On Thursday, European ministers for Competitiveness (click here to visit the official webpage) adopted a ‘general approach’ on a regulation aimed at ensuring the cross-border portability of online content services within the EU (music, films, games, sporting events).

The proposal (download the pdf) was tabled last December by the European Commission within the framework of the strategy for an internal market for digital content and services. It aims to remove the obstacles to cross-border portability, so that users who are subscribed to online content or have acquired online content in their Member State of residence may access this content even when they are temporarily in another Member State.

The portability obligation would apply to online content services that a provider, “after having obtained the relevant rights from right holders in a given territory, provides” for a fee “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”. 

The subscriber would have 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”. Free services, such as those offered by public broadcasters, could also benefit from the regulation provided that they verify the country of residence of their subscribers, as specified by the Council’s press release. This approach is welcomed by the EBU (European Broadcasting Union), which nonetheless believes that cross-border access to providers’ programmes would be more effectively guaranteed by extending the principles of cable and satellite licensing fees to online services, an option currently being examined by the European Commission (see report). 

At the end of some intense negotiations, the Dutch presidency of the EU came up with a compromise proposal (download pdf), although two points could not be agreed on, as they were judged unacceptable by some Member States: the definition of “temporarily present in a Member State” and the waiver of the service provider’s obligation to verify the Member State of residence of the user.

In the case of the former, certain countries (France, Spain, Italy, Greece), under pressure from right holders, wanted to limit the notion of “temporarily present in a Member State” in time, requiring this to be “transient and short”. By doing so they wished to prevent overly broad or unfair interpretations of the notion that would grant de facto cross-border access to content.

Secondly, to protect the interests of right holders, online content service providers would have to verify the Member State of residence of their subscribers using “reasonable” means before allowing the portability of their content. 

According to most Member States, the regulation should include a provision allowing right holders to waive this verification obligation so as not to unfairly limit their freedom to authorise the use of their content as they see fit. In such an event, the Member State of residence of the subscriber would be established by an agreement concluded between the online service provider and the subscriber. 

The text must now be endorsed by the European Parliament. French MEP Jean-Marie Cavada (ALDE) will submit a report in July to the Committee on Legal Affairs (JURI), after consulting with stakeholders at a public hearing held last month. The text is expected to be voted on in October.

(See the Compromise Proposal of the Presidency for a Regulation of the European Parliament and of the Council on ensuring the cross-border portability of online content services in the internal market here.)