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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 electronically supplied non-audiovisual services whose main characteristic is the provision of access to and use of copyright works or other subject matter, subject, however, to the specific exception and to subsequent review of that exception in accordance with this Regulation.

According to this recital, computer games as audiovisual services/products are probably still currently 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 had expressed concerns that they – under certain circumstances – simply could not own the rights of use of third-party content for every country in the EU and then could not offer certain content at all unless they owned 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 provider may not apply different general terms and conditions of access to goods or services on the basis of the customer’s nationality, place of residence, or place of establishment if the customer seeks to […]
(b) to obtain electronically supplied services from the provider, the principal feature of which is not the provision of access to and use of copyrighted works or other subject matter, including the sale of copyrighted works or intangible subject matter; […].

According to this, special restrictions may only be used if access to protected works is involved 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.

Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.


03322 5078053