Platforms – Mutton dressed as lamb?

There’s something about online platforms that seems to be causing problems with the development of the online market.  The European Commission can’t quite put its finger on it.

Wrapped up in the vocabulary of “innovation” and “disruption” many of the services the Commission has identified are actually doing nothing new.  They’re distributors – buying for one price, hoping to sell enough to make a profit. In the old days they were shops, networks, broadcasters, but in these days of technological awe and wonder they become “platforms”, “revolutionising” the way we watch films and TV.

As far as we’re concerned though, many of these companies, although technologically impressive, are not as revolutionary as they would like us to believe and the Commission already has a range of regulatory tools that it could use. The range of what people call platforms is massive.  In the audiovisual sector alone we could be talking about traditional services (the sort already regulated by the Audiovisual Media Services Directive (AVMSD)), content/service aggregators like connected TVs, and video sharing platforms.

Cloaked in modern, these services try to justify why the rules in place don’t apply to them – copyright, taxation and audiovisual regulations, competition, data protection, enforcement of intellectual property, e-Commerce rules.

Transparency is becoming an increasing problem in the audiovisual sector.  Data gatekeepers make fair negotiations with distributors very difficult and that in turn makes it difficult for authors to follow the success of their works and monitor whether remuneration should be due. So far the online market is bringing very little money into the audiovisual sector and almost nothing to screenwriters and directors. This is one of the reasons why SAA believes that audiovisual authors need an unwaivable right to remuneration, to enable authors, collectively, to obtain remuneration based on the online exploitation of their works.

Europe has long recognised the need to support European audiovisual works – whether in terms of distribution or visibility.  The AVMS Directive, set for revision later this year, includes articles on the promotion of European works. The lack of transparency makes compliance evaluation difficult. Forum shopping enables these new services to set up shop where the requirements are at a minimum, and then a combination of commercial deals to secure prominence along with automated recommendation algorithms challenge the visibility of European works even further.  European works had to fight for visibility in the analogue world. In the digital world it is even harder.

Finally, these platforms can also be intermediaries. In the case of video sharing services, we see services that attach advertising to videos and make recommendations but deny any responsibility for the content they make available through their service. YouTube, one of the internet’s go to destinations for audiovisual works, is not an audiovisual media service according to the AVMSD. It also manages to benefit from the liability exemption provided by the e-Commerce Directive because it just passively hosts videos. This doesn’t make the Commission’s work any easier – this question of scope spills over from the platforms consultation into discussions on the AVMSD, e-Commerce and IPRED.

The Commission is right to consult on the issue of platforms.  Hopefully the responses it receives will show that it already has many of the tools at its disposal (while a refresh of the eCommerce Directive would also help) to gather them into the scope of existing regulations and create a fair, competitive market that brings more European films and TV to a broader audience while remunerating the screenwriters and directors behind them.

You can read a summary of our contribution to the Commission’s consultation here.

JT

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