IRIS plus Collection 2008

Nuggets - Generating and Safeguarding Value in the Audiovisual Sector

• The Impact of EC Law on the Taxation of the European Audiovisual Industry

  How states organise their tax systems, to whom they grant tax exemptions and benefits and on whom they spend money from the tax-filled budget, is driven by specific policies such as the support of certain industries. Among them features the audiovisual industry, to which tax law is often benevolent because of the states’ desire to promote national culture and to build up a forward-looking sector.

  To the extent that tax related policies translate into national rules which influence the EC internal market, for example because they invite state protectionism, they collide with EC law. It is therefore not surprising that national tax law meets with the scrutiny of EC policy makers and triggers legislative action in Brussels.

  If fiscal support policies concerning the audiovisual sector are to succeed, Europe’s creative industry and competent policy makers need reliable information on the impact that EC law has on the taxation of the European audiovisual sector.

  In this IRIS plus Hasan Bermek analyses a wide spectrum of tax issues relevant to the audiovisual sector and demonstrates the various ways in which these issues relate. His article is both a guide to the legal framework and a description of the areas which may still be regarded as requiring attention.

• Transformation of Authors’ Rights and Neighbouring Rights in Russia

  To turn intellectual property into gold is a key business for the creative audiovisual industry. The avalanche of national and world-wide copyright piracy claims concerning audiovisual works is further proof of this. International agreements such as the TRIPS of the WTO take into account the economic value of holding copyright and aim to ensure that copyrights are internationally respected and so does national legislation protecting authors’ rights and neighbouring rights.

  Whereas it is true that intellectual property can be turned into gold, Shakespeare also reminds us, through the trials and tribulations of a rather brilliant would-be-lawyer, that “all that glisters is not gold”. In order to judge the financial value of intellectual property, we need to know how and with whom relevant rights originate, how to contract for ownership or use, how and what amount of money to collect for licences and, of course, how to fight legally against piracy.

  Russia is a very important player in the economics of copyright and in addition, it is one of the countries that has recently revised its legal framework on authors’ rights and neighbouring rights – not least with a view to possibly join the WTO. All in all this provides enough reason to offer you this article, in which Dmitry Golovanov gives a clear albeit colourful picture of the problems, development and current situation of the institution of Russian copyright law.

• Media Windows in Flux
  Challenges for Audiovisual Media Chronology

  The marketing of a film depends, among other things, on arrangements concerning the chronological distribution of exploitation rights. One way of achieving this is to define chronological periods and sell exploitation rights for the various media. Cinema, television services in their different forms, IPTV, Video on Demand, etc. can be served one after the other, with the rights sold for varying lengths of time. However, economic considerations need not necessarily mean that everybody gets a slice of the cake, or that the whole cake is distributed. It may make financial sense, for example, not to include a VoD window if pay-TV operators are prepared to pay more for the rights to that window. Nor is the usual media chronology set in stone. New media windows, such as those for mobile audiovisual media services, may play a role in the future. This article does not, however, deal with economic considerations, but with the legal framework on which an economic strategy, however it is chosen, must be built. The author begins by explaining how rules on media chronology have developed. On this basis, it is easy to see who defines the media windows according to which rules and why there are different models. The author also points out that media windows can have competition law implications that extend beyond the question, “Who gets which window?”

• User-Generated Content Services and Copyright

  Whether deliberately or accidentally, the name "DailyMotion", a video hosting service website, does not only point to its ever changing pools of content and users but it also symbolises a technology that develops at great speed and sets its users into motion. It invites active participation from those who used to be passive users. To be blunt, services such as DailyMotion depend on consumers’ contribution – that is, on user-generated content (UGC) that circulates globally via a French-based service carrying an English name in order to reach the widest possible audience.

  New models for two-way distribution of content over the Internet, confront us with new shades of familiar copyright questions such as: what are the legal restrictions for putting content online? Where does piracy start? Who is the pirate? This IRIS plus looks at the EU and US American copyright framework concerning UGC and how it has translated into case law. Suspecting that neither the pending revision of the relevant EU e-commerce Directive nor further court decisions might settle the matter entirely, the article also explores other options for improving the relationship between UGC providers and copyright owners.

• The Promotion of Cultural Diversity via New Media Technologies
  An Introduction to the Challenges of Operationalisation

  Sometimes it might be unavoidable to use catchall phrases when discussing legislative programmes and policies. Perhaps more often than not, this is even warranted inasmuch as it helps to unite discussants with very different backgrounds and agendas. Catchall policy and catchall law-making risk, however, that people stay united in theory but not in practice.

  Cultural diversity is one of those terms that manage to accommodate different meanings and varying concepts. In addition, the term cultural diversity is often deployed together with other concepts as important as social tolerance, freedom of expression and democracy. At the same time, it is held out in defence against perceived threats from a global market and serves as justification for concrete state action in support of the creative industry.

  This article presupposes that it is important to clarify potential meanings of cultural diversity and arising concepts if we wish to experience cultural diversity in the form of concrete results. The need for clarification becomes more pressing with a view to technological advances which already by themselves, and all the more in tandem with vague concepts, challenge existing legal frameworks. This article is a first and very useful step on a long way to go.

• Audiovisual Media Services and the Unfair Commercial Practices Directive

  Are audiovisual media services totally unaffected by general legal principles? This IRIS plus article shows the not entirely unique position of an area of law that, at first glance, would seem to be regulated completely by technology-dependent regulations. Product placement, sponsoring and surreptitious advertising are, however, not only subject to specific media-related legislation, but also to general principles in the field of unfair commercial practices that protect consumer interests.

  These interests have not yet been taken into account in discussions on the new Audiovisual Media Services Directive. Nevertheless, consumer interests will take a prominent place in the law of audiovisual media services. This IRIS plus explains to what extent and why. It also tells its readers how the general legal principles relate to media-specific legislation.

• Progress in the Must-offer Debate?
  Exclusivity in Media and Communication

  In order for a company that wants to provide audiovisual media services to be well positioned, what it needs more than anything else is content that is of interest to consumers. The key to success for such a company is its ability to offer such content on an exclusive basis, in other words if it owns an exclusive right to distribute it. At the same time, however, it must also position itself in the distribution market, for it needs to send the content to the customer in order to convert its exclusive right into financial reward. This is the theme tackled by this IRIS plus, which looks at the various dimensions of exclusivity in media and communication.

  This IRIS plus considers the current debate on whether the obligation to transmit (must-carry) certain content should be replaced or at least supplemented by an obligation to offer such content (must-offer). The first legislative steps have already been taken in this direction. The article examines this question particularly with regard to the assessment under competition law of such a paradigm change, but also in view of the tension between competition law and copyright law. This very important IRIS plus is also closely linked to IRIS plus on media windows, which dealt with audiovisual media chronology, another aspect of exclusivity.