Posts Tagged Cinema

Copyright love-me-nots, a year of the Juncker Commission

Since the beginning of this new Commission a year ago, copyright has been a contentious issue. President Juncker asked his new team to break down national silos. VP Ansip declared his hate for geoblocking. European creators were surprised, asking themselves how their authors’ rights, the foundation of their professional activities, could be such a problem for Europe. They realised that once again, new politicians had spoken before analysing the situation. Authors therefore took it upon themselves to explain again the role of authors’ rights and copyright in the cultural and creative industries: what it does and what it is not responsible for.

After a number of high level meetings, film forum discussions, letters, statements and contact with the Commissioners’ cabinets, they believed that the danger was over and that the new Commission had understood the main features and challenges of the creative and cultural sectors, in particular the audiovisual industry. They were told that nobody would impose pan-European licences, that the role of territorial licensing of rights in the financing and distribution of audiovisual works was understood, that fair remuneration for creators was a must.

And last week the draft communication on a modern, more European copyright framework to be adopted on 9 December and designing the action of the Commission on copyright for next year was leaked. Creators bitterly discovered another story: the final goal of the Commission is still the full harmonisation of copyright in the EU, in the form of a single copyright code and a single copyright title, like in trademarks and patents, regardless of the particularities of authors’ rights and copyright and its links with culture. The Commission considers that the ultimate goal is the full cross-border access for all types of content across Europe to deliver more choice and more diversity to people. Territoriality of copyright is back as the main obstacle.

Imposing cross-border portability of content and services is a first step according to the leaked draft communication. Before this document leaked, the Commission was still assuring stakeholders that portability is not cross-border access; it will be limited to subscribers who temporarily travel outside their country of residence and services will be free to put in place authentication processes. Rightholders will be keener than ever to hear Commission guarantees that portability will not be used to circumvent territoriality.

The Commission’s second possible legislative initiative towards cross border access could come in spring 2016 with the extension of some of the provisions of the Satellite and Cable Directive to broadcasters’ online transmissions. While we consider that the Directive’s most interesting provisions lie in its cable retransmission chapter which ensures the pan-European delivery of broadcasters’ signals through cable operators with collective management solutions, it seems that the Commission is more interested in the country of origin mechanism of the direct satellite broadcasting to be extended to online transmissions. This would heavily question the territoriality principle again.

Is there anything in this draft communication to balance these attacks against the territoriality of rights? Any vision of how creators will make a living in a full digital and online environment? Apart from some already heard promises on the fight against piracy and follow the money mechanisms as well as discussions around the sharing of value created by new forms of online distribution of protected works, there is little for creators in this action plan.

The issue of authors’ fair remuneration, born of the fact that authors are barely remunerated for the online use of their works, in particular in the audiovisual sector, is only developed very briefly and no clear commitment for action is indicated. To compound it all, on top of targeting territoriality and not promising any concrete action on remuneration, the communication goes on to attack a source of revenue of creators, private copying levies.

We still believe the objective of wider availability of European works is a laudable goal, we cannot repeat it enough, screenwriters and directors are the first to be frustrated when people cannot watch the works they have created. However, this availability needs to be sustainable, this means effective financing of production and active distribution and promotion, fair remuneration for authors based on the exploitation of the works, and compensation when authors are deprived of their exclusive rights by exceptions. All this will not be achieved by getting rid of territoriality, quite the contrary.


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Changing the perspective

The European Parliament now has 4 committees looking at the 2001 copyright Directive.  Will they all approach their evaluation the same way?  Ms Reda’s draft report only looks at the copyright framework from the users’ perspective and aims at creating rights for users to access, use and modify works without their authors and other rightholders’ consent. Such an approach takes as a starting point that works are spontaneously created by authors who do not need to make a living from their art and that the copyright system is corrupting their sharing aspiration.

This perspective is a gross (or deliberate) misunderstanding of the role of authors’ rights and copyright for the authors, performers and producers of creative works and for the economy and development of our cultural and creative sectors in Europe.

Let’s take cinematographic works as an example: a professional film has an average budget of 2.1 million euros in Europe. New technologies have not really reduced costs but it has increased creators’ tools and possibilities. As a European state aid rule, films cannot have more than 50% of their production budget financed by public funds. Producers therefore have to find private money for the remaining 50% of the production budget, as well as additional investment for the promotion, distribution and marketing of the films as there are very few public schemes to help in these fields. To do that, they usually pre-sell some territories to local distributors and/or exploitation rights to broadcasters or other platforms and gather these people and investors around a project they all believe will attract an audience.

Copyright is therefore not only what secures rightholders’ control and revenues over the exploitation, it is also essential for financing the works in the first place. In the audiovisual sector, if you cannot finance the works up front, they will not exist.

While authors and other rightholders expect their works to reach the audience through exploitation, Ms Reda proposes that works be accessible through copyright exceptions, in particular in the online environment. This means accessible without authors and other rightholders’ consent and with no possibility for them to monetize this access and consumption of their works. What do you think the impact will be? With reduced scope to recoup investment and to monetize exploitation, such measures will discourage private investors from investing in our works.  Do we expect public funds, already under significant strain, to pick up the slack? In the end, it means less money available to make films in Europe, so less possibilities for our screenwriters and directors to tell the stories of our continent.

It is therefore essential for members of the European Parliament to look at the impact of any proposed measure on copyright sector by sector and to answer this simple question: do they want to support or reduce European production and cultural diversity?


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The Cross-border question – financing, exploiting & remunerating

Last year I wrote in the German press about the frustration of seeing unlicensed copies of my work freely available and easy to find on the internet and the absence of legal services delivering the full range of European films I would expect.  I wanted to be provocative to strike the contrast between my expectations and the market delivery, but I also wanted to show that there are possible solutions.  I suggested creating compulsory licences for European audiovisual works. A little bit like the radio where any works can be used but where remuneration is due to the authors and other rightholders.

One of the most frustrating things for screenwriters like me is to talk to someone about a film I helped make and for that person to discover that they are unable to watch it legally.

And I am a lucky author, my film Sophie Scholl was sold to many territories and is generally available.  My next film, Elser, has already sold around the world.  Other films I have worked on have not been so lucky.  I very much understand the frustrations of film fans who can’t find the films they have heard about.

But I also have another hat, that of a film producer.

The reality is that the climate for the financing of European works is very difficult and very modest productions often involve a number of different investors from different countries.  My authors’ rights in the script I write are for the world.  But as a producer I know that very often the only way to finance the actual production means selling off bits of those rights to different investors, sometimes territory by territory.  Any push for pan-European licences cannot ignore this point: if it deprives us from possible investors, European production and distribution will suffer very much.

If I put my author’s hat back on, I think we also need to look at the problem from another angle. If we want works to be available cross-borders then we also need to guarantee authors – screenwriters and directors – that their remuneration for the use of their films will flow back to them.  At the moment, for a variety of reasons, this doesn’t really happen.

If our creative works are to be available across-borders then our remuneration should also flow across borders. We therefore need EU new remuneration mechanisms that associate authors’ remuneration to the exploitation of their works.

Fred Breinersdorfer

Screenwriter, producer and SAA patron

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Cinéma européen, le yéti de Bruxelles


Cédric Klapisch discussing his work with Cineuropa’s Domenico La Porta

A Bruxelles, dans les instances européennes, nous discutons beaucoup de cinéma européen : cette créature dont tout le monde parle mais que personne n’a rencontrée et qui fait l’objet de nombreux débats économiques ou juridiques qui laissent finalement peu de place à l’expression du talent de nos auteurs, à leurs idées, à leur vision.

Face à ce paradoxe, nous avons décidé de mettre sur pied des rencontres avec les cinéastes d’aujourd’hui, ceux qui font le fameux cinéma européen. En donnant la parole aux auteurs à Bruxelles, capitale de l’Europe, nous permettons aux décideurs politiques européens de comprendre, à travers chaque parcours individuel, ce que c’est que faire un film, écrire un scénario, les années que les auteurs passent sur un projet, les combats qu’ils doivent mener pour convaincre des financiers d’investir, les succès, les creux de carrière, l’importance des droits qui les relient à l’œuvre et nourrit leur liberté, la nécessaire persévérance et le désir toujours renouvelé de raconter des histoires.

Nous avons reçu le 18 mars 2014 dans le cadre de ces « Rendez-vous du cinéma européen » le réalisateur français Cédric Klapisch. Devant une salle comble de professionnels et politiques invités et de public anonyme, Cédric nous a parlé de son cinéma, de ses choix, de ses rêves, mais aussi du cinéma européen : de cette difficulté commune aux auteurs européens à faire exister des films dont la commercialité n’est pas inscrite dans le synopsis, qui ne sont pas conçus en termes de rentabilité. Pour exister, ces projets doivent rencontrer des producteurs et financiers qui vont faire confiance à l’intuition de l’auteur sans la dénaturer et qui vont lui permettre de rencontrer le public.

Cédric Klapisch a expliqué que personne ne voulait financer L’Auberge espagnole au départ (à l’arrivée, plus de 5 millions de spectateurs en Europe). Cette difficulté des producteurs et financiers à faire confiance aux auteurs l’a poussé à devenir lui-même producteur. C’est bien sûr une question de contrôle artistique, a-t-il expliqué, mais surtout de liberté : « La notion la plus importante pour moi en tant que créateur est la liberté. On cède beaucoup trop de choses quand on cède ses droits ».

Cédric Klapisch nous a aussi parlé d’Europe. Ce thème dominant de L’Auberge espagnole est le reflet d’une de ses préoccupations majeures d’auteur, avec celle de la culture. Le combat européen est très complexe à vendre. Il reste un gros travail de communication à faire sur les enjeux européens selon Cédric Klapisch. C’est sur le terrain de la culture que l’Europe peut faire la différence. L’échelle européenne, il en est convaincu, est le niveau de décision approprié pour les bouleversements que vit le secteur audiovisuel. Des décisions politiques importantes doivent être prises pour que le cinéma européen continue d’exister. L’intégration de tous les opérateurs, notamment les plateformes internet, dans la chaîne de financement du cinéma est indispensable pour continuer à produire des œuvres de qualité en Europe.

Ce témoignage, cet échange d’un auteur avec le public européen de Bruxelles représente une opportunité incroyable pour ceux qui font les politiques européennes dans les domaines de la culture, de l’audiovisuel et du droit d’auteur. Que ceux qui ont raté ce moment rare se rassurent, la vidéo est sur internet !

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Let’s get Europe’s audiovisual works out

And by out, we mean out there, being watched.

The dust is still settling following the agreement of the negotiation mandate for the free trade agreement between the EU and the US.

We were particularly pleased to see audiovisual services excluded from the mandate.  What was disappointing was to see this portrayed as a victory for France and French cinema.  While France was clearly the most vocal country in defending its ability to support its local cultural creators, the victory was one for European cinema.

SAA called, along with other European groupings of screenwriters, directors, producers, distributors, broadcasters, cinemas, for audiovisual to be excluded (see here).  SAA represents collective management organisations for screenwriters and directors from across Europe – not just French ones.  The same applied to the other organisations.  Europe’s patchwork of different systems and regulations from country to country has created a sophisticated support mechanism for the creation of audiovisual works, essential to maintain and enhance diversity and circulation.  As technology advances, and the internet continues to change the audiovisual landscape, European countries need to be able to adapt their support and regulation systems in a period of rapid evolution.

As we have said before, Europe’s diversity is its strength.  We should be looking to implement policies that enable European creators to seize the digital opportunities to get our works and our vision of the world out. Now that the mandate is adopted, let’s focus on doing that.

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To negotiate or not to negotiate

Last week the European Parliament made a very strong statement. By a large majority they sent a clear message to the Council and the European Commission: “Europe’s cultural exception is not negotiable”.

The line of the Commission is that everything needs to be on the table for the EU-US Free Trade Agreement (TTIP – Transatlantic Trade and Investment Partnership, for those who love acronyms and twitter hashtags) to maximise its potential.  If the Europeans start excluding this and that, then so will the Americans.  In short, the Commission is saying:

“Everything needs to be on the table but don’t worry, we won’t actually negotiate everything.  The cultural exception definitely won’t be negotiated. Honest.”

One of the analogies that has been used is that of a game of cards and “having the best hand”.  Within such an analogy it strikes me that cultural diversity is more like the house that you are ready to gamble.  If you don’t want to lose it, then you shouldn’t put it on the table.

Europe’s diversity is one of its key assets.  As Harvey Weinstein said while defending the cultural exception in Cannes “Great business is by being different”.  But it comes with its own challenges.  Our cultural works don’t have automatic access to large markets.  The subject matter can even be very specific to a particular country or culture, making it difficult for a film to travel.  Subtitling is a minimum for works to cross borders and some countries won’t go for anything less than full dubbing.  But their is a clear evolution.  The breakthrough of European TV productions across Europe and beyond is proof that the complex support systems we have built are maturing.

If you want to maintain Europe’s ability to create cultural works it can shout about – sign the film-makers’ petition.

The Council votes on the negotiating mandate to be given to the Commission on the 14th June. We need to keep the pressure on.

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Europe loves cinema?

I traditionally spend a few days in Cannes for the International Film Festival in May to (of course) see films and discover the brilliant selection concocted by Thierry Fremaux, the most trusted cinema lover in the world, but above all to participate in events and meet people at this big international fair.
From a European political perspective, Cannes has developed as a relocated discussion forum for EU audiovisual policy and film funding. Commissioner Vassiliou, in charge of Education and Culture, has continued the tradition initiated by her predecessor, Viviane Reding, to promote the Media programme in Cannes and, at the same time, grace the red carpet with European filmmakers. Throughout the festival, Media programme officials welcome film professionals at the Media stand, offering them different services and organising lunches, cocktails and a conference. The European Audiovisual Observatory is also present and publishes its yearly focus on world film market trends as well as organising a conference which attracts hundreds of professionals every year.
This year, there were two hot topics of discussion for film professionals: the draft EC communication on state aid for films and the EC proposal for the Creative Europe programme.
The European Audiovisual Observatory conference on 19 May was about the new rules for film funding put forward by DG Competition. Obhi Chatterjee, case handler for film state aids, was brave enough to face the angry film professionals and film funds. Professionals take issue with DG COMP for changing the territorial spending criterion (1) without demonstrating that the existing rules distort competition in the EU, while DG COMP considers that it has not been demonstrated that these rules are positive and necessary for the European film industry. What is positive here is that there is a dialogue and that there is room for improvement as the rules are just a proposal which has not been submitted to the political hierarchy yet. I’m sure a compromise will be found by the end of the year.
Second item: Commissioner Vassiliou’s Creative Europe programme for 2014-2020 as an umbrella for the existing Culture and Media programmes. Whereas we could have expected some synergies for the cultural and creative sectors from such a proposal, each camp has defended its own programme and apart from a financial facility (which should address both the cultural and audiovisual sectors), the only apparent synergy so far is the merger of the EU’s Culture Contact Points and Media Desks…
Philippe Brunet, head of Commissioner Vassiliou’s cabinet, was in Cannes to alert film professionals that any discussion on the content of the Creative Europe programme was suspended prior to the conclusion of discussions on the EU budget. Commissioner Vassiliou has proposed an increase of 35% for the new programme (1.8 billion – or 0.17% of the total budget of 1,025 billion) and will fight for it. However, most Member States are globally reluctant to any EU budget increase at a time of crisis and some of them still consider that it is not up to the EU to deal with cultural issues.
Back home at the end of the festival, film professionals might be left feeling bitter: public financial support for European films is being threatened on all sides. To continue to develop stories and produce films which reflect the cultural diversity of Europe, they will have to convince a) the European Commission that money spent by Member States to help develop, produce and distribute films on their territory is not a distortion of competition and b) the Member States that EU money spent in the cultural and audiovisual sectors benefits their economy and will support growth and jobs. Not a bit schizophrenic?

(1) In the existing rules, a Member State who provides for financial support to a film can impose that up to 80% of the production budget is spent on its territory. DG COMP proposes to change this criterion into a possible obligation to spend only up to 100% of the aid on the territory.

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