The cross-border portability regulation is scheduled to come into force in Q1 2018. It still needs to receive approval from the European Parliament.
The regulation states that there are currently various barriers that hinder the provision of online content services to consumers who are temporarily present in a member state other than their own.
But the regulation is unclear in its definition of “temporarily present in a member state” and the council merely outlines several scenarios, such as leisure, travel, business trips or learning mobility, that would be suitable for the new regulation.
The new regulation would only consider the online content service to be provided lawfully if both the service and the content are provided in “a lawful manner in the member state of residence”.
To avoid abuse, service providers will be required to verify the subscriber's’ member state of residence and will be authorised to cease access to the online service when the subscriber cannot prove their origin.
“The means of verification will be reasonable, proportionate and effective. It will consist of using no more than two criteria from a list of verification means. These may include an identity card, a bank account or credit card.”
Rights owners will also have the option to authorise the use of their content without verification of a subscriber’s residence.
Commenting on the new regulation, the Maltese presidency of the European Council said: “Europeans travelling within the EU will no longer be cut off from online services such as films, sporting broadcasts, music, e-books or games they have paid for back home. Together with the ending of roaming charges, this is important progress in creating a digital single market which benefits everyone.”
The cross-border portability right, a key reform of the EU’s Digital Single Market initiative, has attracted severe criticism from rights owners.
More than 400 rights owners and organisations recently wrote to EU leaders, including council president Donald Tusk, to criticise the plan to introduce the cross-border portability right.
According to the letter, the signatory rights holders and organisations believe the cross-border portability right would “severely erode territorial exclusivity”, effectively allowing broadcasters and online streaming services to “buy a licence for one member state” and “get the rest of the EU for free”.
Sports is likely to be hit particularly hard, although the proposed ‘temporary’ nature of the cross-border portability right would have less of a negative effect than full-blown cross-border licensing, according to one study published last year.