Legislative Harassment or How Many Times Can They Vote on the Same Policy?

After many twists and turns, the much-debated Geo-Blocking Regulation now comes into force. Does this mean the end of the debate on territories in the Digital Single Market? Of course not. Two years from now, the exception for audiovisual services shall be reviewed (and again every five years after that). This is not the end of the territory debate, perhaps it’s the end of the beginning.

Since the Juncker Commission made the Digital Single Market a priority, the onus has been on taking away geographically tailored offers (yes and roaming and parcel delivery and some other things). Of course, the vision for a Digital Single Market could have been interpreted in many other ways. It could have been tailored offerings or pluralism of content or consumer demands or something else, who knows? Instead, the policy focus was on borders and particularly in content services. The Geo-blocking Regulation is only one of the examples of such attempts. Let’s have a look:

The Portability Regulation comes into force on April 1st (don’t send us jokes about the date please) and will allow users to bring their subscriptions of content services on temporary visits to other member states. And it presupposes territories, it would make no sense in a world without geographical designations.

The Satellite and Cable Directive for television broadcasts was originally put in place to solve the issue of satellite transmissions and cable television networks not always following the same territories as the licenses. But extending it to the internet would mean that it accesses one global territory, which is a quite different idea. Many have pointed out that it would not only undermine the economics of the film, television, sports and other industries, but also take away the opportunity for tailored language offerings and price points adjusted to local purchasing power. Both the EU Parliament and Council have said no this.

Three attempts, each time the outcome is that freedom of contract including territorial licensing stands. Fair enough, good news for creators, businesses and viewers. But how many times should the policy-makers decide on the same issue? Where does the predictability of the legal situation for the affected end and where does legislative harassment begin? What about the ambition of “better regulation”? And looking at the issue again in two, seven and twelve years?

Some want to make the case that Europe is lagging in the digital economy because there are restrictions holding innovation back. But what if Europe’s digital opportunity is not in innovation but creativity? Recently, we have seen a lot of the bad sides of disruptive innovation (looking at you, Cambridge Analytica!). It may be a dead end, trying to design a digital single market in the same way as made the US tech companies successful. Besides, they have plenty of venture capital over there and last time I looked, territorial licensing is allowed in the American market.

Instead, how about we look for a vision that plays to Europe’s strengths? Cultural diversity, quality of content, respect for rights: areas where Europe shines. That could be a different vision for a digital single market. That could also be the starting point for a better vision of the internet. In fact, it might be saving the internet rather than breaking it.

This was Netopia’s Newsletter March 23rd 2018

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