FERA briefing paper

EU Digital Single Market Summer 2016 update

It’s been six month since the European Commission published its plans to achieve an EU Digital Single Market. The timewise ambitious roadmap outlined on December 9 2015 in the Communication « Towards a modern, more European copyright framework », kicked off by a Regulation on Portability on the same day, seems like it will be following its course as planned.

The European audiovisual sector will therefore be concerned by no less than five legislative texts by the end of the year – some of them going through a « fast-track » adoption process, but also by a competition case questionning the territorial aspect of licensing practices in the UK, a package of non-legislative measures designed to improve the circulation of European audiovisual works, and the mid-term review of Creative Europe and its MEDIA programme.

Last May 25, the European Commission published in parallel two sets of proposals, which impact on the audiovisual sector is summarized in this FERA Briefing :

FERA Briefing Paper available here

To be noted : the result of June 23 referendum in the UK in favour of « Brexit » will no doubt have an impact on these different issues – if not necessarily on the timing of the process, at the very least on the implementation scope of these proposals, as well as on the political weight of the UK in the relating discussions. 

WHAT'S NEXT ?

Following its Digital Single Market roadmap, the European Commission will publish proposals on :

  • EU copyright framework in a Directive proposal expected by September 21
  • improving the accessibility of content online through non-legislative measures to be outlined by the end of 2016
  • legal framework for the enforcement of intellectual property rights by autumn 2016

In parallel, the Creative Europe programme (including MEDIA) will go through its mid-term review and an open consultation will be opened in November 2016. The European Parliament already ordered an implementation study of the programme and Culture committee Chair Silvia Costa is currently drawing up an own-initiative report.

The European Parliament Culture and Industry committees have also joined forces to draft a resolution calling for a coherent policy to support the development of Cultural and Creative industries, pointing out the need with solutions to the challenges of training, funding, intellectual property and an improvement of the remuneration of authors and creators (see the draft report by Christian Ehler and Luigi Morgano MEPs here). 
 

FERA Update 

July 5 2016

UK Referendum Outcome

Immediately following June 23 vote results in favour of UK’s withdrawal from the European Union, Directors UK assured FERA of its continuing involvement :

« Today’s decision by the British people to leave the European Union is already triggering some profound changes to the political, economic and constitutional framework of the UK. These changes will undoubtedly impact on the members of Directors UK and on our organisation. That impact is, as yet, uncertain.

Despite that, Directors UK would like to re-assure you of our continuing support for action together in Europe in support of directors’ rights. We are also committed to working with you - our colleagues in Europe - as the repercussions of the UK decision and its impact on the EU and its institutions unfolds. 

The British people may have voted to leave the EU, but Directors UK will remain with you. »

FERA’s Executive Committee thanked DUK for the assurance of its continuing commitment to FERA's work in support of directors' rights : « If being a director means anything, it is surely about building bridges between peoples across the world, and your message of support means a great deal in that regard.

It is clear that a period of uncertainty lies ahead, but rest assured that our whole network of film and TV directors stand together in solidarity with our UK colleagues, committed to maintaining a close dialogue and friendship with you whatever the scope of the change afoot both in the UK and in the EU. »

In the short term, it is to be expected that the change in the UK’s political influence in the Council will play a role in the Digital Single Market discussions, and that plans to manage Brexit will most certainly have an impact on the EU institutions’ workplan. 

In the mid-term, and depending on the actual exit procedure, other issues will arise such as its impact on the UK audiovisual industry, UK productions retaining the status of European productions, and their status within the MEDIA programme.

FERA expects to discuss the implications of this for our members to be a focus of discussion at the General Assembly in Amsterdam this October.

To go further, see the following articles in The Guardian, Variety and Screen.


EU Culture Commissioner makes a stand for authors' remuneration in the digital single market

EU Commissioner Tibor Navracsics, in charge of culture, education, youth and sport, previously received a delegation from the Authors’ Group member associations ECSA, EFJ, EWC, FERA and FSE on May 2 2016.

On June 2, in his speech Time to put creators at the heart of the Digital Single Market, he committed to support a meaningful approach to authors' remuneration in the upcoming Copyright legislative proposal :

« I know that defining fair remuneration is everything but easy. And I know that any solution will require a lot of goodwill, time and effort from all those involved. But we need to make a start. And we have identified the main problems. They are linked to transparency, proportionality, the scope of the transferred rights and the use of metadata. 

First, authors should be able to estimate their likely earnings in different Member States. Second, the rights for uses of the works not known at the time a contract is agreed should not be transferred at the start, but negotiated when they arise. Third, rights for works that have not been exploited shall go back to the authors. Fourth, when a work becomes much more successful than estimated when the contract was signed, the involved parties should negotiate additional remuneration for the creator. Finally, reliable metadata is needed to ensure that works and related rights are accurately identified. »
 

Charles Sturridge joins FERA Creative Council

[2016/tcharlessturridge.png]Charles Sturridge’s  work includes the multi award winning adaptation of Evelyn Waugh’s ‘Brideshead Revisited’ with Jeremy Irons and Laurence Olivier,  ‘Gulliver’s Travels’  with Ted Danson, Peter  O’Toole and Omar Sharif.  In 2000 he wrote and directed ‘Longitude’ (C4) with Michael Gambon and Jeremy Irons and in 2002 ‘Shackleton’ with Ken Branagh   both winning Best Drama Serial BAFTA’s.  In 2009 he directed ’The No 1 Ladies Detective Agency’ and the ‘The Road To Coronations Street’ which won the RTS and BAFTA awards for Best Single Drama.  In 2012 he wrote and directed Daphne Du Maurier’s ‘The Scapegoat with Matthew Rhys  and in 2013/14 he directed episodes of ‘Dates’ and “Da Vinci’s Demons’.  His most recent production was ‘Churchill’s Secret’ starring Michael Gambon, Lindsay Duncan and Romola Garai.  His films include: Runners, A Handful of Dust, Where Angels Fear to Tread, Aria, Lassie and the BAFTA winning Fairytale, A True Story.

Photo Credit: ITV
 

ExCo Member Peter Carpentier intervention on
copyright at EU consumers' event on June 20

FERA Executive Committee member Peter Carpentier spoke at the European Consumer Organisation (BEUC) Digiforum on the panel « Culture without borders – creativity, access & the future of copyright » alongside Séverine Dusollier (Law Faculty, SciencesPo Paris), Klaus Müller (Executive Director of The Federation of German Consumer Organisations), Julia Reda (Member of European Parliament) and Farida Shaheed (former UN Special Rapporteur in the field of cultural rights).

Peter Carpentier pointed out key issues for creators with regards to the copyright reform during this event mainly focused on “Consumers shaping the digital economy”. He stirred the discussion towards the importance of creators getting properly rewarded for their works, "educating consumers on what is copyright", and the need for fairer practices of online platforms, which most of the panellists agreed upon.

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IN SHORT

The Sofia 2016 Directors in Dialogue edition with Michaël R. Roskam and Pavel G. Vesnakov is now available on FERA's new You Tube channel here

New insight on the European audiovisual sector labour market : Creative Skills Europe, the « European Sector Skills Council for the Audiovisual and Live Performance Sectors », is a platform where professional organisations from across Europe share labour market intelligence and identify skills needs trends. Its 2016 report provides a sobering overview of the growing job insecurity for creators and performers in this dynamic part of the EU Creative and Cultural Industries.


UP NEXT

- FERA briefing on the latest developments of the Digital Single Market strategy shortly in your emailbox!

- FERA October General Assembly in Amsterdam: registrations are open !

On June 16, FERA met with GA 2016 hosts in Amsterdam. The Dutch Directors' Guild in Amsterdam kindly showed us the "Volkshotel" where FERA delegates will be staying and the Eye Film Institute in which the GA will kick off on Friday October 7.
 

Authors' Group Press Release

VP Ansip confirms Commission’s focus on authors’ remuneration in copyright review at 2016 Creators Conference

The Creators Conference 2016 concluded yesterday after a productive day of panels, interviews and speeches by prominent artists, experts and policy makers discussing the current issues faced by the European creators’ community and the cultural and creative industries.
 
The Authors’ Group welcomed European Commission Vice-President Andrus Ansip in charge of the Digital Single Market for a keynote speech in which the Commissioner confirmed the “need to look closer at the conditions for remunerating creators and getting a fair share of the value generated”. Vice-President Ansip also stressed the “follow the money approach” and “widening access to content” for consumers as key elements to fight piracy, as well as the challenges related to online platforms. As for the latter, Vice-President Ansip stressed the “plan to ensure a level playing field” and to “adapt existing rules to similar and comparable services”.
 
The Authors' Group took the opportunity to present Commissioner Ansip with its newly adopted declaration «Towards a modern, more European copyright framework and the necessity of fair contracts for creators» (available here) in which the unified different cultural sectors’ creators call the European Commission to take action for fair remuneration, fair contracts and transparency in its upcoming copyright legislative proposal.
 
The different sessions of the day prompted lively discussions about artistic freedom, digital opportunities, and fairness in authors’ contracts as well as sustainability in the exploitation of authors’ works online, where European creators shared their views and experience of the digital shift.
 
Experts and policy makers shed light on possible developments of the cultural and creative industries, and recognized that authors have found their rightful place in the current debate on the copyright legislative framework review.
 
This year’s edition of the Creators Conference was hosted by the European Composer & Songwriter Alliance (ECSA), in alliance with the European Federation of Journalists (EFJ), the European Writers’ Council (EWC), the Federation of European Film Directors (FERA), the Federation of Screenwriters in Europe (FSE), and Freemuse.
 
Held under the High Patronage of the European Parliament and supported by the Creative Europe Programme, the high-level event brought together over 200 participants to reinforce the dialogue between creators, consumers and EU policy makers about European authors’ essential needs with regards to their rights and the digital future.

FERA Update May 11 2016
Latest in Brussels

Authors' Group meeting with EU Commissioner Navrascisc addressing the need for authors' fair remuneration

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EU Commissioner Tibor Navracsics, in charge of culture, education, youth and sport, received a delegation from the Authors’ Group member associations ECSA, EFJ, EWC, FERA and FSE on 2 May 2016. The high-level official meeting included an exchange of views on the state of the art of the modernization of the EU copyright acquis. Key elements of the discussion was the new narrative for transparency in remuneration flows for authors and the importance to set legal mechanisms ensuring fair contracts for creators. Representatives of the journalists, composers, authors, film-directors and screenwriters all pointed out that the “value gap” first happens between authors and publishers and producers and that this gap is due to unfair contracts forcing authors to transfer all their rights for an indefinite period and for unknown use.

Commissioner Navracsics confirmed that the issue of remuneration for authors is crucial and that the fight for a better contractual situation of creators must be set as priority. Both, the Commissioner and the representatives of the Authors’ Group, examined in great detail possibilities of what the Commission needs to do in legal terms regarding the upcoming copyright reform planned for the second half of 2016.

Source: ECSA - Photo credit: Georges Boulougouris
 

Did you know?

In 2015, EU box office hit record high: cumulative GBO in the 28 EU Member States rocketed to around EUR 7.3 billion, 16% higher than the previous year and represents – not adjusted for inflation - the highest level on record! These figures are based on an increase in admissions as well as rising ticket prices: admissions increased by 7.4% to 976 million tickets sold.

A word of caution to this tale: admissions' growth was driven primarily by the strong performances of a number of US studio titles (Star Wars, Minions, etc) which accounted for 18 out of the top 20 performing films...

More about this on the European Audiovisual Observatory website
 

IN SHORT

FERA's people in Cannes 

Marco Bellocchio, FERA Creative Council member makes it to the Directors' Fortnight selection with his new feature Fai Bei Sogni (Sweet Dreams). The Directors' Fortnight, well-know parallel selection of the Cannes Film Festival, is organized by FERA member SRF.  

Gender and film in the UK: "Cut Out of the Picture"

On May 4, FERA member Directors UK published a study looking into the low representation of women directors working in film in the UK, available here. You can hear more about it in Cannes on 17th during the EFMD (see below) featuring DUK's Chair Beryl Richards

Fair remuneration for audiovisual authors, a worldwide issue

CISAC (the International Confederation of Societies of Authors and Composers), through Writers & Directors Worldwide, one of its International Creators' Council, has recently a campaign on fair remuneration for audiovisual authors. See here the campaign's website. 
 

FERA Update April 2016
Latest in Brussels

Copyright Proposal delayed to Autumn 2016

After naming the modernisation of copyright law one of its priorities for the creation of a Digital Single Market in May 2015, the European Commission released a first measure in December 2015 – its «portability regulation» – that would allow consumers to keep on using their digital subscription to services like Netflix when they travel within Europe. A proposal on copyright was originally expected in spring or summer 2016.

The Vice-President in charge of the Digital Single Market Andrus Ansip has announced that the EU copyright reform will be delayed until September or October 2016 because the Commission still needs further inputs. Günther Oettinger, the EU Digital Commissioner, added earlier this month that it should slide through political negotiations quickly — within a year and a half — without being “blocked” for years in “tedious” talks with the European Parliament and Member States.

More Fairness for EU Creators announced at the European Culture Forum

Culture Commissioner Tibor Navracsics opened the ECF on April 19 by underlining the importance of European artists’ freedom of expression and the essential link between culture and the European identity. He announced that the European Commission will present a proposal to make 2018 the European Year of Cultural Heritage, and mentioned that the Commission’s work to achieve a Digital Single Market should «free up European creativity, at all levels. This means giving citizens easier access to cultural works, but it also means ensuring that the industry remains competitive. And it means offering a better deal for creators – this is essential in my view. Europe should be the best place in the world for creators.» You can read the full speech here.

Digital Commissioner Günther Oettinger’s closing speech the next day highlighted the importance of encouraging an promotiong talent and creativity throughout Europe: «it’s through new talents and creative, innovative ideas that we can relaunch the European project and promote economic growth».

Among the different areas that will be touched upon by the expected copyright proposals and Digital Single Market measures, he stressed the importance of territorial licensing for the audiovisual sector, and the need for creators to be better rewarded: «authors and performers fair remuneration is key to have a diverse and high quality content for the audience; [but they are] too often in a weak position when it comes to contract negotiation»: the Commission is now considering how to help European creators how to conclude fair contracts and get fair share of the revenues of the exploitation of their works, particularly online. He announces proposals in that area to come later this year. You can watch the full speech here.

EU antitrust case and territoriality: Paramount breaks ranks with the other US Studios involved

The top EU antitrust authority led by Danish competition commissioner Margrethe Vestager launched an investigation on the licensing practices of six US studios and Sky UK in July 2015 for having «bilaterally agreed to put in place contractual restrictions that prevent Sky U.K. from allowing EU consumers located elsewhere to access, via satellite or online, pay TV services available in the U.K. and Ireland», which the Commissioner argued was in breach with EU competition rules. This point of view challenges territorial exclusivity, cornerstone of film and TV commercial licensing and of the overall investment structure of the audiovisual sector in Europe as it exists today: that’s why European operators such as the European Film Agency Directors (EFADs) got involved in the process as interested parties.

Last Friday, Brussels’ audiovisual lobbying world was abuzz with news that Paramount, one of the Studios involved, had broken ranks and offered commitments to address the European Commission concerns. The other interested parties have now a month to react on these proposals. 

What will become of the united front of audiovisual stakeholders defending territorial licensing of rights? To be continued.

Creative Europe review: upcoming survey to FERA members!

Creative Europe, the European Union programme for the cultural and creative sectors set to last until 2020, will go through a mid-term review in 2016 - 2017. It is therefore time to assess the results of the MEDIA sub-programme, its strand dedicated to the audiovisual sector. A public consultation will be launched by the Commission in November 2016, and a final evaluation report is expected for end 2017. In the European Parliament, MEP Silvia Costa, Chair of the Culture Committee, is preparing a report on the subject. 

FERA will actively take part in this process, and your contributions are welcome: you will receive shortly a survey designed to help us build FERA’s position.
 

IN SHORT

FERA welcomes new member!

French "La SCAM ", the Civil Society of Multimedia Authors, joins FERA as a new associate member. 

Taking a step back: Digital pioneer Jaron Lanier on the dangers of “free” online culture for WIPO magazine. Click here to access the article. 

Elsewhere in the world... US directors divided on «Screening Room» initiative during CinemaCon. Click here to read the full story.


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FERA briefing paper


Digital Single Market

Dec 9 2015 publications

Dear FERA members, 

You will find below a short summary of the latest development on the EU Digital Single Market Strategy, accompanied with a more detailed memo that you can download below. Feel free to share with your members! 

On 9th December 2015, the European Commission published a Communication on copyright outlining the future actions for the year ahead, and a legislative proposal for a Regulation on portability of content services. 

From Jean-Claude Juncker’s programme as candidate to the Presidency of the European Commission late 2014 to this Communication published on December 9, the creation of a « Digital Single Market », including a reform of the EU copyright legislative framework, has been highlighted as one of the 2014-2019 Commission’s top priority. 

PROPOSAL OF A REGULATION

enabling the cross-border portability of digital content

The new rules on the portability of content will need to be discussed with and endorsed by the European Parliament and the Council of the European Union. In contract with a Directive, a Regulation is directly applicable: no need for Member States to implement the rules into national law. 

What does « cross-border portability of digital content » mean?

The Commission wants Europeans who buy or subscribe to films, sports broadcasts, music, e-books and games at home to be able to access them when they travel in other EU countries. As the Commission acknowledges, this measure is mostly relevant for the audiovisual sector: there are less significant problems or restrictions concerning the portability of subscriptions to online music services or e-books.

The Commission considers this to be different from « cross-border access », which means that users, from their home country, access online services available in another Member State all the time. This concept is nonetheless deeply challenging for the audiovisual sector in Europe, for which financing, distribution and promotion of the works is based on licensing territory per territory: the industry is therefore extremely vigilant that cross-border portability doesn’t become cross-border access through the back door.

FERA and all the European audiovisual industry representatives in Brussels will strive to improve those aspects of the Regulation in the next stages of approval by the European Parliament and the Council. 

EUROPEAN COMMISSION'S 
COMMUNICATION

« Towards a modern, more European copyright framework »

The action plan described in this Communication is wide, as the Commission wants to be thorough in its approach of a copyright reform – and notably includes an objective regarding better remuneration of authors. To be noted: the next package of measures due to follow in spring 2016 will address only part of this general agenda.

Ensuring wider access to content across the EU

Further to its proposal of a Regulation described above, the Commission outlines several other upcoming proposals regarding its « utlimate objective of full cross-border access », while acknowledging that it needs to be balanced with the need to ensure viable financing models, especially in the audiovisual sector. The crucial role of Member States as responsible for cultural policies in the EU is also acknowledged. Legislative proposals for adoption are expected in Spring 2016, and other measures will be designed, notably through the Creative Europe MEDIA programme. 

Adapting exceptions to digital and cross-border environments

Exceptions allow for copyrighted works to be used, in defined circumstances, without prior authorisation from the copyright owner. The Commission aims at harmonizing exceptions relevant for access to knowledge, education and research throughout the UE. Legislative proposals for adoption are expected in Spring 2016. 

FERA and other representatives of authors from all the creative and cultural sectors will remain vigilant that widening the exceptions to copyright will not weaken the core principle of copyright itself (the author’s ownership of the work). The potential loss of remuneration coming from some rights must be assessed properly, and if relevant, compensation mechanism put in place. 

Unexpectedly, the Commission included a section on Private Copying levies in its action plan and points out the discrepancies between private copying levies systems throughout the EU. Without any specific approach or timetable, the Commission will consider how levies could be more efficiently distributed to rights holders. 

The principle of compensation payment to the authors and rightholders in the private copying leveies field is once more challenged.

A fairer marketplace

The Commission is reflecting on the different factors around the sharing of the value created by new forms of online distribution of copyright-protected works to the various market players, particularly relevant in the music sector (assessment of possible action on the definition of the rights of "communication to the public" and of "making available" by Spring 2016). 

The Commission will also assess whether solutions at EU level are required to increase legal certainty, transparency and balance in the system that governs the remuneration of authors and performers. 

The Commission acknowledges that fair remuneration of authors can be affected by differences in bargaining power when licensing/transferring their rights. Mechanisms such as regulation of certain contractual practices, unwaivable remuneration rights, collective bargaining and collective management of rights will be considered in this reflection.

This statement opens the door for action at EU level to improve the bargaining power of individual creators facing other stakeholders in the value chain.

Fighting piracy

"follow-the-money" mechanisms by Spring 2016

The aim is to disrupt the money trail for commercial-scale intellectual property infringing activities and to make them economically unviable. This will first be based on a self-regulatory approach. 

evaluation of the general legal framework of enforcement of intellectual property rights by Autumn 2016

FERA’S REACTION

FERA, together with FSE (Federation of European Screenwriters) and SAA (Society of Audiovisual Authors, representing EU audiovisual CMOs), welcomed the positive approach to action on remuneration of authors, something that is key to a sustainable online market for audiovisual works – but raised concerns about other aspects of the Communication. The 3 organisations also called for tight drafting of the Regulation on portability to ensure that it doesn’t become cross-border access through the back door. See the Press release text here

We also reacted with the « Authors’ Group » composed of the European Composer and Songwriter Alliance (ECSA), the European Federation of Journalists (EFJ), the European Writers’ Council (EWC), FERA and the Federation of Screenwriters of Europe (FSE) through a joint statement available on our website

Full FERA memo
on Dec 9 2015 publications
available
here