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Advances in technology, in particular mobile technology, have changed the viewing habits of consumers so that many consumers expect to see content on demand and the days of traditional scheduled broadcasting are long gone. This is demonstrated by the rise in popularity of box sets and platforms such as Netflix, as exemplified by the social media storm caused by Netflix’s announcement that it had ended geo-blocking in Qatar. Mobile technology has also driven the rise in popularity of alternative sources of content such as social media sites where content is often free to view and in shorter formats than traditional broadcasting.
Quality content was sought after long before the advent of the internet, but the internet, the plethora of 24 hour television channels and increased portability of the technology to view the content has led to content being as valuable as ever. Content providers have a great deal of capacity to fill and it is extremely important that content is regularly refreshed so that content providers attract and retain viewers.
Challenges faced by content providers
The pressure on content providers to maintain good quality content that is refreshed constantly makes compliance extremely difficult. Content providers have to maintain a balance between posting or broadcasting material as it happens and ensuring that checks and balances are in place to ensure that the content complies with regulations that may be applicable in the territories where the content may be viewed. Inevitably, content providers have to take a view depending on the nature of the content and the channels in which it is to be communicated.
One of the key challenges facing content providers, whether in the form of Netflix or websites such as Yahoo, is that the laws regulating content differ from jurisdiction to jurisdiction. Content that is first released in the US which is compliant with US laws, may not be compliant with Qatari laws and content providers must consider the position under local law before releasing the content beyond their home territory. This can be a costly exercise and can be a barrier to market entry.
The territorial nature of content regulation has consequences for the major players in the market. The on-demand culture that has evolved with technology allows content providers to use convenience as a selling point for consumers. This is exemplified by services such as Netflix and Amazon Prime that allow consumers to watch content on-demand both at home and when they are travelling. The obvious extension of this convenience is to allow consumers to watch Amazon Prime and similar services anywhere in the world provided they have an account with the content provider. However, the existing commercial and legal framework does not easily permit this. First, many rights holders sell rights on a territory by territory basis and access to content while consumers are abroad may infringe the rights of the local licensee. Second, the content that is being accessed through, for example, a US account may not be compliant with the law of the country in which it is being accessed.
The challenges set out above are not exclusive to the content providers themselves. For example, ISPs will be involved in the communication of content to users. Many countries have provisions that limit ISPs’ exposure to liability where they are simply communicating content, and as part of that process, they are making temporary copies. However, if the content is defamatory or infringes a local regulation, ISPs may be liable for their role in the dissemination of the content, particularly once they become aware of any infringements. However, ISPs are in an invidious position as it is not possible for them to monitor content passing through their network, and so they have to rely on notification by third parties. Cloud and other storage providers may also play a role in the dissemination of content, particularly, where a user is accessing content whilst on the move. The cloud provider may be liable under local regulations for storing infringing copies and communicating those copies to consumers.
Social media and interactive websites bring with them further challenges. Content providers ought to be able to clear content where there has been a lead time for its release. However, social media services and websites that allow users to post their own content pose different challenges. It is impossible for a website or social media service to monitor and pre-clear every posting, but there is a significant risk that a user’s posting could be defamatory or contravene local regulations. To further complicate matters, a posting might be compliant with the law in which the user is based, but it may be accessible and infringe regulations in other territories. Often a swift take down service will bring matters such as this to a close, but serious infringements where significant damage is caused, or where local regulations attract strict liability, are likely to lead to a service being taken down altogether and may result in personal liability for officers of the companies. Under Qatari law, social media and website providers are potentially directly liable for any content that is defamatory or contravenes Qatari law.
It is unavoidable for laws to differ in some respects as laws reflect different cultures and values on a territory by territory basis, but a greater degree of harmonisation and international co-operation would assist in the development of content services that offer users true mobile accessibility and allow content providers to offer a truly international service.
Greater harmonisation would also assist content providers to protect their valuable content. It is hugely frustrating for licensees of premium content to find that moments after the beginning of a broadcast, the content is widely available online particularly in circumstances where the licensee is under an obligation to take steps to prevent third party infringement under the terms of its agreement with the ultimate rights holder. Licensees pay vast sums of money for the right to broadcast content such as key sporting events, but those rights are tainted by the risk of infringement and the cost of prevention. The speed with which the internet allows the proliferation of content is a huge advantage for content providers and advertisers, but it also allows infringers to distribute content without the rights holder’s consent at a vast scale.
It is always open to content owners to bring action against infringers, but sophisticated infringers structure their operations through a web of entities that prove difficult to track down and, once the ultimate infringer is identified, it is often the case that they are based in a jurisdiction where enforcement is challenging. This is one of the fundamental reasons why countries cannot deal with online infringement in isolation. International cooperation is required to ensure that there is a degree of consistency in the enforcement of rights against third party infringers.
There are alternative methods to prevent infringement that do not rely on court action, although they may not deter the large scale infringers. One of the greatest deterrents is to ensure that content is available legitimately in territories so the barriers to entry discussed above must be overcome to make it easier to release content.
If the challenges outlined above can be overcome, there are significant rewards for the media sector in Qatar and elsewhere. Creators will be encouraged if the exploitation of their content is easier and the risk of infringement is reduced, which will in turn benefit territories such as Qatar where the development of a home grown media sector to compete with the established players is well under way.
Dani Kabbani is the managing partner of our Doha office and specialises in corporate law. Before joining the firm, Mr Kabbani was a senior sounsel with Simmons & Simmons in Doha (2007-2012). He previously worked for Qatar Petroleum's legal department in the Projects section for seven years (2000 2007) and before that acted as manager of the legal department of Doha Bank. He has fifteen years of Doha-based experience and knowledge. Mr Kabbani has extensive experience working with government bodies and companies on a wide range of commercial and corporate matters including joint ventures and mergers and acquisitions. He also has extensive experience advising construction and oil and gas companies on project related agreements and has assisted numerous joint venture companies in their negotiations with both the public and private sector. Mr Kabbani acted as secretary to the board of directors of Oryx GTL (a Qatar Petroleum and Sasol joint venture), Gulf Drilling International (a Qatar Petroleum and Japan Drilling Company joint venture), Starlink (a Qatar Telecom affiliate) and Qatar First Investment Bank.
Challenges in the Media Content Industry
The media sector is thriving in Qatar as technological developments drive demand for content. The demand for the latest technology and the content with which to enjoy it is as evident in Qatar as it is in many other jurisdictions around the world. However, the delivery of content is not without legal or logistical challenges, which affect many stakeholders in the media sector.