10.54103/2036-461X/21515
In recent years, cinema culture in Europe has undergone a substantial reorganization of production models and a profound change of public intervention in favor of the film industry. This article aims to reconstruct the different combinations between protectionist and liberalist policies through a comparative analysis of the contemporary European national cinema aids, identifying differences and shared trends and verifying the existence of a “continental” cinema support model. Therefore the article will analyze public support policies on cinema production, distribution, and exhibition in the EU and in several of its member states (including France, Germany, England, Spain, and Italy) from 2018 to 2022. Focusing on theatrical release windows, this essay will attempt to answer the following main questions: is there a “European” mark in policies in favor of cinema? Can we speak of a “European” model (even outside the European Union) of support for the cinema? What are the elements and actions that define it? What are the sectors of the industry in which it is most fully expressed (production, distribution, exhibition)? And what are the themes and areas in which, on the contrary, national differences (sometimes driven by resurgent nationalisms) are most marked?
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Cinéma & Cie. Film and Media Studies Journal
Cultural Exception
Theatrical Release Windows: A Playground for “Cultural Exception” Policies?
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Università Cattolica del Sacro Cuore
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Weiss, Charles A. 2016. “Available to All, Produced by Few: The Economic and Cultural Impact of Europe’s Digital Single Market Strategy Within the Audiovisual Industry.” Columbia Business Law Review 3: 877–923.
Theatrical Release Windows: A Playground for “Cultural Exception” Policies?
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                                                                                       Theatrical Release Windows:
                                                                                       A Playground for
                                                                                       “Cultural Exception” Policies?
                                                                                       Mariagrazia Fanchi,
                                                                                       Università Cattolica del Sacro Cuore
                                                                                       Massimo Locatelli,
                                                                                       Università Cattolica del Sacro Cuore

                                                                                       In recent years, cinema culture in Europe has undergone a substantial reorganization                     Keywords
                                                                                       of production models and a profound change of public intervention in favor of the film
                                                                                       industry. This article aims to reconstruct the different combinations between protectio-
                                                                                                                                                                                    Public Cinema Funding
                                                                                       nist and liberalist policies through a comparative analysis of the contemporary Euro-            Cultural Exception
                                                                                       pean national cinema aids, identifying differences and shared trends and verifying the            Release Windows
                                                                                       existence of a “continental” cinema support model. Therefore the article will analyze               Pandemic Crisis
                                                                                       public support policies on cinema production, distribution, and exhibition in the EU and                Nationalism
                                                                                       in several of its member states (including France, Germany, England, Spain, and Italy)
                                                                                                                                                                                                       DOI
                                                                                       from 2018 to 2022. Focusing on theatrical release windows, this essay will attempt to
                                                                                                                                                                                            https://doi.
This work is licensed under a Creative Commons Attribution 4.0 International License




                                                                                       answer the following main questions: is there a “European” mark in policies in favor
                                                                                       of cinema? Can we speak of a “European” model (even outside the European Union)              org/10.54103/2036-
                                                                                       of support for the cinema? What are the elements and actions that define it? What are                461X/21515
                                                                                       the sectors of the industry in which it is most fully expressed (production, distribution,
                                                                                       exhibition)? And what are the themes and areas in which, on the contrary, national diffe-
                                                                                       rences (sometimes driven by resurgent nationalisms) are most marked?




                                                                                       INTRODUCTION
                                                                                         Disregarding optimistic forecasts about the digital switch and its ability to
                                                                                       usher in a new season for film and media, characterised by the collapse of
                                                                                       borders and logics of dialogue and free exchange (Iordanova and Cunnigham
                                                                                       2012; Tryon 2013; Hartley, Wen, and Li 2015; Smith and Telang 2016), recent
                                                                                       studies have highlighted the persistence of mechanisms of separation and
                                                                                       localistic policies in cinema and media.1 Phenomena such as geoblocking, for
                                                                                       instance, demonstrate the downsizing that the “digital promise” has undergone
                                                                                       (Lobato and Meese 2016; Lobato 2019).2


                                                                                       1        Applying here the observations that James Hay made in 2012 about the
                                                                                       boundaries erected within the web, similar to those conventionally drawn to divide
                                                                                       airspace, and which undermined the free movement of content (Hay 2012).
                                                                                       2        These studies also raise important methodological questions. Ramon Lobato
                                                                                       for example questions the appropriateness of categories such as global, national and
                                                                                       international when it comes to describing and evaluating the trajectories of cultural


                                                                                       Cinéma & Cie vol. 23 no. 41 2023 · ISSN 2036-461X                                                            41
        The difficulty in developing a supranational or community vision in the cinema
     and audiovisual sectors in Europe, in particular, is shown in a number of ways:
     from the differing speeds of development of screen industries, even between
     markets that are usually considered comparable (EAO 2023); to the lack of a
     common set of indicators and metrics to assess the industrial, employment,
     economic, social and cultural value of screen industries (see article by André
     Lange in this theme issue), transversally to the national markets (Nieborg, Duffy,
     and Poell 2020), to the heterogeneous public support, by mode and amount of
     aid that each country offers to the sector (EAO 2019).
        This essay aims to focus on this last issue, examining the solutions that five
     major European filmed entertainment markets—France, Germany, Italy, the
     United Kingdom and Spain—have identified to balance liberalist drives and
     protectionist instances. The policy of the “cultural exception”, inaugurated in the
     early 1990s to protect the European specificity of film and audiovisual products,
     has in fact been transposed and implemented differently, even by countries that,
     in terms of history and size of the film and audiovisual sector, are traditionally
     considered comparable.
        Specifically, the essay’s intent is to examine an exemplary place of comparison,
     in which the trajectories of many players in the theatrical supply chain intersect:
     the theatrical release windows. This exemplary case study can help to
     understand which direction European cultural policies are taking, and highlight
     the ever-lively debate on public support for the audiovisual industry as a whole.
     Moreover, analysing these differences and their effects on the structures of the
     film and audiovisual industry means being able to assess the progress of the
     process of establishing a European film and audiovisual policy, even in the face
     of the challenges posed by the entry of platforms, that is capable of negotiating
     between national identities and maturing a supra-local and community vision
     (Bergfelder 2005).



     THE CULTURAL EXCEPTION
     AND THE PLATFORMING TEST
       The term “cultural exception” was introduced in the early 1990s as part of the
     debate related to the redefinition of free market agreements (General Agreement
     on Tarifs and Trade or GATT) (Buchsbaum 2006; Richieri Hanania 2019). The
     expression soon became a “symbol of resistance” of the cultural industry to
     neoliberal logics (Farchy 2008) and turned into a collector around which broader
     reflections and debates were gathered: from the one on globalisation (Kim and
     Parc 2020) to reflections on the role of cinema as a tool of soft power in cultural
     diplomacy (Dagnaud 2011; Vlassis 2016).
       With the new millennium, the term “cultural exception” began to be replaced,


     products across new touchpoints (Lobato 2019).



42                                        Fanchi, Locatelli, Theatrical Release Windows
both in public discussion and in official documents (UNESCO 2005) by the term
“cultural diversity”, perceived as less radical and more acceptable (Acheson
and Maule 2004). More specifically, “cultural exception” has come to denote
a composite set of measures whose aim is the protection and enhancement
of the diversity of cultures and within cultures (Farchy 2008). Concurrently,
its scope has been progressively widened: from actions safeguarding national
productions and their presence in distribution channels, to interventions aimed
at protecting local cinemas, in particular those located in smaller urban centres
or screening national and quality films, as opposed to international multiplex
circuits, as a place of memory and expression of community identity.
   Moreover, compared to an initial phase characterised by a broad agreement
in the academic sphere on the good will of such a policy, recently critical
voices have increased, expressing reservations about the effectiveness of
the measures ascribable to the principle of “cultural exception” in promoting
the genius loci, supporting independent producers, guaranteeing pluralism
and enhancing innovation (Naldi, Wikström, and Von Rimscha 2014). Added to
this is the diverseness of the ways in which the cultural exception paradigm
is interpreted and applied, which risks promoting localism and nationalism.
Although the “cultural exception” is rooted in a pro-European perspective, it has
not given rise to a unified policy, accentuating national primacy even when the
aim was to foster maximum product circulation. For instance, in order to bypass
the stumbling block of differing regulations on the copying right of works, which
made their international circulation complex, the European Union decreed the
primacy of the “country of origin”, instead of working on the establishment of a
common, at least European, system of governance of the works and copyright
protection (Cabrera Blázquez et al. 2015 and 2019b). More generally, the EU
has limited itself to pursuing a “prominence” of the European audiovisual film
product, which would guarantee at least its availability (Cappello 2022).3 An
analysis of the mechanisms regulating public film funding clearly reveals the
persistence of substantial differences between countries (Weiss 2016). The
incentive techniques, that Lucia Bellucci calls “cultural welfare”, aimed to
“support national cultural production, thereby maintaining and developing not
only a national industry, but also a certain diversity in the supply of cultural
content and therefore a plurality of choices for the public” (Bellucci 2017:
200–01), take on, in fact, different features depending on the country being
considered and is also subject to local and international political pressures that
make these sets of tools not only dissimilar but also unstable (Bellucci 2019).
   If we limit the examination to the main markets and a few traits4 in France


3        “The findability and discoverability of European audiovisual content is first and
foremost a matter of cultural diversity. Only if a variety of voices can be effectively
heard, and a multitude of works effectively enjoyed by the greatest numbers, can there
be real cultural diversity.” (Cappello 2022, 4).
4        Refer to the report on the mapping of public financing criteria of the audiovisual
enterprise in EU countries published by the European Audiovisual Observatory (EAO
2019).



Cinéma & Cie vol. 23 no. 41 2023 · ISSN 2036-461X                                             43
     and, to some extent, the United Kingdom5 for instance, they tend to adopt a
     centralised model of public aid, while Spain and Germany, despite their
     administrative division into autonomous regions, have both a centralised line
     of funding, as well as distinct regional measures. In Germany, for example, the
     national funding agency for the audiovisual industry, the Filmförderungsanstalt
     (FFA) administers its own funding lines as well as directing to other federal
     funding lines, linked in particular to the Federal Delegate for Culture and Media
     (Beauftragte der Bundesregierung für Kultur und Medien, BKM). Italy also has a
     regional public support system, which offers possible complementary financing
     for approximately 10% of the overall volume of state commitment (MIC 2022).
     Besides the different structures, the forms of public contribution also differ
     from country to country: in the case of France, the national agency, the CNC
     (Centre national du cinéma et de l’image animée) manages over 90 different
     funding lines, which obviously do not have a direct correspondence with the
     options and paths chosen by other countries.
       The scale of public financing also differs: in 2021, for example, the UK allocated
     more than £700 million to support movie industries; the CNC managed over
     €600 million in funding; Germany’s public investment in the audiovisual market
     exceeded €480 million in total; while funding managed by the Spanish Instituto
     de la Cinematografía y de las Artes Audiovisual (ICAA) was just under €70
     million. Finally, the Italian government, aside of the extraordinary interventions
     in the field to counter the effects of the lockdown, awarded over €885 million
     (MIC 2022) to the cinema and audiovisual sector.
       Finally, there are no specific and reliable indexes that are able to evaluate
     the effectiveness of “cultural welfare” policies transnationally. Sarah Walkley,
     in her assessment of cultural exception policies, does not believe these can be
     referred to European policies, but considered only at a national level and in
     comparison, with the big US player. “That said, France is most concerned about
     unfair competition from the USA and its potential to dominate the market”,
     and Walkley (2018, 240) argued that the indexation she proposes mainly
     concerns the French film industry in opposition to the American one, relegating
     third countries (not only from the EU) to an outsider position. Assessing the
     effectiveness of protectionist policies is also complicated (and almost impossible
     at the moment) by the lack of data regarding the performance of platforms;
     in fact, this absence is likely to become a problem when it comes to defining
     possible logics of coexistence between new and old channels of distribution
     of film content, as Antonios Vlassis (2021) recently observed questioning the
     direction taken by the media system and, specifically, platforms in the post-
     pandemic era.
       While Walkley suggests considering balance, disparity and variety for


     5         The organization of support for the audiovisual industry in the UK is divided
     into two paths: on the one hand, a selective funding model linked to public bodies (state
     entities, England, Wales, Scotland and Northern Ireland, educational institutions and
     training agencies in the first place), on the other automatic access to tax relief models.



44                                           Fanchi, Locatelli, Theatrical Release Windows
measurable indexes (238), the European Audiovisual Observatory attempts, if
only to be consistent with its mission, to overcome the national industry barrier;
however, it has to limit its criteria to two indicators of mere product circulation:
findability and discoverability. These indeed give us an intuitive reference of the
impact of regulations, however without being able to delve into economic impact
assessments, nor actually into considerations on the contents and messages of
the products distributed.6



PERIMETERS, MAGNITUDE AND TRENDS
  The following analysis will examine the five main European markets (the so-
called big 5: France, Germany, Italy, the United Kingdom and Spain), highlighting
their pre-eminence in the European scenario and pointing out the structural
assets of the theatrical supply chain: production, distribution, exhibition. The
choice of these five countries is motivated by the size of the industry and the
industrial set-up of the sector, which, unlike other markets on the continent (for
instance Russia), sees all the nodes of the supply chain, including exhibition
facilities, significantly represented.7 As regards the size of the income, in 2021
France, Germany, Italy, the United Kingdom and Spain together generated
70.5% of the total turnover of the audiovisual market of the EU-27 and the
United Kingdom, and produced a share of European theatrical market receipts
exceeding 70%: €5.184 billion in the pre-pandemic year (72% of the total box
office of the area comprising the EU-27 and the United Kingdom) and just over
€2 billion in 2021 (71%) (EAO 2022). If we consider them both as a whole as
well as how each of them impacts its own national market, these five countries
are also able to compete in Europe with the US offer, as is shown not only by
theatrical box offices, but also by the data on the presence of films produced in
these countries on European digital Video On Demand platforms. If we look at
the EU-27, 34% of the films (individual titles) offered on the TVOD (Transaction
Video On Demand) platforms are in fact produced in the five countries
mentioned, against 37.5% of US origin; moreover, the share of product from
the “big 5” exceeds that of the United States if we consider the Subscription
Video On Demand platforms: 31.7% compared to 28.6% of US titles; only on the
FVOD (Free Video On Demand) platforms does the ratio appear more clearly in
favour of US products, with 40.7%, against 27.68% by major European producing
countries.8


6        “In the EU context, there is unlikely to be harmonization on the type of content
concretely to be regarded as having public value or being of general interest as these
are aspects closely linked to cultural and democratic traditions in the member states.”
(Cappello 2022, 8).
7        In 2021, 70% of the operating facilities in the EU-27, including the UK, were
concentrated in the five markets taken into consideration, with relative stability over the
five-year period (EAO 2022).
8        In September 2022, French films represented 10% of the titles in TVOD
catalogues and 9% of the titles in European SVOD catalogues, compared to 5% and 6%



Cinéma & Cie vol. 23 no. 41 2023 · ISSN 2036-461X                                             45
       Finally, France, Germany, Italy, the United Kingdom, and Spain are the
     countries with the highest volume of public investment in the film market,
     although, as mentioned, differing in terms of size and allocation logic. The same
     is true for the general volume of the film production sector, as can be seen from
     the average resources invested per year, again with reference to the period
     2017–2021: over 2 billion for the UK, more than 1 billion for France, 436 million
     and 383 million respectively for Germany and Italy (EAO 2022).9
       In fact, although these five markets are highly comparable, and have seen
     an overall growth over the five-year period 2017–2021, they differ in size,
     characteristics, and trends. Cinema aids, or, in Bellucci’s sense, “cultural
     welfare” actions, and specifically theatrical release window policies, enter this
     scenario as a further element of differentiation, both because they take on
     different forms and because they operate in diverse realities. Though we can’t
     reconstruct these differences here point-by-point, the following tables allow
     us, at least, to grasp the complexity of the scenario where cultural welfare is
     exercised.10
       To begin with, in the theatrical supply chain, production has shown a general
     upturn in both investment and the number of titles produced,11 in the case of
     France and Italy, the value invested in 2021 in the production of feature films
     also destined for theatrical release was even higher than in 2019: +21% in
     France, with 340 new titles compared to 301 in 2019, and + 8% in Italy, with 313
     works produced compared to 325 in 2019. But the reaction in Spain and the
      Tab. 1:Kingdom
     United   Number has
                     of theatrical feature(EAO
                          been slower      films2022)
                                                 produced
                                                      [Tab.(source:
                                                             1].    EAO 2022)


                                  2017           2018          2019           2020          2021
       France                      300            300           301            237          340
       Germany                     247            247           265            152          185
       Italy                       235            273           325            252          313
       Spain                       301            283           252            193          154
       United Kingdom              241            266           263            215          263


     Table 1. Number of theatrical feature films produced (source: EAO 2022)
       Tab. 2: Number of cinemas (source: EAO 2022)
       Similarly, distribution and exhibition show some common trends, and
                                    2017         2018            2019         2020          2021
        France                      2.046        2.040           2.045        2.041        2.028
     of Germany
         Italian films (Grece 2022).    French film
                                    1.672        1.672production    also enjoys
                                                                 1.734           an important
                                                                              1.728        1.723share
     of Italy
         visibility on television, where
                                    1.204  in 2020  it
                                                 1.210 represented,
                                                                 1.223 with reference
                                                                              1.309   to  the  first TV
                                                                                           1.221
     broadcast
        Spain      on free national  channels,
                                     739       47.6%
                                                  734  of the films broadcast,
                                                                  764           compared
                                                                               750         to 14.2%
                                                                                            710       in
     Germany      and
        United Kingdom 30%  in the United
                                     977  Kingdom    (CNC
                                                 1.061      2022;  SPIO
                                                                 1.080  2022;  BFI
                                                                               985 2022).   928
     9        Spanish data are not available.
     10       The analysis will use data from the European Audiovisual Observatory, country
     reports  and  data of
       Tab. 3: Number    from  survey
                            cinema      and field
                                     screens        agencies:
                                              (source:         more specifically, for France, the
                                                        EAO 2022)
     Bilan du CNC, for Germany the reports of the national agency dedicated to audiovisual
     public financing, the FFA, and the statistics office of the SPIO trade association,
     Spitzenorganisation der Filmwirtschaft
                                 2017            (SPIO 2022);2019
                                                2018            for Italy the2020
                                                                              evaluation reports
                                                                                            2021 on
     theFrance
          impact of the so-called5.913
                                   “Legge Cinema”
                                                5.983 by the Italian
                                                              6.114 Ministry     of Culture6.193
                                                                             6.127           (MIC); for
     Spain  the
       Germany  annual reports  of the
                                 4.803 Instituto  de
                                                4.849la Cinematografía
                                                              4.961       y de las
                                                                             4.926  Artes Audiovisual
                                                                                           4.931
     (ICAA),
       Italy and for the UK the 3.510
                                 statistical yearbooks
                                                3.541     of the British Film
                                                              3.545             Institute (BFI).
                                                                             3.667         3.482
     11Spain A partial exception   is Germany,3.589
                                 3.618            whose recovery
                                                              3.695 has been    slower. 3.631
                                                                             3.701
       United Kingdom             4.512          4.640         4.782         4.682          4.610


46                                               Fanchi, Locatelli, Theatrical Release Windows
       Tab. 4: Number of admissions (mill.) (source: EAO 2022)
  Tab. 1: Number of theatrical feature films produced (source: EAO 2022)
  Tab. 1: Number of theatrical feature films produced (source: EAO 2022)
concurrently a series of transformative processes of a local nature that highlight
                           2017         2018          2019          2020        2021
those
  Franceenduring  specificities
                           2017
                            300 mentioned
                                        2018
                                         300at the  beginning.
                                                      2019
                                                       301      In particular,
                                                                    2020
                                                                     237       the health
                                                                                2021
                                                                                 340
crisis
  Franceand the lockdown accentuated
  Germany                   300
                            247           the screen265
                                         300
                                         247            concentration
                                                       301           152 process 185
                                                                     237         in Spain
                                                                                 340
  Germany
  Italy                     247
                            235          247
                                         273           265
                                                       325           152
                                                                     252         185
                                                                                 313
and  in the United Kingdom,
  Italy                     235
                                by a decrease
                                         273
                                               in the number
                                                       325
                                                                of active
                                                                     252
                                                                          movie 313
                                                                                 theatres
  Spain                     301          283           252           193         154
(respectively,
  Spain
  United Kingdom-3.9% and -5%,
                            241 again with
                            301          266 reference
                                         283           263to the period
                                                       252           215 2017–2021)
                                                                     193         263 and
                                                                                 154
anUnited
    increase  in the number
          Kingdom           241of screens,
                                         266reaching 263
                                                       a ratio of 5 215
                                                                     screens per263
                                                                                  cinema
in these two countries, against a 3:1 ratio in France, Italy and Germany (EAO
  Tab. 2: Number of cinemas (source: EAO 2022)
2022)
  Tab. [Tab.  2 andofTab.
        2: Number         3]. (source: EAO 2022)
                      cinemas

                           2017         2018          2019         2020         2021
  France                   2017
                           2.046        2018
                                        2.040         2019
                                                      2.045        2020
                                                                   2.041        2021
                                                                                2.028
  France
  Germany                  2.046
                           1.672        2.040
                                        1.672         2.045
                                                      1.734        2.041
                                                                   1.728        2.028
                                                                                1.723
  Germany
  Italy                    1.672
                           1.204        1.672
                                        1.210         1.734
                                                      1.223        1.728
                                                                   1.309        1.723
                                                                                1.221
  Italy
  Spain                    1.204
                            739         1.210
                                         734          1.223
                                                       764         1.309
                                                                    750         1.221
                                                                                 710
  Spain
  United Kingdom            739
                            977          734
                                        1.061          764
                                                      1.080         750
                                                                    985          710
                                                                                 928
  United Kingdom            977         1.061         1.080         985          928

  Tab. 1: Number of theatrical feature films produced (source: EAO 2022)
  Tab.2.3:Number
Table      Numberofofcinemas
                       cinema(source:
                              screens EAO
                                      (source:
                                          2022)EAO 2022)
  Tab. 3: Number of cinema screens (source: EAO 2022)
                           2017         2018          2019         2020          2021
                           2017         2018          2019         2020         2021
  France                    300          300           301          237          340
  France                   2017
                           5.913        2018
                                        5.983         2019
                                                      6.114        2020
                                                                   6.127        2021
                                                                                6.193
  Germany                   247          247           265          152          185
  France
  Germany                  5.913
                           4.803        5.983
                                        4.849         6.114
                                                      4.961        6.127
                                                                   4.926        6.193
                                                                                4.931
  Italy                     235          273           325          252          313
  Germany
  Italy                    4.803
                           3.510        4.849
                                        3.541         4.961
                                                      3.545        4.926
                                                                   3.667        4.931
                                                                                3.482
  Spain                     301          283           252          193          154
  Italy
  Spain                    3.510
                           3.618        3.541
                                        3.589         3.545
                                                      3.695        3.667
                                                                   3.701        3.482
                                                                                3.631
  United Kingdom            241          266           263          215          263
  Spain
  United Kingdom           3.618
                           4.512        3.589
                                        4.640         3.695
                                                      4.782        3.701
                                                                   4.682        3.631
                                                                                4.610
  United Kingdom           4.512        4.640         4.782        4.682        4.610

Table
  Tab.3.2:Number
           Numberofofcinema screens
                       cinemas      (source:
                               (source: EAO EAO  2022)
                                             2022)
  Tab. 4: Number of admissions (mill.) (source: EAO 2022)
  Tab. 4: Number of admissions (mill.) (source: EAO 2022)
   Above all, however, what is significant is the data on the trend of film viewing
                           2017          2018         2019         2020         2021
in France
    theatres in the post-pandemic
                           2017
                           2.046
                                       period.
                                         2018 The 2019
                                        2.040
                                                      recovery has
                                                      2.045
                                                                   2020
                                                                  2.041
                                                                       in fact registered
                                                                                2021
                                                                                2.028
                           2017         2018          2019        2020          2021
different
   Germanyspeeds and dynamics
   France                  209,4
                           1.672     in the
                                        1.6725 countries:
                                        201,2
                                                      1.734 in 2021,
                                                      213,2        65,3
                                                                  1.728admissions95,5in the
                                                                                1.723
  France
   Germany                 209,4
                           122,3        201,2
                                        105,4         213,2
                                                      118,6        65,3
                                                                   38,1         95,5
                                                                                 42,1
United
   Italy Kingdom amounted
  Germany
                           1.204 to 74 million,
                           122,3
                                        1.210
                                        105,4    +68%    compared
                                                      1.223
                                                      118,6           to the year
                                                                  1.309
                                                                   38,1             of the
                                                                                1.221
                                                                                42,1
   Italy
   Spain                    92,3
                            739          85,9
                                          734          97,6
                                                       764         28,1
                                                                   750           24,8
                                                                                 710
pandemic;
  Italy       Spain and France
   Spain Kingdom            92,3
                            99,8  also saw
                                         98,9a significant
                                         85,9          97,6 recovery
                                                      104,9         27(respectively
                                                                   28,1         24,8
                                                                                 41,7  54%
   United                   977         1.061         1.080        985           928
and   46%);
  Spain
   United    the restart was
           Kingdom           slower in Germany,
                            99,8
                           170,6         98,9
                                          117       with
                                                      104,9
                                                      176,1+10% of tickets
                                                                    27
                                                                    44      sold between
                                                                                41,7
                                                                                  74
  United Kingdom           170,6         117          176,1         44            74
2020 and 2021, amounting to 42.1 million admissions, and in Italy, which saw
   Tab. 3: Number of cinema screens (source: EAO 2022)
even    fewer admissions in 2021 than in 2020 (EAO 2022) [Tab. 4].12

                           2017          2018         2019         2020          2021
  France                   5.913         5.983        6.114        6.127         6.193
  Germany                  4.803         4.849        4.961        4.926         4.931
  Italy                    3.510         3.541        3.545        3.667         3.482
  Spain                    3.618         3.589        3.695        3.701         3.631
  United Kingdom           4.512         4.640        4.782        4.682         4.610


Table 4. Number of admissions (mill.) (source: EAO 2022)
  Tab. 4: Number of admissions (mill.) (source: EAO 2022)


12        It must be said 2017
                             that the 2022   figures are
                                          2018         2019all positive
                                                                     2020compared2021
                                                                                   to 2021;
even  in
  France Italy, ticket sales were
                             209,4 almost  80%
                                         201,2  higher  than
                                                       213,2  in 2021  (http://www.anica.it/
                                                                      65,3       95,5
documentazione-e-dati-annuali-2/cinetel-i-dati-del-cinema-in-sala-nel-2022).
  Germany                    122,3       105,4         118,6          38,1
                                                                                  The drop
                                                                                 42,1
in theatrical consumption during the pandemic period was, as we know, offset by an
  Italy                       92,3        85,9          97,6          28,1       24,8
increase in ticket prices (MIC 2022).
  Spain                     99,8         98,9         104,9          27          41,7
  United Kingdom           170,6         117          176,1          44           74

Cinéma & Cie vol. 23 no. 41 2023 · ISSN 2036-461X                                              47
     RELEASE WINDOWS: A TEST BENCH
     FOR “CULTURAL WELFARE”
        A central issue in the film market organisation concerns the so-called windows,
     i.e. the time period between the theatrical release and the possible subsequent
     exploitation in the different modalities available today. A recent study by the
     European Audiovisual Observatory defines windows as “piliers fondamentaux
     de l’exploitation des oeuvres cinématographiques et audiovisuelles en Europe”
     (Cabrera Blázquez et al. 2023, 1). A part of the relationship between the
     different elements that make up a country’s audiovisual industry is played
     out on a symbolic level through the management of windows, obviously with
     a specific focus on distribution and exhibition. In general, specialist literature
     over the years has recognised on the one hand the idea of a defence against the
     “cannibalisation” of the theatrical sector and, on the other, a need for product
     marketing: “Distributors prefer longer windows to the extent that they protect
     box office revenues (cannibalisation effect), but shorter windows in so far as
     this lets them capitalise on DVD sales while a film remains fresh in the minds of
     the public (marketing effects)” (Bakshi 2007, 2).13 A key issue in this framework
     is obviously also the defence of copyright and piracy.
        In European Union countries, the windows policy refers to a regulatory
     framework which, from an initial stringency (the initial two years as a general
     interval from cinema to broadcasting determined by the ECTT, European
     Convention on Transfrontier Television of 5 May 1989), was later relaxed to
     represent, in the current Audiovisual Media Services Directive (AVMSD), in
     fact only a moral suasion aimed at ensuring dialogue between the different
     stakeholders. The ways in which windows are organised therefore vary
     structurally from country to country and a systematic comparison is not
     possible.
        Generally speaking, in Spain14 and the UK (even before Brexit) there is no
     compulsory legislative intervention and windows are set by the distributors
     themselves on the basis of a market self-regulation logic. Moreover, this is the
     logic that directs sector policies in most European countries.15 France, on the
     other hand, opts for a more regulated system: sector legislation, the Code du
     cinéma et de l’image animée, defines release windows to be applied to all sector
     operators which are renewed at pre-established intervals of one to three years,


     13       For a historical analysis of the evolution of windows see Cabrera Blázquez et
     al. (2019a, 5–8).
     14       The Spanish government decided to abolish the release windows proposed by
     the so-called “Ley del Cine” No. 55/2007 requested of national productions aspiring to
     public support by Royal Decree No. 1084/2015 of December 4, 2015. The current new
     proposal for an emended “Ley del Cine” does not contain any difference in this respect.
     15       Only in four countries with freedom of regulation have framework agreements
     been reached for the whole sector: Norway, Poland, Slovakia and Sweden. See Cabrera
     Blázquez et al. 2023, 38.



48                                          Fanchi, Locatelli, Theatrical Release Windows
although they require the agreement of field representatives on the one hand,
and of the major platforms on the other.16 Germany and Italy have a mixed
system, in which all titles eligible for support in their respective public financing
systems are subject to regulation.17
  An evaluation of windows and their impact is particularly difficult. The EAO
itself does not put forward an impact assessment. Research on the impact
assessment of public funding interventions in the sector in those countries
that provide for them has not revealed sufficient parameters to define their
effectiveness: neither in Italy, in the general evaluation reports of the so-
called “Legge Cinema” (MIC 2022), nor in Germany in a specific dedicated
study by the Filmförderungsanstalt (FFA) following a parliamentary mandate
(FFA 2022). Nonetheless, if we look at the publication of specific data by the
Spanish exhibitors’ trade association (FECE, Federación de Cines de España),
and analyse the market data of the Italian case (Cinetel, the official box office
system of the national film industry), we can highlight some useful data for a
circumstantial comparison.
  Let us start with market data, analysing the recent Italian box office. How long
is the actual exhibition period of films in theatrical release? The analysis focuses
on the titles with the greatest impact as these are obviously the ones with the
longest-running release. For titles grossing less, the period is consequently
shorter, and we know it is the cinema itself, that will not necessarily favour their
continuation beyond the initial weeks. So, let’s look at the Italian Cinetel’s data
on box office receipts for the last year with consolidated data, that of 2022, and
select the top twenty box office movies.18 For the most part, these are foreign
films, which do not have to follow window regulation rules. Together, these
twenty titles grossed €199,647,872 in Italy. Of these almost two hundred million,


16         Among other EU countries, only Bulgaria has opted for a similar system, but
with much shorter windows even than the European average, see Cabrera Blázquez et
al. 2023, 42.
17         The legislative reference for Germany is the law for the public financing of
German-produced films, the “Gesetz über Maßnahmen zur Förderung des deutschen
Films” (Filmförderungsgesetz – FFG), Abschnitt 4, Sperrfristen, Absatz 4 FFG 2022.
For Italy, Law No. 220/2016, known as “Legge Cinema”: it should be noted that the
ministerial decree of March 29, 2022, reduced the deadlines from the previous 105 to
90-day operating windows. Similar policies are also adopted in Austria and Ireland
(Cabrera Blázquez et al. 2023, 38).
18         In order of box office in Italy: Avatar: The Way Of Water (James Cameron);
Minions: The Rise Of Gru (Kyle Balda); Doctor Strange In The Multiverse Of Madness
(Sam Raimi); Top Gun: Maverick (Joseph Kosinski); Thor: Love And Thunder (Taika
Waititi); The Batman (Matt Reeves); Black Panther: Wakanda Forever (Ryan Coogler);
Fantastic Beasts: The Secrets Of Dumbledore (David Yates); Jurassic World: Dominion
(Colin Trevorrow); Uncharted (Ruben Fleischer); Death On The Nile (Kenneth Branagh);
Spider-Man: No Way Home (Jon Watts); Strangeness (La stranezza, Roberto Andò); Black
Adam (Jaume Collet-Serra); Il Grande Giorno (Massimo Venier); Sonic The Hedgehog 2
(Jeff Fowler); Puss In Boots: The Last Wish (Joel Crawford); Me Contro Te. Il Film: Persi
Nel Tempo (Gianluca Leuzzi); Elvis (Baz Luhrmann); Morbius (Daniel Espinosa). For each
title, the entire release period was taken into account, even if it began in 2021, or ended
in 2023.



Cinéma & Cie vol. 23 no. 41 2023 · ISSN 2036-461X                                             49
     42.18%, or €84,220,595, were grossed in the first week of release. In the following
     weeks, only Avatar: The Way of Water initially kept pace (almost twelve million
     in the first week, almost ten and a half million in the second), but the other
     titles in general fell steadily. The average of the first twenty (including Avatar,
     therefore) sees a weekly decrease in earnings consistently close to 40% in the
     first five weeks following the premiere (in detail: -44.55% from the first to the
     second, -42.19% from the second to the third, then respectively up to the sixth:
     -36.60%, -48.38%, -40.59%). Over a month and a half, earnings were reduced to
     a tenth: more precisely, by 89.51% at the end of the fifth week (€8,836,075), and
     even by 93.77% at the end of the sixth (€5,249,480).
        It is no chance occurrence then, that not even all the top twenty highest
     grossing films of the year made it to the regular four-month release period:
     only the first seven titles of 2022 made it to sixteen weeks, with a peak of
     twenty-two (Top Gun: Maverick), while the average of the top twenty is thirteen
     and a half weeks (i.e., 115.5 days). Only ten titles exceeded twelve weeks, the
     three-month quota. We would like to point out again: all other titles, from the
     twenty-first place of the Italian box-office chart of 2022 downwards, generally
     had even shorter theatrical release periods. The theatrical performance data
     therefore show that only a very small proportion of the titles distributed reach
     a three- and four-month theatrical release period range. Let’s then try actually
     evaluating how consistent the distribution’s push to shorten windows is. Let’s
     analyse a partially regulated legislation framework, for example the German
     one, which provides legal limits only for publicly financed titles. The FFA’s
     dossier Evaluierung der Sperrfristen does not evaluate the overall window
     system, but focuses on one detailed element of German legislation, namely
     permission to deviate from the statutory limit. We must bear in mind that the
     legislation for the public financing of films places strict obligations on German
     production titles admitted to the financing itself (§53), but also provides for
     two lines of possible exceptions: the first (§54) with time periods defined as
     regular in cases where there are economic motivations prevalently due to the
     possible brevity of the exploitation in theatres (for example documentaries);
     and defined exceptional in the case of particular necessities (for example the
     thematic correlation with particular events, anniversaries, celebrations). The
     windows may thus shrink from 6 to 5 or 4 months for home videos and TVOD,
     from 12 to 9 or 6 months for pay-TV and from 18 to 12 or 6 months for free-TV
     and FVOD offerings. The second option (§55), on the other hand, establishes ad
     hoc timing, and even the cancellation of the window, for special reasons (e.g.
     multimedia launches of innovative products).
        The number of films for which a waiver is requested allows an assessment
     of the distribution needs. In detail, on average for three quarters of the eligible
     films at least one application for a pre-defined waiver according to §54 is made,
     either regular, exceptional or both (applications are platform-specific and
     therefore can be multiple for each film). But in almost no cases are extraordinary
     requests made on the basis of §55, which would allow for a window of less than
     4 months.



50                                        Fanchi, Locatelli, Theatrical Release Windows
  We can therefore assume that the drive by national distribution to go below
this threshold is not equal to the drive to ensure a timeframe of between four
and six months for all distribution platforms: in other words, the interest does
not seem to be in the abolition of the 120-day window, but in the inclusion of all
platforms under that limit. As a matter of fact, what is taking place seems not be
interpreted as a “cannibalisation” process, but as a policy attentive to marketing
possibilities and to the construction of a value chain based on theatrical
exhibition/performance. Let us try to ask exhibition itself, shifting our gaze to
an unregulated market case. The Spanish association of film exhibitors FECE
in its annual 2023 dossier points to the decrease of average window durations
particularly after Covid: until 2019, only 6% of films were available on other
channels before the customary 112-day threshold (de la Prida 2023). It should
be noted that the variance indicated is three days short of minimum, i.e., with
windows between 109 and 111 days. In 2022, however, this share had risen to
38% of films, with a 60% incidence for titles programmed by American majors,
whereas national and independent films appear to have remained prevalently
on pre-pandemic thresholds. The minimal gap seems to indicate, in a country
with no agreed or compulsory windows, that even in this case the market can
guarantee a self-regulation of exploitation times. Yet even the warning signs
should not be downplayed.
  Indeed, exhibition’s concerns are understandable in light of trends and how
reduction is impacting strong box office titles. We can assume that the option
of windows agreed upon by national governments and industry associations at
round tables may be the best solution to satisfy the many stakeholders.



CONCLUSIONS
  The literature review described a switch from an approach to the “cultural
exception”, based on an attempt to separate culture from market in toto, to a
broad, elastic and multi-level model, that aims to promote cultural exchanges
through cooperation, while maintaining policies to safeguard the “cultural
diversity” and “prominence” of the European product. However, the discipline of
the “cultural exception”, in its narrower sense as a set of rules and regulations,
in order to sustain the critical judgment to which—more than thirty years after
ECTT—it is rightly subjected, must be evaluated.
  This assessment must be carried out on at least four levels: a. the actual
possibility of measuring the impacts of the actions carried out, with specific
reference to the theatrical release obligation of national works that have
benefited from public support; b. the form taken by the regulation and the
way it is applied; c. the data currently available to assess the impacts of the
actions carried out and the conclusions that can be drawn from them; and d.
the consistency of these rules and politics with the overall European policies on
cinema and audiovisuals.
  On the first point, according to the literature review, the sector lacks a shared



Cinéma & Cie vol. 23 no. 41 2023 · ISSN 2036-461X                                     51
     and continuously applied methodology to assess the protectionist actions,
     building a comparable base of insights, at least on a European level, which is a
     necessary premise to try to think in terms of EU—and not only national policies.
       On the second point, the analysis conducted highlighted, even within the
     so-called comparable markets, different ways of understanding and applying
     for “cultural welfare”, with reference to the specific measure of film release
     windows: from contexts where there is no specific regulation, to contexts
     where, on the contrary, the obligation is provided for, but with different rules—
     exceptions included; this second level of analysis also shows the elasticity of
     the regulation system, characterized by various and flexible application modes,
     which provide for a wide range of derogations, and its complexity, that risk
     building a framework characterized by overlapping and exceedingly localistic
     rules.
       Concerning the results of the analysis carried out, the film release window
     regulations, perhaps also due to the many derogations, do not seem to have
     a discriminating impact both on the average tenure of national works in the
     theatrical market or on the “health” of the movie-theaters networks. On this
     second point, the data relating to the recovery of the theatrical market in the
     post-Covid period are also emblematic, showing different trends in the five
     comparable countries, and independent of the presence or absence of the
     obligation for the works to be shown in cinemas (in Italy, for example, the
     recovery was slow and the gap with the pre-pandemic situation continues to
     be important, despite the fact that the country has one of the most stringent
     regulations on film theatrical release).
       Finally, if we move on to assess the broader level of political necessity of
     protectionist politics, the traditional European position in the negotiation of
     trade agreements (at a multilateral, regional, and bilateral level) is to maintain
     the widest possible cultural policy space for the film and audiovisual sector, by
     providing different degrees of “exceptionality” agreements, and placing them
     within the framework of guaranteeing the cultural diversity and prominence of
     the European product.
       In summary, on the basis of the above insights, we can conclude that the
     specific rule of distribution windows has no demonstrable impact at an economic
     level (of increased tenure of works in the theatrical market) or at an industrial
     employment level (strengthening of the exhibition sector). On the contrary, it
     seems to us, also by virtue of the many exceptions provided, that it currently
     serves as a tool to govern the mediation between the parties involved, with
     specific reference to the different distribution channels. Also and above all in
     a panorama of platformisation and the push towards digital consumption, we
     must conclude that this “cultural welfare” model continues to guarantee the
     background of operability for national, sectoral, or multinational and cross-
     sectoral regulatory or steering choices. And it is precisely in its ability to build a
     dialogue between all operators, supply chains or member states, rather than a
     one-size-fits-all regulatory system, that its strength and future lie.




52                                          Fanchi, Locatelli, Theatrical Release Windows
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