The European Parliament’s resolution offers the opportunity to clarify Wikimedia Europe’s position on the practice of geo-blocking and its impact on Wikipedia and its sister projects.
On Tuesday 13 December Parliament adopted a very important own-initiative report on the implementation of the 2018 Geo-blocking Regulation in the digital single market (376 votes in favor, 111 against and 107 abstentions). This is the legislation that aims at addressing unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the EU. The final goal is indeed to ease online cross-border transactions. This report is of importance because it paves the way for future changes of the Geo-Blocking Regulation, even though it cannot bind the next Parliament, which, in principle, could take a new position on the topic. In this sense, Article 9 of the Regulation foresees a revision clause for evaluating the implementation of the law in view of the possible extension of its scope to the online supply of copyright-protected content, including audiovisual content1. Indeed, when the Regulation was adopted, an essential element of the political deal was the possibility to continue to geo-block such content (as provided for in Article 4(1)(b)), at the same time fully excluding audiovisual content from the scope of the regulation – the exclusion is foreseen in Article 1(3) and recital 8 further specifies that “(…) Audiovisual services, including services the principle purpose of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation (…)”.
First revision and consumer perception
On one hand, audiovisual content, being heavily copyrighted, is subject to strict geo-blocking in order to preserve the territorial character of the licensing system, – which, in turn, it is claimed, guarantees the financial sustainability of audiovisual productions and cultural diversity. On the other hand, consumers have very high expectations on the possibility of accessing such content across borders, at least within the EU. Ending the practice of geo-blocking for online audiovisual and copyrighted content is therefore a key open question with regards to achieving a true European digital single market.
This aspect also results from the first short-term review of the Regulation that was published in November 2020, where the Commission highlighted that despite the fact that consumers would like to have cross-border access to audiovisual content, its online accessibility across EU countries is very limited, i.e. only 14% on average. And the latter circumstance, continues the Commission, can be explained not only in light of the peculiar financing model of audiovisual productions, but also because service providers can put in place “commercial practices segmenting the single market along national borders”. In addition, the CJEU explicitly pointed out, in its judgment of the Case C-132/19 Groupe Canal + v Commission, that “according to the case-law of the Court of Justice, an agreement which might tend to restore the partitions between national markets is liable to frustrate the Treaty’s objective of achieving the integration of those markets through the establishment of a single market. Therefore, agreements which are aimed at partitioning national markets according to national borders or make the interpenetration of national markets more difficult may be regarded, in the light of the objectives they pursue and the economic and legal context of which they form part, as agreements whose object is to restrict competition within the meaning of Article 101(1) TFEU.”
In other words, if we want to achieve a truly connected digital Europe where consumers can smoothly participate in culture and access goods and services without consideration of national borders, it is apparent that the Commission should put forward a legislative proposal to extend the scope of the Geo-Blocking Regulation to electronically supplied copyright-protected and audiovisual content.
A missed opportunity & the advantages of a truly digital single market
From our perspective, Parliament missed a unique opportunity to take such a progressive stance reflecting citizens’ expectations. This notwithstanding the text adopted by the Internal Market and Consumer Protection Committee (IMCO) clearly went in this direction and Parliament, already in 2021, held a plenary debate where it formally asked the Commission to adopt a legislative proposal in this sense.
The IMCO committee recalled “the obligation for the Commission to report on the evaluation of the Geo-blocking Regulation, and recommend[ed] accompanying it with a comprehensive revision of the Geo-blocking Regulation by 2025 the latest, with a particular focus on the inclusion of audiovisual services in the scope of the Regulation”. Further, the IMCO Committee had called on the Commission “to fund a selection of emblematic European films to be made available online in all countries and languages via the Creative Europe MEDIA programme”. At the same time, it expressed its concerns about the fact that “geo-blocking also occurs in the case of audiovisual productions funded or co-funded by the EU MEDIA programme and is of the opinion that whenever EU funds are involved in the financing of audiovisual content, no EU citizen should be deprived of access to it”.
The final report doesn’t contain all these references and, on the contrary, it includes now a specific recital (letter I) stating that “maintaining geo-blocking for copyrighted works and protected subject matter is one of the major tools for guaranteeing cultural diversity” and the corresponding paragraph 24 specifying: “considers that the inclusion of audiovisual services in the scope of the Geo-blocking Regulation would result in a significant loss of revenue, putting investment in new content at risk, while eroding contractual freedom and reducing cultural diversity in content production, distribution, promotion and exhibition; emphasises that such an inclusion would result in fewer distribution channels, ultimately driving up prices for consumers”. One could legitimately ask: cui prodest the approval of all these amendments?
Certainly not European citizens who are looking forward to seamlessly accessing cultural works and audiovisual content across borders, thus taking advantage of a true European digital single market. It would make it easier for them to access information, knowledge and cultural content within the EU, thus substantiating their fundamental right to freedom of expression and information – as enshrined in Article 11 of the Charter of Fundamental Rights.
European citizens cannot exclusively be seen as consumers, especially if one thinks of the concrete negative effects that such an exclusion has on the possibility of achieving a true European public sphere. And everybody knows how desperately Europe needs it, as it will help the EU to reduce the gap between its citizens and Institutions.
An idea of how this EU public sphere may look like is offered by the pioneering project called Wiki loves Broadcast. It is a project launched by the German Wikipedia Community in 2016 and it is based on the basic idea that content significantly funded with public money should be freely usable by the public, by taking advantage of free licences (e.g. CC BY-SA 4.0). In the end, such content is a commons as the public has paid for it. Based on this very idea, in 2019 Terra X (ZDF), one the most prestigious German TV documentary programs, started releasing short videos under a free Creative-Commons-License (mostly CC BY 4.0). From that moment, 392 videos have been released and uploaded to the free media database Wikimedia Commons. Almost the majority of those videos have been featured in Wikipedia articles with a total of over 98 million views. This means that all EU citizens can freely access and use such high quality content. Following this example, in 2022, also the Tagesschau (ARD) began releasing short animated clips under a free Creative-Commons-License (CC BY-SA 4.0). In total, 90 videos have been released and uploaded to Wikimedia Commons, amassing over 1.6 million views in total so far.
These projects show a concrete way of how the EU can achieve a true European digital public sphere. Including copyright-protected works as well as audiovisual media services within the scope of the Regulation will definitely ease and encourage the establishment of this kind of partnerships with other public, or even private, broadcasters, and unlock the potential collaboration and public-private partnerships.
We believe that European citizens should no longer suffer an anachronistic limitation of their possibilities of accessing knowledge, information and cultural content. This is the best antidote to make the EU closer to its citizens, fight disinformation, spread quality content and ultimately preserve cultural diversity. Lawmakers cannot abdicate their role, also because, if this will be the case, the Court of Justice already showed to be ready to step in filling this gap.
1. This appears evident from the Statement of the Commission accompanying the Regulation where it is specified that “As part of the evaluation, it will also perform a substantive analysis of the feasibility and potential costs and benefits arising from any changes to the scope of the Regulation, (…). The Commission will also carefully analyse whether in other sectors, including those not covered by Directive 2006/123/EC which are also excluded from the scope of the Regulation pursuant to Article 1(3) thereof, such as services in the field of transport and audiovisual services, any remaining unjustified restrictions based on nationality, place of residence or place of establishment should be eliminated.If in the evaluation the Commission comes to the conclusion that the scope of the Regulation needs to be amended, the Commission will accompany it with a legislative proposal to that effect.”