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.
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.
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…
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.
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”.
Previously, two Commissioners have had a stab at resolving the hoo ha around private copying levies and failed. This new Commission seemed to have recognised that this was one issue where entrenched, opposing industry positions and overly differing viewpoints between the Member States made progress an unlikely result for a Commission focused on being big on big things and small on small things. Radio silence on the issue was broken on 9th December when the Copyright Communication included an action box on private copying levies.
So, what is big? Well, everything is relative of course. In real money terms, the recently published WIPO/Thuiskopie survey put private copying collections in Europe in 2014 at 731million Euros (greatly inflated by collections in Germany which increased 174% due to the conclusion of litigation). However, compared to EU GDP (13 trillion Euros) private copying levy collections are teeny tiny (0.006%). Compared to the 1 trillion Euro revenues of Digital Europe Members – the organisation leading the charge for the abolition of levies – they are a little bigger, just 0.07%. For the creative industries as a whole they are more significant, representing 0.1% of CCI Revenues (535 billion Euros). For individual creators, they can be essential in keeping them going between projects. So, is this really a big issue? How likely is agreement among the Member States?
Not very likely. The UK is resolutely against levies and compensation schemes in general (failing last year to pass a private copying exception without a compensation mechanism). By comparison, the governments of Germany and France, the two countries with the largest collections, are staunch supporters of the system. It’s difficult to see the halfway house that would satisfy everyone.
Given the political paralysis, the European Court of Justice is being relied upon to fill in the gaps. Authors’ organisations, without the deep pockets of the tech industries, are made to wait years while courts resolve disputes and clarify points of law.
So, does the Commission really want to take another bite of this cherry? SAA has always advocated further harmonisation of the system but is faced with a tech industry that is unwilling to negotiate and ready to burn huge amounts of money (more than they have to pay in levies?) in a coordinated and concerted attack on the system across Europe in national legislation and through the courts.
It is unclear who in the Commission has the appetite for this particular topic. The issue hasn’t come up in any of the “digital single market” Commissioners’ speeches. The copyright unit is already overworked with a shopping list of reforms expected before the summer.
This is a big issue for big tech but I hope that is not what the Commission means when it says it wants to be big on the big things.
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.
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