Content Portability and the Digital Single Market: Why your favourite content may still not be available to you?

Abstract

The publication by the European Commission (the “Commission”), in December 2015, of its proposal for a Regulation to ensure EU cross-border portability of online content services (the “Regulation”) represented a significant first step towards its goal of improving access to online content across the EU as part of its Digital Single Market strategy. The Commission sees a persuasive case for prioritising action in this area. It regards rights of content portability as enjoying widespread consumer support and as not posing a serious threat to existing content licensing business models. It anticipates that the proposed reforms will therefore prove less contentious and quicker to implement than related, more ambitious, initiatives such as the possible extension of the scope of the Satellite and Cable Directive to broadcasters' online transmissions to enhance cross-border access to broadcasters' services. It is also cognisant of the fact that the imminent abolition of roaming charges will facilitate consumer uptake of new rights of content portability. These reforms are seen as “low-hanging fruit”. However, as discussed below, uncertainty as to the scope of the new rights, doubts about the robustness of safeguards against their abuse and related concerns as to the true impact of the reforms on content licensing business models mean that their passage into law is likely involve a far bumpier ride than first anticipated.