The Digital Single Market Strategy: too many (strategic?) omissions

As expected, following the leak of a full draft version [here], yesterday the EU Commission unveiled its Digital Single Market Strategy (DSMS). As EU Commission President, Jean-Claude Juncker, explained last year, this would include what "ambitious legislative steps" may be taken "towards a connected digital single market" so "to generate up to  EUR 250 billion of additional growth in Europe in the course of the mandate of the [present] Commission [= 5 years], thereby creating hundreds of thousands of new jobs, notably for younger job-seekers, and a vibrant knowledge-based society."

Following a bunch of statements [possibly copied and pasted from previous Commission documents, probably from the early 1990s] about how [in case you had not noticed yet] "[t]he Internet and digital technologies are transforming the lives we lead, the way we work – as individuals, in business, and in our communities as they become more integrated across all sectors", this document bullet-points the pillars on which the DSMS is to be bult, ie: 

(1) Better access for consumers and businesses to online goods and services across Europe: this requires the rapid removal of key differences between the online and offline worlds to break down barriers to cross-border online activity [from a copyright law and related business perspective, one would have expected this to include a discussion of whether - for instance - markets for second-hand digital works, eg ebook, audio- and video- files, videogames, etc, may and should be actually considered legitimate under EU law... Yet, regrettably in this Kat's opinion, the Strategy does not tackle the issue of digital exhaustion at all];

(2) Creating the right conditions for digital networks and services to flourish: this requires high-speed, secure and trustworthy infrastructures and content services, supported by the right regulatory conditions for innovation, investment, fair competition and a level playing field;

(3) Maximising the growth potential of our European digital economy: this requires investment in ICT infrastructures and technologies such as cloud computing and big data, and research and innovation to boost industrial competiveness as well as better public services, inclusiveness and skills.

Besides e-commerce and telecom rules, cross-border sales, interoperability and standardisation, proposed reforms include copyright and the role of internet service providers (ISPs).

Following the ambitious draft report by MEP Julia Reda on the implementation of the InfoSoc Directive [several amendments have been presented; following a vote in the Legal Committee of the European Parliament, there will be a final vote in plenary in early July] and earlier statements by individual EU Commissioners alike, the DSMS focus is (just) on 3 main issues: (1) (lack of) cross-border access to content and its portability; (2) text and data mining for non-commercial and commercial purposes alike; and (3) civil enforcement and the role of ISPs.

Unlike the leaked draft version of the DSMS, the actual DSMS is fairly vague as to how reform (if any) will be undertaken in these areas, the sole exception probably being a swift mention that the Cable and Satellite Directive may be reviewed to enlarge its scope to broadcasters' online transmissions. The only substantial information is the following:

An example of the vagueness of the DSMS wth regard to possible initiatives is civil enforcement:

The road to perdition
copyright reform?

"An effective and balanced civil enforcement system against commercial scale infringements of copyright is central to investment in innovation and job creation [this is a fairly standard, substance-free, statement]. In addition the rules applicable to activities of online intermediaries in relation to copyright protected works require clarification, given in particular the growing involvement of these intermediaries in content distribution [what does this mean? Is a revision of Ecommerce Directive safe harbours needed? If so, how should it be done to ensure that the enforcement system is "effective and balanced"? Not much concrete information is provided, if not that "the Commission will analyse the need for new measures to tackle illegal content on the Internet, with due regard to their impact on the fundamental right to freedom of expression and information, such as rigorous procedures for removing illegal content while avoiding the take down of legal content, and whether to require intermediaries to exercise greater responsibility and due diligence in the way they manage their networks and systems – a duty of care"]. Measures to safeguard fair remuneration of creators also need to be considered in order to encourage the future generation of content [what has this to do with enforcement? Isn't it rather a more contractual issue?]." 

All in all, the much-awaited DSMS does not give away much information about what actual measures will be proposed and in what form. Perhaps this is part of the Strategy itself, but only if one of the goals of the Commission was indeed not to create too many expectations (or fears) in relevant stakeholders ...