December 9, 2015

The European Commission has today issued a proposed Regulation aiming to enable users of content services, such as Spotify and Netflix, to access their services while temporarily abroad in the EU.

Service providers typically acquire rights to the works comprising their services on a territorial basis and providing access to users outside the licensed territory would therefore infringe copyright and breach contract. To remedy that, the proposed Regulation aims to enable “portability” by creating a legal fiction which localises the service as well as the user in the user’s Member State of residence when accessing the service from another EU Member State. In addition, the proposed Regulation provides that contractual terms proscribing such portability are unenforceable.

These provisions appear to be conditioned on the user’s Member State of residence being ascertained by the service provider and the user being abroad “temporarily”. Unfortunately, the proposed Regulation leaves much to be desired as to the robust authentication of the user and it makes no attempt at all to define temporary. These are therefore matters which may need to be addressed in the legislative process, in licence renegotiations and ultimately by national courts and the Court of Justice of the European Union.

The proposed Regulation will now be considered by the Council of Ministers (Member States) and European Parliament and amendments are likely to be negotiated before the Regulation becomes law. Commissioner Oettinger hopes the Portability Regulation “becomes reality for European consumers by 2017 so that they can enjoy their favourite content also when they travel in the EU – and without the fear of roaming charges, which will end by mid-2017”.

In addition to the proposed Regulation, the Commission has issued a Communication setting out its ambitious plans for copyright reform. These include:

• Further steps towards cross-border access to content;
• Reform of certain exceptions relating to research and education; and
• Measures related to enforcement including assisting industry to adopt a framework for self-regulation in terms of “follow the money”, that is, cutting off funds for piracy.

The full Communication is accessible here.

For further information, please contact Ted Shapiro, partner and head of Wiggin’s Brussels office, and Sunniva Hansson, solicitor in Wiggin’s Brussels office.