La rémunération des auteurs audiovisuels

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Audiovisual Authors’ Remuneration – from remuneration to transparency?

Ahead of the European Commission’s copyright announcements, SAA today publishes its infographic on audiovisual authors’ remuneration.

The Commission has made many calls to improve authors’ remuneration. It now seems that they are satisfied with a transparency triangle of 1) exploitation transparency, 2) contract adjustment mechanism, 3) an alternative dispute resolution mechanism. As we have already said, this transparency triangle is certainly not a bad thing and is an absolute minimum. Were the transparency triangle to lose a corner then it would be useless. But it is not direct remuneration. It is not money in the pockets of creators from day 1.

SAA’s remuneration infographic gathers together the results from various studies from across Europe. While screenwriters and directors are the original rightsholders behind our favourite films, documentaries and TV series, it seems that across Europe they are being disconnected from ongoing remuneration based on the exploitation of their works. Worse still, less creators are able to make a living solely from their creative endeavours and more are being asked to work for free.

Both the Commission and the Parliament have recognised this is a problem but, if the leaks are anything to go by, the proposal doesn’t tackle the underlying problem – a weak negotiating position.

Often freelancers, working in isolation, screenwriters and directors are not well placed to defend their own interests against very big and increasingly vertically integrated players with billions of Euros in turnover. The lump sum contracts that authors are increasingly asked to sign, or even the good contracts with planned ongoing remuneration that some authors are able to negotiate but not enforce, won’t be fixed by a law that leaves the authors alone to enforce their rights.

Screenwriters and directors need to be able to act collectively to enforce their rights. There is a real fear that individuals who stand up for their rights are marked as trouble makers and can be blacklisted. The Dutch and German laws that include best-seller clauses both enable collective action. Without it, any such provision is practically useless unless an author at the end of their career can be found to set a precedent.

The infographic shows how essential it is for authors to act collectively to create the conditions for fair remuneration for their works throughout Europe. This is why the Commission’s copyright proposal can make a concrete and positive response to the authors, through the recognition of the unwaivable right to compensation for all European authors as presented in SAA’s 2015 white paper.

Europe has a strong tradition of producing great story tellers, SAA’s infographic tries to tell their story and show how Europe can keep them telling stories in the digital future.

#AVauthorsRemuneration

JT

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Audiovisual Authors’ Remuneration

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Leaks, Copyright and Remuneration

The last 10 days have seen more light shined on the European Commission’s copyright plans following a series of leaks – an Impact Assessment, a draft Directive, a draft Communication. The scope is broad, but the Commission has long promised that the issue of remuneration will be tackled.

Is it?

Kind of. In the leaked texts, the Commission tackles transparency for authors and performers – an important part of what makes it difficult for authors to be paid fairly. However, and especially in the audiovisual sector, while transparency is of course good progress, it is not going to overcome many of the underlying challenges faced by screenwriters and directors.

SAA is going to demonstrate some of these challenges ahead of the Commission’s proposal, scheduled for 21st September. The current legislation is a great opportunity to go beyond transparency and actually strengthen the remuneration position of audiovisual authors. It would be a shame after so many grand declarations (here, here, here and here) for that opportunity to go to waste.

Keep an eye on our blog as well as our twitter feed @saabrussels and #AVauthorsRemuneration for more information.

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Look! a Netflix tax!

And while you were distracted by that, you didn’t notice all the extra TV advertising.

While headlines spoke of another big tech tax (a Netflix Tax to add to your iPod tax, Google tax and YouTube tax – see “Fair Remuneration is not a tax”), last week reporting on the new AVMS Directive to be presented by the European Commission on 25 May failed to lead with the fact that the future of TV in Europe is more advertising.

With the new “flexible rules”, product placement and sponsorship are encouraged on all audiovisual media services and broadcasters will be able to cram more advertising into primetime (when there are more eyeballs) and advertising for programmes from the same media group don’t count.  Advertising during films used to be limited to every 30 minutes, but even that has been cut down to 20 minutes.  It’s a massive shift.  The Commission claims that the competition in the sector will prevent any excesses and that more money will flow into production – we’re not convinced.  What we do know is that the integrity of an authors’ work will be put under even more pressure from advertising and that media services’ attractiveness to consumers will decrease.

But of course, don’t worry about that. Worry about the already-met 20% European content quota and the optional financial contributions services like Netflix might have to make.

And definitely don’t look at the new definition for video sharing platforms – responsible for the organisation of the stored content, but with no editorial responsibility over this content to maintain the liability exemptions of the E-Commerce Directive…

JT

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Portability – A question of time

The first copyright proposal of the European Commission is a Regulation to enable temporary access to subscription services from your home country while travelling in Europe. This is the essence of the Portability Regulation.

The Commission decided against (or maybe just postponed) a full on attack on territorial licensing of audiovisual works and went for a very short but focussed 8 article text. The Commission sees a communication win with this one, and rightly so, the Regulation is a gift to consumers, essentially acting as a limitation to authors’ rights. They want to see this adopted quickly.

The Dutch Presidency is happy to oblige and is racing through the text pushing it up to top political level (COREPER) already, leaving some countries struggling to keep up, while others try to form coalitions on key sticking points in the limited time available.

In the European Parliament however, time is seemingly not of the essence. After spending two months agreeing on which committee should lead on the file (legal affairs and not internal market in the end), the committees involved don’t seem to be following the same Dutch speed.

Given that timing seems to be important to the different institutions here, it seems only fitting that one of the key sticking points is time. That is, how long is the “temporary” in “temporary portability”?

The Commission chose to define “temporary” by referring to location only, with no reference to time.

Some Member States are happy with that, others less so. SAA certainly doesn’t feel comfortable with this.

As the character Papou in SAA Patron, Cédric Klapsich’s Russian Dolls said:

“Be careful, because the temporary, sometimes, can last a long time”

Papou : Fais attention, parce que le temporaire, des fois, ça dure longtemps.

A conversation on what we mean by “temporary” is essential. Are expats who have been away from their country so long that they can’t vote in referendums still only away on a temporary basis?

Maybe we can’t agree on a number of days but a definition of temporary that doesn’t refer to time seems pretty weak for a directly applicable Regulation.

JT

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Fair remuneration is not a tax

If there is one thing we know about Big Tech, they don’t like paying tax. Even when it isn’t a tax.

The communication campaign against fair remuneration for authors and performers has started. Big Tech can’t possibly be seen to be against fair remuneration so how can they oppose it?

Tax. If they can dress this remuneration up as a tax, then they think they’re on to a winner:

Deprive authors of their exclusive rights to authorise reproductions and provide them with compensation – call it an iPod tax.

Publishers want to be able to better control the use of their works online – call it a Google tax.

So let’s call “fair remuneration for online exploitation” a YouTube tax. There it is. It’s practically a tax on innovation.

Make no mistake – the whole debate around these “taxes” is about negotiating positions and who gets how much of the pie. YouTube pays relative peanuts for the use of music compared to fully licensed online services because there are enough grey areas in the legislation and business model to weaken the negotiating position of the music CMOs, producers and publishers.

SAA’s 2015 white paper showed that audiovisual authors’ royalties in 2013 from their CMOs represents only 0.37% of industry revenues.  This isn’t all the pay screenwriters and directors receive but it paints a bleak picture.

Something needs to change, and those who may have to pay are against it. Calling remuneration a tax is cynical and simple.  Will it work?

SAA supports an unwaivable right to remuneration for screenwriters and directors, that would be handled on a collective basis. This is not a tax or a levy – it is not an amount set and collected by the government to fund the public budget.

It is a system that defers a market negotiation and makes it fairer in two ways – 1) the negotiation takes place closer to the actual moment of exploitation when the value can more accurately be determined. 2) the negotiation and collection is handled collectively meaning that individual freelance authors are no longer alone in negotiating with much bigger entities.

Being paid fairly for your work is not a tax. In the case of screenwriters and directors, being fairly paid for your intellectual property is not a tax either. There are so many ways to watch films and TV series now and new services are being developed all the time. We need to recognise that an upfront contract signed before a film is even made cannot provide fair and proportionate remuneration to its creators.

Change is needed but let’s not be fooled by alarmist calls of “taxation”.

JT

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