The program for this year’s Cannes festival announced on 12 April at an official press conference is the subject of heated discussion. The controversy concerns not so much what it contains, as what has not been included. Netflix withdrew the entries of its film productions due to the regulations applicable in France pertaining to the distribution of a cinematographic work.
Regulation concerning distribution chronology
The procedure of distribution of a cinematographic work is governed by a 1997 regulation which applies to all films having their theatrical release in French cinemas. The zero point in relation to which all other dates are set is the date of the theatrical release, and the order of distribution is as follows: four months from the date the film enters the movie theatres it starts to be sold and rented on DVD and VOD with a fee for each hire of the work, which means that it works similarly to a traditional video rental. This distinction is of key importance because a film may be hired on VOD subscription only after 36 months. Earlier, after 10 months or a year depending on the agreement signed with the film organization, the film may be showed on paid television (HBO, Cinemax etc.), after 22 months on television which co-produced the film and after 30 months on television.
The Regulation and the Cannes Festival
The Regulation applies to films participating in the competition of the International Film Festival in Cannes. After last year, when two of Netflix’s competition films were not shown in French cinemas, Thierry Frémaux, the artistic director of the Cannes Festival, invoked the rule whereby all competition films must be available for cinema distribution in France. The bone of contention is the three year waiting period from theatrical release to distribution of the film through VOD subscription. Netflix refused to show the film in French cinemas considering this to be too long. According to Netflix’s commercial model a film becomes available through VOD subscription simultaneously with its theatrical release, so the restriction violates its interests. The result of Netflix’s position was that its production was not accepted for the competition of this year’s edition of the festival, as a result of which Netflix withdrew all its films from the Cannes presentations.
Approach to a cinematographic work
The dispute between Netflix and the Cannes festival put into question the French regulation which has no equivalent in other countries. Representatives of the International Film Festival in Cannes defend the regulation arguing that it protects film art because theatrical releases are the most prestigious way of presenting a film by its authors. However, there are allegations the French regulation promotes piracy because as a result of the fact that no legal copies of a film are available in the web audiences use illegal copies, which appear much earlier.
It is worth noting copyright regulations are different in the United States and in Europe. According to the European approach a film is the effect of a creative process which gives the work a unique character while copyright protects the personal bond between the author and the work. On the other hand in the United States the law sees a film as a product and the work for hire doctrine means the author is the party which contracted the production, namely the film studio. This regulation means that emphasis is placed on the profits the film makes.
Although neither of the parties rule out possible dialogue, it seems the respective positions are not subject to negotiation. Leaving aside the exceptional nature of the discussed regulation, the rationale for the three year period required by the French regulation before allowing VOD distribution seems doubtful. It is a very severe restriction considering that only a year’s quarantine is required for television film channels, and even this may be shortened. The argument that it protects cinematographic culture is difficult to justify. At present increasing numbers of viewers decide to buy subscriptions to Netflix or other streaming services instead of television or movie channels, which is being recognized by traditional suppliers such as HBO, which created HBO Go. The shape the market is taking seems to require a unification of these two time periods.
On the other hand Netflix’s commercial model undermines the principles of traditional cinema distribution. The policy of the same distribution date of Neflix’s films in terms of subscription and theatrical release means most cinemas will find it unprofitable to show its films. Movie theatres receive only a minor share of ticket sales revenues, while production costs are recovered only at later stages of film distribution. Netflix’s extreme approach is not shared by other producers and VOD service providers such as Amazon, which makes it productions available on subscription several months after their theatrical release.
The issue of appropriate regulations in view of the challenges posed by new forms of distribution, which would protect the status quo of a film as a cinematographic work, remains open.
The authoress is a law graduate of Jagiellonian University and holds an M.A. of the University of Orleans.