TY - JOUR AU - Synodinou, Tatiana, Eleni AB - Abstract EU copyright law has attempted to resolve the antithesis between the ideal of the single market and the concept of copyright territoriality through a modest approach, which is based on the axiom of safeguarding copyright territoriality and of the accompanying geoblocking practices. The aim of this article is to critically analyse the EU’s steps towards the circumvention of the principle of territoriality and of geoblocking and to demonstrate that, as the efforts to create a digital single market are intensified, a strict EU geoblocking policy in relation to services offering access to copyright-protected works cannot be retained. The article is divided into three parts. Part one is dedicated to the consequences of the principle of territoriality on European copyright law (II). Part two is dedicated to the steps, both jurisprudential and legislative, which have been taken to move away from the principle of copyright territoriality at the European level (III). Part three is dedicated to the recently adopted Geoblocking Regulation 2018/302, while possible ways to move forward are also analysed (IV). I. Introduction – background of the study Walls, fences, barricades and boundaries are always and everywhere to be found. They were there in the past and they are there now.1 From the mythic wall of biblical Jericho, which was constructed as many as 12,000 years ago, to erecting a fence in order to indicate one’s ownership, walls and boundaries have been linked both to exclusion and seclusion: to keep some people in and others out. Similarly, copyright – the most sacrosanct of all properties2 – has always been defined by boundaries and borders. The entire construction of copyright is built on the power of the copyright holder to exclude. At the same time, copyright laws, based on the principle of copyright territoriality, are conceived as geographically defined rights. Being born from the specific socio-economic, cultural and legal idiosyncrasy of certain enlightened states in the 18th century, copyright law has always had a pronounced territorial identity. Even though the commercialisation of copyright-protected works beyond national borders created the need for extraterritorial, international principles with a universal dimension,3 the strong link of national copyright laws with the territorial bodies from which they derive has remained. On the basis of the foregoing, controlling access to copyright-protected content via geoblocking appears to fit well into a mainstream conception of copyright law. Geoblocking is a technological protection measure which de facto restores the principle of copyright territoriality in the potentially borderless internet by restricting access to copyright-protected content on the basis of the user's geographical location. In this context, geoblocking complements copyright law. Geoblocking safeguards the copyright owner’s contractual power/freedom4 to geographically divide, by contract, the markets for the work, to fix different prices for different territories and to maximise the profits deriving from the exploitation of the work. In this context, geoblocking makes territorial licensing agreements effective by limiting access to copyright works to a national public or a linguistically homogenous audience located in a given territory.5 In order to ensure that licensees comply with their licences, licensees are required to apply geoblocking measures to block access to copyright-protected content from territories which are not covered by their allocated licence. For internet actors, geoblocking often appears to be the only means to tackle the legal uncertainty caused by the lack of uniform copyright law within the EU. However, even if compliance with different national copyright laws does not require geoblocking, internet actors may still choose to partition markets in order to protect their different interests, such as localised versions of content, maximisation of revenues through staggered content release, and exclusive licensing to local content providers.6 Conversely, EU law is based on the principle of the abolition of national markets and their replacement by a single market where prices tend to converge for the benefit of consumers. Business models based on the fragmentation and separation of markets are inherently at odds with the enhanced economic integration of a single market, the aim of which is to abolish national markets.7 The collision between geoblocking and EU law necessarily impacts on the development of EU copyright law. Geoblocking, as an expression of the principle of territoriality, loses its main justification in the case of a unitary copyright. Conversely, EU copyright law cannot evolve into a unitary law, but can only continue along the patchworked path of harmonisation, as long as the combination of territoriality and geoblocking persists. The aim of this article is to critically overview the dominant territorial licensing and geoblocking practices of copyright protected works, whose fundamental justification is the sacrosanct copyright territoriality principle. The article will inquire on the effects of territoriality on EU copyright law and on the steps which have been taken at an EU level towards an overcoming of this principle. The analysis will be based on a juxtaposition of the jurisprudential and the legislative steps for the overcoming of territorial licensing and of geoblocking practices. The main thesis of this article is that competition law alone cannot provide an answer to the legal challenges linked to cross-border access to copyright-protected content in a constantly developing digital environment and that legislative intervention in the field of copyright law will be needed. As the efforts to create a digital single market are intensified, a strict EU geoblocking policy in relation to services offering access to copyright-protected works cannot be retained. In this context, the forthcoming evaluation of the Geoblocking Regulation 2018/302 is an opportunity to explore alternative ways to deal with the question, such as introducing the obligation for an EU trader to legitimately and passively distribute copyright-protected content in response to a consumer’s request, provided that the latter pays the legitimate additional cost of the licensing in her/his country. The article is divided into three parts. Part one is dedicated to the consequences of the principle of territoriality on European copyright law (II). Part two is dedicated to the steps, both jurisprudential and legislative, which have been taken to move away from the principle of copyright territoriality at the European level (III). Part three is dedicated to the Geoblocking Regulation 2018/302, while possible ways to move forward are also analysed (IV). II. Territoriality in EU copyright law: a retrospective 1. The foundations of the principle of territoriality and its consequences on European copyright law Geoblocking is an expression of the well-established principle of copyright territoriality. According to this principle, copyright law applies to and is enforceable only in the territory of those Member States that grant it. Copyright territoriality is an expression of national sovereignty. It enables nation states to adjust their IP policies and subsequently their national IP laws to match their particular national needs.8 Generally speaking, ‘the territoriality principle holds that a state has no competence to prescribe legal rules to govern activities that occur outside its national borders’.9 The principle is enshrined in the rule of national treatment established in Art. 5(2) of the Berne Convention10 and it has been confirmed within the EU by the Court of Justice of the European Union (CJEU).11 Consequently, there is no uniform EU copyright law, but there are 28 individual national copyright laws which apply respectively within the territory of each Member State.12 National copyright laws are independent and might present significant differences. As a result, the same work can be protected in one Member State, but not in another. Its author or rightholder might be a different person, depending on which Member State’s law applies and divergent copyright exceptions apply within the territory of the EU. The principle of territoriality appears to be an obstacle to the free movement of goods and services in the internal market, since its direct effect is the segmentation of the EU Market into 28 national markets.13 As Jane Ginsburg has noted, although authors and their works in a digital environment are no longer territorially tethered in all circumstances, ‘regimes must still derive their authority from territorial sovereigns’.14 Indeed, rightholders can diversify the terms of offer for services giving access to copyright-protected content depending on the ‘territory’ (the location) of the user. This result is contrary to the EU’s aim of abolishing restrictions on trade in goods and cultural products among EU Member States. Territorial licensing for content protected by copyright on a country-by-country basis in the EU ‘leads to extensive market fragmentation’.15 EU copyright law was born with this inherent antinomy: despite being designed as substantially territorial in nature (in an age of privileges expressly limited to a specific territory under the control of the sovereign),16 it then had to accommodate the needs and aims of the internal market. The CJEU attempted to overcome this this conflict of aims at an early stage by establishing the legal fiction that EU law could regulate the ‘exercise’ of national Member State copyrights in order to establish and maintain the internal market.17 On the other hand, EU law could not prejudice the national Member State’s laws on property ownership and on the ‘existence’ (the essence) of the copyright itself. The application of national measures that obstruct the free movement of goods or services is permitted only if it is necessary for safeguarding the ‘specific subject matter’ – the essence – of copyright,18 which has been broadly perceived as covering the exclusive right of exploitation of the work,19 but also moral rights.20 In the context of justifying exceptions to free trade, intellectual property rights are cleared as long as they do not create ‘artificial barriers to trade’, while at the same time the competence of the Member States to define intellectual property rights is preserved.21 Action can be taken only against the resulting effects of the intellectual property rights, such as they have been defined by the Member States, if these effects are in breach of the EC Treaty provisions. So, a competition law decision will not query the existence of copyright, but it will evaluate, under the specific circumstances of each individual case, whether an exclusive right has been exercised in such a way that there is infringement of competition law.22 Neither the CJEU or the EU legislator attacked the principle of copyright territoriality as such, immediately. The legitimacy of business models which rely on exclusive rights to exploit a copyright-protected work in a specific territory was upheld as early as 1982 in the Coditel II case,23 from which it can be deduced that EU law tolerates territorial fragmentation in certain industries. Even though there is some damage to market integration, the Court of Justice referred to the specific nature of the cinematographic industry (e.g. dubbing and subtitling, and the system of financing) and held that exclusive licences need not necessarily restrict competition. 2. The principle of exhaustion – offline and online The response of EU law to the problem of the partitioning of EU territory into different markets defined by divergent national copyright laws has been industry-based and grounded on the classic but unclear dichotomy between the sale of goods and the provision of services. For the distribution of tangible goods, the doctrine of exhaustion of the distribution right enables the free movement within the internal market of a tangible good subject to copyright protection (an original work or copy) after its first sale or other transfer of ownership by the rights holder or with his consent in the territory of a Member State.24 There are various justifications for the exhaustion principle. Exhaustion reconciles the buyer’s right of physical ownership with intellectual property protection,25 it enhances freedom of trade and the availability of cultural assets, and it prevents the partitioning of the EU market26 by, at the same time, safeguarding a remuneration for the first sale which is considered to be ‘fair profit’ for the copyright holder.27 However, even though there might be reasonable arguments in favour of applying equal treatment to the resale of works sold in tangible and intangible formats,28 no similar principle has been affirmed for intangible goods.29 On the contrary, a teleological understanding of the InfoSoc Directive, interpreted in light of Art. 6 of the WIPO Copyright Treaty30 and of one of the Agreed Statements to the WIPO Copyright Treaty,31 may on the face of it lead to the assumption that the right of distribution and its exhaustion concern only a work or its tangible copies.32 The CJEU’s Used Soft ruling33 initiated a broader discussion about the extension of the principle of exhaustion to digitally-supplied intangible goods, where new hybrid economic models of ‘distribution’ of works on digital networks blur the borderlines of the fundamental dichotomy between goods and services.34, 35 In that case, the CJEU confirmed the existence of digital exhaustion under the Software Directive by stressing the specific internal market rationale of exhaustion in the EU context, which is that of avoiding the partitioning of markets, and thus limiting any restrictions on the distribution of protected works to what is necessary to safeguard the specific subject matter of the intellectual property concerned.36 The Used Soft findings were, however, established as a lex specialis which applies only to software. The restricted scope of application of the Used Soft ruling was confirmed in the Ranks case (C-166/15),37 where the CJEU ruled out exhaustion in the case of backup and other non-original copies, even if the original support was damaged or destroyed.38 Furthermore, the unidimensional approach of Used Soft disregards the fact that certain copyright-protected works are themselves ‘hybrid’ and complex, in the sense that they combine various creative elements. In this context, the CJEU held in the Nintendo case39 that video games constitute complex subject matter, comprising not only a computer program but also graphic and sound elements. In relation to the possible application of the principle of exhaustion, will the software part of the video game prevail and lead to exhaustion or not? Applying different rules in relation to the exhaustion of the distribution right to complex works consisting of computer programs and other copyright-protected elements (music, audiovisual works, etc.) raises uncertainties in relation to their digital dissemination, which necessarily impacts on new business models. Additionally, a clear distinction between goods and services solely on the basis of their tangibility might prove ambiguous, since permanent control over a copy also exists in certain forms of digital ‘distribution’.40 The Tom Kabinet case41 was expected to shed some light on the question of admissibility of digital exhaustion under Art. 4(2) of Directive 2001/29. The Advocate General, in his Opinion which was delivered on 10 September 2019, excludes the application of the distribution right to the supply of e-books by downloading online for permanent use, since such a use is covered by the right of communication to the public. Furthermore, as is highlighted in the Opinion, the supply of e-books by downloading online also implies creation of a copy of that file on the receiving computer, which will either be authorised by the holder of the exclusive right of reproduction or will come under an exception to that exclusive right.42 The CJEU followed the Opinion of the Advocate General and held that the provision of ebooks is an act of communication to the public and, therefore, there is no digital exhaustion under the InfoSoc Directive.43 In any case, it is doubtful whether the judgment itself can offer a stable and concise legal framework covering the broader issue of digital exhaustion.44 Such a legal framework would presuppose a shift of focus away from the concept of ‘intangible copies’ and towards the actual use45 and the establishment of a fair remuneration for the rightholders, such as giving the copyright owner a fee commensurate with the intensity of the usage rather than an exclusive right.46 III. The steps towards an overcoming of the principle of territoriality Apart from certain sporadic interventions in specific fields (namely the official establishment of the exhaustion of the right of distribution in the Software,47 the Database48 and the Information Society Directive49 and the adoption of the ‘country of origin’ principle in the ‘SatCab’ Directives),50 the EU legislator has traditionally been reluctant to deal in a structured way with the side-effects of copyright territoriality for the EU market. On the other hand, by applying classic competition law principles, the CJEU has proved to be much more efficient as regards the prohibition of mechanisms aiming to impose absolute territorial exclusivity in the EU market for copyright-protected works. 1. Geoblocking and competition law a) The CJEU’s Murphy decision The stepping stone for stronger EU scrutiny of territorial licensing restrictions in the audiovisual sector was the CJEU’s seminal ruling in the joined cases C-403/08 and C-429/08 (the ‘Murphy Ruling’).51 The CJEU was called on to answer, among other things, whether the territorial restrictions included in the licensing agreements between the FAPL (the holder of ‘broadcasting rights’ over football matches in the UK) and the broadcasters of football matches constitute a legitimate practice, which is justified by the specific subject matter of intellectual property, entitling them to commercially exploit works or, conversely, constitute absolute territorial exclusivity which unlawfully fragments the single European market. The CJEU held that whilst the FAPL could still grant rights on a territorial basis, the relevant provisions in the FAPL’s broadcasting licence agreements prohibiting the supply of decoding devices outside the contracted territory (in this case Greece) artificially made that territorial exclusivity ‘absolute,’ and therefore infringed Art. 101 TFEU. For the CJEU, this cannot be justified in light of the objective of protecting intellectual property rights. The CJEU did not reverse Coditel I52 and Coditel II’s53 finding that the rules of the Treaty cannot in principle constitute an obstacle to the geographical limits, which the parties to a contract of assignment of intellectual property rights have agreed. However, the Court distinguished the present case by means of Coditel I,54 by emphasising that, contrary to Coditel I’s factual basis, in Murphy the communication to the public was made on the basis of an authorisation granted by the rightholders, which can take account of the actual and potential audience in the other Member States.55 The CJEU points out that derogations from the principle of free movement can be allowed only to the extent to which they are justified by the public interest purpose of safeguarding rights which constitute the specific subject matter of the intellectual property concerned.56 In the CJEU’s view, the specific subject matter of intellectual property rights is guaranteed when the rightholders receive an ‘appropriate remuneration’57 which can be calculated on the basis of the actual and potential audience in the other Member States.58 Murphy was initially perceived as an earthquake which could cause the territorial licensing of copyright to collapse. The prerequisite of an ‘appropriate remuneration’ for rightholders, instead of the highest possible remuneration, is market-based/economically-oriented59 and on the face of it appears to be technologically neutral. It could, in principle, also neutralise restrictions aimed at guaranteeing territorial exclusivity in relation to other types of communication, such as online streaming. An immediate effect has been that contractual territorial restrictions imposed by rightholders on broadcasters should be revisited, since agreements aimed at partitioning national markets must be regarded, in principle, as agreements whose object is to restrict competition.60 However, they may still be legitimate if other circumstances falling within their economic and legal context can justify the finding that such agreements are not liable to impair competition.61 It should be borne in mind that in Coditel II, the Court mentioned that ‘the characteristics of the cinematographic industry and of its markets, […] especially those relating to dubbing and subtitling for the benefit of different language groups, to the possibilities of television broadcasts, and to the system of financing cinematographic production in Europe serve to show that an exclusive exhibition licence is not, in itself, such as to prevent, restrict or distort competition’.62 In the view of the CJEU, in the present case the FAPL did not put forward any circumstance falling within the economic and legal context of such clauses that would justify the finding that these clauses are not liable to impair competition.63 This finding cannot be affected by the fact that the foreign decoding device was used for commercial purposes, although it was restricted to private use. A subscription for private use through a domestic decoding device could also be used for commercial purposes, and there is no higher risk for such abuse in the case of foreign decoding devices (the risk that certain persons will use foreign decoding devices in disregard of the purpose for which their use is restricted is comparable to the risk which arises when decoding devices are used in purely internal situations).64 Furthermore, the screening of match transmissions by the Greek broadcaster in UK pubs (as opposed to private residences) involved a communication to a new public which was not considered by the rightholders when they authorised the broadcasting of their works.65 The authorisation granted for broadcasting sports content via satellite does not cover the subsequent communication by the subscribers (public houses) to a new public in the context of a profit-making activity.66 Even though the broadcasting of the football matches themselves is not a copyright infringement, given that sports events are not protected by copyright, the inclusion in the broadcast of copyright-protected works, such as logos and anthems, could enable the FAPL to claim copyright infringement based on the unauthorised communication of these works to a new public.67 On the other hand, provided that communications within a private circle are not covered by the right of communication to the public, contractual clauses between rightholders and broadcasters cannot impose absolute territorial exclusivity in relation to private authorised screening of the works. Overall, Murphy could be read as prohibiting restrictions on ‘passive sales’,68 thus of sales made by a licensee in response to unsolicited orders from outside the allocated sales territory of the licensee, since its practical result has been that clauses which prohibit a licensee from selling decoding devices in response to unsolicited requests from individual consumers who are located outside the licensee’s exclusive territory constitute a violation of competition law.69 That said, national licences continue to be permitted within the EU, but it is necessary to redesign the drafting of provisions restricting the capacity of broadcasters to respond to passive requests for access to the service from other EU Member States.70 The Murphy judgment has been a starting point for further consideration of the hot topic of territorial restrictions and geoblocking in relation to the transmission of copyright-protected audiovisual content. In fact, a crucial question is whether the Murphy precedent, which has restricted the granting of absolute territorial protection in respect of sports broadcasting, could also apply to movie licensing for personal use via satellite broadcasting and online streaming. Murphy’s findings might be limited by the fact that the case concerned the broadcasting of sports events which, as held by the CJEU, do not constitute copyright-protected works. It is therefore doubtful whether it could directly cover films and other audiovisual content protected by copyright.71 Murphy’s findings were also limited by the fact that the use of the decoding devices was made in the context of a satellite transmission, i.e. a specific type of transmission for which the EU legislator has adopted the country of origin principle for the clearance of copyright. b) The pending Sky case The next significant step in the scrutiny of territorial restrictions and geoblocking (as a means to effectively comply with contractual restrictions) was made in the EU Commission’s investigations of the Sky decisions and the Judgment of the General Court of December 2018 in Case T-873/16 (Canal+ Ruling). Specifically, in 201472 and 201573 the Commission initiated proceedings pursuant to Art. 2(1) of Commission Regulation (EC) No. 773/200474 against several major Hollywood studios regarding the anti-competitive effect of contractual clauses contained in the licensing agreements between the film studios and Sky, whereby the studios granted Sky exclusive pay-TV and subscription video-on-demand rights with regard to certain films in the United Kingdom and Ireland. Sky’s exclusive licence was accompanied by clauses that prohibit Sky UK from making its retail pay-TV services available via internet and/or satellite transmission, in response to unsolicited requests from consumers located inside the European Economic Area (‘EEA’) but outside the United Kingdom and Ireland, and by clauses that require the relevant studio to ensure that in their licensing agreements with broadcasters (located in the EEA) other than Sky UK, that these broadcasters are prohibited from responding to unsolicited requests from consumers residing or located in the United Kingdom and Ireland. In the Statement of Objections and the Supplementary Statement of Objections, the Commission reached the preliminary conclusion that the Contested Clauses are liable to impair competition75 and to have an anti-competitive object because they are designed to prohibit or limit cross-border passive sales of retail pay-TV services and to grant absolute territorial exclusivity to Sky UK and other broadcasters. Specifically, the contested clauses restrict Sky UK’s ability to accept unsolicited requests for its pay-TV services from consumers located abroad, i.e. from consumers located in Member States where Sky UK is not actively promoting or advertising its services (‘passive sales’). Furthermore, there were no circumstances falling within the economic and legal context of the Contested Clauses, including the nature of the services affected and the conditions of the functioning and structure of the markets in question, that would justify the finding that the clauses are not liable to impair competition and therefore do not have an anti-competitive object.76 Two decisions have been adopted within the framework of the pay-TV (Sky UK) investigation: the decision of 26 July 2016, making the commitments offered by Paramount Pictures binding;77 and the decision of 7 March 2019 making the commitments offered by Disney, NBC Universal, Sony Pictures, Warner Bros and Sky binding.78 The Commission’s decision making the commitments offered by Paramount (in April 2016) binding,79 in response to the Commission’s competition concerns, was appealed by the French pay-TV broadcaster Canal+. The General Court, in its ruling of 12 December 2018 in the Canal+ case,80 maintained the Commission’s decision. In brief, the General Court held that the contested contractual clauses were restrictions of competition in terms of their object, and that the commitments made legally binding under the Commission’s decision do not affect the granting of exclusive territorial licences as such,81 but their aim is to put an end to absolute territorial exclusivity intended to eliminate all competition between broadcasters. Clauses under which the holder is required to prohibit all its contracting partners in the EEA market from making passive sales to geographic markets situated outside the Member State in respect of which it grants them an exclusive licence, confer a contractually specified absolute territorial exclusivity and thereby infringe Art. 101(1).82 Following Murphy,83 it was further found that where a licence agreement is intended to prohibit or limit the cross-border provision of broadcasting services, it is deemed to have the purpose of restricting competition, unless other circumstances falling within its economic and legal context justify the finding that such an agreement is not liable to impair competition. As a result, geoblocking clauses may not be covered under Art. 101(3) TFEU on the basis that they promote production and cultural diversity within the EU, since they go beyond what is necessary for the production and distribution of audiovisual works protected by copyright.84 Accordingly, geoblocking clauses are not necessary to ensure the protection of copyright, since the subject matter of copyright is not to guarantee rightholders the opportunity to demand the highest possible remuneration, but only an appropriate remuneration, namely a remuneration which corresponds to the number of views. In any case, a broadcaster seeking to passively distribute films outside the licensed contractual territory will have to clear copyrights. So, rightholders could negotiate licensing fees that would also include the potential audience in Member States not covered by the licence. Even though the Canal+ judgment used rather broad language in relation to geoblocking clauses, it is uncertain whether the judgment itself is a sound basis for advocating its general application to all geoblocking clauses related to audiovisual content. Firstly, as noted by Thomas Riis and Jens Schovsbo, not all restrictions on passive sales are prohibited, but only contractual agreements which seek to eliminate all competition, and thus imply ‘absolute territorial protection’.85 The decisive test for assessing whether or not limitations in agreements which prevent users from subscribing to or accessing online services in EU countries other than their own violate competition, is whether or not such limitations are necessary for the rightholders to receive fair compensation.86 Accordingly, for limitations on passive sales (such as was the case in Murphy), the competition authorities and the courts should be expected to be somewhat restrictive in their evaluation.87 Additionally, the application of the legal construction of ‘passive sales’ in the audiovisual sector might not be as straightforward as it first appears. Indeed, the territorial exclusivity enjoyed by distributors might be considered as relative in the sense that the distributor’s exclusivity relates only to a specific mode of exploitation (exploitation in cinemas, DVD and VoD, movie channels, pay-TV, SVoD, general channels) and it is most often temporary.88 Secondly, unilateral geoblocking is still possible, since it does not raise competition concerns. Thirdly, cross-border passive sales infringe copyright, unless they are also covered by a licence.89 In this context, the judgment has the potential to create incentives for distributors to seek EU-wide licences and to develop business models in order to address passive sales outside the licence territory.90 Fourthly, where the risk of copyright infringement inevitably impedes distributors attempting to engage in any cross-border competition in non-licensed territories, a requirement to use geoblocking appears incapable of producing restrictive effects on competition.91 The question is whether competition between broadcasters would otherwise have occurred, had it not been for the geo-blocking clause92 and whether the latter restricts competition beyond the restrictions resulting from copyright protection. Last but not least, it should be noted that the Canal+ judgment has been appealed by Canal+ before the European Court of Justice.93 2. The legislative initiatives for less copyright territoriality As with case law, legislative initiatives have also addressed the issue of territorial licensing practices. One particular way to adapt EU copyright law to a cross-border context has been to address the uncertainty regarding the application of copyright law by designating one law to be applicable to specific cross-border communications of copyright-protected works.94 In this context, the country of origin principle was established in the Satellite and Cable Directive.95 According to this principle, a satellite broadcaster must clear rights only in the country where the satellite transmission is initiated in order to provide broadcasting services in all countries where the broadcast is received. Consequently, the satellite broadcaster must acquire a licence from the copyright holders only for the EU country which is at the ‘origin’ of the transmission. While a possible extension of the ‘country of origin’ principle to online communications96 has been discussed and supported by various stakeholders97 and scholars,98 this policy option has been only partially and minimally integrated into the new SatCab Directive on broadcasters' online services and retransmissions of radio and TV programmes, which was adopted by the Council of the European Union on 17 April 2019.99 Indeed, the country of origin principle has been established in the new SatCab Directive only for certain types of programmes100 and only for ancillary online services.101 The rule does not apply to broadcasts of sports events and works and of other protected subject matter included in them.102 The country of origin principle was also established, although in a different context, in the Audiovisual Media Services Directive, which was recently revised.103 The principle applies to national rules concerning the content of television broadcasting and other ‘audiovisual media services’ within the coordinated field. However, copyright lies outside the fields coordinated by the Directive.104 The Audiovisual Media Services Directive addresses territoriality by allowing Member States to prevent pay-TV providers from acquiring territorially exclusive rights over the broadcasting of ‘events which are regarded by that Member State as being of major importance for society’.105 However, this provision, which was not subject to revision, has no obvious ramifications for the film industry and its financing.106 A similar approach has also been followed in the Portability Regulation 2017/1128,107 which guarantees the portability of existing subscriptions giving access to copyright-protected works (such as films, sports events, e-books, video games and music). One of the biggest innovations of the Regulation lies in the legal fiction introduced in its Art. 4. According to this provision, which follows the same line of reasoning as the ‘country or origin’ principle of the SatCab Directive, the provision of an online content service to, as well as access to and use of this service by, a subscriber, in accordance with Art. 3(1), shall be deemed to occur solely in the Member State of residence. Consequently, the act of communication to the public and of receipt of the service shall be deemed to occur solely in the Member State of the subscriber’s residence and not in the place where it physically occurs (the Member State where the consumer is ‘temporarily’ present). In the case of technological limitations (mainly geoblocking), the service provider has an obligation to enable access to and use of the online content service. This, in practice, means that the service providers must monitor and confirm the subscriber’s temporary location in other Member States, and that they must ‘disable’ their geoblocking measures. If the service provider does not apply geoblocking but restricts access to and use of the online content service to a particular territory (Member State) only contractually, this contractual obligation shall be unenforceable.108 Even though the Portability Regulation is a first step towards removing the effects of geoblocking measures, it only affects a very small proportion of the EU’s population, namely travellers, short-term migrants and tourists, representing about 2.5 million EU citizens by 2020.109 Online distribution of copyright-protected content is also regulated by the Directive in terms of certain aspects concerning contracts for the supply of digital content and digital services (the ‘Digital Content Directive’).110 The Directive establishes rules governing contracts for the supply of digital content (such as digital films, music, e-books, applications, etc.), and also covers the provision of digital services (such as social media platforms, on-line games, pay-per-view access to films, cloud computing, etc.).111 However, the Directive does not deal with the question of geoblocking and does not interfere with EU copyright law legislation.112 Attempts have also been made to promote the cross-border licensing of music.113 The EU legislator has chosen a system that could be defined as a ‘European Licensing Passport’ in the Collective Management Directive 2014/26/EU,114 one of the core objectives of which is to facilitate the multi-territorial licensing by CMOs of authors’ rights in musical works for the provision of online services. Collecting societies wishing to license online rights for musical works on a multi-territory basis must comply with conditions governing efficient data handling, invoicing capabilities and transparency.115 However, this is also a non-ambitious approach which maintains the intact territorial nature of copyright as a matter of principle.116 Specific EU legislative interventions facilitating the cross-border circulation of copyright-protected works having a specific status or specific cross-border uses have also taken place in relation to orphan works, out of commerce works, uses for the benefit of the blind and visually impaired, and teaching uses. Specifically, Art. 4 of the Orphan Works Directive117 provides for the mutual recognition of orphan work status all over the EU. Articles 3 and 4 of the Regulation (EU) 2017/1563,118 which has transposed in the EU the legal provisions of the Marrakesh Treaty,119 enables the export of accessible format copies of works or other subject matter to third countries and the import such copies from third countries which are parties to the Marrakesh Treaty. More recently, Art. 5 para. 3 of the Directive 2019/790 on copyright and related rights in the Digital Single Market120 establishes the country of origin principle for cross-border teaching activities through secure electronic environments, by stating that the use shall be deemed to occur solely in the Member State where the educational establishment is established. Under a similar line of reasoning, Directive2019/790 provides for uses of out of commerce works under the exception of Art. 9, in that they shall be deemed to occur solely in the Member State where the cultural heritage institution undertaking that use is established. Overall, the EU legislator has adopted a piecemeal and primarily reserved approach to the issue. This is also confirmed by the recently adopted Directive on copyright in the Digital Single Market121 which does not deal with the question of geoblocking. IV. The Geoblocking Regulation: a failure or an opportunity? 1. The need for new solutions in light of the EU’s evolution The inconsistency and timidity of the EU legislator in tackling the sensitive issue of geoblocking in relation to copyright-protected works has been solemnly affirmed in the recently adopted Geoblocking Regulation.122 The Regulation aims to abolish the obstacle of ‘geoblocking’, that occurs where traders operating in one Member State block or limit access to their online inter-faces, such as websites and apps, for customers from other Member States wishing to engage in cross-border transactions.123 Specifically, the Geoblocking Regulation aims to further clarify the scope of application of Art. 20 of Directive 2006/123/EC124 by defining certain situations in which different treatment based on nationality, place of residence or place of establishment cannot be justified under that provision.125 The Regulation, in line with the material scope of the Services Directive,126 introduces a distinction between services, the main feature of which is the provision of access to and use of copyright-protected works and audiovisual services. Audiovisual services, including services whose main purpose is the provision of access to broadcasts of sports events, and which are provided on the basis of exclusive territorial licences, are explicitly excluded from the scope of this Regulation.127 In relation to services whose main feature is the provision of access to and use of other copyright-protected content (such as e-books, music, games and software), the Regulation has adopted a mitigated approach. Recital 8 states that they are in principle covered by the scope of the Regulation, subject however to the specific exclusion and the subsequent evaluation of that exclusion for which this Regulation provides. These exclusions are found in Arts. 1 and 4(1)(b) of the Regulation. According to Art. 1(5), the Regulation shall not affect the rules applicable in the field of copyright and neighbouring rights, notably the rules provided for in Directive 2001/29. Non-audiovisual electronically supplied services, whose main feature is the access and use of copyright-protected works, are covered by certain provisions of the Regulation, but not by the non-discrimination obligation laid down in Art. 4 (i.e. the prohibition of different conditions on the basis of nationality, place of residence and place of establishment). Specifically, Art. 3 of the Regulation, which bans the blocking of access to websites and re-routing without the customer’s prior consent, and Art. 5, which prohibits discrimination in the area of electronic payment means on the basis of ‘nationality’, apply also to non-audiovisual electronically supplied services, whose main feature is the access and use of copyright-protected works. This means that a trader providing these services cannot prevent its clients from accessing different versions of its website, marketplace or app store, or cannot re-route them, without their explicit consent, on the basis of criteria based on the customer's nationality, residence or establishment (including indirect criteria such as their IP address or the customer's payment details).128 Moreover, where these services are provided on a cross-border basis, regardless of their exclusion from Art. 4 of the Regulation, the trader is prevented from discriminating against the electronic payment means on the basis of ‘nationality’, e.g. because a credit or debit card of an accepted category or brand is issued in another Member State or because a direct debit or credit transfer is performed through a bank from another Member State (provided the currency used is accepted by the trader).129 Nonetheless, the practical effect of the application of these articles is minimal, since they do not make lawful the provision of access to copyright-protected content to consumers located in non-licensed territories. So, even though the user will be able to access a foreign provider’s website, this will be mainly for information purposes (such as for price-comparison purposes), since a cross-border transaction will be lawfully made only if the service provider has cleared copyright for the territory of the user. The same applies to the non-discrimination rule in relation to electronic payment means. More importantly, Art. 4, which prohibits the application of different general conditions of access to the service on the basis of a customer’s nationality, residence or establishment – including the option of denying access to the service – does not apply to the provision of copyright-protected content services. Furthermore, the service provider will in any case have to comply with national laws, including territorial copyright laws, which prevent the trader from providing the services to certain customers or to customers in certain territories.130 As regards non-unilateral geoblocking, Art. 6 goes one step further than competition law and establishes an absolute prohibition on agreements preventing traders from responding to unsolicited customer requests. These provisions shall be automatically deemed null and void, regardless of the trader’s market position.131 However, this does not apply to copyright content services. Overall, the Geoblocking Regulation has a very limited effect on the cross-border provision of copyright content services in the EU. However, the door has been left open for a possible review of the non-application of Arts. 4 and 6 to copyright content services, following an initial evaluation of the Regulation on March 2020.132 Such an extension, if decided on, would prohibit the use of both unilateral and non-unilateral geoblocking measures provided that the service provider (trader or distributor) has acquired a licence that covers the territory where the user is located. In this respect, the Regulation would move one step further away from EU competition law. However, a trader would probably be reluctant to respond to demands emanating from individual consumers in various EU Member States or to attempt to clear copyright in 28 different jurisdictions, even if he is free to do so. In this context, the extension of the Geoblocking Regulation alone to include copyright content services is only one piece of a bigger puzzle. The completion of a true digital single market requires that more radical solutions be adopted in the field of copyright clearance: solutions which will either keep, but significantly limit, the principle of territoriality (such as the introduction of a country of origin principle with adjustments to make it fit for online communications) or which abolish it by replacing the territorial copyright laws of Member States by a unified copyright law133 in the form of an EU Copyright Code which would enable pan-European licensing. Even though these options appear understandable, and even indisputable, from the perspective of the EU’s four freedoms, there are no simple answers to the existential dilemmas of EU copyright law. Copyright territoriality is not restricted only to its economic dimension, and thus to the rightholder’s power to license the work in 28 parallel markets, but is a component of the complex identity of copyright law which, unlike other branches of intellectual property, has always been a fascinating and unique amalgam of property and culture. The business models of production and distribution of copyright-protected cultural goods are tailored to the same idiosyncrasies as those behind national copyright law cultures. Having divergent copyright ownership, moral rights and contract law rules might mean that in one Member State, the investor or the distributor has sole control over the fate of the work, while in others he does not. In other words, the essence and the exercise of copyright act as communicating vessels. Furthermore, the unification of laws, like any globalisation process, brings with it an economic pattern of major multinational players who aim to sell the same products globally. In this context, a side-effect of pan-European licensing and of abolishing the territoriality principle within the EU might be less investment in local and culturally more differential content. This would impact negatively on the preservation of cultural and linguistic diversity and heritage.134 In this context, it has been argued that territorial restrictions could be acceptable, and even desirable as they are ‘supporting cultural creations targeted at national audiences and having no (or little) international appeal’.135 On the other hand, laws are also subject to the principle of evolution. European copyright law shares the same destiny. Either it will promote the ideal of union or it will stay inactive and leave to national copyright laws the competence to build their own pluralist answers to technological and societal changes. At a time of challenges and ordeals for the EU, such as Brexit, EU law needs to depart from the dominant economic formation of the integration process and to make the establishment of an EU market for culture a primary objective. In this context, copyright territoriality and the geoblocking mechanism should be seriously reconsidered. While geoblocking is often seen as a fortress which preserves and protects the richness and uniqueness of national cultures, like every wall, it carries with it the danger of seclusion. In this sense, claims for cross-border access to cultures should not be seen as opportunist or populist pleas, but as a vehicle for the discovery of bridges, common values and objectives which bring Europeans together. The time has come for more advanced, bolder, compromises. This presupposes a new, workable balance between copyright law principles, competition law rules and fundamental rights. Competition law alone cannot provide an answer to the legal challenges linked to cross-border access to copyright-protected content in a constantly developing digital environment. In this context, legislative intervention in the field of copyright law will be needed. Competition law has, however, an important message to give. With or without copyright territoriality, rightholders need to be adequately protected and should receive an ‘appropriate remuneration’ for the use made of their works. This means that in every scenario (adoption of the ‘country of origin’ principle or of an EU unified copyright title), the rightholder will not be denied his exclusive rights for the whole EU territory by being paid for the transmission in just one country. The option demonstrated both by the Murphy and Canal+ judgments is that a service provider should be encouraged to seek multi-territorial or pan-European licences, and that in this case, the copyright holder can negotiate an amount that considers the potential audience both in the Member State for which the exclusive licence is granted and any other Member State in which the programmes covered by the distribution are also received. Such an option is now facilitated by technology, since the technology necessary for receiving works covered by the rights in question, both online and via (encrypted) satellite transmission, enables the actual and potential audience to be determined. In this context, broadcasters will compete only if they are willing to adapt their business models to embrace this opportunity.136 However, the cost involved in acquiring a licence is often the main obstacle to the pan-European or multi-territorial provision of digital services providing access to copyright-protected works.137 2. Some de lege ferenda thoughts: compulsory licenses as a means for an effective overcoming of geoblocking in the EU? Additionally, and even more radically, a true digital single market would require not only that an EU trader should not be precluded from responding to individual passive sales requests submitted by consumers located anywhere in the EU, but that an EU consumer should also have the right to access copyright-protected works all over Europe under the same general terms. This would mean in practice that the EU trader should be obliged to provide the service, at the consumer’s request. The consumer would then have to pay the legitimate additional licensing cost in her/his country. This right would be based on the fundamental EU axiom of the free movement of goods and services, but also on a claim emanating from the EU citizen to have access to the cultures of EU Member States. Even though the EU has no competence to rule on cultural matters, in light of the growing significance of human rights in the EU legal order, the EU’s fundamental economic freedoms could be interpreted in a way favouring cross-border access to cultural goods.138 Such a model would imply a mechanism of compulsory licensing, collective management with possibilities of cross-border licensing, and probably a system of mediation with the consumer. Compulsory licensing of copyright-protected works in the EU results from the application of competition law principles, when the exercise of copyright in certain circumstances has an adverse effect on consumer welfare or is an abuse of a dominant position.139 In this context, assets protected by intellectual property and which are critical to accessing a network have been, in certain exceptional cases,140 treated as ‘essential facilities’ under competition law.141 Mechanisms of compulsory licensing provided by copyright legislation are not unknown, even though they remain marginal. In this context, at the international level, Art. 13 of the Berne Convention enables Members of the Union to limit the right of recording of musical works if the recording of the musical work and words has already been authorised by the author, on the condition that this limitation shall not be prejudicial to the rights of these authors to obtain equitable remuneration, which, in the absence of agreement, shall be fixed by the competent authority. As noted by Ricketson and Ginsburg, ‘this is normally taken to mean that the conditions and the reservations which are imposed will take the form of compulsory licenses’.142 Similarly, Art. 11bis(2) of the Berne Convention provides for the possibility of compulsory licences for the broadcasting right and of the rights of retransmission, wire diffusion and public communication by means of loudspeakers for all categories of works. Furthermore, both the Berne143 and Universal144 Conventions contain special exceptions applicable only to developing countries, allowing a system of compulsory licences to reproduce or translate works for the purpose of teaching, scholarship or research. Additionally, compulsory licensing in the field of copyright law could be facilitated by the existence of established collective management organisations in the EU Member States, which would provide for a more effective application of a compulsory licensing instrument, compared to patent law.145 In the case of a compulsory licence, the copyright owner must permit the use required of his work, though he retains the right to negotiate the terms of such use. If the parties cannot agree, the terms are settled by an administrator, a judge146 or an arbitrator. In this context, a key element of such a mechanism is the calculation of an appropriate ‘fair’ remuneration of the rightholder for mandatory licensing in the consumer’s country. Once again, the lessons of competition law would be useful, such as taking some inspiration from the FRAND patent law licensing model (licensing on fair, reasonable and non-discriminatory terms) for non-exclusive licences granted by patent holders who participate in standards-setting arrangements. The origin of FRAND commitments lies in a series of U.S. antitrust enforcement actions in the early to mid-20th century, which sought to break up cartel arrangements among groups of competitors that tended to restrict access to markets and otherwise distort competition.147 FRAND-based methodology and the notion of access on FRAND terms is also part of EU competition law. As noted by Heim and Nikolic, ‘the concept of “fair, reasonable and non-discriminatory” access is used by competition authorities as a “good faith” notion, applied as a competition law remedy to ensure the supply of a particular product or the access to specific infrastructure’, while ‘from a theoretical perspective, it could be argued that Art. 102 TFEU already embraces a FRAND-based notion; it eschews excessive prices, while promoting access and non-discrimination obligations, as required under the “special responsibility” of dominant firms’.148 When FRAND licensing terms are defined, there should be a single set of terms based on what a truly willing licensor and a truly willing licensee would have agreed in the particular circumstances.149 Even if FRAND commitments and compulsory licences are legal constructs which differ in various ways, FRAND commitments are made voluntarily by participants, whereas compulsory licences are imposed by governmental action against the will of the intellectual property holder150 – these forms of licences share the objective of producing a fair and reasonable licence for intellectual property.151 Certainly, the patent FRAND licensing model cannot find direct application in copyright law. However, the line of reasoning of its licensing principles (namely the commitment to license on ‘fair, reasonable and non-discriminatory’ terms) could be used for the development of a similar licensing philosophy in the area of compulsory copyright licensing. Indeed, in the absence of a set of licensing principles, both the licensing conditions and the calculation of the rightholder’s remuneration would be left entirely to negotiation between the parties. This could hamper the mechanism’s effectiveness, while the risk of unjustified discrimination between EU traders would also be present. Specifically, as regards licensing on FRAND terms, the non-discriminatory aspect has historically been seen as a crucial prerequisite of every intellectual property compulsory licensing mechanism. As early as 1866, in Re Mallet's Patent,152 where the first intellectual property compulsory licence in the UK was granted, the Judicial Committee recommended a term extension of four years of a patent for the fire-proofing of buildings upon the condition of granting licences to all persons who may be desirous of having them upon the same terms and, by doing so, it ensured that the terms of an existing licence shall be available to all.153 Under a compulsory copyright licensing mechanism for the online transmission of copyright-protected works upon unsolicited requests from consumers located in other EU Member States, the non-discriminatory principle would require that licensors treat each individual licensee in a similar manner. While there might be differences in price or other licensing terms,154 those differences must be justified. The underlying licensing condition included in a licensing agreement must be the same for ‘similarly situated’ licensees.155 Licensing on ‘fair and reasonable terms’ mainly refers to the licensing rates, but it can also be perceived more broadly as excluding anti-competitive behaviour which would be considered unlawful if imposed by a dominant firm in its relative market, such as requiring licensees to buy licences for products they do not want, in order to get a licence for the products they do want, or imposing ‘exclusive dealing’ arrangements, i.e. restrictive conditions on the licensees’ dealings with the licensor’s competitors.156 The concept of ‘fair and reasonable licensing’ shares some common characteristics with the copyright law notion of ‘equitable remuneration’, at least as regards the objective of calculating a fair price. While it might, on the face of it, appear unconventional to assimilate principles which have been developed for the licensing of patents in the field of copyright law, such an inspiration of patent law compulsory licensing is supported by the history of Art. 13 of the Berne Convention. In this context, it should be borne in mind that the proposal for an ‘equitable remuneration’ in Art. 13 of the Berne Convention comes originally from a German proposal, which was based on the system of compulsory licences under German patent law.157 Based on this, Ricketson and Ginsburg propose to interpret the concept of ‘equitable remuneration’ as set out in Art. 13, with reference to the criteria set by a German court decision for the licensing of patents, in the sense that the licence fee should grant reasonable compensation to the patentee, but it should also enable the licensee to sustain the operation of his business.158 As regards the definition of ‘equitable remuneration’, European copyright law focuses on the ‘economic value of the use’.159 At the same time, a flexible approach is adopted, which takes into account a variety of factors and makes the calculation of the equitable remuneration a careful balancing exercise. In this context, it was held in the SENA case, that: ‘Article 8(2) of Directive 92/100 does not preclude a model for calculating what constitutes equitable remuneration for performing artists and phonogram producers that operates by reference to variable and fixed factors, such as the number of hours of phonograms broadcast, the viewing and listening densities achieved by the radio and television broadcasters represented by the broadcast organisation, the tariffs fixed by agreement in the field of performance rights and broadcast rights in respect of musical works protected by copyright, the tariffs set by the public broadcast organisations in the Member States bordering on the Member State concerned, and the amounts paid by commercial stations, provided that that model is such as to enable a proper balance to be achieved between the interests of performing artists and producers in obtaining remuneration for the broadcast of a particular phonogram, and the interests of third parties in being able to broadcast the phonogram on terms that are reasonable, and that it does not contravene any principle of Community law’.160 It is noteworthy that the requirement of ‘reasonable terms’ and the need to safeguard the compatibility of the licensing terms with EU law principles reflect the idea of a ‘fair and reasonable’ licensing, both as regards the prohibition of anti-competitive behaviour and the determination of a reasonable price. It could be argued that, by analogy to patent law, in order to address the problem of royalty stacking,161 which arises when the implementers must pay royalties to multiple owners, the hypothetical negotiation also needs to reflect the presence of copyright and related rights held by others that that apply to the same ‘product’. Lastly, the whole mechanism should be accompanied by out-of-court dispute settlement tools. Out-of-court dispute settlement procedures, such as mediation between the user of copyright-protected works and rightholders, have already been recognised in European copyright law, such as when implementing Art. 6(4) of the Information Society Directive,162 and more recently as a way to enable users to dispute the disabling of access to, or the removal of, works or other subject matter uploaded to platforms by them, in the context of Art. 17 of the Directive on Copyright in the Digital Single Market.163 V. Conclusion Overall, the EU policy on copyright law and geoblocking has attempted to resolve the antithesis between the ideal of the single market and the concept of copyright territoriality through a modest and careful approach, which is based on the axiom of safeguarding copyright territoriality, and of the accompanying geoblocking practices. As the efforts to create a digital single market are intensified, it appears that a strict EU geoblocking policy in relation to services offering access to copyright-protected works cannot be retained. In this context, the article demonstrated that mechanisms for ‘circumvention’ of the principle of territoriality will have to be devised. As proposed, those mechanisms must be based on a balanced approach and on the principle of safeguarding an appropriate, fair remuneration for rightholders, which would be calculated on the basis of clear criteria. In this context, the forthcoming evaluation of the Geoblocking Regulation is an opportunity for exploring alternative ways to deal with the question, such as introducing the obligation for an EU trader to legitimately and passively distribute copyright-protected content in response to a consumer’s request, provided that the latter pays the legitimate additional cost of the licensing in her/his country. This new ‘user right’ would have a hybrid justification and would be based on the fundamental EU axiom of the free movement of goods and services, but also on a claim emanating from the EU citizen to have access to the cultures of EU Member States. Footnotes 1 Ed Williams and Anna Johnson, ‘Walls and Fences: Perspectives from Universities and Museums’ 50(3) Journal of the Southwest 227-241 (2008). 2 Jane Ginsburg, ‘‘Une chose publique?’ The author’s domain and the public domain in early British, French and US copyright law’ in Paul Torremans (ed), Copyright Law: A Handbook of Contemporary Research (Edward Elgar 2007) 145. 3 Alexander Peukert, ‘Territoriality and Extraterritoriality in Intellectual Property Law’ in Günther Handl, Joachim Zekoll and Peer Zumbansen (eds), Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Brill Academic Publishing 2012) 189-228 accessed 3 September 2019. 4 Multi-Territory Licensing of Audiovisual Works in the European Union, Multi-Territory Licensing of Audiovisual Works in the European Union Final Report Prepared for the European Commission, DG Information Society and Media, October 2010, available at accessed 3 September 2019. 5 Giuseppe Mazziotti, ‘Is Geo-Blocking a Real Cause for Concern in Europe’ (Cadmus, EUI Department of Law Research Paper No 2015/43, 1) ; Tambiama André Madiega, ‘Digital Single Market and geo-blocking’ (European Parliamentary Research Service Blog, 13 May 2015) accessed 3 September 2019). 6 Marketa Trimble, ‘Copyright and Geoblocking: The Consequences of Eliminating Geoblocking’ 25 Boston University Journal of Science and Technology Law (2019) accessed 3 September 2019). 7 Communication of the European Commission on Creative Content Online in the Single Market, COM(2007) 836 final, 3 January 2008, 5. 8 Annette Kur and Thomas Dreier, European Intellectual Property Law: Text, Cases and Materials (Edward Elgar 2013) 13. 9 Peter Goldsetin and P Bernt Hugenholtz, International Copyright – Principles, Law and Practice (Oxford University Press 2013) 97. 10 P Bernt Hugenholtz and others, ‘The Recasting of Copyright & Related Rights for the Knowledge Economy’ (2006) Amsterdam Law School Research Paper No 2012-44, 23 . 11 See: Judgment of 14 July 2005, Case C-192/04 Lagardère Active Broadcast v Société pour la perception de la rémunération équitable (SPRE) and Gesellschaft zur Verwertung von Leistungsschutzrechten mbH (GVL) EU:C:2005:475, para 46 (‘… the principle of the territoriality of those rights, which is recognised in international law and also in the EC Treaty. Those rights are therefore of a territorial nature and, moreover, domestic law can only penalise conduct engaged in within national territory.’); Judgment of 27 February 2014, Case C-351/12 OSA – Ochranný svaz autorský pro práva k dílům hudebním o.s. v Léčebné lázně Mariánské Lázně a.s. EU:C:2014:110, para 76 (‘The observations submitted to the Court have not shown, as regards a communication such as that at issue in the main proceedings, that – as European Union Law stands at present – there is another method allowing the same level of copyright protection as the territory-based protection and thus territory-based supervision of those rights, a method of which legislation such as that at issue in the main proceedings forms a part’); Judgment of 16 June 2011, Case C-462/09 Stichting de Thuiskopie GRUR Int 2011, 716, para 36 (‘It follows from the foregoing that, if a Member State has introduced an exception for private copying into its national law and if the final users who, on a private basis, reproduce a protected work reside on its territory, that Member State must ensure, in accordance with its territorial competence, the effective recovery of the fair compensation for the harm suffered by the authors on the territory of that State’). See further art 3(3) and annex, Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) [2000] OJ L 178/1 (the country of origin rule under the electronic commerce Directive does not apply to intellectual property rights). For the sources of the principle of territoriality, see: Peukert (n 3). 12 P Bernt Hugenholtz, ‘Copyright Territoriality in the European Union, Note’ European Parliament, Directorate General for Internal Policies Policy Department C: Citizens' Rights And Constitutional Affairs Legal Affairs 2010, 6. 13 Tatiana Synodinou, ‘EU Portability Regulation: In-depth Analysis of the Proposal’ (Study prepared for the JURI Committee of the EU Parliament, 2016) . 14 Jane C Ginsburg, ‘Cyberian Captivity of Copyright: Territoriality and Author’s Rights in a Networked World’ 15 (2) Santa Clara Computer & High Tech Journal 349-350 (347) (1999). 15 Jacklyn Hoffman, ‘Crossing Borders in the Digital Market: A Proposal to End Copyright Territoriality and Geo-Blocking in the European Union’ 49 Washington International Law Review 143, 144 (2016). 16 Lydia Lundstedt, ‘Territoriality in Intellectual Property Law’ (thesis, Stockholm University 2016) 73-74. 17 Valérie Laure Benabou, Droits d’auteur, droits voisins et droit communautaire (Bruylant 1997) 41-44. 18 Mireille van Eechoud and others, Harmonizing European Copyright Law: The Challenges of Better Lawmaking (Kluwer Law International 2009) 3. 19 See Judgment of 21 June 2012, Case C-5/11 Donner GRUR Int 2012, 766, para 36 (‘The application of provisions such as those at issue in the main proceedings may be considered necessary to protect the specific subject-matter of the copyright, which confers inter alia the exclusive right of exploitation. The restriction on the free movement of goods resulting therefrom is accordingly justified and proportionate to the objective pursued, in circumstances such as those of the main proceedings where the accused intentionally, or at the very least knowingly, engaged in operations giving rise to the distribution of protected works to the public on the territory of a Member State in which the copyright enjoyed full protection, thereby infringing on the exclusive right of the copyright proprietor’). 20 Judgment of 20 October 1993, Joined cases C-92/92 and C-326/92 Phil Collins v Imtrat Handelsgesellschaft mbH and Patricia Im- und Export Verwaltungsgesellschaft mbH and Leif Emanuel Kraul v EMI Electrola GmbH EU:C:1993:847, para 20 (‘The specific subject-matter of those rights, as governed by national legislation, is to ensure the protection of the moral and economic rights of their holders. The protection of moral rights enables authors and performers, in particular, to object to any distortion, mutilation or other modification of a work which would be prejudicial to their honour or reputation. Copyright and related rights are also economic in nature, in that they confer the right to exploit commercially the marketing of the protected work, particularly in the form of licences granted in return for payment of royalties (see the judgment in Joined Cases 55/80 and 57/80 Musik-Vertrieb membran v GEMA [1981] ECR 147, paragraph 12).’ 21 LLD Claes Granmar, ‘Intellectual Property Rights and the Single Market’ in Jan Rosén (ed), European Intellectual Property Law (Edward Elgar 2016) 38. 22 Michel M Walter and Silke von Lewinski (eds), European Copyright Law, A Commentary (Oxford University Press 2010) paras 3.0.5, 3. 0.6, 3.0.7. 23 Judgment of 6 October 1982 Coditel SA, Compagnie générale pour la diffusion de la télévision, and others v Ciné-Vog Films SA and others (Coditel II) EU:C:1982:334, para 15. 24 Article 4 para 2 of Directive 2001/29 (the InfoSoc Directive) establishes the rule of Community-wide exhaustion of the distribution right. According to this rule, the right is exhausted within the territory of the Community and the European Economic Area if the first sale or other transfer of ownership of an original work or of a copy of it is made by the rightholder or with his consent. 25 Sam Ricketson and Jane C Ginsburg, International Copyright and Neighbouring Rights, The Berne Convention and Beyond vol I (Oxford University Press 2006) para 11.43; Poorna Mysoor, ‘Exhaustion, Non-exhaustion and Implied Licence’ 49 IIC 656 (2018); Andreas Wiebe, ‘The economic perspective: exhaustion in the digital age’ in Lionel Bently, Uma Suthersanen and Paul Torremans (eds), Global Copyright, Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace (Edward Elgar 2010) 322. 26 Benedetta Ubertazzi, ‘The Principle of Free Movement of Goods: Community Exhaustion and Parallel Imports’ in Irini Stamatoudi and Paul Torremans (eds), EU Copyright Law, A Commentary (Edward Elgar 2014) 39. 27 André Lucas, ‘International exhaustion’ in Bently, Suthersanen and Torremans (n 25) 306. 28 Peter Mezei, ‘Digital first sale doctrine ante portas: Exhaustion in the online environment’ JIPITEC 2015, (23) 27. 29 Recital 28 of the Information Society Directive (Directive 2001/29) states that copyright protection under this Directive includes the exclusive right to control distribution of the work incorporated in a tangible article. Recital 29 of the same Directive appears to exclude such a possibility. See also art 1(2) of the Rental and Lending Directive (2006/115) (the rental and lending rights are not exhausted by any sale or other act of distribution of originals and copies of copyright works) and Recital 43 of the Database Directive 96/9 (the right of re-utilisation of a database is not exhausted by the online transmission of the database). 30 According to this provision, ‘(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership. (2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.’ 31 As it is stated: ‘As used in these articles, the expressions “copies” and “original and copies,” being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects’ accessed 3 September 2019. 32 Eleonora Rosati, ‘Online copyright exhaustion in a post-Allposters world’ [2015] 10(9) JIPLP 673-681 accessed 3 September 2019. 33 Judgment of 3 July 2012, Case C-128/11 UsedSoft GmbH v Oracle International Corp GRUR Int 2012, 759. 34 When a work is commercially offered to users for downloading, there is a hybrid form of distribution where basic elements of a contract of sale and of a provision of services are present. See: Agnès Lucas-Schloetter, ‘La revente d’occasion de fichiers numériques contenant des oeuvres protégées par le droit d’auteur’ in Carine Bernault and others, ‘Mélanges en l'honneur du professeur André Lucas’ Lexis Nexis 2014, 580. 35 Digital works are now offered both as a service, usually from a platform where files are centrally hosted, or as a product, with a full transfer of the file similar to a sale, the latter representing a hybrid that is functionally closer to a distribution than to a form of communication/making available. See: Caterina Sganga, ‘Waiting for Tom Kabinet, a.k.a. Why EU copyright needs digital exhaustion, and how the CJEU can help with this – Part 1’ (Kluwer Copyright Blog, 15 April 2019) accessed 3 September 2019. 36 Eleonora Rosati, Copyright and the Court of Justice of the European Union (Oxford University Press 2019) 122. 37 Judgment of the Court of 12 October 2016, Case C-166/15 Ranks and Vasiļevičs GRUR Int 2016, 1155. 38 Sganga (n 35). 39 Judgment of 23 January 2014, Case C-355/12 Nintendo Co Ltd v PC Box Srl GRUR Int 2014, 285. 40 Andreas Wiebe, ‘The Principle of Exhaustion in European Copyright Law and the Distinction Between Digital Goods and Digital Services’ GRUR Int 2009, 114, 115. 41 Request for a preliminary ruling from the Rechtbank Den Haag (Netherlands) lodged on 16 April 2018, Case C-263/18 Nederlands Uitgeversverbond, Groep Algemene Uitgevers v Tom Kabinet Internet BV, Tom Kabinet Holding BV, Tom Kabinet Uitgeverij BV. 42 Opinion of the Advocate General Szpunar, delivered on 10 September 2019, Case C-263/18 Nederlands Uitgeversverbond,Groep Algemene Uitgevers v Tom Kabinet Internet BV, Tom Kabinet Holding BV, Tom Kabinet Uitgeverij BV. 43 Judgement of the Court (Grand Chamber), 19 December 2019, EU:C:2019:1111. 44 Peter Mezei, Copyright Exhaustion. Law and Policy in the United States and the European Union (Cambridge University Press 2018) paras 182, 191, 195. 45 Ole-Andreas Rognstad, ‘Legally Flawed but Politically Sound? Digital Exhaustion of Copyright in Europe after UsedSoft’ Oslo Law Review 1/2014, 1. accessed 3 September 2019. 46 Wiebe (n 25) 326-327. 47 Article 4 para 2 of the Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs (Codified version). 48 Article 5(c) of Directive 96/9/EC of 11 March 1996 on the legal protection of databases. 49 Article 4 para 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. 50 Article 1(2)(b) of Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission and art 3 of Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC. 51 Case C-403/08 Football Association Premier League Ltd and Others v QC Leisure and Others GRUR Int 2011, 1063, Case C-429/08 Karen Murphy v Media Protection Services Ltd. 52 Judgment of 18 March 1980, Case C-62/79 SA Compagnie générale pour la diffusion de la télévision, Coditel, and others v Ciné Vog Films and others EU:C:1980:84, para 16. 53 See para 136 Murphy, with reference to the judgment of 6 October 1982, Case C-262/81 Coditel SA, Compagnie générale pour la diffusion de la télévision, and others v Ciné-Vog Films SA and others EU:C:1982:334, para 15. 54 See Murphy, para 118, with reference to Coditel I, para 16. 55 Murphy, para 118. 56 Murphy, para 94. 57 Murphy, para 108. 58 Murphy, paras 112, 113. 59 Thomas Riis and Jens Schovsbo, ‘The borderless online user: carving up the market for on line streaming services’ in Paul Torremans (ed), Research Handbook on Copyright Law (2nd ed, Edward Elgar 2017) 307, 309. 60 Murphy, paras 139, 143. 61 Murphy, para 140. 62 Coditel II, para 16 63 Murphy, para 143. 64 Murphy, para131. 65 Murphy, para 199. 66 Murphy, para 204. 67 Miguel Poiares Maduro, Giorgio Monti and Gonçalo Coelho, ‘The Geo-Blocking Proposal: Internal Market, Competition Law and Regulatory Aspects’ (January 2017) Study for the European Parliament upon the request of the Committee on Internal Market and Consumer Protection, 21, with reference to the case Football Association Premier League Ltd Ltd v Luxton [2014] EWHC 253 (Ch). 68 According to the EU Commission’s set of guidelines providing assistance to firms on how to assess the compatibility with art 101 TFEU of vertical agreements falling outside the scope of the Regulation’s safe harbour, ‘“passive” sales mean responding to unsolicited requests from individual customers including delivery of goods or services to such customers. General advertising or promotion that reaches customers in other distributors' (exclusive) territories or customer groups but which is a reasonable way to reach customers outside those territories or customer groups, for instance to reach customers in one's own territory, are passive sales. General advertising or promotion is considered a reasonable way to reach such customers if it would be attractive for the buyer to undertake these investments also if they would not reach customers in other distributors' (exclusive) territories or customer groups’. See: COMMISSION NOTICE Guidelines on Vertical Restraints, Brussels, SEC(2010) 411. 69 Riis and Schovsbo (n 59) 304. 70 To the extent that satellite broadcasters choose to respond to such passive requests, an appropriate price adjustment mechanism is permissible. See: Jenine Hulsmann, ‘Exclusive Territorial Licensing of Content Rights After the EU Premier League Judgments’ 26(3) Antitrust 36 n 1 (2012). 71 Ubertazzi (n 26) 44. 72 On 13 September 2014 the Commission initiated proceedings pursuant to art 2(1) of Commission Regulation (EC) No 773/2004 against, inter alia, Paramount Pictures International Limited (formerly Viacom Global (Netherlands) B.V.), Viacom Inc. (together ‘Paramount Pictures’), Universal Studios International B.V., CPT Holdings, Inc., Warner Bros. International Television Distribution Inc., British Sky Broadcasting Limited (to date ‘Sky UK Limited’) and British Sky Broadcasting Group Plc. (to date ‘Sky Limited’). 73 On 23 July 2015, the Commission initiated proceedings pursuant to art 2(1) of Commission Regulation (EC) No 773/2004 against, inter alia, Comcast Corporation, Colgems Productions Limited, Sony Corporation, The Walt Disney Company, The Walt Disney Company Limited and Time Warner, Inc. 74 Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to arts 81 and 82 of the EC Treaty. 75 Article 101 of the Treaty on the Functioning of the European Union. 76 See: European Commission – Press release, Antitrust: Commission sends Statement of Objections on crossborder provision of pay-TV services available in UK and Ireland Brussels, 23 July 2015 . 77 The Decision makes legally binding the commitments offered by Paramount Pictures International Limited (formerly Viacom Global (Netherlands) B.V.) and Viacom Inc. (hereinafter jointly referred to as ‘Paramount’) under art 9 of Council Regulation (EC) No 1/2003 (‘Regulation (EC) No 1/2003’) in a proceeding under art 101 of the Treaty on the Functioning of the European Union (‘the Treaty’) and art 53 of the EEA Agreement. This Decision concerns the film licensing agreements Paramount has entered into with Sky UK Limited (formerly British Sky Broadcasting Limited) and Sky Plc. (formerly British Sky Broadcasting Group Plc.) (hereinafter jointly referred to as ‘Sky’). See: Summary of Commission Decision of 26 July 2016 relating to a proceeding under art 101 of the Treaty on the Functioning of the European Union and art 53 of the EEA Agreement (Case AT.40023 Crossborder access to pay-TV) (notified under document C(2016) 4740 final) [2016] OJ C 437/5-7. 78 The Decision makes legally binding the commitments offered by Universal Studios International B.V., Universal Studios Limited and Comcast Corporation (together ‘NBC Universal’), CPT Holdings Inc., Colgems Productions Limited and Sony Corporation (together ‘Sony Pictures’), Warner Bros. International Television Distribution Inc. and Warner Media LLC (together ‘Warner Bros.’), The Walt Disney Company, The Walt Disney Company Limited (together ‘Disney’) and Sky UK Limited and Sky Limited (together ‘Sky’) under art 9 of Council Regulation (EC) No 1/2003 (‘Regulation 1/2003’) in a proceeding under art 101 of the Treaty on the Functioning of the European Union (‘the Treaty’) and art 53 of the EEA Agreement. This Decision concerns the film licensing agreements that NBC Universal, Sony Pictures, Warner Bros. and Disney have each entered into with Sky. NBC Universal, Sony Pictures, Warner Bros. and Disney are hereinafter referred to as ‘the Studios’. See: Summary of Commission Decision of 7 March 2019 relating to a proceeding under art 101 of the Treaty on the Functioning of the European Union and art 53 of the EEA Agreement (Case AT.40023 Crossborder access to pay-TV) (notified under document C(2019) 1772) C/2019/1772 [2019] OJ C 132/8-11. 79 In October 2018, Disney also offered commitments to the European Commission in response to the Pay-TV investigation. The remaining studios and Sky UK proposed commitments in December 2018, just after the decision of the General Court in the case Groupe Canal+ v European Commission. 80 Judgment of 12 December 2018, Case T-873/16 Groupe Canal+ SA v European Commission EU:T:2018:904. 81 Groupe Canal+ (n 80) para 44. 82 Groupe Canal+ (n 80) para 45. 83 Groupe Canal+ (n 80) para 48: ‘In that context, where a licence agreement is designed to prohibit or limit the cross-border provision of broadcasting services, it is deemed to have as its object the restriction of competition, unless other circumstances falling within its economic and legal context justify the finding that such an agreement is not liable to impair competition (judgment of 4 October 2011, Football Association Premier League and Others, C-403/08 and C-429/08, EU:C:2011:631, paragraph 140).’ 84 Groupe Canal+ (n 80) para 67: ‘In any event, it must be stated that the considerations set out in paragraphs 53 to 57 above preclude the application of Article 101(3) TFEU, since the relevant clauses impose restrictions that go beyond what is necessary for the production and distribution of audiovisual works that require protection of intellectual property rights and thus do not satisfy at least one of the cumulative conditions laid down in Article 101(3) TFEU, namely the condition that the agreement in question does not impose on the undertakings concerned restrictions which are not indispensable for the protection of those rights (see, to that effect, judgment of 4 October 2011, Football Association Premier League and Others, C-403/08 and C-429/08, EU:C:2011:631, paragraph 145)’. 85 Riis and Schovsbo (n 59) 309 (with reference to judgment of 8 June 1982, Case 258/78 L.C. Nungesser KG and Kurt Eisele v Commission of the European Communities EU:C:1982:211). 86 Riis and Schovsbo (n 59) 309. 87 Riis and Schovsbo (n 59). 88 Pierre Sirinelli and Sarah Dormont, Rapport sur les ventes passives, Mission du CSPLA sur les ventes passives, June 2019, 33 accessed 3 September 2019. 89 The Canal+ judgment (T-873/16), and the end of the Pay-TV Case (or the illusion of precedent) . 90 Yves Botteman and Camille Keres, ‘A Holiday Reading: Pay-TV Case (Finally) Moves Forward’ (Antitrust and Competition Blog, 21 December 2018) accessed 3 September 2019. 91 Juha Vesala, ‘Geoblocking Requirements in Online Distribution of Copyright-Protected Content: Implications of Copyright Issues on Application of EU Antitrust Law’ 25 (3) Michigan State International Law Review 606 (2017). 92 Ciaran Fitzerald Morgan, ‘The legality of geo-blocking: could Sky’s recent commitments in the “Pay-TV” case impact European sports broadcasting?’ (LawInSport, 1 August 2019) accessed 3 September 2019. 93 Case C-132/19 P Groupe Canal+ v Commission (Appeal Case before the General Court T-873/16). 94 Tambiama Madiega, EU copyright reform: Revisiting the principle of territoriality (European Parliament, Briefing September 2015) accessed 3 September 2019. 95 Article 1(2)(b) of the Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission. According to the ‘country of origin’ rule, a satellite transmission is deemed to occur only in the EU country where the satellite transmission is carried out (ie, where the programme signals are fed into an uninterrupted transmission chain leading to the satellite and down to earth). 96 Under this scenario, a service provider would only have to obtain a license from the Member State where the copyright work occurs (country of origin) in order to make available the copyrighted work in the EU. See Madiega (n 94). 97 See, for example, European Broadcasting Union Copyright White Paper: Modern copyright for digital media Legal analysis and EBU proposals (2010). 98 PB Hugenholtz, ‘Copyright without Frontiers: is there a Future for the Satellite and Cable Directive? in Schriftenreihe des Instituts für Europäisches Medienrecht (EMR), Die Zukunft der Fernsehrichtlinie – The Future of the ‘Television without Frontiers’ Directive vol 29 (Nomos 2005); P B Hugenholtz, ‘SatCab Revisited: The Past, Present and Future of the Satellite and Cable Directive’ IRIS (15 August 2012). IRIS Plus 2009-8, 7-19; Amsterdam Law School Research Paper No 2012-42; Institute for Information Law Research Paper No 2012-36 . 99 Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC. 100 The programmes that are covered by the principle are: (a) radio programmes, and (b)television programmes which are: (i) news and current affairs programmes or (ii) fully financed own productions of the broadcasting organisation in an ancillary online service by or under the control and responsibility of a broadcasting organisation. 101 The ancillary services covered by the legislation include simulcasting, catch-up services and other services that complement the main broadcast, such as previews. 102 Article 3 of Directive 2019/789. 103 Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities PE/33/2018/REV/1 [2003] OJ L 303/69-92. 104 Nevertheless, the rules of the Directive may have an indirect impact on copyright law, as the European Court of Justice has on several occasions interpreted copyright notions in light of the Audiovisual Media Services Directive and its predecessor, the Television without Frontiers Directive. See: Research for CULT Committee – Film Financing and the Digital Single Market: its Future, the Role of Territoriality and New Models of Financing, European Parliament, Policy Department for Structural and Cohesion Policies. Directorate-General for Internal Policies, PE 629.186 – January 2019 with reference to: European Commission Guidelines on Vertical Restraints [2010] OJ C 130/1, 52; Joined cases C-403/08 & C-429/08 Football Association Premiere League et al. v QC Leisure et al. & Murphy v Media Protection Services Ltd 2011 E.C.R.I-09083, 9083. 105 Article 14(1) of the revised Directive. 106 Research for CULT Committee (n 104). 107 Regulation (EU) 2017/1128 on cross-border portability of online content services in the internal market of 14 June 2017. 108 Tatiana Synodinou, ‘EU Portability Regulation: In-depth Analysis of the Proposal, Study prepared for the JURI Committee of the EU Parliament’ (EP Directorate General for Internal Policies, August 2016) . 109 Maria José Schmidt-Kessen, ‘EU Digital Single Market Strategy, Digital Content and Geo-Blocking: Costs And Benefits Of Partitioning EU’s Internal Market’ Copenhagen Business School Law Research Paper Series No 19-05 accessed 3 September 2019. 110 Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services [2019] OJ L 136/1-27. 111 European Parliament, ‘Legislative Train – Contracts for Supply of Digital Content and Digital Services to Consumers’ . 112 Article 3(8) states explicitly that ‘This Directive shall be without prejudice to Union and national law on copyright and related rights, including Directive 2001/29/EC of the European Parliament and of the Council. This provision is complemented by analogous references in two recitals. Specifically, recital 20 states that ‘This Directive is also without prejudice to the distribution right applicable to these goods under copyright law’. Furthermore, recital 36 provides that the Directive ‘should also be without prejudice to Union and national law on copyright and related rights, including the portability of online content services’. 113 See: Commission Recommendation of 18 May 2005 on collective cross-border management of copyright and related rights for legitimate online music services [2005] OJ L 276/54-57. 114 Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market [2014] OJ L 84/72-98. 115 Benjamin Farrand, Networks of Power in Digital Copyright Law and Policy: Political Salience Expertise and the Legislative Process (Routledge 2014) 49. 116 Hugenholtz (n 12) 16. 117 Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works [2012] OJ L 299/5-12. 118 Regulation (EU) 2017/1563 of the European Parliament and of the Council of 13 September 2017 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled [2017] OJ L 242/1-5. 119 Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled [2018] OJ L 48/3-11. 120 Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market [2019] OJ L 130/92-125. 121 ibid. 122 Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC. 123 Recital 1 of the Regulation (EU) 2018/302. 124 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market [2006] OJ L 376/36-68. According to this provision: ‘1. Member States shall ensure that the recipient is not made subject to discriminatory requirements based on his nationality or place of residence. 2. Member States shall ensure that the general conditions of access to a service, which are made available to the public at large by the provider, do not contain discriminatory provisions relating to the nationality or place of residence of the recipient, but without precluding the possibility of providing for differences in the conditions of access where those differences are directly justified by objective criteria’. 125 Recital 4 of the Regulation (EU) 2018/302. 126 See art 2(2)(g) of the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market [2006] OJ L 376/36-68. 127 See art 3(1)(5) and Recital 8 of the Regulation (EU) 2018/302. 128 EU Commission, Questions & Answers on the Geo-blocking Regulation in the context of e-commerce, 2018. 129 EU Commission, Questions & Answers on the Geo-blocking Regulation in the context of e-commerce, 2018. 130 According to art 4, para 5 of the Geoblocking Regulation, ‘The prohibition set out in paragraph 1 shall not apply in so far as a specific provision laid down in Union law, or in the laws of Member States in accordance with Union law, prevents the trader from selling the goods or providing the services to certain customers or to customers in certain territories’. 131 Lars Kjølbye, Elisabetta Righini and Peter Citron, ‘EU Adopts Ban On Unjustified Geo-Blocking’ (Kluwer Copyright Blog, 19 March 2018) accessed 3 September 2019. 132 Article 9 of the Regulation (EU) 2018/302. 133 See P Bernt Hugenholtz, ‘Harmonisation or Unification of European Union Copyright Law’ 38 Monash U. L. Rev. 4 (2012). 134 Communication from the Commission on a Digital Single Market Strategy for Europe, COM(2015)192 final, 6 May 2015, part 3, para 1.2. 135 Giuseppe Mazziotti, ‘Is Geo-Blocking a Real Cause for Concern in Europe?’ (2016) EUI Department of Law Research Paper No 2015/43 accessed 3 September 2019. 136 Simonetta Vezzoso, ‘Geo-blocking of Audio-visual Services in the EU: Gone with the Wind?’ (Competition Policy International, 13 January 2019) accessed 3 September 2019. 137 European Commission, Preliminary Report on the E-commerce Sector Inquiry, SWD (2016) 312 final, Table C. 6, 227. 138 In this context, the CJEU in the case Commission v Spain found that Spain violated the freedom of movement of EU citizens when applied different conditions for the visit to museums for Spanish and other EU citizens. Even though a pan European right of trans-border access to culture has not been explicitly affirmed in this decision, an implicit link of the freedom of receive services and of the freedom movement with the access to cultural goods has been recognised. See judgment of 15 March 1994, Case C-45/93. 139 For a general overview, see Valentine Korah, Intellectual Property Rights and the EC Competition Rules (Hart Publishing 2006); Jarrod Tudor, ‘Compulsory Licensing in the European Union’, 4 (2) Geo. Mason J. Int’l Com. Law 222-258; Hanna Stakheyeva, ‘Intellectual Property and Competition Law: Understanding the Interplay’ in Ashish Bharadwaj, Vishwas H Devaiah, and Indranath Gupta (eds), Multi-dimensional Approaches Towards New Technology (Springer 2018) 3-19. 140 See judgment of 6 April 1995, Joined Cases C-241/91 P and C-242/91 Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v Commission of the European Communities EU:C:1995:98; Case C-418/01 IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG EU:C:2004:257; Case T-201/04 Microsoft Corp. v Commission of the European Communities EU:T:2007:289. 141 Jeffrey Church and Roger Ware, ‘Network Industries, Intellectual Property Rights and Competition Policy’, in Robert D Anderson and Nancy T Gallini (eds), Competition Policy and Intellectual Property Rights In the Knowledge-Based Economy (University of Calgary Press 1998) 227, 230-239. See also Mauro Squitieri, ‘Refusals to License Under European Union Competition Law After Microsoft’ (2012) 11 (1) Journal of International Business and Law accessed 3 September 2019. 142 Ricketson and Ginsburg (n 25) 815. However, mechanical recording licenses exist in few Berne countries, but not to the EU Member States, since the Directive 2001/29 does not leave room to the Member States for such a general statutory license. See Paul Goldstein and P Bernt Hugenholtz, International Copyright: Principles, Law, and Practice (Oxford University Press 2019) 378. 143 See Appendix to the Berne Convention ‘Special Provisions Regarding Developing Countries’. 144 Article Vbis of the Universal Copyright Convention. 145 Matthias Leistner, ‘The Requirements for Compulsory Dependency Licenses: Learning from the Transformative Use Doctrine in Copyright Law’ in Reto M Hilty and Kung-Chung Liu (eds), Compulsory Licensing: Practical Experiences and Ways Forward (Springer 2015) 232. 146 Guide to the Rome Convention and to the Phonograms Convention, WIPO 1981, 17. 147 Jorge L Contreras and Anne Layne-Farrar, ‘Non-discrimination and FRAND commitments’ in Jorge L Contreras (ed), The Cambridge Handbook of Technical Standardization Law, Competition, Antitrust, and Patents (Cambridge University Press 2017). 148 Mathew Heim and Igor Nikolic, ‘A FRAND Regime for Dominant Digital Platforms’ JIPITEC 10 (1) 2019 accessed 3 September 2019. 149 Lionel Bently and others, Intellectual Property Law (5th edn, Oxford University Press 2018) 679. 150 JL Contreras, ‘A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens’ 80 Antitrust Law Journal 39, 45 (2015). 151 Srividhya Ragavan, Brendan Murphy and Raj Davé, ‘FRAND v. Compulsory Licensing: The Lesser of the Two Evils’ 14 Duke L. & Tech. Rev. 83 (2016) accessed 3 September 2019. 152 In Re Mallet's Patent (1866) 4 Moo PC (NS) 175, 179; 116 ER 282, 284. 153 David J Brennan, ‘The First Compulsory Licensing of Patents and Copyright’ 17 Legal History 1-45 (2017) assessed 3 September 2019. 154 Contreras and Layne-Farrar (n 147) 186-208. 155 Dennis W Carlton and Allan L Shampine, ‘An Economic Interpretation of FRAND’ 9 Journal of Competition Law & Economics 546 (2013). 156 Organisation for Economic Co-operation and Development, Directorate for Financial and Enterprise Affairs Competition Committee, Licensing of IP Rights and Competition Law (OECD, 29 April 2019) 21 accessed 3 September 2019. 157 Ricketson and Ginsburg (n 25) 816. 158 Ricketson and Ginsburg (n 25) 816, with reference to the decision of the German Patent Court in the: Case No 3 Li 1/90 (EU), 7 June 1991. 159 Silke von Lewinski, ‘Rental and Lending Rights Directive’ in Michel Walter and Silke von Lewinski, European Copyright law, A commentary (Oxford University Press 2010) 324. 160 Judgment of 6 February 2003, Case C-245/00 Stichting ter Exploitatie van Naburige Rechten (SENA) and Nederlandse Omroep Stichting (NOS) EU:C:2003:68, para 46. 161 ‘Royalty stalking’ occurs when cumulative royalty rates cannot be kept at reasonable levels when there are several licensors of essential patents on the same standard. Each licensor is expected to seek a too high a royalty rate, ignoring the fact that stacking high royalties would hamper the demand for standard compliant products. See: Yann Ménière (author) and Nikolaus Thumm (ed), ‘Fair, Reasonable and Non-Discriminatory (FRAND) Licensing Terms, Research Analysis of a Controversial Concept’ (European Commission, 2015) 14 accessed 3 September 2019. 162 According to this provision, ‘… in the absence of voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law in accordance with Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned’. The Directive does not specify the kind of measure to be taken. In this context, some Member States have introduced a system of mediation or similar alternative dispute resolution systems. See Walter and von Lewinski (n 22) 1072. 163 Specifically, para 9 of art 17 states that ‘Member States shall also ensure that out-of-court redress mechanisms are available for the settlement of disputes. Such mechanisms shall enable disputes to be settled impartially and shall not deprive the user of the legal protection afforded by national law, without prejudice to the rights of users to have recourse to efficient judicial remedies. © Published by OUP and CH Beck on behalf of GRUR e.V. All rights reserved. For permissions, please email: journals.permissions@oup.com and GrurInt@ip.mpg.de This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) TI - Geoblocking in EU Copyright Law: Challenges and Perspectives JF - GRUR International: Journal of European and International IP Law DO - 10.1093/grurint/ikaa001 DA - 2020-02-01 UR - https://www.deepdyve.com/lp/oxford-university-press/geoblocking-in-eu-copyright-law-challenges-and-perspectives-80cCwwSMiN SP - 136 EP - 150 VL - 69 IS - 2 DP - DeepDyve ER -