EU wants to knock down digital borders

Streaming Video The European Commission on Wednesday kicked off a “consultation” (something like an agency rulemaking in the U.S.) that could fundamentally transform long-standing elements of film financing on the Old Continent.

The goal of the consultation is to gather views on “how Europe can seize these opportunities [for creators and distributors] and move towards a digital single market,” according to the press release. The comment period runs through mid-November, after which the commission will assess the need for Europe-wide legislation and make specific recommendations to the European Parliament.

The commission released a green paper laying out the background and parameters of the consultation (see below).

The commission’s overall aim is to increase the legal availability of movie and TV content on digital platforms throughout the 27-member EU.

As noted in the green paper, the digital market within the EU currently is highly fragmented, including more than 500 separate “on-demand audiovisual services,” including movie download and streaming sites, catch-up TV services and mobile services. Most of those services, however, are accessible only in the countries where they originate:

These tend to continue the practice of addressing customers “in their own language”, and tailoring content to local preferences such as language, film classification, dubbing or subtitling requirements, advertising, holiday periods, and general consumer tastes. This is consistent with the experience of producers and distributors whether large or small scale, who have indicated that although they license content on a multi-territorial basis where there is a business case to do so, targeted and local investments in distribution and marketing are nevertheless required in order to promote and sell films in each country.

The commission would like to see that change, in accordance with the EU’s general philosophy of free movement of goods and services throughout the union:

Consumers increasingly expect to be able to watch anything, anywhere, any time and via any of a number of devices (TV, personal computer, game console, mobile media device). Business models have to evolve rapidly to keep pace with the ever faster pace of technological change.

That evolution, however, could run smack into traditional film and TV financing models used by both U.S. and European producers that have long relied on territory-by-territory licensing and territorial exclusivity:

In the case of audiovisual content, a number of reasons for the fragmentation of the online market have been cited, including technological barriers, complexity of copyright licensing processes, statutory and contractual provisions relating to release windows, lack of legal certainty for service providers, payment methods, consumer confidence and the prevalence of deep-seated cultural and linguistic differences.

The Single Market Act has already underlined that, in the internet age, collective management must be able to evolve towards European models which facilitate licences covering several territories. In addition, and as set out in the Digital Agenda for Europe, the Commission will report by 2012 on the need for additional measures, beyond the facilitation of collective rights management, allowing EU citizens, online content services providers and right-holders to benefit from the full potential of the digital single market, including measures to promote cross-border and pan-European licences.

Among the questions the commission would like commentors address:

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?


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?

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?


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?

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?

Should be fun.

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