EU Portability Regulation to Enable Access to Online Content While Travelling Abroad

Author: Erkko Korhonen

Access to online content while on business trips, holidays, or student exchanges is about to get much easier in the near future. As part of the digital single market strategy, the Council has in June adopted a new regulation on cross-border portability of online content services in the internal market (2017/1128/EU), which will be directly applicable as of 20 March 2018. The increased use of portable devices has led to a growing demand in being able to access online content services regardless of the user’s location. Responding to this demand, the Portability Regulation (the “Regulation”) aims to limit geo-blocking and to allow seamless access to online content services, such as video-on-demand platforms, online TV services, and music streaming services, across all EU Member States.

The Regulation introduces a right for users who subscribe to online content services in their home country to also access the same content when temporarily visiting other EU Member States. The length of this “temporary” stay is not defined exactly in the Regulation, but it states that it means being present in another state for a “limited period of time”. Up until now, this has often not been possible due to the barriers created by the fact that the copyright protected content is often licensed on a territorial basis. The Regulation eases up these territorial restrictions by regulating that temporary use of the services abroad shall be deemed to occur solely in the subscriber’s member state of residence, and thus it will be sufficient that rights and licenses for the content have been acquired for that member state. The service providers will have to verify the users’ member state of residence based on up to two of a total of 11 criteria (including the subscriber’s IP address, payment information, or postal address), which has led to some concern about privacy and data protection.

The cross-border access to online content must not be subject to any additional charges for the users of the service, and the access must also include the same content, range, functionalities, and device possibilities as it does in the user’s state of residence. The Regulation will apply directly to all online content services for which consumers are paying. Free online content services, such as public broadcasters, will have an option to opt in, provided that they are able to prove in which country their subscribers have their permanent residence. Any contractual provisions that are contrary to the Regulation will not be enforceable, so service providers cannot agree with users or rightholders to circumvent the Regulation.

For service providers, the adoption of the Regulation will mean a swift implementation of the technical and contractual measures in order for the portability of the services to be available as of March 2018. Rightholders, on the other hand, will have to tolerate the fact that their content is also distributed in other member states where a licence may not even have been granted. For consumers, it will ultimately create, in the near future, a possibility to travel within the EU while simultaneously enjoying their online content.