One consultation down, just a couple more to go. On 30th September the consultation period on the Audiovisual Media Services (AVMS) Directive closed. This is one review that the Commission is trying to fast-track with a proposal announced for the first quarter of 2016.
The priorities in the consultation for SAA (summary here) are the promotion of European works, ensuring fair competition between OTT services wherever they are established, keeping the scope of the Directive fit for purpose and that advertising rules continue to protect the moral rights of audiovisual authors.
The section on the promotion of European works strikes us an obvious tool to achieve the Commission’s objective of improved circulation of European works, particularly online. Online is exactly where we feel the current version of the directive doesn’t do enough. Covered by Article 13 of the Directive, the current text leaves Member States free to choose how to implement it, with just a list of 3 example methods of how to promote European works given. Unfortunately the reality is that this article has been poorly implemented (or even just copied and pasted) with no monitoring systems in place. This leaves us with situations like on Netflix where you have to look for European works (or even national works) under the rubric “Foreign Films”.
Not only are these Member States missing a trick by not encouraging promotion of European works, but when combined with the country of origin principle, they are also creating unfair competition between services in markets where stricter rules apply.
SAA would like to see Article 13 strengthened across Europe and the opportunity for forum shopping limited to a minimum. If there is no desire to strengthen Article 13 among the member states then maybe the country of origin needs to be refined for OTT services so that all operators in a market play by the same rules.
Our second main point is on the scope of the Directive. Services like YouTube or Dailymotion aren’t considered as audiovisual media services. These services have ‘channels’, ‘networks’ and paid for subscriptions, they have autoplaying playlists of content for ‘lean back’ viewing. The question of editorialisation has always been key, but there can be less and less doubt that, whether by human or algorithm, these services editorialise, promote sponsored content and suggest content. These services need to be brought into the scope of the Directive and the articulation of the AVMS Directive and the eCommerce Directive improved.
Finally, on the issue of advertising, we would like to see calls for the weakening of the requirements for linear services being resisted. In contrast, the requirements for non-linear services need to be strengthened as advertising techniques develop online that can blur the line between creative works and advertising.
The Commission will now go and look through the responses it has received and we will get on with answering the other consultations on the table. The European Parliament will undoubtedly express its opinion in its report on the Digital Single Market which addresses the AVMS Directive among many other issues. The Member States are also keen to see action here so I don’t think it will be too long before we are writing about the Directive again.