In December 2015 we published a briefing on the European Commission's proposal and draft Regulation on ensuring the cross-border portability of online content services in the EU. By way of reminder, the Regulation seeks to enable consumers to view content for a service they have “subscribed to” in their home territory while temporarily located in another EU Member State.

A revised proposal has recently been leaked and was discussed at the April meeting of the European Council’s Working Party on Intellectual Property (Copyright), giving a useful insight as to where things are heading prior to the Regulation being finalised.

The revised proposal clarifies that the Regulation will not apply to online content service providers that offer services free of charge and do not verify their subscribers' Member State of residence. It further clarifies that payment of a mandatory fee by a subscriber, such as a broadcasting licence fee, should not be regarded as a payment of money for the purpose of determining whether the Regulation applies.

On this basis, services such as the BBC's iPlayer will clearly fall outside the scope of the Regulation, although providers will have the option to "opt-in" to the Regulation by notifying subscribers and rights holders accordingly. This may be useful where a service provider wants to benefit from the protections afforded by the Regulation (such as making unenforceable contractual clauses designed to prohibit or limit the cross-border portability of online content services covered by the Regulation), but would ultimately be up to the service provider concerned.

In terms of user verification, the revised proposal provides that unless the Member State of residence of a subscriber can be sufficiently established on the basis of a single verification means, the provider should rely on a combination of means. A number of additional examples of verification means have been introduced in the revised proposal, including declarations from the subscriber and registration on electoral rolls.

Helpfully, the revised proposal makes clear that if a subscriber does not provide information necessary for the online content service provider to verify their Member State of residence, then the provider is released from the obligation to provide cross-border portability.

Unfortunately, the question of what it means to be "temporarily present" is still not precisely addressed in the Regulation. Many have criticised this aspect of the original draft and one can only hope further clarification will emerge as the Regulation gets closer to being finalised.

The EU Commission has stated that it wants the new Regulation to come into force in 2017, meaning it will need to find agreement on the draft with the other European institutions later this year.