Avis n° 2013-01 du 12 février 2013 sur un projet de décret portant modification du décret n° 2009-796 du 23 juin 2009 fixant le cahier des charges de la société nationale de programme France Télévisions

The French Superior Audiovisual Council (Conseil supérieur de l'audiovisuel), meeting in plenary session on February 12, 2013, was asked by the French Government to give its opinion on a draft decree amending the specifications of the national programming company France Télévisions, pursuant to Article 48 of Law no. 86-1067 of September 30, 1986 on freedom of communication. The Council's opinion is as follows.

I. - General comments

The Board reiterates its commitment to the conclusion of professional agreements between service editors and professional organizations representing audiovisual creation. It welcomes the flexibility of the scheme, which enables any publisher to approach professional organizations to adapt the specific terms of its contribution to the development of audiovisual production.

The Board notes that the draft decree submitted for its opinion illustrates this flexibility. Taking into account the November 22, 2012 amendment to the October 22, 2008 agreement signed between audiovisual production trade organizations and France Télévisions, this text makes provision for new expenses to be taken into account within France Télévisions' contribution:
- expenditure on financing festivals devoted to cinematic works, up to a limit of 0.1% of the amount of the obligation;
- external expenditure on the purchase of advertising space and poster campaigns for identified works covered by the contribution [...]";
- expenses incurred in the previous year that were not taken into account in the previous year, up to a limit of 2% of the current year's obligation.

The Board approves the inclusion, within France Télévisions' contribution to audiovisual production, of these three types of expenditure, which were already included in the contributions of other television service editors showing free-to-air broadcasts.

It considers that spending on financing festivals and promoting works contributes to the overall development of the audiovisual industry.

Enhancing the value of promotional expenditure encourages greater visibility for works, which indirectly benefits all partners in the creative process.

The possibility offered to service editors of valorizing, up to a certain limit, expenses incurred in financing festivals devoted to cinematic works is, for its part, an incentive to finance the organization of these festivals, which are essential to the vitality of the sector. The Conseil notes that France Télévisions and the signatory organizations of the professional agreement have nevertheless wished to limit these expenses more strictly than the regulatory threshold of 1% applicable to other free-to-air service editors. As a result, France Télévisions' contribution to audiovisual production remains more stringent than that applicable to other free-to-air service editors with sales in excess of 350 million euros.

As for taking into account expenses incurred during the previous financial year, this measure has the advantage of giving editors' commitment greater flexibility in managing their investments in audiovisual production. It enables them to smooth out a particularly large financial contribution over two financial years, thereby helping to finance projects involving higher production costs. The Board notes that the desire to provide greater flexibility in the management of France Télévisions' investments has not gone so far as to make provision for the possibility of taking into account a possible drop in its sales, under the conditions set out in Article 14, 7° of Decree no. 2010-747 of July 2, 2010 on the contribution to the production of cinematographic and audiovisual works by television services shown on terrestrial channels.

The Board is pleased to note that the agreement mentions a commitment by France Télévisions to communicate each year to the signatory organizations the list of works concerned by the new expenses thus taken into account. The Board nevertheless considers that this commitment could have been usefully included in the public group's specifications.
Generally speaking, the Council encourages service editors to report regularly to the signatory organizations of professional agreements on the fulfillment of their commitments.

II - Comments on specific schemes

The Board notes that, in accordance with the aforementioned professional agreement, the current wording of the draft decree limits the inclusion of promotional expenses for works valued under the contribution to external expenses for the purchase of advertising space, excluding in particular those related to "press screenings", given the difference in wording with article 12, 7° of decree no. 2010-747 of July 2, 2010.

The Board notes that the draft decree does not reiterate the limitation of these expenses, but that, in accordance with decree no. 2010-747 and the same professional agreement, this consideration must be limited to 5% of the production estimate and 0.5% of the amount of the obligation. To avoid any uncertainty, the wording of the draft decree should be completed on this point.

With regard to the threshold at which these same expenses can be included in the contribution, the professional agreement stipulates that expenses exceeding a total annual amount of 500,000 euros will be taken into account, corresponding to the average annual amount spent on promoting cinematic works known as "heritage" in 2010 and 2011. The draft decree states that only the portion of expenditure exceeding 500,000 euros will be taken into account, without specifying that this amount is annual. The Board recommends that the specifications be drafted accordingly.

By transposing the rider to the multi-year agreement between France Télévisions and the organizations representing audiovisual producers, the text also allows France Télévisions to acquire rights for an additional multiple diffusion on its regional and local television services shown overseas France. The Board notes that this option will make it easier for the public broadcasting group to enrich its programs shown overseas France. At the same time, it will continue to pay close attention to the economically difficult situation of private local television services in the French overseas territories.

He also questions the wording of the draft decree, which mentions this additional multicasting in article 9 of the specifications appended to decree no. 2009-796 of June 23, 2009. To avoid any misinterpretation, the Board considers that this provision should instead appear in the appendix to the specifications relating to the scope of the rights assigned.

In order to implement the above comments, the Board proposes the drafting changes listed in the appendix to this notice.

This notice will be published in the Journal officiel de la République française.

Browse the appendix to this notice on the Official Journal page indicated above.