The Digital Single Market Strategy was published on 6 May 2015 together with a voluminous document of evidence and analysis. The strategy aims at realizing the opportunities offered by digital technologies, which know no borders, as President’s Jean-Claude Juncker put it in the Political Guidelines.
The strategy is already raising concerns and praise but all in all has been welcomed by the industry.
The communication lays down three pillars:
- Better access for consumers and businesses to online goods and services across Europe
- Creating the right conditions for digital networks and services to flourish
- Maximising the growth potential of our European Digital Economy
Each pillar is populated with a set of actions most of which aim to be delivered by the end of next year, as set out in the roadmap.
The prospected actions in relation to implementation of free movement ideals revolve around a series of legislative proposals over sale and purchase of (digital) goods, enhanced cooperation between members states as to consumer protection, a dedicated package for copyright and content exchange (including geo-blocking issues, E-commerce and Services Directives review) and generally speaking a ‘free flow of data’.
Businesses, particularly start-ups and SMEs, cannot currently take full advantage of the EU 28 countries’ market because of the many different rules applied in each member state as to sale and purchase of goods and services. Such issue has been only partially addressed through a harmonized framework (the Consumers Directive) in relation to certain consumer rights, such as cancellation. The consumers framework review would come at an interesting time considering that in UK the new Consumer Rights Act 2015 is set to come into force on 1 October 2015.
The Commission intends to tackle the abolition of fictitious borders through a common set of rules:
(i) covering harmonised EU rules for online purchases of digital content, and
(ii) allowing traders to rely on their national laws based on a focused set of key mandatory EU contractual rights for domestic and cross-border online sales of tangible goods.
In addition, the Commission is proposing a review of the Regulation on Consumer Protection Cooperation in order to develop more efficient cooperation mechanisms by which consumers can rest assured that their rights are not only granted but also easily enforced throughout Europe.
COPYRIGHT & GEO-BLOCKING
The copyright package will aim at reducing the differences between national copyright regimes and allow for wider online access to works by users across the EU (i.e. access content from their home country while they are in another country), for which harmonisation measures are partly already in place. The proposals (which are meant to come forward by the end of 2015) will include:
(i) portability of legally acquired content, (ii) ensuring cross-border access to legally purchased online services while respecting the value of rights in the audiovisual sector, (iii) greater legal certainty for the cross-border use of content for specific purposes (e.g. research, education, text and data mining, etc.) through harmonised exceptions,(iv) clarifying the rules on the activities of intermediaries in relation to copyright-protected content and, in 2016, (v) modernising enforcement of intellectual property rights, focusing on commercial-scale infringements (the ‘follow the money’ approach) as well as its cross-border applicability.
The discourse on the abolition of cross-borders barriers to unleash the single market potential, however, seems to be gripped by economic (rights) concerns, particularly as to territoriality of the licensed rights; the intermediaries’ role in policing infringement; and enforceability matters.
The Commission has long ago started the review process of copyright laws to bring it up to speed with the digital era and has already undertaken in 2013 a Public Consultation on the review of the EU copyright rules.
The Commission new vision for the telecoms sector is composed by measures that tend to abolish territoriality burdens and build trust and a level playing field, although that would come hand in hand with the Telecoms Single Market package.
By 2016 the Commission is committing to not only increase harmonization over the spectrum policy and management but also even the (in)consistency between the rules applied throughout EU to avoid divergence and unequal treatment in the ‘single’ market, expedite the high speed broadband reach and simplify the institutional framework.
However, the big issue that the Commission is called to address in this DSM Strategy would be the assessment (to be launched before the end of 2015) of the platform role
including in the sharing economy, and of online intermediaries, which will cover issues such as (i) transparency e.g. in search results (involving paid for links and/or advertisement), (ii) platforms’ usage of the information they collect, (iii) relations between platforms and suppliers, (iv) constraints on the ability of individuals and businesses to move from one platform to another and will analyse, (v) how best to tackle illegal content on the Internet.
According to the Commission and subject to caveats, in fact,
some platforms can control access to online markets and can exercise significant influence over how various players in the market are remunerated. This has led to a number of concerns over the growing market power of some platforms.
Such challenge is very much of interest in relation to the approach that the EU will apply to OTT and platform providers at large.
As of today OTT are not subject to the same ‘regulatory’ burden to which traditional telecommunications providers are. However, some of the services offered by such providers are more and more considered as a substitute of either the traditional telecoms services or the broadcast services. As a result of that the Commission is re-thinking also the Audiovisual Media Services Directive reach particularly as to VOD.
To complement the telecoms package improvements, the Commission will also concentrate its efforts on cybersecurity (through the creation of a PPP by 2016) and review the ePrivacy Directive, once the new EU rules on data protection are adopted.
Therefore the Commission will propose a European ‘Free flow of data’ initiative that will take into account not only the data protection issues, such as location, storage and processing purposes but also the Big Data revolution.
It will address the emerging issues of ownership, interoperability, usability and access to data in situations such as business-to-business, business to consumer, machine generated and machine-to-machine data. It will encourage access to public data to help drive innovation. The Commission will launch a European Cloud initiative including cloud services certification, contracts, switching of cloud services providers and a research open science cloud.
On top of that, the Commission will launch an integrated standardisation plan to identify and define key priorities for standardisation and interoperability to: uphold emerging but critical services in the areas of health (telemedicine, m-health), transport (travel planning, e-freight), environment, energy and Industry4.0; maximise the return on technology advancement through digital skills training objectives and modernize the relationships with Government in terms of new e-Government Action Plan 2016-2020.
The overarching principle of the DSM Strategy would be to boost the digital (and Internet) economy and innovation to maintain the EU position as a world leader and create a truly Connected Continent.