On 9 December 2015, the European Commission presented a proposal to allow Europeans to travel with their online content across EU. This proposal is part of the Commission’s Digital Single Market strategy, aiming to improve online access to digital goods and services and create an environment where digital networks and services can prosper.

To this date, EU residents travelling within the European Union may be deprived for equal access to online content legally acquired in their home country (films, series, games, sports, news broadcast, music and e-books, etc.). An important step towards the Digital Single Market is the abolition of roaming charges in Europe by June 2017, according to the European Parliament’s vote of October 2017. The new December proposal of the Commission aims at creating a cross-border portability right.

What is the key point of the Commission’s proposal?

The proposal aims at adopting a new EU regulation creating a new right for EU consumers: cross-border portability. This new EU right would allow consumers to access their online content services while they are travelling in the EU.

To this extent, article 3 of the proposed EU regulation establishes the obligation for service providers to enable a subscriber to use the online content service while the subscriber is temporarily present in another Member State.

What is the scope of service provider’s obligation?

In offering the cross-border portability feature, the provider shall not limit consumer’s access to his or her content services while they are in another EU countries. However, the provider shall not be liable if the quality of the service is not identical as the one provided in the country of residence. Still, the provider shall inform the subscriber on the quality of the service when accessed and used in a different EU country.

How cross-border portability will deal with rights of copyrights holders and other third parties?

Article 5 expressly states that contractual or copyrights holders rights will not be enforceable if contrary to the consumer’s right to cross-border portability. Still, copyrights holders and persons holding any others rights in the online content may require the service provider that the means to ensure cross-border portability are reasonable and do not go beyond what is necessary to achieve such purpose. It is still however to determine how such limitation will be used in practice.

It is also worth noting that under article 7 of the proposed regulation, the cross-border portability will apply to existing contracts concluded and rights acquired before the date of application of the regulation.

By Benjamin Znaty

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