18/04/2024 - The new study digs deep into the national legislation of the 27 EU member states plus the United Kingdom

This week, the European Audiovisual Observatory (EAO) published a new report titled “Independent Production and Retention of Intellectual Property Rights”. The study, co-financed by the European Commission under the Creative Europe programme, explores the national approaches to defining independent producers and productions, while looking at the national rules governing the retention of intellectual property rights (IPR) concerning films, series and programmes when licensing them to broadcasters and on-demand audiovisual services.

The data used in the report were provided by a pan-European team of national experts and have been cross-checked with the respective national regulatory authorities.

The study opens with an executive summary outlining the scope of the research – namely, “to provide the European Commission with information on the retention of IPR by independent producers in the 27 member states of the EU and the UK” as well as “to offer a horizontal comparative review of the relevant national legal provisions, identifying trends and approaches”.

Following the methodology note, chapter three provides a comparative analysis of the different definitions of independent production and independent producers in Europe. Since there is no unified definition for such concepts in current EU legislation, national laws can define them in each country. The study indicates that 24 out of the 28 countries have a definition of either an independent producer or an independent production in their national legislation. While the criteria differ from country to country, the report outlines in detail the possible conditions and how they are applied in each country.

The first criterion relates to the financial independence of the producer in relation to the audiovisual media service (AVMS) provider, in terms of the capital participation or shares held by such a provider in the production company, its financial contribution to the co-financing of the audiovisual work and, lastly, its financial control over the production company. In other words, the producers’ control over their companies and the work being produced are key factors.

Next, the study zooms in on the “operational” criteria of independence, which refer to the ownership and business independence of the production company in relation to the AVMS provider.

Finally, the ownership of “secondary rights” is referred to as a criterion for the independence of the producer with regard to the AVMS provider under EU law. The report looks at how this criterion of the retention of IPR is used in national laws. In practice, only one-third of the countries studied include in their national legislation a reference to the ownership of "secondary rights" or IPR as a criterion for defining the independence of a producer in relation to an AVMS provider. 

This chapter is rounded off by a look at how the rules on the retention of IPR apply when public service media providers commission the content. In this case, the rules governing the retention of secondary rights by the producer are expressly referred to, and their prerequisites are clearly determined.

Chapter four includes the country summaries for the 27 EU member states plus the UK. For each country, the authors provide the national definition for independent producers or production, when available. Moreover, they look at the national rules for the assignment and retention of IPR in each country.

The full document is available here.