The draft concerns the provision of an on-demand commercial media service. The draft also covers European (audiovisual) productions.
Proposal for a law introducing an investment obligation for on-demand commercial media service providers
This proposal introduces an obligation for providers of on-demand commercial (audiovisual) media services to invest in the Dutch cultural audiovisual product. This obligation requires providers to invest 4.5 % of their relevant turnover per financial year in the Dutch cultural audiovisual product. This obligation (included in proposed Article 3.29e) provides a rule on services within the meaning of Directive (EU) 2015/1535, other than a technical regulation. A provision of mutual recognition is not at issue in view of the nature and design of the investment obligation.
The obligation does not apply to providers with a relevant turnover per financial year of less than EUR 30 million per separate on-demand commercial media service. Thus, if a provider offers several services generating more than EUR 30 million in relevant turnover in total, but not per service, there is no obligation to invest.
The relevant turnover is the turnover achieved in the Netherlands related to the provision of the relevant on-demand commercial media service, which includes turnover from advertising, subscriptions, user transactions, sponsorship and product placement.
The Dutch cultural audiovisual product is a European production in the form of a feature film, drama series, documentary film or documentary series, which meets at least two of the following four conditions:
1) the original scenario is predominantly, i.e. at least half, written in Dutch or Frisian;
2) the main characters predominantly express themselves in Dutch or Frisian to a large extent, i.e. at least half of the time;
3) the scenario is based on an original literary work in the Dutch or Frisian language;
4) the main theme is related to Dutch culture, history, society or politics.
An investment can be made in a number of ways:
1) an investment in a production or co-production;
2) the prior acquisition of an operating licence for production which has not yet been completed; or
3) the acquisition of an operating licence for a production no more than four years old at the time.
A portion of the investments to be determined at a later stage should benefit independent productions.
The investment must always be carried out within two financial years after the end of the financial year in which the relevant turnover was achieved. If a provider invests more during a financial year than is required by these provisions, the additional investment will be counted in the following financial year. A ‘surplus’ of investments can therefore be taken into account in the next financial year.
Providers may request an exemption from the investment obligation from the Media Commission. Exemption may be granted if application of the investment obligation, in view of the nature or subject matter of the media service concerned, or the use of innovative formats, would be practically impracticable or unjustified.
The Media Commission has also been appointed as a supervisory authority.
The investment obligation also applies to providers established in another Member State, if the media service(s) thereof target audiences in the Netherlands. Indicators for this are still being established. These will follow the criteria set out in Directive 2018/1808. Media service providers that target audiences in the Netherlands but also have a small audience (according to the guidelines developed at EU level) are not obliged to invest. For the rest, the investment obligation applies equally to these providers and to providers located in the Netherlands.
The same applies to the possibility for exemption.