The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy
InternKats: Rose Hughes, Ieva Giedrimaite, and Cecilia Sbrolli
SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Hayleigh Bosher (Book Review Editor), and Tian Lu (Asia Correspondent).

Sunday, 7 January 2018

Have your say on the UK implementation of the EU Portability Regulation: public consultation now open!

Earlier this week, the UK Intellectual Property Office (UKIPO) published the details of its latest public consultation concerning the imminent implementation of the EU Portability Regulation (the detail of the public consultation in full can be found here or here).  According to the call, the government wishes to hear the public’s ‘views on the enforcement of the Portability Regulation in UK Law’, which is to come into force on the 1st of April 2018 and will bind all UK businesses concerned from that point on. The consultation call includes the text of the proposed domestic regulations (see Annex C, p. 14 here).

What is the regulation about?

'Netflix and chill'...anywhere in the EU
The regulation aims to allow, or make it easier, for the subscribers of online content providers to benefit from their services even when they are travelling to another EU member state. At the moment, “this is not always possible as some providers block access to their services outside a subscriber’s home country,” says the government. Differentiated access based on the geographical location of the subscribers is often put in place to respect territorial agreements on the use of content protected by copyright. The regulation primarily concerns services providing online access to television, film or sport programs online content providers in the UK, such as Netflix, BBC iPlayer, Sky and BT Sports. 

At the moment, the Government proposes to implement the EU Regulation relying on no less than six different pieces of legislation (existing and new). These would be the Consumer Protection from Unfair Trading Regulations 2008, the Copyright Designs and Patents Act 1988, the Data Protection Act 1998, the Enterprise Act 2002, the 2018 Domestic Regulations (the proposed text) and the EU Regulation 2017/1128 itself.

No more, as of April 1, 2018. No April Fool.
Lost? Fear not as the consultation call features a colour-coded table, which summarizes the relevant provisions of the EU Portability Regulation and their corresponding domestic statutory provisions.  In order to guide you through this maze of regulatory text (see page 10 here).

What is the public consultation about?

The government is particularly interested in hearing the view of businesses, from their perspective, on the enforceability of the proposed regulations under UK law.. As such, the call asks a series of targeted questions to check that its proposed approach has been fully thought through. It is worth noting that responses are not limited to these questions; any other views are also welcome. 

Because we can never escape it, the government is also interested in hearing the view of businesses regarding their implementation plan in light of the ever- so- imminent (or is it?) Brexit. This has Merpel asking:  Why the rush before Brexit? Well, because Brexit is around the corner! The UKIPO seems to take the view that anything that is implemented under UK law before the cut-off point is likely to be incorporated in some manner in the arrangements that will fixed in the Brexit bill. The UKIPO has stated that it will be part of the negotiations concerning IP issues all the way until the end of the process. It would be poor sport to negotiate the provisions while a member of the EU, but to refuse to implement them later on account of Brexit being round the corner.

How to send your views

The consultation will close on the 31st of January 2018, at 23:45. Responses can be sent by email or post at the following addresses:

Via email:

Via post:

   Copyright and Enforcement Directorate
                 Intellectual Property Office
                 Room 1Y05 Concept House
                 Cardiff Road
                 NP10 8QQ

Happy consulting!


Andy said...

Hi Mathilde,

Unfortunately the statement that "The regulation primarily concerns services providing online access to television, film or sport programs online content providers in the UK, such as Netflix, BBC iPlayer, Sky and BT Sports" is not entirely correct. The new regime will apply only to services which are paid for, so for instance Netflix, Sky Spoerts etc. However free catchup services such as the BBC iPlayer, All4 etc are not required to meet the portability standards. Services which are financed through advertising (eg ITV Hub), but are free to viewers, are also exempt.

Kant said...

Not sure that a payment is a necessary criterion in view of the definition of "subscriber" in the explanatory note: '“subscriber” means any consumer who, on the basis of a contract for the provision of an online content service with a provider, whether against payment of money or without such payment, is entitled to access and use such service in the Member State of residence.'

Ben Green said...

The introduction on the IPO consultation paper states: "Free-to-access services can also choose to make their content available on a portable basis under the Regulation (Article 6), but are not obliged to do so."

I think it's fairly safe to assume that such services will choose to opt out, given the likely costs involved in technically enabling EU access but excluding ex-UK, and maintaining relationships and agreements with content rights holders who will want to continue to maximise commercial opportunities (and programme investment) from other territories. Will be interesting to watch what happens with this post-April, and UK position post-Brexit...

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