Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2015/0284 (COD)**

**INFORMATION NOTE**

From: General Secretariat of the Council

**Brussels, 22 May 2017**
**(OR. en)**

**9411/17**

**CODEC 849**
**PI 65**
**RECH 199**
**EDUC 244**
**COMPET 423**
**SAN 204**
**AUDIO 69**
**CULT 67**
**DIGIT 142**
**PE 39**

To: Permanent Representatives Committee/Council

Subject: 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
– Outcome of the European Parliament's first reading
(Strasbourg, 15 to 18 May 2017)

**I.** **INTRODUCTION**

In accordance with the provisions of Article 294 of the TFEU and the joint declaration on practical

arrangements for the codecision procedure **[1]**, a number of informal contacts have taken place

between the Council, the European Parliament and the Commission with a view to reaching an

agreement on this dossier at first reading, thereby avoiding the need for second reading and

conciliation.

**1** OJ C 145, 30.6.2007, p.5

9411/17 SO/gj 1
# DRI EN

In this context, the rapporteur, Jean-Marie CAVADA (ALDE, FR) presented one compromise

amendment (amendment 54) to the proposal for Regulation, on behalf of the Committee on Legal

Affairs. This amendment had been agreed during the informal contacts referred to above.

**II.** **VOTE**

When it voted on 18 May 2017, the plenary adopted the compromise amendment (amendment 54)

to the proposal for a Regulation.

The Commission proposal as thus amended and the legislative resolution constitute the Parliament's

first-reading position **[2]**, it reflects what had been previously agreed between the institutions. The

Council should therefore be in a position to approve the Parliament's position.

The act would then be adopted in the wording which corresponds to the Parliament's position.

**2** The text of the amendment adopted and the European Parliament's legislative resolution are
set out in the Annex. The amendment is presented in the form of a consolidated text, where
changes to the Commission's proposal are highlighted in bold and italics. The symbol " ▌"
indicates deleted text.

9411/17 SO/gj 2
# DRI EN

**ANNEX**

**(18.5.2017)**

## **Cross-border portability of online content services in the internal market ***I**

**European Parliament legislative resolution of 18 May 2017 on the 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 (COM(2015)0627 – C8-0392/2015 –**
**2015/0284(COD))**

**(Ordinary legislative procedure: first reading)**

_The European Parliament_,

– having regard to the Commission proposal to Parliament and the Council (COM(2015)0627),

– having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the

European Union, pursuant to which the Commission submitted the proposal to Parliament

(C8-0392/2015),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the European Economic and Social Committee of 27 April
2016 **[3]**,

– having regard to the opinion of the Committee of the Regions of 8 April 2016 **[4]**,

– having regard to the provisional agreement approved by the committee responsible under

Rule 69f(4) of its Rules of Procedure and the undertaking given by the Council representative

by letter of 15 February 2017 to approve Parliament’s position, in accordance with Article

294(4) of the Treaty on the Functioning of the European Union,

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the report of the Committee on Legal Affairs and the opinions of the
Committee on the Internal Market and Consumer Protection, the Committee on Culture and
Education and the Committee on Industry, Research and Energy (A8-0378/2016),

**3** OJ C 264, 20.7.2016, p. 86.
**4** OJ C 240, 1.7.2016, p. 72.

9411/17 SO/gj 3
# ANNEX DRI EN

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially
amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national
parliaments.

9411/17 SO/gj 4
# ANNEX DRI EN

**P8_TC1-COD(2015)0284**

**Position of the European Parliament adopted at first reading on 18 May 2017 with a view to**

**the adoption of Regulation (EU) 2017/... of the European Parliament and of the Council on**

**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 Committee [5],

Having regard to the opinion of the Committee of the Regions [6]

Acting in accordance with the ordinary legislative procedure [7],

**5** OJ C 264, 20.7.2016, p. 86.
**6** OJ C 240, 1.7.2016, p. 72.

**7** Position of the European Parliament of 18 May 2017.

9411/17 SO/gj 5
# ANNEX DRI EN

Whereas:

(1) _**Seamless access throughout the Union to online content services that are lawfully**_

_**provided to consumers in their Member State of residence is important for the smooth**_

_**functioning of the internal market and for the effective application of the principles of**_

_**free movement of persons and services.**_ Since the internal market comprises an area

without internal borders relying, inter alia, on the free movement of _**persons and services**_,

it is necessary to _**ensure**_ that consumers can use _**portable**_ online content services which

offer access to content such as music, games, films, _**entertainment programmes**_ or sports

events, not only in their Member State of residence but also when they are temporarily

present in another Member State _**for**_ _**purposes such as leisure, travel, business trips**_ _**or**_

_**learning mobility**_ . Therefore, barriers that hamper access to and use of such online content

services _**in such cases**_ should be eliminated.

(2) The technological developments that have led to a proliferation of portable devices such as

_**laptops**_, tablets and smartphones are increasingly facilitating the use of online content

services by providing access to them regardless of the location of consumers. There is a

rapidly growing demand on the part of consumers for access to content and innovative

online services not only in their Member State of residence but also when they are

temporarily present in another Member State.

(3) Consumers increasingly enter into contractual arrangements with service providers for the

provision of online content services. However, consumers that are temporarily present in a

Member State other than their Member State of residence often cannot _**continue**_ to _**access**_

and _**use**_ the online content services that they have lawfully acquired the right to access and

use in their _**Member State of residence**_ .

9411/17 SO/gj 6
# ANNEX DRI EN

(4) There are a number of barriers which hinder the provision of online content services to

consumers temporarily present in a Member State other than their Member State of

residence. Certain online services include content such as music, games, films or

_**entertainment programmes**_ which are protected by copyright or related rights under Union

law. _**At present,**_ the barriers to cross-border portability of online content services _**differ**_

_**from one sector to another.**_ _**The**_ _**barriers**_ stem from the fact that the rights for the

transmission of content protected by copyright or related rights, such as audiovisual works,

are often licensed on a territorial basis, as well as from the fact that providers of online

content services might choose to serve specific markets only.

(5) The same applies to content, such as sports events, which is not protected by copyright or

related rights under Union law but which could be protected by copyright or related rights

under national law or by virtue of other specific national legislation and which is often also

licensed by the organisers of such events or offered by _**providers of online content services**_

on a territorial basis. Transmissions of such content by broadcasting organisations are

protected by related rights which have been harmonised at Union level. Moreover,

transmissions of such content often include copyright-protected elements such as music,

opening or closing video sequences or graphics. _**Also**_, certain aspects of transmissions of

such content, specifically those relating to broadcasting events of major importance for

society as well as to short news reports on events of high interest to the public, have been

harmonised by Directive 2010/13/EU of the European Parliament and of the Council [8] .

Finally, audiovisual media services within the meaning of Directive 2010/13/EU include

services which provide access to content such as sports events, news or current affairs.

**8** 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 (Audiovisual
Media Services Directive) (OJ L 95, 15.4.2010, p. 1).

9411/17 SO/gj 7
# ANNEX DRI EN

(6) Increasingly, online content services are marketed in a package in which content which is

not protected by copyright or related rights is not separable from content which is protected

by copyright or related rights without substantially lessening the value of the service

provided to consumers. This is especially the case with premium content such as sports

events or other events of significant interest to consumers. In order to enable _**providers of**_

_**online content services**_ to provide to consumers full access to their online content services

_**when consumers are temporarily present in a Member State other than their Member**_

_**State of residence**_, it is indispensable that this Regulation also covers such content used by

online content services and therefore that it applies to audiovisual media services within

the meaning of Directive 2010/13/EU as well as to transmissions of broadcasting

organisations in their entirety.

(7) The rights in works protected by copyright and in subject-matter protected by related rights

('works and other protected subject-matter') are harmonised, inter alia, in Directives

96/9/EC [9], 2001/29/EC [10], 2006/115/EC [11] and 2009/24/EC [12] of the European Parliament

and of the Council. _**The provisions of international agreements in the area of copyright**_

_**and related rights concluded by the Union in particular the Agreement on Trade-Related**_

_**Aspects of Intellectual Property Rights annexed as Annex 1C to the Agreement**_

_**establishing the World Trade Organization of 15 April 1994, the WIPO Copyright Treaty**_

_**of 20 December 1996, and the WIPO Performances and Phonograms Treaty of 20**_

_**December 1996, as amended, form an integral part of the Union legal order. Union law**_

_**should, insofar as is possible, be interpreted in a manner that is consistent with**_

_**international law.**_

**9** 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 _**)**_ .
**10** 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).
**11** 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).
**12** 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).

9411/17 SO/gj 8
# ANNEX DRI EN

(8) ▌It is essential that providers of online content services that make use of works or other

protected subject-matter, such as books, audiovisual works, recorded music or broadcasts

have the right to use such content for the relevant territories.

(9) The transmission by _**providers of online content services**_ of content that is protected by

copyright or related rights requires the authorisation of the relevant rightholders, such as

authors, performers, producers or broadcasting organisations, regarding the content

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.

9411/17 SO/gj 9
# ANNEX DRI EN

(10) The acquisition of a licence for relevant rights is not always possible, in particular when

rights in content are licensed on an exclusive basis. In order to ensure that territorial

exclusivity is effectively complied with, _**providers of online content services**_ often

undertake, in their licence contracts with rightholders, including broadcasting organisations

or events organisers, to prevent their subscribers from accessing and using their services

outside the territory for which the ▌providers hold the licence. Such contractual

restrictions imposed on ▌providers require them to take measures such as disallowing

access to their services from internet protocol (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 _**providers of online content**_

_**services**_ and their subscribers, which reflect the territorial restriction clauses included in

contracts concluded between those ▌providers and the rightholders.

(11) _**The case law of**_ the Court _**of Justice of the European Union should be taken into account**_

_**when balancing**_ the objective of protecting intellectual property rights _**with the**_

_**fundamental freedoms guaranteed by the Treaty on the Functioning of the European**_

_**Union (TFEU).**_

9411/17 SO/gj 10
# ANNEX DRI EN

(12) Therefore, the objective of this Regulation _**is**_ to adapt _**the harmonised**_ legal framework _**on**_

_**copyright and related rights and to provide a common approach to the provision of**_

_**online content services to subscribers temporarily present in a Member State other than**_

_**their Member State of residence**_ _**by removing barriers**_ to cross-border portability of online

content services which are _**lawfully provided**_ ▌. _**This Regulation should ensure cross-**_

_**border portability of online content services in all sectors concerned and hence provide**_

_**consumers with an additional means of accessing online content lawfully, without**_

_**affecting the high level of protection guaranteed by copyright and related rights in the**_

_**Union, without changing the existing licensing models, such as territorial licensing, and**_

_**without affecting the existing financing mechanisms. The concept of cross-border**_

_**portability of online content services should be distinguished from that of cross-border**_

_**access by consumers to online content services provided in a Member State other than**_

_**their Member State of residence, which is not covered by this Regulation.**_

_**(13)**_ _**Given the Union instruments that exist in the field of taxation, it is necessary to exclude**_

_**the field of taxation from the scope of this Regulation. Therefore, this Regulation should**_

_**not affect the application of any provision related to taxation.**_

_**(14)**_ _**This Regulation defines several concepts necessary for its application, including the**_

_**Member State of residence. The Member State of residence should be determined taking**_

_**into account the objectives of this Regulation and the necessity to ensure its uniform**_

_**application in the Union. The definition of the Member State of residence implies that**_

_**the subscriber has his or her actual and stable residence in that Member State. A**_

_**provider of an online content service who has verified the Member State of residence in**_

_**accordance with this Regulation should be allowed to assume, for the purposes of this**_

_**Regulation, that the Member State of residence as verified is the only Member State of**_

_**residence of the subscriber. Providers should not be obliged to verify whether their**_

_**subscribers are also subscribers to an online content service in another Member State.**_

9411/17 SO/gj 11
# ANNEX DRI EN

(15) This Regulation should apply to online content services that ▌providers, after having

obtained the relevant rights from rightholders in a given territory, provide to their

subscribers on the basis of a contract, by any means including streaming, downloading,

_**through applications**_ or any other technique which allows use of that content. _**For the**_

_**purposes of this Regulation, the term contract should be regarded as covering any**_

_**agreement between a provider and a subscriber, including any arrangement by which**_

_**the subscriber accepts the provider's terms and conditions for the provision of online**_

_**content services, whether against payment of money or without such payment.**_ 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 services for the purposes of this

Regulation.

(16) An online service which is not an audiovisual media service within the meaning of

Directive 2010/13/EU and which uses works, other protected 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.

9411/17 SO/gj 12
# ANNEX DRI EN

(17) This Regulation should apply only to online content services which subscribers can

effectively access and use in _**their**_ Member State _**of residence**_ without being limited to a

specific location, as it is not appropriate to require _**providers of online content services**_

that do not offer portable online content services in _**the Member State of residence of a**_

_**subscriber to**_ do so across borders.

(18) 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 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 _**an electronic communications**_ service and an online content service

operated by another provider. _**For the purposes of this Regulation, the payment of a**_

_**mandatory fee for public broadcasting services should not be regarded as a payment of**_

_**money for an online content service.**_

_**(19)**_ _**Providers of online content services should not subject their subscribers to any**_

_**additional charges**_ _**for the provision of cross-border portability of online content services**_

_**in accordance with this Regulation. It is possible however that subscribers, in order to**_

_**access and use online content services in Member States other than their Member State**_

_**of residence, could be subject to fees payable to operators of electronic communications**_

_**networks used to access such services.**_

9411/17 SO/gj 13
# ANNEX DRI EN

_**(20)**_ _**Providers of**_ online content services which are provided without payment of money

_**generally do not**_ verify the Member State of residence of their subscribers. _**The inclusion**_

_**of such**_ online content services _**in the scope of this Regulation**_ would involve a major

change to the way those services are delivered and involve disproportionate costs.

_**However, the exclusion of those services from the scope of this Regulation would mean**_

_**that providers of those services would not be able to take advantage of the legal**_

_**mechanism which is provided for in this Regulation and which enables providers of**_

_**online content services to offer cross-border portability of such services, even when they**_

_**decide to invest in means that allow them to verify their subscribers' Member State of**_

_**residence. Accordingly, providers of online content services which are provided without**_

_**payment of money should be able to opt to be included in the scope of this Regulation**_

_**provided that they comply with the requirements on the verification of the Member State**_

_**of residence of their subscribers. If such providers exercise that option, they should**_

_**comply with the same obligations as imposed under this Regulation upon the providers**_

_**of online content services which are provided against payment of money. Furthermore,**_

_**they should inform the subscribers, the relevant holders of copyright and related rights**_

_**and the relevant holders of any other rights in the content of the online content service**_

_**of their decision to exercise that option in a timely manner. Such information could be**_

_**provided on the provider's website.**_

9411/17 SO/gj 14
# ANNEX DRI EN

(21) In order to ensure the cross-border portability of online content services, it is necessary to

require _**providers of online content services covered by this Regulation to**_ enable

subscribers to use such services in the Member State in which they are temporarily present

_**in the same manner as in their Member State of residence. Subscribers should have**_

_**access to online content services offering**_ 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. It is essential that _**the**_ obligation _**to**_

_**provide cross-border portability of online content services**_ be mandatory and therefore the

parties should not be able to exclude it, derogate from it or vary its effect. Any action by a

▌provider which would prevent subscribers from accessing or using the service while

temporarily present in a Member State other than their Member State of residence,for

example restrictions to the functionalities of the service, or to the quality of its delivery,

should be considered to be a circumvention of the obligation to provide cross-border

portability of online content services and therefore contrary to this Regulation.

9411/17 SO/gj 15
# ANNEX DRI EN

(22) Requiring that the delivery of online content services to subscribers temporarily present in

a Member State 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 _**providers of online content**_

_**services**_ and thus ultimately for subscribers. Therefore, it is not appropriate for this

Regulation to require that providers ensure a quality of delivery of such services that would

be 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 should not be

liable if the quality of delivery of the service is lower. Nevertheless, if the provider

expressly _**guarantees**_ a certain quality of delivery to subscribers while temporarily present

in another Member State, it should be bound by that _**guarantee**_ . _**The provider, on the basis**_

_**of the information in its possession, should provide its subscribers in advance with**_

_**information concerning the quality of delivery of an online content service in Member**_

_**States other than their Member State of residence, in particular the fact that the quality**_

_**of delivery could differ from that applicable in their Member State of residence. The**_

_**provider should not be under an obligation to actively seek information on the quality of**_

_**delivery of a service in Member States other than the subscriber’s Member State of**_

_**residence. The relevant information could be provided on the provider's website.**_

9411/17 SO/gj 16
# ANNEX DRI EN

(23) In order to ensure that providers of online content services _**covered by this Regulation**_

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

▌providers ▌should always be entitled to provide such services to subscribers when they

are temporarily present in a Member State other than their Member State of residence. This

should be achieved by establishing that the provision _**of**_, access to and use of such online

content services should be deemed to occur in the _**subscriber's Member State of residence.**_

_**This legal mechanism should apply for the sole purpose of ensuring the cross-border**_

_**portability of online content services. An online content service should be considered to**_

_**be provided lawfully if both the service and the content are provided in a lawful manner**_

_**in the Member State of residence. This Regulation and in particular the legal**_

_**mechanism by which the provision of, access to and use of an online content service are**_

_**deemed to occur in the subscriber’s Member State of residence does not prevent a**_

_**provider from enabling the subscriber to additionally access and use the content lawfully**_

_**offered by the provider in the Member State where the subscriber is temporarily present.**_

9411/17 SO/gj 17
# ANNEX DRI EN

(24) For the licensing of copyright or related rights, the legal mechanism laid down in this

Regulation 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. _**Providers of online content services covered**_

_**by this Regulation,**_ therefore, should be deemed to carry out such acts on the basis of the

respective authorisations from the rightholders concerned for the Member State of

residence of their subscribers. Whenever ▌providers have the right to carry out acts of

communication to the public or reproduction in their subscribers’ Member State of

residence on the basis of an authorisation from the rightholders concerned, subscribers who

are temporarily present in a Member State other than their 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 they would be entitled to do in their

Member State of residence. The provision of an online content service by ▌providers to

subscribers temporarily present in a Member State other than their Member State of

residence and the access to and use of the service by such subscribers in accordance with

this Regulation should not constitute a breach of copyright or related rights or any other

rights relevant for the provision of, access to and use of the online content service.

9411/17 SO/gj 18
# ANNEX DRI EN

(25) _**Providers of online content services covered by this Regulation**_ should not be liable for

the breach of any contractual provisions that are contrary to the obligation to enable their

subscribers to use such services in the Member State in which they are temporarily present.

Therefore, clauses in contracts designed to prohibit or limit the cross-border portability of

_**such**_ online content services should be unenforceable. _**The providers and holders of rights**_

_**relevant for the provision of online content services should not be allowed to circumvent**_

_**the application of this Regulation by choosing the law of a third country as the law**_

_**applicable to contracts between them. The same should apply to contracts concluded**_

_**between providers and subscribers.**_

9411/17 SO/gj 19
# ANNEX DRI EN

(26) _**This Regulation should enable**_ subscribers _**to enjoy**_ online content services _**to which they**_

_**have subscribed in their**_ Member State of residence _**when they are temporarily present in**_

_**another Member State. Subscribers should be eligible for cross-border portability of**_

_**online content services only if they reside in a Member State of the Union. Therefore,**_

_**this Regulation should oblige providers of online content services to**_ make use of

_**reasonable, proportionate and**_ effective means in order to verify _**the Member State of**_

_**residence of their subscribers. To that end, providers should use the means of**_

_**verification listed in this Regulation. This does not preclude agreement between**_

_**providers and rightholders on those means of verification within the limits of this**_

_**Regulation. The objective of the list is to provide legal certainty as to the means of**_

_**verification to be used by providers as well as to limit interference with subscribers'**_

_**privacy. In each case, account should be taken of the effectiveness and proportionality of**_

_**a particular means of verification in a given Member State and for a given type of online**_

_**content service. Unless the subscriber’s Member State of residence can be verified with**_

_**sufficient certainty on the basis of a single means of verification, providers should rely**_

_**on two means of verification. In cases where the provider has reasonable doubts**_

_**concerning the subscriber’s Member State of residence, the provider should be able to**_

_**repeat the verification of the subscriber’s Member State of residence. The provider**_

_**should implement the necessary technical and organisational measures required under**_

_**applicable data protection rules for the processing of personal data collected for the**_

_**purpose of verification of the subscriber’s Member State of residence under this**_

_**Regulation. Examples of such measures include providing transparent information to**_

_**the individuals about the methods used for, and the purpose of, the verification, and**_

_**appropriate security measures.**_

9411/17 SO/gj 20
# ANNEX DRI EN

_**(27)**_ _**In order to verify the subscriber’s Member State of residence, the provider of an online**_

_**content service should rely, if possible, on information which is in the provider's**_

_**possession, such as billing information. As regards contracts concluded prior to the date**_

_**of application of this Regulation and as regards the verification carried out upon**_

_**renewal of a contract, the provider should be allowed to request the subscriber to provide**_

_**the information necessary to verify the subscriber’s Member State of residence only**_

_**when it cannot be determined on the basis of information which is already in the**_

_**provider's possession.**_

_**(28)**_ _**IP address checks performed under this Regulation should be conducted in accordance**_

_**with Directives 95/46/EC**_ _**[13]**_ _**and 2002/58/EC**_ _**[14]**_ _**of the European Parliament and of the**_

_**Council. In addition, for the purpose of verification of the subscriber's Member State of**_

_**residence what matters is not the precise location of the subscriber, but rather the**_

_**Member State in which the subscriber is accessing the service. Accordingly, data on the**_

_**subscriber's precise location or any other personal data should neither be collected nor**_

_**processed for that purpose. Where the provider has reasonable doubts concerning the**_

_**subscriber's Member State of residence and carries out an IP address check to verify the**_

_**Member State of residence, the sole purpose of such checks should be to establish**_

_**whether the subscriber is accessing or using the online content service within or outside**_

_**the Member State of residence. Therefore, in such cases, the data resulting from the**_

_**checking of IP addresses should only be collected in binary format and in compliance**_

_**with applicable data protection rules. The provider should not exceed that level of detail.**_

_13_ _**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).**_
_14_ _**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,**_
_**31.7.2002, p. 37).**_

9411/17 SO/gj 21
# ANNEX DRI EN

_**(29)**_ _**A holder of copyright, related rights, or any other rights in the content of an online**_

_**content service should remain able to exercise contractual freedom to authorise such**_

_**content to be provided, accessed and used under this Regulation without verification of**_

_**the Member State of residence. This can be particularly relevant in sectors such as**_

_**music and e-books. Each rightholder should be able to take such decisions freely when**_

_**entering into contracts with providers of online content services. Contracts between**_

_**providers and rightholders should not restrict the possibility for rightholders to withdraw**_

_**such authorisation subject to giving reasonable notice to the provider. The authorisation**_

_**given by an individual rightholder does not as such release the provider from the**_

_**obligation to verify the subscriber’s Member State of residence. It is only in cases where**_

_**all the holders of copyright, related rights or any other rights in the content used by the**_

_**provider decide to authorise their content to be provided, accessed and used without**_

_**verification of the subscriber’s Member State of residence that the obligation to verify**_

_**should not apply, and the contract between the provider and the subscriber for the**_

_**provision of an online content service should be used to determine the latter’s Member**_

_**State of residence. All other aspects of this Regulation should remain applicable in such**_

_**cases.**_

9411/17 SO/gj 22
# ANNEX DRI EN

(30) This Regulation respects fundamental rights and observes the principles recognised in the

Charter of Fundamental Rights of the European Union ('Charter'). 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 right to freedom of expression, the freedom to conduct a

business _**and the right to property, including intellectual property.**_ 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, and it is essential that such processing be in compliance

with Directives 95/46/EC and 2002/58/EC. In particular, providers of online content

services _**should**_ ensure that any processing of personal data under this Regulation is

necessary _**, reasonable**_ and proportionate in order to achieve the relevant purpose. _**Where**_

_**authentication of a subscriber is sufficient in order to provide the service, identification**_

_**of the subscriber should not be required. Data collected pursuant to this Regulation for**_

_**the purposes of the verification of the Member State of residence should not be stored by**_

_**the provider longer than necessary to complete such verification. Such data should be**_

_**immediately and irreversibly destroyed after the verification is completed. However, this**_

_**is without prejudice to the storage of data which was collected for another legitimate**_

_**purpose, subject to applicable data protection rules, including rules concerning the**_

_**storage of that data.**_

9411/17 SO/gj 23
# ANNEX DRI EN

(31) 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 cross-border portability 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 those contracts and rights are relevant

for the cross-border portability of an online content service provided after that date. Such

application of this Regulation is also necessary in order to ensure a level playing field for

_**providers of online content services covered by this Regulation**_ operating in the internal

market, _**particularly for SMEs,**_ by enabling providers who concluded contracts with

rightholders for a long duration to offer cross-border portability to their subscribers,

independently of the provider's ability to renegotiate such contracts. Moreover, such

application of this Regulation ▌should ensure that when ▌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. _**This should also apply to**_

_**providers of online content services that offer packages combining electronic**_

_**communications services and online content services.**_ Finally, such application of this

Regulation should also allow rightholders not to have to renegotiate their existing licensing

contracts in order to enable providers to offer cross-border portability of their services.

9411/17 SO/gj 24
# ANNEX DRI EN

(32) Accordingly, since this Regulation will apply to some contracts concluded 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 _**, so as to**_ allow rightholders and _**providers of online content services**_ _**covered**_

_**by this Regulation**_ to make the arrangements necessary to adapt to the new situation, as

well as to allow ▌providers to amend the terms of use of their services. _**Changes to the**_

_**terms of use of online content services offered in packages combining an electronic**_

_**communications service and an online content service that are made strictly in order to**_

_**comply with the requirements of this Regulation should not trigger for subscribers any**_

_**right under national laws transposing the regulatory framework for electronic**_

_**communications networks and services to withdraw from contracts for the provision of**_

_**such electronic communications services.**_

(33) _**This Regulation is aimed at improving competitiveness by fostering innovation in online**_

_**content services and attracting more consumers.**_ This Regulation should not affect the

application of the rules of competition, and in particular Articles 101 and 102 TFEU. The

rules provided for in this Regulation should not be used to restrict competition in a manner

contrary to theTFEU _._

_**(34)**_ _**This Regulation should not affect the application of Directive 2014/26/EU of the**_

_**European Parliament and of the Council**_ _**[15]**_ _**and in particular Title III thereof. This**_

_**Regulation is consistent with the objective of facilitating the lawful access to content,**_

_**which is protected by copyright or related rights, as well as services linked thereto.**_

_15_ _**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).**_

9411/17 SO/gj 25
# ANNEX DRI EN

(35) 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 is directly applicable 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.

(36) 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 the Member States _**but**_ can _**rather**_, 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 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 _**that**_ objective. In particular, this

Regulation does not substantially affect the way the rights are licensed and does not oblige

rightholders and providers to renegotiate contracts. Moreover, this Regulation does not

require that _**providers**_ take measures to ensure the quality of delivery of online content

services outside the Member State of residence of the subscribers. Finally, this Regulation

does not apply to ▌providers who offer _**online content**_ services without payment of money

and who do not _**exercise the option to enable the cross-border portability of their services.**_

Therefore, it does not impose any disproportionate costs,

HAVE ADOPTED THIS REGULATION:

9411/17 SO/gj 26
# ANNEX DRI EN

_Article 1_

_Subject matter and scope_

_**1.**_ This Regulation introduces a common approach in the Union to the cross-border portability

of online content services, by ensuring that subscribers to _**portable**_ online content services

_**which are lawfully provided in their Member State of residence can access and use those**_

_**services**_ when temporarily present in a Member State _**other than their Member State of**_

_**residence**_ .

_**2.**_ _**This Regulation shall not apply to the field of taxation.**_

_Article 2_

_Definitions_

For the purposes of this Regulation, the following definitions apply:

(1) "subscriber" means any consumer who, on the basis of a contract for the provision of an

online content service with a provider _**whether against payment of money or without such**_

_**payment, is entitled to**_ access and use such service in the Member State of residence;

(2) "consumer" means any natural person who, in contracts covered by this Regulation, is

acting for purposes which are outside that person's trade, business, craft or profession;

(3) "Member State of residence" means the Member State _**, determined on the basis of Article**_

_**5,**_ where the subscriber _**has his or her actual and stable residence**_ ;

(4) "temporarily present _**in a Member State**_ " means being present in a Member State other

than _**the**_ Member State of residence _**for a limited period of time**_ ;

9411/17 SO/gj 27
# ANNEX DRI EN

(5) "online content service" means a service as defined in Articles 56 and 57 TFEU that a

▌provider lawfully provides _**to subscribers in their**_ Member State of residence on _**agreed**_

_**terms and online, which is portable**_ and which is _**:**_

_**(i)**_ an audiovisual media service _**as defined in point (a) of Article 1**_ of Directive

2010/13/EU _**,**_ or

_**(ii)**_ a service the main feature of which is the provision of access to, and the use of,

works, other protected subject-matter or transmissions of broadcasting organisations,

whether in a linear or an on-demand manner ▌;

(6) "portable" means a feature of an online content service whereby subscribers can effectively

access and use the online content service in their Member State of residence without being

limited to a specific location.

9411/17 SO/gj 28
# ANNEX DRI EN

_Article 3_

_Obligation to enable cross-border portability of online content services_

1. The provider of an online content service _**provided against payment of money**_ shall enable

a subscriber who is temporarily present in a Member State to access and use the online

content service _**in the same manner as in the Member State of residence, including by**_

_**providing 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.**_

_**2.**_ _**The provider shall not impose any additional charges on the subscriber for the access to**_

_**and the use of the online content service pursuant to paragraph 1.**_

3. 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 that service in the Member State of residence, unless otherwise expressly agreed

_**between**_ the provider _**and the subscriber.**_

_**The provider shall not take any action to reduce the quality of delivery of the online**_

_**content service when providing the online content service in accordance with paragraph**_

_**1.**_

4. The provider _**shall, on the basis of the information in its possession, provide the**_

_**subscriber with information concerning**_ the quality of delivery of the online content

service provided in accordance with paragraph 1 _**. The information shall be provided to the**_

_**subscriber prior to providing the online content service in accordance with paragraph 1**_

_**and by means which are adequate and proportionate.**_

9411/17 SO/gj 29
# ANNEX DRI EN

_Article 4_

_Localisation of the provision of, access to and use of online content services_

The provision of an online content service _**under this Regulation to**_ _**a subscriber who is**_

_**temporarily present in a Member State,**_ as well as the access to and the use of that service by _**the**_

subscriber, ▌shall be deemed to occur solely in the subscriber’s Member State of residence ▌.

_**Article 5**_

_**Verification of the Member State of residence**_

_**1.**_ _**At the conclusion and upon the renewal of a contract for the provision of an online**_

_**content service provided against payment of money, the provider shall verify the Member**_

_**State of residence of the subscriber by using not more than two of the following means**_

_**of verification and shall ensure that the means used are reasonable, proportionate and**_

_**effective:**_

_**(a)**_ _**an identity card, electronic means of identification, in particular those falling**_

_**under the electronic identification schemes notified in accordance with Regulation**_

_**(EU) No 910/2014 of the European Parliament and of the Council**_ _**[16]**_ _**, or any other**_

_**valid identity document confirming the subscriber's Member State of residence;**_

_**(b)**_ _**payment details such as the bank account or credit or debit card number of the**_

_**subscriber;**_

_**(c)**_ _**the place of installation of a set top box, a decoder or a similar device used for**_

_**supply of services to the subscriber;**_

_**(d)**_ _**the payment by the subscriber of a licence fee for other services provided in the**_

_**Member State, such as public service broadcasting;**_

_16_ _**Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July**_
_**2014 on electronic identification and trust services for electronic transactions in the**_
_**internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73).**_

9411/17 SO/gj 30
# ANNEX DRI EN

_**(e)**_ _**an internet or telephone service supply contract or any similar type of contract**_

_**linking the subscriber to the Member State;**_

_**(f)**_ _**registration on local electoral rolls, if the information concerned is publicly**_

_**available;**_

_**(g)**_ _**payment of local taxes, if the information concerned is publicly available;**_

_**(h)**_ _**a utility bill of the subscriber linking the subscriber to the Member State;**_

_**(i)**_ _**the billing address or the postal address of the subscriber;**_

_**(j)**_ _**a declaration by the subscriber confirming the subscriber's address in the Member**_

_**State;**_

_**(k)**_ _**an internet protocol (IP) address check, to identify the Member State where the**_

_**subscriber accesses the online content service.**_

_**The means of verification under points (i) to (k) shall only be used in combination with**_

_**one of the means of verification under points (a) to (h), unless the postal address under**_

_**point (i) is included in a publicly available official register.**_

9411/17 SO/gj 31
# ANNEX DRI EN

_**2.**_ _**If the provider has reasonable doubts about the subscriber's Member State of residence**_

_**in the course of the duration of the contract for the provision of an online content**_

_**service, the provider may repeat the verification of the Member State of residence of the**_

_**subscriber, in accordance with paragraph 1. In such a case, however, the means of**_

_**verification under point (k) may be used as a sole means. Data resulting from the use of**_

_**the means of verification under point (k) shall be collected in binary format only.**_

_**3.**_ _**The provider shall be entitled to request the subscriber to provide the information**_

_**necessary to determine the subscriber’s Member State of residence in accordance with**_

_**paragraphs 1 and 2. If the subscriber fails to provide that information, and as a result**_

_**the provider is unable to verify the subscriber’s Member State of residence, the provider**_

_**shall not, on the basis of this Regulation, enable the subscriber to access or use the**_

_**online content service when the subscriber is temporarily present in a Member State.**_

9411/17 SO/gj 32
# ANNEX DRI EN

_**4.**_ _**The holders of copyright or related rights or those holding any other rights in the**_

_**content of an online content service may authorise the provision of, access to and use of**_

_**their content under this Regulation without the verification of the Member State of**_

_**residence. In such cases, the contract between the provider and the subscriber for the**_

_**provision of an online content service shall be sufficient to determine the subscriber's**_

_**Member State of residence.**_

_**The holders of copyright or related rights or those holding any other rights in the**_

_**content of an online content service shall be entitled to withdraw the authorisation given**_

_**pursuant to the first subparagraph subject to giving reasonable notice to the provider.**_

_**5.**_ _**The contract between the provider and the holders of copyright or related rights or those**_

_**holding any other rights in the content of an online content service shall not restrict the**_

_**possibility for such holders of rights to withdraw the authorisation referred to in**_

_**paragraph 4.**_

_**Article 6**_

_**Cross-border portability of online content services provided without payment of money**_

_**1.**_ _**The provider of an online content service provided without payment of money may**_

_**decide to enable its subscribers who are temporarily present in a Member State to access**_

_**and use the online content service on the condition that the provider verifies the**_

_**subscriber’s Member State of residence in accordance with this Regulation.**_

9411/17 SO/gj 33
# ANNEX DRI EN

_**2.**_ _**The provider shall inform the subscribers, the relevant holders of copyright and related**_

_**rights and the relevant holders of any other rights in the content of the online content**_

_**service of its decision to provide the online content service in accordance with paragraph**_

_**1, prior to providing that service. The information shall be provided by means which are**_

_**adequate and proportionate.**_

_**3.**_ _**This Regulation shall apply to providers who provide an online content service in**_

_**accordance with paragraph 1.**_

9411/17 SO/gj 34
# ANNEX DRI EN

_Article 7_

_Contractual provisions_

1. Any contractual provisions _**,**_ including those between _**providers of online content services**_

and holders of copyright or related rights or those holding any other rights in the content of

online content services, as well as _**those**_ between such _**providers**_ and _**their**_ subscribers,

which are contrary to _**this Regulation, including those which prohibit cross-border**_

_**portability of online content services or limit such portability to a specific time period,**_

shall be unenforceable.

_**2.**_ _**This Regulation shall apply irrespective of the law applicable to contracts concluded**_

_**between providers of online content services and holders of copyright or related rights or**_

_**those holding any other rights in the content of online content services, or to contracts**_

_**concluded between such providers and their subscribers.**_

9411/17 SO/gj 35
# ANNEX DRI EN

_Article 8_

_Protection of personal data_

_**1.**_ The processing of personal data carried out within the framework of this Regulation

including, in particular, for the purposes of verification of the subscriber’s Member State

of residence under Article _**5**_, shall be carried out in compliance with _**Directives**_ 95/46/EC

and 2002/58/EC. _**In particular, the use of the means of verification in accordance with**_

_**Article 5 and any processing of personal data under this Regulation, shall be limited to**_

_**what is necessary and proportionate in order to achieve its purpose.**_

_**2.**_ _**Data collected pursuant to Article 5 shall be used solely for the purpose of verifying the**_

_**subscriber's Member State of residence. They shall not be communicated, transferred,**_

_**shared, licensed or otherwise transmitted or disclosed to holders of copyright or related**_

_**rights or to those holding any other rights in the content of online content services, or to**_

_**any other third parties.**_

_**3.**_ _**Data collected pursuant to Article 5 shall not be stored by the provider of an online**_

_**content service longer than necessary to complete a verification of a subscriber’s**_

_**Member State of residence pursuant to Article 5(1) or (2). On completion of each**_

_**verification, the data shall be immediately and irreversibly destroyed.**_

9411/17 SO/gj 36
# ANNEX DRI EN

_Article 9_

_Application to existing contracts and rights acquired_

_**1.**_ This Regulation shall apply also to contracts concluded and rights acquired before the date

of its application if they are relevant for the provision of, access to and use of an online

content service, in accordance with _**Articles**_ 3 _**and 6,**_ after that date.

_**2.**_ _**By ... [two months after the date of application of this Regulation] the provider of an**_

_**online content service provided against payment of money shall verify, in accordance**_

_**with this Regulation, the Member State of residence of those subscribers who concluded**_

_**contracts for the provision of the online content service before that date.**_

_**Within two months of the date upon which the provider of an online content service**_

_**provided without payment of money first provides the service in accordance with Article**_

_**6, the provider shall verify, in accordance with this Regulation, the Member State of**_

_**residence of those subscribers who concluded contracts for the provision of the online**_

_**content service before that date.**_

9411/17 SO/gj 37
# ANNEX DRI EN

_**Article 10**_

_**Review**_

_**By ... [three years after the date of application of this Regulation], and as required thereafter, the**_

_**Commission shall assess the application of this Regulation in the light of legal, technological and**_

_**economic developments, and submit to the European Parliament and to the Council a report**_

_**thereon.**_

_**The report referred to in the first paragraph shall include, inter alia, an assessment of the**_

_**application of the verification means of the Member State of residence referred to in Article 5,**_

_**taking into account newly developed technologies, industry standards and practices, and, if**_

_**necessary, consider the need for a review. The report shall pay special attention to the impact of**_

_**this Regulation on SMEs and the protection of personal data. The Commission's report shall be**_

_**accompanied, if appropriate, by a legislative proposal.**_

9411/17 SO/gj 38
# ANNEX DRI EN

_Article 11_

_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 ... [ _**nine**_ months after the date of publication of this Regulation].

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

Done at,

_For the European Parliament_ _For the Council_

_The President_ _The President_

9411/17 SO/gj 39
# ANNEX DRI EN