On June 14, the new EU regulation on the portability of online content was signed by the President of the European Parliament and the President of the Council. The regulation is expected to be officially published in the Journal of the European Union shortly, and will enter into force for all Member States without the need of implementation into national law nine months after its official publication, i.e. in the first quarter of 2018.
The rules aim to ensure that subscribers of online content services have access to such content under the same conditions as in their country of residence when temporarily visiting another Member State. During the time of the stay – which must be “limited in time”, but no maximum time period is given – the service is deemed to occur solely in the Member State of permanent residence. This allows providers to grant access to their service without obtaining a license for such other territories where subscribers are temporarily staying. The regulation will apply to the subscription of audio-visual content and other copyright protected materials or transmissions, such as music, videos, e-books or broadcasts. Contractual provisions circumventing the regulation are unenforceable.
While the portability obligation generally addresses providers of paid-for services, the regulation allows other service providers to opt in voluntarily. These service providers may then also deliver online content to their subscribers when they are temporarily visiting another Member State, subject to the condition that the subscriber’s residence is verified and the subscribers and respective right holders are informed about the provider’s opt-in. The regulation outlines how service providers must verify their subscribers' ordinary residence, but only allows them to check two out of a list of 11 criteria, including inter alia payment details, billing and postal address, IP address, and publicly available tax information as available criteria. Content owners may waive the requirement of verification.
Despite the unclear duration of “temporarily” under the Regulation, operators will need to monitor their subscribers’ user habits. This may be difficult to achieve for for-free services that usually do not have the required technologies in place.