Does the EU want to get rid of geoblocking through a review of the SatCab Directive?

The power of the SatCab Directive:
from lively to ...

As also reported by The 1709 Blog, earlier this week the EU Commission launched (yet) a(nother) [for a slightly pessimistic view on the value of EU copyright public consultations see here] public consultation, this time regarding a possible review of Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (the Satellite and Cable Directive, also known as the SatCab Directive) [if you are about to fall asleep just by reading "SatCab", don't: it may be more interesting than it looks at first sight (hopefully)]

The objective that the Commission is pursuing in conducting this exercise is twofold: first, to gather input in order to assess whether current rules are (still) fit for purpose; secondly, to determine whether the provisions in this Directive should be extended to transmissions of TV and radio programmes by means other than satellite and retransmission by means other than cable. In other words: whether the Directive rules should be also made applicable to online providers of TV and radio programmes.

As explained here, the latter objective is seen as "contributing to the Digital Single Market Strategy" (DSMS) [on which see here and here].

But in what sense?

... struggling to stay awake in one second

The DSMS, geoblocking and a mystery

IPKat readers will remember that, as far as copyright is concerned, the DSMS only proposes to tackle a handful of issues: (1) content portability; (2) ensuring cross-border access to legally purchased online service while respecting the value of rights in the audiovisual sector [as pointed out in numerous responses to the 2014 Public Consultation on the Review of EU Copyright Rules, what happens at the moment is that it is problematic to access online services in another EU country. Access restrictions depend on the geographic location of users' IP address, and are caused by relevant licensing terms]; (3) introducing an exception for commercial/non-commercial text and data mining; (4) discussing the role and responsibilities of internet service providers, alongside better online enforcement.

Besides the seemingly unambitious policy agenda in the area of copyright, the DSMS does not really say HOW the Commission intends to undertake any of the possible reforms to the relevant legislative framework.

With particular regard to issue #2, ie geoblocking, possible legal instruments to tackle it have been discussed for a while.

How could geoblocking be tackled?

In the internal draft White Paper that the IPKat exclusively leaked last year, the previous Commission discussed a number of alternatives to ensure cross-border access to content, including defining further "the act of 'making available' on the internet. One option [in this respect] would be to redefine it by localising the act in one single Member State ('country of origin'), for example where the centre of activities of the uploader is, or where the upload takes place. A licence from the relevant right holders for that country would suffice for service provision to take place legally in all Member States."

Could it now be that the current Commission intends to tackle geoblocking via a review of the SatCab Directive?

Indeed.

But this time it may be about becoming able
to watch all your favourite
TV programmes online everywhere in the EU
without having to use your VPN anymore!

"Country of origin" rule to be extended to online transmissions?

For satellite broadcasting, Article 1(2) of the Directive establishes that the relevant copyright-restricted act takes place "solely in the Member State where, under the control and responsibility of the broadcasting organization, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth (often referred to as “the country of origin” principle)." 

As stated in the Consultation form, this means that rights only need to be cleared for the "country of origin" of the broadcast and not also for the country/ies of reception, ie the countries where the signals are received [surprisingly enough, there are no decisions of the Court of Justice of the European Union on the interpretation of Article 1(2)]. 

The fact that the act of communication/making available only occurs in one Member State is - as explained and emphasised by Jan Rosén in his chapter in EU Copyright Law, "the main rule of the Directive! ... In practice, this is a choice-of-law rule, but it is still a provision of substantive law, not a conflicts rule."

As regards the price of the licence, Recital 17 in the preamble to Directive states that account should be taken of all aspects of the broadcast, such as the actual audience, the potential audience and the language version.

By proposing the extension of the country of origin principle to online transmissions and retransmissions, could this mean that rightholders would become unable to prevent online access to their copyright works across the entire territory of the EU, once rights have been cleared in the first Member State?

This may look indeed like one of the main outcomes of this Consultation, and such as to make it look slightly less dry (and technical) than the phrase "SatCab Directive" may suggest at first sight.

In any case interested individuals and organisations have time until 16 November 2015 to submit their responses.