The Proposal of the EU Commission for a Regulation on Ensuring the Cross-Border Portability of Online Content Services in the Internal Market

Abstract

INTRODUCTION Online content is often displayed on portable devices. It is technically accessible by any computer device with an access to electronic services. End users having a subscription have an interest to access services wherever users are and whenever they want to have access. Within the European Union this interest is protected by the freedom to move. The European Commission wishes to secure this interest by imposing on service providers an obligation to grant access not only within the territory of the consumer's ordinary residence but also in territories of temporary residence. This obligation is the kernel of the proposal of a Regulation to ensure cross-border portability. Consumer organisations support the proposal, arguing that clients who have subscribed to services in their home country have a legitimate interest in also using the services when on vacation or when studying abroad. Service providers support the suggestion because they have an interest in levelling up the quality of their platforms. On the other hand, content rights holders put up resistance. They fear that the difference between temporary and ordinary residence remains unclear. Scenarios where this right could be misused are suggested. The overall fear is that the territoriality principle in copyright law and territorial licence schemes will be undermined. The text will discuss the future of the digital market within this seemingly small scope and its impact on other areas. It will focus on contract law and intellectual property rights. It argues that the proposal is a limited but necessary step forward from a legal policy point of view, which will help to build a unified digital market. In the long run, it will not only help to strengthen consumer trust but also foster new business models which are more tailored to a connected world. PORTABILITY – WHY DO WE HAVE TO REGULATE IT? Portability is about old facts in new clothes. Freedom of movement allows you to take your belongings with you wherever you go. In the digital world these belongings sometimes consist of having access to information which is made accessible on computer servers. Subscriptions to video download services in the present world very often grant ubiquitous and direct access only within the limits of contractual rights. Contractual rights depend on licences from content providers. Content providers very often grant licences on a territorial basis, thus splitting up the unified digital market into licence territories.