On 9 December 2015 the Commission submitted a package of proposals and announcements on the Digital Single Market (DSM). This package included three legislative proposals, two proposed directives on online contracts and a third regulation on portability of digital content, as well as a communication on the modernisation of copyright. The basic aim in these proposals is to simplify and promote access to digital content and online sales across the EU.
The core question that the Commission wants to address is how to incentivise companies and customers based in the EU to operate more frequently and freely across the national borders. For the traders the essential barriers relate to the costs of trading across borders, and the availability of consumer remedies if something goes wrong. The proposals on online contracts accordingly include the harmonisation of some key mandatory EU contractual rights for consumers, as well as remedies concerning online shopping for goods and digital content.
However, the Commission is also concerned about companies dividing the EU market with the use of geoblocking. The Commission took a first stab at this topic with the proposal on portability of digital content. This proposed regulation aims to allow EU residents to travel with the digital content they have purchased or subscribed to at home, ensuring that users will have access to their games, films and music as if they were at home when travelling across the EU.
The proposal on portability does not directly attack geoblocking in a wider sense, that is, when an EU buyer resident in one Member State wants to purchase online goods or digital content from another Member State. The Commission consultation on geoblocking in this wider sense closed on 28 December, and further proposals are likely to follow in the spring.
The final big announcement is the long awaited Commission communication on copyright, "Making EU copyright rules fit for the digital age". This sets out the Commission's vision for the modernisation of EU copyright rules. The reform includes four complementary pillars. Accordingly, the Commission's main aim is to widen access to content across the EU, allowing for better circulation of content across the Member States. This can include exceptions that allow the use of copyrighted materials without prior permission for research, teaching, innovation, the right to panorama and the EU implementation of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.
The reform should also ensure a fairer market place, where the use of works is properly authorised and the creators and industries remunerated. Finally, the reform should provide better tools to fight piracy. At this stage the Commission is not aiming to create a fully harmonised system, however, it does acknowledge that, should reforms prove inadequate, it will consider wider instruments, such as single copyright title and single copyright code.
The UK Law Societies are following these proposals and communications closely. The Law Society of England and Wales has already submitted responses to the online contract law and geoblocking consultations, combining views from consumer, intellectual property and competition law angles. We are also in the process of analysing the texts and will provide timely updates on our thoughts as well as further actions. There will be more to follow on this subject!