Free Movement of Audiovisual Content for Benefit of European Consumers of Culture

One of the EU’s founding premises was the establishment of the internal market, in which the free movement of goods, persons, services and capital is ensured. However, in the present online era, the internal market remains far from frictionless. To address this failure, the EU launched the Digital Market Strategy in 2015. One component of this strategy is the removal of barriers for the flow of online content across borders. This article highlights the fact that free movement of audiovisual online content is of paramount importance for European end users, and an important component for the free movement of persons in the EU. Free movement of audiovisual content would enable Europeans who have migrated to another European country to access content from their home country. In addition, the free flow of audiovisual online content would serve the interests of various language minorities. Serving the end users of audiovisual content in this manner would be in line with important objectives of the EU, such as the protection of European cultural diversity and the public sphere. This article notes that when the EU has regulated digital audiovisual markets, the emphasis has been on the protection of copyright-related interests. This has meant that other stakeholder interests linked to cultural diversity and non-discrimination have been undervalued and played only a limited role. The article posits that, with regard to audiovisual content, more weight than before should be given to the free movement of persons and to minority language rights. This would also align with achieving a digital single market in audiovisual online services.


Introduction
One of the founding premises of the European Union (EU) was the establishment of the internal market. This is defined in Art. 26(2) of the Treaty on the Functioning of the European Union (TFEU) as ''an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured''. 1 However, in the present online era, the internal market remains far from frictionless. To address this failure, the EU launched the Digital Market Strategy in 2015. 2 One component of the Digital Market Strategy is the removal of barriers for cross-border online content, including audiovisual offerings. Even though the free flow across borders of audiovisual content offerings, such as broadcasting services, can and has been evaluated to some degree under EU primary law -the TFEU provisions on the free movement of services -there appears to be some specific obstacles to the circulation of services in the online environment. 3 Legal scholars have suggested that, to remedy the present troublesome situation, the EU should even adopt new freedoms, in particular the free movement of digital content. 4 It seems indeed that changes in the technological landscape have created extra challenges for the crossborder availability of digital content, although the development of digital technologies creates expectations for the opposite, namely the assumption of easier access and availability of digital content for end users throughout the EU.
This article highlights the fact that free movement of audiovisual online content is of paramount importance for European end users. It is important not only for free movement of services, but also for free movement of persons in the EU. Free movement of audiovisual online content would enable Europeans who have migrated to another European country to access content from their home country. The availability of such services across borders could be an additional smoothing factor for migration, and thus beneficial for the free flow of workers within EU. 5 In addition, the free flow of audiovisual online content would serve the interests of various language minorities who reside across national borders in the EU, such as the Sami people in the Nordic countries. Serving the end users of audiovisual content in this manner would not only serve the ideals of free movement and the digital single market, but also be in line with other important objectives of the EU, such as the protection of European cultural diversity and the public sphere.
In addition to the TFEU's four freedoms, the EU Charter of Fundamental Rights 6 (''the Charter'') contains provisions that support the arguments for audiences to have cross-border access rights to audiovisual content. Art. 22 of the Charter provides that the EU must respect cultural, religious and linguistic diversity. This provision has been relevant in the EU's secondary legislation related to media, including audiovisual legislation. 7 Non-discrimination of minorities is guaranteed by Art. 21 of the Charter. In addition, the right to freedom of expression and information in Art. 11 of the Charter is highly relevant for the end users' rights of access to audiovisual content. Freedom of expression and information protects not only speakers' rights, but also the audience's right to receive information. 8 This article notes that when the EU has regulated digital audiovisual markets, priority seems to be given to protecting copyright-related interests, namely the protection of intellectual property under Art. 17(2) of the Charter. This tendency, where economic rights -like the protection of intellectual property and freedom to conduct a business -are emphasised, can also be seen in the practice of the ECJ when it balances various fundamental rights in copyright law cases. 9 This has led to a situation where other types of fundamental rights including freedom of expression and information are undervalued and play only a limited role. The article posits that, when the EU regulates audiovisual markets, more weight should be given to end users' access rights as well as, inter alia, to freedom of expression and information and in some situations also to minority language rights. This approach would likewise be more in line with the TFEU's provisions on free movement, in particular on the free movement of services contributing to the achievement of a digital single market in audiovisual online services.
When regulating digital audiovisual markets, in addition to the TFEU's free movement provisions and the various fundamental rights connected with stakeholder interests, a number of other factors that impact on the regulatory scheme need to be taken into account. Such factors include technological developments intertwined with changes in the competitive structures that have an impact on various stakeholder expectations and prospects. One example is the ongoing change from traditional TV-signal distribution channels to digital and consumer-tailored channels, which is blurring the boundaries between broadcasters, telecommunication operators, and various online services. These service providers form an important interest group in audiovisual markets in addition to the copyright content industry and end users. The question arises whether regulation should be technology-neutral, or whether there is a need to regulate differently the various forms of broadcasting technologies and video-on-demand types of services. 10 The ongoing digitalisation creates new opportunities for service providers to offer a variety of content and services to satisfy consumers' cultural needs online. These changes also shake up the competitive structures of the audiovisual markets. 11 Different types of audiovisual service providers compete more than ever to catch audiences' attention. 12 Even though the distribution technologies and differences between various service providers may not be critical from the end user's perspective as such, market segmentation based on the boundaries of national borders limits the possibilities for European end users to access their preferred online content across national borders. A large proportion of online content is subject to geo-blocking and is provided only for viewers residing in a designated area. Such practices apply not only to online TV content but also to content provided by video-on-demand services like HBO and Netflix. These audiovisual services are provided on a country-to-country basis. This is because the agreements between content producers, in other words copyright holders, and service providers are normally negotiated on a territorial basis, thus restricting the content that can flow across national borders. These restrictions are caused not only by the territoriality of the copyright protection of the content but, more importantly, also by the copyright industry's practice of partitioning the 10 Different broadcasting technologies include at least terrestrial, cable, satellite, IPTV and OTT. IPTV refers to TV/radio over closed-circuit IP-based networks. See Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, COM (2016) 594 final, p. 2. OTT (over-the-top) is another platform deploying IP for the delivery of audiovisual content. This refers to delivery of TV content by best-effort internet. The OTT services cover on-demand services like Netflix and HBO. Henten et al. (2020), p. 5. See more on technical definitions, for example, Muikku and Argillander (2016), pp. 11-13. 11 One example of a very recently filed competition law case is Sanoma v. Yle, pending before the EU Commission. In this case, a Finnish media company, Sanoma, which offers inter alia commercial television broadcasting services in Finland, claims that Yle, the Finnish public service broadcasting company, infringes EU rules on state aid. One basis for the claim is that Yle's online video-on-demand (VOD) offerings go beyond its public service remit. 12 See, for example, Mazziotti (2021), p. 209. markets into national territories. 13 This commercial practice prevails even though audiovisual content could easily be provided across national borders by means of current technology. This not only stands in contrast to the digital single market ideal but also has a negative impact on migrants' and language minorities' possibilities of accessing cultural content important for their identities. Language is an important element of identity construction, and media magnifies the power of language. 14 Non-access to media content in one's own language can be seen as a form of discrimination, producing inequality within societies. It is particularly harmful for low-income migrants who are denied access to cultural content in their mother tongue. 15 The same applies to indigenous peoples, such as the Sami, who are dispersed across national borders and have traditionally also crossed current state borders and moved home periodically while herding reindeer. For such groups of people, the possibility of preserving their ethnic culture through various forms of online activities is of vital importance. 16 This article presents a critical review of the recent legislative changes that aim to enhance the cross-border online audiovisual markets in the EU but in practice remain limited in their scope. The relevant aspects of the evolution of the broadcasting markets and applied technologies will be discussed, in order to illuminate changes that fuel consumers' expectations to access their preferred cultural content online -irrespective of their country of residence. The point of departure for the analysis is the end users' expectations for broader cross-border availability of online audiovisual content and how copyright-related interests and justifications inhibit the circulation of such content. In this article the main focus will be on the tension between the interests of the copyright content industry and those of the end users. In addition to these stakeholders, TV broadcasters and other types of audiovisual service providers form a relevant interest group when audiovisual markets are regulated. Their role in negotiating on the availability of audiovisual content protected by copyright, and clearing rights in respect of their services, in order to meet end users' expectations, is elaborated on in the article also. The focus of the article will be copyright and media law, not competition law. 17 In copyright law research, it has long been recognised, for example by Elkin-Koren, that the end users' perspective has not been given sufficient attention. Instead, the perspective of copyright holders' and the control of the latter over 13 The absence of a Europe-wide copyright code, i.e. the fact that copyright rules differ from country to country in Europe, has been claimed as one reason why copyright licensing takes place on a territorial basis. In this way, content providers and service providers are able to ensure that their offerings are in compliance with local legislation. However, in the EU, the copyright rules are harmonised to such an extent that this may not be the main reason for the partitioning of the markets. See Trimble (2019), pp. 477-479. However, Hugenholtz and Poort, for example, highlight that the unitary protection of copyright would be an important factor for removing the territoriality of copyright. Hugenholtez and Poort (2021), p. 176. 14 Sheyholislami (2010), p. 290. 15 Reda (2020), pp. 84-87. 16 Gribanova and Nevzorov (2017), p. 77. 17 For competition law issues related to the theme, see, for example, Vesala (2019). content protected by copyright have been emphasised in policy decisions and legal research. 18 A recent and much debated example is the creative industries' forceful lobbying when the EU legislator was drafting the Directive on Copyright in the Digital Single Market (DSM Directive). 19 During this process, it became clear that there is a need to analyse fundamental issues in copyright legislation and doctrine so as to ensure that all relevant interest groups and society at large are taken into account. 20 Likewise, in the context of this article, one can easily identify challenges caused by the current copyright legislation and the power it gives content owners to inhibit the circulation of content. It is the content owners who have the bargaining power, and their refusal to license, or occasionally the excessive licence fees they charge, limits service providers' possibilities for providing online services with preferred content catalogues to the consumer base they may deem relevant. The copyright industry's additional power in lobbying becomes clear when one identifies how legislative proposals related to online audiovisual markets have changed to be more in line with the copyright industry's demands during legislative processes. For example, the copyright industry's objections to enhancing online availability of audiovisual content can be seen already in the Impact Assessment conducted as background for the Online Broadcasting Directive (sometimes also referred to as the ''NetCab Directive''). 21 Later, even the Commission's proposal was watered down. These factors have led to a situation where consumer demand and expectations, even when recognised, remain unserved. Such an outcome is unsatisfactory for consumers of audiovisual content. 22 The clash between these interest groups can be explained also by dissecting the different ways of defining audiovisual markets. The market definition that relies on copyright industry's territorial licensing is different from market definitions based on geography of consumer demand and taste or linguistic geography. And whenever the boundary of the official market, which is one layer of market definition, is regulated anew, it generates opposition and conflict. 23 The tension and differences between the copyright industry's and consumers' interest in defining European audiovisual markets and how it is regulated is brought into focus in this article.  130, 17.5.2019, pp. 92-125. 20 De la Durantaye (2021). 21 Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC, OJ L 130, 17.5.2019, pp. 82-91. 22 The copyright content industry's approach to proposed legislative changes aimed at improving copyright clearance for online television offerings was that there was no need for legislative action. The public service TV broadcasters and consumers considered that there was a need for EU-level legislative action. Impact Assessment (2016), p. 24. 23 Lobato (2020), pp. 54-55. After this introduction, Sect. 2 of this article analyses the initial legislative impetus for the cross-border availability of audiovisual content. This part focuses on the time frame before online markets and explains the legislative techniques adopted that aimed at Europe-wide broadcasting markets. The same legislative techniques have proved useful also when addressing the free flow of content in an online environment. Therefore, Sect. 2, focusing on the time frame from 1989 to 1993, provides a perspective on the later legislative developments in the online era and also illuminates how digitalisation has in fact been a drawback for the availability of audiovisual content. Section 3 analyses the first wave of legislative changes related to the cross-border online audiovisual markets under the EU's Digital Market Strategy, by analysing the shortcomings in the Portability 24 and Geo-Blocking Regulations, 25 enacted in 2017 and 2018. In essence, the Portability Regulation enables travellers who are temporarily in another EU country to get access to the subscribed content selection of their home country. Consequently, its scope of application is very limited, as it does not grant permanent migrants such access rights or the right to access content in other EU countries. The shortcoming of the Geo-Blocking Regulation is that, in the end, it does not in any way cover audiovisual content. Therefore, even though the Geo-Blocking Regulation prohibited unjustified geo-blocking as a form of discrimination, the ban does not currently apply to audiovisual content at all.
Given these shortcomings, it was clear that further legislative action was necessary to advance the objective of free flow of audiovisual content. The most recent legislative updates seek to give consumers broader cross-border online access to broadcast audiovisual content. These legislative updates are analysed in Sect. 4. Firstly, the Online Broadcasting Directive creates new rules for specific online delivery and retransmission of broadcast content. In addition, the DSM Directive seeks to enhance copyright licensing mechanisms for the video-on-demand services. These most recent legislative changes still have to be implemented in many EU Member States, although the deadline for national transposition was summer 2021. In Sect 4, we will evaluate how even these most recent rules are far from satisfactory for achieving the free movement of audiovisual online content. Concluding remarks and suggestions for a way forward will be provided in Sect. 5. addressed more traditional broadcasting technologies, free-to-air, satellite and cable television. Yet, the TWFD framework was already aiming for free movement of television programming across the EU Member States. Already in the preamble to the TWFD, borderless broadcasting markets were tied with the TFEU provisions on free movement of services and considered as a manifestation of the fundamental right of freedom of expression. 26 The aim was to broaden the markets for European broadcasters. 27 To achieve borderless broadcasting markets, the ''country of origin'' principle was introduced to cover content, but this did not yet tackle copyright-related issues. Under this principle, broadcast content is only regulated in the country of origin, notwithstanding the fact that broadcasting signals cross national borders and are received in other countries as well. 28 Under the TWFD, the receiving country is allowed to prevent the circulation of the content in very specific cases only. 29 The TWFD has been updated several times and the latest revision of it is the Audiovisual Media Services Directive (AVMSD), 30 which updates the content regulation to take account of later technological developments, namely non-linear audiovisual services like video-on-demand. Yet the main idea of this framework has remained the same. Content regulation is focused on protecting consumers, in particular minors, and setting quotas for European and independent production, with the aim of encouraging and protecting European production. 31 The quotas, while connected to economically reasoned protectionism, are also connected to the protection of European cultures and identities. 32 By means of quotas, this framework has an important role in regulating diversity of content, including language diversity, for European viewers. 33 In addition, through the country of origin principle, this regime is also an important pillar for the functioning of cross-border audiovisual markets. 33 Such an objective is to some extent also connected with the assumption that regulating content diversity also leads to a diversity in consumption. Valcke (2011), p. 287. However, quotas have been criticised on the basis that they do not always comply with the editorial aims of specific TV channels. This may mean that it becomes difficult to differentiate between TV channels, potentially leading to less diversity in this sense. Besio et al. (2008) p. 181.
This initial legislative framework took into account the technological and market developments at that time, for example the new delivery systems of cable and satellite television and pay television. 34 Even though the country of origin principle as applicable in TWFD, and later in AVMSD, resolves some conflict between legal provisions for delivered content, it does not resolve the territoriality of the copyright-related issues relating to broadcast content. To tackle the copyright challenge, the Satellite and Cable Directive (SatCab Directive) 35 was implemented soon after the TWD.
Recitals 3 and 4 of the SatCab Directive highlight the fact that broadcasts transmitted across borders constitute one of the most important ways of pursuing the objectives of the EU (Community), one of these being an internal market for services. Moreover, it is recognised that the objectives are at the same time political, economic, social, cultural and legal. The recitals connect this secondary legislation to the TFEU's free movement principles and cultural objectives. On a more practical level of enabling free movement of broadcasts and to tackle the territoriality of the copyright, the SatCab Directive operates a country of origin rule. Under the SatCab Directive, the country of origin principle is applied to delivery by satellite technology. The country of origin in this context is a legal fiction under which the broadcasting of copyrighted content is understood to take place in the Member State where, ''under the control and responsibility of the broadcasting organization, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth'' (Art. 1(2)(b) SatCab). The country of origin principle under the SatCab Directive is sometimes referred to as the ''emission principle''. 36 Because of this legal fiction, for satellite transmissions, broadcasters only need to acquire copyright licences for the country of origin of the broadcast signals. This is an important tool in addressing the territoriality of copyright licences. Under this rule, the copyrightrelevant act, communication to the public, takes place only in the country of origin. However, the applicable law otherwise is not designated. The objective of this rule is to remove one copyright-based need for partitioning the EU markets into territories. 37 It also limits the copyright holder's control to a certain degree. Under the country of origin principle, broadcasting markets in satellite technology could in principle be pan-European, which is an important objective of the SatCab Directive. 38 It is also noteworthy that nothing prevents copyright holders from taking into account in their licensing fees the larger European audiences for 34 Preamble to the TWFD. 35 Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, OJ L 248, 6.10.1993, pp. 15-21. 36 Trimble (2020), p. 51. 37 Rosen (2021), p. 157. 38 Access to satellite-broadcast content can be encrypted, meaning that the end user may, for example, have to pay a subscription-based fee in order to receive a decoder to view such content. The EU has a specific directive in place for protecting such equipment against illegal actions: Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access. OL L 320, 28.11.1998, pp. 54-57. satellite-broadcast content. In particular, recital 17 of the SatCab Directive provides that, ''in arriving at the amount of the payment to be made for the rights acquired, the parties should take account of all aspects of the broadcast, such as the actual audience, the potential audience and the language version''. 39 Consequently, market-based considerations and some level of contractual freedom between copyright holders and service providers are maintained, although one legislative obstacle for cross-border satellite transmissions is lifted by this rule. 40 Even though a clear objective of the SatCab Directive is to enable cross-border availability of satellite transmissions and the creation of pan-European markets, contractual freedom between the copyright holders and service providers enables exploitation rights to be limited (recital 16). This has made territoriality-based licences for satellite broadcasts commercially possible even after the introduction of the SatCab Directive. However, contractual freedom is not without its limits under EU law. In the FAPL/Murphy cases, these limits came under scrutiny from the ECJ.
In the FAPL/Murphy cases the licence agreements between the content providers and broadcasters allowed a broadcaster to provide service solely for the public of the Member State where the broadcast took place. Broadcasters were under an obligation to ensure that their satellite transmissions could be received only in that State. Consequently, the broadcasters had to encrypt their transmissions and supply decoding devices only to persons resident in the Member State of the broadcast. 41 However, the ECJ held that national legislation that made use of foreign decoders illegal was against the free movement of services under Art. 56 TFEU. 42 The ECJ recognised that the free movement of services was hampered by territorial restrictions in licence agreements between content providers and broadcasters. This was further reflected in contracts concluded between broadcasters and their customers. However, when national legislation conferred legal protection on those contracts, it also restricted the freedom to provide services. 43 In these cases, the ECJ highlighted that the freedom to provide services was for the benefit of both providers and recipients of services. 44 Consequently end users' access rights were 39 Rosen (2021), p. 157. 40 It is noteworthy, that this contractual freedom may be limited by competition law rules. In the FAPL/ Murphy cases the ECJ held that ''the clauses of an exclusive licence agreement concluded between a holder of intellectual property rights and a broadcaster constitute a restriction on competition prohibited by Art. 101 TFEU where they oblige the broadcaster not to supply decoding devices […] outside the territory covered by the licence agreement concerned''. Football Association Premier League Ltd and Others v. QC Leisure and Others (C-403/08) and Karen Murphy v. Media Protection Services Ltd (C-429/ 08), para. 146. The aim of these clauses was to partition the markets by limiting the availability of decoding devices across borders. 41 Football Association Premier League Ltd and Others v. QC Leisure and Others (C-403/08) and Karen Murphy v. Media Protection Services Ltd (C-429/08), para. 59. 42 Under the Conditional Access Directive, such national legislation was not prevented. Football Association Premier League Ltd and Others v. QC Leisure and Others (C-403/08) and Karen Murphy v. Media Protection Services Ltd (C-429/08), para. 74. 43 Ibid, paras. 88-89. 44 Ibid, at para. 85. considered important.
The ECJ continued that the free movement of services could be limited if the restriction could be objectively justified. It was highlighted that a restriction on fundamental freedoms guaranteed by the Treaty could not be justified unless it served overriding reasons in the public interest, was suitable for securing the attainment of the public interest objective it pursued and did not go beyond what was necessary in order to attain it. The ECJ referred to its settled case-law and held that protection of intellectual property could form a justified reason for such restriction. 45 However, under settled case-law, restriction cannot go beyond what is justified for protecting specific subject matter of intellectual property. This is to ensure, through the granting of licences in return for payment of remuneration, the protection of the right holders' right to commercially exploit the marketing or making available of the protected subject-matter. However, the right to renumeration only guarantees a right to appropriate renumeration, which must be reasonable in relation to the economic value provided by the service. The ECJ referred to Recital 17 of the SatCab Directive, which makes it possible for a right holder to take into account in their licence agreements the size of the actual audience. Moreover, the use of decoding devices allows the number of viewers of a broadcast, whether in or outside the Member State of broadcast to be determined with a very high degree of precision. 46 However, in these cases concerned, a premium was also paid to right holders in order to guarantee the broadcasters' absolute territorial exclusivity. This resulted in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference were considered irreconcilable with the fundamental aim of the Treaty, which is the completion of the internal market. Therefore, the premium was not regarded as forming part of the appropriate remuneration. Such a premium went beyond what was necessary to ensure appropriate remuneration for the right holders. Consequently, a restriction on the use of foreign decoding devices was not justified for the protection of intellectual property in these cases. 47 The national legislation that conferred protection on these restrictions was against the provision on the free movement of services. In addition, the agreements were against competition law. 48 44 Ibid, at para. 85. 45 Ibid, paras. 89, 93-94. 46 Ibid, paras. 106-113. 47 Ibid, paras. 114-117. 48 These contracts were considered to infringe also EU competition law, Art.101 TFEU: ''[A]n exclusive licence agreement concluded between a holder of intellectual property rights and a broadcaster constitute a restriction on competition prohibited by Article 101 TFEU where they oblige the broadcaster not to supply decoding devices enabling access to that right holder's protected subject-matter with a view to their use outside the territory covered by that licence agreement.'' Ibid, para. 146.
In the FAPL/Murphy cases, the ECJ also highlighted that the aim of both the TWFD and the SatCab Directive was the transition from national markets to a single programme production and distribution market. 49 It is noteworthy that the ECJ referred both to TFEU provisions on the free movement of services and to the objectives in the secondary legislation to form a single EU broadcasting market. In these cases the partitioning of markets with artificial price differences connected with the territorial exclusivity in the licence agreements went against internal market principles and objectives. The protection of intellectual property could not justify this.
These cases show that, with the TFEU provision on free movement of services, one can tackle some commercial practices on territorial licensing. However, the EU's secondary legislation also formed an important element in the analysis. Yet these cases show that, even though the aim of the SatCab Directive is a single EU market, the achievement of this objective is still to a degree dependent on commercial practices between copyright holders and broadcasters. It depends on how they will use their contractual freedom within the limits of EU law. Consequently, one can not achieve borderless markets solely through legislation. Yet legislation is an important element in removing some difficulties related to the licensing.
In addition to the legal fiction of country of origin, the SatCab Directive introduced a mandatory collective licensing mechanism to foster licensing possibilities for cross-border delivery and reduce transaction costs related to bargaining. A mandatory collective licensing system is available for cable retransmissions of broadcast content when the transmission is simultaneous, unaltered and unabridged (Art. 1(3)). A mandatory collective licensing system under the SatCab Directive means that rights are exercised only through collective licensing organisations, and right holders individually do not have a say on whether to grant or reject a cable retransmission right. Collective licensing organisations exercise the rights also on behalf of right holders that are not members of the collecting society (Art 9(1)). The system resembles a compulsory licensing system. 50 Due to these legislative techniques and enabling technologies, European broadcasters' programmes are able to flow more easily across borders and reach media consumers in various EU countries. It is noteworthy, however, that the mandatory collective licensing mechanism applies on a territory-to-territory basis, because there is no pan-European collective licensing system available for audiovisual content. 51 Both of these rules tackle copyright-related issues by decreasing the cost of transactions. Already, through these rules, programmes may flow more easily across national borders. In essence, they mitigate a hold-out situation based purely on 49 Ibid, para. 121. 50 See also, Guibault and Jacques (2021) pp. 171-172. 51 For music, there is a possibility for a multi-territory collective licensing system for online uses under Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market Text with EEA relevance OJ L 84, 20.3.2014, pp. 72-98. However, this system is not functioning smoothly either: see further, for example, Guibault and Jacques (2021). copyright holders' decisions. On a legislative level, the country of origin rule overrides copyright territoriality, as it would enable the EU-wide dissemination of content with a licence for one territory. For a mandatory collective licensing arrangement to facilitate pan-European licences in cable retransmissions, it would be necessary to create a system for multi-territorial licensing. 52 Another shortcoming under the SatCab Directive is that the country of origin principle and mandatory collective licensing regime are not applicable to broadcasters' online activities at all, but only to more traditional broadcasting technologies. These rules are tied to particular types of technologies and therefore have become somewhat outdated for today's internet-based online services and consumers' viewing habits. Such outdated rules, in particular, have inhibited the cross-border availability of audiovisual content online. The audiovisual content may be available through satellite or cable technology from other countries but not through online technologies, even though consumers have become more inclined to view content online. So far, acquiring rights for online delivery has been more complicated than for delivery by means of other technologies. This has been a controversial issue, as utilisation of digital technologies is usually assumed to bring easier access to and broader availability of content for consumers.
Alongside these early legislative changes aimed at cross-border flow of broadcast content, the EU's telecommunication sector was opened up for competition, which led to the privatisation of many state-owned broadcasting companies. 53 Consequently, the competitive landscape changed as a result of both privatisation and the new enabling technologies for borderless transmission, which enabled new players to enter the markets. These competitive changes were fuelled by the supporting legislation, but led to a number of competition law cases, in which commercial broadcasters challenged the privileged situation of the public broadcasting companies. 54 Competition for end users' attention emerged as part of the game. However, during this era, end users were still conceived merely as passive audiences, not so much as individual consumers making distinct choices. This was due to an environment where broadcasters had the power to make decisions about the content they provided as well as the timing when they delivered it. The technological and legislative landscape was based on linear delivery of audiovisual content, which is evident also, for example, in the SatCab Directive's requirement for retransmission to be simultaneous. Audiences were to a large extent bound by the programming schedules fixed by the broadcasters. At the time, consumers also lacked efficient systems to express their individual preferences. Therefore, audiovisual markets were not yet developed as consumer markets. In other words, end user expectations did not play such an important role. However, this has started to change gradually. 55 52 Alen-Savikko and Knapstad (2019), pp. 94, 96. 53 See more details about the history of privatisation of broadcasting markets in various European countries, Franquet et al (2020). 54 The new competitive markets led inter alia to competition-law cases on the basis of EU state aid rules. In these cases the privileged position of public broadcasters was challenged. See, for example, Broughton Micova (2021), p. 266. 55 Valcke and Stevens (2007), p. 288.

Internet and New Demands for EU Digital Single Market Rules: How Geo-Blocking Fails Digital Single Market
Technological advances related to the internet have changed the behaviour and role of consumers in the audiovisual markets. Due to these shifts, there is a trend towards consumer markets. 56 This is one additional argument for why consumer preferences should become more important when regulating these markets. The evolution of new types of services available freely on the internet and on various subscriptionbased video-on-demand platforms have created a situation where consumers are able to use a variety of services online in order to seek access to their preferred content. Such a new ecosystem for audiovisual services also creates an assumption of spatial availability of content, but this expectation from the end users' side is not really warranted, 57 as will be explained next.
As explained, the TWFD, together with the SatCab Directive, already introduced the idea of the free flow of programmes within the EU. However, this legal framework did not take into account the internet as an equal platform for delivering audiovisual content. Firstly, the earlier versions of the TWFD and its later replacement by the AVMSD (2010) 58 laid down unequal rules for different types of delivery technology, most importantly in relation to European content quotas. The latest update of the AVMSD (2018) sets a more balanced approach and requires not only broadcasting companies but also video-on-demand platforms to have a certain amount of European works in their content catalogues. Moreover, the AVMSD (2018) imposes obligations on video-sharing platforms to protect consumers from harmful content. Consequently, the AVMSD (2018) in its current version recognises various online platforms, video-on-demand platforms and video-sharing platforms as important and established channels for audiovisual content delivery to consumers, and regulates such delivery. 59 The main concern with the previous legal framework, however, was the fact that it lacked rules to ensure the smooth licensing of cross-border online audiovisual content offerings and consequently cross-border availability of content for end users. The country of origin principle under the SatCab Directive is applicable only to satellite broadcasting. Moreover, the mandatory collective licensing regime under the SatCab Directive is not applicable to online delivery, but only to cable delivery. The approach is not technology-neutral but lays down different copyright licensing rules for different delivery technologies. 60 The problem in real life caused by non-efficient licensing mechanisms for audiovisual content online is that access to online content is predominantly subject to geo-blocking. Geo-blocking means that, based on the information concerning the end user's IP address, the content does not flow freely across national borders, but is delivered only to a designated area, in other words to IP addresses located within a certain geographical area. The practice of geo-blocking means that one can normally access only the content catalogues, for example those of Netflix, for one's own location. The reason for these restrictions is that, as in an offline environment, copyright owners license the copyrighted content for the areas of a specific country. In order for the service providers, such as IPTV broadcasters, to comply with their licensing obligations in an online environment, they are required to limit the circulation of their online content outside the area of their contract. Geo-blocking provides a technical means of complying with these commitments. 61 To overcome these practices, which are mainly commercially motivated and privately enacted, the EU legislator aimed to resolve the issue of cross-border availability of these and other types of digital online services and content. 62 This objective formed one important element of the EU's Digital Single Market Strategy. It is also noteworthy that, for some time now, geo-blocking has been a source of consumer dissatisfaction. 63 Tricks for avoiding geo-blocking have become popular among consumers through various technologies, such as VPNs (virtual private networks). 64 To address this particular problem, the EU Commission drafted a proposal to ban unjustified geo-blocking. During the public consultation about the proposal, it became clear that consumers considered a lack of access to digital copyrighted goods and services, including audio-visual content and services, more problematic than a lack of cross-border access to other types of goods and services over the internet. 65 However, right holders' organisations have consistently opposed the EU Commission's initiatives to abolish geo-blocking. 66 Unjustified geo-blocking was banned by the EU Geo-Blocking Regulation in 2018. Recital 3 of the Geo-Blocking Regulation states a bold objective: ''This Regulation aims to address unjustified geo-blocking by removing certain barriers to the functioning of the internal market''. Notwithstanding consumer opinion about the most problematic areas for geo-blocking, in the end audiovisual content remained outside the geo-blocking ban. Audiovisual services, including cinematographic services, whatever their mode of production, distribution and transmission, as well as radio broadcasting, are outside the scope of the Geo-Blocking 61 See, for example, De Gregorio (2021), pp. 190-192. 62 The fact that free movement ideals are restricted by private practices is also evident in the preamble to the Geo-Blocking Regulation. See recital 1: Free movement ''can be undermined by private parties putting in place obstacles inconsistent with internal market freedoms''. 63 Reda (2020), p. 83. 64 De Gregorio (2021), p. 194. In essence, the use of geo-blocking of online delivery outside a designated geographical area resembles, in technological terms, the use of encryption for satellite broadcasts and a requirement for a decoding device for enabling access to the content in that geographical area. Geoblocking is a technology to enable territorial partitioning of the market. And VPN is one technology that can be used to overcome such territoriality. 65 Public consultation synopsis 2015, pp. 6-7. 66 Reda (2020), p. 87.
Regulation. 67 In addition, non-audiovisual copyrighted content and services, even though covered by the Geo-Blocking Regulation, are outside the non-discrimination requirements of the Geo-Blocking Regulation. This essentially means that traders are allowed to apply different general conditions to goods or services where they are providing access to and use of copyright protected works or other protected subject matter (Art. 4(1)(b)). Therefore, non-audiovisual copyrighted content is not covered by the most important principle of the Geo-Blocking Regulation. The approach taken by the legislation, in which audiovisual and non-audiovisual copyrighted content is slightly differently outside the scope of the Geo-Blocking Regulation, is quite confusing. Although this was criticised during the legislative process, 68 the confusing distinction remained. Moreover, it was recognised that the scope of application of the geo-blocking ban was extremely modest when taking into account that copyrighted content forms a high potential for cross-border trade. Yet, regulating copyrighted content was considered too sensitive an issue. 69 For example, during the legislative process, a proposal was made that holders of copyright in audiovisual and non-audiovisual content in several EU Member States would not be allowed to partition such markets and geo-block such countries. This was a very modest proposal to broaden the scope of application of the geo-blocking ban. 70 But even this proposal faced criticism and did not find its way into the final text of the Geo-Blocking Regulation. 71 What remained after addressing the copyrighted non-audiovisual and audiovisual content was the requirement to evaluate the Geo-Blocking Regulation by 23 March 2020 and every five years thereafter. The first evaluation in particular was directed at the scope of the Regulation (Art. 9(2)).
In the evaluation conducted, it was estimated that lifting geo-blocking for audiovisual content would bring some economic benefits for both consumers and producers. Nevertheless, some risks were also identified. In the evaluation it was articulated that market partitioning is in place for valid reasons, and the removal of geographical borders might lead to difficulties in financing new production in the audiovisual sector. This, in turn, might lead in the end to a decrease in new titles, thus being detrimental to consumer choice and welfare. 72 Here it should be recalled that the FAPL/Murphy cases impose some limits on the degree to which such market partitioning is justified. Namely, the ECJ decision found that absolute territorial exclusivity combined with artificial price differences between the partitioned national markets went against TFEU provisions on free movement of services and 67 See recital 8 and Art. 4(1)(b), which refers to the Art. 2(2)(g) of the Service Directive.  73 In the end, a further evaluation of geo-blocking was deemed necessary. Accordingly, the EU Commission launched a stakeholder dialogue in connection with its Media and Audiovisual Action Plan. 74 The Media and Audiovisual Action Plan highlights that a diversified media environment is key to strengthening open and democratic societies and nurturing Europe's cultural diversity. Moreover, the Media and Audiovisual Action Plan recognises the importance for European audiovisual companies of considering the entire European continent rather than their respective national markets as their home market. Digitalisation provides the potential to achieve such markets. 75 But dialogue under this Plan is still pending, and the evaluation conducted has not yet led to any amendments to the scope of the Geo-Blocking Regulation. The Geo-Blocking Regulation in its current form without revisions does not contribute to borderless markets for audiovisual media services online. Primary obstacles for achieving frictionless online markets relate to the concerns raised by the copyright industry. This is the current situation, even though the EU Commission identified growing consumer demand for the cross-border circulation of audiovisual content, which would be beneficial, inter alia, for linguistic minorities and border regions. 76 On the other hand, the Portability Regulation, which entered into force alongside (or some time before) the Geo-Blocking Regulation, allows end users, while travelling, or otherwise temporarily abroad, to access the same online catalogue of audiovisual content that they can access in their country of residence. The Portability Regulation aimed to solve the geo-blocking problem, but only in specific cases. 77 It does not enable general cross-border availability of content, but gives access to only one country's content during a person's temporary absence from that country. ''Temporarily present'' under the definitions of the Portability Regulation refers to a limited period of time (Art. 2(1)(4)), and is not defined any further. This provides for some flexibility of interpretation in so far as this limited period of time does not lead to a change in the subscriber's country of residence. The purpose of travel or temporary presence in another country does not matter under the Portability Regulation. 78 It is noteworthy that in the preamble to the Portability Regulation, consumers' growing demand for accessing content, and their need to access innovative online services not only in their home Member State but also 73  while they are temporarily present in another Member State, was explicitly recognised. 79 Right holders' opposition could also be seen in their approach to the Portability Regulation, even though this Regulation covers a narrow area of geoblocking. Right holders were supportive only of proposals that preserved their full contractual freedom on the issue. 80 For the purposes of portability, Art. 4 of the Portability Regulation again utilised the legal fiction of the country of origin. The legal technique here, as in some earlier legal frameworks in the audiovisual sector, 81 connotes that the use of copyrighted content is deemed to occur only in the subscriber's country of origin, in this framework referring to the subscriber's country of residence. Therefore, service providers do not need to renegotiate their licensing agreements with copyright owners: the existing licensing schemes will cover this new situation, too. The rules cover any digital content subscription (for example, Netflix, HBO, Viasat Viaplay), 82 but do not require free-of-charge content to follow these rules, unless the service providers so decide. Therefore, for example, national broadcasters are not obliged to follow these rules for their free-of-charge content. If they wish, however, they can use the legal fiction of country of origin for such services too, which would similarly help broadcasters with their territory-based licences. The reason for this freedom of choice is that free-of-charge content is often delivered to end users without any need for registration. Making it mandatory to apply the portability rules to such content would impose on the service provider the burden of verifying the end user's country of origin, i.e. country of residence. Now it is up to broadcasters to decide if they wish to take such action in order to provide portability for their free-of-charge content. Under the Portability Regulation, right holders' contractual freedom is limited in many ways. They are, however, entitled to take into account in their licensing fees the country of origin principle, even though service providers are not allowed to make any specific additional charge to enable the portability of content. 83 In essence, this means that the copyright holder's right to reasonable renumeration is guaranteed.
In the context of portability, the end users' interests and expectations, which reflect the idea of free circulation of online services within the internal market, are taken into account, but are fulfilled in only a very limited way, covering only temporary situations. This Regulation helps, for example, EU expatriates to access content from their homeland while working in Brussels but does not benefit people 79 Portability Regulation, recital 2. 80 Impact assessment (2016), p. 25. 81 The country of origin rule is defined slightly differently in different directives. For example, under the SatCab Directive, country of origin refers to the area where satellite signals are sent/broadcast, while under the AVMSD, country of origin refers to the area where a media service provider has its place of establishment. The SatCab Directive and the AVMSD have detailed rules on how to define the country of origin explicitly. Article 5 of the Portability Regulation also lays down specific rules for verifying the country of residence. 82 In addition to audiovisual online content subscriptions, the Portability Regulation covers, for example, music streaming services Deezer and Spotify. 83 Articles 3(1) and 6(1) of the Portability Regulation. See also Engels and Nordemann (2018), pp. 193 and 195. in a less privileged situation who live permanently outside their home country. 84 Yet this modest solution is the first instance where the EU legislator has been able to lower the access barriers and limit the transaction costs related to audiovisual content in the online environment. In addition, this was the first instance when the EU adopted a regulation as a legal instrument in the area of copyright law. 85 Such an instrument bars the copyright industry from continuing their lobbying at national level. However limited by nature, the Portability Regulation may have fueled the expectations of consumers and made their voice more important.
The current situation under the legislation already in force, however, is far from satisfactory. The Geo-blocking and Portability Regulations do not tackle the problem of cross-border access to audiovisual content, in particular because the Portability Regulation, which at least covers audiovisual content, does not help migrants and language minorities to access content across national borders. This is because they are living permanently, and are not just ''temporarily present'', in the country considered ''unsuitable'' given their cultural identities. Consumer demand, values related to cultural diversity and end user freedom of expression have not been considered sufficiently important reasons to justify end user access to information in this context. These values seem to be subordinate to intellectual property protection and in particular copyright holders' interests.
Copyright holders have relied on a number of explanations to justify their position of objecting to legislative action aimed at enhancing the online cross-border availability of audiovisual content. Many of these explanations relate to commercial reasons that arguably require market partitioning. For example, financing models for film production rely heavily on presale agreements with exclusive territorial rights. These may be combined with exclusivity for certain time frames or ''windows'' before other players are allowed to show or distribute the content in a given territory. There may, for instance, be different windows for cinemas before TV broadcasters are allowed to show a film. For copyright holders, territoriality also enables price discrimination, that is, charging higher-income countries more than lower-income ones. As film production entails high costs up front, these financing mechanisms have played an important role for the system. 86 In addition, and intertwined with financial reasons, linguistic reasons play a role in the territorial offerings of content. 87 Commercial obstacles for content offerings across borders may be posed, for example, by the need to localise content for different languages. For example, Trimple argues that the requirement for crossborder availability may increase the share of English-language content in catalogues. This is because content in major languages does not need to be localised. Furthermore, it has been argued that, if service providers need to acquire copyright licences for larger geographical areas, like the EU, this might lead to a situation where only big players have sufficient financial resources. Smaller players that currently serve minor markets may no longer be able to do so and might cease 84 Reda (2020), p. 84. 85 Dreier (2017), pp. 14-15. 86 Hugenholtz and Poort (2020), pp. 169-170. 87 Mazziotti (2019), p. 188. to exist. 88 These reasons may also explain why broadcasters, at least smaller ones, may be more interested in serving only the geographical area of their own country. Therefore, territorial licensing not only depends on the copyright content industry's reluctance to license, but also to a degree on broadcasters' commercial decisions. Likewise, advertisements, which form an essential part of the income structure for commercial TV for example, also target specific audiences, or consumers, potentially in a specific country, or even in a particular area of a country. 89 Furthermore, research indicates that some consumers prefer local audiovisual content to foreign content. Language barriers are one explanation for these preferences. 90 However, as explained, the language proficiency of consumers residing in a specific country does not necessarily follow the territorial borders of those Member States. A large number of EU residents have citizenship outside the EU and, in 2019, 17.6 million EU citizens did not live in their Member States of origin. 91 Moreover, language minorities in one specific country may not be a minority in another EU country. As an example, Finland has a minority of Swedish speakers, but Swedish is the majority language in Sweden. Finally, a large number of EU residents are proficient in languages other than their mother tongue. 92 In the light of these statistics, the availability of content in different languages across borders is of huge importance for European people and their cultures. Hugenholtz and Poort have made a rather innovative proposal, recommending replacing territorial rights with language-exclusivity rights. According to them, this would be one way of retaining to some degree current financing models for films, while at the same time extending language offerings across geographical borders. 93 Access to content in their own mother tongue, as well as learning objectives related to improving their skills in other languages, are among consumers' reasons for wanting audiovisual content offerings across borders. Cross-border online access to audiovisual content is thus a culturally important factor for European media consumers. Territoriality of offerings means that a big share of consumer demand for culture remains unmet. 94 Broader availability might also increase the number of productions in small languages and therefore enhance the diversity of content, because larger numbers of consumers in minority languages residing in different countries would be able to access those copyrighted works. It has also been found that, if audiences are geo-blocked from accessing their preferred cultural content across borders, they may be driven to consume mainly big multinational companies' offerings, decreasing the availability of smaller European productions. 95 An additional benefit of cross-border availability of content relates to increasing European cohesiveness, an important aspect for European culture. 96 The availability of European content across borders is important for the free movement of persons, which is a factor that may also contribute to European cohesiveness.
Regrettably, the Geo-Blocking and Portability Regulations in their current forms do not solve the puzzle of online availability of content in a way that would enable broadcasts to flow across national borders. This goes against consumers' growing expectations for borderless access and freedom of expression. The end result of a lack of access also contrasts starkly with the ideal of the EU's digital single market. 97 Therefore, these copyright-related, commercially motivated issues need to be resolved in order to serve European consumers, language and ethnic minorities, and the free movement of services and Europeans.

The Most Recent Legislative Changes Enabling Broader Cross-Border
Availability of Audiovisual Content Online The very recent Online Broadcasting Directive 98 now seeks to address the crossborder availability of certain broadcaster services online. Its preamble states that the aim of the Directive is connected with the proper functioning of the internal market. It also highlights that television programmes are important means of promoting cultural and linguistic diversity and social cohesion, and of increasing access to information (recital 1). End users' growing demand for cross-border access to broadcast content is likewise recognised. The end users with such demands are identified as members of linguistic minorities in the Union, as well as persons who live in a Member State other than their Member State of origin (recital 2). To enable wider dissemination of broadcast audiovisual content, the country of origin principle is again utilised as a legal fiction. Under Art. 3(1) of the Online Broadcasting Directive, the copyright-relevant acts are deemed to occur solely in the Member State in which the broadcasting organisation has its principal establishment. This in essence makes it easier for broadcasters to clear copyright. When fixing licensing fees for services covered by the country of origin principle, however, copyright holders are able to take into account the broader audience and availability of the content. In addition, right holders have contractual freedom to limit exploitation rights, as long as such limitations comply with EU law (Art. 3(3) and recital 10). This essentially means that right holders may include territorial restrictions in their agreements with broadcasting organisations. It is noteworthy, however, that such limitations may be infringing EU law. 99 The approach adopted here closely resembles the one under the SatCab Directive. However, a notable difference is that, under the SatCab Directive, all types of content delivered with satellite technology are subject to the country of origin rule.
Therefore, it is noteworthy that the scope of application of this legal fiction under the Online Broadcasting Directive is limited in important ways. Firstly, the country of origin principle applies to specific types of content only: (1) news and current affairs programmes, and (2) the broadcaster's own productions (Art 3(1)(b)). To qualify as a broadcaster's own production, the content has to be fully financed by the broadcasting organisation.
Secondly, it is explained that the country of origin principle covers specific types of content on a TV broadcaster's ancillary online services (Art 3(2)). The content of the ancillary online service can include some additional materials such as comments or background information, as long as this can be deemed ancillary to the original broadcast. 100 In addition, the initial broadcast may not be online, but the online service must be ancillary to the initial broadcasting by other technology, by wire or over the air, including satellite. The ancillary online service covers simulcasting and catch-up services. Simulcasting is an online service made available by the original broadcasting company at the same time as the initial broadcast. Catch-up services refer to situations where the material is available on the broadcaster's service for a fixed time-period before and after the initial broadcast takes place. 101 Webcasting, which refers to the initial broadcasting online, was excluded from the scope of application of the country of origin principle, because purely online activities would facilitate forum shopping of the place of establishment of a broadcasting company. Moreover, at the time of the legislative proposal, it was estimated that webcasting markets were not yet mature enough, and difficulties might arise, where a distinction would have to be made between webcasting and video-on-demand services. 102 The end result ties broadcasting company's activities to the earlier technologies in that online activities are always ancillary to the initial broadcasting with more traditional technologies. Therefore, the solution adopted does not contribute towards a shift to purely online broadcasting, although it does give more scope for developing ancillary services online, such as catch-up and simulcasting services, and for offering these across borders.
In addition to the legal fiction of country of origin, the Online Broadcasting Directive provides for a mandatory collective licensing regime for online retransmission when the ''initial transmission is by wire or over the air including that by satellite, but is not by online transmission''. Online retransmission does not apply to the rights in retransmission exercised by a broadcasting organisation in respect of its own transmission (Art. 5(1)). A further requirement is that retransmission covers only ''simultaneous, unaltered and unabridged 99 See also Rivers (2021), p. 805. 100 See also Rivers (2021), p. 801. 101 Rivers (2021), pp. 801-802. 102 Impact Assessment, pp. 36-37. retransmission''. Thus, in this context too, online delivery is additional to the utilisation of more traditional technologies and is by nature not particularly independent: it merely involves providing the same content simultaneously, but through a different, online, technology. Consequently, this provision connects online delivery to delivery by earlier technologies. Yet the mandatory collective licensing system now enables retransmission rights to an online delivery in another country to be acquired. Such an approach is similar to what was adopted for cable retransmissions under the earlier SatCab Directive, and as can be seen, the requirements between these two Directives look alike.
On top of this, there is one further limitation to the scope of application of online retransmissions: retransmission online can only be carried out in secure online environments like IPTV (Art. 2(2)(b)). This in essence means that end users need to be authorised to see the content, and the delivery cannot be carried out freely on the internet. 103 This approach allows the actual audience to be calculated with a high degree of precision and thus be taken into account for licensing fees.
Finland initially aimed to implement these provisions in a way that would enable a collective licensing organisation to grant retransmission licences also for catch-up services. This model was said to follow the solution already adopted earlier in Denmark, where it is possible to obtain licences from a collective licensing organisation for delivery of online catch-up services. 104 Such an implementation would have been laudable, as it would have enabled also migrants and language minorities to access content at the most suitable time for them. 105 In the end this approach was not included in the final proposal for the Finnish Bill. 106 The most important feature of these norms is that the licensing scheme enables copyright clearing for online delivery to a country other than the broadcaster's country of origin. 107 Therefore, this is a very important development when considering how to overcome the challenges related to cross-border online availability of audiovisual content. 108 Before this, only cable retransmissions were covered by European-level mandatory collective licensing. This approach was not very technology-neutral and proved challenging in the online era. However, some countries implemented licensing mechanisms for online retransmission even before the Online Broadcasting Directive. For example, in Finland, it is possible to acquire 103 Rivers (2021), p. 801. 104 Finnish Government draft Bill amending the Copyright Act and the Act on Electronic Communications Services, 27 September 2021, pp. 43 and 66. 105 Of course, timeshifting technologies, such as recording, also allow viewing to be scheduled. 106 Finnish Government Bill amending the Copyright Act and the Act on Electronic Communications Services, HE 43/2022. 107 However, Member States may adopt a rule whereby a collective licensing organisation grants licences also for online retransmission in the country of origin (Art. (7) of the SatCab Directive). 108 It is noteworthy that, for example in Finland, it was possible to apply for licences for IPTV retransmission even before the Online Broadcasting Directive. The Finnish interpretation of the earlier SatCab Directive has been technology-neutral in the sense that retransmission was not confined to cable retransmissions. See, for example, the Finnish Government's draft Bill amending the Copyright Act and the Act on Electronic Communications Services, 27 September 2021, p. 43. retransmission licences for all types of technological delivery. 109 But now, under the Online Broadcasting Directive, all Member States need to provide a mandatory collective licensing mechanism for the online environment. This leads to a reduction in transaction costs, which has been identified as the most important reason for adopting the collective licensing management system. 110 Even though the Online Broadcasting Directive contains measures that are moving in the right direction, the solutions adopted are still quite narrow in their scope. It is noteworthy that the scope of applicability of these rules was subject to drastic changes during the legislative process. Again, the copyright industry's lobbying seems to have influenced the final outcome. For example, the initial scope of application of the country of origin principle was much broader. In the initial proposal, the principle was applicable to all types of broadcast content, not only to news, current affairs programmes and the broadcaster's own productions. 111 The scope of application of the country of origin principle was watered down during the legislative process, which means that territorial exploitation rights, important for the right holders, are to a large extent maintained, and licensing is on a territory-toterritory basis.
The copyright industry's financial interests are also in evidence in the final wording of the preamble to the Online Broadcasting Directive. In particular, this can be seen in recital 7, which provides as follows: cross-border provision of online services that are ancillary to broadcasts, and retransmissions of television and radio programmes originating in other Member States, should be facilitated by adapting the legal framework on the exercise of copyright and related rights relevant for those activities. That adaptation should be done by taking account of the financing and production of creative content, and, in particular, of audiovisual works.
In addition, recital 10 highlights the fact that the financing models for certain audiovisual works are based on territorial exclusivity. These financing mechanisms, which protect the copyright industry's interests, are given as reasons why the country of origin principle is confined to specific types of content, namely news and current affairs programmes and a broadcaster's own, self-financed, productions. 112 The model adopted for the applicability of the country of origin rule excludes a large proportion of premium content, like films and sports. In addition, these rules do not oblige any broadcasting organisation to provide news and other content subject to the country of origin rule in their ancillary services or across borders (recital 11). This means that broadcasters have freedom to decide whether to 109 Impact Assessment (2016), p. 42. 110 Alen-Savikko andKnapstad (2019), p. 84. 111 During the legislative process, it was also considered whether online retransmission could also cover OTT (over-the-top) services. In the end, the proposal was confined to the IPTV type of environment. See Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, COM (2016) 594 final. 112 The recital indicates that exclusive territorial licensing is acceptable. Yet it is noteworthy that the FAPL/Murphy cases impose certain limits on such licensing. provide such services. Therefore, even though the aim of the Online Broadcasting Directive is to enable a broader cross-border flow of audiovisual content online, the achievement of digital internal markets is very dependent on market considerations and the long-standing licensing practices between copyright holders and service providers.
It is also noteworthy that the proposal at first took the form of a regulation, which would have entailed uniform application after it had come into force in the EU, thus preventing fragmentation of the digital single market. 113 In the end, the legal instrument chosen was a directive, which gave the copyright industry the opportunity to lobby also when the Directive was being implemented at Member State level.
As already mentioned, webcasting and other video-on-demand types of service were excluded from the scope of the Online Broadcasting Directive (recital 8). However, alongside the Online Broadcasting Directive, the DSM Directive is now being transposed into national legislation, and it has licensing provisions that are relevant for video-on-demand services. For the audiovisual markets, a particularly relevant article of the DSM Directive is Art. 13, which aims at assisting video-ondemand services in negotiating with copyright holders, such as the film industry, to get content on their services. 114 In the Impact Assessment, it was recognised that video-on-demand platforms are becoming increasingly important. However, the availability of European audiovisual works on such services is limited. Online unavailability was considered to be particularly harmful for European works, as these productions are often smaller than giant US productions. Therefore, it was deemed necessary to take some form of action to enhance the visibility of European productions on these platforms. 115 The Impact Assessment identified a number of obstacles related to licensing. From the copyright industry's perspective, it was argued that the licensing practices formed one bundle of such obstacles. Granting exclusive licences to an entity that is not interested in online exploitation makes later licensing to online platforms impossible. Another licensing-related obstacle is connected to the release windows, which, as already explained, currently guarantee the financing of audiovisual productions. On-demand platforms seem to be the last release window in the queue, which may have a negative impact on their attractiveness. Another obstacle related to licensing problems is the clearance of a multiplicity of rights, and in particular 113 European Commission Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes COM/2016/0594 final -2016/0284 (COD). 114 Another mechanism in the DSM Directive that may make access to copyrighted content for online delivery easier is Art. 12, which allows Member States to implement a collective management mechanism. Its scope of application covers in principle all copyrighted works. However, its application is limited under Art. 12(2) as follows: ''the licensing mechanism […] is only applied within well-defined areas of use, where obtaining authorisations from rightholders on an individual basis is typically onerous and impractical to a degree that makes the required licensing transaction unlikely, due to the nature of the use or of the types of works or other subject matter concerned […]''. This voluntary collective licensing mechanism is not discussed in any more depth in this article. 115 Impact Assessment (2016), pp. 52-53. uncertainty about who has the online exploitation rights. In addition to the costs of such transactions, unwillingness to license to video-on-demand platforms is related to the fact that these markets are still undeveloped, which in turn indicates that potential revenues from these licences are expected to remain rather low. The availability of works on video-on-demand platforms may also undermine other more profitable licensing revenues. 116 From the platforms' perspective, the cost of transactions related to negotiations with a number of small productions, that is copyright holders, seems to be a challenge. This may inhibit the circulation of European works, as platforms would be more interested in negotiating with big companies with a broader catalogue of content than on an individual basis with many small or medium-sized producers. A combination of all these problems seems to be the reason for the low availability of European audiovisual works in video-on-demand catalogues. It has been suggested that the unsatisfactory licensing possibilities will work in favour of big players, both in terms of copyright holders and service providers like Netflix. The transaction costs related to negotiations are more detrimental to smaller players. 117 Therefore, the EU legislator's inability to resolve these issues may in the end be harmful not only to European consumers but also to smaller European businesses in the audiovisual sector.
The preamble to the DSM Directive explains that concerns related to licensing arise when the holder of the rights for a given territory has a low economic incentive to exploit a work online and does not license, or holds back, the online rights. This can lead to audiovisual works being unavailable on video-on-demand services. Other issues were related to windows of exploitation (recital 51), which are in place, for example, to guarantee the financing of film productions. These release windows may lead to a situation where licensing does not take place efficiently for video-ondemand platforms as they are a new form of exploitation, which are not so attractive to film producers. In the end, the solution under the DSM Directive is a negotiation mechanism, which Member States are obliged to implement under Art. 13 of the DSM Directive. 118 However, the negotiation mechanism seems rather toothless. In particular, the DSM Directive does not even make it compulsory to set up a new special negotiation mechanism for this purpose. Member States may rely on already existing general mediation systems. At national level, this may mean that no new 116 Ibid, pp. 53-54. 117 Ibid, pp. 54-55. One additional example of the advantageous position of bigger companies, for example Netflix, is that users of such services are able to use the same service in different countries. Consequently, the users of e.g. Netflix's services might experience higher satisfaction with the availability of the service across national borders than with the availability of the broadcasters' services across countries. Even though content catalogues vary to some degree from country to country, earlier research indicates that there is some 31% overlap between countries' content catalogues for Netflix services. For music, cross-border availability is, at about 80%, much higher. For research on content overlap, see Batikas et al. (2015). 118 Article 13 of the DSM Directive provides as follows: ''Member States shall ensure that parties facing difficulties related to the licensing of rights when seeking to conclude an agreement for the purpose of making available audiovisual works on video-on-demand services may rely on the assistance of an impartial body or of mediators''. action is taken. For example, in Finland, the draft government bill for transposing the DSM Directive merely refers to the existing mediation services available through the Chamber of Commerce and the Finnish Bar Association. 119 In essence, the real impact of Art. 13 in this case is merely that Member States need to provide information concerning the source of mediation services to the Commission (Art. 13 (2)).
The availability of this information can be assumed to be of modest impact. The negotiation mechanism does not truly resolve the challenges related to transaction costs. It merely advises the parties to make use of mediation or arbitration to reach a satisfactory outcome. Yet nothing ensures that parties will use this opportunity, as it is still based on voluntary participation. As right holders and on-demand service providers have not previously been able to achieve outcomes that ensure broader availability of audiovisual content on video-on-demand platforms, it is unlikely that this solution will overcome the persisting challenges.
In the Impact Assessment, stricter mechanisms for achieving agreement, for example through a mandatory exploitation right, were discarded because it was considered unclear what their market impact would be, in particular because videoon-demand markets were still considered immature. Enhancing the possibilities of reaching individual agreements on a voluntary basis was also considered to enhance contracting in other cases through growing experience in negotiations between the parties. 120 In the end, the EU legislator was unable to reach any better solution. It was the right holders who opposed the EU legislator from taking any further action in this regard. Even though this limited action is better than nothing, it by no means meets consumer expectations. All in all, it seems that even the most recent updates address consumer expectations for broader online access to audiovisual content only to a limited degree and that a digital single market for audiovisual content is still far off.
An additional potential problem in the most recent updates relates to the fact that the legislator upholds the differences between technologies and service providers. Firstly, different types of broadcasting technology (satellite, cable, simulcasting, webcasting) are treated with their own specific rules. A particular shortcoming in the Online Broadcasting Directive is that online delivery is strongly connected to the more traditional broadcasting technologies, as online services need to be ancillary to the initial and more traditional broadcasting and, in the case of online retransmission, has to be simultaneous. Therefore, purely online broadcasting (webcasting) is outside the scope of these most recent rules. And video-on-demand types of service are only subject to voluntary negotiation mechanisms under the DSM Directive. The current legal provisions do not give much support, or recognition, for purely online delivery. This type of regulatory approach will have an impact on the possibilities for technological and business developments in the European audiovisual markets. For example, when technologies and business models develop, it will be challenging to make distinctions between the various delivery systems and technologies, which may lead to uncertainties in applicable rules and consequently in the markets. 121

Concluding Remarks
As argued above, consumer expectations of borderless access to content are profoundly rooted in the technological and market changes that have impacted the audiovisual markets and, as a corollary, the behaviour and expectations of consumers. As pointed out, cross-border availability of content is one important dimension of consumer expectations of digital markets. Such availability is also linked to the consumers' fundamental right to freedom of expression and in particular the underlying right to information. The expectations are also part of European consumers' cultural identities. The new technological and -to some degree also legislative -environment has encouraged end users to expect access to their preferred cultural content even across national borders. Cross-border access to diverse cultural content can be seen in the light of the Charter provision under which cultural and linguistic diversity must be respected.
The European legislator has identified and acknowledged these consumer expectations of access, which are likewise evident in the Digital Single Market Strategy, which applies to various digital services. The EU has set itself bold objectives in its Digital Single Market Strategy, while the EU legislator also explicitly recognises the new expectations of consumers in the digital society. Yet the outcomes are still far from satisfactory. With regard to audiovisual content, one major obstacle to the free flow of content is still territory-to-territory-based copyright licences. This contradicts the ideals of the EU digital single market, most importantly the free movement of services. The territoriality of markets also stands in contrast to recognised consumer expectations on the cross-border availability of online content based on the new technological possibilities and changed consumer habits.
The EU legislator has resorted to some of its traditional legal tools when addressing the need for online access. To remove obstacles related to copyright holders' control, the European legislator has adopted rules that enable the crossborder flow of audiovisual content without country-specific authorisation from the owner of the copyrighted content. The application of the country of origin principle as a legal fiction has been one of the regulatory tools most often used. However, at present, this legislative technique is applicable only in very specific online cases. A case in point is the Portability Regulation, which seeks to guarantee to travellers 121 Previously, for example, the TWFD was revised (by the AVMSD) to better address the changes in the technological landscape, which required regulation to cover new forms of audiovisual media services, including video-on-demand, and not only television broadcasting. In one case before the revision, the ECJ defined a distinction between near-video-on-demand services and video-on-demand services, and found that the latter was outside the scope of the TWFD (Mediakabel BV v. Commissariaat voor de Media, C-89/04). See further Klafkowska-Waśniowska (2018), pp. 295-334. Similar problems may arise under the current legal framework, which contains different rules for different technologies and business models.
only temporary access to digital content of their home country. Likewise, the Online Broadcasting Directive applies the country of origin principle only to specific types of content and broadcasters' ancillary online services. In both cases, the scope of application of the country of origin principle is very narrow. Therefore, for example, migrants' opportunities to access audiovisual content from their home countries remain modest under the application of this rule. In addition to legislative solutions, there are the market-based considerations of both copyright holders and service providers. Even when possible under the legislation, it might not be lucrative for business parties to provide services across borders. Their contractual freedom has been maintained. Yet it is noteworthy that the EU Commission has identified that a vast amount of consumer demand in these situations remains unserved. It seems that it takes time for business models to adapt to meet new demands.
Another legal device for overcoming transaction costs and copyright holders' control has relied on mandatory collective licensing. The Online Broadcasting Directive introduces the mandatory collective licensing mechanism for online retransmission. Collective licensing removes some transaction costs for crossborder access, but licensing continues on a country-by-country basis, meaning that pan-European markets do not exist.
Broadening the scope of the country of origin and establishing a collective licensing system for EU-wide licences are legislative measures that could assist in both achieving the digital single market and meeting consumers' current expectations. Another way forward to addressing territoriality-related copyright issues is through the pending revision of the Geo-Blocking Regulation. If its scope were in future to also cover copyrighted audiovisual content, it would resolve discrimination based on a consumer's geographical location. The legislative discourse on its potential revision is still pending and under discussion as part of the EU's Media and Audiovisual Action Plan.
When taking into account that all previous legislative proposals to reconfigure copyright holders' control has faced fierce opposition, one assumes this will happen also in future. Yet the legislative developments elaborated in this article also show that gradual, small changes are possible. The Media and Audiovisual Action Plan shows that the new online consumption trends could also bring benefits for the industry. To achieve these benefits, Europe would need to form one borderless market, so that the industry could reach larger audiences. 122 If consumers' demand for broader cross-border availability of audiovisual content becomes more aligned with copyright holders' interests, as indicated in the Media and Audiovisual Action Plan, our hopes for a new legislative intervention to better satisfy also consumers' cultural needs might seem more realistic. Yet, as elaborated on in this article, the market-based considerations and business models of both the copyright industry and broadcasting service provides need to adapt to the new situation too if consumers are to fully benefit from the digital single market.
Funding Open Access funding provided by Hanken School of Economics.
Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http:// creativecommons.org/licenses/by/4.0/.