08 July, 2020
Shedding light on key concepts relating to European works and video-sharing platform services
On 2 July 2020, the European Commission published guidelines related to European works and video-sharing platforms. The publication of these guidelines, which had been eargerly awaited since autumn 2019, had been postponed further to the appointment of the new Commission. The Commission has consulted the Contact Committee under Article 29 of the AVMSD and run a targeted stakeholders’ consultation.
Aimed at encouraging and facilitating a harmonised implementation and enforcement of the Audiovisual Media Services Directive (AVSMD), these non-binding guidelines provide the Commission’s views and interpretation regarding the scope of the video sharing platforms’ rules and the obligations related to European works. They are complementary to the future Digital Services Act package and intend to contribute to a ‘clearer responsibilities and accountability’ framework for social media and online platforms.
Guidelines on the obligations related to European works (Art. 13 AVSMD)*
On the calculation method of the 30% share of European works in Video on Demand (VOD) catalogues:
The definition of a title: each film is to be considered as a title, and for series, each season is to be considered as a title;
The scope of the 30%: is to be observed in each national catalogue and national authorities are free to decide if the 30% shall be respected and calculated at any time or on a defined period of time.
On the interpretation of the ‘low audience or low turnover’ condition for exemption:
Rules must comply with the non-discrimination principle: exemptions applying to national providers should also apply to foreign providers with regard to the financial obligations;
A low annual turnover would be under 2M€. However, it can be adapted to take into account the realities and size of the national market. In any case, providers representing less than 1% of the audiovisual market in the country are to be exempted.
Low audience calculation is to be based on the subscription buyers (for TVOD) and visitors (for AVOD) - rate to/of the service and will exempt providers representing less than 1% of audience in the State.
In general, should be taken into account: the financial capacity of the service, the non-discrimination principle, the proportionality of the measure and the need for market development and entrance of new actors.
Guidelines on video-sharing platform services, ‘clarifying to which extent social media actors will be covered by the new rules’ (Art. 1 AVSMD)*
Emphasising the significant impact of VSPs as they allow users to influence others and the need to protect minors, the guidelines provide indicators to appreciate the ‘essential functionality of the service’ criteria.
Online service providers should be excluded from the scope of the AVSMD ‘whenever, on the basis of quantitative and/or qualitative considerations, it appears that it [video] plays an insignificant role in the overall economy of the service’. However, conversely, videos do not necessarily have to be of a crucial commercial relevance for the service.
The guidelines provide several non-cumulative and non-exhaustive elements and indicators:
1. The relationship between the audiovisual content and the main economic activity or activities of the service: the structure and presentation of the website, nature and role of the videos, specific video tools and functionalities, the market segment addressed…;
2. The quantitative and qualitative relevance of the audiovisual content available on the service: number of videos, number of videos’ users…;
3. The monetisation of, or revenue generation from, the audiovisual content: inclusion of commercial communications, sponsorship, tracking of users…;
4. The availability of tools aimed at enhancing the visibility or attractiveness of the audiovisual content: video promotion, tools to increase attractiveness of the videos….
In any case, the application of those rules must be consistent with the public interest objectives and the right to freedom of expression.
Source: the European Commission
Further background information on the AVSMD: Art. 13 of the AVSMD requires that ‘Member States ensure that media service providers of on-demand audiovisual media services under their jurisdiction secure at least a 30 % share of European works in their catalogues’. Moreover, ‘where Member States require media service providers under their jurisdiction to contribute financially to the production of European works […], they may also require media service providers targeting audiences in their territories but established in other Member States to make such financial contributions’. These obligations shall not apply to media service providers with a low turnover or a low audience.
Moreover, the revised AVMSD includes video-sharing platforms (VSPs) in its scope thus creating new obligations for these service providers defined in Art. 1 para. 1 as a service ‘where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes, user-generated videos, or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility […]’.
The AVMSD transposition deadline is 19 September 2020.