No policy intervention. This option would rely on the natural evolution (естественной эволюции) of the VoD market. As VoD will become an increasingly important way to access AV works in the coming years, it is likely to gain in financial attractiveness for rightholders.
Option 1 – Stakeholders’ dialogue focusing on licensing issues and aiming at improving the proportion of EU audiovisual works available on VoD platforms
Under this option, a stakeholders’ dialogue would be put in place. This stakeholder dialogue would focus only on licensing issues and related legal and contractual difficulties (e.g. unblocking of VoD rights). The main participants will therefore be authors, producers, sales agents, distributors, broadcasters, aggregators, VoD platforms (including telecom operators offering VoD services), with the underlying idea to gather together parties that do not enter directly into commercial agreements with each other. The result could be the adoption of self-regulatory measures for improving the availability (for a more sustained exploitation) of EU AV works, including on VoD platforms.
Option 2 – Stakeholders’ dialogue (Option 1) + Obligation for Member States to establish a negotiation mechanism to overcome obstacles to the availability of audiovisual works on VoD
This option would maintain the European-level dialogue from Option 1 and will add the obligation for MS to introduce in their legislation a mechanism/process to facilitate negotiations aimed at facilitating the exploitation of EU AV works on VoD platforms.
The negotiation mechanism put in place by MS will help addressing individual cases. The stakeholders’ dialogue will address problems of availability in a general framework and try to find solutions agreed by a multiplicity of parties. The negotiation mechanism will aim at helping solving specific cases where licensing obstacles limit and/or block the availability and exploitation of an (or several) AV work(s) on VoD platforms (e.g. a producer whose work is not exploited on VoD platforms; a VoD platform that wants to make available a particular AV work). The parties who can resort to negotiation will be those wishing to exploit VoD rights and those holding the rights.
MS will have to create a negotiation mechanism with the following essential elements: MS will identify an impartial instance that will facilitate negotiations between parties (without prejudice of the possibility to go to Court). The negotiation mechanism (i) will be determined by each MS after having consulted with the relevant stakeholders (practical issues such as the bearing of costs and timeline will therefore be left to MS); (ii) will be on a voluntary basis; and (iii) will require the parties’ commitment to negotiate in good faith. The selected impartial party will (i) actively work towards reaching an agreement and facilitate negotiations; (ii) bring professional experience that can contribute to the conclusion of more commercial agreements.
The expected outcome would be commercial agreements leading to an increase of EU AV works being available on VoD platforms. There is no obligation for the parties to reach an agreement.
Options imposing obligations that would restrict the stakeholders’ contractual freedom were discarded. Such options would be more constraining on the parties since parties would have no choice but to start negotiations or to allow the exploitation of the works. However, their practical implementation and real impact on the market remain unclear. It is for instance unclear whether forced negotiations (even in good faith) could reach more agreements than negotiations on a voluntary basis.
As regards any obligation to exploit, it would have been very difficult to determine the conditions under which such obligation could take place without expropriating the concerned person’s rights. These options would heavily hinder the contractual freedom of the parties, which now freely negotiate and agree on the different types of exploitation that rightholders want to license, e.g. theatres, pay and free broadcasting, DVD, VoD.