Yesterday the European Commission unveiled five more elements of its Digital Single Market Strategy. These consist of new e-commerce rules (including a legislative proposal to address unjustified geoblocking), updates to the EU audiovisual rules and ‘a targeted approach to online platforms‘. From the copyright perspective the geoblocking proposal and the communication on online platforms are most interesting.
Geoblocking for online content is now officially justified
While it is not a surprise it is still disappointing that the Commission has given in to pressure from rightsholders and now considers geo-blocking of online content ‘justified’. At least that is the message it is sending out with the legislative proposal that applies to all electronically supplied services except ‘services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter‘. It takes a lot of guts to sell such a proposal as an element of a digital single market strategy as it effectively reinforces the territoriality of the digital market place for content in the EU.
This failure of the Commission to deliver on the core of its promise to create a digital single market has caused Felix Reda to launch a new campaign website that aims to stop all forms of geoblocking once and for all (we encourage you to go there and register your disappointment with the path the Commission has taken). Geoblocking of content is one of the most irritating barriers when it comes to access culture online and seriously undermines the legitimacy of the copyright system as a whole.
Intermediary liability regime remains unchanged
The most interesting part of yesterday’s announcements concern the Commission’s plans for regulating online platforms. With regards to that the Commission published both its communication on Online Platforms and the Digital Single Market and its analysis of the earlier consultation on on that matter. In the past we had expressed concerns that the Commission might consider changes to the intermediary liability regime established by the e-commerce directive which could have far reaching negative consequences.
Fortunately this is not the case and ‘the Commission will maintain the existing intermediary liability regime’ (page 9 of the communication). Reading through the summary of the platforms consultation it appears that the Commission had little choice here, as half of the respondents considered the existing regime fit for purpose and the other half was split between those who considered it too strict and those who considered it too open. No-one can spin that into support  for undermining this fundamental principle of the the internet.
However that does not mean that there are no problems with the ‘sectorial, problem-driven approach to regulation‘ that the Commission proposes. As EDRi and others (like MEP Marietje Schaake) have pointed out, the Commission is essentially proposing to privatize (law) enforcement here, which is hugely problematic as it will well decisions that affect freedom of speech and access to information to corporate players (and as a consequence to intransparent algorithms). This will severely affect the possibilities affected citizens have to seek recourse against enforcement actions.
In addition the Commission has used the platforms communication to double down on its threat that it will somehow modify the balance of copyright in order to improve the bargaining position of rightsholders:
In the next copyright package, to be adopted in the autumn of 2016, the Commission will aim to achieve a fairer allocation of value generated by the online distribution of copyright- protected content by online platforms providing access to such content.
While it is still completely unclear how the Commission plans to achieve this, it is pretty obvious that this can only be done by either expanding the scope of rights granted under copyright, inventing new rights out of thin air or limiting user rights. None of these would be acceptable and as OpenMedia rightly points out in their press release, it is pretty brazen that the Commission is holding onto this path in the light of clear opposition from all stakeholders except rightsholders.
This should be taken as a well timed reminder to speak out to the Commission that creating more rights is the opposite of modernizing copyright. You can do this until the 15th of June via the Comission’s consultation on a new neighbouring right for publishers which you can either fill in directly or via the answering guides provided by fixcopyright.eu and innovatorsact.eu (specifically aimed at startups and other innovators).
