Where next with the European Digital Single Market?

June 2015

All areas



This update is from George Chin: George has worked as a music photographer for the past 30 years and George has worked officially with the Rolling Stones, Guns n’ Roses, Whitney Houston, Aerosmith, Iron Maiden and Bon Jovi, among many others. He is now studying for an LLB (Hons) at the University of Law in London. George runs a boutique photo agency (www.iconicpix.com), largely based on his image archive and those of other music photographers.  He can be contacted by email at georgechin@iconicpix.com
On May 6th, the European Commission published its proposals for a Digital Single Market (DSM), identifying it as one of its ten political priorities, with the aim of making “the EU’s single market fit for the digital age – tearing down regulatory walls and moving from 28 national markets to a single one” with the bold claim that harmonisation across the Member States could contribute €415 billion per year to the EU economy and creating 3.8 million jobs in the process.
A Digital Single Market is one in which the free movement of goods, persons, services and capital is ensured and where the individuals and businesses can seamlessly access and exercise online activities under conditions of fair competition, and a high level of consumer and personal data protection, irrespective of their nationality or place of residence.
The proposals outline sixteen initiatives to be delivered by the end of 2016 and is built on three pillars:

  1. better access for consumers and businesses to digital goods and services across Europe;
  2. creating the right conditions and a level playing field for digital networks and innovative services to flourish;
  3. maximising the growth potential of the digital economy.

This follows a Draft Report by Julia Reda, the Pirate Party MEP, on the implementation of Directive 2001/29 (the ‘InfoSoc Directive’) on the harmonisation of certain aspects of copyright and related rights in the information society.  The report draws on the responses to the Public Consultation on the Review of the EU Copyright Rules, which focused on “ensuring that the EU copyright regulatory framework stays fit for purpose in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity”.


The Draft Report calls for the introduction of a single European Copyright title on the basis of Article 118 TFEU (Treaty on the Function of the European Union or ‘Lisbon Treaty’), that would apply directly and uniformly across the EU, with the aim of removing territorial obstacles which currently obstruct the harmonisation and completion of the Digital Single Market; emphasising the urgency for reform underlined by the high level of participation to the consultation, and that since 2001, new internet-based services such as streaming, have gained importance.  Significantly, it highlights that the remuneration of creators is increasingly dependent on their negotiating position towards providers of online services or other intermediaries, and stresses the need to develop a legal context aimed at improving the position of creators when negotiating away their rights.


The Draft Report also calls for, among other things, the need for harmonisation of copyright terms, removal of geo-blocking i.e. the restriction on viewing online content across borders, equal rights for on- and offline content, a future-proof Open Norm to allow for future use and to keep pace with future technology, specific and mandatory exceptions to remove text and data mining, laws for emerging creative expression, and the need for a copyright-free public space to improve legal certainty across Europe.
The European Commission’s proposals for a Digital Single Market picks up on some of the points raised by Reda in her Draft Report.  The starting point is a regulatory framework relying on Member States’ national laws focusing on key mandatory EU contractual rights for domestic and cross-border e-commerce  with the establishment (in 2016) of an EU-wide online dispute resolution platform and a fit for purpose regulatory environment to tackle illegal content on the Internet.
It doesn’t go as far as endorsing a single European copyright title, but acknowledges that copyright underpins creativity and the cultural industry in Europe and that digital content is one of the main drivers of growth in the digital economy.  The Commission’s proposals aim to reduce differences between national copyright regimes and allow for wider online access to works by users across the EU; including through further harmonisation measures, cross-border use of content for specific purposes e.g. research, education, text and data mining, etc through mandatory exceptions; introducing a duty of care on the activities of intermediaries in relation to copyright-protected content; and  modernising the enforcement of intellectual property rights i.e. focusing on commercial-scale infringements as well as its cross-border applicability.
The proposals aim to make cross-border commerce easier especially for small and medium businesses, by promoting affordable high quality cross-border delivery services, tackling geo-blocking, modernising copyright law to ensure the right balance between creators’ and consumers’ interests, and simplifying VAT rules.  It also calls for an ambitious overhaul of telecom rules to make them fit for purpose and the review of existing rules in the areas of new technology, new business models, on-demand services and new ways of interacting with smart devices.  Together with initiatives on the “free flow of data” and an European Cloud, investment in ICT infrastructures, research and innovation; the Commission’s proposals aim to create a media framework for the 21st Century to maximise the growth potential of the Digital Economy in a single market.
Julia Reda has since gone online to openly criticise the Commission’s proposals as follows:
1) On the issue of geo-blocking, she comments that the Commission has neglected to include public broadcasters in their plans which especially harms linguistic minorities, who frequently find themselves barred from accessing cultural content across borders.
2) The proposals fail to tackle effectively harmonisation across the 28 Member States where the existing fragmentation of 28 differently interpreted exceptions and limitations hinder cross-border cultural exchange.
3) A duty of care to force internet platforms to scan user-uploaded content for illegal information would be impractical and anti-competitive.
Under the Commission’s Roadmap, by the end of 2015, legislative proposals will be in place for a reform of the copyright regime, and for simple and effective cross-border contract rules for businesses and consumers.
The question remains, will the UK opt out of the Digital Single Market?
© George Chin 2015.


And “Away from the red carpet at the Cannes film festival the issue of copyright has come up for debate. The French Prime Minister Manuel Valls was among senior figures who say artists’ rights must be protected as Europe heads towards a digital single market.” More here:  http://www.euronews.com/2015/05/17/cannes-artists-discuss-copyright-in-europe-s-digital-single-market/

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