Independent film financing has never been a walk in the park, and a lukewarm American Film Market this month coupled with an age of political, digital and economic uncertainty mean the preselling game has become more challenging than ever.
But if there’s one thing that could kill off the entire indie business as we know it: a series of regulations being mulled over in Europe right now with regard to the European Commission’s strategy for a Digital Single Market. Indeed, it’s a complex issue, but at its beating heart lies a dangerous prospect for the future of the audio-visual sector, which threatens to dismantle territory-by-territory licensing in Europe.
What Is The Digital Single Market?
“Within Brussels, they think this is a wonderfully populist and popular announcement to make,” says David Garrett, founder and CEO of international sales company Mister Smith. “But this is Trumpism or Brexitism at its worst – selling the idea of freely available content across Europe without anyone understanding the repercussions of making that available is putting everything in the hands of large corporations that can control content across the board. It’s frankly insane.”
In November 2014, the European Commission announced plans to introduce a Digital Single Market for the continent which, on the surface, was painted as a utopian ideal that fell in line with the original purpose of the European Union: to encourage trade between member states; remove barriers; and encourage free movement of goods, services and people. EC President Jean-Claude Juncker said it was time to remove digital barriers, reform copyright and prevent “unjustified” geo-blocking. Juncker, who has made DSM one of his main objectives for Europe’s 2020 Strategy, said last year: “I want to see pan-continental telecoms networks, digital services that cross borders and a wave of innovative European start-ups. I want to see every consumer getting the best deals and every business accessing the widest market – wherever they are in Europe.”
In May 2015, the EC published a 16-point policy plan under three pillars, which it had said it hoped to achieve by the end of 2016. Fortunately, it looks set to miss the mark on that timetable but things are still moving, and fast.
Specifically, proposals within the strategy that look to directly affect the audio-visual sector the most are:
- Portability of legally acquired content (meaning a person who subscribes to Netflix in say, the UK, can access the UK version when he/she travels to France, etc)
- Copyright in online transmissions, which looks to abolish geo-blocking with non-linear, catch-up TV, meaning if a company is licencing to a broadcaster and they have catch-up operations (like BBC iPlayer, ITV Hub, etc), then the broadcasters are no longer subject to geo-blocking the catch up.
Parallel to DSM, in January 2014 the EC opened an investigation into restrictions affecting cross-border provision of pay-TV services, examining whether agreements between the six major Hollywood studios and pay-TV operators were anti-competitive and hindered the completion of the single market. The Commission argued that the companies’ licensing deals with Sky prevented unsolicited “passive sales” of Sky’s UK pay-TV services to customers beyond the broadcaster’s licensed territory. So, in a sense, if a person in Germany or France wants to access Sky content, Sky would be obliged to refuse them access to Hollywood titles as far as licensing materials.
But in July this year, without waiting for the outcome of the inquiry, Paramount was the first to break rank and settled the EU allegations by signing an agreement that it would not enforce Sky from making passive sales. It dodged antitrust fines and committed to five years of concessions, meaning Paramount will not introduce broadcaster obligations that prevent or limit a pay-TV broadcaster from responding to unsolicited requests from consumers within the licensed territory.
Other studios have not entered into similar agreements, but this move from Paramount is important because it sets a precedent. Many are concerned that if the Commission has been successful in that case, it may feel emboldened to go further and say that any form of territorial exclusivity is contradictory to the single market.
What Are The Dangers?
Firstly, it’s important to note that regulations only have to be vetted by the Council and various members of state and European Parliament but, unlike a directive, which has to also go through national Parliaments for adoption, it goes straight to the bloodstream of the European legal system.
That said, most industry veterans agree that there is an argument to be had for portability of legally acquired content insomuch as if a consumer purchases Netflix, Amazon Prime or pays for Sky Sport, he or she should be able to watch that service (from its country of origin) when traveling around Europe. The EC’s Vice President Andrus Ansip, an Estonian who is spearheading DSM, has even expressed hatred of geo-blocking of programs because it prevents him from watching Estonian football in Brussels. The proposed portability regulation is currently being vetted and is expected to be adopted in spring 2017.
But it’s the proposal to abolish geo-blocking broadcasters’ catch-up operations that looks set to become the most fatal to the business.
“It’s like Chinese water torture,” says Jean Prewitt, President and CEO of Independent Film & Television Alliance. “When you look across the full spectrum of proposals, it’s terrifying. Each proposal has a lot of detail and it looks to me as if the Commission is attempting to do two different things, which operate together: Firstly, limit the ability of copyright holders to license content, whether it’s film or television, on a territorial exclusive basis, and secondly, which we are finding increasingly difficult to justify, is the persistent taking pieces of our rights, such as the ancillary online services of broadcast and catch-up rights.”
Today, Ministers of Culture from all 28 European Union Member States meet in Brussels to discuss the proposed regulation which seeks to remove territoriality of online broadcast services, such as simulcast and catch-up.
What this means, for example, is that if you are financing a British film and sold the free-TV rights to the BBC in the UK and their catch-up rights meant it would be available throughout all of Europe, selling the title to foreign buyers would become increasingly challenging because there would be no value in those rights. With indies having to dig deep to buy rights and release projects theatrically as is, only to take a small share on theatrical, and with DVD value dropping dramatically, TV often backs up the purchase. With this piece of the pie out of the equation, the international sales model would simply collapse.
“Film distributors invest millions of pounds, dollars and Euros in effectively adapting a film for their territory,” says Garrett. “They translate it, market it, and create vast amounts of advertising for titles, and they deserve to reap the rewards of promoting a title in their territory if they can. If these regulations come into place, we can’t finance these independent titles and it would completely destroy our business and the business of companies such as ours. We bring a lot of revenue into the country by licensing American movies, and this would create, in effect, huge unemployment and huge loss of revenues.”
Prewitt adds: “It’s a redefinition of what we as rights holders can control and it’s taking a right that, as filmmakers, we need to be able to control to be able to understand how to best exploit existing programming and in order to get the most remuneration. We really find a lack of willingness from the Commission to understand the finance model and there is a lack of letting us, as an industry, find out how to adapt our historic ways of doing business.”
Bertrand Moullier, owner of Narval Media, a London-based firm that advises on competition strategies, says a regulation abolishing license rights for non-linear catch-up would undo a complex architecture in pre-licensing sales, creating havoc where the financing economy of film is concerned.
“How the hell do indies work out their windows and overheads if anyone’s iPlayer is open to the rest of Europe all the time?” he says. “You can’t control your exclusivity so the value of the rights goes down. The big studios may not care as much, because they can do day-and-date and, in their own way, the risk is minimal. But it does mean that the indies can’t make this work.”
Also, worryingly, the EC has yet to offer estimates of the economic impact this regulation could have. Alice Enders, an analyst at Enders Analysis, says, “there’s no doubt that there is an absence of any economic assessment impact and the fact that it sort of disturbs the core logic of financing and pre-financing model.”
Who Stands To Be Affected The Most?
Undoubtedly, it’s the indies who will suffer, but Hollywood will also feel the burn of the proposals. English-language programs and films that premiere in the UK will be affected because it will mean that the rising number of people who can access English-language content comfortably, are not going to wait.
“If someone knows the next episode of Downton Abbey is available on catch-up, why wouldn’t they watch it?” asks Moullier. “It would clip away the UK presales system unless they find a way for usable holdbacks.”
Additionally, the non-English-language marketplace would be hugely disadvantaged in the short run. “English is the one language you can imagine being exploited throughout Europe, but I would be concerned as to exactly how local broadcasters or distributors who are suddenly trying to meet demands for cross-border availability will be able to gear up their system,” says Prewitt. “Will broadcasters help them?”
Ultimately, however, it will mean an increase in market power of huge, multinational companies such as Google, Apple, Netflix, Amazon, Hollywood majors and the big broadcasters. “I always thought the promise of new technologies for independents was increased stability to find your own marketplace sweet spot and to be able to use the new technologies to find that market in a cost-effective way,” says Prewitt. “All these moves ultimately seem to lead to is increased market power to people doing mass distribution.”
The consumer also stands to lose big in this situation. Less ability to finance films equals less choice for them. Films that relied heavily on pre-sales for financing like The King’s Speech and The Imitation Game and programs like The Night Manager and Poldark become increasingly difficult to get made.
“I think it will maintain very successful content for a very small amount of aristocracies that can afford to go day-and-date across Europe while rest of us will get squeezed out,” says Moullier. “We’re going to see a tremendous impoverishment on the offer of content and geo-blocking means we will see a concentration in the marketplace for the Palo Alto companies in the universe.”