6 months after the adoption of the Audiovisual Media Services Directive, the European Commission is preparing to clarify its outlines. After consulting the Contact Committee, the Commission departments suggest that titles (i.e., the number of films or seasons in a series) should be counted to check the 30% quota of European works applied to video-on-demand services.
Directive 2018/1808 aims to tackle new media such as YouTube and Netflix, introduce stricter advertising rules and support creativity in Europe through obligations to promote European works (see EUROPE 12036/7). The text leaves it to the European Commission to decide several issues, instructing it to publish interpretative guidelines (see EUROPE 12321/7).
Video-on-demand services
The first draft document concerns video-on-demand (VOD) services referred to in Article 13. The Directive stipulates that these services must now offer a share of “at least 30% of European works” in their catalogue. It also allows Member States that so wish to make services established in another Member State but targeting audiences on their territory contribute financially to the production of European works. For these two provisions, however, it provides for a derogation for suppliers with “low turnover” or “low audience”.
The draft guidelines seek to define these three concepts, namely the 30% quota, turnover and low audience:
Out of the 30% quota, the Commission services suggest that titles (rather than viewing hours) should be counted, in particular in order not to create an incentive to promote long-term works. They point out that, for a series, a title represents an entire season. However, the draft document allows national regulatory authorities to apply, on a case-by-case basis and at the specific request of a supplier, a higher weighting to take into account securities that involve higher costs for suppliers (e.g., a season to count double).
On the turnover exception, the document suggests not applying the 30% quota to microenterprises (less than €2 million turnover and fewer than 10 employees) as defined in the 2003 recommendation on micro, small and medium-sized enterprises. It also proposes to exempt micro and even small enterprises (€10 million in turnover and 50 people) operating in a Member State other than their own from the obligation to invest directly in content. However, it does not extend this derogation to the obligation to participate in a national fund.
On the audience criterion, the Commission services propose to exempt: – the 30% quota for suppliers who reach less than 1% of households connected to broadband in the Member State concerned; – of financial obligations those that reach less than 2%.
Social media services
The new directive only applies to social networks where the programmes and videos created by the user they broadcast represent an “essential functionality” of their activity (Article 1). The services covered are subject to obligations to protect minors against harmful content and all citizens against content that incites hatred, violence and terrorism.
In a draft of separate guidelines, the Commission services attempt to define the notion of essential functionality (the commercial relevance of the audiovisual content of a given service, as opposed to an ancillary element or a minor part of the overall activities). Thus, they encourage national regulatory authorities to consider four categories of criteria which, they point out, are non-exhaustive and should not be applied cumulatively. These criteria are as follows: (1) the relationship between audiovisual content and the main economic activity or activities of the service; (2) the quantitative and qualitative relevance of the audiovisual content available in the service; (3) the monetisation or revenue generation from audiovisual content; (4) the availability of tools to improve the visibility or attractiveness of audiovisual content.
In both draft guidelines, it is clarified that these working documents do not represent the Commission's position, but that they serve as a basis for discussion between the Commission services and the Contact Committee.
The documents can be consulted by clicking on the links: http://bit.ly/35hXkVd; http://bit.ly/2Mif0Ye (Original version in French by Sophie Petitjean)