French Superior Audiovisual Council's opinion on a draft decree setting the regime applicable to channels distributed by networks not using frequencies it summonses

Avis n° 2010-01 du 26 janvier 2010 relatif à un projet de décret fixant le régime applicable aux services de radio et de télévision relevant de la compétence de la France distribués par les réseaux n'utilisant pas des fréquences assignées par le Conseil supérieur de l'audiovisuel

Seized for an opinion by the Government, pursuant to articles 9 and 33 of law no. 86-1067 of September 30, 1986, as amended, on freedom of communication, of a draft decree setting the regime applicable to radio and television services falling within the competence of France distributed by networks not using frequencies assigned by the French Superior Audiovisual Council, the latter, after deliberation in plenary session on January 26, 2010, issues the following opinion.

I. - General comments

In its opinion of May 9, 2001 on decree no. 2001-609 of July 9, 2001, the French Superior Audiovisual Council recommended the conclusion of inter-professional agreements between service editors and producers to determine the terms of application of a decree setting the general managerial framework for the contribution of editors to the development of audiovisual production.
However, as already mentioned in its opinion no. 2009-8 of July 15, 2009 on the decree modifying the system of contributions to audiovisual production by service editors broadcasting over the air in analog mode, the Committee regrets that not all professional organizations were brought together to draw up these agreements. What's more, the agreements were only negotiated and signed by a limited number of service editors out of the total number of existing editors.
The Conseil notes that the draft decree concentrates a significant proportion of publishers' investments on the production of audiovisual works in the following genres: drama, animation, creative documentaries, including those inserted into a program other than a news broadcast or an entertainment program, music videos and the recording or recreation of live performances.
Consequently, in the interests of guaranteeing a diversified supply of programs in the complementary audiovisual landscape, the Conseil considers that refocusing investment on the audiovisual works listed above, known as "heritage" works, runs counter to this objective.
In addition, the Conseil summons the Government's attention to the risk of standardization of formats that this scheme entails. In the interests of viewers and the economic equilibrium of the pay-TV market, it insists on the need to preserve the diversity of these formats. In this respect, he points out that the high rate of the contribution to the production of audiovisual heritage works is not adapted to the specific editorial characteristics of certain service editors, and could result, for some of them, in the need to profoundly modify their editorial line, and consequently incur heavy investments for service editors whose economic situation is sometimes fragile.
The Conseil also points out that the obligation to devote a proportion of service editors' contributions to "heritage" audiovisual works is not provided for in the law of September 30, 1986 for audiovisual communication services not using frequencies assigned by the Conseil.
While the Conseil fully shares the objective of this legislative provision, which is intended for television services that are shown over the air, it considers it completely unjustified and dangerous for the future of pay-TV that, as a result of this draft decree, publishers who have not signed the agreements should be subject to the obligations negotiated by other publishers with producers.
Lastly, the Conseil notes that, while a scheme has been made for taking into account investment in the production of on-set programs, this seems insufficient given the high level of contribution to the development of the production of so-called "heritage" audiovisual works.
For this reason, the Conseil recommends the inclusion of an alternative to the schemes proposed in the draft decree, in order to take better account of the specific characteristics of the various publishers, and to ensure that they are treated fairly with regard to their editorial format.

Coming into force of the decree in 2010

The Decree's entry into force in 2010 will pose difficulties for service editor signatories to the July 22, 2009 agreements ("ACCeS agreements") and the December 17, 2008 agreements ("Orange agreements"), who anticipated 2009 as the first year of application.
As a transitional measure, it is proposed that, by way of derogation, the publishers concerned be able to opt for the draft decree regime for 2009, as permitted by article 91 of the March 5, 2009 law on audiovisual communication and the new public television service.

II. - Comments on certain schemes

Ramp-up of the asset-based obligation

The Conseil takes note that it will have the option of setting out in the agreements concluded with service editors the terms under which the editor will be able to comply, within three years, with the obligation to devote part of its contribution to investments in audiovisual works in the genres listed in the third paragraph of article 11 of the draft decree.
However, if the optional system proposed in III of this opinion is not adopted, the Conseil considers that the ramp-up period should extend over five years rather than three, to enable publishers who have not signed the agreements to adapt their programming and investments to the new regulations.

Scope of rights assigned

The Council reiterates its commitment to schemes that promote the circulation of works. It notes with regret that the rights negotiated in the agreements concern, for certain genres of audiovisual works, long durations and large numbers of shows.
It also notes that, in the case of short films, these rights transfer conditions were negotiated without the presence of organizations representing this sector.
Furthermore, the Council questions the inclusion in the agreements of publishers who have not signed the agreements of stipulations relating to the scope of the rights assigned which, insofar as they are no longer one of the criteria for the independence of the works, fall within the scope of contractual relations between publishers and producers.

The specific regime for service editors who devote an annual amount of

the majority of their annual diffusion time to live shows and music videos

The draft decree authorizes the derogatory system of contribution to the development of audiovisual production (a rate then set at 8%) for "service editors who devote more than half their annual diffusion time to live performances and music videos, the latter representing at least 40% of annual diffusion time", and no longer for editors devoting more than half their annual diffusion time to music videos alone.
The Conseil repeats its commitment to the existence of a diversified musical supply on television services. It considers that this provision encourages the programming of live shows, and thus makes it possible to diversify the programming of publishers benefiting from this derogation. It considers that such an opening is favorable to cultural diversity and audiovisual creation, by encouraging the publishers concerned to invest in the production of live shows.

Expenditure on adapting works for the blind or partially sighted

The Council appreciates the fact that it has been entrusted with the possibility of including in agreements a multiplying coefficient for taking into account the costs of adapting works for blind or partially-sighted people within the contribution of service editors.
It fully shares the objectives of this measure, which encourages publishers to implement the means needed to develop audiodescription of television programs.

III. - Schemes proposed by the Council

Make provision for a derogation from the "patrimonial" obligation

subject to approval by the Board

The draft decree proposes two options: a general regime set out in article 11, and a regime defined in article 14, corresponding to the stipulations negotiated by publishers with professionals.
However, the overall rate of the editors' commitment to the development of audiovisual production, set at 12% - well below the rate laid down in Decree no. 2002-140 of February 4, 2002 - was negotiated by the industry in return for a differentiated approach to the expenses incurred by service editors, depending on whether the investment was for heritage or non-heritage works, or for non-drama programs produced mainly on set.
However, article 11 of the draft decree authorizes the inclusion of all expenditure on works that do not belong to the so-called "heritage" genres, contrary to the scheme set out in the agreements. The Council considers that, under these conditions, the contribution rate should be higher than 12%.
To preserve the diversity of formats, the Conseil also proposes the introduction of an additional option, which would not require the production of heritage audiovisual works, but would offer the possibility, under certain conditions, of taking into account expenditure on non-drama programs mainly produced on set. In this case, the contribution rate would be close to the current rate (16%). The application of this scheme would be subject to assessment by the Conseil, taking into account the publisher's programming.
Indeed, the possibility of setting, in the agreements, the obligation provided for in II of article 11 of the draft decree ("patrimonial" obligation) at a level lower than 8.5% of resources "without being able to be lower than 6%" seems insufficient with regard to the programming of certain publishers. Moreover, it does not repeat the provisions of the July 22, 2009 agreements, which excluded the application to a publisher, given the nature of its programming, of the contribution to the production of so-called heritage works.

Expenditure on safeguarding, restoring and promoting

of audiovisual heritage works, as well as expenditure on the

the promotion of works and the training of authors.

Article 33 of the law of September 30, 1986 stipulates that " for services whose main purpose is the programming of cinematographic or audiovisual works, when the nature of their programming justifies it, this contribution may, in whole or in part, take into account the costs of safeguarding, restoring and developing heritage works".
The Conseil considers that this legislative provision should be included in the decree. In its view, it is essential that these expenses be taken into account, in order to encourage broadcasters to contribute to the conservation of France's audiovisual heritage.
The draft legislation does not take into account the costs incurred by publishers in promoting works and training authors, even though article 33 of the law of September 30, 1986 stipulates that these costs may be included in the publisher's contribution to the development of audiovisual production.
Although these expenses are not provided for in the agreements, insofar as the draft decree is intended to apply to all service editors distributed by networks not using frequencies summonsed by the Conseil, the latter proposes that this provision also be applied to all editors, under the same conditions as those applicable to editors of services broadcast over the air in analog mode.

Adding value to non-drama programs

mostly on set

The Conseil considers that it is necessary to specify, in the same way as in decree no. 2002-140 of February 4, 2002, and contrary to what is stated in article 14 of the draft decree, that these are " programs other than drama, mostly produced on set and unpublished, and produced by independent production companies".

Revenue entitlement
The Conseil recalls that the setting of a revenue entitlement is a purely contractual matter between service editors and producers, and as such is a private matter. The wording of the draft decree gives the Conseil the power to set revenue rights for all service editors, whether or not they are signatories to the agreements.
Article 15 of the draft should therefore be amended as follows: " When it [the publisher] has financed a substantial part of the total cost of the work, it may hold a right to the operating revenues".


In order to implement the above remarks, the Council proposes the drafting changes listed in the appendix to this opinion.


Paris, January 26th 2010.

For the French Superior Audiovisual Council :
Le président,
M. Boyon

Browse the appendix to this notice :
Official Journal of April 29, 2010