EU Digital Single Market: Update

As 2016 comes to an end, so too does the Slovak Presidency of the European Council, an office that rotates among the EU Member States every six months. Of particular concern to our industry are two proposed EU Regulations at various stages of review in Brussels; the Portability Regulation and the Regulation concerning the ancillary online services operated by broadcasters.

Both proposed Regulations, along with other initiatives under the Commission’s “Digital Single Market”, threaten the ability of rights holders to license audiovisual content in Europe on a territorial exclusive basis.    

Earlier this month, representatives of the European Parliament, Council and the Commission commenced a “trilogue” negotiation with respect to the proposed Portability Regulation, which would allow EU consumers who have subscribed to or acquired online content in their Member State of residence to access the same content when they are temporarily present in another Member State. The general aim of the trilogue is to reach agreement on a package of amendments that will form the final text to be approved by each of the three institutions.

Reports from the recently concluded trilogue meetings indicate that the road is far from clear for either of the proposed Regulations. With respect to the Portability Regulation there remain significant issues to be resolved, including definitions for “Member State of residence” and “temporarily present in a Member State”, the mechanics of the subscriber verification requirement, and the duration of the transition period by which the proposed Regulation will become effective.  

Discussions surrounding the proposed Regulationconcerning broadcasters’ online ancillary services are at a much earlier stage, but present rights holders with yet another attack on their exclusive rights. Specifically, the proposal seeks to extend the “country of origin” principle of the Cable and Satellite Directive to online services operated by broadcasters. The result could mean that catch up TV and the like would be made available by EU broadcasters to any EU based consumer on the basis that it was authorized in the Member State of first broadcast. 

IFTA continues to work diligently to minimize the potential negative impact of these proposals on the independent film and television industry, as the Commission will recommence these discussions in late January 2017 under the incoming Maltese Presidency.

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