Digital content can be purchased nowadays principally in three ways:
- downloadable files (being e.g. mp3 or executable programs)
- data carriers like DVD, Blueray, etc. shipped by mail
- online streaming usually for visual content
Looking at the post-purchase situation
- there are no legal constraints to move legally correctly purchased data carriers or downloadable files with you from one country to the next
- if you sign up for an online streaming service in one country and want to see it e.g. during a trip in another country it is quite typical that the service is not available
Looking at the pre-purchase situation
- for downloadable files and streaming, a cross-border purchase usually does not work (I tried e.g. with Amazon Spain to purchase a certain mp3 (spanish film musik) while being in Spain and it did not work with my German account - although other stuff I could purchase - I had to open a Spanish account. From Germany obviously it did not work at all)
- DVDs and Bluerays (except for English and in my case German) in foreign languages are usually not available locally for purchase. Rarely you find a DVD with Spanish language track here
The European Commission for the Interior Market and Services is presently investigating this and asking for public and company opinion because it is contrary to the free mobility of services in the EU. The licensing regulations at national level are clearly intended to limit access and make the data content more profitable.
I personally believe that it also constitutes discrimination because it withholds easy access to multi-language diversity - something the European Commission acknowledges as well.
I certainly know the case of C-403/08 Karen Murphy but does anybody also hold other legal knowledge or theories?
Dear Walter Demmelhuber,
I would like to help you, but the topics of your question are, unfortunagely, outside my competence and research areas.
Best regards,
Harald Biong
Hello,im sorry but he legal side of your request is not in my field of knowledge
best regards
Claudio
Hi - an interesting issue indeed!
At first blush, the perceived inconsistency between being able to carry a physical DVD across a border, but not being able to stream the same content in a different Member State, arises out of the fact that in the streaming case, the consumer in fact only purchases a licence to view the content, not a copy of the content itself. Licences can however (in the present stage of development of EU law) be subject to territorial restrictions, whereas to sale of goods (DVDs), exhaustion of copyright applies once they are placed on the market somewhere in the Union - i.e. the rights holder cannot object to them being exported to, or even resold in, a different Member State.
Case C‑128/11 UsedSoft contains a discussion of some of the issues.
Kind regards,
Carsten
Hello Carsten,
thank you for your contribution. Several questions arise out of it:
- from which bases do you conclude that at the present stage of EU law licensing can be limited to territory (see link enclosed)? C-403/08 indicates the opposite
- purchasing an mp3-file from Amazon in Spain (or not being allowed to) would also be rather a physical device than streaming because you purchase the right over the file
What I would logically accept that one cannot oblige a Spanish streaming company to offer also a German audio track (even when it were available but the company did not purchase the licence). But it cannot limit the streaming to paying customers from one country. There is no logic behind at all and it is an artifical barrier errected by the industry, nothing more infringing (in my opinion) the free movement of goods. With the same argument a company could say I only sell to Spanish nationals whereever they are ...
http://www.bbc.co.uk/news/business-17150054
Hello again, Walter,
The subject is clearly quite convoluted and I cannot claim that I have a clear logical path through it; the ECJ certainly doesn't as far as I can see.
In response to your specific additional queries:
- There is a real question to what extent private companies are bound by the free movement provisions. Cases 58/80 Dansk Supermarked and C-281/98 Angonese are the only ones that I am aware of which clearly suggest that they are, and they don't seem to have been followed for a while. (Does anybody know of others?) Insofar as it dealt with the freedom to provide services, C-403/08 Murphy/QC Leisure/FAPL did not concern the contractual restriction by the rights holder, but rather Member State legislation (see para 86 and point 3 of the operative part).
- I wouldn't be so sure that downloading an mp3 file triggers the free movement of goods rather than freedom to provide services, though C‑128/11 UsedSoft may be helpful to your view here in that it may not matter for exhaustion purposes. But the question of whether exhaustion occurs doesn't really affect the prior issue of whether a private commercial undertaking (Amazon, presumably prompted by the relevant rights holder) is allowed to "discriminate" on the basis of where the download is requested from. I.e. again the question of whether private companies are bound by the fundamental freedoms. The protection of IP rights (which probably happen to be territorial) would in any event appear to provide a justification (see e.g. para 94 onwards of C-403/08).
I am certainly on your side as regards the irritation and annoyance caused by not being able to access online information/streams when travelling. A real pain for anyone wanting to watch football matches while abroad! I also share your doubts about whether a company would get away with discriminating on the basis of nationality - but that is covered by the more general Art 18 TFEU, and secondary legislation. Indeed, the Services Directive (2006/123) prohibits discrimination on the basis of nationality, and even residence.
But not allowing a service provider to restrict the places of supply (of a download) seems a step further: to take an extreme example, should you as a consumer really be able to force the Spanish plumber you met on holidays to come to your home in Germany to fix your shower (even if you are prepared to fully reimburse all travel expenses)?
Best wishes,
Carsten
Hello Carsten,
the best example where the EU meddles with private enterprises is in reducing and actually starting in 2016 killing roaming cost for mobile phones.
Another example would be that grey imports of cars are completely legalized and what a mess the car manufacturers made out of this in the beginning.
So why should this not apply to digital content?
Regards, Walter
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