Décret n°90-66 du 17 janvier 1990 modifié relatif à la diffusion des oeuvres cinématographiques et audiovisuels - Consolidated version

Decree no. 90-66 of January 17, 1990
- consolidated version
implementing law no. 86-1067 of September 30, 1986, and laying down the general principles governing the diffusion of cinematographic and audiovisual works by television service editors.
modified by :
- decree n° 2001-1330 of December 28, 2001(JO of December 29, 2001)
- decree no. 2004-1481 of December 23, 2004(JO of December 30, 2004)
- decree n° 2007-1059 of July 3, 2007(JO of July 4, 2007)
- decree no. 2008-1242 of November 28, 2008(JO of November 30, 2008) [article 10]
- decree no. 2009-1271 of October 21, 2009(JO of October 22, 2009)

- decree no. 2010-416 of April 27, 2010(Journal officiel of April 29, 2010)

- decree no. 2010-747 of July 2, 2010 (Journal officiel of July 3, 2010)

The Prime Minister,

On the report of the Minister of Culture, Communication, Major Works and the Bicentenary and the Minister Delegate to the Minister of Culture, Communication, Major Works and the Bicentenary, responsible for Communication,
Having regard to the Directive of the Council of the European Communities of October 3, 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities;
Having regard to the Code de l'industrie cinématographique, and in particular article 19;
Having regard to law no. 66-537 of July 24 1966, as amended, on commercial companies, and in particular article 355-1;
Having regard to law no. 86-1067 of September 30, 1986, as amended, relating to freedom of communication, in particular article 27, paragraph 2 and article 70, paragraph 2; Having regard to decree no. 59-1512 of December 30, 1959, implementing the provisions of the decree of June 16, 1959, as amended, relating to State financial support for the film industry;
Having regard to Decree no. 86-175 of February 6, 1986 on State financial support for the audiovisuel program industry;
Vu le décret no 87-36 du 26 janvier 1987 modifié pris pour l'application des articles 27-I et 70 de la loi no 86-1067 du 30 septembre 1986 relative à la liberté de communication et fixant pour certains services de télévision le régime de diffusion des oeuvres cinématographiques et audiovisuelles;
Vu le décret no 87-717 du 28 août 1987 modifié portant approbation des cahiers des missions et des charges des sociétés Antenne 2 et France Régions 3 ;
Vu le décret no 89-35 du 24 janvier 1989 pris pour l'application des articles 27 et 70 de la loi no 86-1067 du 30 septembre 1986 relative à la liberté de communication et fixant, pour certains services de télévision diffusés par voie hertzienne terrestre ou par satellite, le régime applicable à la publicité ainsi que le régime de diffusion des oeuvres cinématographiques et audiovisuelles;
Vu le décret no 90-67 du 17 janvier 1990 pris pour l'application du 3° de l'article 27 de la loi no 86-1067 du 30 septembre 1986 modifiée relative à la liberté de communication et fixant les principes généraux concernant la contribution au développement de la production cinématographique et audiovisuel ainsi que l'indépendance des producteurs à l'égard des diffuseurs;
Having regard to the opinion of the French Superior Audiovisual Council no 89-2 published in the Journal officiel of November 3, 1989;
Le Conseil d'État entendu,

Decree:

Article 1
abrogated by decree n° 2001-1330

TITLE I
Definition

Chapter I
Definitions relating to works

Article 2
Cinematographic works include :
1° Works that have been granted an exhibition license within the meaning of article 19 of the aforementioned film industry code, with the exception of documentary works that have been shown for the first time on television in France.
2° Foreign works which have not obtained such a visa but which have been commercially exhibited in their country of origin.

Article 3
Long-length cinematographic works are those whose duration exceeds one hour.

Article 4
Audiovisual works include programs that do not belong to one of the following genres: long-running cinematographic works; news and current affairs programs; variety shows; gaming; programs other than drama, most of which are on set; sports broadcasts; commercials; teleshopping; self-promotion; teletext services.

Article 5
Original French-language cinematographic and audiovisual works are those produced entirely or mainly in the original version in French or in a regional language used in France.
Cinematographic works that have received investment approval within the meaning of article 19-1 of the aforementioned decree no. 59-1512 of December 30, 1959, before the date of application of the present decree, are assimilated to cinematographic works of EOF.

Article 6
I - European cinematographic or audiovisual works include :
a) Works originating in Member States of the European Community;
b) Works from European third-party States party to the European Convention on Transfrontier Television of the Council of Europe,
which meet the following conditions:
1. On the one hand, they must be produced essentially with the participation of authors, performers, technicians and creative collaborators residing in one or more of these States, and with the assistance of technical services provided in film studios, laboratories or sound studios located in these same States. Such participation and assistance may not be less than a proportion set by order of the Minister of Culture and Communication;
2. In addition, they must :
a) either be produced by a company whose head office is located in one of the above-mentioned States and whose president, director or manager, as well as the majority of directors, are nationals of one of these States, on condition that this company effectively supervises and controls the production of these works by personally taking or jointly sharing the initiative and the financial, technical and artistic responsibility for the production of the works in question, and guarantees their successful completion;
b) be financed for the most part by contributions from co-producers established in the above-mentioned States, on condition that the co-production is not controlled by one or more producers established outside those States.
The companies and co-producers referred to above must not be controlled, within the meaning of Article L.233-3 of the French Commercial Code, by one or more producers established outside these States.
II - European cinematographic or audiovisual works also include works co-produced within the managerial framework of agreements concluded between the European Community and third countries and meeting the conditions defined in these agreements.
III - Lastly, European cinematographic or audiovisual works include works produced under bilateral co-production agreements concluded between Member States of the European Community and third countries, where the majority of the financing of the works is provided by contributions from co-producers established in Member States, on condition that the co-production is not controlled by one or more producers established outside these countries.

Article 6-1
For works produced or co-produced by a producer established in France and for which the benefit of the State's financial support for the film and audiovisual program industry has been requested, the qualification of European work and that of work of original French expression are awarded by the French Superior Audiovisual Council after consultation with the Director General of the Centre national de la cinématographie.

Chapter II
Definitions relating to services

Section 6-2
A television service whose main purpose is the programming of cinematographic works and programs devoted to the cinema and its history is referred to as a cinema service.
A cinema service with multiple programming is a cinema service rebroadcast in full or in part in several programs within the meaning of 14° of article 28 or of the last paragraph of I of article 33-1 of the aforementioned law of September 30, 1986.
The services mentioned in the first and second paragraphs of this article are subject to a specific contract with one or more services with the same purpose.

Article 6-3
A "first-run cinema service" is a cinema service that annually shows one or more exclusive first-run cinematographic works on television, excluding pay-per-view, or more than ten exclusive second-run cinematographic works on television, excluding pay-per-view, within 36 months of their theatrical release in France.
A first-run cinema service is defined as a first-run cinema service that shows at least seventy-five cinematographic works annually on exclusive first-run television, excluding pay-per-view, within less than 36 months of their theatrical release in France, including at least ten original French-language works for which the rights have been acquired before the end of the shooting period.
In the light of commitments to acquire cinematographic works, particularly those of original EOF, made by a service editor, the French Superior Audiovisual Council determines annually, by November 30 at the latest, whether this service is considered to be a first exclusivity service on January 1 of the following year.

Article 6-4
A film heritage service is one that exclusively shows cinematographic works at least 30 years after their theatrical release in France.

Article 6-5
An audiovisual heritage service is a television service that devotes more than half of its diffusion time to audiovisual works shown at least 20 years after their first exploitation on a television service.

Article 6-6
A pay-per-view service is a television service summoning remuneration from users directly linked either to the duration of use of the service, or to the broadcast.

Article 6-7
A television service rebroadcast in full or in part in several programs within the meaning of article 28, 14°, or the last paragraph of article 33-1, I, of the aforementioned law of September 30, 1986, is referred to as a multiple-programming service.

TITLE II
Obligations to broadcast European cinematographic and audiovisual works and works of original EOF.

Chapter I
Obligations to broadcast cinematographic works

Article 7
I. For each of their programs, television service editors reserve, within the total annual number of diffusions and reruns of feature-length cinematographic works, at least :
1° 60% to the diffusion of European works ;
2° 40% for the diffusion of original EOF works.
II. The obligations to broadcast European works, on the one hand, and original EOF works, on the other, mentioned in I, must also be respected during prime time.
The hours between 8.30pm and 10.30pm are considered prime time. However, for cinema service editors and pay-per-view service editors, the hours between 6 p.m. and 2 a.m. are considered prime time.
III. For first-run cinema service editors, the proportions set out in I and II may be respected on a title-by-title basis, taking into account the total number of different long-form cinematographic works shown annually, subject to the following reservations:
1° European feature films must account for no less than 50% of the total number of annual diffusions and reruns;
2° Original French-language feature films must account for no less than 35% of the total number of annual broadcasts and reruns, including prime-time broadcasts.

Article 8
I. Television service editors not mentioned in Article 9 may not show more than 192 feature-length cinematographic works in each of their programs each calendar year.
For each calendar year, the number of diffusions taking place in whole or in part between 8.30pm and 10.30pm may not exceed 144.
II. Beyond the maximum number set in I, television service editors not mentioned in article 12 may show 52 long-run art house cinematographic works per year from the list drawn up by decision of the Director General of the Centre national de la cinématographie in accordance with article 2 of decree no. 2002-568 of April 22, 2002 defining and classifying art house cinematographic establishments.
The diffusion of art house cinematographic works falling within the additional quota opened by the first paragraph does not take place between 8:30 pm and 10:30 pm, and respects the obligations set out in article 7.
III. The ceilings mentioned in this article apply to all diffusions and reruns of any kind.

Article 9
I. Cinema service editors may not show more than 500 different feature-length cinematographic works per calendar year.
Each feature-length film may not be shown more than seven times in any three-week period.
For cinema services with multiple programming, each feature film may not be shown more than thirty-five times during a period fixed by the agreement with the French Superior Audiovisual Council, but not exceeding three months. For exclusive first-run original French-language cinematographic works, at least one of these diffusions must be shown on the main program from which the reruns originate.
An additional diffusion is authorized on the service and, where appropriate, on each program, on condition that it is accompanied by subtitling specifically intended for the deaf and hard-of-hearing.
II. Pay-per-view service editors may not show more than 500 different feature-length films per calendar year for the first time.

Article 10
I - Service editors not mentioned in article 11 may not show any feature-length cinematographic works:
1° Wednesday evenings, with the exception of art house films shown after 10:30 pm;
2° Friday evenings, with the exception of art house films shown after 10:30 pm;
3° Saturday;
4° Sunday before 8.30pm.
II - By way of derogation from 3° and 4° of I, service editors not mentioned in article 11 whose agreements or specifications make provision for them to devote a proportion of their net annual sales for the previous financial year to expenditure contributing to the development of the production of European cinematic works at least equal to 3,4% in 2008 and 2009, and 3.5% from 2010 onwards, and whose annual investment in cinematic production reaches a minimum amount calculated in accordance with conditions laid down by order of the Minister responsible for communication, may show :
1° On Saturdays after 10:30 pm, long-running art house films which have achieved a number of admissions in French cinemas during their first year of operation determined by a decree of the minister responsible for communication, or which were released in French cinemas more than twenty years ago;
2° On Sundays before 3 a.m., feature-length films released in French cinemas more than thirty years ago.
The schemes set out in article 7, section I, apply to the above-mentioned days and times.
These schemes apply in compliance with the conditions laid down by order of the Minister responsible for communication relating to the number of works concerned, within the limit of the maximum number set by article 8.

Article 11
I. Cinematographic heritage service editors may not show any feature-length films on Saturdays between 6 pm and 11 pm. On Sundays between 1 p.m. and 6 p.m., they may only show black-and-white cinematographic works.
II. - Publishers of first-run services may not show or rebroadcast any feature-length cinematographic works:
1° On Saturdays, from 6 p.m. to 11 p.m., for cinematographic works that have achieved, during the first year of their release, a number of admissions in French cinemas determined in accordance with the conditions laid down by order of the Minister responsible for communication;
2° Sunday, from 1 p.m. to 6 p.m.

For the purposes of this article, a first-run service is deemed to be a first-run service if the agreement stipulates, on the one hand, that the publisher must devote a minimum amount per subscriber and per month to the purchase of broadcasting rights for European cinematographic works and works of original French expression, identical to that devoted by a first-run service publisher, and, on the other hand, that it makes provision for a guaranteed minimum amount per subscriber.

III. - Other cinema service editors may not show or rebroadcast any feature-length films:
1° Fridays, from 6 p.m. to 9 p.m. ;
2° Saturday, from 6 pm to 11 pm;
3° Sunday, from 1 pm to 6 pm.
IV. Pay-per-view service editors are prohibited from showing any feature-length films on Saturdays between 6 pm and 10.30 pm.

Article 12
Publishers of terrestrial terrestrial services financed by user fees, and publishers of cinema and pay-per-view services distributed by a network not using frequencies summonsed by the French Superior Audiovisual Council, shall show feature-length cinematographic works within programs subject to special access conditions.
The scheduling of feature films by first-run cinema service editors may not be announced more than two months before the month in which they are actually scheduled.

Chapter II
Obligations to broadcast audiovisual works

Article 13
I. For each of their programs, television service editors shall reserve, within the total annual time devoted to the diffusion of audiovisual works, at least :
1° 60% to the diffusion of European works ;
2° 40% for the diffusion of original EOF works.
II. The agreement concluded with publishers of television services distributed by networks that do not use frequencies assigned by the French Superior Audiovisual Council may set broadcasting proportions for audiovisual works that are lower than those set out in I, without the proportion set out for European works being less than 50%, in return for a commitment by the service editor to invest in the production of previously unreleased audiovisual works of original EOF produced by independent production companies within the meaning of article 15 of decree no. 2010-416 of April 27, 2010.

III. The agreements and specifications of service editors broadcast by terrestrial hertzian means may set, within a limit of two years from the date scheduled for the effective start of broadcasts, the terms and conditions under which the service editor complies with the proportions set out in I, without these proportions being less than 50% for European works.

Article 14
The obligations to broadcast original French-language audiovisual works, on the one hand, and European works, on the other, mentioned in article 13, must also be respected during peak listening hours.
For cinema service editors, the hours between 8:30pm and 10:30pm are considered prime time.
For other television service editors, the hours between 6 p.m. and 11 p.m. and, on Wednesdays, between 2 p.m. and 6 p.m. are considered prime time. However, for service editors showing digital terrestrial broadcasting via a network that does not use frequencies assigned by the French Superior Audiovisual Council, and for rebroadcast programs of multiple-programming cinema services, agreements and specifications determine prime time according to the nature of the service's programming.
The provisions of this article do not apply to film service editors distributed by networks not using frequencies summonsed by the French Superior Audiovisual Council, nor to television service editors distributed by these same networks and whose average annual audience does not exceed 1.5% of the total audience for television services.

Article 14-1
The agreement concluded with multiple-programming television service editors may set the time between the first diffusion of an audiovisual work and its reruns on the service's various programs, taking into account where appropriate the genre of the works.

Article 15
Decisions of the French Superior Audiovisual Council taken on the basis of article 27, paragraph 2 of the aforementioned law of September 30, 1986, shall be effective for the duration of the calendar year, and must be made by November 30 of the previous year at the latest.

TITLE III
Transitional and final provisions

Article 16
I - Audiovisual works which, prior to March 31, 1992, benefited from State financial support for the audiovisual program industry, as provided for in the aforementioned decree no. 86-175 of February 6, 1986, are assimilated to original French-language audiovisual works.
II - Cinematographic works which, prior to March 31, 1992, qualified as reinvestment works within the meaning of article 13 of decree no. 59-1512 of December 30, 1959, are assimilated to original French-language cinematographic works.

Article 17
The Minister of Culture and Communication, Government Spokesperson, and the Minister Delegate for Communication are each responsible for the execution of the present decree, which will be published in the Official Journal of the French Republic.

___________________________________________

Decree no. 2004-1481 of December 23, 2004
(JO of 30.12.2004)

Article 10
Notwithstanding the deadline set in the last paragraph of article 6-3 of the aforementioned decree of January 17, 1990, as amended by article 4 of the present decree, the French Superior Audiovisual Council will determine, within one month of the publication of the present decree, whether the service editor making the request will be considered as a first-exclusivity service as of January 1, 2005.