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UK consultation on cross-border portability of online content services

Regulation 2017/1128 of the European Parliament and of the Council on cross-border portability of online content services in the internal market (the “Portability Regulation”) comes into force in the United Kingdom on 1 April (Article 11 of the Regulation). The Regulation is designed to make it easier for consumers who live in the European Union (EU) to access online content services they subscribe to (for example, television, film and music subscription services) when they are temporarily located in another Member State of the EU (Article 1.1). This could be, for example, when on holiday or travelling on business.

The Regulation is compulsory for “paid for” subscription services (Article 3.1), which means providers of these services must enable access on a portable basis in the EU. Free-to-access services can also choose to make their content available on a portable basis under the Regulation (Article 6), but are not obliged to do so. Under the terms of the Regulation, there must be no additional cost to subscribers for accessing their content portably when temporarily present in another EU Member State (Article 3.2). In order to protect the rights of copyright owners, portable service providers must verify the home country of their subscribers to ensure they are entitled to access the service in accordance with the Regulation.

Service providers covered by the Regulation will need to verify the Member State of residence of subscribers accessing portable services using up to two methods of verification from an agreed list of verification means. This, for example, may include payment details for the online content service, or the location of an installed set-top box. The verification will have to be undertaken by service providers for each new contract with a subscriber, or upon renewal of an existing contract. Verification is crucial for ensuring that only those subscribers who are entitled to access portable services can do so. Subscribers may be asked to provide information to aid verification. Copyright owners may also authorise provision of portable services without additional verification of a subscriber’s residence and may withdraw that authorisation upon provision of reasonable notice to the service provider.

The “legal fiction” underpinning the portability regulation is designed to ensure that online service providers will not have to renegotiate with rightholders in order to gain permission to provide access to copyright protected content in other Member States. However, they will need to ensure that their contract terms with rightholders and subscribers are up to date and reflect the Portability Regulation where appropriate. Any contract term which disapplies or contravenes the Regulation is unenforceable.

The Portability Regulation is directly applicable in UK law, so does not need to be implemented by Parliament through legislation. The Regulation operates as if it had been enacted by the United Kingdom Parliament. The UK Government has considered what aspects of UK law are relevant. In particular, it has considered what powers should be used; whether any new criminal offences are required; which enforcement bodies are best placed to act; and whether certain duties should be enforceable between private parties. The consultation seeks views on these enforcement means and also on the draft Regulations implementing them.

The Government will not be introducing any new criminal sanctions in this area, and believes that now, and going forward, civil sanctions are the most appropriate mechanism for enforcement. Parties will be able to enforce breaches of the Regulation through private civil litigation. Private remedies are appropriate when the action is of personal, rather than public, interest. Individuals will be empowered to take civil proceedings against the other party.