Did you #AskAnsip? Is
#Digital4EU for you? You have until March 24, May 8 or early
September to shape proposals for the #DigitalSingleMarket.
You could be forgiven for thinking that the "Digital Single
Market" was just about eliminating mobile roaming charges,
watching football or copyright reform. These are the most
prominent features of the initiative, but by no means where it
begins and ends. The stakeholder event in Brussels on February
24 (#Digital4EU) made clear that this is in fact aimed at
completing the European single market, with digital as the
imperative demanding this transformation. As ever, some simple
phrases and ideas carry powerful consequences.
Geo-blocking and consumer access
In fact there will be several areas where businesses need to
consider the implications for their IP quite carefully, and how
their corporate structures and business models in Europe may
need to change. For now let’s focus on two of
these simple but powerful ideas:
- A prohibition on geo-blocking
- Consumer access to pricing and promotions across all
Commissioner Ansip (pictured below with Robert Madelin) has
consistently attacked geo-blocking and is committed to banning
it within the EU. In his
speech on 24th he set out his case again:
Far too often, consumers find themselves redirected to a
national website, or blocked. I know this from my own
experience. You probably do as well...
In the offline world, this would be called discrimination.
In the online world, it happens every day...I want to pay
– but I am not allowed to. I lose out, they lose
out... There should be no exceptions. Everyone should be
treated the same.
The focus has been on access to audiovisual content services
such as iPlayer and Netflix and on copyright licensing issues.
Access to pricing and promotions in shopping across borders is
regularly raised as well, but none of these issues has ever
been discussed in the context of trade marks or on-line sale of
Web traffic is routinely diverted to localised sites based
on location and language. Some companies allow users to
manually change this, while others prevent access to sites
targeted at other locations. This might not to be a deliberate
effort to deny me access to a German special offer, just an
over-zealous piece of code aimed at localising my experience.
Redirecting customer browsers to local versions of sites could
well fall foul of an overbroad regulation of geoblocking.
How brands are affected
investing in a redesigned web presence, perhaps based around a
newly acquired TLD, needs to think about how a pan-European
site might have to function in this future.
In fact, given the increasing personalisation of advertising
and sales, and the pervasive use of geolocation in digital
services, consumers may find it harder than ever to find the
pricing and promotions offered to other citizens because this
is done directly to each consumer. Brands and retailers should
consider what non-discrimination might mean for their business
and give input to the Commission and member states.
How will these policies accommodate identical national trade
marks in different ownership or territorially licensed
community marks? This is pretty close to the copyright issue.
Passive cross-border sales are nothing new, but that concept is
going to be stretched as sales through international e-commerce
platforms or located via search and comparison tools
increasingly bring these arrangements into conflict or
coexistence. Faced with a highly litigious split of rights,
might a company want to protect itself by rejecting traffic
from some territories, only to be faced with customer claims of
Existing businesses need to consider that the way their
current subsidiaries are established may well need to change as
well. Paying bonuses based on national sales and proving
marketing money for local promotions will become increasingly
at odds with single market objectives and create compliance
risks. Operationally this is the corollary to the Commission
plan to enable a start up to set up a single entity to trade
Other areas for action where IP is worth considering include
the reconsideration of vertically restrained supply chains and
the retooling European industry with digital technologies
(Industry 4.0). 3D printing is the most commonly cited example
of this, but the performance data flowing back to machine
producers will contain know-how that was previously contained
within factory walls. Safe harbours for startups and incentives
for sharing economy business models are other powerful ideas
which can bring great benefits but need wide business input as
they are developed.
What should you do now?
"Post your views – research
papers, blogs, screenshots, just a few lines –
whatever you feel is most relevant and appropriate."
Timelines set by the European Commission are extremely
ambitious. Ansip will present to the college of Commissioners
on March 24. A communication is intended to be issued in early
May followed by legislative proposals in September. Brand
owners need to identify the positive impact of these plans on
their business as well as any unforeseen consequences and make
their views heard in capitals and in Brussels.
The web and Twitter are being used as consultation tools. A
Digital4EU website has been created for gathering views to
feed into the final DSM strategy. As Ansip himself says: "Post
your views – research papers, blogs, screenshots, just
a few lines – whatever you feel is most relevant and
The authors are directors and co-founders of Elipe
Limited, IP and digital policy consultants. They tweet at