Geo-blocking and portability – an update for the audio-visual sector

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

On 25th of May, the Commission published its latest raft of proposals aimed at furthering its Digital Single Market strategy. A key aspect of this was its proposed update to the Audio-Visual Media Services Directive. See our analysis of that proposal here. In addition, the Commission published proposals on geo-blocking including a draft regulation ("Geo-blocking Regulation").

Geo-blocking Regulation

The media sector will be pleased to hear that audio-visual content services are excluded entirely from the scope of the draft Geo-blocking Regulation that was published last week. The exclusion covers "audiovisual services, including cinematographic services, whatever their mode of production, distribution and transmission, and radio broadcasting".

This is not surprising given the change in tone from the Commission in recent months (the focus shifted to the outlawing of "unjustified" geo-blocking some months ago) and the work done by European producers and distributors to educate the Commission on the role that territorial licensing plays in the financing of independent films and TV series.

However other services "the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter" are captured – such as services making available e-books, online games or music. These services are though excluded from the key requirement of the proposed Regulation i.e. not to apply different general conditions of access for reasons related to the nationality, place of residence or place of establishment of the customer. This exclusion is set to be reviewed 2 years after the entry into force of the Geo-blocking Regulation.

For more information, read our update for the audio-visual sector: "Geo-blocking and portability".