Answer given by Mr McCreevy on behalf of the Commission
The question raises the issue of existing gaps in the Digital Single Market citing the example that many EU citizens do not have access to legal offers from online music stores.
The Commission is aware of this problem and its President raised the issue of the lack of a genuine Digital Single Market on 3 September 2009 when he presented his political guidelines for the next Commission(1), stating also the need to develop a European Digital Agenda accompanied by targeted legislative measures.
One of the reasons invoked by e-commerce traders for maintaining national online shops and preventing access of consumer from other countries is the necessity to license copyrights on a national basis. Although, European Economic Area (EEA)-wide licensing is becoming more frequent for the music publishers right of digital reproduction and copyright in sound recordings, in the area of authors' rights for public performances national copyright licensing still prevails. In order to foster renewed debate on this problem, the Commission has recently launched a reflection document on ‘content online’(2).
However, differences in treatment applied by service providers according to the nationality or the place of residence of the consumers are dealt with specifically by Article 20, paragraph 2 of Directive 123/2006/EC(3) on Services in the Internal Market (the ‘Services Directive’). According to this provision, ‘Member States shall ensure that the general conditions of access to a service, which are made available to the public at large by the provider, do not contain discriminatory provisions relating to the nationality or place of residence of the recipients’. This provision also specifies that not all differences in treatment are forbidden since differences in the conditions of access will be allowed ‘when those differences are directly justified by objective criteria’.
The Services Directive was adopted at the end of 2006 and will have to be implemented by Member States by 28 December 2009 at the latest. Since the directive is addressed to Member States it cannot impose obligations on private service providers such as Apple Inc. during its implementation period. Once the Services Directive has been implemented, private parties' behaviours such as those referred to by the Honourable Member will be allowed under Article 20(2) of the Services Directive only if traders demonstrate that the differences in treatment they apply are ‘directly based on objective criteria’.
The Commission believes that the enforcement of Article 20(2) of the Services Directive, together with the removal of the remaining obstacles still impeding the development of a pan-European digital download market, could contribute to a progressive opening up of Internet music stores for the benefit of European customers.