AVMSD - Promotion and Distribution
Promotion and Distribution
Introduction
One objective of the Audiovisual Media Services Directive is to create a level playing field by establishing a common legal framework for the free movement of audiovisual media services.
To this end, it coordinates certain laws, regulations and administrative provisions of the Member States aimed at ensuring that certain important general interest objectives are achieved, such as the promotion of cultural diversity by promoting the European audiovisual industry.
The European audiovisual industry suffers from a trade deficit with the US industry of 6 to 7 billion Euros every year. One way of promoting European productions is the support delivered by the MEDIA programmes; another instrument are the measures of promotion of distribution and production of European and independent audiovisual productions as set out in Articles 13, 16 and 17 of the Audiovisual Media Services Directive.
The overall goal is to strengthen the competitiveness of the European audiovisual industry and, by doing so, to promote cultural diversity and heritage in Europe.
Definition
of European works - Article 1(1)(n)
Article 1(1)(n) of the “Audiovisual Media Services” Directive provides a legal definition of “European works”.
This definition ensures that European works are only audiovisual productions which are
- works originating in Member States;
- works originating in European third States party to the European Convention on Transfrontier Television of the Council of Europe and fulfilling the three conditions detailed in paragraph 3;
- works co-produced within the framework of agreements concluded between the EU and third countries and fulfilling the conditions defined in those agreements.
Article 1(4) spells out that productions which are not "European works" but are made in the framework of bilateral co-production agreements concluded between Member States and third countries will be treated as European works provided that the Union co-producers supply a majority share of the production costs and the production is not controlled by the producer from the third country.
Measures
to promote European programmes (Articles 13 and 16)
Article 13 of the Directive provides that on-demand audiovisual media services will promote the production of and access to European works. Such promotion could be carried out, amongst others, through financial contributions to the production and rights acquisition of European works or by ensuring a share and/or prominence of European works in the catalogue of programmes.
Article 16 of the Directive requires broadcasters to reserve a majority proportion of their transmission time, excluding the time appointed to news, sports events, games, advertising, teletext services and teleshopping, for European works.
Independent
productions (Article 17)
Article 17 requires broadcasters to reserve a minimum proportion (at least 10%) of their transmission time, excluding the time appointed to news, sports events, games, advertising, teletext services and teleshopping, for European works created by independent producers. Alternatively, Member States may require broadcasters to allocate at least 10% of their programme budget to independent productions. An adequate proportion of works by independent producers should be recent, i.e. less than five years old.
Some flexibility is allowed for the implementation of Articles 13, 16 and 17 since Member States must ensure the promotion of European and independent works "where practicable".
Application
of Articles 13, 16 and 17
Article 13 sets out an obligation for the Member States to report to the Commission for the first time, on 19 December 2011 at the latest and every four years thereafter, on the implementation of the provisions concerning European works in on-demand services.
For broadcasting services, the Commission has to report every two years on the application of the provisions concerning European works and independent productions on the basis of statistical data provided by the Member States (Articles 16 and 17). (Read more).
The "Revised
Guidelines for Monitoring the Application of Articles 16 and 17 of the
Audiovisual Media Services (AVMS) Directive" of July 2011 are intended to
help Member States with the monitoring of the implementation of Articles 16 and
17.
- Annex
Article 1
1. (n) “European works” means the following:
(i) works originating in Member States;
(ii) works originating in European third States party to the European Convention
on Transfrontier Television of the Council of Europe and fulfilling the
conditions of paragraph 3;
(iii) works co-produced within the framework of agreements related to the
audiovisual sector concluded between the Community and third countries and
fulfilling the conditions defined in each of those agreements.
2. The application of the provisions of paragraph 1 (n) (ii) and (iii) shall be
conditional on works originating in Member States not being the subject of
discriminatory measures in the third country concerned.
3. The works referred to in paragraph 1 (n) (i) and (ii) are works mainly made
with authors and workers residing in one or more of the States referred to in
paragraph 1 (n) (i) and (ii) provided that they comply with one of the following
three conditions:
(i) they are made by one or more producers established in one or more of those
States;
(ii) the production of the works is supervised and actually controlled by one or
more producers established in one or more of those States;
(iii) the contribution of co-producers of those States to the total
co-production costs is preponderant and the co-production is not controlled by
one or more producers established outside those States.
4. Works that are not European works within the meaning of paragraph 1 (n) or
paragraph 2 but that are produced within the framework of bilateral
co-production treaties concluded between Member States and third countries shall
be deemed to be European works provided that the co-producers from the Community
supply a majority share of the total cost of production and that the production
is not controlled by one or more producers established outside the territory of
the Member States.
Article 13
1. Member States shall ensure that on-demand audiovisual media services provided
by media service providers under their jurisdiction promote, where practicable
and by appropriate means, the production of and access to European works. Such
promotion could relate, inter alia, to the financial contribution made by such
services to the production and rights acquisition of European works or to the
share and/or prominence of European works in the
catalogue of programmes offered by the on-demand audiovisual media service.
2. Member States shall report to the Commission no later than 19 December 2011
and every four years thereafter on the implementation of paragraph 1.
3. The Commission shall, on the basis of the information provided by Member
States and of an independent study, report to the European Parliament and to the
Council on the application of paragraph 1, taking into account the market and
technological developments and the objective of cultural diversity.
Article 16
1. Member States shall ensure, where practicable and by appropriate means, that
broadcasters reserve for European works a majority proportion of their
transmission time, excluding the time appointed to news, sports events, games,
advertising , teletext services and teleshopping. This proportion, having regard
to the broadcaster's informational, educational, cultural and entertainment
responsibilities to its viewing public, should be achieved progressively, on the
basis of suitable criteria.
2. Where the proportion laid down in paragraph 1 cannot be attained, it must not
be lower than the average for 1988 in the Member State concerned.
However, in respect of the Hellenic Republic and the Portuguese Republic, the
year 1988 shall be replaced by the year 1990.
3. Member States shall provide the Commission every two years , starting from 3
October 1991, with a report on the application of this Article and Article 17.
That report shall in particular include a statistical statement on the
achievement of the proportion referred to in this Article and Article 17 for
each of the television programmes falling within the jurisdiction of the Member
State concerned, the reasons, in each case, for the failure to attain that
proportion and the measures adopted or envisaged in order to achieve it.
The Commission shall inform the other Member States and the European Parliament
of the reports, which shall be accompanied, where appropriate, by an opinion.
The Commission shall ensure the application of this Article and Article 17 in
accordance with the provisions of the Treaty. The Commission may take account in
its opinion, in particular, of progress achieved in relation to previous years,
the share of first broadcast works in the programming, the particular
circumstances of new television broadcasters and the specific situation of
countries with a low audiovisual production capacity or restricted language
area.
Article 17
Member States shall ensure, where practicable and by appropriate means, that
broadcasters reserve at least 10 % of their transmission time, excluding the
time appointed to news, sports events, games, advertising, teletext services and
teleshopping, or alternately, at the discretion of the Member State, at least 10
% of their programming budget, for European works created by producers who are
independent of broadcasters. This proportion, having regard to broadcasters'
informational, educational, cultural and entertainment responsibilities to its
viewing public, should be achieved progressively, on the basis of suitable
criteria; it must be achieved by earmarking an adequate proportion for recent
works, that is to say works transmitted within five years of their production