Portability Regulation Consultation











Jane Lambert

Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market is known as "the Portability Regulation." It a sensible piece of legislation that should enable subscribers to online services to continue to receive the content that they have paid for when visiting another member state.  

The reason for the Regulation is that copyright is territorial. A subscriber in the UK is licensed to receive content under the Copyright Designs and Patents Act 1988 but not under the legislation of any other member state. 

As it was made by the Council and European Parliament the Regulation will come into force automatically on 20 March 2018 pursuant to art 11 (2).  However, as it will affect existing legislation and it will need to be enforced.  To make provision for this Regulation the Intellectual Property Office has published a draft statutory instrument to be known as The Portability of Online Content Services Regulations 2018. That draft appears on page 14 of a consultation document on Cross-border portability of online content services.

The questions that the government has raised are as follows:
  • Has the Government identified the most appropriate means of legal enforcement? 
  • Has the Government identified the most appropriate enforcement bodies for the Portability Regulation?
  • Will this review provision be sufficient to allow the Government to effectively assess the proposed enforcement mechanisms?
Members of the public can comment on any other issue relating to the Portability Regulation. One obvious question that does not appear to be covered by this consultation is what happens to the Regulation after 29 March 2019 when it ceases to apply to the UK by virtue of art 50 (3) of the Treaty of European Union. The Regulation may well be incorporated into our law by the European Union (Withdrawal) Bill but there will be no obligation on member states to reciprocate unless specific provision is made for it in the withdrawal agreement.

Replies should be addressed to:

Copyright and Enforcement Directorate
Intellectual Property Office
Room 1Y05 Concept House
Cardiff Road
Newport
NP10 8QQ
Email portability@ipo.gov.uk

The closing date is 31 Jan 2018.

Should anyone wish to discuss this article or the Portability Regulation in general, he or she should call me on 020 7404 5252 during office hours or send me a message through my contact form.

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