On 9 December 2015 the European Commission announced the first set of legislative proposals as part of its Digital Single Market (DSM) Strategy. The proposals include:
The Commission has released its proposals for portability of content in the Community. The draft Regulation on ensuring the cross-border portability of online content services ('the draft Regulation') sets out that providers of AV content services must enable cross-border portability for their users. This will be important for content services and rights holders across the community.
The proposals on portability are the first in the Commission's action plan to amend copyright law. As Commissioner Oettinger announced on 9 December 2015: "Portability is just the appetiser – the main course will come next year".
The proposal means that when, for example, a UK citizen, is temporarily in another Member State (e.g. on holiday in Italy), he/she can still access all of the services that he/she subscribes to in his/her home Member State.
The key legal take away here is that copyright law will remain a national right, but this development will effectively make copyright law applicable to the citizens of a Member State when using certain AV services, as opposed to the national borders of that Member State.
Key Aspects of Portability
We briefly summarise some of the key portability aspects of the draft Regulation here:
- Article 2 (Definitions) sets out that the regulation applies to AV services who are either:
- an AV service within the definition of the AVMS Directive; or
- "a service the main feature of which is the provision of access to and use of works, other protected subject matter or transmissions of broadcasting organisations, whether in a linear or an on demand manner".
- Article 3 sets the obligation to provide services to the consumer when he/she is temporarily not in his/her home state.
- Article 4 squares this by setting out that the communication of the service is deemed to occur in the home state.
- Article 5 sets out that services cannot contract out of these obligations, and Article 7 sets out that it applies to contracts already in place, not just future contracts.
This is still just a legislative proposal – it has to be debated and accepted in the Parliament and the Council. It could be 2017 before this becomes effective. The key legal take away here is that copyright law will remain a national right, but this development will effectively make copyright law applicable to the citizens of a Member State, as opposed to the national borders of that Member State.
The Commission has published two draft directives which set out new rules on selling digital content and goods to consumers ('the draft Directives') in the EU. The aim of the directives is to harmonise consumer law across the EU in relation to defective goods and digital content in order to encourage cross-border e-commerce. At the moment, there is a great deal of divergence between member states when it comes to a consumer's rights and remedies if they purchase defective goods or digital content.
The previous attempt by the Commission to encourage cross-border sales by the proposed regulation on a Common European Sales Law (CESL) which was opposed by several member states (including the UK) and was eventually abandoned. The new proposed directives are a much narrower version of CESL because they only focus on online sales to consumers.
The UK has recently implemented national legislation to deal with a consumer's rights if they are supplied with defective goods or digital content as set out in the Consumer Rights Act 2015. If the directives are approved then the Consumer Rights Act will need to be amended to implement the new directives.
Key suggestions in the draft Directives include:
- if goods are faulty the consumer will be able to ask for a remedy within the first 2 years from sale, without having to prove the defect existed at the time of delivery; and
- consumers will have remedies for defective digital content such as a right to repair or a refund (this right currently exists in the UK but not across the EU).
The next step will be the first reading of the draft directives in the European Parliament
What Is Coming Next Year?
The Commission aims to issue legislative proposals on copyright law, AVMS, platform regulation, telecoms and many other areas by April 2016.The Commission's roadmap can be found here. The proposals on portability are the first in the Commission's action plan to amend copyright law.
- increase accessibility to content in the Community – that will be a harder sell than portability, and the Commission admitted in the announcement of the draft portability regulation that it will be extremely difficult to balance the interests of rights holders and consumers;
- introduce further exceptions to copyright (eg for researchers, text and data mining and disability access);
- ensure fair remuneration of creators. Previously, it had been suggested that the Commission may try and crow-bar some sort of ancillary copyright law (for news aggregators) into this area, but the Commission confirmed in the Q&A that "there is no intention to "tax" hyperlinks";
- improve IP enforcement to better combat piracy (which will be aided by the consultation it's just opened).
DSM And The Three Pillars
The Commission's DSM Strategy was adopted on 6 May 2015, and the Commission has been busy commencing investigations and opening public consultations in order to progress the agenda. It is one of the Commission's major priorities.
The DSM Strategy is built on three pillars:
- Access: to allow better access for consumers and businesses to online goods and services across Europe;
- Environment: to create the right conditions and a level playing field for digital networks and services
- Economy and Society: to maximise the growth potential of the European digital economy.
In addition, the Commission has issued a number consultations on topics and issues that will be addressed by the DSM Strategy.
Contributors - Steve Holmes, John Groom, Jason Raeburn