The year 2015 promises to be a busy year for EU policymakers. The President of the new European Commission has made digital policy a priority. In EU-parlance, the aim is to create a fully integrated Digital Single Market which the Commission estimates could generate up to EUR 250 billion additional growth.
However, what sounds like a mere attempt to get rid of fragmentation among the 28 Member States of the EU, will in practice mean a series of legislative and non-legislative measures in various policy areas. While the details of the new Digital Single Market strategy are currently being drafted, our sector will surely have to prepare for discussions in the following areas:
Copyright reform is inevitable which we highly support, in principle. While the details of the reform are not clear yet, the Commission indicates that at the very least three subjects will be addressed as a matter of priority: the territoriality of copyright, an exception for text and data mining and greater harmonization of exceptions and limitations. Bringing the legal status of exceptions and limitations closer to that of exclusive rights would certainly make sense.
This is also an opportunity to make the EU copyright system future-proof by introducing a more flexible open norm to exceptions and limitations in order to better accommodate new uses as they come up with technological advancement. The EU will increasingly stand in competition with the legal regimes of other countries which have modernized their copyright laws in that respect.
E-commerce will get a lot of attention as well. From a legal perspective, there is rightly no appetite to reopen the e-commerce Directive which provides for robust intermediary liability provisions. What has served Europe’s digital sector very well should not be changed. Providing clarification on certain key concepts in light of national divergence could, however, be helpful.
On a more practical matter, political determination will be needed to tackle the problem of ‘platform bans’, i.e. some manufacturers’ distribution restrictions prohibiting sellers from using e-commerce platforms. If the Commission is serious about it’s aim to establish a functional, digital market it would make sense to tackle practices that hamstring an important online distribution channel.
While various other important files like the Data Protection Regulation, the Network and Information Security Directive, or the Telecoms Single Market package continue to be in the legislative pipeline, a lot of the current debate revolves around the concept of ‘platform neutrality’. While the concept is very unclear, the French and German governments are openly pushing for regulation of online platforms. While the rationale seems to come from a perceived inadequacy of applying competition rules in the digital economy, there is no indication of how that regulation could look like. Maybe that is because this political rhetoric lacks both, a clear definition of ‘platform’ as well as an unambiguous identification of the problem the envisaged ex ante regulation would be supposed to solve. In any case, it will be very important for the EU to stick to the promise of better governance and regulation which would necessarily leave politics to play a secondary role (at best).