The latest version of the European Council text on the proposed revisions to the Television Without Frontiers Directive is the most encouraging for publishers yet, according to director of legal and public affairs for AOP and PPA, Kerry Nielson.
“I think we are probably in the strongest position so far as ensuring all our Members (including the folks who are exclusively online) are kept out of the scope,” says Nielson.
Under the terms of the new Council text there are more specific rules about what is included in the scope. To be considered a “non-linear service provider”, and thus within the scope, content providers must satisfy all of the following criteria:
- Your service must have the provision of programmes as its principal purpose
- Programmes are defined as an individual item within a schedule or catalogue whose form and content is comparable to the form and content of TV broadcasts. Examples of programmes are given such as films and documentaries. This would seem to exclude short clips which would be the most likely form of online publisher content
- You must have prior control of the programmes you put out and must also be in control of their organisation within a schedule or a catalogue
- The content must be intended for reception by a significant number of the public
- User-generated content seems to be carved out if its main purpose is not economic in its nature
However, Nielson says the text does raise a few questions, which she has already with Ofcom, the Department for Trade and Industry, and the Department for Culture, Media and Sport, specifically on whether the original Commission exemption for electronic versions of print media still exists, whether short clips would be considered programmes, and exactly what ‘intended for mass media’ is understood to mean.
Nielson has also asked for clarification of whether user-generated content which is for economic gain is included in the scope as this is unclear.
Nielson urges publishers and their representatives to support the principles in the revised text, which seems to remove publishers from the scope of the Directive: “Parliament is still to vote and it is far from clear that they will support the Council line. Also the Council has yet to agree this text, so if we like what it says, as many of us as possible need to get the message across to our national Ministers to support the line.”
“Our main aim should be to make sure that all our content is right outside the scope.”
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