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Décret SMAD : the CSA anticipates that the mecanism will be ready by 2021

The Decree n° 2010-1379 of November 12th, 2010, regarding on-demand audiovisual media services, so-called « SMAD Decree », which concerns each and every video-on-demand plateforms such as Netflix, Apple TV, Prime Video or Disney+, will be soon modified by application of the EU Directive n° 2018/1808 of November 14th, 2018, so-called “Audiovisual Media Services Directive” or AVMSD, transposed in France by the Loi n° 2020-1508 of December 3rd, 2020 so-called « Dadue Law ».

The deadline for transposition had been set by the EU for 19 September 2020, and France is one of a number of Member States that failed to meet this obligation on time.

Article 36 of the aforementioned Dadue Law empowers the government to take numerous transposition and adaptation measures by way of ordinance (a legal regulation adopted by the French executive power). The new version of the SMAD Decree, which is still being drafted, will thus include numerous provisions that will profoundly modify the balance of power between video-on-demand platforms and the rest of the audio-visual and film sectors’ stakeholders.

This decree aims, in particular, to integrate video streaming platforms into the French and European creative funding system by requiring that they devote a percentage of their turnover generated in France to French and European production: this percentage, fluctuating between 20 and 25%, will finance the production of both audio-visual (up to 80%) and cinematographic (up to 20%) works, and in particular independent production as well as the production of works of original French expression. This obligation had been long ago imposed on French television channels. 

The terms and conditions for the contribution of these major platforms to the development of the production of French and European works, in particular with regard to the nature of the works and the territorial scope of the rights taken into account, will be decided by inter-professional agreements, under Article 36, I, 2°, b of the Dadue law. Inter-professional agreements will also set the way by which this mode of exploitation is taken into account by the French media chronology (“chronologie des médias”), under Article 36, I, 2°, g of saif law, the Government having set a deadline of six (6) months for professionals to agree on the final text.

The Conseil supérieur de l’audiovisuel (CSA) which will be responsible, once the SMAD Decree has been notified to the European Commission and promulgated, for concluding agreements to this effect with publishers of works.

At a hearing in the French Senate, by the Committee on Culture, Education and Communication, on Tuesday, December 15th, Mr. Roch-Olivier Maistre, President of the CSA, considered that the whole system will be operational “before the end of the first half of 2021”, in line with the timetable set by the French Government for the revision of the media chronology, as previously recalled.

UGGC Law Firm and its team of Lawyers specialised in media law will be happy to assist you regarding any question you may have or any legal issue you may face in that regard.

By Eva Baliner-Poggi and the IP-IT Team.

Source : Sénat