Saint Ladislaus (Chronica Hungarorum) King of Hungary Born cca. 1040 Kraków, Kingdom of Poland Died 29 July 1095 (aged 54–55) Nyitra, Kingdom of Hungary (now Nitra, Slovakia Burial Cathedral-Basilica of Nagyvárad (today Oradea, Romania)

J.S. Bach: Toccata and Fugue D minor (Arr. Lars Karlin) // Berlin Trombo... youtu.be/QPlBH92RN84?is=iBiD… via @YouTube

I have launched a public petition calling on the European Commission to enable lawful, paid access to films across EU borders, particularly where no authorised online offer exists in the viewer’s country. The petition includes the Convention and Charter arguments set out in my letter to the Commission. You can join by adding your signature here: change.org/p/end-territorial… Please sign and share. Professor Dr Boštjan M. Zupančič, S.J.D. (Harvard) Former Judge and Section President of the European Court of Human Rights

Today I sent the following letter to Roberto Viola, Director-General of DG CONNECT at the European Commission, concerning territorial restrictions on lawful access to films in smaller EU Member States. Dear Director-General, I write as a Slovenian citizen and resident, a professor of law and a former judge of the European Court of Human Rights. I hold the degree of Scientiae Juris Doctor (S.J.D.) from Harvard Law School. I taught law in the United States for ten years, where I held a tenured professorship. I served as a judge of the Constitutional Court of the Republic of Slovenia from 1993 to 1998 and subsequently for eighteen years at the European Court of Human Rights, from 1998 to 2016, including as President of a Section from 2004 to 2008. I address you concerning territorial restrictions that prevent residents of smaller Member States from obtaining lawful, paid access to audiovisual works. My recent experience has prompted me to question whether the existing legislative framework adequately protects access to information and cultural expression, and whether its effects are consistent with the fundamental-rights principles developed in the Strasbourg jurisprudence. A consumer may be entirely willing to pay the advertised price and to watch a work in its original language, yet encounter territorial restrictions while finding no authorised local online offer. Where this occurs, the consumer is left without an effective means of purchasing online access. For residents of smaller Member States, this raises a substantive question about participation in European cultural life. I am aware of the audiovisual exclusion under Article 1(3) of Regulation (EU) 2018/302, read together with Article 2(2)(g) of Directive 2006/123/EC. My concern is whether the continued breadth of that exclusion is adequately justified in the light of fundamental rights. Article 10 § 1 of the European Convention on Human Rights protects the freedom to receive information and ideas “regardless of frontiers”. Where an interference engages State responsibility, Article 10 § 2 requires a legal basis, a legitimate aim and necessity in a democratic society, including proportionality. Of particular relevance is Khurshid Mustafa and Tarzibachi v. Sweden, no. 23883/06, 16 December 2008, a judgment in which I participated. At § 44, the Court expressly recognised that Article 10 protects cultural expression and entertainment. At § 45, it attached importance to the absence of adequate alternative means of receiving the programmes concerned. Furthermore, §§ 31–34 explain how Article 1 and Article 10 may engage States’ positive obligations and responsibility for judicial decisions in disputes between private parties. The case concerned satellite reception and eviction; its relevance here lies in these principles, rather than an identity of circumstances. Article 14, read together with Article 10, also merits consideration. In Carson and Others v. the United Kingdom [GC], no. 42184/05, 16 March 2010, §§ 70–71, the Court recognised place of residence as an aspect of personal status within Article 14. Although it found no violation on the facts of that pension case, the judgment confirms that distinctions based on residence are capable of examination under the Convention’s prohibition of discrimination. Whether particular arrangements involve comparable situations and lack objective and reasonable justification requires a substantive assessment. The competing rights must equally be acknowledged. In Ashby Donald and Others v. France, no. 36769/08, 10 January 2013, § 34, the Court held that commercial online publication fell within Article 10. At § 40, it recognised the protection of intellectual property under Article 1 of Protocol No. 1 and the wide margin of appreciation available when balancing competing protected interests. It ultimately found no violation. This supports a careful assessment of the balance between access and copyright protection. I also recognise the limits illustrated by Akdeniz v. Turkey (dec.), no. 20877/10, 11 March 2014. The Court rejected an ordinary user’s challenge to the blocking of music-sharing websites for lack of victim status, taking account, among other matters, of alternative lawful means of accessing music. These authorities establish no unconditional entitlement to require a private platform to supply a particular work. My request concerns examination and reform of the legislative framework, particularly where meaningful lawful alternatives are absent. For the Commission, the directly applicable framework is the Charter of Fundamental Rights of the European Union. Article 11 protects freedom of expression and information; Article 51(1) binds the Union’s institutions; and Article 52(1) governs limitations. Article 52(3) connects the meaning and scope of corresponding Charter rights to those guaranteed by the Convention. The Strasbourg jurisprudence is consequently relevant to the Commission’s assessment. The particular position of smaller Member States deserves attention. Their limited commercial attractiveness may discourage local distribution, while territorial licensing prevents consumers from purchasing access elsewhere. A legislative assessment should examine the position of citizens whom these arrangements leave unserved. Against that background, I would appreciate a substantive response addressing: 1. How the Commission assesses the audiovisual exclusion in light of these principles, particularly its consequences for residents of smaller Member States. 2. Whether its evaluation has specifically examined situations in which territorial restrictions prevent a cross-border purchase while no lawful local online offer exists. 3. Whether targeted licensing arrangements could permit paid access in such circumstances while safeguarding copyright, fair remuneration and the financing of audiovisual production. 4. What conclusions the Commission has reached, and what legislative or other measures, with what timetable, it envisages. The existence of a statutory exclusion identifies the present legal position. It leaves open the question whether that position continues to strike an adequate balance between the interests of rights holders and the cultural and informational interests of citizens throughout the Union. Should the Commission’s response constitute a decision adversely affecting my rights or interests, I request that it identify the available administrative or judicial remedies, the competent bodies and the applicable time limits, in accordance with the principles reflected in Article 19 of the European Code of Good Administrative Behaviour. I reserve the right, subject to the applicable admissibility requirements, to seek judicial review under Article 263 TFEU should the Commission adopt a reviewable act. Separately, I reserve the right to submit a petition to the European Parliament under Article 227 TFEU and, should the handling of this correspondence disclose grounds for alleging maladministration, to complain to the European Ombudsman under Article 228 TFEU. I look forward to the Commission’s reasoned response. Yours faithfully, Professor Dr Boštjan M. Zupančič, S.J.D. (Harvard) Former Judge and Section President of the European Court of Human Rights Former Judge of the Constitutional Court of the Republic of Slovenia