Legal Cut: Content rights

    Media lawyer Saarah Badr discusses the issue of content rights and windows
    Saarah Badr, media lawyer, Bird & Bird.
    Saarah Badr, media lawyer, Bird & Bird.

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    Last month, OSN announced its innovative new deal with HBO where subscribers to OSN’s HBO dedicated channel will be able to watch their favourite HBO shows “at the same minute” as fans in the United States. This deal highlights how crucial timing can be when considering the value of content rights.

    Fans are impatient: The bottom line is; fans are impatient. They want to watch shows, such as Game of Thrones and True Detective, as soon as the content is ready for air, wherever that first screening is in the world.

    Further, providing regional access to legitimate content as soon as it is first aired should provide less incentive for regional viewers to turn to content pirates, who illegally copy and upload these popular shows once the content has become public.

    It’s a windows game: In relation to new content (whether that is the latest series of The Good Wife or the new Fast 7), often the aim of the game for broadcasters and online subscription services alike is to secure exclusive rights to content as early as possible. This results in platforms bidding for ‘first and exclusive’ deals where they can exhibit content before their regional competitors.

    The availability of content is usually governed by a series of “rights windows” where licencees (such as broadcasters and online subscription services) can buy rights to show the content on their platform during certain periods of time. These windows differ between films (discussed below) and television shows.

    Lights, camera, action: First up for film releases is the “theatrical” window, where, traditionally, a film is shown in the cinema. Studios tend to be protective of selling rights to other platforms in the first few months after cinema release in order to lessen the risk of increased availability of the film impacting its Box Office figures. However, times are changing, and some content may be available to buy in digital format during this period.

    The situation is slightly different in Saudi Arabia, where there are no cinemas and therefore no concept of “theatrical release”. Regional premium content broadcasters that aspire to satisfy their Saudi subscribers’ need for cinema content may enter into deals to broadcast films (such as Taken 3) which are still on cinema release elsewhere in the world.

    DVD…or EST? The traditional “DVD window” is now adapting to the digital landscape by studios offering electronic sell-through (EST) rights in relation to many new titles. This means that the movie is available for download on a range of digital platforms, such as iTunes, Amazon and local EST services, sometimes even a few weeks before DVD release (usually around 5 to 12 months after cinema release).

    Next up is the “pay per view” or “TVOD” (transactional video on demand) window where the movie can be rented through a single transaction, such as through du’s on demand service or the OSN Store.

    Pay…and more pay? Around 12 months after theatrical release, we move onto the pay windows, where studios sell the rights to screen the film on a subscription service such as a pay-TV broadcaster or subscription video-on demand (SVOD) service. The difference between SVOD and TVOD services is that SVOD requires a subscription to the service itself, whereas a TVOD user consumes content on a pay-per-view basis.

    Interestingly, studios are now creating a further “second pay” window, where they can squeeze a little more out of the value of the content by offering it to video on demand (VOD) services prior to releasing it into the free to air (FTA) wild. This “second pay” window allows consumers to watch content in an alternative, “on demand” digital format, through regional platforms such as StarzPlay or OSN’s Go Online TV.

    And finally… Around two years after theatrical release, the content arrives on regular FTA television channels for the audience’s free viewing pleasure.

    With the introduction of new platforms and the emphasis on digital content, there has been an evolution of the methods (and windows) used to commercialise content which ultimately mean that we don’t need to wait as long to watch the new releases!

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