37 Amendments of Rosa D'AMATO related to 2015/0284(COD)
Amendment 18 #
Proposal for a regulation
Citation 1 a (new)
Citation 1 a (new)
– having regard to the Charter of Fundamental Rights of the European Union,
Amendment 19 #
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, regardless of where it is in the European Union that they have acquired those services. Therefore, all barriers that hamper access and use of such online content services cross border should be eliminated.
Amendment 22 #
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 country but also when they are temporarily present in another Member State ofAt a time when business models are moving away from territorial exclusivity, we are witnessing rapidly growing demand on the part of consumers for uninterrupted barrier-free access to innovative online content and services across the Union.
Amendment 24 #
Proposal for a regulation
Recital 2 a (new)
Recital 2 a (new)
(2a) The protection of authors, creators and right holders is a paramount objective for the Union and one that must be strictly adhered to in these times of technological change. That change nevertheless dictates that the forms such protection takes should be redesigned, so that they continue to be effective. In order to ensure a balance between that protection, on the one hand, and the safeguarding and enhancing of the Union's cultural diversity, especially as regards minorities, on the other, the Union must be viewed as a single geographical entity, with a view to full and effective completion of the digital single market.
Amendment 27 #
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 thatwho are temporarily present in anoexercising their Member State offundamental right of freedom of movement within the Union often cannot access and use the online content services thatoutside the Member State in which they have acquired the right to use in their home countrythem.
Amendment 29 #
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 Statewhen they move within the Union. 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 basisfor use in part of the Union only as well as from the fact that online service providers may choose to serve specific markets only.
Amendment 34 #
Proposal for a regulation
Recital 5
Recital 5
(5) The same applies to other content such as sporting events which is not protected by copyright and/or related rights under Union law but which may be protected by copyright, related rights or by virtue of other specific legislation under national law and which is often also licensed by organisers of such events or offered by online service providers oin a territorial basispart of the Union only. Transmissions of such content by broadcasting organisations would be protected by related rights which have been harmonised at Union level. In addition, transmissions of such content often include copyright-protected elements such as music, opening or closing video sequences or graphics. In addition, certain aspects of such transmissions relating to events of major importance for society or events of high interest to the public for the purpose of short news reports, have been harmonised by Directive 2010/13/EU of the European Parliament and of the Council22. Finally, audiovisual media services within the meaning of Directive 2010/13/EU include services which provide access to content such as sporting events, news or current events. __________________ 22 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services OJ L 95, 15.4.2010, p. 1– 24.
Amendment 35 #
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 in part of the Union only, 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 territorypart of the territory of the Union 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 territorypart of the territory of the Union concerned. Therefore, one of the obstacles to the cross-border portability 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 in respect of part of the territory of the Union only included in contracts concluded between those service providers and right holders.
Amendment 41 #
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 ensured. This is designed to ensure that those online content service providers who intend to adopt business models based on full accessibility of their services across the Union, moving beyond territorial exclusivity, are able to innovate and compete on an equal footing with service providers who persist with traditional models, thereby helping to complete the digital single market to the advantage of all consumers in the Union.
Amendment 45 #
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 in the Union, 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 regar throughout the territory of the Union. Contracts for the provision of online content services within the meaning of this Regulation should be concluded formally and explicitly between the service providedr as a contract for the provision of online content service fornd the subscriber, in written or electronic form, in accordance with Directive 2011/83/EU1a . __________________ 1aDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the pEurposes of this Regulationopean Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64).
Amendment 47 #
Proposal for a regulation
Recital 14
Recital 14
(14) An online service which is not an audiovisual media service within the meaning of Directive 2010/13/EU and which uses works, other subject matter or transmissions of broadcasting organisations in a merely ancillary manner should not be covered by this Regulation, although it should, as far as possible, be provided in accordance with the guiding principles of portability and accessibility throughout the Union. Such services include websites that use works or other protected subject matter only in an ancillary manner such as graphical elements or music used as background, where the main purpose of such websites is, for example, the sale of goods.
Amendment 48 #
Proposal for a regulation
Recital 15
Recital 15
Amendment 51 #
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.
Amendment 52 #
Proposal for a regulation
Recital 16 a (new)
Recital 16 a (new)
(16a) Full and effective completion of the digital single market will presumably result in a situation in which the public authorities will be called upon to regulate, in the public interest, both content services and other kinds of services offered online which are provided in return for another non-monetary service (e.g. personal navigation data). The Commission should therefore bear this aspect in mind when this Regulation is reviewed.
Amendment 54 #
Proposal for a regulation
Recital 17
Recital 17
Amendment 60 #
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 dethroughout the territory of the Union, by providing them access to the services, for the same number of users and with the same range of functionalities as those offered in their Member State of residenceas contractually stipulated. 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 Statein any part of the territory of the Union, 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 63 #
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 the Member State of residencein which the contract was concluded be of the same quality as in the Member State of residencein which the contract was concluded could result in high costs for service providers and thus ultimately for subscribers. Therefore, it is notwould not seem 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 Statemoving freely within the Union. In such cases the provider shallould 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 agreementithin the Union, the provider shall be bound by such agreement. The competent market surveillance authority should regularly monitor the pertinence of the justifications given by providers for a lower quality of delivery.
Amendment 64 #
Proposal for a regulation
Recital 20
Recital 20
Amendment 70 #
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. 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 residencein the Union, should be deemed to occur in the State in which the relevant contracts have been concluded. Whenever service providers can carry out acts of communication to the public or reproduction in the Member State, the provision of an online content service by a service provider to a subscriber moving freely within the Union 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 74 #
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 presencein which the relevant contracts have been concluded. Therefore clauses in contracts designed to prohibit or limit the cross- border portability of online content services should be unenforceable.
Amendment 76 #
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 holin which the relevant contract has been concluded, in orders 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 doguarantee them a high level of protection, as well as transparency, correctness and equity in contractual relations. This regulation facilitates coordination between the European Commission and the competent market surveillance authorities to ensure that the protection of right holders is guaranteed effectively by means of instruments which are reasonable, proportional and consistent with the purpose, not going beyond what is necessary in order to achieve this purpose. Examples of the necessary tstrictly necessary, at the same time ensuring freedom to browse anonymously in accordance with the Charter of Fundamental Rights of the European Union and particularly Articles 7 and 8 thereof. Technical and organisational measures mayshould 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 verificationappropriate security measures to protect personal data and the release of transparent information to the individuals about the methods of acquisition and processing of such data and the purposes thereof. Considering that what matters is not the location, but rather, in which Member State whether the subscriber ihas accessing to the service within the territory of the Union, precise location data should not be collected and processed for this purpose. Similarly, where authentication of a subscriber is sufficient in order to deliver the service provided, identification of the subscriber should not be required.
Amendment 88 #
Proposal for a regulation
Recital 26
Recital 26
(26) Contracts under which content is licensed are usually concluded for a relatively long duration. Consequently, and in order to ensure that all consumers residing in the Union can enjoy the cross- border portability feature of online content services on an equal basis in time and without any undue delay, this Regulation should also apply to contracts concluded and rights acquired before the date of its application if they are relevant for the cross-border portability of an online content service provided after that date. This is also necessary in order to ensure a level playing field for service providers operating in the internal market, by enabling providers who concluded contracts with right holders for a long duration to offer cross-border portability to their subscribers, independently of the provider's possibility to renegotiate such contracts. Moreover, this provision should ensure that when service providers make arrangements necessary for the cross- border portability of their services, they will be able to offer such portability with regard to the entirety of their online content. Finally, it should also allow right holders not having to renegotiate their existing licensing contracts in order to enable the offering of the cross-border portability of services by providers.
Amendment 92 #
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, t, or the rights themselves, and at the same time maintains the highest level of protection of right holders. This Regulation does not require that the provide supplier to takes measures to ensure the quality of delivery of online content services outside the Member State of residence of the subscriberat such services are provided with a higher quality than is available through local online access. 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 residence. Therefore, it does not impose any disproportionate costs,
Amendment 94 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
This Regulation introduces a common approach to ensuring that subscribers to online content services in the Union, when temporarily present in a Member State, can access and use these serv can access and use these services without any obstacle arising from the application of territorial exclusivity practices.
Amendment 98 #
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, may access and use such service in the Member State of residencethroughout the territory of the Union;
Amendment 100 #
Proposal for a regulation
Article 2 – point c
Article 2 – point c
Amendment 108 #
Proposal for a regulation
Article 2 – point d
Article 2 – point d
Amendment 113 #
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 residenceUnion 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 116 #
Proposal for a regulation
Article 2 – point e – point 2
Article 2 – point e – point 2
(2) without payment of money provided that the subscriber's Member State of residence is verified by the provider;
Amendment 118 #
Proposal for a regulation
Article 2 –point f
Article 2 –point f
(f) "Portable" means that subscribers can effectively access and use the online content service in the Member State of residencethroughout the territory of the Union without being limited to a specific location.
Amendment 119 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
(1) The provider of an online content service shall enable a subscriber who is temporarily present in a Member Statepresent in the Union to access and use the online content service.
Amendment 124 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
(2) The obligation set out in paragraph 1 shall not extend to anyregarding quality requirements applicable to the delivery of an online content service that the provider is subject to when providmay be contractually limited ing this service in the Member State of residence, unlese light of the characteristics of therwise expressly agreed by the provid local access opted for by the subscriber.
Amendment 125 #
Proposal for a regulation
Article 3 – paragraph 3
Article 3 – paragraph 3
(3) The provider of an online content service shall inform the subscriber ofannex to the contract concluded with the subscriber documentation concerning the quality of delivery of the online content service provided in the Union in accordance with paragraph 1, ensuring transparency, correctness and equity in the contractual relationship.
Amendment 136 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
Amendment 141 #
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 content in online content services and service providers, as well as between service providers and subscribers which are contrary to Articles 3(1) and 4 shall be unenforceable.
Amendment 145 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 152 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
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 withshall be carried out in compliance with the Charter of Fundamental Rights of the European Union and Directives 95/46/EC and 2002/58/EC.