The Portability Regulation (Regulation (EU) 2017/1128)

Author:Sebastian Engels - Jan Bernd Nordemann
Position:Attorney-at-law at BOEHMERT & BOEHMERT, Berlin office - LL.M. (Cambridge), attorney-at-law at BOEHMERT & BOEHMERT, Berlin office, certified IP, copyright and media lawyer, honorary professor at the Humboldt University Berlin
Pages:179-200
SUMMARY

Since 1 April 2018, the Portability Regulation prohibits geo-blocking of online content within the European Union. The regulation regulates the unrestricted access to (paid) subscribed online content of all European citizens, regardless of where they are present in EU territory. The presence must be "temporary". Providers of fee-based online content are then obliged to guarantee their subscribers ... (see full summary)

 
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The Portability Regulation (Regulation (EU) 2017/1128)
2018
179
2
The Portability Regulation
(Regulation (EU) 2017/1128)
A Commentary on the Scope and Application
by Sebastian Engels and Jan Bernd Nordemann*
© 2018 Sebastian Engels and Jan Bern d Nordemann
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Se bastian Engels and Jan Bernd Nordemann, The Por tability Regulation (Regulati on (EU) 2017/1128):
A Commentary on the Scope a nd Application, 9 (2018) JIPITEC 179 para 1.
Keywords: Portability Regulation; portability; geo-blocking; online content; digital borders
cross-border portability. A limitation of the access or
the demand of additional fees is prohibited. The Por-
tability Regulation does not apply directly to offers
that are not or not directly liable to payment, such as
media libraries. It is rather voluntary for these provid-
ers. Furthermore, the Portability Regulation also in-
cludes rules to minimize the user’s personal data col-
lected in order to identify the Member State.
Abstract: Since 1 April 2018, the Portability
Regulation prohibits geo-blocking of online content
within the European Union. The regulation regulates
the unrestricted access to (paid) subscribed online
content of all European citizens, regardless of where
they are present in EU territory. The presence must
be “temporary”. Providers of fee-based online con-
tent are then obliged to guarantee their subscribers
A. Introduction
I. Meaning and purpose
1 The Portability Regulation is part of the Initiative of
the European Commission towards a Digital Single
Market, which has its origin in the Commission’s
communication on the Digital Single Market
Strategy for Europe (COM(2015) 192 nal), which
was published in May 2015. The objective stated
in the communication was the achievement of a
Union-wide connected Digital Single Market based
on three pillars: (1) better access to online goods
and services, (2) optimum conditions for digital
networks and services and (3) the digital economy
as a growth engine. As a Digital Single Market, the
Commission envisions a digital European single
market, in which private citizens and businesses are
able seamlessly to access and pursue online activities
and use web applications, under conditions of fair
competition and with a high level of consumer
and personal data protection, irrespective of their
nationality, residence or place of business. The
Portability Regulation therefore only governs a
small part of the rst pillar. It only legislates for the
portability of online content outside the Member
State of residence for subscribers to a service who
are temporarily present in another Member State
(Art. 1 (1) Portability Regulation). As such, the
Portability Regulation uses a legal ction that such
a temporary presence is deemed to be a presence in
the Member State of residence, see Art. 4 Portability
Regulation. Therefore, it is not about consumers’
general cross-border access across the EU to online
content services in Member States other than their
Member State of residence. The Regulation, which
implemented the Portability Regulation as one of the
rst projects of the “digital agenda”, thus separates
the question of the portability of content services
in cases of temporary presence in another Member
State from the far more complex and economically
more serious question of cross-border access to
online content services (c.f. section B.I.1.).
2018
Sebastian Engels and Jan Bernd Nordemann
180
2
2
Prior to the Portability Regulation, there were
various barriers to the provision of access to content
to consumers temporary present in a Member State,
in particular due to the fact that licences to use
content protected by copyright or related rights are
often granted on a territorial basis (as in the case,
for example, of lms) and that providers of online
content services can decide only to service certain
markets (see Recital 4 Portability Regulation). The
possibility under copyright law to grant rights for
individual States separately is also not excluded by
antitrust law (Art. 101 TFEU). There is no general
country of origin principle under EU anti-trust law
governing online uses in EU copyright law. The
exceptions also conrm this, namely the restricted
country of origin principle in Art. 4 Portability
Regulation and the country of origin principle for
satellite broadcasting as per Art. 1 (2) (b) Satellite
and Cable Directive (for more detail c.f. below
section B.VII.2.(c)). The Portability Regulation is
aimed at bringing about a balancing of the different
interests1: on the one hand, the user of digital and
copyright protected content is increasingly mobile
and expects online access to the works throughout
the European Union. It would reach the limits of
user acceptance if a consumer, who is temporarily
present in another country, were not able to access
something they have acquired and paid for.2 The
privilege is only afforded to users domiciled within
the European Union, however; people who have
their permanent residence in a country outside the
European Union do not come under the Portability
Regulation (c.f. below section A.II. and section
B.II.2.(a)). On the other hand, the interests of the
rightholders in maintaining their exclusive rights
position must be preserved. The provisions of the
Regulation are not intended to reduce the high
level of protection enjoyed by authors (Recital
12 Portability Regulation). One of the interests of
authors and other rightholders is in particular the
ability to dene their own optimum exploitation
strategy themselves, through a territorial splitting
of rights. For example, a differentiation in price and
conditions by territory enables lm rightholders
to secure a sufcient return on investment in the
high risk business of lm production, thereby
* By Dr. Sebastian Engels, attorney-at-law at BOEHMERT &
BOEHMERT, Berlin ofce and Prof. Dr. Jan Bernd Nordemann,
LL.M. (Cambridge), attorney-at-law at BOEHMERT &
BOEHMERT, Berlin ofce, certied IP, copyright and media
lawyer, honorary professor at the Humboldt University
Berlin; The authors are grateful for English translation
services by Adam Ailsby.
1 Eginger, Zeitschrift für Urheber- und Medienrecht (ZUM)
2017, 698, 712; Ranke/Göckler, Multimedia und Recht (MMR)
2017, 378, 382; Synodinou in Synodinou et al, EU Internet Law
(2017), p. 217.
2 Grünberger, Zeitschrift für Urheber- und Medienrecht (ZUM)
2017, 697, 698; Synodinou in Synodinou et al, see Fn. 1, p. 237.
ensuring diversity in European lm is protected.3
Furthermore, the interests of the providers of online
services must be taken into account.
II. History of the Regulation
3
On 9 December 2015 the Commission published a
proposal for a Regulation to ensure cross-border
portability of online content services in the internal
market (COM(2015) 627 nal), that is to say the rst
draft of the Portability Regulation. This draft version
was based on the results of a consultation carried out
in 2013 and 2014 on the review of the EU copyright
rules.4 The proposed Regulation was adopted by the
European Parliament on 18 May 2017 with a series
of amendments and published on 30 June 2017.
The Regulation has therefore been in force since
20 July 2017 (Art. 11 (1) Portability Regulation).
However, the Portability Regulation only applies
in the Member States from 1 April 2018 (Art. 11 (2)
Portability Regulation).
4 The Portability Regulation is the rst EU regulation
in the area of copyright law. Elsewhere, the EU had
pursued the harmonisation of copyright law through
directives, which then had to be transposed into the
national copyright laws. EU regulations differ from
directives in that regulations are directly applicable
in every Member State (Art. 288 (2) TFEU). The
Portability Regulation has thus become the rst part
of a European copyright system directly applicable
in all Member States. It remains to be seen whether
this trend will continue. The reasoning behind the
decision to employ the legislative instrument of a
regulation, as stated in Recital 35, namely that it
was “necessary in order to guarantee a uniform
application of the cross-border portability rules
across Member States and their entry into force
at the same time with regard to all online content
services can also be applied to other copyright
questions which have to date only been harmonised
by way of directives.
3 Schwarz, Zeitschrift für Urheber- und Medienrecht (ZUM)
2015, 950; Ranke/Glöckler, Multimedia und Recht (MMR)
2017, 378, 382 regard this interest as being protected;
Synodinou in Synodinou et al, see Fn. 1, p. 233; see on this
point, in detail Engels, Die Vereinbarkeit der territorialen
Aufspaltung von Verwertungsrechten mit den europäischen
Binnenmarktregeln, p. 44 et seqq.
4 <http://ec.europa.eu/internal_market/
consultations/2013/copyright-rules/docs/contributions/
consultation-report_en.pdf>.

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