Following the adoption of the new Audiovisual Media Services Directive in December 2007, it would seem that the legal framework for VOD services in Europe has been solidly defined. However the latest legal publication by the European Audiovisual Observatory
Legal Aspects of Video on Demand
coming as one of the first analyses to deal with VOD in its changed legal context, shows that the legal parameters for VoD are far from complete. Indeed, many aspects still remain open and subject to dispute.
This new report is based on discussions held during a workshop organised in June 2007 by the Strasbourg-based Observatory and its two partner institutions, the Institute of European Media Law (EMR) in Saarbrücken and Amsterdam’s IViR (Institute for Information Law). The proceedings of the workshop form the first chapter of this new publication.
The various parameters for VoD business models are analysed in the second chapter which gives a useful statistical overview of the main players active in this field today. This part of the report also weighs up the various advantages and disadvantages of supplying VOD via the existing platforms: Internet, IPTV, cable or satellite and DTT. The profiles of the various players involved in VOD are compared and contrasted and the three different types of economic models – rental, purchase and FoD – “Free on demand” are analysed.
The report then goes on to deal with YouTube and other user generated content platforms. A brief but useful analysis of the YouTube business model is followed by a detailed look at copyright issues related to YouTube from the US perspective and in light of the recent Viacom action against the site. The E-Commerce Directive and its provisions concerning copyright infringement are also examined. Regarding the issues of privacy, discrimination and defamation, clearly of relevance to YouTube’s activities, the report states that “there is no doubt that the debate has just started” and expressed the hope that “the new review of the E-Commerce Directive […] shed more light on some of these issues.”
Any producer wishing to make a film available via VOD must be aware of the complex web of copyright questions concerning each part of the work, including the music, which must be resolved before the film may be licensed for VOD distribution. The following chapter provides an invaluable, hands-on analysis of copyright clearance and the role of copyright societies in the process of licensing a film for distribution via VOD. Using a specimen agreement – the IFTA’s “International Multiple Rights Distribution Agreement” – the author explains the legal and contractual differences between Internet rights, on the one hand, and PayPerView rights on the other. The complex process of clearing music rights for film distribution via VOD and the role played by, for example, the GEMA in Germany, are also analysed.
The report then goes on to look at licences and media windows in the context of VoD distribution. The legal difference between streaming and download is examined in detail. Taking German copyright legislation as an example, the relevant exploitation rights for VoD (distribution rights, right of broadcasting or cable retransmission for example) are listed and explained. The traditional order in which a film is made available to its public and by what technical means – media windows – has also been called into question by the arrival of VoD and the report addresses this issue.
The experience of the music industry and its transferability to the film sector in making content available on line are dealt with in detail. In comparing the VoD market with the market for music available on line, one author states that “the financial success of VoD depends on the ability of rightsholders to facilitate the acquisition of licences through one-stop shops.”
The report concludes by offering useful analyses of the changing role of the consumer in the ’Audiovisual Media Service Directive’, looks at the position of public service broadcasters regarding the rights they make available for VoD distribution and also provides an up-to-date overview of certain examples of video sharing cases currently being brought before French courts.
IRIS Special, 2007 Edition,
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