EU's New Digital Single Market...Isn't

It is one of life's little ironies that the market where geography plays a diminished role – the online sector – is also one where national boundaries are still a huge problem, particularly when it comes to material under copyright, which is often "unavailable in your country" – a ridiculous situation. That's also the case for the European Union, one of whose core features is the single marketplace. That may be true for analogue goods, but it certainly isn't for digital ones.

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It is one of life's little ironies that the market where geography plays a diminished role – the online sector – is also one where national boundaries are still a huge problem, particularly when it comes to material under copyright, which is often "unavailable in your country" – a ridiculous situation. That's also the case for the European Union, one of whose core features is the single marketplace. That may be true for analogue goods, but it certainly isn't for digital ones.

Last week, the European Commission launched its "Digital Single Market Strategy for Europe":

A Digital Single Market is one in which the free movement of goods, persons, services and capital is ensured and where individuals and businesses can seamlessly access and exercise online activities under conditions of fair competition, and a high level of consumer and personal data protection, irrespective of their nationality or place of residence. Achieving a Digital Single Market will ensure that Europe maintains its position as a world leader in the digital economy, helping European companies to grow globally.

The main document is relatively short (20 pages), and well written, so it's worth reading through all of it. What follows are some of the key points likely to be of interest to readers of this blog.

The strategy is built on three "pillars":

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 offlineworlds to break down barriers to cross-border online activity.

Creating the right conditions for digital networks and services to flourish – this requires high-speed, secure and trustworthy infrastructures and content services, supportedby the right regulatory conditions for innovation, investment, fair competition and a level playing field.

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.

One of the biggest problems in the EU is geo-blocking – the fact that much content is only available in certain countries. Given some of the statements from EU commissioners, there were high hopes that a real breakthrough would be made here. Alas, those hopes proved illusory:

The Commission will make legislative proposals in the first half of 2016 to end unjustified geo-blocking.

Spot the weasel word there. Of course "unjustified" can mean anything, and comments by officials indicate that geo-blocking is not going away, just being ameliorated slightly. Here are some more details:

The Commission will make legislative proposals before the end of 2015 to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU, including through further harmonisation measures. The proposals will include: (i) portability of legally acquired content, (ii) ensuring cross-border access to legally purchased online services while respecting the value of rights in the audiovisual sector, (iii) greater legal certainty for the cross-border use of content for specific purposes (e.g. research, education, text and data mining, etc.) through harmonised exceptions,(iv) clarifying the rules on the activities of intermediaries in relation to copyright-protected content and, in 2016, (v) modernising enforcement of intellectual property rights, focusing on commercial-scale infringements (the 'follow the money' approach) as well as its cross-border applicability.

As you will note, the key phrase here is "while respecting the value of rights in the audiovisual sector", which confirms that geoblocking is not going away – clearly the lobbyists for the copyright industry have been busy on this one.

On a more positive note, the promise that the legal status of text and data mining will be clarified is welcome, as are the "harmonised exceptions". However, we can expect fierce lobbying against both of those ideas, so don't break out the champagne yet.

As far as the contentious area of tackling "illegal content" online, the new strategy has this to say:

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.

That last phrase should send shivers down the spine. If it is brought in, a "duty of care" would effectively force ISPs and online platforms to police everything that passed through their systems. As well as lacking the usual legal remedies that are provided for official enforcement, such an approach would inevitably lead to over-blocking since companies will understandably err on the side of caution when it comes to removing material.

One crucial aspect of creating a single digital market is common standards and interoperability. Here's what the new strategy document has to say on this topic:

Today, there is a common understanding among Member States on the basic requirements to achieve interoperability, based on the "European Interoperability Framework" put forward by the Commission in 2010. This framework should now be updated and extended.

The European Interoperability Framework (EIF) is something that I've written about for many years here on Computerworld UK, particularly concerning the hugely retrogressive steps made with EIF v2. Although it would be nice to think that EIF v3 might undo some of that damage, I'm not holding my breath.

Generally, this document is very disappointing, and bespeaks a serious lack of ambition. After all, it's not as if this digital stuff is new and mysterious – the problems have been around for decades now, so it's time they were sorted. Sadly, the European Commission's new strategy doesn't really do that – a huge missed opportunity. The proposed Digital Single Market really isn't, and that's very worrying.

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