The Evolution of Film Release Windows in Europe (Part Two)

Europe’s film sector has long relied on the principles of territoriality and rigid release windows to maximize the economic potential of films. However, the unprecedented lockdowns during 2020 and 2021 have significantly disrupted these traditional models, which were already in flux after the expansion of streaming services throughout Europe.

Part Two of Screens to Streams explores digital disruptions, the EU’s capitulation to the major studios, and funding rules implemented to preserve traditional release windows.

Digital Disruption and Its Impact on Europe

Digital platforms, particularly US-based SVOD services, have disrupted traditional release windows by pushing for simultaneous global releases. This trend conflicts with the territorial and release window licensing model, which is the lifeblood of independent film distribution and finance.

However, licensing on a territory-per-territory basis has raised competition law concerns and is seen by the European Commission as an obstacle to the circulation of films throughout the European Union under a much-touted Digital Single Market.

Release windows have been challenged, particularly by US-based SVOD services, which would favor fewer obstacles to the exploitation of films online. Territoriality has been challenged by certain regulators adamant about the free flow of goods and services across member states. The European Union has tried to standardize some aspects of copyright law to tackle these issues. For instance, the Satellite and Cable Directive establishes the “country of origin” principle for satellite broadcasts, but contractual agreements frequently override this.

The principle of territoriality in copyright law implies that each country can manage copyright according to its regulations within the scope of international treaties and pertinent EU directives. Consequently, copyright rules can differ from one member state to another, and thus contradict the entire notion of a single European market.

EU Reverses Decision Favoring Studios

Over several years, the European Commission pursued cases against European and American PayTV providers. These cases argued that film licensing contracts between Paramount and Sky violated EU law, hindering cross-border competition among PayTV providers. Licensing agreements on a country-by-country basis were deemed anti-competitive and a barrier to a single market.

In January 2014, the Commission opened formal antitrust proceedings against several major US film studios and major European PayTV broadcasters. The aim was to determine if these provisions prevented broadcasters from offering their services across borders, thereby blocking potential subscribers from other member states.

In April 2016, Paramount offered commitments to address the Commission’s competition concerns, which became legally binding in July 2016. The General Court of the European Union upheld the Commission’s decision in December 2018, affirming that Paramount’s licensing contract with Sky violated EU competition law by eliminating cross-border competition. Subsequently, other studios and broadcasters, including Disney, NBCUniversal, Sony Pictures, Warner Bros., and Sky, offered similar commitments by the end of 2018, which became legally binding in March 2019.

However, in 2020, the CJEU found that the General Court had erred in assessing the proportionality of the adverse effects on third parties’ interests, particularly homegrown hero Canal Plus. This decision led the Commission to withdraw its 2019 Decision. Therefore, the licensing business would continue without pesky notions about a single market interfering with the economic interests of the world’s most prominent content creators and distributors.

Public Funding Rules Aim to Preserve Release Windows

After the European Commission sided with industry pressure from the studios, individual EU countries have enacted film support schemes and funding rules to influence release windows, which differ significantly among countries. In some nations, receiving public funding requires adherence to specific release windows, while others have more flexible guidelines.

The nature of these rules also differs; legislative and industry agreements impose fixed rules, whereas public funding rules apply only to films that receive support. For instance, Italy, Austria, and Germany have detailed public funding rules enshrined in legislation, mandating compliance with defined release windows as a condition for funding. Below is a breakdown of funding rules for Austria, Germany, Ireland, and Italy.

Austria: The Austrian Film Institute’s Funding Guidelines specify that funded films must adhere to specific release windows: six months for DVD and Blu-ray, six months for VOD and pay-per-view, 12 months for PayTV, and 18 months for free television. Exceptions are allowed under specific conditions, and strict penalties are applied for violations.

Germany: Germany’s Film Law mandates six-month windows for DVD, Blu-ray, TVOD, and pay-per-view, 12 months for PayTV and SVOD, and 18 months for free television. The 2022 update introduced more flexibility, allowing for window reductions in exceptional cases, particularly for co-productions with television broadcasters.

Uncover what streaming services in German-speaking Europe (Germany, Switzerland, and Austria) pay to license films and shows in multiple availability windows.

Ireland: Screen Ireland’s Production Funding Guidelines require a 12-month theatrical window for documentaries and a 24-month window for feature films. These requirements aim to ensure viable theatrical exploitation before other forms of distribution.

Italy: Italy’s 2018 law established a 105-day window for all platforms, with possible reductions under specific conditions. The 2022 Ministerial Decree initially reduced this to 90 days, but a court ruling reinstated the 105-day window, emphasizing the need to protect the theatrical release amid the post-pandemic recovery.

Piecemeal Regulation Replaces Digital Single Market

Despite political posturing about creating a Digital Single Market, European release windows are still shaped by a complex interplay of legislation, public funding rules, and industry agreements.

Countries like Bulgaria and France exemplify the spectrum from simple to highly detailed frameworks. As seen in Austria, Germany, and Italy, public funding conditions add another layer of complexity.

The evolution of SVOD windows reflects changing market dynamics and the influence of digital platforms. As the film and television landscape continues to evolve, so will the regulatory approaches to release windows, balancing the interests of filmmakers, distributors, and audiences with the whims of un-elected officials.

Source：Filmtake