This paper provides an overall assessment of recent initiatives devised by the European Commission as part of the Digital Single Market Strategy (“DSMS”) and beyond. A connecting thread running through various policy documents and legislative proposals is the principle of copyright territoriality. Copyright’s territorial nature is identified as a great hindrance to the establishment and smooth functioning of an internal market for digital content and services, since it contributes to the cumbersomeness of rights clearance, territorial exclusivity and geo-blocking practices. Nonetheless, the initial policy options, geared towards a substantial erosion of copyright territoriality, have not been articulated in concrete legislative measures. The Commission has finally opted for a considerably less ambitious approach, which purports to mitigate some minor side effects of territoriality. The proposal seeking to mandate full accessibility of content across the EU was watered down to accommodate concerns expressed by the majority of stakeholders in the creative industry. The efforts to tackle geo-blocking are not addressed to providers of audio-visual content and copyright-protected works. The extension of the “country of origin” principle is limited to services ancillary to broadcasts. Likewise, cross-border “portability” of content does not offer a real solution to dismantling national barriers in the European digital environment. Hence, copyright will remain territorially grounded and a full integration of markets for creative content will not become a reality, at least in the near future. This paper discusses the potential lack of continuity between the overarching aims expressed in the DSMS and subsequent legislative steps, and criticises the use of terminology leading to legal uncertainty. The newly introduced neighbouring right for press publishers might represent an additional source of territorial fragmentation. The (general monitoring) obligation imposed on information society service providers requires strict scrutiny. This paper, however, values the adoption of regulations, entailing a deeper level of harmonisation, and the provision of mandatory exceptions and limitations
Digital Single Market: a long way to go
