Industry Report: European Policy
Progress in the Must-offer Debate? - Exclusivity in Media and Communication
14/04/2008 - The Observatory publishes a new IRIS plus report "Exclusive" offers will always appear most attractive to potential customers. This is certainly true of audiovisual content and broadcasters' endeavours to programme content which they alone can offer in order to attract maximum audiences. Closely linked to the key concept of exclusivity is the current European legal debate on must-carry rules, whereby television networks may be obliged to carry channels offering public interest content. Current discussions concern the 'mirror-image' of must-carry: the so-called must-offer rules which rather place the obligation on the broadcasters themselves to make their channels available to network providers.
The European Audiovisual Observatory has just published its latest legal analysis of the must carry/must-offer debate entitled: Progress in the Must-offer Debate Exclusivity in Media and Communication.
Authors Alexander Scheuer and Sebastian Schweda of the Saarbrücken-based Institute of European Media Law open their report with a useful explanation of the meaning of media exclusivity. Clearly, the passage from terrestrial transmission as the sole means of broadcast to satellite, cable, IPTV and TNT has transformed the parameters of exclusivity, as more and more platforms seeking content are available for its broadcast.
The report then deals with the must-carry concept as a connecting factor, tracing the development of this legislation back to the allocation of available cable capacity and the scarcity of broadcasting resources. Scheuer and Schweda zoom in on the German example in order to demonstrate how must-carry rules were initially used to ensure that public service type content was given broadcasting space and that "the content transmitted was sufficient to provide the diversity of programming that most national legislators hoped to achieve...". However, improved compression technology meant that the insufficient broadcasting capacity argument gradually lost its pertinence. The 1990s saw the liberalisation of the networks, resulting in more networks available for broadcasting. The authors note that must-carry legislation is therefore currently being used to ensure that network providers have access to that scare and valuable resource: attractive content.
Moving on to look at must-offer as a reaction to current developments, the report highlights the Council of Europe's 2007 recommendation that countries explore 'the relevance of a must-offer obligation in parallel to the must-carry rules' while taking into consideration copyright considerations. The authors also point out that, as with must-carry obligations, questions of remuneration for the re-transmission of content under must-offer rules must be cleared up. They then focus on three countries - France, the Czech Republic and the United Kingdom - which have adopted must-offer rules that oblige certain broadcasters to offer their channels to other transmission platforms under non-discriminatory conditions.
Turning to the competition law aspects of this debate, the report notes that both competition law specific to the media (the Universal Service Directive) and general EC Competition law provide for the use of must-offer obligations. At national level also, competition law has caused the authorities to occasionaly impose must-offer obligations. The authors look specifically at national examples such as Spanish pay-tv platform Sogecable being obliged to offer sub-licences to free-to air and pay-tv channels for the Spanish football league.
It is clear that not only competition law but also copyright law must have bearing on the application of must-offer rules. A content producer will, by definition, be able to decide whether or not to licence this content for use to a third party according to the principle of copyright law. However, the report makes it clear that European legislators and the Court of Justice of the European Communities have to do a fine balancing act between copyright considerations and competition law which may in certain circumstances interpret the withholding of broadcasting rights as an abuse of market power.
The report concludes that "a definitive overall concept should not be limited to the relations between network operators and broadcasters, but should cover all levels of the broadcasting process. As well as the two aforementioned groups, this includes platform operators, who play an important mediatory role in increasingly open networks."
A thorough and practical analysis of the current must-carry/must-offer debate illustrated by numerous recent examples of case-law.
See the report: