Proposal for a regulation of the cross-border portability of online content services in the internal market – objective, guarantee of quality and scope of service
The objective of Regulation (official document) is to adapt the harmonised legal framework on copyright and related rights and to provide a common approach to the provision of online content services to subscribers temporarily present in Member States other than their Member State of residence, in order to ensure that the present barriers to cross-border portability of online content services in the internal market no longer exist. The Regulation should, therefore, apply to online content services that a service provider, after having obtained the relevant rights from right holders in a given territory, provides to its subscribers on the basis of a contract, by any means including streaming, downloading or any other technique which allows use of that content. A registration to receive content alters or a mere acceptance of HTML cookies should not be regarded as a contract for the provision of online content service for the purposes of Regulation.
An online service provider which is not an audio-visual media service within the meaning of Directive 2010/13/EU and which uses works, other subject matter or transmissions of broadcasting organisations in a merely ancillary manner should not be covered by proposed regulation. Such services include web-sites that use works or other protected subject matter only in an ancillary manner such as graphical elements or music used as background, where the main purpose of such web-sites is, for example, the sale of goods.
In order to ensure the cross-border portability of online content services it is necessary to require providers of online content services which are provided against payment of money to enable their subscribers to use the service in the Member State of their temporary presence by providing them access to the same content on the same range and number of devices, for the same number of users and with the same range of functionalities as those offered in their Member State of residence. This obligation is mandatory and therefore the parties may not exclude it, derogate from it or vary its effect. Any action by a service provider which would prevent the subscriber from accessing or using the service while temporarily present in a Member State, for example restrictions to the functionalities of the service or to the quality of its delivery, would amount to a circumvention of the obligation to enable cross-border portability of online content services and therefore would be contrary to proposed regulation.
Requiring that the delivery of online content services to subscribers temporarily present in Member States other than their Member State of residence be of the same quality as in the Member State of residence could result in high costs for providers of online content services which are provided against payment of money and thus ultimately for subscribers. Therefore, it is not appropriate for proposed regulation to require that the provider of an online content service take measures to ensure quality of delivery of such services beyond the quality available via the local online access chosen by a subscriber while temporarily present in another Member State. In such cases the provider shall not be liable if the quality of delivery of the service is lower. Nevertheless, if the provider expressly guarantees certain quality of delivery to subscribers while temporarily present in other Member States, the provider shall be bound by such guarantee. The service provider should provide its subscribers in advance with information concerning the quality of delivery of an online content service in Member State other than the Member State of residence, in particular information that the quality of delivery may vary from the quality of the delivery of the online content service in the Member State of residence. Such information could be provided on the provider's website.