Opinion n° 2010-01 of January 26th, 2010 relative to a decree project fixing the mode applicable to the services of radio and television falling within the competence of France distributed by the networks not using frequencies assigned by the Superior council of the audio-visual one
Seized for opinion by the Government, pursuant to articles 9 and 33 of the law n° 86-1067 of the modified September 30th, 1986 relating to the freedom of communication, of a decree project fixing the mode applicable to the services of radio and television falling within the competence of France distributed by the networks not using frequencies assigned by the Superior council of audio-visual, this one, after having deliberated on it in plenary assembly on January 26th, 2010, gives the following opinion.
I. - General Observations
In his opinion of May 9th, 2001 on the decree n° 2001-609 of July 9th, 2001, the Superior council of audio-visual had recommended the concluding of interprofessional agreements between editors of services and producers to determine the modes of enforcement of a decree fixing the general framework of the contribution of the editors at the development of the audiovisual production.
He regrets however, as he had already mentioned in his opinion n° 2009-8 of July 15th, 2009 relating to the decree modifying the mode of contribution to the audiovisual production of the editors of services diffused by hertzian way in analogical mode, than the whole of the professional organizations was not joined together to work out these agreements. Moreover, the latter were negotiated and signed only by one restricted number editors of services in comparison with the whole of the existing editors.
The Council notes that the decree project concentrates a significant portion of the investments of the editors on the production of audio-visual works concerned with the following kinds: fiction, animation, documentary of creation, including those which are inserted in an emission other than a tv news or an emission of entertainment, videomusic and collecting or re-creation of live performances.
Consequently, anxious to guarantee an offer of programs diversified in the audiovisual landscape additional, the Council considers that centring of the investments on audio-visual works enumerated above, called “patrimonial”, goes against this objective.
Moreover, the Council draws the attention of the Government to the risk of standardization of the formats which this provision comprises. In the interest of the televiewer and economic equilibrium of the market of paid television, he insists on the need for preserving the diversity of these formats. It raises in this respect the high rate of the contribution to the production of patrimonial audio-visual works is not adapted to leading specificities of certain editors of services and could succeed, for a part of them, with the need for modifying their leading line deeply and for engaging, consequently, of the heavy investments to support for editors of services whose economic situation is sometimes fragile.
The Council reminds the surplus that the obligation to devote a share of the contribution of the editors of services to audio-visual works called “patrimonial” is not envisaged by the law of September 30th, 1986 for the departments of communication audio-visual not using the frequencies assigned by him.
If the Council fully shares the objective of this legislative measure planned for television services diffused by hertzian way, it estimates completely unjustified and dangerous for the future of paid television that the editors not signatories of the agreements are, because of the present decree project, subjected to the obligations negotiated by other editors with the producers.
Lastly, the Council notes that a device making it possible to take into account the investments devoted to the production of emissions carried out in plate was certainly envisaged, but that it seems insufficient taking into account the elevated level of the contribution to the development of the production of audio-visual works called “patrimonial”.
This is why the Council recommends the registration of an alternative to the modes suggested by the decree project to allow the best taken into account of specificities of the various editors in order to take care of an equitable treatment of the latter taking into consideration their leading format.
The coming into effect of the decree in 2010
The coming into effect of the decree in 2010 will raise difficulties with the editors of services signatories of the agreements of July 22nd, 2009 (“Access agreements”) and agreements of December 17th, 2008 (“Orange agreements”) which anticipated 2009 like first year of application.
It is proposed among the transitional measures that on a purely derogatory basis, the year 2009, the editors concerned can choose the mode of the decree project as allows it article 91 of the law of March 5th, 2009 relating to the audio-visual communication and the new public service of television.
II. - Observations on certain provisions
Rise in charge of the patrimonial obligation
The Council takes note which it will have faculty to fix in the conventions concluded with the editors from services the methods according to which the editor will be able to conform, within a period of three years, with the obligation to devote a share of its contribution to investments in audio-visual works concerned with the kinds enumerated to the third subparagraph of article 11 of the decree project.
However, if the optional mode suggested to III of this opinion were not retained, the Council estimates that the period of rise in load should extend over five years rather than three in order to allow the editors not signatories agreements to adapt their programming and their investments to the new regulation.
Extent of the yielded rights
The Council reiterates its attachment of the devices supporting the circulation of works. It notes with regret that the rights negotiated in the agreements carry, for certain kinds of audio-visual works, on long durations and significant numbers of diffusion.
It notes with the surplus that, for court-measurings, these conditions of transfer of the rights were negotiated without the presence of organizations representative of this sector.
In addition, the Council wonders about registration, in conventions of the editors not signatories of agreements, of stipulations relating to the extent of the yielded rights which, insofar as they are not any more one of the criteria of independence of works, concern contractual relations between editors and producers.
The specific regime of the editors of services which devote annually
majority of their time of diffusion to the live performances and videomusic
The decree project authorizes the derogatory mode of contribution to the development of the audiovisual production (a rate then fixed at 8%) for “the editors of services which annually devote more half of their time of diffusion to collectings or re-creations of live performances and the vidéomusiques ones, these last having to account for at least 40% of annual time of diffusion”, and either for the editors devoting more half of their annual time of diffusion to only videomusic.
The Council reiterates its attachment with the existence of a musical offer diversified on the television services. It estimates that this provision constitutes an encouragement with the programming of live performances and that it thus makes it possible to diversify the programming of the editors profiting from this derogatory mode. He considers that such an opening is favorable to cultural diversity and audio-visual creation, by encouraging the editors concerned to invest in the production of live performances.
The expenditure of adaptation of works to the blind people or malvoyantes
The Council appreciates that the possibility is entrusted to him of registering in conventions a multiplying coefficient for the taking into account of the expenditure of adaptation of works to the blind people or malvoyantes within the contribution of the editors of services.
It fully shares the objectives of this measurement which encourages the editors to put in work the means making it possible to develop the audiodescription of the televised programs.
III. - Provisions suggested by the Council
To envisage a derogatory mode with the “patrimonial” obligation
subjected to the approval of the Council
The decree project proposes two options: a general scheme fixed at article 11 and one mode defined in article 14, corresponding to the stipulations negotiated by the editors with the professionals.
However, the total rate of the contribution of the editors to the development of the audiovisual production, fixed at 12%, very in on this side rate registered in the decree n° 2002-140 of February 4th, 2002, was negotiated by the professionals on the other hand of a taking into account differentiated from the expenditure engaged by the editors of services according to whether it is a question of investments for patrimonial works or not, or emissions other than of fiction mainly carried out in plate.
However the decree project authorizes, in its article 11, the taking into account of the entirety of the expenditure for works not raising of the kinds known as “patrimonial”, contrary to the device of the agreements. The Council estimates that, under these conditions, the rate of the contribution should be higher than 12%.
To preserve the diversity of the formats, the Council moreover the installation of an additional option proposes which would not comprise obligation of production of patrimonial audio-visual works and would offer to the possibility, under conditions, to take into account expenditure for emissions other than of fiction mainly carried out in plate. On this assumption, the rate of the contribution should be close to the current rate (16%). The application of this provision would be subjected to the appreciation of the Council by taking account of the programming of the editor.
Indeed, the possibility of fixing, in conventions, the obligation envisaged to II of article 11 of the decree project (“patrimonial” obligation) on a level lower than 8.5% of the resources “without being able to be lower than 6%” seems insufficient in comparison with the programming of certain editors. Furthermore, it does not take again the terms of the agreements of July 22nd, 2009 which excluded the application to an editor, taking into account the nature of its programming, of the contribution to the production of works known as patrimonial.
The expenditure of safeguard, restoration and development
worksaudio-visual heritage as well as the expenditure
devoted with the promotion of works and the training of the authors
Article 33 of the law of September 30th, 1986 lays out that “ for the services whose main object is the programming of cinematographic works or audio-visual, when the nature of their programming justifies it, this contribution can, in whole or part, to take into account the expenses of safeguard, restoration and development of works of the heritage”.
The Council considers that this legislative measure should be taken again in the decree. It estimates that the taking into account of this expenditure is paramount in order to encourage the editors to contribute to the conservation of the French audio-visual heritage.
The decree project does not make it possible to take into account the expenditure devoted by the editors the promotion of works and the training of the authors, whereas article 33 of the law of September 30th, 1986 lays out that this expenditure can be included in the contribution of the editor to the development of the audiovisual production.
This expenditure is certainly not envisaged by the agreements, but insofar as the decree project has authority to apply to the whole of the editors of services distributed by the networks not using frequencies assigned by the Council, this one proposes that this provision is also applied to all the editors, according to the same methods as those applicable to the editors of services diffused by hertzian way in analogical mode.
The valorization of the emissions other than of fiction
mainly realized in plate
The Council considers that it is necessary to specify, in the same way as in the decree n° 2002-140 of February 4th, 2002, and contrary with what is registered in article 14 of the decree project, that it acts of the “ new emissions other than of fiction mainly carried out in plate and produced by independent companies of production”.
Right to receipts
The Council points out that the fixing of a right to receipts concerns the purely contractual relations between editors services and producers, who are for this reason of a private nature. The drafting of the decree project gives competence to the Council to fix the right to receipts for all the editors of service, which they are signatories or not agreements.
Article 15 of the project should be modified consequently as follows: “ When it [the editor] financed a substantial share of the total costs of work, it can hold a right on the receipts of exploitation”.
For the implementation of the remarks above, the Council proposes the textual modifications mentioned in appendix in the present opinion.
Fact in Paris, on January 26th, 2010.
For the Superior council of the audio-visual one:
Consult the appendix in the present opinion:
Official journal of April 29th, 2010