European Commission copyright consultation/Access to online services

Table of contents

European Commission copyright consultation Why is it not possible to access many online content services from anywhere in Europe?

Digital transmissions

The European Commission is considering modernizing European copyright laws. To get feedback and input on this modernization, the Commission has published a series of questions, and is looking to interested stakeholders (like our community) to answer them. This is a vital opportunity to participate in a dialogue that could have a major impact on copyright laws and the future of the free knowledge movement. More background is available from the European Commission. We would like to prepare a draft response here, as a collaborative experiment. If we wish to respond, it will need to be finalized before the end of January 2014 (see the proposed timeline). Welcome to the discussion! Please help by answering the questions below. Return to the table of contents.

Why is it not possible to access many online content services from anywhere in Europe?

The territorial scope of the rights involved in digital transmissions and the segmentation of the market through licensing agreements

Holders of copyright and related rights – e.g. writers, singers, musicians - do not enjoy a single protection in the EU. Instead, they are protected on the basis of a bundle of national rights in each Member State. Those rights have been largely harmonised by the existing EU Directives. However, differences remain and the geographical scope of the rights is limited to the territory of the Member State granting them. Copyright is thus territorial in the sense that rights are acquired and enforced on a country-by-country basis under national law.

The dissemination of copyright-protected content on the Internet – e.g. by a music streaming service, or by an online e-book seller – therefore requires, in principle, an authorisation for each national territory in which the content is communicated to the public. Rightholders are, of course, in a position to grant a multi-territorial or pan-European licence, such that content services can be provided in several Member States and across borders. A number of steps have been taken at EU level to facilitate multi-territorial licences: the proposal for a Directive on Collective Rights Management should significantly facilitate the delivery of multi-territorial licences in musical works for online services; the structured stakeholder dialogue “Licences for Europe” and market-led developments such as the on-going work in the Linked Content Coalition.

"Licences for Europe" addressed in particular the specific issue of cross-border portability, i.e. the ability of consumers having subscribed to online services in their Member State to keep accessing them when travelling temporarily to other Member States. As a result, representatives of the audio-visual sector issued a joint statement affirming their commitment to continue working towards the further development of cross-border portability.

Despite progress, there are continued problems with the cross-border provision of, and access to, services. These problems are most obvious to consumers wanting to access services that are made available in Member States other than the one in which they live. Not all online services are available in all Member States and consumers face problems when trying to access such services across borders. In some instances, even if the “same” service is available in all Member States, consumers cannot access the service across borders (they can only access their “national” service, and if they try to access the "same" service in another Member State they are redirected to the one designated for their country of residence).

This situation may in part stem from the territoriality of rights and difficulties associated with the clearing of rights in different territories. Contractual clauses in licensing agreements between right holders and distributors and/or between distributors and end users may also be at the origin of some of the problems (denial of access, redirection).

The main issue at stake here is, therefore, whether further measures (legislative or non-legislative, including market-led solutions) need to be taken at EU level in the medium term to increase the cross-border availability of content services in the Single Market, while ensuring an adequate level of protection for right holders.

Question 1

1)[In particular if you are an end user/consumer:] Have you faced problems when trying to access online services in an EU Member State other than the one in which you live?

Yes

• Maurits Lamers
• Tom Morris
• Deryck C.
• Dominikmatus (talk)

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes, Please provide examples indicating the Member State, the sector and the type of content concerned (e.g. premium content such as certain films and TV series, audio-visual content in general, music, e-books, magazines, journals and newspapers, games, applications and other software)

• Maurits Lamers: I am a Dutch citizen who wanted to access a Dutch television show through the website of BVN (http://www.bvn.nl/) which is a broadcasting organisation specifically addressing Dutch citizens in foreign countries. However, because I was not in the Netherlands at that time, but in a different European country, I was blocked from viewing that program through the internet.
• The BBC iPlayer service is not available outside of the United Kingdom even to UK residents who have paid for a television license. —Tom Morris (talk) 13:30, 9 January 2014 (UTC)
• Similarly, as a Belgian citizen abroad, I was not able to load about half of the videos on deredactie.be, the news website of the Flemish governmental owned broadcasting organisation. MADe (talk) 19:04, 21 January 2014 (UTC)

Proposed Foundation answer

This question does not appear to directly impact Wikimedia-related activities, as best as I can tell from these examples. We could provide an answer that says something like "This does not affect the Foundation. However, individual Wikimedians are affected. Examples from our users include:" and then the examples above. Do people have strong suggestions on this point? —LVilla (WMF) (talk) 08:02, 28 January 2014 (UTC)

Question 2

2) [In particular if you are a service provider:] Have you faced problems when seeking to provide online services across borders in the EU?

Yes

• Your name here

No

• Your name here

No opinion

• Your name here

Comments

Instructions: Please explain whether such problems, in your experience, are related to copyright or to other issues (e.g. business decisions relating to the cost of providing services across borders, compliance with other laws such as consumer protection)? Please provide examples indicating the Member State, the sector and the type of content concerned (e.g. premium content such as certain films and TV series, audio-visual content in general, music, e-books, magazines, journals and newspapers, games, applications and other software).

• ...

Proposed Foundation answer

Based on the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:07, 28 January 2014 (UTC)

Yes.

We have faced problems providing online services across borders in the EU as a result of EU copyright directives. To give an example, the European Directives covering copyright delegate most limitations to the Member States - one such limitation being "Freedom of Panorama" in the Copyright in the Information Society Directive (2001/29/EC). Because this is implemented inconsistently across the Member States, pictures of buildings from half of the Member States are difficult to use on Wikipedia.

Question 3

3) [In particular if you are a right holder or a collective management organisation:] How often are you asked to grant multi-territorial licences? Please indicate, if possible, the number of requests per year and provide examples indicating the Member State, the sector and the type of content concerned.

Comments

• ...

Proposed Foundation answer

Based on the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:09, 28 January 2014 (UTC)

All Wikimedia project content (tens of millions of pieces) is available under the multi-territorial Creative Commons licenses. This reflects the fundamental principle of the World Wide Web that everything should be available not just across the EU but worldwide. More importantly, it also reflects the Wikimedia community's fundamental commitment to creating knowledge available for the entire world to use. Doing this in the EU requires not only verification of content licensing, but also the drafting and use of international licenses. This creates both substantial costs and (in some cases) legal uncertainties. This ultimately results in less content being available.

Question 4

4) If you have identified problems in the answers to any of the questions above – what would be the best way to tackle them?

Comments

• ...

Proposed Foundation answer

Based on the Creativity4Copyright suggestions as well as the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:12, 28 January 2014 (UTC)

The problems laid out above share a critical thread: that different rules in different Member States create costs and uncertainties that make it difficult for Wikimedians to create content. The solution to these problems is to remove artificial digital borders in the single market, as originally laid out in the Satellite and Cable Directive (93/83/EEC), and affirmed by the ECJ in 2011 in *Murphy vs. Media Protection Services Limited*. Applying this principle to the internet would help Wikimedians create new educational content and reuse existing content in new, innovative ways.

Question 5

5) [In particular if you are a right holder or a collective management organisation:] Are there reasons why, even in cases where you hold all the necessary rights for all the territories in question, you would still find it necessary or justified to impose territorial restrictions on a service provider (in order, for instance, to ensure that access to certain content is not possible in certain European countries)?

Yes

• Your name here

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes, please explain by giving examples

• ...

Proposed Foundation answer

Based on the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:14, 28 January 2014 (UTC)

No.

Question 6

6) [In particular if you are e.g. a broadcaster or a service provider:] Are there reasons why, even in cases where you have acquired all the necessary rights for all the territories in question, you would still find it necessary or justified to impose territorial restrictions on the service recipient (in order for instance, to redirect the consumer to a different website than the one he is trying to access)?

Yes

• Your name here

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes, please explain by giving examples

• ...

Proposed Foundation answer

Based on the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:14, 28 January 2014 (UTC)

No.

Question 7

7) Do you think that further measures (legislative or non-legislative, including market-led solutions) are needed at EU level to increase the cross-border availability of content services in the Single Market, while ensuring an adequate level of protection for right holders?

Yes

• Your name here

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes (or no), please explain:

• ...

Proposed Foundation answer

I propose the following answer for the official Foundation response. It is not heavily based on the Based on the Free Knowledge Advocacy Group EU suggestions, which seem overly specific to me. —LVilla (WMF) (talk) 08:15, 28 January 2014 (UTC)

Yes.

Further measures are needed at the EU level. Neither individual rights holders nor the Member States have provided a solution to the fundamental problems described above, and in most of these cases, structural features of the market make it unlikely that any sub-EU entity could resolve the problems.

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