Digital Content Licensing: Licensing and access arrangements between competition law and sector-regulation

Research output: Book/ReportPh.D. thesis

Copyright is territorial. But is the Internet? The Internet has changed the way we
consume copyright-protected material. Yet, territorial segmentation of online content is a reality in the 28 EU Member States. Licensing and access practices do not reflect the digital reality, in which end-users demand ubiquitous access. The territorial nature of copyright, and business models traditionally based on national exploitation collide with the borderless nature of the Internet. This is argued to hamper the development of new business models as well as the goal of the European lawmaker to complete the Digital Single Market (DSM).

National and European authorities and legislators have created a host of – often industry- and sometimes business model-specific – initiatives, proposals and rules in order to facilitate the DSM and reconcile it with the territorial nature of copyright and its business practices; in part accompanying, refining or codifying industry-led solutions. In this – despite the novel nature of Internet uses and business models – traditional stress field, competition law and policy and copyright overlap and interfere.

This thesis probes the different regulatory (legislative and non-legislative) initiatives, which support the facilitation of multi-territorial licensing and cross-border access to content. It investigates the regulation of two online markets, which have recently been subject to scrutiny by the EU institutions: the audiovisual and the music sector, both addressed by ex ante sector specific legislation and ex post control under competition law. The research finds – regarding both multi-territorial licensing and cross-border access but to a varying degree – that the interplay between harmonisation efforts and competition proceedings has been helpful in mitigating the effects of licenses based on territoriality and thereby enabling cross-border dissemination. The thesis, however, reveals and criticises that this interplay has not always been coherent.

The research suggests that more coherent measures are necessary in order to reduce frictions in the licensing arrangements and to enable cross-border access, and furthermore that the regulatory interventions to date may have been more driven by a competition and subsidiary a harmonisation agenda than a focus on the consumers and innovative service providers.

Keywords: copyright licensing, cross-border access, sector-regulation, competition law, Directive 2014/26/EU, Premier League and Murphy, geo-blocking, portability

JEL classifications: K11, K29, L86, O34
Original languageEnglish
Place of PublicationKøbenhavn
PublisherDet Juridiske Fakultet
Number of pages279
Publication statusPublished - 2016

ID: 171797079