As the second of a series of five, this blog post focuses on the first legislative proposal for European copyright reform: the proposal for a regulation on ensuring the cross-border portability of online content services in the internal market.

Background

The Digital Single Market (DSM) strategy – presented in May 2015 – contains 16 initiatives in a variety of fields such as telecommunication, consumer rights and Big Data, each of which is intended to bring us one step closer to the European digital single market. Our DSM Watch team is a multi-jurisdiction, cross-practice group working together to keep you informed as the initiatives under the DSM strategy roll out.

One of the 16 initiatives focuses on copyright reform. On 9th December 2015, the European Commission presented its action plan “Towards a modern, more European copyright framework” which touches upon four different topics. Additionally, the Commission provided a draft Regulation on cross-border portability of online content services.

Last month we presented the first topic “Widening access to content across the EU” in our blog. Posts on the other three main themes (Exceptions to copyright, Creating a fairer marketplace and Fighting Piracy) will follow over the coming weeks, but this blog focuses on the draft portability Regulation.

Cross-border portability of online content services

The proposed Regulation addresses a problem that people face when travelling within the EU. A user living in France and paying for an online content service (for example, Netflix or Maxdome) is usually not able to use their subscription of the online service whilst staying abroad for work or on holiday. Therefore, the Regulation aims to ensure access to online services on a temporary trip to another member state. Art. 3 (1) of the draft Regulation states:

The provider of an online content service shall enable a subscriber who is temporarily present in a Member State to access and use the online content service.

The draft covers both paid for online services and also free services if the residence of the user can be verified by the service provider.

Despite its brevity (only eight short articles) the draft Regulation has already attracted criticism. In particular, the term “temporarily present” that is crucial for the understanding of the scope of the portability is neither defined in the Regulation nor in the explanatory memorandum. Does it include one, two or three weeks per year? If so, does that time frame have to be continuous or does the user take advantage of portability several times per year? At its launch press conference on 9 December 2015, Commissioner Oettinger stated that it will be for online service providers themselves to determine reasonable timeframes.

If the European legislature does not clarify this aspect in the Regulation itself, it is only a question of time before the European Court of Justice has to deal with this question. Another aspect that needs to be kept in mind when it comes to portability is the efficient enforcement of the Regulation. Problems are likely to arise in the context of the verification of the Member State of residence as well as the verification of the temporary presence of a user.

The draft is the first small step towards reforming European copyright. Due to Article 288 (2) on the Functioning of the European Union, once it is formally published the finalised Regulation will apply directly in all Member States and will not require implementation in each Member State. Assuming a reasonably trouble-free passage through the legislative process, the Commission has indicated that the Regulation may come into force in 2017.