BECTU's response to the Cine Euro Working Paper

2 July 2001

BECTU's response to the Cine Euro Working Paper is set out below, focusing on the issues of most relevance to us, as a trade union with members working throughout the British film and audiovisual sector. Our response follows the broad structure of the Paper addressing the issues of most interest and salience to our members.
The definition of a European work
Of the many issues raised in the Paper, this is, we believe, one of the most important. We share the view, as set out in the Council resolution of 12/2/01 on National aid to the film and audiovisual industries that the "European film and audiovisual sector is suffering from structural weaknesses, including under-capitalisation of undertakings, fragmentation of national markets, which are dominated by non-European productions, and poor transnational circulation of European works; the national and European support systems for this sector have a complementary and essential role to play in solving these problems."
In particular, we note the evidence (as cited in the Paper and as reported by the European Audiovisual Observatory) of the continuing predominance of US films in the European market and of the weakness of European films outside their national markets. We continue to believe that support measures at European level are a key component in any strategy to remedy this structural weakness and that in this context the definition of a European work is crucial.
Furthermore, we note that the film and audiovisual sector remains a labour-intensive industry relying above all on the creative and technical skills of its labour force. We therefore believe that a central component of European support measures should be the promotion of employment in this sector. Without such a skilled and creative European labour force, the promotion of 'European works' would lack a raison d'�tre on both economic and cultural grounds.
In the light of this we wish to argue for a labour-based definition of European works. While noting existing points-based definitions, such as those put forward by the Council of Europe and FERA, we believe there is a need to recognise a broader spread of creative and technical occupations within any such definition. We think there is continuing merit in the definition supported by BECTU at the time of the earlier European Green Paper/Think Tank debate on the audiovisual sector. This definition, which is set out in Appendix A, is based on a points system underlaid by a minimum requirement for 80% of labour costs to be based on European labour.
In conclusion, we believe
- that a single, labour-based definition of European Works as set out in Appendix A will give a focus and coherence to European support measures which will reduce barriers to the transfrontier production and distribution of such works;
- and that consideration should be given to adopting such a definition in place of the varied criteria currently operating in European support mechanisms such as the Television without Frontiers Directive and the Media Programme.
The definition of an independent producer
BECTU recognises the concerns on the question of 'Independence' and notes the varying definitions of 'independent producer' used by member states.
This has particular current relevance in the UK, given the unfolding debate inspired by the UK Government's proposals for the reform of broadcasting and communications legislation.
Our view, as developed in the context of the current UK debate, is as follows:
- BECTU, with many members both among staff employed directly by broadcasters and in the independent production sector, continues to support the notion of an independent production quota;
- We note, however, that the independent production sector has undergone a number of significant changes in the period since the first introduction of the quota in the UK in the mid-eighties. We suspect this also applies to the independent sector elsewhere in Europe.
- Specifically, we note there has been a significant concentration of ownership within the independent sector to the point when the original vision of a flowering of small, creatively-driven independents has been replaced by the reality of a sector dominated by a relatively few corporate independents, some of which are now larger than the small to medium UK broadcasters.
- Furthermore, there has been a growth of ownership links between independents and broadcasters - with broadcasting companies having significant shareholdings in 'independents' and vice versa. If this were to continue unabated, the very notion of 'independent' would be undermined.
- In the light of this we believe there is a need for renewed consideration of the definition of 'independents' to take account of these changes with the aim of retaining a meaningful distinction between genuinely independent producers and broadcasters (or, for that matter, telecommunications companies).
We would therefore support the development of a European definition of 'independent' production, as long as it took full account of the concerns and the line of argument set out above. We would welcome further debate at European level on the extent, nature and implications of concentration and cross-ownership in the independent sector in parallel to the domestic debate in the UK.
On the issue of rights, as between broadcasters and independents, we have the following additional comments:
- The rights issue is secondary to the more fundamental issue of defining 'independent'. Unless the issues set out above are addressed, the competing claim of 'independents' and broadcasters are likely to be based purely on corporate self-interest.
- Our fundamental concern on the question of rights is for the interests of individual creators. These are by no means co-termunous with the interests of independent producers. While we have sympathy with the view that the assignment of rights should be for limited rather than open-ended periods and secondary uses, there is, from our viewpoint, an issue primarily for individual creators rather than for competing corporate interests in the production and broadcasting sectors.
Protection of heritage and exploitation of audiovisual works
BECTU would support a legal deposit scheme for European works on grounds of conservation and heritage. In our view, however, this would not warrant prioritising above the other proposals in this section geared to the current needs of the sector (especially the needs of rights-holders).
The creation of a public registration scheme for films and other audiovisual works would, in our view, have clear merit on the following basis:-
- It would encourage transparency by providing for the ready identification of individual works.
- In particular it could assist in protecting the interests of individual right holders.
- To achieve the above ends it should include compulsory identification details concerning the name of the relevant production but also, ideally, the name of the producer/production company and the name of the distributor.
- It should be developed in parallel to the proposed rightholders' database (see below).
- Responsibility for registration should, as a default position, be on the producer.
If such a register were to be introduced, we have a preference - from the viewpoint of domestic accessibility - for it to take the form of a network of national registers rather than a single European register, but with strong requirements as to consistency among member states.
Rightholders' database
From our viewpoint this is the single most important and desirable proposal in this section of the paper - but only if it gives due regard to the interests of individual creators and rightholders.
In the increasingly complex market for audiovisual rights, we have long had a concern that the rights of individual creators are not given due backing in practice and in regulations. From our own membership we are aware of instances where individual creators are unable - despite the welcome support of collecting societies - to track and to receive due remuneration for the use of their works. The imbalance in economic power between individual creators and corporate users of their works is such that formal legal and contractual entitlements are often, in practice, undermined.
We would therefore strongly support the creation of a European Rightholders database identifying the current holders of rights and also the limitations placed by individual creators on the assignment of their rights. Such a database should, in our view, not seek to undermine the valuable work of collecting societies but rather to make it more effective. At the same time, we believe the database should be accessible to individual rightholders without prohibitive barriers (eg financial ones).
We recognise that this exercise would be immensely complex but would caution against glib and self-interested arguments that it is simply impractical. However difficult of achievement and whatever successive approximations may be necessary, we believe that the underlying project is clearly desirable.
As a side issue to the basic proposal, we would be very strongly opposed to any presumption of broadcasters as rightholders in situations where the owners of the rights cannot be traced. Such a proposal would simply reopen an issue which was already rightly and decisively rejected in the second reading of the Copyright Directive.
Other issues
We strongly support and would wish to see extended the fiscal support measures for film production currently in force in the UK. We would therefore support any measures at European level which encourage rather than undermine such policies. As well as fiscal support for production, we would welcome consideration of support measures at a European level for the distribution of European works (eg the earlier 'soft loan' proposals).
We take issue with the Paper's comment (in the section on the General Orieintation to State Aids to Cinema) that 'a territorialisation level going beyond what is strictly necessary to ensure cultural creation in a member state unduly fragments the Internal Market' (p.18). If that implies opposition to support measures operating selectively within a member state - e.g. at regional or national/regional level - we take the opposing view that such measures can be entirely legitimate on cultural grounds and conform completely to the spirit and intention of 'a Europe of the regions'.
Conclusion
We welcome the debate on these issues initiated by the Commission's Working Paper. We hope that our views will be taken due account of, especially in relation to
- a labour-based definition of European works
- and a Rightholders' database
We look forward to the further progress of the consultation.

Definition of a European work

A work qualifies as European if it achieves at least 15 points out of a possible total of 19, according to the schedule of European elements set out below, and if it complies with points (a) to (d) below.

European Elements	Weighting Points
Creative group
Director	3
Writer	3
Composer	1
Sub total	7
Performing group
1st role	3
2nd role	2
3rd role	1
Sub total	6
Technical craft group
Camera	0.5
Sound Recording	0.5
Sound Mixing	0.5
Editing	0.5
Special Effects	0.5
Set Design/Art Direction	0.5
Costume	0.5
Hair and Make-up	0.5
Laboratory	0.5
Orchestra	0.5
Production Department	0.5
Set construction	0.5
Sub total	6
Grand total	19

NB:

Since each technical craft category represents a group rather than an individual, everyone in that category has to be European in order to qualify for half a point.
An individual can only score points in one category eg a Director/Writer could only achieve points in one of these capacities.
Apply an additional minimum 80% labour costs criterion across the board ie as well as exceeding the points threshold, a European work would have to derive a minimum of 80% of its total labour costs from European labour.
The schedule of European elements is inappropriate for the animation sector. The straightforward labour costs criterion (point c above) is appropriate for animated productions.

Last updated 27 July 2001

BECTU's response to the Cine Euro Working Paper

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