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Australian Film & TV Bodies Digital Platforms Inquiry - Submission in response to the ACCC’s preliminary report (10 December 2018) Joint Submission 1 March 2019 1 About us 1 The Australian Film & TV Bodies include the Australia New Zealand Screen Association (ANZSA), the Australian Home Entertainment Distributors Association (AHEDA), the Motion Picture Distributors Association of Australia (MPDAA), the National Association of Cinema Operators-Australasia (NACO), the Australian Independent Distributors Association (AIDA) and Independent Cinemas Australia (ICA).1 They represent the widest range of film and TV interests in Australia. 2 Our aim is to support, protect and promote the safe and legal consumption of movie and TV content across all platforms, allowing creators to get compensated fairly for their work. We work together to promote this aim through education, public awareness and research programs. Our members represent a large cross-section of the film and television industry that contributed $5.8 billion to the Australian economy and supported an estimated 46,600 FTE workers in 2012-13.2 2 General Comments 3 The Australian Film & TV Bodies welcome the opportunity to provide a submission in response to the ACCC’s preliminary report in its Digital Platforms Inquiry (the Preliminary Report). 4 We note that under the Terms of Reference, this inquiry examines ‘digital platforms’ that may impact on competition in media and advertising services markets, particularly in relation to the supply of news and journalistic content. The Terms of Reference explicitly mention three types of platforms: ‘digital search engines’, ‘social media platforms’ and ‘other digital content aggregation platforms’. We note that curated, licensed digital platforms are outside the scope of this inquiry. In this submission, references to “digital platforms” adopt the meaning given in section 1.1 of the Preliminary Report, i.e. search engines, social media platforms and digital content aggregation platforms. 5 Digital platforms have come to occupy an outsized place in the online ecosystem. Over the last decade they have developed massive user bases, attracted large volumes of online activity, acquired unprecedented access to information about their users, and they have substantial market power in the markets in which they operate. They have few commercial threats, have largely opaque internal processes and enjoy remarkably low levels of regulation given their size, reach and impact. The Australian Film & TV Bodies commend the Commission for its thoughtful investigation of the digital platforms and its insightful findings and recommendations. 6 The Australian Film & TV Bodies generally support the objectives of this Inquiry, including the appropriate regulation of digital platforms, but focus this submission on the following issues: (a) Review of media regulatory frameworks (preliminary recommendation 6); (b) Copyright enforcement and proposed take down standard (preliminary recommendation 7); 1 See Appendix A for details for each of the organisations comprising the Australian Film & TV Bodies. 2 Access Economics, Economic Contribution of the Film and Television Industry (February 2015) Australian Screen Association <http://screenassociation.com.au/wp-content/uploads/2016/01/ASA_Economic_Contribution_Report.pdf> iv. page | 2 (c) Unfair contract terms (preliminary recommendation 11) and prohibition against unfair practices (area for further analysis and assessment 9); (d) Verification of advertisements on digital platforms (area for further analysis and assessment 6); and (e) Preventing the misuse of privacy as a shield against investigation of infringing activity (preliminary recommendation 8) 3 Review of media regulatory frameworks (preliminary recommendation 6) 7 The Australian Film & TV Bodies support this recommendation, both generally regarding an overall review of media regulatory frameworks in Australia, and specifically in relation to a modern uniform classification scheme. Comments directed to the copyright-specific recommendations in section 4.7 are contained in the next section (Section 4) of this submission. 3.1 Review of media regulatory frameworks generally 8 Given that the focus of the Inquiry is on news and journalistic content, sections 4.5 and 4.6 of the Preliminary Report do not consider the activities of the film and television industry in Australia, i.e. the creation of entertainment content and the distribution of that content to the public for viewing in cinemas, on television or via licensed online download and streaming services. 9 These activities are principally regulated by State and Federal Statutes, including Federal copyright law, broadcasting laws and State defamation laws, and the cooperative Federal and State content classification system. This regulatory framework was devised for a pre-digital environment and is not fit for purpose for the 21st century. The Australian Film & TV Bodies support an investigation into platform neutral framework recommended by the ACCC in the Preliminary Report and consideration of how best to calibrate the regulatory environment to set the creative content sector up for future success. 3.2 Classification scheme 10 The Australian Film & TV Bodies support the subsidiary recommendation to preliminary recommendation 6 that a nationally uniform classification scheme be created to classify content, regardless of its format or method of delivery, and where possible, consider industry self-regulation for online services for curated content, a practice adopted in many jurisdictions (e.g., Singapore and the USA). 11 As key stakeholders in this issue (with a history of working with successive Governments to make the Classification Act more responsive to previous developments in technology, including the DVD), the Australian Film & TV Bodies have consistently advocated for a technology and platform neutral classification system, in formal consultations and reviews. page | 3 12 In 2012, the Australian Law Reform Commission’s report “Classification – Content Regulation and Convergent Media” (the ALRC Report) considered the impact on the existing Australian classification system of media convergence and the volume of content now available to Australians over the internet. It made 57 recommendations for the creation of a new classification scheme applying consistent rules to media content on all platforms. 13 The Australian Film & TV Bodies support the majority of the recommendations of the ALRC Report, as being as relevant today as when the report was delivered in 2012, which included: (a) replacing the current cooperative scheme involving both Commonwealth and State and Territory regulation, and multiple regulators, with harmonised Commonwealth classification laws, managed by a single regulator; (b) platform-neutral regulation, with one set of laws establishing classification obligations across all media platforms to avoid ‘double handling’ of media content for different platforms (e.g., broadcast television, DVD, electronic sell-through, or video on demand); and (c) reducing the overall regulatory burden on media content industries by providing clarity about the scope of what must be classified in the online environment to meet community expectations, focusing on the nature of the content rather than the delivery platform. 14 Some reforms were implemented in 2014 (via the Classification (Publications, Film and Computer Games) Amendment (Classification Tools and Other Measures) Act 2014 (Cth)), including empowering the Minister to approve all classification tools. However, these reforms were made within the existing regulatory framework, and did not extend to the implementation of the ALRC’s recommendation to modernise the structure of the entire classification scheme. 15 Since 2014, automated classification tools have been developed for some industry stakeholders who have to comply with the Classifications Act (noting that free and pay TV are governed by industry codes and don't fall under the Act). The Minister recently approved the Netflix classification tool and the Games industry has been successfully using an approved authorisation tool for some time. A tool for classification of all home entertainment (online and DVD) as well as theatrical content seems the logical step forward and is supported by the sector. 16 Modernising the classification scheme as a whole remains a priority, however. The 2017-18 Classification Annual Report from the Director of the Classification Board, Margaret Anderson, indicates that classification reform is being considered. The Australian Film & TV Bodies support a review and reform process on the basis that it leads to the implementation of a modern jurisdictionally harmonised Commonwealth classification framework that enables efficient and cost-effective classification of content. 17 Such a modern classification framework would have the following features: (a) platform-neutral regulation, allowing content to be classified once across formats and platforms; (b) consistency across all Australian States and Territories; (c) a single regulator with oversight and enforcement powers, such as ACMA; page | 4 (d) use of automated classification tools for the efficient and effective classification of film and television content (Netflix has an automated classification tool that has been approved by the Minister, and the Australian Film & TV Bodies are currently piloting a tool that is expected to be ready for approval within 6 months); and (e) ratings of film trailers to be based on the actual content
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