Select Committee on Culture, Media and Sport Appendices to the Minutes of Evidence


Supplementary Memorandum submitted by Voice of the Listener and Viewer

  Voice of the Listener and Viewer (VLV) welcomes the opportunity to submit evidence to the inquiry into broadcasting currently being conducted by the Committee for Culture, Media and Sport. We have chosen to confine our written evidence to three key issues which are set out below.   


  In its White Paper (CM 0510) on "A New Future for Communications", the Government stated its intention to maintain the BBC, with limited exceptions, as an independent institution outside the responsibility of the new Office of Communications. The Select Committee itself, on the other hand, has with others been urging the Government to reverse this decision with the stated object of providing a level playing field between publicly funded broadcasting services and services dependent on commercial sources. Some of those urging this change of policy, however, are clearly speaking on behalf of the latter.

  VLV, however, continues to believe that the Government's original instinct was correct and took account of the profoundly different purposes of the two kinds of service. Leaving aside the unique case of Channel 4, commercial services exist to serve the interests of their shareholders and advertisers: they must deliver audiences to their advertisers and sponsors, and seek to maximise those audiences through the selection, scheduling and content of their programmes. In the past successive regulatory regimes have imposed restrictions to curb the full extent of that influence, but increased competition and changes in the national culture have gradually led to a whittling away of many of those restrictions.

  Public funding through the licence fee, by contrast, is intended to give the broadcaster independence to select and schedule material that he deems appropriate to serve the public interest by providing a diversity of choices with majority and minority appeal. It is an axiom of competition in broadcasting that the only effective test of success lies in pitting similar programmes against each other. VLV regrets that, in recent times, the schedules of BBC1 and ITV1 have provided all too many examples of this kind of competition, which has reduced the range of choice available on the mainstream channels, certainly in peak viewing hours.

  VLV believes that, based on a false premise of comparability between commercial and non commercial programme services, a move to subordinate the BBC to OFCOM in anything other than some issues of competition arising from the BBC's limited commercial activities would be seriously wrong in both philosophy and practice. We have indicated the objections to the philosophical argument. The objection on practical grounds is that, for the first years of its existence, OFCOM will be faced with the huge task of assimilating the five existing regulatory bodies which it is to incorporate. The amalgamation, in a single move, of so many diverse corporate bodies must be almost unprecedented and little expertise exists of such tricky waters, yet OFCOM will be responsible for much that is of profound importance to the protection of the public interest, and for many aspects impossible to quantify or measure in economic terms. To burden it, at the same time, with responsibility for introducing a new regulatory regime for the BBC would, at the very least, add to the stresses upon it, and at worst risk total disaster. Since legislative change would also be required to amend the BBC Charter before any such a move could be effected, VLV submits that a wiser course would be to wait until the BBC's Charter and Licence is next due for renewal. If, by that time, OFCOM has established itself as an effective, respected component of the industry, then that might be the time to reassess the powers and position of the BBC Board of Governors.

  To bring the Board of Governors under the control of OFCOM could not avoid compromising the role of the Governors, who are appointed by the Queen in Council. The appointment of members of the regulatory bodies now disappearing, by contrast, is made by Ministers, to whom they are responsible. The Governors, on the other hand, are currently accountable through the Secretary of State to Parliament for the use and management of the licence-fee revenue. VLV submits that, for as long as the main source of the BBC's revenues remains the licence fee, the responsibility for supervising its expenditure should remain in the hands of the BBC Board of Governors with its direct link to Parliament intact.


  The proposals on Media Ownership in the White Paper and the subsequent DCMS Consultative Document largely address commercial issues without reference to the public service obligations of the commercial sector. The proposals do not indicate how they are going to generate a leading world-wide media business beyond providing opportunities for consolidation. VLV would wish to see a more forward-looking approach designed to ensure the production of content that will create a dynamic market. Regulatory conditions will need to be clear and stable to give commercial interests the best opportunity to develop this market.

  The proposal that a single ITV licence in London should be permitted arises from the wishes of Carlton and Granada to combine certain activities for financial reasons but pays no regard to public service obligations currently imposed on the licensees. In recent years increasingly "light touch" ITC regulation has allowed the owners of these franchises to drift markedly from their original obligations in regard to news, current affairs, documentary, and drama. This drift continues and would be self-regulated under the new White Paper tiering proposals. At the same time, the requirement for regional programming has successfully progressed within Wales and Scotland whist rapidly diminishing in England.

  VLV recommends that primary legislation permitting a single licence should only be enacted if it is accompanied by a clear obligation to produce certain minimum levels of news, current affairs, documentary and drama. These obligations should stimulate licensees to become providers of quality and profitable material which will sell internationally using the creative skills which exist within the UK and which distinguish British public service broadcasting from other television services internationally. A similar regional obligation should be imposed which would progressively relate to existing and developing regional structures in the UK.

  An option is proposed in the DCMS consultative document to increase single holding limits of the nominated news provider from 20 per cent to 40 per cent. VLV considers this poses too high a risk to the integrity of such a provider. The potential for a combination of two shares to permit two companies to hold more than 50 per cent of any company flies in the face of the plurality on which the Media Ownership consultation document prides itself. Moreover, such a move could open the door to foreign ownership, regulation of which would be contrary to EU law. The high reputation of broadcast news coverage in this country depends on its independence. VLV believes the ownership of the provider must reflect this independence.

  It is also suggested in the DCMS consultation document that the government, on advice from OFCOM, should be able to revoke the nominated news provider system. VLV considers this could put democratic processes at risk whilst also creating uncertainties in the market.

  VLV submits that the 20 per cent limit on ownership of the nominated news provider should be maintained and that the system must only be revoked under primary legislation.

  The DCMS consultation on media ownership document offers as an option that ownership rules should be delegated to the competition authorities. VLV believes such a move would put the decision into strictly quantified circumstances and ignore the issues of citizenship and democracy which public service broadcasting serves. It would also offer the option for ownership rules to be changeable by secondary legislation, which VLV opposes.

  VLV strongly resists the proposal that ownership issues should be delegated to competition authorities only, or modified by any means other than by primary legislation.


  For many years, viewers in the UK have been able to make off air recordings of broadcast programmes without additional payment for time shifting purposes. The arrangements have worked well and there have been few, if indeed any, threats to the intellectual property rights (IPRs) of either broadcasters, writers or composers. Unless carefully regulated however, new technological developments could disturb this balance and have a profound impact on the fair use by individual viewers and consumers of broadcast, or internet, material. The fundamental issue for UK viewers is whether they can continue to be able to watch broadcast programmes at a time which is convenient for them.

  New technological developments, notably conditional access systems, theoretically enable holders, or licensees, of IPRs to do two things that could potentially deprive UK television viewers of their current right to make off air recordings of television programmes for time shifting purposes, without additional payment. These are:

  to deprive viewers of the technical ability to make any off air recordings for time shifting purposes:


  to require viewers to sign individual contracts that require viewers either to undertake not to make any off air recordings of broadcasts for fair use purposes, or alternatively to require them to make additional payments to make off air recordings.

  VLV submits that any new statutory provisions should preserve the current balance between the protection of a broadcaster's IPRs and the fair use of those broadcasts by viewers.


  Viewers are currently authorised by the 1988 Copyright Designs and Patents Act to make off air recordings for time shifting purposes without additional payment. However, the UK now has to amend its domestic law to take account of the EU Directive 2001/29 of 22 May 2001: Copyright in the Information Society. VLV has been advised that the Government intends to do this by means of a Statutory Instrument (SI) deriving its authority from s. 2(2) of the European Communities Act, which only permits the minimum amendments to UK law necessary to implement the relevant EU legislation. VLV therefore submits that this means that the Statutory Instrument must afford no powers to rights holders to change the traditional balance between the protection of IPRs and individual fair use of broadcast material. The simplest way to do this would be to ensure that holders of UK broadcasting licences, or service providers' licences, are statutorily required to preserve the traditional balance, and not to attempt to undermine them, either by the deployment of technological measures or by contractual requirements imposed upon viewers of subscription or pay per view services.

  The EU Directive allows each Member State a substantial degree of freedom to choose the manner in which it implements Article 6 of the Directive, and in particular Article 6(4) which relates to the manner in which rights holders may use technological measures to restrict the making of copies of their works for fair use purposes. The points at issue are the precise conditions under which a rights holder may use technical measures to prevent users from making copies of their work for fair use purposes in this case the right of viewers to make copies for time shifting purposes.

  VLV submits that the EU Directive only requires Member States to afford to rights holders the right to use technological measures to constrain any rights to make copies for fair use or time shifting purposes, when the provider makes the work available at a time and a place selected by the user.

  VLV therefore submits that the UK should only allow UK rights holders to use technical measures to prevent private recording for time shifting purposes when the rights holder is able to make the work available at a time and at a place demanded by the user. Furthermore, VLV submits that if the UK enacts the provisions of the EU Directive by means of a Statutory Instrument, if the Government is not to exceed its powers under the European Communities Act, it can only allow rights holders to use technical measures to restrict copying for time shifting purposes if the work is available both at a time and at place specified by the user. This is a double condition. It does not mean at a time or a place specified by the user, nor does it mean at a series of times and in a place specified by the rights holder.

  VLV therefore submits that it is important for Parliament to draw a clear distinction between the fair use of broadcast material and the fair use of material that is made available via the Internet. Programmes which are broadcast cannot currently be made available at a time and a place specified by the viewer, nor are they likely to be until broadcasters can develop and invest in highly sophisticated interactive software that has not yet been invented. On the other hand, information which is made available via the Internet may possibly be available at a time that is convenient to the viewer, although as yet, little of it is available at a place convenient to the viewer. The principal exception is the limited amount of information which is currently available on third generation mobile telephones.

  VLV recognises that in the long term, broadcasting as we know it today may disappear, but in practice we submit that this is a long way off. VLV therefore submits that:

  Viewers and other users of broadcast IPRs should continue to be able to make off air recordings for time shifting and other fair use purposes, until such time as the rights holder can make the material available at a time and a place convenient to the user.

  VLV submits that the Select Committee should examine a further issue, namely the potential for broadcasters and holders of IPRs to abuse these arrangements by requiring viewers and users of subscription services and other broadcast services protected by technological measures to sign away their rights to make off air recordings for fair use purposes. For viewers and other consumers, the difficulty is that in the UK, legal contracts can override statute law. VLV submits that the simplest way for Parliament to avoid this danger would be to impose a requirement on all holders of UK broadcast, or service providers licences not to do this. It is arguable, although not certain, that Parliament would be entitled to include this provision in a Statutory Instrument arising from the European Communities Act on the grounds that it would preserve the traditional balance between broadcasters and viewers.

11 January 2002

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