The UK Intellectual Property Office (IPO) is seeking views on recently published draft EU legislation that is intended to ensure that European consumers will be able to access digital subscriptions when travelling in other EU countries.

THE ISSUE

30% of Europeans who access films, TV series and sports broadcasts online pay to view them by subscribing to an online service or purchasing and renting them item by item. The issue is that many European consumers cannot access online content services they have legally acquired in their home country when travelling across the EU. “Portable” digital services will allow people to continue to use their online subscriptions available at home, while temporarily in another country.

Portability remains an issue for many types of content because of territorial copyright agreements which govern where services can be accessed. The Commission’s proposals include copyright changes that will to make it easier for subscription providers to make their services available in other EU countries, by providing that the laws of the subscriber’s home country will continue to apply.

The IPO is now seeking a range of views from service providers, rights-holder organisations, and consumers, in order to better understand how they may be affected by the proposals. In particular the IPO has asked for views on the application of the new rules to existing contracts, as the Regulation is expected to apply to existing contracts and acquired rights. The aim is to simplify the introduction of portable services and avoid lengthy contract renegotiation.

THE REGULATION

The key provisions of the draft Regulation are contained in Articles 3, 4 and 5:

  • Article 3 obliges providers of online content services to enable subscribers to access and use their service while temporarily present in an EU member state. Requiring media content providers to make changes to their subscription contracts, enabling users to access their content from anywhere in the EU, is likely to be of concern to some businesses given the potential loss of revenue, for example the potential consequences where subscribers have residences in two different EU countries. However, the Commission has pointed out that the ability to use and enjoy online content when travelling in the EU will make these products and services more attractive to Europeans, and will result in more revenues for the creative sector.
  • Article 4 stipulates that any provision of, and access to, online content that falls within Article 3 will be considered for legal purposes as occurring solely in the Member State where the subscriber lives. Under the proposed rules therefore, the provision of the online content service will be considered to take place in the Member State in which the consumer resides. No separate licence would be required to cover the temporary use of the service in other Member States.
  • Article 5 provides that any contractual provisions between service providers and subscribers, and between service providers and rights-holders, that are contrary to Article 3 or Article 4 shall be unenforceable. However, rights-holders are entitled to reasonably require the service provider to put effective verification measures in place ensuring only genuine subscribers are granted access. This may also include additional re-verification after a certain period of time since the Regulation defines "temporarily present" as being present in an EU country other than the Member State of residence.This could make it difficult to assess whether a person is "temporarily" in another member state or not. For example, would a British person's regular lengthy breaks to a second home in France count as a temporary presence there?

The IPO is seeking comments by 12 February 2016, which will be used to construct the UK’s response to a wider European consultation on the issue. Once this is complete, the aim is for the Regulation to come into force in 2017. This includes a transition period to allow businesses to implement any necessary changes.

MOVING TOWARDS A DIGITAL SINGLE MARKET

The publication of the draft Regulation coincides with additional measures that aim to fulfil the Commission’s Digital Single Market Strategy. The Commission will analyse the legal framework for the enforcement of intellectual property rights, including copyright, by autumn 2016 and has published a roadmap on its geo-blocking proposals, seeking to address unjustified geo-blocking and other forms of digital discrimination based on a consumers' place of residence or nationality. While the Commission's long-term vision of full harmonisation remains well out of reach for the time being, these measures show that the Commission is seeking to make progress in achieving the goals set out as part of the EU’s Digital Agenda.

To read the draft Regulation on ensuring the cross-border portability of online content services in the internal market, click here.