With the New European Directive, Producers Could Actually Be Worse Off (Guest Column)

Charlotte Lund Thomsen - Publicity - H 2019
Courtesy of subject

Charlotte Lund Thomsen, legal council for FIAPF, a global producers' association based in Paris, argues that the EU directive could end up having a negative effect on content creators.

In the media and in the general debate, the European Copyright Directive, which the European Council approved April 15, has often been depicted (including by The Hollywood Reporter) as the Major Hollywood Studios vs. Silicon Valley. In fact, it has been much the opposite. The long and complex legislative process, which is not yet over, has basically been about copyright holders defending their interests in the online environment.

How you see the Copyright Directive and its impact depends on the perspective you view it from — on which glasses you put on before you look at it.

Take the "value gap." Put on the music industry's glasses and you see that music, in most cases, is available in the online world without technical protection measures. Users — on YouTube or wherever — can and do share music. Given that its content is being shared this way, the music industry naturally would like to get paid for it. For them, the Copyright Directive and its provisions that require online platforms to license copyright content shared by their users are essential.

But from our perspective — representing film and TV producers from 34 member associations of 27 of the leading audiovisual production countries — the "value gap" is less of an issue. Our content is usually protected by technological protection measures. We, in fact, think letting end users share our films and TV series online on social media platforms would have a negative impact on our business of commercial distribution.

Take an example from my home country of Denmark: the TV series The Bridge. It was very successful in Scandinavia and sold around the world. It isn't necessarily in the producers' interest, even if they get a license fee from the online content-sharing platform, to have users swapping episodes of the series on YouTube, because that would mean they couldn't sell the show to broadcasters and it would be harder — if not impossible — to recoup their investment.

From our perspective — wearing our producers' glasses — the EU Copyright Directive is not primarily about improving copyright protection but more about finding ways for users to (legally) use copyright-protected content online.

For us, it means copyright protection could actually be weakened, in particular, because the legislation provides new and wider liability privileges for platforms, carves out liability for small online sharing platforms, and has provisions allowing use, for example, of copyright-protected content for educational purposes, but without assurance of payment.

This isn't just a European issue. Anyone who produces in or with Europe or who sells or distributes its content here will have to deal with the implications of the new legislation.

But there is still time for producers to continue to defend their interests in this new, post-directive environment. It is essential that as governments around Europe implement the directive, they take into consideration the way the film and audiovisual sector works in terms of development, investment, recoupment and enforcement. We will be working together with our local association members to defend producers' interests and make sure national legislators understand what the directive will mean for producers' business.

As a producer, the first practical step you can take is to contact your local production association to understand what the directive will mean for you and what you can do to ensure that you don't come up short.

A version of this story first appeared in the April 24 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.