Belgium Law Student Asks for Opinion re: EU Cross-Border-Copyright Law

A couple of weeks ago I had the pleasure of receiving an interview-questionnaire concerning cross-border copyright issues in the European Union from a law student in Belgium working on her final thesis.

Fortunately, the law student (Stefania Salmena)
explained, I did not need to be an attorney or have specific knowledge of EU copyright law to respond to the questionnaire, but as a IP protection and investigations blog writer, she would like my opinion.

Her interview questionnaire is presented first, followed by my reply.

*Stefania Salmena is an advanced law student at the Free University of Brussels (Université libre de Bruxelles.)

THESIS QUESTION

To what extent is the principle of “territoriality” in copyright matters reconciled with the objective of the single European market?

EU LAWS OF FOCUS

This questionnaire focuses on two (2) European regulations:

1. Regulation (EU) 2017/1128 of 14 June 2017 on cross-border portability online content services in the internal market.
2. Regulation (EU) 2018/302 of 28 February 2018 aimed at counteracting unjustified geographical and other forms of discrimination based on nationality, the place of residence or place of establishment of customers in the internal market.

ADDITIONAL CONTEXT

Concerning the regulation on cross-border portability of telecommunications services/online content in the internal market–in the name of the principle of “free movement” of persons and services–which is, among others, one of the essential foundations and objectives of the European Union, the Regulation (EU) 2017/1128, of 14 June 2017.

It organizes and guarantees, in the same way as a whole Member States, the “cross-border portability of online content services”.

It means that regular users, having signed a contract with a service provider who has acquired the rights of exploitation of works and services protected by a intellectual property rights, must be able to access the available content, both in the “Member State” of their habitual residence or in another country of the Union in which they are temporarily present.

However, this can only be done with respect to competitors, even if restrictions would be introduced.

ILLUSTRATION

In concrete terms, if a Belgian consumer subscribes to an online movie and series distribution service such as Netflix, he will be able to access the films and series available in Belgium when he going on holiday in Croatia, or, on a business trip to Denmark, without any restrictions and no charge.

But, this can only be done temporarily. The insertion of this criterion “temporal” allows [Netflix] to preserve the principle of territoriality in copyright.

However, that regulation does not specify what it refers to as “temporary displacement”.

SO…

Does it cover 1 month, 6 months, 1 year?

Can we in this case say that the principle of “territoriality” in copyright is preserved?

In addition, the said Regulation sets up a series or means of verification to ensure that no abuse can be committed by the users during their temporary displacements.

For example, the online content service provider will have to perform the State of residence verification of the subscriber and the IP address used etc. …

ABUSE CONSIDERATIONS

In case of abuse, the subscription of the user will be suspended.

However, these means of verification are not effective such as Geo-Blocking. For example, it is easy to change your IP address.

Geo-Blocking refers to the market practices used by companies in which they refuse access to their website to certain consumers.

The site [through geo-blocking] deviates access to a “local” site on which prices, offers, and content are different than those of the initial site. Or, still apply differences in treatment between consumers on the basis of their nationality, place of residence or establishment.

In other words, customers are thus limited or denied access to a foreign site on the basis only of their place of residence or method of payment.

SEPARATE ISSUE

The said by-law does not apply to works protected by copyright as pertains to music, video-on-demand, e-books, online games and audiovisual services.

However, in the regulation, there is a revision clause that allows European legislators to review the law in two years – with the possibility of extending it to include audiovisual content protected by copyright.

It is therefore possible that the regulation will incorporate those works protected by copyright too.

MY RESPONSE

The conflicting issues raised in your questionnaire seem to be the organic progression of dilemmas that need to be resolved as we continue to wrestle with the cross-border exchange of content on the Internet.

On one hand, there should not be any limitation to content access regardless of where a subscriber is geographically located at any given time, but on the other hand–when it comes to “copyrighted” content – (not simply “fair use” content) the copyright holder (content provider) is entitled to fair and agreed upon compensation, in my opinion.

And this I sense is the fundamental distinction that must be taken into account in trying to reconcile this issue.

“Fair use” content (as I understand it) is made available by the content provider without an expectation of compensation, where, “copyrighted” content providers have not given up their right to compensation, and/or their copyright has not expired.

Therefore, it seems reasonable that procedures need to be put in place to ensure that the online-content service-providers be entitled to adequate compensation for access to its content based on the “geographic market” in which the content is being accessed at any given time.

As an IP protection and investigations consultant it would be my role to support the content provider’s determination to ensure that the agreed upon limitations of the use to its content (and agreed upon compensation) is protected by using various technological tools such as (i.e., geo-locating and blocking technology), as well as additional investigative steps to verify the true identity of infringers.

COULD THE FOLLOWING BUSINESS MODEL HELP?

At the risk of making a business model suggestion that is way out of my league, would it make sense for online content providers to consider the model used by “Mobile Phone” services.

A mobile cell phone customer can subscribe to a service provider in the geographic area in which they reside, for example, but are also provided access (at a special rate) to a different plan when traveling to another geographic area for a specified period of time. And, of course, if the customer fails to arrange for a different plan when traveling, they will find themselves subject to extremely high fees.

Couldn’t this approach be applied to online-content customers traveling within the EU?

Although I don’t know if a mobile phone user is given a warning when they dial a number outside of their plan’s geographic area, in the case of copyrighted online-content providers, one suggestion would be to deliver a “Cease and Desist” notice to the customer before the customer is charged. This, I think, would be in keeping with the spirit of the Digital Millennium Copyright Act (DMCA.)

And, of course, if the customer continues to use the content provider’s service after such a warning, then they will be subject to legal action.

YOUR OPINIONS AND COMMENTS ARE WELCOMED

We’d welcome any comments to the issues raised by the law student in this post, or to my reply.

*In the meantime, our law student (Stefania Salmena) has offered to share with us the responses of the others she presented the questionnaire to when she their replies.

I will post those responses in a follow-up post.

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