Somewhat out of sight of the public eye there is another fight about EU copyright rules going on. This time it is about cross border online access to audiovisual works, and the widespread practice of streaming platforms to block access to customers from other member states – aka geo-blocking. Over the past weeks, we have witnessed increasing mobilisation by rightholders from the audiovisual sector against an own-initiative report on the implementation of the 2018 Geo-blocking Regulation that had been drafted by the the European Parliament’s Committee on the Internal Market and Consumer Protection (IMCO) over the summer. The report, which had been adopted by the committee in late October with a broad, cross-party majority taking into account options by the Legal and Cultural Affairs committees, is now scheduled for a vote in the EP plenary session on the 13th December. The EP should stand strong and adopt the report and pave the way for a revision of the Geo-blocking Regulation during its next term.
Over the past few weeks, rightholder organisations united in the Creativity Works! Coalition have started a massive campaign attempting to neuter one of the core recommendations contained in the report: A request to the European Commission to undertake “a comprehensive revision of the Geo-blocking Regulation by 2025 the latest, with a particular view on an inclusion of audiovisual services in the scope of the Regulation.”
How is it possible that such a seemingly procedural request about the review of a piece of legislation is provoking such a strong reaction from rightholders? A campaign that is headlined by the following statement that features prominently on the campaign website:
Geo-blocking is one of the foundations for Europe’s creative and cultural sectors, providing Europeans with the means to create, produce, showcase, publish, distribute and finance diverse, high-quality and affordable content.
The idea that denying people access to culture is a “foundation for Europe’s creative and cultural sectors” is of course a rather disturbing one, but points right at the heart of the problem that the IMCO report is trying to address.1 As long as AV rightholders do not even see that denying people access to cultural productions — that they want to pay for! — is nothing but blatant discrimination based on geographical location, requiring a regulatory intervention.
After having gotten a free pass when the original geo-blocking resolution was adopted, the upcoming review must now include an effort to bring AV services within the scope of the regulation to end this unjustified and counterproductive practice.
What the AV sector is doing with this its current campaign is trying to prevent EU lawmakers from reviewing the regulation, while no-one outside of the creative industries is paying attention, because they know very well that their arguments against inclusion do not have much to stand on.
A bit of history
So how did we get here? The 2018 Geo-blocking Regulation was adopted to make an end to unjustified geographical restrictions in the sale of goods and services within the EU. It addressed the problem of so-called “geo-blocking” — the baseless discrimination of customers accessing such services from other member states — with the aim to facilitate access to cross-border offers within the EU’s internal market. The directive contains a number of exceptions to this principle, one of these excludes audio-visual services from its scope. This exception has been the result of intense lobbying by the AV sector, which had argued that the underlying business models allowing the sector to thrive rely on territorial copyright licensing and that in order to make such licensing work in the online environment, online services must be able to block access from unlicensed territories.
In 2020, the European Commission published its first evaluation report covering the first 18 months of implementation of the Regulation. Regarding a possible extension of the scope of the Regulation to audio-visual content, the report highlighted potential benefits for consumers, (the availability of a wider choice of content across borders) but also identified a potential impact that such an extension would have on the overall dynamics of the audio-visual sector. The report did not contain specific suggestions or a concrete timeline to revise the Regulation, instead it identified a need to further assess the situation.
As a follow up of the evaluation report, the Commission launched a stakeholders dialogue on cross-border availability and access to audiovisual content across the EU. COMMUNIA has been part of this stakeholder dialogue (as one of only three organisations representing consumers and the public interest) which had the objective to let stakeholders propose concrete, non legislative, measures to improve the online availability and cross-border access to audiovisual works across the EU. Most, if not all, of the organisations that now campaign against the adoption of the IMCO report also participated in this stakeholder dialogue. Throughout the stakeholder dialogue, these organisations mainly sought to undermine the process by questioning the legitimacy of the process and stating that geo-blocking is essential to their financing models. While the stakeholder dialogue resulted in a number of proposals (including one from us), none of the organisations representing rightholders submitted any proposals aimed at improving cross border access. Instead they asked for more funding and tried to deflect the discussion towards the non-issue of “findability” of legal content (something the current campaign attempts as well).
In other words, the very same organisations that successfully sabotaged the stakeholder dialogue aimed at finding non-legislative solutions for geo-blocking of audio visual content are now lobbying against having EU lawmakers take another look at the issue.
But what is really at stake?
If you have to believe the campaign website set up by the Creativity Works! Coalition, then ending Geo-blocking of AV content would harm “15 million creative sector jobs” and “jeopardise a €640 billion industry.” These numbers are, even by the vastly inflated Brussels lobbying standards, simply absurd as they imply that the entire European Creative and Cultural Industries would be affected by a possible inclusion of AV services in the scope of the Geo-blocking Regulation — something that is obviously not true.2
It is true that territorial licensing arrangements play an important part in the financing arrangements for audiovisual productions (something that we have acknowledged in our submission for the stakeholder dialogue). However this does not mean that in order to preserve the ability to licence it is necessary to geo-block access to AV works from unlicensed territories within the EU.
Most of the claims about economic and cultural damage made by the CW! campaign find their origin in the idea that the IMCO report would require the AV sector to abandon territorial licensing, which is something the IMCO report does not propose. On the contrary, the need to safeguard territorial licensing is mentioned repeatedly throughout the report.
The report also does not call for a shift towards an EU-wide licensing for audiovisual services. However the CW! Campaign repeatedly points to the costs of such EU-wide licenses as the basis for its predictions of further consolidation in the industry that would lead to less cultural diversity.
Another aspect of the report that is under attack by the CW! Coalition is the fact that the report makes a link between increasing demands for cross-border access to AV by consumers and the increased use of VPNs, which allows them to circumvent geo-blocking. Here. the industry would very much prefer the report not to describe existing consumer behaviour that does not align with the picture of reality that they would like to see.3
As a result, one of the core insights of the IMCO report, that as a consequence, the adaptation of existing business models to the changing environment is needed both for consumers and businesses is once again at the risk of being ignored. Rightholders are seeking to get this conclusion removed from the report because the stakeholders on the supply side of the AV sector have again decided that rather than adapting to and working with consumer expectations, they can rely on their considerable lobby power to preserve the status quo that they have gotten comfortable with.
The European Parliament should resist caving in to this ongoing campaign against the IMCO report, and support the report’s call for an evidence-based revision of the Geo-Blocking Regulation in the next mandate. Contrary to what the CW! Campaign wants us to believe, this would neither mean the end of territorial licensing, nor the demise of the European Cultural and Creative Industries and it would also certainly not lead to less cultural diversity. If done well, ending geo-blocking would provide all Europeans with more legal access to a more diverse offering of AV content and a thriving cultural sector that can finally stop claiming that denying people access to culture is in anyone’s interest.
Endnotes
- It seems that the creators if the campaign are at least marginally aware of this given that a position paper published by the campaign attempts — somewhat cringe worthy — to reframe “geo-blocking” as “geo-enabling”.
- The numbers used by the campaign come from a 2021 EY study that defines the Cultural and Creative Industries as the combination of the following sectors: Advertising, Architecture, Audiovisual, Books, Music, Newspapers and magazines, Performing arts, Radio, Videogames and Visual arts. A substantial proportion of these has nothing to do with audiovisual content and geo-blocking is relevant only in a very small sub section of these sectors.
- This is reminiscent of multiple exchanges during the stakeholder dialogue during which mentions of piracy as a rational response to being denied lawful access to a desired cultural good, were met with horrified responses from rightholders demanding that mentions of illegal acts should not be permissible in the context of the stakeholder dialogue.
