While some content owners may not necessarily see the funny side, in a few months time on 1 April 2018 a significant change to the operation of copyright is being introduced across the European Union (EU). On that day Regulation 2017/1128 on cross-border portability of online content services in the internal market (the “Portability Regulation”) comes into force.
The Portability Regulation will make it easier for consumers who live in the EU to access online content services they subscribe to when they are temporarily located in another EU Member State, for example, when on holiday or travelling on business.
NO MORE GEO-BLOCKING?
At present, many providers block access to their services outside a subscriber’s home country because they may have only acquired the rights to stream / broadcast the content in the subscriber’s home country. This is known as ‘geo-blocking’. For example, Premier League football and other sporting rights are typically sold to different television companies in different jurisdictions. The same applies to film and television programmes which are typically sold on a territory by territory basis.
If providers fail to block access to content they have acquired outside the territory they have acquired it for they may be in breach of territorial agreements on the use of that copyright protected content with the content owners and therefore infringe copyright.
Providers are already aware that some of their subscribers attempt to circumvent geo-blocking by using Virtual Private Networks (VPNs) which provide them with an IP address from their home country in order to access content whilst they are travelling overseas. From 1 April 2018, however, under the Portability Regulation such content services must be provided on a portable basis throughout the EU at no extra cost to subscribers when they are temporarily present in another EU Member State and without their need to use technical means like VPNs.
SUBSCRIPTION SERVICES vs FREE-TO-ACCESS SERVICES
The Regulation applies on a compulsory basis to ‘paid for’ subscription services. Paid for subscription services include services where payment is made directly to the provider of the online content service or to another party, such as part of a package of services including, for example, Netflix, Now TV and BT Sport.
Free-to-access services like the BBC iPlayer, as well as online content services that are non-subscription but do generate revenue from advertising like ITV Hub, All 4 and My5, can also choose to make their content available on a portable basis under the Regulation but are not required to do so.
SAFEGUARDS FOR CONTENT OWNERS
The owners of the copyright content are protected to the extent that within two months of offering a portable service under the Regulation (i.e. by 2 June 2018 for paid for online content services) the service providers are required to verify the home country of their subscribers to ensure they are entitled to access the service in accordance with the Portability Regulation. A failure to verify will lead to copyright infringement which is actionable by the rights holder(s) against the provider.
In the case of subscribers whose home country has been verified and who subsequently access content in a different EU Member State then, for the purpose of the Portability Regulation, the service is deemed to have been provided, accessed and used in the subscriber’s home Member State, rather than in the Member State where they are temporarily present.
The effect of this is to negate the potential for a breach of any territorial restrictions the content owner may have imposed upon the provider which could amount to an infringement of the content owner’s copyright. This is designed to ensure that providers will not have to renegotiate with content owners in order to gain permission to provide access to copyright protected content in other Member States.
UK IPO CONSULTATION & BREXIT
The UK Intellectual Property Office (IPO) is currently consulting on the proposed domestic enforcement mechanisms to enable appropriate enforcement of the Portability Regulation when it comes into force on 1 April 2018 as well as views on the continued provision of content in accordance with it following the UK’s exit from the EU in March 2019.
The UK IPO also intends to publish further guidance on the Portability Regulation and what it means for businesses, right-holders and consumers, in the coming months.
DMH Stallard has a team of intellectual property specialists who can advise and assist on copyright issues and the range of IP enforcement options available for clients.
For more information contact James Martin at James.R.Martin@dmhstallard.com or on +44 (0)20 7842 1509