by Claire La Combe 

This past month of March was kind of a renaissance of lobbying within the European film industry. Stakeholder organisations might not have been taking that many actions toward the European Commission since Cannes 2013 – when the TTIP[1] negotiations were to include cultural works – and maybe toward the European Parliament since 2010 with the ACTA treaty[2].

At stake (again)? The preservation of diversity in films, via the threat on the financing mechanisms of the industry. And behind this: the European Commission plan to harmonise the copyright law and licensing in the 28 member states in the frame of building a Digital Single Market (DSM) and the initiative report led by the pirate deputy (MEP) Ms Julia Reda, which echoes to it in the European Parliament.

(Re)assuming the role of stakeholder organisations in Europe

Since January, the new Commission, presided by Mr Jean-Claude Juncker, has been presenting here and there its concept of DSM, together with modernisation of copyright, as one of its priority. Finding an assumed road map in the draft initiative report on the harmonisation of copyright (MEP Julia Reda), Commissioners GüntherOettinger and Andrus Ansip (DG CONNECT) are multiplying calls against geoblocking and territorial licences and keep pointing at national rights as barriers for creative business in Europe. Yet, the answer from various film professionals came out rapidly: authors’ rights are the core of the European film financing system, and altering it will undermine European creation and diversity. And against the Commission repeated motto “we want to get rid of the fragmented market”, stakeholders had to organise and to reunite strongly to be heard.

From early March, joint letters have been addressed to Commissioner Oettinger, from the producer associations to authors’ collective organisations, including distributors and exhibitors’ associations or Television alliances from all over Europe. And the issue is the same for all: in altering the existent legal framework, there is a danger to reduce the diversity of European film making. For authors and film-makers, copyright is the essence of remuneration of their work; for producers, national rights are the core of film financing with pre-sales; for distributors, territorial licences are basis for their business; for exhibitors, existing European screening rules stay the backbone of their economy. And they all agree – and wrote about it – that in the end, they were all fighting for the same thing: they want films to be created and to be seen as much as possible. It might seem rhetorical but this had to be stated: film professionals are first to want the industry to be competitive and innovative. As an “opening” conclusion, all letters requested an assessment of the existing copyright system to the Commission before it makes any reform.

In parallel, coalition of national bodies took actions. As a symbol, former Labour MEP Carole Tongue launched the Association of European Coalitions for Cultural Diversity (CEDC) which gathers members in 13 European countries including France, Germany, the UK and Spain. “We are also responding to an urgent situation, as the Commission is about to make proposals for copyright reform in the EU”, she explained on March 4th. Born with the UNESCO Convention of 2005 on protection and promotion of cultural diversity in Europe, the national coalitions decided to form this new group in Brussels, to be more efficient in lobbying for a modernised creative financing and tax system. Also, on March 17th, the Association of the European Film Agency Directors (EFAD) – recently established in Brussels – published its joined resolution on the copyright reform claiming that modernisation of film industry in the digital era would require reinforced rights. “The EFADs do not see a need to change the current EU copyright framework but are ready to explore any measures that could further improve access to the promotion of European works for audiences (through improved portability of content for example) without hindering the financing or exploitation of works”.

Definitely, European stakeholder organisations have revitalised themselves through the copyright issue. It is first a matter of renewal of the European political class, which “forces us to once again explain who audiovisual authors are, how audiovisual works are created, financed, distributed, how the sector is structured” wrote Cecile Despringre (Authors’ society SAA) at the occasion of the publication of their 2nd “White Paper on Audiovisual Authors Rights and Remuneration in Europe”. But it is also a question of urgent topic as copyright is a priority action for the Commission.

(Re)petitions to protect authors’ rights in France

As a solid supporter of the 2005 UNESCO convention and European white knight of authors’ rights, France has been playing its role to march against the Commission DSM strategy project and to organise the opposition to Julia Reda’s initiative report.

The French Secretary for European Affairs (SGAE) was the first to “shoot” the German MEP report. In a letter sent to French MEPs in February, the SGAE highly criticized the report for being partial:  “too much focused on users’ rights”; even not mentioning the issue of host providers’ status or any ruling alternatives to actual commercial practices which are depriving authors from fair remuneration. In the French government, it seems that nobody trusts the only Pirate Party deputy in the Parliament to deal properly with authors’ rights. And this view is generally shared among French stakeholders: “this is as if we asked the fox to establish rules in the henhouse” ghastly smiled CEO Arnaud Nourry of Hachette publishing group at the Authors & Co conference organised in Paris on March 12th by the SACD (Authors society).

After the SGAE position and some expected reactions in the European Parliament, French Minister for Culture and Communication, Fleur Pellerin took the lead of the opposition to Reda’s report and to the Commission’s DSM. On March 4th the minister, with her counterpart from Germany, Minister Monica Gütters, took part in the launching of a parliamentary intergroup on creatives and cultural industries. The latter, was precisely an initiative of the French socialist MEP PervencheBerès and was the occasion to present the GESAC (Authors collective right societies) and Ernst&Young study on Creative growth. With arguments based on this study, the French minister and a growing handful of MEPs from all over Europe, argue that the first thing to be harmonised is the tax system. And here is one conclusion to a deeply controversial European topic:  authors’ rights are not barriers but their denial by the GAFAs (Google, Amazon, Facebook, Apple) are. Playing with tax rules differences in Europe, and benefiting from free creative content with no accountability in return (no fee, no profit sharing, no private responsibility), digital intermediaries, together with pirates, are cheating creators – and the whole producing and right holder chain – from their rightful incomes (ie. from their substantial means to keep creating).

In addition in France, another report on the revision of Directive 2001/29/ECon Copyright[3] is talked about. Established by Mr. Pierre Sirinelli from the High Council For Literary and Artistic Property (CSPLA) and published last December, the report underlines in substance that the revision of the Copyright directive is not urgent: practices have to be modernised but existing texts are flexible and good enough to enable this shift. According to Mr. Sirinelli, received by the French Senate on March 10th“the emergency of a revision only concerns the 2000 E-Commerce Directive”. Again, the vision is that the existing rights in Europe are not barriers to circulation of creative works in Europe, limits are made by commercial practices themselves. “The role of intermediaries has to be discussed and negotiated with right holders” concluded Pierre Sirinelli. On March 25th, it was up to collective right management organisations to be received by the Senate. Among them, Mr. HervéRony – recent chairman of the quoted Authors & Co conference – insisted: “we have been pledging for a long time for the revision of the E-Commerce Directive”. In the end, the Commission, politicians and stakeholders agree on one thing: creative contents have to be spread to the widest audience possible; the concept of portability “is not anecdotic” but “this issue is not related to authors’ right“.

One can wonder why…on March 21st at the Book Fair in Paris, French Commissioner Pierre Moscovici (Economic and Financial Affairs, Taxation and Customs) timidly sat on the fence: “We will have to consider the role played by territorial licences in cultural financing, while pushing professionals to innovate and to take into account users’ needs”. To be mentioned, as a final reminder he said: “the Commission is not, can’t be, mustn’t be, will not be an enemy”.

(Re)percussions in Brussels and beyond

At the end of March finally, in Brussels, texts and statements sounded slightly different from their early 2015 versions. In the Parliament, the two majors texts to be voted in Committees CULT (Culture & Education) and JURI (Legal affairs) – respectively Wenta’s initiative report on European film in the digital era and Reda’s initiative report on harmonisation of copyright – shifted toward the authors’ side. In the Commission, people from the DG Connect seem to call for a status quo regarding the Film industry.

Lot of noise was made around Wenta and Reda reports. If we had to make a caricature, the first (from CULT) was reputed “pro film industry”, defending the enforcement of authors rights, multi-territorial licences and national film support schemes; when the second (from JURI) was reputed “pro users”, defending exceptions to authors’ rights, unique licence and pan-European access to content. Both initiative reports received lots of amendments to rebalance in a way or another the trend for users or creators. On March 24th, the CULT Committee voted on Wenta‘s report with not much trouble and with little “pro users” amendments to pass. On March 24th, the vibe was quite different in the JURI Committee: 556 amendments were submitted to the rapporteur. This resulted in the cancellation of the discussion on that day because Julia Reda and her team couldn’t treat compromised amendments in due time. A lobby trick?

Sort of. Among the 556 amendments, more than 50% came from French MEPs. Jean-Marie Cavada, vice-president of the Committee on Legal Affairs (JURI), and shadow rapporteur on the initiative, was one of the most virulent on the topic. In March, the fight between him and Julia Reda became quite personal. Via personal letters, emails, tweets or individual interviews, one could follow a sort of fight between “the old grumpy” versus “the young inexperienced“. Each of them used tricks: spams for the Pirate party, traditional lobby manoeuvres for the former Radio France executive. Recently addressed by 24 associations and copyright civil groups in a letter denouncing the lack of representativeness in the Copyright Working Group he is chairing, Jean-Marie Cavada simply answered “I was really astonished by this letter blaming him for being too close from cultural industries“. But in fact, the huge number of amendments was the consequence of more than this trivial trick. “It’s been a long time I’ve seen that amount of lobbying” said MEP Mary Honeyball, also shadow rapporteur of the report.Amendments came from MEPs from all wings and countries, and “most of the amendments represent the same position” underlined MEP ThérèseComodini. This means that the concerns were real and that stakeholders’ reaction was massive everywhere. This also means that an agreement is possible, even if, Comodini added, “in the end real difficulties will be left“. When Julia Reda took the floor on that day, she finally adopted a very reassuring purpose: “geoblocking would not destroy the territorial rights (…) what counts is that people can access legally to whatever the content they paid for”. And everyone could agree on her last statement: “nothing will be decided before an impact assessment on national copyright system is carried”, she said. The Committee’s vote on the initiative has been postponed to May 6th.

Coincidence: May 6th is also the date picked up by the European Commission to present its DSM strategy. This was announced last Wednesday, on March 25th by Commissioners Ansip and Oettinger, while giving to the press the Commission broad lines on the Digital Agenda. After two months of intense campaign against national barriers at national levels, something sounded different in the Commissioners’ comments. Catchphrases remained: “Let us do away with all those fences and walls that block us online” said Andrus Ansip, but in the core of the orientations, some statements came out for the first time. Territorial licences vs unique licence were not debated. The focus was made on portability of “legally acquired contents” and on transnational services. Again this echoed with the Parliamentary clarification made by Julia Reda a day before…But “negotiations will be difficult due to national and economic concerns”, the Commissioner admitted. Instead of a summer legislative proposal, Andrus Ansip confirmed that nothing would be decided before this autumn.

What if…“I believe some exemptions would be needed for Culture for the Digital Single Market, but it is certainly too late” (HervéRony, Scam – French Senate Audience). What if it was not too late? At the end of March, European institution bodies appeared a bit more reasonable. As if an open door for creative works, in opposition to audiovisual flow, was let. As if Culture could still be an “exception”, and that the discussions could be refocused on commercial and technical issues. At the end of this past month “march”, French senator Catherine Morin Desailly (Culture Committee) invited Julia Reda for a speech on April 2nd. The senator noted: “I came to the conclusion that deputies from the Pirate Party were far more aware of technological and digital issue. We (senators), have a lot of work to do on this topic”. Let’s the lobby be on ?

And yet some upcoming talks to come:

• 2nd April – French Senate Culture Committee: hearing on harmonisation of copyright and related rights.

From 2pm, in Paris, hearing with MEP Julia Reda organised by Senator Catherine Morin­Desailly.

• 10th April – Forum d’Avignon: Droit d’auteur ‘Made in Europe’rights

8:45 to 10:30am in Paris, Theatre de l’Odeon, in partnership with Ernest & Young

• 14th April ­ Next meeting with shadow rapporteurs on Julia Reda’s report on the harmonisation of copyright: MEP Therese COMODINI CACHIA; MEP Mary HONEYBALL; MEP Angel DZHAMBAZKI; MEP Jean­MarieCAVADA; MEP Kostas CHRYSOGONOS and MEP Laura FERRARA. For procedure file, click here.

• 16th April – European Parliament Committee Meetings

In Brussels. CULT & JURI Committee.

JURI: discussion on Pavel Svoboda’s report (Intellectual Property rights) & TTIP negotiations /draft agenda available here

CULT: discussion on Julia Reda’s report & TTIP negotiations / draft agenda available here.

• 27th April – Plenary session in Strasbourg

European Parliament debate on Wenta report (procedure available here).