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Digital rights still a murky area despite boffo forecast

For sellers at the American Film Market, the value of video on demand and other forms of digital content remains very much up in the air in overseas territories.

Even in the relatively robust U.K., it’s difficult to predict what the marketplace will look like a year from now. Given the growing number of new services, questions about which ones consumers will adopt and the increase in piracy, the value of digital can be hard to determine in all-rights deals — and in a market based on presales, forget about valuing advances or guarantees for digital rights.

Despite uncertainty, overall on-demand content is expected to grow considerably. A recent study from U.K.-based Digital TV Research forecasts a 44% jump in on-demand TV revenue from films and TV (excluding sports and adult programming) from $4.2 billion last year to $6 billion in 2018 in 97 countries.

Though still dwarfed by the U.S.’ projected $1.78 billion revenue, the biggest jumps by 2018 are expected to occur in Asia Pacific (up by 113% to $1.45 billion), Latin America (up by 129% to $380 million) and Eastern Europe (up by 89% to $362 million).

While the study includes VOD that viewers can access via their cable and satellite operators, it doesn’t include subscription VOD (SVOD) providers like Netflix and other online TV and video (a.k.a. over-the-top content, or OTT) services, or download services like iTunes. Digital TV Research principal analyst Simon Murray and other research outfits expect those will grow even bigger than on-demand TV revenue, buoyed in part by new delivery systems such as Xbox One and PlayStation 4.

“On demand still has a long way to go, even in Western Europe,” Murray says. “The OTT market is really undeveloped, and there’s more money to be made from Internet delivery than the traditional pay TV on-demand side.”

All this growth is both promising and disconcerting to AFM attendees eager to replace lost DVD sales revenue.

“It’s important that we producers and sellers protect our backend,” says one seller, who spoke on condition of anonymity for fear of offending buyers. “We have to look at these rights carefully and what the value is, instead of just giving away big percentages.”

Digital rights are almost always included as part of an exclusive all-rights sale to a territory, with buyers then selling them to local on-demand distribs. What used to commonly be a 70-30 seller-buyer split is now often 50-50, according to one industry expert, and on-demand sublicensing in each territory (which, depending on the ever-shifting popularity of different services, may ultimately affect the seller’s take) makes things even more complicated.

“In some territories, there may be a fight between a DVD and TV distributor over who’s going to take the digital rights, and you’ll carve up those rights,” says Independent Film & Television Alliance chairman and CineTel Films prexy Paul Hertzberg. “In a lot of the European countries, there are negotiations about who should get them, who’s sharing and how to do it, because you’re not going to keep digital by itself. And then if you sell to TV networks, they’re taking a lot of the digital rights.”

Though markets vary widely, IFTA offers an Intl. Multiple Rights Distribution Agreement template to help sellers and producers negotiate the different platforms and windows.

Windows of exploitation for VOD as well as exclusivity frequently factor in deals involving on-demand content, but figuring out the value of these rights in markets that haven’t matured can be like negotiating on quicksand.

There are many large and small potential variables: Germans are less inclined to use credit cards, notes Murray, making small VOD transactions more of a question mark. Release windows vary from country to country (France, for one, introduced a second premium TV release window a few years ago) and can change within a country: In July, pay TV operator BSkyB launched a Roku-style streaming set-top box for its online Now TV service. Since BSkyB pays top dollar to grab a film’s first pay TV window for its Sky networks, and Now TV shares this window with Sky, it suddenly could deliver movies to sets up to a year before SVOD services like LoveFilm or Netflix.

And this summer saw the introduction of a gadget that could further shake up on-demand platforms: Google’s just-released Chromecast streams digital media from computers or mobile devices to high-definition TVs via a dongle. Right now, the device is only available in the U.S. for $35, but last month it popped up for sale on Amazon U.K. While Chromecast or a similar device has the potential to leave some outlets in the dust, when combined with low-cost or free ad-sponsored OTT services like Hulu, it may offer a way for producers to reach depressed or underdeveloped markets.

For sellers and distribs looking to reach new audiences in digitally uncharted territories, “the best way to increase revenues and delivery is to lower the entry costs for consumers,” Murray says. “A good way that this can be achieved is the global launch of cheap devices such as Chromecast (or their integration into smart TV sets) that will give viewers low-cost access to OTT programming.”

For now, some sellers like Relativity looking for revenue outside all-rights deals have turned to select output pacts with Netflix, which in the past few years has launched in the U.K., Canada, Ireland, Norway, Denmark, Sweden, Finland, the Netherlands, Latin America and the Caribbean. More international launches are planned for next year.

Hanging over all of these digital opportunities is the increasing threat of piracy. Hertzberg says despite taking precautions with screeners, a perfect copy of CineTel’s “I Spit on Your Grave 2” with French subtitles appeared on many websites two weeks before the film’s French theatrical premiere.

Myriad Pictures prexy Kirk D’Amico adds that piracy of Magnolia’s U.S. day-and-date release of “Goon” a few weeks into its Canadian theatrical run cost the film millions at the box office. “We’ve found that the biggest piracy (comes) from the domestic VOD release,” he says.

Studios have adapted with theatrical day-and-date international releases of blockbusters, but how independent film sellers will navigate this issue remains an unanswered question.

On Nov.12, AFM is hosting a Video on Demand panel that will explore some of these issues, targeted to low-budget producers looking to sell their films directly to on-demand outlets.

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