Australian content quotas on the horizon for streaming platforms

Articles Written by Ravi de Fonseka (Partner), Ken Chan (Special Counsel)
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Introduction

On Monday 30 January 2023, the Commonwealth government unveiled its plans for the ‘Revive’ National Cultural Policy.  As a part of the policy’s fifth pillar, ‘Engaging the Audience’, new requirements will be proposed for streaming platforms to ensure Australian content is available as usage of streaming services continues to increase.

Streaming platforms like Netflix, Binge, Stan and Amazon Prime may soon be subject to new content quotas in a bid to increase the amount of Australian content across all viewing platforms, not just free-to-air commercial TV. As a result, these companies will likely need to purchase or commission Australian content to meet the local content quotas.

The reforms will be implemented into legislation no later than 1 July 2024, following consultations with the industry by the Minister for the Arts, Tony Burke and Minister for Communications, Michelle Rowland, throughout 2023.

Current legal context  

Currently, only free-to air commercial television stations like Channels Nine, Seven and Ten are subject to Australian content quotas under the Broadcasting Services Act 1992 (BSA).  These content quotas require them to broadcast between 6am – 12am each day:

  • 55% of Australian content on primary channels annually; and
  • 1,460 hours of Australian content on non-primary channels annually.

There is currently no legislation regulating the percentage of Australian content to be streamed on online subscription services. However, five of the streaming service providers (Amazon Prime, Disney Plus, Netflix, Paramount+ and Stan) currently report voluntarily to the Australian Communications and Media Authority (ACMA), with the reports published annually.

So what changes will the new regulations introduce?

The reforms

There is little detail on the reforms in the policy itself, though it appears to include specific requirements for Australian screen content for streaming platforms, with those requirements designed to “ensure continued access to local stories and content”. A focus in submissions has been on minimum quotas of investment into Australian content, with some Australian production companies advocating for 20% of Australian revenue as an appropriate quota.

Australian content is not defined in the policy, but will likely adopt the definition in section 10 of 2020 Australian Content standards. This requires that the program is “produced under the creative control of Australians”, which will occur when all of the following criteria are met:

  • an Australian citizen or permanent resident is a producer in the program;
  • an Australian citizen or permanent resident is a writer or director of the program;
  • Australian citizens or permanent residents comprise at least 50% of the leading actors (or up to 75% of the major supporting characters in drama programs), and
  • when the program is produced or post-produced in Australia.

Objections to the reforms

In consultations prior to the release of the policy, streaming services have expressed concerns with any regulations on Australian content.

Platforms such as Nine and Foxtel with free-to-air TV and streaming services are concerned they would be regulated twice, as they are already subject to Australian content quota rules regarding their free-to-air TV  services.

Furthermore, streaming platforms have expressed concern over the difficulty in regulating streaming services with different structures. For example, Netflix is an independent global streaming company with on-demand videos, whereas platforms such as Stan and Binge are owned by larger media companies.

To the extent policy reforms would implement the requirements as a minimum spend quota on Australian content based on Australian gross revenue, the amount of the quota will be controversial. Australian production companies are pushing for a quota of up to 20% of gross Australian revenue, whereas streaming platforms are advocating for a figure closer to 2%.

Streaming Services Reporting and Investment Scheme

The focus on the quotas likely arises from the Streaming Services Reporting and Investment Scheme which was proposed in February 2022. The scheme involved:

  • a formal reporting obligation of streaming service providers who are designated or “opt in”;
  • designation to “Tier 2” if providers either failed to meet reporting requirements or failed to maintain Australian content requirements;
  • Tier 2 providers have a mandatory investment obligation imposed (with the amount to be determined by the Minister in the designation instrument) in addition to reporting obligations.

The scheme’s contemplated Australian content requirements was an investment of 5% of gross Australian revenue into Australian content, which was considered broadly consistent with the reported investments by the large streaming services into Australian content in 2019-2022. The scheme’s reporting obligations would be managed by ACMA, who could designate reporting items, templates and guidance. The scheme proposed upfront that the reporting would at a minimum include data on expenditure and availability of Australian content, as well as measures that make that Australian content prominent and discoverable.

It is uncertain how this scheme would interact with the proposed reforms set out in the policy, though the reforms in the policy are broadly consistent with the scheme.  It would appear consolidation into one regulation would be simpler and a likely outcome after consultations by the Ministers with the industry if the scheme is legislated as proposed.

Timeline for the reforms

The rough timeline for the implementation of the policy and any subsequent regulations are as follows:

Infograph-Article-Ken-Chan.jpg

What do you need to know?

Neither the Streaming Services Reporting and Investment Scheme nor the National Cultural Policy reforms have been implemented into legislation as yet.

Industry participants may still have an opportunity to lobby the relevant Ministers with additional data about financial and technical impacts of Australian content reforms on streaming service providers, and propose additional options for ensuring the policy objectives. Otherwise, streaming platforms should:

  • understand what ‘Australian content’ means and assess the amount of Australian content currently made available 
  • assess the financial and technical impact of possible quotas ranging from 5% to 20% Australian content, based on gross Australian revenue
  • consider how this content can be obtained, including:
    • direct engagement with Australian production companies to acquire or commission local content;
    • investing into Australian facilities and resources to generate local content directly; or
    • a combination of the foregoing.
  • monitor for updates and any release drafts of proposed reforms, and engage in any consultation process for those reforms when they open.
Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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