COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council to ensure the cross-border portability of online content services in the internal market
Date: 2015-12-09
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: Internet, audiovisual industry, consumer protection, copyright, cross-frontier data flow, freedom to provide services, service, single market, trans-European network, transmission network

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 9.12.2015  SWD(2015) 270 final   COMMISSION STAFF WORKING DOCUMENT  IMPACT ASSESSMENT  Accompanying the document Proposal for a Regulation of the European Parliament and of the Council to ensure the cross-border portability of online content services in the internal market {COM(2015) 627 final} {SWD(2015) 271 final}  
 
 
Table of content 

1.  CONTEXT .................................................................................................................. 3 

2.  WHAT IS THE PROBLEM AND WHY IS IT A PROBLEM? ................................. 4 

3.  WHY SHOULD THE EU ACT? .............................................................................. 19 

4.  WHAT SHOULD BE ACHIEVED? ........................................................................ 22 

5.  WHAT ARE THE VARIOUS OPTIONS TO ACHIEVE THE OBJECTIVES? ..... 23 

6.  WHAT  ARE  THE  IMPACTS  OF  THE  DIFFERENT  POLICY  OPTIONS  AND 
WHO WILL BE AFFECTED? ................................................................................. 26 

7.  HOW DO THE OPTIONS COMPARE? .................................................................. 45 

8.  THEREFORE,  THE  PREFERRED  OPTION  IS  OPTION  3.  HOW  WOULD  THE 
ACTUAL IMPACTS BE MONITORED AND EVALUATED? ............................. 48 

9.  ANNEX 1 – PROCEDURAL INFORMATION ...................................................... 50 

10.  ANNEX 2 – STAKEHOLDER CONSULTATION ................................................. 52 

11.  ANNEX 3 – WHO IS EFFECTED BY THE INITIATIVE AND HOW ................. 59 

12.  ANNEX  4  –  COPYRIGHT,  SPORTS  RIGHTS  AND  THE  CONTENT 
INDUSTRIES IN THE EU ECONOMY .................................................................. 61 

13.  ANNEX  5  –  NEW  TECHNOLOGIES,  NEW  WAYS  OF  ACCESS  TO  AND 
DISTRIBUTION OF CONTENT ............................................................................. 66 

14.  ANNEX 6 – INTERNATIONAL AND EUROPEAN LEGAL FRAMEWORK .... 72 

15.  ANNEX 7 – EXAMPLES OF ACCESS OR USE RESTRICTIONS IN TERMS OF 
SERVICES BY ONLINE CONTENT PROVIDERS ............................................... 75 

16.  ANNEX  8  –  TECHNOLOGIES  FOR  DELIVERING  ONLINE  CONTENT 
SERVICES ................................................................................................................ 81 

17.  ANNEX 9 - GLOSSARY .......................................................................................... 85 

 
 
 
1.  CONTEXT 

The digital economy has been a major driver of growth in the past two decades, and is 
expected to grow  seven  times  faster than  the overall EU GDP in coming years.1 Under 
the political guidelines of the European Commission, adapting the current EU copyright 
rules  to  the  realities  of  the  Digital  Single  Market  (DSM)  “in  light  of  the  digital 
revolution,  new  consumer  behavior  and  Europe’s  cultural  diversity”  is  one  of  the 
flagship  projects  for  the  next  years.2 In  particular,  the  DSM  Strategy3 puts  forward  a 
range of initiatives, among others, in copyright with the objective of creating an internal 
market for digital content and services. It calls for addressing a set of key obstacles to the 
functioning of  the  DSM,  including  allowing  wider  online  access to copyright-protected 
works by users across the EU. The Strategy however also recognizes that these obstacles 
are  very  different  in  scope,  nature  and  complexity;  therefore  it  endorses  a  step-by-step 
approach. 

This Impact Assessment report (IA) accompanies a self-standing initiative to enhance the 
cross-border portability of online content services in the DSM. This is one of the first of 
those initiatives under the DSM Strategy that aim at facilitating access to digital content, 
in particular by removing the barriers that currently stop consumers, when travelling in 
the EU, from accessing services they subscribed to or digital content they have purchased 
or rented in their home Member State (MS).Cross-border portability is a specific aspect 
of the broader discussion on access to services across borders where currently there are 
ongoing  consultations  both  as  regards  the  rules  applicable  to  satellite  broadcasting  and 
cable  retransmission  services 4 and,  more  generally,  to  services 5.  The  problems  with 
cross-border portability however are specific and they necessitate a specific solution (as 
explained later in this IA). They could not be addressed and resolved by the above or any 
other initiative under the DSM Strategy. In particular, the ongoing review of the Satellite 
and  Cable  Directive 6  has  a  different  scope  (e.g.  as  regards  the  relevant  services). 
Moreover, limited or no access of consumers in a MS to online content services provided 
in  other  MS 7  is  a  situation  that  is  very  different  from  cross-border  portability  (as 
described  above).  The  former  would  require  a  different  legal  solution  and  would  have 
different economic impacts. These issues are not addressed in this IA. 

Specific  early  intervention  on  the  cross-border  portability  of  online  content  services  is 
also  timely  now  that  consumers  are  nearing  the  date  where  there  will  be  an  end  to 
roaming charges for travelers within the EU8.  

This  initiative  will  be  followed  by  others  regarding  the  further  areas  identified  in  the 
DSM Strategy9. 

https://ec.europa.eu/digital-agenda/sites/digital-agenda/files/FI3P%20Fact%20Sheet.pdf  

1  
2   http://ec.europa.eu/about/juncker-commission/docs/oettinger_en.pdf  
3   Communication  from  the  Commission  "A  digital  single  market  strategy  for  Europe",  6  May  2015, 

http://ec.europa.eu/priorities/digital-single-market/docs/dsm-communication_en.pdf  

4   Consultation  on  the  review  of  the  Satellite  and  Cable  Directive,  https://ec.europa.eu/digital-

agenda/en/news/consultation-review-eu-satellite-and-cable-directive  

5   https://ec.europa.eu/eusurvey/runner/geoblocksurvey2015/ 
6   Directive 93/83/EEC 
7   Also referred to as "cross-border access" or "geo-blocking". 
8   http://europa.eu/rapid/press-release_IP-15-5265_en.htm  
9   The interplay of this initiative and the draft legislation on digital contract has been examined and their 

consistency ensured.  

3 

 
 
                                                 
2. 

 WHAT IS THE PROBLEM AND WHY IS IT A PROBLEM? 

With growing access to the internet digital has become, for many, the main way to enjoy 
content such as music, games, films or sport and a means to participate in society. More 
and  more  consumers  access  content  online:  between  2009  and  2013,  consumers' 
spending  increased  by  86%  on  digital  music  downloads  and  by  413%  on  streaming10. 
Today  there  are  close  to  600  online  music  services  in  Europe.1112 The  same  trend  is 
observable for video: consumers' spending on digital video increased by 400% between 
2010 and 201313. In 2014 there were more than 3000 video-on-demand (VOD) services 
in  Europe,  including  catch-up  TV  services  of  broadcasters  (1196  services)  and  VOD 
services  providing  access  to  a  catalogue  of  programs  (2101  services). 14  In  2014, 
subscription VOD services had 25 million users in 14 EU MS.15 16 In 2013 the online on-
demand  TV  revenues  reached  €938  million  and  online  on-demand  film  revenues  €588 
million in the EU.17 As regards e-books, Europeans have embraced them only to a limited 
extent so far: sales of e-books in Europe accounted for 7% of the global digital sales (a 
total of €8.1 billion in 2014). A trend towards more digital revenues is forecasted for the 
coming  years  but  these  remain  far  behind  revenues  from  hard  copies. 18  In  Europe 
consumer spending on video games is estimated at more than €20 billion in 2015, out of 
a global market of €68 billion. The number of active social network game users rose in 
Europe from 17 million a month in 2008 to 376 million a month in 2013.19 Furthermore, 
58%  consumers  in  the  EU  access  live  events  (such  as  sports,  concerts,  etc.)  online.20 
Online  sports  consumption  is  also  growing  globally,  including  in  the  major  European 
markets.21 22 

Online  content  services  (for  the  purposes  of  this  IA:  services  giving  access  over  the 
internet  to  copyright-protected  content  such  as  films,  music,  e-books  or  games  and  to 
radio  and  TV  programs)  provide  viewers  with  flexibility  when  watching  audiovisual 
(AV) programs, including sports events, listening to music, reading books or newspapers, 
by giving them vast catalogues to choose from and the possibility to access such content 
at  the  time  of  their  choice.23 Tablets  and  smartphones  further  facilitate  such  uses  by 
providing  access  from  wherever  the  viewers  are.  Smartphone  penetration  has  almost 
doubled in Europe in the last two years and the use of tablets has increased from 18% in 

10   PWC Global entertainment and media outlook 2014-2018 (data available for 18 EU MS) 
11   http://www.pro-music.org (September 2015), see also Annex 5. 
12   Figures  are  not  available  on  the  value  of  the  EU  digital  market.  The  global  digital  revenues  of  the 

recording industry reached USD 6.85 billion in 2014. IFPI Digital Music Report 2015 

13    European Video Yearbook 2014, International Video Federation (IVF);  

http://www.ivf-video.org/new/public/media/Europe_2014.pdf  

14   N.B. The data used in the problem definition on VOD services per MS are from a 2013 study. 
15    AT, BE, DE, DK, ES, FI, FR, IE, IT, LU, NL, PT, SE, UK 
16    IDATE Digiworld Yearbook 2015, Audiovisual Observatory and IHS. 
17   Audiovisual Observatory 
18   IDATE Digiworld Yearbook 2015 
19    http://www.isfe.eu/ and IHS  
20   2015 DSM consumer survey: identifying the main cross-border obstacles to the Digital Single Market 
and  where  they  matter  most.  More  specifically,  over  50%  consumers  in  FR,  DE,  IT,  ES  and  GB 
consume  sports  content  online,  including  streaming  live  sport  events;  see  Global  Sports  Media 
Consumption Report 2014. 

21   See Global Sports Media Consumption Reports 2012 and 2014, which cover FR, DE, IT, ES and GB.  
22   For further economic data see Annexes 4 and 5. 
23   This IA extends to online content services. It does not cover satellite broadcasting services etc. as the 
Satellite and Cable Directive (Directive 93/83/EEC) is currently under review. The public consultation 
runs  until  16  November  2015  and  contains  questions  (e.g.  Q2,  Q2.2  and  Q4)  relevant  to  the  cross-
border  portability  of  such  services.    This  initiative  therefore  should  not  pre-empt  the  results  of  the 
consultation and the assessment of the different options in that area.  

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2012 to almost 50% of households in 201424. In 2012, 36% of individuals in the EU used 
a  mobile  device  to  connect  to  the  internet.  In  2014,  this  share  has  risen  to  51%.25 26 In 
2012,  14%  of  individuals  in  the  EU  used  a  mobile  device  for  reading  or  downloading 
news and 12% for playing games, watching images, video or listening to music.27 28 

Online  content  services  rely  predominantly  on  content  that  is  protected  by  copyright 
and  related  rights, 29 e.g.  films  or  music.  However  these  services  may  also  include 
content  that  is  not  necessarily  protected  by  copyright,  the  most  notable  example  being 
sporting events. At the same time, when sporting events are broadcast, broadcasting 
organisations can invoke rights in such broadcasts under EU copyright law. 

Providers of online content services wanting to use copyright-protected content need to 
get a licence from the holders of the rights30 in the content they want to use and for the 
territories in which they want to provide the services. The manner in which online rights 
are  licensed  depends  on  the  type  of  content  and  the  category  of  right  holder.  For 
example,  rights  in  AV  content  are  normally  licensed  by  AV  producers  and,  as  far  as 
premium  AV  content31 is  concerned, on an exclusive territorial basis, whereas rights in 
music  are  licensed  in  part  by  record  producers  and  music  publishers  and  in  part  by 
authors' collective management organisations (CMOs) and, normally, without territorial 
exclusivity.  

The rights to transmit sporting events, i.e. the authorisation given by a sports organiser 
to  a  broadcaster  (to  be  distinguished  from  the  rights  the  broadcaster  has  in  broadcasts 
itself  – see  above) or to another  service provider so that they can  transmit  the sporting 
event to the public,  further  referred to as  “sports  broadcasting  rights”, are often sold 
jointly, in particular when sport clubs entrust national or international sport associations 
to sell these rights on their behalf.32 As indicated by the Commission's decisional practice 
in competition cases,33 in a number of EU markets premium sports content broadcasting 
rights are sold in open tenders and in packages.34 However, such selling practices are not 
yet  spread  in  all  EU  markets:  there  are  markets  where  rights  are  sold  in  one  bundle 

24   Source:  Ericsson  mobility  report  appendix,  Europe,  November  2014  (data:  Ericsson  ConsumerLab 

research from 2014) 

25   http://ec.europa.eu/eurostat/statistics-explained/index.php/Information_society_statistics_-

_households_and_individuals  

26   Almost  60%  of  consumers  use  multiple  screens  to  perform  the  same  digital  activity  (i.e.  change 
devices  according  to  their  location  during  the  day).  Ericsson  mobility  report  appendix,  Europe, 
November 2014.  
27   Source: Eurostat 2012 
28   Globally, 61% of consumers watch TV & video on their smartphones, an increase of 71% since 2012. 

http://www.ericsson.com/res/docs/2015/consumerlab/ericsson-consumerlab-tv-media-2015-
presentation.pdf  

29   "Copyright" is used in this document to encompass copyright (the right of authors) and related rights 

(the right of performers, producers and broadcasters).   

30   "Holders  of  rights"  or  "right  holders"  are  used  in  this  document  to  denote  holders  of  copyright  and 

related rights as well as sports organisers who hold rights to broadcast sporting events. 

31   Content that is the most attractive in commercial terms, e.g. new films and series. 
32   E.g.  broadcasting  rights  to  football  clubs  matches  are  mainly  sold  collectively,  the  International 
Olympics  Committee  (IOC)  is  the  owner of  the  global broadcast  rights  for  the Olympic  Games,  see 
http://www.olympic.org/olympic-broadcasting. Broadcasting rights may also be marketed individually 
by sports organisers. See Annexes 4 and 5 for further details on sports. 

33   See  cases  COMP  37.398  (UEFA  Champions  League,  2003),  COMP  /37.214  (German  Bundesliga, 

2005), COMP/38.137 (FA Premier League, 2006). 

34   In  the  FA  Premier  League  case  (COMP/38.137),  the  Commission  also  imposed  on  the  collective 
selling entity a no single buyer obligation, to avoid that all broadcasting rights are consolidated by one 
buyer. 

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without  a  tendering  process. 35  Premium  sports  content  is  routinely  marketed  on  an 
exclusive  territorial  basis.    Non-premium  sports  content  may  be  licensed  by  sports 
organisers without geographic restrictions.36 

At  EU  level,  there  is  a  significant  body  of  legislation  that  applies  to  the  provisions  of 
online content services including copyright and related rights, audiovisual media services 
and broadcasting. The legal framework is explained in Annex 6 in detail.  

Problem tree  

Cross-border portability, or the absence of it, concerns online content services to which 
consumers have lawful access (whether in exchange for a payment or free of charge), or 
content that  they purchased  or rented online in  their country of  residence  and to which 
they want to continue to have access when travelling in another MS.  

It is one of the issues identified in the DSM Strategy and it is a question separate from 
the  discussion  on  cross-border  access  by  consumers  to  online  content  and  to  online 
content services which are available in MS other than their own. Cross-border portability 
and possible other initiatives under the DSM Strategy will eventually complement each 
other  in  removing  barriers  to  the  functioning  of  the  DSM.  They  are  however  different 
and  need  to  be  addressed  separately.  An  initiative  on  cross-border  portability  does  not 
pre-empt  any  decision  as  regards  other  DSM-related  initiatives  but  those  initiatives 
would not be able to resolve the problem with cross-border portability either. Therefore, 
they  will  be  addressed  subsequently.    The  problem  identified  in  the  context  of  cross-
border portability is summarised in Figure 1 below. Its drivers are related to contractual 
practices and, as far as copyright-protected content is concerned, to copyright law. There 
are significant differences between the sectors of the content industries. As a result, the 
scale of the problem varies depending on the sector. 

35   See  ASSER/IVIR  Study  on  sports  organisers’  rights  in  the  European  Union,  Final  Report,  February 

2014, p 94. 

36   Ibid. 

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Figure 1: Problem tree  

Description of the problem  
When  using  online  services,  consumers  either  purchase37 or  rent38 content  on  a  one-off 
basis ("transactional services", e.g. those services provided by Amazon or iTunes where 
particular films or songs are offered for purchase or rent) or they establish a longer-term 
contractual relation with them ("subscription services", e.g. Netflix, Deezer or Skoobe).  

In the case of transactional services, where a copy which is purchased by the consumer 
is downloaded on the consumer's device (e.g. a film bought on iTunes and downloaded to 
an  iPad),  the  consumer  may  access  such  a  copy  anywhere  and  no  issues  related  to 
portability  arise.  The  question  of  portability  however  arises  where  the  content  is 
accessible via a digital locker or where it is streamed by the service provider, which is 
typical  for  rental,  as  in  these  cases  the  access  to  content  is  not  within  the  consumer's 
control.  Transactional  services 
increasingly  use  streaming  and/or  cloud-based 
technologies.  

Subscription services give consumers access to an unlimited amount of content from the 
provider's catalogue on an ongoing basis39 either upon payment of a monthly fee or, e.g. 
where  the  service  is  supported  by  advertisers,  free  of  charge.  A  typical  feature  of 
subscription services is that they allow consumers to access content on different devices, 

37  

i.e. acquire the right to a digital copy of content which they download to their device and/or have an 
unlimited  access  to,  from  e.g.  a  digital  locker  (online  storage  service  for  digital  content,  e.g.  films, 
music). 

38    i.e. acquire the right to access content for a certain period of time (typically 24 to 48 hours). 
39   Though,  certain  temporal  limits  may  apply  depending  on  the  content,  e.g.  catch-up  services  of 
broadcasters  (i.e.  services  giving  online  access  to  content  that  has  been  previously  aired  on  a  TV 
network) are typically limited in time (e.g. available for 30 days). 

7 

 
 
                                                 
either on a program-scheduled or an on-demand basis.40 The question of portability arises 
also in these services as content is normally streamed by the service provider. 

In many cases, the access to these online content services is only possible in the MS of 
the consumer/service provider. When  consumers  travel  abroad, they  often cannot, or 
can only partially use the service that they have subscribed to in their home country or 
they cannot access the online content that they have previously purchased or rented. 

It is important to note that many online content services are freely accessible in the sense 
that they do not involve any explicit contractual relation41 between the service provider 
and  the  consumer  or  that  they  do  not  involve  the  verification  of  the  consumer's  MS  of 
residence.42 These services are out of the scope of this IA. 

The presence and the scale of the problem is not the same in all sectors. While the 
business  models  are  changing  and  the  consumer  demand  is  rapidly  increasing,  the 
description below captures the main features of the different sectors: 

The problem is particularly present in online audiovisual  (AV) services. In most cases 
these  services  are  not  portable  across  borders  at  all.  Consumers  travelling  in  other  MS 
cannot access the service or the content to which they have lawful access in their home 
country.  This  concerns  both  standalone  VOD  platforms  and  those  operated  by  pay-TV 
operators43 regardless of whether the services are subscription-based or transactional. 

Examples:  

A subscriber of HBO Nordic staying for some days in Italy will not be able to access his account and watch 
films  and  will,  instead,  see  a  message  saying  that  the  service  "is  only  available  in  Sweden,  Norway, 
Denmark and Finland".  

The  same  will  happen  to  users  of  the  Belgian  IPTV  service  Proximus  TV  Partout  who  can  watch  their 
favourite TV channels on tablets and smartphones, but only in Belgium. 

Similarly,  the  Internet  TV  platform  Magine  TV  Germany,  which  encompasses  both  a  limited  unpaid 
service and paid subscription services, is only available to users residing in and accessing the service from 
the territory of Germany. 

A French user of the transactional MyTF1 film and series service will not be able to rent a new film while 
staying temporarily in the UK. 

An Italian user of the transactional ChiliTV film and series service will not be able to rent and stream  a 
film while on holiday in Spain. 

In  some  cases  online  AV  services  are  partially  portable.  This  can  mean  that  A)  only 
content  that  the  consumer  previously  downloaded  (if  the  provider  offers  such  a 
possibility)  to  his  portable  device  is  available  when  travelling  abroad 44 or  B)  that  a 
consumer's access is limited to a selection of the content the service normally offers.45 C) 
Partial portability can imply that only the content offered by the same service provider in 
the  visited  MS  is  available.  In  this  case,  the  availability  of  the  service  depends  on  the 

40   Current Market and Technology Trends in the Broadcasting Sector, p.28., 

http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=307382  

41   e.g. the acceptance of HTTP cookies (i.e. data sent from a website and stored in a user's web browser 
while the user is browsing that website for purposes of notifying the website every time the user loads 
the website of the user's previous activity on this website) will not be regarded as a contractual relation 
for the purposes of this IA.  

42   e.g.: 

http://www.rtve.es/television/, 

http://ninateka.pl/ 

(the 

vast  majority 

of 

content), 

http://www.btv.bg/videos/, http://www.rtbf.be/video/, http://www.vtuner.com/. 

43   All major pay-TV services offer to their customers the possibility to access their programs away from 
the main TV screen; most of them provide web portals and/or apps. Current Market and Technology 
Trends in the Broadcasting Sector, p.28., 
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=307382  

44   e.g. Sky Go, Canal Play, Amazon Prime Video 
45   Normally in the case of a broadcaster's own productions when it holds the rights in all EU MS. 

8 

 
                                                 
presence  of  the  online  service  provider  in  the  visited  MS 46 and  on  the  catalogue  of 
content  offered  in  that  MS47,  which  may  be  very  different  from  the  one  offered  in  the 
home  country  (and  in  a  different  language  or  without  specific  features  available  in  the 
home country such as accessibility features for persons with disabilities).  

Examples: 

A) If a user of the transactional Universciné (Belgium) film service wants to watch an already rented film 
while staying temporarily in the Netherlands, he has to download it before travelling – he will not be able 
to rely on the streaming feature. 

B)  A  subscriber  of  one  of  the  main  French  online  AV  services  -  Canal  Play  -  could  benefit  from  its 
"Summer to go" option allowing to download a selection of content and then watch it for 30 days.  

Users of the German RTL Now TV service can access it using a PC, smartphone or tablet, but will have 
only partial access to the content (mostly to RTL own productions) when they are outside of Germany. 

C) A Dutch subscriber travelling to France will only be able to watch films offered by Netflix to French 
consumers. The same subscriber travelling to Poland will not be able to watch films on Netflix as Netflix is 
not available in Poland.  

In the above cases, consumers are cut-off from their online content services or – in the 
case  of  partial  portability  -  significantly  limited  in  their  experience.  Using  services 
offered in the visited country may not be an option as it may not be practical to enter into 
a subscription when only visiting a country for a limited duration, the content may not be 
available  or  available  only  in  a  foreign  language,  etc.  and  in  any  event  this  is  not  a 
reasonable proposition from the consumer's point of view.48  

Similarly to AV content, much of premium sports content made available online is not 
portable across borders, in particular the streaming of live sporting events.49 As explained 
above, the offers by broadcasters to watch their programs (including sports programs) on 
the  "second  screen"  are  currently  limited  to  the  national  territory.  The  same  trend  is 
observed concerning broadcasters' standalone online services for sports.  

Examples: 
Viasat's  Viaplay  is  one  of  Europe's  first  unbundled50 online  TV  sports  services,51 available  in  Denmark, 
Finland, Sweden and Norway. However, a consumer cannot login to his account while travelling in the EU.   

Sky's  Now  TV  is  an  online  service  offered  by  Sky  in  Italy,  Germany  and  the  UK,  which  includes 
unbundled online sports offerings. These services cannot be accessed by consumers while travelling in the 
EU.52  

As  a  result  of  territorial  restrictions,  consumers  can  only  enjoy  the  services  of  the 
broadcaster/service  provider  they  have  subscribed  to  in  their  home  MS  and  not  when 
travelling  abroad. 53  Again,  consumers  cannot  easily  replace  their  home  services  by 
services available in the visited country as e.g. the desired content may not be available 

46   N.B.  only  large  players  are  present  in  several  MS.  e.g.  Netflix  is  currently  present  in  15  European 

countries, smaller Italian VoD provider ChiliTV is present in 5 European countries 

47   For which the service provider has licences in the visited MS. 
48   Further  examples  of  terms  of  service  from  across  the  EU  resulting  in  access  or  use  restrictions  are 

presented in Annex 7. 

49   Access  to  premium  sports  content,  even  though  it  may  be  available  on  the  broadcasters'/service 

providers' online platform, is usually not accessible when travelling to other MS.  

50    i.e. sports-only as opposed to bundled with other elements of a TV program. 
51   See IHS Technology, Television Media Intelligence Service, Insight Report - Sports Rights: Operators 

Evolve the Pay TV Proposition as Costs Go Up, August 2015, p. 13.  
52    Sky TV Now content shown in Germany can be watched also in Austria. 
53   A recent survey shows that consumers who tried to access live events (including sports) online while 
abroad experienced problems. According to 2015 DSM consumer survey: identifying the main cross-
border obstacles  to  the DSM  and  where  they  matter  most,  of  the 38% of respondents  who streamed 
live events (e.g. sports matches) in the last 12 months and tried to access streaming services of their 
own country while abroad, 51% reported not being able to access them. 

9 

 
                                                 
at all in the visited MS, e.g. if that sport is not popular in the visited MS or not available 
due  to  other  preferences  in  that  market54.  In  particular,  the  offer  of  premium  sports 
content  by  other  service  providers  can  be  limited.  One  specific  feature  of  sports  is  the 
value of live watching, i.e. consumers want to watch sports live and therefore, a delayed 
viewing/listening, e.g. upon consumer's return via catch-up TV, is not a substitute. As for 
watching other (non-premium) sports content, consumers may also experience problems 
while  travelling  in  the  EU,  as  -  even  though  there  may  not  be  territorial  restrictions  in 
place - major pay-TV operators offer access to their programs away from home only in 
the national territory.   

In other content sectors, the cross-border portability of online services is more present.  

In the music sector, consumers, when travelling, are normally able to access and use the 
online music services to which they have subscribed in their home country.55 Therefore, 
in practice, there seem to be no restrictions to the cross-border portability of online music 
services. At the same time, the legal situation appears to be less clear as some end-user 
agreements limit uses to the home country of the subscriber.56  

There do not seem to be issues with the cross-border portability of e-books. Most online 
services offer the possibility to download e-books to the reader's device57 (at present, this 
is the typical use pattern in the sector). There are also more and more subscription-based 
streaming services58 in the market. These are generally portable across the MS.59 

Finally, streaming services that offer access to video games are also generally available 
across borders. Subscription is not the main mode of access.60 The business models used 
by video game providers include free to play online or free applications, models relying 
on  advertising  and/or  in-game  sales  of  features  enhancing  the  gamer's  experience, 
subscription-based as well as pay-per-download. It appears that the free to play model61 
has  been  gaining  ground  at  the  expense  of  other  models.  Cross-border  portability  is 
usually not restricted.  

The  scale  of  the  problem  in  the  AV  sector  and  in  sports  coverage  is  important  and  it 
continues  to  grow,  partly  due  to  the  increasing  number  of  online  subscription-based 
services and partly because of the increasing consumer demand. 

54    E.g. if the team of the visited MS plays at the same time, the match of the consumer's MS may not be 
broadcast, or if it is broadcast, it is likely to be without "home-specific" commentary or interviews. 
55   E.g.  a  consumer  can  access  his  Spotify  or  Deezer  account  anywhere  in  Europe.  See  summary  and 
conclusions  from  the  "Cross-border  Access  and  the  Portability  of  Services"  Working  Group  of 
Licences  for  Europe,  which 
that  online  music  services  are  generally  portable: 
https://ec.europa.eu/licences-for-europe-dialogue/sites/licences-for-europe-dialogue/files/WG1-
Music.pdf  

indicate 

56   e.g. https://www.spotify.com/be-fr/legal/end-user-agreement/  
57   e.g. Amazon, Kobobooks 
58   e.g.  Skoobe  (DE,  ES),  Izneo  (FR,  BE),  Mofibo  (DK,  NL),  ECI  (BE),  Yieha  (BE),  Youboox  (FR), 
Youscribe  (FR),  24Symbols  (DE,  UK,  IT,  ES),  Paper  C  (UK,  DE),  Elly's  choice  (NL),  Multinova 
(PT), Leia Comprazer (PT), Nubico.es (ES). 

59   Information provided by the Federation of European Publishers, see e.g. http://www.fep-fee.eu/FEP-

60  

attends-the-first-roundtable  
 E.g. 
http://www.ipdigit.eu/2015/03/business-models-for-digital-goods-video-games-free-to-play-
games/ and http://www.economie.gouv.fr/files/03-rapport-igf-igac-culture-economie.pdf. Multi-player 
interaction  as  well  as  integration  with  social  networks  are  important  features  of  the  video  games 
environment 
http://alliancenumerique.com/wp-content/uploads/2013/01/JRC60711-
too 
GamesReport.pdf ) 

(e.g. 

61    It is often accompanied by advertising and/or in-game sales. 

10 

 
                                                 
As  regards  the  number  of  services,  in  2013,  3087  on-demand  AV  services  were 
identified,  out  of  which  2733  were  established  in  an  EU  MS  and  447  were  focused  on 
films.62 Figure 2 gives an overview of their presence in the different MS.63  

Figure  2:  Film  on-demand  services  in  the  EU  (+  Norway  and  Switzerland)  by  country  of  establishment  (2013) 

Source: European Audiovisual Observatory, 2013c 

Moreover, in AV, subscription VOD (SVOD) services experienced the strongest growth 
for  digital  video  (2013)  with  an  increase  of  147.5%  (compared  to  a  43%  increase  for 
digital rental and 37% increase for digital purchase). Digital subscriptions accounted for 
26% of digital video services in 201364. For sports content, new offerings are emerging, 
where  broadcasters  offer  unbundled  online  TV  services  allowing  consumers  to  access 
sporting  events  "à  la  carte"65,  alongside  all-encompassing  broadcasters'  offers  to  view 
their programs on a "second screen". 

As  regards  the  consumer  demand,  the  lack  of  cross-border  portability  is  a  missed 
opportunity  to  offer  better  services.  The  Body  of  European  Regulators  for  Electronic 
Communications  (BEREC)  estimated  that  Europeans,  who  travel  at  least  once  a  year, 
spend abroad on average 11.6 days per year. For citizens of Cyprus and Luxembourg the 
yearly  average  is  30  days,  and  for  citizens  of  Finland,  Ireland,  Lithuania  and  the 
Netherlands  close  to  20  days.66 Indeed,  the  growing  use  of  connected  mobile  devices 
(smartphones,  tablets),67 in  particular  for  watching  video,  indicates  consumers'  interest 
for accessing content wherever and whenever they want.  
The current consumer demand was confirmed in a recent Eurobarometer survey68. 16% 
of the respondents (representing 20% of internet users) indicated they pay a subscription 
to  access  online  content  and  17%  of  people  having  a  subscription  indicated  they  have 

62     Fragmentation  of  the  Single  Market  for  on-line  video-on-demand  services:  point  of  view  of  content 
providers,  2014.  https://ec.europa.eu/digital-agenda/en/news/fragmentation-single-market-line-video-
demand-services-point-view-content-providers  

63    It is important to note that multiple VOD services are often exploited by the same service provider. 
64   IVF Report: http://www.ivf-video.org/new/public/media/EU_Overview_2014.pdf 
65   IHS  Technology,  Television  Media  Intelligence  Service,  Insight  Report  -  Sports  Rights:  Operators 

Evolve the Pay TV Proposition as Costs Go Up, August 2015, p. 13.  

66   For more data on tourism see Annex 5. 
67   See figures in the introduction. 
68

http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/FLA
SH/surveyKy/2059 

11 

 
 
                                                 
    
already tried to use it abroad, while 21% responded they would be interested to do so in 
the future. In addition, 33% of those who do not have a subscription consider cross-
border  portability  as  an  important  element  if  they  were  to  take  one.  Having 
combined these findings with the results from a previous Eurobarometer survey carried 
out  on  tourism69,  it  is  possible  to  estimate  the  percentage  of  European  consumers  who 
would potentially use this feature of online subscription services. They would represent 
over 29 million people70 (5.7% of European consumers) at EU28 level71, with significant 
differences  by  countries  (from  1%  in  PT  and  GR  to  20%  in  SE  and  22%  in  DK),  as 
indicated  in  the  graph  below.  This  number  does  not  include  European  consumers  who 
may want to benefit from portability of content acquired on a transactional basis nor of 
free-of-charge subscription services.72 

Figure 3 – The current potential demand for portability of paid subscription-based services, by country 

Source: own calculations on the basis of Flash Eurobarometer 411 and Eurobarometer 392 

The fast evolution of the market for online content services as well as the rapid increase 
in the number of consumers travelling within the EU show that the level of demand can 
increase significantly in a short while. This is explained in the baseline scenario. 

Drivers 

The variations in the availability of cross-border portability of online content services in 
the  EU  are  caused  mainly  by  different  business  practices  in  the  different  sectors.  The 

69   Eurobarometer 392 "Preferences of Europeans towards tourism" (fieldwork in January 2014)  
70   On EU 28 level, 29.174 million people. Population figures from the Penn World Tables dataset (2011). 
71   Own  calculation based on  Eurobarometer  on  cross-border  access  to  content  and  Eurobarometer  392. 
On the EU28 level, 15.96% of all survey participants have a subscription. 86% of people planned to 
travel in 2014, 42% of whom to another MS.  

72   Globally,  42%  of  consumers  think  it  is  very  important  to  watch  their  TV  & video  content wherever 
they  are.  http://www.ericsson.com/res/docs/2015/consumerlab/ericsson-consumerlab-tv-media-2015-
presentation.pdf  

12 

 
 
                                                 
problem described above, in particular, results from the deep-seated licensing practices 
of  right  holders  and/or  from  the  commercial  practices  of  service  providers  in  some 
sectors of the content industries.  

These practices are facilitated by the fact that copyright is territorial which means, in 
essence,  that  those  rights  under  copyright  which  are  harmonised  at  EU  level  are 
implemented in national laws and that the geographical scope of these laws only extends 
to the territory of the MS in question. In consequence, a service provider that is making 
content available online in more than one MS, including if it does so only for the purpose 
of cross-border portability, must have the rights to use such content for the relevant 
territories.  Of  course,  the  fact  that  copyright  is  territorial  would  not  in  itself  prevent 
right  holders  from  granting  multi-territorial  licences  (where  otherwise  they  are  in  a 
position  to  do  so)73.  When  they  do  so,  the  service  providers  would  be  able  to  offer 
portability (in those MS covered by the multi-territorial licence). Moreover, in principle, 
the territoriality of copyright also does not prevent right holders from granting licences to 
service  providers  which,  taking  into  account  the  limited  extent  of  use  of  the  content  in 
territories other than the home MS of the consumer, allow the use of the content in other 
MS but only for the purposes of cross-border portability.   

The licensing of sports broadcasting rights by sports organisers follows the same logic as 
the  licensing  of  copyright.  The  economic  incentives  often  drive  sports  organisers  to 
 Hence, 
exploit 
broadcasters/service  providers  wanting  to  offer  cross-border  portability  would  need 
licences for the affected territories. 

sports  broadcasting 

territorial  basis.

rights  on  a 

their 

74

The licensing practices of right holders: 

I.  In  the  audiovisual  sector,  the  general  practice  is  territorial  licensing  and  territorial 
exclusivity  for  premium  content  (e.g.  films  and  TV  series  of  particular  interest  for  the 
audience)  that  is  characterised  by  high  upfront  investment.  AV  producers  of  premium 
content  typically  grant  an  exclusive  licence  to  a  single  distributor/service  provider  in 
each  MS.  This  form  of  licensing,  in  combination  with  release  windows 75 ,  allows 
applying  different  prices  in  different  territories  and  for  different  types  of  media  and 
ensuring that consumers wishing to watch a particular piece of content have access to it 
only  through  one  provider  at  a  given  time.    Rights  are  also  often  pre-sold  at  the  pre-
production stage to ensure the financing of the content. In exchange for a fixed upfront 
payment  to  the  film  producers,  distributors  obtain  exclusive  exploitation  rights  in  a 
specific territory for a defined period of time.   

As a result, service providers willing to acquire a licence for another territory to be 
able  to  offer  portability  would  not  be  able  to  do  so  despite  the  limited  effect  of 
portability  on  issues  such  as  the  exclusivity  of  the  exploitation  in  a  given  territory 
(including  on  the  release  windows)  because  another  provider  would  have  the exclusive 
rights for the territory. Alternatively, the provider wanting to offer portability would have 
to bid for the licence against a provider who would want the rights to provide its service 

73     e.g. where the rights are not held or administered by another entity in other MS 
74   See further in Annex 4. However, this is not always the case, as in practice sports broadcasting rights 
may  also  be  sold  on  multi-territorial  basis,  E.g.,  the  broadcasting  rights  for  the  Olympic  Games  in 
2018-2024  were 
see 
Eurosport/Discovery 
http://www.olympic.org/news/ioc-awards-all-tv-and-multiplatform-broadcast-rights-in-europe-to-
discovery-and-eurosport-for-2018-2024-olympic-games/246462.  

Europe, 

entire 

sold 

the 

for 

to 

75   Release windows allow rights owners to apply different prices to different means of distribution of the 
product.  Different  release  dates  are  defined  for  cinema  exhibition,  DVD  (rental/sales),  VoD  (with  a 
distinction between VOD and SVOD) or Pay-Per-View, Pay TV and Free TV. Release windows are 
generally  negotiated  by  the  distributors  according  to  commercial  considerations;  only  in  certain  MS 
they are regulated by law.  

13 

 
                                                 
in the territory (not only to provide portability). The acquisition of such a licence would 
require disproportionately high investment.  

Cross-border  portability  is  considered  as  an  attractive  feature  of  online  content 
services  not  only  by  consumers 76  but  also  by  the  AV  industry.  In  2013  their  joint 
statement at the Licences for Europe forum confirmed their willingness to work towards 
cross-border portability.77 However, in order to be able to allow AV service providers to 
provide this feature to their consumers as regards every film or other piece of content in 
their  service,  right  holders  would  need  to  A)  take  into  account  cross-border  portability 
when  negotiating  new  licences,  B)  review  and  amend  the  existing  complex  network  of 
contracts  that  currently  ensures  territorial  exclusivity  to  distributors/service  providers 
(and  consequently  excludes  cross-border  portability)  in  28  MS.78 The  industry  has  not 
embarked on this exercise yet and if it does so, achieving a situation where cross-border 
portability  becomes  a  standard  feature  of  all  online  content  services  may  take  a 
substantial amount of time79 and lead to diversified practices in the industry.80 However, 
until  cross-border  portability  becomes  a  standard  element  of  all  new  and  existing 
licences, consumers may only be able to watch certain parts of the online content when 
travelling abroad with black-outs for the "non-portable" parts.81 This is unlikely to satisfy 
the consumer demand. 

II. In the sports sector, the prevailing commercial practice of sports organisers is to sell 
sports broadcasting rights for premium content on an exclusive territorial basis.82 Such 
exclusivity enables right holders to collect higher revenues due to the uniqueness of the 
content,  and  also  allows  them  to  adapt  the  price  of  rights  to  the  level  of  interest  in 
different  territories.  As  for  the  purchasers,  i.e.  normally  broadcasting  organisations  as 
well  as  other  service  providers,  the  exclusivity  gives  them  a  competitive  advantage  as 
they  can  differentiate  their  offers  from  their  rivals  and  a  possibility  to  attract  large 
audiences.  This  in  turn  helps  them  to  maximise  their  revenues  from  advertising  and/or 
subscription  fees.  As  in  the  AV  sector,  the  cumulative  effect  of  exclusive  territorial 
licences acts as an obstacle to cross-border portability. On the contrary, non-premium 
content  sports  organisers  often  do  not  require  territorial  exclusivity. 83 In  such  cases, 
service providers may be entitled to stream the content without territorial restrictions (or 
sports organisers may launch such services themselves).84 

76   See above and the results of Flash Eurobarometer 411. 
77   See the joint statement of the AV industry (pledge No. 1) at the Licences for Europe forum (Annex 2). 
78   The  duration  of  licences  in  the  AV  sector  varies  significantly  –  it  seems  that  such  licences  are 

concluded for 3-10 years with the average duration of 4-7 years.  

79   This is also supported by the fact that the pledge of the AV industry at the Licences for Europe forum 
delivered no results in two years, in a market that is otherwise very dynamic. The lack of progress was 
also  confirmed  by  the  Commission's  monitoring  of  the  terms  of  service  offered  by  the  service 
providers to consumers (see Annex 7) and the discussions with stakeholders (see Annex 2). 
80   E.g. as regards the length of the stay in another MS or other conditions of using this feature 
81   It is to note that "partial portability" as explained earlier cannot be considered as a step towards "full" 
cross-border  portability  in  the  AV  sector  as  "partial  portability"  only  covers  content  for  which  the 
service  providers  has  exploitation  rights  also  in  the  visited  MS,  e.g.  because  the  content  is  the 
broadcaster's  own  production,  or  the  provider  also  provides  service  in  the  visited  MS  and  therefore 
already  has  a  licence  also  for  that  territory.  This  business  practice  will  not  lead  to  the  cross-border 
portability of the vast majority of AV content. 

82   See  ASSER/IVIR  Study  on  sports  organisers’  rights  in  the  European  Union,  Final  Report,  February 

2014, p71 et seq.  

83       Furthermore,  if  they  cannot  sell  their  media  rights  across  borders  or  in  certain  territories,  they  may 
want to offer their content across borders for free in order to increase their audience and attract more 
sponsorship. 

84   Examples  include  free  streaming  of  various  sports  at  the  Sports  Hub  Channel,  developed  by 
SportAccord  in  collaboration  with  YouTube;  free  online  streaming  of  the  second  division  of  the 
Spanish football league in 2014; matches of the Swedish football league are available across borders; 

14 

 
                                                 
 
III. In the music sector, the licensing of rights in musical works is often organised on a 
territorial  basis 85 although  a  number  of  music  publishers  and  collective  management 
organisations  (CMOs)  grant  multi-territorial  licences.  The  multi-territorial  licensing  of 
rights in musical works for online uses will be facilitated by the Directive 2014/26/EU on 
Collective Rights  Management  which  has  to  be  implemented  by  MS  by  April  2016.  In 
June 2015, the CMOs PRS (UK), GEMA (Germany) and  STIM (Sweden) received the 
clearance of their deal by the Commission with a view to establishing a multi-territorial 
licensing hub in Europe.86 Multi-territorial licensing is widely used for the rights held by 
record producers87.   

Where multi-territorial licences are granted, service providers can provide their services, 
including  portability,  across  multiple  territories.  On  the  contrary,  where  licences  are 
granted for a single territory, the service provider would not be able to offer the cross-
border  portability  of  its  service  without  having  obtained  licences  for  all  affected 
territories (or without the possibility in the licence to engage in a certain "overspill" when 
providing the portability of the service). At present, online music service providers, also 
those  that operate in a single MS  and  presumably license rights only  for  this MS only, 
seem  to offer  their services  with  a cross-border  portability feature.88 The reason behind 
could be that the vast majority of music content is not licensed on an exclusive basis 
(e.g. most musical works are available from multiple service providers in the same MS), 
therefore the licensing practice of right holders does not create obstacles, beyond some 
legal  uncertainty  (in  cases  where  a  licence  is  granted  only  for  one  MS  and  the  service 
provider offers portability in other MS), to the cross-border portability of services.  

IV. In the book sector, one publisher typically acquires from the right holders exclusive 
rights  on,  at  least,  a  pan-European  basis,  often  together  with  the  translation  rights  that 
will  enable  the  book  to  be  translated  (by  that  publisher  or  another  one  after  rights  are 
assigned  to  him)  to  other  languages.89 As  a  result,  publishers  are  in  most  cases  able  to 
license a retailer to sell the e-book in multiple territories and, in practice, usually do so. 
This  also  allows  the  retailer  to  provide  cross-border  portability  of  the  service.  For 
books  in  English  language,  there  is  generally  a  split  of  the  rights  that  are  granted  by 
authors:  publishers  in  the  UK  and  Ireland  generally  hold  the  exclusive  rights  for  these 
markets  as  well  as  the  Commonwealth  countries.  The  US  publishers  usually  hold 
exclusive  rights  for  the  US,  Mexico  and  South  America.  For  all  other  territories, 
publishers generally hold non-exclusive rights.90  

the  Basketball  World  Championship  organised  in  Lithuania  in  2014  was  available  on  a  specific 
streaming website; European Tour TV, Ryder Cup’s platform, streams for free golf matches. However, 
live streaming is available only in MS which do not benefit from local broadcasting, i.e. where there is 
no  broadcaster/service  provider  who  bought 
live  events;  see 
http://www.europeantour.com/europeantour/season=2013/tournamentid=2013038/news/newsid=1933
30.html#7eG3vMYYaEkdTFbl.97  Also  see  ASSER/IVIR  Study  on  sports  organisers’  rights  in  the 
European Union, Final Report, February 2014, pages 68-69. 

to  broadcast 

rights 

the 

85    Right holders usually transfer their rights for all EU territories to a single CMO or a publisher, who in 
turn  enter  into  agreements  with  other  collective  management  organisations  and  sub-publishers  for 
representation in separate EU MS.  

86   EC press release: http://europa.eu/rapid/press-release_IP-15-5204_en.htm  
87   Independent  record producers  often  license local  distributors  to  manage  their rights  in particular  EU 
territories but they also resort to "aggregators" to provide multi-territorial licences for online services.  
88   The European grouping of author CMOs, GESAC, states that the agreements that their members have 

with online music service providers do not prevent portability of such services. 

89   E.g. in  the UK and Spain, the agent is generally the one holding the translation rights on behalf of the 

author; s/he then assigns the rights to a publisher for a given language. 

90   This means that consumers in the EU, with the exception of those in the UK and Ireland, may choose 
between two versions of an English book (one published by a US and the other by a UK publisher). 

15 

 
                                                                                                                                                 
V. In the video  games sector, online game developers were traditionally the holders of 
rights  and  would  grant  licences  to  game  publishers  without  territorial  limitations. 
However,  as  the  sector  evolves  and  new  forms  of  distribution  emerge,  copyright 
ownership  and  licensing  is  changing  too.  On  the  one  hand,  game  developers  often 
distribute  games  themselves  -  directly  over  the  Internet  or  through  application  stores 
(which act as agents for the game developers). On the other hand, game publishers tend 
to produce games themselves and rely less on independent game developers. In any case, 
a game developer or publisher has the ability to make a game available without territorial 
restrictions and typically publishes a game simultaneously in multiple territories91. This 
general  absence  of  territorial  restrictions  and  the  fact  that  downloading  is  still  a 
prevalent  mode  to  access  games  explain  why  a  consumer  is  usually  able  to  continue 
using  an  online  gaming  service  or  a  particular  video  game  while  staying  temporarily 
abroad.  

The commercial practices of service providers: 

The  lack  of  portability  of  content  across  borders  can  also  be  the  result  of  business 
decisions  taken  by  service  providers.  As  a  result,  there  are  instances  where  even  if  no 
obstacles  to  portability  are  created  by  right  holders  e.g.  multi-territorial  licences  are 
granted and licences are granted without territorial exclusivity, portability is not offered.  

Service providers, especially in the AV  sector  and  for  premium sports  content, may 
not  be  interested  or  financially  capable  of  acquiring  multi-territorial  licences  which 
require  a  substantial  budget. 92  Further,  according  to  the  feedback  received  from 
stakeholders, 93  considerations  such  as  regulatory  requirements, 94  technological 
constraints,95 the existing demand for the particular services, the position of competitors 
as well as the availability of advertising may result in service providers deciding not to 
enter  certain  markets  at  all  and  hence  not  to  offer  portability  of  their  services  in  these 
markets.   

In  the  other  sectors  (music,  e-books,  video  games)  either  online  service  providers  are 
able to acquire multi-territorial licences and offer the portability of their services in the 
different  territories  covered  by  the  licence  or  licensing  is  not  carried  out  on  a  strict 
territory-by-territory basis (e.g. licences allow small-scale use of the service beyond the 
licensed 
to  offer  cross-border  portability. 
Consequently,  service  providers  do  not  seem  to  apply  restrictions  to  the  cross-border 
portability of their online content services.  

territory)  enabling  service  providers 

Consequences 

In consequence of the above-described licensing practices and business considerations, a 
substantial  number  of  online  content  services,  especially  in  the  AV  sector,  as  well  as 
premium sports content, remain locked in national territories (and are thus not portable). 
This  situation  generates  frustration  for  a  high  number  of  consumers  who,  while 

91   Information  from  the  Interactive  Software  Federation  of  Europe  (ISFE);  as  regards  evolution  of  IP 
the  WIPO  Magazine,  available  at 

see  article  published 

management 
http://www.wipo.int/wipo_magazine/en/2014/02/article_0002.html 

in  general, 

in 

92   See Annex 2 for the AV sector. For instance, when sports organisers offer their broadcasting rights on 
territorial  basis,  broadcasters/service  providers  need  to  bid  separately  for  each  market  and  for  the 
entirety  of  the  rights,  not  only  for  rights  linked  to  cross-border  portability.  Therefore,  a 
broadcaster/service provider who is interested only in a cross-border portability function, in addition to 
broadcasting  in  a  national  territory,  would  not  have  a  possibility  to  acquire  such  a  right.  E.g.,  in 
December 2014 Premier League issued invitations to tender for its UK AV broadcasting rights for the 
seasons 2016/17-2018/19, and separately sold its international broadcasting rights.  

93   See Annex 2. 
94   e.g. consumer protection rules 
95      e.g. broadband infrastructure 

16 

 
                                                 
travelling in other parts of the EU internal market, cannot use their subscription services 
or  enjoy  the  online  services  or  content  they  have  previously  purchased  or  rented.  
Furthermore,  either  because  of  the  licensing  practices  or  due  to  the  high  costs  of 
obtaining multi-territorial licences, online service providers miss out on the opportunity 
to  innovate,  better  respond  to  consumers’  needs  and  provide  them  with  an  attractive 
additional feature of the service.  

In  the  AV  sector,  right  holders  may  also  lose  out  by  not  being  able  to  allow  service 
providers  in  their  licences  to  provide  for  a  value-added  service  to  consumers  as  this 
would  require  the  renegotiation  of  their  existing  network  of  exclusive  licences 96  in 
different territories. This is a missed opportunity as offering the cross-border portability 
of services would not affect the current functioning of the AV sector (as described above) 
as  only  consumers  that  have  subscribed  to  the  service  in  their  home  country  or 
rented/purchased content there and are temporarily in another MS would benefit from it. 
The same logic applies in the premium sports sector.97  

Based on the evolution of the market, as explained below, the consumer demand that is 
unmet by the online service providers can be expected to increase rapidly in the coming 
years. 

How would the problem evolve, without EU action? 

Consumer demand for the cross-border portability of online content services is expected 
to increase with the growing use of mobile devices. To illustrate this trend, it is expected 
that  by  the  end  of  2020,  the  number  of  smartphones  in  Europe  will  have  doubled, 
reaching 800 million, meaning that more than 70 percent of mobile subscriptions will be 
for smartphones. Smartphone viewers in Europe consume more than four hours of video 
content on a weekly basis, almost half of which they view on-the-go98. Moreover, more 
than  59  million  European  households  (20%  of  the  European  pay-TV  market)  are 
expected to pay for subscription streaming video services by 202099.  

Overall,  also  taking  into  account  the  projections  for  the  increase  in  tourism,  it  can  be 
expected  that  the  percentage  of  European  consumers  at  EU28  level  who  would 
potentially  use  the  cross-border  portability  feature  of  online  subscription  services 
could reach 14% by 2020. This would equal around 72 million people in Europe.100 In 

96   See explanation above. 
97   As in the AV sector, the duration of licences for broadcasting rights for sporting events varies, e.g., in 
the UK the rights for the rugby matches in the Six Nations tournament were sold for six years starting 
from  2016,  see  http://www.rugbyworld.com/tournaments/six-nations-2012/tv-rights-will-six-nations-
deal-set-a-trend-46689,  for  club  championships,  broadcasting  rights  may  be  licensed  for  a  shorter 
period,  e.g.  Sky  Deutschland  acquired  the  exclusive  pay-TV  rights  for  all  live  Bundesliga  and  2nd 
Bundesliga  matches.from  the  2013/14  to  2016/17  season  in  Germany,  i.e.  three  seasons,  see 
http://www.broadbandtvnews.com/2012/04/18/sky-deutschland-wins-live-bundesliga-rights/. 
98   Ericsson mobility report; http://www.ericsson.com/thecompany/press/releases/2014/11/1872291 
99   Data  from  Digital  TV  Research;  see:  http://www.homemediamagazine.com/streaming/report-20-

european-tv-homes-have-svod-2020-34036 

100   Own  calculation based on  Eurobarometer  on  cross-border  access  to  content  and  Eurobarometer  392. 
This  is  calculated  by  multiplying  the  percentage  of  the  European  citizens  who  travel  or  temporarily 
stay in other EU MS by the estimated percentage of European citizens having a subscription for AV 
content, estimated growth in tourism, and estimated growth in the number of subscriptions. 14% of EU 
consumers  equal  approx.  72  million.  Sources:  for  the  estimated  population  in  EU28  for  2020 
(Eurostat); forecast for the growth in the number of subscriptions for AV content (IHS data); forecasts 
for 
https://ec.europa.eu/growth/tools-
databases/vto/documents?name_list=All&field_type_tid=9040&field_year_value=All&items_per_pag
e=10  
Assumptions: 1) Forecast for the number of subscriptions is for AV only but assuming that the trend 
will be the same across all media types. While the number of paid subscriptions in music is still lower 
than in AV, the growth is similar. See e.g.  

tourism 

trends 

EU 

28: 

in 

17 

 
                                                 
 
the public consultation, the vast majority of consumers who responded argued in favour 
of  cross-border  access  to  (including  the  cross-border  portability  of)  online  content 
services. 

As regards other measures related to the DSM, the end of mobile roaming charges as of 
June  2017  will  have  a  beneficial  economic  effect  on  cross-border  portability  in  sectors 
where  it  already  exists  and  vice  versa.  On  the  one  hand,  the  roaming  measure  will 
encourage  consumers  to  use  the  online  content  services  without  the  fear  of  incurring 
prohibitive  telecoms  charges  and  thereby  increasing  consumer  demand  for  portable 
services. On the other hand, the cross-border portability of content will mean more traffic 
flowing through the networks,101 justifying further investments by telecom operators. The 
measure  on  roaming  will  however  not  be  able  to  ensure  cross-border  portability  of 
content in areas where it does not exist yet. Also, as explained earlier in the IA, cross-
border  portability  is  a  self-standing  problem  that  would  not  be  resolved  by  any  other 
initiative foreseen in the DSM Strategy. 

In particular, for those consumers who wish to access the services they subscribed to or 
the  content  they  bought  or  rented  in  their  home  country, the  barriers deriving  from  the 
licensing  and  distribution  of  content  on  a  territorial  and  exclusive  basis  are  likely  to 
persist in the AV sector and for premium sports content due to the reasons described 
above.  Exclusive  territorial  licence  agreements  would  continue  to  restrict  the  cross-
border portability of content, except where service providers have licences for all EU or 
for multiple territories (or where contracts allow for certain overspill, i.e. small-scale use 
of the service beyond the licensed territory).  

Changes in this area could be very slow to materialise, as shown by the lack of tangible 
progress after the  pledge  that  the  representatives of the  AV sector made in 2013 at the 
"Licenses for Europe" stakeholder dialogue to facilitate cross-border portability.102 Two 
years after the "portability" pledge was undertaken, there do not seem to be any tangible 
results  or  concrete  industry  follow-up.  While  the  cross-border  portability  of  all  online 
AV content services in the EU is not expected to materialize in the medium term for the 
reasons  explained  earlier,  it  cannot  be  excluded  that  some  or  all  of  the  AV  industry 
would still try and follow up on the pledge made at the "Licences for Europe" forum. In 
this case, right holders would have to negotiate and grant new licences all over Europe 
taking  into  account  the  limited  cross-border  use  required  by  portability.  These  licences 
would however only allow for the cross-border portability of the "new" content covered 
by  them.  Therefore,  right  holders  would  also  have  to  embark  on  renegotiating  the 
existing  licences  with  territorial  exclusivity  in  all  EU  MS  in  order  to  allow  the  cross-
border  portability  feature  to  function  across  the  EU.  It  is  also  possible  that  a  limited 
number  of  major  providers  try  and  gradually  initiate  such  re-negotiation  process  to  be 
able  to  propose  portability  services  to  their  subscribers.  For  other  (smaller)  providers 
however re-negotiating contracts would likely represent a very burdensome exercise.  

Even  if  some  progress  is  achieved  by  the  market  participants  themselves,  the  situation 
would lead to consumers being put on an unequal footing in the internal market due to 
the disparities that will result from individual renegotiations of contracts. Moreover, even 
if right holders granted service providers the right to provide cross-border portability, the 

http://www.musicbusinessworldwide.com/files/2015/04/Netflixvsbiz2.jpg 
2) Forecast for the number of subscriptions is for 14 EU MS (AT, BE, DE, DK, ES, FI, FR, IE, IT, 
LU, NL, PT, SE, UK) but assuming that it would be the same for EU28. While data is only available 
for the 14 higher income MS, they represent over 77% of the European population. 3) Projections of 
the growth in tourism are available for years 2010-2020 and for subscriptions for 2014-2019. 

101   A "fair use" safeguard will mitigate excessive uses. 
102   See Annex 2 for details on the "Licences for Europe" forum and the pledge of the representatives of 

the AV sector. 

18 

 
                                                                                                                                                 
contractual arrangements surrounding it would be diverse and service providers may also 
eventually opt for not providing this feature to their consumers, e.g. due to the required 
safeguards  or  the  obligation to  black  out  parts  of  their  service.    Therefore,    even  if  the 
AV industry follows up on the "Licences for Europe" pledge, also taking into account the 
relatively long duration of licences in the AV sector, the growing consumer demand can 
be expected to remain unmet or only partially met in medium term. 

In  the  sports  sector,  it  may  be  easier  to  negotiate  licences  covering  cross-border 
portability when sport broadcasting rights are licensed for a short duration. However, this 
may  not  ensure  a  uniform  practice.  Moreover,  broadcasters/service  providers  who 
purchase  rights  for  live  events  may  be  less  willing  to  ensure  portability,  if  they  cannot 
offer the same for other premium content, including AV content. Otherwise, they would 
have to offer their services with "black outs" for consumers which could be unacceptable 
for reputational reasons. 

In  the  music  sector,  the  cross-border  portability  of  subscription  and  transactional 
services, which is already commonly proposed by platforms (both by larger players and 
smaller  providers)  would  probably  continue  to  be  the  norm.  The  existing  business 
practice in the sector is unlikely to change in the short term and it would not be possible 
for new players to enter the market without such offer. In the longer term, the licensing 
practices  in  the  market  could  develop  in  different  directions.  While  the  introduction  of 
further territorial restrictions seems unlikely, it cannot be excluded. Both in short and in 
longer  term,  in  those  cases  where  the  terms  of  the  use  of  the  service  diverge  from  the 
actual  practice,  unless  those  online  service  providers  review  the  terms  and/or  their 
licences with the right holders, legal uncertainty would remain. 

Book  publishers  and  video  game  developers  and  publishers  are  likely  to  continue  to 
generally  grant  multi-territorial  licences  enabling  online  services  to  offer  cross-border 
portability;  although  due  to  the  rapid  evolution  of  these  markets,  longer-term 
developments are hard to forecast.  

To  conclude,  under  the  baseline  scenario,  in  the  AV  sector  and  for  premium  sports 
content, there would be an increasing demand for portability of online services from an 
increasing number of consumers who travel abroad for work, studies or holiday and are 
unable  to  access  online  services  they  have  subscribed  to  or  online  content  they  have 
purchased/rented  in  their  home  country.  In  the  other  sectors,  cross-border  portability  is 
generally unrestricted (at least in practice) and at present it can be expected to remain so. 
This  development  in  both  technology  and  resulting  consumer  habits  calls  for  the 
adaptation of the legal framework in the general interest. 

3.  WHY SHOULD THE EU ACT? 

Legal basis 

Article 114 of the Treaty on the Functioning of the European Union (TFEU) confers on 
the EU the power to adopt measures, including a regulation, which have as their object 
the establishment and functioning of the internal market. Removing the existing barriers 
to  the  portability  of  online  content  services  during  temporary  presence  outside  of  the 
home MS  would, depending on the sector, be a first step to make possible or  facilitate 
and encourage the free movement of those services in the internal market, and adapt the 
legal framework to the change in circumstances brought about by the very rapid growth 
of the use of portable devices across borders.  

Online  content  services  which  would  be  affected  by  EU  action  predominantly  rely  on 
copyright-protected content. The EU has harmonised the area of copyright as regards the 
rights which are relevant for online dissemination of content (notably the reproduction, 
communication to the public and making available rights) – see Annex 6. As explained in 

19 

 
more detail in Section 2, these rights are territorial and in consequence a service provider 
that is making online content available in more than one MS must have the rights to use 
such content for the relevant territories. The rapid technological development as regards 
access to the internet and the increasing use of mobile devices whilst temporarily in other 
MS require reexamining the above framework as to whether it can continue contributing 
to the development of the single market.  

The  present  initiative  would  concern  the  exercise  of  these  harmonised  rights  across 
borders. Without the adaptation of the way the rights are exercised it would be extremely 
difficult to respond to developments in technology and commercial practices of service 
providers  that  allow  consumers  to  access  their  online  content  services  on  the  go  via 
portable devices. As this adaptation would affect the harmonised framework concerning 
the scope of copyright and related rights, it would have to rely on Article 114 TFEU as a 
legal base.  

As  explained  in  Section  2,  certain  elements  of  online  content  services,  e.g.  sporting 
events,  are  not  protected  by  copyright  and  therefore  not  subject  to  the  copyright 
harmonised legal framework. However, certain aspects of TV transmissions of sporting 
events  have  been  harmonised  by  Directive  2010/13/EU  (see  Annex  4).  Also,  sporting 
events are included in broadcasts in which broadcasting organisations can invoke rights 
harmonised  at EU level.  Other  rightholders, as the  case may be, can also invoke rights 
harmonised at EU level to works and other subject matter contained in those broadcasts. 
Furthermore,  as  indicated  by  the  CJEU103,  sporting  events,  when  broadcast,  are  often 
accompanied by copyright-protected elements such as the opening video sequence or the 
anthem.  The  present  initiative  has  as  its  objective  facilitating  access,  inter  alia,  to 
transmissions  of  broadcasting  organisations  which  include  transmissions  of  sporting 
events where such transmissions are offered to consumers as an online content service. In 
order to fully deliver to consumers the benefits of access to online content services when 
they  travel  in  the  EU,  taking  into  account  the  rapidly  changing  development  of 
technology and resulting consumer habits, it is important to include all elements of such 
transmissions in the initiative. Otherwise the result with regard to online transmissions, 
would be such that consumers would obtain access to those parts of the service which are 
protected by copyright while the other parts would be 'blacked-out' by service providers. 
This  would  be  inconsistent  with  the  objective  of  ensuring  uninterrupted  access  to  the 
entirety of the online content service to consumers who travel in the EU.  

Subsidiarity 

The subsidiarity principle (Article 5(3) TEU) requires the assessment of the necessity and 
the added value of the EU action.  

Necessity:  The  portability  of  online  content  services  is  per  definition  a  question  of  a 
cross-border nature. It ensures that consumers who have subscribed to an online service 
in their home country or who have purchased or rented content there, could access this 
service  or  content  when  they  travel  to  another  MS.  In  addition  to  certain  business 
considerations,  a  key  reason  why  this  is  not  possible  today  in  some  sectors  (AV  and 
sports  content)  is  the  complex  system  of  contracts  between  the  right  holders  and  the 
distributors/service  providers  in  the  28  MS  which  ensure  territorial  exclusivity.  They 
would  need  to  be  reviewed  one  by  one  and  in  a  consistent  manner  in  all  territories  in 
order to carve out cross-border portability. While this possibility cannot be excluded, it 
would entail significant costs for the parties and it would lead to diverse solutions in the 

103   See Joined Cases C403/08 and C429/08, Football Association Premier League Ltd, v QC Leisure, (C-

403/08); Karen Murphy v Media Protection Services Ltd (C-429/08), para 149. 

20 

 
                                                 
market (as it was explained in Section 2).104 Also, until cross-border portability becomes 
a standard element of all licence agreements, which can be expected to take a long time 
considering the need  for a  one-by-one revision of  the contracts in AV and  sports in 28 
MS, some of the content in the catalogue of the service provider would be portable and 
some  would  not.  This  would require  providers to black out some of  the content  during 
the consumers' temporary stay abroad. Therefore the fragmentation in the market would 
persist or even increase in the short to medium term. As copyright and rights related to 
copyright  such  as  rights  of  broadcasting  organisations  in  transmissions  have  been 
harmonised  at  EU  level,  MS  cannot  intervene  via  legislation  in  order  to  ensure  cross-
border portability. Therefore, such action can only be taken at EU level. Consequently, if 
the rights in question require adaptation in order to ensure cross-border portability, only 
the EU is entitled to act to adapt the legal framework. 

Intervention only in copyright would facilitate the negotiations between right holders and 
service  providers  however  it  would  not  be  sufficient  to  ensure  that  cross-border 
portability becomes available to consumers. This may only be achieved if the obligation 
to provide for this feature cannot be overridden by contracts. This must include existing 
contractual  arrangements  so  as  to  ensure  that  portability  becomes  available  for 
consumers  at  the  same  time  across  the  EU.  Action  by  MS  would  not  be  sufficient  to 
achieve  EU-wide  results  and  the  availability  of  content  would  remain  patchy  with 
limitations not only as regards certain pieces of content but also to certain MS. 

As far as the other sectors (music, e-books, video games) are concerned, currently there 
is no evidence of problems with cross-border portability. However, in the music sector, 
in  some  instances  despite  service  being  portable  in  practice,  end-user  agreements  state 
that customers are allowed to access the service solely in a territory of the MS in which 
they subscribed to the service. This is due to the licensing practices for online uses which 
are,  unlike  in  the  AV  sector  and  for  premium  sports  content,  generally  not  based  on 
territorial exclusivity. Consequently, in principle, it would seem that these sectors could 
be excluded from the intervention. However, in order to provide for full legal certainty 
and for the initiative to be future-proof by avoiding possible future fragmentation105, it is 
indispensable  to  cover  all  sectors  of  the  content  industry  in  an  equal  manner.  If  these 
areas  would  not  be  covered  by  this  intervention,  MS  would  not  be  able  to  address 
problems  arising  in  relation  to  copyright-protected  content  for  the  reasons  explained 
above.  Legislative  action  at  the  EU  level  to  adapt  the  copyright  acquis  would  ensure 
greater legal certainty and would do away with the need to seek separate licences for the 
purposes of cross-border portability. It would provide service providers a guarantee that 
they  will  be  able  to  provide  portability  to  their  consumers  also  in  the  long  run  and  to 
consumers to be able to benefit from this feature. 

Added  value:  In  the  short  to  medium  term,  only  EU  intervention  can  ensure  that  the 
conditions for consumers’ access to online content services do not vary according to the 
MS  they  are  located  in  at  a  specific  moment.  Including  cross-border  portability  in  all 
contracts by market participants may be attainable in the long term but it would be costly 
and will result in diverse solutions applied by different right holder and providers. On the 
contrary, in the case of EU intervention the consumer would have access to the service he 

104   Two years after the pledge made by the AV industry at the "Licences for Europe" forum, there is no 
evidence that "full" cross-border portability has been made available by any European service provider 
in the sector. Partial portability, as provided today and as explained in Section 2, cannot be expected to 
lead to solution across the board.  

105 Some  of  these  sectors  could  start  using  exclusivity  to  differentiate  offers.  If  only  some  right  holders 
changed  their  licensing  practice  and  applied  some  form  of  territorial  exclusivity,  service  providers 
would not be able to provide for the cross-border portability of their service anymore. 

21 

 
                                                 
has subscribed to or to the content he has purchased/rented under the same conditions, no 
matter  in  which  of  the  other  27  MS  he  travels  to.  EU  action  providing  for  further 
harmonised  conditions  would  also  produce  clear  benefits  to  online  service  providers, 
compared  to  any  national  solutions,  by  creating  a  legally  certain  framework  for  the 
provision of cross-border portability of online content services across Europe.  

4.  WHAT SHOULD BE ACHIEVED? 

The  goal  of  the  EU  policy  intervention  is  to  solve  the  problem  identified  in  Section  2. 
The  absence  of  cross-border  portability  in  the  EU  is  a  specific  problem  that  requires  a 
specific solution. It is necessary to remove certain barriers in the functioning of the DSM 
to  ensure that  consumers  can  access  online  content  services  they  have  subscribed to  or 
online content they have purchased or rented when being temporarily present in another 
MS. Other measures under the DSM Strategy will address other matters and would not 
solve  this  particular  problem.  They  would  not  make  this  initiative  obsolete  but  would 
complement it.   

Currently certain licensing practices by right holders and certain terms of use by service 
providers  prevent  consumers,  when  travelling  abroad,  from  accessing  the  service  they 
have subscribed to or the content they have bought or rented in their home country. This 
problem  is  particularly  present  with  respect  to  AV  and  premium  sports  content.  The 
initiative  should  aim  at  removing  these  barriers  so  that  the  needs  of  users  can  be  met 
more  effectively.  In  the  other  sectors  (music,  e-books  and  video  games),  the  current 
contractual  practices  do  not  seem  to  limit  cross-border  portability  (despite  legal 
uncertainty  in  some  services'  terms  of  use  –  see  Section  3).  It  cannot  however  be 
excluded  that  licensing  practices  change  in  the  future  or  service  providers  decide  to 
restrict  the  access  of  consumers  to  some  of  their  currently  available  services. 
Furthermore,  services  may  combine  different  types  of  content  (e.g.  AV,  music,  sports) 
with  different  degrees  of  portability.  Therefore,  in  order  for  the  EU  intervention  be 
future-proof  and  effective,  it  is  necessary  to  cover  all  types  of  content  and  not  to 
differentiate between online content services according to the content they use.     

At the level of the DSM, the general objectives aim at removing barriers that currently 
prevent  consumers  from  using  the  services  they  have  previously  subscribed  to  or  from 
accessing content they have previously purchased or rented, when travelling in other EU 
MS. From the perspective of right holders and service providers, the objective is to better 
respond to the needs of consumers. The specific objective of the EU action is to ensure 
the cross-border portability of online content services; it is one of the measures necessary 
to complete the DSM.  

Figure 4: Objective tree  

22 

 
 
5.  WHAT ARE THE VARIOUS OPTIONS TO ACHIEVE THE OBJECTIVES? 

As regards copyright-protected content, the objectives presented above could be achieved 
by  the  introduction  of  the  rule  localising  all  copyright-relevant  acts  occurring  online 
combined with a further harmonisation of copyright law or by a full harmonisation of EU 
copyright law and a single European copyright title. Such options, while not excluded as 
a longer term project, are beyond what is needed to solve the specific problem identified 
in  this  IA  as  they  would  address  not  only  the  question  of  cross-border  portability  of 
online content services but also a much broader question of the exploitation of works and 
other protected subject-matter over the internet as well as other issues such as authorship 
and ownership of works. Due to the very wide scope of such options, the timeframe for 
their negotiation and implementation would necessarily be very long. Consequently, they 
are not part of the short or medium-term actions envisaged in the DSM Strategy which 
aim  at  providing  targeted  solutions  to  specific  problems.  Also,  the  problem  of  cross-
border  portability  of  online  content  services  would  not  require  such  far-reaching 
measures  and  can  be  resolved  under  a  much  shorter  timeframe.  The  above  options  are 
therefore discarded as disproportionate for the current objectives. 

Baseline 

No  policy  intervention.  This  option  would  consist  in  relying  on  market  players  to 
progressively offer portability of content online as well as on the courts, and notably the 
CJEU,  to  clarify  the  application  of  provisions  of  EU  secondary  law  and  of  the  Treaty 
relevant to the free movement of services. It would also mean continuing to rely on the 
application of competition law to address territorial restrictions as this may have an effect 
on the provision of portable online content services.  

Option  1  –  Guidance  to  stakeholders  on  the  cross-border  portability  of  online 
content services 

This option consists in guidance to stakeholders by the Commission encouraging online 
content service providers to provide for cross-border portability of their services across 
the EU. In addition to service providers, this guidance would also be addressed to right 
holders,  who  would  be  encouraged,  when  licensing  rights  to  online  content  service 
providers, to grant the rights allowing for portable uses i.e. temporary uses of the online 
content in a MS  other than the  MS  where the consumer concluded the subscription (or 
the  transaction  in  the  case  of  download  to  own  or  rental  services).  The  extent  of  the 
portable  uses  would  have  to  be  defined  in  contracts  and  so  would  be  the  necessary 
safeguards  (e.g.  as  regards  the  authentication  of  customers).  The  guidance  would  also 
address  MS  which  would  be  invited  to  actively  monitor  market  developments  and  the 
conditions under which the portability of services is provided. 

Stakeholders' views 

This  option  is  not  favoured  by  consumers  as  their  objective  is  to  have  a  solution  that 
delivers portability in a fast and efficient manner. It used to be favoured by right holders 
and service providers although over time, the views of at least a part of content industry 
evolved and support was expressed with regard to the legislative solution (see below). 

Option  2  –  Legal  mechanism  to  facilitate  the  cross-border  portability  of  online 
content services in the EU  

Main elements 

23 

 
This  option  would  entail  a  legal  mechanism  according  to  which  the  provision  of  the 
online content service106 to a consumer who: 

  has lawful access to an online content service in his MS of residence, and 

 

is temporarily present in a MS other than his MS of residence, 

would be deemed to occur in the MS of consumer's residence (as opposed to in the MS of 
temporary stay of the consumer). The service provider could therefore, if not limited by 
contract, provide cross-border portability of his service across the EU without the need to 
acquire rights for the relevant EU MS; the right to provide an online content service in 
one MS would be sufficient.  

There  would  be  no  prohibition  on  contractual  clauses  which  limit  or  prevent  the 
application of the legal mechanism. 

Definitions and other provisions 

Services to be affected by the intervention:  

  an audiovisual media service within the meaning of Directive 2010/13/EU of the 
European Parliament and of the Council107 as well as a service the main feature of 
which is the provision of access to content protected by copyright and/or related 
rights such as films, music, books, games, etc. or to transmissions of broadcasting 
organisations108,  

  portable  (accessible  from  all  locations  that  allow  online  access)  in  the  MS  of 

residence of the consumer 109, 

  provided  to  the  consumer  against  payment  of  money  or  without  such  payment 
(e.g. advertisement-based services), in the latter case only if the MS of residence 
of the consumer is verified by a provider.    

'MS of residence' would be defined as the MS in which the consumer habitually resides. 
This is normally established by the use of proxies such as banking details, the existence 
of an agreement for broadband or telephone connection, IP address, etc.  

'Temporary  presence'  would  be  defined,  for  a  subscriber,  as  a  presence  in  a  MS  other 
than  his  or  her  MS  of  residence.  No  concrete  indication  as  to  the  length  of  such 
temporary  presence  would  be  provided  in  the  intervention.  Several  factors  explain  the 
choice of this approach. 

Specification  of  duration  of  temporary  presence  is  not  required,  as  the  main  defining 
feature  is  that  such  presence  does  not  change  the  habitual  residence  of  the  subscriber. 
The  definition  needs  to  accommodate  temporary  presences  of  various  length  and  for 

106   Therefore  e.g. services of satellite  or  ‘classical’  cable  TV  would not  be  included (but  internet-based 

cable services like “Magine” would). 

107   Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council  of  10  March  2010  on  the 
coordination  of  certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in  Member 
States concerning the provision of audiovisual media services OJ L 95, 15.4.2010, p. 1–24. 

108   Including online services linked to subscription-based TV or radio services. 
109   It is necessary to distinguish the two types of services as in practice, for AV content, in-home and out-
of-home rights are sold separately and therefore certain service providers using IP platforms (such as 
cable or IPTV) are granted only in-home rights. If the proposed rules applied to such providers, they 
would be required to enable cross-border portability of their services despite not being able to provide 
portability  in  their  national  territory.  Furthermore,  even  if  not  restricted  by  licensing  conditions, 
service providers may make a commercial decision not to offer their services on a portable basis in the 
national territory e.g. because of the investment necessary for the launch of such services. 

24 

 
                                                 
various  purposes,  such  as  leisure,  travel,  work  and  study.  This  will  benefit  consumers 
without generating extra cost for service providers or undermining right holders' content 
distribution practices. Also, online content services are developing dynamically and are 
characterised  by  a  variety  of  offers,  which  makes  it  difficult  to  set  a  uniform  duration. 
Furthermore, the objective of the intervention is to keep the possible verification of the 
MS  of  residence  within what  is  reasonable  and  necessary.  This  objective  would  not  be 
served by a fixed period of temporary presence which would imply checks of the exact 
duration of consumers' presence in MS other than his or her MS of residence.    

The intervention would not require service providers to use any authentication tools but 
would leave  this matter  to arrangements between holders of relevant rights and service 
providers.  

The legal mechanism would apply to the ongoing licensing contracts for online content 
between  right  holders  and  service  providers  only  if  both  parties  would  agree  on  its 
application.  It  would  apply  to  all  new  licensing  contracts  between  right  holders  and 
service providers.  

Full application to SMEs is envisaged (see Section 6). ' 

Legal instrument 

This option entails EU legislative intervention as only a binding instrument can guarantee 
that  sufficient  uniformity  of  the  application  of  the  legal  mechanism  and  legal  certainty 
are achieved for all stakeholders.  

A  regulation  would  be  directly  applicable  and  would  not  need  to  be  implemented  in 
national law as it would have immediate effect and is a particularly suitable instrument 
when  the  objective  is  the  uniform  application  of  rules  in  a  certain  area.  This  type  of 
instrument  would  be  the  best  to  achieve  the  objective  of  facilitating  the  portability  of 
online content across the EU. It would allow a uniform application of the portability rules 
across  MS  and  would  guarantee  that  right  holders  and  online  service  providers  from 
different MS are subject to the exact same rules. This would be particularly important for 
online content services present in different territories. 

On  the  contrary,  a  directive  would  leave  too  much  room  for  MS  to  choose  how  to 
implement  the  relevant  rules  in  their  national  legislation.  As  a  result,  there  would  be  a 
high risk that the conditions for the access to the relevant subscription services would be 
different  for  consumers  when  travelling  to  different  MS.  Furthermore,  the  conditions 
may  be  different  for  service  providers  wishing  to  offer  services  across  borders  in  the 
internal market. It may also take longer time to deliver the expected results in the market. 
Therefore, a directive would fail to achieve the pursued objectives. 

Stakeholders' views 

Right  holders  and  service  providers  which  had  initially  favoured  Option  1  expressed 
support  for  a  legislative  intervention.  The  content  industry  recognises  that  there  is  a 
demand  for  portability  and  that  offering  portability,  especially  for  AV  and  premium 
sports content, is extremely difficult due to the existing network of agreements. Option 2 
is the preferred option of the content industry as it would eliminate the licensing obstacle 
to  portability  while  leaving  the  contractual  freedom  for  the  parties.  Service  providers 
would  not  be  obliged  to  provide  the  cross-border  portability  of  their  services  and  right 
holders  could  influence  the  conditions  on  which  this  portability  is  provided  by  their 
contracts with service providers. AV producers would prefer to control the triggering of 
the legal mechanism, i.e. condition the application of this mechanism on the agreement 
between right holders and service providers. The option is not favoured by consumers as 
it does not include the mandatory element of providing portability. 

25 

 
Option  3  –  Intervention  to  ensure  the  cross-border  portability  of  online  content 
services in the EU  

Main elements 

The intervention would contain the following three elements: 

1) The legal mechanism described in Option 2.  

2)  An  obligation  on  the  providers  of  online  content  services  who  lawfully  provide  a 
portable online content service  in a MS of  the EU to ensure cross-border portability of 
services, i.e. to provide customers who are residents of this MS with access, during their 
temporary  stays  in  other  MS,  to  the  same  content,  on  the  same  range  and  number  of 
devices  and  the  same  range  of  functionalities  (including,  for  instance,  accessibility 
features for people with disabilities) as those offered in their MS of residence. Providers 
would not be however obliged (unless they commit to it in an express manner) to provide 
the same quality of the delivery of an online content service in other EU MS as in the MS 
of residence of the customer.  

3) Prohibition of restrictions in contracts between right holders and providers of online 
content  services  or  such  service  providers  and  their  customers  limiting  cross-border 
portability of online content services. 

Definitions and other provisions 

Definitions would be the same as in Option 2.  

The intervention would not require service providers to use any authentication tools but 
would leave  this matter  to arrangements between holders of relevant rights and service 
providers.  At  the  same  time,  there  would  be  appropriate  safeguards  relating  to  the 
proportionality and necessity of the requirements potentially imposed by right holders to 
ensure that such requirements would be adequate for the objective of authentication and 
would not result in an excessive burden on service providers. 

There would be also general data protection safeguards to ensure that the potential use of 
authentication tools is made in a proportionate manner. 

The  intervention  would  apply  to  the  ongoing  contracts  for  online  content  services 
between  right  holders  and  service  providers  and  between  service  providers  and 
consumers.  Market  players  would  benefit  from  a  transitional  period  to  make 
arrangements necessary to adapt to the new rules.  

Full application to SMEs is envisaged (see Section 6).  

Legal instrument 

This option entails EU legislative intervention as only a binding instrument can guarantee 
that the portability is achieved in all MS and that sufficient uniformity and legal certainty 
are achieved for all stakeholders.  

The considerations as regards the choice of legal instrument are the same as in Option 2. 
A regulation seems better suited to reach the objectives of the initiative. 

Stakeholders' views 

This  option  is  favoured  by  consumers.  As  to  the  views  of  right  holders  and  service 
providers see Option 2.  

6.  WHAT ARE THE IMPACTS OF THE DIFFERENT POLICY OPTIONS AND WHO WILL BE 

AFFECTED? 

Baseline 

26 

 
Effectiveness  

The impacts of the baseline scenario will significantly vary depending on the sector, the 
development of business models and on licensing practices, as described in the problem 
definition.  

Content  industries:  The  pressure  exerted  by  consumers  who  increasingly  use  mobile 
devices to access content might result, in the medium to long term, in right holders and 
service  providers  progressively  finding  solutions  to  allow  cross-border  portability  of 
online  AV  content.  However,  this  is  likely  to  require  long  negotiations,  as  it  would 
involve  changes  to  multiple,  often  long-running  licensing  contracts,  possibly  also  with 
regard to licence fees (though it is not evident given the negligible impact of portability 
on the territorial exploitation of content). Right holders are expected to be, at first, rather 
reluctant  to  allow  for  portable  uses  within  the  EU,  due  to  the  difficulty  deriving  from 
reviewing the existing network of licensing agreements and because of possible problems 
in determining/monitoring that the use is really a "portability" use, i.e. that the use in MS 
other than the home MS of the consumer is limited to temporary stays. 

In  sports,  gradually,  due  to  consumer  preferences,  sports  organisers  may  offer  cross-
border  portability  when  selling  their  broadcasting  rights.  Where  broadcasting  rights  for 
premium sports content are licensed for a short duration, such evolution could take place 
in  a  short  to  medium  term.  However,  the  duration  of  licences  may  vary  significantly. 
Furthermore,  due  to  different  market  dynamics  applicable  to  different  sports,  this 
evolution can take some time and lead to diversified results. Sport right holders may, at 
first, have the same concerns as described above for the determination and monitoring of 
the portability use.   

In  the  short  or  medium  term,  there  is  no  significant  change  expected  in  the  licensing 
practices in music. Producers of music (majors and independent) are likely to continue to 
license  on  a  multi-territorial  basis  if  online  service  providers  request  such  licences.  As 
regards  authors'  rights,  music  publishers  and  CMOs  (those  that  comply  with  the 
requirements  of  the  CRM  Directive)  are  likely  to  do  the  same.  These  multi-territorial 
licences  would  allow  online  service  providers  to  continue  offering  portability.  Even  in 
the case of territorial licences being granted to online service providers, right holders are 
likely to accept a certain level of portability offered by service providers as these licences 
would  not  be  based  on  exclusivity.  In  the  same  way,  in  the  short  or  medium  term,  no 
change in the licensing practices for e-books and online games is expected. However, it is 
difficult to make predictions in that regard for the long term given the rapidly-evolving 
context in which these services operate. 

Service  providers:  Online  AV  services,  in  particular  subscription  services  (including 
online content services offered by pay-TV operators), would be increasingly interested in 
offering to their customers the possibility to access the service when travelling in other 
EU MS. Certain operators have already announced their intention  to explore with right 
holders the possibility to offer this.110  However, concrete results could be achieved only 
if right holders are willing to review existing licensing arrangements and accept to grant 
authorisations  for  portable  uses.  This  would  partly  depend  on  the  market  power  of 
service providers which in turn puts smaller providers and especially start-ups (SMEs) in 
a difficult position. In any case, it is likely that service providers would only be able to 
provide the cross-border portability of parts of the content offered by their service.  

110   E.g.  Canal+  for  its  SVOD  service,  see:  http://electronlibre.info/le-groupe-canal-pret-a-adopter-la-

portabilite-pour-ses-abonnements/  

27 

 
                                                 
Concerning  sports,  consumers  who  increasingly  use  mobile  devices  for  viewing  sports 
content  online 111  may  exert  pressure  on  broadcasters/service  providers  to  ensure 
portability  of  their  services.  However,  broadcasters/service  providers,  who  acquire 
exclusive  rights  for  live  sporting  events,  may  be  less  willing  to  ensure  cross-border 
portability  for  consumers,  if  they  cannot  offer  the  same  for  other  premium  content, 
including AV content. Indeed, it could be difficult to explain to consumers why part of 
the content is portable, while the other is "blacked-out". Portability of sports content may 
then  depend  on  the  portability  of  other  AV  content.112 Also,  the  territorial  exclusivity 
enjoyed  by  broadcasters/service  providers  leads  to  less  competitive  pressure  to 
differentiate  their  offerings  (including  by  offering  cross-border  portability)  as  such 
content is not available to consumers elsewhere.   

As  both  major  and  smaller  music  platforms  already  offer  cross-border  portability  of 
subscription  services,  they  are  expected  to  continue  to  do  the  same  under  the  baseline 
scenario (assuming no changes in the licensing practices of right holders). Portability is 
so  common  that  it  is  highly  unlikely  that  new  players  could  enter  the  market  without 
providing  this  service  to  their  customers.  The  same  would  apply  to  e-books  and  video 
games. 

This option would have no impact either on competition in the internal market or the 
competitiveness  of  the  creative  industries.  It  would  have  no  impact  on  employment 
either. Other than those mentioned above, there are no specific impacts on SMEs. 

Consumers: In the short  term,  consumers travelling abroad  would remain cut-off from 
their  home  countries  as  regards  the  access  to  AV  content  and  premium  sports  content). 
However, in the medium to long term, certain online services might be able to offer to 
their customers the cross-border portability of their service. However, under this option, 
this  is  not  expected  to  become  a  standard  industry  practice.  The  number  of  consumers 
being  able  to  use  portability  across  borders  is  likely  to  increase  slowly  and  unevenly 
across Europe. Specifically for premium AV and premium sports content, given that there 
are  prevailing  exclusivity  arrangements,  consumers  may  not  have  an  option  to  switch 
services providers in favour of providers offering cross-border portability, as the content 
may not be available elsewhere.  

No significant impact is expected for consumers as regards other types of content (music, 
e-books and games). Cross-border portability is likely to continue to be widely available 
for  EU  consumers  assuming  no  changes  in  the  licensing  practices  of  right  holders. 
However, as far as the music content is concerned, the legal uncertainty as regards terms 
of use of the service113 would continue. 

Efficiency  

The baseline scenario would not entail any compliance costs and would not deliver any 
benefits. 

Coherence with other EU policies 

Cultural  diversity:  The  baseline  scenario  would  not  have  any  impact  on  cultural 
diversity. It would not affect the production of new cultural content.  

111   See Annex 5. 
112   However, unbundled offerings are also emerging, where broadcasters offer sports content 'à la carte', 
see  Section  2.  Portability  of  such  unbundled  services  would  be  less  dependent  on  the  portability  of 
broadcaster's overall package.    

113   See Section 2.  

28 

 
                                                 
Fundamental rights: The baseline scenario would not have any impact on copyright as 
property  right  or  on  the  freedom  to  conduct  a  business,  as  recognised  in  the  European 
Charter of Fundamental Rights (Articles 16 and 17). 

Third  countries,  trade  and  environment:  The  baseline  scenario  would  not  have  any 
impact on third countries and trade or on the environment. It also does not affect the EU's 
and the MS's international obligations. 

Option  1  –  Guidance  to  stakeholders  on  the  cross-border  portability  of  online 
content services 

Effectiveness   

The  impact  of  this  option  would  also  vary  across  sectors,  depending  on  the  existing 
licensing practices (use of multi-territorial licences, territorial exclusivity etc.). 

Content  industries:    Right  holders  in  the  AV  and  sports  sectors  would  be  the  most 
impacted,  as,  in  practice,  this  option  would  mainly  address  them  and  invite  them  to 
review  their  licensing  practices  which  currently  limit  cross-border  portability.  They 
would be encouraged to grant licences for portable uses outside the home territory when 
they hold the rights for all EU territories, which is generally the case for AV producers. 
Their willingness to authorise portable uses would depend on the market power of online 
service  providers  and  on  the  proposed  safeguards  concerning  access  to  content  from 
territories other than the MS of residence of the consumer and on the degree of difficulty 
to renegotiate licences they may have granted with territorial exclusivity.  Portability is 
not  expected  to  affect  the  value  of  territorial  exclusivity,  however  the  authorisation  of 
portable uses would require changes in licensing contracts based on territorial exclusivity 
(portable uses would have to be carved out). Right holders are expected to be reluctant to 
authorise  portable  uses  of  their  content  if  online  service  providers  do  not  offer  the 
sufficient  guarantees  in  terms  of  authentication  procedures,  confirmation  that  the 
presence  outside  the  home  country  is  temporary,  quality  of  the  service  provided  to 
travelling  customers,  etc.  Also  (though  it  is  not  evident  given  the  negligible  impact  of 
portability  on  the  territorial  exploitation  of  content),  there  could  be  negotiations  on 
licence fees as right holders could, ask for higher licence fees when authorising portable 
uses (claiming additional use of content) while service providers could ask for lower fees 
(claiming lower value of their territorial exclusivity). In any case, a substantial change to 
licensing  fees  is  not  expected.  All  in  all,  this  option  could  encourage  right  holders  to 
consider adapting their licensing practices; however it is unlikely to generate a consistent 
approach across the AV or sports industry. The experience with the Licences for Europe 
stakeholder forum shows that in spite of the industry's commitment "to continue to work 
towards  the  further  development  of  cross-border  portability”;  no  visible  progress  has 
been  achieved  for  the  portability  of  AV  and  sports  online  services  despite  two  years 
having  passed  in  which  many  online  TV  and  film  service  providers  successfully 
introduced  out-of-home  viewing  solutions.  The  Commission  has  monitored  the  market 
(e.g.  by  a  systematic  analysis  of  terms  of  use  of  online  content  services)  for 
developments on portability but saw none except for one development (which falls short 
of  cross-border  portability),  i.e.  some  streaming  services  offering  to  consumers  the 
possibility to download films or TV programmes in their home MS before travelling and 
then  to  access  the  downloaded  content  in  other  MS.  The  discussions  with  stakeholders 
also confirmed that no progress has been made on the basis of the commitment – this is 
in contrast with certain other pledges made in the process of Licences for Europe.114  

114  e.g.  regarding  the  digitisation  of  heritage  films  or  the  building  the  rights  data  infrastructure,  with 
regard to which the Commission was informed of the progress made by the relevant stakeholders. 

29 

 
                                                 
Right  holders  in  other  sectors  (music,  e-books  and  video  games)  are  not  likely  to  be 
impacted, in particular if they grant multi-territorial licences to online service providers. 
Where this is not the case, this option could encourage the introduction of specific terms 
in licensing contracts allowing service providers to offer portability. 

Service providers: In the AV sector, online subscription services and pay-TV operators 
are  likely  to  be  interested  in  developing  a  cross-border  portability  option  in  order  to 
improve  the  service  to  their  customers  and  better  respond  to  their  needs  in  terms  of 
mobility.  In  the  future,  subscription  video-on-demand  (SVOD)  services  are  likely  to 
compete  directly  with  pay-TV  operators115,  notably  through  lower  subscription  prices. 
The development of the portability feature could constitute a competitive advantage for 
the “first mover” (SVOD service or pay-TV operator). As mentioned above, there could 
be  negotiations  between  right  holders  and  service  providers  on  licence  fees  but  a 
substantial change to licensing fees is not expected. 

In the sports sector, premium sports content is often exclusively licensed in packages to 
broadcasters/service providers, who may be entitled to make the content available across 
the  platforms,  including  online. 116  For  these  broadcasters/service  providers,  their 
willingness  to  offer  portability  may  depend  on  their  ability  to  offer  it  for  their  entire 
package,  including  AV  content.  As  for  portability  for  sports  content  only,  the 
broadcasters/service  providers  may  have  less  competitive  pressure  to  be  the  "first 
mover", if they have exclusive rights to transmit live sporting events in a given territory. 
Indeed, such premium sports content is irreplaceable, so service providers are less likely 
to lose consumers in a short and medium term due to the lack of cross-border portability. 
On the other hand, portability is not likely to lead to higher licence fees because it would 
have a limited impact on how the sports broadcasting rights are licensed, i.e. in packages 
shaped taking into account the specific demand in a given territory, and because of vast 
differences in value of the rights between the primary market and other markets. 

In  other  sectors  (music,  e-books,  games),  the  impact  of  this  option  would  be  marginal 
unless  negotiations  are  deemed  important  by  some  service  providers  to  gain  legal 
certainty from right holders on portable uses.  

As explained above, this option could have an impact on the competition between online 
service  providers  in  the  AV  sector  and  with  pay-TV  operators,  with  the  first  online 
services  offering  portability  benefiting  from  a  competitive  advantage  over  the  other 
services.  It  would  however  not  affect  the  competition  between  service  providers  in 
different MS, if portability is offered on the basis of a residence requirement. This option 
would  not  have  any  impact  on  employment.  For  service  providers  that  are  SMEs,  the 
specific impacts are proportionally higher costs (see below). 

Consumers:  This  option  could  bring  benefits  for  consumers  in  terms  of  the  higher 
number  of  portable  online  content  services  offering  AV  content  and  premium  sports 

115   Up  to  now  it  seems  that  pay-TV  services  have  withstood  the  arrival  of  new  online  subscription 
services.  For  example,  despite  the  launch  of  Netflix  in  the  UK  in  2012,  BskyB  maintained  constant 
10.6million  subscribers  between  2012  and  2013.    The  main  reason  would  be  that  most  viewers 
consider  online  subscription services  as  a  complementary  offer  to pay-TV  services (notably  because 
pay-TV  subscriptions  also  offer  sports  programs).  Another  possible  explanation  would  be  that  the 
development  of  AV  online  services  is  based  on  a  new  market  segment  and  viewer  profile  (mainly 
young  people).  See  "Creating  growth  –  Measuring  cultural  and  creative  markets  in  the  EU",  EY, 
December 2014, at: 
http://www.ey.com/Publication/vwLUAssets/Measuring_cultural_and_creative_markets_in_the_EU/$
FILE/Creating-Growth.pdf  

116   E.g. the UEFA sells its broadcasting rights on the platform neutral basis; Sky Deutschland acquired the 
exclusive  pay-TV  rights  for  all  live  Bundesliga  and  2nd  Bundesliga  matches  from  the  2013/14  to 
2016/17 season in Germany, which covers the rights for all platforms; see also Annex 4. 

30 

 
                                                 
content. However, this development would likely be slow and heterogeneous, as it would 
depend on the willingness and possibility of online service providers to offer portability 
and  on  the  result  of  their  negotiations  with right  holders. In  some  cases,  online  service 
providers may only be in the position to offer portability for certain types of content (for 
which right holders would have granted a licence covering portable uses) but not for their 
entire catalogue.  

This  option  could  potentially  result  in  higher  prices  for  consumers  compared  to  the 
current situation, because of the combined effect of the potential increase in licence fees 
(see  above),  administrative  costs  of  renegotiations  of  contracts  and  potential  cost  of 
technical  improvements  to  the  service  (see  section  on  efficiency).  In  this  case,  online 
service providers could decide to pass these costs through to the consumers. Their ability 
to increase prices is however likely to be limited by the competition between the different 
market  players  (in  particular  SVOD  services  and  pay-TV  operators).  As  portability 
becomes  a  standard  feature  (like  in,  for  instance,  music)  the  possibilities  to  charge 
additionally for it will diminish. 

The impact of this option on consumers' access to the portability of music, e-books and 
games online services is expected to be marginal, as portability is already offered in most 
cases,  either  on  the  basis  of  multi-territorial  licences,  or  through  territorial  licences 
allowing a limited “overspill” in other territories. 

Efficiency  

This  option  could  entail  significant  transaction  costs  for  those  right  holders  and  online 
service providers in the AV sector who decide to follow the Commission's guidance and 
offer  cross-border  portability.  This  would  generate  administrative  costs  related  to  the 
review of licences and terms of services. To allow for portable uses in other territories, 
on  the  one  hand,  right  holders  would  need  to  adapt  all  the  contracts  they  have  with 
distributors in the different territories where their content is licensed. On the other hand, 
online  service  providers  may  need  to  negotiate  with  a  high  number  of  right  holders  or 
intermediaries (distributors, online aggregators of rights) in order to obtain the necessary 
rights for ensuring the portability of their entire catalogue. Aggregators of online rights117 
could play an  active  role to limit  these costs,  by negotiating directly with right holders 
and  ensuring  to  online  service  providers  the  licensing  of  rights  including  portability. 
Costs  associated  to  the  renegotiation  of  contracts  are  very  difficult  to  estimate  as  they 
would,  among  other  things,  depend  on  the  number  of  parties  involved,  the  extent  of 
changes  that  parties  would  want  to  introduce  and  on  the  current  practices  of  online 
service  providers  (e.g.  with  regard  to  authentication  tools).  As  regards  sports  content, 
taking into account the way how the sports broadcasting rights are licensed (in packages 
and for a certain number of sporting events/seasons), the administrative costs related to 
the review of licences and terms of service may be less significant.   

Negotiations  may  result  in  higher  licence  fees  (see  above)  and  in  a  set  of  safeguard 
measures,  required  by  the  right  holders,  which  service  providers  would  have  to 
implement if they want to ensure portability118. This could entail some technical costs for 
online  service  providers  (e.g.  strengthening  of  their  authentication  measures,  use  of 
content delivery networks to improve the quality of the content delivered to users etc.)119. 
Depending  on  their  size  and  on  their  customer  base,  certain  AV  online  services, 
especially  SMEs  may  prefer  not  to  engage  into  such  negotiations  in  order  to  limit  the 

117   Services of intermediaries whose purpose is to negotiate with rights holders of different films in order 

to create a catalogue that is attractive for VoD platforms. 

118   These are explained in Option 3. 
119   These are explained in Option 3. 

31 

 
                                                 
transaction  costs.  In  particular,  their  lower  bargaining  power  may  result  in  worse  deals 
for them than for larger players which can reduce their competitiveness. 

The  potential  benefits  delivered  by  this  option  could  be  for  consumers  (i.e.  higher 
number of portable AV and premium sports content services) but they are expected to be 
limited  as  this  option  is  unlikely  to  lead  to  a  consistent  change  in  the  commercial 
practices of the industry.  

This option would have no compliance costs for other stakeholders or in other sectors. 

Coherence with other EU policies 

Cultural  diversity:  This option  would  not  have impact on the production of culturally 
diverse content. Slight benefits may be expected in terms of enhanced access to cultural 
content as the current users of some online content services would have better access to 
some of the content they have acquired online while travelling in the EU. It is unlikely 
that  heterogeneous  cross-border  portability  would  attract  new  consumers  to  online 
content services.   

Fundamental  rights: This option would not have any impact on copyright as property 
right  or  on  the  freedom  to  conduct  a  business,  as  right  holders  and  service  providers 
would remain free to decide whether to follow or not the Commission’s guidance. 

Third  countries,  trade  and  environment:  This  option  would  not  have  any  impact  on 
third countries and trade or on the environment. It also does not affect the EU's and the 
MS's international obligations. 

Option  2  –  Legal  mechanism  to  facilitate  the  cross-border  portability  of  online 
content services in the EU 

Effectiveness   

Content  industries:  The  impact  of  this  option  on  right  holders  would  depend  on  the 
existing licensing practices in place in the different content sectors and on the bargaining 
power  of  right  holders  vis-a-vis  service  providers.  The  most  affected,  in  terms  of  the 
manner  in  which  the  content  is  licensed,  would  be  AV  and  premium  sports  content 
sectors.  

Producers of AV works and sports organisers (as far as premium content is concerned) 
could  continue  to  license  this  content  on  an  exclusive  territorial  basis  but  no  separate 
licence  from  them  would  be  required  for  a  service  provider  to  offer  portability  of  its 
services to consumers who are temporarily present in other EU countries. In principle, a 
provider could offer such portability across the EU based on a licence for one EU MS. 
However,  as  right  holders  and  service  providers  would  be  free,  within  the  limits  of 
competition  law,  to  limit  or  prevent  the  cross-border  portability  of  online  content 
services, the actual application of the legal mechanism would depend on the outcome of 
contractual  negotiations  between  the  parties  as  well  as  on  the  commercial  decisions  of 
service providers. Negotiations between the parties would be facilitated in the sense that 
the  solution  for  cross-border  portability  would  be  ready  in  the  form  of  the  legal 
mechanism, only conditions of its application could be negotiated.   

Right holders are expected to be reluctant towards the legal mechanism if online service 
providers  do  not  offer  the  sufficient  guarantees  in  terms  of  authentication  procedures, 
confirmation  that  the  presence  outside  the  home  country  is  temporary,  quality  of  the 
service  provided  to  travelling  customers,  etc.  Also  (though  it  is  not  evident  given  the 
negligible impact of portability on the territorial exploitation of content), there could be 
negotiations on licence fees as right holders could, ask for higher licence fees when the 
legal  mechanism  applies  (claiming  additional  use  of  content)  while  service  providers 
could  ask  for  lower  fees  (claiming  lower  value  of  their  territorial  exclusivity).  Right 

32 

 
holders willingness to allow portable uses would depend on the market power of online 
service  providers  and  on  the  proposed  safeguards  concerning  access  to  content  from 
territories other than the MS of residence of the consumer.  

As  regards  ongoing  contracts,  right  holders  would  be  in  a  stronger  position  as  without 
their agreement the legal mechanism would not be triggered. As regards new contracts, 
the position of right holders would be weaker as the legal mechanism would apply and 
right holders wishing to limit its effects would have to introduce appropriate provisions 
in their contracts with service providers. Right holders could also opt not to license the 
online  content  at  all  or  not  license  it  on  the  portable  basis.  If  right  holders  prevented 
portability,  the  option  would  not  have  any  impacts  on  them.  In  cases  where  service 
providers would be able to resist the demands of right holders, the decision whether to 
provide portability of online content services would rest only with service providers. If 
service providers decide to use the legal mechanism, limited impacts as described below 
for right holders would arise. In any case, as the cross-border portability of online content 
services does not extend the range of users of the service, i.e. it merely allows the current 
users of the service to use it while temporarily present in other MS, the expected impact 
on the industry would be marginal.  

Impacts arising if service providers use the legal mechanism 

On  the  one  hand,  the  portability  feature  may  attract  more  consumers,  especially  those 
that  frequently  travel,  to  subscribing  to  or  purchasing  AV  or  sports  online  content 
services  and  could  result  in  more  revenues  for  right  holders.  Also,  the  right  holders 
licensing works on a per-use basis (e.g. where the licence fee depends on the number of 
streams  by  users  of  a  service)  are  likely  to  generate  additional  revenue  in  case  of 
increased uses by subscribers as well as from transactional services as consumers would 
be more willing to purchase or rent online content while travelling in other MS.  

On  the  other  hand,  it  cannot  be  excluded  that  as  the  result  of  this  option,  the  affected 
customers would be less likely to use local services (especially advertisement-financed or 
transactional AV or sport services as these are more likely to be used by persons staying 
only temporarily in the given MS) in the MS to which they travel. This would not have 
an  impact  on  revenues  from  services  which  are  advertisement-based  as  occasional 
viewing  does  not  generate  any  advertisement  revenues  and  therefore  the  loss  of  such 
viewing is neutral for the service. On the other hand, there could be potential marginal 
decrease in revenues of local services that are transactional and this in turn could reduce 
the  revenues  of  the  AV  producers  (depending  on  the  structure  of  fees  payable  to 
producers).  However,  such  effect  would  be  limited  to  the  cases  where  different  right 
holders have the rights for different territories for the same piece of content. This is not 
necessarily the case  in  the  area of AV and premium  sports  content as rights tend to be 
held by a single right holder (unless e.g. rights are split between co-producers, in case of 
films, or sub-licensed, in case of sports). Moreover, the revenues of the holders of rights 
would  be  compensated  by  higher  revenues  from  the  increased  use  of  services  as 
mentioned  above.  Finally,  the  scenario  based  on  the  assumption  that  a  consumer  could 
buy content in a visited country is theoretical, especially if the temporary stay is short: 
few consumers would engage in exploring a new market for content services (especially 
in languages they do not know). Therefore, no (or negligible) negative impact on AV and 
sports  right  holders'  revenues  is  expected.  Incentives  to  create  and  produce  for  right 
holders would therefore remain unchanged.  

The  impact  on  AV  industry's  and  sports  organisers'  possibility  to  exploit  content  on  a 
territorial basis could be negative if customers residing in other MS than the MS in which 
the  service  is  offered  would  be  able  to  use  the  portability  functionality  to  access  the 
service in the MS of their actual residence (i.e. the portability function would be used to 
achieve a cross-border access to content). However, such risk could be averted by the use 

33 

 
of adequate authentication mechanisms which would ensure that the service is provided 
only to those customers who are residents of the MS in which the online content service 
is provided and that the stay in other MS is indeed temporary. As mentioned above, the 
possibility  of  imposing  requirements  as  to  authentication  tools  would  depend  on  the 
bargaining power of right holders vis-a-vis service providers. 

The impact of this option on the industry would be very limited in the music, book and 
games sectors where generally the licensing practice is not an obstacle to portability. In 
these sectors this option would mainly deliver legal certainty for market participants. 

In the music  sector, the fact that  most online services, including local services, already 
grant portability and that generally right holders do not grant a separate licence to service 
providers  for  use  of  works  in  additional  territories  on  a  temporary  basis,  suggests  that 
right holders in the music sector view possible impacts of portability as negligible. This 
is despite the fact that contrary to AV and sports, in the music sector rights are often held 
by different right holders in different territories and different CMOs are often involved in 
the management of these rights and therefore theoretically right holders holding rights in 
the  'visited  market'  could  be  affected  as  customers  would  be  less  likely  to  use  local 
services in the MS to which they travel. The impact is however limited as the effects in 
the 'visited' market are minimum. As mentioned above, the scenario according to which a 
consumer  could  buy  content  in  a  visited  country  seems  theoretical,  especially  if  the 
temporary  stay  is  short:  few  consumers  would  engage  in  exploring  a  new  market  for 
content  services.  Moreover,  if  consumer  demand  for  online  services  was  to  increase 
thanks  to  the  portability  feature,  revenues  for  right  holders  would  also  increase  (the 
licence fees that right holders receive would increase as well in cases where they are, at 
least  partly,  calculated  on  the  basis  of  revenue  per  stream).  In  cases  of  lump  sum 
payments, the revenue would remain unchanged.  

This option is not likely to have a significant impact on the right holders in the e-books 
sector.  Firstly,  in  most  cases  an  e-book  is  downloaded  to  the  reader's  device,  and  the 
providers of subscription-based services typically offer portability. Secondly, rights to e-
books  are  granted  on  a  per-language  rather  than  per-territory  basis,  therefore  in  most 
cases the current licensing contracts do not prevent access from another MS.  

The  same  applies  to  the  video  games  sector,  where  already  now  right  holders  are  not 
restricting access to online video games from abroad. Service providers delivering video 
games through streaming are likely to continue offering portability of such video games, 
including across borders. 

Service  providers:  Under  this  option,  service  providers  would  benefit  from  the  legal 
fiction  applicable  to  the  licensing  of  the  rights,  unless  agreed  differently  with  the  right 
holders. They would not be obliged, however, to ensure that consumers can benefit from 
cross-border portability.  

In the AV sector, the availability of cross-border portability to consumers would depend 
on  service  providers'  business  decisions  and  their  bargaining  power  towards  right 
holders. The right holders' possibility of imposing increased licence fees would depend 
on their assessment of the impact of portability on the existing business models and on 
the bargaining power of the service providers. It cannot be excluded that the fact that the 
service provider has a choice whether to offer cross-border portability or not could result 
in pressure from right holders to increase licence fees due to an increased functionality of 
services  if  the  service  provider  opts  to  offer  portability.  Even  though  cross-border 
portability would not increase the size of audience, the fact that the service provider has a 
choice  whether  to  offer  it  or  not  may  turn  the  portability  function  into  a  provider's 
competitive  advantage  which  thus  could  arguably  be  monetized.  Therefore,  the  right 
holders could ask for a share of such perceived value. At the same time, service providers 
could  ask  for  lower  fees  claiming  lower  value  of  their  territorial  exclusivity.  It  is 

34 

 
therefore not entirely evident that right holders would demand an increase of licence fees 
or that they would succeed in raising such fees.  

The  potential  increase  in  licence  fees  could  have  more  negative  impact  on  smaller 
providers than  on larger ones as the larger  ones would  have stronger  bargaining  power 
vis-à-vis right holders and would be in a better position to absorb the increased cost of 
licence fees. However, given the limited effect of the portability feature on the territorial 
exploitation of rights, it is expected that such increase, if any, would not be significant.  

As concerns sports content, portability is not likely to lead to higher licence fees because 
it would have a limited impact on how the sports broadcasting rights are licensed, i.e. in 
packages  shaped  taking  into  account  the  specific  demand  in  a  given  territory,  and 
because of vast differences in value of the rights between the primary market and other 
markets. 

As mentioned above under Content industries, it cannot be excluded that the consumers 
benefiting from portability would be less likely to use local – especially AV transactional 
-  services  in  the  visited  MS.  However,  as  explained  above,  such  scenario  is  rather 
theoretical, especially if the temporary stay is short.  

Music, e-books, and games payment-based online services which do not offer portability 
yet  could  benefit  from  the  legal  certainty  because  they  would  be  sure  not  to  infringe 
copyright  laws  or  their  licences  with  right  holders  in  any  of  the  MS  by  granting 
portability.  

Consumers:  This  option  could  bring  benefits  for  consumers  in  terms  of  the  higher 
number  of  portable  online  content  services  offering  AV  content  and  premium  sports 
content. However, this development would likely be heterogeneous and relatively slow, 
as  the  availability  of  cross-border  portability  would  depend  on  the  outcome  of  the 
negotiations between right holders and service providers. The legal mechanism under this 
option  would  facilitate  these  negotiations  but  the  decision  to  provide  portability  to 
consumers  would  remain  subject  to  the  agreement  between  right  holders  and  service 
providers.  Consequently,  consumers  are  unlikely  to  have  access  to  the  entire  catalogue 
offered by a service provider when travelling in another MS in short and even in medium 
term. 

Like Option 1, this option could also result in higher prices for consumers compared to 
the current situation, because of the combined effect of the potential increase in licence 
fees,  administrative  costs  of  renegotiations  of  contracts  and  potential  cost  of  technical 
improvements  to  the  service.  Nonetheless,  the  ability  of  service  providers  to  increase 
prices is likely to be limited by the competition between the different market players. 

The impact of this option on consumers' access to the portability of music, e-books and 
games online services is expected to be marginal, as portability is already offered in most 
cases. 

Efficiency 

Content industries and service providers: As this option does not entail an obligation 
to  provide  for  the  cross-border  portability  of  online  content  services  there  are  no  costs 
directly  linked  to  the  intervention.  Should  service  providers  decide  to  rely  on  the  legal 
mechanism  and  offer  cross-border  portability  of  their  services,  potential  costs  would 
concern mainly, if not exclusively, the AV and sports sectors and would be the same as 
the  costs  described  in  Option  3,  i.e.  costs  of  authentication  of  subscribers,  costs  of 
renegotiation  of  contracts  and  service  providers'  costs  related  to  the  use  of  network 
infrastructure.  However,  as  the  legal  mechanism  would  apply  to  the  ongoing  contracts 
only  to  the extent  both parties  would  agree  on such  application,  the expected  extent  of 

35 

 
such  renegotiations  is  limited.Consumers:  The  potential  benefits  for  consumers  (i.e. 
higher  number  of  portable  AV  and  premium  sports  content  services)  but  they  are 
expected  to  be  limited  as  this  option  is  unlikely  to  lead  to  a  consistent  change  in  the 
commercial practices of the industry.  

This option would have no compliance costs for other stakeholders or in other sectors. 

Coherence with other EU policies 

Cultural diversity: This option would not have any impact on the production and offer 
of  diverse  cultural  content.  As  mentioned  above,  indirect  substitution  effects  would  be 
non-existent  or  marginal  as  consumers  while  temporarily  present  in  other  territories 
typically do not subscribe to online content services. Limited benefits can be expected in 
terms  of  enhanced  access  to  cultural  content  as  current  users  of  some  online  content 
services (and possibly only with regard to some content) would have a better experience 
of the content they have acquired online through easier access while travelling in the EU. 
It is unlikely that heterogeneous cross-border portability would attract new consumers to 
online content services.  

Fundamental rights: This option would have a limited impact on copyright as property 
right and on the freedom to conduct a business, as recognised in the European Charter of 
Fundamental  Rights  (Articles  16  and  17).  However,  the  measure  would  be  justified  in 
view  of  the  Treaty  fundamental  freedom  to  provide  and  receive  services  across 
borders120.  Restricting  the  above-mentioned  freedoms  (through  the  legal  fiction)  would 
be  justified  in  light  of  the  objective  of  facilitating  cross-border  portability  of  online 
content services for European consumers. The initiative would only affect these freedoms 
in a very limited manner (i.e. right holders holding rights in MS in which consumers are 
temporarily  present  would  neither  be  able  to  prevent  the  provision  and  use  of  online 
content  services  in  their  territories  nor  to  benefit  from  them)  under  very  limited 
circumstances, i.e. to facilitate portability of online content services which have already 
been subscribed to or purchased/rented by consumers. It would not have any significant 
impact on the revenues of either right holders or service providers or on business models 
based on territorial exclusivity. In addition, given that the disadvantages caused to right 
holders  would  be  of  a  very  limited  scope  while  consumers  would  be  afforded  a  clear 
benefit  of  enhanced  access  to  online  content  services  across  the  internal  market,  the 
measure  is  not  disproportionate  to  the  aims  pursued.  It  would  not  go  beyond  what  is 
necessary to facilitate portability in all content sectors. The above arguments also apply 
to  any  possible  affectation  of  the  right  of  consumers  to  the  protection  of  their  personal 
data  (Article  8  of  the  Charter).  Service  providers  are  likely  to  use  some  tools  for  the 
verification of the temporary nature of the consumer's stay in another MS but this would 
only  require  an  occasional  check  of  the  MS  in  which  the  consumer  is  present121 and 
should  be  carried  out  in  line  with  the  requirements  for  legitimate  data  processing  in  
Directive 95/46/EC (Article 7). 

120   Article 52(1) of the Charter allows for restrictions interfering with the exercise of the freedoms of the 
Charter: those restrictions (i) must be provided for by law and (ii) respect the essence of those rights 
and  freedoms.  In  addition,  the  limitations  are  (iii)  “subject  to  the  principle  of  proportionality”  and 
“may be made only if they are necessary and genuinely meet objectives of general interest recognized 
by the Union or the need to protect the rights and freedoms of others”  

121   The  verification  of  the  temporary  nature  of  the  consumer's  stay  in  another  MS  does  not  require  the 
permanent control of his location or any information on his precise location, only an occasional check 
as to in which MS he is present.  

36 

 
                                                 
Third  countries,  trade  and  environment:  This  option  would  not  have  any  impact  on 
third countries and trade or on the environment. It also does not affect the EU's and the 
MS's international obligations.122    

Option  3  –  Intervention  to  ensure  the  cross-border  portability  of  online  content 
services in the EU  

Effectiveness 

Content  industries:  The  impact  of  this  option  on  right  holders  would  depend  on  the 
existing licensing practices in place in the different content sectors. The most affected, in 
terms of the manner in which the content is licensed, would be AV and premium sports 
content sectors.  
Producers of AV works and sports organisers (as far as premium content is concerned)123 
could  continue  to  license  this  content  on  an  exclusive  territorial  basis  but  no  separate 
licence  from  them  would  be  required  for  a  service  provider  to  offer  portability  of  its 
services  to  consumers  who  are  temporarily  present  in  other  EU  countries.  A  provider 
could  offer  such  portability  across  the  EU  based  on  a  licence  for  one  EU  MS  and  the 
right  holders  would  not  be  able  to  prevent  it.  This  would  affect  the  way  in  which  the 
harmonised  rights  are  exercised  as  right  holders  granting  a  licence  in  a  territory  would 
know  that  such  a  licence  will  allow  for  the  portability  of  services  to  the  other  MS  and 
those  holding  rights  for  the  territories  in  which  customers  would  stay  temporarily  and 
enjoy portability of their home MS online content service would not be able to prevent 
such a service provider from offering its service to its customers. It would be a notable 
change as far as the premium content is concerned as currently such online services do 
not  offer  portability  or  offer  limited  cross-border  portability. 124  However,  as  the 
portability of online content services does not extend the range of users of the service, i.e. 
it  merely  allows  the  current  users  of  the  service  to  use  it  while  temporarily  present  in 
other MS, the expected impact on the industry would be marginal.  

More detailed impacts are identical to impacts described under Option 2.  

Impacts arising if service providers use the legal mechanism. Under Option 3 however 
right  holders  would  be  limited  in  their  possibility  of  imposing  authentication  tools  on 
service providers by proportionality and necessity provisions.  

Service  providers:  Under  this  option,  service  providers  would  benefit  from  the  legal 
mechanism applicable to the licensing of the rights and be able to better respond to their 
customers'  needs  by  granting  cross-border  portability  of  their  online  services.  If  the 
service is provided in exchange of remuneration, the service provider would be obliged 
to ensure cross-border portability. If the service is provided free of charge, the provider 
would only be obliged to enable the cross-border portability if the provider can verify the 
subscriber's MS of residence on the basis of information or other means readily available 
to  the  provider.  If  a  service  provider  offers  free  of  charge  services  without  such 
verification, they would not be obliged to ensure portability.  

In the AV sector, similarly as in Option 2, it cannot be excluded that right holders may 
make pressure on service providers to increase licence fees due to increased availability 
of services (despite the fact that portability only concerns consumers that are entitled to 
receive  the  service  in  their  MS  of  residence).  However,  contrary  to  Option  2,  because 

122  Persons who are not residents in any MS would not benefit from the intervention when travelling in the 

EU. 

123   For  other  (not  premium)  AV  and  sports  content,  the  impact  of  this  option  would  be  insignificant  as 

rights to such content are licensed without exclusivity. 

124   See examples provided in problem definition.  

37 

 
                                                 
portability would not be a choice but an obligation, the pressure to increase the licence 
fees  would  be  smaller.  Right  holders  could  not  rely  on  the  fact  that  portability  is  an 
additional  or  optional  functionality.  Therefore,  portability  would  not  be  perceived  as  a 
competitive advantage which could  be monetized  in the same  was as it could be under 
Option 2.  

As in Option 2, the possibility of imposing increased licence fees would depend on the 
parties'  assessment  of  the  impact  of  portability  on  the  existing  business  models  and  on 
their bargaining power. However, given the limited effect of the portability feature on the 
territorial exploitation of rights and its binding nature, it is expected that such increase, if 
any, would be marginal and even less significant than under Option 2. Also, right holders 
rely  on  a  diversified  distribution  system  comprising  both  bigger  and  smaller  service 
providers. Therefore, it is unlikely that they would undermine the competitive position of 
smaller  providers  by  their  fees  policy,  especially  because  smaller  providers  would  not 
have  a  choice  but  would  be  obliged  to  offer  portability  to  consumers.  As  a  result,  all 
service providers could offer a better product which could attract more customers.  

As concerns sports  content, similarly as in Option 2, portability is not likely to lead to 
higher  licence  fees  because  it  would  have  a  limited  impact  on  how  the  sports 
broadcasting rights are licensed.  

A  number  of  service  providers  have  expressed  support  for  cross-border  portability  of 
online  services 125  but  are  usually  in  favour  of  industry-led  solutions  and  soft  law 
instruments as opposed to legal obligations in this area. 

Music, e-books, and games payment-based online services which do not grant portability 
yet could benefit from this option as they would be able to offer a better service to their 
customers. The impacts of this Option to these industries are equivalent as in Option 2. 
Moreover, in the longer term this option would ensure that even if right holders change 
their  current  licensing  practice  in  a  way  that  applies  more  territorial  restrictions  than 
today,  service  providers  in  these  sectors  could  always  offer  cross-border  portability  to 
their consumers.  

This option could have limited impact on the competitiveness of online service providers 
in the AV sector, as the ability to absorb the indirect costs of providing portability (see 
below)  would  depend  on  their  size  and  on  their  geographical  coverage  of  EU  MS. 
However, such costs are not expected to be significant. This option is not likely to affect 
cross-border  competition,  as  consumers  would  not  be  able  to  subscribe  to  an  online 
service offered in another MS on the basis of portability. This option is not expected to 
have any impact on employment. 

Consumers: This option would respond to consumers' demand to continue their access 
to  online  content  services  when  they  travel  in  the  EU.  Accordingly,  this  option  would 
respond to the increasing mobility of consumers and their willingness to access content 
from anywhere. Based on the results of the recent Eurobarometer survey on cross-border 
access  to  content  and  the  results  of  a  previous  Eurobarometer  survey  carried  out  on 
tourism,  approximately  5.7%  of  European  consumers  would  potentially  be  "portable 
users" of online subscription services and this could reach approximately 14% by 2020 
(see Section 2). Consumers would be able to use their subscription-based online content 
services  while  staying  temporarily  in  another  MS.  It  would  also  allow  consumers  to 
access  the  online  content  they  have  acquired  or  rented  (or  to  acquire  or  rent  more 

125    See e.g. the EDIMA 

http://www.europeandigitalmediaassociation.org/pdfs/EDiMA%20positioning%20on%20territoriality.
pdf or Cable Europe http://www.cable-europe.eu/  

38 

 
                                                 
content) from the MS where they are temporarily. Moreover, as the measure would apply 
also to the existing subscription-based and transactional services, all consumers (whether 
already using online content services or not) could benefit in an equal manner and at the 
same time. 

This  option  would  result  in  the  substantial  increase  in  convenience  for  consumers  as 
regards  AV  content.  It  could  generate  a  greater  interest  in  online  AV  services,  in 
particular subscription services.  

In the sports sector, this option would bring substantial benefits for consumers. It would 
enable them  to  watch  "home"  content  while  travelling  in the  EU  which  is  of  particular 
importance  in  this  sector  given  that  the  value  of  sports  content  lies  in  it  being  viewed 
'live', including with commentary focusing on their home team and targeted interviews.  

In the music sector, this option could produce some benefits for consumers, if they have a 
subscription to a music online service which currently does not offer portability or offers 
portability in practice but this practice is not in line with the terms of use signed by the 
consumer. In the e-books and games sectors, consumers are not likely to be significantly 
affected  by  this  option.  In  principle,  where  a  particular  service  is  not  providing  the 
portability  feature  yet,  its  introduction  would  respond  to  the  needs  of  the  increasingly 
mobile  consumers,  creating  extra  value  for  them.  In  these  sectors,  this  option  would 
make sure, even in the long term, that consumers always have cross-border portability of 
the  services  available,  even  if  right  holders  or  service  providers  decided  to  introduce 
more territorial restriction in their future contracts.  

Finally, a significant number of Member States have already expressed their support for 
an EU initiative on cross-border portability while a couple of them appear more inclined 
to support industry-led solutions.126   

Efficiency 

Content  industries  and  service  providers:  Potential  costs  related  to  the  offering  of 
portability  of  online  content  services  could  concern  mainly,  if  not  exclusively,  the  AV 
and  sports  sectors  and  can  be  divided  between  potential  costs  directly  related  to  the 
intervention,  i.e.  service  providers'  potential  costs  of  authentication  of  subscribers  and 
costs  which  may  arise  but  are  only  indirectly  related  to  the  intervention,  i.e.  costs  of 
renegotiation  of  contracts  and  service  providers'  costs  related  to  the  use  of  network 
infrastructure. 

1.  Costs  directly  linked  to  the  intervention  -  potential  costs  of  authentication  of 
consumers 

The  measure  would  in  practice  require  modifying  the  current  geo-blocking  where  such 
geo-blocking  is  used,  i.e.  re-configuring  authentication  tools  from  the  geo-blocking 
approach to the temporary access approach. This does not necessitate the acquisition of 
new technology and would therefore result in none or marginal administrative cost. The 
measure  would  not  require  service  providers  to  use  any  authentication  tools  but  would 
leave  this  matter  to  arrangements  between  holders  of  relevant  rights  and  service 
providers. At the same time, this option would include appropriate safeguards relating to 
the proportionality and necessity of the requirements potentially imposed by right holders 
to  ensure  that  such  requirements  would  be  adequate  for  the  objective  of  authentication 
and  would  not  result  in  an  excessive  burden  on  service  providers.  In  addition,  service 
providers would have to comply with the requirements for legitimate data processing in  
Directive 95/46/EC. It is assumed that the MS of residence checks, even if not imposed 

126 E.g. UK: https://engage.number10.gov.uk/digital-single-market/, France: 

https://m.contexte.com/docs/6431/position-francaise-sur-le-marche-unique-du-numerique.pdf  

39 

 
                                                 
by the measure itself, would be carried out (due to the residence requirement) in the AV 
and  premium  sports  content  sectors  and  that  they  would  go  beyond  requesting  of 
consumers' to make a declaration as to their Member State of residence. Most likely such 
checks would occur at the moment of activating the subscription/purchase/rent of online 
content  and  would  be  carried  out  by  the  use  of  proxies  such  as  banking  details,  the 
existence of broadband or telephone connection or IP address.  

Currently online content service providers in all sectors use different techniques to verify 
the MS of residence of a customer. The basic method is to check whether the user's IP 
address is in the national registry. In addition methods such as checking address, credit 
card information or geolocation data of devices are used. The vast majority (if not all) of 
affected service providers already has such authentication mechanisms in place and could 
maintain them. The cost of implementing such authentication tools would only relate to 
the  limited  cases  of  providers  that  do  not  have  such  mechanisms  in  place.  IP  address 
authentication  can  be  achieved  at  a  relatively  low  marginal  cost  since  it  consists  in  a 
limited (software) processing function (usually performed centrally) using a managed set 
of parameters such as a blacklist or whitelist at the main server site against the address is 
checked. Despite our enquiries addressed to the affected industries, we have not received 
any information allowing us to quantify the potential costs related to authentication tools. 
As indicated above, the extent of costs would depend on whether and what authentication 
tools are already used by service providers and the cost would further vary depending on 
the  parameters  used  for  the  authentication.  In  the  context  of  Licences  for  Europe 
stakeholder dialogue, the network of independent VOD platforms EuroVoD stated: "The 
EuroVoD  platforms  can  propose  to  their  subscribers  to  have  access  to  films  available 
within  their  SVoD  offers,  when  travelling  abroad.  This  type  of  access  is  technically 
possible  for  the  web-based  services  developed  and  operated  by  the  EuroVoD 
platforms." 127  which  would  suggest  that  VOD  service  providers  already  have  the 
technical feasibility to provide portable services (including the authentication tools). 

The mechanism envisaged in this option would mean that the legal fiction would apply as 
long as the consumer in question would continue to be a resident of the MS in which the 
service  is  offered,  the  consumer  would  access  the  service  in  the  EU  and  the  stay  in 
another EU MS would be temporary. All these conditions would have to be satisfied at 
the time of consumption of content. Therefore it would be possible that, despite the lack 
of such obligation in the measure itself, content owners in AV and sports sectors would 
insist on more accurate and more costly methods of authentication to be used by service 
providers  to  effectively  verify  the  user's  identity  and  uses  (mainly  periodic  checks  on 
user logs based on IP address) and avoid any fraudulent activity. Such a software check 
on the user logs is routine and does not entail significant costs. Moreover, the measure 
would ensure that requirements imposed by holders of rights would not exceed what is 
necessary  and  proportionate.  As  mentioned  above,  service  providers  would  have  to 
comply  with the requirements  for  legitimate data  processing  in  Directive 95/46/EC.  As 
regards sectors in which portability is already provided, i.e. music, e-books and games, in 
the short term, no cost related to the authentication is expected as the intervention would 
not create a new situation for these sectors (portability would continue to be provided on 
the same terms).  Costs could arise in longer term if licensing practices of right holders 
would  change,  e.g.  rights  would  be  granted  on  an  exclusive  basis.  In  such  a  case,  the 
same considerations as applying to AV and sports sectors would apply to these sectors.  

127

https://ec.europa.eu/licences-for-europe-dialogue/sites/licences-for-europe-

dialogue/files/EuroVoD%20Statement.pdf  

40 

 
                                                 
In  addition,  content  service  providers  in  AV  and  sports  sectors  themselves  might  be 
interested in using more accurate methods authentication e.g. to avoid/reduce any risk of 
licensing lawsuits. For example, EuroVoD, in the statement referred to above explains: 
"In order to enable cross-border access, the EuroVoD platforms can apply a combined 
identification of the subscribers – through their IP (geolocation) and through their user’s 
account  (bank  card  used  for  payment).  When  subscribing  to  the  service,  users  declare 
their country of residence as the same as the territory where the platform operates and 
accept the Terms and Conditions of use of the service. At this stage, users are identified 
through  their  IP  and  they  can  also  pay  with  a  foreign  bank  card.  When  travelling 
abroad, users can have access to the SVoD offer they have subscribed to, thanks to an 
identification  through  their  user’s  account  and  bank  card.  If  consumption  is  done 
exclusively from abroad for a certain period of time, users receive alerts and warnings 
for non respecting the Terms and Conditions of use. The access to the service can be shut 
down."  This  implies  that  VOD  platforms  foresee  the  application  of  not  only 
authentication tools but also IP address checks allowing verifying whether the presence 
of a customer in a given MS is indeed temporary.  

In conclusion, costs directly linked to the intervention are not expected to be significant 
and could be absorbed in the routine software maintenance costs of service providers.  

Moreover, it has to be kept in mind that most of the authentication/identification methods 
can  be  circumvented.  Economically  the  most  important  effect  of  using  more  accurate 
checks resides in raising the direct and indirect costs of circumvention to an extent that it 
is  no  longer  attractive  for  a  substantial  number  of  users.  Since  both  right  holders  and 
service  providers  have  a  shared  interest  in  generating  revenues  from  subscribers  and 
advertisers  it  can  be  expected  that  the  market  dynamics  will  lead  to  a  suitable  path  of 
technological improvements which would balance the interests of increasing security and 
generating additional revenues from legal content distribution.    

2. Costs which may arise but are only indirectly related to the intervention 

(i) Potential costs of renegotiation of contracts 

In order to ensure that all EU consumers (whether already subscribers to online content 
services or not) could enjoy the cross-border portability feature without any delay, at the 
time when the measure becomes applicable, the measure would also apply to the ongoing 
contracts  for  online  content  services  between  right  holders  and  service  providers  and 
between  service  providers  and  consumers.  Application  to  existing  contacts  is  also 
necessary because otherwise, due to the typical long duration of the contracts especially 
in  the  AV  sector128,  cross-border  portability  would  become  a  norm  for  some  pieces  of 
digital content before others. This would require service providers to "black out" parts of 
their service which would reduce its attractiveness.  

Despite  the  fact  that  the  intervention  would  apply  to  the  existing  contracts,  the 
mechanism  foreseen  in  this  option  would  not  require  holders  of  rights  and  service 
providers to renegotiate such contracts and therefore there is no associated administrative 
cost.  The  legal  fiction  would  apply  to  the  existing  contracts  and  the  currently  existing 
clauses  that  require  that  service  providers  geo-block  their  services  and  provide  such 
services  solely  in  their  national  territories  would  be  interpreted  (without  the  need  of 
amendments)  in  the  light  of  the  new  rules  i.e.  such  clauses  would  not  apply  to  cross-
border  portability.    It  cannot  be  excluded  that  holders  of  rights  and  service  providers 
would want to renegotiate the existing contracts nonetheless to e.g. adjust the licence fees 
or amend the authentication requirements but that would be their own decision and not a 
necessity linked to the intervention under this option.  

128   The duration of licences in the AV sector is estimated for 3-10 years with the average of 4-7 years.  

41 

 
                                                 
In  addition,  in  certain  cases  (especially  in  regard  to  AV  and  premium  sports  content) 
online  service  providers  would  also  need  to  review  the  terms  of  use  of  their  services, 
including  with  respect  to  existing  contracts.  As  adding  cross-border  portability  to  the 
service  would  be  for  the  benefit  of  consumers  (assuming  no  change  to  the  price  of 
subscription),  it  could  be  easily  introduced  and  the  only  related  cost  would  be  the 
administrative cost of notifying the affected consumers (which is normally done by email 
or on the website itself). In addition, as only consumers who are residents in a certain MS 
can benefit from the legal fiction and consequently from cross-border portability, those 
service providers that do not currently check the MS of residence of their consumers and 
would  need  to  rely  on  the  legal  fiction  would  have  to  carry  out  this  check  during  a 
transitional  period  and  possibly  offer  different  terms  for  their  existing  (and  future) 
consumers on this basis. 

Costs  associated  to  the  renegotiation  of  contracts  are  very  difficult  to  estimate  as  they 
would depend on various factors such as the number of relevant contracts, the extent of 
changes  that  parties  would  want  to  introduce,  the  current  practices  of  online  service 
providers  (e.g.  with  regard  to  authentication  tools)  and  the  duration  of  the  given 
contract.129 It is expected that the longer the duration of the contract, the more important 
would  be  for  the  parties  to  renegotiate  its  terms.  We  have  not  been  able  to  obtain  any 
estimation of such costs. 

This option could also result in savings for those holders of rights that would be willing 
to  license  their  rights  in  such  way  that  ensures  their  portability  and  who,  in  order  to 
achieve that, would have had to amend numerous agreements that they have entered into 
with distributors and service providers in various territories (as such agreements provide 
for  territorial  exclusivity,  all  of  them  would  have  to  be  amended  in  order  to  license  a 
provider  rights  with  portability  function).  This  option  allows  such  holders  of  rights  to 
change their licensing  practices without having  to amend the existing contracts.  By the 
same token, this option could result in savings for service providers who would not have 
to amend contracts they entered into with various right holders and distributors. 

(ii) Potential costs related to the use of network infrastructure 

This  option  does  not  set  legal  requirements  with  regard  to  the  quality  of  the  service 
delivered  in  the  MS  other  than  the  MS  of  residence  of  the  consumer.  This  means  that 
service providers are not obliged to adapt the technical infrastructure in order to ensure 
the  same  quality  of  service  across  borders  and  therefore  there  is  no  associated 
administrative cost. 

Service  providers  (especially  bigger  AV  content  service  providers,  including  premium 
sports content providers) may see a need (e.g. due to reputational considerations) to adapt 
the  technical  infrastructure  in  order  to  ensure  the  same  quality  of  service  across 
borders.130 If service  providers see a need to adapt  the technical infrastructure, it might 
lead to more substantial costs (e.g. the  cost of upgrading the internet connection of the 
origin  server  in  terms  of  bandwidth  or  traffic  volume  or  the  cost  of  content  delivery 
networks (CDN)131). Such costs would be substantial if providers of AV content services 
decide to invest in CDN in order to ensure quality of their service also when accessed in 
other  MS.  Allowing  portable  uses  without  ensuring  the  same  or  comparable  user 

129   Based on information obtained from the stakeholders it seems that the duration of contracts in the AV 
sector  is  between  3  and  10  years  (depending  e.g.  on  the  type  of  content  and  the  type  of  the  service 
provider) with the average at 4-7 years while the duration of contracts for sports content seems to be 
generally shorter but also varies. 

130   See Annex 8 for the description of technology used for the delivery of online content services. 
131   A  CDN  allows  faster  delivery  of  content  by  using  the  servers  closest  to  each  user  and  therefore  to 

increase the quality of the streamed content – see Annex 8 for more information. 

42 

 
                                                 
experience may not be seen as an acceptable option to bigger service providers, but also 
to right holders as it could affect the way in which their content is distributed. One study 
analysed  the  impact  of  speed  and  online  video  quality  on  user  behavior and  found  that 
delays in starting up a video or interruptions could increase abandonment rates and result 
in loss of viewership.132 Right holders may therefore try to impose on service providers 
requirements concerning quality of service provided to customers temporarily present in 
other MS. 

Costs associated to the use of CDN for portable uses are very difficult to estimate as they 
would depend on the current practices of online service providers (whether they already 
use a CDN or not) and on the volume of data transferred and stored (which would vary 
according the volume of portable uses by consumers).133 Moreover, CDN is not the only 
technical  means  to  ensure  quality  of  video  services.  Some  providers 134 use  the  less 
expensive peering technologies, which use end-users' devices as content storage points. 
Also,  the  whole  content  delivery  segment  is  characterised  by  intense  technological  and 
business  innovation,  meaning  that  the  present  content  delivery  infrastructure  costs  are 
likely to go down, and online content service providers are likely to have - depending on 
the nature and scale of their services - an even greater choice of content delivery options. 
Impact  on  SMEs  (including  micro-enterprises)135:  While  the  costs  described  above 
could put proportionally more burden on SMEs than on large businesses (which is also 
the case for the day-to-day business of SMEs), the negative consequences of exempting 
them  (or  even  micro-enterprises)  are  likely  to  outweigh  the  savings  in  costs:  as 
consumers  become  increasingly  aware  of  the  requirement  to  provide  cross-border 
portability,  they  are  likely  to  start  seeing  it  as  a  "must-have"  feature  of  online  content 
services,  and  the  inability  of  smaller  online  service  providers  to  provide  that  feature 
might result in a serious competitive disadvantage. Furthermore, costs directly related to 
the  intervention  are  expected  to  be  marginal  since  all  service  providers  covered  by  the 
initiative already provide for subscription-based or transaction-based services online and 
thus already apply some form of authentication mechanism. Including SMEs (including 
micro-enterprises) in the scope of this exercise would probably be the only way to enable 
them  to  align  their  offers  and  provide  portability  to  their  customers  (as  the  cost  of 
renegotiating all existing contacts with right holders could be too high for SMEs), thus 
contributing  to  their  competitiveness  on  the  market.  Moreover,  exempting  micro-
enterprises  from  the  scope  of  the  rules  is  likely  to  undermine  the  efficiency  of  the 
measure,  considering  that  many  online  content  service  providers  are  micro-enterprises. 
No  data  on  the  percentage  of  micro-enterprises  among  providers  of  online  content 
services is available, however the creative industries in the EU are dominated by micro 

132   "Video  Stream  Quality  Impacts  Viewer  Behavior:  Inferring  Causality  Using  Quasi-Experimental 
Designs",  2012:  https://people.cs.umass.edu/~ramesh/Site/HOME_files/imc208-krishnan.pdf.  The 
study found that "viewers start to abandon a video if it takes more than 2 seconds to start up, with each 
incremental delay of 1 second resulting in a 5.8% increase in the abandonment rate" and that "a viewer 
who  experienced  failure  is  2.32%  less  likely  to  revisit  the  same  site  within  a  week  than  a  similar 
viewer who did not experience a failure."  

133   A  survey  carried  out  by  one  streaming  media  technology  expert  on  the  costs  of  CDN  for  video 
delivery  found  that  77%  of  CDN  customers  are  spending  $250K  per  year  or  less,  while  11%  are 
spending between $250 and $500K, 6.5% between $500K and $1M and 5% over $1M per year. It also 
showed that there was a 20-25% decline in pricing on 2013 and this trend is expected to be confirmed 
for 2014 and 2015; see "The State Of The CDN Market: Video Pricing, Contract, Volume and Market 
Sizing  Trends",  Dan  Rayburn,  http://www.streamingmedia.com/dansblog/2014CDNSummit-
Rayburn.pdf  
134   E.g. Voddler 
135   An enterprise that has less than 10 employees and its turnover or balance sheet total does not exceed 
EUR 2 million (Commission Recommendation 2003/361 concerning the definition of micro, small and 
medium-sized enterprises) 

43 

 
                                                 
firms with 95% having fewer than 10 employees, the overwhelming majority (90.8%) of 
the value added generated within the EU-27’s film and sound recording activities sector 
in  2010  was  provided  by  SMEs,  which  employ  just  over  three  quarters  (75.4%)  of  the 
total number of persons employed in the sector.136 In the recorded music industry, 99% 
of music businesses are SMEs.137 

Consumers:  Impact  of  the  intervention  on  consumer  prices  is  directly  linked  to  the 
potential costs associated with the intervention that service providers may bear – if such 
costs  arise,  service  providers  would  be  expected  to  pass  them  on  to  consumers.  As 
described above, potential costs encumbering service providers are limited (assuming no 
changes  to  licensing  practices)  to  AV  and  premium  sports  content  sectors.  In 
consequence,  the  possibility  of  an  increase  in  consumer  prices  is  also  limited  to  these 
sectors. On the one hand, as described above, it cannot be excluded that right holders in 
such content succeed in increasing licence fees for service providers (which is less likely 
for sports content). This will to a large extent depend on the bargaining power of service 
providers  vis-à-vis  right  holders.  The  ultimate  outcome  of  such  potential  negotiations 
over licence fees is very difficult to predict and in any case, given the limited effect of 
the  portability  feature  on  the  territorial  exploitation  of  rights,  it  is  expected  that  an 
increase,  if  any,  would  be  marginal.  On  the  other  hand,  service  providers  may  have  to 
bear  the  above-described  costs  of  authentication  tools,  the  costs  of  renegotiation  of 
contracts  and  the  costs  of  the  use  of  networks.  As  explained  above,  only  the  costs  of 
authentication tools are directly linked to the intervention. These costs are estimated as 
marginal. It cannot be excluded that in the AV content sector the combined impact of the 
potential  increase  in  licensing  fees  (even  if  marginal),  authentication  tools  (even  if 
marginal) and the indirect costs (the costs of renegotiation of contracts and the costs of 
the use of networks) would amount to an increase in prices for consumers. At the same 
time, the ability of online service providers to raise prices would be limited, notably due 
to  the  consumers'  willingness  to  pay,  to  the  competition  with  other  market  players  and 
due to the constraining effect of illegal websites distributing online content and therefore, 
the  potential  increase  of  consumer  prices,  if  any,  is  not  expected  to  be  significant. 
Finally, as explained above, the possible need to check the MS of residence of consumers 
in  order  for  them  to  benefit  from  cross-border  portability  might  result  in  some 
inconvenience  (and  marginal  cost)  for  the  consumers  in  the  case  of  those  service 
providers which do not currently check such residence. 

Coherence with other EU policies 

Cultural diversity: This option would not have any impact on the production and offer 
of  diverse  cultural  content.  As  mentioned  above,  indirect  substitution  effects  would  be 
non-existent  or  marginal  as  consumers  while  temporarily  present  in  other  territories 
typically do not subscribe to online content services. However, benefits can be expected 
in terms of enhanced access to cultural content. Cross-border portability as a part of an 
online content service may attract a number of new consumers to access it. It would also 
allow existing consumers to have a better experience of the content they have acquired 
online through easier access while travelling in the EU. 

Fundamental rights: This option would have a limited impact on copyright as property 
right and on the freedom to conduct a business, as recognised in the European Charter of 
Fundamental  Rights  (Articles  16  and  17).  However,  the  measure  would  be  justified  in 
view  of  the  Treaty  fundamental  freedom  to  provide  and  receive  services  across 

136   European Competitiveness Report 2010, 
137  Independent music companies Association (IMPALA) comments on the EC consultation on a future 

trade policy, July 2010. 

44 

 
                                                 
borders 138.  Restricting  the  above-mentioned  freedoms  (through  the  legal  fiction,  the 
obligation  to  offer  cross-border  portability  as  well  as  by  rendering  unenforceable  any 
contractual  provisions  contrary  to  this  obligation)  would  be  justified  in  light  of  the 
objective  of  ensuring  cross-border  portability  of  online  content  services  for  European 
consumers.  The  initiative  would  only  affect  these  freedoms  under  very  limited 
circumstances,  i.e.  to  ensure  portability  of  online  content  services  which  have  already 
been subscribed to or purchased/rented by consumers. It would not have any significant 
impact on the revenues of either right holders or service providers or on business models 
based on territorial exclusivity. In addition, given that the disadvantages caused to right 
holders and service providers would be of a very limited scope while consumers would 
be  afforded  a  clear  benefit  of  enhanced  access  to  online  content  services  across  the 
internal market, the measure is not disproportionate to the aims pursued. It would not go 
beyond what is necessary to make portability an ordinary business practice in all content 
sectors, in a manner that allows all consumers to benefit from the  measure at the same 
time.  The  above  arguments  also  apply  to  any  possible  affectation  of  the  right  of 
consumers to the protection of their personal data (Article 8 of the Charter). While it is 
not an obligation imposed by this option, service providers are likely to apply tools for 
the  verification  of  the  temporary  nature  of  the  consumer's  stay  in  another  MS.  This 
however  would  only  require  an  occasional  check  of  the  MS  in  which  the  consumer  is 
present139 and  should  be  carried  out  in  line  with  the  requirements  for  legitimate  data 
processing in Directive 95/46/EC (Article 7). 

Third  countries,  trade  and  environment:  This  option  would  not  have  any  impact  on 
third countries and trade or on the environment. It also does not affect the EU's and the 
MS's international obligations.140    

7.  HOW DO THE OPTIONS COMPARE? 

Effectiveness 

Efficiency 

Coherence 

Criteria ► 
Policy option▼ 

Impact on 
consumers 

Impact on 
content 
industries 

Impact on 
service 
providers 

Costs/ 
benefits 

Cultural 
diversity 

Fundamenta
l 
rights 

Third countries, 
trade, 
environment 

Baseline 

Option 1  

Option 2 

Option 3 

0 

0/+ 

0/+ 

++ 

0 

0 

0/+ 

0/+ 

0 

0/+ 

0/+ 

0 

0/- 

0/- 

0 

0 

0 

-* // +** 

-* // +** 

0/+ 

0 

0 

0/- 

0/- 

0 

0 

0 

0 

"0" – no change 

"+" – positive impact       "-" – negative impact      *short term (<5 years) // **long term (>5 years) 

Options  1,  2  and  3  would  allow,  to  a  different  extent,  to  respond  to  the  objective  of 
facilitating  the  cross-border  portability  of  content  within  the  EU.  The  effectiveness  of 

138   Article 52(1) of the Charter allows for restrictions interfering with the exercise of the freedoms of the 
Charter: those restrictions (i) must be provided for by law and (ii) respect the essence of those rights 
and  freedoms.  In  addition,  the  limitations  are  (iii)  “subject  to  the  principle  of  proportionality”  and 
“may be made only if they are necessary and genuinely meet objectives of general interest recognized 
by the Union or the need to protect the rights and freedoms of others”  

139   The  verification  of  the  temporary  nature  of  the  consumer's  stay  in  another  MS  does  not  require  the 
permanent control of his location or any information on his precise location, only an occasional check 
as to in which MS he is present.  

140  Persons who are not residents in any MS would not benefit from the intervention when travelling in the 

EU. 

45 

 
 
 
 
 
 
                                                 
each  of  these  options  will  vary  according  to  the  different  categories  and  sectors  of 
stakeholders involved.  

Consumers: Under the baseline scenario, consumers would continue to benefit from the 
cross-border  portability  of  music,  e-books  and  games  services,  but  not  of  AV  and 
premium  sports  content  which  they  would  continue  to  have  problems  accessing  while 
travelling in the EU. In the longer term, licences (in particular new ones) could allow for 
cross-border portability but it is probable that an important part of the content offered by 
the  service  provider  could  remain  locked  in  the  national  territory,  as  service  providers 
may consider that the partial portability they could offer to consumers (with black-outs) 
would  not  increase  the  appeal  of  their  service.  Option  1  could  gradually  improve  this 
situation  in  the  medium  to  long  term,  as  it  would  encourage  the  market  participants  to 
ensure cross-border portability however it is not likely to result in a consistent change of 
industry  practices,  hence  its  effectiveness  would  be  limited.  Option  2  could  have  a 
slightly  more  positive  impact  on  consumers  than  Option  1  since  the  availability  of  the 
legal mechanism would make it easier for right holders and service providers to agree on 
portability in the licences. However, its application would eventually depend on the will 
of the parties, it would only happen gradually over a longer period of time, and therefore 
the  scale  of  the  consumer  benefits  would  remain  uncertain.    Only  Option  3  would 
effectively  ensure  that  the  portability  feature  is  offered  by  all  subscription-based  and 
transactional online content services and accordingly meet the demand of a high number 
of consumers (see Section 2). It cannot be excluded that Options 1, 2 and 3 could result 
in higher prices for AV and premium sports content; however this impact is expected to 
be  limited  by  the  competition  between  market  players  and  the  need  to  provide  an 
attractive  legal  offer  to  consumers.  In  the  music,  e-book  and  games  sectors,  Option  3 
would mainly improve legal certainty for consumers. In the long term, unlike the other 
options,  it  could  also  act  as  a  safeguard  to  ensure  that  cross-border  portability  remains 
available for consumers despite possibly changing commercial practices of right holders 
and/or service providers. 

Content  industries:  Under  the  baseline  option  and  Option  1,  right  holders  in  the  AV 
sector  and,  to  a  lesser  extent,  for  premium  sports  content  are  likely  to  be  reluctant  to 
allow  for  the  portability  of  their  content,  therefore  progress  would  be  gradual  and  the 
results  would  be  diverse  even  in  the  longer  term.  The  guidance  foreseen  in  Option  1 
would  encourage  them  to  negotiate  with  online  service  providers  but  industry-wide 
positive results cannot be expected due to the significant effort requires by right holders 
to  review  the  existing  network  of  contracts  based  on  territorial  exclusivity.  The  legal 
mechanism  in  Option  2  would  make  it  easier  to  the  parties  to  make  cross-border 
portability  available  but  the  decision  whether  to  allow  it  or  not  would  remain  with  the 
holders of the rights, as in the baseline scenario and in Option 1. They would also be free 
to  decide  what  kind  of  requirements  they  set  for  service  providers  to  allow  portability. 
Therefore,  meeting  the  objective  of  this  initiative  would  depend  on  the  agreement 
between  right  holders  and  service  providers.  Option  3  would  provide  for  a  solution  to 
ensure portability regardless  of  licensing practices of right holders and therefore  would 
be the effective in meeting the objectives, including for AV and premium sports content. 
If the cross-border portability feature of the online service is considered attractive by the 
consumers,  Option  3,  and  to  some  extent  also  Option  2,  may  increase  the  use  of  the 
service and the income of right holders. In the music, e-book and games sectors, Option 3 
would  mainly  improve  legal  certainty  but  would  not  bring  about  tangible  economic 
impacts. The other options would have no relevant impacts. 

Service  providers:  Under  the  baseline  option,    Options  1  and  2,  service  providers 
(especially  for  AV  and  premium  sports  content)  would  continue  to  be  able  to  restrict 
portability  and  many  of  them  would  continue  to  encounter  problems  (contractual 
restrictions) when wanting to offer it, should right holders be reluctant to allow it. Option 

46 

 
1 would be somewhat more effective than the baseline because negotiations could result 
in certain online service providers being able to offer portability. However the outcome 
of the negotiations would depend on the market power of online service providers vis-à-
vis right holders and will require negotiations of multiple contracts, especially in the AV 
sector. The effect of Option 2 would be similar; however it could be more beneficial to 
service  providers  as  in  the  negotiations  they  could  argue  that,  due  to  the  legal 
mechanism, there is no need to carve out portability from the licences that cover the other 
27 MS. Therefore, allowing portability in a licence can be, in principle, easier and less 
costly than in Option 1. Option 3 would be more effective as service providers would be 
able  to  systematically  offer  portability  to  their  customers  across  Europe.  Unlike  other 
options,  Option  3  would  include  legislative  safeguards  ensuring  the  necessity  and 
proportionality  of  the  requirements  for  authentication  negotiated  by  right  holders  and 
service  providers.  Therefore,  Option  3  would  be  more  efficient  in  terms  of  transaction 
costs and implementation by service providers (see also efficiency below). In the music, 
e-book and games sectors, Option 3 would mainly improve legal certainty for the current 
and  future  dealings  with  right  holders  e.g.  for  music  service  providers  that  may  be 
providing portability without having this right clearly covered in the licensing contracts. 
It would also ensure for the future that service providers in these sectors would continue 
to be able to allow cross-border portability, despite possibly changing licensing practices 
by right holders. The other options would have no impacts. 

To  summarise,  from  the  perspective  of  consumers,  industries  and  service  providers, 
Option 3 would be the most effective in meeting the objectives set out in Section 4. 

Efficiency: The baseline option would not entail any compliance costs while Options 1 
and  2  could  generate  administrative  and  technical  costs  (as  explained  below),  for  all 
those  right  holders  and  service  providers  who  decide  to  adapt  their  licensing  practices 
and  terms  of  use  in  order  to  allow  for  portability  of  content.  This  would  particularly 
affect  the  AV  and  the  sports  sector.  Options  1  and  2  would  not  impose  cross-border 
portability; therefore they would not generate costs directly. However it is likely that in 
the absence of a legal mechanism that facilitates licensing for this specific purpose, the 
negotiations  under  Option  1  would  be  more  complex  and  costly  than  under  Option  2. 
Option 3 could generate some technical costs for all those service providers which do not 
yet  offer  portability  to  their  customers  as  it  would  not  leave  it  for  their  decision  to 
provide  for  portability,  like  the  other  options.  This  could  imply  investing  in  technical 
functionalities to verify the MS of residence and verify the temporary use of the service 
as well as costs which are not directly triggered by Option 3 (and therefore not qualifying 
as administrative  costs) such as short-term costs, in case the parties want to review the 
licensing  agreements  and  possibly  long-term  costs  related  to  the  use  of  network 
infrastructure.  In  any  case,  despite  the  short  term  and  limited  costs  of  providing  for 
portability,  service  providers  would  benefit  from  the  more  attractive  service  they  can 
provide to their consumers already in the medium term.  

Cultural  diversity:  All  options  would  have  no  or  only  very  limited  impact  on  cultural 
diversity. None of these options would affect the production or distribution of culturally 
diverse content or would  directly extend the range  of consumers having  access to such 
content. Option 3, and to a minor extent Options 1 and 2, would be beneficial in terms of 
easier access to culturally diverse content as they would allow consumers to enjoy online 
content  in  a  more  flexible  way  across  the  EU.  Option  3  may  also  attract  some  new 
consumers to use the online content services. 

Fundamental  rights: The  baseline option,  Option 1 and Option 2 would not have any 
impact  on  fundamental  rights.  Option  3  would  have  a  limited  impact  on  copyright  as 
property right and on the freedom to conduct a business, as recognised in the European 
Charter  of  Fundamental  Rights  (Articles  16  and  17).  Option  3  and,  to  the  extent  right 

47 

 
holders  and  service  providers  choose  to  rely  on  the  legal  mechanism,  Option  2  could 
affect  the  consumers'  right  to  the  protection  of  personal  data,  should  service  providers 
verify the temporary nature of the stay in another MS. However, the measure would be 
justified  in  view  of  the  Treaty's  fundamental  freedom  to  provide  and  receive  services 
across  borders  and  data  processing  would  have  to  comply  with  the  provisions  of 
Directive 95/46/EC in all cases. 

Third countries, trade and environment: None of the options would have any impact 
on third countries and trade or on the environment. Neither do they affect the EU's and 
the MS's international obligations.    

Subsidiarity and proportionality: None of the options go beyond what is necessary to 
solve the identified problems. Moreover, the initiative is limited to solving a problem of a 
cross-border nature that cannot be achieved by the MS alone (see Section 3). Among the 
examined  options,  the  baseline  option  is  not  sufficient  to  achieve  the  objective  of 
ensuring  cross-border  portability  of  content  online  in  the  AV  and  sports  sectors  where 
this  problem  is  the  most  present.  Option  1  could  allow  reaching  this  objective  only 
partially and would create uncertainty for service providers and for consumers travelling 
in  several  MS  as  to  the  authorised  uses.  Option  2  might  be  slightly  more  effective  by 
putting  a  legal  mechanism  at  the  parties'  disposal  to  facilitate  the  negotiations  but 
providing  cross-border  portability  would  remain  optional.  Consequently,  the  objective 
would  only  be  achieved  under  Option  3.  The  obligations  foreseen  under  Option  3  as 
regards the licensing agreements are necessary to make sure that the providers of online 
content  services  (both  subscription-based  and  transaction-based)  offer  cross-border 
portability  to  their  customers.  They  do  not  affect  territorial  licensing  as  such  and 
therefore have a limited effect on the current licensing practices and business models. 

8.  THEREFORE,  THE  PREFERRED  OPTION  IS  OPTION  3.  HOW  WOULD  THE  ACTUAL 

IMPACTS BE MONITORED AND EVALUATED? 

The  Commission  will  ensure  that  the  action  selected  in  this  IA  contribute  to  the 
achievement of the set policy objectives. The preferred option should be able to respond 
to  the  general  and  specific  objectives  in  Section  4  as  well  as  the  following  operational 
objectives: 

1.  Increase  the  number  of  subscription-based  and  transaction-based  online  content 
services that are portable across borders, 2. Increase the number of consumers using this 
feature of the online content services. 

The process of monitoring the impacts should consist of two phases: 

Phase  1:  The  first  phase  will  start  right  after  the  adoption  of  the  legislative  act  and 
continue until its start of application in 2017. It will focus on how the Regulation is put 
in place in the MS by  the  market  participants in order to ensure a consistent approach. 
The Commission will organise meetings with MS representatives (e.g. group of experts) 
and the relevant stakeholders in particular to see how to facilitate to transition to the new 
rules. 

Phase 2: The second phase would start from 2017 and would focus on direct effects of 
the  rules  contained  in  the  Regulation.  It  would  also  extend  to  the  monitoring  of  the 
amendment  of  the  existing  contractual  arrangements  which  would  need  to  take  place 
during a one-year transitional period. This monitoring will pay particular attention to the 
impacts  on  SMEs  and  the  extent  to  which  existing  contracts  are  renegotiated.  The 
Commission will continue to work with stakeholders to ensure effective implementation. 

The  table  below  presents  the  main  output  and  impact  indicators  that  will  be  used  to 
monitor progress towards meeting the above objectives, as well as the possible sources of 

48 

 
information.  The data collection should start in  2017 so as to  gather sufficient baseline 
data  that  can  serve  as  a  basis  for  comparison  and  then  followed  up  every  second  year 
after the start of application of the Regulation. Econometric methods should be used (e.g. 
by putting the portability offer trend in a regression with a dummy variable for when the 
regulation starts to apply) so as to help (to some extent) to disentangle the effects of the 
regulation from the natural progress in the market. Moreover, the collected data should 
be  compared  (using  difference-in-difference  method)  to  data  from  countries  (e.g. 
Switzerland) that will not be subject to a regulation. 

Frequency of 
measurement  

Every second year. 

Indicators 

Source of information 

The following indicators could be used in 
each  sector  (AV,  music,  e-books,  games, 
sport):  
1. 

Increase in the number of 
subscription-based online services 
offering cross-border portability; 
Increase in the number of 
transaction-based services offering 
cross-border portability; 
Increase in the number of customers 
using cross-border portability; 
4.  Average number of days of use 

2. 

3. 

outside the MS of residence;  

5.  Evolution of the prices of 

subscription-based and transactional 
services offering cross-border 
portability. 

The Commission can obtain this 
information from the following 
sources: 
- existing data sources, such as the IHS 
database, European Audiovisual 
Observatory;  
- directly from online content service 
providers or right holders (through 
bilateral contacts or questionnaires).  
In addition, the Commission could 
obtain data from the following sources: 
- specific studies to monitor the cross-
border portability of online services; 
- ad-hoc surveys to monitor consumers' 
behaviour (Eurobarometer).  

A comprehensive evaluation  will take place 5  years after the start  of application of the 
rules.

49 

 
 
 
 
9.  ANNEX 1 – PROCEDURAL INFORMATION 

Consultation within the Commission 

DG Connect has the lead of this file which is in the Commission Work Programme for 
2015. The number of the entry in the Agenda Planning is 2015/CNECT/022. 

The work on the IA started in December 2014. The first meeting of the Copyright Inter-
Service Steering Group ("ISSG"), chaired by the SG, took place on 25 March 2015. The 
second  and  third  meeting  took  place  respectively  on  13  May  2015  and  21  September 
2015. In addition to DG CONNECT, DG COMP, EAC, ECFIN, EMPL, ENV, ESTAT, 
GROW, JRC, JUST, RTD, SANTE and TRADE participated to the ISSG, together with 
the LS and the EPSC. 

Consultation of the RSB 

The recommendations of the RSB 

Changes in the IA report 

1)  Clarify  the  'need  to  act'  on  the  identified 
problem.  The  report  should  clarify  under  which 
conditions the problem of the lack of portability of 
online content could be solved and explain whether 
these  conditions  are  currently  fulfilled  or  not.  In 
addition,  more  explanations  should  be  provided  as 
to  why  the  market  will  not  be  able  to  solve  the 
problem  within  a  reasonable  period  of  time,  at  a 
reasonable cost and/or in a uniform way, given that 
no evidence-based evaluation of the industry pledge 
("Licences  for  Europe")  from  2013  is  presented  in 
the report. 

2) Better justify the limited range of options and 
scope of action. The report should better justify the 
limited choice of options considered in the analysis 
and give more reasoning behind discarding some of 
the  options  which  are  preferred  by  stakeholders 
(e.g. the introduction of the legal fiction without the 
obligation  to  introduce  portability  into  the  offer). 
For instance, it should give more explanation why it 
was  decided  not  to  define  the  'temporary  stay'  and 
consider  impacts  of  different  definitions  thereof  in 
view  of  possible  inquiries  during  the  legislative 
process. 

3)  Explain  in  more  detail  the  characteristics  of 
the  legal  fiction.  The  report  should  be  more 
specific  about  how  the  legal  fiction,  removing  the 
legal  obstacles  for  service  providers  to  offer  cross-
border  portability  of  online  content,  will  be 
introduced  in  practice  and  what  direct  and  indirect 
impacts  it  will  have  on  service  providers,  right 
holders and consumers (the need to renegotiate the 
contracts,  the  associated  costs,  the  risks  of  abuse, 
the duration of the temporary stay, etc.). 

The  IA  explains  inter  alia  in  the  context,  in  the 
problem definition and in the section on subsidiarity 
the  specificities  of  this  issue  and  the  relation 
between this initiative and others considered in the 
DSM Strategy. It also clarifies the reasons why the 
market could only solve this problem in the AV and 
sports  sectors  in  the  long  term,  if  at  all;  although 
even  if  it  does  so,  the  result  is  likely  to  be 
for 
inconsistent  and  deliver 
consumers.  It  justifies  why  EU  intervention  is  the 
only  way 
the  existing 
to  effectively  resolve 
problem.  Moreover,  the  problem  definition and  the 
assessment  of  Option  1  explain  better  why  the 
pledge at Licences for Europe is unlikely to deliver 
consistent results.  

limited  benefits 

The  IA  report  now  contains  a  separate  option 
(Option 2) that assesses the impacts of solution that 
would  imply  the  introduction  of  the  legal  fiction 
without  the  obligation  to  introduce  portability  into 
the offer. It concludes that such a solution could not 
solve effectively the identified problem. 
The options in the IA also explain the relevance of 
"temporary stay" in a MS as opposed to the MS of 
habitual residence of the consumer.  

The  new  Option  2  describes  the  characteristics  of 
the  legal  fiction  and  provides  for  a  self-standing 
assessment of its direct and indirect impacts. Option 
3  assesses  the  impacts  of  the  legal  fiction  together 
with those of the obligations on service providers to 
ensure the cross-border portability of online content 
services. 

4)  Strike  a  more  sound  balance  in  assessing 
impacts of options. The report should elaborate on 
the  extent  to  which  the  proposal  reaches  a  balance 
between 
increased  cross  border  portability  of 
legally acquired online content and the limitation of 

The assessment and comparison of the options have 
been reviewed  to  provide  a more  sound balance  of 
the impacts, including on fundamental rights. 
The  options  and  Annex  2  explain  the  targeted 
stakeholder  consultation  and  how  the  views  of 

50 

 
stakeholders have been taken into account. 

fundamental rights for the consumers via increased 
consumer  surveillance  by  service  providers  linked 
to the verification of the (undefined) temporary stay 
outside  the  country  of  residence.  Moreover,  the 
results  of  the  targeted  stakeholder  consultations 
(workshops)  conducted  specifically  on  the  issue  of 
cross-border  portability  should  be  more  explicitly 
reflected  in  the  report  and  justification  should  be 
provided in case stakeholder views are discarded. 

Evidence used in the IA 

Information  and  data  needs  mainly  concern  the  situation  in  the  different  sectors  of  the 
market,  the  views  of  stakeholders  and  the  possible  technical  costs  of  adding  the  cross-
border portability feature to online content services. 

The  IA  was  prepared  using  diversified  sources  of  information,  including  information 
received  from  stakeholders,  input  from  external  experts,  market  reviews  (available 
publicly or through subscription), sources of statistics (including Eurostat) and surveys, 
as well as publicly available information from service providers and holders of rights in 
content (and their representatives).   

The Commission carried out a public consultation and conducted a stakeholder dialogue 
"Licences  for  Europe"141,  (see  Annex  2).  These  exercises  brought  input  from  various 
stakeholders, which was taken into account in the IA.    

External expertise used in the IA process 

A series of legal and economic studies were conducted on various aspects of the existing 
copyright rules.142 One of these studies assesses the extent to which the implementation 
of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related 
rights  in  the  information  society  is  appropriate  for  the  economic  and  technological 
realities  of  digital  markets143.  An  economic  study  on  the  territoriality  of  the  making 
available  right 144 was  also  conducted.  These  studies,  together  with  the  consultations 
mentioned above, constitute a solid basis for this IA.  

Further studies have been conducted by DG JRC (IPTS) on the impacts of digitisation on 
the  production  and  distribution  of  content,  as  well  as  on  the  cross-border  access  to 
content145.  DG  EAC  carried  out  a  number  of  studies  concerning  sports,  including  the 
Study on the Contribution of Sport to Economic Growth and Employment in the EU146 
and the Study on sports organisers’ rights in the European Union147. 

141   See https://ec.europa.eu/licences-for-europe-dialogue/en/content/about-site  
142   While no formalised evaluation of the copyright acquis has been carried out, many aspects have been 
evaluated  in  the  framework  of  the  Commission  Green  Papers,  consultations  and  the  “Licences  for 
Europe” stakeholder dialogue, alongside with the input from the studies. . 

143   "Study on the application of Directive 2001/29/EC on copyright and related rights in the information 

society", De Wolf and partners, December 2013. 
 http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf 

144   Study on the "Economic analysis of the territoriality of the making available right", CRA, March 2014, 

http://ec.europa.eu/internal_market/copyright/docs/studies/1403_study1_en.pdf 

145   http://is.jrc.ec.europa.eu/pages/ISG/DigEcocopyrights.html  
146

   http://ec.europa.eu/sport/library/studies/study-contribution-spors-economic-growth-final-rpt.pdf  
   http://ec.europa.eu/sport/news/2014/docs/study-sor2014-final-report-gc-compatible_en.pdf  

147

51 

 
 
                                                 
10.  ANNEX 2 – STAKEHOLDER CONSULTATION 

The  Commission  held  a  series  of  consultations  that  are  of  relevance  for  the  present 
impact assessment, e.g. the Green Papers on the online distribution of audiovisual works 
in  the  EU 148  and  on  "preparing  for  a  Fully  Converged  Audiovisual  World:  Growth, 
Creation  and  Value". 149  A  wide-ranging  public  consultation  on  the  review  of  EU 
copyright  rules150,  covering,  inter  alia,  the  area  discussed  in  this  IA,  was  conducted  in 
2013-2014.  The  public  consultations  were  complemented  by  a  stakeholder  dialogue  - 
"Licences for Europe".  

The Commission's minimum standards with respect to the stakeholder consultation have 
been  met.  The  following  paragraphs  describe  in  more  detail  the  public  consultation  on 
the review of EU copyright rules as well as the "Licences for Europe" process together 
with their results.   

Public consultation on the review of EU copyright rules 

The  public  consultation  on  the  review  of  EU  copyright  rules  was  conducted  from  5 
December 2013 to 5 March 2014. All citizens and organisations from across sectors were 
welcome  to  contribute  to  the  consultation.  Contributions  were  particularly  sought  from 
consumers,  institutional  users  (e.g.  a  library,  a  university),  authors,  performers, 
publishers,  producers,  broadcasters,  intermediaries,  distributors  and  other  service 
providers,  collective  management  organisations,  public  authorities  and  Member  States. 
The consultation document explained the context of the consultation in order to facilitate 
responses  by  interested  parties.  Each  specific  section  of  the  consultation  document 
provided an introduction to the relevant subject in order to make it easier for respondents 
to understand the issue and be able to respond adequately. Over 9,500 replies (published 
on the Commission website) were received from a broad range of stakeholders.151 There 
were also a total of more than 11000 messages, including questions and comments, sent 
to the Commission’s dedicated email address. A report summarising the responses to the 
public consultation was published in July 2014.152  

While not exhaustive, the results of the consultation that are of relevance for the impact 
assessment are provided by stakeholder category (see below for an exhaustive summary 
of replies by stakeholders):  

•  Some end users argued that, apart from facing problems when trying to access online 
services in another EU country, they had difficulties or could not access their national 
services  or products they  have bought online when travelling or living abroad. This 
was due to digital rights management systems and technological protection measures 
used by service providers to enforce territorial restrictions.  

• 

Institutional users indicated that market-led solutions have not proven to be effective 
with respect  to  problems  with cross-border provision of copyright protected content 
and that harmonisation measures are necessary to improve cross-border availability of 
cultural content.  

•  Authors  and  performers  generally  consider  that  there  are  multi-territorial  licences 
available (at least in the book, image and music sectors) and that services providers' 
commercial decisions determine the rolling-out of digital content.  

  COM(2011) 427,available at: http://ec.europa.eu/internal_market/copyright/initiatives/audiovisual/index_en.htm 

148
149   http://ec.europa.eu/digital-agenda/en/consultations-media-issues  
150   http://ec.europa.eu/internal_market/copyright/initiatives/index_en.htm  
151   http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm  
152   http://ec.europa.eu/internal_market/consultations/2013/copyright-

rules/docs/contributions/consultation-report_en.pdf  

52 

 
                                                 
•  For  record  producers,  there  is  a  wide  offer  of  online  music  in  Europe  and  music 
services are portable across borders.  Broadcasters' views are split on whether further 
measures are needed at EU level in the area of territoriality. Film producers generally 
consider that the current EU copyright rules should not be changed and some of them 
also consider  that territorial restrictions  in  licences are needed. Publishers generally 
consider that territoriality is not a factor in their business, given that authors usually 
provide them with a worldwide licence.  

•  Numerous service providers raise the issue of cross-border portability of services and 

would favour licences that allow them to continue to serve their customers.  

To summarise the views of the affected stakeholders, it can be said that: consumers are 
generally  in  favour  of  improving  cross-border  access  to  online  content,  including  the 
cross-border portability of online services; the content industry, representatives of right 
holders, service providers, etc. are not against cross-border portability of online services 
but are usually in favour of industry-led solutions and soft law instruments as opposed to 
legal obligations in this area. 

"Licences for Europe" initiative 

Turning now to the "Licences for Europe" initiative, this structured stakeholder dialogue 
gathered  stakeholders  in  four  Working  Groups  and  went  on  until  November  2013. 
Working  Group  1  was  called  "Cross-border  access  and  portability  of  services"  and 
addressed, amongst others, the specific issue of cross-border portability, i.e. the ability of 
consumers having subscribed to online services in their Member State to keep accessing 
them when travelling temporarily to other Member States. The Group had 3 sub-groups - 
"Audiovisual", "Print" and "Music" - and comprised stakeholders representing different 
content  sectors  and  parts  of  the  value  chains,  notably  consumers,  right  holders,  service 
providers and ICT providers. The Group held 9 meetings throughout 2013. As a result, 
representatives  of  the  audio-visual  sector  issued  a  joint  statement  affirming  their 
commitment  to  continue  working  towards  the  further  development  of  cross-border 
portability: 

Cross-border  portability  of  subscription  services:  joint  statement  by  the  audio-
visual industry153 

Today, subscribers to audio-visual services online, e.g. consumers watching movies via 
an  Internet  service  provider  or  web-store,  are  often  denied  access  to  services  legally 
bought in their own EU country when they cross national borders. 

This will change:  

Representatives  of  the  audio-visual  sector  have  issued  a  statement  affirming  their 
willingness to continue to work towards the further development of cross-border portability. 
Consumers will increasingly be able to watch films, TV programmes and other audio-visual 
content for which they have subscribed to at home, when travelling in the EU on business or 
holidays. This is already largely the case with music, e-books, magazines and newspapers. 

[Signatories:  Association  of  Commercial  Television  (ACT),  European  Coordination  of 
Independent  producers  (CEPI),  Europa  Distribution,  EUROVOD,  Federation  of 
European  Film  Directors  (FERA),  International  Federation  of  Film  Distributors 
Associations (FIAD), International Federation of Film Producers Associations (FIAPF), 

153   For more details, see the document “Licences for Europe – ten pledges to bring more content online”: 
http://ec.europa.eu/internal_market/copyright/docs/licences-for-europe/131113_ten-pledges_en.pdf 

53 

 
 
                                                 
   
Independent Film & Television Alliance  (IFTA), International Video Federation (IVF), 
Motion Picture Association (MPA), Sports Rights Owners Coalition (SROC), Society of 
Audiovisual Authors (SAA)] 

Three stakeholder workshops in 2015 

In  January 2015,  Commissioner  Oettinger  held  a  stakeholder  roundtable  "Territoriality: 
Exploring Consumer and Business Opportunities in a Digital Single Market". One of the 
objectives  of  the  roundtable  was  to  discuss  cross-border  portability  of  online  content 
services.  Representatives  of  consumers,  right  holders  and  service  providers  in  the 
different  content  sectors  participated.  Most  of  the  participants  referred  explicitly  to  the 
need to ensure portability or, respectively, signaled openness to work towards portability. 

In May 2015, Commissioner Oettinger invited key stakeholders in the audiovisual sector 
to  discuss  "how  to  ensure  the  portability  of  legally  acquired  content  and  cross-border 
access  to  legally  purchased  online  services,  while  respecting  the  value  of  rights  in  the 
audiovisual  sector  and  making  sure  that  copyright  remains  a  driver  for  creativity  and 
investment". Representatives  of  film directors, producers and distributors,  broadcasters, 
online  platforms  as  well  as  film  financing  providers  participated.  Several  participants 
signaled openness to work towards portability. 

In  October  2015,  DG  Connect  convened  a  dedicated  stakeholder  workshop  on  cross-
border portability of online content services. The main objective of the workshop was to 
discuss  and  test  different  options  for  achieving  portability.  Stakeholders  representing 
different content sectors and parts of the value chains, notably consumers, right holders, 
service  providers  and  ICT  providers,  participated.  The  participants  (i)  appreciated  the 
focus  on  portability  and  differentiation  from  cross-border  access  to  content;  (ii)  were 
interested to find out more and made points about the main features and likely impacts of 
possible  legislative  instrument:  scope,  extent  of  obligations,  possible  costs,  safeguards, 
application to existing contracts. While some participants (representing consumers, ICT 
sector)  expressed  full  support  for  the  possible  legislation  on  cross-border  portability, 
some  other  participants  (representing  the  film  sector,  broadcasters)  were  in  favour  of 
facilitating rather than mandating it. 

Extract from the Report on the responses to the Public Consultation on the Review 
of the EU Copyright Rules154 

Cross-border access to online content (Questions 1 to 7) 

1. [In particular if you are an end user/consumer:] Have you faced problems when trying to access online 
services in an EU Member State other than the one in which you live? 

2. [In particular if you are a service provider:] Have you faced problems when seeking to provide online 
services across borders in the EU? 

3. [In particular if you are a right holder or a collective management organisation:] How often are you 
asked to grant multi-territorial licences? Please indicate, if possible, the number of requests per year and 
provide examples indicating the Member State, the sector and the type of content concerned.   

4. If you have identified problems in the answers to any of the questions above – what would be the best 
way to tackle them? 

5.  [In  particular  if  you  are  a  right  holder  or  a  collective  management  organisation:]  Are  there  reasons 
why, even in cases where you hold all the necessary rights for all the territories in question, you would still 

154  This Annex contains the summary of responses on issues addressed in this IA. The complete report is 

available at http://ec.europa.eu/internal_market/copyright/initiatives/index_en.htm  

54 

 
                                                 
find it necessary or justified to impose territorial restrictions on a service provider (in order, for instance, 
to ensure that access to certain content is not possible in certain European countries)?  

6. [In particular if you are e.g. a broadcaster or a service provider:] Are there reasons why, even in cases 
where you have acquired all the necessary rights for all the territories in question, you would still find it 
necessary  or  justified  to  impose  territorial  restrictions  on  the  service  recipient  (in  order  for  instance,  to 
redirect the consumer to a different website than the one he is trying to access)? 

7.  Do  you  think  that  further  measures  (legislative  or  non-legislative,  including  market-led  solutions)  are 
needed at EU level to increase the cross-border availability of content services in the Single Market, while 
ensuring an adequate level of protection for right holders? 

Respondents were asked whether they had faced problems when trying to access/seeking to provide online 
services  across  borders,  and  to  share  their  experiences/views  as  regards  multi-territorial  licensing  and 
territorial restrictions. Views were also sought on whether further measures (legislative or non-legislative, 
including  market-led  solutions)  beyond  recent  initiatives  such  as  the  Collective  Rights  Management 
Directive155 and the Licences for Europe dialogue would need to be taken at EU level to increase the cross-
border availability of content services in the single market, while ensuring an adequate level of protection 
for right holders. 

End users/consumers  

The vast majority of end user/consumer respondents report facing problems when trying to access online 
services  in  another  EU  country.  They  state  that  they  are  regularly  confronted  with  access  restrictions 
depending on the geographic location of their IP address.  

Concrete  examples  were  given.  Many  report  seeking  to  view  a  video  online  via  YouTube,  but  being 
blocked by a national collective management organisation for copyrighted content. Others signal the lack 
of access to popular video on demand services such as Netflix and the BBC iPlayer, which are currently 
only available to the residents of some EU Member States. Music services such as iTunes and Spotify are 
also  criticised  for  either  not  being  accessible  in  certain  countries  or  only  featuring  a  limited  online 
catalogue  compared  to  the  one  they  offer  in  other  countries.  More  generally,  consumer  report  being 
frequently confronted with messages indicating that a given item of content/service is not available in their 
country. The experience is all the more frustrating, some say, when it happens to people seeking to view or 
listen to content from their home country when in another EU country.  

For some services, consumers/end users report being redirected to a national website when trying to access 
the same service in a website with a different geographical location. Consumers argue that this negatively 
impacts  their  freedom  of  choice,  by  being  forcefully  limited  to  a  national  selection  of  content  while 
different or more extensive content is available to residents of other EU countries. 

Respondents  highlight  that  the  redirection  to  national  online  stores  and  the  consequential  separation  of 
markets  along  national  borders  often  leads  to  price  discrimination  and  different  conditions  for  identical 
products and services depending on the Member State. Some note that when, for example, wanting to buy a 
video game online, the price for this product may be higher on their national web shop version than on web 
shops in other EU countries. 

Some  respondents  also  report  that  digital  rights  management  systems  and  technological  protection 
measures used by service providers to enforce territorial restrictions make it difficult or even impossible to 
access their own national services or products they have bought online when travelling or living abroad.   

In general, end users/consumers would like to be able to access all content from any online stores whether 
directed  to  the  Member  State  in  which  they  reside  or  not.  At  the  minimum,  many  consumers  say,  there 
should  be  transparency  as  to  the  possibilities  of  accessing  content  cross-border  and  on  territorial 
restrictions. They consider the blocking of content to be mostly arbitrary and unpredictable.  

Some end users/consumers call for a ‘common copyright’ in Europe (sometimes indicating the ‘Wittem’ 
Project - www.copyrightcode.eu - as an example). These users believe that a single copyright title would 
do away with territorial restrictions and allow for content to be freely accessed, purchased and transferred 
across the entire EU market. 

Institutional users  

Libraries report that it is very difficult to negotiate licences and manage subscriptions for multiple Member 
States.  Universities  point  to  problems  that  students  face  in  accessing  online  educational  resources  when 

155   Directive  2014/26/EU  on  collective  management  of  copyright  and  related  rights  and  multi-territorial 

licensing of rights in musical works for online use in the internal market. 

55 

 
                                                 
they are not resident in the country of the university (e.g. students of online courses). Some institutional 
users also note problems with access to cultural content by users from the same language group residing in 
different EU countries. 

Institutional  users  generally  consider  that  territoriality  of  copyright  creates  problems  in  particular  in  the 
area of exceptions, where a higher level of harmonisation is needed.  

Some  institutional  users  acknowledge  that  problems  with  cross-border  provision  of  copyright  protected 
content stem not only from the fact that copyright is territorial but also from technological, regulatory and 
taxation  differences  between  EU  Member  States.  Many  respondents  consider  that  market-led  solutions 
have not proven to be effective and that harmonisation measures, also in areas going beyond copyright, are 
necessary  to  improve  cross-border  availability  of  cultural  content.  Some  libraries  and  universities  also 
point to problems with the identification of rights and rightholders and call for more transparency on these 
issues and for simplified licensing mechanisms.  

The great majority of respondents in this category consider that further measures are needed to increase the 
cross-border availability of services in the single market.  

Authors/performers  

Authors and performers generally consider that the deficit of cross-border accessibility of content does not 
result  from  the  fact  that  copyright  is  territorial  or  from  problems  in  licensing. They highlight  that  multi-
territorial licences are available (at least in the book, image and music sectors) and that service providers’ 
commercial decisions determine how, when and where services distributing digital content are rolled out. 
Very  often,  authors  and  performers  argue, there  is no demand for  cross-border services  and  therefore  no 
business case for service providers. Cultural, language and regulatory differences between Member States 
are  cited  as  among  the  reasons  for  territory-based  services.  For  example,  according  to  authors  and 
performers,  providers  of  audio-visual  services  prefer  to  roll  out  services  on  a  territorial  basis  due  to  the 
required contextualisation and versioning. They also highlight that in the audio-visual sector territorial roll-
out  with  exclusive  distributors  per  territory  is  a  tool  for  rightholders  to  secure  adequate  financing  at  the 
pre-production stage.  

According  to  some  authors,  the  only  licensing-related  problems  in  the  music  sector  are  due  to  the 
fragmentation  of  the  Anglo-American  repertoire  between  collective  management  organisations  and 
publishers. They believe that the problems with licensing in the music sector should be alleviated by the 
newly  adopted  Collective  Rights  Management  Directive  and  market-let  solutions  such  as  the  Global 
Repertoire Database. 

As regards the way forward, the vast majority of authors and performers consider that further measures to 
increase  the  cross-border  availability  of  content  are  needed.  However,  many  respondents  consider  that 
these measures should be taken in areas such as consumer protection, payment measures and VAT and not 
in the area of copyright.  

Publishers/producers/broadcasters  

Record producers state that they grant EU-wide cross-border licences and in some cases also worldwide 
licences.  They  emphasise  the  wide  offer  of  online  music  in  Europe  and  the  fact  that  music  services  are 
portable  across  borders.  In  their  view  there  is  no  clear  evidence  that  problems  with  cross-border  access 
exist  in  the  music  sector,  including  any  unsatisfied  consumer  demand  for  cross-border  access.  Record 
producers  point  to  the  fact  that  many  digital  platforms  elect  to  roll  out  services  on  a  gradual  country  by 
country basis, for commercial reasons, and to adapt their services to consumers’ needs and tastes in each 
country.  They  state  that  many  non-copyright  factors  are  also  involved  in  the  development  of  services 
across  borders,  and  require  considerable  investment,  such  as  negotiating  deals  with  local  operators, 
including  internet  service  providers  (ISPs),  mobile  networks,  advertisers,  and  payment  providers.  Music 
publishers  generally  consider  that  the  territoriality  of  copyright  does  not  cause  them  problems  as  they 
commonly grant multi-territorial licences. However, in some cases service providers prefer to be licensed 
on a territory-by-territory basis because their services are intended for only one or a few territories. Music 
publishers generally answer that they do not impose any territorial restrictions on their licensees and that 
when limitations exist, they are a result of the service providers’ choice.  

The vast majority of record producers and music publishers do not think that measures are needed at EU 
level to increase the cross-border availability of content. They point to the fact that the market is delivering 
with multiple services and millions of songs available to European citizens 

A  large  part of broadcasters  state  that  there  is often no  incentive  to provide  services  in several  Member 
States  because  of  various  considerations  including  viewing  habits  of  consumers,  consumer  demand, 
language,  ability  to  provide  consumer  support  in  more  than  one  language,  cost  of  marketing,  etc.  The 
majority of broadcasters see a need to restrict rights on a territorial basis and to guarantee full exclusivity to 

56 

 
distributors  who  are  pre-financing  productions  to  enable  them  to  make  return  on  their  investment.  They 
also emphasise the role this form of financing plays in maintaining cultural and linguistic diversity. Some 
broadcasters say that the market is naturally moving towards addressing demand for cross-border delivery 
of content where it is economically significant. Many commercial broadcasters emphasise that there are no 
legal  obstacles  to  the  trade  in  audio-visual  productions  on  a  multi-territorial  basis.  Some  broadcasters 
report having problems in acquiring multi-territorial licences for music.  

Broadcasters’  views  are  split  on  whether  further  measures  are  needed  at  EU  level  in  the  area  of 
territoriality:  some  broadcasters  (mostly  commercial)  do  not  see  any  need  for  legislative  change,  while 
others,  in  particular  public  service  broadcasters,  see  a  need  for  some  legislative  changes.  In  particular, 
many public service broadcasters call for the application of the country of origin approach to online media 
services  (as  a  minimum  to  broadcast-related  online  services).  They  also  call  for  the  system  currently 
applicable  to  cable  retransmission  under  the  Satellite  and  Cable  Directive 156  to  be  applied  also  to 
simultaneous  retransmission  of  broadcasts  via  online  platforms.  Moreover,  public  service  broadcasters 
emphasise  the  need  of  finding  effective  rights  management  solutions  for  on-demand  services  which  are 
related to linear programmes (e.g. catch-up TV) and which can be offered by the broadcaster itself or by 
third  parties.  They  suggest  that  the  system  of  extended  collective  licensing  of  the  underlying  rights  to 
works and other subject matter used in broadcast programmes could be a solution. Finally, public service 
broadcasters  call  for  the  extension  of  the  broadcasters'  neighbouring  right  to  protect  their  signals  on 
whatever platform against unauthorised alteration or other use by third parties A minority of broadcasters 
state  that  there  is  a  general need  to  improve  the  licensing  schemes  in  Europe  and  to  encourage one stop 
licensing 

Film  producers  in  general  point  out  that  service  providers  mostly  cater  to  national  or  specific  linguistic 
audiences  and  therefore  are  not  interested  in  multi-territorial  licences  except  for  territories  in  which  the 
same  language  is  spoken.  Multi-territorial  distribution  can  be  very  costly  as  it  involves  targeted  local 
advertising  campaigns,  employing  multilingual  staff  for  customer  services,  the  use  of  different  delivery 
networks,  operating  in  territories  with  varying  internet  costs,  broadband  penetration  and  VAT  rates,  etc. 
Further harmonisation in those fields could reduce costs and incentivise licensing on a broader territorial 
scope.  Some  film  producers  say  that  territorial  restrictions  in  licences  are  needed  as  without  them 
distributors that pre-finance productions would not have the capacity to finance new films. Film producers 
generally consider that the current EU copyright rules should not be changed. 

In the print sector, book publishers generally consider that territoriality is not a factor in their business, as 
authors  normally  provide  a  worldwide  exclusive  licence  to  the  publishers  for  a  certain  language.  Book 
publishers  state  that  only  in  the  very  nascent  eBooks  markets  some  licences  are  being  territorially 
restricted.  Book  publishers  also  generally  do  not  see  a  need  for  changes  to  the  EU  copyright  rules. 
Newspaper  and  magazine  publishers  in  general  take  the  same  view.  They  believe  that  when  territorial 
restrictions  exist,  they  are  the  consequence  of  commercial  choices.  This  stakeholder  group  points  to 
projects such as the Press Database and Licensing Network, as examples of how rightholders can manage 
cross-border and multi-territorial licensing. 

Collective Management Organisations (CMOs) 

CMOs  state  that  they  are  generally  willing  to  grant  and  do  grant  multi-territorial  licences.  However, 
demand by service providers for multi-territorial licences varies across sectors and it is especially limited 
in the audio-visual sector. CMOs active in the audio-visual sector consider that a framework to remunerate 
audio-visual authors should be established, failing which, they say, it impossible for them to offer multi-
territorial  licences.  Moreover,  demand  for  multi-territorial  licences  depends  largely  on  the  repertoire  the 
CMO holds. In the music sector the more popular repertoires are often licensed on a multi-territorial basis. 
Multi-territorial licences are also often demanded in the fine arts and artistic photography sector.  

CMOs mention that in some cases licences are territorially limited as a result of right holders granting them 
territorially  limited  mandates.  CMOs  in  the  audio-visual  sector  state  that  in  some  instances,  territorial 
limitations  in  granting  licences  are  a  necessary  consequence  of  the  exclusive  territorial  distribution  of 
audio-visual  works.  Some  CMOs  argue  that  imposing  multi-territorial  licensing  could  endanger  services 
that cater for the specificities of local customers. They also find that the demand for multi-territorial access 
to copyright protected content is not that strong yet and that digital distribution in this area is still a distant 
second to distribution of physical goods.  

156   Directive  93/83/EEC  on  the  coordination  of  certain  rules  concerning  copyright  and  rights  related  to  copyright 

applicable to satellite broadcasting and cable retransmission. 

57 

 
                                                 
In general, the great majority of CMOs do not see any need to intervene on copyright although many see 
the need for action in other areas, such as taxation. CMOs in the music sector consider that the results of 
the Collective Rights Management Directive should be awaited before considering taking further steps. 

Intermediaries/distributors/other service providers 

Service  providers  distributing  digital  content  point  to  the  lack  of  information  on  content  (such  as  who 
represents  particular  rights  and  for  which  territories)  as  a  major  problem  for  the  clearance  of  rights  and 
licensing in the single market. Fragmentation of repertoire in the music sector, the need to contract with 
multiple licensors and the inefficiency of CMOs are also quoted as obstacles to launching services. Some 
service providers (e.g. video on demand –‘VOD’- platforms) indicate that they are contractually required to 
prevent  cross-border  access  to  their  content  as  a  result  of  territorial  licensing.  This  means  that  VOD 
operators  can  only  make  the  content  available  in  a  given  country  and  have  to  put  in  place  digital  rights 
management  measures  (geo-blocking  of  foreign  IP  addresses)  which  prevent  cross-border  access  and 
portability of services. 

Service providers also refer to a number of non-copyright related factors that are taken into account when 
deciding  on  the  potential  multi-territorial  roll  out  of  services,  including  the  cost  of  compliance  with 
divergent  consumer  protection  laws;  national  rating  systems;  protection  of  minors  obligations;  taxation; 
release windows; private copying regulations; the cost of contextualisation (i.e. market-specific marketing) 
and versioning (subtitling and dubbing); the cost of providing customer care and responding to customer 
complaints in several languages; no common technical standards for content delivery; the risk of fraud and 
non-payments  and  the  diverse  economic  realities  which  make  a  single  price  impossible;  lack  of  digital 
infrastructure/access to high speed broadband; and difficulties in payment processing; divergent advertiser 
preferences.. 

Finally,  providers  of  audio-visual  services  point  to  insufficient  demand  for  cross-border  services.  Such 
demand is limited to areas with common language and to migrant populations. 

The  vast  majority  of  service  providers  believe  that  further  measures  are  needed  to  increase  cross-border 
availability  of  content.  Service  providers  call  for  the  simplification  of  the  licensing process  in  the  single 
market.  Some  emphasise  the  need  to  develop  right  information  initiatives  such  as  the  Global  Repertoire 
Database  and  to  enhance  the  transparency  of  who  owns  the  repertoire.  Other  call  for  one-stop-shop 
licensing  based  on  the  country  of  origin  principle  and  for  imposing  obligations  to  license  on  CMOs. 
Numerous service providers raise the issue of cross-border portability of services – they argue that licences 
should allow them to continue serving customers who have paid for the content when they travel within the 
EU. Some also call for a harmonised VAT on online services and content.  

Member States 

Those Member States who responded to the public consultation consider that there is no major problem of 
lack of cross-border access to content online, whilst recognising that this is an important issue to discuss. 
Some  Member  States  are  open  to  consider  new  legislation  if  needed  but  the  general  message  is  that  no 
urgent action is necessary.  The market is dynamic and new solutions are emerging spontaneously. Some 
Member States mention the Licences for Europe dialogue and stress the importance to foster market-based 
solutions (for example on content portability) to improve cross-border availability of content and more in 
general to enhance legal offers. Sectors are not all the same and specificities of each of them need to be 
taken into account.. The need to preserve cultural diversity and consumer preferences is also highlighted. 
Member  States  consider  that  the  market,  the  implementation  of  the  Collective  Rights  Management 
Directive  (and  more  in  general  the  role  played  by  Collective  Management  Organisations)  as  well  as  the 
case-law of the Court of Justice should help improve the cross-border availability of content.  

Other  

Academics are divided on the issue of cross-border availability of copyright protected content with some 
claiming that problems are limited to situations where rights are in different hands and others making more 
general statements on problems related to multi-territorial licensing.  

The  latter  group  believes  that  problems  in  licensing  are  limited  to  the  music  sector  and  points  to  the 
Collective  Rights  Management  Directive  as  the  potential  solution,  and  argues  that  its  effects  over  time 
must  be  assessed  before  any  other  potential  steps  are  taken.  They  emphasise  that  rightholders  should  be 
able to license for certain territories only, for instance to avoid territories with a high level of infringements 
and a low level of enforcement. 

58 

 
11.  ANNEX 3 – WHO IS EFFECTED BY THE INITIATIVE AND HOW 

This annex sets out the practical implications of the initiative for affected stakeholders, 
namely  content  service  providers  and  holders  of  rights  in  content.  Consumers  are  key 
stakeholders and the main  beneficiaries of this initiative; however they would not have 
obligations to comply with or costs to bear under the new rules. 

The  annex  is  prepared  on  the  basis  of  the  preferred  policy  option  (i.e.  Option  3,  see 
Sections  4-6).  First,  this  annex  indicates  the  key  obligations  which  would  have  to  be 
fulfilled. Second, it describes the actions that the affected stakeholders might need to take 
in  order  to  comply  with  these  obligations.  And,  third,  it  gives  an  overview  of  possible 
costs linked to these obligations.  

Key obligations 

As the outcome of Option 3, no separate licence would be needed by a service provider 
to cover a temporary use for the purposes of cross-border portability of the content in the 
EU157. In order to ensure the effectiveness of this measure, the following key obligations 
would be imposed: 

On right holders and service providers: 

•  A prohibition of restrictions in contracts between holders of rights in content and 
the service providers which would limit the cross-border portability of services. 

On service providers: 

•  Service  providers  would  have  to  offer  the  portability  feature  to  consumers  and 
provide them with access, during temporary stay in other MS, to the same content, 
on  the  same  range  of  devices  and  the  same  range  of  functionalities  as  those 
offered  in  consumers'  MS  of  residence.  However,  as  service  providers  do  not 
control  delivery  networks,  they  should  not  be  liable  for  any  deficiencies  in  the 
quality of the services delivered in a MS other than the MS of residence. 

•  The  measure  would  not  require  service  providers  to  use  authentication  tools  in 
order  to  check  that  the  online  content  service  is  being  accessed  by  authorised 
users. This matter would be left to negotiations between right holders and service 
providers.  The  measure  would  include  appropriate  safeguards  to  ensure  that  the 
potential requirements regarding authentication tools imposed by holders of rights 
would  not  go  beyond  what  is  necessary  and  proportionate  for  the  objective  of 
authentication.  

The proposed intervention would set out a reasonable time in order to allow the affected 
stakeholders to comply with the above obligations.  

Actions to be taken to comply with the key obligations  

Actions directly linked to the key obligations 

•  Service providers may be required by right holders to use authentication tools in 
order  to  check  that  the  online  content  service  is  being  accessed  by  authorised 
users. If this is the case, service providers would need to introduce such tools, if 
they are not yet available. Vast majority (if not all) of affected service providers 
already  has  authentication  mechanisms  in  place  and  could  maintain  them  (see 

157   This  should  include  a  legal  fiction  according  to  which  the  delivery  of  the  service  to  a  consumer 
temporarily present in a MS other than his MS of residence would be deemed to occur in the MS of 
consumer's residence (as opposed to in the MS of temporary sojourn of consumer). This Option will 
not, as such, limit a possibility to grant licences for online content services on a territorial basis. 

59 

 
                                                 
Section 5 of this IA). The preferred option could also imply the need to carry out 
periodic checks on user logs based on IP address.  

Actions which may be taken as an indirect consequence of the intervention 

•  Even  though  not  required  by  the  measure,  right  holders  and  service  providers 
could decide to renegotiate their contracts to e.g. amend provisions on the use of 
authentication tools. 

• 

In  certain  cases  (especially  with  regard  to  AV  and  premium  sports  content), 
online service providers would need to review the terms of use of their services. 
As the change would be for the benefit of consumers (assuming no change to the 
price  of  subscription),  it  could  be  easily  introduced  and  the  only  related  cost 
would  be  the  administrative  cost  of  notifying  the  affected  consumers  (which  is 
normally done by email or on the website itself). 

•  The preferred option would not set legal requirements with regard to the quality 
of  the  service  delivered  in  the  MS  other  than  the  MS  of  residence  of  the 
consumer.  Service  providers  would  not  be  obliged  to  adapt  the  technical 
infrastructure  in  order  to  ensure  the  same  quality  of  service  across  borders. 
However, they could do so if they decide to do this voluntary or commit to it in 
contracts with right holders. 

Potential costs to be incurred  

Potential  costs  related  to  the  offering  of  cross-border  portability  of  online  content 
services can be divided into:  

Costs directly linked to the intervention 

•  Service providers' costs of authentication of subscribers: the cost of implementing 
such authentication tools would only relate to the limited cases of providers that 
do not have such mechanisms in place and would be obliged to introduce them (or 
would  take  such  a  decision  voluntarily).  The  periodic  checks  on  the  user  logs 
based  on  the  IP  address  that  the  service  provider  may  undertake  in  view  of  
detecting abuses should not imply an additional cost.   

Costs which may indirectly arise due to the intervention 

•  Costs of renegotiation of contracts between holders of rights and service providers 

(renegotiation is not necessary under the preferred option).  

•  Service  providers'  costs  related  to  the  use  of  network  infrastructure:  while  the 
measure would not oblige service providers to do additional investment, they may 
see  a  need  (e.g.  due  to  reputational  considerations)  to  adapt  the  technical 
infrastructure  in  order  to  ensure  the  same  quality  of  service  across  borders  or 
commit to it in contracts with right holders. 

The detailed analysis of the costs is provided in Section 5 of this IA.  

60 

 
 
 
12.  ANNEX 4 – COPYRIGHT, SPORTS RIGHTS AND THE CONTENT INDUSTRIES IN THE EU 

ECONOMY 

Copyright and the provision of online content services  
Copyright  is  a  property  right 158  that  rewards  creativity  (of  composers,  writers,  film 
directors,  musicians,  actors,  etc.)  and  investment  in  creativity  (by  book  and  newspaper 
publishers,  film  and  record  producers,  broadcasters  etc.)  by  granting  rights159 over  the 
use  of  works  (e.g.  a  novel,  a  film)  and  other  protected  subject-matter  (e.g.  records, 
broadcasts).  This  area  is  harmonised  by  EU  law  to  a  great  extent  (see  Annex  6  for 
details). 

These  rights  and  their  effective  enforcement  promote  the  formation  of  markets  for 
creative  content  by  providing  the  framework  within  which  right  holders  can  negotiate 
licensing  agreements  with  users  authorising  the  use  of  their  work  and  can  obtain 
remuneration  for  such  use.  Providers  of  online  services  wanting  to  use  copyright-
protected content need to get a licence from the holders of the rights in the content they 
want to use and for the territories in which they want to provide the services.  

The method of licensing of online rights depends on the type of content and the category 
of right holder (e.g. rights in audiovisual content are normally licensed by AV producers 
and,  as  far  as  premium  AV  content160 is  concerned,  on  an  exclusive  territorial  basis 
whereas  rights  in  music  are  licensed  in  part  by  record  producers  and  music  publishers 
and  in  part  by  collective  management  organisations  (CMOs)  representing  authors  of 
musical works and normally without territorial exclusivity).  

Copyright content industries 

According  to  a  Report  by  the  Office  for  Harmonization  in  the  Internal  Market  and  the 
European Patent Office161 33 sectors of the EU economy are considered to be copyright-
intensive.  They  account  directly  for  3.2%  of  employment  in  the  EU  with  around  7.05 
million jobs (on average in 2008-2010).162 Overall, 4.2% of the EU’s GDP is generated 
in  copyright-intensive  sectors  (on  average  in  2008-2010). 163  Copyright-intensive 
industries  account  for  4.2%  of  EU’s  exports,  with  net  exports  of  around  €15  billion  in 
2010.  
On top of being essential drivers for cultural diversity in Europe,164 copyright-intensive 
industries  are  one  of  Europe's  most  dynamic  economic  sectors.  More  than  1  million 
companies  are  involved  in  motion  picture,  video  and  television  programs  production, 
sound  recording  and  music  publishing  activities,  providing  over  400,000  jobs,  with  net 

158    Article 17(2), Charter of Fundamental Rights of the European Union;   
159    For example, right of reproduction, right of communication to the public, right of distribution. Many   

of these rights are harmonised in the directives mentioned in Annex 6. 

160   Content which is most attractive in commercial terms, e.g. new films and series. 
161  “Intellectual  property  rights  intensive  industries:  contribution  to  economic  performance  and 
employment  in  the  European  Union.  Industry-Level  Analysis  Report”.  A  joint  project  between  the 
European Patent Office and the Office for Harmonization in the Internal Market, September 2013. 
162  Using  an  adapted  version  of  the  methodology  developed  by  the  World  Intellectual  Property 
Organization (WIPO) in the WIPO guidelines, industries are grouped into four categories according to 
the  degree  to  which  their  activity  depends  on  copyright:  core  copyright  industries,  inter-dependent 
industries,  partial  copyright  industries  and  non-dedicated  support  industries.  The  report,  however,  is 
based on a stricter approach to the definition of core copyright-intensive industries and does not cover 
inter-dependent, partial or non-dedicated support industries. 

163  Applying  the  original  WIPO  methodology,  the  report  would  arrive  at  6,7%  contribution  to  the 

employment and 7,8% contribution to GDP of copyright-intensive industries in the EU. 

164  Communication of the European Commission 'Promoting cultural and creative sectors for growth and 

jobs in the EU' 26 September 2012.  

61 

 
                                                 
contribution to the EU economy of over €13 billion,165 with the audiovisual sector worth 
nearly  €132  billion  in  2011,  and  online  video  on  demand  (VoD)  €616  million  (having 
grown  by  45%  compared  to  2010).166 The  European  game  market  is  valued  at  €14,5 
billion.167 The  creative  industries  in  the  EU  are  dominated  by  micro  firms  with  95% 
having  fewer  than  10  employees  coexisting  with  very  large  corporations. 168  The 
overwhelming  majority (90.8 %) of the value added generated within the EU-27’s film 
and  sound  recording  activities  sector  in  2010  was  provided  by  SMEs,169 which  employ 
just over three quarters (75.4 %) of the total number of persons employed in the sector. In 
the recorded music industry, 99% of music business are SMEs while 80% of the music 
released  today  is  produced  by  SMEs  independent  music  companies,170 and  one  of  the 
three  major  labels  is  European.  Europe  is  particularly  competitive  in  the  publishing 
industry (books and newspapers). According to the Global Ranking of World Publishing 
released in  July  2013,  7  of  the  top  10  book  publishing  companies  are  European,171 and 
large enterprises (employing 250 or more persons)  generated almost half (49.3 %) of the 
EU-27’s value added in 2010. Nevertheless, the average publishing industry employs 5.4 
employees and less than 1% of the publishing companies have 250 employees.172  

Sport rights and selling broadcasting rights into sporting events 

In 2011-2012, the share of sport-related gross value added of total EU gross value added 
was  1.76%.173 Sport  activities  significantly  contribute  to  jobs  in  the  EU:  the  share  of 
sport-related employment in the total employment is 2.12%.174 

Under EU law, sporting events as such are not protected by copyright (as clarified by the 
Court  of  Justice  of  the  European  Union  (CJEU)175 or  other  intellectual  property  rights. 
Nevertheless,  it  is  permissible  for  a  MS  to  protect  sporting  events  by  putting  in  place 
specific  national  legislation,  or  by  recognising,  in  compliance  with  EU  law,  protection 
conferred  upon  those  events  by  agreements  concluded  between  the  persons  having  the 
right to make the AV content of the events available to the public and the persons who 
wish  to  broadcast  that  content  to  the  public  of  their  choice. 176 As  for  broadcasts  of 
sporting events (as opposed to sporting events as such), broadcasting organisations can 
invoke rights in the transmissions accorded to them under EU copyright law.177 

Joint  selling  is  one  of  the  standard  ways  of  marketing  broadcasting  rights  for  sporting 
events.  Sports  clubs  entrust  national  or  international  sports  associations  to  sell 
broadcasting  rights  on  their  behalf.  For  example,  rights  to  broadcast  European  football 

165  Source : Eurostat, 2013 
166   European  Audiovisual  Observatory  2012  Yearbook  Volume  2  Television,  cinema,  video  and  on-

demand audiovisual services – the pan-European picture 
167  PwC Global Entertainment and Media Outlook 2012-2016 
168  European Competitiveness Report 2010, p. 15 
169  Enterprises employing fewer than 250 persons. 
170  Independent music companies Association (IMPALA) comments on the EC consultation on a future 

trade policy, July 2010. 

171    See  "the  World's  60  Largest  Book  Publishers,  2013",  http://www.publishersweekly.com/pw/by-

topic/industry-news/financial-reporting/article/58211-the-global-60-the-world-s-largest-book-
publishers-2013.html 

172  Source: Eurostat 
173   See Study on the Contribution of Sport to Economic Growth and Employment in the EU, November 
2012, commissioned by the European Commission, Directorate-General Education and Culture, page 
2. This figure is based on the "broad definition" of sport, covering all activities which are inputs for 
sport and activities which require sport as an input, i.e. related to a sport activity. 

174   Ibid, page 3. 
175   See Joined Cases C403/08 and C429/08, Football Association Premier League Ltd, v QC Leisure, (C-

403/08); Karen Murphy v Media Protection Services Ltd (C-429/08), para 98. 

176   Ibid, para 102 
177   Ibid, para 150 

62 

 
                                                 
leagues matches are mainly sold collectively by the respective associations. Cyprus and 
Portugal  are  the  last  EU  markets  where  first  division  football  clubs  sell  their  rights 
individually.178 The International Olympics Committee (IOC) is the owner of the global 
broadcast  rights  for  the  Olympic  Games.179 Sport  broadcasting  rights  may  also  be  sold 
individually by sports organisers. 
In the light of Commission's decisional practice in competition cases180, in a number of 
EU  markets  premium  sport  content  broadcasting  rights  are  sold  in  open  tenders  and  in 
packages 181.  In  its  decisions,  the  Commission  required  the  creation  of  two  or  more 
independently  valid  packages  for  the  most  important  rights,  in  particular  the  exclusive 
rights to broadcast live sport events. Also, rights not sold by the sport association within 
a certain time period would fall back to the individual clubs for parallel exploitation.182 
However, such selling practices are not yet spread in all EU markets: there are markets 
where  rights  are  sold  in  one  exclusive  bundle  without  tendering  proceedings.183 On  the 
other  hand, the AVMS  Directive established a possibility for MS to ensure that certain 
sporting events of "major importance for society" would be shown on free TV.184      

Presently,  premium  sports  content  is  routinely  marketed  on  an  exclusive  territorial 
basis.185 To ensure such exclusivity, the licensee is required to eliminate the possibility of 
viewing its transmission outside the licensed (usually national) territory. However, this is 
not  always  the  case,  as  sports  broadcasting  rights  may  also  be  sold  on  multi-territorial 
basis. E.g., the broadcast rights for the four Olympic Games in 2018-2024 were sold to 
Eurosport/Discovery for the entire Europe (in France and the United Kingdom, only for 
2022-2024, as the rights were already sold for 2018-2020).186 Other (not premium) sports 
content may be licensed without geographic restrictions. Moreover, there are experiments 
with  exploiting  such  rights  through  own  website  or  other  online  platforms,  including 
without  geographic  restrictions,  as  well  as  mixed  solutions,  where  in  certain  territories 
rights  are  sold  to  broadcasters/service  providers,  while  in  other  countries  (where  sports 
organisers could not sell its rights) live sporting events are streamed for free.187 Thus the 

178   See  ASSER/IVIR  Study  on  sports  organisers’  rights  in  the  European  Union,  Final  Report,  February 
2014, page 70. In Spain, the rights for the football league were sold collectively in July 2015, while 
previously they were sold on an individual basis by the clubs (for the season 2015/16, the broadcasting 
rights were sold to Telefónica, while a public tender is expected for the three upcoming seasons, see 
http://www.laliga.es/en/news/nota-informativa-28).  
179   See http://www.olympic.org/olympic-broadcasting 
180   See  cases  COMP  37.398  (UEFA  Champions  League,  2003),  COMP  /37.214  (German  Bundesliga, 

2005), COMP/38.137 (FA Premier League, 2006).  

181   In  the  FA  Premier  League  case  (COMP/38.137),  the  Commission  also  imposed  on  the  collective 
selling entity a no single buyer obligation, to avoid that all broadcasting rights are consolidated by one 
buyer.  

182   Ibid. 
183   See  ASSER/IVIR  Study  on  sports  organisers’  rights  in  the  European  Union,  Final  Report,  February 

2014, p 94. 

184   Article 14(1) of the Directive provides that each Member State may take measures in accordance with 
Union  law  to  ensure  that  broadcasters  under  its  jurisdiction  do  not  broadcast  on  an  exclusive  basis 
events which are regarded by that Member State as being of major importance for society in such a 
way  as  to  deprive  a  substantial  proportion  of  the  public  in  that  Member  State  of  the  possibility  of 
following such events by live coverage or deferred coverage on free television. 

185   Licencing  in  various  territories  may  generate  different  level  of  revenues,  in  particular  for  national 
league  matches.  For  example,  in  the  2011-2012  season,  the  top  five  European  football  leagues 
received the great majority of the revenue from the sale of media rights is generated in the domestic 
market  (see  ASSER/IVIR  Study  on  sports  organisers’  rights  in  the  European  Union,  Final  Report, 
February 2014, p 67). 

186   See  http://www.olympic.org/news/ioc-awards-all-tv-and-multiplatform-broadcast-rights-in-europe-to-

discovery-and-eurosport-for-2018-2024-olympic-games/246462   

187   Examples  include  free  streaming  of  various  sports  at  the  Sports  Hub  Channel,  developed  by 
SportAccord  in  collaboration  with  YouTube;  free  online  streaming  of  the  second  division  of  the 

63 

 
                                                 
 
coverage  of  free  streaming  may  be  limited  to  the  territories  where  such  content  is  not 
sold.188 

Major sporting events (such as the Olympic Games and football matches) are generally 
recognised as a vital input for the main TV broadcasters. In the free-to-air environment, 
sports are a key instrument of differentiation between channels given its unique branding 
abilities  and  its  appeal  to  advertisers.  For  pay  TV,  top  sports  are  one  of  two  main 
subscription drivers, along with the first screening of major movies.189  

In  the  past,  media  content  providers  delivered  sport  content  via  one  platform,  e.g. 
analogue TV, DTT, cable or satellite. However, a new trend is to market premium sports 
content  rights  on  a  platform-neutral  basis  with  rights  packages  carved  out  by  time 
windows  (e.g.  live,  near-live  or  deferred,  highlights,  and  clip  rights).  For  example,  a 
licensee who acquires the live rights to certain matches will thus benefit from exclusivity 
across all media platforms, including internet and mobile.190 

Broadcasting  is  among  the  most  important  source  of  revenues  for  premium  sports 
content.  For  example,  in  2013/14  season  the  broadcasting  revenues  of  five  major 
European  football  leagues  ranged  from  29.3%  to  59%  of  their  total  revenues; 191 
broadcasting represented 77% of UEFA's revenues in 2013/2014 season192. Broadcasting 
revenues amounted to 73% of the International Olympic Committee's revenues in 2009-
2012.193 However,  apart  from  a  handful  of  premium  sporting  events,  most  professional 
sports  struggle  to  attract  significant  revenue  from  selling  their  broadcasting  rights.194 
Furthermore, of the total budget for grassroots sport, revenue from media rights allocated 
to grassroots sport represents € 0.5 billion (0.7% of the total).195 

Spanish  football  league  in  2014.  See  also  ASSER/IVIR  Study  on  sports  organisers’  rights  in  the 
European Union, Final Report, February 2014, pages 68-69. 

188   For example, European Tour TV, Ryder Cup’s platform, streams for free golf matches. Live streaming 
is  available  only  in  MS  which  do  not  benefit  from  local  broadcasting,  i.e.  where  there  is  no 
broadcaster/service  provider  who  bought 
see 
the 
http://www.europeantour.com/europeantour/season=2013/tournamentid=2013038/news/newsid=1933
30.html#7eG3vMYYaEkdTFbl.97 

to  broadcast 

events; 

rights 

live 

189   See  case  COMP/M.4066,  CVC/SLEC,  European  Commission  decision  of  20  March  2006;  OECD 
Policy  roundtables,  Competition  Issues  in  Television  and  Broadcasting,  2013,  available  at 
http://www.oecd.org/daf/competition/TV-and-broadcasting2013.pdf 

190   See  ASSER/IVIR  Study  on  sports  organisers’  rights  in  the  European  Union,  Final  Report,  February 
2014. For example, the UEFA sells its broadcasting rights on the platform neutral basis, thus football 
fans  can  follow  UEFA  football  matches  also  via  the  internet  portals  and  mobile  platforms  of  the 
official  broadcasters  as  well  as  via  the  relevant  radio  stations,  see  http://www.uefa.org/about-
uefa/administration/marketing/#;  Sky  Deutschland  acquired  the  exclusive  pay-TV  rights  for  all  live 
Bundesliga  and  2nd  Bundesliga  matches  from  the  2013/14  to  2016/17  season  in  Germany,  which 
see 
covers 
platforms, 
http://www.broadbandtvnews.com/2012/04/18/sky-deutschland-wins-live-bundesliga-rights/; 
the 
broadcast  rights  for  2018-2024  Olympic  Games  in  Europe  were  sold  on  a  multiplatform  basis:  all 
rights on all screens, see http://www.olympic.org/news/ioc-awards-all-tv-and-multiplatform-broadcast-
rights-in-europe-to-discovery-and-eurosport-for-2018-2024-olympic-games/246462 .  

and  mobile, 

including 

online 

rights 

the 

for 

all 

191   Premier league (UK) 54%; Bundesliga (Germany) 29.3%, La Liga (Spain) 49%; Serie A (Italy) 59%; 
Ligue  1  (France)  40%,  see  Deloitte  Annual  Review  of  Football  Finance  2015,  available  at 
http://www2.deloitte.com/uk/en/pages/sports-business-group/articles/annual-review-of-football-
finance.html; Bundesliga Report 2015, page 26. 

192   See UEFA Financial Report 2013/14. 
193   See 

Financial 

IOC 

Update 
http://www.olympic.org/Documents/Reference_documents_Factsheets/IOC_Financial_Summary.pdf  
194   See  ASSER/IVIR  Study  on  sports  organisers’  rights  in  the  European  Union,  Final  Report,  February 

Summary, 

available 

2014, 

July 

at 

– 

195

2014, p 68. 
of 
Study 
http://ec.europa.eu/internal_market/top_layer/services/sport/study_en.htm  

grassroots 

funding 

sports 

the 

on 

in 

the 

EU, 

June 

2011; 

64 

 
                                                                                                                                                 
On  the  other  side,  acquiring  sports  rights  makes  a  substantial  part  of  broadcasters' 
expenses.  For  example,  in  2009  out  of  the  EUR  34.5  billion  spent  in  the  EU  by 
broadcasters  on  the  content,  approximately  EUR  15.6  billion  was  spent  on  acquiring 
rights, of which EUR 5.8 billion on sports rights196. In 2011, broadcasters in the top five 
European  markets  spent  on  average  79%  of  their  annual  sports  rights  expenditure  on 
football.197 The acquisition of media rights to the domestic football league accounts for 
more than half of the total spent. In this context, the second biggest sport is Formula 1, 
followed by rugby, the Olympic Games and tennis.198 

196   Study  on  the  implementation  of  the  provisions  of  the  Audiovisual  Media  Services  Directive 

concerning the promotion of European works in audiovisual media services, 2011, page 99. 

197   ASSER/IVIR Study on sports organisers’ rights in the European Union, Final Report, February 2014, 

page 64. 

198   Ibid, data quoted from Sportbusiness Intelligence (2011). 

65 

 
  
                                                 
13.  ANNEX  5  –  NEW  TECHNOLOGIES,  NEW  WAYS  OF  ACCESS  TO  AND  DISTRIBUTION  OF 

CONTENT 

Digitisation has deeply impacted the ways works and services are consumed. With growing 
access to the internet, the use of online services is becoming a part of consumers’ daily life: 
81% of households in EU28 have internet access and 83% of EU citizens use internet daily, 
and 38% of individuals use the internet for playing or downloading games, images, films or 
music 199 (see  also  Table  5.1).  VoD  services  provide  viewers  with  more  flexibility  when 
watching  programs,  listening  to  music,  reading  books  or  newspapers.  Tablets  and 
smartphones  further  facilitate  such  uses.  Consequently,  consumers  increasingly  expect  to 
access  content  at  any  time  and  from  anywhere.  The  Body  of  European  Regulators  for 
Electronic Communications (BEREC) has estimated that Europeans, who travel at least once 
a year, spend abroad on average 11.6 days per year (see also Table 5.2).  

Table 5.1: Use of the internet for communication, entertainment and other selected activities, by age group, EU 
27, 2012 (% of internet users) 

Source: Eurostat200 

199  Source: Eurostat 2014 (% of individuals who accessed internet in the last 3 months preceding the Eurostat survey) 
200  http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-12-050/EN/KS-SF-12-050-EN.PDF 

66 

 
 
 
 
 
 
                                                 
Table 5.2: Percentage of citizens who never travel in comparison to those who travel more frequently and the 
average number of days abroad for all citizens and citizens who travel at least once a year. 

Country  

Citizens who never 
travel  

Citizens who travel 
at least once a year  

Yearly average 
days abroad - all 
citizens  

Yearly average 
days abroad- 
citizens who travel 
at least once a year  

Austria  

Belgium  

Bulgaria  

Croatia  

Cyprus  

Czech  

Denmark  

Estonia  

Finland  

France  

Germany  

Greece  

Hungary  

Iceland  

Ireland  

Italy  

Lithuania  

Luxembourg  

Netherlands  

Norway  

Poland  

Portugal  

Romania  

Slovakia  

Slovenia  

Spain  

Sweden  

UK  

EEA Average  

10%  

19%  

63%  

33%  

15%  

23%  

7%  

27%  

14%  

37%  

18%  

63%  

59%  

36%  

18%  

52%  

52%  

4%  

7%  

10%  

52%  

61%  

57%  

26%  

19%  

55%  

6%  

27%  

36%  

66%  

62%  

11%  

31%  

37%  

39%  

68%  

41%  

48%  

33%  

52%  

11%  

13%  

35%  

51%  

16%  

22%  

86%  

78%  

57%  

18%  

14%  

17%  

48%  

60%  

16%  

65%  

40%  

35%  

11.2  

10.9  

0.9  

5.4  

12.1  

5.1  

12.6  

6.4  

11.0  

4.0  

8.9  

0.8  

2.5  

5.7  

10.9  

2.2  

5.1  

27.1  

15.0  

12.6  

3.0  

1.5  

1.4  

5.9  

6.9  

1.8  

12.1  

7.6  

5.7  

14.3  

14.6  

4.1  

12.2  

30.4  

9.5  

16.0  

11.8  

19.7  

8.3  

14.7  

3.2  

15.5  

12.4  

19.0  

8.4  

18.4  

30.1  

17.3  

19.2  

12.0  

6.3  

3.5  

8.6  

8.3  

8.9  

15.9  

15.6  

11.6  

67 

 
Source : BEREC International Roaming Analysis of the impacts of “Roam Like at Home” (RLAH), 17 December 
2014201 

During  the  next  5  years  global  digital  spending  on  entertainment  and  media  is  expected  to 
increase at a rate of 12.1%, whereas non-digital spending will only increase by 2.8%.202  

Digital technology also creates new forms of production and distribution of content, often 
making  them  more  efficient  and  less  costly.  Some  transaction  costs  decrease  (e.g.  by  more 
efficient matching between owners and users; easier monitoring of consumption). Some new 
uses (e.g. digitisation of out-of-commerce works) however involve significant costs. There is 
also a vast scope for individuals to self-publish, reaching consumers directly online.  

The  last  years  have  seen  a  plethora  of  new  services  coming  into  the  market.  The  figures 
below illustrate their importance in the EU economy:  

The number of licensed digital music services worldwide is steadily growing (about 400 at the end of 2010 and 
close to 600 at the end of 2015).203 In the digital music sector, cloud computing and the shift from ownership to 
access-based models of consumption is changing the ways in which consumers access digital content, enabling 
e.g.  subscription  to  extensive  libraries  on  a  streaming  rather  than  download-to-own  basis.  Although  download 
sales  continue  to  account  for  a  large  part  of  global  digital  revenues  (52%).  The  number  of  paying  subscribers 
increased  by  46.4%  globally  in  2014  and  stands  at  an  estimated  41  million  as  opposed  to  8  million  in  2010. 
Subscription  services  now  account  for  the  majority  of  digital  revenue  in  e.g.  Croatia,  Denmark,  Finland,  the 
Netherlands and Sweden.204 The global digital revenues of the recording industry reached USD 6.85 billion in 
2014.205 

Online music services in the EU in 2015 (download, subscription and ad-supported services) 

70

53

35

18

0

Austria

Cyprus

Finland

Hungary

Lithuania

Portugal

Spain

Source: www.pro-music.org  

In  the audiovisual  sector,  in  2014  there were  more  than 3000 video-on-demand  services  in  Europe,  including 
catch-up  TV  services  of  broadcasters  (1196  services)  and  VoD  services  providing  access  to  a  catalogue  of 
programs – without payment, on a transactional basis or through a subscription (2101 services). The number of 
users of subscription VoD services in 14 EU MS 206 was 25 million in 2014.207   In 2013 the online on-demand 

201   http://berec.europa.eu/eng/document_register/subject_matter/berec/opinions/4826-international-roaming-

analysis-of-the-impacts-of-8220roam-like-at-home8221-rlah 

202  PWC, Global entertainment and media outlook: 2012-2016 (PWC 2012),  
       http://www.pwc.com/us/en/pressreleases/2012/digital-now-embedded.jhtml.  “In  2016,  67%  of  total  global 

spending on entertainment and media growth will be generated by digital spending” 

203  http://www.pro-music.org  
204   IFPI Digital Music Report 2015 
205   Ibid. 
206    AT, BE, DE, DK, ES, FI, FR, IE, IT, LU, NL, PT, SE, UK 
207    IDATE Digiworld Yearbook 2015, Audiovisual Observatory and IHS. 

68 

 
 
                                                 
TV  revenues  reached  €938  million  and  online  on-demand  film  revenues  €588  million  in  the  EU.208VoD  film 
online accounted for 0.44% of the EU audiovisual market in 2013, growing by almost 60% compared to 2012. 
409 film VoD services were established in the EU in 2013, while 124 services of this type were established in 
the US, but were targeting European countries.209 With regard to the TV distribution platforms, the number of 
IPTV platforms in Europe has increased steadily (from 66 in 2008 to 188 in 2014).210 In 2013, consumers spent 
around €1.5 billion on TV and film on demand in Europe.211 Spending on physical video media (DVD/Blue-ray 
Disc)  amounted  to  €  5.9  billion,  down  11.3%  compared  to  2012.  Digital  delivery  over  the  internet  is  still 
generating fairly small revenues but is growing fast. Nevertheless, broadcasters remain, for the time being, the 
major  distributor  of  AV  content,  with  10  800  TV  channels  available  in  Europe.  Broadcasters’  net  revenues 
totalled over €71 billion in 2013.212 
The online games market is one of the fastest growing markets in recent years and is expected to grow further. 
In  Europe  consumer  spending  on  video  games  is  estimated  at  more  than  €20  billion  in  2015,  out  of  a  global 
market of €68 billion. The number of active social network game users rose in Europe from 17 million a month 
in 2008 to 376 million a month in 2013.213  

The  acceptance  of  e-books  by  EU  consumers  has  increased  over  the  years  and  this  upward  trend  is  likely  to 
continue. However, revenues from digital titles remain low in comparison to the print books: only 7% of global 
digital revenues resulted from the sale of digital titles in Europe whereas Europe is still the biggest book market 
on  a  global  level.214 Figures  differ  amongst  Member  States:  in  2013,  it  is  estimated  that  the  e-book  market 
accounted for close to 4% of the book market in Germany whereas this figure reached almost 12% in the UK.215 
More and more e-books are available and book publishers increasingly offer digital content such as e-books and 
apps in addition to print books, thus entering in direct competition with online retail platforms. European citizens 
can choose among 2.5 million book titles available in digital format.216 Some platforms still privilege distribution 
of content over proprietary networks (so called “walled gardens”) on the internet. Educational publishers217 also 
increasingly offer resources (e.g. textbooks) in digital formats throughout the EU.  

Sports 
The television remains the main medium though which consumers follow sports218. However, 
there  is  a  trend  towards  mobile/online  consumption,  which  is  helped  by  cross-platform 
services offered by broadcasters as well as sports organisers' licensing practices.219  

58%  consumers  in  the  EU  accessed  live  events  (such  as  sports,  concerts,  etc.)  on  line. 
Amongst  those  who  reported  accessing  online live  events (including  sports),  77% did  it  via 
free streaming and 28% via paid streaming.220  

The below graph shows the types of access to digital content by market, over the past year: 
live events include sports, concerts, etc.221 

208   Audiovisual Observatory 
209  Data from European Audiovisual Observatory 
210  MAVISE/European Audiovisual Observatory, Yearbook 2011, http://www.obs.coe.int 
211  Data from European Audiovisual Observatory 
212  European Audiovisual Observatory 
213    http://www.isfe.eu/ and IHS  
214   Idate report, Digiworld Yearbook 2015. 
215  Rudiger Wischenbart, The Global eBook Report, 2013 
216  http://www.cmba-alliance.eu/facts-and-figures/  
217  Educational publishing represents between 15 and 20% of the publishing market at EU level.  
218   See Global Sports Media Consumption Report 2012, page 4 and Global Sports Media Consumption Report 
2014, p. vi and 10-11. The 2014 report covers sixteen global markets, including France, Germany, Italy, 
Spain and GB. 

219   Traditionally, media content providers delivered their services via one particular platform, e.g. analogue TV, 
digital terrestrial TV (DTT), cable TV or satellite TV. However, these services are increasingly migrating 
towards distribution platforms that are hybrids of traditional broadcasting and internet (see Annex 4).  
220   2015 DSM consumer survey: identifying the main cross-border obstacles to the Digital Single Market and 

where they matter most, 
http://ec.europa.eu/consumers/consumer_evidence/market_studies/obstacles_dsm/index_en.htm    

69 

 
                                                 
Online  sports  consumption  is  growing  globally,  including  in  the  major  European  markets. 
Namely,  in  2014,  in  France,  Germany,  Italy,  Spain  and  Great  Britain,  consuming  sports 
content  online  is  the  second  most  popular  method  after  TV,  attracting  between  51-67%  of 
consumers.222 Of those who consumed sports online, between 44-60% watched live streaming 
of games or sport events.223   

While consumers increasingly watch sporting events online, many of them cannot watch them 
online  while  travelling  in  Europe.  The  below  graph  show  consumers'  attempts  to  access 
digital content (films, TV series or live events, including sports) from another EU country.224 

The respondents who noted that they had streamed films and TV series or live events in the 
last 12 months were subsequently asked if they had tried to access such live events that one 

221   2015 DSM consumer survey: identifying the main cross-border obstacles to the Digital Single Market and 

where they matter most, 
http://ec.europa.eu/consumers/consumer_evidence/market_studies/obstacles_dsm/index_en.htm  

222   53% in France, 51% in Germany, 67% in Italy, 67% in Spain and 61% in the UK. See Global Sports Media 

Consumption Report 2014. 

223   44% in France, 51% in Germany, 47% in Italy, 60% in Spain and 51% in the UK. See ibid. 
224   2015 DSM consumer survey: identifying the main cross-border obstacles to the Digital Single Market and 

where they matter most; 
http://ec.europa.eu/consumers/consumer_evidence/market_studies/obstacles_dsm/index_en.htm  

70 

 
 
 
                                                                                                                                                         
can normally view in their country of residence from abroad. Of the 38% of respondents who 
streamed live events (e.g. sports matches) in the last 12 months and tried to access streaming 
services of their own country while abroad, 51% reported not being able to access them. 39% 
reported that they were not allowed by the content provider, 35% that they were not allowed 
by the internet service provider and a further 26% that it did not work for 'another reason'. 

71 

 
14.  ANNEX 6 – INTERNATIONAL AND EUROPEAN LEGAL FRAMEWORK  

EU legal framework 

Directive 2001/29/EC (the "InfoSoc Directive") was designed to update copyright rules to the 
(then nascent) digital networks and to implement the two 1996 WIPO225 Internet Treaties - the 
WIPO  Copyright  Treaty  (WCT) 226 and  the  WIPO  Performances  and  Phonograms  Treaty 
(WPPT).227 It  harmonises  several  exclusive  rights  and  exceptions  that  are  essential  to  the 
online  dissemination  of  works  and  other  protected  subject-matter.  The  Directive  has  to  be 
read  in  conjunction  with  all  other  Copyright  Directives, 228 in  particular,  in  terms  of  the 
definition of rights and of exceptions, it has to be read together with Directive 96/9/EC (the 
“Database  Directive”),  Directive  2009/24/EC  (the  "Software  Directive"),  Directive 
2006/115/EC  (the  "Rental  and  Lending  Directive")  and  Directive  2012/28/EU  (the  “Orphan 
Works  Directive”).  Remedies  against  infringements  of  intellectual  property  rights  are 
foreseen  in  Directive  2004/48/EC  on  the  enforcement  of  Intellectual  Property  rights 
(“IPRED”).  

As regards the broadcasting of TV and radio programmes, Directive 93/83/EEC (the "Satellite 
and Cable Directive") aims to facilitate the clearing of copyright and related rights for cross-
border satellite broadcasting and cable retransmission services.  

Many of the copyright directives reflect the obligations of MS under the Berne Convention, 
and the Rome Convention, and of the EU and its MS under the WTO TRIPS Agreement  and 
the 1996 WIPO Internet Treaties. 
All  these  Directives  have  as  their  objective  and  their  legal  bases229 the  establishment  and 
functioning of an internal market, notably as regards the free movement of goods and services 
which consist of or contain works and other protected subject-matter.   

The  shift  of  content  distribution  from  goods  to  services  provided  over  digital  networks  and 
with a potential cross-border reach makes it increasingly important to interrelate the existing 
copyright rules with the rules applicable in the area of services in the internal market, notably 
Directive  2000/31/EC  (the  "E-commerce  Directive"),  which  sets  the  rules  applicable  to  the 
provison  of  online  services  in  the  internal  market  and  also  contains  provisions  which  are 
relevant  for  the  exercise  and  the  enforcement  of  copyright,  Directive  2006/123/EC  (the 
"Services  Directive")  which  sets  the  rules  applicable  to  the  provision  of  services  in  the 
internal  market  and  Directive  2010/13/EU  (the  "Audiovisual  Media  Services  Directive"  or 
"AVMS  Directive")  which  sets  the  rules  applicable  to  the  provision  of  AV  services  in  the 
internal market. 

As  regards  sports,  the  acquisition  and  transfer  of  broadcasting  rights  to  sporting  events  are 
governed  by  national  law,  subject  to  the  applicable  EU  rules,  such  as  competition  (Articles 
101 and 102 TFEU). Article 14(1) of the AVMS Directive establishes a possibility for MS to 
ensure that certain sporting events of "major importance for society" would be shown on free 
TV.  Furthermore,  and  in  the  light  of  the  European  Convention  on  Transfrontier  Television 
(ECTT),  Article  15  of  the  AVMS  Directive  introduces  the  right  to  short  reporting  of  major 
events, which includes sports.  

225   World Intellectual Property Organization, http://www.wipo.int  
226  http://www.wipo.int/treaties/en/ip/wct/  
227  http://www.wipo.int/treaties/en/ip/wppt/  
228    http://ec.europa.eu/internal_market/copyright/acquis/index_en.htm  
229   Article 114 TFEU as well as Articles 50, 53 and 62 TFEU.  

72 

 
                                                 
Moreover,  the  above-described  legal  framework  complies  with  the  obligation  of  the  EU  to 
take cultural diversity aspects into account in its actions230 and the UNESCO Convention on 
the protection and the promotion of the diversity of cultural expressions, to which the EU is a 
Party, recognises the importance of intellectual property rights in sustaining those involved in 
cultural creativity. 

Finally, in the last years, the CJEU has developed a substantive body of case law interpreting 
the provisions of the above mentioned rules as well as their relation to the free movement of 
services principle established in the Treaty. 

International treaties 

Berne Conventin for the Protection of Literary and Artistic Works  

WIPO Copyright Treaty (WCT) 

Rome  Convention  for  the  Protection  of  Performers,  Producers  of  Phonograms  and 
Broadcasting Organizations 

Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication 
of Their Phonograms 

WIPO Performances and Phonograms Treaty (WPPT) 

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) 

Beijing Treaty on Audiovisual Performances (not in force) 

Marrakesh  Treaty  to  Facilitate  Access  to  Published  Works  for  Persons  Who  Are  Blind, 
Visually Impaired or Otherwise Print Disabled (not in force) 

UN Convention on the Rights of Persons with Disabilities (UNCRPD) 

EU legislation 

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the 
harmonisation of certain aspects of copyright and related rights in the information society, OJ 
L 167, 22.6.2001, p.10. ("InfoSoc Directive") 

Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 
on  rental  right  and  lending  right  and  on  certain  rights  related  to  copyright  in  the  field  of 
intellectual property, OJ L 376, 27.12.2006, p. 28. ("Rental and Lending Directive") 

Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 
on  the  resale  right  for  the  benefit  of  the  author  of  an  original  work  of  art,  OJ  L  272, 
13.10.2001, p. 32. ("Resale Right Directive") 

Council  Directive  93/83/EEC  of  27  September  1993  on  the  coordination  of  certain  rules 
concerning copyright  and  rights  related  to  copyright applicable  to  satellite  broadcasting  and 
cable retransmission, OJ L 248, 6.10.1993, p. 15. ("Satellite and Cable Directive") 

Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the 
legal  protection  of  computer  programs  (Codified  version),  OJ  L  111,  5.5.2009,  p.  16–22. 
(“Software Directive”) 

Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of 
intellectual property right, OJ L 157, 30.4.2004, p. 45–86. (“IPRED”) 

230   Article 167(4) TFEU 

73 

 
                                                 
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the 
legal protection of databases, OJ L 77, 27.3.1996, p. 20–28. (“Database Directive”) 

Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 
on the term of protection of copyright and certain related rights (codified version), OJ L 372, 
27.12.2006, p. 12–18. (“Term Directive”) 

Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011 
amending  Directive  2006/116/EC  on  the  term  of  protection  of  copyright  and  certain  related 
rights, OJ L 265, 11.10.2011, p. 1-5. (“amended Term Directive”) 

Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on 
certain  permitted  uses  of  orphan  works,  OJ  L  299,  27.10.2012,  p.  5-12.  (“Orphan  Works 
Directive”) 

Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on 
collective management of copyright and related rights and multi-territorial licensing of rights 
in musical works for online use in the internal market, OJ L 84, 20.3.2014. p. 72-98. (“CRM 
Directive”) 

Regulation  (EC)  N°  44/2001  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgements  in  civil  and  commercial  matters  (to  be  replaced  as  of  10  January  2015  by 
Regulation 1215/2012) 

Regulation (EC) N° 593/2008 on the law applicable to contractual obligations 

Regulation (EC) N° 864/2007 on the law applicable to non-contractual obligations and 

Regulation  (EC)  N°  1206/2001  on  cooperation  between  Member  States  in  the  taking  of 
evidence in civil or commercial matters 

Directive  2000/31/EC  of  the  European  Parliament  and  of  the  Council  of  8  June  2000  on 
certain legal aspects of information society services, in particular electronic commerce, in the 
Internal Market, OJ L 178, 17.7.2000, p. 1–16 ("E-commerce Directive") 

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 
on services in the internal market, OJ L 376, 27.12.2006, p. 36–68 ("Services Directive") 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on 
the coordination of certain provisions laid down by law, regulation or administrative action in 
Member States concerning the provision of audiovisual media services,  OJ L 95, 15.4.2010, 
p. 1–24 ("Audiovisual Media Services Directive") 

74 

 
 
15.  ANNEX  7  –  EXAMPLES  OF  ACCESS  OR  USE  RESTRICTIONS  IN  TERMS  OF  SERVICES  BY 

ONLINE CONTENT PROVIDERS 

Name of the service/ web 
address 

Main features 

Access/use restrictions 
(according to the terms of 
use) 

iTunes 
www.apple.com/itunes  

Sky Now 
www.nowtv.com  

MyTF1 
www.mytf1vod.tf1.fr  

CanalPlay 
www.canalplay.com  

Maxdome 
www.maxdome.de  

Audiovisual and sports content providers 

Type: VOD – streaming, downloads 

Devices: PC, tablet, smartphone, Smart TV 
Business model: paid - transactional (payment 
for a film) 
Requirements  for  registration:  subscriber's 
data, credit card 

Each  iTunes  store  is  available 
in the territory "covered" by the 
store.  E.g.  the  Belgian  iTunes 
store 
in 
Belgium  and  cannot  be  used 
abroad – IP address check. 

is  only  available 

- 

simulcasting  and  VOD 

Type:  Live 
streaming 
Devices: PC, tablet, smartphone, Smart TV 
Business model: paid - subscription 
Requirements  for  registration:  subscriber's 
data, credit card 

Type: VOD - streaming 
Devices: PC 
Business model: paid - transactional (payment 
for a film) 
Requirements  for  registration:  subscriber's 
data (credit card details upon first payment) 

Type: VOD - streaming, downloads 
Devices: PC, tablet, smartphone, Smart TV 
Business model: paid - subscription (access to 
transactional 
a  general  catalogue)  and 
(payment for a film) 
Requirements  for  registration:  subscriber's 
data, credit card 

- 

simulcasting  and  VOD 

Type:  Live 
streaming, downloads 
Devices: PC, tablet, smartphone, Smart TV 
Business model: paid - subscription (access to 
a  general  catalogue)  and 
transactional 
(payment for a film) 
Requirements  for  registration:  subscriber's 
data, means of payment 

Available  only  to  residents  of 
UK  accessing  the  service  from 
the territory of UK – IP address 
check. 

Available  only  to  residents  of 
France  accessing  the  service 
using  French  IP  address  –  IP 
address check. 

Available  only  to  residents  of 
France  accessing  the  service 
from  the  territory  of  France  – 
IP address check. 

to 

Available 
users 
only 
accessing  the  service  from  the 
territory  of  Germany  –  IP 
address check. 

75 

 
Name of the service/ web 
address 

Main features 

RTL Now TV 
www.nowtv.de/rtl  

Type:  Live  simulcasting  of  TV  channels  and 
VOD (catch-up TV) – streaming 

Devices: PC, tablet, smartphone, Smart TV 
Business  model:  paid  and  unpaid  depending 
on content 
Requirements  for  registration:  subscriber's 
data 

Magine TV Germany 
https://magine.com/de 

Type:  Live  simulcasting  of  TV  channels  and 
VOD (catch-up TV) – streaming 

Universciné 
www.fr.universcine.be  

Devices: PC, tablet, smartphone, Smart TV 
Business  model:  paid  and  unpaid  depending 
on content 
Requirements  for  registration:  subscriber's 
data 

Type: VOD - streaming, downloads 

Devices:  PC,  tablet,  smartphone  –  5  devices 
maximum 

Business  model:  paid  – 
(payment for a film) 
Requirements  for  registration:  subscriber's 
data 

transactional 

Proximus TV Partout 
www.proximus.be/en/id_cr_
everywhere/personal/our-
products/television/tv-
experience/tv-partout.html  

Type:  Live  simulcasting  of  TV  channels  and 
VOD (catch-up TV) - streaming 
Devices: PC, tablet, smartphone 
Business model: paid - subscription 
Requirements  for  registration:  subscriber's 
data 

Access/use restrictions 
(according to the terms of 
use) 

it  from 

Service restricted in principle to 
users  accessing 
the 
territory  of  Germany.  Not  all 
videos  are  available  outside 
Germany – IP address check. 

Available only to users residing 
in  and  accessing  the  service 
from the territory of Germany – 
IP address check. 

Available  only  to  residents  of 
Belgium  accessing  the  service 
from the territory of Belgium – 
IP address check. 

Available only to subscribers of 
Proximus TV (IPTV service). 
Available only via the fixed and 
mobile networks of Proximus. 
Available 
users 
only 
accessing  the  service  from  the 
territory  of  Belgium  – 
address check. 

IP 

to 

Filmin 
www.filmin.es   

Streaming 
available 
service 
only  to  users  in  the  territory  of 
Spain – IP address check. 

Type: VOD – streaming, downloads 

Devices: PC, tablet, smartphone, Smart TV 
Business model: paid - subscription (access to 
transactional 
a  general  catalogue)  and 
(payment  for  a  film  to  get  access  for  72 
hours) 
Requirements  for  registration:  subscriber's 
data (credit card details upon first payment) 

76 

 
Name of the service/ web 
address 

Main features 

Filmotech 
www.filmotech.com  

Mediaset Infinity 
www.infinitytv.it  

ChiliTV 
http://it.chili.tv/ 

Onet VoD 
www.vod.pl  

Voyo Bulgaria  
www.voyo.bg  

Nova Play 
www.play.novatv.bg  

Access/use restrictions 
(according to the terms of 
use) 

restrictions 
No 
territory are mentioned. 

linked 

to 

to 

Available 
users 
only 
accessing  the  service  from  the 
territory  of  Italy  –  IP  address 
check. 

Italian  residence  is  a  condition 
to  set  up  an  account  –  IP 
address  check.  The  use  of 
certain content can be limited to 
certain devices. 

Type: VOD – streaming 

Devices:  PC,  tablet,  smartphone.  Up  to  5 
different IP addresses allowed per user 
Business model: paid - subscription (access to 
a  general  catalogue)  and 
transactional 
(payment  for  a  film  to  get  access  for  48 
hours) 
Requirements  for  registration:  subscriber's 
data 

Type: VOD - streaming 

Devices: PC, tablet, smartphone, Smart TV – 
5 devices maximum 
Business  model:  subscription  (access  to  a 
general catalogue) and transactional (payment 
for a film) 
Requirements  for  registration:  subscriber's 
data, fiscal code, means of payment 

Type: VOD - streaming, downloads 
Devices: PC, tablet, smartphone, Smart TV 
Business  model:  paid  and  unpaid  (limited 
-
service),  depending  on  content;  paid 
transactional (payment for a film) 
Requirements  for  registration:  subscriber's 
data, means of payment (for paid service) 

Type: VOD - streaming 
Devices: PC 
Business  model:  paid  and  unpaid  depending 
on the content 
Requirements  for  registration:  subscriber's 
data, credit card 

Available  only  to  users  in  the 
territory of Poland – IP address 
check.  Service  may  allow 
access  to  specific  content  also 
to users having other IP address 
than Polish. 

Type: VOD - streaming 
Devices: PC, tablet, smartphone, Smart TV 
Business  model:  subscription  (access  to  a 
general catalogue) and transactional (payment 
for a film) 
Requirements  for  registration:  subscriber's 
data (credit card details upon first payment) 

Type: VOD (catch-up TV) - streaming 
Devices: PC, tablet, smartphone 
Business model: unpaid 
Requirements for registration: registration not 
compulsory  but  gives  access 
to  more 
functionalities 

to 

users 
only 
Available 
accessing  the  service  from  the 
territory  of  Bulgaria  – 
IP 
address check. 

Not  all  videos  are  available 
outside  Bulgaria  –  IP  address 
check. 

77 

 
Name of the service/ web 
address 

Main features 

Access/use restrictions 
(according to the terms of 
use) 

Spotify 
www.spotify.com 

Apple Music 
www.apple.com/music/ 

7digital 
https://es.7digital.com 

Rdio 
www.rdio.com 

Napster 
http://de.napster.com/ 

Tidal.com 
http://tidal.com/ 

Music providers 

Type:  streaming,  temporary  downloads  (for 
offline use) 
Devices: PC, tablet, smartphone 
Business model: unpaid (limited service) and 
paid (subscription) 
Requirements  for  registration:  subscriber's 
data 

Type:  streaming,  temporary  downloads  (for 
offline use) 
Devices: PC, tablet, smartphone 
Business model: unpaid (limited service) and 
paid (subscription) 
Requirements  for  registration:  subscriber's 
data 

Non-paying  users  can  use  the 
service abroad for 14 days; this 
time  limit  does  not  apply  to 
subscribers. 

The  service  is  available  in  the 
territory 
(e.g. 
Belgium)  and  cannot  be  used 
abroad. 

"covered" 

Type: downloads 

Devices:  PC,  tablet,  smartphone  –  5  devices 
maximum 
Business model: paid - transactional (payment 
for a track) 
Requirements  for  registration:  subscriber's 
data 

this 

The content may be limited to a 
type  of 
territory.  For 
content,  the  user  shall  provide 
his  or  her  billing  information 
related  to  that  territory.  The 
user  accepts 
terms  and 
the 
conditions  related  to  territorial 
restrictions. 

Type: streaming, downloads 
Devices: PC, tablet, smartphone 
Business model: unpaid (limited service) and 
paid (subscription) 
Requirements  for  registration:  subscriber's 
data 

in 

available 

any 
Songs 
particular  territory  will  depend 
upon  the  rights  Rdio  obtains 
with  respect  to  that  territory, 
and,  accordingly,  not  all  songs 
all 
available 
will  be 
territories. 

in 

Type: streaming, downloads (for offline use) 
Devices: PC, tablet, smartphone 
Business model: paid (subscription) 
Requirements  for  registration:  subscriber's 
data and means of payment 

is 

The  user  has  to  declare  that 
in  one 
residing 
she/he 
Member  State  of  the  EU,  from 
which  she/he  registers  to  the 
service or uses the service. 

Type:  streaming,  temporary  downloads  (for 
offline use) 
Devices: PC, tablet, smartphone 
Business model: paid (subscription) 
Requirements  for  registration:  subscriber's 
data 

The service shall not be used in 
any manner that may violate the 
restrictions  applicable  to  the 
service, 
utilization  of 
including 
respect 
failing 
applicable geographic/territorial 
restrictions. 

the 

to 

78 

 
Name of the service/ web 
address 

Main features 

Music me 
www.musicme.com 

Type: streaming, downloads 
Devices: PC, tablet, smartphone 

and  paid  – 
Business  model:  unpaid 
subscription and transactional (payment for a 
track) 
Requirements  for  registration:  subscriber's 
data and means of payment (for paid service) 

Starzik 
www.starzik.com  

Type: downloads 
Devices: PC 

Business  model:  paid  –  subscription  and 
transactional (payment for a track) 
Requirements  for  registration:  subscriber's 
data and means of payment 

eMusic 
www.emusic.com 

Type: downloads 
Devices: PC, tablet, smartphone 

Business  model:  paid  – 
(payment for a track) 
Requirements  for  registration:  subscriber's 
data 

transactional 

Akazoo 
www.akazoo.com 

Type: streaming, downloads 
Devices: PC, tablet, smartphone 
Business model: paid (subscription) 
Requirements  for  registration:  subscriber's 
data and means of payment 

Access/use restrictions 
(according to the terms of 
use) 

The service is offered in France 
only.  Means 
payment 
required  is  a  credit  card  issued 
on the French territory 

of 

or 

is  reserved 

The  service 
to 
clients  living  on  the  French 
territory 
specific 
territories authorized by Starzik 
at  the  date  of  purchase  AND 
having  a  credit  card  issued  in 
France 

in 

and, 

eMusic derives its rights to use 
the  media  offered  on 
the 
Service  from  artists  and  record 
labels,  publishers  and  other 
third parties for fixed periods of 
time 
for 
sometimes, 
limited 
territories.  As  well, 
eMusic  is  sometimes  required 
to  pull  certain  media  off  the 
Service  (or  otherwise  restrict 
access  to  such  media)  for  legal 
reasons. 
or 
certain  media 
Therefore, 
offered or advertised by eMusic 
may not be available when you 
try  to  download,  and  not  all 
in  all 
media  are  available 
countries. 

commercial 

agrees 
any 

Content  may  be  restricted  by 
territory  of  Akazoo  access,  as 
determined  by  the  IP  address. 
not 
The 
to 
user 
territorial 
circumvent 
restrictions 
the 
Services  or  use  any  methods 
altering  or  prevaricating  the  IP 
address  when  accessing 
the 
Services. 

in  place  on 

79 

 
Name of the service/ web 
address 

Main features 

Access/use restrictions 
(according to the terms of 
use) 

Pakartot 
www.pakartot.lt  

None 

Type: streaming 
Devices: PC, tablet, smartphone 
Business model: unpaid, can be used without 
registration 
to 
certain features, e.g. making playlists) 
Requirements  for  registration:  subscriber's 
data 

(registration  gives  access 

80 

 
 
 
 
 
 
 
16.  ANNEX 8 – TECHNOLOGIES FOR DELIVERING ONLINE CONTENT SERVICES 

Content Distribution/Delivery Networks (CDNs), Adaptive Bit Rate (ABR) and Peer-to-
Peer (P2P) 

When  content  is  delivered  from  a  content  provider  to  a  content  consumer,  there  are  two 
important  techniques  used  to  increase  the  Quality  of  Experience  of  the  consumer:  Content 
Distribution/Delivery  Networks  (CDNs)  and  Adaptive  Bit  Rate  (ABR)  streaming.  Both 
techniques are generally independent; in particular a CDN is not necessary to provide ABR 
streaming.  However,  CDNs  can  provide  streaming  services  with  ABR.  Further,  ABR 
streaming  is  a  technique  necessary/useful  only  for  live  streaming  of  video  (not  necessarily 
live  video).  ABR  is  briefly  explained  here  for  the  sake  of  clarity.  It  does  not  have  a  cost 
impact  in  the  context  of  geo-blocking,  but  can  be  used  to  provide  a  best-effort  service  to  a 
user outside the usual target territory. 

A  third technique  is  Peer-to-Peer  (P2P)  but  it is  a  niche  technology  for  commercial  content 
distribution. The fact that the devices on which the content is displayed are portable, such as a 
tablet or a smartphone, or fixed, such as a connected TV or a computer, does not have a big 
impact on these processes, in particular as fixed devices increasingly use the same local Wi-Fi 
connection (portable devices have lower requirements for quality and corresponding bit rate 
parameters).  

Adaptive Bit Rate (ABR) streaming 

If  a  video  is  streamed  from  a  server  to  a  content  consumer,  the  bitrate  of  the  video  is  an 
indicator for the Quality of Experience of the consumer: for the same video codec a higher bit 
rate generally  means higher quality. But at the same time, the bitrate is also proportional to 
the bandwidth necessary to stream the video to the consumer. If now the bandwidth between 
server  and  consumer  is  not  sufficient  and  the  bitrate  remains  constant,  the  buffer  at  the 
consumer  device  will  run  empty  and  the  video  will  stall  which  is  known  to  cause  high 
customer  dissatisfaction.  Therefore,  ABR  streaming  adapts  the  used  bitrate  to  the  available 
bandwidth  based  on  some  feedback  mechanism  between  content  consumer  and  content 
provider server. If the feedback mechanism signals that the buffer fill at the consumer device 
decreases due to lack of bandwidth, the server then switches to a lower bitrate to alleviate the 
problem. This of course leads to a decreased image quality at the consumer device, but avoids 
stalling  and  usually  consumers  are  more  readily  willing  to  accept  slightly  reduced  image 
quality than stalling. The bitrate is usually fixed for a segment of the video of – depending on 

the implementation – a duration of two to ten seconds, but in principle each segment can be 
streamed at a different bitrate. Like that the streaming server can also adjust itself to different 
end devices since it makes a difference whether it streams to a laptop connected via a vDSL 
connection or a mobile device connected via the mobile network. 

Content Delivery Networks (CDNs) 

The purpose of CDNs is the fast and efficient delivery of content from content providers to 
content consumers. In principle, all content could be delivered directly from the origin server 
at  a  single  location  under  the  control  of  the  content  provider.  However,  in  practice  this 
reaches scalability limits and produces quality problems for widely consumed (both in terms 
of  number  of  consumers  and  in  terms  of  geographic  spread  of  consumers)  content.  For 
instance,  the  capacity  of  the  origin  server  needs  to  be  very  high,  which  is  expensive;  the 
bandwidth  of  the  connection  between  the  server  and  the  Internet  needs  to  be  very  high  and 
sufficient  capacity  may  not  even  be  available;  and  finally,  a  lot  of  traffic  is  duplicated 

81 

 
unnecessarily on network links causing network congestion. The latter point can be illustrated 
as follows: let's assume a content provider with its origin server in Germany. If consumer A 
from  Portugal  accesses  content  from  this  provider,  the  content  is  sent  from  some  point  in 
Germany  to  some  point  in  Portugal.  If  now  consumer  B  from  Portugal  accesses  the  same 
content  from  this  provider,  the  content  is  sent  once  again  all  the  way  from  Germany  to 
Portugal while it would have been much more efficient to replicate the content on a server in 
Portugal  and  serve  consumers  A  and  B  directly  from  there.  In  this  simple  example  the 
replication of content in Portugal reduces the traffic roughly by 50%.  

And  this  is  exactly  what  CDNs  are  doing:  they  replicate  content  at  different  (geographic) 
locations for more efficient delivery. Next to the points mentioned above, placing content as 
close  as  possible  to  the  consumer  also  reduces  delay  and  generally  makes  the  quality  of 
delivery more predictable.231  

So a CDN is a collection of interconnected servers at different locations that replicate content 
and deliver it to consumers. It is important to place the servers well in different regions, but 
also for instance within a region inside different ISPs or at the peering point of different ISPs 
in  order  to  avoid  unnecessary  peering  traffic  between  ISPs.  CDNs  can  be  private,  i.e.,  the 
content provider  has  its own  CDN, or they  can be  bought  as a service from a  CDN service 
provider.  Operating  a  private  CDN  only  makes  sense  for  very  big  content  providers:  CDN 
service  providers  often  can  offer  the  service  cheaper  due  to  economy  of  scales  when 
providing the distribution service to many content providers at the same time. As an example, 
Akamai is amongst the best known and world’s largest CDN providers and serves – according 

to estimates – between 15 to 30 percent of all web traffic.  

Technology in a nutshell 

A  content  provider  offers  at  its  origin  server  content  on  some  sports  event  under 
www.provider.eu/sports/sports.html  including  a  video  'sportsvideo.mpg'  which  is  replicated 
inside  a  CDN.  If  a  consumer  requests  this  content,  the  request  for  the  information 
www.provider.eu/sports/sports.html  first  goes  to  the  origin  server,  but  the  request  for  the 
video  itself  is  then  redirected  by  the  origin  server  inside  the  above  HTML-file  to 
www.cdn.com/www.provider.eu/sports/sportsvideo.mpg. Now the CDN provider receives the 
request,  selects  inside  its  CDN  a  suitable  server  which  can  serve  the  consumer  best  and 
delivers  the  video.  The  selection  is  actually  done  by  the  CDNs  authoritative  DNS  server232 
based on a map of distances between its own servers and individual ISPs. So it returns the IP 
address of its server which is closest to the ISP of the consumer. 

In short, the first request goes to the content provider and the content provider redirects to the 
CDN. In particular it could decide to not redirect to the CDN for specific customers. Hosting 
files in a CDN works for big files such as for software distribution, video on demand, but also 
for live video, the latter being the most demanding case. 

Peer-to-peer (P2P) networks can also be used to distribute content. In this case, all consumers 
host parts of the file(s) – so called chunks - to be distributed and share it amongst themselves 

231   Please note in that context that "close to the user" is not necessarily meant geographically only. The closest 
server to a consumer out of couple of possible servers also might be the one with the best connection to the 
consumer. 

232   The Domain Name System (DNS) server translates requests for domain names into actual IP addresses, in 
this case www.cdn.com into the IP address of the specific server inside the CDN which is supposed to serve 
the request.  

82 

 
                                                 
according to some distributed algorithms underlying the P2P network. P2P networks became 
well known due to their use for file-sharing music pirate sites a while ago, but, e.g., the BBC 
also used it originally in the design of its iPlayer. The BBC gives lacking server performance 
and very high distribution costs as the reasons for this decision at that time and of course P2P 
networks are very cost efficient since the content provider does almost not have to invest in a 
server  infrastructure.  However,  in  2009  the  BBC  abandoned  the  P2P  technology  since 
downloaded  files  contributed  only  10%  to  their  overall  traffic,  which  mainly  consisted  in 
(live)  video  streaming,  for  which  P2P  networks  are  not  very  suitable.  Consequently,  today 
P2P networks are rather a niche technology for content distribution. 

 The future of CDNs 

Some  telecommunication  service  providers  have  started  to  operate  their  own  CDN.  A  clear 
advantage  is  that  telcos  can  bring  content  even  closer  to  the  end  user  than  traditional  CDN 
service providers can. A clear advantage for the teleco itself is that such a telco CDN enables 
them  to  better  manage  and  control  the  traffic  in  their  network.  However,  depending  on  the 
size  of  the  telco,  such  a  telco  CDN  has  very  limited  reach,  which  lead  to  standardization 
efforts  for  CDN  federation,  i.e.,  interconnection  of  CDNs,  and  contrasts  with  the  current 
proprietary nature of CDNs. In how far this will change the CDN world so that maybe also 
small content providers could more easily profit from CDN technology is yet to be seen. 

What  could  happen  when  geo-blocking  is  lifted?  What  would  work  differently  and  where 
could additional costs occur? 

Scenario:  A  German  content  provider  focused  on  the  German  market  has  a  contract  with  a 
CDN provider for Germany. So far content consumers outside Germany were blocked. If now 
consumers access from, e.g., Portugal, the following options exist: 

Option a: When the request arrives from the consumer in Portugal, the origin server localizes 
the  consumer  outside  Germany  and  decides  to  serve  the  consumer  directly,  i.e.,  without 
redirection  to  the  CDN.  The  advantage  is  that  the  CDN  contract  is  not  touched  upon, 
however, the quality may decrease since the path of delivery is longer with less foreseeable 
behaviour, in any case the quality will not be predictable – ABR might help to alleviate the 
effects. Costs arise if the server performance has to be increased or the contract with the ISP 
for the Internet connection of the origin server has to be upgraded in terms of bandwidth or 
traffic  volume  between  the  content  provider  and  the  ISP.  The  ISP  itself  might  encounter 
unforeseen peering traffic with other ISPs. However ISPs should not be able to block or slow 
down  traffic  of  the  content  provider  because  of  such  possible  increase  in  peering  traffic.  In 
any  case,  the  effects  should  be  manageable  in  terms  of  costs,  unless  there  is  a  massive 
increase in consumers outside Germany, which then could probably be monetized. 

Option b: When the request arrives from the consumer in Portugal, the origin server localizes 
the  consumer  outside  Germany,  but  still redirects  the  request  to  the  CDN.  The  CDN  serves 
the  consumer  from  its  server  which  is  best  located  towards  this  consumer,  but  since  the 
contract with the content provider may be limited to Germany, this server is probably also not 
optimally placed and quality might be decreased due to similar reasons as above – ABR might 
again help to alleviate the effects. Additional costs may occur if the contract with the CDN 
provider  is  –  for  instance  –  volume  based  and  the  customers  outside  Germany  have  a 
noticeable impact on this contract. 

Option c: The content provider wants to serve all over Europe to its customers with optimal 
quality and thus extends its CDN contract.  

83 

 
84 

 
 
 
 
    
17.  ANNEX 9 - GLOSSARY 

"Creative industries": they include services such as publishing activities (books, periodicals 
and software), motion pictures, video and television programme production, sound recording 
and  music  publishing  activities,  programming  and  broadcasting  activities,  computer 
programming,  architectural  and  engineering  services,  advertising,  design  activities, 
photographic  activities, 
interpretation  activities,  creative,  arts  and 
entertainment activities. 

translation  and 

"Content industries": the creative industries and the sports industries. 

"Copyright  and  related  rights":  copyright  is  vested  in  authors  whereas  related  rights  are 
vested  in  performers,  phonogram  (i.e.  record)  and  film  producers  as  well  as  broadcasting 
organisations. Copyright and related rights include so-called "economic rights" which enable 
rightholders to control (license) the use of their works and other protected subject matter (i.e. 
performances,  phonograms,  audiovisual  productions  and  broadcasts)  and  to  be  remunerated 
for  their  use.  These  rights  normally  take  the  form  of  exclusive  rights  and  include  (among 
others): the right to copy or otherwise reproduce any kind of work and other protected subject 
matter; the right to distribute copies to the public and the right to communicate to the public 
performances  of  such  works  and  other  protected  subject  matter.  These  rights  are,  to  a  large 
extent, harmonised at the EU level. They can be managed directly by the original rightholder 
(e.g. the author of a book) or by those to whom the rights have been transferred (e.g. a book 
publisher).  They  can  also  be  managed  collectively  by  a  collecting  society.  Authors  are  also 
granted so called "moral rights" (these are normally not granted to rightholders protected by 
related rights though some legislations provide for moral rights for performers). Moral rights 
may include the right to decide on disclosure of the work; the right to claim authorship of the 
work and the right to object to any derogatory action in relation to the work. Moral rights are 
not harmonised at the EU level. 

"Work": creative output of authors protected by copyright. It includes: literary (books, lyrics, 
etc.), dramatic (plays, opera librettos, etc.), musical and artistic (photography, painting, etc.) 
works. 

"Other  protected  subject-matter":  output  of  holders  of  related  rights  i.e.  performers, 
phonogram and film producers and broadcasting organisations.  

"Commercial users" or “service providers”: any person or entity involved in the provision 
of  goods  or  services  who  for  its  activities  needs  a  licence  from  rightholders  of  copyrights 
and/or related rights. 

"Collective  management  organisations  (CMOs)  ":  organisations  traditionally  set  up  by 
rightholders  at  national  level  and  whose  sole  or  main  purpose  is  to  manage  copyright  or 
related rights on their behalf.  

“Three-step test”: Copyright exceptions may only be applied in certain special cases which 
do  not  conflict  with  a  normal  exploitation  of  the  work  or  other  subject-matter  and  do  not 
unreasonably prejudice the legitimate interests of the rightholder. 

"Collective rights management": means the provision of the following services: the grant of 
licences  to  commercial  users,  the  auditing  and  monitoring  of  rights,  the  enforcement  of 
copyright  and  related  rights,  the  collection  of  royalties  and  the  distribution  of  royalties  to 
rightholders. 

"Repertoire":  the  sum  of  the  rights  of  all  rightholders  that  a  collecting  society  directly 
represents. 

85 

 
"Reproduction  right":  the  right  to  authorise  or  prohibit  direct  or  indirect,  temporary  or 
permanent reproductions of a work or other protected subject matter by any means and in any 
form, in whole or in part (Article 2 of the InfoSoc Directive). 

"Distribution right": the right to authorise or prohibit any form of distribution to the public 
of  the  original  or  copies  of  a  work  or  other  protected  subject  matter  by  sale  or  otherwise 
(Article 4 of the InfoSoc Directive and Article 9 of the Rental and Lending Directive). 

"Right  of  communication  to  the  public":  the  right  to  authorise  or  prohibit  any 
communication to the public of a work or other protected subject matter by wire or wireless 
means  (includes  acts  such  as  broadcasting).  Recognised  as  a  broad  exclusive  right 
encompassing the making available right (see below) to authors (Article 3(1) of the InfoSoc 
Directive); of a more limited scope for other rightholders (Article 8 of the Rental and Lending 
Directive). 

"Right  of  making  available":  the right  to  authorise  or  prohibit  the  making  available to  the 
public of a work or other protected subject matter in such a way that members of the public 
may  access  them  from  a  place  and  at  a  time  individually  chosen  by  them  (Article  3  of  the 
InfoSoc Directive). 

"Rental  and  lending  right":  the  right  to  authorise  or  prohibit  the  rental  or  lending  of  the 
original  or  copies  of  a  work  or  other  protected  subject  matter  (Article  3  of  the  Rental  and 
Lending Directive). 

"Music  publisher":  music  publishers  market  musical  works  and  provide  authors  with  a 
number of other services. Publishers usually track various royalty payments, monitor uses and 
license certain uses on behalf of authors. They often pay the author an advance on royalties 
and promote the work, e.g. by creating "demo" recordings or finding performers and record 
producers  which  might  be  interested  in  the  work.  In  return,  publishers  obtain  a  share  of 
royalties from rights and/or a transfer of certain rights e.g. mechanical rights. 

"Record  producer"  (also  referred  to  as  "phonogram  producer”):  record  producers  take  the 
initiative  and  arrange  the  recording  of  music  performances  as  well  as  the  marketing  and 
distribution of those recordings.  

"Sports organiser": an entity who is entitled to exploit economic rights into sporting events, 
including  rights  to  organise  or  authorise  recording  of  sporting  events  and  to  broadcast  or 
authorise broadcasting of such recordings. 

"Premium  sports  content":  content  which  is  considered  as  a  vital  input  for  broadcasting 
services because they attract substantial audiences and thus generate substantial revenues for 
sports organisers. While certain sporting events are globally considered as "premium content" 
because they attract mass audiences (e.g. Olympic Games or certain football matches), there 
are  also  significant  differences  depending  on  national  preferences  (e.g.  tennis,  rugby  or 
Formula  1  events  are  considered  as  premium  content  in  some  countries  and  generate 
significant audiences as well as substantial revenues for sports organisers, while in others they 
do not). 

86