The European Council of Artists (ECA) gathers interdisciplinary artists’ councils and professional artists associations representing theatre, film, television, writers, composers, directors, designers, actors, dancers, singers and musicians from 23 European countries, including the European Economic Area and several countries close to EU accession. Overall, ECA speaks for professional artists and performers’ organisations in Europe.
THE TELEVISION WITHOUT FRONTIERS DIRECTIVE AFFECTS THE LOCAL PRODUCTION OF TV PROGRAMMES IN THE EU, ESPECIALLY THE WORK OF PERFORMERS AND AUTHORS, DESIGNERS, COMPOSERS AND TV DIRECTORS
DIRECTLY CONNECTED WITH TV PROGRAMMES.
Apart from the degree of implementation in each country, this directive has been accepted in general as an important contribution to creating employment for all the sectors mentioned above that are among those represented by ECA. The Directive must be preserved as a special tool for maintaining European audio-visual production by means of fixing obligations on European broadcasters in terms of quotas, respect for artists’ intellectual property rights and the support of independent production.
Therefore, ECA is prepared to back lines of action arising from the analysis and work done by other organisations within the group of experts created by the European Commission to study all aspects of cinema and audio-visual production, which also represents performers and creators in Europe. Existing basic measures should be rigorously enforced in all Member States and harmonisation increased by reducing the leeway that EU countries currently enjoy in achieving the aims of the Directive.
ECA believes that technological progress and the emergence of new possibilities in terms of content distribution also clearly call for an extension of the Directive. But in no way should such a revision end in a weaker legal document than the one currently in force. On the contrary, the revised text should reinforce the existing provisions and include adequate new measures to ensure that the aim of the Directive is not jeopardised by the increasing use of new technologies.
Private and public broadcasters should be equally concerned. These same broadcasters should respect and comply with the stipulations which refer to the intellectual property rights of the artists.
ECA IS BACKING SOME RECOMMENDATIONS OF THE GROUP OF EXPERTS SUCH AS THE FOLLOWING:
Article 4
1. That Member States should NOT only be allowed to ensure measures of distribution and production of television programmes “where practicable”. In other terms, we recommend that this obligation be applied in full. ECA believes, in fact, that enough flexibility is provided by this article by allowing quotas to be achieved “progressively, on the basis of suitable criteria” without including the words “where practicable”.
2. The new text should make the obligation of broadcasters clearer and ECA believes that the words “at least 51% of their transmission time” should replace “majority proportion”.
3. As far as the base is concerned, ECA also favours a positive definition or, alternatively, a broader negative one (e.g. explicitly excluding self-promotion or talk shows). We also hope that the revised text of the Directive will actually encourage new content in the transmissions, so as to limit the disproportionate recourse to archive material to fill in quota obligations.
4. Finally, it is the view of ECA that the stand-still clause provided by paragraph 2 should be updated to bring it closer to current transmission averages and ensure a meaningful interpretation of the Directive’s aims and objectives.
Article 5 1. As in Article 4, it is not believed that Member States should only be allowed to ensure measures of distribution and production of television programmes “where practicable”. In other terms, it is recommended that this obligation apply in full. ECA also believes, in fact, that enough flexibility is provided by this article by allowing quotas to be achieved “progressively, on the basis of suitable criteria” without including the words “where practicable”.
2. As far as the base is concerned, ECA favours a positive definition or, alternatively, a broader negative one (e.g. explicitly excluding self-promotion or talk shows).
3. ECA also favours an unequivocal definition of “independent producers” so as to identify the beneficiaries of the protection at a time when corporate integration in the sector is increasingly blurring the line between themselves and the broadcasters.
Furthermore, the Directive should include measures aimed at fostering the circulation of European non-national works. Although this target was not a priority in the old Directive, the artists regard the distribution of these works as an important step in fostering a stronger sense of European identity, developing an audience for European works and helping overcome linguistic barriers.
As to the application of the Directive to new technological means of exploitation, it is believed that quota obligations should also apply to digital delivery and to all the operators that are responsible for it, although with one reserve:
1. Despite different definitions and services (e.g. streaming, simulcasting, multicasting, webcasting, etc.) the experts regard pure interactive transmissions (i.e. entirely on-demand) as probably the only case where quotas would not be able to achieve the aim they are set for, provided that a narrow definition of “inter-activity” is agreed upon. In the view of performers organisations, a transmission can only be interactive when the user or beneficiary can fully choose the time, place and content he/she wants to access. All other modes of transmission are not entirely interactive (e.g. near-on-demand) and should therefore be subject to quotas.
2 Digital thematic channels should also be subject to quota requirements, the Directive allowing for sufficient flexibility for them to comply with these targets in a progressive way, taking into account their often limited market share as well as the sometimes limited availability of European works.
ECA believes that in all cases the intellectual property rights of artists and performers should be respected and applied in terms of remuneration.
As to article 11, ECA strongly believes that films must be broadcast in the version approved by their authors. So, following that position sustained by authors and performers in general, ECA wants to make a clear demand that advertisements and other programmes should not be inserted into any feature film, documentary or film made for television.
For that reason, in the real situation that exists in different European countries, ECA fully agrees with the consideration of other artists’ organisations that the revised Directive should significantly limit the use of commercial breaks in the broadcasting of feature films or of films made for television. These breaks are an infringement of performers’ and authors’ moral rights and they are widely employed – with insufficient control – by commercial and public broadcasters alike. As an initial step, artists in general would certainly welcome a tough enforcement with stronger wording of this article and call on the European Commission to commence a study on the current levels of compliance with this article in the 15 Member States.
The European Council of Artists in general, independent of national legislation, will oppose any option of a proposal regarding the inclusion of publicity on a split screen. This practice not only affects the moral rights of artists but also links the artists’ image or their work to a commercial trademark or campaign.
Finally, the European Council of Artists demands that the final credits should be broadcasted in full at the end of the films, the fulfillment of which is not only connected to the moral rights of artists and performers, but also directly related to remuneration rights since the names of the performers constitute the direct reference for claiming their rights.