Book review: Licensing and access to content in the European Union

This Kat is happy to provide a review of Licensing and Access to Content in the European Union, Regulation between Copyright and Competition Law by Sebastian Felix Schwemer, University of Copenhagen.

   

Copyright is territorial – but is the internet? No, answers Sebastian Felix Schwemer who says that the delineation of national exploitation of content is at odds with the technological possibilities of the internet, and even more so, the Digital Single Market strategy of the European Union.

His book addresses two main questions: first, what is the regulatory framework for licensing of – and access to – online music and audio-visual content in cross-boarder stations? Second, how do the different regulatory frameworks interact, what inconsistencies emerge and how could these be resolved?

This investigation, based on the research of Schwemer’s PhD at the University of Copenhagen, is presented in 6 substantive chapters. The first chapter provides an introduction, identifying the focus and scope of the study, as well as highlighting the need for cross-boarder licensing and access solutions in view of the EU policy. It also brings the reader up to speed on the Digital Single Market strategy of the EU, as well as the modes of governance in the EU.

Chapter 2: Market and economics context

Chapter 2 explores the relationship between cross-boarder access and multi-territorial licensing. It then describes the evolution of territorial delineation by author CMOs and the emergence of novel music licensing arrangements. It establishes the underlying economic rationales and market context and then examines the territorial practices and licensing arrangements of audio-visual works.

It argues that fragmentation of rights, rightsholders and repertoires across countries is at the core of high transaction costs. In the online music rights landscape, exclusivity has been a concern primarily as to territorial licensing exclusivity by the respective CMOs for a given territory. In the audio-visual landscape, territorial exclusivity appears to be prevalent in the market delineation for licensees.

3: Licensing and access from a competition law perspective

Chapter 2 looks at how territorial restrictions in access or licensing arrangements are dealt with from a competition law perspective. In particular, it provides a case study of territorial restrictions of music in the licensor-licensor relationship, which has been dominated by model contracts. It also looks at the licensor-licensee relationship regarding territorial restrictions in licensing contracts for audio-visual works. In particular, it analysis model contracts for RRAs in the Barcelona, Simulcasting, Santiago v CISAC proceedings and the licensor-licensee relationship in the Premier League v Murphy case and the pay-TV sector.

It argues that the horizontal relationship among licensors has until recently received more scrutiny from the European Commission than the vertical contracting licensing relationship between rights holders and licenses. It highlights that territorial delineation is a traditional and complex tension between the fields of copyright and competition law.

4: Multi-territorial licensing from a legislative perspective

Chapter 4 focuses on multi-territorial licensing in online music rights, from the EU legislative perspective, from soft-law to binding measures. It argues that the Recommendation of 2005/737/EC was well intended but failed on many levels. Further, that the CRM Directive 2014/25/EU demonstrates that the EU is not convinced of natural monopoly rationale and deems that competition is both possible and desirable in the market for rights management. 

5: Cross-border access from a legislative perspective

Chapter 5 turns to more recent developments in multi-territorial access, namely; geo-blocking and portability. It is noted that the EU Geo-blocking regulation 2018/302 is not aimed at audio-visual services and music services are ‘hardly covered’, leaving the issues unaddressed, as such, Schwemer argues that only a patchwork of rules remain, notwithstanding the recent developments of the Copyright in the Digital Single Market Directive.

Territorial Kat
Image: koi ko

Whilst the research for this book was evidentially undertaken before the implementation of the DSM Copyright Directive, the discussion remains relevant, in particular to those who consider that some of the more controversial sections of the Directive might have been more appropriately dealt with as an issue of unfair competition.

6: The regulatory system: challenges and solutions

Chapter 6 analysis the characteristics of the licensing systems and the EU approach to private market solutions with a view to map the overlaps and inconsistencies. It examines the interactions between the legal framework and the market developments to discuss how territoriality can be reconciled with borderless access to music and audio-visual content.

Schwemer suggests, what he calls, “screws to adjust the system which are additionally dependent on an intervention limiting contractual freedom.” And concludes by noting that whilst in the analogue world the free movement of copyright-protected goods has been somewhat limited by the exhaustion principle, the digital counterpart to free movement of online content has yet to be found. However, the CRM Directive and the Premier League v Murphy case indicate that competition law is the regulators instrument of choice.

This book will appeal to anyone interested in the development of EU copyright policy, EU cross-border copyright licensing and access to copyright works, and in particular those with an interest in music and audio-visual works. Whilst this book is based on PhD research and will therefore be of interest to other researchers, academics and students, it also offers practical solutions that would also be of interest to policy makers, regulators, practitioners and copyright holders.

Publisher: Cambridge University Press
Hardback ISBN: 9781108475778 - £ 85.00
Also available as an ebook