Geoblocking Regulation: Apps and the like?

Does the geoblocking regulation I reported on here actually apply to apps and/or computer games? And if so, under what conditions?

After initial considerations, the question is not easy to answer and could, in case of doubt, be a case of further development of the law, in the worst case by courts.

There is a first hint to the question here in the 8th recital of the regulation:

[…] This Regulation should therefore apply, inter alia, to non-audiovisual services provided electronically, the main feature of which is the provision of access to and use of copyright-protected works or other subject-matter, subject, however, to the specific exception and the subsequent review of that exception under this Regulation.

According to this recital, computer games as audiovisual services/products are currently still covered by the Regulation. Even if one may now assume that there can no longer be any such services today that are not audiovisual, the assessment must probably be guided by existing case law and other standards, whereby, for example, apps whose focus is not audiovisual are covered by the regulation. Apps for evaluating objects or services, marketplace apps, apps for informing users, communities, social media, etc. come to mind. It is likely to be difficult to differentiate in detail.

Further guidance is provided only in recital 37 of the Regulation:

[…]The initial assessment should focus on examining the possible extension of the prohibition of different general terms and conditions of access in electronically supplied services, including those whose main feature is the provision of access to and use of copyrighted works or other subject matter, provided that the provider has the necessary rights for the territories concerned. In this context, it should also be examined whether the scope of this Regulation should be extended to services falling outside the scope of Directive 2006/123/EC, with due regard to the specificities of each of those services.

2006/123/EC reads in its Article 17 No. 11 as follows:

copyright, related rights, rights within the meaning of Council Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products (35 ) and Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (36 ), and industrial property rights;

This could therefore argue for a comprehensive exclusion of everything that is to be associated with copyrights. Since, as a rule, an app is subject to exploitation rights or related rights, an exception for non-audiovisual apps and services would be illogical. On the other hand, the Geoblocking Regulation explicitly speaks of adding later services whose main feature is access to and use of copyrighted works or other protected subject matter. This is due to the fact that, after massive lobbying, providers such as Netflix, HBO or music streaming services have expressed concerns that they may simply not have the rights to use third-party content for every country in the EU and would then not be able to offer certain content at all unless they had the rights of use for all countries.

If, on the other hand, you are the developer of an app, a computer game or another app, it is usually logical that you have the rights to publish an app throughout Europe, if you want to. As a rule, this does not conflict with the rights of third parties.

A further reference can be found in Article 4 No. 1 of the Regulation. After that:

A supplier shall not apply different general terms and conditions for access to goods or services on grounds of the customer’s nationality, place of residence or place of establishment where the customer seeks to […]
(

b

) to obtain electronically supplied services from the supplier the main feature of which is not the provision of access to and use of copyright protected works or other subject-matter, including the sale of copyright protected works or intangible subject-matter; […]

Thereafter, specific restrictions may only be used where access to protected works is concerned and this is the main feature of the electronic service. Although the word “third party” or similar is not explicitly used, together with the other considerations of the regulation and the legislative history, this could be interpreted. It is true, for example, that a computer game app provides access to protected works, namely the computer game company’s graphics. However, it is questionable whether this is mean. Personally, I do not find it clear and literature does not yet exist on the subject. It is quite valid to argue that if, after the heated discussions, the legislature had simply wanted to exclude all services and products that could somehow be associated with copyrights, it would not have needed the wording regarding access.

Other points, for example in the recital clauses of the Regulation, also merely have the same wording, but therefore do not provide any additional information.

What does this entail?

Assuming that apps that do not have access to the works of third parties as their main purpose, i.e. streaming platforms, app stores and the like, but that are simply themselves protected by copyright, these would fall under all the points I have mentioned in this article. It would then be difficult, for example, to test a new app, a new game and the like in just a few markets for the time being to see whether the monetization of free2play games works, for example. Such games would have to be immediately available across Europe, but they would not have to be translated for all of these countries, or even advertised in all of them, as is evident from my other article. However, there should be no discrimination in login screens, no redirection to other language versions of the apps (without consent) and the like.

I will follow up on the topic and try to get more opinions and information on it. Feel free to post them in the comments or email me 😉 As soon as I have more information, I will publish it here.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.