European Producers Club

EPC Position on the EC Regulation on Portability

04 Mar 2016 4:15 PM | Anonymous

The following is our official position on the European Commission's Regulation on Portability. Click to download a PDF version blow and feel free to share the document with fellow producers and producer associations.

EPC Position on Portability Regulation.pdf


EPC POSITION ON THE EC REGULATION ON PORTABILITY

Paris, March 2016

Last December, the European commission published a regulation proposal on cross-border portability of online content services in the international market. 

The EPC, only organization gathering 100 individual producers, coming from 20 countries around Europe, wishes to express its concerns and fears on this proposed EC Regulation as specified below.

As a premise, we would like to reaffirm the absolute necessity of territorial exclusivity of the copyright, as a foundation of our industry.  It allows the financing of the film, and then their exploitation, securing return on investment to the financiers of the films. As a reminder, the budget of a feature film, or a TV show, ranges from 0,5 to 50 million euros. The amounts invested are huge, creating jobs and structural employment in every European country, while nourishing our cultural diversity.

We believe that the measures proposed in the EC Regulation may threaten our industry, as it is expressed today, and we call for consequent modifications.


1.      On the necessity of cross-border portability 

A recent representative survey on Cross-border access to online content published by the EU (Flash Eurobarometer 411) shows a majority (82%) of respondents were able to find the audiovisual content they were looking for. 75% of the respondents have never tried to have access to content in a paid subscription services. Among the 25% who tried, it worked perfectly well for 30%. The unhappy viewers are 70% of 25%, meaning 17,5% of respondents. 

Further, only 8% of internet users have tried to access content through online services outside their Home State, of these only 5%, or a Total of only 0,4%for audio-visual content.

Conclusion: The number of people that are concerned by this measure is very low.

It’s important to keep that aspect in mind, when imposing a regulation that could disrupt the economy of a whole sector.

However, the right holders are aware that the way people watch audiovisual content may change in the near future, and they are ready to anticipate these changes in a way that doesn’t disrupt the industry.


2.      Portability should not be an exemption to the author rights 

The EPC is in favor of applying portability to content on four conditions:

  • -        through copyright contract conditions
  • -        for identified users
  • -        traveling for a short period of time
  • -        for users that are paying for a service. 

Portability rights are granted by a rights holder to a broadcaster or an online service provider. This cession is subject to contract defining the cession and the particular use of the rights in question.

Granting portability on content should be neither a limitation from nor an exemption to the exercise of author’s rights. Even if the proposed EC Regulation is forcing the providers to propose portability to their users, it must be subject to contract between the parties.

This is particularly relevant since the provisions in the proposed EC Regulation are very vague. It opens the door to giving rights for free for a new exploitation that will never be monetized for the rights holders.

We may imagine that in a near future, portability of content may spread widely, and films will be watched all over Europe, while this new use will never be paid to the rights holders.


3.      Conditions of according portability on online content 

The respect of these conditions is elemental to the handling of portability. The precise definition of these conditions has to be included in the EC Regulation. 

The EC Regulation should also specify that its disposition would not apply retrospectively.

There can’t be portability if there are no more precisions on the applicable conditions:

Contract basis

The cession of portability rights is subject to contract defining the cession and the particular use of the rights in question.

Identifying the user

While respecting the EU data protection achievements, the authentication of users must be strengthened, using as many identifiers as possible, in order to verify that the user is the one holding a paid service.

Temporarily present

This notion should clearly define a period of time, mentioning holiday periods or business trips. Portability has to be temporary, for a travelling user. It can’t address a foreign resident in a country.

For paid services only

Broadcasters are among the main financiers of our films and act nationally. Extending portability to nonpaid services will open the doors to national broadcasters to make their content available in another country for free, so even if the user is clearly identified and registered this would threaten the existence of our industry.


4.      Transition period 

The danger this Regulation may provoke to our sector is huge. A transition period should be established in order to:

  • -        estimate the real demand 
  • -        prepare the renewal of contracts
  • -        estimate the consequences on the industry

In conclusion, the EPC members would like to remind that copyright is based on territoriality and this is the basis of the financing and exploitation of the works they produce.

 

The European Commission has not proved in the studies as yet ordered and published, the relevant necessity of changing the whole system to adapt to a new demand.

However, EPC members may agree on giving portability to their content, under certain conditions designed to act as safeguards regarding the foundation of our industry.

The proposed Regulation does not provide these safeguards and should be strongly amended in order not to endanger the whole creative industry. We hope to have given input with the above recommendations



European Producer's Club. 42 Rue du Faubourg du Temple - 75011 Paris, France - Tel: +33 1 44 90 06 13 - Fax: +33 1 44 90 03 19

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