EU Content Rules to change on Easter Sunday

Travellers often complain of the restrictions on the use of subscription based streaming and on-demand content when abroad. New "content portability" regulations aim to address that.

European Commission Vice-President Andrus Ansip has said "Citizens are at the core of all our digital initiatives. As of 1 April, wherever you are traveling to in the EU, you will no longer miss out on your favourite films, TV series, sports broadcasts, games or e-books, that you have digitally subscribed to at home".

What this means in practice is that throughout the EU the content available via your subscription service will include the content available in your home country. This is best explained with an example:

A UK based customer has an Amazon Prime subscription. She travels to France for two weeks. While in France she used to be restricted to whatever content Amazon Prime provided in France. Now she will have access to the content she can usually access in the UK and the content available in France.

The problem previously was that Amazon Prime would have required a specific license to show its UK content in France, which may not have had a big enough audience to be commercially viable, or another broadcaster may already have had an exclusive license. With the introduction of the new rules, Amazon Prime would not require a license to broadcast its UK content to a UK customer temporarily accessing it from France. (Other content providers and countries are available).

The immediate concern to licensing agencies and collective management organisations will be the meaning of the word "temporarily". It is not defined in the regulations. It will certainly cover business trips and holidays, but will it cover a person travelling for an extended period? Gap-year students travelling around Europe spring to mind, as do weekly commuters whose primary residence is in the UK but spend their working week in continental Europe.

Content providers will now have to determine the "home" country of customers, either by the payment details used or via IP checking, or some other method. Could this include IP monitoring to determine "home" as a matter of fact? Will a specific fair-use policy be added to the portability terms of user agreements?

The good news for consumers is that, except for providers of content for free (e.g. BBC iPlayer), content providers will not be allowed to opt-out of, or charge for, portability. Any provider not complying with the rules will be breaching the regulations and be at risk of sanctions.

Providers of free content will be allowed to opt-in to the portability rules if they want to take advantage of the roaming licenses, but will have to have sign-ins and adhere to all of the other aspects of the regulations. The BBC has already adopted a "log-in" model, so it may be that it will adopt the regulations also.

We expect to hear of success stories or problems with portability by early next week.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.