Another EU regulation against geoblocking
On 1st April 2018, another EU regulation against geoblocking came into force. Hence-forth, subscribers can access paid online content services providing e-books, music, films and video games when visiting other EU Member States without paying additional fees (the full text of the Regulation can be found here). The EU is thus responding to the desire of consumers to be able to use the new technologies across borders.
The debate on a draft Regulation banning geoblocking with regard to goods and ser-vices offered on e-commerce platforms ended in February 2018 (Raue reported here). Digital content protected by copyright was expressly excluded from the scope of this Regulation. The new Regulation thus closes a gap in the EU campaign against geoblocking.
Who will benefit from the new Regulation?
Consumers resident in the EU can access their subscribed films, sports events, e-books, etc. when being temporarily present in another EU member state without having to pay additional fees, thanks to the Regulation. Therefore, only those subscribers who use the digital content for private purposes will benefit from the Regulation. A “temporary presence” mainly means holiday and business trips as well as daily commuting to work in another EU member state.
The providers of digital copyrighted content also benefit from the Regulation. They now can offer their subscribers content EU-wide without having to obtain licenses for the other territories.
What do digital content providers need to consider?
The Regulation is primarily aimed at providers of paid online content services.
These are obliged to provide a subscriber with the same digital content in other EU member states as the subscriber can access in their EU member state of residence. They may not charge any additional fee for this. But they are free to make additional digital content, which is currently only available in other EU member states, available to subscribers with or without an additional charge.
The providers are obliged to check the subscriber’s country of residence upon conclu-sion or extension of the contract. To this end, they may use a maximum of two of the means of verification listed exhaustively in the Regulation, such as identity cards, pay-ment details, voter lists and payment of radio license fees. The data thus obtained must be kept in accordance with the EU General Data Protection Regulation coming in force from 25th May 2018. The residence of existing subscribers must be verified by the pro-viders by the deadline of 21th May 2018.
The Regulation itself does not provide for sanctions in the event of infringement of the new rules. However, national sanction mechanisms, such as notices by consumer as-sociations or competitors, should be considered.
For providers who make their content available free of charge, the requirements of the Regulation do not necessarily apply. They may voluntarily submit to the rules of the Regulation. Only then will they be subject to essentially the same rules as providers of paid content. Providers must notify subscribers of the decision to apply the Regulation before making their content available to them.
What is recommended to right holders?
Rights holders cannot rely on contractual provisions with digital content providers that contravene the Regulation, such as provisions that limit the provision of content to one Member State or stipulate a time limit. These provisions are no longer enforceable. Rights holders can therefore only take into account the availability of their content throughout the EU by increasing the license fee when concluding new contracts. They may also provide that their content may be available throughout the EU without prior verification of subscribers’ place of residence.
(5 April 2018)