The recent announcement that Warner Bros. has decided to release films on DVD and Video-on-Demand on the same day has only served to further transform the traditional scheme of release windows. The old release chronology of cinema – video – TV no longer holds true in a world of new technologies and audiovisual media services. In this context of changing practices, the European Audiovisual Observatory has chosen to focus on the Media Windows in Flux in its latest report in order to analyse the current and future challenges for audiovisual media chronology raised by the changing technological landscape.

The author, Martin Kuhr from the Saarbrücken-based Institute of European Media Law, opens the report with a useful historical overview of European Legal frameworks concerning Media Windows. A brief history of the Council of Europe’s European Convention in Transfrontier Television and the EC’s “Television without Frontiers” Directive is followed by a look at the current provisions contained in the new Audiovisual Media Services Directive. Kuhr points out that “the development of the media windows in the EC Directive clearly shows that a high level of importance has always been attached to freedom of contract. This can be explained not least by the context of a common internal market and the principles of free movement of goods and services”.

Kuhr also looks at three other European legal texts of relevance to the windows question. The European Commission’s Communication on the Film Industry of 2001 gave clear priority to contractual agreements between the various parties as the main method of determining the chronology of the release of an audiovisual work. This approach has the advantage that “the rights could then be exercised flexibly in the different phases of media chronology”. This tendency was further reinforced by the signature of the European Charter for the Development and the Take-up of Film Online in May 2006. This text, signed by all groups involved in the online film market, again stipulated that “media windows should be determined by the parties”. More recently, the Commission issued its Communication on creative Content Online in the Single Market. Kuhr predicts that this document “will look more closely at […] the promotion of innovative licensing regulations in the field of audiovisual works”.

The report then moves on to deal with national rules on media windows, providing a country by country overview of the main markets and the legislative situation concerning windows. Kuhr states that the majority of countries do not have legislation on media windows, despite the fact that current European legislation does give them the freedom to apply stricter provisions to programme services broadcast within their jurisdiction. He moves onto examine countries such as France, Germany, Austria and Portugal which do apply certain legal texts to the question of media windows. However, other major markets such as the UK, Italy and Spain have either never had legislation on this subject or, as in the case of Italy, have dispensed with such legislation. Kuhr concludes that there is “a clear trend at national level for the subject of media windows to be dealt with by the parties involved.”

Clearly, the aspect of competition law can not be overlooked when analysing the media windows question. Kuhr provides a lucid analysis of what may happen when a party holding the rights to exploit a film may fall foul of competition law, even though it does not go beyond its theoretical rights. This is very relevant as EC secondary legislation gives clear precedence to freedom of contract where the regulation of media windows is concerned.

Kuhr concludes that “there are very few legislative provisions […] defining media windows. It may even be argued that such provisions cannot be justified at all, in view of the freedoms of the single market”. Traditional time frames are becoming shorter and shorter and agreements between rights holders and the various channels of distribution have almost completely replaced legal provisions. Ending on a positive note, the author does not believe that this signifies a surrender of culture to commerce, but rather that rights holders are now able to determine, “in consultation with the exploiting parties – how maximum profit can be generated from their rights.”

To get the report, click here