EUROPEAN FILM POLITICS SEMINAR

BERLINALE 2021

Towards a thriving environment for the independent audiovisual industry through investment obligations, levies, and sustainable contractual practices

At the occasion of the 3rd European Film Politics Seminar, 75 professionals from the industry gathered to brainstorm and prompt synchronization of policies as well as focus on the role of independent producers as a driving force in the film industry.

Last year during the 1st European Film Politics Seminar, the 3 hours session resulted in the vote of calls of action, the voted most primordial were:

  • Imposing transparency about consumption of data of European works and revenues in the different territories to all linear and non-linear services.

  • Ensuring that investment obligations are channelled directly via Independent Producers and levies are redistributed into the independent sector.

  • Preventing linear and non-linear services to retain all underlying rights and exploitation rights and enable Independent Producers to recover distribution rights after a certain number of years.

Today the discussion presents the state of play in regard to what has been implemented and negotiated in the time frame of one particular year, and what are now the demands and potential consensual positions of the different professionals of the sector.

The positions presented were revolving around three key arguments.

  1. A thorough implementation of the obligations contained in the AVMS Directive.

  2. Safeguarding the role of independent producers in European diversity and creative innovation.

  3. Ensuring the sustainability of the independent sector with contractual practices adapted to the European industry.

 

  1. The need for an ambitious European implementation of the AVMS Directive.

 

  • The AVMSD has brought the opportunity for European countries to introduce new instruments to complete the obligations already in place, such as VOD Levies and cross-border financial obligations.

 

  • With the deadline of transposition now passed, we nonetheless expect an evolution with late national implementations and even after the implementations. Some countries will introduce financial obligations later on. We have witnessed a trend all over Europe to impose obligations to cross border activities.

 

 

  • The directive has granted the national authorities with an instrument they can use to level the playing field between the different production capacities of the member states and at the same time safeguard the thrive of their local industry and local languages.

 

  • The AVMSD also acts as a link between VOD Services and local independent producers who weren’t in the scope of the global players.

  • This unique investment which is done by the Global platforms, this opportunity to reach a worldwide audience in one deal and also to produce high-end content is welcomed by the sector.

 

  • We see in these new rules and obligations contained in the AVMSD a way to broaden the audience of the European independent industry and showcase European cultures and diversity.

 

     2. Comforting the independent producers‘ role of risk-takers and warrant of European cultural diversity.

 

  • How the VOD platforms will make these investments is equally important, how these different frameworks will promote independent production and diversity of creation.

 

  • There is a reciprocity of needs between VOD services and independent producers: to respond to the demand for European content coming from their customers they rely on European independent producers to discover talents, take risks, create controversial and opinion-making content.

 

  • It is important to work on a model that can allow independent producers to compete and have this opportunity to finance and develop their own works. This is only possible if we ensure that the financial contributions from the VOD services are reserved for independent producers.

 

  • It is crucial to not let the independent European producers be turned into mere service providers at the risk of losing the variety of content that makes Europe the hub for artistic and unique creative works it is known for.

 

    3. Framing the hegemonial power of the VOD platforms by ensuring fair contractual practices.

 

  • Whilst welcoming the opportunities contained into the AVMS Directive, is it enough?

 

  • The European business model relies on equal creative partnerships and mutual decision making, with a share of rights and revenues between the different players involved in a project.

 

  • The U.S. business model, on the other hand, could be described as a work-for-hire model, in which the producers can be relegated to mere service providers where they receive a flat fee compensation against all rights in perpetuity as well as having to assign of the underlying IP rights. 

 

  • The VOD services ensure to use various and different contractual terms accordingly to the projects, and to be flexible on rights depending on the needs of the independent producers.

 

  • We need to remind that independent producers live from the exploitation of rights. It is essential for them to be able to maintain certain rights, as well as receiving a reversion of the rights after a certain time. They depend on the revenues of past projects to finance the next ones.

 

  • Independent producers also need to be left in control of the IP they have created or co-created as independent producers with all the financial and artistic risks this implies.

 

  • The independent producers need to receive fair remuneration based on the exploitation the works they have created.

 

  • Retaining distribution rights and the underlying IP rights is a reward for the risks taken by the independent producer in the creation of the work as well as an incentive to keep on taking risks, pushing boundaries and innovating.

 

  • We also need to ensure that VOD services transparently share data on the consumption of the European works in order to rebalance the negotiating position between the parties.

 

  • The EPC has created a code of fair practices, to be applied to all contracts with VOD services, for all producers, not only the ones with the bargaining power revolving around three key principles: fair remuneration, respecting the independent producers‘ contribution in the creation of audiovisual works and enabling independent producers to grow. These principles are believed to be primordial to build a strong, diverse, and artistic audiovisual industry.

 

  • In order to ensure these principles are respected, a dialogue between all players of the sector is important, as well as the help from the regulators to accredit the negotiation power of the independent sector vis à vis the VOD Services acting as gatekeepers.

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