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22 November 2022

Europe’s video providers drawn into disputes with telcos over network fees

It seems hardly a week goes by where we do not hear of operators at loggerheads with over-the-top platform owners over whether the latter should pay service fees for clogging the former’s networks with traffic.

The issue has moved to center stage again in the past few weeks, with large European operators reiterating claims that the firms that profit from their investment in infrastructure – notably hyperscalers and large content providers – should help fund it. The debate particularly focuses on 5G, because of the high operating costs and relatively small capacity of mobile networks compared to fiber.

A fireside chat on policy at last week’s Media & Entertainment Summit 2022 showed that European broadcasters and content providers are not going to sit back and take any such price hikes without a fight.

Top of the agenda for the Association of Commercial Television and Video on Demand (ACT) in the coming years is taking a stand against operators imposing network fees on video-on-demand platforms. “We already do pay. We use their network, pay for it and make it attractive for end users,” argued Grégoire Polad, director general of the ACT.

However, Polad cautions that this will be an uphill battle, due to the immense political weight held by operators. “Maybe they should be looking to tackle piracy instead,” he argued. “Their networks are full of it.”

ACT was born in 1989 to influence European Commission (EC) policy regarding audiovisual media, formed by the five largest broadcast groups in Europe at the time, including ProSiebenSat.1, RTL and TF1. Over 30 years later, it now hosts 28 members, including (slightly) fresher faces such as Sky and Canal+.

Much of the regulation in this area is carried out through the EU’s Audiovisual Media Services Directive (AVMSD), which follows a 10-year cadence of review. Often individual policy items can take years to go from a white paper in Brussels to legislation at the national level. Primarily, the ACT is concerned with four key legislation areas – IP, competition, data and audiovisual law.

“Neither the DSA nor the Copyright Directive allows us to act quickly enough on matters of piracy,” Polad explained. “If we serve a notice for a pirated football match, that can take two days. The match has long passed by that point.”

Polad spoke of the struggles of the often “horizontal” legislation that comes from the EC, which often fails to think of the unique requirements of those in media and entertainment. While he believes some countries (notably the UK and Portugal) have good individual piracy laws, the European-wide legislation is still lacking fine-honed tools to deal with video piracy.

On the newly drafted AI Act, Polad said that ACT does not want it to impact the use of AI in production, otherwise there would have to be multiple disclaimers in end credits as to the use of AI in editing, most of which is inconsequential to the audience.

However, he warns that there is another battle coming regarding copyright and IP legislation. If an AI goes out to find random stimuli from the Internet, it is bound to infringe on certain elements of IP. How that labyrinth will be navigated is yet to be seen.

Much of this fragmentation occurs because the AVMSD is just a directive, leaving the final legislation to member states to implement as they wish. Polad says that around 70% of legislation from the AVMSD ends up becoming national law in any given member state.

While the early days of the ACT saw classic policy haggling between public and private institutions, Polad says there are now far bigger issues to deal with – primarily the existential crisis that has been caused by the arrival of Big Tech in media. Everyone is now questioning exactly what constitutes media, as well as who can and should control it.

“Social networks are important, but they need rules just like broadcasters are subject to. There should be equivalent rules for online media,” he argued. “Meta clearly has no interest in self-regulation.”