The "Schengen" of online audiovisual content kicks off: what the cross-border portability regulation provides for

Blog article
Bruno ZAMBARDINO

portabiliteThe first significant piece of legislation that will be adopted – in the form of a regulation – by the European Commission as part of the ambitious Plan for the creation of the Digital Single Market concerns the cross-border portability of online content services in the internal market ("Ensuring the cross-border portability of online content services in the internal market").

This measure is expressly referred to in the recent Communication from the European Commission on intellectual property. "Towards a modern and more European copyright regulatory framework of 9 December 2015" and is expected to become a reality in 2017, the same year that roaming charges in the Union will be abolished. As this is a regulation, once adopted it will be directly applicable in the 28 EU Member States.

The main purpose of the regulation is to ensure that European citizens have legal access to a wide range of online content when they are 'temporarily' in a Member State other than their country of residence, while ensuring better protection and fair remuneration for rightholders.

European citizens often, in their free movement between countries (despite the feared suspension of Schengen), cannot enjoy this portability or can only do so to a limited extent. The so-called "Holiday Makers" will be particularly pleased with this new right.

In line with the underlying philosophy underlying the strategy for a Digital Single Market, the regulation aims to remove obstacles to cross-border portability in order to respond effectively to the needs of users who consume audiovisual on mobile devices in increasingly massive doses, as well as to promote innovation for the benefit of consumers, service providers and rightholders.

The proposal is therefore to be welcomed, as an important tool for overcoming obstacles to the transnational portability of such content by European consumers and ensuring wider access to creative content online.

A better functioning of the digital single market will enable authors and cultural industries to expand their audience and economic activities, helping them to face international competition. On 20 January, E&Y (Ernst & Young) presented at the Triennale di Milano thethe Creative Italy report commissioned by Siae and Mibact together with the main associations in the sector that analyzes the Italian culture and creativity industry organically for the first time. Well, the report shows the growing economic weight of this sector – which sees the audiovisual sector among its main carriers – and which, on the whole, has an economic value of 47 billion or 2.9% of national GDP. The total number of employees in the aggregate is estimated at 1 million or 3.8% of the country's total employed (7.1 million in the EU or 3.3% of the total).

For this reason it is necessary that this measure will be associated with an overall redesign of the rules to protect creativity and copyright and a strengthening of support measures adopted by the EU with the Creative Europe programme but also with other research and innovation programmes.

The involvement of creative and distribution industries and Member States will play a key role in making content more widely available across the EU. The creative and distribution industries are crucial to the establishment of new business models, while Member States are the main cultural policy makers in the EU, as well as providing and managing most public funds to support the European audiovisual industry.

Returning to the regulation on portability there is no lack of criticality profiles to be resolved during the final drafting of the measure, if subsequently, in the contractual framework between companies and users. In particular, we refer to the definition of the temporary presence of a user/subscriber of an online content service in a Member State other than his EU country of residence, which requires the identification of criteria to define and configure the "temporary" of cross-border portability and the control of the use of the mechanism establishing the location of the service, also in order to avoid elusive behavior. The definition of the concept of 'habitual residence' would also require, at a general level, EU harmonisation.

In addition, the Regulation provides that the provider's obligation to ensure the cross-border portability of online content services to the subscriber (temporarily present in a Member State) should not extend "to quality requirements", to which it should, on the other hand, to comply if the service is performed in the Member State of residence (except as otherwise and expressly agreed between the parties), since he only has to inform the subscriber/subscriber of the quality of the provision of the service which the latter may enjoy, in the case of that transitional mobility in other Member States.

This provision is feared to be a legitimisation of the failure (and/or at least an opportunity to circumvent) the portability obligation.

The hope is therefore that minimum quality criteria for cross-border portability can be introduced, even if they are lower than those offered if the user is in the Member State of residence, so as not to aggravate it beyond what is reasonable and necessary for the purpose).

A further important observation concerns the costs that service providers will have to bear in order to adapt the technical infrastructure. At the moment these costs are not quantifiable, however, it is hoped that they will not be fully attributed to the user/subscriber.

The hope is that a common position will be reached within the Community which will meet the legitimate needs of consumer access and the economic sustainability of the content industries and that the Italian position coordinated thanks to the work of the mud (Digital Single Market) technical table at the Departments of European Policies of the Presidency of the Council of Ministers will be taken into due consideration.

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