We have vocally supported a review of the geo-blocking rules for AV content. However, a majority of MEPs gave in to a campaign by an AV industry coalition that relied on unfounded claims and fearmongering. Industry claimed that a reform of the geo-blocking rules would threaten 15 million creative sector jobs and 4.4% of the EU’s GDP. These numbers have no basis in fact, as we explained in a previous blogspot. First, there are various ways to maintain the current territorial financing model (allowing passive sales or introducing curtain periods for example). Second, no independent economic impact assessment has been carried out yet, which would be the basis for any legislative initiative. According to the campaign, the abolition of geo-blocking would also lead to less diversity and less content being produced in fewer languages – an extremely hypothetical construction with, again, no basis in fact.

The industry campaign was so effective that Parliament even removed § 25 from the report that would have expounded the problem of geo-blocking of content that is “funded or co-funded” by the EU. One would believe that the demand that “whenever EU funds are involved in the financing of audiovisual content, no EU citizen should be deprived access to it” is a fairly uncontroversial one. But not for the AV industry, which is happy to accept public funding and still wants to call all the shots on distribution.

If we don’t see a reform of the geo-blocking rules for audiovisual content, European consumers will continue to be locked out from content that they would be willing to pay for if it isn’t licensed in their country of residence. As the Commission’s first short-term review showed, consumers in the smaller markets are most affected by the current regime. While European consumers on average have access to only 14% of the films available on line in the EU (p. 10), consumers in Greece, for example, only have access to 1.3% of all the titles in all Member States (p. 68 of Staff Working Document part two).

The result is a frustrating reminder that overblown statistics and other baseless claims remain an effective lobbying tool in Brussels. So what should happen next? COMMUNIA has been a constructive participant in the European Commission’s stakeholder dialogue where a number of options have been explored to abolish geo-blocking without harming the territorial financing model of the AV industry. These include proposals from stakeholders (including from us) for pilot projects to make publicly funded content available on a European media platform upon expiry of a curtain period against remuneration. The next Commission should take the initiative and implement such a pilot project to assess the economic and social impact of a gradual fade-out of geo-blocking for audiovisual content.

The post This item still isn’t available in your country appeared first on COMMUNIA Association.

Open letter to the European Parliament

Dear Members of the European Parliament,

This week, on December 12, the European Parliament is scheduled to vote on an own-initiative report on the implementation of the 2018 Geo-blocking Regulation, including for audio-visual content. The IMCO Committee adopted the report on October 25, 2023, with opinions from CULT and JURI, through the support of a broad, cross-party majority. We urge you to follow the committee’s vote, adopt the report and pave the way for a revision of the Geo-blocking Regulation during the Parliament’s ‘24-’29 term.

With regard to audiovisual content, the report “highlights potential benefits for consumers, notably in the availability of a wider choice of content across borders” (p. 4). It also asks for a report of the Commission’s stakeholder dialogue on the subject to be made public and presented to the Parliament.

Despite the report’s balanced nature, it has come under attack by rightsholders from the audio-visual industries. Over the course of the past weeks, the Creativity Works! coalition and others have engaged in a massive campaign against the report, advancing a number of false or overblown claims to undermine it, which can be easily debunked:

Misleading claim 1: Ending Geo-blocking of audio-visual content would harm “15 million creative sector jobs” and “jeopardise a €640 billion industry.”

There is no independent study that proves this statement. Contrary to what part of the copyright industry claims, the IMCO report does not challenge territorial licensing. In fact, it reaffirms the need to preserve it. What IMCO suggests – and we support – is that consumers and citizens should not be denied access to Europe’s rich cultural diversity. Territorial protectionism does not benefit anyone but incumbent industries profiteering from the unjustified partition of the Single Market.

Misleading claim 2: The IMCO report threatens territorial licensing and calls for EU-wide licensing for audiovisual services which would be prohibitively expensive for smaller players and limit cultural diversity in Europe.

This statement is factually incorrect as the IMCO report at no point makes any reference to prohibiting or discouraging territorial licensing. On the contrary, the need to safeguard territorial licensing is mentioned repeatedly throughout the report. Further, there are no demands to instate a system of EU-wide licences. Any predictions for the future of the European audio-visual sector based on these claims are severely misguided and paint a deceiving picture of the IMCO report.

While the campaign by Creativity Works paints a dire picture of the audiovisual sector, should the legislator follow the report, there is little substance to these claims. Denying the people access to culture, by contrast, is not in your, or anyone’s, interest. We encourage you to vote with confidence in favour of the report.

Signed,

COMMUNIA Association for the Public Domain

Creative Commons

Federal Union of European Nationalities (FUEN)

Vrijschrift

Wikimedia Deutschland

Xnet, Institute for Democratic Digitalisation

The post Open letter on geo-blocking: Denying people access to culture benefits no-one appeared first on COMMUNIA Association.

Over the past few weeks, rightholder organisations united in the Creativity Works! Coalition have started a massive campaign attempting to neuter one of the core recommendations contained in the report: A request to the European Commission to undertake “a comprehensive revision of the Geo-blocking Regulation by 2025 the latest, with a particular view on an inclusion of audiovisual services in the scope of the Regulation.”

How is it possible that such a seemingly procedural request about the review of a piece of legislation is provoking such a strong reaction from rightholders? A campaign that is headlined by the following statement that features prominently on the campaign website:

Geo-blocking is one of the foundations for Europe’s creative and cultural sectors, providing Europeans with the means to create, produce, showcase, publish, distribute and finance diverse, high-quality and affordable content.

The idea that denying people access to culture is a “foundation for Europe’s creative and cultural sectors” is of course a rather disturbing one, but points right at the heart of the problem that the IMCO report is trying to address.¹ As long as AV rightholders do not even see that denying people access to cultural productions — that they want to pay for! — is nothing but blatant discrimination based on geographical location, requiring a regulatory intervention.

After having gotten a free pass when the original geo-blocking resolution was adopted, the upcoming review must now include an effort to bring AV services within the scope of the regulation to end this unjustified and counterproductive practice.

What the AV sector is doing with this its current campaign is trying to prevent EU lawmakers from reviewing the regulation, while no-one outside of the creative industries is paying attention, because they know very well that their arguments against inclusion do not have much to stand on.

A bit of history

So how did we get here? The 2018 Geo-blocking Regulation was adopted to make an end to unjustified geographical restrictions in the sale of goods and services within the EU. It addressed the problem of so-called “geo-blocking” — the baseless discrimination of customers accessing such services from other member states — with the aim to facilitate access to cross-border offers within the EU’s internal market. The directive contains a number of exceptions to this principle, one of these excludes audio-visual services from its scope. This exception has been the result of intense lobbying by the AV sector, which had argued that the underlying business models allowing the sector to thrive rely on territorial copyright licensing and that in order to make such licensing work in the online environment, online services must be able to block access from unlicensed territories.

In 2020, the European Commission published its first evaluation report covering the first 18 months of implementation of the Regulation. Regarding a possible extension of the scope of the Regulation to audio-visual content, the report highlighted potential benefits for consumers, (the availability of a wider choice of content across borders) but also identified a potential impact that such an extension would have on the overall dynamics of the audio-visual sector. The report did not contain specific suggestions or a concrete timeline to revise the Regulation, instead it identified a need to further assess the situation.

As a follow up of the evaluation report, the Commission launched a stakeholders dialogue on cross-border availability and access to audiovisual content across the EU. COMMUNIA has been part of this stakeholder dialogue (as one of only three organisations representing consumers and the public interest) which had the objective to let stakeholders propose concrete, non legislative, measures to improve the online availability and cross-border access to audiovisual works across the EU. Most, if not all, of the organisations that now campaign against the adoption of the IMCO report also participated in this stakeholder dialogue. Throughout the stakeholder dialogue, these organisations mainly sought to undermine the process by questioning the legitimacy of the process and stating that geo-blocking is essential to their financing models. While the stakeholder dialogue resulted in a number of proposals (including one from us), none of the organisations representing rightholders submitted any proposals aimed at improving cross border access. Instead they asked for more funding and tried to deflect the discussion towards the non-issue of “findability” of legal content (something the current campaign attempts as well).

In other words, the very same organisations that successfully sabotaged the stakeholder dialogue aimed at finding non-legislative solutions for geo-blocking of audio visual content are now lobbying against having EU lawmakers take another look at the issue.

But what is really at stake?

If you have to believe the campaign website set up by the Creativity Works! Coalition, then ending Geo-blocking of AV content would harm “15 million creative sector jobs” and “jeopardise a €640 billion industry.” These numbers are, even by the vastly inflated Brussels lobbying standards, simply absurd as they imply that the entire European Creative and Cultural Industries would be affected by a possible inclusion of AV services in the scope of the Geo-blocking Regulation — something that is obviously not true.²

It is true that territorial licensing arrangements play an important part in the financing arrangements for audiovisual productions (something that we have acknowledged in our submission for the stakeholder dialogue). However this does not mean that in order to preserve the ability to licence it is necessary to geo-block access to AV works from unlicensed territories within the EU.

Most of the claims about economic and cultural damage made by the CW! campaign find their origin in the idea that the IMCO report would require the AV sector to abandon territorial licensing, which is something the IMCO report does not propose. On the contrary, the need to safeguard territorial licensing is mentioned repeatedly throughout the report.

The report also does not call for a shift towards an EU-wide licensing for audiovisual services. However the CW! Campaign repeatedly points to the costs of such EU-wide licenses as the basis for its predictions of further consolidation in the industry that would lead to less cultural diversity.

Another aspect of the report that is under attack by the CW! Coalition is the fact that the report makes a link between increasing demands for cross-border access to AV by consumers and the increased use of VPNs, which allows them to circumvent geo-blocking. Here. the industry would very much prefer the report not to describe existing consumer behaviour that does not align with the picture of reality that they would like to see.³

As a result, one of the core insights of the IMCO report, that as a consequence, the adaptation of existing business models to the changing environment is needed both for consumers and businesses is once again at the risk of being ignored. Rightholders are seeking to get this conclusion removed from the report because the stakeholders on the supply side of the AV sector have again decided that rather than adapting to and working with consumer expectations, they can rely on their considerable lobby power to preserve the status quo that they have gotten comfortable with.

The European Parliament should resist caving in to this ongoing campaign against the IMCO report, and support the report’s call for an evidence-based revision of the Geo-Blocking Regulation in the next mandate. Contrary to what the CW! Campaign wants us to believe, this would neither mean the end of territorial licensing, nor the demise of the European Cultural and Creative Industries and it would also certainly not lead to less cultural diversity. If done well, ending geo-blocking would provide all Europeans with more legal access to a more diverse offering of AV content and a thriving cultural sector that can finally stop claiming that denying people access to culture is in anyone’s interest.

Endnotes

1. It seems that the creators if the campaign are at least marginally aware of this given that a position paper published by the campaign attempts — somewhat cringe worthy — to reframe “geo-blocking” as “geo-enabling”.
2. The numbers used by the campaign come from a 2021 EY study that defines the Cultural and Creative Industries as the combination of the following sectors: Advertising, Architecture, Audiovisual, Books, Music, Newspapers and magazines, Performing arts, Radio, Videogames and Visual arts. A substantial proportion of these has nothing to do with audiovisual content and geo-blocking is relevant only in a very small sub section of these sectors.
3. This is reminiscent of multiple exchanges during the stakeholder dialogue during which mentions of piracy as a rational response to being denied lawful access to a desired cultural good, were met with horrified responses from rightholders demanding that mentions of illegal acts should not be permissible in the context of the stakeholder dialogue.

The post Denying people access to culture is in no-one’s interest – let’s pave the way for a revision of the Geo-blocking Regulation! appeared first on COMMUNIA Association.

Over these three meetings it became increasingly clear that the majority of the invited stakeholders were not interested in working with the Commission on improving cross border access to audiovisual content in the EU. With the exception of the organisations representing users (apart from COMMUNIA these included BEUC and the Federal Union of European Nationalities) and a few dissident voices within the AV sector the representatives of AV rightholders, distributors, producers and creators insisted that the current system of territorial copyright licensing is working well and that it is essential for the financial sustainability of the European audio-visual sector as a whole.

According to them, the fact that this system also leads to widespread geo-blocking and deprives many Europeans of access to cultural works that are often (at least partially) funded with public money does not justify an intervention in the “well-balanced” business models that underpin AV production in Europe. In addition, they argue that it should be up to the market to increase cross-border access to AV works in the EU (while at the same time lobbying for increased EU support for the production and distribution of AV works).

Request for proposals

At the beginning of this year — after having been shown the cold shoulder by the AV sector — the Commission put the stakeholder dialogue on hold to reconsider its approach. Then, in June of this year, the Commission sent out a letter to all participants in the stakeholder dialogue inviting them to:

… submit proposals for concrete actions or roadmap presenting the steps you intend to take in order to contribute to improving the online availability and cross-border access to audiovisual works across the EU. We would welcome your proposals for commitments by Friday 23rd September 2022.

Adding that after assessing the proposals received, the Commission would

… convene a final meeting of the dialogue in the autumn in order to formally adopt them as participants’ commitments.

Last week, in response to this invitation, we submitted a proposal for a fallback TVOD service for publicly funded AV works. Here, we develop the concept for an independent not-for-profit platform that would ensure the availability of AV productions – that have received public funding – in all member states of the European Union. 

The platform that we are proposing would be a Transactional Video on Demand platform (TVOD – industry parlance for a pay per view platform) and as such would be something that can generate extra revenue for the producers of films made available via the platform. It is not a proposal to make these works available for free.

Our proposal focuses on AV productions that have received public funding — which is the vast majority of AV productions made in Europe — because here the moral and cultural imperatives to make them available across all EU member states is the strongest. Implementing this proposal, which in itself accepts the current practice of exclusive territorial licensing, and — ironically — relies on geo-blocking as a mechanism for this, would be an important step towards a future without structural geo-blocking of AV works that are available in the EU.

We are looking forward to discussing our proposal with other stakeholders in the upcoming meeting of the stakeholder dialogue.

The post Our proposal for ending geo-blocking of audiovisual works in the EU appeared first on COMMUNIA Association.

We have accepted this invitation in order to ensure that the perspective of users/consumers seeking access to audiovisual works will be represented in the discussions that should lead to the end of unjustified geo-blocking of audiovisual content in the EU. We have outlined our initial position in the opening statement delivered by Paul Keller during today’s high level round table:

Thank you Commissioner Breton for the invitation and the possibility to present our views in this context. We are a pan European association of organisations advocating for the defence of the public domain and strong user rights protections in the field of copyright.

The question of access to AV content is a highly relevant issue that directly affects the rights of users – in this case probably best described as consumers – in this case the right of access to culture. This right is violated every day when someone in the EU is trying to access AV productions online and is rejected because she is doing so from a territory where the production is artificially prevented from being available for consumption.

This such a situation does not only curtail the right of access to culture, it also damages the relationship between consumers who perceive this discrimination. Consumers perceive the relationship between producers of creative works and consumers as reciprocal: consumers are obliged to pay for the outputs of their creative work and the authors are obliged to enable consumers to access their works. When an industry is structurally failing to meet this reciprocal responsibility by discriminating against users on the basis of their geographical location it loses trust. This is especially problematic (for the whole system) in a field where other (often less legal) ways of acquiring access to the works in question are readily available. Finally this also hurts the creators of AV works with specific / smaller audiences, such as documentary movies. These creators often see the lack of EU-wide accessibility of their works (imposed on them by the funding models dominant in the sector) as limiting their ability to tell their stories (I say that as someone who has two documentary filmmakers in my immediate family and many friends who work in this industry).

So what should be done?

We are not the ones who are best positioned to provide concrete solutions here, although the general outline of a solution is relatively clear.

Initially this means that passive sales across member state borders must be enabled. Consumers must have the right to purchase access to content that is legally available to users in other member states in cases where the same content is not available in their location (or cannot be expected to become available shortly).

At the very minimum – [and as Rosa Thun rightly stressed in her intervention] – this should be the case for all productions that have received funding from public sources at the EU or Member State level. As in many other situations public money must result in public availability. This will also contribute to ambitions to raise the profile of publicly funded content on the internet, which should be an important element of creating a digital public space based on European values (support for a diverse cultural sector being one of them).

Finally (and this seems to be overlooked a lot) There must be better information. Right now it is often not possible for a consumer who is being refused service to easily discern where the work might be available instead (or when it will become available).

To conclude

From our perspective it is clear that this issue must be resolved. In this day and age it is getting harder and harder to explain to a generation raised on Netflix and YouTube why European AV productions on other platforms are not available wherever they are. We cannot expect from consumers that want to access these productions that they immerse themselves into the financing structures of the European AV sector or the nuances of copyright law to understand why this is the case. What this industry needs to figure out is how to ensure that consumer expectations (no matter how insignificant they may be when understood in licensable markets) are met. If this is not the case then we provide an unfair advantage to the big integrated platforms that have financial muscle to circumvent these issues. That will be a big loss for the diversity of the EU Audiovisual sector.

A lot has changed in the past one and a half years. Some of the things that were considered immutable elements of the AV sector have shifted under massive external pressure. Just two years ago no-one here would have predicted that it would be possible for me to watch movie releases via VOD during their initial theatrical release but the outside pressure created by the pandemic has enabled this. I do this via a service called picl.nl in the Netherlands that allows cinemas to make the films they are showing available via paid VOD and where you pay though the local cinema of your choice. This is how I watched most of the movies that I have seen during the pandemic and from a consumers’ perspective this is how things should be. It shows that improving the situation for consumers is possible without damaging other parts of the AV sector value chain.

So things can move under pressure and we hope that this stakeholder dialogue will create the conditions for finding solutions to the problem of unjustified geo-blocking. Such solutions must strengthen the European AV sector by making use of the opportunities that the digital infrastructure offers for better and more fair access to AV works from all member states.

Thank you very much

The post Stakeholder dialogue to improve cross border access to audiovisual content appeared first on COMMUNIA Association.

More than a year after the European Commission published its proposal for a Directive on Copyright in the Digital Single Market (DSM directive), the proposal continues to be discussed both in the Council and in the European Parliament. While the discussions in the European Parliament have recently slowed down to a crawl (the vote in the Legal Affairs committee is not expected before January), the discussions between the Member States in the Council are picking up steam: earlier this week, the Estonian Council presidency’s  consolidated compromise proposal was made public.

The compromise proposal contains an entire new chapter (chapter 1a – Measures to facilitate collective licensing’) that contains an a new article (art 9a – ’Collective licensing with an extended effect’). To anyone familiar with the Commission’s proposal (and the critical reception by cultural heritage institutions) this addition will appear somewhat odd as the Commission’s original proposal already relied on ’collective licensing with an extended effect’ as a mechanism that would allow cultural heritage Institutions to make out of commerce works (OOCW) from their collections available online.

So what exactly is going on here? Articles 7-9 of the Commission’s proposal are aimed at enabling the cross border use of out of commerce works. This would allow cultural heritage institutions to make such works from their collections available online so that they can be accessed from everywhere within the EU. While we think that relying on extended collective licensing alone will not be sufficient to achieve this objective for all sectors and all types of work, we are happy with the ambition to solve this problem on an EU wide basis.

A legal basis for Extended Collective Licensing

By contrast, the newly proposed article 9a focusses on (existing) national extended collective licensing arrangements and would not have any cross border effects. Instead, it introduces provisions into the EU legal framework that would remove the legal uncertainty that currently surrounds the extended collective licensing arrangements that exist in a number of (mainly nordic) EU Member States:

A functioning copyright framework that works for all parties requires the availability of proportionate, legal mechanisms for the licensing of works. Systems such as extended collective licensing or presumptions of representation are a well-established practice in several Member States and can provide such solutions, […] Given the increasing importance of the ability to offer flexible licensing solutions in the digital age, and the increasing use of such schemes in Member States, it is beneficial to further clarify in Union law the status of licensing mechanisms allowing collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all rightholders have authorised the organisation to do so (Recital 28a + 29c of the Estonian Compromise proposal)

Last year’s CJEU ruling in the Doke & Soulier case has illustrated that there is a real possibility that ECL arrangements can be declared illegal. This is problematic, as there can be no doubt that extended collective licensing arrangements can play an important role in enabling access to works that are otherwise very difficult to license:

In the case of some uses, together with the large amount of works involved, the transaction cost of individual rights clearance is prohibitively high compared to the commercial value of the use, and without effective collective licensing mechanisms transactions in these areas are unlikely to take place. Extended collective licensing and similar mechanisms have made it possible to conclude agreements in areas affected by this market failure where traditional collective licensing does not provide an exhaustive solution for covering all works and other subject-matter to be used. (Recital 28b of the Estonian Compromise proposal)

The Council’s proposed article 9a would introduce provisions that provide a legal framework for national extended collective licensing arrangements. Compared to articles 7-9 of the Commission’s proposal, it is more flexible, as it is not limited to the the use of out of commerce works by cultural heritage institutions. Instead, it would enable the licensing for all types of works which would allow CHIs to obtain licenses for collections that contain both in and out of commerce works (it would also cover extended collective licensing in other fields such as education).

At the same time, extended collective licenses based on this proposed article would also be much more limited as they would only apply domestically. This would mean that CHIs would need to geoblock access from other EU Member States to works that they make available online based on such licenses, which would work against the very idea of a Digital Single Market.

For cultural heritage institutions in Member States that have ECL systems in place or that are willing to introduce such systems, this is good news. Licenses based on the new systems will be much more flexible and allow them to digitize collections without having to spend resources to establish if works are out of commerce or not, and there will be a strong incentive for them to obtain licenses based on the newly proposed article 9a instead of making OOC works available relying on licenses based on articles 7-9.

Geoblocking or a Digital Single Market?

Unfortunately, this is where the problems with the new article start. By introducing the ability for more flexible domestic ECL systems, the Member States severely undermine the viability of the existing provisions aimed at allowing EU wide access to out of commerce works.

From our perspective, this would be a huge loss that goes directly against the objective of the directive to create a Digital Single Market including cross border access to the digitized cultural heritage collections of institutions all across the EU. The new proposal will likely lead to a situation where a lot of digital collections will only be available from within the Member State where the institution owning the collection resides.

The real losers of this would be be cultural heritage institutions in Member States that lack a robust collective management sector that is the prerequisite for extended collective licensing. Establishing a robust legal framework for ECL on the EU level should not happen at the detriment of those institutions. To prevent this, the Member States should make sure that the provisions for access to Out Of Commerce works contained in the Commission’s proposal are strengthened.

Cultural heritage institutions have taken the position that this requires both a simplification of the procedures foreseen in the Commission’s proposal (which has been addressed in the Estonian compromise proposal), and the addition of an exception as a fallback mechanism for situations in which ECL does not work. Such a fall back exception (not included in the Council’s compromise proposal) would ensure that cultural heritage institutions have the ability to make all of their out of commerce works available even in situations where ECL does not provide a viable solution, because there are no collecting societies willing or able to issue such licenses.

The best of both worlds

The European legislator needs to provide a solution that allows cultural heritage institutions in the EU to make the out of commerce works contained in their collections available online. Wherever possible, on the basis of extended collective licenses; and where necessary, on the basis of a fallback exception.

Giving Member States additional space for extended collective licenses that are not limited to OOC works is a welcome addition, but in the light of the overall ambition to create a Digital Single Market, this should not be limited to domestic uses only. Fortunately, the Estonian compromise proposal keeps this perspective open: the last paragraph of the new article 9a includes a suggestion for the Commission to explore the ability to giving national ECL scheme a cross border effect:

the Commission shall, by 31 December 2020, submit to the European Parliament and to the Council a report on the use of such mechanisms […] The Commission’s report shall be accompanied, if appropriate, by a legislative proposal, including as regards the cross-border effect of such national schemes.

This passage opens the pathway to a best case scenario in which cultural heritage institutions can draw on flexible extended collective licensing arrangements with cross border effect that are backed up by a fallback exception that allows CHIs to make available out of commerce works in situations where they cannot be included in such ECL arrangements.

The new Estonian presidency proposal contains two of the three building blocks for making this a reality. It is now up to the Member States to add the final building block: the addition of a fall back exception.

The post Access to cultural heritage: Geoblocking or a Digital Single Market appeared first on COMMUNIA Association.

The campaign raised various concerns with regard to copyright terms and access to culture. We’ve already examined the differences between the three versions of the diary, so we won’t go into that in depth here. Without a doubt, versions A and B did not enter into public domain in the Netherlands due to specific copyright regulations (This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright — in this case large parts of the original writings will only expire in 2037).

But the versions did enter the public domain in Poland. We think that the Digital Single Market should take under consideration adjustments to copyright that will better support the digital environment and access to creativity across borders. We were surprised to learn that Germany is considering extending their copyright term for authors who died under the Nazi regime (this change is not yet official, although the discussions continue between German authors and collecting societies). Such a move will create further legal uncertainty not only for users, but also for entrepreneurs who want to use works in the public domain.

Geo-blocking is another frustrating practice that places additional hurdles or transactional costs on users who simply want to be able to access (and pay for) creative content online. Licensing segmentation and content blocking can affect access to works in the public domain when those materials are subject to the same types of blunt restrictions as the copyrighted materials. Europe has a strong policy and vision for the re-use potential of publicly available resources—for example public sector information or creative works in the public domain. If we care about enabling broad re-use of these materials, we need to tackle the serious problem of geo-blocking.

We received some pushback on our characterization of geo-blocking. We used the term to describe the rationale behind our posting of the diary as a copyright territoriality issue—namely that the varying copyright terms permitted us to publish it in Poland because it is considered to be in the public domain there (in contrast with the Netherlands).

Since the notion of “communication to the public” is still being discussed in CJEU jurisprudence, we decided to make it possible to download the original version of the diary in Poland, but not in the Netherlands. We know that the term geo-blocking is used mostly in the context of cross border access to legally acquired online content (with the famous case of Andrus Ansip not being able to watch an Estonian football match online while in Brussels). But to us geo-blocking is a common name for the more general practice of limiting access to copyright-protected content to specific national markets. And without a doubt, restricting access to any content due to extended copyright terms falls under such a characterization.

One other criticism we heard about our campaign is that The Diary of Anne Frank is easily (and cheaply) available in print. Surely this is true, but our campaign was never meant to be about money. We think that the diary should be freely available online—in the public domain—because everyone should be granted the right to access and enjoy this important cultural heritage work. The fact that some versions of the diary are still under copyright in some countries is the result of nothing more than the lack of harmonization in EU law. Preventing broad access and re-use rights to the work is directly opposed to the stated purpose of copyright — to advance culture and science.

The Diary of Anne Frank is an excellent example of why Europe needs a modern and progressive copyright framework. Currently, the rules for establishing copyright terms are so complex that we need a small army of international IP lawyers just to determine whether a particular work is still protected by copyright or neighboring rights. In particular, the lack of effective harmonisation of the duration of copyright across the EU hampers the efforts of organisations and entrepreneurs, who simply want to offer innovative online products and services. Only an intervention at the European level can remedy this situation. As we have stated before, the term of copyright protection should be reduced and fully harmonized throughout the EU. If we want to fully unlock the potential of our rich cultural heritage to foster the Digital Single Market, we need clear rules that permit anyone to easily determine the rights status of a work.

The post What does Anne Frank tell us about copyright reform? appeared first on COMMUNIA Association.

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).

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You can find out more about the practice of geo-blocking and why it needs to end as soon as possible in this factsheet (pdf) and in BEUC’s factsheet on the issue. Needless to say we wholeheartedly agree with the analysis provided by BEUC. From the perspective of European internet users, ending these unfair business practices will be one of the key outcomes that the European legislator needs to achieve in order to deliver on the promise of a Digital Single Market.

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