Regulation of Market Power in a Converged and Connected Audiovisual Media Sector

Regulation of Market Power

in a Converged and Connected

Audiovisual Media Sector

Florence, 27-28 April 2012

Susanne NikoltchevHead of Department for Legal Information

European Audiovisual Observatory

Presentation of 3 points

1. The Observatory

2. Our regular updates on media pluralism

3. The project: Regulation of Market Power

Susanne Nikoltchev, 28 April 2012

European Audiovisual Observatory

• Founded in 1992• Enlarged partial agreement of CoE• 38 member states + EU• Increase transparency for audiovisual sector• Gather and circulate information on the

audiovisual industry in Europe • Info on law + markets & financing• Publications + databases + oral contributions


EVOLUTION OF ADVERTISING EXPENSES IN THE EUROPEAN UNION (2006-2008) – EUR millionSource : European Audiovisual Observatory on Warc data

0

5000

10000

15000

20000

25000

30000

35000

2006 2007 2008 2009 2010

TV

Newspapers

Internet

Magazines

Outdoor

Radio

Cinema

Department for Information on Markets and Financing


TV DAILY AUDIENCE MARKET SHARE OF PUBLIC CHANNELS IN A SAMPLE OF EUROPEAN MARKETS (2006-2010)Source : European Audiovisual Observatory on data provided by Eurodata TV Worldwide

0

10

20

30

40

50

60

70

80

2006 2007 2008 2009 2010

DK

GB

DE

IT

ES

FR

RO



NUMBER OF TV CHANNELS PROVIDED BY LEADING MEDIA GROUPS IN THE EUROPEAN UNION (2011) Source: European Audiovisual Observatory / MAVISE database

317

168 145 11981 58 55 52 51 46 36

0

50

100

150

200

250

300

350



IRIS Merlin database: http://merlin.obs.coe.int


Department for Legal InformationSources on media pluralism

http://merlin.obs.coe.int/

IRIS plus-series Includes topics relevant for media pluralism, such as

• Why Discuss Network Neutrality? (2011-5)Net Neutrality and Audiovisual Services

• Media Literacy (2011-3) Media Literacy: No Longer the Shrinking Violet of European Audiovisual Media Regulation?

• An Insight into Selected Film Funding Systems (2011-2)Governance of Film Aid in South-East Europe

• Switchover to the Digital Dividend (2010-6)The Digital Dividend: Opportunities and Obstacles

• Public Service Media: Money for Content (2010-4)Financing and supervision of public service broadcasting


Department for Legal InformationSources on media pluralism

IRIS plus-series Includes topics relevant for media pluralism, such as

• Why Discuss Network Neutrality? (2011-5)Net Neutrality and Audiovisual Services

• Media Literacy (2011-3) Media Literacy: No Longer the Shrinking Violet of European Audiovisual Media Regulation?

• An Insight into Selected Film Funding Systems (2011-2)Governance of Film Aid in South-East Europe

• Switchover to the Digital Dividend (2010-6)The Digital Dividend: Opportunities and Obstacles

• Public Service Media: Money for Content (2010-4)Financing and supervision of public service broadcasting

http://www.obs.coe.int/oea_publ/iris/iris_plus/2011-5.html









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The projecthttp://www.obs.coe.int/oea_publ/iris_special/index.html

Project: IRIS SpecialI. EU Law

II. National Legal Frameworks

Susanne Nikoltchev, 29 March 2012

Regulation of Market Power in a Converged and Connected

Audiovisual Media Sector

CH

DE

FR

ES

GB

HU

IT

LU

NL

NO

PL

10

The project: Regulation of Market Power

Background:IRIS Special 2001 - Television and Media Concentration Specific national anti-concentration rules Competition-law decisions (mainly EU)

11 years later: Audiovisual Media Services as leading term Term reflects changes in industry, consumer behaviour and

legal framework

Challenges: To understand how market power is/can be established To see what legal rules address market power and at what

stages along the value chain To analyse how undertakings construct the legal frame for their

business models To turn this into a manageable project


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The project: Regulation of Market Power

How to make this a manageable project?Focus on “negative” state interventionExclude content obligations aimed to

ensure a diverse media output Focus on key case lawSelect countries with either significant

markets or different legal schemes but linked to EU framework


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The project: Regulation of Market PowerPaths to Market Power

Market entry: sharing network capacity, incumbent audiovisual media services (licences – scope, PSM)

Copyright arrangement reducing access to content: exclusivity deals, buying up of rights (not only sports rights!), warehousing of rights, ”closing” archives, output deals

Similar effects through vertical organisation of rightsholders/services/distributors

Other classical media concentration forms: horizontal, diagonal concentration (similar services serving different markets)

Economic power: advertising markets, tariffs for services

Other gate keeping positions: access networks, technical equipment


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The project: Regulation of Market Power Legal Framework and Value Chain (1)

I. Av media services and enabling services Approach to PSM Regulation of market entry Media specific anti-concentration rules

(ownership rules) Horizontal/vertical/diagonal/other gate

keepers/transnational restrictions Completing effect of competition law Must offer/archive-issues Specific rules for enabling/facilitating

services


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The project: Regulation of Market Power Legal Framework and Value Chain (2)

I. Platform operators and converged services Possible issues: definition of markets,

applicability of specialised media concentration rules, telecom law aspects, access and compatibility

Impact of application of competition law

II. Distribution (network operators) Possible issues: specific rules, definition of

markets, tariffs, access, net neutrality and must carry rules

Impact of application of competition law


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The project: Regulation of Market PowerLegal Framework and Value Chain (3)

Main points for EU legal framework Regulation of Market Entry

Importance of fundamental freedoms (Art. 56 TFEU, Art. 10 ECHR)

EU competition law – media specific cases definition of relevant markets, various kinds of

mergers, antitrust issues Must offer/must carry (depending on value

chain stage) Specific rules for services enabling or

facilitating use or reception (espec. Telecom package)


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The project: Regulation of Market PowerHow businesses are constructed

Summary of findings?

Answers as to: Justification for media-specific regulation in a

converged environment (Personal and material) Scope of anti-

concentration rules Delineation of the various markets (competition

law) Impact of other legal areas such as copyright on

achieving dominant positions


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IRIS Special: Regulation of Market Power

Next steps:

Add on:

Publication:

texts mid/end June

translations/proofing

analysis

Market data for each country

November

Conference 20th Observatory Anniversary


Contact :

Susanne Nikoltchev

Head of Department for Legal Information

susanne.nikoltchev @ coe.int

For further information:

www.obs.coe.int

Regulation of Market Power in a Converged and Connected Audiovisual Media Sector

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