February 20, 2017

The European Commission has announced a political consensus on the Regulation on ensuring cross-border portability of online content services in the internal market, which it now expects to enter into force at the beginning of 2018. In a series of press releases and FAQs, the Commission confirmed that negotiations between itself, the European Parliament and Council of Ministers concluded with agreement on the form of the new Regulation which will, in the Commission’s words, allow Europeans “to fully use their online subscriptions to films, sports events, e-books, video games or music services when travelling within the EU”.

In the FAQs, the Commission sets out the key practical points arising from the agreed text. The Portability Regulation concerns online content services providing access to films, sports broadcasts, music, e-books and games. It therefore extends to video-on-demand platforms (Netflix, HBO Go, Amazon Prime, Mubi, Chili TV), online TV services (Viasat’s Viaplay, Sky’s Now TV, Voyo), music streaming services (Spotify, Deezer, Google Music) or game online marketplaces (Steam, Origin).

The Commission says the Regulation will “benefit” online platforms since, “they will be able to provide cross-border portability to consumers without having to acquire licences for other territories”. It will also “benefit” right holders who “will be able to rely on strong safeguards which protect their rights against abuses”.

Service providers will have to verify the subscriber’s country of residence. This will be done at the conclusion and renewal of the contract: “Service providers will be able to verify the country of residence on the basis of information such as payment details, payment of a licence fee for broadcasting services, the existence of a contract for internet or telephone connection, IP checks or the subscriber’s declaration about his or her address. The service provider will be able to apply up to two means of verification from the list included in the Regulation.”

The Regulation does not extend to free services unless the service provider chooses to benefit from the new rules: “Once they opt-in and provide portability under the Regulation, all rules will apply to them in the same manner as for the paid services”.

As the FAQs also highlight, the Regulation will guarantee the portability of online sports subscription services. In other words, the new rules apply: “where sports are part of TV or radio programme available online, where sports are part of the overall online service package, the main feature of which is the provision of works protected by copyright or related rights (e.g. films and series), but also where a sports organiser sets up a dedicated online content service”.

The agreed text must now be formally confirmed by the Council and the European Parliament. Once adopted, the rules will become applicable in all EU Member States by the beginning of 2018 as the Regulation grants providers and right holders a nine-month period to prepare for the application of the new rules. To read the Commission’s announcement “EU to let citizens take their digital services across borders” and for related links, click here.