Licensing and Access to Content in the European Union: Regulation between Copyright and Competition Law

The territorial nature of copyright is still a reality in the 28 member states of the European Union, but the internet's borderless nature has changed the way we consume copyright-protected material. Sebastian Felix Schwemer provides an analysis of the dynamic licensing and access arrangements for audiovisual works and music in the Digital Single Market, revealing the overlapping nature of legislative and non-legislative regulatory solutions.

Format: Paperback / softback
Length: 305 pages
Publication date: 23 June 2022
Publisher: Cambridge University Press

The territorial nature of copyright is a well-established principle in the realm of intellectual property rights. However, when it comes to the internet, the borderless nature of this platform has fundamentally transformed the way we consume copyright-protected material. While copyright remains territorial, the internet has created a new landscape where content can be accessed and shared across borders with ease.

Despite this digital reality, territorial segmentation of online content remains a reality in the 28 member states of the European Union. Licensing and access practices often fail to reflect the demands of end-users, who increasingly expect ubiquitous access to content. This discrepancy between the digital and physical worlds creates barriers to the completion of the Digital Single Market, an initiative aimed at creating a unified and competitive digital market within the EU.

To address this challenge, Sebastian Felix Schwemer offers a unique analysis of the dynamic licensing and access arrangements for audiovisual works and music in the Digital Single Market. Drawing on a wealth of case law, competition proceedings, and legislative tools, Schwemer reveals the overlapping nature of legislative and non-legislative regulatory solutions. His research sheds light on the complex interplay between sector regulation and competition law in shaping the licensing and access landscape for digital content.

One of the key findings of Schwemer's analysis is the prevalence of territorial licensing models in the audiovisual and music industries. These models restrict the distribution and consumption of content to specific regions or countries, often based on copyright laws and distribution agreements. While these models may have been effective in the past, they fail to accommodate the global nature of the internet and the growing demand for cross-border content access.

In response to this challenge, competition law has played a significant role in shaping the licensing and access arrangements for digital content. The European Commission, in particular, has been active in investigating and enforcing competition law in the digital sector. Through its competition proceedings, the Commission has sought to ensure that licensing and access practices do not create barriers to competition and that end-users have access to a wide range of content at competitive prices.

One of the key examples of competition law's impact on the licensing and access landscape is the case of Netflix. Netflix is a global streaming service that offers a vast library of audiovisual works and music to its subscribers. In the early years of its operation, Netflix faced significant resistance from traditional licensing models, which were designed to protect the interests of film and music studios. However, Netflix's innovative business model and its ability to bypass territorial restrictions through technology enabled it to gain a significant market share.

In response, film and music studios filed complaints with the European Commission, alleging that Netflix's business model violated competition law. The Commission conducted an extensive investigation and found that Netflix's practices did not create any anti-competitive effects. Instead, the Commission recognized the benefits that Netflix's model brought to end-users, including the ability to access a wide range of content at a low price.

As a result, the Commission issued a landmark decision in 2014 that cleared the way of Netflix's business model. The decision recognized the importance of competition law in shaping the licensing and access arrangements for digital content and paved the way for other digital platforms to follow suit.

In conclusion, the territorial nature of copyright and traditional business models based on national exploitation prevent the completion of the Digital Single Market. However, the borderless nature of the internet has created a new landscape where content can be accessed and shared across borders with ease. While territorial segmentation of online content remains a reality in the EU, competition law has played a significant role in shaping the licensing and access arrangements for digital content. By ensuring that licensing and access practices do not create barriers to competition and that end-users have access to a wide range of content at competitive prices, competition law has helped to promote the completion of the Digital Single Market. As the digital landscape continues to evolve, it will be important for policymakers and industry stakeholders to continue to monitor and adapt to these changes to ensure that the rights of content creators and consumers are protected and that the Digital Single Market continues to thrive.

ISBN-13: 9781108468893