Intellectual property, the challenge of the future to prevent platforms from taking all the cake

The platforms have revolutionized the audiovisual landscape. Since the arrival of Netflix, HBO, Amazon and company, the industry has mutated. The pandemic has also accelerated a change in the model that was already intuited and that affects all stages of the creation of a film. Before, the life of an audiovisual work was clear. It was produced, premiered in theaters, went through a paid service (Canal+ or Movistar) and then reached free television.

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Now, each one has a different outlet, and this affects the ecosystem and also the laws that govern the film industry. in the last few months Much has been said about the Audiovisual Law and what it means to be an independent producer, but another aspect that must be fundamental in the negotiations of the new legal framework has been left aside: intellectual property. This is one of the aspects highlighted by the Fundación Alternativas culture report, which looks at numerous aspects and challenges of the Spanish audiovisual industry, such as internalization, equality, the aforementioned audiovisual law, the next film law... a text which dedicates a specific section to the importance of intellectual production in this context of proliferation of products created by platforms.

"The increase in the consumption of audiovisual content has multiplied during the pandemic, especially on streaming platforms, but audiovisual authors have not benefited proportionally from rights income," the text written by Fabia Buenaventura begins. and Cristina Perpiñá, who make it clear that despite the increase in the amount of fiction and work, “there are still very few authors who can make a living from their work”.

In this aspect, income from copyrights linked to the exploitation of works is fundamental, and which according to a 2019 report “represents only 7.1% of their income (in the case of emerging authors) and no more than 17% for already consolidated authors”. “In this way, it turns out that the digital streaming and VOD platforms, clear winners of the success of audiovisual works, especially during the pandemic, benefit exclusively from the success of their services, without transferring these benefits to the authors. On the contrary, authors find themselves in an increasingly vulnerable and precarious situation in the face of the power of the large digital platforms, and this imbalance is transferred directly to contractual negotiations, which has come to be called the 'uberization' of culture. , due to the very high multiplication of content on platforms and the pressure that this entails for audiovisual creators”, says the report.

They warn of the "enormous imbalance between the authors and the large audiovisual production companies and more recently, the digital platforms, when moving to contractual negotiations." “Most authors (with the exception of some very well-known ones), despite the fact that they are recognized as copyrights (both moral and exclusive property rights) in practically all the countries around us, usually assign their rights ( exclusive rights) to producers in audiovisual production contracts, almost always in exchange for a lump sum payment (figure known in practice as 'Copyright Buy-Out'). This widespread practice is facilitated by the existence in many legal systems of a presumption of assignment to the audiovisual producer to facilitate the latter's ability to market the audiovisual product on the market, which decouples the author from the success of his work”, they add.

On other occasions, the trick consists of "artificially subjecting the contract to a foreign law (for example, to the law of any of the United States) to classify it as a 'Works made for hire' contract, which attributes from the beginning and fully grants the producer all the rights to the audiovisual work, even in those productions with no or minimal connection with these non-European countries, simply submitting the contract to the applicable law of said country”.

What until recently was an opportunity, the great production activity of the platforms that brought “great dynamism among independent producers and professionals, including authors”, has been turning into a less luminous situation, since as they indicate from Fundación Alternativas, currently "independent production companies are frustrated and unable to retain rights to the works they have submitted to the platform and that in many cases have already incurred development costs, the authors see that they are not capable of retaining in their production contracts all their moral and economic rights”. “That is to say, the unequal negotiating capacity between platforms and producing SMEs or individuals is very disproportionate and although the law clearly supports the rights that the author must maintain, it is very evident that in an oligopolistic contracting situation, the author who demands changes to the contract proposal can be excluded from the market with great ease”.

In said report they also point to possible solutions, which in their opinion goes through "the side of the institutions and entities that safeguard the rights of authors, mainly the Ministry of Culture (General Directorate of Cultural Industries and Intellectual Property) and the entities of management representing audiovisual authors (SGAE, DAMA)”. “The protection of respect for copyright in a changing environment in which new players have entered that are overwhelmingly more powerful could be one of the tasks that could be entrusted to the future Intellectual Property Office, since it could act in these cases as a Observatory, ex officio, not at the request of a party, carrying out an annual report focused on the health of our intellectual property system and on a random analysis of audiovisual production contracts”.

One of the great defenders of independent production, Jordi Oliva, from the Federation of Audiovisual Producers (PROA), confirms this situation in which a lot of work has been generated thanks to the platforms, but it is these that "acquire the entire property intellectual of the work. “The platform, if it has a social capital outside of Spain, that means that when we look at the films that have been made for Netflix, for example, in ten years, we will see that they are not in the Spanish Film Library, because they count as American. Technically they are not Spanish because they have been bought whole. They have kept the rights, they are going to do the second parts outside, and you lose all your rights”, he explains of a situation that he believes should be “one of the great axes and workhorses”.