Cavada’s report on the online distribution of audiovisual works in the EU

Digital services, such as video streaming, should be made available to all EU citizens irrespective of the Member State in which they are located; it should to call on the Commission to request that European digital companies remove geographical controls (e.g. IP address blocking) across the Union and allow the purchase of digital services from outside the consumer’s Member State of origin.

For the creation of a single internal digital market in Europe, it is essential to establish pan-European regulations on the collective management of authors’ rights and related intellectual property rights so as to put a stop to the continuing various amendments to legislation in the Member States that make cross-border rights management increasingly difficult; the need to create legal certainty as to which legal system applies for the clearance of rights in the event of cross-border distribution, by proposing that the applicable law should be that of the country where an enterprise carries out its main business and generates its main revenue.

It is essential to guarantee authors and performers remuneration that is fair and proportional to all forms of exploitation of their works, especially online exploitation, and therefore to call upon the Member States to ban buyout contracts, which contradict this principle. The need for the bargaining position of authors and performers vis-a-vis producers to be rebalanced by providing authors and performers with an unwaivable right to remuneration for all forms of exploitation of their works, including ongoing remuneration where they have transferred their exclusive ‘making available’ right to a producer.

The best means of guaranteeing decent remuneration for rights-holders is by offering a choice, as preferred, among collective bargaining agreements (including agreed standard contracts), extended collective licences and collective management organisations. Multi-territorial or pan-European licensing mechanisms should remain voluntary and flexible approach regarding pan-European licensing must be adopted, while protecting rights-holders and progressing towards the digital single market.

Administration of audiovisual rights for the commercial exploitation of works in the digital age could be made easier if Member States were to promote effective and transparent licensing, including voluntary extended collective licensing, where such procedures are currently lacking. Consideration should be given to applying a reduced rate of VAT to the digital distribution of cultural goods and services in order to eliminate the discrepancies between online and offline services.

It is also worth noting that the economic model for the market in audiovisual works is based on different sales territories, each with its own specific release windows for the various media. This system must not be undermined because it ensures a good commercial balance between all of the partners in the sector.

With a view to simplifying the process of acquiring rights, a very strong case may be made for the introduction of an international system for identifying cinematographic, audiovisual and multimedia works. As the Commission has pointed out, the majority of audiovisual media services are targeted mainly at a national audience or a particular linguistic area. This is why it would be inappropriate to impose a legal requirement to negotiate multi-territorial, multilingual or multi-platform licences, since the commercial demand for such licences is extremely limited at the market’s current stage of development.

Imposing a pan-European licence would merely make it easier for the players with the greatest purchasing power to monopolise the market to the detriment of many SMEs, which form the backbone of the audiovisual and cinema industry in Europe.

The issue of net neutrality is of fundamental importance in this new online environment. It should be noted that the number of audiovisual service providers using the Internet as a means of distributing their content and services is steadily increasing. The principle of net neutrality is of key importance in helping them supply their content and services to the largest possible number of people. Legitimate general-interest objectives such as media pluralism and cultural diversity must be achieved.

It must be emphasised that, although it does not seem advisable to impose mandatory collective rights management in the audiovisual sector in order to avoid double payment, this being the producer’s role, this does not make it any less essential to call strongly for collective agreements to be signed at European level between authors’ representatives and the platforms that exploit the works over the Internet, so that authors can continue to fully exercise their rights.

However, it is worth noting that in the age of Smart TV, performers in many cases receive a trifling amount of remuneration, with the rates being set by contracts covering the secondary exploitation of their work that they sign with audiovisual producers. In view of the current debate on this issue, it should also be emphasised that streaming must be regulated, and that it is absolutely essential to find means of blocking access to pay platforms offering unauthorised content.

The document is available as pdf (en) and (de)