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IPO explains impact of EU portability regulation on copyright holders

The UK's Intellectual Property Office (IPO) has outlined the impact new EU rules affecting online content services could have on copyright holders in a new consultation paper published ahead of the new rules taking effect.

The IPO's explained (24-page / 4.72MB PDF) that rights holders will lose an element of control over how their material is accessed once they have entered licensing agreements with providers of online content services with paid subscribers.

Under the new rules, which come into force on 1 April this year, online content service providers must ensure that they make their service available to paid subscribers "in the same manner as in the member state of residence" when those subscribers are "present in a member state other than the member state of residence for a limited period of time".

The regulation specifically provides that the obligation includes "providing 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". Online content service providers are prohibited from charging subscribers extra to facilitate their new access rights.

For the purposes of the regulation, the provision of online content, as well as the accessing and use of that content, will be deemed to have occurred in the EU country where subscribers are resident rather than in the country where they are temporarily present. The businesses subject to the new rules will be obliged to verify the EU country in which subscribers are resident using methods of verification set out under the regulation.

Although the EU regulation will be directly applicable in the UK, the IPO has opened a consultation on its plans to ensure the regulation can be enforced under UK law.

The IPO's consultation paper, however, contained a useful summary of the effect of the new rules on rights holders.

"Owners of copyright and related rights should be aware that, from 1 April 2018, subscribers to paid for online content services will be able to access content, which may include copyright protected content, when they are temporarily present in another EU member state," the IPO said.

"Furthermore, subscribers to online content services provided without payment of money will also be able to access content when temporarily present in another EU member state if the provider chooses to provide this service. Providers of such services will be able to rely on the Regulation to provide their services on a portable basis, provided that they correctly verify that their subscribers are resident in the EU member state which is their home residence, without further authorisation from rightholders," it said.

"Rightholders may also permit service providers to provide portable services without additional verification of the residence of their subscribers. This may be relevant when a rightholder is happy for their content to be accessed without territorial restrictions, or when the service provider also owns the rights in the content. Rightholders may withdraw this permission upon provision of reasonable notice to the service provider," it said.

'Paid for subscription services' to which the new rules apply include Netflix, Now TV and BT Sport, according to the IPO. The BBC iPlayer, ITV Hub, All 4 and My 5 services are not subject to the new rules, it said.

The IPO said that it has identified six different mechanisms through which the new EU rules could be enforced in the UK. Those include through certain provisions of the regulation itself, contractual enforcement between businesses, as well as under UK laws on copyright, data protection and consumer protection and the Enterprise Act.

"Through using these existing legislation and sanctions, alongside contractual enforcement for obligations between parties, the government believes the Portability Regulation can be adequately enforced in the UK," the IPO said.

The consultation is open until 31 January.

The IPO said the government is intent on publishing guidance on what the new rules mean for businesses in the coming months.

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