Catherine Martin (Dublin Rathdown, Green Party) | Oireachtas source

I thank the Senators for bringing forward amendments Nos. 208 to 227, inclusive, which relate to the European works levy and scheme provisions contained in section 53. I acknowledge that this is an important issue for the Irish audiovisual sector and it is one on which my officials have engaged extensively with the sector.

By way of background, Article 13(2) of the audiovisual media services directive gives member states the option to levy media service providers under their jurisdiction or which are not under their jurisdiction but are targeting audiences in their territories. The proceeds of such a levy must be used to fund the production of European works. Section 53 exercises this option by providing for the imposition of a content production levy on media service providers to fund a content production scheme to support the production of European works, which of course includes Irish works. The section further provides that funds raised by the levy can be used to support the production of new audiovisual programmes across a number of areas, including Irish culture and language, climate change, and equality, diversity and inclusion.

Both the levy and the associated scheme will be administered by coimisiún na meán. The section also provides that a minimum of 25% of funds raised by the content production levy shall be for the production of programmes in the Irish language. As Senators will be aware, there are a range of public funding measures in place to support the production of audiovisual works in the State, including through the section 481 film tax credit, Screen Ireland, the sound and vision scheme operated by the Broadcasting Authority of Ireland and through our public service broadcasters, TG4 and RTÉ, which are funded through the Exchequer and television licence fee, respectively. In 2020, these supports collectively amounted to over €198 million. The content production levy will provide the means to provide further support to the audiovisual sector, which has been an Irish success story.

Amendments Nos. 208 and 209 provide that an order imposing a levy on the media service providers shall be not less than 3% but not more than 5% of their revenues from subscribers and-or advertising revenues. It is my view that it is not appropriate to set out a percentage for the levy in primary legislation, given the need to carry out further research into the risks and benefits of such a measure. Setting a specified rate in legislation is inflexible, as it would prevent an coimisiún from varying the rate following any research it may carry out or subject to changing circumstances.

It is important to note that any levy system will have to abide by the principles of proportionality and non-discrimination under EU law. Accordingly, any levy will be imposed equally on all audiovisual media services targeting the Irish market, both those based outside Ireland and Irish media service providers, such as RTÉ and Virgin Media Television, will also be subject to this levy. In addition, Irish services and services based elsewhere in the European Union would be eligible to apply to the content production fund established as a result of the levy.Furthermore, it should be noted that any levy will only apply to income earned within the State. For example, if a provider such as Netflix earns 2% of its overall EU revenues in the State, the levy can only apply to that 2% of its overall revenues. These factors could significantly constrain the overall positive impact on the potential level of additional funding for Irish content.

Amendments Nos. 208 and 209 also provide for the inclusion of timelines requiring the content production levy to be commenced by a specified period. I intend to commence the provisions of the Bill giving effect to content production levy after coimisiún na meán has carried out independent research into the viability of such a levy in an Irish context. It is important that a thorough examination of these issues is undertaken in order to avoid any unintended consequences arising from the introduction of a levy. It is intended that an examination of the content production levy will be among an coimisiún’s priorities on establishment. I expect that an coimisiún will carry out a programme of stakeholder engagement on the matter and will subsequently report to me with its recommendations. For the reasons I have set out, I do not intend to accept amendments Nos. 208 and 209.

Amendment No. 210 provides that the content production levy shall be calculated on the amount of the subscriptions collected from audiences in the State, and on the amount paid to media service providers by advertisers for advertisements targeting audiences in the State. The amendment also proposes that the levy order should have effect for a minimum period of five years. Similar to amendments Nos. 209 and 210, I do not intend to accept this amendment as I believe specific details regarding the calculation of the levy should only be decided following a thorough examination of the content levy. Setting out such detail in primary legislation would constrain the options available to an coimisiún in making a levy order.

Amendment No. 212 provides that a content production scheme or schemes shall be made as soon as possible after 1 January 2023. Amendment No. 213 serves a similar purpose by obliging an coimisiún to implement a content production scheme as soon as possible after establishment. Given I do not intend to commence the content production levy until the necessary research has been undertaken to inform the levy design I cannot accept amendments Nos. 212 and 213. Amendment No. 214 is a consequential amendment to the previous amendment and I therefore do not intend to accept it.

I understand the intention of amendment No. 211 arises from a concern that sections 21 and 22 of the Broadcasting Act 2009, as amended by the Bill, which relate to the industry levy imposed for the purposes of funding the operational costs of an coimisiún, may adversely impact the operation of the content production levy and cause confusion as to which levy is being referred to. Section 159E(8) provides that the terms "levy" and "levy order" should be construed in relation to sections 159E and 159F only. Section 21(12) provides that the terms "levy order" and "levy period" used in sections 21 and 22 should be construed in relation to those sections only. I am advised that this ensures a clear delineation between the levy set out in sections 21 and 22 and that set out in section 159E. Accordingly, I am not accepting amendment No. 211.

Amendment No. 215 sets out additional detail in terms of the nature of programmes to be funded under a scheme, and specifies that drama, films, animation and factual programmes can be funded under a scheme. In addition, it sets out that a scheme should specifically fund works by Irish creative talent. The amendment also sets out that a scheme can provide development funding to support the production of audiovisual works. First, the additional detail included in the paragraph (c) of the amendment regarding the types of programming to be funded appears to achieve the same policy intent as the current wording of the section. The wording of section 159F(2) of the Broadcasting Act 2009, as inserted by section 53 of the Bill, provides that a scheme can fund the production of audiovisual programmes. As this wording already captures all types of audiovisual content, including drama, films, animation and factual programmes, I am therefore of the view that it is unnecessary to include any specific detail in this element of the provision.

Paragraph (b) of this amendment proposes that a content production scheme would specifically support works which relate specifically to the works of Irish creative talent. On the fact of it, the intrinsic quality of works of Irish creative talent would be appear to be that such works are produced by Irish citizens. This would imply that persons of Irish nationality would be given preference in any funding provided through a content production scheme. While I am of course strongly in favour of doing all we can to support Irish creatives, this element would run contrary to European Union law on non-discrimination as it would appear to place Irish nationals at an advantage over nationals or residents of other member states.

Paragraph (d) of this amendment adds a clarification that a content production scheme may make provision for development funding for programmes funded under this section. While I am of the view that the existing provision in the Bill as currently drafted already provides for this, I acknowledge that there is scope to add further clarity regarding development funding. Accordingly, I have asked my officials to consider the matter further with a view to bringing forward an amendment. At this point, I would signal that my intention is to address any amendments to the content production levy and scheme on Dáil Committee Stage rather than in this House, to allow for meaningful engagement with stakeholders on this issue. Accordingly, while I cannot accept amendment No. 215, I hope to address some of the concerns raised by the amendment.

Amendments Nos. 216 to 221, inclusive, seek to amend the language applying to the kind of audiovisual programmes which may be funded by a content production scheme with a view to further specifying the scope of content which may be supported. Amendment No. 216 adds the term "diverse" before the reference to "experiences of the people of the island of Ireland" in subsection (a) of paragraph (2) of section 159F. I understand the intention of the amendment. However, I believe that the term "experiences of the people of the island of Ireland" necessarily carries with it the recognition that such experiences shall be diverse, given the existing diversity among our people. I do not therefore intend to accept the amendment.

Amendment No. 217 amends the term "people of Irish ancestry living abroad" to "people of Irish origin or ancestry living abroad" in subsection (a) of paragraph (2) of section 159F. I understand the intention of the amendment but believe that the term "Irish ancestry" already incorporates people of Irish origin living abroad. The term "ancestry" is not intended refer to ethnic origin in a way that implies racial connotations. Instead, the term is intended to refer to origin, at some point, on our island in all its diversity, both past and present. I do not therefore intend to accept the amendment.

Amendment No. 218 adds the term "biodiversity" to "environmental sustainability and climate change" in subsection (a) of paragraph (2) of section 159F. I recognise the intention of the amendment. I am open to amendment on this and intend to return to the matter on Report Stage.

Amendment No. 219 deletes the term "including" in the phrase "human rights, including equality, diversity and inclusion" in subsection (a) of paragraph (2) of section 159F. I understand the question here is whether the phrasing implies that equality, diversity and inclusion should be considered under the rubric of the overarching idea of human rights or whether they should be considered separate concepts. I think this may be a philosophical question which will not have a substantive impact on the kind of audiovisual programmes which may be supported by a content production scheme. For that reason, I intend to reject the amendment.

Amendment No. 220 inserts a provision specifying that new audiovisual programmes may, through a content production scheme, support literacy in the Irish language, or support literacy in Irish Sign Language. In terms of literacy in the Irish language I believe that this may be covered by the reference to the Irish language in paragraph (a) of subsection (2) of section 159F. As regards literacy in Irish Sign Language, I will further consider whether the references to the types of audiovisual programmes referenced in subsection (2) would encompass programmes relating to literacy in ISL and return to the House on Report Stage.

Amendment No. 221 would specify that new audiovisual programmes in relation to digital empowerment and data protection awareness may, through a content production scheme, be funded. I believe that the references to science and education in paragraph (a) of subsection (2) of section 159F would already allow such programmes to be funded. Therefore, I do not accept the amendment.

Amendment No. 222 would specify that support under a content production scheme may be given in relation to capacity building. I believe the intention of the amendment is already captured by paragraph (d) of subsection (2) of section 159F which provides that support under the scheme may be given in respect of research, assessments of need, feasibility studies or pilot projects. The insertion of the term "capacity building" would be too expansive. The purpose of a content production scheme is to fund new audiovisual programmes. The term "capacity building" implies that a content production scheme could be used, for example, in skills development. I believe that skills development in the sector is more appropriately progressed by Screen Ireland through Screen Skills Ireland, which is Ireland’s screen industry training resource. As such, I am not accepting the amendment. However, as I indicated in my response to amendment No. 215, I can see the merit in inserting a reference to development funding in paragraph (d) of subsection (2) of section 159F. This reference is not as capacious as "capacity building" but may capture the intent of amendment No. 222.

Amendment No. 223 provides that a content production scheme shall dedicate not less than 80% of the funding available under each scheme to audiovisual works that are developed or produced by independent production companies, as described in, and which qualify as an independent programme under section 116(12) of the Broadcasting Act 2009. The amendment further seeks to provide for a fair and equitable balance in relation to the allocation of rights ownership in those works funded by a scheme under this section.The amendment also provides that a funding scheme under the section could be managed by an coimisiún in co-partnership with another agency or that its management may be delegated by an coimisiún to another agency on such terms and conditions as an coimisiún shall prescribe.

In regard to the proposal to dedicate at least 80% of funding from a scheme to independent productions, I can see the merit in specifying that the Bill contains an explicit acknowledgement that the independent productions can benefit from funding through a scheme made under the section and I have, therefore, asked my officials to examine this matter further with a view to bringing forward a Government amendment in the context of Dáil Committee Stage. In particular I will ask them to examine an appropriate definitions of "independent programmes" and "independent production company", and the appropriate percentage.

The issue of rights ownership is a complex issue that cuts across the remit of the Minister for Enterprise, Trade and Employment. Given the need for further extensive policy analysis and consultation in the matter to ascertain the implications of providing for this in legislation and the fact that this issue is not provided for in the AVMSD, I will ask my officials to further examine the issue.

Regarding the proposal that a funding scheme under the section could be in co-partnership with another State agency or that the management of a scheme could be delegated entirely to another State agency, I do not see the value in this portion of the proposed amendment. I am confident that an coimisiún will effectively manage the funding scheme, should it be introduced, given it will operate as both a media development agency and a regulatory body. My Department is currently working with the Public Appointments Service to launch an executive search for the commissioner and executive chairperson posts. This will include a media development commissioner who will take responsibility for the funding and development of the wider media sector. Given an coimisiún will be responsible for the content production levy, it is appropriate that it is also the body responsible for the implementation of content production schemes and I expect that the media development commissioner will work closely with Screen Ireland with a view to maximising the potential of content production schemes. Given the complexity of the proposed amendment, I intend to ask my officials to carry out further consultation and analysis with a view to returning to some of these matters on Committee Stage in the Dáil.

Amendment No. 224 is a consequential amendment following on from amendment No. 223 and, therefore, I do not accept it.

Amendment No. 225 provides that an coimisiún, in preparing a content production scheme, shall have regard for the need to ensure that people with disabilities can participate in new audiovisual programmes funded by schemes made under this section. I recognise the intention of the amendment, and I would be concerned that specifying that any one group should be prioritised for participation would imply that other groups, such as an ethnic minority, would not be prioritised. I wish to give this matter further consideration on Report Stage.

Amendment No. 226 provides that an coimisiún, in preparing a content production scheme, shall have regard for the need to support cultural and social participation, access to programming for the use of the Irish language and Irish Sign Language. Similar to amendment No. 220, I believe that some of the proposed amendments may be encompassed under section 159F(2)(a). However, as with amendment No. 220, I will give further consideration to the amendment in the context of Report Stage.

Amendment No. 227 provides that an coimisiún, in preparing schemes under this section, shall have regard for the need to support the development of community broadcasters. The Bill as initiated sets out that an coimisiún shall encourage the development of community broadcasters and, therefore, I do not see a substantive distinction between the terms "support" and "encourage". Accordingly I proposed to reject the amendment.