Are changes in access to online services within the EU possible?

Cross territory licensing over using works protected by copyright has been a matter of discussion within the EU for months in the context of a possible change of direction in the copyright law. For the moment the situation is not likely to change in the matter of so-called “geoblocking” – restrictions on access to content because of the geographical location. However, there is a chance for a small change – to provide the subscribers of online service with access continuity to these services when traveling within the EU.

Why? The European Parliament and Council came up with the project of regulation for the provision of cross-border transfer within the internal market of online services in terms of content (hereinafter referred to as the Regulation) or – in other words – to facilitate the use of digital content regardless of member State. What could change? During travel within EU we might be able to still have access to online services which we subscribe to from within the territory of Poland. However, when traveling to Germany or Great Britain we won’t have access to online services for residents of these countries.

Services included in the Regulation

The Regulation would extend to paid online services (regardless of whether the payment was made directly to the service provider online or i.e. to a provider offering both telecommunication and online services) as well as ones provided free of charge. In both cases, the key is whether the supplier is able to verify the Member State of residence of its subscribers. The rules will apply only if the answer is “yes”. Extending the scope of the Regulation to online services which suppliers are not able to verify country of residence of its subscribers, aside from higher costs, could lead to a significant changes in the way of services.

The authors of the project emphasize that in case the Regulation is adopted and enters into force, there won’t be a need to renegotiate the agreements concluded so far by the entities of copyright and related rights. If the Regulation comes into force, all provisions of existing contracts contrary to the obligation to provide consumers the possibility of access to online services that he subscribes to in his country would become ineffective. What is extremely important, the Regulation will apply also to contracts concluded and rights acquired before the date of application of the Regulation, if those contracts and rights are relevant to the provision of services, access to it or using it after the date of application of the Regulation.

It should be noted the solution mentioned above – in the event it is adopted – will not unify the online service’s offer in any way within the EU. Things in this regard will stay pretty much the same. For example, residents of Poland during a temporary stay in another Member State still will not be able to access some videos or TV series offered online which are not available within Poland.

It is all about access – not quality

The proposed changes regarding supplying online services within the EU may be possible due to following legal fiction: the subscriber of an online service while on a temporary stay within the territory of Member State other than his country of residence, would be treated the same as if he was using the service within his own country. The exclusive place of supplying the service will be considered the Member State of residence. The duty of providers of the online service will provide subscribers with the ability to use their content services uninterrupted when they move between EU countries.

It is not an accident that the Regulation is limited to providing access to content. This obligation is not extended because any requirement for the quality of service delivery during a temporary stay in another EU country, other than the country of residence of the subscriber. This is not surprising, considering the quality of the online service – i.e. transmission speed or image quality – affects the speed of the Internet, which may vary in different locations within the EU.

Doubts as usual

In this case – as usual when it comes to new regulations – many doubts are caused by imprecise definitions. In the Regulation it is “a temporary presence”, according to the temporary stay of the online service subscriber in a Member State other than his country of residence. Some clue in finding the right answer can be found in the section of the Regulation entitled “Reasons for and objectives of the proposal”. The main idea is to allow consumers to connect as if they were using the service within their countries of residence while also traveling within the EU.

A complication is verifying the country of residence of the subscriber. As indicated by the authors of the Project, suppliers of online services should rely on such information as the payment information from license fees for services provided in the country of residence, the existence of a contract for telephone or Internet connection, IP address or other authentication methods. The processing of personal data of subscribers shall be in accordance with Directives 95/46/EC (on the protection of individuals with regard to the processing of personal data and on the free movement of such data) and 2002/58/EC (on privacy and electronic communications).

To sum up, project of changing the Regulation seems to be an important step on the road to abolish geoblocking. Although the quality of service will probably not always be satisfying to subscribers, but the continuing expansion of broadband networks may eventually contribute to solving this problem. Many doubts probably will appear in the context of territorial restrictions already written in existing contracts. The range of services available to consumers depends on the scope of the acquired rights of authors, artists, producers and broadcasters. More disputes about the legal and practical effects of reducing the territorial exclusivity will likely be coming up.