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This blog post examines the changes to both the Audiovisual Media Services Directive (AVMSD) and the Copyright Directive, through which EU policymakers have sought to protect European content producers, mainly in the face of competition from US-based platforms. Both Directives address the challenges for broadcasters and press publishers coming from large transnational online platforms, though using very different approaches. As further detailed in our journal article, we ultimately argue that the ‘levelling of the playing field approach’ taken in the AVMSD revision is more likely to at least slightly address the challenges facing European content producers than the ‘press publishers right’ contained in the Copyright Directive.
The threats
The rapid spread of largely US-based global online platforms has had severe consequences for Europe’s major content producers, the broadcast media and press publishers, most of which they claim make it more difficult for them to generate revenues and thus, fund new original content. Data from across Europe shows advertising revenues increasing for online options and generally decreasing for the broadcasters and press publishers that have traditionally relied on advertising to fund the production of content. Press circulation figures have plummeted and audiences, particularly younger ones, are shifting away from linear broadcasting.
Fairness in advertising rules?
To address the challenge from platforms for sharing user-generated content such as YouTube, the Commission proposed extending the AVMSD’s scope to video sharing platform services (VSPs). VSPs were introduced as a new category and defined as services whose ‘principal purpose’ is the dissemination of programmes or UGC over which they do not have editorial responsibility, but do have responsibility stemming from their organisation of that content. In fact, recital 3a of the adopted Directive directly acknowledges the commercial threat of VSPs to European audiovisual media services (AVMS). Ultimately, the updated AVMSD somewhat levels the regulatory burden as it requires member states to ensure that VSPs and VOD services also follow all qualitative rules on commercial communications (art 9).
The revised AVMSD also holds VSPs responsible for the advertising inventory they sell directly and that which is sold by others. In practice, VSPs may however get away with just adjusting the terms and conditions to which those posting content and selling advertising must comply. For example, some of the rules on advertising are already included in Google’s AdSense terms, which govern the advertising on YouTube.
Balancing out the content burden?
As already required from the ‘traditional’ broadcasters, the revised AVMSD now also obligates VSPs (art 28a) and VOD services (art 6a) to protect minors from content deemed harmful and to protect all citizens from incitement to hatred and violence and illegal content. In addition to these rules, linear AVMS have had to broadcast at least 50% European works since 1989. Under the new Directive, VOD services will have to include 30% European works in their catalogues. This will not apply to VSPs, which do not acquire content themselves.
Given that most television broadcasters fulfil their quotas with domestic content not likely to be sold on an international market, this provision might make some European film producers happy, but is unlikely to affect competition between television channels and vast on-demand catalogues of premium and niche content.
Another right for press publishers
In its proposal for a revision of the Copyright Directive, the Commission attributed the press publishers’ loss of revenue to their lack of bargaining power in relation to online services, and their inability to enforce their exclusive rights online. However, rather than trying to intervene in the conditions of competition for advertising, like the AVMSD, the Commission instead attempted to tackle the intermediary function of the platforms in the distribution of press publishers’ content by adding a property right that can be exercised by publishers. Most importantly, Article 15 of the revised Directive grants press publishers the exclusive right of reproduction as well as the rights to authorise or prohibit making their works available to the public. The move builds upon two national initiatives from Germany and Spain, and has proven extremely controversial.
We argue that this is highly problematic and may backfire. First, the introduction of a new ancillary right is likely to have an adverse effect on media pluralism given that sharing news online would be subject to an additional license and/or fee. In Spain and Germany, news aggregators (such as Google) decided to stop providing access to these newspapers’ content altogether. Therefore, in addition to a negative impact on the accessibility of news online, the Spanish and German initiatives led to a decline in referrals to these newspapers’ websites which decreased advertising revenues.
Second, the necessity of such an ancillary right is altogether questionable. Looking at industry practices, journalists rarely remain the owner of the copyright protection vested in their work as these economic rights are generally transferred to publishers. If the publishers already hold these rights and their enforcement of these rights is the issue, how will adding a layer of rights solve this problem? Further issues arise in relation the duration for which content is included and what kind of use exactly is covered. The term of protection of 2-3 years is still much longer than news remains relevant and on the agenda. Much more consideration of consumer habits, public interest and information rights are needed in these debates about duration.
Conclusion
The AVMSD has been revised with the intention of ‘levelling up’ the common standards for AVMS, applying most of them to the online VOD services and VSPs. The legislation essentially intervenes in the relationship between VSPs and advertisers, attempting to approximate it to that between AVMS and advertisers, while getting closer to matching the obligations on those carrying professionally produced content (as opposed to UGC) to contribute to the production of European content. Though there are uncertainties regarding the potential for states to impose levies and the flexibility of co-regulation, the AVMSD is more likely go some way towards ensuring revenues for traditional content producers than the revised Copyright Directive.
Contrastingly, the press publishers right contained in the Copyright Directive intervenes in the relationship between press publishers and the various online platforms, mainly US-based companies rather than in the relationships through which press publishers currently derive revenues. Hence, it will not affect the rules of the game in which the press publishers and platforms compete for advertising revenue, nor will it create new obligations for platforms to invest in content. The extra layer of intended protection for press publishers is not matched by incentives for the platforms to carry press publishers’ content. Given the existing imbalance of power, it is likely to achieve the opposite of what is in-tended.
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This blog post is based on the following journal article: Sally Broughton Micova, Felix Hempel & Sabine Jacques, ‘Protecting Europe’s content production from US Giants’ (2019) 10(2) Journal of Media Law 219