On 27 February 2019, the Commission organised a stakeholders workshop as part of the preparatory works on two sets of guidelines required by the Audiovisual Media Services Directive (AVMSD): on the practical implementation of the notion of "essential functionality" in the definition of video-sharing platforms (VSPs) (Recital 5) and on certain aspects of the rules on promotion of European works (Article 13(7)).

In addition, Members of the Contact Committee (relevant national Ministries) were invited as observers to the stakeholder workshop. The AVMSD foresees that the Commission issues these guidelines in consultation with the Contact Committee.

Morning session: on the definition of VSPs

Objective

The first part of the meeting was dedicated to gathering input from stakeholders on the shape and content of the future guidelines on the interpretation of the term “essential functionality” as part of the definition of VSPs.

The meeting was structured around four sets of indicators that might be used to assess whether a video functionality meets the criterion of an “essential functionality” within a service:

  • Objective of the service and the importance of its audiovisual component from the user’s point of view
  • Technical features of the service regarding audiovisual content and curation of audiovisual content by the platform
  • Audiovisual commercial communications  and other types of audiovisual content monetisation
  • Proposals for other potentially relevant indicators

Industry participation

A wide range of stakeholders participated in the meeting which resulted in an overall accurate representation of the audiovisual industry.

Among the participants there were public broadcasters (EBU), commercial television (ACT), platforms (Facebook, Snapchat, Google, Twitch), associations of the digital industry (Digital Europe) of the advertisers (EGTA, EASA), users and consumers associations (EAVI, BEUC).

Discussion

Some stakeholders, specifically public broadcasters, stressed that the perception of users regarding the importance of an audiovisual component of a service should prevail over the objective of the service seen from the providers’ view point, arguing that protection under the AVMSD should be provided there where the user can expect a certain level of regulation, according to Recital 24 of the old AVMSD. ACT suggested a concept in which the term of essential functionality should be defined with regard to Recital 42 of the E-commerce Directive and to the active role of platforms in curating the audiovisual content. Broadcasters insisted on the importance of a service’s impact on the society and on users.

One stakeholder stated that, for certain products of their service, videos should not be considered an essential functionality since such product could still exist and attract users even without the audiovisual part.

Regarding the discussion on the relevance of audiovisual technical features, stakeholders agreed that they should not be decisive, but that they can be used as indicators for the relevance of audiovisual content for the service. Participants vividly discussed the indicator of curation of the content by the provider. Stakeholders seemed to be unsure about the different significations of curation for establishing the "essential functionality" and other criteria of the definition of VSPs, namely the lack of editorial responsibility and the role of the platform in organising the audiovisual content. Stakeholders also agreed that the possibility to monetise content and advertising around videos are relevant, yet not decisive indicators for the assessment.

Stakeholders seemed to identify common potential challenges such as the lack of available data to quantify some quantitative indicators (such as, for instance, the proportion of audiovisual content vs other types of content) and the difficulties in a consistent assessment of more subjective indicators (such as the users' perception).

There was a wide consensus among stakeholders on the structure of the guidelines, which should be based on a system of several indicators that allow for a case-by-case analysis. When asked by the Commission, the stakeholders were not able to propose any additional relevant indicator to the ones that had been put forward by the Commission.

Afternoon session: on certain aspects of the rules on promotion of European works

Objective

The second part of the workshop was dedicated to the preparatory work on the guidelines required by AVMSD in relation to the promotion of European works, namely on the:

  • calculation of the share of European works in the catalogue of on-demand media service providers and
  • the definition of low audience and low turnover based on which TV and VOD shall be exempted from the obligation to have a 30% share of European works in their catalogues and from the possible requirement to of cross border financial contributions.

Industry participation

There was a wide participation, representing various perspectives, such as: public broadcasters (EBU), commercial television (ACT), video-on-demand providers (Netflix, Amazon, Apple, Eurovod), cable TV operators (Cable Europe), telecom operators (ETNO), digital industry associations (Digital Europe, CCIA), right holders (European Producers Club, CEPI, Europa Distribution, Society of Audiovisual Authors), film funds (EFAD).

Discussion

There was no common stakeholders’ view on the calculation of the share. Public service broadcasters prefer calculation by hours and minutes as it correspond to how the calculation is done on linear services;  some argued that this calculation would moreover be more favourable to the presence of cinematographic works. Opinions were expressed also in favour of calculation by titles for films and episodes (i.e. 1 episode/1 film = 1 title). On the other hand, VOD providers favour a calculation by title (with 1 film and 1 series each equalling 1 title), arguing that it is more suited to such services: different from linear service providers,  they do not choose which works are shown at which time, but  instead offer a wide choice of titles to viewers based on a catalogue.

On the definition of low audience, there was no common view on what audience means for VOD and of how to ensure comparability across business models. Furthermore, there is a general lack of data for VOD market. Some audience measurements are available, but only in some MS, and the data could be quite expensive. For linear services, the audience is better measured; according to one stakeholder, the audience share published by EAO could be used, while acknowledging that it does not contain data for all providers.  For the calculation of the threshold for low audience, this stakeholder suggests to calculate it so as the largest linear providers (corresponding to the top 20 % linear providers in each MS, which capture 80% of the national market) would be caught by the obligation of cross border financial contribution.

On the definition of low turnover, the calculation was considered as potentially more reliable than for audience. While some stakeholders highlighted that the different sizes of national audiovisual markets should be taken into account (as indicated in recital 40), it was acknowledged that the calculation could raise difficulties in terms of  availability of data if a Member State needs to determine the low turnover as market share in each national market where a VOD under its jurisdiction is present. There was one proposal from one stakeholder to use the turnover thresholds from the SME recommendation, as in their view this would overcome the complexities of calculation based on market share and help prevent barriers to investment.

Beyond the guidelines, some stakeholders were also interested in how the thematic channels could be defined and on the identification of European works in metadata.