Published in DigiWorld Economic Journal DWEJ No. 101
Interview with Lorena Boix Alonso, EC-DG Connect, Brussels
Conducted by Sally BROUGHTON MICOVA
DW Economic Journal: You recently completed a comprehensive consultation on audiovisual media services with a view to possible revision of the EU's regulatory framework in this area. How much of a call for change is there from stakeholders?
Lorena BOIX ALONSO: The Audiovisual Media Services Directive (AVMSD) was adopted in 2007 and replaced the Television Without Borders Directive of 1989.
Since 2007 – and let alone since the '80s –, the audiovisual media landscape has changed significantly, in particular due to the phenomenon of media convergence. In light of these changes, we are currently reviewing the Directive and assessing its regulatory fitness, with a view to presenting a new legislative proposal later this year.
The public consultation we organised last year is an important part of this exercise and informs our future actions.
Currently, the AVMSD regulates television broadcasts and on-demand services. It applies to programmes that are "TV-like" and for which providers have editorial responsibility. The preliminary trends of the consultation show some convergence of stakeholders' views on the need to revise the scope of application of the rules. However, respondents are not always clear as to how to do this, what new services should be involved and to what type of rules they should be subject. The main concern seems to be viewers' protection, including minors.
A crucial pillar of the Directive is the so-called country of origin principle. Thanks to this principle, service providers only need to abide by the rules of a Member State rather than of multiple countries - making things simpler for businesses, especially those wishing to develop cross-border. Quite unsurprisingly, most of the respondents to the consultation want to maintain the country of origin principle.
De facto, the country of origin principle has facilitated the growth and proliferation of those services. As of end 2013, 5,141 TV channels were established in the EU. Almost 2,000 of them targeted foreign markets. This share has increased from 28 % in 2009 - year of implementation of the Directive - to 38 % in 2013 (from 45% to 68 % for the UK). As far as VoD services are concerned, in 2015, on average in Member States, 31 % of the VoD services available were established in another EU country.
Another subject on which we observed a clear trend in the responses to the public consultation is the importance to ensure the independence of national audiovisual regulators.
We have however observed less clear trends regarding other areas covered by the Directive, for example on the way forward for the rules on protection of minors, commercial communications and promotion of EU works.
The independence of regulatory authorities has historically been a touchy subject for some member states, thus it was not really dealt with in the current Directive nor the one before it. However, things seem to be different this time around, particularly with the regulators themselves taking a stand on the issue. Why have things changed and what exactly is on the table?
The independence of audiovisual regulatory bodies is key for the implementation of legislation in an impartial manner (i.e., free from influence by political players or industry). When regulatory bodies lack independence, this has a direct impact on the effective transposition and application of EU legislation. This is why many EU regulatory frameworks in other domains (i.e. telecom, gas, electricity, postal services, personal data protection) require from Member States regulatory independence. In the field of media, regulatory independence is also important for the preservation of a free and pluralistic media system.
However, the Audiovisual Media Services Directive does not impose an explicit obligation on the Member States to create an independent regulatory body.
The currently-running review of the AVMSD is assessing whether the Directive should be reinforced explicitly by requiring Member States to ensure independence of audiovisual regulatory bodies. As I said, the preliminary results of the public consultation indicate that the majority of respondents would support this position.
The Commission has established the European Regulators Group for Audiovisual Media Services (ERGA), which is – among other tasks – looking precisely into the issue of independence. And yes – in particular following the newly approved amendments to the Polish media law – the Group has recently pointed to the importance of independence.
ERGA called "upon all Member States of the European Union to act to uphold the principle of independence of the media across all European Member States." The Group also called on the Commission "to continue to actively monitor developments and to take all necessary steps to support a free and independent media, including the taking of firm action against the weakening of the necessary institutional arrangements".
How does what your team is working on in relation to audiovisual media services interact with other elements of the Digital Single Market plans such as copyright reform and addressing online intermediaries?
The Digital Single Market (DSM) strategy for Europe calls for a modernisation of the AVMSD to reflect market, consumption, and technological changes. It requires the Commission to focus the scope of the AVMSD and on the nature of the rules applicable to all market players, in particular those for the promotion of European works, protection of minors, and advertising rules.
The overall vision of the DSM strategy is to create an internal market for digital content and services and ensure that Europe is a leader in the global digital economy. To meet this objective, the DSM puts forward a range of initiatives beyond the AVMSD review.
The AVMSD review is being coordinated with these other DSM initiatives such as the assessment of the role of online platforms and intermediaries as well as the evaluation of the telecoms framework. Besides, the Commission continues to work on the modernisation of the copyright framework as well as on the implementation of a set of support measures accompanying these legislative changes in order to facilitate cross border access to European content within the digital single market.
What can we do about "the Netflix problem"? Have any good ideas come to light in your consultations in relation to OTT audiovisual services?
We are well aware of the concerns, raised by some in the public consultation, related to the lack of a level playing field, resulting from the different level of requirements introduced by Member States. This relates particularly to the field of promotion of European works.
New players start investing in new content. This is already a trend in the US. US players active on the EU market, e.g. Netflix and Amazon, also start investing in European productions. European VoD players are also more and more financing European content, also often in the form of co-financing.
However, it is true that these players do not contribute to the financing of new European content to the same extent as traditional players (television and cinema) do.
All these aspects are considered in the context of the AVMSD review. In that view and even though all the options are open at this stage, during our assessment we are looking in particular into the best ways to ensure the promotion of European works in on-demand services.
How do you think we are going to be able to encourage European content production and distribution in the future?
The promotion of European works is a key value of the Directive. The current provisions of the Directive have contributed to the cultural diversity in Europe though the production and distribution of valuable European content. For instance, the 66th Berlinale film festival that took place in February was a very good example of the creative power and diversity of cinema, with a new attendance record. I believe we can celebrate the fruits of the work of the European audiovisual and film industry that we can all be very proud of.
However, it is undeniable that the market and viewing habits have changed since the last review of the Directive, in particular regarding the rapid developing of Video on Demand. Young people consume audiovisual content increasingly on-line. People want access to audiovisual content whenever and wherever they are, on the device of their choice. Technology has made this possible.
I believe this can be a great opportunity to increase the production and circulation of European films. The Commission is very much keeping this objective in mind in the revision of the AVMSD rules on promoting European works as well as in the context of the implementation of the Creative Europe MEDIA programme. In addition, the Commission is launching other coordinated initiatives to exploit all synergies available to increase attractiveness of European films. This require measures in various areas on which the Commission is working together with all interested parties including the audiovisual sector ( film producers, authors, distributors, sales agents, VOD services, broadcasters, etc.) as well as public authorities and film funds in the frame of the European Film Forum.
On December 2015, the Commission adopted the Copyright Communication "Towards a modern, more European copyright framework" which sets an agenda of non-legislative measures meant to accompany the legislative agenda in order to ensure a wider access to audiovisual content across borders. The rationale for these measures is that audiovisual works and films require investment in order to really benefit from the DSM and to be widely accessible. Audiovisual works and films need to be available in formats and catalogues ready for use and to be understood (issue of language versions).
Finally, the Commission is also deeply engaged into the Creative Europe Media programme, which this year celebrates its 25th anniversary. Through this programme the EU invests roughly €100 million per year in European films and audiovisual industries and supports projects which are aimed at enhancing the prominence of European films on VOD Platforms.
Lorena BOIX ALONSO is the Head of Unit for Converging Media and Content Unit, Directorate General for Communications Networks Content and Technology since July 2012. Formerly, she was Deputy Head of Cabinet of Vice President Neelie Kroes, European Commissioner for the Digital Agenda. During Ms Kroes' mandate as Commissioner for Competition, Lorena Boix Alonso commenced in October 2004 as a member of her Cabinet and became Deputy Head of Cabinet in May 2008. She holds a Master of Laws, with a focus on Antitrust Law and Intellectual Property, from the Harvard Law School. She graduated in Law from the University of Valencia (Spain) and then obtained a Licence Spéciale en Droit Européen from the Université Libre de Bruxelles. She joined the European Commission Directorate-General for Competition in 2003. Prior to that, she has worked for Judge Rafael García Valdecasas, at the European Court of Justice, as well as Deputy Director and Legal Coordinator of the IPR-Helpdesk Project and in private practice in Brussels.
More information on DigiWorld Economic Journal No. 101 "Towards a single digital audiovisual market" on our website