The CSA delivered a favorable opinion on the Smad decree, with reservations
On December 18, 2020, in accordance with the procedure provided under Article 9 of the Léotard Law, the Ministry of Culture submitted the répondSmad decree to the Conseil supérieur de l’audiovisuel (hereinafter “the CSA”) for its opinion.
On March 17, 2021, the CSA responded favorably[1] to the proposed Smad decree, while commenting on the “significant difficulties likely to arise from its practical implementation”.
The opinion mentions, for example, the complexity of the mechanism for dividing the obligations of each publisher between their audiovisual and cinematographic components.
It adds that the criterion of audience – which conditions the subjection of video-on-demand service publishers to the obligations of financing as well as exhibition of works – would be difficult to apply, given the absence of reliable and consensual audience measurement for this type of service.
It concludes by mentioning the difficulties linked to the determination of the reference turnover of the publishers – on which the calculation of their obligations to contribute to the audiovisual and cinematographic production is based. Indeed, in the case where the video-on-demand service is marketed within a larger set of services, the CSA will have to determine this base by taking into account the economic value of the service – a complex task knowing that the “AVMS” directive excludes the possibility of basing the calculation of obligations on a guaranteed minimum per subscriber.
For the time being, one is waiting for the European Commission’s response to find out to what extent the proposed Smad decree could be modified.
It should be noted that on the sidelines of the publication of the CSA’s opinion, Netflix reiterated its criticism of the proposed Smad decree.
UGGC and its team of lawyers specialized in audiovisual law are at your disposal for any questions you may have on this subject.
By the IP/IT team of UGGC Law Firm.
Source : CSA
[1] Notice of March 17, 2021 concerning the proposed decree on on-demand audiovisual media services