Memorandum submitted by the Federation
of European Film Directors
ABOUT FERA
FERA is a network of over 30 organisations representing
European film directors, lobbying on issues of major importance
to the creation and promotion of film and audiovisual works. FERA's
mission is to enhance the recognition of the cultural significance
of film and audiovisual works and to defend their integrity in
21st century Europe. FERA represents directors as the primary
creators of film and audiovisual works. The director, as the creative
decision maker in a collaborative artistic process, has the final
responsibility for the aesthetic cohesion and integrity of the
work. FERA regards the safeguarding of the craft, artistry and
the rights of the director, moral and economic, as essential to
diversity within audiovisual culture.
INTRODUCTION
In a climate of the fragmentation of channels
and therefore of advertising revenue and thus the perceived precariousness
of commercial channel business models and consequently their reluctance
to invest in public service programming including original drama/feature
film/documentary, questions are now being asked as to from where
money for such programming is to come. Some suggest that in the
UK, the BBC licence fee should be top sliced into a Public Service
Publisher Fund from which commercial channels could bid to spend
on public service programming. This concept needs opposing strongly.
Investment in quality and in creative content
is of a primary importance to all broadcasters whether public
or private, for both cultural and economic reasons. It is, we
believe, their duty in respect of the impact they have on the
audience (this media still attracts the largest audience). It
is also a win-win situation in commercial terms as high quality
drama/film/documentary can lead to big success as evidenced by
ITV's investment in The Queen which has won both an Oscar
and success at the box office.
A robust and diverse broadcasting regime through
the creation, production and broadcast of indigenous content by
both private and public broadcasters, is the cornerstone of most
broadcasting legislations. In most OECD countries, the framework
laid down by law seeks to strengthen the capacity of the broadcasters
to support competitive, indigenous television programming.
This is done by ensuring a place for indigenous
programming, by requiring television channels to give it priority
and by requiring all TV channels to reinvest in their national/European
broadcasting system. Each element of the broadcasting system is
required to contribute to the creation, production and distribution
of national/European programming.
All around Europe, frameworks for broadcasting
services provide for investment obligations in the production
of cinematographic or/and audiovisual works to contribute to the
creative expression of audiovisual works and to maintain a European
industry. Whether by law, contract or licence, France, Belgium,
Spain, Italy, etc. organize that broadcasters invest in the creation,
production and distribution of national and European programmes.
At the European level, the revision of the "Television Without
Frontiers" Directive intended to extend the scope of the
directive to include on demand services, encourages these new
services to also invest in production and rights acquisition of
European works.
THE FRENCH
EXAMPLE—A NEW
LAW FOR
THE DIGITAL
AGE WHICH
CONFIRMS THE
OBLIGATIONS OF
ALL BROADCASTERS
TO INVEST
IN PROGRAMMES
In France, last year the government introduced
a legislation to adapt the legal framework in order to ensure
the transition from analogue to digital TV and to integrate into
this framework new audiovisual services such as mobile TV. This
law, adopted by the Parliament on 22 February 2007, provides for
the switch off of analogue TV on 30 November 2011 and confirms
the French policy on the free disbursement of licences, in exchange
for investment in the production of programming and an equal obligation
upon both public and private channels to invest in production.
These obligations create a virtuous investment
in local and European film production without intervention in
the freedom of choice of the programming of the broadcasters.
They are bearable for private broadcasting services as TFI, the
biggest French private broadcasting service is also the biggest
in Europe.
Currently, broadcasting companies have a two
fold investment obligations in production:
First, broadcasters, whether public or private,
have to invest 5.5% of their annual turnover in a special production
fund (COSIP) administered by the National Centre for Cinematography
(CNC).
Second, all broadcasters have an additional
obligation to invest directly in both cinema and TV production.
For cinema, the legislation provides that broadcasting
services invest in rights' acquisition or co-production 3.2% of
their turnover in European cinematographic works, of which 2,5%
must go to French speaking works. For example, in 2005, it represented
€32.21 million for France 2 and €47,716 million for
TF1.
Canal+ has a special status: it has to invest
12% of its resources in the acquisition of European cinematographic
works, of which 9% have to go to French speaking works. The 12%
investment represented €182,415 million in 2005.
For TV production, broadcasting channels have
an obligation to invest at least 16% of their turnover in French
speaking audiovisual works. It represented €240,63 million
from TF1 in 2005. France 2 contributes to 18.5% of its turnover
into European audiovisual works, including 16% to French speaking
works (€184,67 million in 2005) and M6 contributes to 18%
of its turnover in the production of European audiovisual works,
including 13.5% to French speaking works (€95,505 million
in 2005).
This investment in TV production must primarily
be in original drama, creative documentaries, animation and retransmission
of performing arts.
In exchange for a reduced duration of their
licence due to the switch to digital TV in 2011, private broadcasters
(TF1, M6 and Canal+) will benefit from an additional digital channel
from which they will have enhanced investment obligations in the
production of cinematographic and audiovisual works (a governmental
decree will detail these enhanced obligations).
In addition, new frequencies for mobile TV and
HD TV services will be subject to an additional contribution of
0.1% of turnover for mobile TV and 0.2% for HD TV to the special
fund for the audiovisual production (COSIP).
Moreover, the new law modernizes this fund by
enlarging its scope to distributors of TV services in order to
include all platforms of distribution of TV services (such as
cable, satellite or Internet services providers who distribute
broadcasting services) in a technologically neutral way. The contribution
of these distributors is progressive and ranges from 0.5% of their
turnover between €10 million and 75 million to 4.5% of turnover
beyond €530 million.
THE NEW
AUDIOVISUAL MEDIA
SERVICES DIRECTIVE
In the course of the discussions on the revision
of the "Television Without Frontiers" Directive to include
in its scope the audiovisual non linear media services, the EU
Council of Ministers agreed on November 13, 2006 to a clause whereby
"Member States shall ensure that on-demand services
provided by media service providers under their jurisdiction promote,
where practicable and by appropriate means, production of and
access to European works within the meaning of article 6. Such
promotion could relate, inter alia, to the financial contribution
made by such services to the production and rights acquisition
of European works or to the share and/or prominence of European
works in the catalogue of programmes proposed by the service".
We understand that this provision encourages
governments to ensure a level playing field in the financing of
programming both on traditional TV services (articles 4 and 5
of the directive) and on new media services. All players, particularly
news operators from the telecommunications' sector have the duty
to make a fair contribution to our audiovisual culture.
Therefore, the directive is the legal basis
for governments to demand a fair and proportionate investment
from all channels in the digital age as well as new media players
such as telecoms companies that provide video on demand services.
In France for example, video on demand services
have, since 2004, an obligation to contribute 2% of their turnover
to the film fund administered by the CNC (Centre national de
la Cinématographie). Moreover, a telecommunication
operator, France Telecom has established a film production subsidiary
to invest in the co-production of 10 to 15 European and French
films a year.
In conclusion, the creation, production and
broadcast of local and European works is the cornerstone of most
broadcasting legislations which support a strong and diverse broadcasting
system. The European examples quoted demonstrate that, investment
in features films and TV programming by all broadcasters, whether
public or private and by those telecom companies that wish to
distribute films and audiovisual works, is the best guarantee
for innovative, diverse and creative quality programmes.
April 2007
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