At the end of June, the French government published its long-awaited decree implementing local production investment quotas for international streaming platforms and including them in the French content funding system.
But while some sectors of the screen content business find it a step forward in terms of securing funding, others — especially in the documentary sphere — aren’t so sure.
According to the decree, called SMAD — for Services de Medias Audiovisuels à la Demande — streaming platforms will have to contribute at least 20% of their revenues in France to European audiovisual and theatrical film productions (including 85% of French language fare), and 25% if they want to run recent movies in a window of 12 months or less after theatrical release (as opposed to the current 36 months). Additionally, the platforms will now have to sign conventions with French regulatory body the CSA (Conseil Supérieur de l’Audiovisuel) that will specify the share between audiovisual works (i.e. drama, animation and documentaries) and feature film spending, according to each platform’s niche, and with movies to make up a minimum of 20% of total investment.
The SMAD decree brings into French law the EU’s 2018 Audiovisual Media Services Directive, which required streamers to carry a minimum 30% of European content and allowed for each European country to implement local content investment quotas if they wished to. French media is known internationally for being strongly regulated.
Meanwhile, the international streaming platforms’ practice of funding entire budgets for projects and, in turn, taking all the rights is much different than the typical French content production model, so French producers have been calling for regulation to protect independents and IP in the streaming era, while broadcasters have been calling for less of a disparity between the lack of regulation enjoyed by the streamers and the stringent rules imposed upon “traditional” media. The SMAD decree is only the first step of a larger process, which also includes another upcoming decree, dubbed TNT (DTT), targeting terrestrial broadcasters. It also requires the review of film distribution windows so they can include the streaming platforms, in order to further facilitate their contribution to French film funding.
For independent TV producers, the SMAD decree is being touted as a major victory since it stipulates that at least two-thirds (67%) of the investment in audiovisual works must be dedicated to independent production. Furthermore, the decree introduces a strict definition of what constitutes an independent production: the streamer can claim no more than 72 months of rights or a maximum 36 months of exclusivity, no coproduction shares, no distribution mandates or secondary rights, and no shareholding interests in the production company.
However, during the most recent virtual edition of the Sunny Side of the Doc conference and festival held two weeks ago in La Rochelle, while welcoming the at-the-time pending decree, French documentary producers also raised a few reservations. Their concern is that unscripted content does not benefit as much from the decree as scripted, and that the TNT decree aimed at terrestrial broadcasters relaxes their obligations to indie producers too much, at a time when finances are tighter for the already under-funded genre of documentary.
“Streaming platforms’ investment in France has been difficult to evaluate up to this point, but has been massively oriented towards scripted fare,” said Stéphane Le Bars, head of Union Syndicale de la Production Audiovisuelle, or USPA, one of the two producers’ unions in France. “We need to be vigilant that it gets more balanced.”
To that point, the SMAD decree stipulates that conventions reached with the French broadcasting authority, the CSA, will have to include some “diversity” criteria regarding film budgets as well as for programming genres, leaving room for negotiation.
As for the TNT decree, the doc producers convening at Sunny Side said that according to its first draft, it will somewhat relax terrestrial broadcasters’ independent production obligations, from the current 75% of total investment, down to 67% in sync with the rule for streamers. It may also introduce a looser definition of what can be termed as an independent production, with, for instance, the possibility for broadcasters to hold distribution mandates. “We are concerned by the overhaul of our ecosystem,” alerted Cyrille Perez, producer at 13 Productions and member of the other producers’ union, the Syndicat des Producteurs Indépendants, or SPI.
With documentary traditionally under-funded, French documentarians maintain their position has become more precarious lately, not only because of the pandemic, but also because the domestic secondary rights market is shrinking somewhat, as broadcasters are taking more digital rights both to reflect audience demand and respond to the competition posed by the global platforms.
“The domestic circulation of documentaries is more and more threatened by digital and not all documentaries can sell internationally,” explained Patricia Boutinard-Rouelle, head of Nilaya Productions and member of the USPA.
As a result, producers are struggling more and more to recoup their investments, as broadcasters’ input hasn’t improved. According to figures from French funding body the CNC, French broadcasters funded on average last year 45% of documentary budgets (compared to 62% for drama projects), with the CNC another 19% and French producers 16%.
Thus, while the SMAD decree is effective as of July 1st, a few obstacles remain before it can be fully applied. One, highlighted by the doc producers at Sunny Side, is access to CNC grants for producers commissioned by the platforms, which is not yet sorted out. Observers and press reports have also stressed that if other decrees are deemed as unfair to the platforms, they could contest. Windowing is one of the sources of conflict, with Canal+, the biggest French movie funder, fighting to keep pay TV windows nine months ahead of the SVOD window.
In addition, terrestrial broadcasters are also upping their demands for more rights. During Sunny Side of the Doc, Arte editorial director Boris Razon announced that Arte is looking to increase its European digital presence, meaning that this will compel the channel to revisit what kind of rights it takes on projects. Arte is, after France Télévisions, the most prolific commissioner of documentary in France.
Even without the decrees, the French documentary ecosystem seems to be destined for change.