Download "The definition of independent production in direct and indirect public support measures" here

The definition of independent production in direct and indirect public support measures - this new study by the European Audiovisual Observatory,  part of the Council of Europe in Strasbourg, looks at how independent producers of films and audiovisual works are defined for the purposes of receiving public funding. This definition of being “independent” is key as it can actually open (or close) the access to public funding. This report also updates last year’s findings on the definition of independent production used in the context of the obligations to promote European works, under Article 17 of the Audiovisual Media Services Directive (AVMSD) and its transposition into national law.

The authors open their analysis by taking the AVMSD as their starting point for a definition. Recital 71 of the codified 2010 AVMSD provides guidance for member states in defining independence, using three criteria: 

• Who owns the production company? 
• What is the amount of programmes supplied to the same AVMS provider? and 
• Who holds the ownership of the secondary rights? 

Following the transposition of Article 17 AVMSD, some national legislations were inspired by the Recital criteria and used additional ones. The study categorises all these criteria into the following 

• three financial criteria (ownership, content supply, and financing ability), 
• operational independence, and 
• retention of intellectual property rights.

The report then moves on to examine the independence criteria set by national and regional support schemes such as film funds. It analyses funding systems (including tax incentives).

By and large, public support schemes and tax incentives define independence based on the same criteria as those contained in national audiovisual law originating from  Article 17 AVMSD  but with a significant degree of variation between the countries. The report provides a very useful overview table of which countries apply which criteria. Generally, ownership is the predominant criterion for defining independence (used by 15 countries out of the 30 European countries covered). It is either used exclusively or in combination with other criteria.  And 11 out of the countries studied use a single criterion approach.

The report concludes by comparing the two frameworks and outlining the differences between them. Overall, out of the 30 countries studied (EU27, Norway, Switzerland and the UK), 16 countries have established distinct definitions for the promotion of European works under Article 17 AVMSD, and for the purpose of public support.  The report is rounded off by country-by-country overview tables of the 30 European countries featured in the analysis. Each overview looks at the definition of an independent producer with reference to the AVMSD, as stipulated in national media law and finally in the rules of national and regional film funds.

A must-read handbook to understand how an independent producer is defined according to the rules applicable in 30 different European countries!