EIBF and the Federation of European Publishers (FEP) have joined forces to highlight the main changes we are proposing to the Digital Markets Act (DMA) proposal for it to truly benefit the book sector
The book sector has long suffered the consequences of tech giants’ growing dominance and unfair practices. While we welcome this long-awaited regulation, we believe more is needed to ensure the DMA has a real impact on the sustainability of the book sector, particularly in regards to its scope, interoperability requirements and future proofness.
EIBF and FEP together call for:
- Clarification of the scope to cover retailing activities
For many years, some online marketplaces have become essential for booksellers and publishers to reach out to their customers. They can hardly be avoided.
In light of the ever-increasing market dominance of these marketplaces and the growing unfair and anticompetitive practices they implement, they have turned into real ‘online gatekeepers’ of unparalleled scope and scale.
A number of marketplaces acting as gatekeepers rely on a business model that combines two different activities running alongside each other, in a manner that is indistinguishable by the average consumer: an intermediation service (e.g. a bookseller selling books as a third party through the marketplace) and a retailing activity (i.e. the marketplace selling books directly).
While the online marketplace’s intermediation activity falls within the scope of the DMA, it is currently unclear if the parallel retailing activity of marketplaces acting as gatekeepers would be subject to the regulation’s obligations.
Call to action: the parallel retailing activity of gatekeepers should also be covered by the DMA to ensure that the regulation fulfils its ambitions.
- Broader interoperability requirements
The DMA proposal includes some provisions for interoperability. However, the scope for interoperability is severely limited, applying only to ancillary services, applications services (apps) and applications stores (app stores).
Furthermore, no definition for interoperability is provided in the proposal, which leads to potential ambiguity on the precise meaning of interoperability in this context.
The interoperability of digital services and digital content, along with the required software and hardware with which they operate, is essential to ensure that consumers can truly choose how to access the digital content and services that they wish to purchase.
Call to action: an ambitious definition and scope for interoperability is needed, which should build on existing definition in the EU Directive on contracts for supply of digital content.
- Further clarifications to ensure future proofness
Business users should be allowed to freely conduct their trade on the online direct sales channels they own and at conditions that are not set by the gatekeeper. Therefore, it should be clearly specified that obligations for gatekeepers on MFN clauses also apply the business user’s own online direct sales channels.
Furthermore, if the DMA provides for third party business users to raise concerns about unfair behaviour by gatekeepers with any relevant administrative or other public authorities, it should also be clear for the business user and, from the start, which court jurisdiction applies. Therefore, information on court jurisdiction should be drafted in plain and intelligible language and communicated to the business users in a clear and straightforward way from the start of the business user’s contract with the gatekeeper’s core platform service.
On a final note, as the DMA will be subject to a review clause, we suggest to take stock of the lessons learned until the first review, and then take into consideration the possible benefit that its application to ‘smaller’ gatekeepers might bring to regional markets.
Call to action: Stricter obligations for gatekeepers on most-favoured-nation clauses and contractual obligations with third-party sellers; clear information on the jurisdiction of specific courts and future flexibility on the DMA’s review clause, keeping the rise of ‘smaller’ regional gatekeepers in mind.
Read the full exploratory statement here.
For more information on the EIBF's position, please get in touch with Daniel Martín Brennan, EU Affairs Officer.