SAA - Society of Audiovisual Authors

The European Commission presented on 9 December 2015 a proposal for a Regulation on ensuring the cross-border portability of online content services in the internal market as the first instrument of its plan to develop cross-border access to content. SAA welcomed the fact that the Commission does not directly question the territoriality principle and recognises the ability of copyright and authors’ rights to adapt to any market structure and business model, whether territorial or pan-European. However, some measures could still inadvertently challenge the territoriality principle and need to be reconsidered - “While we can support portability of subscription-based online content services, poor drafting that would not limit the portability in time could allow cross-border access through the back door”. Territorial licensing of rights is key in the financing, production and distribution of European audiovisual works. Far from being technical, the Commission’s initiative on cross-border portability could therefore have unintended negative consequences on the economy of European creation if it does not take into account the foundations of such a system, which relies on strong sectorial regulations and on the acquisition of territorial exclusivities.

In addition, SAA expressed concern that cross-border access still seems to be mistaken for the silver bullet to enhance accessibility to and visibility of European works, while only active promotion which brings European works to European citizens’ direct environment makes a difference in a highly competitive market dominated by Hollywood productions.

It is therefore important that the proposal for a Regulation on cross-border portability of online services does not inadvertently question the territoriality principle by imposing pan-European licences by default. The main risk lies in a lack of precise definitions and concepts in the current proposed Regulation. These need to be better framed to provide all parties with adequate legal certainty and prevent potential abuses or circumvention of the rules.

Above all, building a digital single market has to go hand in hand with other objectives of general interest such as the protection and promotion of cultural and linguistic diversity, the support of European creators and the development of European operators.

In this paper, SAA addresses the main aspects of the proposal which need to be refined, starting with the choice of a Regulation as an instrument to intervene in the field of copyright.