Connected TV Summit: Mixed Reception for EU content portability rules

By Barry Flynn, Contributing Editor (with some additional reporting by John Moulding)

The European Commission’s proposed online content portability rules received a mixed reaction at last week’s Connected TV Summit in London, with European commercial broadcasters apparently sanguine about the likely effects on their business, while sports rights-holders expressed concerns.

The proposed EC rules, announced last December, would force European online content service providers to offer a ‘cross-border portability feature’ to their subscribers when they were travelling within the EU. This would mean that consumers who subscribed to an online content service in the Member State where they habitually reside would be able to continue to access and use that service while temporarily present in another EU country.

The EC pointed out that at present “many European consumers cannot access online content services they have legally acquired in their home country when they travel across the EU.”

This is especially true of films, series and sports broadcasts, the EC said, citing evidence showing that more than 50% of Europeans who had tried to access live events such as sports were unable to access them while abroad. Meanwhile, 40% of Europeans who had tried to access films and TV series while travelling in the EU had been barred from doing so.

EC figures suggest that 35% of Europeans travel at least once a year and spend more than 10 days in another EU member state.

Much will depend on how the new rules are interpreted: for instance, how ‘habitual’ residence in an EU state is defined in practice and how online service-providers should verify this; or what is meant by being ‘temporarily present’ in another EU country.

The Association of Commercial Television in Europe (ACT), which considers itself the voice of commercial broadcasters in Europe, was generally supportive of the new regulations but worried about a lack of legal clarity.

The organisation also wants a year for the industry to introduce ‘portable’ services rather than the six months currently stated in the regulations. 

Grégoire Polad, Director General at the ACT, said: “We are keen to show that portability can work but [the regulations] should be modified to provide legal certainty and a level playing-field.” By ‘level playing-field’ he meant that the rules should be interpreted the same way everywhere and that they be enforced for the protection of rights-holders.

Polad noted that in EU law there are 12 definitions of habitual residence, and the ACT is therefore seeking a tightened definition to refer to an ordinary residence that a person routinely returns to, helping to ensure the system is not open to abuse. The concept of a ‘temporary presence’ outside a person’s home country was also ill-defined, he said. He would also like to see this tightened, but without having to nail it down by stating a specific number of days.

The ACT is also concerned about how the regulations will affect free-to-air providers, and at what point they might become liable to make their content available via the portability rules.

While the rules appear to be be mainly targeted at paid-for online services, free ones could find themselves within the scope of the regulations based on the type of registration information they required from users. Does a basic log-in to a home online television service count as authentication, for example?, asked Polad. He said he was not debating whether it should or not – but making the point that online service providers needed legal clarity to avoid litigation.

William Bush, executive director of the Premier League, who was also representing the Sports Rights Owners Coalition, told delegates that “We’re slightly worried with the cavalier nature with which both Brussels policy-makers, and to some extent UK ones, are looking at this without looking at the economic evidence.”

Although he thought portability was a “reasonable” concept – “If I go a short distance to Brussels, why shouldn’t I watch the same service I can pay for?” – Bush warned of a risk that the concept might drift into a more generalised provision for cross-border access, according to which citizens in one Member State could gain automatic access to content distributed in another.

“Many advocates of change in Brussels see portability as merely a staging-post, or even a stalking horse, for the move into cross-border access,” he charged. If that happened, said Bush, “consumers will be less well served. Their prices may well go up. Our earnings in Europe could fall. The UK economy would earn less. Tax revenues would relax. One of the few industries where the UK leads the world, [would lose its] ability to trade successfully.”

However, Bush said that ‘portability’ was “clearly an idea which the industry should respond positively to. That’s what consumers want.” While the Premier League and other owners of sports rights were “in favour of satisfying legitimate portability needs,” he added, “what we shouldn’t have is a philosophical purpose, which is to create this thing called the pan-European consumer, [or] create this drive towards this myth of a [European] rival to Google, to Amazon, to Apple, which is farcical.”

The EC’s content portability initiative is intended to come into force by 2017, to coincide with the abolition of mobile phone roaming charges in the middle of that year.

In its announcement about the new rules, the EC made clear that content portability formed part of a wider plan to modernise Europe’s copyright framework in due course, so as to allow “a better circulation of content, offer more choice to Europeans, to strengthen cultural diversity and provide more opportunities for the creative sector.”

In line with this objective, the EC said it intended to take measures “to improve the cross-border distribution of television and radio programmes online” via a review of the existing Satellite and Cable Directive, and to “facilitate the granting of licences for cross-border access to content.”