The European Commission’s Green Paper “Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values” asks stakeholders to comment on some of the most difficult policy questions of the decade, such as how to preserve European audiovisual policy objectives in a borderless Internet environment. Here are highlights:
Copyright. The Commission refers to its ongoing work on copyright reform, including questions related to portability of content and access to audiovisual works, territoriality of copyright licences in the internal market (Murphy v. Premier League), limitations and exceptions to copyright in the digital age, and copyright enforcement that is both effective and viewed by citizens as legitimate. The Commission reminded readers of its interpretation of the Premier League decision, careful to limit its conclusions to sporting events:
a right holder cannot prohibit the exclusive licensee from effecting any cross-border provision of services that relate [to] the broadcasting of such a sporting event.
Investment in production. The Commission stressed that digital players can bring new sources of financing to content production: the Commission referred to BT’s participation in the Premier League tenders, as well as Netflix’s $4.8 bn investments in streaming content. The Commission asks stakeholders whether the AVMS Directive’s current system for encouraging the financing of European audiovisual production remains appropriate in a converged environment.
Interoperability; frequencies. The Commission asks whether it should intervene to set European-wide standards for connected TVs to avoid the emergence of fragmented, non-compatible standards in different Member States. On spectrum, the Commission focuses on the need for mobile broadband spectrum, asking:
what frequency allocation and sharing models can facilitate development opportunities for broadcasting, mobile broadband and other applications (such as programme-making equipment) carried in the same frequency bands?
Territoriality, coordination with privacy and e-commerce directives. The Commission suggests that the territorial applicability of the AVMS Directive, the E-Commerce Directive and the Data Protection Directive should be coordinated, particularly with regard to non EU-based service providers. Citing the “global and complex nature of the internet,” the Commission suggests that self and co-regulatory solutions “may be an appropriate complement to the regulatory approach.” The Commission seeks comment on whether the definition of AVMS providers in the AVMS Directive should be changed, or whether there are “other ways to protect values.”
Media pluralism. An important objective of audiovisual policy is to ensure that citizens are exposed to different points of view. The Commission asks whether technical platforms that preselect or search for content for users might pose a threat to media pluralism, and whether EU regulations are necessary, particularly to ensure neutrality. The Commission also asks about the future of must-carry obligations on digital platforms.
Advertising. Linear programming services are subject to strict rules on advertising, whereas non-linear services are lightly regulated. The Commission asks about the possible distortions created by asymmetric regulation, as well as by overlay advertising, which is advertising displayed by a third party OTT providers over the linear broadcasting content of another broadcaster. The Commission asks “who should have the final say whether or not to accept commercial overlays or other novel techniques on screen.”
Protection of minors, accessibility for persons with disabilities. The Commission asks how the protection of minors can be achieved in a converged audiovisual environment, and whether age verification mechanisms can be implemented for digital services. Finally, the Commission points to existing EU measures to promote accessibility, and whether additional standardisation is needed.
Analysis. One of the biggest challenges for the Commission is that audiovisual policy objectives vary signficantly between Member States based on each country’s national culture and history. France puts the emphasis on the financing of motion picture production, whereas other countries may put more emphasis on the protection of minors. Until now, authorities could impose these different regulatory policies on broadcasters through broadcasting spectrum licenses. Major broadcasters needed (and still need) over-the-air spectrum in many Member States to reach a majority of viewers. National authorities can condition the licensing of spectrum on the broadcaster’s acceptance of a wide variety of national obligations, from the financing of motion picture production to agreeing not to broadcast films on Wednesday evenings. As over-the-air broadcasting gradually gives way to cable, fiber, and mobile broadband, authorities will have less ability to use the over-the-air broadcasting license as the “hook” for applying national broadcasting policies. Internet-based channels will be able to choose their jurisdiction, avoiding countries with burdensome regulatory regimes. This is the case today for cable and satellite broadcasting in Europe. In the next decade, all broadcasting may follow this trend. Given the heterogeneity of national policies, setting a single European policy for broadcasting regulation is difficult. The Commission recognizes the difficulty, urging players to develop self and co-regulatory solutions.