A woman shouting into a man's ear-trumpet

Stakeholder dialogue to improve cross border access to audiovisual content

Earlier this week, COMMUNIA was invited to participate in a high-level roundtable on access to and availability of audiovisual content across the EU hosted by Commissioner Thierry Breton. This round table which took place today marks the beginning of a stakeholder dialogue with the audiovisual industry to agree on concrete steps to improve the access to and availability of audiovisual content across borders in the EU. This stakeholder dialogue will take place in the coming months with meetings scheduled for 8 and 22 November and 10 December.

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

King Charles II of England addresses members of the Estates General, 1660, Theodor Matham, after Jacob Toorenvliet, 1660
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