The European Commission (the Commission) has provided two sets of non-binding guidelines to help Member States implement the revised Audiovisual Media Services Directive (AVMS Directive) into national law. As a reminder, Member States have until 19 September 2020 to transpose the AVMS Directive into national law.
The guidelines focus on the following areas:
- European works (the focus of this article); and
- video-sharing platforms.
The European works guidelines focus on two key topics: (a) the calculation of the share of European works in the catalogues of on-demand providers; and (b) the definition of low audience and low turnover in the context of services that are exempt from complying with the quota requirements. This article will focus on the first limb of the European works guidelines.
Calculation of the Share of European Works
The AVMS Directive has reinforced the obligations to promote European content on both linear and on-demand platforms. On-demand platforms will need to ensure at least 30% of their content is deemed to be “European works” and on-demand platforms will need to ensure “prominence of those works”.
Title vs. Viewing Time
Those familiar with the AVMS Directive will know that there has been some debate as to the methodology for calculating the share of European content on on-demand services, compared to linear services where the same calculation simply requires a review of transmission time. Clearly, such methodology is not applicable to on-demand platforms, where the inclusion of content is not dependent on availability within a programming schedule and its appeal to a user is not constrained to a particular moment in time. As such, the Commission considers that due to the characteristics of on-demand services it is appropriate to calculate the share of European works based on number of titles and not on transmission (viewing) time. This, the Commission believes, will encourage the creation of creative and diverse content, rather than content that is simply long in duration (although an adverse argument could be made that the impact will be that a higher volume of poor quality content will be created, or larger quantities of catalogue acquired, to easily fulfil this criteria). One clear beneficiary of this methodology will be national authorities who will find it easier to monitor number of “titles” than viewing times. Given catalogues can change on a day-to-day basis, the Commission has said that it is the decision of each national authority to determine at what moment in time quotas are measured (i.e. over an average period or pre-determined period of time).
What is a “Title”?
The Commission has provided the following guidance on what will constitute a title:
- Films: every film (including different films in a franchise) should be understood as constituting a separate title in a catalogue.
- Television series: each season of a series (and not each individual programme) should correspond to one title.
The Commission claims that this calculation will ensure the similar treatment of television series and films, with the Commission noting that a season of a series is usually the result of a “single and continuous creative effort made by the same group of authors/audiovisual professionals”. However, it is easy to argue against this analysis. Take for example the Crown, which has four seasons and ten episodes a season (each of which in itself can be deemed as standalone and each of which have a run time of approximately one hour and involves months of filming) - it is hard to see the rationale for treating such a high-quality show as only four titles.
However, the Commission does provide some flexibility and recognition of the above, acknowledging that some productions have higher costs compared to other items in the catalogue and certain episodes (of high-end fiction) can have a similar duration and production cost to a feature film. In such cases, the Commission acknowledges that national authorities can give a higher weighting to these works.
National catalogues
Given that some on-demand providers have multiple national catalogues, which have a different composition depending on the national market they target, the Commission’s view is that the 30% quota of European works should be secured in each of the national catalogues offered by multi-country on-demand providers. This is, according to the Commission, in order to ensure that viewers in every Member State have the required exposure to European works.
Post-Brexit, will UK content be deemed to be European works?
As currently drafted, the AVMS Directive provides that works originating from parties to the European Convention on Transfrontier Television (in addition, of course, to EU Member States) will be deemed to be “European works”. Therefore, in the absence of any changes to the AVMS Directive, UK content will continue to be regarded as “European works”.
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