The Institute of European Media Law (EMR) published today a legal study concerning the implementation of a specific provision of the revised Audiovisual Media Services Directive (AVMSD) of the EU. It deals with the guiding principles to be taken into account when the Commission prepares the Guidelines to apply Article 13 (6) AVMSD and the criteria for exemption of certain services from obligations concerning the support of European works. The study “Guiding Principles in establishing the Guidelines for Implementation of Article 13 (6) AVMSD – Criteria for exempting certain providers from obligations concerning European Works” was prepared by the Director for Academic Affairs of the EMR, Professor Mark D. Cole and aims at contributing to the current discussion about how to best implement one of the key changes brought by the new Directive (EU) 2018/1808.
The amending Directive that was published on 28 November 2018 (an overview of the negotiation period with a synopsis of the different versions of the proposal can be found at Synopsis of the EMR) and needs to be transposed by Member States until September 2020, introduces for on-demand service providers a 30% share of European works that have to be included in their catalogues as well as an obligation for giving these works prominence. Besides this, Member States are given discretion to impose on linear and non-linear services an obligation for financial contributions to the production of European works including services by providers that are not established in a Member State but that target States beyond the country of origin. Because oft he additional burden that would come with such obligations, the Directive foresees exemptions for providers of services that have low turnover or low audience. A definition or calculation model for these criteria is, however, missing and left to a concretisation in Guidelines to be issued by the Commission after consultation of the Contact Committee. The current study offers an interpretation framework for these criteria and checks a concrete model that was proposed in the consultation process for its compatibility with the criteria.
Already in December 2018 Professor Cole dealt with the interpreation of new or revised provisions in the updated AVMSD in the legal opinion of the EMR on “The AVMSD Jurisdiction Criteria concerning Audiovisual Media Service Providers after the 2018 Reform”. This new study on the Guidelines for implementing the European works-provision adds another layer by also analysing the question of legal quality of such guidelines and how they contribute to reaching the aim of the Directive. 30 years after the creation of the original Television without Frontiers Directive in 1989 the publication of the attached study is a further contribution of the EMR that was founded against the background of that Directive to the ongoing observation and analysis of the Directive and its national implementations. It comes at a time when Member States are preparing the transposition acts for the new Directive.
The study is available here: Study AVMSD guidelines Art 13