Feature: Unlocking the Audiovisual Media Services Directive - December 2007  

The European Parliament recently adopted the Audiovisual Media Services Directive (AVMS) into law, writes Warren Phelops (pictured right) and Henry Rowan-Robinson, partner and associate respectively in the global sports law practice at law firm Kirkpatrick & Lockhart Preston Gates Ellis. AVMS updates the regulations that governed television broadcasting across Europe. Member States will be obliged to put the regulations into their national laws before the end of 2009. Among those affected in the sports industry will be broadcasters, advertisers, sponsors and rights holders.

Why is AVMS necessary?

AVMS amends and renames the Television Without Frontiers directive (TVWF) which harmonised the laws on television broadcasting throughout the European Union, set minimum standards for protection of minors, established rules on advertising and sponsorship and established rules requiring broadcasters to transmit a certain quota of European works.
TVWF was restricted to the regulation of services that are transmitted in specific (traditional) ways and did not provide an effective regulatory regime for many of the ‘television-like’ services that have recently emerged. The difference in the regulatory treatment between the various different forms of distribution of identical or similar content was becoming increasingly unjustifiable. As such, an update of the directive seemed appropriate to respond to changing consumer behaviour and to level the playing field between the traditional and new media broadcasters.

What does AVMS cover?

AVMS is ‘technologically agnostic’ and will regulate audiovisual content through whichever platform it is broadcast: traditional television, simulcast, video on demand, internet protocol television and mobile telephone.
It will apply to all moving images, with or without sound, that are ‘television-like’, whether distributed as part of a scheduled broadcast, (i.e. where the viewer has no choice over when to watch it (linear)), or distributed by way of an ‘on-demand’ service (non-linear). It should be noted non-linear services are subject to lighter touch regulation than the established traditional broadcasters. However, it will not cover audiovisual services which are primarily non-economic (such as private websites), or electronic versions of newspapers and magazines. AVMS will also regulate audiovisual commercial advertising, i.e. moving images that promote goods or services.
AVMS only applies to persons with editorial responsibility for the choice of audiovisual content and who determine the manner in which it is arranged. Clearly, those dealing with such persons will need to know what AVMS covers and how it regulates those matters. There are three areas of AVMS that those in the sports industry may be particularly interested in.

1. Short-news reports

AVMS includes a requirement for broadcasters with exclusive rights to an event of high interest to the public, to make clips available for the purpose of making short reports for news broadcasts. Prior to the AVMS the right was provided for in the 2001 Copyright Directive and the Sports News Access Code of Practice.
According to AVMS, those exercising exclusive television broadcasting rights to an event of high interest to the public must grant other broadcasters the right to use the short extracts (not more than ninety seconds) on "fair, reasonable and non-discriminatory terms". Terms of the access to, compensation for and time limits of short extracts are to be provided for under national law.
The right is restricted to linear services only and only where the clips are part of a general news programme. To the extent that a general news programme is available on-demand, then its use of a sporting clip within the original programme is permitted.

2. Listed events

AVMS retains the ‘events of major importance’ list, whereby Member States may draw up a list of events to which broadcasters are prevented from having exclusive rights. In the UK these include the Olympic Games, the FIFA World Cup Finals, the FA Cup Final and the Wimbledon Tennis Finals.
Where a Member State wishes its list to have effect on events outside of its borders within the European Union, it must submit its list of designated events to the European Commission which will then verify the list and communicate it to all other Member States.

3. Advertising, sponsorship and product placement

In general, AVMS will result in a relaxation of the advertising rules to enable broadcasters to generate more revenue from advertising. There are four key areas of note:
(i) AVMS sets out qualitative rules for advertising which are broadly similar to the existing rules. For example, advertisements must be clearly identifiable, not use subliminal techniques and not encourage behaviour prejudicial to the environment. These rules will extend to all forms of audiovisual advertising - whether in a linear or non-linear broadcast.
(ii) AVMS provides modest increases to the quantity of advertising that linear broadcasters are allowed to show. There are no quantitative restrictions on advertising for non-linear services.
(iii) AVMS permits Member States to allow broadcasters to accept product placement, subject to certain conditions. These include clearly informing viewers (at the beginning, during and/or at the end of programmes), that the content is not influenced in a way that affects the editorial independence of the broadcaster and that it does not directly encourage purchases. All product placement is prohibited in news, current affairs, documentaries and children's programmes.
(iv) As before, sponsors are not allowed to influence the content, or the scheduling, of the programme, must be clearly identified and must not directly encourage the purchase of a product or service. A minor change in the sponsorship regime is that pharmaceutical companies may in future sponsor broadcasts but will still not be able to promote specific medicines or medical treatments.

Conclusion

The Member States have two years to implement AVMS, during which time there will be a period of consultation with UK stakeholders. The Member States have some discretion as to the way in which the directive is interpreted, so all stakeholders should endeavour to make themselves heard when the consultation process begins. In the UK, OFCOM will be conducting the consultation and implementation.

This feature is for information purposes only and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with a lawyer.

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