Proposal for a regulation of the cross-border portability of online content services in the internal market – subject of appliance and territoriality of rights in content
Proposed regulation (official document) should apply only to online content services which subscribers can effectively access and use in the Member State in which they habitually reside without being limited to a specific location, as it is not appropriate to require service providers that do not offer portable services in their home country to do so across borders. Regulation should apply to online content services which are provided against payment of money. Providers of such services are in a position to verify the Member State of residence of their subscribers. The right to use an online content service should be regarded as acquired against payment of money whether such payment is made directly to the provider of the online content service, or to another party such as a provider offering a package combining a telecommunications service and an online content service operated by another provider. The payment of a mandatory fee such as a broadcasting licence fee should not be regarded as a payment of money to receive an online content service.
Providers of online content services which are provided without payment of money normally do not verify the Member State of residence of their subscribers. The inclusion of such online content services in the scope of proposed regulation would involve a major change to the way these services are delivered and involve disproportionate costs. On the other hand, the exclusion of these services from the scope of the proposed regulation would mean that these services would not be able to take advantage of the legal mechanism provided for in proposed regulation and enabling online service providers to offer their services on a portable basis across the Union even when they decide to invest in means allowing the verification of their subscriber’s Member State of residence. This is why providers of online content services which are provided without payment of money should have an option to be included in the scope of proposed regulation if they so decide and provided that they comply with the requirements on the verification of the Member State of residence. If they exercise that option, they should be obliged to comply with the provisions of proposed regulation in the same way as providers of online content services which are provided against payment of money. Furthermore, they should inform subscribers, the relevant holders of copyright and related rights and those holding any other rights in the content of online content service of their decision to exercise that option. Such information could be provided on the provider's website.
In order to ensure that providers of online content services which are provided against payment of money comply with the obligation to provide cross-border portability of their services without acquiring the relevant rights in another Member State, it is necessary to stipulate that those providers which lawfully provide portable online content services against payment of money in the Member State of residence of subscribers are always entitled to provide such services to those subscribers when they are temporarily present in another Member State. This should be achieved by establishing that for the purposes of proposed regulation the provision of, the access to and the use of such online content service should be deemed to occur in the Member State of the subscriber’s residence. An online content service is provided lawfully if both the service and the content are provided in a lawful manner in the Member State of residence. Proposed regulation and in particular the legal mechanism localising the provision of, the access to and the use of an online content service in the Member State of the subscriber’s residence does not prevent a service provider from offering its subscriber who is temporarily present in another Member State an online content service that the provider lawfully provides in that Member State.
For the licencing of copyright and related rights, this means that relevant acts of reproduction, communication to the public and making available of works and other protected subject-matter, as well as the acts of extraction or re-utilisation in relation to databases protected by sui generis rights, which occur when the service is provided to subscribers when they are temporarily present in a Member State other than their Member State of residence, should be deemed to occur in the subscribers’ Member State of residence. The providers of online content service which are provided against payment of money, therefore, should be deemed to carry out such acts on the basis of the respective authorisations from the right holders concerned for the Member State of residence of these subscribers. Whenever service providers can carry out acts of communication to the public or reproduction in the Member State of the subscriber on the basis of an authorisation from the right holders concerned, a subscriber who is temporarily present in a Member State other than his Member State of residence should be able to access and use the service and where necessary carry out any relevant acts of reproduction such as downloading which he would be entitled to do in his own Member State of residence. The provision of an online content service by a service provider to a subscriber temporarily present in a Member State other than his or her Member State of residence and the use of the service by such a subscriber in accordance with proposed regulation should not constitute a breach of copyright and related rights or any other rights relevant for the use of the content in the service.