# C_2015423EN.01003001.xml

| 17.12.2015 | EN | Official Journal of the European Union | C 423/30 |
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17.12.2015

EN

Official Journal of the European Union

C 423/30

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Opinion of the European Committee of the Regions — Review of the ‘Audiovisual Media Services’ Directive

(2015/C 423/06)

| Rapporteur: | Jean-François ISTASSE (BE/PES), Member, Verviers Municipal Council |
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Rapporteur:

Rapporteur:

Jean-François ISTASSE (BE/PES), Member, Verviers Municipal Council

I.   GENERAL COMMENTS

GENERAL COMMENTS

THE COMMITTEE OF THE REGIONS,

| 1. | deems it appropriate to review the Audiovisual Media Services Directive (AVMSD) in the light of constantly evolving technological developments and the geopolitical situation and their implications for the production, distribution and consumption of audiovisual media; |
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1.

deems it appropriate to review the Audiovisual Media Services Directive (AVMSD) in the light of constantly evolving technological developments and the geopolitical situation and their implications for the production, distribution and consumption of audiovisual media;

| 2. | reiterates the importance of maintaining an explicit reference to cultural diversity as a founding pillar of the AVMSD, particularly in view of the European Union’s accession to the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions; the CoR notes here that regional public service broadcasting (PSB) — represented in Europe by CIRCOM — provides this kind of service, broadcasting news and other programmes of relevance to local and minority language communities; |
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2.

reiterates the importance of maintaining an explicit reference to cultural diversity as a founding pillar of the AVMSD, particularly in view of the European Union’s accession to the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions; the CoR notes here that regional public service broadcasting (PSB) — represented in Europe by CIRCOM — provides this kind of service, broadcasting news and other programmes of relevance to local and minority language communities;

| 3. | highlights the need to pursue policies which encourage the pluralism of news media, protect individual freedoms and maintain international standards, which are guarantors of democracy; points out that new initiatives should be developed to guarantee independent and pluralist media as cornerstones of regional and local democracy; |
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3.

highlights the need to pursue policies which encourage the pluralism of news media, protect individual freedoms and maintain international standards, which are guarantors of democracy; points out that new initiatives should be developed to guarantee independent and pluralist media as cornerstones of regional and local democracy;

| 4. | asserts the appropriateness of taking the regional dimension in the AVMSD into account, in order to enhance European cultural identities, cross-border co-productions within the European Union and local creative innovation; |
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4.

asserts the appropriateness of taking the regional dimension in the AVMSD into account, in order to enhance European cultural identities, cross-border co-productions within the European Union and local creative innovation;

| 5. | notes the economic power of the cultural industry, its great ability to create value and its potential in terms of quality jobs in the economic sectors of the future; |
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5.

notes the economic power of the cultural industry, its great ability to create value and its potential in terms of quality jobs in the economic sectors of the future;

| 6. | shares the desire expressed by the European Commission in its Green Paper on Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values, to ensure ‘the widest possible access to European diversified content and the widest choice of high quality offers’, and emphasises in this respect the need to regulate the accessibility of regional public service broadcasting (PSB), in particular so as to be informed of its aims and the range of services it offers; |
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6.

shares the desire expressed by the European Commission in its Green Paper on Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values, to ensure ‘the widest possible access to European diversified content and the widest choice of high quality offers’, and emphasises in this respect the need to regulate the accessibility of regional public service broadcasting (PSB), in particular so as to be informed of its aims and the range of services it offers;

| 7. | is pleased to note the wish expressed by the European Commission, in relation to the Digital Single Market Strategy, to modernise copyright legislation and to ensure a fair balance between the interests of producers and users, in order to promote access to culture and cultural diversity; |
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7.

is pleased to note the wish expressed by the European Commission, in relation to the Digital Single Market Strategy, to modernise copyright legislation and to ensure a fair balance between the interests of producers and users, in order to promote access to culture and cultural diversity;

| 8. | stresses the value of the dual system that typifies the European audiovisual landscape, ensuring the stimulating co-existence of public and private stakeholders, and highlights the importance of encouraging Member States to provide sufficient long-term public funding for public audiovisual operators, in order to enable them to carry out public service obligations in both linear and non-linear services in full compliance with European regulations governing the funding of public service broadcasters; |
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8.

stresses the value of the dual system that typifies the European audiovisual landscape, ensuring the stimulating co-existence of public and private stakeholders, and highlights the importance of encouraging Member States to provide sufficient long-term public funding for public audiovisual operators, in order to enable them to carry out public service obligations in both linear and non-linear services in full compliance with European regulations governing the funding of public service broadcasters;

| 9. | reaffirms the importance of effective regulation of audiovisual media services, requiring genuine cooperation between regulators and the independence of these regulators from both public authorities, audiovisual stakeholders and political parties; |
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9.

reaffirms the importance of effective regulation of audiovisual media services, requiring genuine cooperation between regulators and the independence of these regulators from both public authorities, audiovisual stakeholders and political parties;

| 10. | stresses the importance of the role of social cohesion played by European audiovisual media, an essential part of European citizenship; |
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10.

stresses the importance of the role of social cohesion played by European audiovisual media, an essential part of European citizenship;

| 11. | considers it necessary to extend the scope of the AVMSD to include audiovisual content that does not qualify as ‘television-like’; |
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11.

considers it necessary to extend the scope of the AVMSD to include audiovisual content that does not qualify as ‘television-like’;

II.   POLICY RECOMMENDATIONS

POLICY RECOMMENDATIONS

Scope of the directive

Scope of the directive

| 12. | considers that the scope of the AVMSD must cover all types of audiovisual content providers, including those that host user-generated content; |
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12.

considers that the scope of the AVMSD must cover all types of audiovisual content providers, including those that host user-generated content;

| 13. | recommends exploring the appropriateness of establishing new categories of service providers, which should be considered as service distributors within the meaning of the directive, regardless of the distribution platform; |
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13.

recommends exploring the appropriateness of establishing new categories of service providers, which should be considered as service distributors within the meaning of the directive, regardless of the distribution platform;

| 14. | if new categories are created, stresses the benefit of subjecting any new categories of service providers to certain provisions of the directive, according to the nature of their activity; |
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14.

if new categories are created, stresses the benefit of subjecting any new categories of service providers to certain provisions of the directive, according to the nature of their activity;

| 15. | notes that, after having passed the programme selection stage, consumers are placed in a similar viewing situation, regardless of whether the service is linear or non-linear, and that the AVMSD’s differing treatment of linear and non-linear services with respect to the protection of minors and commercial communication should, therefore, be adapted; |
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15.

notes that, after having passed the programme selection stage, consumers are placed in a similar viewing situation, regardless of whether the service is linear or non-linear, and that the AVMSD’s differing treatment of linear and non-linear services with respect to the protection of minors and commercial communication should, therefore, be adapted;

| 16. | calls on the European Commission to clarify the concept of ‘editorial responsibility’ characterising the activity of an audiovisual media service provider, as set out in the current directive, to order to include both responsibility relating to service provision and the accompanying legal liability; |
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16.

calls on the European Commission to clarify the concept of ‘editorial responsibility’ characterising the activity of an audiovisual media service provider, as set out in the current directive, to order to include both responsibility relating to service provision and the accompanying legal liability;

| 17. | calls for the operative part of the directive to include a clear distinction in the rules applicable to audiovisual media service providers exercising full editorial control over the programmes and services they offer and service providers who do not exercise such control, such as service distributors and over-the-top (OTT) services including search engines, social networks, content aggregators, e-commerce services, portals or online file-sharing services; |
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17.

calls for the operative part of the directive to include a clear distinction in the rules applicable to audiovisual media service providers exercising full editorial control over the programmes and services they offer and service providers who do not exercise such control, such as service distributors and over-the-top (OTT) services including search engines, social networks, content aggregators, e-commerce services, portals or online file-sharing services;

| 18. | notes that local and regional media are under increasing pressure. News provision from their own environment is in danger of dying out. In order to foster the development of local and regional news content and a pluralist media, a legal framework for public-private cooperation should be created; |
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18.

notes that local and regional media are under increasing pressure. News provision from their own environment is in danger of dying out. In order to foster the development of local and regional news content and a pluralist media, a legal framework for public-private cooperation should be created;

Assessment of the country of origin principle

Assessment of the country of origin principle

| 19. | reiterates the call made in its opinion on European film in the digital era (1), for an assessment of the country of origin principle as enshrined in the AVMSD, considering in particular questions of legal certainty, which is crucial for the development of European audiovisual stakeholders. The appropriateness of considering the so-called ‘country of destination principle’ as is being done in some Member States, should therefore also be explored, to the extent that this does not empty the country of origin principle of all substance; |
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19.

reiterates the call made in its opinion on European film in the digital era (1), for an assessment of the country of origin principle as enshrined in the AVMSD, considering in particular questions of legal certainty, which is crucial for the development of European audiovisual stakeholders. The appropriateness of considering the so-called ‘country of destination principle’ as is being done in some Member States, should therefore also be explored, to the extent that this does not empty the country of origin principle of all substance;

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| 20. | considers, in line with the European Parliament’s resolution of 12 March 2014 on Preparing for a Fully Converged Audiovisual World, that European law must be adapted to the realities of the Internet and the digital environment, in particular with respect to companies offering audiovisual content online which try to evade taxation in certain Member States by basing themselves in countries with a very low tax rate; |
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20.

considers, in line with the European Parliament’s resolution of 12 March 2014 on Preparing for a Fully Converged Audiovisual World, that European law must be adapted to the realities of the Internet and the digital environment, in particular with respect to companies offering audiovisual content online which try to evade taxation in certain Member States by basing themselves in countries with a very low tax rate;

| 21. | encourages the strengthening and broadening (in particular to cover non-linear services) of the current arrangements as laid down in Article 4 of the AVMSD which aim to prevent European and national measures being circumvented; |
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21.

encourages the strengthening and broadening (in particular to cover non-linear services) of the current arrangements as laid down in Article 4 of the AVMSD which aim to prevent European and national measures being circumvented;

| 22. | considers it appropriate to require providers of audiovisual media services based outside the EU that are targeting EU audiences to register or appoint a representative in one Member State (e.g. the main target country); |
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22.

considers it appropriate to require providers of audiovisual media services based outside the EU that are targeting EU audiences to register or appoint a representative in one Member State (e.g. the main target country);

| 23. | considers that the prime factor in connecting an audiovisual media service provider to a Member State must be the place of business criterion, i.e. the place where the largest section of the workforce is employed in audiovisual media activities; |
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23.

considers that the prime factor in connecting an audiovisual media service provider to a Member State must be the place of business criterion, i.e. the place where the largest section of the workforce is employed in audiovisual media activities;

Accessibility

Accessibility

| 24. | noting the growing importance of OTT services — defined as a method of distributing content via the Internet and without intermediary action on the part of Internet service providers over and above transporting data — and their growing interfacing role between members of the public and audiovisual content, underlines the usefulness of effective regulation applied to such services in order to ensure access to a broad range of information sources and a diversity of audiovisual content; |
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24.

noting the growing importance of OTT services — defined as a method of distributing content via the Internet and without intermediary action on the part of Internet service providers over and above transporting data — and their growing interfacing role between members of the public and audiovisual content, underlines the usefulness of effective regulation applied to such services in order to ensure access to a broad range of information sources and a diversity of audiovisual content;

| 25. | deems it essential to ensure that local and regional audiovisual content producers have equal access to the viewing public, including in cases where content is distributed by aggregators; |
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25.

deems it essential to ensure that local and regional audiovisual content producers have equal access to the viewing public, including in cases where content is distributed by aggregators;

| 26. | considers that this principle of equal access to the public by local and regional audiovisual content producers should guide the European institutions’ considerations; |
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26.

considers that this principle of equal access to the public by local and regional audiovisual content producers should guide the European institutions’ considerations;

| 27. | calls for provisions to be adopted ensuring that OTT services and Internet and telecommunications service providers are in no way able to favour their own content or any content of their choice when acting as audiovisual media service distributors, in order to promote cultural diversity. The central issue here is that the integrity and quality of a channel’s signal, as provided by a broadcaster, should be fully respected and safeguarded; |
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27.

calls for provisions to be adopted ensuring that OTT services and Internet and telecommunications service providers are in no way able to favour their own content or any content of their choice when acting as audiovisual media service distributors, in order to promote cultural diversity. The central issue here is that the integrity and quality of a channel’s signal, as provided by a broadcaster, should be fully respected and safeguarded;

| 28. | with a view to enforcing the principles of cultural diversity and media pluralism, asserts that searching for and selecting audiovisual content cannot in any circumstances depend on economic interests; |
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28.

with a view to enforcing the principles of cultural diversity and media pluralism, asserts that searching for and selecting audiovisual content cannot in any circumstances depend on economic interests;

| 29. | calls for it to be ensured that the necessary measures relating to content integrity are adopted when reviewing the directive, out of consideration for both content producers and consumers; |
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29.

calls for it to be ensured that the necessary measures relating to content integrity are adopted when reviewing the directive, out of consideration for both content producers and consumers;

Geo-blocking

Geo-blocking

| 30. | considers that fair remuneration of audiovisual content producers is a prerequisite which cannot be called into question; |
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30.

considers that fair remuneration of audiovisual content producers is a prerequisite which cannot be called into question;

| 31. | considers it appropriate in a converging digital world to ensure a stimulating value chain for European audiovisual production; |
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31.

considers it appropriate in a converging digital world to ensure a stimulating value chain for European audiovisual production;

| 32. | considers that publicly funded and developed regional and local audiovisual content should be available throughout the EU. Digital barriers to this should be removed; |
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32.

considers that publicly funded and developed regional and local audiovisual content should be available throughout the EU. Digital barriers to this should be removed;

| 33. | urges the European Commission, when considering the geo-blocking of audiovisual content, to take the specific cultural features of such content into account; |
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33.

urges the European Commission, when considering the geo-blocking of audiovisual content, to take the specific cultural features of such content into account;

| 34. | similarly, calls on the European Commission to take the necessary measures to support European audiovisual content producers and European and national distributors; |
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34.

similarly, calls on the European Commission to take the necessary measures to support European audiovisual content producers and European and national distributors;

| 35. | considers that the principle of copyright territoriality must be preserved, this mechanism having proved its effectiveness in guaranteeing payment to producers and promoting quality European audiovisual production; |
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35.

considers that the principle of copyright territoriality must be preserved, this mechanism having proved its effectiveness in guaranteeing payment to producers and promoting quality European audiovisual production;

| 36. | supports the introduction of portability of rights by audiovisual media service users and, in particular, portability of rights relating to audiovisual subscriptions, allowing users to access the services they have in their country when travelling elsewhere in the European Union; |
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36.

supports the introduction of portability of rights by audiovisual media service users and, in particular, portability of rights relating to audiovisual subscriptions, allowing users to access the services they have in their country when travelling elsewhere in the European Union;

| 37. | also makes the case for special attention to linguistic and cultural minorities in the European Union which are affected by geo-blocking policies preventing those concerned from having access to audiovisual media services in their own language; |
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37.

also makes the case for special attention to linguistic and cultural minorities in the European Union which are affected by geo-blocking policies preventing those concerned from having access to audiovisual media services in their own language;

European and independent works

European and independent works

| 38. | encourages all European audiovisual stakeholders to favour the development of high-quality content in order to make the European selection of linear and non-linear services more attractive; |
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38.

encourages all European audiovisual stakeholders to favour the development of high-quality content in order to make the European selection of linear and non-linear services more attractive;

| 39. | stresses the importance of ensuring the effectiveness of the AVMSD, which recommends ‘adopting suitable measures to encourage the activity and development of European audiovisual production and distribution, particularly in countries with a low production capacity or a restricted language area’, including at regional level; |
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39.

stresses the importance of ensuring the effectiveness of the AVMSD, which recommends ‘adopting suitable measures to encourage the activity and development of European audiovisual production and distribution, particularly in countries with a low production capacity or a restricted language area’, including at regional level;

| 40. | advocates encouraging Member States to implement financial contribution systems for linear and non-linear services with the aim of supporting the overall audiovisual chain, including production of European works, as currently set up, on an optional basis, for non-linear services in Article 13 of the directive, and including the clearance of rights for these works and their promotion; |
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40.

advocates encouraging Member States to implement financial contribution systems for linear and non-linear services with the aim of supporting the overall audiovisual chain, including production of European works, as currently set up, on an optional basis, for non-linear services in Article 13 of the directive, and including the clearance of rights for these works and their promotion;

| 41. | pursuing the same objective of promoting quality European works and programming, believes that more extensive measures should be taken to harmonise this promotion effort for both linear and non-linear services; |
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41.

pursuing the same objective of promoting quality European works and programming, believes that more extensive measures should be taken to harmonise this promotion effort for both linear and non-linear services;

Consumer protection

Consumer protection

| 42. | recommends that the key principles of consumer protection in relation to commercial communications be maintained and that the new provisions to be adopted for convergence be concentrated in the area dedicated to the programme’s design; |
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42.

recommends that the key principles of consumer protection in relation to commercial communications be maintained and that the new provisions to be adopted for convergence be concentrated in the area dedicated to the programme’s design;

| 43. | draws the European Commission’s attention to the new advertising practices and strategies developed on non-linear services, aimed at increasing the effectiveness of messages, and to the potential dangers they entail with regard to protecting consumers, their private lives and their personal details; |
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43.

draws the European Commission’s attention to the new advertising practices and strategies developed on non-linear services, aimed at increasing the effectiveness of messages, and to the potential dangers they entail with regard to protecting consumers, their private lives and their personal details;

| 44. | accordingly, calls for the introduction of a coherent and unified body of measures aimed at ensuring that consumers of linear and non-linear audiovisual media services are protected; |
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44.

accordingly, calls for the introduction of a coherent and unified body of measures aimed at ensuring that consumers of linear and non-linear audiovisual media services are protected;

| 45. | notes that particular attention should be paid to the link between the questions relating to apparent absence of costs, to accessibility, to quality of content and to the risks that have a bearing on people’s individual freedoms, including the use of their personal data; |
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45.

notes that particular attention should be paid to the link between the questions relating to apparent absence of costs, to accessibility, to quality of content and to the risks that have a bearing on people’s individual freedoms, including the use of their personal data;

| 46. | stresses that promoting broader and more knowledgeable digital literacy enhances the ability of individuals and their representatives to monitor and prevent the risk of programmes being depleted, at economic, commercial and cultural level, of local characteristics and links, replaced by standardised audiovisual media services programming controlled by whoever is in charge of the network; |
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46.

stresses that promoting broader and more knowledgeable digital literacy enhances the ability of individuals and their representatives to monitor and prevent the risk of programmes being depleted, at economic, commercial and cultural level, of local characteristics and links, replaced by standardised audiovisual media services programming controlled by whoever is in charge of the network;

Protection of minors

Protection of minors

| 47. | suggests a similar form of regulation for programmes likely to be harmful to minors, irrespective of the means of accessing such programmes or the broadcasting medium used, for both linear and non-linear services; draws attention to the fact that in most European PSB — both national and regional — programmes and broadcasting times for minors are laid down by contract or by law; |
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47.

suggests a similar form of regulation for programmes likely to be harmful to minors, irrespective of the means of accessing such programmes or the broadcasting medium used, for both linear and non-linear services; draws attention to the fact that in most European PSB — both national and regional — programmes and broadcasting times for minors are laid down by contract or by law;

| 48. | calls for the introduction of incentives to promote content specifically designed and adapted for children as well as the promotion of partnerships between audiovisual operators and the educational community in the digital environment. Educational programmes should be set up to teach young people at an early stage how to deal with all forms of social media, digital content and information services, etc.; |
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48.

calls for the introduction of incentives to promote content specifically designed and adapted for children as well as the promotion of partnerships between audiovisual operators and the educational community in the digital environment. Educational programmes should be set up to teach young people at an early stage how to deal with all forms of social media, digital content and information services, etc.;

Media literacy

Media literacy

| 49. | calls for further promotion of content relating to media literacy, also covering new media; calls for all available media — both digital and analogue — to be used wisely in order to improve people’s quality of life and to ensure that everyone is able to participate fully in the media society; |
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49.

calls for further promotion of content relating to media literacy, also covering new media; calls for all available media — both digital and analogue — to be used wisely in order to improve people’s quality of life and to ensure that everyone is able to participate fully in the media society;

Online media

Online media

| 50. | deems it appropriate to look closely at whether it would be useful for the directive’s scope to cover certain online media strands (video) and downloading services (such as download-to-rent and download-to-own) in particular by revising the definition of the term ‘audiovisual media service’; |
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50.

deems it appropriate to look closely at whether it would be useful for the directive’s scope to cover certain online media strands (video) and downloading services (such as download-to-rent and download-to-own) in particular by revising the definition of the term ‘audiovisual media service’;

| 51. | notes that the TTIP negotiating mandate expressly stipulates that ‘the Agreement shall not contain provisions that would risk prejudicing the Union’s or its Member States’ cultural and linguistic diversity, namely in the cultural sector nor limit the Union and its Member States from maintaining existing policies and measures in support of the cultural sector given its special status within the EU and its Member States’; |
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51.

notes that the TTIP negotiating mandate expressly stipulates that ‘the Agreement shall not contain provisions that would risk prejudicing the Union’s or its Member States’ cultural and linguistic diversity, namely in the cultural sector nor limit the Union and its Member States from maintaining existing policies and measures in support of the cultural sector given its special status within the EU and its Member States’;

Regulation

Regulation

| 52. | supports the inclusion in the AVMSD of the principles set out by ERGA — the European Regulators Group for Audiovisual Media Devices — in its founding declaration, referring to ‘the identification, at European level, of common characteristics that any independent regulator in our sector should be equipped with’ in terms of independence, transparent decision-making and appointment processes, competence and expertise, the effectiveness of enforcement powers, dispute settlement mechanisms and review of regulators’ decisions by a judicial authority. |
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52.

supports the inclusion in the AVMSD of the principles set out by ERGA — the European Regulators Group for Audiovisual Media Devices — in its founding declaration, referring to ‘the identification, at European level, of common characteristics that any independent regulator in our sector should be equipped with’ in terms of independence, transparent decision-making and appointment processes, competence and expertise, the effectiveness of enforcement powers, dispute settlement mechanisms and review of regulators’ decisions by a judicial authority.

Brussels, 13 October 2015.

The President of the European Committee of the Regions

Markku MARKKULA

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