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.