Television without frontiers – amendments of 1997, 2007 Audiovisual Media Services

1. Television without frontiers – amendments of 1997, 2007 Audiovisual Media Services Lecture 5 - “European Media Policy” 1

2. Council Directive (89/552/EEC) of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities • in brief • “Television without Frontiers” Directive • the EU directives - “the secondary legislation of the EU” – • the EU directives - the tool for harmonizing of national legislation with the EU legislation, for creating a single legal framework • The aim of the Directive: • the establishment of a single market for television of cable and satellite broadcasting • This implies: • Firstly: Television broadcasts must be allowed to be received and re-transmitted freely in all the EU member states - all restriction must be abolished. • Secondly: Coordination of the different national broadcasting laws has to implemented. • (setting of basic standards necessary for the protection of the different interest in cause - e.g. advertising, sponsorship, protection of minors, human rights etc.) 2

3. The TWF Directive lays down minimum standards that, if met by any television program, allow it to freely circulate within the EU without restriction, provided that it complies with the legislation of the country of origin. (e.g. television advertising and sponsorship, protection of minors, right of reply The TWF Directive also lays down two policies promoting the European audiovisual production. First, the Directive requires Member States to ensure "where practicable" and by "appropriate means" that broadcasters reserve for "European works" a majority of their transmission time, exclusive of news, sports events, games, advertising, and teletext services. The second quota, designed to stimulate the production of European drama work, requires broadcasters to reserve 10% or more of their transmission time (as above) or alternatively, 10% of their programming budget, for European works created by independent producers. 3

4. The elements of the TWF Directive: (setting of standards) - basic definitions - criteria of the jurisdiction - ensuring freedom of reception - standards of advertising, sponsorship and teleshopping - right of reply - protection of minors and public order (promotion of distribution and production of TV broadcasts) - “a majority proportion” of European works - “ten percent quota” for works of European independent producers - free reception of events of major importance for society (added in 1997) 4

5. The 1989 Television without Frontiers Directive wasrevised in the 90s, in order to ensuregreater legal certainty and to update its provisions in view of market developments. Directive 89/552/CEE was amended by European Parliament and Council on 30 June 1997 (97/36/CE) The basic provisions remained the same, however some new elements were included - more exact criteria of the jurisdiction - better definition of European works - free reception of events of major importance for society 5

6. more precise criteria of the jurisdiction • A broadcaster shall be deemed to be established in a Member State if the following cases: • - the broadcaster has its head office in that Member State andthe editorial decisions about programme schedules are taken inthat Member State; • - if a broadcaster has its head office in one country but editorial decisions are taken in another country, then the jurisdiction is in the country where a significant part of the workforce operates • - if a significant part of the workforce operates in each of those countries, then decides where the broadcaster has its head office. • - if any above mentioned criteria are not applicable, then for the jurisdiction is crucial, that broadcasters • - use a frequency granted by that Member State; or • - use a satellite capacity appertaining to that Member State; or • - use a satellite up-link situated in that Member State. 6

7. - betterdefinitionofEuropeanworks 1. ‘European works' means thefollowing:works originating from EU Member Statesandstates party to the EuropeanConventiononTransfrontier Television of the Council of Europeand fulfilling the conditions of paragraph 2; works originating from other European third countries and fulfillingthe conditions of paragraph 3. 2. The works referred to in paragraph 1 (a) and (b) are works mainlymade with authors and workers residing in one or more States referredto in paragraph 1 (a) and (b) provided that they comply with one of thefollowing three conditions: (a) they are made by one or more producers established in one or moreof those States; or (b) production of the works is supervised and actually controlled byone or more producers established in one or more of those States; or (c) the contribution of co-producers of those States to the totalcoproductioncosts is preponderant and the co-production is notcontrolled by one or more producers established outside thoseStates. 3. The works referred to in paragraph 1 (c) are works made exclusivelyor in co-production with producers established in one or moreMember States by producers established in one or more European thirdcountries with which the Community has concluded agreements relatingto the audiovisualsector, if those works are mainly made with authorsand workers residing in one or more European States. 4. Works that are not European works within the meaning of paragraph1 but that are produced within the framework of bilateral coproductiontreaties concluded between Member States and third countriesshall be deemed to be European works provided that theCommunity co-producers supply a majority share of the total cost of theproduction and that the production is not controlled by one or moreproducers established outside the territory of the Member States. 7

8. - free reception of events of major importance for society Each Member State has may take measures to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basisevents which are regarded by that Member State as being of majorimportance for society in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events via live coverage or deferred coverage on free television. If it does so, the Member State concerned shall draw up a list of designated events, national or non-national, which it considers to be of major importance for society. Member States shall immediately inform the Commission....appropriated measures shall be taken etc. 8

9. UK Listed Sporting Events (events of major importance for the society) GROUP B Cricket Test Matches played in England Non-Finals play in the Wimbledon Tournament All Other Matches in the Rugby World Cup Finals Tournament * Six Nations Rugby Tournament Matches Involving Home Countries** The Commonwealth Games * The World Athletics Championship * The Cricket World Cup . the Final, Semi-finals and Matches Involving Home Nations. Teams * The Ryder Cup * The Open Golf Championship * GROUP A The Olympic Games The FIFA World Cup Finals Tournament The FA Cup Final The Scottish FA Cup Final (in Scotland) The Grand National The Derby The Wimbledon Tennis Finals The European Football Championship Finals Tournament The Rugby League Challenge Cup Final * The Rugby World Cup Final * 9

10. Czech Listed Sporting Events (events of major importance for the society) The Olympic Games (Summer/Winter) The FIFA World Cup (soccer) - all matches played by the Czech team - Semi-finals and Final The European Football Championship (soccer) - all matches played by the Czech team - Semi-finals and Final Hockey World Championship - all matches played by the Czech team - Semi-finals and Final Track-and-Field World Championship 10

12. FIFA against EU

13. The 1989 Television without Frontiers Directive (89/552/CEE) was revised in 1997 (97/36/CE), in order to ensure greater legal certainty and to update its provisions in view of market developments. However, it has clearly appeared in the meantime that the 1997 Directive has been overtaken by technological and market developments and has to some extent become outdated. Since the adoption of the Directive in 1989 , the audiovisual landscape has changed substantially, in respect of the technologies used, the number of operators and the business models. Fundamental changes have modified how viewers have access to the audiovisual content and in particular the “push” vs. “pull” balance between broadcasters and viewers. The Directive provides for minimum harmonization ofnational legislations applying to television broadcasting services in order to serve two primary and interconnected objectives: (1) Facilitating the free movement of television broadcasting services within the EU internal market through the application of the country of origin principle; (2) Ensuring the protection of fundamental public interest objectives, through minimum harmonization of existing regulations. In addition it contributes to the fulfillment of wider complementary cultural, social, and economic aims(audiovisual policy) while contributing to the protection of fundamental human rights and pluralism.

14. December 2005 - European Commission (after two-years debate) published a proposal for amendments in the Directive - the highlights: - a level playing field for all companies that offer TV-like services, (e.g. broadcast, high-speed broadband, third generation mobiles). - disparate national rules on protection of minors, against incitement to racial hatred and against surreptitious advertising shall be replaced with a basic, EU-wide minimum standard of protection - the proposal distinguishes between “linear” services (e.g. scheduled broadcasting via traditional TV, the internet, or mobile phones, which “pushes” content to viewers), and “non-linear” ones, such as on-demand films or news, which the viewer “pulls” from a network. - today’s TV broadcasting rules would apply to linear services in a modernized, more flexible form, whereas non-linear ones would be subject only to a basic set of minimum principles 14

15. the highlights - continuation - more flexible advertising rules: instead of detailed prescriptions on how often and under which conditions programmes may be interrupted by advertising, the modernised Directive would simplify the existing EU rules. (However, the quantity of advertising would maintain the existing 12 minutes per hour ceiling). - the support for new forms of advertising, such as split-screen, virtual and interactive advertising. - product placement would, for the first time, be explicitly defined and provided with a clear legal framework. Except in news, current affairs and children’s programmes, clearly identified product placement would be permitted in Europe, both in linear and non-linear audiovisual services. - to prevent surreptitious advertising, consumers would be informed at the start of a programme that product placement is in use. - these new rules should provide additional funding for European productions and thus enhance the competitiveness of Europe’s audiovisual sector. 15

16. Three documents: Directive 89/552/EEC Directive 97/36/EC - text of amendments Directive 2007/65/EC - text of amendments Each of them has a different recital (preamble) which serves as an interpretation tool for application of particular articles. After passing the Directives, the consolidation version of articles has been published - but NOT with all the recitals. To make the final text more clear, the codified version was adopted in March 2010, which includes all the recitals (108) with explanation and review of all versions of the documents. The text of the Directive is consolidated (all amendments are included, only the article in force are quoted). 16

17. New definitions (a) ‘audiovisual media service’ means: - a service as defined by Articles 49 and 50 of the Treaty which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes in order to inform, entertain or educate, to the general public by electronic communications networks within the meaning of Article 2(a) of Directive 2002/21/EC of the European Parliament and of the Council. Such audiovisual media services are either television broadcasts as defined in paragraph (c) of this Article or on-demand services as defined in paragraph (e) of this Article. and/or - audiovisual commercial communication. (c)‘television broadcasting’ or ‘television broadcast’ (i.e. a linear audiovisual media service) means an audiovisual media service provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule; (e)'on-demand service' (i.e. a non-linear audiovisual media service) means an audiovisual media service provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his/her individual request on the basis of a catalogue of programmes selected by the media service provider; 17

18. New definitions (f) ‘audiovisual commercial communication’ means images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal entity pursuing an economic activity. Such images accompany or are included in a programme in return for payment or for similar consideration or for self-promotional purposes. Forms of audiovisual commercial communication include, inter alia, television advertising, sponsorship, teleshopping and product placement. (g) ‘television advertising' means any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations, in return for payment; (i) ‘sponsorship' means any contribution made by a public or private undertaking or natural person not engaged in providing audiovisual media services or in the production of audiovisual works, to the financing of audiovisual media services or programmes with a view to promoting its name, its trade mark, its image, its activities or its products; (j) ‘teleshopping' means direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, rights and obligations, in return for payment; (k) ‘product placement’ means any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within a programme, in return for payment or for similar consideration. 18

19. SUMMARY: • Directive EU about transfrontier television (later also AV media services) • adopted 1989 – TWF Directive • amended 1997 – TWF Directive • amended 2007 – AVMS Directive • Howere some elements remained to be the same in all documents - see the review: • The elements of the TWF Directive: • (setting of standards) • - basic definitions – (extended by AVMS to on demand and on line services) • - criteria of the jurisdiction • - ensuring freedom of reception • - standards of advertising, sponsorship and teleshopping (AVMS made only small adjustments) • - right of reply • - protection of minors and public order • (promotion of distribution and production of TV broadcasts) • - “a majority proportion” of European works (extended by AMVS also to on-demand services) • - “ten percent quota” for works of European independent producers • free reception of events of major importance for society (added in 1997, refined by AVMS provision about short reporting) • Next workshop – the standard setting made by the Directive – looking forward to the paper and PPT next week

20. (13) The definition of audiovisual media services covers only audiovisual media services, whether scheduled or on-demand, which are mass media, that is, which are intended for reception by, and which could have a clear impact on, a significant proportion of the general public. The scope is limited to services as defined by the Treaty and therefore covers any form of economic activity, including that of public service enterprises, but does not cover activities which are primarily non-economic and which are not in competition with television broadcasting, such as private websites and services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange within communities of interest. (13a) It is characteristic of on-demand services that they are "television-like", i.e. that they compete for the same audience as television broadcasts and the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of this Directive. On this basis in order to prevent disparities as regards free movement and competition, the notion of programme should be interpreted in a dynamic way taking into account developments in television broadcasting. (14) The definition of audiovisual media services covers mass media in their function to inform, entertain and educate the general public, and includes audiovisual commercial communication but excludes any form of private correspondence, such as e-mails sent to a limited number of recipients. The definition also excludes all services whose principal purpose is not the provision of programmes, i.e. where any audiovisual content is merely incidental to the service and not its principal purpose. Examples include websites that contain audiovisual elements only in an ancillary manner; such as animated graphical elements, small advertising spots or information related to a product or non-audiovisual service. For these reasons, also excluded from the scope of the Directive are games of chance involving a stake representing a sum of money, including lotteries, betting and other forms of gambling services, as well as on-line games and search engines, but not broadcasts devoted to gambling or games of chance. 20

21. The(14b) Television broadcasting services, i.e. linear services, currently include in particular analogue and digital television, live streaming, webcasting and near-video-on-demand, whereas video-on-demand, for example, is an on-demand, i.e. non-linear services. In general, for linear audiovisual media services or television programmes which are also offered as non-linear services by the same media service provider, the requirements of this Directive are deemed to be met by the fulfillment of the requirements applicable to the linear transmission. However, where different kinds of services are offered in parallel, but are clearly separate services, the Directive will apply to each of the services concerned. (15) This Directive does not cover electronic versions of newspapers and magazines. (16) For the purposes of this Directive, the term “audiovisual” refersto moving images with or without sound, so includes silent films but does not cover audio transmission or radio services. Whilst the principal purpose of an audiovisual media service is the provision of programmes, i.e. sets of moving images with or without sound, the definition of such a service also covers text-based content which accompanies such programmes, such as subtitling services and electronic programme guides. Stand-alone text-based services do not fall within the scope of this Directive, which does not affect Member States' freedom to regulate such services at national level in accordance with the Treaty. 21

22. (35) Non-linear audiovisual media services have the potential to partially replace linear services. Accordingly, they should where practicable promote the production and distribution of European works and thus actively contribute to the promotion of cultural diversity. Such support for European works might for example take the form of financial contributions by such services to the production and rights acquisition of European works, a minimum share of European works in video-on-demand catalogues, or the attractive presentation of European works in electronic programme guides. It will be important to regularly re-examine the application of the provisions relating to the promotion of European works by audiovisual media services. Within the framework of the reports set out in Article 3f paragraph 3, Member States shall also take into account notably the financial contribution by such services to the production and rights acquisition of European works; the share of European works in the catalogue of audiovisual media services as well as in the effective users’ consumption of European works proposed by such services. 22

23. Exclusive rights and short news provisions in television broadcasting Article 3i (ex-Article 3a) 1. Each Member State may take measures in accordance with Community law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events via live coverage or deferred coverage on free television. If it does so, the Member State concerned shall draw up a list of designated events, national or nonnational, which it considers to be of major importance for society. It shall do so in a clear and transparent manner in due and effective time. In so doing the Member State concerned shall also determine whether these events should be available via whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage. 1. Member States shall ensure that for the purpose of short news reports, any broadcaster established in the Community has access on a fair, reasonable and non-discriminatory basis to events of high interest to the public which are transmitted on an exclusive basis by a broadcaster under their jurisdiction. 5. Without prejudice to paragraphs 1 to 4 above, Member States shall ensure, in accordance with their legal systems and practices, that the modalities and conditions regarding the use provision of such short extracts are defined, in particular any compensation arrangements, the maximum length of extracts and time limits regarding their transmission. Where compensation is provided for, it shall not exceed the additional costs directly incurred in providing access. 23

24. (Article 3f) 1. Product placement shall be prohibited. 2. By way of derogation from paragraph 1, product placement shall be admissible, unless a Member State decides otherwise, in -cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes; or -cases where there is no payment but only provision of certain goods or services for free, such as production props and prizes, with a view to their inclusion in a programme. The derogation in the first indent shall not apply to programmes for children. The programmes that contain product placement shall meet at least all of the following requirements: (a) their content and, in the case of television broadcasting, their scheduling is in no circumstances influenced in such a way as to affect the responsibility and editorial independence of the media service provider; (b) they do not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services; (ba) they do not give undue prominence to the product in question; (c) viewers are clearly informed of the existence of product placement. Programmes containing product placement are appropriately identified at the start and the end of the programme, and when a programme resumes after an advertising break, in order to avoid any confusion on the part of the viewer. As an exception, Member States may choose to waive the requirements set out in (c) above provided that the programme in question has neither been produced nor commissioned by the media service provider itself or a company affiliated to the media service provider. 3. In any case programmes must not contain product placement of: - tobacco products or cigarettes or product placement from undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products; or - specific medicinal products or medical treatments available only on prescription in the Member State within whose jurisdiction the media service provider falls

25. Product placement in the Czech soap opera „Hospital in Rose Garden“ - TV Nova – Czech regulator issued a warning about these pratices http://www.stream.cz/uservideo/537160-skryta-reklama-v-ordinaci-v-ruzove-zahrade http://www.telegraph.co.uk/finance/newsbysector/mediatechnologyandtelecoms/media/7197867/TV-product-placement-ban-lifted-in-UK.html