Posts Tagged AVMS

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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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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5 years of SAA

SAA_5AASAA was created 5 years ago to represent the interests of collective management organisations (or CMOs) for audiovisual authors.  When we say audiovisual authors we specifically mean screenwriters and directors of film, TV and multimedia programmes. Music composers are also authors of audiovisual works but their rights are dealt with by music CMOs.

Being created in 2010 makes us relatively young – many other European organisations in the audiovisual sector or creative industries more broadly have been around for longer.  We have grown quickly from 9 founding members to 29 members in 22 countries.  But why was there a need to create the SAA?

The founding organisations set up the SAA because they felt that, in discussions with the European institutions, too often the issues of creators and copyright were treated through the perspective of music. This may have been because the music industry is more organised than the audiovisual sector (collective rights management is commonplace) or was the first to suffer from mass unlicensed exploitation and distribution online.  However, the two sectors, although based on the same broad principles, and both relying on authors’ rights and copyright as a foundation, function very differently and many of the issues facing the different creative sectors cannot be resolved just by fixing the problems of one sector.

We also aim to improve the understanding of how Europe’s audiovisual sector works, not only how it is different to the music sector, but also how it differs from the Hollywood studio system. Production, financing, distribution, promotion and exploitation of European films do not face the same challenges as for US studios. Our national markets and SMEs are simply not comparable to the studios, let alone the internet giants. TVs also play a crucial role in financing and supporting cultural diversity in Europe that is specific to us. Europe’s audiovisual sector is therefore extremely diverse, and so is the situation of its collective management organisations.  Some CMOs manage both screenwriters and directors’ rights, others just directors, others just screenwriters.  Some countries have competing societies, others have one single organisation for all authors irrespective of the sector.  There are many misconceptions and we would like to help rectify that while bringing transparency on the work of our members.  Our main work towards this has been through our two white papers (2011 and updated in 2015) which clearly present the diverse situation of Europe’s screenwriters, directors and their CMOs.

SAA’s main focus has been on ensuring screenwriters and directors are remunerated for the use of their work (from a legal, licensed source), something that is unfortunately not the case today.  We want film and TV fans to know that when they watch a film or TV show, that the screenwriters and directors are being paid.  One off payments at the moment a film or television programme is made cut authors out of the future success of their creative works and are contrary to the principle of authors’ rights. This has to be fixed at EU level to ensure that all European authors get remuneration wherever their works are exploited in the EU.

However, while this is our lead area of action, it is obviously not our only area of work.  We care about the general condition of the sector in which screenwriters and directors work and we also want European works to be able to circulate better across Europe.  Our joint wish-list for the new 2014 European Parliament, prepared with FERA and FSE, demonstrates the range of European issues that are important to the wellbeing of Europe’s film-makers: audiovisual policy, the regulation of internet platforms, international trade, intellectual property rights’ enforcement, etc.  A look at the last 5 years of SAA’s work also demonstrates the range of issues we work on.

Authors’ rights and copyright have been identified as priority action areas by the European Commission.  It looks like the next 5 years will be just as busy.

JT

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AVMS – Improving the promotion of European works online

One consultation down, just a couple more to go. On 30th September the consultation period on the Audiovisual Media Services (AVMS) Directive closed. This is one review that the Commission is trying to fast-track with a proposal announced for the first quarter of 2016.

The priorities in the consultation for SAA (summary here) are the promotion of European works, ensuring fair competition between OTT services wherever they are established, keeping the scope of the Directive fit for purpose and that advertising rules continue to protect the moral rights of audiovisual authors.

The section on the promotion of European works strikes us an obvious tool to achieve the Commission’s objective of improved circulation of European works, particularly online. Online is exactly where we feel the current version of the directive doesn’t do enough. Covered by Article 13 of the Directive, the current text leaves Member States free to choose how to implement it, with just a list of 3 example methods of how to promote European works given. Unfortunately the reality is that this article has been poorly implemented (or even just copied and pasted) with no monitoring systems in place. This leaves us with situations like on Netflix where you have to look for European works (or even national works) under the rubric “Foreign Films”.

Not only are these Member States missing a trick by not encouraging promotion of European works, but when combined with the country of origin principle, they are also creating unfair competition between services in markets where stricter rules apply.

SAA would like to see Article 13 strengthened across Europe and the opportunity for forum shopping limited to a minimum. If there is no desire to strengthen Article 13 among the member states then maybe the country of origin needs to be refined for OTT services so that all operators in a market play by the same rules.

Our second main point is on the scope of the Directive. Services like YouTube or Dailymotion aren’t considered as audiovisual media services. These services have ‘channels’, ‘networks’ and paid for subscriptions, they have autoplaying playlists of content for ‘lean back’ viewing. The question of editorialisation has always been key, but there can be less and less doubt that, whether by human or algorithm, these services editorialise, promote sponsored content and suggest content. These services need to be brought into the scope of the Directive and the articulation of the AVMS Directive and the eCommerce Directive improved.

Finally, on the issue of advertising, we would like to see calls for the weakening of the requirements for linear services being resisted. In contrast, the requirements for non-linear services need to be strengthened as advertising techniques develop online that can blur the line between creative works and advertising.

The Commission will now go and look through the responses it has received and we will get on with answering the other consultations on the table. The European Parliament will undoubtedly express its opinion in its report on the Digital Single Market which addresses the AVMS Directive among many other issues. The Member States are also keen to see action here so I don’t think it will be too long before we are writing about the Directive again.

JT

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How many VPN users are there?

Last week (31st August), the European Commission published a Eurobarometer survey on “Cross-border access to online content”. The survey came up with some interesting results.

Vice-President Ansip frequently mentions that 20% of European internet users use VPNs and that one of the main reasons they do this is to access content unavailable in their country. The latest survey comes up with a somewhat different figure. Only 8% of those consulted had even tried to access online services targeted at another European country. Of those 8%, 22% had experienced some difficulty accessing the content but had found a way, for example, by using a VPN. 22% of 8% is not the same as one fifth of all internet users.

The striking thing for us is the answers of those who hadn’t tried to access content in another member state. 54% claimed it was because they aren’t interested in accessing online content from another country. When pressed further on what kind of non-national content they might be interested in accessing, 47% said they were not interested in accessing any non-nationally available content. 50% were interested in accessing some form of content, with audiovisual the most popular at 29%.

This is the issue that needs tackling. How can we increase the interest among Europeans for European works from neighbouring countries? This is what would help develop a real, sustainable digital single market with benefits for everyone. Simply catering for the 8% who have tried to access any sort of content across borders is not going to bring about a revolution with large numbers of Spaniards watching hours of Polish films.

To be fair, the Commission is doing something about this already. The observation that European works are not travelling well enough is not a new one. The Media programme is a relatively small programme but it plays a vital role in helping the distribution of European works.

On top of the Media Programme, the Audiovisual Media Services Directive also includes provisions on promoting European works both for broadcasters and on-demand platforms. The Commission is currently consulting on the Directive so maybe the result of that can be new impetus in ensuring European works are visible and actively promoted, particularly on on-demand platforms.

JT

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Calls to revise the AVMS Directive

Is the Audiovisual Media Services Directive still fit for purpose? This was the very important debate launched by the Italian Presidency of the Council at a conference on the audiovisual market and regulation on 23 and 24 October in Rome.

While Italy has not yet been hit by Netflix, the impact of this global distributor of audiovisual works was on everybody’s mind. First established in Luxembourg and then moved to the Netherlands, Netflix entered the European market from the Nordic countries and the UK and then deployed itself in France, Germany and Belgium last September. While Netflix’ activity in the Nordic countries and in the UK did not create local political turmoil, its arrival in the three other countries has triggered high concerns and hot debates. Why? The answer is very simple: Netflix is hitting the audiovisual policies of the latter group but not the former. You could rightly ask: but are these policies not harmonized and the same for all EU countries due to the AVMS Directive?

The answer is no: the AVMS Directive has not fully harmonized audiovisual policies, in particular in the field of the promotion of European works.

Netflix, like any other EU-established, online distributor of audiovisual works with editorial control of its service, is covered by the AVMS Directive. The main interest of the AVMS Directive for these services is the country of origin principle. It allows them to provide their services across Europe while only respecting the rules of the country where they are established. Country-of-origin is fair when the country of establishment is a real connecting factor which reflects the place of the main activities of an economic operator – as is the case for most broadcasters. But for online operators, in particular global ones from outside Europe, their country of establishment does not really reflect the center of their activities but more a place they choose for fiscal reasons in total disconnection with the countries they target for their activity.

The possible adverse effects of country-of-origin can be neutralized when rules are harmonized. It eliminates the interest for economic operators to establish themselves in the country with the least stringent rules. The problem is that the AVMS rules on the promotion of European works by on-demand services are not harmonized. Article 13 only gives examples of ways to promote European works: prominence (which can be implemented in many ways), shares in catalogues, and financial contributions to sector support funds. The countries who make use of these options (in particular by imposing financial contributions) as well as the national competitors to these international services, very much suffer from services targeting their market while being established in a Member State with no such obligation.

The Member States with audiovisual policies which request all operators who distribute audiovisual works to contribute to the economy and cultural diversity of the sector started their campaign for a revision of the European framework last week in Rome. They will take advantage of the refit exercise of the AVMS Directive next year to pressure the Commission to allow derogations to the country of origin principle so that they can impose obligations on all operators active in their market. As the European Commission is less enthusiastic to reform the AVMS Directive than the Copyright Directive, it’s too early to say if there will be AVMS 2 – the sequel, but this is definitely one to be continued…

CD

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