French Superior Audiovisual Council opinion of April 12, 2012 on a draft decree amending decree no. 90-66 of January 17, 1990 on the diffusion of cinematic and audiovisual works and decree no. 2009-796 establishing the specifications of France Télévisions.

Avis n° 2012-09 du 12 avril 2012 relatif à deux projets de décret, l'un modifiant le décret n° 90-66 du 17 janvier 1990 pris pour l'application de la loi n° 86-1067 du 30 septembre 1986 et fixant les principes généraux concernant la diffusion des œuvres cinématographiques et audiovisuelles par les éditeurs de services de télévision, the other amending decree no. 2009-796 of June 23, 2009 setting out the specifications for the national program company France Télévisions, as well as a draft order abrogating the order of November 28, 2008 issued for the application of II of article 10 of the decree of January 17, 1990.

Requested by the Government, in application of articles 9, 27, 33 and 48 of law no. 86-1067 of September 30, 1986, as amended, on freedom of communication, to give its opinion on two draft decrees, one decree no. 90-66 of January 17, 1990, 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, the other amending decree no. 2009-796 of June 23, 2009 laying down the specifications of the national program company France Télévisions, as well as a draft order abrogating the order of November 28, 2008 issued for the application of II of article 10 of the aforementioned decree of January 17, 1990, the French Superior Audiovisual Council, having deliberated in plenary session on April 12, 2012, issues the following opinion.

I. - General comments

The amendments proposed by the draft decrees partially reflect the agreements concluded by France Télévisions and Canal+ respectively with representatives of the film industry, which aim, in return for financial commitments by these television groups to pre-finance cinema, to make the programming schedule for cinematographic works on television services more flexible, as set out in articles 10 and 11 of the decree of January 17, 1990.
On several occasions, the Conseil has emphasized that it is in favor of the regulatory obligations of television groups and channels with regard to the exhibition and financing of audiovisual and cinematographic works being determined after consultation with the industry. This general approach was adopted, on the basis of articles 28 and 33-1 of the law of September 30, 1986, for the drafting of decrees no. 2010-416 of April 27, 2010 and no. 2010-747 of July 2, 2010 concerning the obligations of television service editors to finance audiovisual creation.

The Conseil's desire to open up the diffusion schedule for cinematographic works

In its opinion of July 22, 2008 on amendments to the decree of January 17, 1990 concerning the programming schedule for cinematographic works on non-theatrical services, the Conseil considered that, given the multiplication of diffusion media, a more flexible schedule for the diffusion of cinematographic works should be studied in order to diversify and strengthen their exposure on television services.
It notes that the draft decree by the Conseil d'Etat will diversify the exposure of cinematographic works, by authorizing their diffusion for certain publishers on days and at times prohibited for others, without changing the maximum number of films authorized.

An opening that takes into account the involvement of television groups in pre-financing the cinema

Insofar as the diffusion schedule for cinematographic works has always been one of the structuring elements of the sector's economy, the Board approves the principle of adjustments to this schedule negotiated in a graduated manner by professionals in the film industry, depending on the commitments made by service editors in favor of the renewal of creation, and particularly its pre-financing. This principle can only have beneficial effects, insofar as it encourages all publishers to continue their investment efforts.
It also remains essential to preserve the specificity of the cinematographic works diffusion grids for cinema services, pay services accessible only to their subscribers, whose investments in the film economy, editorialization and promotion of cinema justify that they benefit from a diffusion regime more favorable to the exhibition of cinematographic works.
The potential opening up of the first part of Wednesday evenings to the diffusion of feature-length cinematographic works, without any conditions relating to the type of films on offer, significantly reduces the gap between cinema and non-cinema services. It is logical that the latter should make significant commitments in return.

II - Comments on specific schemes

Schemes applicable to non-theatrical services

The draft decree amending the decree of January 17, 1990, following the conclusion of the stipulations of the rider of March 26, 2012 to the agreement signed by France Télévisions on December 20, 2007, abrogates the schemes relating to the programming of cinematographic works in the segment starting at 10:30 pm on Saturdays and ending at 3 am on Sundays. In its opinion of July 22, 2008, the Board regretted the complexity of the constraints linked to this opening up of the schedule, and suggested a development in the agreements between service editors and film industry professional organizations.
The strong commitments made by France Télévisions correspond to the possibility for France 4 to show feature-length cinematographic works in the first half of the evening on a day previously closed to diffusion, in this case Wednesday. These commitments are far superior to those made by France 3 to open the second half of the Saturday evening slot to older films, or those with limited box-office receipts in their first year of release.
The Conseil deplores the fact that the condition relating to the average audience of the service on which cinematographic works could be shown on Wednesday evenings in the first part of the evening, provided for in the agreement concluded with the professional organizations, has not been included in the draft decree. In the absence of this clarification, any service editor (with the exception of France Télévisions) who chooses to meet the conditions set by the decree, whatever its average annual audience share, could offer feature films at this time, including on a service with a high average audience, whereas such an eventuality was undoubtedly not intended by the negotiators. The Board therefore recommends that the 5% average audience cap be included in the decree.
The Council appreciates the fact that the investments taken into account by the draft decree include expenditure on audio description, thus promoting accessibility to works for the visually impaired.
By setting a minimum rate and amount of investment for the development of cinematographic production, the draft decree only authorizes the showing of cinematographic works on Wednesdays in the first part of the evening under conditions negotiated to date by one of the players, albeit at a very high level of financial commitment. By thus freezing the conditions for showing films on Wednesdays, it does not allow for the consideration of professional agreements that could be concluded by other editors in the event that, in consultation with the industry, they wish to benefit from this possibility in return for other specific commitments.
The Conseil therefore questions whether the draft decree submitted to it respects the principle of equal treatment between television service editors.
The draft decree makes provision for a specific diffusion quota for the first part of Wednesday evenings, to ensure that at least 85% of cinematographic work programming is reserved for European works or works of original EOF. On the one hand, however, this scheme unnecessarily complicates the regulations by adding this quota to those covering the whole of broadcasting and prime time, and, on the other hand, mechanically induces the possibility of an increase in the share of foreign works on other broadcasting days, within the overall quotas. In any case, the Board considers that, given the particular situation of France Télévisions, it would be more appropriate to include it in the specifications of the national program company.
For all these reasons, the Conseil proposes that the Conseil d'Etat decree authorize the diffusion of cinematographic works on Wednesdays in the first part of the evening by service editors whose average annual audience does not exceed 5% of the total audience of national television services, and refers to the specifications (for national program companies) or agreements (for private television services) the determination of the proportion of net annual sales for the previous financial year devoted to expenditure contributing to the development of the production of European cinematographic works, where this exceeds the rate of 3.2% stipulated by the decrees of April 27 and July 2, 2010, as well as the minimum annual investment in the production of cinematic works by the service or television group concerned. The Board will ensure that agreements take account of the relevant agreements signed by television groups and services with professional film organizations.
The draft decree amending the specifications of France Télévisions could thus be supplemented by the provisions that the Board proposes to separate from the draft decree by the Conseil d'Etat, relating to the rate of the contribution, the minimum investment and the sub-quota for the exhibition of European and original EOF films.
Consequently, the Board has no comment to make on the draft decree in the file.

Schemes applicable to cinema services

The Board approves the proposed amendment, which transposes some of the stipulations of the agreement signed by the Ciné+ service group and all film industry professionals on October 13, 2011.
It notes that under the provisions of the draft decree, all first-run cinema services or cinema services included in a group of services comprising at least one first-run cinema service may benefit from its schemes.

III - General comments from the Conseil on the framework for the diffusion of cinematographic works

Generally speaking, the Board's reflections in the first quarter of 2012 on the measures governing the diffusion and exhibition of cinematographic works on linear television services and on-demand audiovisual media services, led it to consider that regulatory flexibility is now necessary, in line with the television groups' commitment to funding the cinema, both in terms of "forbidden days" and the release chronology which, in particular, determines the timetable for showing films on television from the time of their theatrical release.
These rules were drawn up in an audiovisual universe that was very different from today's, notably due to the development of on-demand services, connected television and "nomadic" consumption. However, some players are beginning to find them partly unsuitable, even though their objectives remain fully justified.

The opening of "forbidden days

The Conseil feels it is important to ensure that the film supply on television remains diverse and appealing, insofar as service editors are major financiers of cinematographic creation.
As a result, the Council recommends that discussions aimed at making the diffusion schedule for cinematographic works on television more flexible be pursued, and that film industry professionals and service editors conclude agreements enabling television services to be given programming flexibility commensurate with their levels of pre-financing of cinematographic creation.

A reflection on media release chronology

The Conseil believes that it is important for cinema and television professionals to work together to find the adaptations required by new production, distribution and consumption practices, without calling into question the very principle of media release chronology, which aims to maximize the value and revenue of a film by staggering its exploitation over successive media.
Adaptations to this chronology would strengthen its effectiveness, while taking into account the objective of developing the legal supply available on the Internet and improving the exposure of cinematographic works on both linear and non-linear services.

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In order to implement the above comments, the Council proposes the editorial amendments listed in the appendix to this notice (see the Official Journal page).

This notice will be published in the Official Journal of the French Republic.

Paris, April 12, 2012.

For the French Superior Audiovisual Council :

Le président,

M. Boyon