Alternative Facts from the European Commission

I tend to think of the EU Commission as a rock of sanity and patience in a crazy world (don’t laugh, we need something to hold on to!). I think that fits well with the COMM’s self-image too. This means that every time The Commission does something random or bad or ill-advised, my reaction is surprise and disbelief. It shakes my world a little bit. Then I go back into my comfort zone where I think that even if it gets it wrong sometimes, the EU Commission is still the most sane government organisation we have (not that the competition is getting tougher much).

One case where I have to work harder than usual to keep the faith in our leaders is the current conversation about intellectual property rights, freedom of contract, territories and broadcast rules. The fundamentals are clear enough: if you make something, it’s yours. That works great if you are a potter for example. You decide whom to sell your pots to and at what price. Customers choose to take it or leave it. But we can’t all be potters and a big (and increasing!) part of our economy is intangible. That’s why there is a system of intellectual property rights. If you make something immaterial, it’s yours and you decide the terms for how it’s used. This is called licensing. Let’s say you make a documentary. Perhaps somebody wants to buy the worldwide rights. Perhaps they want the rights to show it in one place only. You come to an arrangement.

Because the culture- and media landscape is often national, many such arrangements are limited to a particular territory, like a country. Except this goes against the idea of a single market in Europe, so the Commission has launched a number of proposals to restrict the freedom of contract for creators in various ways. Many of them haven’t gotten very far, simply because there is not a single European demand. Pluralism and diversity are more important in these cases. Some of it has succeeded, for example the Portability regulation, which allows you to take your online content subscriptions with you on travel. Now the battle is about broadcast regulation.

The EU Commission wants to extend the Satellite and Cable-directive of 1993 to online services. This would allow broadcasters to air the same content online as on the airwaves. Except satellite and cable broadcasts are limited in reach, but the internet is global. While Sat-Cab is an exception to the freedom of contract (and territorial licensing) that does not completely upset the regular market, extending it to all of the internet is something completely different. Buy the rights for one territory (take a small one, that’s usually cheaper!) and get the rest of the EU for free. Small wonder creators and media businesses are upset.

It appears the Commission itself has problems with this proposal as well, because it’s putting out some very strange information. I don’t say “alternative facts” lightly, but have a look at this (alternative) fact-sheet:

Looks great on first inspection, but look again.

–          First some data about online TV. Great, thanks, but what does that have to do with anything?

–          Second, a survey result that says people are interested in cross-border access. Yeah, but they have answered the wrong question. The right question would be something like “Would you be interested in cross-border access if it means higher cost and that the content is no longer available in your language?”. I’m guessing here, but the answer would probably be different.

–          20 Million people who live in the EU were born in a different member state. Assuming this is to say that many of them may like to have access to their home country’s television, we’re talking about 20 in 512 Million, so less than 4%. I’m sure they have strong feelings about this, but what about the 96% still in their home countries who might have equally strong feelings about television in their own language? (The irony of course is that without territorial licensing, the ex-pats still probably wouldn’t get TV in their mother tongue!)

–          1 in 5 Europeans interested in cross-border content according to the 2011 Special Eurobarometer. Ok, great, but look at bullet #2 above. Plus, according the 2015 Eurobarometer 95% of Europeans haven’t tried to access content cross border in the last 12 months and a majority have no interest in doing so. What if the people don’t want it? The Commission probably wouldn’t force citizens to watch television from other member states, but Stanley Kubrick’s A Clockwork Orange does come to mind…

–          67% of European films are only shown in one country. Yes. Or watched.

–          Cultural lock-in, next. The (alternative) fact sheet talks about public broadcasters. That’s probably because the commercial broadcasters hate the idea of extending Sat-Cab.

–          The “own productions of public broadcasters” still rely on plenty of other rights. Music, for example. The composers have the same rights to compensation as any creator. With this loophole, they would get paid for one territory rather than 28.

–          “Commissioned works” – this is part of a bigger conversation. Should public broadcasters retain international rights? Or should the production companies benefit from international sales? When the UK Communications Act 2003 forced the BBC to let producers keep the export rights, it started a boom in UK television production. Also, the (alternative) fact sheet doesn’t say if these commissioned works also includes co-funded projects with broadcasters in other countries.

–          “Free up” content sounds great, but this phrase hides many headaches for creators and producers – and by extension viewers.

–          The last boxes in the (alternative) fact sheet talks about how the choice to make content available remains with the broadcaster and that the increased audience should be taken into account when negotiating rights – hoping that this would give more payment. Except, the decision should be with the rights-owner and they need their rights to be respected, not endorsed by wishful recommendations from the EU legislator. Also, last time I looked the public broadcasters had limited budgets so they have every incentive to get the most from their money.

Perhaps if this is so important, the Commission could make policy to give public broadcasters more resources. That way they could buy the rights for other territories if they wanted. I’m sure everybody would be a lot happier with that: ex-pat viewers, all other viewers, producers, creators, broadcasters… maybe even European policy-makers? A move like that would certainly bring back my blind trust in our leaders.