Avis sur le projet de décret modifiant les décrets n°90-66 et 2001-1332 pris pour l'application des art. 27, 28, 33, 33-1, 70 et 71 de la loi

Opinion no. 2004-3 of October 5, 2004 on the draft decree amending decrees no. 90-66 of January 17, 1990 and no. 2001-1332 of December 28, 2001 implementing articles 27, 28, 33, 33-1, 70 and 71 of law no. 86-1067 of September 30, 1986.

Having been asked to give its opinion, pursuant to articles 27 and 33 of law no. 86-1067 of September 30, 1986, as amended, on freedom of communication, on a draft decree amending decrees no. 90-66 of January 17, 1990 and no. 2001-1332 of December 28, 2001, the French Superior Audiovisual Council, after deliberation, gives the following opinion, which concerns both the draft decree itself and other provisions of decree no. 90-66 which it considers could be amended on this occasion.

I - Comments on the provisions of the draft decree

The Conseil notes that the purpose of the draft decree is, on the one hand, to bring the aforementioned decrees into line with the amended legislation and, on the other hand, to take account of the developments in relations between service editors, in particular Canal+, and representatives of the film industry.
It notes that articles 2 and 5 of the draft decree create a sub-category of exclusive first-run services within the first-run diffusion services, which are granted a more flexible schedule in return for the special effort they make to finance the film industry.
The Council welcomes this new flexibility, which will enable better exposure of cinema on television.
The Council notes, however, that for many years, the cinema regime has been based on prior agreements with the industry, with the result that regulations are becoming increasingly complex and difficult to understand.
With regard to the scheme made provision for by the draft decree, the Conseil notes that the creation of a sub-category of exclusive first-run services within the first-run diffusion services further increases the complexity of the regulatory scheme.
The Council also questions the diffusion schedule for cinematographic works resulting from the draft decree, with regard to Wednesday afternoons. Wednesday afternoons are still prohibited for first-run cinema services that are not exclusive first-runs, whereas they are authorized for all other cinema services. A general opening to all cinema services would seem justified.
The French Superior Audiovisual Council also considers that several improvements could be made to the draft decree.
First-run channels are subject to two types of obligations, one set out in article 6-2 of decree 90-66 (obligation to show at least 75 cinematographic works on an exclusive first-run basis) and the other in article 12-1 (obligation to show at least 20 cinematographic works of original EOF for which the rights have been acquired before the end of the shooting period). For the sake of readability, it would be preferable for these two obligations to be grouped together in the same article, since cumulative compliance with both obligations is necessary to qualify as a first-exclusive service.
What's more, since exclusive first-run services are a sub-category of first-run cinema services, their definition could usefully be placed in article 6-3 of decree no. 90-66, after the definition of first-run cinema services, rather than in article 6-2.
Both for the definition of first-run cinema services and for first-run exclusive services, the French Superior Audiovisual Council considers it desirable to specify that the number of works diffused meeting the criteria laid down is assessed annually.
Lastly, under the provisions of the definition of first-run cinema services, the CSA considers it desirable to specify that the number of works shown meeting the criteria laid down should be assessed annually.
It therefore considers it essential to make provision for a special scheme, along the lines of that provided for in the second paragraph of 2° of article 27 of the French Superior Audiovisual Council Act of September 30, 1986, concerning significant listening hours.
The draft decree could thus be supplemented by a scheme making provision for classification as a prime exclusivity service to be carried out each year by the French Superior Audiovisual Council, at the service's request and in the light of the evidence it produces to prove its ability to meet the required conditions.

II - Comments on the other schemes of decree no. 90-66

The draft decree submitted to the French Superior Audiovisual Council calls for a number of drafting improvements to decree no. 90-66 of January 17, 1990, as amended.
For example, article 6-1 could be amended to specify that the French Superior Audiovisual Council is competent to qualify works produced or co-produced by a producer established in France, when the benefit of State financial support has not been requested.
In article 6-6, which defines pay-per-view services, the requirement that user remuneration be "directly linked either to the duration of use of the service, or to the program" does not seem compatible with season or year-round subscription formulas (notably soccer seasons or theatrical supplies). It would therefore be advisable to expressly provide for the possibility of season subscriptions, to the exclusion of subscriptions to pornographic programs, on condition that the French Superior Audiovisual Council, by contract, ensures that this type of subscription does not lead to the creation of full-time channels, even on a temporary basis.
It would be desirable for article 7, concerning the diffusion of European cinematographic works and original EOF during prime time, to specify, as was the case before its modification by decree n° 2001-1330 of December 28, 2001, that works broadcast in whole or in part in the segments thus defined are considered to be diffused during prime time. In fact, the deletion of this reference does not appear to have been intentional, and introduces doubt as to how this obligation is to be met.
Article 14, relating to prime time for the broadcasting of audiovisual works, refers to the agreement the setting of these times "for service editors broadcast by terrestrial hertzian channel in digital mode, distributed by cable or broadcast by satellite as well as for rebroadcast programs of multiple programming cinema services". This wording should be amended on two points, in view of the amendments made to articles 33 and 33-1 of the law of September 30, 1986 by law no. 2004-669 of July 9, 2004.
Firstly, this article should no longer refer to services "distributed by cable or shown by satellite", but to services "distributed by networks not using frequencies summonsed by the French Superior Audiovisual Council".
Secondly, the reference to the agreement is not relevant for services subject to simple declaration (II of article 33-1 of the law), for which peak listening times should be set by decree.
Finally, the Council notes that the draft decree does not make the diffusion schedule for cinematographic works on pay-per-view services more flexible (article 11 of the decree). It understands that current discussions on media release chronology, necessitated by the eventual development of video-on-demand, are prompting a deferral of the development of this schedule. Nevertheless, it believes that these services should eventually benefit from the most flexible schedule.