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DSM Watch: EU Commission proposes expanded audiovisual regulation

EU mainOn 25th of May the European Commission published the draft for the amended Audiovisual Media Services Directive (AVMS Directive), which regulates broadcasting and on-demand audiovisual media services in Europe. The Commission’s draft extends the scope of audiovisual regulation to cover new online services.

Regulation of internet video channels

Currently the AVMS Directive only covers content that is comparable “to the form and content of television broadcasting” due to the definition of “programme” in the Directive. In the draft for the amended AVMS Directive this passage has been deleted while simultaneously “videos of short duration” have been added to the examples for programmes under the Directive.

This might lead to a considerable extension of the Directive’s scope. Currently the main test is whether video content is “TV-like“. The new test would expand this to cover any video content that is (i) organized in catalogues or channels, (ii) under editorial responsibility, (iii) in a service normally provided for remuneration; (iv) by a provider established inside the EU.

How these conditions will be interpreted when the Directive is implemented, remains to be seen.

‘Video-sharing platforms’

The Commission’s proposal also covers a new category of players, so-called “video-sharing platforms”. Currently video-sharing platforms are not covered by the AVMS Directive, as long as there is no so called “editorial responsibility” from the provider for the content. This is true for most video platforms where user-generated content is shared.

The proposed amended AVMS Directive introduces a new category called ‘video-sharing platform service’. Video-sharing platform service will only have to comply with measures to protect minors from harmful content and all citizens from incitement to hatred. The extent and nature of such measures would be left to co-regulation and codes of conduct.

EU quotas

Under the proposal, on-demand video services will have to make sure their platforms meet a 20% quota of European content.

To be more precise, Article 13 para. 1 of the Directive reads that “Member states shall ensure that providers of on-demand audiovisual media services (…) secure at least a 20% share of European works in their catalogue (…).” This is intended to create a “more level playing field in the promotion of European works”.

The video-on-demand services will also be required to “ensure prominence” of European works, which might lead to European content being highlighted, e.g. by being included on the respective front pages.

Financial contribution to the production of European works

The proposal would allow member states to seek financial contributions from video on-demand services in order to support the production of European works.

Interestingly the contribution can be requested by the targeted Member State, even if the service provider is not established in that Member State. If the Member State where the provider is established also imposes a financial contribution, it shall take into account the financial contributions imposed by the targeted Member States.

This proposal mixes the country of origin principle with the target country principle, which is a strong break from the single market philosophy that has applied to the AVMS Directive to date. This mix could lead to one service provider being obligated to pay financial contributions in multiple Member States with different regulatory frameworks.

We have prepared a flowchart to help you decide which on-demand video services might be affected by the EU Quota and the financial contributions obligation. You can find it here.

Our DSM Watch team will keep you apprised of further developments in this space.