Memorandum by EDiMA
1. INTRODUCTION
AND EXECUTIVE
SUMMARY
EDiMA, [2]the
European Digital Media Association, is an alliance of digital
media and technology companies who distribute audio and audio
visual content on line. We welcome the opportunity to contribute
to the debate on the proposal for a Directive on audiovisual media
services. [3]
As a starting point, EDiMA wishes to recall
the specific objectives the European Commission has identified
as the basis for its proposal, which are welcomed and supported
by EDiMA: [4]
— Taking full advantage of the
internal market for new services;
— Ensuring minimum harmonisation for
the protection of minors and human dignity and commercial communications;
— Contributing to cultural diversity;
— Fostering the right to information;
and
— Limiting regulation on commercial
communications to what is indispensable.
Notwithstanding our support for these objectives,
EDiMA questions whether the proposed extension of the scope of
the Directive to cover all audiovisual media services, is appropriate
and proportionate to meeting these objectives. Instead, EDiMA
favours a limited revision of the existing Television without
Frontiers Directive, so that only television and television-like
services are include in the scope of the Directive.
2. THE EVOLVING
AUDIOVISUAL MEDIA
LANDSCAPE
The audiovisual media sector is undergoing rapid
change and, after several false starts, the promise of "convergence"
is becoming a reality. The evolving audiovisual media landscape
will bear little resemblance to the environment for which the
Television without Frontiers Directive was originally introduced.
[5]
For consumers, the new landscape will offer
increased choice of audiovisual media services and content, access
through multiple platforms (TV, PC, mobile etc), greater control
over how, where and when audiovisual media services are consumed,
the ability to be a publisher as well as a consumer of audiovisual
media services and involvement with new communities focused on
culturally diverse audiovisual content.
For audiovisual media service providers, the
new landscape will be defined by lower barriers to entry, new
business models, an evolving economic value chain and new set
of commercial partnerships, innovative and more targeted forms
of monetisation, a changing competitive environment and markets
characterised by constant innovation and disruptive technologies.
EDiMA believes that, as far as possible, the
regulatory framework for audiovisual media services needs to accommodate
the evolving audiovisual media landscape.
3. CREATING A
PRO-INVESTMENT
CLIMATE FOR
THE AUDIOVISUAL
MEDIA SECTOR
The first objective of the European Commission's
i2010 strategy is to deliver a "single European information
space, offering affordable and secure high bandwidth communications,
rich and diverse content and digital services".[6]
The member companies of EDiMA are committed to providing audiovisual
media services in Europe in order to further this objective.
As major investors in the audiovisual media
sector, EDiMA's member companies believe that the regulatory framework
should:
— Be developed on the basis of
specific public policy objectives and realised in a manner that
is proportionate and minimises regulatory burdens on service providers.
New regulation should be judged against whether such objectives
are already being satisfied in the market either through self-regulation
or existing regulation.
— Provide legal certainty, while
offering flexibility to deal with evolving markets and services.
[7]
— Promote a pro-competitive environment
that favours market entry and empowers consumers through the provision
of innovative and affordable services, while promoting consumer
confidence through targeted consumer protection measures.
4. THE CURRENT
REGULATORY FRAMEWORK
FOR AUDIOVISUAL
MEDIA SERVICES
The current regulatory framework for audiovisual
media services is based around two pillars: the existing Television
without Frontiers Directive[8]
and the Electronic Commerce Directive. [9]
The framework draws a distinction between "television
broadcasting"[10]
and "information society services".[11]
This distinction is a reflection that, even though there are consistent
policy objectives in relation to television broadcasting and information
society services, a differentiated regulatory approach, which
takes into consideration the specific nature of these services
and the manner in which they are consumed, is appropriate to meet
these objectives in a proportionate and effective manner.
In addition to these two Directives, audiovisual
media services are subject to a range of EU level sector specific
and horizontal measures, covering inter alia, the protection
of minors and human dignity, commercial communications and consumer
protection.
5. UPDATING THE
REGULATORY FRAMEWORK
FOR THE
EVOLVING AUDIOVISUAL
MEDIA LANDSCAPE
EDiMA recognises that the evolving audiovisual
media landscape challenges existing rules and therefore justifies
a review of the current regulatory framework.
The proposal for a Directive on audiovisual
media services would extend the scope of the existing Television
without Frontiers Directive from "television broadcasting"
to "audiovisual media services". The European Commission
has indicated that their intention is to extend the scope of the
Directive to include "TV-like services".[12]
EDiMA is concerned that the definition of audiovisual media services
proposed and the distinction proposed between linear and non-linear
services, will not achieve the European Commission's stated goals.
Rather, the proposed extension of scope, which EDiMA considers
goes considerably beyond "TV-like services", is likely
to have the unintended effect of undermining legal certainty.
This will impact investment in new audiovisual media services.
Instead, in respect of new audiovisual media
services, [13]EDiMA
believes that the objectives that the European Commission has
identified can (or are already met) by alternative, more proportionate
and effective means:
— Taking full advantage of
the internal market for new services—the Electronic
Commerce Directive already provides an appropriate framework that
ensures that new audiovisual media service providers can benefit
from the country of origin principle. [14]Additional
regulation is therefore unnecessary. The e-Commerce directive
already provides the means to address upcoming regulatory issues
through the ability of Member States to enhance the regulatory
regime through additional requirements related to sensitive issues
such as consumer protection.
— Ensuring minimum harmonisation
for the protection of minors and human dignity and commercial
communications—as new consumption patterns for new audiovisual
media services evolve, the protection minors is better addressed
by a mixture of legislative and non-legislative solutions. In
addition to existing rules[15]
EDiMA believes that emphasis should be placed on media literacy,
self- and co-regulatory solutions and market based solutions,
such as the provision of filtering software.
— Contributing to cultural
diversity—the most effective means to ensure cultural
diversity in new audiovisual media services will be to lowers
barrier to distribution and production of European content. [16]This
will create new and niche markets for content that would otherwise
and previously not have been exploited because of higher commercial
thresholds. The new media landscape is already contributing to
cultural diversity by breaking down barriers and drawing together
communities around shared culture and content. Regulatory intervention
will only serve to raise barriers to entry and as a result, restrict
access to and availability of content. Cultural quotas in what
are essentially consumer-driven markets not achieve the intended
result of cultural diversity but would simply raise barriers to
access to content and stifle the innovation required by content
providers to ensure the spread of European content in the first
place.
— Fostering the right to information—EDiMA
supports the proposals to foster the right to information.
— Limiting regulation on commercial
communications to what is indispensable—in respect of
"non-linear" services, the provisions of the proposed
Directive are by and large already provided for in the Electronic
Commerce Directive. These rules are supplemented by self-regulatory
codes that have been developed to deal specifically with new audiovisual
media services. This approach is consistent with dynamic changes
in advertising and sponsorship markets that better respond to
consumer needs and provide advertisers with more effective return
on investment.
In summary whilst supporting the objectives
of the proposal for a Directive on audiovisual media services,
EDiMA believes that these can be achieved, and in some cases are
already being achieved, through alternative approaches which will
deliver a regulatory framework better able support and nurture
a thriving market for audiovisual media services in Europe.
6. CONCLUSION—EDIMA
POSITION ON
THE PROPOSAL
FOR A
DIRECTIVE ON
AUDIOVISUAL MEDIA
SERVICES
In its impact assessment, the European Commission
highlighted that five options for reviewing the Television without
Frontiers Directive had been considered. [17]
EDiMA strongly favours option three, namely
a focused revision of the existing Television without Frontiers
Directive, to clarify that all "linear" services similar
to television are covered by the scope of the Directive. We also
support updating existing rules on advertising and sponsorship.
In the event that the Directive is extended
to include new audiovisual media services, beyond television and
television like services, EDiMA believes that particular attention
needs to be had to clarifying the definitions of audiovisual media
services and the distinction that is drawn between linear and
non-linear services.
October 2006
2 See http://www.europeandigitalmediaassociation.org/
for further information on EDiMA. Back
3
European Commission proposal for a Directive amending Directive
89/552/EEC, COM (2005) 646 final. Back
4
See pp 22-23, European Commission staff working document-Impact
Assessment-Draft Audiovisual Media Service Directive-SEC(205)
1625/2. Back
5
The defining characteristic under which the original Directive
was introduced was spectrum scarcity. Limited availably of this
scarce resource, justified detailed regulation to meet public
interest objectives. Today's audiovisual media environment, in
particular the online environment, is not subject to the same
limitations. Back
6
European Commission Communication: "i2010-A European Information
Society for growth and employment". Back
7
The proposed Directive is unlikely to be transposed into law before
2008 at the earliest. Consideration therefore needs to be had
to ensure that the regulatory framework is as far as possible
"future proof", in particular as it relates to markets
undergoing rapid development and technological change. Back
8
Directive 89/552/EEC on the co-ordination of certain provisions
laid down by law, regulation or administrative action in member
states concerning the pursuit of television broadcasting activities. Back
9
Directive 2000/31/EC on certain legal aspect of information society
services, in particular electronic commerce, in the Internal Market. Back
10
Article 1(a) of Directive 89/552/EEC. Back
11
Article 2(a) of Directive 2000/31/EC. Back
12
See European Commission Press release IP/05/1573 of 13 December
2005. Back
13
EDiMA favours a revision of the existing definition of "television
broadcasting" that would extend the scope of the existing
Directive to include only TV like services. New audiovisual media
service, be they "linear" or "non-linear",
would therefore fall outside the scope of the proposed Directive,
but still remain subject to the Electronic Commerce Directive
and other sector specific and horizontal measures. Back
14
Service providers have highlighted that the scope for derogations
under the Electronic Commerce Directive have not given rise to
barriers to the provision of services across markets. Back
15
Council Recommendation on the development of the competitiveness
of the European audiovisual and information services industry
by promoting national frameworks aimed at achieving a comparable
and effective level of protection of minors and human dignity. Back
16
In this respect, EDiMA has consistently supported legislative
and industry initiatives which aim to break down barriers to content
distribution caused by the territorial nature of current licensing
regimes in EU member states. Back
17
See p 24, European Commission staff working document-Impact Assessment-Draft
Audiovisual Media Service Directive-SEC(205) 1625/2. Back
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