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:
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?
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:
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%.
The focus on the quotas likely arises from the Streaming Services Reporting and Investment Scheme which was proposed in February 2022. The scheme involved:
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.
The rough timeline for the implementation of the policy and any subsequent regulations are as follows:
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:
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