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The new US order about net neutrality and Internet, and the impact upon Europe

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The FCC, the US regulator for telecoms and Internet, will soon adopt a fundamental decision in the matter of telecom and Internet regulation: as anticipated by various sources, US broadband access will be soon classified as a telecommunication service (while it is currently classified as an information service)  with a twofold consequence:

– FCC will be empowered to impose net neutrality rules to US broadband ISP, and intends to do so: fact is, FCC intends to prohibit blocking, throttling and paid prioritization of online services;

– FCC will be empowered to impose access remedies to broadband ISP such as pricing control, ULL and bitstream, in other words to open their network to alternative operators like it happens now in Europe (NB: chairman Wheeler has specified that this power will no be enforced for the time being).

It is clear that the FCC is playing with the American ISPs the stick and carrot game, where the stick consists in the new NN regulation, while the carrot is the guarantee not to apply access regulation to broadband access. US IPS are scared about the possibility to apply access regulation to their networks and have loudly claimed that they could stop fibers investments if FCC does so.

While the FCC decision is destined to provoke an intense debate in the US, it is interesting to see whether it could influence similar debates in the EU, or vice versa.

Net neutrality

The EU is getting closer and closer to define a NN regulation. The Council is currently discussing a text which, after long months of debates, should be finalized by February 2015 so as to be submitted to the European Parliament and European Commission for the final negotiation and approval. In a previous post I remarked that the Council draft was too much telco-oriented and would have probably faced opposition or reserves by the European Parliament as well as by some directorates of the European Commission. Whatever the Council will finally agree, it is certain that the new US position will affect the balance of the European negotiations. The European Parliament will surely attack the paid prioritization proposed by the Council, on the basis that this practice is destined to be prohibited in US. Whatever the compromise will be, the Council will have to offer in return a more robust guarantee for best effort Internet. The Parliament will also feel stronger in advocating some symbolic amendments, such as an explicit reference to net neutrality and openness of the Internet. To sum up, the new FCC position on NN will surely help the European Parliament to defend its citizens-friendly approach.

Access regulation and competition

As stated above, the new classification of broadband in the US would theoretically permit an application of economic regulation to American ISPs, such as pricing control, ULL access and so on, although this possibility has been loudly excluded for the time being. It is therefore uncertain how this approach could impact on European policy, where access regulation is imposed in practice and not only in theory. The European Commission will start to revise the European framework in 2016 and there are strong pressures by historical incumbents (such as Orange, Telefonica and Deutsche Telekom) to lift regulation in order to boost investments (although the link between regulation and investments is controversial and challenged by many). In this respect, a paramount role will be played by the comparison of European and US data/figures relating to BB performances such as investments, speed, coverage, price, quality, consumer satisfaction and so on. In the past big US telcos such as Verizon and AT&T have loudly claimed that the US broadband market should be more successful than the Europea one, at least in terms of profits and network/fibers investments. Nevertheless, more recent data have radically challenged this assumption: various voices has shown that US consumers pay BB more expensive than in the EU, and the quality is not better. Also the debate about network investments has become more controversial, since it has been shown that with the Bush’s deregulation in the 2000 the percentage of revenue dedicated by US ISPs to investments has decreased. Only the profitability data resist for the time being: US ISP make more profit than European ones.

In light of the above, if the comparison of US/EU data will show that EU is performing better than US, despite the burden of internal fragmentation, it is possible that the EU access regulation approach will be endorsed by the US authorities, rather than vice-versa.

The European reform of net neutrality: time for bazaar negotiations

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The European Union is getting closer to a common position for a European regulation on net neutrality. The Latvian presidency, who started to lead the Council in January 2015, circulated a draft proposal* which received a substantial support by other governments – although a final agreements still need to be reached – and it is now under discussion article by article.

It is premature to say whether this proposal will result in a final framework for net neutrality in Europe. In fact, a few fundamental areas of disagreement persists within the Member States, while the European Parliament it expected to object the current draft, which looks very different from the text deliberated by the same Parliament in April 2014. My impression is that the Council is voluntarily preparing an unbalanced proposal in order to have more margins of maneuver while negotiating with the European Parliament. Exactly for the same reasons why the Member States are proposing to end roaming in 2018 instead of 2015, contrary to what advocated by the European Parliament. This is what we call “Bazaar negotiations“.

The pending disagreement within the Member State: Zero Rating

The main problem is how to address the so-called “positive discrimination”, also named as “Zero Rating” models. This is the model whereby, in data caps subscriptions (i.e. when the ISP limits the quantitative usage by subscribers), the traffic of some privileged services is discounted by the customer’s allowance. Users my be induced to use such privileged services for the sample reasons that their traffic data allowance will not be affected, irrespective of the value/quality of the alternatives. Clearly, this is a way permitting an ISP to favor some services (which in return are paying the ISP) while discriminating others. The impact of this practice on the market will probably depends on the level of the allowance, the price structure of the offers and mainly with respect to traffic-consuming services such (as streaming). The worst scenario (if any) would consist in a 2-tier Internet environment: by using the positive discrimination, dominant ISP could create a basket of premium services which subscribers will normally use, unless they prefer to use alternative services whose traffic, however, must be counted in the normal allowance.

European citizens are not familiar with such practices, because data caps offers are still rare and mostly confined in the mobile sector. Facebook tried to launch this system in African countries in order to facilitate the rise of Internet services (and trying to become the dominant platform for that). However, European dominant ISP are seriously testing this option, which seems for them less problematic than the specialized/managed service option. An example is the Zero-Sporify of T-Mobile. To time, we know that Zero-Rating is prohibited and the Netherlands and Slovenia, the only European countries where a national net neutrality legislation is in force. Accidentally, both in the Netherlands and Slovenia local ISPs have been fined by the national authorities for practices infringing net neutrality also in connection with Zero-Rating tariffs schemes.

Thus, how to address Zero-Rating is still an area of disagreement amongst Member States: there is no majority in the Council to insert an ad hoc provision, or even a prohibition, however there is a blocking minority able to influence the final outcome of the reform.

The potential disagreement with the European Parliament

Should the Council find an agreement, one would wonder whether the expected draft may be ever agreed with the European Parliament. The latter made a position in April which was very strict with regard to the treatment of specialized/managed services, since it laid down a clear (and even very detailed) definition, while requiring that connectivity dedicated to such services to be clearly distinct from that used for the open Internet (best effort). By contrast, the Latvian Presidency leaves ISPs free to do whatever they want, upon the sole condition that the basic Internet access “is not impaired”. This guarantee seems to many authors, and especially libertarians, too weak.

The reference to the term “net neutrality” was also deleted from the text, despite the wishes of the European Parliament – a decision which is not terrible per se (since the content of the “net neutrality” term still needs to be defined”) but having however a strong symbolic impact. It is worth-noting that already in last November an important number of MEPs, lead by Dutch liberal MEP Schaake, wrote a letter/manifesto complaining with the relaxation of NN rules by the Council (in that case, the author of the crime was the Italian presidency). a

The Latvian Presidency also re-introduced the unlimited freedom for ISPs to impose data-caps offers to consumers and therefore allowing the former to develop Zero-Rating offers. Therefore, unless the Council finds a way how to treat with this problem, the European Parliament is expected to challenge that part of the proposed reform.

What next?

The Latvian Presidency seems confident to find an agreement within the Council by February, so as to start Trilogue negotiations quite soon. In order to be able to strongly negotiate with the European Parliament, they will need the European Commission to back the Council’s position. Would Kroes be still there, this wouldn’t be a problem (the Dutch Commissioner was eager to close the package at all costs). However, with the current institutional system the situation becomes more complicated: while Commissioner Oettinger, responsabile for DG Connect and relatively closer to big telecoms, is expected to support the Latvian proposal, a more complex position may come from Ansip, the Vice-president responsabile for the Digital Single Market. Ansip has publicly spoken in favor of the open Internet and he will like back the concerns risen by citizens and libertarian associations.

The European Commission stops easy consolidation in the telecom markets

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The European Commission has started a Phase II investigation regarding an envisaged concentration in the Spanish telecommunications market, regarding the acquisition of Jazztel (a pure fixed operator) by Orange (a Spanish subsidiary of the French incumbent delivering both fixed and mobile services). The decision to open the investigation has been published via a PR.

This case it quite interesting because it is the first time that the competitions offices of the European Commission raise doubts about a merger between altnets in a fixed market. Normally concerns have been raised frequently only in the mobile market (although deals have been finally authorized with remedies) or in the fixed market, when the merger concerned the incumbent (like in the Nordic markets). So far, a pure merge between fixed alternative operators did not encounter any particular issue (for instance, some fixed operators have been bought by Vodafone, recently in Germany).

Why DG COMP is taking now a different views?

Firstly, the Spanish fixed market is highly concentrated, with few independent ISPs competing amongst them and with the incumbent. Spain is similar to France and Portugal, where similar level of market consolidation already exist, but less to Italy, Germany and UK, where there are still plenty of operators (especially in the UK). Thus, a national merger in a high concentrated market creates a competition alert for the European Commission.

Secondly, the Spanish market is driven by triple/quadruple play offers. Therefore, the reduction of competition resulting from the merger may not be compensated by potential new entrants, unless the latter may also compete on the mobile side. This is however unlikely, since the number of mobile operators is limited by frequency scarcity, and there is no effective obligation to grant MVNO access to competitors.

How could it end up?

It is difficult to believe that the European Commission will ban the proposed merger, one should however wonder which remedy could be proposed to let the operation to go through. There might be various hypothesis:

– a MVNO access obligation on the merged entity (such as happened in the latest mobile mergers in Germany, ireland and Austria)

– a light fixed access obligation on the merged entity (this would be a leading case, then)

– a request to the Spanish telecom regulator CMT to promptly review market regulation, with possible outcome resulting in regulation over incumbent Telefonica (or other operators operators, if a collective dominance is found).

Whatever will be the result, the signal launched by the offices of DG COMP is clear: against the political mantra whereby the European telecom sector needs consolidation – at all cost – to increase margins and profits, the antitrust supervisor reminds that competition and consumer interest cannot be affected at all. This is not a change of view by the side of DG COMP, which also with Almunia was reluctant to authorize national mergers (instead of cross-borders ones), although they did it at the end. The new Competition chief, the Danish Vestager, seems to say that the time of political compromises is ended and that competition is not a matter to be driven by politicians.

Que viva roaming (until 2020 and even further)

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Roaming surcharges within the EU should end one day, but we do not know when exactly. For the time being, European citizens will continue to pay roaming surcharges abroad at least until 2020 and even further, despite the fact that European medias have frequently reported, in the last months, about the imminent end of international roaming.

In April 2014 the European Parliament, amending the Single Telecom Market (“STM”) of Commissioner Kroes, proposed to definitively abolish roaming surcharges by end of 2015. The Parliament’s proposal was then submitted to the Council, i.e. the body that within the European Union represents the governments of the Member States, however an agreement was not found until now. A next meeting of the Council is scheduled for November 27, 2014, however most signals indicate that the national governments will just discuss about the progress of the negotiations, while no decision is expected to be taken.

In the meanwhile, there was a leak from the Presidency of the Commission, namely a letter sent by president Junker to all EU commissioners in which each of them was required “to examine all pending proposals in [your] area and to signal those which we should review together, for example because they have no realistic chance of being adopted in the near future, or because the degree of ambition achievable does not match the objectives sought.” Many observers have recognized that such kind of instructions will likely bring to the withdrawal of the STM proposal, including the roaming reform. In fact, many parts of the STM proposal are really controversial (net neutrality, spectrum) and also the roaming chapter is struggling to find a consensus. In addition, the entire STM proposal appears far from being able to establish a Single Market for telecoms, since the initial proposal of Kroes was weak and controversial, then it was drastically modified and down-watered by the European Parliament and the Council. Under such circumstances, and considering the letter addressed by the Presidency, the withdrawal of the STM proposal, including the roaming reform, appears quite likely.

If this will happen, roaming surcharges will continue to be regulated by Regulation 531/2012 (the so called Roaming III) providing for regulated caps (i.e. maximum level of prices that mobile operators may not exceed) until a review is made. It possible that the European Commission will start to work quite soon, by mid-2015. Since the new draft would require public consultation and opinions by other bodies, the Commission’s proposal is expected to be likely submitted to the Parliament and Council by mid-2016. The following legislative process with Council and Parliament should take at least 18 months year, which means that formal adoption may be expected – if we are lucky – by the end of 2018. I am saying that we need some good luck, because the legislative draft of the roaming reform may include also other subjects, like net neutrality, spectrum competition ecc, which may further delay negotiations and final adoption.

Should the new regulation adopted by end of 2018, the abolition of roaming will not be immediate, more likely a glide path from 12 to 24 months may be provided. Thus, roaming surcharges will likely continue to be applied until 2019/2020.

In addition, even in case of formal abolition, one could presume that substantial parts of international roaming will continue to survive in any case. In fact, the main stakeholders and Berec are currently discussing a mechanism named “fair use” whereby, whenever the international roaming will end, the abolition will only concern a predefined package of traffic (for example: 24 hors of traffic for voice, 1 Giga for data ecc). Should the communications exceed the fair usage package, then roaming surcharges will continue to apply.

To sum up, whatever the European institutions enthusiastically declare, the way to the end of roaming surcharges is still very long. The market could, however, find a solution before operators and regulators are able to propose something workable. Manufacturers such Apple and others may in the future offers data roaming packages at flat rate vai multi-carriers SIM or specific applications. Of course, it must be seen whether such providers will be able to negotiate affordable wholesale access agreements with mobile network operators and whether these offers may need special regulatory compliance. For sure, from now up to 2020 the market will invent something.

Broadband rural development: the “déjà vu” from the European Commission

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While people are still speculating about what will be the approach of the new European Commission to boost investments in broadband, Mr. Oettinger – the (German) commissioner for the Digital Agenda – launched a provocative proposal via his blog: in order to boost investments in rural areas, one should limit consumers’ choice by restricting the possibility to switch to another operators (lock-in) and/or exempting investing operators from regulation. According to Oettinger “wouldn’t it be better to have the option of broadband with a longer contract, than not to have broadband at all?”.

For sure, this declaration will shake the debate in Brussels well before to see the concrete proposals tabled by the new Junker Commission. Truly speaking, Oettinger’s proposal only addresses rural areas where objective reasons (small density, wide territory) for investment actually exist; however it is clear that many operators (Deutsche Telekom in primis) will soon flag this idea as a general solution for the BB market.

The most surprising aspect of this declaration is that Oettinger consider his idea to be a”fresh” one, as he ignored the last 5 years of regulatory debate in the EU. Just to remind, during the Kroes’ mandate (2010-2014, RIP) the European Commission embraced the mantra that competition could be a little sacrificed in exchange of more investments. This mantra was reflected in a deregulatory agenda with took place via the new Relevant Market Recommendation, the new NGA recommendation, the Connected Continent proposal and so on. While Kroes’ proposals shaked a lot the regulatory and conference debates in Brussels, the real market was basically indifferent, since broadband penetration and investements in Europe remained quite stable. There were lot of fibers announcements (so-called fibers to the press release) but less in practice, and depending on the country. The main effect of Kroes’ policy was to migrate the investments from FTTH to FTTC (i.e. shortening the fiber deployment to the streets cabinets, rather then up to house-holdings), because many operators, mostly incumbents, found more convenient to invest less in fibers and continue to exploit the monopolistic profits of the last mile made of copper. That’s BB Kroes’ heritage in peanuts.

The reason why this deregulatory solution could work in rural areas is still not clear. Oettinger says that it worked in the energy sector, where in facts similar proposals were made for very depressed areas in emerging countries. Maybe he referred to some zones of Germany, where some local municipalities are providing electricity in small territories. We do not know exactly, since his post provides for little explanations about. Oettinger says that “in some limited cases, for new pipelines, companies can be exempted from the requirement to provide competitors with access to pipelines. This is only given if they can convince the EU Commission that without that exemption the investment would not have been made”.

In any case, broadband is a bit different from energy. Most rural areas in the EU are considered niches markets and are frequently covered by small, alternative operators of any kind, with different business models: fixed, wireless, satellites, privates, municipalities, dark fibers providers, ecc. There is no clear evidence that regulation may be The Obstacle for operators, especially incumbents, to invest. It seems more a problem of margins: a big operator like Deutsche Telekom, with 235.000 employes and related costs, needs to concentrate on rich areas. A small flexible operator may have the costs structure to try the venture in niche areas, and the same for municipalities which also have to pursue a public objective. The main players, by contrast, prefer to stay in metropolitan/high density areas for obvious reasons, irrespective of regulation.

The lesson coming from US confirms this scenario: the main US operators, such as AT&T and Verizon, have massively invested in areas where they had to counter the competitive presence of the cable operators (Comcast and TW) providing Internet access. Outside of these areas very little was made, including rural areas, despite the fact that broadband access is fully deregulated in US.

This proposal would therefore not change too much in European rural areas, however it will be welcomed by European incumbents as a first step to enhance deregulation and remonopolization of BB markets in general. Oettinger seems aware of this and tries to avoid too rapid conclusions: “The needs of a dense city with rich competition may be different to those of an unserved rural area“. Thus, It will mainly depend on the concept and ambit of “rural areas”. Somebody in Brussels will soon argue that Tiergarten as well as Villa Borghese should be regarded as rural areas – at the end, there is lot of green there.

A final comment: Oettinger seems to say that an expensive, maybe crap, and not changeable BB may be better than no BB at all. It could be. However, there might be better solutions, like using public funds, financing pure network infrastructures with access to any service providers, leaving to citizens the property of their last miles, ecc ecc. The debate is open.

How Obama’s view on net neutrality may influence the European net neutrality reform

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The recent intervention of President Obama in the matter of net neutrality sounded like a bomb in the US ongoing reform of net neutrality. We all know that following the judicial case won by Verizon in January, FCC’s chief Tom Wheleer was in the process to revise the current NN system, searching for a solution which could meet the wishes of telcos and cables companies (asking for paid prioritization and commercial discrimination in general), while keeping for the FCCs some kind of final word. Lastly, he proposed a kind of “hybrid” solution that not everybody understood. Obama’s intervention has clearly shaked this scenario and chased pavements for new developments. Although the FCC is an independent body and does not have to follow instructions from the White House, we believe that Wheleer will have somehow to revise his draft proposal. The first result, for the time being, is that the reform has been postponed: FCC press secretary Kim Hart just announced that “there will be no vote on open internet rules in the December meeting agenda. That would mean rules would now be finalised in 2015.

Whatever the final outcome of the FCC reform will be, it is interesting to speculate how the new US scenario may somehow impact on the European debate about net neutrality.

US telcos lobbying in the EU about net neutrality: an history of pioneers

In general, NN debates on both side of the Atlantic have been reciprocally linked, with the major US stakeholders massively lobbying the EU institutions (since 2006/2007, when the last European regulatory review started) with the aim to implement their NN vision in Europe and get, as a result, a favorable outcome to present back to the US, and so being able to influence the FCC. It is worth noting that the NN lobbying efforts of company like AT&T and Verizon in Europe and in the EU has been huge, considering that such companies have no residential business in the old continent and therefore should have nothing to gain there in terms of network management policies and so on.

Also US OTT (Google and so on) have been lobbying in Brussels for the same reasons of US telcos (but with different scopes). However, in the last years such efforts became less visible because of the complex relationships of such operators with NN principles.

European telcos have normally not made the vice-versa, i.e. lobbying in US in order to have a result to use in Brussels to influence European institutions. However, European incumbents, such as Deutsche Telekom, Telefonica and Telecom Italia, have frequently lobbied the EU institutions flagging the US deregulatory solution as the example to follow in Europe. Now that the wind has changed in Washington, both European and US incumbents will have to reconsider their tactics in front of the European institutions.

The European reform of net neutrality

Few limited NN provisions already existed in the current 2009 European regulatory framework. Successively, a more robust proposal of reform of net neutrality – welcomed by most telcos and incumbents operators – was tabled by the European Commission on September 2013 within the Connected Continent proposal. That draft is still pending but, it is worth-noting to say, the amendments tabled successively by the European Parliament and the views recently expressed by the Council have radically changed the initial scenario. The reform resulting out of the latest proposals, including the view of the Italian Presidency, seems much more close to the interests of citizens and libertarians: general and more robust non discrimination obligation; formal requirements for specialized services; guarantee for best effort Internet.

Since the views flagged by Obama mainly focus on re-classification (aka regulation) of the Internet, as well as prohibition of paid prioritization, it is interesting to see how such proposal may be reflected in the European draft reform.

(i) Re-classification of Internet

The idea to classify Internet as a “public utility” and therefore to potentially apply telephony rules to the Internet may be disruptive in US but non in the EU. This re-classification means, in US, that networks providing Internet access may be subject to regulation in general, not only for consumers scopes (net neutrality) but also for competition reasons, so as to become available for access request by other operators. This perspective is feared by US telcos which currently enjoy a local monopoly in the last mile for Internet access (but not for telephony), since their networks are rarely competing with each others in that segment, with the result that the ordinary US consumer has normally no possibility to choose and change ISP: he/she just have to take the sole telcos and/or cable arriving to the premises. In this respect, it is interesting to see that cable company Comcast welcomed that intervention of Obama, with a sole significant exception: “There is one important technical legal difference of opinion between the President and Comcast: we do not support reclassification of broadband as a telecommunications service under Title II.” So, the problem is there.

By contrast, the European 2009 framework for electronic communication services provides that all networks, irrespective whether fixed or mobile, supplying voice, data ecc, may be regulated if there is a competitive failure recognised by a national authority. This is the reason why access rules to networks such as ULL and bistream normally exist in the EU and allow a plurality of alternative operators to offer Internet and data connectivity also through some parts of the incumbent networks (the last mile). One could argue how this regulatory difference impacted on the developemnt of telecom networks in US and EU respectively. For sure, EU citizens enjoy more choice and better prices than US consumers, as recently claimed by the american press.

(ii) Paid prioritization

Obama objected the possibility for US ISP to provide “fast lanes” for specific specific services in exchange of remuneration, on the assumption that this discrimination would enable telcos and ISPs to pick the winner in the Internet market. The Internet should remain neutral, meaning that information and services (not bits!) should be treated in the same way, apart from some reasonable exceptions. This position is fundamentally important for the US market because, in the absence of competition in the last mile and without possibility for users to change ISP, any telco could de facto, by simply deprioritizing non-agreed services, limit the offer of online services which may be selected and enjoyed by consumers.

Again, the above scenario should have a more limited impact in the EU, as far as the existing competition in the Internet access, guaranteed until now by access regulation, should prevent incumbents telcos and ISP from imposing to users a basket of preselected services. Should an incumbent ISP impose selected prioritized services to its consumers, they could theoretically switch to another ISP. It is worth-noting, however, that switching ISP is not as easy and automatic as people believe, since the consolidation of certain markets – in particular mobile, where ISP are going to be reduced from 4 to 3 network operators, which tend to have aligned commercial policies – may reduce this chance for consumers. However, the threat of loosing “switching” customers is still a concern for dominant ISPs in the EU and currently it constitutes the best working remedy against non-neutral commercial practices, at least in the fixed sector, where the plurality of ISPs is more enhanced.

The Connected Continent proposal mentions specialised services (i.e. the European equivalent to paid prioritization) and make them subject to specific definition and conditions, including the guarantee that best effort internet should not be affected. In other words, paid prioritization is part of the foreseeable European NN package and it is unlikely that it will disappear.  More likely, guarantees for the best effort will be reinforced as a consequence of the Obama’s position.

In any case, the competitive and regulated access scenario in the EU should minimize the detriment for users, unlike US.

Conclusions

To sum up, Obama’s intervention will have a strong political impact in the European NN debate, on one side because of the historical link between US and EU when debating about NN, and on the other side because an opinion coming from such a prominent person, even if non European, cannot be ignored so easily. Left-winding national governments and left-winding parties will have to take into account of the Obame’s view, even if it not completely confirmed by the FCC at the end. The influence of the Obama’s position will operate at very high political level, while the consequences in practice may be less significant than expected, because of the different regulatory and competitive scenario in US and the EU respectively.

From hyperlinks to embedded videos: not a copyright infringement, EU court says

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A landmark decision has been adopted by the Court of Justice of the European Union (CJEU) in the matter of Internet and copyright. The new case concerns embedding a video without the consent of the right-holder, also for commercial purposes.  According to the CJEU, this behavior does not constitute an infringement of copyright law when the video is already publicly available in the Internet, since no additional public is reached by way of the embedding, and provided that the work is not altered in any way.

The decision of the Court echoes a similar case, the Svensson case, which concerned hyperlinks. Also in this case, while admitting that hyperlinks constitute a kind of “communication to the public” according to the copyright framework, the court said that no infringement occurred since the linked content was already available in the web and therefore the hyperlink was not deemed to distribute the work to a “new public”.

My understanding of the case is that the video must be public because of the intention of the right-holder, who eventually uploaded on a public platform (such as Youtube, as in the most of the case). The parallel with the Svensson case lies lies in these terms. By contrast, should the video be present on a platform without the consent of the right-holder, I would say that embedding should not be allowed or further clarification is needed.

The CJEU made its decision by way of a simple order, i.e. an intermediary act which is easier to be adopted instead of a formal decision. The reasons for the choice to use such an instrument could be that the judges considered the case very easy and did not find necessary to pass through the formal procedure provided for a final decision. This means that some uncertainty may still submits whether the case is definitively closed here or not.

Whether it was an easy case or not, it is a matter of opinions. From the point of view of common sense, it is obvious that the behaviour at stake could not be seen as a copyright infringement. However, the current copyright framework is less obvious than people believe, since these rules have been normally conceived and applied in the traditional analogue off-line world, and therefore any further application in the Internet regularly results in dramas. Also because of the deliberate litigation strategy of most of the copyright-holders.

Whatever the judge believe, this is an important decision in the matter of copyright, because developing the Svensson rationale in order to solve other copyright issues may costitute an important signal for the incoming reform of copyright by the new European Commission entry into force as from November 1st, 2014.

The order of the CJEU (dated October 21, 2014) can be found here for the time being, since it has not been published yet on the website of the court. It will be published only at the end of October, and only in French (formal language of the CJEU) and German (language of the proceeding).