Signing up or declaring a SMAD

• services that are not part of an economic activity within the meaning of article 256 A of the French General Tax Code;
• services whose audio and video content is secondary;
• services consisting in providing or diffusing audio and video content created by private users for sharing and exchange within communities of interest;
• services making audiovisual signals supplied by recipients of such services available to the public via online public communication services;
• services whose audio and video content is selected and organized under the control of a third party.

"A supply composed of on-demand audiovisual media services and other services not related to audiovisual communication is subject to this law only in respect of this first part of the supply. "

In accordance with Article 10 of Decree no. 2021-793 of June 22, 2021 on on-demand audiovisual media services, an SMAD can fall into different categories:

• catch-up TV (TVR): a service enabling viewers to watch, for a limited time, programs shown on a television service (also summoned "catch-up" or "replay"). TVR services are excluded from the prior declaration system and from the agreement system, in accordance with article 33-3 of the law of September 30, 1986;
• subscription video on demand (SVOD ) services: services offering a catalog of audio and video content, access to which is conditional on subscription (also summoned "SVOD" for "subscription video on demand");
• pay-per-view video-on-demand (pay-per-view VOD): service offering access to audio and video content on a pay-per-view basis (also summoned "VOD" or "TVOD" for "transactional video on demand");
• other services such as free video on demand (VOD): services offering audio and video content accessible without payment by the user (also known as "AVOD" for "advertisement-based video on demand" or "FVOD" for "free video on demand").

A SMAD can be made available on several media (its own website, the boxes of audiovisual service distributors, applications for fixed or mobile terminals, etc.). These catalogs can then form a single service consisting of a main catalog and its variations, or can constitute separate services.

Obligations relating specifically to SMADs are set out in the law of September 30, 1986 (in particular articles 33-2 and 33-3) and in decree no. 2021-793 of June 22, 2021.

Contribution au développement de la production d'œuvres audiovisuels et cinématographiques européennes et d'expression originale française (EOF) (Contribution to the development of the production of European audiovisual and cinematic works and original French-language works).

Any service established in France meeting one of the following conditions is subject to the law:

• French SMAD not falling into the category of catch-up TV services ("TVR", or "replay"), which offers at least ten cinematographic works and/or ten audiovisual works annually and whose net annual sales reach the threshold of 5 million euros and whose audience exceeds 0.5% of the total audience in France of the service category to which it belongs: subject to obligations to produce European and EOF works within the meaning of decree no. 90-66 of January 17, 1990;
• French SMAD that offers at least ten cinematographic works a year and falls into the catch-up TV service category: subject to production of cinematographic works.The contribution rate is identical to that applicable to the television service from which it originates (article 19 of decree no. 2021-793).

Obligations in terms of production of audiovisual works. for catch-up TV services(replay or TVR) established in France are integrated with those of the corresponding television services, for which they are calculated globally (cf. 14 bis of article 28 and the eleventh paragraph of article 33-1, 3° and 4° of article 27 and 6° and 7° of article 33 of the law of September 30, 1986).

Publishers of these on-demand audiovisual media services (excluding TVR) must invest a portion of the service's annual net sales in the production of European and original French-language (EOF) works:

• at least 20% of net sales in France for SVOD services (25% if at least one cinematographic work is offered within less than twelve months of its theatrical release in France);
• at least 15% of sales resulting from the exploitation of audiovisual works, on the one hand, and 15% of sales resulting from the exploitation of cinematographic works, on the other, for other services.

In addition

• at least 85% of this expenditure must be devoted to EOF works (article 16 of decree no. 2021-793) for SVOD services, and at least 80% of this expenditure must be devoted to EOF works (article 20 of the same decree) for other services;
• for SVOD services with net annual sales in excess of 50 million euros, pre-financing expenditure (pre-purchases of exploitation rights, producer's share and writing or development work) must represent at least three-quarters of the contribution devoted to audiovisual works, and at least 60% of the contribution devoted to cinematographic works (at least 80% if a cinematographic work has been offered within less than twelve months of its theatrical release in France - article 17 of the aforementioned decree);
• SVOD services' contribution to audiovisual production must relate entirely to heritage works(paragraph 2 of article 16 of the same decree);
• at least three-quarters of expenditure on pre-purchases of rights and investments in producer shares for cinematographic works must be devoted to the independent production of European works (article 21 of the same decree);
• at least two-thirds of expenditure on audiovisual works must be devoted to the independent production of European works (article 22 of the same decree).

Where appropriate, these obligations may be modified in agreements on the basis of the decree's provisions, in particular articles 23 to 26.

Exhibition and promotion of European cinematographic and audiovisual works and original French-language works (EOF)

Any service established in France that meets one of the following conditions is subject to the law:

• French SMAD not falling into the category of TVR services which offers at least ten cinematographic works and/or ten audiovisual works annually, and whose net annual sales reach the threshold of one million euros and whose audience exceeds 0.1% of the total audience in France of the service category to which it belongs, is subject to obligations to exhibit European and EOF works within the meaning of the decree of June 22, 2021;
• French SMAD that offers at least ten cinematographic works and/or ten audiovisual works per year, and falls into the TVR service category.

The editors of these services (excluding TVR) are obliged to exhibit on their service, for cinematographic works on the one hand and for audiovisual works on the other, at least:

• 60% European works ;
• 40% EOF works.

For TVR services, the proportions are identical to those applicable to the television services from which they originate (article 28 of the aforementioned decree). In accordance with article 28, paragraph 14 bis, and article 33-1, paragraph 11, of the aforementioned law, these obligations are set out in the agreement for the television service from which they originate.

In addition, these editors (including TVR service editors) reserve at all times a substantial proportion of European and EOF works whose promotion is ensured by means other than the mere mention of the title.

In the case of TVR services, in accordance with article 28, paragraph 14 bis, and article 33-1, paragraph 11, of the aforementioned law, obligations in this area are set out in the agreement for the television service from which they originate.

Program accessibility for the deaf, hard of hearing, blind and partially sighted

Any SMAD established in France that does not fall into the TVR service category, and whose net annual sales in France exceed the threshold of one million euros, is subject to program accessibility obligations for people with disabilities. The aim of the agreement is to set the proportion of programs that are accessible to the deaf or hard of hearing, and to the blind or partially sighted (subtitling, audio description), by means of appropriate schemes.

With regard to TVR services established in France, in accordance with article 20-6 of the aforementioned law, the programs of the television service accessible to deaf or hard-of-hearing people or to blind or partially-sighted people are also made accessible, by the same scheme and in equivalent quality, when they are offered by a catch-up TV service.

Conditions of access by rights holders to data relating to the exploitation of their works, and in particular to their broadcasting.

Any SMAD established in France that does not fall into the TVR service category and whose net annual sales in France exceed the threshold of one million euros is subject to an obligation to determine the conditions of access by rights holders to data relating to the exploitation of their works.

The purpose of the service agreement is to set out the terms and conditions under which the service editor undertakes to provide rights holders with data on the exploitation of their works.

TVR services established in France are not subject to the law.

Advertising, teleshopping and sponsorship

Any SMAD established in France is subject to rules concerning advertising, teleshopping and sponsorship, which are specified in chapter IV of decree no. 2021-793 of June 22, 2021.

In the case of TVR services established in France, the applicable rules are set out in the agreements of the television services from which they originate.

In addition to the obligations relating specifically to SMADs, mentioned above, these services established in France are also subject to a number of obligations that fall within a more general managerial framework, covering :

• program ethics, in particular the prohibition of incitement to hatred, in accordance with Arcom's decision of December 20, 2011, based on articles 1, 3-1 and 15 of the law of September 30, 1986, which give Arcom jurisdiction in these matters;
• the protection of youngsters in accordance with Arcom's decision of December 20, 2011, taken on the basis of articles 1, 3-1 and 15 of the law of September 30, 1986, which give Arcom jurisdiction in these matters;
• rules governing commercial communications (article 14 of the law of September 30, 1986) and product placement (article 14-1 of the law of September 30, 1986);
• respect for the French language and Francophonie, in particular the use of the French language in all programs and advertising messages, with the exception of cinematographic and audiovisual works in their original version (article 20-1 of the law of September 30, 1986);
• identification of audiovisual media service providers responsible for content, to ensure better protection for users (article 43-1 of the law of September 30, 1986);
• media release chronology (articles L232-1 of the Code du cinéma et de l'image animée and the decree of February 4, 2022 ).

In addition, for TVR services based in France :

• ethical obligations (public life, personal rights, rights of participants in certain programs, rights of on-air contributors, honesty and independence of information and programs, right of objection and ethical charter, information for producers) applying to television services also apply to catch-up TV services;
• obligations relating to product placement (article 14-1 of the law of September 30, 1986) apply to catch-up TV services;
• obligations relating to commercial communications in favor of a gambling operator apply to catch-up TV services.

These schemes are specified in the agreements of the television services from which they originate.

In accordance with article 43-7 of the law of September 30, 1986, any publisher offering a service meeting the definition of a SMAD as defined in article 2 of the law of September 30, 1986, which is not established in France but is available on French territory is likely to be " subject on the basis of [its] activity in France to the contribution mentioned in 3° of article 33-2, under non-discriminatory and proportionate conditions compared with those applicable to services established in France or which fall within the competence of France. "

These publishers may enter into an agreement with Arcom in accordance with III of article 43-7 of the law of September 30, 1986 and article 9 of decree no. 2021-793 of June 22, 2021. In the absence of an agreement, Arcom notifies them of the extent of their obligations and the procedures by which they must prove that they are abiding by these obligations in accordance with IV of article 43-7 of the aforementioned law and article 9 of the aforementioned decree.

Any service editor established abroad, available on French territory and likely to be subject to the legislative and regulatory obligations in force is invited to contact Arcom at this address.

In accordance with the provisions of the second paragraph of article 9 of decree no. 2021-793, SMAD editors established abroad and targeting France whose sales reach the threshold of 5 million euros for their activity on French territory and whose audience exceeds 0.5% of the total audience in France of the service category to which they belong, are subject to obligations under articles 33-2 and 33-3 of the law of September 30, 1986 as regards:

• contribution to the production of European audiovisual and cinematographic works and original EOF (obligations identical to those of SMADs established in France, see above);
• determining the conditions of access by rights holders to data relating to the exploitation of their works (obligations identical to those of SMADs established in France, see above).

Before March 31 of each year, French and foreign SMAD publishers send Arcom a declaration of compliance with their obligations.

If you have any questions about obligations under Decree no. 2021-793 of June 22, 2021 on on-demand audiovisual media services, please contact Arcom at this address.