Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on ensuring 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

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   EUROPEAN COMMISSION  Brussels, 9.12.2015  COM(2015) 627 final 2015/0284 (COD)   Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on ensuring the cross-border portability of online content services in the internal market (Text with EEA relevance) {SWD(2015) 270 final} {SWD(2015) 271 final}  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  internet  has  become  a  key  content  distribution  channel.  In  2014,  49 %  of  European 
internet  users  accessed  music,  video  and  games  online1  and  this  is  expected  to  grow  in  the 
future. Tablets and smartphones further facilitate such uses with 51% of individuals in the EU 
using a mobile device to connect to the internet2. 

The rapid take up of online content services and increasing use of portable devices, including 
across  borders,  means  that  Europeans  today  expect  to  use  online  content  services  from 
wherever they are in the Union. One of the key objectives of the Commission's Digital Single 
Market strategy3 is to allow for wider online access to works by users across the EU. 

Cross-border  portability  concerns  online  content  services  to  which  consumers  have  lawful 
access,  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 the EU. Consumer demand for 
the  cross-border  portability  of  online  content  services  is  substantial  and  expected  to  grow4. 
However,  when  people  travel  in  the  EU,  they  frequently  cannot  enjoy  such  cross-border 
portability  or  can  do  so  only  to  a  limited  extent.  The  absence  of,  or  problems  with,  cross-
border portability of online content services in the EU results from the licensing practices of 
right holders and/or the commercial practices of service providers. 

This proposal aims to remove barriers to cross-border portability so that the needs of users can 
be met more effectively as well as promoting innovation for the benefit of consumers, service 
providers and right holders. The proposal introduces a common approach in the Union while 
maintaining  a  high  level  of  protection  for  right  holders.  In  doing  so,  it  contributes  to  the 
functioning of the internal market as an area without internal borders, where the freedom to 
provide and to receive services shall be ensured. 

• 

Consistency with existing policy provisions in the policy area 

The Digital Single Market Strategy puts forward a range of  initiatives with the objective of 
creating an internal market for digital content and services. This proposal is among the first of 
the initiatives under the Strategy. It will be followed by other initiatives in the areas identified 
in the Strategy, including in the domain of copyright. Removing the obstacles to cross-border 
portability is a first significant step that addresses a specific obstacle to cross-border access to 
content  which  is  important  for  consumers.  A  targeted  early  intervention  in  this  area  is  also 
timely  given  that  consumers  are  nearing  the  date  where  there  will  be  an  end  to  roaming 
charges for travelers within the EU5.  

This proposal aims to establish where, for the purposes of cross-border portability within the 
scope  of  this  proposal,  the  act  of  exploitation  of  works  and  other  protected  subject  matter 

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Eurostat, ‘Community survey on ICT usage in households and by individuals’, 2014. 
Eurostat, 'Information society statistics - households and individuals'. 
COM(2015) 192 final. 
In a recent survey, 33 % of respondents (a figure rising to 65 % in the 15-24 age bracket) who do not 
currently  have  a  paying  subscription  for  accessing  content  said  that  if  they  were  to  take  up  such  a 
subscription they would find it important to be able access it while travelling or staying temporarily in 
another  Member  State  (‘Flash  Eurobarometer  411  —  Cross-border  access  to  online  content’,  August 
2015). 
http://europa.eu/rapid/press-release_IP-15-5265_en.htm  

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takes  place  for  the  purposes  of  Directive  96/9/EC6,  Directive  2001/29/EC7,  Directive 
2006/115/EC8 and Directive 2009/24/EC9. 
The  proposal  complements  Directive  2006/123/EC  on  services  in  the  internal  market10
  and 
Directive  2000/31/EC  on  certain  legal  aspects  of  information  society  services,  in  particular 
electronic commerce, in the Internal Market11. 

This  proposal  also  contributes  to  the  improvement  of  the  cross-border  reach  of  audiovisual 
media services and hence complements Directive 2010/13/EU12. 

• 

Consistency with other Union policies 

According to Article 167 of the Treaty on the Functioning of the European Union (TFEU), the 
Union shall take cultural aspects into account in its action under the Treaties. This proposal 
would  enhance  access  to  cultural  content  as  it  would  allow  consumers  to  have  a  better 
experience of the content through easier access while travelling in the EU. 

This proposal contributes to promoting the interests of consumers and thus is consistent with 
the EU policies in the field of consumer protection and Article 169 TFEU. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  proposal  is  based  on  Article  114  TFEU.  This  Article  confers  on  the  EU  the  power  to 
adopt measures which have  as their object the establishment and functioning of the internal 
market. This includes the freedom to provide and to receive services. 

The online content services within the scope of the proposal predominantly rely on copyright 
and related rights that have been harmonised at Union level. The EU has harmonised the area 
of  copyright  as  regards  the  rights  which  are  relevant  for  online  dissemination  of  works  and 
other  protected  subject  matter  (notably  the  rights  of  reproduction,  communication  to  the 
public and making available). 

The  present  initiative  concerns  the  exercise  of  these  harmonised  rights  across  borders  as 
concerns  cross-border  portability  of  online  content  services.  As  this  would  affect  the  rights 
harmonised by the EU copyright framework, it would have to rely on Article 114 TFEU as a 
legal base where the proposed instrument is a regulation. 

Certain  elements  of  online  content  services,  such  as  sporting  events,  news  and  political 
debate, are not necessarily protected by copyright. However, when such content is included in 
transmissions by any means including by broadcasting organisations, right holders can invoke 
related rights harmonised at EU level such as the right of reproduction or the right of making 
available.  Moreover,  transmissions  of  sporting  events,  news  and  current  events  are  often 
accompanied by copyright-protected elements such as opening or closing video sequences or 
accompanying music. Such elements fall under the EU harmonised framework. Also, certain 

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Directive 96/9/EC on the legal protection of databases, OJ L 077, 27.03.1996, p. 20-28. 
Directive  2001/29/EC  on  the  harmonisation  of  certain  aspects  of  copyright  and  related  rights  in  the 
information society, OJ L 167, 22.6.2001, p. 10–19. 
Directive 2006/115/EC 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. 28–35. 
Directive 2009/24/EC on the legal protection of computer programs, OJ L 111, 5.5.2009, p. 16–22. 
OJ L 376, 27.12.2006, p. 36–68. 
OJ L 178, 17.07.2000, p. 1-16. 
OJ L 95, 15.4.2010, p. 1–24. 

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aspects  of  such  transmissions  relating  to  events  of  major  importance  for  society  or  of  high 
interest to the public have been harmonised by Directive 2010/13/EU. In order to fully deliver 
to consumers the benefits of cross-border portability it is important to include all elements of 
such transmissions in the proposal. 

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Subsidiarity (for non-exclusive competence)  

The portability of online content services is in its essence an issue of a cross-border nature. 
Moreover, as copyright and rights related to copyright have been harmonised at EU level, it is 
only  the  Union  that  can  amend  the  legal  framework.  Member  States,  therefore,  cannot 
intervene by legislation in order to ensure cross-border portability. Therefore, such action can 
only be taken at EU level. 

In terms of effectiveness, only an EU intervention can ensure that conditions for consumers’ 
access to online content services do not vary across the European Union. EU action will also 
produce  clear benefits to right  holders  and  service providers by creating uniform conditions 
for the provision of cross-border portability of online content services across Europe. It will 
ensure  greater  legal  certainty  and  would  do  away  with  the  need  to  renegotiate  the  whole 
network of existing licences for the purposes of cross-border portability. 

• 

Proportionality 

The  proposal  aims  to  facilitate  the  provision  of  the  cross-border  portability  of  the  online 
content service (a provision localising the place of provision as well as the access to and use 
of the service) and imposes an obligation, under certain conditions, on the service provider to 
enable the cross-border portability. It does not extend beyond what is necessary to solve the 
identified problems. It does not substantially affect the licensing of rights and therefore has a 
limited effect on the business models of right holders and service providers. The proposal will 
not  oblige  right  holders  and  service  providers  to  renegotiate  contracts  as  it  will  make 
unenforceable  any  provisions  in  contracts  contrary  to  the  obligation  to  provide  for  cross-
border portability. 

Moreover, the proposal does not impose on service providers any disproportionate cost. The 
proposal would not require that the provider of online content services takes any measures to 
ensure the quality of delivery of such services outside the Member State of residence of the 
subscriber.  Also,  the  proposal  would  not  oblige  service  providers  that  offer  services  free  of 
charge  to  provide  for  cross-border  portability  where  they  do  not  verify  the  subscriber's 
Member State of residence as such requirement would involve a major change to the way they 
deliver their services and could involve disproportionate costs. 

• 

Choice of the instrument 

A regulation would be directly applicable in Member States and would enter into force at the 
same  time.  This  instrument  would  be  the  best  to  achieve  the  objective  of  ensuring  the 
portability  of  online  content  across  the  EU.  It  would  allow  a  uniform  application  of  the 
portability  rules  across  Member  States  and  would  guarantee  that  right  holders  and  online 
service providers from different Member States are subject to the exact same rules. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Not applicable. 

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• 

Stakeholder consultations 

A  large  public  consultation  on  the  review  of  EU  copyright  rules  was  conducted  from 
December 2013 to March 2014. In the replies to the questions related to the territoriality of 
copyright,  different  groups  of  stakeholders  explicitly  raised  the  issue  of  cross-border 
portability.  In  2013,  the  Commission  conducted  a  stakeholder  dialogue  "Licences  for 
Europe"13. One working group focused specifically on the issue of cross-border portability. 

In the first ten months of 2015, the Commission had extensive discussions with stakeholders 
(consumers,  right  holders,  sports  organisations,  broadcasters,  online  service  providers), 
including  through  specific  stakeholders  workshops,  to  assess  the  impact  of  a  possible  EU 
intervention in this area, including discussing the available options. 

To summarise the views of the affected stakeholders concerning the proposal, 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 and 
service  providers  are  not  against  cross-border  portability  of  online  content  services  but  are 
usually  in  favour  of  industry-led  solutions  and  soft  law  instruments  as  opposed  to  legal 
obligations in this area. 

While  a  non-binding  instrument  such  as  a  recommendation  encouraging  cross-border 
portability  could  support  market  developments  in  this  area,  the  effectiveness  of  such 
instrument could be very limited. It would depend on the commercial decisions taken by the 
different market players. Thus it would not lead to homogeneous implementation and it would 
not be sufficient to ensure that EU consumers are offered the same conditions as regards the 
portability of online content services across the Union. 

The proposal takes on board a number of concerns signalled by stakeholders, in particular: not 
imposing a duty to provide portability on those service providers that deliver services free of 
charge and without authentication of the consumer's Member State of residence; not obliging 
service providers to deliver the service across borders with the same quality in the delivery as 
in  the  Member  State  of  residence;  leaving  for  the  parties  to  agree  on  the  conditions  for 
ensuring that the service is provided in accordance with the Regulation. 

Collection and use of expertise 

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Legal14 and economic15 studies have been conducted in recent years on various aspects of the 
existing copyright rules, including as regards the territoriality of EU copyright rules as applied 
to online transmissions.  

Further  studies  have  been  conducted  on  the  impacts  of  digitisation  on  the  production  and 
distribution  of content, as  well as  on the cross-border  access  to  content16. Studies  have  also 
been carried out concerning sports17. 

Impact assessment 

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An  impact  assessment  was  carried  out  for  this  proposal18.  On  30  October  2015,  the 
Regulatory Scrutiny Board gave a positive opinion to the impact assessment, on condition that 

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See https://ec.europa.eu/licences-for-europe-dialogue/en/content/about-site 
http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf 
http://ec.europa.eu/internal_market/copyright/docs/studies/1403_study1_en.pdf 
http://is.jrc.ec.europa.eu/pages/ISG/DigEcocopyrights.html; 
http://ec.europa.eu/sport/news/2014/docs/study-sor2014-final-report-gc-compatible_en.pdf 
http://ec.europa.eu/sport/library/studies/study-contribution-spors-economic-growth-final-rpt.pdf  
SWD(2015) 271, SEC(2015) 484 

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certain  elements  of  the  report  were  improved.  The  final  Impact  Assessment  takes  these 
comments on board. 

The final impact assessment examines the baseline scenario (no policy intervention) and three 
policy  options.  Option  1  consisted  in  guidance  to  stakeholders  by  the  Commission 
encouraging  online  content  service  providers  to  provide  for  cross-border  portability  of  their 
services across the EU. Option 2 entailed an EU intervention which would establish that the 
provision,  access  and  use  of  an  online  content  service  in  a  cross-border  portability  mode 
would be deemed to occur in the consumer's Member State of residence. Option 3, in addition 
to  the  above  mechanism,  (i)  would  impose  an  obligation  on  providers  of  online  content 
services to ensure  cross-border portability  of such services and (ii) would  establish that any 
provisions in contracts limiting cross-border portability shall be unenforceable. 

From  the  perspective  of  consumers,  right  holders  and  service  providers,  Option  3  would  be 
the most effective in meeting the identified objective. Under the baseline scenario and Option 
1, right holders in the audiovisual sector and, to a lesser extent, for premium sports content are 
likely to be reluctant to allow for the portability of their content. Under the baseline scenario, 
Options  1  and  2,  service  providers  would  continue  to  be  able  to  restrict  cross-border 
portability and many of them would continue to encounter problems (contractual restrictions) 
when  wanting  to  offer  it.  Both  right  holders  and  service  providers  would  have  higher 
transaction  costs  to  renegotiate  their  network  of  licensing  agreements.  Under  these  options, 
the transition to the cross-border portability would take longer. Also, these options would not 
ensure homogeneous services to consumers. Only Option 3 would effectively ensure that the 
cross-border  portability  feature  is  offered  and  the  demand  of  consumers  is  met.  Therefore, 
Option 3 was considered the best policy choice. 

The  preferred  option  would  respond  to  consumers'  expectations.  Service  providers  would 
benefit  from  the  mechanism  establishing  the  localisation  of  the  service  for  purposes  of 
portability  and  be  able  to  better  respond  to  their  customers'  needs.  As  concerns  content 
industries, the most affected, in terms of how the content is licensed, would be the audiovisual 
and  premium  sports  content  sectors.  However,  because  the  portability  of  online  content 
services does not extend the range of users of the service and as such does not challenge the 
territorial exclusivity of licences, the impact on the industry is expected to be marginal. 

Potential  costs  can  be  divided  between  those  costs  directly  related  to  the  intervention,  i.e. 
service providers' costs of authentication of subscribers' Member State of residence, and costs 
which  may  arise  but  are  only  indirectly  related  to  the  intervention,  i.e.  costs  of  adapting 
licences  to  the  new  rules  and  service  providers'  costs  related  to  adapting  the  technical 
infrastructure. Such technical 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.  It  is  difficult  to  estimate  costs  linked  to  contractual  arrangements.  However,  the 
proposal will not require renegotiating the contracts. The proposal does not set requirements 
with  regard to  the  quality  of  delivery  of  the  service  in  a  cross-border  portability  mode  so it 
does not impose any costs in that respect (service providers remain free to do so voluntary or 
commit to it in contracts with consumers or right holders). 

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Regulatory fitness and simplification 

The  proposal  applies  equally  to  all  enterprises,  including  micro-enterprises  and  SMEs.  All 
enterprises  can  benefit  from  the  mechanism  establishing  the  localisation  of  the  service  for 
purposes  of  portability  set  out  by  the  proposal.  Exempting  SMEs  from  the  rules  could 
undermine the efficiency of the measure, as many online service providers are SMEs. As the 
proposal does not entail any substantial costs, there is no need to minimise compliance costs 
for micro-enterprises or SMEs. 

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The proposal will have positive effects on competitiveness as it will help innovation in online 
content services and attract more consumers to them. The proposal will not have any impact 
on international trade. 

The proposal will promote online use of content services. It concerns the online environment, 
because  this  is  where  the  demand  for  portability  predominantly  arises.  The  proposal  will 
promote  innovation  and  progress  in  the  market  because  it  applies  to  all  online  content 
services,  independently  of  the  devices  or  technologies  used.  Therefore,  the  proposal  takes 
account of new technological developments and is "digital and internet ready". 

• 

Fundamental rights 

The proposal will have a limited 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).  The  measure  would  be  justified  in  view  of  the  Treaty  fundamental  freedom  to 
provide  and  receive  services  across  borders.  Restricting  the  above-mentioned  freedoms 
(through the mechanism establishing the localisation of the service for purposes of portability, 
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 in the internal market. 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no impact on the European Union budget. 

5. 

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OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The process of monitoring the impacts of the proposal will consist of two phases. 

The first phase will start right after the adoption of the legislative act and continue until the 
start  of  its  application.  It  will  focus  on  how  the  Regulation  is  put  in  place  in  the  Member 
States by the market participants in order to ensure a consistent  approach. The Commission 
will  organise  meetings  with  Member  States  representatives  and  the  relevant  stakeholders  to 
see how to help the transition to the new rules. 

The second phase would start from the date of the application of the Regulation and would 
focus on effects of the rules. This monitoring will pay particular attention to the impacts on 
SMEs and consumers. 

• 

Detailed explanation of the specific provisions of the proposal 

Article 1 specifies the objective and the scope of the proposal. The proposal will introduce a 
common approach to ensuring that subscribers to online content services in the Union, which 
are  delivered  on  a  portable  basis,  can  receive  these  services  when  temporarily  present  in 
another Member State (cross-border portability).  

Article  2  contains  definitions.  These  definitions  will  need  to  be  interpreted  in  a  uniform 
manner in the EU. It defines a "subscriber", i.e. a consumer who, on the basis of a contract for 
the  provision  of  an  online  content  service,  may  access  and  use  such  service  in  the  Member 
State of his or her residence. A "consumer" is defined as any natural person who, in contracts 
covered by this Regulation, is acting for purposes which are outside his or her trade, business, 
craft or profession.  

Article  2  also  provides  for  the  definitions  of  a  "Member  State  of  residence",  "temporarily 
present",  "online  content  service"  and  "portable".  A  "Member  State  of  residence"  is  the 

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Member State in which the subscriber habitually resides. "Temporarily present" means that a 
subscriber is present in a Member State other than his or her Member State of residence. An 
"online content service" is covered by the proposal when: (i) the service is lawfully provided 
online in the Member State of residence; (ii) the service is provided on a portable basis; (iii) 
the service is an audiovisual media service within the meaning of Directive 2010/13/EU of the 
European Parliament and of the Council19 or a service whose main feature is the provision of 
access to works, other subject matter or transmissions of broadcasting organisations. For the 
purpose  of  this  Regulation  "portable"  means  that  subscribers  can  effectively  access  and  use 
the online content service in the Member State of residence without a limitation to a specific 
location. Two scenarios are covered as regards online content services: (i) services which are 
provided for payment of money (directly or indirectly); and (ii) services which are provided 
without  payment  of  money  provided  that  the  subscriber's  Member  State  of  residence  is 
verified by the service provider. An example of indirect payment is when a subscriber pays 
for a package of services which combines a telecommunications service and an online content 
service  provided  by  another  service  provider.  If  a  subscriber  receives  an  online  content 
service without payment of money, the provider will only be obliged to enable the subscriber 
to  enjoy  cross-border  portability  if  the  provider  verifies  the  subscriber's  Member  State  of 
residence.  Therefore, if, for example, a consumer just accepts  the  terms and conditions  of a 
free of charge online content service but does not register on a website of such service (and 
hence  the  provider  does  not  verify  the  Member  State  of  residence  of  such  a  consumer),  the 
service provider will not be obliged to provide cross-border portability for such service.  

Article  3  establishes  the  obligation  for  the  provider  to  enable  a  subscriber  to  use  the  online 
content  service  while  the  subscriber  is  temporarily  present  in  another  Member  State.  This 
applies to the same content, on the same range and number of devices and the same range of 
functionalities as offered in the Member State of residence. However, this obligation does not 
extend to any quality requirements applicable to the delivery of such service when the service 
is  provided  in  the  Member  State  of  residence.  In  cross-border  portability  scenarios,  the 
provider shall not be liable if the quality of delivery of the service is lower, for instance due to 
limited internet connection. Nevertheless, if the provider expressly agrees to guarantee certain 
quality  of  delivery  to  subscribers  while  temporarily  present  in  other  Member  States,  the 
provider shall be bound by such agreement. Also, this Regulation will oblige the provider to 
inform the subscriber on the quality of delivery of the online content service when accessed 
and used in a Member State other than the Member State of residence. 

Article  4  sets  out  a  mechanism  establishing  the  localisation  of  the  service  for  purposes  of 
portability: the provision as well as the access to and use of the service by a subscriber who is 
temporarily present in another Member State is deemed to occur solely in the Member State 
of  residence.  For  the  licensing  of  copyright  and  related  rights,  this  means  that  the  relevant 
copyright  acts,  which  occur  when  the  service  is  provided  to  consumers  on  a  basis  of  cross-
border  portability,  are  deemed  to  occur  solely  in  the  Member  State  of  residence.  This 
provision applies for all other purposes linked to the provision of as well as the access to and 
use of the service in a cross-border portability mode. 

Further, Article 5 sets out that any contractual terms contrary to the cross-border portability 
obligation, in particular those which limit either consumer's possibilities as to the cross-border 
portability of his or her online content services or service provider's ability to deliver it, shall 
be  unenforceable.  Further,  any  contractual  terms  contrary  to  the  legal  mechanism  which 

19 

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. 

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enables service providers to comply with the cross-border portability obligation shall also be 
unenforceable. This applies to all contractual arrangements, including between right  holders 
and  service  providers  as  well  as  between  service  providers  and  their  customers.  However, 
right holders may require that the service provider makes use of means in order to verify that 
the service is provided in conformity with  the regulation. The proposal sets out a safeguard 
that  such  required  means  shall  be  reasonable  and  shall  not  go  beyond  what  is  necessary  in 
order to achieve their purpose.  

Article 6 provides that the processing of personal data carried out within the framework of the 
Regulation  shall  be  carried  out  in  compliance  with  Directive  95/46/EC  and  Directive 
2002/58/EC.  

Article 7 sets out  that the Regulation shall  also apply to  any contracts concluded  and rights 
acquired  before  the  date  of  the  application  of  the  Regulation  if  they  are  relevant  for  the 
provision of the service, the access to or the use of the service. 

Article 8 sets out that the Regulation shall apply six months after its publication in the Official 
Journal. 

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2015/0284 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on ensuring the cross-border portability of online content services in the internal market 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee20, 
Having regard to the opinion of the Committee of the Regions21, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

Since  the  internal  market  comprises  an  area  without  internal  frontiers  relying,  inter 
alia,  on  the  free  movement  of  services  and  persons,  it  is  necessary  to  provide  that 
consumers  can  use  online  content  services  which  offer  access  to  content  such  as 
music, games, films or sporting events not only in their Member State of residence but 
also  when  they  are  temporarily  present  in  other  Member  States  of  the  Union. 
Therefore,  barriers  that  hamper  access  and  use  of  such  online  content  services  cross 
border should be eliminated. 

The technological development leading to a proliferation of portable devices such as 
tablets  and smartphones  increasingly  facilitates  the  use  of  online  content  services  by 
providing  access  to  them  regardless  of  the  consumers'  location.  There  is  a  rapidly 
growing demand on the part of consumers for access to content and innovative online 
services not only in their home country but also when they are temporarily present in 
another Member State of the Union. 

Consumers increasingly enter into contractual arrangements with service providers for 
the  provision  of  online  content  services.  However,  consumers  that  are  temporarily 
present in another Member State of the Union often cannot access and use the online 
content services that they have acquired the right to use in their home country.  

There  are  a  number  of  barriers  which  hinder  the  provision  of  these  services  to 
consumers  temporarily  present  in  another  Member  State.  Certain  online  services 
include content such as music, games or films which are protected by copyright and/or 
related rights under Union law. In particular, the obstacles to cross-border portability 

20 
21 

OJ C , , p. . 
OJ C , , p. . 

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of  online  content  services  stem  from  the  fact  that  the  rights  for  the  transmission  of 
content  protected  by  copyright  and/or  related  rights  such  as  audiovisual  works  are 
often  licensed  on  a  territorial  basis  as  well  as  from  the  fact  that  online  service 
providers may choose to serve specific markets only. 

The  same  applies  to  other  content  such  as  sporting  events  which  is  not  protected  by 
copyright  and/or  related  rights  under  Union  law  but  which  may  be  protected  by 
copyright,  related  rights  or  by  virtue  of  other  specific  legislation  under  national  law 
and  which  is  often  also  licensed  by  organisers  of  such  events  or  offered  by  online 
service providers on a territorial basis. Transmissions of such content by broadcasting 
organisations  would  be  protected  by  related  rights  which  have  been  harmonised  at 
Union  level.  In  addition,  transmissions  of  such  content  often  include  copyright-
protected elements such as music, opening or closing video sequences or graphics. In 
addition, certain aspects of such transmissions relating to events of major importance 
for  society  or  events  of  high  interest  to  the  public  for  the  purpose  of  short  news 
reports,  have  been  harmonised  by  Directive  2010/13/EU  of  the  European  Parliament 
and  of  the  Council22.  Finally,  audiovisual  media  services  within  the  meaning  of 
Directive  2010/13/EU  include  services  which  provide  access  to  content  such  as 
sporting events, news or current events. 

Therefore,  increasingly,  online  content  services  are  marketed  in  a  package  in  which 
content which is not protected by copyright and/or related rights is not separable from 
content  which  is  protected  by  copyright  and/or  related  rights  without  substantially 
lessening  the  value  of  the  service  provided to  consumers.  This  is especially the  case 
with  premium  content  such  as  sporting  or  other  events  of  significant  interest  to 
consumers. In order to enable service providers to deliver to consumers full access to 
their online content services, it is indispensable that this Regulation also covers such 
content  used  by  online  content  services  and  therefore  that  it  applies  to  audiovisual 
media services in the meaning of Directive 2010/13/EU as well as to transmissions of 
broadcasting organisations in their entirety. 

The rights  in works  and other  protected subject  matter  are harmonised,  inter alia, in 
Directive  96/9/EC  of  the  European  Parliament  and  of  the  Council23,  Directive 
2001/29/EC of the European Parliament and of the Council24, Directive 2006/115/EC 
of  the  European  Parliament  and  of  the  Council25  and  in  Directive  2009/24  of  the 
European Parliament and of the Council26. 

Therefore,  providers  of  online  content  services  that  make  use  of  works  or  other 
protected  subject-matter,  such  as  books,  audiovisual  works,  recorded  music  or 
broadcasts must have the rights to use such content for the relevant territories. 

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. 
Directive  96/9/EC  of  the  European  Parliament  and  of  the  Council  of  11  March  1996  on  the  legal 
protection of databases OJ L 077, 27.03.1996, p. 20-28. 
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. 10–19. 
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. 28–35. 
Directive  2009/24/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2009  on  the  legal 
protection of computer programs OJ L 111, 5.5.2009, p. 16–22. 

(5) 

(6) 

(7) 

(8) 

22 

23 

24 

25 

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(9) 

The  transmission  by  the  online  service  provider  of  content  that  is  protected  by 
copyright  and  related  rights  requires  the  authorisation  of  the  relevant  right  holders 
such  as  authors,  performers,  producers  or  broadcasting  organisations  for  the  content 
that  would  be  included  in  the  transmission.  This  is  equally  true  when  such 
transmission  takes  place  for  the  purpose  of  allowing  a  consumer  to  carry  out  a 
download in order to use an online content service. 

(10)  The  acquisition  of  a  licence  for  the  relevant  rights  is  not  always  possible,  notably 
when  rights  in  content  are  licensed  on  an  exclusive  basis.  In  order  to  ensure  the 
territorial  exclusivity,  online  service  providers  often  undertake,  in  their  licence 
contracts with right holders, including broadcasting organisations or events organisers, 
to prevent their subscribers from accessing and using their service outside the territory 
for  which  the  service  provider  holds  the  licence.  These  contractual  restrictions 
imposed on service providers require providers to take measures such as disallowing 
access  to  their  services  from  IP  addresses  located  outside  the  territory  concerned. 
Therefore,  one  of  the  obstacles  to  the  cross-border  portability  of  online  content 
services is to be found in the contracts concluded between the online service providers 
and their subscribers, which in turn reflect the territorial restriction clauses included in 
contracts concluded between those service providers and right holders. 

(11) 

In  addition,  the  Court  held  in  Joined  cases  C-403/08  and  C-429/08,  Football 
Association  Premier  League  and  Others,  EU:C:2011:631,  that  certain  restrictions  to 
the  provision  of  services  cannot  be  justified  in  light  of  the  objective  of  protecting 
intellectual property rights. 

(12)  Therefore, the objective of this Regulation is to adapt the legal framework in order to 
ensure  that  the  licensing  of  rights  no  longer  presents  barriers  to  cross-border 
portability of online content services in the Union and that the cross-border portability 
can be ensured. 

(13)  This  Regulation  should,  therefore,  apply  to  online  content  services  that  a  service 
provider,  after  having  obtained  the  relevant  rights  from  right  holders  in  a  given 
territory, provides to its subscribers on the basis of a contract, by any means including 
streaming,  downloading  or  any  other  technique  which  allows  use  of  that  content.  A 
registration  to  receive  content  alerts  or  a  mere  acceptance  of  HTML  cookies  should 
not  be  regarded  as  a  contract  for  the  provision  of  online  content  service  for  the 
purposes of this Regulation. 

(14)  An  online  service  which  is  not  an  audiovisual  media  service  within  the  meaning  of 
Directive 2010/13/EU and which uses works, other subject matter or transmissions of 
broadcasting organisations in a merely ancillary manner should not be covered by this 
Regulation. Such  services  include websites  that  use  works or  other  protected  subject 
matter  only  in  an  ancillary  manner  such  as  graphical  elements  or  music  used  as 
background,  where  the  main  purpose  of  such  websites  is,  for  example,  the  sale  of 
goods. 

(15)  This  Regulation  should  apply  only  to  online  content  services  which  subscribers  can 
effectively access and use in the Member State in which they habitually reside without 
being limited to a specific location, as it is not appropriate to require service providers 
that do not offer portable services in their home country to do so across borders. 

(16)  This  Regulation  should  apply  to  online  content  services  which  are  provided  against 
payment of money. Providers of such services are in a position to verify the Member 
State  of  residence  of  their  subscribers.  The  right  to  use  an  online  content  service 

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should  be  regarded  as  acquired  against  payment  of  money  whether  such  payment  is 
made directly to the provider of the online content service, or to another party such as 
a provider offering a package combining a telecommunications service and an online 
content service operated by another provider. 

(17)  Online  content  services  which  are  provided  without  payment  of  money  are  also 
included in the scope of this Regulation to the extent that providers verify the Member 
State  of  residence  of  their  subscribers.  Online  content  services  which  are  provided 
without the payment of money and whose providers do not verify the Member State of 
residence  of their subscribers should be outside the scope of this Regulation as  their 
inclusion  would  involve  a  major  change  to  the  way  these  services  are  delivered  and 
involve  disproportionate  costs.  As  concerns  verification  of  the  subscriber's  Member 
State  of residence,  information  such  as  a  payment  of  a  licence  fee  for  other  services 
provided in the Member State of residence, the existence of a contract for internet or 
telephone  connection,  IP  address  or  other  means  of  authentication,  should  be  relied 
upon, if they enable the provider to have reasonable indicators as to the Member State 
of residence of its subscribers. 

(18) 

In order to ensure the cross-border portability of online content services it is necessary 
to require that online service providers enable their subscribers to use the service in the 
Member  State  of  their  temporary  presence  by  providing  them  access  to  the  same 
content on the same range and number of devices, for the same number of users and 
with  the  same  range  of  functionalities  as  those  offered  in  their  Member  State  of 
residence.  This  obligation is  mandatory  and therefore the parties may not  exclude it, 
derogate  from  it  or  vary  its  effect.  Any  action  by  a  service  provider  which  would 
prevent the subscriber from accessing or using the service while temporarily present in 
a Member State, for example restrictions to the functionalities of the service or to the 
quality  of  its  delivery,  would  amount  to  a  circumvention  of  the  obligation  to  enable 
cross-border portability of online content services and therefore would be contrary to 
this Regulation. 

(19)  Requiring  that  the  delivery  of  online  content  services  to  subscribers  temporarily 
present in Member States other than their Member State of residence be of the same 
quality  as  in  the  Member  State  of  residence  could  result  in  high  costs  for  service 
providers and thus ultimately for subscribers. Therefore, it is not appropriate for this 
Regulation to require that the provider of an online content service take measures to 
ensure quality of delivery of  such  services beyond the quality available via the local 
online  access  chosen  by  a  subscriber  while  temporarily  present  in  another  Member 
State.  In  such  cases  the  provider  shall  not  be  liable  if  the  quality  of  delivery  of  the 
service  is  lower.  Nevertheless,  if  the  provider  expressly  agrees  to  guarantee  certain 
quality  of  delivery  to  subscribers  while  temporarily  present  in  other  Member  States, 
the provider shall be bound by such agreement. 

(20) 

In order to ensure that providers of online content services comply with the obligation 
to  provide  cross-border  portability  of  their  services  without  acquiring  the  relevant 
rights in another Member State, it is necessary to stipulate that those service providers 
which  lawfully  provide  portable  online  content  services  in  the  Member  State  of 
residence  of  subscribers  are  always  entitled  to  provide  such  services  to  those 
subscribers when they are temporarily present in another  Member State. This  should 
be achieved by establishing that the provision, the access to and the use of such online 
content  service  should  be  deemed  to  occur  in  the  Member  State  of  the  subscriber's 
residence. 

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(21)  For  the  licensing  of  copyright  and  related  rights,  this  means  that  relevant  acts  of 
reproduction,  communication  to  the  public  and  making  available  of  works  and  other 
protected subject-matter, as well as the acts of extraction or re-utilization in relation to 
databases protected by sui generis rights, which occur when the service is provided to 
subscribers  when  they  are  temporarily  present  in  a  Member  State  other  than  their 
Member  State  of  residence,  should  be  deemed  to  occur  in  the  subscribers'  Member 
State  of  residence.  The  service  providers,  therefore,  should  be  deemed  to  carry  out 
such acts on the basis of the respective authorisations from the right holders concerned 
for  the  Member  State  of  residence  of  these  subscribers.  Whenever  service  providers 
can carry out acts of communication to the public or reproduction in the Member State 
of the subscriber on the basis of an authorisation from the right holders concerned, a 
subscriber who is temporarily present in a Member State other than his Member State 
of  residence  should  be able  to  access  and  use  the  service  and  where  necessary carry 
out any relevant acts of reproduction such as downloading which he would be entitled 
to do in his own Member State of residence. The provision of an online content service 
by a service provider to a subscriber temporarily present in a Member State other than 
his or her Member State of residence and the use of the service by such a subscriber in 
accordance  with  this  Regulation  should  not  constitute  a  breach  of  copyright  and 
related rights or any other rights relevant for the use of the content in the service. 

(22)  Service  providers  should  not  be  liable  for  breach  of  any  contractual  provisions 
contrary to the obligation to enable their subscribers to use the service in the Member 
State of their temporary presence. Therefore clauses in contracts designed to prohibit 
the  cross-border  portability  of  online  content  services  should  be 
limit 
or 
unenforceable. 

(23)  Service providers should ensure that their subscribers are properly informed about the 
conditions  of  enjoyment  of  online  content  services  in  Member  States  other  than  the 
Member State of residence of the subscribers. The Regulation enables right holders to 
require that the service provider make use of effective means in order to verify that the 
online content service is provided in conformity with this Regulation. It is necessary, 
however, to ensure that the required means are reasonable and do not go beyond what 
is necessary in order to achieve this purpose. Examples of the necessary technical and 
organisational  measures  may  include  sampling  of  IP  address  instead  of  constant 
monitoring  of  location,  transparent  information  to  the  individuals  about  the  methods 
used  for  the  verification  and  its  purposes,  and  appropriate  security  measures. 
Considering that for purposes of the verification what matters is not the location, but 
rather, in which Member State the subscriber is accessing the service, precise location 
data  should  not  be  collected  and  processed  for  this  purpose.  Similarly,  where 
authentication  of  a  subscriber  is  sufficient  in  order  to  deliver  the  service  provided, 
identification of the subscriber should not be required. 

(24)  This Regulation respects fundamental rights and observes the principles recognised in 
the  Charter  of  Fundamental  Rights  of  the  European  Union.  Accordingly,  this 
Regulation  should  be  interpreted  and  applied  in  accordance  with  those  rights  and 
principles,  in  particular  the  right  to  respect  for  private  and  family  life,  the  right  to 
protection  of  personal  data,  the  freedom  of  expression  and the  freedom  to  conduct a 
business.  Any  processing  of  personal  data  under  this  Regulation  should  respect 
fundamental  rights,  including  the  right  to  respect  for  private  and  family  life  and  the 
right  to  protection  of  personal  data  under  Articles  7  and  8  of  the  Charter  of 

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Fundamental Rights of the European Union and must be in compliance with Directives 
95/46/EC27  and  2002/58/EC28.  In  particular,  service  providers  must  ensure  that  any 
processing of personal data under this Regulation must be necessary and proportionate 
in order to achieve the relevant purpose. 

(25)  This  Regulation  should  not  affect  the  application  of  the  rules  of  competition,  and  in 
particular Articles 101 and 102 of the Treaty. The rules provided for in this Regulation 
should not be used to restrict competition in a manner contrary to the Treaty. 

(26)  Contracts under which content is licensed are usually concluded for a relatively long 
duration. Consequently, and in order to ensure that all consumers residing in the Union 
can  enjoy  the  cross-border  portability  feature  of  online  content  services  on  an  equal 
basis  in  time  and  without  any  undue  delay,  this  Regulation  should  also  apply  to 
contracts  concluded  and  rights  acquired  before  the  date  of  its  application  if  they  are 
relevant for the cross-border portability of an online content service provided after that 
date.  This  is  also  necessary  in  order  to  ensure  a  level  playing  field  for  service 
providers  operating  in  the  internal  market,  by  enabling  providers  who  concluded 
contracts with right holders for a long duration to offer cross-border portability to their 
subscribers,  independently  of  the  provider's  possibility  to  renegotiate  such  contracts. 
Moreover, 
that  when  service  providers  make 
arrangements necessary for the cross-border portability of their services, they will be 
able to offer such portability with regard to the entirety of their online content. Finally, 
it  should  also  allow  right  holders  not  having  to  renegotiate  their  existing  licensing 
contracts in order to enable the offering of the cross-border portability of services by 
providers. 

this  provision  should  ensure 

(27)  As the Regulation will therefore apply to some contracts and rights acquired before the 
date of its application, it is also appropriate to provide for a reasonable period between 
the date of entry into force of this Regulation and the date of its application allowing 
right holders and service providers to make the arrangements necessary to adapt to the 
new situation, as well as allowing service providers to amend the terms of use of their 
services. 

(28) 

In order to achieve the objective of ensuring cross-border portability of online content 
services in the Union, it is appropriate to adopt a regulation, which directly applies in 
Member  States.  This  is  necessary  in  order  to  guarantee  a  uniform  application  of  the 
cross-border portability rules across Member States and their entering into force at the 
same  time  with  regard  to  all  online  content  services.  Only  a  regulation  ensures  the 
degree  of  legal  certainty  which  is  necessary  in  order  to  enable  consumers  to  fully 
benefit from cross-border portability across the Union. 

(29)  Since the objective of this Regulation, namely the adaptation of the legal framework 
so  that  cross-border  portability  of  online  content  services  is  provided  in  the  Union, 
cannot be sufficiently achieved by Member States and can therefore, by reason of its 
scale and effects, be better achieved at Union level, the Union may adopt measures in 
accordance  with  the  principle  of  subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on 

27 

28 

Directive  95/46/EC  of  the  European  Parliament  and  of  the  Council  of  24  October  1995  on  the 
protection of  individuals with  regard  to  the  processing of  personal  data and on  the free  movement  of 
such data  OJ L 281, 23.11.1995, p. 31–50. 
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the 
processing  of  personal  data  and  the  protection  of  privacy  in  the  electronic  communications  sector 
(Directive on privacy and electronic communications) (OJ L 201, 31.07.2002, p 37), called, as amended 
by Directives 2006/24/EC and 2009/136/EC, the "e-Privacy Directive". 

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European Union. In accordance with the principle of proportionality, as set out in that 
Article, this Regulation does not go beyond what is necessary in order to achieve its 
objective.  Therefore,  this  Regulation  does  not  substantially  affect  the  way  the  rights 
are  licensed  and  does  not  oblige  right  holders  and  service  providers  to  renegotiate 
contracts. Moreover, this Regulation does not require that the provider takes measures 
to ensure the quality of delivery of online content services outside the Member State of 
residence of the subscriber. Finally, this Regulation does not apply to service providers 
who offer services without payment of money and who do not verify the subscriber's 
Member State of residence. Therefore, it does not impose any disproportionate costs, 

HAVE ADOPTED THIS REGULATION: 

Article 1 
Objective and scope 

This Regulation introduces a common approach to ensuring that subscribers to online content 
services in the Union, when temporarily present in a Member State, can access and use these 
services. 

Article 2 
Definitions 

For the purpose of this Regulation, the following definitions shall apply: 

(a) 

(b) 

(c) 

(d) 

(e) 

"Subscriber" means any consumer who, on the basis of a contract for the provision of 
an  online  content  service  with  a  provider,  may  access  and  use  such  service  in  the 
Member State of residence;  

"Consumer" means any natural person who, in contracts covered by this Regulation, 
is acting for purposes which are outside his or her trade, business, craft or profession; 

"Member  State  of  residence"  means  the  Member  State  where  the  subscriber  is 
habitually residing;  

"Temporarily present" means a presence of a subscriber in a Member State other than 
the Member State of residence; 

"Online  content  service"  means  a  service  as  defined  by  Articles  56  and  57  of  the 
Treaty on the Functioning of the European Union that a service provider is lawfully 
providing online in the Member State of residence on a portable basis and which is 
an  audiovisual  media  service  within  the  meaning  of  Directive  2010/13/EU  or  a 
service  the  main  feature  of  which  is  the  provision  of  access  to  and  use  of  works, 
other  protected  subject  matter  or  transmissions  of  broadcasting  organisations, 
whether in a linear or an on-demand manner, 

which is provided to a subscriber on agreed terms either: 

(1) 

against payment of money; or 

(2)  without  payment  of  money  provided  that  the  subscriber's  Member  State  of 

residence is verified by the provider; 

(f) 

"Portable" means  that  subscribers can  effectively  access  and  use  the online  content 
service in the Member State of residence without being limited to a specific location. 

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Article 3 
Obligation to enable cross-border portability of online content services 

(1) 

(2) 

(3) 

The  provider  of  an  online  content  service  shall  enable  a  subscriber  who  is 
temporarily present in a Member State to access and use the online content service. 

The  obligation  set  out  in  paragraph  1  shall  not  extend  to  any  quality  requirements 
applicable to the delivery of an online content service that the provider is subject to 
when  providing  this  service  in  the  Member  State  of  residence,  unless  otherwise 
expressly agreed by the provider.  

The provider of an online content service shall inform the subscriber of the quality of 
delivery of the online content service provided in accordance with paragraph 1. 

Article 4 
Localisation of the provision, the access to and the use of online content services 

The  provision  of  an  online  content  service  to,  as  well  as  the  access  to  and  the  use  of  this 
service by, a subscriber, in accordance with Article 3(1), shall be deemed to occur solely in 
the  Member  State  of  residence  including  for  the  purposes  of  Directive  96/9/EC,  Directive 
2001/29/EC, Directive 2006/115/EC, Directive 2009/24 and Directive 2010/13/EU. 

Article 5 
Contractual provisions 

(1) 

(2) 

Any contractual provisions including those between holders of copyright and related 
rights, those holding any other rights relevant for the use of content in online content 
services and service providers, as well as between service providers and subscribers 
which are contrary to Articles 3(1) and 4 shall be unenforceable. 

Notwithstanding paragraph 1, holders of copyright and related rights or those holding 
any other rights in the content of online content services may require that the service 
provider  make  use  of  effective  means  in  order  to  verify  that  the  online  content 
service is provided in conformity with Article 3(1), provided that the required means 
are  reasonable  and  do  not  go  beyond  what  is  necessary  in  order  to  achieve  their 
purpose. 

Article 6 
Protection of personal data 

The  processing  of  personal  data  carried  out  within  the  framework  of  this  Regulation 
including, in particular, for purposes of verification under Article 5(2), shall be carried out in 
compliance with Directives 95/46/EC and 2002/58/EC.  

Article 7 
Application to existing contracts and rights acquired 

This Regulation shall apply also to contracts concluded and rights acquired before the date of 
its  application  if  they  are  relevant  for  the  provision,  the  access  to  and  the  use  of  an  online 
content service in accordance with Article 3 after that date.  

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Article 8 
Final provisions 

(1) 

This  Regulation  shall  enter  into  force  on  the  twentieth  day  following  that  of  its 
publication in the Official Journal of the European Union. 

(2) 

It shall apply from [date: 6 months following the day of its publication]. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

EN 

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