Activities of Michel REIMON related to 2015/0284(COD)
Shadow opinions (2)
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
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 (24)
Amendment 26 #
Proposal for a regulation
Recital 2 a (new)
Recital 2 a (new)
(2a) In the context of online content services across the Union on a portable basis, it is of utmost importance to guarantee the promotion of European works and Europe's cultural and linguistic diversity including minority languages.
Amendment 37 #
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. for economic interest, thus raising further barriers in preserving cultural identities in a multicultural and open Europe.
Amendment 40 #
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 and, with regard to the audiovisual sector, without abolishing the territorial principle as this would lead to a disproportionate loss to the detriment of the right holders and to a significant distortion of the market for premium audiovisual content.
Amendment 42 #
Proposal for a regulation
Recital 11 a (new)
Recital 11 a (new)
(11a) Issues at the infrastructure level can also lead to artificial barriers for portability, especially for small or isolated communities, therefore measures to ensure it should also include further deployment of appropriate infrastructures and support for technological neutrality and interoperability.
Amendment 42 #
Proposal for a regulation
Recital 12 a (new)
Recital 12 a (new)
(12a) Portability should, in any case, be distinguished from the concept of cross- border access, which does not fall within the scope of this Regulation. As there is no contradiction between the principle of territoriality and the removal of barriers to portability of content services, the enhancement of portability of legally available and legally acquired services could be an important step to end unjustified geoblocking and to stimulate accessibility and the cross-border functionality of subscriptions.
Amendment 49 #
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 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 in their home country to do so across borders.
Amendment 50 #
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 without additional costs.
Amendment 59 #
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 in accordance with this Regulation. 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 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 other 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 be relied upon, if they enable the provider to have reasonable indicators as to the Member State of residence of its subscribers.
Amendment 66 #
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 without prejudice to the possibility to access the local version of the content available in the Member State of temporary presence. 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, 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 72 #
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 for reasons that can be attributed to objective issues. 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 without the right to make differentiations in the conditions of the offer, such as additional fees compared to the use in the Member State of residence.
Amendment 79 #
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 should be unenforceablconsidered null and void on the territory of the European Union, regardless of the law applicable by contractual choice.
Amendment 79 #
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 thatcontractually oblige the service provider to make use of effective means in order to verify that the online content service is provided in conformity with this Regulation. Right holders may withhold the rights licensed to a service provider if the provider cannot demonstrate upon request and in accordance with the contract that it is carrying out the residency verification in accordance with this Regulation. It is necessary, however, to ensure that the required means areof authentication and verification are effective while also 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 sufficient in order to deliver the service provided, identification of the subscriber should not be required.
Amendment 82 #
Proposal for a regulation
Recital 23 a (new)
Recital 23 a (new)
(23a) In order to enable cross-border portability of online content services, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of establishing a non-exhaustive list of means for the verification of the subscriber's Member State of residence, prepared and drawn up in consultation with industry, small right holders and consumer representatives. Such verification means should be the most appropriate in the relevant Member State and equivalent amongst Member States. This list may, for example, include a confirmed installation of a set top box, a local home bank account, a local electoral role or tax paying confirmation. It is of particular importance that the Commission carries out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making1a. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. __________________ 1a OJ L 123, 12.5.2016, p. 1.
Amendment 89 #
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 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/EC27the Regulation (EU) 2016/679, 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. _________________ 27Directive 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 98 #
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, conditioned or not by a payment of money, may access and use such service in the Member State of residence;
Amendment 106 #
Proposal for a regulation
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(d) "Temporarily present" means a presence, for a limited period of time, of a subscriber in a Member State other than the Member State of residence;
Amendment 110 #
Proposal for a regulation
Article 2 – paragraph 1 – point e – subparagraph 1
Article 2 – paragraph 1 – point e – subparagraph 1
(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 thea 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 116 #
Proposal for a regulation
Article 2 – paragraph 1 – point e – subparagraph 2 – point 2
Article 2 – paragraph 1 – point e – subparagraph 2 – point 2
(2) without payment of money provided that the subscriber's Member State of residence ishall be verified by due diligence of the provider;
Amendment 125 #
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 State to access and use the online content service, without additional costs.
Amendment 130 #
Proposal for a regulation
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
(3a) Provision of portable services should not be conditioned by additional technical requirements and shall be done under a technologically neutral and interoperable hardware and software environment.
Amendment 132 #
Proposal for a regulation
Article 3 a (new)
Article 3 a (new)
Article 3a Holders of copyright and related rights Under this Regulation, holders of copyright and related rights or those holding any other rights in the content of an online content service may authorise the access to and use of their content without the verification of the Member State of residence.
Amendment 137 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
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 subscriber, in accordance with Article 3(1), shall be deemed to occur solely in their 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. Such localisation shall be deemed to occur without altering the territorial scope of the rights contractually acquired by the service provider.
Amendment 142 #
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 that the service provider make use of effective means in order to verify that the online content service is provided in conformity with Article 3(1), provided that the required means fall under due diligence, are reasonable and, do not go beyond what is necessary in order to achieve their purpose and do not create additional burden or requirements for the provider or the subscriber.
Amendment 149 #
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 contractually require that the service provider to make use of effective meansmeans adopted pursuant to Article 7a 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 purpose.