EU "Portability Regulation" to Take Effect

On June 30, the European Commission's Regulation on ensuring the cross-border portability of online content services in the internal market ("Portability Regulation") was published in the EU Official Journal. The new Portability Regulation will become effective April 1, 2018, and by its own terms will also apply retroactively to all existing contracts for programming on the affected online services.

The final text is available here, along with the corresponding press release from the EU Council.

Once it takes effect next year, the Portability Regulation will:

  • obligate paid-for online content services to allow subscribers to such online services within the EU to access those services when temporarily travelling from their Member State of Residence to elsewhere in the EU, without additional charge to the subscriber; free services (including public service broadcasters) may choose also to opt-in, but then become subject to its relevant provisions.
  • apply a "legal fiction" so that subscriber's access and use of the licensed content will be deemed to occur solely within the "Member State of residence".
  • prevent parties from contractually circumventing the portability requirement, irrespective of the governing law of their contractual relationships; and
  • render all contract provisions of EU licenses which are contrary to the Regulation null and void.

IFTA continues to work diligently toreview and develop guidance for its Members on the Portability Regulation minimize the potential negative impact. The IFTA® Model International Licensing Agreements (“MILA”), which have long set the standard for licensing, will also be adapted accordingly.