Broadcasting rules – Audiovisual media directive

Posted on Posted in Prawo własności intelektualnej

Porządkuję moje wypowiedzi sprzed lat, tak żeby wszystko było dostępne w jednym miejscu. To artykuł z 2010, który ukazał się w American Investor. (Old piece of my writing. This one is from 2010)


Broadcasting rules – Audiovisual media directive offers answers, raises questions

The issue is not new. The Audiovisual Media Services (AVMS) Directive came into force on December 19, 2007, and it should have been implemented in E.U. countries by December 19, 2009. In Poland, implementation work is still pending, but hopefully in June the final draft of the implementation act should be presented by the Ministry of Culture and National Heritage. In the meantime it seems worthwhile to have one more look at what changes, requirements and opportunities it might bring—in order to avoid any surprises.


What’s in the offing?

The definition of audiovisual media services is broad, and generally speaking it covers all broadcast (linear) and on-demand non-broadcast (non-linear) programs. Linear services include, for example, traditional TV broadcasting, mobile TV, webcasting and narrowcasting. It is more difficult to discuss non-linear on-demand services. One could say with much certainty that VoD, Catch-up TV, and archived TV programs constitute non-linear AVMS. There are considerable doubts as to other network services. It is not certain, for example, whether businesses publishing various film materials on social networking or user-generated content services will be covered by AVMS requirements. There are o such uncertainties, at least, with such activity as private websites, e-mail, print media with audiovisual inserts, or Internet versions of press releases, as long as audiovisual content is not dominant. But all commercial audiovisual services will need to meet the new requirements.


Above all, businesses operating in the audiovisual services market will have to be registered. Luckily, it seems that apart from TV broadcasting services, other forms of registration will be a piece of cake. In addition, each business will be required to make itself and the programs it broadcasts easily identifiable. It is also highly probable that a certain part of the broadcast programs will need to feature special elements for persons who are sight- or hearing-impaired.



The directive applies also to audiovisual commercial communications, defined as images, with or without sound, which are designed to promote, directly or indirectly, the goods, services or images of a natural or legal person pursuing an economic activity. To put it simply, audiovisual commercial communications primarily include commercials, product placement and sponsoring. Material changes in the field of commercials concern the time and place for broadcasting commercials. Polish lawmakers will also need to treat self-promotion of TV broadcasters and social advertisements as advertising. This may considerably limit the time for advertising in television.


A new approach toward advertising abandons the “separation” rule in favor of the “distinction” rule. This means it will be necessary to distinguish advertisements from other programs on the basis of visual, sound or spatial means. This raises at least one question: will split-screen advertising be allowed?


Product placement

Product placement will finally be directly regulated by law, and as a rule it will be prohibited— but with exceptions. Product placement will be allowed in cinematographic works, films and series, sports and entertainment programs, other than those addressed to minors. The legal concept of product placement, when allowed, will involve products being provided free of charge for the purpose of the program. Product placement will not be able to influence the time, content or editorial independence of the program, and the product must not be given undue prominence. Additionally, programs containing product placements will need to provide information on the product placements at the beginning of the program, at the end, and after commercial breaks. Such informational requirements may actually serve as a form of additional advertising, if trademarks are deployed in a sophisticated way.


Product placement will definitely be prohibited for tobacco products and prescription drugs. Furthermore, Polish lawmakers intend to limit product placements for alcoholic beverages, with the exception of beer. This raises a question whether favorable treatment for beer might infringe E.U. principles of free movement of goods and services.


Another problem relates to programs (e.g. films) or content bought from jurisdictions where product placement is allowed to a greater extent. It is said that broadcasting such programs will not be prohibited, however, the information on product placement might be in question. For example, if a movie acquired from another country includes product placement of cigarettes, should the information on product placement say something about the tobacco company?



The major new rules applying to sponsorship require sponsored programs to feature information on the sponsorship at the beginning, at the end and after commercial breaks. However, the information on sponsorship might also include information about the sponsor including the name of the sponsor, its products and services (and not, as now, only one product) as well as the sponsor’s logo. The possibility to present such information about sponsors might create an additional advertising platform. How about registering a trademark which is an advertising slogan? Maybe such sponsor information could serve as a short commercial? On the other hand, what requirements will apply to movie billboards?


Some problems

One interesting aspect of audiovisual commercial communications under the AVMS Directive is that all the requirements should apply not only to linear services but also to non-linear, on-demand services. Thus, VoD services will have to remember about commercial breaks (which are usually at the beginning of a streamed program), sponsorship and product placement information. And what if the some business has a profile on Facebook or YouTube containing films: will that be considered on-demand, non-linear services? Will all the requirements apply?

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