EC unveils controversial content portability plans

The European Commission (EC) has formally unveiled plans to allow Europeans to travel within the EU with their online content as part of the Digital Single Market (DSM) strategy announced in May.

The Regulation on the cross-border portability of online content – which would allow EU residents to travel with the digital content they have purchased or subscribed to at home – is expected to become a reality in 2017, the same year when roaming charges will disappear in the EU.

Before this happens, the rules on portability will need to be discussed with and endorsed by the European Parliament and the Council of the European Union, but since the Regulation will be directly applicable, there will not be any need for the 28 Member States to implement the rules into national law.

As a Commission document explained: “The Regulation will oblige content service providers to offer cross-border portability to their customers.

“Under the proposed rules, the provision of the online content service will be considered to take place in the Member State in which the consumer resides. No separate licence would be required to cover the temporary use of the service in other Member States.

“This legal mechanism will allow service providers to offer cross-border portability without the need to re-negotiate the licences existing between rights holders and service providers,” the document added.

“Rights holders might wish to discuss details concerning the application of the Regulation with service providers, such as ‘temporary presence’, but this could well be part of the periodic licence renewal process.”

Presenting the proposals in Brussels today, EC vice-president Andrus Ansip said the announcement of the Regulation and an action plan to modernise EU copyright rules were “two steps that will make a real difference for 500 million Europeans.”

He compared today’s announced plans to the changes made to roaming charges: “People will feel the difference straightaway. It is another step that will bring Europe closer to a borderless digital economy and society.”

“The Regulation on portability today is an appetiser,” Ansip’s colleague Günther Oettinger added. “The main dishes will come next year.”

Copyright action plan

According to the Commissioners, the copyright action plan will be translated into a number of legislative proposals and policy initiatives in the next six months.

Details of the plan in the Commission’s Communication, entitled ‘Towards a modern, more European copyright framework’, had in fact already been leaked at the beginning of November.

Among other things, the plan envisages using the Creative Europe framework programme to develop innovative tools such as a ‘European aggregator’ of online search portals and ‘licencing hubs’ to promote the distribution of films which are only available in a few Member States.

In addition, a public consultation was launched today on the evaluation and modernisation of the existing legal framework for the enforcement of intellectual property rights (including copyright) in the EU.

This could lead to the Commission drafting a possible revision of the framework by the end of 2016.

Moreover, the Commission noted in today’s communiqué that “an aspiration for the future” would be the creation of a single copyright code and single copyright title applicable across the EU.

First reactions

In a first reaction to the Commission’s proposals, John McVay, CEO of UK’s producers’ trade body PACT issued a note of caution: “We want to continue to work with the EU institutions to ensure the proposed Regulation for portability works for both consumers and industry. Unfortunately the current proposal falls far short of that goal due to inadequate safeguards to prevent abuse and a lack of clarity in key concepts like the meaning of ‘temporary’.

It is critical that portability is conditional on robust and effective authentication of consumers’ country of residence. We urge the EU institutions to address these issues as a matter of urgency.”

“The Commission’s proposals to mandate cross border access to digital content remain a significant concern for producers, distributors and broadcasters of film and TV content in the UK and across the EU,” McVay added. “Any intervention that undermines the ability to license on an exclusive territorial basis will lead to less investment in new productions and reduce the quality and range of content available to consumers.”

There was a mixed response from European pressure groups representing content creators. The Society of Audiovisual Authors (SAA), the Federation of European Film Directors (FERA) and the Federation of Screenwriters in Europe jointly commented:

“While SAA, FERA and FSE support the objective of improved circulation of European works, we consider that only active promotion which brings European works to European citizens’ direct environment will make a difference in a highly competitive market dominated by Hollywood productions”.

Barbara Hayes, chair of the SAA board of directors said: “Action on authors’ remuneration is very much linked to the fostering of a sustainable online marketplace for European works by enabling screenwriters and directors to receive continued royalties for previous works while working on the development of future projects.”

Cécile Despringre, executive director of the SAA added: “We do not understand the Commission’s long-term vision of a unified copyright title as if it was in its DNA to harmonise everything. This simplistic and bureaucratic vision is in clear contradiction with the EU’s political motto “United in diversity” which acknowledges exactly what the EU is about.”

Pauline Durand-Vialle, CEO of FERA stated: “Any actual improvement of authors’ remuneration will require a thorough approach by the Commission based on improved contractual practices as well as increased collective bargaining and collective management of rights.”

Meanwhile, MEP Julia Reda, Greens/European Free Alliance and copyright spokesperson, commented that the proposals didn’t go far enough: “While it is welcome that the Commission is finally looking to update the EU’s outdated rules regarding digital content and copyright, the piecemeal approach in today’s proposals will fail to properly dismantle digital borders.”

“The proposed new rules on the portability of digital content only address a narrow spectrum of the problems faced by users. The proposals will clearly benefit those who have subscriptions to providers like Sky or Netflix and want to use them while abroad,”  she argued.

“Overall, the copyright reform proposals are a far cry from commitment by Commission president Juncker to ‘break down national silos’ in copyright and ignore many demands made by the EU Parliament,” suggested Reda who had authored the European Parliament report on copyright.

Meanwhile, MEP Angel Dzhambazki of the European Conservatives and Reformists Group (ECR) noted: “As we try to move the EU Single Market into a digital age, it is important that we have clear copyright rules to help the growth of a number of industries, but particularly creative industries like arts, film and music whilst keeping in mind the importance of cultural heritage.”

“Our current copyright rules are patchy, outdated, and often poorly enforced, giving producers of content a lack of certainty that they will get the rewards they deserve,” the shadow rapporteur on copyright said.

Turning to the geo-blocking proposals in the portability regulation, the ECR Group’ consumer protection spokesman, UK MEP and former cricket player Daniel Dalton, remarked that “the basic principle should apply that if you’re paying for a subscription to a service then you should not be blocked from accessing it when you go elsewhere in the EU temporarily.”

“Of course, broadcasting rights are territorial and we need to make sure that the law does not have unintended consequences on incomes that pay for quality programming. However, people rightly say to me that they thought they lived in an EU Single Market, so why can’t they watch a movie or some cricket that they have already paid for when they go on holiday? I would much prefer for the market to find an answer to their question, but so far it has failed to do so.”

Speaking for the Socialist and Democrats Group (S&D) in the European Parliament, MEP Evelyn Regner suggested that the Commission’s copyright communication was “a first step but it is lacking in direction. We hope that future proposals will be ambitious and respond to the needs of citizens and the cultural sector.”

S&D’s vice-president Joe Weidenholzer added that “a revised copyright law is a chance for both Europe’s cultural sector and its consumers. It could provide more clarity for citizens who purchase content online and give artists greater legal certainty and fairer remuneration, while at the same time tapping the full potential of the internet. Consumers and EU businesses need to know what their rights are regarding online content or services.”

“While I am looking forward to working on the portability proposal, I am awaiting the Commission’s legislative proposals on Copyright in order to make the necessary changes a reality,” Weidenholzer concluded.