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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.
Following a meeting between European Commission Vice President, Andrus Ansip, and SAA patrons Bertrand Tavernier, Roger Michell and Hugh Stoddart (see here) on 22nd June, SAA patron Bertrand Tavernier wrote to the Vice President to follow up on some important issues discussed at the meeting, such as film authors’ rights, territoriality and distribution, film heritage. You can read his letter below followed by additional comments from German screenwriter and SAA patron, Jochen Greve, and Franco-swiss director, screenwriter and Europa Distribution president of honour, Ursula Meier, Romanian director and screenwriter, Cristian Mungiu and German director and screenwriter, Volker Schlöndorff.
Jochen Greve, German screenwriter and SAA patron
This is not just a cinema issue. In Germany, each feature-movie or documentary-movie is shot as a co-production and with a big part of television money, and this has been the case for forty years. For a bigger online-market you need licences, and each licence starts with the authors. We have to sell it to the producers or broadcasters or platforms. I am very afraid that a shift to pan-European licences, even if not deliberate, will be a big problem in a bigger online-market for us authors and the remuneration of our works.
Ursula Meier, Franco-swiss director, screenwriter and president of honour of Europa Distribution
I am Swiss, French, live in Brussels and deeply feel as an European film maker. Europe is a mosaic of cultures and this is what makes its great richness and (its) identity. It should never be standardised, but unified. The creation of a Digital Single Market in Europe would have terrible consequences, both on the economic and artistic point of views, for European cinema and its diversity.
It is absolutely essential to protect copyright and all the stakeholders of the value chain who make the existence of a film possible, including thanks to the exclusivity of rights. Local distributors for example make a film exists on their territory, give it visibility, because they believe in it, because they have bought the rights to do it. If they lose their ability to recoup the investment they made when buying the film, it is the end of it.
There are ideas and solutions to be found so that the films of today and yesterday circulate better within Europe, but most importantly and above all, let us not destroy what is functioning.
Cristian Mungiu, Romanian director and screenwriter
It’s a very clear message and I absolutely agree. Excuse me for not being able to bring any additional contribution –I’m in the middle of the shooting a film.
Still, I don’t think there is much to add – the issue is how to determine these people to listen to the community of filmmakers.
Volker Schlöndorff, German director and screenwriter
Dear All, cher Bertrand,
thanks for your incessant efforts, thank you Bertrand for your elegant letter. All this proves that the education of politicians and bureaucrats on this subject is still a huge task ahead of a Sisyphus task indeed.
Culture portfolio is losing departments as well as prestige and importance.
The current Commission made a lot of effort to impose a coordinated approach to the cultural and creative industries through the merger of the Culture and Media programmes into “Creative Europe”, forcing traditional cultural sectors such as dance, theaters and classical music to live under the same roof as audiovisual creators and accept that the audiovisual sector is cultural too. This was advertised as a great achievement by the existing Commission, after years of separate programmes and activities.
The proposed re-organisation of the next Commission takes us back to the previous arrangements when Mrs Reding was Commissioner for the Information Society and Media (2005-09), with the Media programme and audiovisual policy (the Audiovisual Media Services Directive) in DG Information Society and Media (since renamed CNECT), fully separate from any cultural dimension.
This will shift audiovisual away from culture again, both in practice and in terms of the logic it represents. Between a cultural and digital approach, the latter was chosen and this will have consequences for the audiovisual sector, in particular in copyright terms. The cultural dimension of many copyright issues might be diluted. It will also break the coordinated approach to the cultural and creative industries.
The move is not only questionable for the interests of the audiovisual sector, but it is also a bad signal for the prestige of the cultural portfolio. Taking into account the limited power of the EU in culture, we have been used to smaller countries such as Luxembourg, Slovakia or Cyprus managing the portfolio. This shows that it is not a coveted portfolio by the biggest and most influential countries.
Today a step further has been made to devalue the portfolio: it has been attributed to a politician who was part of a government who conducted policies that run contrary to freedom of expression, media pluralism and cultural diversity. The European Parliament will surely give him a rough ride next week at his hearing, but it is unlikely that it will oppose his nomination as any other Hungarian candidate would come from the same government…