New rules for the cross-border portability of online services in the European internal market come into force from April 2018. This has significant implications for the provision of online video services in Europe. The Intellectual Property Office in the United Kingdom is consulting on the approach to enforcement on behalf of the government.
The aim of the portability regulation is to make it easier for subscribers to use their online content services when they are temporarily in another member state of the European Union. This can be for purposes such as holiday or business travel. The regulation covers, for example, television and film subscription services, and sports services.
Some service providers block access to their services outside the home country of a subscriber, often in order to comply with territorial agreements on the use of copyright protected programming.
Under the regulation, such services must be provided on a ‘portable’ basis throughout the European Union.
This will be compulsory for ‘paid for’ subscription services, which means that providers of these services must enable access on a portable basis in the European Union. Free-to-access services can also choose to make their programming available on a portable basis but are not obliged to do so.
There must be no additional cost to subscribers for accessing programming from these services when temporarily present in another European Union member state.
Differences in national laws and licence agreements, in particular copyright permissions, are accommodated through a ‘legal fiction’ by which a service is deemed to have been provided, accessed and used in the home member state of a subscriber, rather than where they are temporarily present. Any contract term that contravenes the regulation is unenforceable.
Service providers must verify the home country of their subscribers to ensure they are entitled to access the service in accordance with the regulation. They will then be able to rely on the regulation to provide their services on a portable basis, without further authorisation from rights holders.
Providers of subscription services will need to verify the member state of residence using no more than two independent means from a list, such as a payment details and a declaration of address or an internet address check.
The regulation will apply to the United Kingdom before any exit from the European Union. The outcome of the Brexit negotiations will determine what arrangements apply in relation to European Union legislation in the future.
The portability regulation is directly applicable in United Kingdom law, so does not need to be implemented by parliament through legislation. However, the government is considering how it should be enforced and by which bodies. It currently considers that civil sanctions are the most appropriate mechanism for enforcement.
A consultation is open until the end of January on the approach to enforcement. The provisions of the regulation itself are not in scope.
The Cross-border portability of online content services: Consultation is published by the Intellectual Property Office and the consultation closes on 31 January 2018.