EU TV Without Frontiers Directive Still A Lobbyist Target But May End Up A ‘Soup Hen’

By Monika Ermert for Intellectual Property Watch
In the second week of December, the European Parliament will hear the first reading of the “modernised” Television Without Frontiers Directive (TVWF) that will stretch into the world of online content – hence to become the Audiovisual Media Directive.

The directive is intended to adapt European Union-wide rules for broadcasting to the new market situation and new digital world 10 years after the passing of the current version.

The rapporteur of the lead Committee of Culture and Education (CULT), Ruth Hieronymi (Christian Democratic Party), was satisfied with new compromises reached within CULT on scope, product placement and co-regulation. But the office of CULT Vice-Chair Helga Truepel (Green Party) told Intellectual Property Watch that the final word was not given on advertisement, product placement and short reporting rights, an issue under scrutiny by pay-TV broadcasters and rights holders of big sporting events since the start of the review of the TVWF Directive last year.

The top issue of debate has been the extension of media regulation to the online world, where broadcasting is moving on the road to convergence and, more precisely, to so-called “non-linear services” like video-on-demand over the Internet. The definition in the compromise draft reads: “‘On-demand services’ or ‘non-linear services’ mean an audiovisual media service consisting of an offer of audiovisual content, edited or compiled by a media service provider, and where the user, on an individual basis, requests the transmission of a particular programme from a choice of content and at a chosen time.”

TV-similarity and the commercial nature of the service shall, according to the Hieronymi, clearly distinguish it from non-linear services such as weblogs or personal websites. “The economic nature has to be significant,” she said and reiterated that platforms like the popular video upload site YouTube.com would not be covered by the directive.

The information technology industry, according to Mark McGann of the European Information and Communications Technology Industry Association (EICTA), is relieved to be spared from an “Online Content Directive” for now, as the Internet is excluded. “There have been fears by many companies that the European Commission would be overzealous in its approach,” McGann said after CULT reached the compromise.

But media law expert Wolfgang Schulz of the Hans-Bredow-Institute in Hamburg, who was heavily involved in the debates on the scope organized by the Commission in focus groups for over a year, said he was astonished about the cut in scope.

“I am inclined to say,” Schulz said, “the proposal started as an eagle and came down as a soup hen.” Schulz holds that industry exaggerated the situation by claiming “that the whole Internet would be regulated” and that this had resulted in “galloping lobbyism.”

What had been overlooked, in his opinion, were the positive effects of online services being subsumed under the directive. The country of origin principle, for example, “would have provided them with a clear legal situation,” he said. According to the country of origin principle, a lawful service from one member country has to be accepted as such by any other member state.

Long Debate on Short Reporting Rights

Yet the audiovisual media services will not benefit from one interesting new right introduced into the directive for the first time: the short reporting right. According to Truepel’s office, this is “one of the sparse points where the parliament was able to push for a media policy issue.”

Under the CULT compromise, short reporting rights would for the first time introduce an EU-wide obligation for those who bought exclusive rights for events of great public interest to allow other broadcasters and news agencies working for broadcasters to broadcast short 90 second reports on the event either using the signal of the rightsholding broadcaster or by access to the event itself. The short reporting right would be an add-on to the free access to a list of public events that member states declare to be of such vital public interest that they have to be made freely available, laid down in the Article 3.a of the old TVWF directive.

“There had been a great push for the short reporting rights, which so far is only provided for in some countries, for example Portugal, Italy, France or Germany, and with different regulatory provisions in each country,” said a Green party expert. France, for example, would not allow compensation for the short reporting rights, while German regulation asked for money. “In Germany you can see that non-binding provisions may fail, as there are no short reports on football on Friday and Sunday,” said the expert.

With the EU-wide harmonised and obligatory short reporting rights, the situation should improve, especially for small TV stations that pushed hard for the rights, according to the expert. “It was all about the Portuguese football star who scored in the UK and the goal could not be shown at home,” the expert said.

But as non-linear media are excluded from that deal, broadcasters with rights to access are not allowed to use the short reporting rights in their non-linear services. “The fear to have unlimited distribution of such material over the Internet was just too great,” said the expert. There technologically neutral regulation ends. It would have been impossible to push through this right for non-linear media as even short reports on the German Bundesliga broadcasted on air return a black screen in the online version of the biggest German Public Broadcasting station, ARD, the expert said.

For Green party members the fight for short reporting rights is not over as the EU Council of Ministers’ general approach, while well in accordance with the compromises of CULT, does not extend to intermediaries like news agencies. The short reporting rights therefore might become one part of the bargaining and lobbying before the directive will be finalised, according to the Greens.

They also intend, according to their information, to push for a cost-recovery basis for compensation of the rights holding broadcaster instead of “appropriate compensation” now mentioned in the draft. But there is a lot more in the Greens’ basket such as greater transparency on certain product placement types – so-called production support – and time limitations for advertisement blocks where the Green Party favours a limitation of one block in 45 minutes instead of one block in 30 minutes for all programmes. As a result, the addition of a broadening of short reporting rights might not be part of the final deal.

Monika Ermert may be reached at info@ip-watch.ch.