Activities of Andrew LEWER related to 2015/0284(COD)
Shadow opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council on ensuring the cross-border portability of online content services in the internal market
Amendments (26)
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 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 travelling for leisure or business. Therefore, barriers that hamper access and use of suchlegally acquired online content services cross border should be eliminated.
Amendment 23 #
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 28 #
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 legally acquired the right to use in their home countryMember State of residence.
Amendment 31 #
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 or are already sold on an exclusive basis within that territory as well as from the fact that online service providers may choose to serve specific markets only.
Amendment 38 #
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 longer presents barriers to cross-border portability of online content services in the Union and that the cross- border portability can be ensuredpermit cross-border portability of online content services to consumers that have legally acquired content and that are temporarily present in a Member State other than that of their Member State of residence within the Union, whilst maintaining, and in accordance with, the principle of territoriality.
Amendment 46 #
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. ANeither the registration to receive content alerts or a mere acceptance of HTML cookies nor the exchange or transfer of data should not be regarded as a contract for the provision of online content service for the purposes of this Regulation.
Amendment 50 #
Proposal for a regulation
Recital 15
Recital 15
(15) This Regulation should apply only to online content services which subscribers can effectively access and use in the Member State of residence in which they habitually reside without being limited to a specific location, as it is not appropriate to require service providers that do not offer portable services within their home country Member State of residence of the subscriber to do so across borders.
Amendment 53 #
Proposal for a regulation
Recital 16 a (new)
Recital 16 a (new)
(16a) Providers of online content services are already in a position to authenticate the Member State of residence of their subscribers at the time of the initial subscription but also have the ability to verify the continual access of content from outside the Member State of residence. The practice of geoblocking currently demonstrates the ability of service providers to deem whether usage is within a specific Member State of residence or outside that Member State, without hampering consumer privacy.
Amendment 55 #
Proposal for a regulation
Recital 17
Recital 17
(17) Online content services which are provided without payment of money are also included in the scope of this Regulation to the extent that providers verify the Member State of residence of their subscribers. Online content services which are provided without the payment of money and whose providers do not verify the Member State of residence of their subscribers should be outside the scope of this Regulation as their inclusion would involve a major channormally do not verify the Member State of residence of their subscribers. The inclusion of such online content services in the scope of this regulation would involve a major change to the way these services are delivered and involve disproportionate costs. On the other hand, the exclusion of these services from the scope of this Regulation would mean that these services would not be able to take advantage tof the way these services are delivered and involve disproportionate costs. As concernslegal mechanism provided for in this Regulation and enabling online content providers to offer their services on a portable basis across the Union even when they decide to invest in means allowing the verification of their subscriber's' Member State of residence, information such as a payment of a licence fee for other services provided in to the same degree of certainty as services which are provided against payment of money. This is why providers of online content services which are provided without payment of money should have an option to be included in the scope of this Regulation if they so decide and provided that they comply with the requirements on the verification of the Member State of residence, to the existence of a contract for internet or telephone connection, IP address or other means of authentication,same degree of certainty as content which is provided against payment of money. If providers of online content services which are provided without payment of money wish to exercise that option, they should be reobliged upon, if they enable the provider to have reasonable indicators as to the Member State of residence of its subscribersto comply with the provisions of this Regulation in the same way as providers of online content services which are provided against payment of money.
Amendment 66 #
Proposal for a regulation
Recital 20
Recital 20
(20) In order to ensure that providers of online content services which are provided against payment of money 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 legal fiction shall not prevent the provider from offering its subscriber, who is temporarily present in another Member State, online content that the provider lawfully provides in that Member State.
Amendment 77 #
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 than the Member State of residence of the 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 ofConsidering that for purposes of the verification what matters is not the specific location or country, but rather whether the individual accessing the vserification 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 sufficient in order to deliver thevice is in his or her Member State of residence or not, precise location data should not be collected and processed for this purpose. The list of verification means, as provided for in this Regulation, provides the sufficient and flexible means by which service provided, idrs can authentification of the subscriber should not be requirede and verify subscribers' access and Member State of residence.
Amendment 81 #
Proposal for a regulation
Recital 23 a (new)
Recital 23 a (new)
(23a) The list of verification means, provided for in this Regulation, aims to provide legal certainty as to the verification means to be used by service providers. In each case, account should be taken of a particular verification means in the given Member State and of the given type of online content service. Unless the Member State of residence can be established to a sufficient degree of certainty on the basis of a single verification means, providers should rely on a combination of these means. Furthermore, this Regulation should allow agreements between service providers and right holders as to which particular verification means could be used by providers. This should allow for flexibility as to the choice of the verification means. Such means should also be effective, reasonable and should not go beyond what is necessary in order to achieve the purpose of establishing the Member State of residence. However, holders of copyright and related rights, or other rights in content of online content services should remain able to permit their content to be accessed and used under this Regulation without verification of the Member State of residence provided they do so equally across all Member States. Right holders should be able to take such decisions freely and individually when entering into agreements with providers. Service providers may request the subscriber to provide necessary information in order to sufficiently authenticate or verify a subscriber's Member State of residence. If the subscriber fails to provide such information and as a result the provider is unable to establish or verify the Member State of residence as required under this Regulation, the provider should not provide cross-border portability of online content service to this subscriber.
Amendment 93 #
Proposal for a regulation
Recital 29
Recital 29
(29) Since the objective of this Regulation, namely the adaptation of the legal framework so that cross-border portability of online content services is provided in the Union, cannot be sufficiently achieved by Member States and can therefore, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve its objective. Therefore, this Regulation does not substantially affect the way the rights are licensed and does not oblige right holders and service providers to renegotiate contracts. Moreover, this Regulation does not require that the provider takes measures to ensure the quality of delivery of online content services outside the Member State of residence of the subscriber. Finally, this Regulation does not apply to service providers who offer services without payment of money and who do not verify the subscriber's Member State of residenceexercise their option to comply with this Regulation. Therefore, it does not impose any disproportionate costs,.
Amendment 96 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
This Regulation introduces a common approach to ensuring that subscribers to legally acquired online content services in the Union, when temporarily present in a Member State, can access and use these services other than that of their Member State of residence can access and use these services whilst respecting all the relevant copyright and related rights of the content accessed and used.
Amendment 103 #
Proposal for a regulation
Article 2 – point c
Article 2 – point c
(c) "Member State of residence" means the Member State where the subscriber is habitually residing, established on the basis of Article 3b, where the subscriber has his or her actual and stable residence to which he or she returns regularly;
Amendment 107 #
Proposal for a regulation
Article 2 – point c a (new)
Article 2 – point c a (new)
(ca) For the purposes of this Regulation, a consumer has one Member State of residence;
Amendment 110 #
Proposal for a regulation
Article 2 – point d
Article 2 – point d
(d) "Temporarily present" means athe transitory presence of a subscriber in a Member State other than the Member State of residence;
Amendment 112 #
Proposal for a regulation
Article 2 – point e
Article 2 – 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 lawful access to and use of works, and other protected subject matter or transmissions of broadcasting organisations, whether in a linear or an on- demand manner,.
Amendment 114 #
Proposal for a regulation
Article 2 – point e a (new)
Article 2 – point e a (new)
(ea) "Portable" means that subscribers can effectively access and use the legally acquired online content service in the Member State of residence without being limited to a specific location;
Amendment 115 #
Proposal for a regulation
Article 2 – point e – subparagraph 2
Article 2 – point e – subparagraph 2
(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 117 #
Proposal for a regulation
Article 2 – point f
Article 2 – point f
Amendment 131 #
Proposal for a regulation
Article 3 a (new)
Article 3 a (new)
Article 3a Providers of online content without payment of money 1. Providers of online content services provided without payment of money may decide to enable its subscribers who are temporarily present in a Member State to access and use the online content service in accordance with this Regulation should they be able to verify and authenticate a subscriber's Member State of residence to a reasonable degree of certainty. 2. Providers of online content services provided without payment of money, equivalent to the obligation on those providers who do receive payment of money, shall notify subscribers, the relevant holders of copyright and related rights and those holding any other rights in the content of online content service provision, of its decision to provide portability of content in accordance with paragraph 1. This notification shall be made by means that are adequate and proportionate. 3. Any decision made by providers of online content services provided without payment of money pursuant to paragraph 1 shall mean that those providers shall be subject to this Regulation.
Amendment 134 #
Proposal for a regulation
Article 3 b (new)
Article 3 b (new)
Amendment 140 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
(1) Any contractual provisions including those between holders of copyright and related rights, those holding any other rights relevant for the use of and access to content in online content services and service providers, as well as between service providers and subscribers which are contrary to Articles 3(1) and 4this Regulation shall be unenforceable.
Amendment 148 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
(2) Notwithstanding paragraph 1, hHolders of copyright and related rights or those holding any other rights in the content of online content services may require assurances that the service provider makeis making use of effective means in order to verify that the online content service is provided in conformity with this Regulation and in line with Article 3(1b(4), provided that the required means are reasonable and do not go beyond what is necessary in order to achieve their purpose or infringe the telecoms rules currently into force, in particular in the area of general data protection, or require any change in contracts concluded between right holders and service providers.
Amendment 155 #
Proposal for a regulation
Article 8 – paragraph 2 – subparagraph 1
Article 8 – paragraph 2 – subparagraph 1