What's Hot in Digital Media Law - 3

In the first 2 instalments, I did a short overview of the four focal areas of change in digital media law and also what's going on in digital media markets at the moment. With legal hat back on, let's take a look at the first of the four focal areas of change......

1.       WHAT AND HOW DO YOU REGULATE?

Ignoring complexity and detail, we can distil digital media law into the ‘laws of the content’ and the ‘laws of the networks’ which deliver that content.

The laws of the networks are the domain of ICANN and Internet Governance; of the EU’s Telecoms Package governing the provision of electronic communications services; of ‘Net neutrality’ – the principle that providers cannot discriminate against competing applications or content so that we have a ‘two speed’ Internet; and in the UK OFCOM’s rules governing the sale of radio spectrum and other infrastructure issues.

I am going to focus on content regulation.

In the analogue world, the regulatory picture for content is pretty clear. But in the world of digital media, it’s become a bit blurred as ‘television style’ regulation will start to apply to some kinds of on-demand services. Let me explain.

In the analogue world, there are general laws, such as copyright and defamation, which apply ‘horizontally’ or ‘across the board’ to all media sectors and to all types of content, including films, books, newspapers, television programmes, magazines and so on.

In addition, the world of analogue broadcasting has always had its own specific ‘vertical’ rules governing the content of its services (for example, relating to production quotas; sponsorship and advertising).

These vertical rules reflect the traditional role of broadcasting as a primary medium for the dissemination of culture and information. At a European level, the main source of those rules is the 1985 ‘Television Without Frontiers’ Directive. In the UK, we find them the Communications Act and its predecessors which introduced provisions such as quotas requiring 25% of BBC and ITV shows to be made by independent production companies and, in 2003, gave independents rights to their shows.

In the digital world, we still have the same ‘horizontal’ laws applying to all forms of content. They are not industry-specific, applying equally to an e-book, a video clip on YouTube, an on-demand music service and a message on Facebook just as they do to analogue content.

But the Audiovisual Media Services Directive (“AVMS”), which is due to be implemented by member states by December 2009, has blurred the distinction which exists in the analogue world between vertical, sector specific content regulation for broadcasting and horizontal rules for all forms of media content, by creating two kinds of ‘audiovisual media service’:

·       The first is “television broadcasting” which covers programmes based on a programme schedule which are broadcast simultaneously to viewers; this covers all forms of ‘one to many’ television broadcasting, including ‘catch up’ broadcasts via services like BBC i-player and C4 On-Demand.

·       The second is kind is an “on-demand audiovisual media service” where there is a catalogue of programmes from which the viewer can choose to view whenever he or she chooses. A web-based video on demand service would fall into this category, such as the recently announced joint online video on-demand service for the BBC, ITV, and Channel 4 – code named “Project Kangaroo” – which the broadcasters hope will be “a Freeview for the Internet”.

So the result is that, albeit in a limited way, ‘television style’ regulation is finding its way into the on-demand world. According to the AVMS, the intention is to bring ‘light touch’ regulation to on-demand audiovisual services with rules governing the content of advertising, ‘windows of release’ for films and to prevent the availability of illegal content.

It’s important to stress that the AVMS only applies to ‘television-like’ services. That is, services that compete for the same audiences as television broadcasts. There has to be a programme schedule or guide which is under the editorial control of the service provider. So, online games, newspaper sites with podcasts, gambling sites, e-book services are all excluded.

But with the increasing variety of on-demand services, and particularly the increasing sophistication of EPGs (electronic programming guides), it seems reasonable to assume that ‘regulatory creep’ will occur. The notion of ‘regulation free’ cyberspace, if it was ever true (which it wasn’t) is certainly dead and buried.

Have a good week

Laurie Kaye