By recently approving the proposal for a Regulation ensuring the cross-border portability of online content services in the internal market, the European Parliament took yet another step towards the so-called Single Digital Market.
Online content services are booming. According to a recent survey by the European Commission, in 2016, 64% of Europeans used the Internet to play games, listen to music, and watch or stream movies and sporting events. To do so, they are increasingly subscribing to online content service providers, such as Spotify or Netflix. Naturally, many Europeans expect to be able to use their subscriptions when traveling abroad within the EU.
However, at present, this is rarely possible since, in general, the rights related to the transmission of content by these services, be it audiovisual works or sporting events, form the object of territorial licenses which differ from one country to another.
This leads to a segmentation of the Single Digital Market as some content providers are dissuaded altogether from offering their services across Europe due to the number of licenses they would have to obtain while others decide for commercial reasons to focus only on selected markets within the EU.
The new Regulation is intended to introduce greater flexibility and fluidity in this regard.
The idea is that consumers residing in the European Union should be able to access and use online content services when they are in another EU Member State as if they were in their home country. Likewise, service providers, such as online platforms, should be able to offer their subscribers cross-border portability without having to acquire additional licenses for other EU territories, the licence being deemed to follow the subscriber.
The good news is that subscribers cannot be charged an additional fee in order to benefit from this extended scope.
The Regulation also prohibits services providers, which may be tempted to shirk their new portability obligation, from using "circumvention techniques", such as imposing restrictions on the functionalities of the service in other Member States.
It should be noted however that while a Belgian subscriber may be able to use his or her subscription anywhere in the EU, this does not mean that the subscriber will automatically have access to the full range of online content services offered in the Member State he or she is visiting (e.g. Netflix may propose a better selection in another country than in Belgium). Indeed, the access guaranteed by the Regulation extends only to the services to which the consumer has subscribed in his or her Member State of residence and the content of these services.
In order to prevent abuse, the Regulation provides for a mechanism to verify the subscriber's Member State of residence when entering into or renewing a subscription.
To this end, the Regulation lists various technical and organisation means which may be used to authenticate the subscriber's Member State of residence, such as an identity card, payment information, the place of installation of the subscriber's terminal or decoder, a statement by the subscriber, or verification of the IP address. It should be noted that service providers can use no more than two of these means and must do so in a reasonable, proportionate and efficient manner. For example, information about the subscriber's IP address may be collected but it should not be possible to determine the subscriber's precise location. The proposed Regulation has been adopted by the European Parliament and the Council, the new rules will be applicable nine months after the official publication date of the Regulation.
Let's hope that this summer is the last one in which European holidaymakers are told that "[t]his content is not available in your region".