Opinion on the draft decree on the contribution of terrestrial channels to the development of the production of works of art

On December 11, 2001, the French Superior Audiovisual Council (Conseil supérieur de l'audiovisuel) was asked to give its opinion, pursuant to article 27 of law no. 86-1067 of September 30, 1986, as amended, on freedom of communication, on a draft decree concerning the contribution of television service editors broadcasting free-to-air by terrestrial hertzian means in analog mode to the development of the production of cinematographic and audiovisual works. After deliberation, the Council gave the following opinion on the various measures envisaged by the draft decree:

Withregard to cinematic production, the Conseil approves the two proposed measures.

- Article 2
The Council approves the proposed amendment, which harmonizes with current contract employee practices.

- Article 3
The Conseil is pleased to note that on this point the government has responded to one of the observations it made in its opinion no. 2001-8 of October 2, 2001 on the draft decree laying down the general principles governing the diffusion of services broadcast by terrestrial hertzian means in digital mode.
It would also like to point out that the observations it made in this opinion were intended to be general in scope. It considers it logical that the notion of independence should be applied consistently to both cinematic and audiovisual production. With this in mind, in its opinion n°2001-4 of May 9, 2001 on the draft decree concerning the contribution of publishers of services broadcast free-to-air by terrestrial hertzian means in analog mode to the development of the production of cinematographic and audiovisual works, it approved the introduction of independence criteria linked to the work for cinematic production, following the example of what already existed for audiovisual production. Today, the Conseil can only regret that the modification made on this point in the new draft decree excludes one of the two sectors from its scope. It would therefore like to see this measure extended to audiovisual production.

Withregard to audiovisual production, the Board approves the proposed amendments to articles 5 and 6, but has reservations about those contained in articles 4 and 7.

- Article 4
This article of the draft decree makes provision for limiting the independence criterion relating to the duration of rights, as set out in article 11, I, 1°, to exclusive rights only. Such a measure seems to correspond to the situation of cable and satellite channels, which often acquire non-exclusive rights. Consequently, this measure should only be included in draft decrees specific to cable, satellite and digital terrestrial TV channels.

- Articles 5 and 6
The Conseil approves the proposed amendments to these articles of the draft, which allow national program companies, like authorized services, to acquire with the pre-purchase of analog terrestrial broadcasting rights, rights for the full and simultaneous resumption of their programs for future digital terrestrial diffusion.

- Article 7
Insofar as the decree of July 9, 2001 and the draft decrees make it possible to include, in the contribution to the development of the production of audiovisual works, purchases of rights which will occupy an important place within the investments made by cable and satellite channels and digital terrestrial television, the Conseil considers, as it emphasized in its opinion of October 2, 2001 on the draft decree on digital channels, that the assessment of independence applied to this mode of acquisition deserves appropriate treatment.
The measure referred to in article 7 will have secondary effects on the hitherto unregulated distribution of audiovisuel programs. This activity, which is characterized by the concentration of players, contributes to the financing of new works and helps to circulate them. In the absence of a prior impact study, the Conseil considers that it is not yet in a position to assess all the consequences of such a scheme, particularly for cable and satellite channels, and especially for digital terrestrial TV channels. In any case, it suggests that such a study be carried out within the framework of the Observatoire de la production audiovisuel (Audiovisual Production Observatory) which the government is planning to set up.
Until now, the Conseil strictly applied decree no. 90-67 of January 17, 1990, as amended, by examining the independence of the initial producer of the work, even if the latter was not the contractor, and if the channel had acquired these rights from a distribution company with which it had a capital link, in order to deduct purchases of rights under the independent production obligation.
The Conseil considers that taking into account the criterion of ownership of the rights is the relevant and sufficient criterion for qualifying a purchase. Indeed, any additional criterion relating to the company carrying out the transaction would have the effect of framing the distributor's business, which the Conseil does not consider desirable. The Conseil is in favor of an independence criterion for qualifying purchases under article 9.3, based on the threshold of direct or indirect ownership of the work by the broadcaster. This threshold must be made provision for at a sufficiently high level to prevent purchases of works co-produced by the service editor under the previous regulations from being qualified as dependent.
The extension of these schemes to cable, satellite and digital terrestrial channels must be accompanied by the possibility of modulation of the independent production obligation rate by the Conseil. The Conseil should be able to set a rate of between 50% and 66% of the overall annual obligation in service editor agreements, adapted to the formats and nature of programming.