Recommended reading, 17-23 January 2013


Hacked Off would like your comments on its draft Leveson Bill.  Read all about it at this post on Inforrm. Comments by 15 February 2013.  It would be wonderful to see more of this type of engagement on the part of civil society organisations.

Academic publications

Matthias Kettemann, ‘The UN Human Rights Council Resolution on Human Rights on the Internet: Boost or Bust for Online Human Rights Protection‘ [2012] Human Security Perspectives 145. A short, well-referenced and very exacting comment on the ‘La Rue Report’ and associated documents on human rights and the Internet.

Timothy Zick, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties. The first two chapters of this new book (forthcoming, Cambridge University Press) are available for download from SSRN.  Zick’s first book on speech and place is one of the most important contributions to the field of First Amendment studies of recent years; it was very useful when I wrote about similar issues in a European context and I read it with great interest.  So this new book is something to look forward to.

Lorna Woods, ‘Beyond Murphy, Films and Football: Audiovisual Content in Europe’ (2012) 4 Journal of Media Law 189 (£). A copyright-focused discussion sparked by the Murphy (Greek decoder cards in UK pubs) decision and its consequences, with a particularly interesting section on competition and video-on-demand (which is the theme of this week’s post, it seems).

News, blog posts, etc

John Tate, ‘Ensuring prominence for public service content as media converges‘ (About the BBC Blog 17 January 2013). A BBC report on ‘due prominence’ for public service media, on its way to Government but already the subject of interesting debate. A key issue is dealing with alternative forms of distribution (e.g. video-on-demand) and the future-facing yet very 90s issue of ‘portals’ – specifically, how to apply the type of regulation currently used, i.e. a ‘good’ slot on an electronic programme guide or EPG.  (When I was speaking about minority-language broadcasting in the UK recently, I was intrigued to see how a debate arose in relation to a point I had just mentioned, which was geographically-limited EPG prominence for Gaelic and Welsh broadcasters; some saw this as significant but others very much deemed it a legacy issue).

Eleonora Rosati, ‘The (low) cost of balancing broadcasting rights with the public interest‘ (IPKat 22 January 2013).  A note on the Court of Justice decision in Sky v ORD C-283/11.  The case is a human rights challenge to the ‘short extracts’ provision of EU broadcasting law, added in the beloved Audiovisual Media Services Directive in 2007, and now consolidated as article 15 of Directive 2010/13.  The rights cited by Sky (for that is who challenged the provision – and it was clearly the principle rather than any specific problem in the Austrian implementation or the specific incident) were property rights (EUCFR and ECHR) and the freedom to conduct a business (EUCFR). However, the Court of Justice comes down pretty firmly in favour of the Directive.

Dirk Voorhoof & Inger Høedt-Rasmussen, ‘Copyright vs Freedom of Expression Judgment‘ (ECHR Blog 22 January 2013). Another case note – this time with the added significance of being about a decision not currently available in English. The decision raises a number of issues on which the Court’s view has been awaited for some time, particularly the relationship between copyright and article 10 ECHR.  However, as the note points out, it is also important in terms of new technology more generally and the long-running issue on the status of commercial speech.

Fred Campbell, ‘What Does Netflix’s Decision to Block Internet Content Tell Us About Internet Policy?‘ (Technology Liberation Front 23 January 2013).  This is a link-rich update on a story that has developed during the week, on Netflix and how it is managing/negotiating peering.  While I’m not completely convinced by the author’s framing of the issue along the lines of his long-established opposition to net neutrality rules, the issue is a serious one – and how it is resolved may affect the direction in which VOD goes – the Netflix ‘model’ is interesting, and is being replicated outside the US in related but different ways.  (See earlier post here)

David Streitfeld, ‘Keeping the Internet Safe From Governments‘ (New York Times: Bits Blog 23 January 2013). A petition to propose the US not fund the International Telecommunications Union, in protest at its alleged attempt to regulate the Internet and suppress free speech.  (One wonders how (a) withdrawing support when you don’t get your way in debate and (b) not cooperating with other states so as to ensure that telegraph, telephone, satellite and data traffic can cross borders support this cause.  I’d be the first in the queue to criticise actions of intergovernmental organisations, but the demonisation of recent ITU debates is a road we have been down before, with UNESCO and other organisations; hopefully, calmer and more constructive voices will be heard soon.  (On the other hand, if you think I’m wrong, then the petition is here. Speech for all).


Putting Viewers Somewhere: Part 3

Part 1: (Thursday) General
Part 2 (Friday): Regional/local broadcasting
Part 3 (Monday): Looking forward to Digital Britain

Many readers are no doubt unable to sleep while we wait for the publication of Digital Britain this week. For now, recently published (from the previous week) is Stephen Carter’s Digital Britain speech at the Westminster Media Forum, which is worth a read. He sets out these points as high-level objectives:

  • Firstly a fresh ambition for digital infrastructure, ensuring that as a country our wireless networks our fixed networks and our radio, digital radio and television networks are sufficient for a modern digital knowledge economy.
  • Secondly that we have a world class protection regime for our creative industries, a regime that seeks to ensure that this country remains a destination of choice for those people involved in the creation of intellectual property.
  • Thirdly that we unashamedly, but clearly rather than being hidebound by history, take a view of what public purposes we believe are essential for public intervention in UK content for UK consumers.
  • Fourthly that we take a universal view of this market rather than an educated and those who can afford it view of this market, to ensure that we get a level of universal participation in the new economy.
  • And fifthly, and in my view perhaps the biggest prize of all for us as both citizens and as taxpayers, is that as a result of those first four objectives we get to a point whereby we can genuinely start writing business plans for the universal delivery of public services through online and digital capabilities, and remove the public sector from where it is at the moment which is trapped between the requirement to provide digital and analogue delivery systems because of the lack of universal participation and take up.

Also last week, Charlie Beckett of LSE went to the Oxford Media Convention, and wryly observed (in a good report with lots of other things too):

A lot of talk here from Secretary of State Andy Burnham onwards about the public and yet the citizen is strangely absent. The Oxford Media Convention is the media community drawing up its annual wishlist and airing its collective angsts.

Well, it might have something to do with charging hundreds of pounds to get in the door (and not streaming or recording the proceedings). Thankfully we have a nice live blog from the Guardian, which is a start. I appreciate that I have some advantages in gaining access to these sort of events as an academic, and also that I have made this complaint before, but for as long as the interesting conversations are happening at expensive, closed events, words about empowering the audience will continue to ring hollow. Anyway, enough about that: more from Beckett here. Adrian Monck has a bit of fun with the PSB topic too.

Let the waiting continue…

Putting Viewers Somewhere: Part 1

Part 1: (Thursday) General
Part 2 (Friday): Regional/local broadcasting
Part 3 (Monday): Looking forward to Digital Britain

This is the little moment of (relative) peace and quiet in between two major publications relating to public service broadcasting in the UK. The first is specifically about PSB, and comes from regulator Ofcom, and was published on Wednesday. There’s a snappy summary here. Ofcom has completed ‘phase 2’ of its PSB review, and issued a detailed report, Putting Viewers First, regarding the long term future for public service broadcasting (TV) in the UK. It also set out some short-term decisions, which, in essence, allow ITV franchisees to do some further scaling back on non-national content (I didn’t think that was possible, but apparently it is. Good thing we’ve got the ever-doomed local newspapers and the BBC’s expanding local services to fall back on). Lots to read here and the report is going to keep all of us busy for some time. One of the highlights of the process has been the PSB blog, which brought together a lot of interesting comments and links, including controversial and off-message ones. Hopefully that will be used in the future. The index of all the relevant documents can be found right here.

So as I say, it’s all quite interesting, but Ofcom’s work may well be overshadowed by the publication of Digital Britain next week (steered by former Ofcom chief exec Stephen Carter with help from a who’s who of report writers!), which is a report to Government prepared by a steering group. I’m not too uncomfortable about that though, as Ofcom’s report would, in reality, require a significant revision of the relevant areas of the Communications Act and various other broadcasting statutes – and having this process taken seriously by Government is not just more likely to succeed, but carries with it appropriate legitimacy (with a parliamentary process somewhat more democratic than the type of opinion polling that Ofcom is increasingly favouring). Of course, Ofcom has a statutory mandate (section 264 Communications Act 2003) to carry out this review and has carried out its job diligently – but the focus of discussion and consultation should, in my view, now shift to elected representatives and central government.

I’ve found quite a few interesting references to online delivery scattered throughout the report (and I love these slides – although I don’t think any major conclusions are drawn from it, other than a general point that online public service content is A Good Thing but not The Alternative. Just as a sidenote, it’s quite intriguing to see the shift in the report from talking about public service broadcasting to public service content – in some chapters. This is worth welcoming (in that it recognises that ‘content’ deserves a public service element), but only in part – a focus on content alone disregards the total package of media, which (whether traditional, linear, CRT ‘broadcasting’ or anything else) is more than the accumulated ‘content’, considering things like governance, cultural activities, IP, advertising systems, access policies, etc. .

There’s also a stream of interesting comments summarised in the Responses document (at 2.185-2.190) in relation to language issues, particularly Irish (and Ulster-Scots) in Northern Ireland. Again I’m not sure how well placed Ofcom is to deal with this, but it will be interesting to watch that particular situation develop. Ofcom’s response is a not-very-illuminating ‘we do recommend that further consideration be given to appropriate delivery of indigenous language broadcasting services across the UK.’

I’m deliberately not getting into the ‘future of Channel 4’ thing for now, as everyone else is doing that. Let’s look at something more audacious, the ITV requests for (in essence) radical deregulation of the Channel 3 service. What ITV’s asking for is, even to my cynical eyes, quite astonishing. ITV ask for virtually all aspects of its regulation to be substantially relaxed or removed entirely, in return for not handing back its licence. It’s hard to respond to that, really. It is a most remarkable shopping list, including everything from reducing current affairs quotas to allowing product placement. Much of this is outside of Ofcom’s powers, and that is clearly pointed out, but it is decided, provisionally, to allow a range of reductions related to regional news and current affairs – and this is a good example of where the ‘audience research’ starts to fall apart, as it’s in direct contradiction to the preferences expressed through the survey results. More on that in the next post, though let’s not forget that ITV is already disobeying the rules and being fined for it. Hmmm.

And not forgetting that hanging over it all is the EU Commission’s almost-completed revisions to the control of state aid and public broadcasting. But that’s enough for one post.