The role of independent productions in promoting cultural ...

COUNCILOF EUROPE

CONSEILDE L’EUROPE

H/Inf (2009) 8

The role of independent productions

in promoting cultural diversity

Report prepared by the Group of Specialists on Media Diversity (MC-S-MD), November 2008

Directorate General of Human Rights and Legal Affairs

Council of Europe

Strasbourg, June 2009

Édition française : Le rôle des productions indépendantes dans la promotion de la diversité culturelle

Directorate General of Human Rights and Legal AffairsCouncil of EuropeF-67075 Strasbourg Cedexhttp://www.coe.int/

© Council of Europe 2009Printed at the Council of Europe

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

The context of the initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

The relevant facts: the definition and role of independent audiovisual production . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Independence in theory? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

An economic and editorial dependence . . . . . . . . . . . . . . . . . . . . . . . . 8

The rights issue . . . . . . . . . . . . . . . . . . . . . 8

Lack of transparency and visibility in respect of the origin of a production (independent producer or broadcaster’s own production) at the time of broadcasting . . . . . . . . . . . . . . . 9

A comparative overview of some direct and indirect support mechanisms for independent production . . . .9

Independent production support and promotion mechanisms . . . . . .10

Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Contents


5

IntroductionIndependent audiovisual productionbenefits from a very favourable legaland political environment at the na-tional and European level, which con-tributes to cultural diversity. However,it is important to consider the audio-visual sector as a whole. One shouldnot neglect or underestimate the fun-damental role played by broadcasters,and particularly those with a publicservice remit, in promoting cultural di-versity and supporting independentaudiovisual production. Such broad-casters are extensively engaged insupporting the production of cinemat-ographic works and television pro-grammes, contributing directly andindirectly to independent productions.Furthermore, they commission andacquire and broadcast a substantialproportion of independent produc-tions, very often greatly exceeding thequota laid down by law.

Moreover, the media landscape, tech-nology and consumer behaviour havechanged. Broadcasters have to reachthe audience via all forms of technol-ogy, including new media such as theInternet, mobile and other digital plat-forms. Digital rights are no longer sep-

arable: broadcasting as such willshortly be digital only; consumers in-creasingly make no distinctionbetween linear and non-linear con-sumption, and young viewers in par-ticular increasingly use only theirpersonal computer.

Consequently, support for independ-ent audiovisual production in this newmedia environment as a means of en-suring cultural diversity has to be pro-vided on fair terms. In most countries,broadcasters are encounteringgrowing difficulties in obtaining therights to exploit audiovisual produc-tions, for which they themselves haveprovided most of the funding, on thenew media platforms. The terms ofnegotiation need to be clarified, andrights have to be acquired in relationto the risks taken. New models forterms of trade are needed, not simplydistinguishing secondary rights butalso finding the right balance betweenthe needs of broadcasters in the digitalage and the interests of independentproducers in further commercial ex-ploitation of audiovisual works,bearing in mind the extent of the fi-

nancial share of broadcasters and pro-ducers in a given production.

Generally speaking, any evaluation ofthe current situation should take intoaccount the changing media environ-ment, the new market realities, the fea-tures of the new audiovisual landscapeand the complexity of the relation-ships between the various players in-volved.

At the eighth meeting of the MC-S-MD(15-16 September 2008) a revisedversion of the report was presented inorder to draft a final text on independ-ent productions. We chose to workfirstly on the context of the initiative,which is the expression of the recentevolution of international and Euro-pean legislation in the field (below),then examine the issue of the defini-tion of independent production

(page 6); its competitiveness in a free-

market (page 8). In order to tackle theproblem, we have added a short com-

parative overview of direct and indirect

support mechanisms for independent

productions from some Council ofEurope member states (page 9).

The context of the initiativeThe UNESCO Convention marks a sig-

nificant advance in the affirmation of a

new political will, moving us towards a

break with purely commercial logic in

relation to the highlighting and dis-

semination of cultural expressions

(and therefore access to them, as well).

In this context, the Convention gives a

clear reminder of the need to support

and promote independent produc-

tions. Article 6-2c of the Convention,

relating to the “rights of parties at the

national level”, encourages UNESCO

member states, when drawing up their

cultural policies, to take “measures

aimed at providing domestic independ-

ent cultural industries and activities in

the informal sector effective access to

the means of production, dissemination

and distribution of cultural activities,

goods and services”. The concept of “ef-

fective access” seems to apply to eco-nomic and financial support measuresfor this kind of production, in order toensure the equitable distribution andcirculation of content. It should benoted that this concept may also be re-garded as a “particularly novel and po-tentially controversial one”, insofar as it“appears to apply to measures relating,for instance, to access of culturalcontent to the means of distribution,such as communication networks,electronic programming guides andother gateway technologies”.1 Simi-larly, Article 6-2d of the Conventioninvites UNESCO member states to take,

with this in mind, “measures aimed atproviding public financial assistance”,whether in the film industry sector orin respect of any other financingschemes for the production, promo-tion and distribution of audiovisualcontent, irrespective of its nature (TVor multimedia) or origin (public-service or private broadcasters).

The process of revision of the Euro-pean “Television without Frontiers” Di-rective (TVWF) seems to reflect similarconcerns, explicitly linked to the wishof several member states’ delegationsduring the discussions in the Audiovis-ual Working Party to place the empha-sis on the need to protect andpromote European works, through in-centives (encouraging co-productionmechanisms and the distribution ofcontent), and even to include in the

1. Cf. Verena Wiedemann, Empowering Audiovis-

ual Services for the Future, in Nina Obuljen and Joost

Smiers, UNESCO’s Convention on the Protection and

Promotion of the Diversity of Cultural Expressions:

Making It Work, Institute for International Relations,

Zagreb, 2006, p. 106.

The role of independent productions in promoting cultural diversity

6

text of the new directive practicalmeasures to promote and support cul-tural diversity.

Lastly, during the process of revision ofthe European Convention on Trans-frontier Television (ECTT), a certainamount of importance is being at-tached to issues of media pluralism,and it is necessary to follow the discus-sions on the revision of the TVWF witha view to harmonisation of the rulesapplicable in this field. It has, further-more, been emphasised during previ-ous discussions in the MC-S-MD thatthe issue of independent productionscould also be the subject of new provi-sions in the Convention.

The Standing Committee (T-TT) con-sidered during its 42nd meeting inOctober 2007 a proposal by its draft-ing Group (in charge of preparing therevision of the ECTT) to add the follow-ing provision to the current Article 10:

Article 10: Cultural Objectives.

New paragraph 2

“European Parties shall ensure, where practica-

ble and by appropriate means, that television

broadcasters reserve at least 10% of their trans-

mission time, excluding the time appointed to

news, sports events, games, advertising and

teletext services, or alternately, at the discretion

of the Party, at least 10% of their programming

budget, for European audiovisual works created

by producers who are independent of broad-

casters.

This proportion, having regard to broadcasters’

informational, educational, cultural and enter-

tainment responsibilities to its viewing public,

should be achieved progressively, on the basis

of suitable criteria; it must be achieved by ear-

marking an adequate proportion for recent

works, that is to say works transmitted within

five year of their production.”

New Paragraph 2, which is transposedfrom Article 5 of the AVMS Directive in-troduces a requirement for televisionbroadcasters to support independentproducers of European works. Thedrafting Group noted that this provi-sion, which relates to the requirementof media pluralism, and although it isintroduced by the wording “wherepracticable” puts an additional burdenon non-EU Parties to the Convention.During its 42nd meeting the T-TT ac-knowledged this consideration but a

majority expressed itself in favour ofthe provision.

According to the relevant paragraphsin the draft explanatory report,

“The aim of this paragraph is to encourage the

growth and development of the independent pro-

duction sector.

This will help to ensure that there are outlets

and opportunities for the development of the

creative talents of people in State Parties who

are active in the cultural field, and to promote

the diversity and plurality of the audiovisual ma-

terial which is available to the European public.

It is for States Parties to determine, within the

framework of their existing law and practice,

how the independence of the producer of an

audiovisual work should be defined. It is antici-

pated that, in doing so, States Parties will give

due consideration to the needs of small and

medium-sized producers. State Parties may also

wish to authorize financial participation by co-

production subsidiaries of television companies

and other major service providers, but they

should also pay due account to of criteria such

as the ownership of the production company,

the amount of programmes supplied to the

same broadcaster, and the ownership of sec-

ondary rights.”

The relevant facts: the definition and role of independent

audiovisual production

Now that the Information Society is infull swing, the production of audiovis-ual content has taken on strategic im-portance for states. “Independentproduction” appeared as a concept inthe United States in the seventies, firstdefined in terms of access to prime-time slots and to funding systems. TheEuropean approach, in contrast, cameabout as states’ monopolies of audio-visual media were gradually droppedover the subsequent decade, andprivate broadcasters emerged.

Although the situation of independentproduction differs from one state toanother, we can nevertheless immedi-ately identify some features that arecommon to all European countries.One is a definite interest among gov-ernments in maintaining and develop-ing a viable independent audiovisualproduction sector, through multiple

mechanisms providing direct or indi-rect financial support.

Their interest seems to be justifiedmainly for cultural reasons: the com-mercial nature of the audiovisualmarket may bring difficulties in termsof creators’ freedom of expression andreduce their chances of obtainingfunding from broadcasters for theirprojects.

However, changes in the audiovisuallandscape and the arrival on themarket of new players (such as tele-communications operators, etc.) mustalso be taken into account. Moreover,public service broadcasters are indis-pensable partners, providing a greatdeal of support for independent audi-ovisual production.

Independent production is essentialso that the requisite financial condi-

tions exist for the creation of an inde-pendent creative environment, in itsturn ensuring a constant renewal ofaudiovisual programmes and content,as well as variety in opinions, ideas andmeans of cultural expression. Supportfor independent production is there-fore of vital importance to achievingthe objective of plural sources andopinions which is central to the rulesof democracy. Independent producershave proved their ability to create avery wide range of audiovisual con-tent, of a quality that is universally rec-ognised (e.g. art/experimentalcinema).

Independent audiovisual production isthus able to respond both to the pub-lic’s expectations of diversity ofcontent and to states’ cultural, eco-nomic and political objectives as set atEuropean level, such as diversity of


7

sources and content, protection of cul-tural identities and the developmentof a competitive audiovisual industry.Article 5 of the “Television WithoutFrontiers” Directive (retained withoutchange by the new Audiovisual MediaServices Directive) requires EUmember states to ensure, “where prac-ticable and by appropriate means, thatbroadcasters reserve at least 10% oftheir transmission time, excluding thetime appointed to news, sports events,games, advertising, teletext and tele-shopping services, or alternately, atthe discretion of the member state, atleast 10% of their programmingbudget, for European works created byproducers who are independent ofbroadcasters.” This European systemdoes not represent, however a maxi-mum, but rather a minimum share,and some EU member states have de-cided, according to the subsidiarityprinciple, to raise to higher level theshare of independently produced con-tent.

Moreover, broadcasters often go vol-untarily well beyond the percentagesset out in the Directive. The 2005Graham Report2 on the impact of Euro-pean and national measures on thepromotion and distribution of tele-vised programmes, emphasizes that itis the public service broadcasters whohave been the greatest investors innew productions. It also says that theyhave broadcast the largest proportionof non-national European and inde-pendently-produced works.

Furthermore, recital 31 of Directive 97/36/CE, clearly states, non-limitatively,that

“[…] Member states, in defining the notion of

'independent producer`, should take appropri-

ate account of criteria such as the ownership of

the production company, the amount of pro-

grammes supplied to the same broadcaster and

the ownership of secondary rights”.3

This approach leaves it to memberstates to establish, if necessary,

maximum or minimum levels for eachof the three criteria, and even to addother criteria. The preference for therelevant legal provisions to be basedon the subsidiarity principle has notbeen altered in the slightest by recital49 of the new Audiovisual Media Serv-ices Directive.4

These criteria are provided for theguidance of member states. It is thetask of each country to define whatconstitutes an independent producer,taking into account its economic cir-cumstances and the structure of its au-diovisual market. Moreover, adistinction needs to be made betweenthe issue of the ownership of second-ary rights and the notion of independ-ence; the two are not directly linked.As described at the outset, conver-gence of technology does not make itpossible to separate rights, simply bydistinguishing linear from nonlinearexploitations. New terms of trade willhave to define exploitation windows,bearing in mind the extent of fundingof the production by the various play-ers, and even common commercial ex-ploitation with revenue-sharingmodels. In other words, there is notone single way of defining independ-ent producers, and the rights issuemay even prove the most difficult toresolve.

This is probably why the concept of“independent producer” seems ex-tremely difficult to define in practice,since it covers not only a specific pro-fessional status, but also a certain levelof know-how. The producer is respon-sible for not only recruiting the crea-tive team and obtaining the technicaland financial resources needed tomake a production, but also taking theproject to completion and promotingit. Thus, the producer has a twofold re-sponsibility as both entrepreneur andpublisher/creator of audiovisual con-tent.

Today, the economic influence of inde-

pendent productions is relatively lim-

ited, despite strong competition in

that particular market and the emer-

gence of a tendency for production

businesses to merge. Thus turnover in

the independent production sector

(11 billion euros in 2004) is still four

times lower than that achieved by

broadcasters (48 billion euros in 2004),

although the trend is positive where

programmes with a short shelf-life are

concerned.

The volume of independent produc-

tions might still increase, as demand

for content grows in future. The diver-

sification of audience expectations is

due to the success of highly special-

ised “niche” channels, the switch from

terrestrial to digital (multiplying the

numbers of broadcasting frequencies

available), and the new technologies

making possible both interactivity and

flexible use of different media (Inter-

net, DVD, etc).

Yet, it could be more pertinent to

examine the structure and size of the

market, and the characteristics of inde-

pendent production, than to compare

the respective turnover figures of

broadcasters and independent pro-

ducers. While the independent pro-

duction sector varies considerably

from one country to another, there is

also a great diversity of genres. There

are two distinct categories of produc-

ers. Independent companies produc-

ing stock programmes in such fields as

drama/fiction, documentary and ani-

mation are different from those pro-

ducing programmes with a short shelf-

life, such as entertainment and variety/

games, which have far more resources

and often belong to large media

groups. It is not always correct to con-

sider matters in terms of independent

production being synonymous with

small production companies and di-

versification. Broadcasters commis-

sion a significant volume of

programmes from major production

companies which are often parts of

large media groups.

2. Impact Study of Measures (Community and

National) concerning the promotion of distribution

and production of TV programmes provided for

under Article 25 (a) of the Television without Fron-

tiers Directive, Graham Final Report, 24 May 2005.

4. Directive 2007/65/EC of the European Parlia-

ment and of the Council of 11 December 2007

amending Council Directive 89/552/EEC on the

coordination of certain provisions laid down by law,

regulation or administrative action in Member

States concerning the pursuit of television broad-

casting activities Text with EEA relevance:

.


8

Independence in theory?

The effective existence of diversifiedindependent production makes possi-ble genuine plurality in the field of au-diovisual creation and content. Itseems vital to support a variety ofworld views in order to offer the widerange of viewpoints essential to de-mocracy and the shaping of publicopinion.

The maintenance and development ofdiversified independent productionmake it possible to prevent vertical in-tegration/concentration of the playersinvolved in production and distribu-tion from reaching the point at whichthere would be a reduced guaranteeof diversity of opinions. Cultural diver-sity and the renewal of concepts andideas are facilitated by keeping apartthe major players involved in the pro-duction and distribution of audiovis-ual works.

Independent producers point out,however, several difficulties, namely:

An economic and editorial

dependence

From an economic point of view, theproduction of an audiovisual work re-quires a significant financial invest-ment. Despite the existence of directassistance (for production, writing andpromotion), producers often expressthe need for more flexible financingschemes.

From an editorial point of view, pro-ducers are sometimes subject tocertain constraints in order to meetbroadcasters' expectations and thusbenefit from their support. These con-straints relate particularly to content(subject matter), format or genre(combination of genres).

But the role of broadcasters in fundingindependent audiovisual productionand in editorial terms should not beplayed down by portraying them as nomore than content distributors. Incertain countries broadcasters, andparticularly those with a public serviceremit, have very precise obligationsunder national legislation to promotecultural diversity, and they invest

heavily in independent audiovisualproduction. They thus enable thesector to consolidate and prosper.Consequently, it would seem appropri-ate for broadcasters to be in a positionto define the content which theybroadcast. Editorially, it has beenargued – and not without reason –that producers have to meet the ex-pectations of broadcasters, not viceversa.

It has been argued also that, as a resultof the decline in advertising revenueand the inadequacy of national andEuropean funding schemes for inde-pendent productions, the volume of inhouse audiovisual productions (madeby broadcasters themselves) is grow-ing, and the volume of investment innew independent productions is fall-ing.

On the other hand, in countries suchas the United Kingdom, the volume ofindependent productions is growingand that of in-house production is de-creasing.

In addition, the reduction, or even theelimination, of certain sources offunding for broadcasters could resultin their investing less in new inde-pendent audiovisual productions. Theexistence of a strong public broadcast-ing service has made it possible todevelop a strong European audiovis-ual industry that can hold its ownagainst the industries of large pro-ducer countries in other parts of theworld.

The rights issue

Producers argue that the situation asdescribed above entails multiple nega-tive effects, as it can give rise to,among other things, a dominant posi-tion for broadcasters during negotia-tions on the assignment of rightsrelating to independent productions.The assignment of the rights in theirentirety to the broadcasters may deal acrucial blow to independent produc-ers' economic viability, depriving themof their ability to access new markets,

to attract investment and to continueproducing.

Broadcasters argue that in many Euro-pean countries they are encounteringgrowing difficulties in obtaining therights (particularly Internet streamingand catch-up services) to exploitaudiovisual productions, for whichthey themselves have provided mostof the funding. Mention may be madeof Council of Europe RecommendationCM/Rec (2007) 3 on the remit of publicservice media in the information soci-ety, which considers that non-linearon-demand services are part of the es-sential offer of public service broad-casters. Moreover, in some situations,the rights secured by broadcasters donot reflect their financial input.

In many countries, negotiationsbetween broadcasters and independ-ent producers are governed by theprinciples of “contractual freedom”and “rights being proportional to therisks taken”. Preventing broadcastersfrom exploiting secondary rightswould make it impossible for them torecoup their investment and wouldcause them to reduce their financialcontribution to the production. It isnecessary to take into account the re-spective financial contributions andthe risks taken by each party. To theextent that producers make a financialcontribution and undertake some ofthe risk, it is quite normal that theyshould hold some of the rights. More-over, there are cases in which broad-casters provide all the funding for aproduction and the producers benefitfrom incentives such as a share in theprofits. At the end, it is necessary tofind a solution that is fair for all con-cerned.

The ownership of secondary rights re-lating to content, although it can beone of the crucial criteria for the pur-poses of the definition of independentproduction activities, is neverthelessone of its most controversial aspects,to which a cautious approach shouldbe taken.


9

Lack of transparency and

visibility in respect of the origin

of a production (independent

producer or broadcaster’s own

production) at the time of

broadcasting

Among the ways of fostering inde-pendent production, we could men-tion:

Ensuring independence frombroadcasters through public financialsupport (varying the sources of publicfunding);

Giving the necessary support andencouragement to the developmentof independent distributors. It is im-portant to support and develop inde-pendent distribution which will beable to offer a variety of productions;

Ensuring the transparency of theorigin of productions;

Broadcasting quotas (as in France,in particular) applying to independentEuropean productions, making it pos-sible to offer the audience a variety ofEuropean and national programmesand to protect television schedulesfrom an invasion by cheaper Americanprogrammes.

In an effort to create genuinely in-dependent audiovisual production,the introduction by public institutionsin certain states of support schemes(such as direct or indirect support forfilm production at regional, nationaland European levels), quotas (e.g. aquota of independent productions tobe broadcast), or even compulsory in-

vestment in independent productionby broadcasters.

Ensuring effective distribution: itis necessary to support and encouragethe development of independent dis-tributors with a view to a more diversi-fied distribution network.

Encouraging co-production, al-though this entails an accumulation ofrisks: the language barrier, the tradi-tional difference in the standardformats of audiovisual content, andtechnical constraints (the soundtrack,for example, must only contain thespecial effects and the original sound-track, without any dialogue).

These measures – such as settingbroadcasting and investment quotasand support mechanisms – are notnew and/or already exist. The existingEuropean and national legal frame-works support independent produc-tion and ensure cultural diversity.What is required is to implement themcorrectly.

Discussing the real scope of suchmeasures means raising here againone of the most difficult aspects of theissue of supporting diversity of con-tent, through the direct or indirectpromotion of independent produc-tions. Bearing in mind the sensitiveaspects of the question of secondaryrights, this report will take note of themain arguments that exist, butwithout claiming to examine theproblem in greater detail or to comecloser to resolving it.

On the one hand, such measures couldnot be effective unless account istaken of the fact that the independentproducer has three potential profitsources: the profit quota, and, in thelong term, the exploitation of video re-cordings and other spin-off products,as well as the opportunities that existon the world market. But if a produceris deprived of the benefits of second-ary rights, access to long-term profitsources – which are the most impor-tant in terms of financial benefits – isblocked.

On the other hand, it has been alsonoted, not without reason that thepreference for subsidiarity prescribedby European legislation in the contextof the definition of independent pro-ductions is based on fairly contrastingpractice by member states in this field.The reasons for the cautious line takenby the European legislator in thisrespect thus stem from the specificmechanisms and current context ofeach individual national audiovisualmarket.

In practice, any mandatory, or even ex-haustive, regulations in this sphere(maximum prices, quotas, etc.) couldentail a substantial risk of lower invest-ment by broadcasters in new inde-pendent productions. The resultwould be the strict opposite of thedesired effects of encouraging plural-ity of content and promoting the di-versity of cultural expressions, withaccess to the market becoming possi-ble for content in art/experimental,underground or communitarian style.

A comparative overview of some direct and indirect support

mechanisms for independent productionIn order to understand the logic andthe impact of such support mecha-nisms, it is vital to begin with a brief

overview of the different definitions of“independent production” adopted bymember states. The different national

approaches very much determine thechoice of support and promotion mech-

anisms.

Table 1. The three types of national approach on the basis of the criteria adopted for the purposes of definition

Member state Ownership of produc-

tion company

Effective editorial inde-

pendence

Quantity of programmes

supplied to the same tel-

evision broadcaster

Secondary rights owned

Belgium: Flemish Commu-nity

Belgium: French Commu-nity


10

Criteria for the definition of an

independent producer5

No commitment: Austria, Denmark,Germany and Sweden

Recital 31 (now renumbered 49) of thedirective laid down four specific crite-ria for the definition of independentproductions, but allowed memberstates to opt to use them more appro-priately to the context of their nationalmarket, in pursuance of the principleof subsidiarity. This explains why fiveEuropean Union member states (Aus-tria, Denmark, Germany and Sweden)did not consider it helpful to include intheir domestic law an explicit defini-tion of the concept, given that, in thisparticular situation, the criteria set byrecital 49 remain directly applicable,together with domestic legal practiceand the decisions of the Contact Com-mittee, which operates within theEuropean Commission.

Flexibility: Belgium (Flemish-speakingCommunity), Greece, Ireland, Luxem-bourg, the Netherlands, Spain

This approach seems to favour, interalia, qualitative-type criteria, such asthe producer's effective editorial inde-pendence, defined in Irish law, for in-stance, as the “capacity to exercisecontrol over the actors, productionstaff, equipment and facilities used inthe production”.6

A strict line: Belgium (French-speakingCommunity), Finland, France, Italy,United Kingdom

Giving priority to quantitative criteria,and particularly the criterion of owner-ship of the production company, thisapproach is intended to ensure thatthe shares of an independent produc-tion company owned by the broad-casters, or the shares of a broadcastingcompany owned by the independentproducers do not exceed a maximumthreshold which ranges from 25%(Netherlands) to 15% (France) of all theshares. Similarly, a criterion oftenadopted is the quantity of pro-grammes supplied to a single televi-sion broadcaster. In Finland, forinstance, the maximum quantitativethreshold is set at 90% of the pro-grammes supplied to one and thesame broadcaster over a total time-span of three years, whereas in Francethe proportion (80% of the pro-grammes) is calculated more strictly,taking into account inter alia thehourly volume of programmes.

Independent production support

and promotion mechanisms

Another consequence of a subsidi-arity-based legal system is thatmember states have latitude to adoptmeasures that are stricter than thoseprescribed by the European directive,should they consider it necessary to doso.

As independent audiovisual produc-tion always seems to involve an imbal-ance between the technical, logisticaland human resources and the facilitiesand funds available to the independ-ent producer and to the broadcaster,

all the EU member states have usedthis latitude to protect and promoteindependent producers and produc-tions.

Here again, three courses of action areopen: quantitative incentives, qualita-tive incentives or direct or indirect fi-nancial support.

Quantitative incentives

Six member states (Finland, France,Italy, the Netherlands, Spain and theUnited Kingdom), for example, usehigher quota system, applied either tototal turnover or to the programmeschedules of the public-service broad-caster, often synonymous with the his-torical operator or its beneficiaries:11.5% of the total turnover of theFrench public-service broadcaster,France Télévisions, has to be used tofinance independent productions,whereas Italy’s public-service broad-caster, RAI, must reserve 20% of itsprime-time broadcasting hours for in-dependent productions.

Qualitative incentives

These kinds of incentive are often in-tended to protect and promote na-tional cultural expressions, in thosemember states which require public-service broadcasters in particular toprovide broadcasts and programmeschedules reflecting the cultural andlinguistic diversity of the differentcommunities living in a given territory.These incentives evenly apply to bothin-house and independent produc-tions.

The Greek public-service broadcaster,ERT, for example, has to comply with a25% quota of prime time reserved for

Finland

France

Greece

Ireland

Italy

Luxembourg

Portugal

Spain

United Kingdom

Table 1. The three types of national approach on the basis of the criteria adopted for the purposes of definition

Member state Ownership of produc-

tion company

Effective editorial inde-

pendence

Quantity of programmes

supplied to the same tel-

evision broadcaster

Secondary rights owned

5. In this context, see the Final Report by David

Graham and Associates Ltd: Impact Study of Meas-

ures (Community and National) Concerning the

Promotion of Distribution and Production of TV

Programmes Provided for Under Article 25(a) of the

TV Without Frontiers Directive, European Commis-

sion, Directorate-General Information Society and

Media, 2005, p. 91.

6. Ibidem, p. 92.


11

programmes and content in the Greeklanguage, whereas the Netherlandshas a similar system, but with two dif-ferent quotas (50% for public-servicebroadcasters, but only 40% for pri-vately-owned broadcasters).

France, finally, combines both kinds ofincentives: it imposes a 40% quota forFrench content on all broadcasters,public and private alike, and a secondobligation to invest 16% of total turno-

ver in independent productions (20%for private broadcaster Canal Plus).

Direct or indirect financial support

Subsidies, tax rebates and other stateassistance are the conventional formsof support for the cinema and audio-visual sector, both in-house and inde-pendent. However, there are also somespecific mechanisms for providingfinancial support to art/experimental-

type productions, such as an obliga-tion to invest or to make financialcontributions to a national cinemato-graphic fund (Austria, Finland, Portu-gal).

In France, for instance, private broad-casters are obliged to invest aminimum annual quota of 3.2% oftheir net turnover in the financing offilms, of which at least 75% must bemade by independent teams.

ConclusionsThe importance of the role played byindependent producers for consolida-tion and fostering authentic and freeaccess of creators in a highly competi-tive market such as the audiovisualone has been acknowledged and rec-ognised both by UNESCO and Euro-pean legal instruments. However, inpractice their independence oftenseems to be undermined by a doublesystem of constraints, both economicand editorial, towards distributors –public and private – and financingschemes.

In this particular context and given thefact the Council of Europe offers a

wider, pan-European approach of theissue which is not only limited to thereality of the Internal Market in theEuropean Union, we consider that thedebate would be greatly enhanced, inthe medium and long term, by anyfurther initiative fostering flexible andprofitable methods of cooperationand exchange of information andknow-how, such as a review or com-pendium of best practice cases in thematter. Moreover, we consider thatmany of the inherent difficulties atstake can be successfully avoidedthrough more flexible and less bureau-cratic models of co-operation, such as

regional co-production initiatives andboards, with a special aim towards thecinema industry.

Yet, whilst the problem of independ-ent audiovisual production seems tobe at the very core of the issue of di-versity and pluralism of content, at themoment, it would seem premature toenvisage drafting a recommendationor other similar legal instrument of theCouncil of Europe on the issue, al-though we are expected to believethat the debate should continue andthe evolution of the sector be con-stantly monitored at an expert grouplevel.

The role of independent productions in promoting cultural ...

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