Submissions
AUGUST 2006
EQUITY RESPONSE TO THE DEPARTMENT OF CULTURE, MEDIA AND SPORT ON THE "PROPOSAL BY THE EUROPEAN COMMISSION FOR THE REVISION OF THE TELEVISION WITHOUT FRONTIERS DIRECTIVE"
INTRODUCTION
1. Equity is a trade union representing 40,000 performers and creative personnel who work across the whole spectrum of entertainment in the UK. Our members work in a range of media and the creative industries including visual broadcasts, sound recordings and film.
2. According to a recent survey conducted with Skillset, the Sector Skills Council for the audio-visual industries, a third of Equity members who had worked in the UK performance industry in the past year had spent some time working in television.[1] These Equity members work principally in drama, comedy or entertainment programmes and are engaged on standard industry terms that are agreed between the programme makers and Equity.
3. Therefore any decisions regarding the future regulation of audiovisual media services are likely to have a direct impact upon the production, distribution and funding of our members work, as well as the creative process and the content of programmes in which they are involved.
4. This submission does not provide a response to all of the questions outlined in the consultation document, but seeks to address the most relevant matters to Equity's membership.
SCOPE OF THE DIRECTIVE
5. Since the original Television Without Frontiers (TVWF) Directive was introduced in 1989 there has been a huge expansion in the range and sources of audiovisual content. This has continued to grow even faster and more dramatically since the amendment of the Directive in 1997.
6. As well as viewing the work of Equity members on scheduled or "linear" broadcasts on terrestrial television or on digital, cable or satellite these programmes can now be accessed through a range of "non-linear" media. These include video-on-demand services, personal video recorders, mobile phones and high-speed internet connections which allow for viewing through personal computers as well as a range of devices from iPods to games consoles. Equity has been at the forefront of these developments in the UK , through our negotiations and agreements with broadcasters and producers, who wish to make such content available on new and innovative platforms.
7. Equity believes that certain non-linear media services of this nature should be subject to the same common principles of regulation and minimum standards as traditional television broadcasts. In particular, there should be a clear protection of fundamental public interest objectives referred to by the Directive, specifically regarding content of programming, the free movement of broadcasting services within the EU and support for media pluralism.
8. As part of its impact assessment of the TVWF Directive the European Commission (EC) identified five policy options for the future operation of the Directive.
- Option 1: repeal it
- Option 2: make no changes to it
- Option 3: make limited and specific amendments covering all linear services similar to television (UK Government's stated preference)
- Option 4: amend TWVF to cover both linear and non-linear services, but with non-linear subject only to basic regulation (EC's own preference).
- Option 5: amend the Directive so that the detailed regulation covers both linear and non-linear services.
9. Equity has some sympathy with the proposal to amend the Directive to cover both linear and non-linear services, with both the basic tier and the more detailed rules applying to the two types of service (Option 5). Everything else being equal, this could be seen as a possible means of maximising the production and distribution of European work across all platforms, in a way that could improve the work and earnings opportunities of our members.
10. However, Equity understands that there may be practical problems in applying this rigid approach, if it is not flexible enough to account for the particular features of non-linear services. In the UK in particular, the Government and Ofcom have made no secret of the fact that they are strongly opposed to the TVWF proposals, principally because the EC appears to favour some limited proposals to extend the scope of the Directive into some of these new areas.
11. Equity believes that the UK's negative response is largely unfounded and based on a misunderstanding of the nature of the measures being proposed, as well as the fears expressed by corporate interests in the information technology and telecoms industries. Many of the assessments of TVWF provided by these special interest groups have made very broad assumptions of the scope and impact of the Directive. This initial speculation and assessment assumed the inclusion of a range of services within the scope, from radio broadcasts to user-generated content such as video weblogs.
12. In fact the draft Directive does not seek to include radio and excludes services where audiovisual content is incidental rather than the primary purpose. Furthermore, the European Commissioner Viviane Redding has been very clear that it is not designed to regulate services such as video blogs or on-line games. Instead the Directive is aimed specifically at media services under the editorial responsibility of media service providers. Nevertheless, Equity does accept that that there must be as much clarity as possible when defining those non-linear services that will be subject to the Directive and those that will not.
13. This debate has also been useful in highlighting the perceived competitive dangers to the UK's creative industries unless the scope of TVWF is drafted clearly and appropriately. As a result of this debate Equity is persuaded that there should be a more graduated approach than outlined in Option 5, so that a tightly defined range of non-linear services are subject to a more basic tier of rules. Therefore, while the current proposals put forward by the EC will require further scrutiny and amendment (see below), the approach outlined in Option 4 is one that Equity broadly supports.
14. Equity's broad acceptance of the EC's overall approach therefore implies support for the concept of a basic tier of principles being applied to non-linear services. These principles include information provision, protection of minors, prevention of material inciting hatred, requirements regarding advertising and crucially the promotion of European work.
PROMOTION OF EUROPEAN WORK
15. As an organisation representing UK performers and creators, Equity has supported the measures within the TVWF Directive, which sought to promote the production and access to European work. The application of quotas in traditional broadcasting, which have supported the broadcast of European programming (Article 4) as well as European independent producers (Article 5), have been justifiable for economic and cultural reasons.
16. Economically, the global dominance of the American programming and the relatively cheap availability of programmes with high production values from the US, provides a clear justification for some form of countervailing mechanism to support European production. Similarly, there should be some regulatory incentive to support the ability of European viewers to access programmes produced in Europe, which reflect their own culture and interests.
17. Therefore, Equity support the sentiments behind Article 3f in the draft Directive, which broadens these underlying principles of promoting production and access to European works, to media service providers (i.e. non-linear services). Notwithstanding the need to provide a more precise and detailed understanding of the scope, it should also be possible to build upon this general principle and suggest some obligations that go beyond the current statement of intent.
18. In particular, Equity would wish the EC to examine the possibility of requiring a percentage of turnover of non-linear media service providers to be used for independent European production; including a requirement to make available a proportion of European works on a non-linear media service; and providing minimum standards of visibility and access to European work.
19. In addition the draft Directive does not currently address some of the existing shortcomings of the requirements and definitions of European work that have applied to traditional linear broadcasting. For example, Equity continues to believe that it is insufficient to require the majority of transmission time to be reserved for European works "where practicable", as this provides a very broad exception. In addition, Equity would prefer to tighten the definition of European work to exclude talk shows and generic reality television, which can currently be used as cheap ways for broadcasters to fulfil their quota without investing in genuine European production.
ESTABLISHMENT AND JURISDICTION
20. In order for any measures supporting the production and access to European work to function properly, it is important to avoid the significant relocation or diversion of audio-visual operations in an attempt to avoid the requirements of the TVWF Directive.
21. The UK Government appears to be extremely concerned that the cost of regulation will provide a disincentive for media service providers to remain based in EU member states or establish themselves in the EU in the first place. While Equity understands this concern, the extent of any such problem will ultimately be determined by the precise scope of the regulation and the nature of what is required by the media service provider. Moreover, if such a balanced package can be achieved - providing a number of limited and reasonable requirements on a narrow range of services, as well as commercial opportunities - there will still be significant benefits to locating within the EU.
ADVERTISING
22. Equity is opposed to the draft Directive's attempt to soften the current advertising regulations. In particular, it is not appropriate to interrupt the broadcast of TV films and cinematographic works with adverts once every 35 minutes, even if the hourly limit of 20% advertising volume per broadcasting hour is maintained.
23. The Commission has not provided substantial evidence of the benefit of a reduction from 45 to 35 minutes, whereas this new measure is likely to affect performers' rights and in particular, their moral rights with regard to their work (where they exist).
24. This measure is unnecessary, especially in view of the additional measures envisaged by the draft Directive to soften advertising regulations, which provide for a sufficient compensation for the decline in advertising income - i.e. the abolition of the daily 3-hour-advertising limit; the abolition of the 20 minutes gap between advertising breaks in a given broadcast; and the recognition of product placement as a possible new source of advertising income.
PRODUCT PLACEMENT
25. Equity responded to the Ofcom consultation on product placement earlier this year and would refer DCMS to this more detailed response[2]. However, this position can be summarised as broad support for a liberalisation of the some of the existing restrictions on product placement, as long as there are appropriate safeguards in place.
26. It seems inconsistent to allow a continuation of the current situation, where films and television programmes including product placement can be transmitted, but European broadcasters are unable to benefit from this potential source of finance. While product placement is unlikely to replace the predicted decline in net advertising revenues, it may provide important income for broadcasters as audiences fragment and new technology (such as Personal Video Recorders and other on-demand devices) reduce the value of traditional "spot advertising".
27. However, there would need to be a number of limitations on product placement, which the UK would need to include if it accepted the case for liberalising the rules on product placement. For example, there should be a ban on product placement in children programmes, as well as in the news and in political information programmes. Moreover, product placement should not be allowed for certain goods or services, whose advertising is forbidden or limited by EU legislation, such as tobacco. Any liberalisation should also exclude the use of "product integration" or the explicit promotion of goods or services - which comes closer to a traditional advertising spot. In addition the boundary between product placement and product integration should be made much more explicit.
28. Furthermore, these broad principles of product placement should only be authorised for commercial broadcasters, with the exclusion of public broadcasters like the BBC; product placement should only be authorised for products and/or services that are inherently linked to the content being transmitted.
29. All undue prominence should also be forbidden; and the performers' contractual freedom - as much as editorial integrity and freedom - should be guaranteed, allowing them to deny their consent to the placement if they so wish. This may, for instance, be due to the exclusivity ties relating to previous advertising engagements - or simply to personal ethical reasons, as the artist may not wish to see his/her image associated with a particular product and/or service. Similar regulation regarding the product placement should be applied to a narrow range of non-linear media services where appropriate.
FILM RIGHTS AND CREATORS RIGHTS
30. Equity welcomes the sentiments behind Article 3f(2), regarding the obligation to ensure that the transmission of cinematographic works by media service providers is not outside periods agreed with the rights holders. This may appear only to replicate existing obligations, given that the agreements regarding uses and any licence periods will indicate these obligations. Moreover the existence of copyright law should ordinarily be sufficient to provide the necessary protection for rights holders.
31. However, not all rights holders will have the resources or the expertise to enforce and protect their rights within a film through these mechanisms. Therefore Equity believes that it is helpful to reinforce the protection of rights holders by requiring that Member States ensure that service providers under their jurisdiction do not transmit cinematographic works outside periods agreed with the rights holders.
32. While this recognition is helpful it should also be noted that the Directive as a whole fails to acknowledge the rights of individual creators, or the rights under contract negotiated on behalf of performers. The contribution of these rights holders is an essential element of audiovisual content and is all too often neglected, as the debate on rights focuses on the respective rights of broadcasters and producers. The Directive should also acknowledge that audiovisual content can be the intellectual property of performers and other creators, where these rights have not been assigned to the broadcaster or producer. Therefore the need for providers of audiovisual media services to acknowledge and respect these rights should be reinforced by the Directive.
CONCLUSION
33. The UK Government and Ofcom have been clear that they do not believe that a revised TVWF Directive should apply even a basic tier of regulation to a limited and defined scope of non-linear services. Moreover, the research commissioned by Ofcom[3] appears designed to support this position - and even the DCMS Partial Regulatory Impact Assessment and this related consultation appear to assume that there is a consensus that a revised Directive will inevitably be harmful to UK competitiveness.
34. However, Equity would ask the Government to recognise that there is an alternate view, both within the UK and the rest of Europe. Therefore we would hope that the Government is able to reflect this view fairly and engage constructively in the process of revising TVWF, while developing an Audiovisual Media Services Directive that is workable and beneficial to the broad range of the UK's creative industries. This is the main reason Equity supports the extension of principles of the Directive, with particular reference to the promotion of European work, as well as the protection of minors, prevention of material inciting hatred and requirements regarding advertising.
24 August 2006
For further information contact:
Matthew Payton
Research & Parliamentary Officer
Equity
Guild House
Upper St Martin's Lane
London WC2H 9EG
020 76700260
[1] Skillset/ Equity Performing Arts Industry Survey 2005
[2] http://www.equity.org.uk/content/1091.htm
[3] Extension of TVWF Directive: An Impact Assessment - Indepen, Ovum and fathom (Sept 2005)
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