Dokument

Brev till EU Kommissionen 25/10-11

DG Internal Market Unit D-1 "Copyright" Stockholm October 26, 2011

VIA EMAIL

With copy to
The Swedish Ministry of Justice

Comments regarding Green Paper on the online distribution of audiovisual works in the European Union: opportunities and challenges towards a digital single market, COM (2011) 427 final (referred to below as the "Green Paper")
1. GENERAL
Tevefolket ("the tv people") is an industrial interest group consisting of the three largest broadcast groups on the Swedish market, MTG TV, the TV4 Group and SBS TV. Tevefolket is working to safeguard the interest of the commercial broadcasters in Sweden with a specific focus on four main areas: piracy, net neutrality, the financing of public service and the threat against national tv.

As a starting point, Tevefolket wants to highlight that there are many examples of successful cross border online services already up and running in the Nordic territory, of which some are provided by members of Tevefolket. This shows that it is possible already under the current licensing framework to deliver attractive services online in and between the member states.

While Tevefolket fully sympathizes with the aim to strengthen the European audiovisual industries as expressed in the Green Paper, Tevefolket has doubts as to whether the measures indicated are adequate for this purpose. As soon as the demand is strong enough, more cross border services will emerge organically. It is in Tevefolket's view better to stimulate organic development in this regard than to intervene with regulatory measures.

In the following, Tevefolket provides its views only on those specific questions asked in the Green Paper that have a bearing on Tevefolket's main areas of interest.
2. POLICY APPROACHES

1) What are the main legal and other obstacles - copyright or otherwise - that impede the
development of the digital single market for the cross-border distribution of audiovisual works? Which framework conditions should be adapted or be put in place to stimulate a dynamic digital single market for audiovisual content and to facilitate multi-territorial licensing? What should be the key priorities?

As noted in the foregoing, cross-border distribution of audiovisual works is fully possible under the current legal framework and there are no apparent legal or other obstacles.
As concerns a digital single market for cross-border distribution, Tevefolket's wishes to highlight that locally produced content is a key driver for the development of the audiovisual industry in the member states and thereby in the EU as a whole. If the development of a "digital single market" means that it should no longer be possible to acquire online rights exclusively for specific countries or regions within the EU, Tevefolket believes that this would be detrimental to the development of the audiovisual market and to the consumers. It is in this regard, not possible to separate online distribution from other types of distributions. Any regulations applicable to online distribution would have a direct effect on other distribution forms. Consequently, if introduced, any regulations must be technology neutral.

Regarding the key priorities, one of them should - for obvious reasons - be measures to ensure an effective defense against piracy in all forms.

Another key priority should be the introduction of effective measures to ensure net neutrality, meaning that internet service providers should be prevented from prioritizing traffic in their networks on the basis of their own commercial interest thereby controlling how and which services can be accessed by end customers.

2) What practical problems arise for audiovisual media services providers in the context of clearing rights in audiovisual works (a) in a single territory; and (b) across multiple
territories? What rights are affected? For which uses?

As noted above, the legal framework for clearing rights is relatively straight forward as most rights can today be cleared at the source. With regard to music rights, which always must be cleared separately with a collecting society, there are sometimes problems with transparency in the pricing and the application of different tariffs for reception of satellite broadcasts in different countries.

3) Can copyright clearance problems be solved by improving the licensing framework? Is a copyright system based on territoriality in the EU appropriate in the online environment?

As noted above, a copyright system based on territoriality is in Tevefolket's view just as appropriate in the online environment as it is for all other forms of distribution of audiovisual content.

National broadcasters have played a very important role in the development of the audiovisual sector in the EU and have been the driving force behind the development of many new services that currently are enjoyed by viewers on all platforms. The commercial national broadcasters in particular fulfill an important role as balance to the strong state funded public service broadcasters in the Nordic countries. This balance works as a safeguard for media plurality. Furthermore the national broadcasters play an important role in the entire audiovisual value chain from individual actors and authors to local independent production companies and broadcast service providers. The success of the national broadcasters has come on the back of a sound mixture of international and locally produced content, and the revenues generated by the national broadcasters have been re-invested in locally produced content.

If a licensing framework with compulsory EU-wide licenses would be introduced, there is a great risk that only pan-European broadcasters based in the larger EU countries, US hardware manufacturers such as Apple or internet companies such as Google would be able to compete for exclusive EU-licenses to attractive audiovisual content. Consequently the national broadcasters would be deprived of a large portion of the most attractive content making their channels less attractive for the consumers and thereby reducing the national broadcasters' ability to invest in locally produced content.

Also, even if the rights would not be sold exclusively as noted above, and all rights would instead become non-exclusive, it is most likely the companies of the sort mentioned above that will dominate thanks to their established customer relationships and superior marketing means.

Tevefolket is thus convinced that a "digital single market" in the sense that territorial exclusivity can no longer be upheld is detrimental to the national broadcasters and thereby detrimental to the entire audiovisual industry and the public.

4) What technological means, for example individual access codes, could be envisaged to enable consumers to access "their" broadcast or other services and "their" content,
irrespective of their location? What impact might such approaches have on licensing
models?

It is already today possible to agree on such "carve outs" of the exclusivity as long as effective content security can be ensured and this is not otherwise used to circumvent contractual restrictions regarding the distribution. Consequently it should be left to the rights holders and their licensees to negotiate such carve outs if there is a sufficient demand for these services from the consumers.

5) What would be the feasibility, and what would be the advantages and disadvantages of, extending the "country of origin" principle, as applied to satellite broadcasting, to online audiovisual media services? What would be the most appropriate way to determine the country of origin" in respect to online transmissions?

As long as it is possible to require geo-blocking of content sold exclusively for use in particular countries of the EU, there is nothing preventing a country of origin principle for clearing of copyright in simulcasts of linear channels over the internet. The country of origin could possibly be determined in accordance with the general principles in the AVMS directive.

6) What would be the costs and benefits of extending the copyright clearance system for
cross-border retransmission of audiovisual media services by cable on a technology neutral basis? Should such an extension be limited to "closed environments" such as IPTV or should it cover all forms of open retransmissions (Simulcasting) over the internet?

The copyright clearance system used for cable retransmissions could be used both for IPTV and internet retransmissions of linear channels, subject to the geo-blocking possibility as mentioned above.

7) Are specific measures needed in light of the fast development of social networking and social media sites which rely on the creation and upload of online content by end-users (blogs, podcasts, posts, wikis, mash-ups, file and video sharing)?

Tevefolket appreciates the possibilities of social networking and social media, however, when the effect is that content is being made available to the public via such means the rights must be duly cleared as for any other content distribution.

8) How will further technological developments (e.g. cloud computing) impact upon the
distribution of audiovisual content, including the delivery of content to multiple evices
and customers' ability to access content regardless of their location?

Tevefolket has no particular views on this.

9) How could technology facilitate the clearing of rights? Would the development of
identification systems for audiovisual works and rights ownership databases facilitate the clearance of rights for online distribution of audiovisual works? What role, if any, is there for the European Union?

Tevefolket has no particular views on this.

10) Are the current models of film financing and distribution, based on staggered platform and territorial release options, still relevant in the context of online audiovisual services? What is the best means to facilitate older films which are no longer under an exclusivity agreement being released for online distribution across the EU?

Tevefolket believes in the importance of preserving the principle of contractual freedom to as large extent as possible. This applies also with respect to release windows, which today serves as an important means of financing and marketing movies also to the benefit of broadcasters.

11) Should Member States be prohibited from maintaining or introducing legally binding
release windows in the context of state funding for film production?

No, this should be up to the Member States to decide.

12) What measures should be taken to ensure the share and/or prominence of European works in the catalogue of programmes offered by on-demand audiovisual media service providers?

Tevefolket basically considers the regulations regarding promotion of European works set out in the AVMS directive are sufficient. However, it should be noted that commercially attractive European works will automatically find its place in such catalogues. It is more likely that the European audiovisual industries will attract the necessary investments in order to produce commercially attractive European works if the rights owners are allowed to decide about its licensing strategies for itself rather than being bound by detailed licensing regulations. Tevefolket recognizes that there may be a need for marketing support in order to spread the interest for European works in other EU-countries. When taking into account the share of European works it should be possible to accept a lower share of newly produced works compared to a higher share of archive works, since the former stimulates the European audiovisual industry maybe even to a greater extent than the latter.

13) What are your views on the possible advantages and disadvantages of harmonizing
copyright in the EU via a comprehensive Copyright Code?

Tevefolket has no particular views on this.

14) What are your views on the introduction of an optional unitary EU Copyright Title? What should be the characteristics of a unitary Title, including in relation to national rights?

Tevefolket has no particular views on this.

3. RIGHTS HOLDERS' REMUNERATION FOR ONLINE EXPLOITATION OF AUDIOVISUAL WORKS

15) Is the harmonisation of the notion of authorship and/or the transfer of rights in audiovisual productions required in order to facilitate the cross border licensing of audiovisual works in the EU?

It is not required but harmonization may be beneficial.

16) Is an unwaivable right to remuneration required at European level for audiovisual authors to guarantee proportional remuneration for online uses of their works after they transferred their making available right? If so, should such a remuneration right be compulsorily administered by collecting societies?

Contractual freedom should apply. It is important that broadcasters remain able to clear all relevant rights at the source, i.e. with the producer. Only when strictly necessary for practical reasons there shall be recourse to collective licensing.

17) What would be the costs and benefits of introducing such a right for all stakeholders in the value chain, including consumers? In particular, what would be the effect on the crossborder licensing of audiovisual works?

There is always a risk of mismanagement of the administration of rights on a collective basis. Therefore, the principle of contractual freedom should apply to the greatest extent possible.

18) Is an unwaivable right to remuneration required at European level for audiovisual
performers to guarantee proportional remuneration for online uses of their performances after they transferred their making available right? If so, should such a remuneration right be compulsorily be administered by collecting societies?

Please see reply to question 16 above.

19) What would be the costs and benefits of introducing such a right for all stakeholders in the value chain, including consumers? In particular, what would be the effect on the crossborder licensing of audiovisual works?

Please see reply to question 17 above.

20) Are there other means to ensure the adequate remuneration of authors and performers and if so which ones?

If it would turn out that audiovisual authors and artists have an inferior positions when negotiating with the producers, it is possible to put in efforts to strengthen their position in such negotiations. New collective licensing schemes for content users should be avoided.
4. SPECIAL USES AND BENEFICIARIES

21) Are legislative changes required in order to help film heritage institutions fulfil their
public interest mission? Should exceptions of Article 5(2)(c) (reproduction for preservation in libraries) and of Article 5(3)(n) (in situ consultation for researchers) of
Directive 2001/29/EC be adapted in order to provide legal security to the daily practice of European film heritage institutions?

Tevefolket does not oppose to measures that safeguards the public interest missions of researches as long as the activities do not in any way compete with commercial services.

22) What other measures could be considered?

Tevefolket has no specific suggestions in this regard.

23) Which practical problems arise for persons with disabilities to have access on an equal
basis with others to audiovisual media services in Europe?

Tevefolket has no particular views in this regard and refer to individual answers given by its member companies.

24) Does the copyright framework need to be adapted to improve accessibility to audiovisual works for persons with disabilities?

See answer to question 23.


25) What would be the practical benefits of harmonising accessibility requirements to online audiovisual media services in Europe?

See answer to question 23.

26) What other actions should be explored to increase the availability of accessible content
across Europe?

See answer to question 23.

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Tevefolket

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Jan Friedman, spokesperson