These are my notes on a presentation from Maja Cappello – Head of Department for Legal Information – ‘European Audiovisual Observatory on Regulation and Policy related to theatrical and non-theatrical production.’
There are two initial key questions when we think about regulation:
- Why regulate? What do we want to achieve?
- How? Which measures will we use?
The ‘why’ question is answered by the Communication from the Commission on State aid for films and other audiovisual works [pdf], (2013/C 332/01) summarised here:
European audiovisual works are valuable, they face strong competition from outside Europe, and, by comparison, they suffer from a weak circulation outside of their country of origin – which means that they can be out-competed by nations who are good at selling abroad (basically, this is largely about the ability of US productions to sell their product at very low costs into European markets).
This all makes the case for regulatory intervention.
The ‘how’ question is harder.
- First, production needs to happen, and this can be supported either by direct state aid (film funds) or by fiscal incentives (i.e. ‘tax breaks’).
- There is also the option to use levies, taxes, and financial investment obligations on broadcasters (TV and VoD).
However, this doesn’t solve the problem you have if you can’t actually get your film distributed or show to audiences once it’s made, which is why there are also…
- …various Quota obligations – ensuing that a percentage of output is carrying a particular sort of content or that…
- … particular content must be displayed prominently on Electronic Programme Guides, etc.
This raises a third question:
What kind of European works should be protected by these measures?
Is it for…
- TV series
- Cinematic releases
- Films made for TV
… and how do states make these decisions?
The answer is that states can choose which kind of productions they want to support.
The EU allows for state aid supporting these kinds of work, as long as it is compatible with EU internal market regulations. There is a reference to Block Exemption Regulation in the Commission’s communication (see 4.1 / clause 24 – here [pdf])
It is fundamentally based on an objective of ensuring that there is the infrastructure there to produce works that reflect European cultural identities, enhancing cultural diversity and promoting culture. The Commission doesn’t distinguish and the Creative Europe programme supports them all, including video games and ‘immersive content’.
At a national level, some countries make distinctions between cinematographic works and others. They can support any specified mode of distribution and exhibition using different formulas.
- Flanders Audiovisual Fund (VAF) promoting Flemish films (via the VAF Film Fund) and TV series of all kinds (via VAF Media)
- UK Creative Industry Tax Reliefs that support Film, High-End TV (HETV), Animation, and Children’s TV.
The AVMS directive also has rules about exhibition, making sure that both TV stations and on-demand broadcasters must exhibit European works. TV broadcasters must reserve at least 50% of transmission time for European works. In addition, 10% of their transmission time, or programming budget must be spent on independent European works.
In 2018 the AVMS Directive was revised to place obligations on VoD to secure 30% share in their catalogues and ensure prominence for European works. Member states can also insist that these platforms contribute directly to the production of European works.
At the national level there are some financial obligations, some of which distinguish between cinematic and other works. Many (most) member states will have some funds or strategies. In the French community of Belgium, the French language (Wallonia) broadcaster RTBF is obliged to honour a 25% quota specifically for “French speaking Belgian” TV series with references to the location of the production.
Greece has small quotas (1.5%) for cinematic works and similar obligations on satellite and telecom distributors. Many other countries have other sub-quotas. In Spain, for example, the pre-financing obligation for broadcasters ensures a high level of investment in cinematic films and also for TV films, series and mini-series.
France and Italy also have very complex sets of obligations. But ultimately, these are all policy choices.
Update: The Observatory has a very useful and detailed bit of mapping of the film and audiovisual public funding criteria in the EU – here.