Activities of Jean-Marie CAVADA related to 2015/0284(COD)
Legal basis opinions (0)
Amendments (29)
Amendment 21 #
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 legally 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 temporary access and use of such online content services cross border should be eliminated.
Amendment 33 #
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. These practices play a strong role in the financing of European cultural content and respond to the needs of European markets. While such practices should not hamper the legitimate access to and use of online content services by consumers when they are temporarily present in another Member State, the territorial licencing system remains vital for the continuation of a strong European cultural diversity.
Amendment 61 #
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 and not infringe this Regulation, 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 64 #
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. 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 Statea robust and secure electronic mean of residence, the existence of a contract for internet or telephone connection, IP address or other means of authentictification, in particular the notified eIDs in accordance with the eIDAS regulation, should be relied upon, if ithey enables the provider to have reasonable indicators as to the Member State of residence of its subscribers.
Amendment 67 #
Proposal for a regulation
Recital 20
Recital 20
(20) In order to ensure that providers of online content services comply with the obligation to provide cross-border portability of their services without acquiring the relevant rights in another Member State, it is necessary to stipulate that those service providers which lawfully provide portable online content services in the Member State of residence of subscribers are always entitled to provide such services to those subscribers when they are temporarily present in another Member State. This should be achieved by establishing that the provision, the access to and the use of such online content service should be deemed to occur in the Member State of the subscriber's residence. This Regulation and in particular the legal mechanism localising the provision of, the access to and the use of an online content service in the Member State of residence of the subscriber does not prevent a service provider from offering its subscriber who is temporarily present in another Member State an online content service that the provider lawfully provides in that Member State.
Amendment 73 #
Proposal for a regulation
Recital 21 a (new)
Recital 21 a (new)
(21a) The providers and holders of rights relevant for the provision of online content services should not be allowed to circumvent the application of this Regulation by choosing the law of a third country as the law applicable to contracts between them or to contracts between providers and subscribers.
Amendment 75 #
Proposal for a regulation
Recital 22 a (new)
Recital 22 a (new)
(22a) Should a subscriber fail to provide the necessary information and the provider is unable to verify the Member State of residence as required under this Regulation as a result, the provider should not provide cross-border portability of the online content service to such a subscriber under this Regulation.
Amendment 80 #
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 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, adapted to the nature of the online content service concerned 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
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 requires 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 leave room for service providers to innovate with the online means of authentication they provide to consumers to subscribe and access online content, are reasonable and do not go beyond what is necessary in order to achieve this purpose. Examples of the necessary tTechnical and organisational measures may include sampling of IP addressshould be based on electronic means of identification at the time of subscription instead of constant monitoring of location, on 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. The subscriber should be able to access the information on the Member state of residence verified and registered at the time of subscription.
Amendment 86 #
Proposal for a regulation
Recital 25 a (new)
Recital 25 a (new)
(25a) This Regulation does not affect the application of Directive 2014/26/EU of the European Parliament and of the Council1a and in particular Title III of that Directive. The rules provided for in this Regulation are consistent with the objective 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 89 #
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. Changes to the terms of use of online content services offered in packages combining an electronic communications service and an online content service made strictly in order to comply with this Regulation should not trigger any right for subscribers under national laws transposing the regulatory framework for electronic communications networks and services to withdraw from contracts for the provision of such electronic communications services.
Amendment 90 #
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. 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 Statea robust and secure electronic mean of residence, the existence of a contract for internet or telephone connection, IP address or other means of authentictification, in particular the notified eIDs in accordance with the eIDAS regulation, should be relied upon, if ithey enables the provider to have reasonable indicators as to the Member State of residence of its subscribers.
Amendment 101 #
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, except in cases where providing online content service portability is based on the physical constraints of an external product and would involve the online content service provider entering into and concluding separate contractual relations with a third-party manufacturer. 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 104 #
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 habitually residing, established on the basis of Article 3b, where the subscriber has his or her actual and stable residence to which he or she returns regularly;
Amendment 111 #
Proposal for a regulation
Article 2 – point d
Article 2 – point d
(d) "Temporarily present" means a transitory presence of a subscriber in a Member State other than the Member State of residence determined with the provider of the online content service;
Amendment 114 #
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 is verified by the provider on the basis of electronic identification means, in particular notified eIDs in accordance with Regulation (EU) No 910/2014;
Amendment 116 #
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 requires 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 leave room for service providers to innovate with the online means of authentication they provide to consumers to subscribe and access online content, are reasonable and do not go beyond what is necessary in order to achieve this purpose. Examples of the necessary tTechnical and organisational measures may include sampling of IP addressshould be based on electronic means of identification at the time of subscription instead of constant monitoring of location, on 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. The subscriber should be able to access the information on the Member state of residence verified and registered at the time of subscription.
Amendment 128 #
Proposal for a regulation
Article 3 a (new)
Article 3 a (new)
Article 3a Opt-in The provider of an online content service provided without payment of money may choose to enable a subscriber who is temporarily present in a Member State to access and use the online content service provided that: (a) it determines and verifies the Member State of residence of its subscribers in accordance with this Regulation; (b) it informs the relevant holders of copyright and related rights or those holding any other rights in the content of an online content service, as well as its subscribers, within a reasonable time period before enabling such access and use; and (c) it applies the provisions of this Regulation from the moment it enables the cross-border portability for its subscribers.
Amendment 130 #
Proposal for a regulation
Recital 23 a (new)
Recital 23 a (new)
Amendment 137 #
Proposal for a regulation
Recital 23 b (new)
Recital 23 b (new)
23b. Holders of copyright and related rights or those holding any other rights in the content of an online content service should have a right to be informed of the verification process used by the service provider to establish a subscriber’s Member State of residence.
Amendment 140 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 148 #
Proposal for a regulation
Recital 27 a (new)
Recital 27 a (new)
27a. Member States should create or designate a body with responsibility for monitoring the application of this Regulation, in order to guarantee that it is applied properly, to provide the online content service providers, the relevant rights holders and consumers with a national one-stop shop, and to enable the Commission to easily gather and exchange relevant data. In view of the impact of this Regulation along the whole value chain, that body also needs to be able to receive and offer interpretation on possible disagreements that may arise regarding the way in which this Regulation is applied. The body would have an obligation to report regularly to the Commission on disputes that might be caused by the implementation of the Regulation in order to help it to draft its guidelines.
Amendment 152 #
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 andbut 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 itsthat 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 156 #
Proposal for a regulation
Article 8 – paragraph 2 – subparagraph 1
Article 8 – paragraph 2 – subparagraph 1
It shall apply from [date: 612 months following the day of its publication].
Amendment 178 #
Proposal for a regulation
Article 2 – paragraph 1 – point e – point 2
Article 2 – paragraph 1 – point e – point 2
(2) without payment of money provided that the subscriber's Member State of residence is verified by the provider on the basis of electronic identification means, in particular notified eIDs in accordance with Regulation (EU) No 910/2014;
Amendment 209 #
Proposal for a regulation
Article 3 a (new)
Article 3 a (new)
Amendment 229 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 240 #
Proposal for a regulation
Article 7 a (new)
Article 7 a (new)
Article 7a Implementation and reporting 1. Member States shall create or designate a body to monitor the proper implementation of this Regulation on its territory and shall inform the Commission of the existence of the body. 2. The body created or designated in accordance with paragraph 1 shall receive and examine complaints regarding abuse or insufficient measures taken by online content service providers or rights holders in the Member State in application of this Regulation, in particular for the application of Article 3b. The body shall also issue opinions on complaints. 3. The Commission shall produce guidelines, where necessary, on the basis of the complaints that were reported to the bodies created or designated in accordance with paragraph 1.
Amendment 242 #
Proposal for a regulation
Article 7 b (new)
Article 7 b (new)
Article 7b Evaluation The Commission shall produce an evaluation report three years after the date of application of this Regulation to assess its implementation, particularly as regards the notion of temporary presence and the mechanisms concerning the determination and verification of the Member State of residence. The Commission shall accompany this evaluation report with legislative or non- legislative proposals to improve the implementation of this Regulation.