47 Amendments of Sergio GUTIÉRREZ PRIETO related to 2015/0284(COD)
Amendment 20 #
Proposal for a regulation
Recital 1
Recital 1
(1) Since the internal market comprises an area without internal frontiers relying, inter alia, on the free movement of services and persons, it is necessary to provide that consumers canGuaranteeing permanent access to online content services for consumers throughout the European Union based on subscriptions contracted in the Member State of residence is an important element for the completion of the Single Market and the effective enforcement of the principles of free movement of persons and services. Consumers should be able to use online content services which offer access to content such as music, games, films or sporting events not only in their Member State of residence but also when they are temporarily present in other Member States of the Union for purposes such as business or leisure travel, periods of study. Therefore, barriers that hamper access and use of such online content services cross borders should be eliminated.
Amendment 24 #
Proposal for a regulation
Recital 1
Recital 1
(1) Since the internal market comprises an area without internal frontiers relying, inter alia, on the free movement of services and persons, it is necessary to provide that consumers can use online content services which offer access to content such as music, games, films or sporting events not only in their Member State of residence but also when they are temporarily present in other Member States of the Union for purposes such as holidays, travel or business trips. Therefore, barriers that hamper temporary access and use of such online content services cross border should be eliminated.
Amendment 33 #
Proposal for a regulation
Recital 2
Recital 2
(2) The technological development leading to a proliferation of portable devices such as tablets and smartphones increasingly facilitates the use of online content services by providing access to them regardless of the consumers' location. There is a rapidly growing demand on the part of consumers for access to content and innovative online services not only in their home countryMember State of residence but also when they are temporarily present in another Member State of the Union.
Amendment 36 #
Proposal for a regulation
Recital 3
Recital 3
(3) Consumers increasingly enter into contractual arrangements with service providers for the provision of online content services. However, consumers that are temporarily present in another Member State of the Union often cannot continue accessing and useing the online content services that they have acquired the right to use in their home countryMember State of residence.
Amendment 40 #
Proposal for a regulation
Recital 3
Recital 3
(3) Consumers increasingly enter into contractual arrangements with service providers for the provision of online content services. However, consumers that are temporarily present in another Member State of the Union often cannot access and use the online content services that they have acquired the right to use in their home countryMember State of residence.
Amendment 44 #
Proposal for a regulation
Recital 4
Recital 4
(4) There are a number of barriers which hinder the provision of these services to consumers temporarily present in another Member State. Certain online services include content such as music, games or films which are protected by copyright and/or related rights under Union law. In particular, the obstacles to cross- border portability of online content services stem from the fact that the rights for the transmission of content protected by copyright and/or related rights such as audiovisual works are often licensed on a territorial basis as well as from the fact that online service providers may choose to serve specific markets only. Nonetheless, territorial licences play a key role in the financing and production of cultural content adapted to suit the different markets in the Union, especially in the audiovisual and film sphere, making a decisive contribution to European cultural diversity.
Amendment 48 #
Proposal for a regulation
Recital 6
Recital 6
(6) Therefore, increasingly, online content services are marketed in a package in which content which is not protected by copyright and/or related rights is not separable from content which is protected by copyright and/or related rights without substantially lessening the value of the service provided to consumers. This is especially the case with premium content such as sporting or other events of significant interest to consumers. In order to enable service providers to deliver to consumers, who are temporarily present in a Member States other than their Member State of residence, full access to their online content services, it is indispensable that this Regulation also covers such content used by online content services and therefore that it applies to audiovisual media services in the meaning of Directive 2010/13/EU as well as to transmissions of broadcasting organisations in their entirety. In this regard, it is crucial to fulfil the commitment to achieve the target of minimum download speeds of 30 Mbps or more for all and 50% of the EU to be subscribed to broadband above 100 Mbps by 2020.
Amendment 50 #
Proposal for a regulation
Recital 6
Recital 6
(6) Therefore, increasingly, online content services are marketed in a package in which content which is not protected by copyright and/or related rights is not separable from content which is protected by copyright and/or related rights without substantially lessening the value of the service provided to consumers. This is especially the case with premium content such as sporting or other events of significant interest to consumers. In order to enable service providers to deliver to consumers full access to their online content services for the duration of the temporary stay in a Member State other than the Member State of residence, it is indispensable that this Regulation also covers such content used by online content services and therefore that it applies to audiovisual media services in the meaning of Directive 2010/13/EU as well as to transmissions of broadcasting organisations in their entirety.
Amendment 55 #
Proposal for a regulation
Recital 12
Recital 12
(12) Therefore, the objective of this Regulation is to adapt the legal framework ion order to ensure that the licensing of rights no longer presents barriers to cross-border portability of online content services in the Union and that the cross- border portability can be ensuredcopyright and related rights in order to provide and ensure cross-border portability of online content services in the Union to subscribers temporarily present in Member States other than their Member State of residence, without undermining the principle of territoriality as it plays a key role in the financing, production and distribution of European audiovisual content.
Amendment 58 #
Proposal for a regulation
Recital 12
Recital 12
(12) Therefore, the objective of this Regulation is to adapt theprovide a legal framework in order to ensure that the licensing of rights no longer presents barriers to cross-border portability of online content services in the Union and that the cross- border portability can be ensuredfor the provision of online content services based on a robust enforcement mechanism underpinning a legal fiction designed to permit portability of online content services to consumers who are temporarily present in a Member State other than that of residence without additional costs.
Amendment 60 #
Proposal for a regulation
Recital 12
Recital 12
(12) Therefore, the objective of this Regulation is to adapt the legal framework in order to ensure that the licensing of rights no longerdoes not presents barriers to cross- border portability of online content services in the Union and that the cross- border portability can be ensured in the cases provided for in this Regulation.
Amendment 66 #
Proposal for a regulation
Recital 12 a (new)
Recital 12 a (new)
(12a) In any case a distinction shall be made between the portability of online content services and cross-border access thereto, which shall be excluded from the scope of this Regulation.
Amendment 68 #
Proposal for a regulation
Recital 13
Recital 13
(13) This Regulation should, therefore, apply to online content services that a service provider, after having obtained the relevant rights from right holders in a given territory, provides to its subscribers on the basis of a contract, by any means including streaming, downloading or any other technique which allows use of that content. A registration to receive content alerts or a mere acceptance of HTML cookies should not be regarded as a contract for the provision of online content service for the purposes of this Regulation. Online content services provided on the basis of pan-European licences under Directive 2014/26/EU shall also be excluded from the scope of this Regulation.
Amendment 72 #
Proposal for a regulation
Recital 13 a (new)
Recital 13 a (new)
(13a) For the purposes of this Regulation, consumers may not state that they are habitually resident in more than one Member State.
Amendment 88 #
Proposal for a regulation
Recital 17
Recital 17
(17) Online content services which are provided without payment of money are alsowill have an option to be included in the scope of this Regulation toif the extent that providers verify the Member State of residence of their subscribers. Online content services which are provided without the payy so decide and provided that they comply with the requirements of money and whose providers do not verify the Member State of residence of their subscribers should be outside the scope ofn the verification of the Member State of residence set out in this Regulation asin their inclusion would involve a major change to the way these services are delivered and involve disproportionate costs. As concerns verification of the subscriber's Member State of residence, information such as a payment of a licence fee for o same way as providers of online content services which are provided against payment of money. If thery services provided in the Member State of residence, the existence of a contract for internet or telephone connection, IP address or other means of authentication, should beo decide, they should inform subscribers and the holders of copyright and reliated upon, if they enable the provider to have reasonable indicators as to the Member Strights of their decision to exercise thate of residence of its subscribersption.
Amendment 95 #
Proposal for a regulation
Recital 18
Recital 18
(18) In order to ensure the cross-border portability of online content services it is necessary to require that online service providers enable their subscribers to use the service in the Member State of their temporary presence by providing them access to the same content on the same range and number of devices, for the same number of users and with the same range of functionalities as those offered in their Member State of residence. This obligation is mandatory and therefore the parties may not exclude it, derogate from it or vary its effect. Any action by a service provider which would prevent the subscriber from accessing or using the service while temporarily present in a Member State other than the Member State of residence, for example restrictions to the functionalities of the service or to the quality of its delivery, would amount to a circumvention of the obligation to enable cross-border portability of online content services and therefore would be contrary to this Regulation.
Amendment 101 #
Proposal for a regulation
Recital 19
Recital 19
(19) Requiring that the delivery of online content services to subscribers temporarily present in Member States other than their Member State of residence be of the same quality as in the Member State of residence could result in high costs for service providers and thus ultimately for subscribers. Therefore, it is not appropriate for this Regulation to require that the provider of an online content service take measures to ensure quality of delivery of such services beyond the quality available via the local online access chosen by a subscriber while temporarily present in another Member State. In such cases the provider shall not be liable if the quality of delivery of the service is lower. Nevertheless, if the provider expressly agrees to guarantee certain quality of delivery to subscribers while temporarily present in other Member States, the provider shall be bound by such agreement. The provider should provide its subscribers in advance with general information concerning the quality of delivery of an online content service in Member States other than the Member State of residence.
Amendment 106 #
Proposal for a regulation
Recital 20
Recital 20
(20) In order to ensure that providers of online content services comply with the obligation to provide cross-border portability of their services without acquiring the relevant rights in another Member State, it is necessary to stipulate that those service providers which lawfully provide portable online content services in the Member State of residence of subscribers are always entitled to provide such services to those subscribers when they are temporarily present in another Member State. This should be achieved by establishing that the provision, the access to and the use of such online content service should be deemed to occur in the Member State of the subscriber's residence. This Regulation does not prevent a provider from offering its subscriber who is temporarily present in another Member State an online content service that the provider lawfully provides in that Member State.
Amendment 111 #
Proposal for a regulation
Recital 22
Recital 22
(22) Service providers should not be liable for breach of any contractual provisions contrary to the obligation to enable their subscribers to use the service in the Member State of their temporary presence. Therefore clauses in contracts designed to prohibit or limit the cross- border portability of online content services across the Union should be unenforceable.
Amendment 115 #
Proposal for a regulation
Recital 23
Recital 23
(23) Service providers should ensure that their subscribers are properly informed about the conditions of enjoyment of online content services in Member States other thanwithin the scope of this Regulation should be obliged to make use of effective means in order to verify the Member State of residence of their subscribers. The Regulation enables right holders to require that the service provider make use of effective means in order to verify that the online content service is provided in conformity with this Regulation. It is necessary, however, to ensure that the required means are reasonable and do not go beyond what is necessary in order to achieve this purpose. Examples of the necessary technical and organisational measures may include sampling of IP address instead of constant monitoring of location, transparent information to the individuals about the methods used for the verification and its purposes, and appropriate security measures. Considering that for purposes of the verification what matters is not the location, but rather, in which Member State the subscriber is accessing the service, precise location data should not be collected and processed for this purpose. Similarly, where authentication of a subscriber is sufficiento that effect, the providers should rely on the verification means listed in this Regulation. Providers and right holders should be allowed to enter into agreements on particular verification means, whether listed or not in this Regulation. The use of such means should always be reasonable and should not go beyond what is necessary in order to deliachiever the service provided, identification of the subscriber should not be requiredpurpose of establishing the Member State of residence.
Amendment 131 #
Proposal for a regulation
Recital 24
Recital 24
(24) This Regulation respects fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union. Accordingly, this Regulation should be interpreted and applied in accordance with those rights and principles, in particular the right to respect for private and family life, the right to protection of personal data, the right to property, including intellectual property rights, the freedom of expression and the freedom to conduct a business. Any processing of personal data under this Regulation should respect fundamental rights, including the right to respect for private and family life and the right to protection of personal data under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and must be in compliance with Directives 95/46/EC27 and 2002/58/EC28 . In particular, service providers must ensure that any processing of personal data under this Regulation must be necessary and proportionate in order to achieve the relevant purpose. __________________ 27 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data OJ L 281, 23.11.1995, p. 31–50. 28 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.07.2002, p 37), called, as amended by Directives 2006/24/EC and 2009/136/EC, the "e- Privacy Directive".
Amendment 134 #
Proposal for a regulation
Recital 25
Recital 25
(25) This Regulation should not affect the application of the rules of competition, and in particular Articles 101 and 102 of the Treaty. The rules provided for in this Regulation should not be used to restrict competition in a manner contrary to the Treaty. Nor shall this Regulation apply to online content services for which pan- European licences already exist under Directive 2014/26/EU.
Amendment 145 #
Proposal for a regulation
Article 1
Article 1
This Regulation introduces a common approachlegal framework to ensuring that subscribers to portable and legally acquired online content services in the Unionir Member States of residence, when temporarily present in a Member State other than that of residence, can access and use these services.
Amendment 147 #
Proposal for a regulation
Article 1
Article 1
This Regulation introduces a common approach in the Union to ensuring that subscribers to portable online content services in the Union, when temporarily present in a Member State, can access and use these servicesir Member States of residence can access and use these services when temporarily present in a Member State.
Amendment 152 #
Proposal for a regulation
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
(1a) This Regulation is without prejudice to the Union law in the field of taxation.
Amendment 154 #
Proposal for a regulation
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
(a) "Subscriber" means any consumer who, on the basis of a contract for the provision of an online content service with a provider, mayhas access and use such service in the Member State of residence;
Amendment 160 #
Proposal for a regulation
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
(c) "Member State of residence" means the Member State where the subscriber is habitually residinghas her or his actual and stable residence to which she or he returns regularly;
Amendment 163 #
Proposal for a regulation
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
(c) "Member State of residence" means the Member State where the subscriber is habituallyhas his or her actual and stable residingence;
Amendment 165 #
Proposal for a regulation
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(d) "Temporarily present in a Member State" means athe presence of a subscriber in a Member State other than the Member State of residence for a limited period of time;
Amendment 169 #
Proposal for a regulation
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(d) "Temporarily present" means a in a Member State" means a non-permanent presence of a subscriber in a Member State other than the Member State of residence;
Amendment 174 #
Proposal for a regulation
Article 2 – paragraph 1 – point e
Article 2 – paragraph 1 – point e
(e) "Online content service" means a service as defined by Articles 56 and 57 of the Treaty on the Functioning of the European Union that a service provider is lawfully providing online in the Member State of residence on a portable basis and which is an audiovisual media service within the meaning of Directive 2010/13/EU or a service the main feature of which is the provision of access to and use of works, other protected subject matter or transmissions of broadcasting organisations, whether in a linear or an on- demand manner, which is provided to a subscriber on agreed terms either: (1) (2) provided that the subscriber's Member State of residence is verified by the provider;; against payment of money; or without payment of money
Amendment 185 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
(1) The provider of an portable online content service provided against payment of money shall enable a subscriber who is temporarily present in a Member State to access and use the online content service available in his or her Member State of residence without imposing additional costs.
Amendment 194 #
Proposal for a regulation
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
(1a) The application of this Regulation cannot be circumvented by virtue of the choice of the law of a non-member country as the law applicable to contracts signed between service providers and rights holders or to contracts between providers and subscribers.
Amendment 196 #
Proposal for a regulation
Article 3 – paragraph 3
Article 3 – paragraph 3
(3) THowever, the provider of an online content service shall duly inform the subscriber, on a durable medium, before the subscription of the contract or, for contracts subscribed before the date of application of this Regulation, in due time before that date, of the quality of delivery of the online content service provided in accordance with paragraph 1 and of the conditions of portability set out in accordance with this Regulation.
Amendment 199 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 1 a (new)
Article 3 – paragraph 3 – subparagraph 1 a (new)
Notwithstanding paragraph 2 of this Article, and unless objective technical failures occur, providers of online content services shall guarantee to the subscriber temporarily present in a Member State other than that of residence the same level of quality that is provided to the subscribers habitually residing in the Member State where he or she is temporarily present.
Amendment 204 #
Proposal for a regulation
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
(3a) Online service providers shall not limit the obligations set out in paragraph 1 of Article 3 on the basis of the use of any specific technology or devices.
Amendment 209 #
Proposal for a regulation
Article 3 a (new)
Article 3 a (new)
Article 3a Verification of the Member State of residence 1. The provider of an online content service that enables a subscriber who is temporarily present in a Member State to access and use the online content service shall make use of effective means in order to verify the Member State of residence of the subscriber. These means shall be reasonable and shall not go beyond what is necessary in order to achieve their purpose. 2. In order to comply with the obligation set out in paragraph 1, the provider shall rely on at least two of the following verification means: (a) an identity card or any other valid document confirming subscriber's Member State of residence; (b) the billing address or the postal address of the subscriber; (c) bank details such as the bank account or local credit or debit card of the subscriber; (d) the place of installation of a set top box or a similar device used for the supply of services to the subscriber; (e) the subscriber being a party to a contract for internet or telephone connection in the Member State; (f) the subscriber paying a licence fee for other services provided in the Member State, such as public service broadcasting; (g) sampling or periodic checking of the Internet Protocol (IP) address to identify the Member State where the subscriber accesses and uses the online content service or identifying that Member State by other means of geolocation. 3. The processing of personal data pursuant to the verification shall be carried out in compliance with Regulation 2016/679/EU of the European Parliament and of the Council and Directive 2002/58/EC of the European Parliament and of the Council. 4. The provider shall be entitled to request the subscriber to provide the information necessary for the verification of the Member State of residence. If the subscriber fails to provide that information and consequently the provider is unable to effectively verify the Member State of residence, as required by this Regulation, the provider shall not, on the basis of this Regulation, enable the subscriber to access the online content service when she or he is temporarily present in a Member State.
Amendment 214 #
Proposal for a regulation
Article 3 a (new)
Article 3 a (new)
Article 3a Option to enable portability The provider of an online content service provided without payment of money may choose to enable its subscribers who are temporarily present in a Member State to access and use the online content service on the condition that the provider verifies effectively the subscriber's Member State of residence in accordance with this Regulation. The service provider shall inform subscribers, the relevant holders of copyright and related rights and those holding any other rights in the content of online content service of its decision to provide the online content service in accordance with paragraph 1 of this Article prior to providing that service. The information shall be provided by means which are adequate and proportionate. If the provider chooses to provide the online content service in accordance with paragraph 1 of this Article, this Regulation shall apply to that provider entirely.
Amendment 217 #
Proposal for a regulation
Article 3 b (new)
Article 3 b (new)
Article 3b Verification of the Member State of residence (1) The provider of an online content service provided against payment of money shall make use of effective means in order to verify the Member State of residence of its subscribers. These verification means shall be reasonable, not intrusive, proportionate and shall not go beyond what is strictly necessary in order to achieve the purpose of this Regulation. These means shall not constitute an excessive burden for the subscribers. (2) In order to comply with the obligation set out in paragraph 1, the provider shall rely on the following verification means: (a) a declaration by the subscriber on their Member State of residence; (b) any valid document confirming subscriber's Member State of residence; (c) the billing address or the postal address of the subscriber; (d) bank details such as bank account, local credit or debit card of the subscriber; (e) the place of installation of a set top box or a similar device used for supply of services to the subscriber; (f) the subscriber being a party to a contract for internet or telephone connection in the Member State; (g) the subscriber paying a licence fee for other services provided in the Member State, such as public service broadcasting; (h) currently used technical means for periodic checking of relevant information of IP addresses, to the extent that is strictly necessary for the purposes of this Regulation. (3) Unless the Member State of residence can be sufficiently established on the basis of a single verification means, the provider shall rely on a combination of such means. (4) The declaration of a subscriber on their Member State of residence shall only be used in combination with one or more other verification means. (5) The service provider shall not track the location of the subscriber by means of Internet Protocol (IP) sampling or other means of geolocation in order to comply with the obligation of paragraph 1 of Article 3.
Amendment 220 #
Proposal for a regulation
Article 4
Article 4
The provision of an online content service tounder this Regulation to a subscriber who is temporarily present in a Member State, as well as the access to and the use of this service by, a that subscriber, in accordance with Article 3(1), shall be deemed to occur solely in the Member State of residence including for the purposes of Directive 96/9/EC, Directive 2001/29/EC, Directive 2006/115/EC, Directive 2009/24 and Directive 2010/13/EU.
Amendment 227 #
Proposal for a regulation
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
(1a) Paragraph 1 is without prejudice to the possibility of the service provider allowing the subscriber to also access the content licensed to the service provider in the Member State where the subscriber is temporarily present.
Amendment 234 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
(2) Notwithstanding paragraph 1, holders of copyright and related rights or those holding any other rights in the content of online content services may require thatcontractually oblige the service provider to make use of effective means as stated in Article 3A in order to verify that the online content service is provided in conformity with Article 3(1), provided that the required means are reasonable and do not go beyond what is necessary in order to achieve their purposethis Regulation.
Amendment 242 #
Proposal for a regulation
Article 6
Article 6
The processing of personal data carried out within the framework of this Regulation including, in particular, for purposes of verification under Article 5(2), shall be carried out in compliance with Directives 95/46/EC and 2002/58/EC.
Amendment 243 #
Proposal for a regulation
Article 6
Article 6
The processing of personal data carried out within the framework of this Regulation including, in particular, for purposes of verification of the Member State of residence under Article 5(2)3b, shall be carried out in compliance with Directives 95/46/EC and 2002/58/EC.
Amendment 248 #
Proposal for a regulation
Article 7
Article 7
This Regulation shall apply also to contracts concluded and rights acquired before the date of its application if they are relevant for the provision, the access to and the use of an online content service in accordance with Articles 3 and 3a after that date.
Amendment 249 #
Proposal for a regulation
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
(1a) Three years after the entry into force of this Regulation, and at three-year intervals thereafter, the Commission shall assess the application of this Regulation and submit to the European Parliament and to the Council a report on the application of this Regulation. The report shall include, inter alia, an assessment of the effectiveness of the verification means of the Member State of residence, including newly developed industry standards and practices, and, if necessary, on the need for a review. The Commission's report shall be accompanied, if appropriate, by legislative or non-legislative proposal(s).
Amendment 255 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
It shall apply from [date: 612 months following the day of its publication].