Opinion of the French Superior Audiovisual Council on a draft decree concerning the transnational application of the provisions of Article L. 333-7 of the French Sports Code
Opinion no. 2010-23 of November 4, 2010 on a draft decree concerning the transnational application of the provisions of article L. 333-7 of the French Sports Code
The French Superior Audiovisual Council (Conseil supérieur de l'audiovisuel) has been asked by the French Government, in application of article L. 333-7 of the French Sports Code, to issue an opinion on a draft decree concerning the transnational application of the schemes set out in the same article. After deliberating in plenary session on November 4, 2010, the Council issues the following opinion.
The draft decree contributes to the transposition into French law of the provisions of Article 3 duodecies of Directive 2007/65/EC of the European Parliament and of the Council of December 11, 2007, known as "Audiovisual Media Services" (now codified in Article 15 of Directive 2010/13/EU of the European Parliament and of the Council of March 10, 2010), which establishes the principle of the right of access for service editors who do not hold broadcasting rights to events "of great interest to the public" to short extracts from broadcasts of these events.
In accordance with the provisions of article 20-4 of law no. 86-1067 of September 30, 1986 on freedom of communication, the conditions of access to short excerpts from broadcasts of "events of any kind which are of great interest to the public" are governed under French law by the provisions of article L. 333-7 of the French Sports Code, the conditions of application of which are set out in the draft decree.
The Council reiterates the particular attention it pays to the general issue of the public's right to information on sporting events, and in particular the right of access to short excerpts, the contours of which it helped to define by presiding over the adoption, back in January 1992, of a code of good practice relating to the radio broadcasting of sporting events. The principles of this code were taken up by the legislator in 1992. Article L. 333-7 of the French Sports Code thus incorporates most of the general managerial framework for the right of access to short extracts laid down in the Code of Conduct.
The Council considers that, overall, the draft decree meets the need laid down by the Audiovisual Media Services Directive to implement in French law the principle of free access within the European Economic Area for service editors who are not rights holders to short extracts of events of great interest to the public, for which the audiovisual exploitation rights are held by an editor on an exclusive basis.
However, it notes that the draft decree covers only one of the two branches of the right to short extracts, as distinguished in the second paragraph of Recital 55 of the Directive, and does not include any provisions relating to the conditions of diffusion of short extracts.
In its contribution to the debate on the transposition of the directive, published on April 15 2008, the Council had indicated, with regard to the problem of the diffusion of short extracts, that the French legal manager "should be completed to ensure the transposition of the directive, of which article 3 duodecies makes provision for, in paragraph 6, that Member States "shall ensure, in accordance with their legal systems and practices, that the terms and conditions for the supply of such short extracts are defined, in particular as regards the arrangements for financial compensation, the maximum length of short extracts and the deadlines for their diffusion. " At present, article L. 333-7 of the French Sports Code establishes the principle of the right to short extracts, without defining their duration or deadlines. This addition could result from the adoption of the decree implementing this article".
The Council regrets that the draft decree provides only an imperfect response to the questions that have been posed to the audiovisual industry for the diffusion of sports programmes since 1992, due to the absence of a decree implementing article L. 333-7 of the French Sports Code, and to which it wished to provide some answers by initiating in 2008 a concerted reflection on the right to sports information, which led it to propose a draft inter-professional agreement.
Lastly, the Council notes that the draft decree, in strictly transposing the provisions of Article 15 of the Audiovisual Media Services Directive, reserves the right of access to short extracts from broadcasts of sports competitions solely to "television services and their on-demand audiovisual media services which make the same program available on a deferred basis". The scope of application of the draft, which determines the "conditions of application" of article L. 333-7, does not cover that of this article, which makes provision for the application of the right of quotation to any "service of communication to the public by electronic means".
The Council therefore considers it desirable that this discrepancy in scope between article L. 333-7 of the French Sports Code and the decree which will determine the conditions of application on the question of access to images, be resolved in compliance with the Directive and in such a way as to remove any risk of legal uncertainty.
November 4, 2010.
For the French Superior Audiovisual Council :
Le président,
M. Boyon