After publication in the Official Journal of the European Union, Regulation (EU) 2017/1128 of the European Parliament and of the Council of June 14th on cross-border portability of online content services in the internal market enters into force June 20th, although it will not become enforceable until March 20th 2018.
The Regulation centres on the seamless access to online content services across Member States, aimed at permitting consumers to have access to the online content services which they have subscribed to, regardless whether they are temporarily present in a Member State other than the Member State of residence for a limited period of time.
A number of barriers have historically hindered the provision of online content services to consumers temporarily present in a Member State other than their Member State of residence, in particular the fact that the rights for the transmission of content protected by copyright or related rights, such as audiovisual works, are often licensed on a territorial basis, as well as from the fact that providers of online content services might choose to serve specific markets only.
The Regulation applies to providers whose services are provided against payment of money. Providers whose services are provided without payment of money do not fall within the scope of the Regulation such as the BBC iPlayer. They may, however, decide to enable cross-border portability of their services in accordance with the Regulation.
As of March 20th 2018, providers of online content services shall enable their subscribers who are temporarily present in a Member State to access and use the online content service in the same manner as in the Member State of residence. This shall include access to the same content, on the same range and number of devices, for the same number of users and with the same range of functionalities. The provider shall not impose any additional charges on the subscriber.
At the conclusion and upon the renewal of a contract for the provision of an online content service, the provider shall verify the Member State of residence of the subscriber by using not more than two of the means of verification, as identified in the Regulation, such as the subscriber’s identity card, payment details, place of installation of a set-top box, billing address, postal address, or IP address.
Providers shall comply with the obligation to verify the Member State of residence of subscribers of existing contracts by May 21st 2018.
Although the provision of cross-border access to online content may be in conflict with the provider’s licence restrictions, right holders cannot prevent cross-border provision under the Regulation, with the provision of an online content service to a subscriber who is temporarily present in a Member State other than the Member State of residence being deemed to occur solely in the subscriber’s Member State of residence. In addition, the Regulation makes clear that any contractual provisions, including those between providers of online content services and right holders, which are contrary to the Regulation, shall be unenforceable. Accordingly, right holders will need to tolerate distribution of their content even in jurisdictions where they have not granted any licence.
According to experts at law firm Reed Smith (Worldwide) companies providing online content services should have in mind the Regulation’s due dates, and are called on to start preparations to ensure that subscribers will have cross-border access. “While consumers will enjoy unrestricted access to the contents they have subscribed to, right holders will not be able to prevent cross-border provision of online content services,” they conclude.