In focusThe EU digital single market – a lot can happen

The European Commission has identified the completion of the EU digital single market as one of its ten political priorities. The Commission expects that a digital single market could contribute € 415 billion per year to the EU’s economy and create hundreds of thousands of new jobs. The work related to the digital single market includes a number of different areas. Among other things, the Commission is considering a modernisation of copyright law and limiting the possibility of unjustified geo-blocking of online services.

Considerations related to the creation of the EU digital single market range from parcel deliveries to processing of personal data generated in the digital environment. The Commission’s work with the digital single market is built on three pillars; (1) better access to digital goods and services, (2) creating an environment where digital networks and innovative services can flourish, and (3) maximising the growth potential of the digital economy. Each pillar includes a number of areas and actions which will be investigated in further detail before appropriate measures are proposed. Modernising copyright law and limiting the possibility of unjustified geo-blocking of online services available in other EU countries (pillar 1) are two areas under consideration.

On 9 December 2015 the Commission published a fact sheet on how to achieve a more modern, more European copyright framework. In the fact sheet the Commission presented its long term vision for copyright in the EU: a full harmonisation. This is something that will require substantial changes to the current rules and how they work today. The fact sheet also included a number of short-term actions, including an assessment of the legal framework for the enforcement of intellectual property rights and the ensuring of wider access to content across the EU. As a first step, the Commission also presented a proposal for a regulation on ensuring the cross-border portability of online content services in the internal market.

The proposal for a regulation on ensuring the cross-border portability of online content services includes rules prohibiting contractual provisions that limit consumers’ access and use of online content services that the consumer subscribes to, when temporarily visiting other EU member states. This will, in effect, mean that when visiting other EU member states, consumers will be able to access all content available on online services that they subscribe to in their country of residence. The regulation is proposed to apply regardless of whether the contract between the customer and service provider was entered into before or after the regulation enters into force. It should be noted that the regulation only applies to consumers. Consequently, limitations on cross-border portability of online content services would still be enforceable with respect to business proprietors.

The Commission also wants to prevent unjustified geo-blocking of online services available in other EU countries. However, it is not entirely clear what “unjustified” geo-blocking actually means. Between 24 September and 28 December 2015 the Commission arranged a public consultation on geo-blocking. In the introductory text to the public consultation the Commission stated that where “different treatment is due to objective and verifiable differences in the customers’ situations”, it may be considered justified with geo-blocking. According to the first brief results of the consultation, consumer respondents generally support legislation in order to prevent unjustified geo-blocking.  

A full harmonisation of EU copyright law will likely take some time. In the meantime, however, several changes can be expected. In addition to the proposal for a regulation concerning portability of online content services, these will likely include further rules aimed at combatting piracy – implying that more pressure may be put on intermediaries and blocking measures may be instituted.

The Commission’s aim to limit the possibility of unjustified geo-blocking will likely give rise to increased competition and downward pressure on prices. A question that will probably be discussed, and that should be closely monitored, is how the term “unjustified” is defined. In a statement submitted to the Ministry for Foreign Affairs, the Board of Swedish Industry and Commerce for Better Regulation has stated that it is important to proceed with care regarding rules prohibiting geo-blocking and to carefully define the term “unjustified”.

Even if it is not yet clear what measures will finally be implemented as a consequence of the Commission’s work with the digital single market it is apparent that these will affect the everyday life of both consumers and businesses. This is evident both from the above proposals presented by the Commission and the European Parliament’s adoption on 27 October 2015 of the agreement to end roaming charges in the EU by June 2017.