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Meanwhile, France insists that 40 percent of mainstream broadcasters' content must be in French, while existing SVoD providers - incl...

Meanwhile, France insists that 40 percent of mainstream broadcasters' content must be in French, while existing SVoD providers - including Canal Plus' "Infinity" and Wild Bunch's "Filmo TV" - are currently forced to wait 36 months after a film's cinema release before they can stream that content online. These rules - the so-called "Cultural Exception" - mean that France retains a healthy film and music industry despite fierce competition from the Anglo-Saxon world. And while some commentators have said this model is outdated as ever-increasing numbers of people get their audiovisual entertainment online rather than from more traditional TV and radio media, France is nevertheless continuing to do all it can to protect its homegrown industries. As mentioned above, despite these hurdles, Netflix eventually started offering SVoD services in France, the toughest foreign market to enter as of yet, during the fourth quarter of 2014. At MIPCOM 2014, Netflix chief content officer Sarandos went on record for saying that viewer behaviour, in Germany and France, was "on par with our successful launches elsewhere in the world" and that Netflix prison dramedy 'Orange is the new black' was the most watched show on the SVoD service in all of the six new European territories. Sarandos added that the viewing mix in Europe - about 70 percent television series and 30 percent feature films - was also similar to that on Netflix services around the world. Therefore, the major threat to SVoD providers, and their more traditional video distributors, lies elsewhere. The culprits: illegal video streaming programs and providers While the illegal downloading of music has decreased compared to previous measurements (about a quarter of people who use music streaming services still download music illegally, compared to 32 percent in September 2014), 35 percent of people who use SVoD services are still downloading movies and TV series illegally. This is according to the study Trends in Digital Entertainment, from January 2015, which is conducted by GfK and appears once per quarter. Some illegal SVoD providers are alive and kicking such as Time4popcorn. They offer SVoD services to members of the public, on the internet, without having paid proper and agreed licensing royalties to the owners of the rights in the video content which is being streamed on their channels. One of these illegal SVoD providers was Aereo.com, which filed for Chapter 11 reorganization proceedings in November 2014. In June 2014, the US Federal Supreme Court handed down a decision in ABC v Aereo. Aereo, a TV-over-the-internet service, had introduced a disruptive business model, using thousands of very small antennas stored in a warehouse, to live stream broadcast signals which they had encoded into packets, directly into the home of users. It was sued by the broadcasters (originally including 21st Century Fox, CBS, NBC and ABC) for infringement of their copyright in public performance. Aereo defended its actions claiming that all it did was to provide a device to watch a programme that was already available. The Supreme Court decided in favor of the broadcasters, ruling that Aereo and its cloud-based technology was too similar to a traditional cable company to say that its service did not infringe. The failed watch-TV-on-the-Internet startup Aereo.com may come back though, since TiVo bought its trademarks, domain names and customer list at auction, for the bargain price of USD1 million in March 2015. TiVo could be looking into offering an Aereo-like service but one that is licensed by TV networks[5]. During the AIPPI Congress in September 2014, Elizabeth Valentina, Vice President Content Protection for Fox Entertainment Group, (speaking on her own behalf as Fox was still litigating the case), pointed out that Aereo's business model involved the streaming of broadcast content obtained without permission, authorisation or license, and for which service Aereo were charging their subscribers. This business model was harming that of the broadcasters and content owners, by devaluing their content, interfering with exclusive deals for content to be delivered over the internet and to mobile devices, as well as diverting eyeballs from TV advertising revenue. It was a harm clearly recognised by Judge Nathan at first instance, in the broadcasters' motion for a preliminary injunction. During the same congress, Sanna Wolk (Associate Professor at University of Uppsala, Sweden and co-chair of AIPPI's copyright committee) compared the US position with that adopted in the EU where the CJEU in March 2013 ruled that online near-live streaming by the UK Company, TV Catchup, was an unauthorised "communication to the public" within the meaning of Article 3(1) of Directive 2001/29 (InfoSoc Directive) and therefore an actionable infringement of copyright. The CJEU concluded that as TV Catchup was making the works in the original "terrestrial" TV broadcast available over the internet, and hence using different technical means to retransmit the broadcast, this retransmission was a "communication" within the meaning of the Article 3(1). Furthermore in the circumstances the court did not have to consider whether communication was to a "new public", as the new transmission required an individual and separate authorisation from the copyright owners. While full-blown litigation seems the obvious and mostly-used response to copyright infringement and counterfeiting in video streaming services, it is debatable as to whether an ardent battle against streaming video piracy is worth it. Indeed, drawing on the experience from the inconclusive fight, led by the music industry, against illegal downloads of music tracks offered by peer-to-peer websites in the early noughties, it may be worth biting the bullet and exploring non-legal avenues to this endemic and crippling infringement.

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