and the Council of the European Union in 2016 and be in full operation by 2017. The Regulation will enter into force on the day it is published in the Official Journal of the European Union and will apply six months after it is published. The Regulation will be directly applicable; there will be no need for Member States to implement the rules by enacting national legislation.
On 21 January 2016, the UK government called for views on the Portability Regulation (Call for views on cross-border portability of digital services). Fieldfisher have submitted a response, where we concluded that "although on the whole, the Regulation seems to address portability aims, the definitions of "Subscriber", "Online Content Service" and "Temporarily Present", were not entirely clear in the Regulation". We therefore call for further amendments to be made before it is finalised.
Enforcement of Intellectual Property Rights
A consultation to analyse the legal framework for the enforcement of intellectual property rights has also been published. The consultation has been launched with the intention of a revision to the legislation in 2016.
Geo-blocking Roadmap published by Commission
The consultation on geo-blocking recently closed at the end of 2015 and, on 12 January 2016, the European Commission published a roadmap on proposals to address unjustified geo-blocking on the basis of residence or nationality. The roadmap lays out a number of options for the envisaged proposals, ranging from no EU policy change at all to amending existing legislation to include a prohibition on geo-blocking. The roadmap emphasises that any proposal that is implemented will be technologically neutral. The Commission finally concludes by suggesting that academic workshops will be held in order to interact with stakeholders before any further decision is made.
UK Government response to EU consultation on geo-blocking
On 15 January 2016, the UK government published a number of responses to the EU Commission's previous consultations. Of particular interest was the response to the consultation on Tackling Unjustified Geo-blocking (Geoblocking: EU consultation response). On the whole, the response was positive; consumers should not be blocked from viewing prices offered to consumers in other Member States and businesses should not be able to price discriminate based on nationality or location. However, the government submitted that there should not be pan-European advertising; businesses should be able to target a particular Member State audience to ensure effective advertising. Requiring businesses to charge one single price and use one single advert across the EU would be a step too far and, in this respect, the response seemed to suggest that in some circumstances price discrimination can be beneficial to consumers. Equally, the response suggested that an obligation on businesses to ship to any location in the EU would not be supported, particularly if the business is an SME. The response concluded by suggesting that breaking down cross-border obstacles should be more of a natural process that happens gradually over time, without the need for any legislation.
For more discussion on the Government's response, view our IP blog here:
For more discussion on portable content, view our articles here:
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