The European Audiovisual Observatory has published a report entitled On demand services and the material scope of the AVMSD. Free to download here, the 70-page report analyzes the scope of the Audiovisual Media Services Directive – the current legal text applicable to broadcasting and VOD in Europe) as well as looking at the recent proposals presented on May 25 by Commissioners Ansip and Oettinger on possible changes to this pivotal legal text.
The first chapter of this new report provides an overview of the most recent market developments in the on-demand sector, as well as looking at the underlying regulatory issues. Live television viewing is on the decline as time-shifted viewing accounts for some of the hours measured in current audience analysis. In general, markets are increasingly fragmented with more channels and on demand services on offer, advertising revenue is slowly on the up having hit a low in 2008, public funding is under pressure whereas pay TV is still growing.
New short formats are being made available by traditional broadcasters via video-sharing platforms such as YouTube or Dailymotion. Also, the distribution sector has changed beyond all recognition with “over-the-top” providers and content aggregators. Since the AVMSD contains “more stringent rules for television and softer rules for on-demand AVMS in certain specific areas [..]: the protection of minors, the promotion and distribution of European works, or advertising and teleshopping”, the authors raise the question as to “whether such a differentiated regulatory intensity is still needed” in face of increasingly blurred boundaries between television and on-demand.
The European framework of legislation is explored in the second chapter. The origins of the current AVMSD in the EU’s “Television without Frontiers” Directive and the Council of Europe’s “European Convention on Transfrontier Television” are clearly traced. The authors then move on to describe the scope of the current AVMSD as being applicable to linear TV channels and video-on-demand services deemed to offer “TV-like” content. The chapter then looks at the seven criteria for qualifying as an on-demand audiovisual media services before looking at the current “different regulatory intensity” concerning television broadcasting and on-demand services. The chapter ends with a useful analysis of intersections between the AVMSD and other legal texts such as the E-Commerce directive or the SatCab Directive, for example.
Chapters three and four concentrate on a selective country-by-country analysis of how the AVMSD is currently transposed into national legislation (see also the AVMSDatabase free on the Observatory’s website) and self- and co-regulatory measures.
The fifth chapter focuses on recent case law concerning the application of the AVMSD in EU countries. It evokes important decisions of the European courts such as the Delfi and the New Media Online case, which included newspapers websites in the scope of the directive.
The closing chapter details the state of play regarding the scope of the AVMSD. Of greatest significance is the European Commission’s public consultation and REFIT exercise aimed at up-dating the AVMSD to keep pace with recent technological and market developments.
The REFIT exercise has just resulted in the recent announcement of Commissioners Oettinger and Ansip regarding the proposed new scope of this legal text. The Commission’s proposal repositions certain audiovisual media services within the scope of the Directive in terms of responsibility for content published and also has a bearing on the amount of EU origin content included in the various offers. The proposals stipulate that the directive now cover video-sharing platforms such as YouTube, newspapers on line which make available video content, and short videos, for example.
Social media platforms such as Facebook are not included inasmuch as their principle purpose is not video sharing. In terms of quotas, the new proposal stipulates that online services such as Netflix and Amazon should devote 20 percent of their online offer to content of EU origin. Such services will also be obliged to contribute to financing domestic production in the countries they target with their content.