Promotion of European productions
The first type of measures intended to promote cultural diversity are the 'European works' quotas, which are stated 'to promote markets of sufficient size for television productions in the member states to recover necessary investments not only by establishing common rules opening up national markets but also by envisaging for European productions... a majority proportion in television broadcasts of all member states' (Recital 65 of the AVMS Directive). Since their adoption in the
TWF Directive, these measures have been criticised for installing protectionism in favour of domestic productions and not primarily of cultural content (Chavannes and Castendyk, 2008: 846). Nonetheless, such market-making mechanisms for local and regional content are still widely supported as contributing to European cultural expressions, and have been maintained - and even extended to on-demand services - in the AVMS Directive.
Under Article 16 of the AVMS Directive, broadcasters in the EU are required to reserve a majority of their transmission time to European works.11 This majority proportion should be achieved progressively in relation to 'the broadcaster's informational, educational, cultural and entertainment responsibilities to its viewing public' and is derived 'excluding the time allotted to news, sports events, games, advertising, teletext services and teleshopping'. In addition, Article 17 of the Directive requires that a subset of the thus 'reserved' European works are created by producers who are independent of broadcasters, '[in order to] stimulate new sources of television production, especially the creation of small and medium-sized enterprises [and]... offer new opportunities and marketing outlets to creative talents, to cultural professions and to employees in the cultural field' (Recital 68 of the AVMS Directive). Member states can implement progressively a 10 percent quota in favour of independent European productions either in relation to the transmission time or to the programming budget of a broadcaster.12 Special consideration should be given to promoting recent works up to five years following their production.
Although, in a similar manner to Article 16 of the Directive, Article 17 does not primarily target cultural content, by requiring vertically integrated broadcasters to transmit or commission independent production, it eventually fosters the diversity of sources and opens a certain window for 'independent' creativity in the audiovisual sector. However, the potential of this quota is likely limited owing to the broadcasters' prerogative to select the independent European productions they want to invest in; broadcasters are ultimately free to favour something of the same.
In complying with the quotas, member states may be inclined to promote domestic television formats. However, Recital 70 of the Directive urges them to encourage co-produced European works or European works of non-domestic origin. Still, following Castendyk (2008: 434), the raison d'etre of the privileges for European works in the Directive is to provide a harmonised framework in which pre-existing national quotas can continue to exist if re-declared as European. In their implementation member states enjoy flexibility to give consideration to the appropriateness and practicality of the quota regime, which allows countries of a more dirigiste tradition and those with a more libertarian political culture to coexist (cf. Castendyk, 2008: 435).
Similar issues regarding the economic and cultural viability of 'European' content may arise in the context of audiovisual content libraries available on demand. According to the AVMS Directive, on- demand audiovisual media services have the potential to partially replace television broadcasting. Accordingly, they should, where practicable, promote the production and distribution of European works and thus contribute actively to the promotion of cultural diversity (Recital 69 of the AVMS Directive).
Compared with the regime for linear services, the rules introduced by the AVMS Directive to support European works in on-demand services are more flexible: as an alternative means, service providers can be required to contribute financially to the production and rights acquisition of European works or to the share and/or prominence of European works in their on-demand content library. The on-demand character of the services concerned would have rendered the introduction of a transmission quota for European works meaningless. The alternative to give prominence to European works is the first sign of recognition that the abundance of audiovisual content online may require new regulatory approaches that reconnect the supply with the demand-side. Another difference with the regime for linear services is the absence, for providers of on-demand audiovisual media services, of any requirement to promote European works by independent producers.
Events of major importance for society and of high interest to the public The second type of measures that are deemed to have an effect on the dissemination of cultural expressions are the provisions ensuring the public's access to certain broadcasted events where exclusive rights have been attributed. Article 14 of the AVMS Directive aims to ensure the free reception of selected events of major importance for society; or, in other words, to prohibit that such events are broadcasted on an exclusive basis 'in such a way as to deprive a substantial proportion of the public... of the possibility of following such events by live coverage or deferred coverage on free television'.
The AVMS Directive does not define what exactly constitutes events of major importance,13 but leaves it to the member states to draw up, in a transparent and predictable fashion, their national lists of events and also to determine if the public should have access to the selected events by fully or partially live or deferred coverage. This measure is bidirectional in that, in exceptional cases, it can override broadcasters' exclusivity and ensure that the specific events at issue are freely accessible to the public. The cultural dimension is triggered by accepting that events of major importance for society constitute one of the foundations that form a national identity, as is the case with sports competitions or cultural events with an accepted national character.
In order 'to promote pluralism through the diversity of news production and programming across the Union' (Recital 48 of the Directive), Article 15 of the AVMS Directive opens up to the benefit of any broadcaster established in the EU the possibility to include short extracts from televised events of high interest to the public in its own news reports. This is done by way of obliging the broadcaster that holds an exclusive right to offer access to short extracts on a fair, reasonable and non-discriminatory basis to third-party broadcasters. The right to short news reports is limited to the reproduction in general of news reports of third-party broadcasters and their corresponding on-demand audiovisual media services. In the context of audiovisual media this right is considered necessary to accompany news reports with original footage of the event, and for this reason it also - in a subordinate fashion - enables the dissemination of information and greater diversity of news reporting.