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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry
Posted in Copyright, Digital Single Market (EU), Entertainment & Content, Policy & Regulation Alastair ShawPenny ThorntonEva Vonau

DSM Watch: EU online content services Portability Regulation will become law in its current form: Council adoption 8 June 2017

DSM Watch has been tracking this, the first legislative proposal published by the Commission under the Digital Single Market strategy banner, since back in December 2015.  The Commission’s aim was to allow consumers who pay for online content services in their home country to access them when visiting another country within the EU.

In our 10 February 2017 blog we looked at the Commission’s approach to the tricky question of what being “temporarily” in another EU Member State would mean, and how that could be verified.  Since then, that and other knotty issues around the proposal have been hashed out between the Commission, the EU Parliament and the EU Council of Ministers (Council), with negotiations culminating a few days ago with the adoption by the Council of a draft proposed by the Parliament on 18 May.

This means that once the draft Regulation in its present form is signed off by the Presidents of the Parliament and Council respectively, and once published in the Official Journal, the law will come into force nine months later, having direct effect in all EU Member states (including the UK).  The start date is currently expected to be in Q1 2018.

DSM Watch will be back soon with an analysis of the main changes to the draft law since the original 2015 proposal, but in the meantime here’s how the EU Council press release summarised how the Portability Regulation has turned out.

“It will apply to all online content services which are provided against payment of money. Free to air services, such as those provided by certain public broadcasters, will have the option of benefiting from the regulation provided that they verify the country of residence of their subscribers.

Current obstacles to cross-border portability of online services arise from the fact that the rights for the transmission of content protected by copyright such as audio-visual works as well as rights for premium sporting events are often licensed on a territorial basis. Online service providers may choose to serve specific markets only.

The provision of cross-border portability will not be subject to any additional charges.

The new measures will ensure equal access from abroad to content legally acquired or subscribed to in the member state of residence when on holidays, business trips or limited student stays.

To avoid abuses, service providers will verify the subscribers’ member state of residence. The verifications will be carried out in compliance with EU data protection rules.

The provider will be authorised to cease the access to the online service when the subscriber cannot prove his/her member state of residence.

The means of verification will be reasonable, proportionate and effective. It will consist of using no more than two criteria from a list of verification means. These may include an identity card, a bank account or credit card; the address of installation of the device for the supply of services; the payment by the subscriber of a licence fee for other services; an official billing or postal address; etc.

But copyright holders will have the possibility of authorising the use of their content without the obligation to verify the subscriber’s residence.”

  • EC Commission press release in full, here.
  • Final form of Regulation on cross-border portability of online content services in the (EU) internal market, here.