The European Producers Club, an organization representing 130 influential producers across the continent, has launched a code of best practice that is designed to aid independent production companies in negotiating contracts with VOD platforms.
The four-point document (read in full below) is designed to be a framework for discussions and covers topics including IP, data sharing, fair remuneration and the access to local public funds.
This is the latest action in a wide European bid to change terms with streamers such as Netflix and Amazon in order to give producers and national bodies more power when working with the U.S.-based online giants. The European Audiovisual Media Services Directive, inaugurated in 2018, has been drawn up to guide countries with their streaming policies and is currently being actioned by individual nations; though not always to positive local reception.
Back in October, filmmakers including Pedro Almodovar, Agnieszka Holland and Paweł Pawlikowski signed a letter calling for a European production levy that would force the VODs to pay money back into local production economies. The streamers have always maintained that they pay their fair share.
The European Producers Club code suggests that indie producers should retain more IP on their projects, and that rights granted to VOD platforms should be restricted to “primary exploitation of the work”, unless they pay for further rights.
It also asks for VOD platforms to provide regular and comprehensive information about the performance of work after release, with the streamers tending to be closed off regarding specific viewership data.
Elsewhere, it states producers should receive “appropriate and proportionate remuneration”, including producer and overhead fees, in line with industry standards and this should have EU input, as happens for directors and writers at present.
Finally, it suggests that national benefits and subsidies should only be accessed via an independent production company in the specific territory.
European Producers Club Fair Practice Guide:
1. Fair and proportionate remuneration and economic participation for producers.
The principle of appropriate and proportionate remuneration, which is already provided for by the EU for authors, directors and other copyright or related rights owners, should be applied to independent producers, as well. Appropriate and proportionate remuneration for independent production companies includes reasonable producer fees, overhead fees in accordance with industry standards, and additional remuneration to be determined fairly and depending on viewing results. An adequate contingency reserve should also be included in the budget approved by the VOD Service.
2. Producers’ contribution and right to participate in future derivative works
When an independent production company has acquired, created or co-developed an IP, that underlying IP shall remain with the production company, including the rights to make sequels, prequels, remakes, and any other derivative audiovisual works based on the initial film or TV series. As an example, the production company that has produced the first season of a TV series based on that IP should be involved as the production company in all subsequent seasons of that same series. The exploitation rights granted to the VOD Service should be limited to the rights in the film or TV series that the VOD Service needs in connection with the primary exploitation of the work on its service, while allowing for the production company to authorize the reasonable, additional exploitation of the remaining or unused rights of the work, e.g. a theatrical release, where appropriate, and free TV exploitation after a reasonable period of exclusivity. VOD Services should only require the license of the rights they actually exploit or should acquire those additional rights for additional fees at a fair market rate.
All exploitation rights granted to a VOD Service should revert to the independent production company after a reasonable period of time.
3. Transparency and Accountability
In order for the independent production company to gain insight into the success of the works it has produced, the VOD Services should provide the independent production company with regular and comprehensive information on the exploitation of the work, in particular with respect to (i) the number of overall views of the work on the VOD Service, including detailed data for the key territories as well as (ii) relevant and comprehensive information about any off-service exploitation and any revenues thus generated.
4. Public Benefits and Fiscal Incentives
National benefits or subsidies, regional support funding and/or tax incentives aimed at national and European works in the Member States should be accessed only through independent production companies. Such support should be recognised as part of the producer’s financial contribution and allow for the production company to maintain ownership and control of exploitation rights that are of a value that is truly comparable to that contribution.
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