32 Amendments of Daniel BUDA related to 2015/0284(COD)
Amendment 42 #
Draft legislative resolution
Citation 2
Citation 2
— having regard to Article 294(2) and Article 114 in conjunction with Article 169 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8- 0392/2015),
Amendment 43 #
Proposal for a regulation
Citation 1
Citation 1
- having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 in conjunction with Article 169 thereof,
Amendment 44 #
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. Therefore, barriers that hamper access to and use of such online content services cross border should be eliminated so that the needs of users can be met effectively and to foster innovation for the benefit of consumers, service providers and right holders.
Amendment 51 #
Proposal for a regulation
Recital 2
Recital 2
(2) The technological development leading to a proliferation of portable devices such as laptops, tablets and smartphones increasingly facilitates the use of online content services by providing access to them regardless of the consumers' location, whether in their Member State of residence or in another Member State. There is a rapidly growing demand and need 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 of the Union, on the condition that they return to their Member State of residence regularly.
Amendment 54 #
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, content which they purchase or rent online in their country of residence and to which they should continue to have access when travelling in the EU for personal or business purposes. 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 acquired the right to use in their home country.
Amendment 57 #
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. This regulation, which complements Directive 2006/123/EC of the European Parliament and of the Council 1a, Directive 2000/31/EC of the European Parliament and of the Council 1b and Directive 2010/13/EU of the European Parliament and of the Council 1c, should contribute to alleviating the difficulties of adjusting to portability in all sectors, respecting and guaranteeing adequate protection of copyright and related rights under Union law. ________________ 1aDirective 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36) (Special edition in Romanian: Chapter 13 Volume 058 p. 50). 1bDirective 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ L 178, 17.7.2000, p. 1) Special edition in Romanian: Chapter 13 Volume 029 p. 257). 1cDirective 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.).
Amendment 61 #
Proposal for a regulation
Recital 5
Recital 5
(5) The same applies to other content such as sporting events, political debates, news or current events which is not always 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 on a territorial basis. 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 62 #
Proposal for a regulation
Recital 6
Recital 6
(6) Therefore, increasingly, online content services are marketed in a package in which content which is not protected by copyright and/or related rights is not separable from content which is protected by copyright and/or related rights without substantially lessening the value of the service provided to consumers. This is especially the case with premium content such as sporting or other events of significant interest to consumers. In order to enable service providers to deliver to consumers full cross-border access to their online content services, it is indispensable that this Regulation also covers such content used by online content services and therefore that it applies to audiovisual media services in the meaning of Directive 2010/13/EU as well as to transmissions of broadcasting organisations in their entirety.
Amendment 64 #
Proposal for a regulation
Recital 7
Recital 7
(7) The rights in works and other protected subject matter are harmonised, inter alia, in Directive 96/9/EC of the European Parliament and of the Council 23, Directive 2001/29/EC of the European Parliament and of the Council 24, Directive 2006/115/EC of the European Parliament and of the Council 25 and in Directive 2009/24 of the European Parliament and of the Council 26. Therefore, this Regulation contributes to the functioning of the internal market as an area without borders, where the freedom to provide and to receive online content services shall be ensured, respecting and guaranteeing copyright and related rights under Union law. __________________ 23 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases OJ L 077, 27.03.1996, p. 20-28. 24 Directive 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. 10–19. 25 Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property OJ L 376, 27.12.2006, p. 28–35. 26 Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs OJ L 111, 5.5.2009, p. 16–22.
Amendment 65 #
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 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 included in contracts concluded between those service providers and right holders.
Amendment 68 #
Proposal for a regulation
Recital 10 a (new)
Recital 10 a (new)
(10a) Since the contracts concluded between online service providers and subscribers reflect in their provisions the territorial restriction clauses included in contracts concluded between those service providers and right holders, this Regulation should ensure cross-border access to online content services for any subscriber temporarily resident in a Member State other than his or her Member State of residence. It is in this context that this Regulation can achieve the objective of ensuring cross-border portability of online content services in the internal market by establishing the localisation of the service for purposes of portability, through the obligation to offer cross-border portability and by rendering unenforceable any contractual provisions contrary to this obligation.
Amendment 70 #
Proposal for a regulation
Recital 11
Recital 11
(11) In addition, the Court helby its judgment of 4 October 2011, the Court of Justice of the European Union decided in Joined cases C-403/08 and C-429/08, Football Association Premier League and Others, EU:C:2011:631, that certain restrictions to the provision of services cannot be justified in light of the objective of protecting intellectual property rights.
Amendment 74 #
Proposal for a regulation
Recital 12
Recital 12
(12) Therefore, the objective of this Regulation is to adapt and harmonise the legal framework, in particular as regards copyright and related rights, in order to ensure that the licensing of rights no longer presents barriersconstitutes an obstacle to cross- border portability of online content services in the Union and that the cross- border portability can be ensured.
Amendment 85 #
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 and should not impose a duty to provide portability on those service providers that deliver services free of charge and without authentication of the consumer's Member State of residence. Providers of services made available against payment of money 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 indirectly to another party such as a provider offering a package combining a telecommunications service and an online content service operated by another provider.
Amendment 100 #
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. 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. However, online content service providers may continue carrying out activities for information purposes to fight against unauthorised access to or use of online content services and against possible violations of copyright and related rights during content distribution.
Amendment 109 #
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. 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. Moreover, the provider should inform the subscriber on the quality of delivery of the online content service when accessed and used in a Member State other than the Member State of residence.
Amendment 116 #
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 unenforceable. Moreover, choosing the law of a third country as the law applicable to contracts entered into by service providers or holders of rights or to contracts involving subscribers should not, in any way, lead to the circumvention of the provisions of this Regulation. Therefore, this Regulation should function as a tool to protect subscribers and ensure the cross-border portability of online content services in the EU internal market.
Amendment 139 #
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 right to property, the freedom of expression and, the freedom to conduct a business and the respect of copyright and related rights. 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/EC27 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. __________________ 27 Directive 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), as amended by Directives 2006/24/EC and 2009/136/EC.
Amendment 140 #
Proposal for a regulation
Recital 25
Recital 25
(25) The application of this Regulation will improve competitiveness by fostering innovation in online content services and attracting more consumers to them, without, however, affecting international trade. This Regulation should not affect the application of the rules of competition, and in particular Articles 101 and 102 of the Treaty. The rules provided for in this Regulation should not be used to restrict competition in a manner contrary to the Treaty.
Amendment 142 #
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. This provision should also apply to providers of online content services offered in packages combining electronic communications services and online content services. 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 147 #
Proposal for a regulation
Recital 27
Recital 27
(27) As the Regulation will therefore apply to some contracts and rights acquired before the date of its application, it is also appropriate to provide for a reasonable period between the date of entry into force of this Regulation and the date of its application allowing right holders and service providers to make the arrangements necessary to adapt to the new situation, as well as allowing service providers to amend the terms of use of their services. These arrangements should be reasonable and not go beyond what is necessary to achieve their purpose.
Amendment 149 #
Proposal for a regulation
Recital 28
Recital 28
(28) In order to achieve the objective of ensuring cross-border portability of online content services in the Union, it is appropriate to adopt a regulation, which directly applies in Member States. This is necessary in order to guarantee a uniform application of the cross-border portability rules across Member States and their entering into force at the same time with regard to all online content services. Only a regulation ensures the degree of legal certainty which is necessary in order to enable consumers to fully benefit from cross-border portability across the Union and also to guarantee that right holders and online service providers from different Member States are subject to the exact same rules.
Amendment 154 #
Proposal for a regulation
Recital 29
Recital 29
(29) Since the objective of this Regulation, namely the adaptation and harmonisation 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 residence. Therefore, it does not impose any disproportionate costs,
Amendment 155 #
Proposal for a regulation
Article 1
Article 1
This Regulation introduces a common approach in the single market to ensuring that subscribers to online content services in the Union, when temporarily present in a Member State, can access and use these services can access and use these services not only in the Member State of residence, but also when temporarily present in a Member State, subject to effective verification in accordance with this Regulation.
Amendment 170 #
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 domiciled or habitually residing;
Amendment 175 #
Proposal for a regulation
Article 2 – point d
Article 2 – point d
(d) "Temporarily present" means a transient presence of a subscriber in a Member State other than the Member State of residence;
Amendment 181 #
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/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 182 #
Proposal for a regulation
Article 2 – point e – subparagraph 2 – introductory part
Article 2 – point e – subparagraph 2 – introductory part
which is provided to a subscriber oin agreed termsccordance with the provisions laid down either:
Amendment 184 #
Proposal for a regulation
Article 2 – point e – subparagraph 2 – point 2
Article 2 – point e – subparagraph 2 – point 2
(2) free of charge, without payment of money provided that the subscriber's Member State of residence is verified by the provider, should the provider who provides online content services free of charge decide to ensure cross-border portability;
Amendment 191 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
Amendment 220 #
Proposal for a regulation
Article 4
Article 4
The provision of an online content service to, as well as the access to and the use of this service by, a subscriber present in a Member State other than his/her Member State of residence, in accordance with Article 3(1), shall be deemed to occur solely in the 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.
Amendment 246 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2