Reply to ERGA survey on prominence

Reply by the European video-on-demand (VOD) Coalition to the ERGA survey on the existing or planned prominence measures in relation to European works in on-demand catalogues

Brussels, Belgium, 14 July 2020 — Name of provider: The European VOD Coalition is a company-led coalition. It brings together video-on-demand (VOD) and digital entertainment companies that share common values and invest in as well as distribute audiovisual content in Europe as their core commercial activities. Our mission is to inform audiences, policy makers and regulators about the importance of European VOD and digital entertainment services and to advocate on policy issues that help stimulate innovation and creativity. www.europeanvodcoalition.com

Name of service(s): CHILI, ContentScope, Discovery, FilmDoo, Nordic Entertainment Group AB, Netflix, Pickbox, Sky, TVN, Universciné Belgium, ViacomCBS.

Type of service: SVOD, TVOD, AVOD.

Confidentiality notification: this reply can be made public

INTRODUCTION

The European Video-on-Demand (VOD) Coalition supports the role of the European audiovisual and streaming sectors in creating and promoting European content to and making it available to a wider global audience. Therefore, it welcomes the opportunity to share its views on prominence with ERGA.

Our members are committed to ensuring prominence of European works on audiovisual services. As a coalition of European services, we are aligned with the objectives of ensuring that European citizens are able to see and hear European cultural works. However, each of our services approach ensuring prominence differently, in line with our individual business models and how our customers expect to be presented with audiovisual content. To this end, the implementation of Article 13(1) Audiovisual Media Services Directive (AVMSD) should recognize that there is not a one-size-fits-all answer to ensuring prominence.

Similarly, reporting and oversight obligations should be proportionate to the broad language within the Directive and allow VOD services to demonstrate compliance in various ways.

QUESTIONS

1. Which of the following measures or solutions do you consider to be the most effective to secure prominence of EU works in on-demand catalogues? Please, elaborate.

• Measures related to the “visibility” of the works in a dedicated section or in the main/most attractive sections of the catalogue.
• Marketing solutions, related to the “promotion” of EU works through banners, clips, trailers, advertising campaigns, social media, etc.
• Technical solutions, related to the usage of algorithms and other similar tools, such as recommendations, search tools, etc.
• Other

As noted in recital 35 of the AVMSD, there are multiple methods for ensuring prominence. These include having a dedicated catalogue section, the possibility to search for European content, featuring European works in marketing campaigns, and the implementation of technical tools such as banners to promote European content.

Our members used these methods alone and/or in combination or found other innovative ways to ensure that consumers receive the best possible experience while being offered diverse content online. However, the efficacy of any method will depend on the individual user, how that user interacts with a service, and the precise nature of each catalogue and service. In this respect, the membership of the European VOD Coalition showcases the breadth and depth of the VOD industry in Europe today. The ways in which our members intend to ensure prominence of EU content is equally as varied. Mandating one solution specific over another to secure prominence would likely benefit some VOD services while putting other VOD services at a disadvantage. Furthermore, mandating a solution that requires European content be promoted in a way that is inconsistent with users’ expectations or desires may have a deleterious effect. For example, a recommendation algorithm may end up hampering the success of a title if many of the users it is being recommended to do not play it or abandon it shortly after beginning. And promoting European content in a manner that feels unnatural or forced may create a negative perception for that content as being incapable of independent success.

Therefore, the European VOD Coalition calls upon National Regulatory Authorities to be flexible, non-prescriptive and principles-based in order not to favour a certain business model over another. This is important not to discourage innovation in a sector which is still only developing and therefore enable the European VOD Coalition members to continue to experiment to find the best ways of helping their users discover new European titles.

2. What are the main challenges that providers could meet in the implementation of tools, measures or solutions aiming at securing prominence of EU works in on-demand Catalogues?

Unlike in the linear broadcasting world, consumers of video-on-demand are faced with hundreds if not thousands of choices at any given time. VOD technology has evolved to the point where personalisation is now key. Having mandated prominence methods for EU content therefore makes little sense from a business and technical perspective. Enforcing technical solutions especially, limiting what a consumer would be able to see and experience as part of his or her VOD experience (e.g. by imposing a local content section and/or algorithmic change), will inevitably result in driving consumers away. Therefore, we would see great challenges in any obligation that could be seen to override user choice. This would include required changes to recommendations or other promotional algorithms, display requirements for European content sections, or absolute or relative quotas of any kind. Similarly, we would see great challenges in conforming to oversight or reporting obligations that measured prominence in viewing or selection metrics.

One of the raison d’être of VOD is to provide consumers with greater choice in accessing content. A principle-based approach is key to avoid sub-optimal outcomes for consumers. We know that “force feeding” content that doesn’t match their tastes to consumers doesn’t work and leads to less enjoyment of the content and can lead to them cancelling their subscription.

3. What kind of tools, KPIs and methodologies do you consider the most appropriate and easy-to-use means to assess the concrete implementation of measures and solutions adopted to secure prominence of EU works in on-demand catalogues?

Any system aimed at ensuring that prominence obligations are secured should be principle- based and give each fast-evolving VOD service the possibility of making European content attractive. National Regulatory Authorities should be mindful of the administrative burden placed on companies. Such reporting measures should consider the breadth of ways in which a VOD service may comply with this obligation and therefore allow reporting consistent with the measures adopted by each individual service.

4. What kind of initiatives could be undertaken to further broaden the adoption of prominence measures (e.g. awarding mechanisms where the achievement of a certain threshold in respect of prominence could be exchanged with the mitigation of other obligations)?

The European VOD Coalition doesn’t have any concrete examples of initiatives at this stage but welcomes proactive continued dialogue with ERGA. We note that compliance with other obligations under the AVMSD, such as meeting a minimum amount of European content on a service, will have an organic impact on prominence as this content will be available in greater quantities. Compliance with other measures should provide even greater flexibility and reduced reporting requirements.