Examination of Witnesses (Questions 20
- 38)
TUESDAY 9 MAY 2006
BRITISH SCREEN
ADVISORY COUNCIL
Q20 Philip Davies: On the issue of
copyright law, new media leads to certain anomalies in terms of
the law. For example, there are the same rights with regard to
recording and viewing content delivered by a traditional television
as there are for new services such as video-on-demand. Do you
think that the same rights should apply across the board?
Mr Howkins: I think the existing
copyright system in terms of the rights that a rights owner has
(the author, recording artist and performer) is satisfactory;
it is more a question of contract. More and more negotiation is
taking place and it is a question of contract. We do not think
there is a need for a new right to be created and then inserted
into any contractually agreed kind of delivery.
Ms Clarke-Hackston: One of the
dangers that you have, if you do such a thing, you might undermine
investment in these new business models that we are trying to
see in these new forms of delivery. It is cause for nervousness—the
idea of a new right. We do not believe there is a need for it
in any case. Certainly a lot of the work we did at the tail-end
of last year was looking at these issues. As John mentioned, we
had the Creative Economy Conference in the autumn which was attended
by people in the creative industries from 25 Member States, and
the view was that there was not a need for a new right.
Q21 Chairman: I understand at the
moment it is actually a breach of copyright law to burn onto an
iPod. Clearly that is because copyright law knew nothing about
iPods when it was written. Do you not think that that matters—that
the law is that ancient and simply does not take account of modern
technology?
Mr Howkins: I think it would be
fair to say that this is an issue upon which there is not a great
deal of consensus. It was illegal to copy from an LP onto a cassette.
It is illegal to copy from one hard disk to another hard disk,
whether it is on a computer-to-computer basis or computer-to-iPod
basis. By and large the industry at the moment would wish it were
otherwise but think that the problem of establishing a new right
and doing it in such a way the public accept it as being fair
and reasonable is not worth the candle—in other words, it
is just not worth it.
Q22 Chairman: Does it not make it
harder if essentially what happens is that the industry chooses
which particular laws they think they wish to enforce and which
ones they actually do not care about people breaking? Clearly
the industry is not going to prosecute anybody burning onto an
iPod.
Mr Howkins: I think this is where
Digital Rights Management or technical protection measures come
in. You could have some software that would allow you to, let
us say, download a piece of music or piece of content for a period
of one day, seven days, four weeks or whatever you want and the
consumer would pay appropriately for that. The consumer might
pay a pound or so for a week and then maybe a full price equivalent
to a DVD price for a number of months. That would be enforced
through software that would ensure that the content was either
not accessible or self-destructed after the appropriate period.
That is the way the industry is going at the moment, to write
software, to put the software into the consumer's hard disk, rather
than invent or create a new right. It would be easier to do it
through a contract.
Q23 Philip Davies: The Chancellor
announced a review into intellectual property rights under Andrew
Gowers. What would you like to see as the upshot of that review?
What recommendations would you like that to come up with; or what
recommendations would you not like it to come up with?
Mr Howkins: We have said to Andrew
Gowers what we have said here, which is that, in our view, the
basic copyright system is extremely useful; it works well; the
framework is broadly correct and appropriate to us; and we do
not anticipate major problems going forward. We have proposed
a few changes—some of them come under the heading of "enforcement".
We think there are certain steps the Government should take to
allow not for the laws to be changed but for the laws to be enforced
in a stronger and more effective way.
Q24 Philip Davies: Are there any
lessons from abroad that you think we should learn about how to
deal with these things?
Mr Howkins: I think broadly the
UK, which sits halfway between the Continental way of copyright
and the American way of copyright, has broadly got it right. We
share Directives with the European Union; we share an Anglo-Saxon
tradition with America; we are a sort of hybrid of the two. I
think broadly that the UK system of copyright (I will not claim
it to be better than) is as good as other countries. I do not
see another model out there in terms of state legislation that
we should copy.
Q25 Mr Evans: If somebody has bought
a CD should they not have the right to be able to burn it on their
iPod, or burn another copy for the car?
Mr Howkins: The law says they
should not; 100% of the practice says they do. The rights owners
have been grown-up and sensible and not taken people to court
about it.
Q26 Mr Evans: So the law is an ass!
Secondly, on the downloading of TV programmes you have just said
that people were downloading on the West Coast what had just appeared
on the East Coast. You have all admitted nobody is chasing any
consumer that is doing it. Any person who is doing it is not getting
prosecuted anywhere as far as you understand it?
Mr Howkins: Can I just say, as
far as I am aware industry is not prosecuting consumers; but industry
is being extremely active when what are called "release groups"
get hold of content and duplicate it in industrial quantities.
Q27 Mr Evans: Industry is not selling
DVDs on Westminster Bridge and I have seen people on Westminster
Bridge flogging films I did not realise had even been made they
are that recent and everybody is turning a blind eye to that,
by the looks of it. Downloading it on BitTorrent is a different
ballgame completely, is it not? Surely there will be a huge loss
of revenue to the industry if that is allowed to go unabated?
Mr Howkins: The industry is taking
active steps to find out the people who are getting hold of copies
that they should not get hold of and copying and selling them
in industrial quantities.
Ms Clarke-Hackston: One of the
difficulties is the international nature of this. You will appreciate
it is not just within this jurisdiction. One of the things, certainly
on the television side, people are beginning to look at now is
how you take out the hubs of these activities, rather more than
going for the individual who has chosen to download, upload or
whatever they are doing. It is not easy territory because it is
such an international problem.
Q28 Mr Evans: Is it because it is
like putting your foot out against the flood—it is just
going to be totally ineffective and you are going to pick on a
few people but, in the main, there are so many people doing it
now that it is pointless to chase anybody?
Ms Clarke-Hackston: I do not think
I would agree with that. I think there are codes of behaviour
which operate in one jurisdiction which do not apply everywhere,
such as the way that people approach issues and whether or not
they are prepared to do things that are against the law. I think
by and large in the UK we are pretty law-abiding; I think there
are less developed countries where perhaps people are less so.
I do believe that a lot of the anti-piracy messages and a lot
of the enforcement messages are having impact and there is some
evidence of it. I suspect you will be seeing evidence from the
Alliance Against Copyright Theft and they have done some very
interesting research which shows that the awareness of the illegality
of copying is growing; and also they have done other work where
they have talked to people and they have got people's views as
to people's willingness to purchase. Quite a lot of piracy is
driven by people who are unable to get the content that they want.
As I say, the sooner we can roll out these business models the
better and, hopefully, then monetarise it in some way which will
mean that we still have an industry.
Q29 Adam Price: You have mentioned
Digital Rights Management software. The experience has not been
too good. I had a Sony MP3 player for Christmas and luckily I
did not download the software until January otherwise it might
well have wiped my hard disk. What protection is there for people
to prevent this kind of software from damaging their computers
etc?
Mr Howkins: These systems are,
in a sense, the Holy Grail and people have been working on them
for a very long time. There is a wide agreement in the industry
that we have not got it right. We have not got it right in terms
of protecting consumer interest; nor have we got it right in terms
of allowing us to do what the industry wants to be able
to do. We need to have some sort of technical protection system,
Digital Rights Management system, and we will get there. We have
not yet got there; we are treading rather cautiously I think is
the right thing to say. We are aware that we do not want to have
any PR disasters, or for the consumer lobby to begin to distrust.
We are urging caution.
Q30 Adam Price: What about the privacy
issues? If the software allows you as an industry to scan people's
hard disks, how can we prevent that from being used for illicit
purposes?
Mr Howkins: I think there are
real concerns about privacy and personal data and those must be
taken account of.
Q31 Chairman: You said at the start
you did not wish to have statutory control or regulation of DRM,
but wanted the market essentially to allow it advance?
Mr Howkins: Yes, we believe the
industry itself is sufficiently aware of these systems to sort
it out itself. We do not think there is a package or public regulatory
constraints that can be moved across. The systems are not at that
stage yet. We would prefer to write them out ourselves, and then
if we get them wrong for someone to come along and say, "You
are getting that wrong". We think at the moment we should
be left alone to do it.
Q32 Chairman: What about transparency—at
the very least so that consumers are aware that when Adam has
his new Sony Walkman and he downloads his software, he is aware
that this software actually does carry with it quite a lot of
extras which allow Sony to monitor his computer activity. Do you
not at least think they should be required to make it plain to
consumers?
Mr Howkins: I think Sony was badly
damaged by that all over the world; it was a disaster. It
has learnt from that, I am sure, and I am sure everybody else
has learnt from that as well.
Mr Simon: I think Apple did something
similar and there was an immediate outcry and within 24 hours
they changed their policy and issued a software download after
they had been accused of also being able to access private information.
In that sense the power of the individual in user groups on the
internet gives them a voice which people never had before, and
you could not get very rapid responses from industry.
Q33 Alan Keen: In your introduction
you touched on the Television Without Frontiers extending regulations
and you said that it would inhibit providers. What would be the
consequence of not doing it? Can you give me a bit more information
on the "for and against"?
Mr Howkins: What the Commission
is proposing is a new level of Commission regulation. We prefer
to operate as we have in the past in this area, which is industry
self-regulation in the online world. We do not believe that the
Television Without Frontiers standards and restrictions should
be moved over from the broadcast world to the online world. We
cannot see any advantages, in answer to your question.
Ms Clarke-Hackston: The aim of
the review of the directive was to bring video-on-demand services
within the orbit of Television Without Frontiers. I think the
main problems that we have are that the definitions are extremely
wide, and a whole range of services beyond that—services
some of which, we are not quite clear what they are because they
are babies, are being embraced by this. We have major concerns
as an industry that this will damage those young services and
lead to a reduction in investment in those services; and possibly
those people who wish to set up those services will do so outside
the EU as a result. We think that the proposals could be extremely
damaging from the point of view of competitiveness. We also feel
that a whole range of services that we can recognise, the video-on-demand
services, are covered by the Electronic Commerce Directive already
and it will lead to a lot of confusion because nobody will know
which directive they should be honouring when they are operating.
We have a whole bundle of concerns about that. It illustrates
the difficulty of regulating when things are moving so very fast.
We are not quite sure where things are going.
Mr Simon: Just to add to that,
one of the effects the extension of scope could have is to massively
increase compliance costs, and that applies equally to industry
but also to the regulator. Ofcom is really concerned about it.
Our position is that everyone in Britain is pretty much of a common
view here—industry, Government, regulators alike. What is
really worrying is that across Europe people either disagree with
us or they are not engaging with these issues. The Commission
seems to be pretty determined to drive these changes through.
We are having real trouble engaging with our counterparts across
Europe to make them understand some of our concerns.
Q34 Chairman: That is interesting
because I attended the EU Audi-Visual Conference in Liverpool—and
nearly lost the will to live after the first day—but there,
as you rightly say, the British position was unanimous, from the
Government, industry and everybody, and yet it appeared to have
no impact on the Commission whatsoever. The Government have since
suggested they think they are making progress in the Commission,
but is that not your impression?
Mr Simon: I think progress is
pretty minimal actually. I spoke to people at Ofcom who go to
Brussels and show demonstrations of websites and say, "This
is the kind of service which will fall under the new definitions.
Do you really want to regulate this?" It looks nothing like
broadcasting or the traditional services. The people in the Commission
or Parliament just say, "yes". I think maybe some very
modest progress has been made, but it is pretty modest at the
moment.
Q35 Alan Keen: In your New Business
Models paper you make the case for extending regulation in order
to stop anti-competitive behaviour. Does Ofcom not provide that
service already? Does Ofcom not already provide, and the other
authorities, what is necessary to stop anti-competitive behaviour?
Mr Simon: For the most part the
position is actually that you should not extend regulation. I
think there is a very, very narrow slither of content where you
could online offer content online which is like a traditional
linear scheduled TV channel and then you would say, on the grounds
of platform neutrality, if it really looks like a TV channel it
should be regulated like such. As this is going to be a very,
very tiny part of the current content delivered online, most of
it is going to be on-demand content and our position is you should
not try to extend the regulations to that.
Q36 Helen Southworth: What impact
are you expecting on the industry from the BBC's Creative Future
plan?
Ms Clarke-Hackston: The Council
has not discussed the BBC's Creative Future so we cannot offer
a view on that, I am afraid.
Q37 Helen Southworth: Do you have
any views on the Creative Archive and the impact that will have
on driving changes in the industry?
Mr Howkins: We welcome the Creative
Archive very much. We have addressed this in our paper on public
access, because we feel that it is a natural and logical way of
the BBC making its programme archive materials more easily available
or, in many cases, available for the first time to the public.
We think the BBC was brave and should be supported in so doing.
We think it started slowly and it will take some time to "get
up to speed", if you like; but we welcome it. We welcome
the chance to see again, listen again and to get access to this
astonishing store of material in the BBC archive.
Q38 Helen Southworth: Do you think
it will have an impact on the way some big aggregate providers
work in future?
Mr Howkins: I have talked with
some other organisations who, in my view, might pursue the same
policy and I have not found many that are so interested in the
audio-visual media world, because they do not have the same public
obligations. In the print world libraries are certainly going
down that route—either making available what they have newly
acquired or digitising their existing stock and making that available.
I think the principle of making available to the public material
that the public has in some way or another already paid for is
an important principle. The BBC has demonstrated that very clearly.
I think the principle should, and I think it will, move into other
areas which I would welcome.
Chairman: I do not think we have any
more questions for you. Thank you very much indeed.
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