Last Friday premiered the third season of the series House of Cards. For the first time since the series began, I can legally view it at the same time as in the US, where the series comes from and also at the same time as in France, the UK, Ireland and other countries where Netflix is available. However if, for example, I would decide to return home to Slovenia, I couldn’t access to the service, even though I paid for it. To exaggerate, it is as if I would buy a book in Belgium and it would be confiscated at my arrival at the airport in Ljubljana, just because this book is not sold in Slovenia. The only difference is that the second thing is forbidden, while the first is still allowed. But why?
FREE MOVEMENT OF SERVICES – A FUNDAMENTAL FREEDOM WITHIN THE EU, BUT…
The European Union is founded on the freedom of movement. Among all of the four freedoms – of people, goods, capital and services – the free movement of services is the least developed and with full of obstacles. In order to facilitate its development, in 2006 was adopted the Services Directive (Directive 2006/123/EC), whose aim is to establish clear rules to enable service providers to offer their services anywhere within the EU. However, the Directive itself does not cover certain areas – either because they are covered by other legislation or because the Member States and the Parliament decided so. Audiovisual services are among the services that on European level are not covered by any law.
The Services Directive itself does not create problems, as it just rules that Member States may decide the rules regarding the provision of these services. A growing problem in the field of television series, movies and music represents the European legislation on copyright, which is represented by the Directive on Copyright and Related Rights in the Information Society (Directive 2001/29/EC). As it is a directive it means that countries have to implement it into national law. This de facto establishes 28 different systems of copyright protection, which allows authors to choose to which system will they allow the use of their rights and to which not.
If we would continue to watch TV using just a roof or indoor antenna, there would be no problem as we would be able to watch only those programs which available within the range of the antenna. But (thankfully) technology is advanced that it allows us to watch programmess from practically anywhere. In the past, this was possible only via satellite, but today we can watch them over the internet. The cross-border use of audiovisual content is part of our everyday life.
However, the EU is not able to follow the technological improvements as fast as we would like. In the field of cross-border provision of TV (satellite) services the judgment of the Court of Justice in the “Premier League” (Joined Cases C-403/08 and C-429/08, press release with the interpretation of the case is available here) represents an important “win”. In this case, among other things, the association of the English First Division, which is the owner of the copyrights to transmit the matches, sued the owners of some pubs that used decoders bought in Greece, where the subscription is lower. The European Court of Justice in Luxembourg in this case ruled, that any prohibition of the purchase of decoders for viewing foreign pay TV programmes, represents a violation of EU law. At the same time, the Court also decided that contracts regarding exclusive rights represent also a violation of EU competition laws. On the other hand, the Court decided that the owner can limit who to allow the viewing of the programmes.
Despite the decision of the Court, there is no bigger changes. Providers continue to promote and sell their services only to the territories which they want. Providers unfortunately can’t be forced to sell their products somewhere they don’t want.
Totally different is over the internet, which allows us to check what happens on the other side of the world, but we can’t watch a series or a movie from a video on demand provider outside of the territory of our country. This is because of the so-called “geo-blocking” – the limiting of access to online content based on the geographic location of the user. In other words this means that although a service is available in one country, the provider can block it in another country (i.e. because doesn’t hold the copyright to show it).
Nowadays this is something incredible. The European Commission luckily became aware of it and in 2011 it adopted the Green Paper on the online distribution of audiovisual works in the Union. With it, the Commission launched a public consultation, to which it received 225 responses from the stakeholders. In the Green Paper, the European Commission summarizes the situation in this area. Unfortunately, after the consultation the EC didn’t prepare any conclusions or forecasts on the next steps (as it can be seen on the website that holds all the documents and opinions linked to the consultation).
However, we can say that the new Commission woke up as it put the Digital Single Market among its 10 priorities. One of the goals is also the change of copyright rules and their adaptation to new technologies. The Commission should prepare and present a strategy in May. In this light, the speech given by the Vice-President and Commissioner for the Digital Single Market Andrus Ansip, where he, as reported by European Voice, openly criticized the restriction of access to content on the basis of the user’s geographical location. According to him this is a clear limitation that needs to be eliminated.
(NOT)COMMON DIGITAL SINGLE MARKET
The Digital Single Market is slowly emerging. How it will look like will be clear in the next couple of years, after all the necessary legislation will be adopted and implemented. However, the process will not be easy as the different stakeholders will try to limit this market as much as possible.
I can’t really understand why would the services and content providers (those who made a movie or series) try to limit the access to their products. Specially when the people are willing to pay for them.
Due to the fact that we are within the EU, I really can’t understand why I would need to wait more to see my favourite series than someone who lives in Italy or France. But unfortunately it is like that. Bot prohibition and other forms of restrictions were never successful. And neither will they be in this case.