Islj 2009 3-4 - TMC Asser Instituut

live sports rights in many other countries as acquiring sports programming
is part of their strategy to gain market share, Eredivisie Live is
broadcast by all digital television operators in the Netherlands
although the channel’s subscription price may vary amongst these
operators. Digital viewers should thus not switch to another television
operator to enjoy live soccer as all digital television operators have
equal access to these rights although viewers still have to pay an extra
subscription fee. Instead of exclusion this approach requires cooperation
between all stakeholders involved in the soccer game and therefore
exemplifies the new media (sport) ecosystem.
As it becomes impossible to develop and manage all these ICT
services and thus control all value-adding activities including the distribution
stage, today’s media companies are striving for a new concept
of value creation, which no longer rests in positioning a series of
activities in the value chain. Value is now created through partnerships
and relationships with all stakeholders cooperating to create and
reinvent value. This myriad of suppliers, partners, alliances and customers,
also known as the value network, requires openess to new
players, new distribution platforms, new financing and revenue sharing
models. 19 Given the intense battle between broadcasters, platform
operators and the emerging mobile and online content providers for
acquiring sports rights and offering sports footage to end-users, the
dynamics of the media sport content economy can clearly benefit
from this network approach.
3.List of major events mechanism in the digital media landscape
In the struggle for broadcasting rights, free-to-air broadcasters have
lost the bidding war to premium and digital television operators.
However, this trend may lead to important sports events, which were
previously broadcast freely to the public, migrating to pay-television
platforms. This shift is likely to cause the so-called siphoning effect
that occurs “when an event or programme currently shown on free-to-air
television is purchased by an operator for the purpose of showing it on a
subscription channel instead. If such a transfer occurs, the programme or
event will become unavailable for showing on free television system or its
showing on free television will be delayed so a segment of the people […]
could be denied access altogether”. 20 Concerns have arisen about the
consequences of the exploitation of exclusive broadcasting rights by
these subscription-based platforms as households, unable or unwilling
to pay an additional fee on top of their basic cable or satellite charge
could be deprived access to major sports events, which may endanger
their right to information and cultural citizenship. 21
Given that some sports events are seen as so vital and of heritage
importance, i.e. creating a sense of national identity, public authorities
consider it justified to protect these events from “disappearing
behind a decoder”. In order to prevent this migration to premium platforms
and to safeguard the public’s right to information with regard
to those events, the list of major events mechanism was introduced in
Article 3a of the Television Without Frontiers Directive (hereafter
TWF Directive). 22 This mechanism allows the Member States to draw
up a list of events, being of major importance for society that can only
be broadcast on “free-to-air television” in order to ensure that a “substantial
proportion” of the public would not be deprived of access to
such events.
Ten years later, when the TWF Directive was fundamentally
revised and renamed the Audiovisual Media Service Directive (hereafter
AVMS Directive), the list of major events provision as such was
not subject to modifications. 23 As the majority of stakeholders argued
that Article 3a of the TWF Directrive was working satisfactorily, there
was no urgent, pressing need for a revision of this provision. 24 Hence,
the article was only renumbered Article 3j AVMS Directive. Still,
while transposing this Directive in national law in the beginning of
2009, the Flemish legislator decided to revise that provision in order
to create more legal certainty in the digitised world. 25 The reviewed
Article 153 §1 states that “the Flemish Government shall draw up a list
of events considered to be of major importance for the public and which,
for this reason, may not be broadcast on an exclusive basis so that a large
part of the public of the Flemish Community cannot watch them live or
deferred on television via the basic package of the different aggregators”.
Although the Flemish legislator assumed that the replacement of the
term ‘free-to-air television’ by ‘basic package of the different aggregators’
would create more legal certainty amongst broadcasters and digital
television operators, the question rises whether this assumption is correct.
In the rest of this article, it will be examined whether or not this
change is justified as a step forward in guaranteeing the public’s access
to major sports events.
3.1. Basic package
According to the new provision, a large part of the public should thus
be able to watch those major events on television via the basic package
of the aggregators, which are exploiting the digital television platforms.
But what exactly does the Flemish legislator mean with ‘basic
package’ and how should this term be interpreted?
The Flemish Media Decree itself does not contain a clear definition
of the term ‘basic package’. Although the Explanatory Memorandum
defines basic package as “the general or first package offered by the aggregator”
26 , this definition does not, however, offer real clearness and
raises a lot of questions. The main question that rises is whether or
not basic package should be understood as a free basic package, which
can be equalled free-to-air television in the former regulation, and
whether or not a digital supply can be qualified as basic package.
Currently, digital television signals are almost always displayed on
analogue television sets that are connected to a digital receiver or settop-box.
That implies that digital signals are converted into analogue
signals before being displayed. 27 Obviously, to get access to the digital
content supply a decoder is needed, resulting in an extra expenditure
for the consumer. Now, does this imply that digital television and
its digital supply should not be qualified as free-to-air television?
3.1.1. Free-to-air television
To answer this question one should go back to the rationale behind
the events list mechanism, i.e. the public should be able to watch
19 Peppard, J. and Rylander, A. (2006).
From value chain to value network:
insights for mobile operators, European
Management Journal 24(2-3): 128-141.
20 Home Box Office, Inc v. FCC 567 F.2d 9,
(D.C. Cir 1977)
21 Jeanrenaud, C. and Kesenne, S. (2006).
Sport and the media: an overview, in C.
Jeanrenaud and S. Kesenne (Eds.), The
economics of sports and the media (pp. 1-
25). Cheltenham: Edward Elgar.
22 Council Directive of 3 October 1989 on
the coordination of certain provisions
laid down by law, regulation or administrative
action in Member States concerning
the pursuit of television broadcasting
activities (89/552/EEC), OJ L 298/23, 17
October 1989.
23 Directive 2007/65/EC Of the European
Parliament and of the Council of 11
December 2007 amending Council
Directive 89/552/EEC on the coordination
of certain provisions laid down by
law, regulation or administrative action
in Member States concerning the pursuit
of television broadcasting activities, OJ L
332/27, 18 December 2007.
24 Commission of the European
Communities, Fourth Report from the
Commission to the Council, the European
Parliament, the European Economic and
Social Committee and the Committee of
the Regions on the application of Directive
89/552/EEC “Television without Frontiers”,
6 January 2003, COM(2002) 778 final,
10; Commission of the European
Communities, Communication from the
Commission to the European Parliament,
the Council, the Economic and Social
Committee and the Committee of the
Regions, The future of European regulatory
audiovisual policy, 15 December 2003,
COM(2003) 784 final, 16; Department
for Culture, Media and Sport, Final
report on Working Group 2: Rights to
information and short extracts, Liverpool
Audiovisual Conference - Between
Culture and Commerce, ec.europa.eu/
avpolicy/docs/reg/modernisation/
liverpool_2005/uk-conference-report-en.
25 The implementation of the AVMS
Directive was the ideal moment for a
profound revision of the Flemish Media
Decree. For more information about this
revision, see: Stevens, D., Lefever, K.,
Valcke, P. and Braeckevelt, D. (2009).
Structuur en Krachtlijnen van het
Nieuwe Vlaamse Mediadecreet. A&M. (in
press); Lefever, K. and Stevens, D.
(2009). Vlaamse mediadecreten in nieuw
en toekomstgericht kleedje, Juristenkrant
187: 4-5.
26 Memorie van Toelichting [Explanatory
Memorandum], Ontwerp van Decreet
betreffende de radio-omroep en televisie,
Parl. Doc. VI. Parl. 2008-09, Stuk 2014/1,
p. 53.
27 Commission of the European
Communities (2003). Communication
from the Commission to the European
Parliament, the Council, the Economic
and Social Committee and the Committee
of the Regions on the transition from analogue
to digital broadcasting (from digital
‘switchover’ to analogue ‘switch-off’), 17
September 2003, COM(2003) 541 final.
A RT I C L E S
2009/3-4 31