Is geo-blocking a real cause for concern in Europe?

Author: Giuseppe Mazziotti (Trinity College Dublin)

Abstract
Geo-blocking is a still widely pre-dominant business practice in Europe not only in traditional broadcasting markets, and in the context of the on-demand online services that traditional broadcasters have progressively developed, but also in the context of purely web-based content services giving access to music, sport events and other types of protected works. The clearance of rights for the legitimate offering of these services still occurs on a country-by-country basis, in a way that geo-blocking can be viewed also as a set of technical measures aiming to avoid copyright infringement. This paper draws on recent judgments of the CJEU that raised doubts about the legitimacy of licensing practices aimed at partitioning markets along national borders (Premier League) and analyzed the enforceability of the exhaustion principle in the digital environment, with specific regard to computer programs (Usedsoft v Oracle). As regards exhaustion, the paper finds that this principle, because of its applicability just to sales of goods, would not be a realistic and desirable solution to foster the development of pan-European online content deliveries, which should be regarded as services. When it comes to absolute territorial exclusivity, the paper concludes that, to ensure and strengthen legal certainty and to allow a plurality of business models, with a different geographical scope, EU lawmakers could clarify the conditions under which certain licensing agreements and geo-blocking measures may be regarded as suitable and legitimate, also for the purpose to protect cultural diversity and support the creation of works having no or little international appeal.

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