30 Amendments of Victor NEGRESCU related to 2015/0284(COD)
Amendment 58 #
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 toThe problems associated with 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. differ from one sector to another: whereas the music industry began to resolve these problems by proposing multi-territorial or pan-European licenses following the implementation of Directive 2014/26/EU of the European Parliament and of the Council1a, the audiovisual sector, where the model of exclusive territorial licensing predominates, is currently confronted with barriers in providing their content services on a portable basis across the Union. This Regulation aims to solve all the difficulties of adjusting to portability in all sectors concerned through a legal fiction, without affecting the high level of protection guaranteed by the copyright and related rights in the Union, especially the existing territorial licensing model. _____________________ 1aDirective 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ L 84, 20.3.2014, p. 72).
Amendment 67 #
Proposal for a regulation
Recital 10
Recital 10
(10) The acquisition of a licence for the relevant rights is not always possible, notably when rights in content are licensed on an exclusive basis. In order to ensure the territorial exclusivity, online service providers often undertake, in their licence contracts with right holders, including broadcasting organisations or events organisers, to prevent their subscribers from accessing and using their service outside the territory for which the service provider holds the licence. These contractual restrictions imposed on service providers require providers to take measures such as disallowing access to their services from IP addresses located outside the territory concerned. Therefore, one of the obstWhile ensuring that the principle of territoriality is respected, which is essential for the proper development and sustainable financing of the European audiovisual and cinematographic sector, this Regulation should satisfy the demand for aclcess to the cross-border portability, and use of, online content services is to be found in the contracts concluded between the online service providers and their subscribers, which in turn reflect the territorial restriction clauses included in contracts concluded between those service providers and right holderson a portable basis across the Union for any subscriber temporarily present in a Member State other than his or her Member State of residence.
Amendment 73 #
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 barrifor the provision of online content services to subscribers temporarily present in a Member State others to cross-border portability of online content services in the Union and that the cross- border portability can be ensuredhan their Member State of residence by providing a strictly interpretable legal fiction aiming to remove barriers to portability of legally acquired online content related to the licensing of rights.
Amendment 81 #
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, a simple registration based on general personal information such as the user's email-address or name, 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.
Amendment 87 #
Proposal for a regulation
Recital 16
Recital 16
(16) This Regulation should apply to online content services which are provided against payment of money. Providers of such services are in a position to verify the Member State of residence of their subscribers. The right to use an online content service should be regarded as acquired against payment of money whether such payment is made directly to the provider of the online content service, or to another party such as a provider offering a package combining a telecommunications service and an online content service operated by another provider. The payment of a mandatory fee such as a broadcasting licence fee should not be regarded as a payment of money to receive access to those online content services on a cross-border portable basis.
Amendment 97 #
Proposal for a regulation
Recital 17
Recital 17
(17) OProviders of 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 outsidegenerally do not verify the Member State of residence of their users. The inclusion of such online content services in the scope of this Regulation as their inclusion would involve a major change to the way these services are delivered and involve disproportionate costs. As concerns verification of the subscrib. To encourage these service providers to offer their online content services to their user's Member State of residence, information such as a payment of a licence fee for other services provided in theon a portable basis across the Union, they should have the option to be included in the scope of this Regulation provided that they effectively verify the user’s Member State of residence,. If they existence of a contract for internet or telephone connection, IP address or other means of authentication, should be relied upon, if they enable the provider to have reasonable indicators as to the Member Stercise that option, they should be obliged to comply with the provisions of this Regulation in the same way as providers of online content services, which are provided against payment of money. Furthermore, they should inform subscribers, the relevant holders of copyright and related rights and those holding any other rights in the content of online content service of their decision to exercise thate of residence of its subscribersption. Such information could be provided on the provider's website.
Amendment 108 #
Proposal for a regulation
Recital 19
Recital 19
(19) 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. 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.
Amendment 112 #
Proposal for a regulation
Recital 20 a (new)
Recital 20 a (new)
(20a) This Regulation should not be interpreted as restricting a service provider from offering its services to a customer permanently located in another Member State, provided that the necessary licences have been acquired in accordance with Directives of the European Parliament and of the Council 2001/29/EC1a and 2014/26/EU1b and that they have authorisation from the rightholders to use their content. _______________________ 1aDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10). 1b Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ L 84, 20.3.2014, p. 72).
Amendment 115 #
Proposal for a regulation
Recital 21
Recital 21
(21) For the licensing of copyright and related rights, this means that relevant acts of reproduction, communication to the public and making available of works and other protected subject-matter, as well as the acts of extraction or re-utilization in relation to databases protected by sui generis rights, which occur when the service is provided to subscribers when they are temporarily present in a Member State other than their Member State of residence, should be deemed to occur in the subscribers' Member State of residence. The service providers, therefore, should be deemed to carry out such acts on the basis of the respective authorisations from the right holders concerned for the Member State of residence of these subscribers. Whenever service providers can carry out acts of communication to the public or reproduction in the Member State of the subscriber on the basis of an authorisation from the right holders concerned, a subscriber who is temporarily present in a Member State other than his Member State of residence should be able to access and use the service and where necessary carry out any relevant acts of reproduction such as downloading which he would be entitled to do in his own Member State of residence. TProvided that the Member State of residence of the subscriber has been effectively verified in accordance with this Regulation, the provision of an online content service by a service provider to a subscriber temporarily present in a Member State other than his or her Member State of residence and the use of the service by such a subscriber in accordance with this Regulation should not constitute a breach of copyright and related rights or any other rights relevant for the use of the content in the service.
Amendment 117 #
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. With regard to present and future arrangements between online content service providers and rightholders, the decision to provide portability to subscribers temporarily present in another Member State cannot be made subject to contractual provisions. Online content service providers and rightholders should not be allowed to circumvent the application of this Regulation by opting for the law of a non- Member State of the Union as the law applicable to contracts which they conclude.
Amendment 121 #
Proposal for a regulation
Recital 22 a (new)
Recital 22 a (new)
(22a) This Regulation defines several concepts which are necessary for its application, including that of Member State of residence. The Member State of residence should be determined, taking into account the objectives of this Regulation and the need to ensure its uniform application within the Union. Regarding current and future arrangements related to online content services, the provision of portability to subscribers temporarily present in another Member State should not give rise to any special contractual provisions, especially with regard to a certain time limit during which service providers grant portable access to their online content services across the Union.
Amendment 124 #
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 toThis Regulation requires that the service provider makes 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 purposeThe online content service providers should be free to choose between the verification means listed in article 3b in order to verify the subscriber's Member State of residence. It is necessary, however, to ensure that those required means 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 forof the subscriber's Member State of residence are reasonable and do not go beyond what is necessary in order to achieve this purpose. Similarly, wWhere authentication of a subscriber is sufficient in order to deliver the service provided, identification of the subscriber should not be required.
Amendment 141 #
Proposal for a regulation
Recital 25 a (new)
Recital 25 a (new)
(25a) This Regulation should not affect the application of Directive 2014/26/EU of the European Parliament and of the Council1a and in particular Title III thereof relating to multi-territorial licensing of online rights. This Regulation is fully consistent with the objective of facilitating the lawful access to content, which is protected by copyright and related rights, as well as services linked thereto. ____________________ 1a Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ L 84, 20.3.2014, p. 72).
Amendment 158 #
Proposal for a regulation
Article 1
Article 1
This Regulation introduces a common approachlegal framework to ensuring that subscribers to online content services in the Union, when temporarily present in a Member State, can access and use these servicesportable and legally acquired online content services in their Member State of residence can access and use these services when temporarily present in another Member State.
Amendment 163 #
Proposal for a regulation
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
This Regulation applies to all online content services provided to a subscriber against payment of money.
Amendment 164 #
Proposal for a regulation
Article 1 – paragraph 1 b (new)
Article 1 – paragraph 1 b (new)
This Regulation also applies to online content services provided without payment of money as long as the service provider has chosen to enable his subscribers, who are temporarily present in a Member State other than their Member State of residence, to access and use the online content service in question and as long as he verifies the subscriber's Member State of residence in accordance with Article 3b.
Amendment 165 #
Proposal for a regulation
Article 2 – point a
Article 2 – 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, maycan access and use such service in the Member State of residence;
Amendment 177 #
Proposal for a regulation
Article 2 – point d
Article 2 – point d
(d) "Temporarily present" means a non-permanent presence of a subscriber in a Member State other than this or her Member State of residence;
Amendment 180 #
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 tto a subscriber in his or her 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,
Amendment 185 #
Proposal for a regulation
Article 2 – point e – subparagraph 2 – point 2
Article 2 – point e – subparagraph 2 – point 2
(2) without payment of money provided that the subscribonline content service provider decides to offer portable access and use of his online content services to his users across the Union and that the user's Member State of residence is verified by theat provider;
Amendment 190 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
Amendment 195 #
Proposal for a regulation
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1a. Paragraph 1 is without prejudice to the possibility for a service provider to allow a subscriber to also access and use the content licensed to the service provider in the Member State where the subscriber is temporarily present.
Amendment 198 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
Amendment 215 #
Proposal for a regulation
Article 3 a (new)
Article 3 a (new)
Article 3a Option to enable cross-border portability of online content services provided without payment of money 1. 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 other than their Member State of residence to access and use its online content services in accordance with this Regulation. 2. If a provider of an online content service provided without payment of money opts to provide that service in accordance with paragraph 1, it shall inform its users and the rightholders before actually providing that service. The information shall be provided by means which are adequate and proportionate. 3. If a provider of an online content service provided without payment of money opts to provide that service in accordance with paragraph 1, this Regulation shall apply to it.
Amendment 218 #
Proposal for a regulation
Article 3 b (new)
Article 3 b (new)
Amendment 224 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
Amendment 227 #
Proposal for a regulation
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
1a. Clauses in contracts between a service provider and a subscriber designed to prohibit or limit the cross-border portability of online content services shall be unenforceable under this Regulation.
Amendment 228 #
Proposal for a regulation
Article 5 – paragraph 1b (new)
Article 5 – paragraph 1b (new)
1b. The application of this Regulation cannot be circumvented by virtue of the choice of the law of a non-Member State of the Union as the law applicable to contracts signed between service providers and rightholders or to contracts between service providers and subscribers.
Amendment 235 #
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 239 #
Proposal for a regulation
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
Three years after the entry into force of this Regulation, and every three years 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. The Commission's report shall be accompanied, if appropriate and necessary, by legislative or non-legislative proposal(s).