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El Observatorio Audiovisual Europeo examina las diferentes estrategias para asegurar la prominencia de las obras europeas

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El último informe analiza nueve "acercamientos nacionales" diferentes en concreto, así como el papel de las autoridades de regulación locales

El Observatorio Audiovisual Europeo examina las diferentes estrategias para asegurar la prominencia de las obras europeas
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Last week, the European Audiovisual Observatory (EAO) published a new report, titled “Prominence of European works and of services of general interest.” In detail, the study explores the ways in which European legislation as well as national approaches ensure prominence and visibility for European films and series available on demand. Moreover, it discusses measures to ensure the appropriate prominence of audiovisual media services of general interest.

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Among the areas covered by the study are the legal aspects of notions of “prominence” and “findability,” the European Union’s Audiovisual Media Services Directive (AVMSD) and the Council of Europe's Convention on Transfrontier Television, the monitoring of prominence obligations and the role of national regulatory authorities, a focus and a comparative analysis on nine different “national approaches to ensuring prominence” (Belgium, Bulgaria, France, Germany, Italy, the UK, Portugal, Romania and Slovenia) also with regards “to VOD service providers and television service providers.”

The report highlights, among other things, that article 13, paragraph 1 of “AVMSD provides not only for a 30% share of European works in the catalogues of VOD service providers, but it also requires prominence for these works.” Nevertheless, these quotas or catalogue shares are interpreted in the law of the analysed countries in different ways — e.g. with an additional focus on domestic works in Portugal and Slovenia; with a stronger emphasis on productions in the language spoken in the respective country in Belgium's Flanders, or with additional rules on special attention to independent producers in Romania. 

“In Germany, examples of the content that qualifies for application of rules of prominence are laid down in the statutory law with a reference to the AVMSD provisions on ‘European works’, but details are then regulated by the competent media regulatory authorities,” states the report, adding that “similar provisions also exist in the United Kingdom and in Italy.”

Zooming in on the question of prominence of European works in the catalogues of VOD service providers, “the national rules in some cases defer for the details to the providers themselves.” In those cases, there is no guidance in place by the relevant media regulatory authorities on how to pursue such prominence or on the concept of prominence itself. Relevant examples of this kind are the UK and Portugal.

Among the various strategies to ensure prominence are “making European works available directly on a service’s homepage or main page, dedicating sections for European works,” “highlighting European works in the search function or the catalogue as such or providing the possibility to search for European works in the search tool available, campaigns, separate advertisements or recommendations,” “making available trailers and banners promoting such works, also in social network reviews and articles,” or “even highlighting such works during commercials or in subscriptions campaigns.”

In this sense, Italy's dense body of law “provides for minimum quotas as to the share of ‘visible’ European works in catalogue sections, multiplatform promotional campaigns, in recommendations and commercial communications sent to users, and also holds that EU works must be kept in the catalogue for no less than seven days unless this would infringe on licensing arrangements or other distribution rights.” Notably, Italy is the only country wherein a scoring system is in place, which assigns each measure or tool a certain score from which an overall minimum must be reached by the VOD providers. 

In terms of breach of prominence obligations, the report finds that imposed financial penalties in absolute numbers range from €250 (French-speaking Belgium) to approximately €285,000 in Great Britain, with a smaller range elsewhere of approximately €1,500 to €10,200 in Bulgaria, approximately €1,000 to €20,250 in Romania, €7,500 to €37,500 in Portugal, and €6,000 to €60,000 in Slovenia. In relative numbers, however, sanctions may range from 1% in Italy to a maximum 3% in French-speaking Belgium or 5% in the UK of a service provider’s annual turnover. Moreover, in some countries, in case of repeated offences, “penalties imposed may be significantly higher, such as twice as high as the normal sanctions in Bulgaria, or 5 % of a service provider’s annual turnover in French-speaking Belgium.”

Presently, the study shows that “there are no prominence requirements for European works with regard to linear service providers, which is in line with the Directive that in Article 13, paragraph 1 AVMSD only addresses VOD service providers with the prominence obligation.”

“The rules on quota shares for European works and independent productions follow in the member states the provisions in the AVMSD, while some add further indications about specific inclusion of domestic works. However, these rules are not supplemented by an explicit reference to a prominent featuring of the content, for example during prime time, except for France,” the report further explains.

In the document's conclusions, Professor Mark D. Cole argues that the idea of prominence is “currently enshrined” with two different meanings within the AVMSD. The first labels prominence as “a specific way of promoting European works.” Thus, “VOD providers not only have to respect a minimum share obligation for their catalogues comparable to the approach of having quotas for TV services, but they also have to ensure that these European works are given prominence.” This is due to the fact that “the existence of a high(er) number of titles due to this obligation alone does not automatically lead to higher potential consumption,” therefore “the rule is supplemented by a need to raise attention with regard to the European works.”  Said obligation for prominence was added only with the latest revision of the Directive in 2018 and member states' transposition was in many cases only completed with more or less significant delays. As a result, “the actual application of the new rule and the effectiveness of the measures chosen by VOD providers still remain to be seen.”

The second reference to prominence is of a different legal nature. “With that provision, it is merely stated that member states may, but are not ordered to, take measures to ensure that services of general interest are given appropriate prominence,” the report underscores. This “very openly formulated” provision, which does not mandate a transposition, also does not indicate which criteria should be used in order to decide whether a service is of general interest. Yet it acknowledges the member states’ power to maintain or introduce such rules regarding criteria, and delivers “the justification for introduction of such rules, namely in view of the importance of media pluralism, freedom of speech and cultural diversity.”

“The more important the intermediaries and third parties that move into a position between the end user – in the case of audiovisual media content the viewer – and the original producer of content or provider of a service, the more important rules on finding, discovering, and easily or directly being able to access services and content that has been pre-determined as being of special relevance, will become. This is especially relevant to ensure a minimum amount of comparable content reaches wide parts of society and thereby contributes to avoidance of a situation in which certain societal groups remain in their own ‘filter bubbles,’” the report sums up.

The full document is available here.  

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