We have vocally supported a review of the geo-blocking rules for AV content. However, a majority of MEPs gave in to a campaign by an AV industry coalition that relied on unfounded claims and fearmongering. Industry claimed that a reform of the geo-blocking rules would threaten 15 million creative sector jobs and 4.4% of the EU’s GDP. These numbers have no basis in fact, as we explained in a previous blogspot. First, there are various ways to maintain the current territorial financing model (allowing passive sales or introducing curtain periods for example). Second, no independent economic impact assessment has been carried out yet, which would be the basis for any legislative initiative. According to the campaign, the abolition of geo-blocking would also lead to less diversity and less content being produced in fewer languages – an extremely hypothetical construction with, again, no basis in fact.

The industry campaign was so effective that Parliament even removed § 25 from the report that would have expounded the problem of geo-blocking of content that is “funded or co-funded” by the EU. One would believe that the demand that “whenever EU funds are involved in the financing of audiovisual content, no EU citizen should be deprived access to it” is a fairly uncontroversial one. But not for the AV industry, which is happy to accept public funding and still wants to call all the shots on distribution.

If we don’t see a reform of the geo-blocking rules for audiovisual content, European consumers will continue to be locked out from content that they would be willing to pay for if it isn’t licensed in their country of residence. As the Commission’s first short-term review showed, consumers in the smaller markets are most affected by the current regime. While European consumers on average have access to only 14% of the films available on line in the EU (p. 10), consumers in Greece, for example, only have access to 1.3% of all the titles in all Member States (p. 68 of Staff Working Document part two).

The result is a frustrating reminder that overblown statistics and other baseless claims remain an effective lobbying tool in Brussels. So what should happen next? COMMUNIA has been a constructive participant in the European Commission’s stakeholder dialogue where a number of options have been explored to abolish geo-blocking without harming the territorial financing model of the AV industry. These include proposals from stakeholders (including from us) for pilot projects to make publicly funded content available on a European media platform upon expiry of a curtain period against remuneration. The next Commission should take the initiative and implement such a pilot project to assess the economic and social impact of a gradual fade-out of geo-blocking for audiovisual content.

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Open letter to the European Parliament

Dear Members of the European Parliament,

This week, on December 12, the European Parliament is scheduled to vote on an own-initiative report on the implementation of the 2018 Geo-blocking Regulation, including for audio-visual content. The IMCO Committee adopted the report on October 25, 2023, with opinions from CULT and JURI, through the support of a broad, cross-party majority. We urge you to follow the committee’s vote, adopt the report and pave the way for a revision of the Geo-blocking Regulation during the Parliament’s ‘24-’29 term.

With regard to audiovisual content, the report “highlights potential benefits for consumers, notably in the availability of a wider choice of content across borders” (p. 4). It also asks for a report of the Commission’s stakeholder dialogue on the subject to be made public and presented to the Parliament.

Despite the report’s balanced nature, it has come under attack by rightsholders from the audio-visual industries. Over the course of the past weeks, the Creativity Works! coalition and others have engaged in a massive campaign against the report, advancing a number of false or overblown claims to undermine it, which can be easily debunked:

Misleading claim 1: Ending Geo-blocking of audio-visual content would harm “15 million creative sector jobs” and “jeopardise a €640 billion industry.”

There is no independent study that proves this statement. Contrary to what part of the copyright industry claims, the IMCO report does not challenge territorial licensing. In fact, it reaffirms the need to preserve it. What IMCO suggests – and we support – is that consumers and citizens should not be denied access to Europe’s rich cultural diversity. Territorial protectionism does not benefit anyone but incumbent industries profiteering from the unjustified partition of the Single Market.

Misleading claim 2: The IMCO report threatens territorial licensing and calls for EU-wide licensing for audiovisual services which would be prohibitively expensive for smaller players and limit cultural diversity in Europe.

This statement is factually incorrect as the IMCO report at no point makes any reference to prohibiting or discouraging territorial licensing. On the contrary, the need to safeguard territorial licensing is mentioned repeatedly throughout the report. Further, there are no demands to instate a system of EU-wide licences. Any predictions for the future of the European audio-visual sector based on these claims are severely misguided and paint a deceiving picture of the IMCO report.

While the campaign by Creativity Works paints a dire picture of the audiovisual sector, should the legislator follow the report, there is little substance to these claims. Denying the people access to culture, by contrast, is not in your, or anyone’s, interest. We encourage you to vote with confidence in favour of the report.

Signed,

COMMUNIA Association for the Public Domain

Creative Commons

Federal Union of European Nationalities (FUEN)

Vrijschrift

Wikimedia Deutschland

Xnet, Institute for Democratic Digitalisation

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Over the past few weeks, rightholder organisations united in the Creativity Works! Coalition have started a massive campaign attempting to neuter one of the core recommendations contained in the report: A request to the European Commission to undertake “a comprehensive revision of the Geo-blocking Regulation by 2025 the latest, with a particular view on an inclusion of audiovisual services in the scope of the Regulation.”

How is it possible that such a seemingly procedural request about the review of a piece of legislation is provoking such a strong reaction from rightholders? A campaign that is headlined by the following statement that features prominently on the campaign website:

Geo-blocking is one of the foundations for Europe’s creative and cultural sectors, providing Europeans with the means to create, produce, showcase, publish, distribute and finance diverse, high-quality and affordable content.

The idea that denying people access to culture is a “foundation for Europe’s creative and cultural sectors” is of course a rather disturbing one, but points right at the heart of the problem that the IMCO report is trying to address.¹ As long as AV rightholders do not even see that denying people access to cultural productions — that they want to pay for! — is nothing but blatant discrimination based on geographical location, requiring a regulatory intervention.

After having gotten a free pass when the original geo-blocking resolution was adopted, the upcoming review must now include an effort to bring AV services within the scope of the regulation to end this unjustified and counterproductive practice.

What the AV sector is doing with this its current campaign is trying to prevent EU lawmakers from reviewing the regulation, while no-one outside of the creative industries is paying attention, because they know very well that their arguments against inclusion do not have much to stand on.

A bit of history

So how did we get here? The 2018 Geo-blocking Regulation was adopted to make an end to unjustified geographical restrictions in the sale of goods and services within the EU. It addressed the problem of so-called “geo-blocking” — the baseless discrimination of customers accessing such services from other member states — with the aim to facilitate access to cross-border offers within the EU’s internal market. The directive contains a number of exceptions to this principle, one of these excludes audio-visual services from its scope. This exception has been the result of intense lobbying by the AV sector, which had argued that the underlying business models allowing the sector to thrive rely on territorial copyright licensing and that in order to make such licensing work in the online environment, online services must be able to block access from unlicensed territories.

In 2020, the European Commission published its first evaluation report covering the first 18 months of implementation of the Regulation. Regarding a possible extension of the scope of the Regulation to audio-visual content, the report highlighted potential benefits for consumers, (the availability of a wider choice of content across borders) but also identified a potential impact that such an extension would have on the overall dynamics of the audio-visual sector. The report did not contain specific suggestions or a concrete timeline to revise the Regulation, instead it identified a need to further assess the situation.

As a follow up of the evaluation report, the Commission launched a stakeholders dialogue on cross-border availability and access to audiovisual content across the EU. COMMUNIA has been part of this stakeholder dialogue (as one of only three organisations representing consumers and the public interest) which had the objective to let stakeholders propose concrete, non legislative, measures to improve the online availability and cross-border access to audiovisual works across the EU. Most, if not all, of the organisations that now campaign against the adoption of the IMCO report also participated in this stakeholder dialogue. Throughout the stakeholder dialogue, these organisations mainly sought to undermine the process by questioning the legitimacy of the process and stating that geo-blocking is essential to their financing models. While the stakeholder dialogue resulted in a number of proposals (including one from us), none of the organisations representing rightholders submitted any proposals aimed at improving cross border access. Instead they asked for more funding and tried to deflect the discussion towards the non-issue of “findability” of legal content (something the current campaign attempts as well).

In other words, the very same organisations that successfully sabotaged the stakeholder dialogue aimed at finding non-legislative solutions for geo-blocking of audio visual content are now lobbying against having EU lawmakers take another look at the issue.

But what is really at stake?

If you have to believe the campaign website set up by the Creativity Works! Coalition, then ending Geo-blocking of AV content would harm “15 million creative sector jobs” and “jeopardise a €640 billion industry.” These numbers are, even by the vastly inflated Brussels lobbying standards, simply absurd as they imply that the entire European Creative and Cultural Industries would be affected by a possible inclusion of AV services in the scope of the Geo-blocking Regulation — something that is obviously not true.²

It is true that territorial licensing arrangements play an important part in the financing arrangements for audiovisual productions (something that we have acknowledged in our submission for the stakeholder dialogue). However this does not mean that in order to preserve the ability to licence it is necessary to geo-block access to AV works from unlicensed territories within the EU.

Most of the claims about economic and cultural damage made by the CW! campaign find their origin in the idea that the IMCO report would require the AV sector to abandon territorial licensing, which is something the IMCO report does not propose. On the contrary, the need to safeguard territorial licensing is mentioned repeatedly throughout the report.

The report also does not call for a shift towards an EU-wide licensing for audiovisual services. However the CW! Campaign repeatedly points to the costs of such EU-wide licenses as the basis for its predictions of further consolidation in the industry that would lead to less cultural diversity.

Another aspect of the report that is under attack by the CW! Coalition is the fact that the report makes a link between increasing demands for cross-border access to AV by consumers and the increased use of VPNs, which allows them to circumvent geo-blocking. Here. the industry would very much prefer the report not to describe existing consumer behaviour that does not align with the picture of reality that they would like to see.³

As a result, one of the core insights of the IMCO report, that as a consequence, the adaptation of existing business models to the changing environment is needed both for consumers and businesses is once again at the risk of being ignored. Rightholders are seeking to get this conclusion removed from the report because the stakeholders on the supply side of the AV sector have again decided that rather than adapting to and working with consumer expectations, they can rely on their considerable lobby power to preserve the status quo that they have gotten comfortable with.

The European Parliament should resist caving in to this ongoing campaign against the IMCO report, and support the report’s call for an evidence-based revision of the Geo-Blocking Regulation in the next mandate. Contrary to what the CW! Campaign wants us to believe, this would neither mean the end of territorial licensing, nor the demise of the European Cultural and Creative Industries and it would also certainly not lead to less cultural diversity. If done well, ending geo-blocking would provide all Europeans with more legal access to a more diverse offering of AV content and a thriving cultural sector that can finally stop claiming that denying people access to culture is in anyone’s interest.

Endnotes

1. It seems that the creators if the campaign are at least marginally aware of this given that a position paper published by the campaign attempts — somewhat cringe worthy — to reframe “geo-blocking” as “geo-enabling”.
2. The numbers used by the campaign come from a 2021 EY study that defines the Cultural and Creative Industries as the combination of the following sectors: Advertising, Architecture, Audiovisual, Books, Music, Newspapers and magazines, Performing arts, Radio, Videogames and Visual arts. A substantial proportion of these has nothing to do with audiovisual content and geo-blocking is relevant only in a very small sub section of these sectors.
3. This is reminiscent of multiple exchanges during the stakeholder dialogue during which mentions of piracy as a rational response to being denied lawful access to a desired cultural good, were met with horrified responses from rightholders demanding that mentions of illegal acts should not be permissible in the context of the stakeholder dialogue.

The post Denying people access to culture is in no-one’s interest – let’s pave the way for a revision of the Geo-blocking Regulation! appeared first on COMMUNIA Association.

Over these three meetings it became increasingly clear that the majority of the invited stakeholders were not interested in working with the Commission on improving cross border access to audiovisual content in the EU. With the exception of the organisations representing users (apart from COMMUNIA these included BEUC and the Federal Union of European Nationalities) and a few dissident voices within the AV sector the representatives of AV rightholders, distributors, producers and creators insisted that the current system of territorial copyright licensing is working well and that it is essential for the financial sustainability of the European audio-visual sector as a whole.

According to them, the fact that this system also leads to widespread geo-blocking and deprives many Europeans of access to cultural works that are often (at least partially) funded with public money does not justify an intervention in the “well-balanced” business models that underpin AV production in Europe. In addition, they argue that it should be up to the market to increase cross-border access to AV works in the EU (while at the same time lobbying for increased EU support for the production and distribution of AV works).

Request for proposals

At the beginning of this year — after having been shown the cold shoulder by the AV sector — the Commission put the stakeholder dialogue on hold to reconsider its approach. Then, in June of this year, the Commission sent out a letter to all participants in the stakeholder dialogue inviting them to:

… submit proposals for concrete actions or roadmap presenting the steps you intend to take in order to contribute to improving the online availability and cross-border access to audiovisual works across the EU. We would welcome your proposals for commitments by Friday 23rd September 2022.

Adding that after assessing the proposals received, the Commission would

… convene a final meeting of the dialogue in the autumn in order to formally adopt them as participants’ commitments.

Last week, in response to this invitation, we submitted a proposal for a fallback TVOD service for publicly funded AV works. Here, we develop the concept for an independent not-for-profit platform that would ensure the availability of AV productions – that have received public funding – in all member states of the European Union. 

The platform that we are proposing would be a Transactional Video on Demand platform (TVOD – industry parlance for a pay per view platform) and as such would be something that can generate extra revenue for the producers of films made available via the platform. It is not a proposal to make these works available for free.

Our proposal focuses on AV productions that have received public funding — which is the vast majority of AV productions made in Europe — because here the moral and cultural imperatives to make them available across all EU member states is the strongest. Implementing this proposal, which in itself accepts the current practice of exclusive territorial licensing, and — ironically — relies on geo-blocking as a mechanism for this, would be an important step towards a future without structural geo-blocking of AV works that are available in the EU.

We are looking forward to discussing our proposal with other stakeholders in the upcoming meeting of the stakeholder dialogue.

The post Our proposal for ending geo-blocking of audiovisual works in the EU appeared first on COMMUNIA Association.

We have accepted this invitation in order to ensure that the perspective of users/consumers seeking access to audiovisual works will be represented in the discussions that should lead to the end of unjustified geo-blocking of audiovisual content in the EU. We have outlined our initial position in the opening statement delivered by Paul Keller during today’s high level round table:

Thank you Commissioner Breton for the invitation and the possibility to present our views in this context. We are a pan European association of organisations advocating for the defence of the public domain and strong user rights protections in the field of copyright.

The question of access to AV content is a highly relevant issue that directly affects the rights of users – in this case probably best described as consumers – in this case the right of access to culture. This right is violated every day when someone in the EU is trying to access AV productions online and is rejected because she is doing so from a territory where the production is artificially prevented from being available for consumption.

This such a situation does not only curtail the right of access to culture, it also damages the relationship between consumers who perceive this discrimination. Consumers perceive the relationship between producers of creative works and consumers as reciprocal: consumers are obliged to pay for the outputs of their creative work and the authors are obliged to enable consumers to access their works. When an industry is structurally failing to meet this reciprocal responsibility by discriminating against users on the basis of their geographical location it loses trust. This is especially problematic (for the whole system) in a field where other (often less legal) ways of acquiring access to the works in question are readily available. Finally this also hurts the creators of AV works with specific / smaller audiences, such as documentary movies. These creators often see the lack of EU-wide accessibility of their works (imposed on them by the funding models dominant in the sector) as limiting their ability to tell their stories (I say that as someone who has two documentary filmmakers in my immediate family and many friends who work in this industry).

So what should be done?

We are not the ones who are best positioned to provide concrete solutions here, although the general outline of a solution is relatively clear.

Initially this means that passive sales across member state borders must be enabled. Consumers must have the right to purchase access to content that is legally available to users in other member states in cases where the same content is not available in their location (or cannot be expected to become available shortly).

At the very minimum – [and as Rosa Thun rightly stressed in her intervention] – this should be the case for all productions that have received funding from public sources at the EU or Member State level. As in many other situations public money must result in public availability. This will also contribute to ambitions to raise the profile of publicly funded content on the internet, which should be an important element of creating a digital public space based on European values (support for a diverse cultural sector being one of them).

Finally (and this seems to be overlooked a lot) There must be better information. Right now it is often not possible for a consumer who is being refused service to easily discern where the work might be available instead (or when it will become available).

To conclude

From our perspective it is clear that this issue must be resolved. In this day and age it is getting harder and harder to explain to a generation raised on Netflix and YouTube why European AV productions on other platforms are not available wherever they are. We cannot expect from consumers that want to access these productions that they immerse themselves into the financing structures of the European AV sector or the nuances of copyright law to understand why this is the case. What this industry needs to figure out is how to ensure that consumer expectations (no matter how insignificant they may be when understood in licensable markets) are met. If this is not the case then we provide an unfair advantage to the big integrated platforms that have financial muscle to circumvent these issues. That will be a big loss for the diversity of the EU Audiovisual sector.

A lot has changed in the past one and a half years. Some of the things that were considered immutable elements of the AV sector have shifted under massive external pressure. Just two years ago no-one here would have predicted that it would be possible for me to watch movie releases via VOD during their initial theatrical release but the outside pressure created by the pandemic has enabled this. I do this via a service called picl.nl in the Netherlands that allows cinemas to make the films they are showing available via paid VOD and where you pay though the local cinema of your choice. This is how I watched most of the movies that I have seen during the pandemic and from a consumers’ perspective this is how things should be. It shows that improving the situation for consumers is possible without damaging other parts of the AV sector value chain.

So things can move under pressure and we hope that this stakeholder dialogue will create the conditions for finding solutions to the problem of unjustified geo-blocking. Such solutions must strengthen the European AV sector by making use of the opportunities that the digital infrastructure offers for better and more fair access to AV works from all member states.

Thank you very much

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