Examination of Witnesses (Questions 180
- 199)
TUESDAY 6 JUNE 2006
MS DEBORAH
TONROE, MR
TIM LORD,
MR HAMISH
MACLEOD,
MR NICHOLAS
LANSMAN, MS
CAMILLE DE
STEMPEL AND
MR JAMES
BLESSING
Q180 Mr Hall: Why are you sceptical
about that?
Mr Lord: Because at that time
there will already be many ways of delivering content to a mobile
device, so you might get demand for high-definition television.
Mr MacLeod: Exactly, and it is
a long way away; well, it is not a long way away, but really we
need to focus on what we are doing today, and when the time comes
we want it to be a fair and open process. I think that is all
we are asking for.
Q181 Mr Hall: What about bringing
the timescale forward, because there is a worry that people will
be watching mobile televisions in 2012 around the rest of the
world but we will not be watching the Olympics here in London,
in the Olympic zone?
Ms Tonroe: We are already watching
mobile TV; we can watch it on 3G. If we had the content available
for the Olympics, I would more than gladly put that over the Orange
network. The only thing that is hampering the development of mobile
TV is content. We do not have to be the only country in Europe
not able to watch the Olympics.
Q182 Mr Hall: Basically, would you
like to see Ofcom bring forward the timescale for decisions on
the spectrum?
Mr Lord: As I said, we can already
deliver TV to users.
Q183 Mr Hall: You are relaxed about
this?
Mr Lord: We are quite indifferent
to that actually, other than the fact that I think it is going
to torture a lot of people who find technology difficult to make
them move to digital television services quickly, and that is
a serious problem.
Mr MacLeod: I do not think we
have a common industry position on that one, but they have set
out their timescale, let us not lag anyway.
Q184 Mr Hall: You would not want
to see any slippage?
Mr Lord: In Europe, DVB-H spectrum
in those areas is going to become available quite soon, so it
is going to be a bit embarrassing and difficult because you will
see the launch in other parts of Europe of DVB-H on the current
analogue, terrestrial broadcast spectrum, so the UK will have
to watch it from afar. I think the reality of it is that there
is just not any space in the UK until you do switch-off, and because
the switch-off is staged geographically it is very unlikely to
be commercially acceptable to do a partial geographic service.
I think that will be a difficult thing in the UK, as you watch
those things happen elsewhere, but it is not clear to me that
we have actually got [spectrum for DVB-H].
Q185 Philip Davies: Can I ask you
what your position is on the proposed revision of the Television
without Frontiers Directive?
Mr MacLeod: I think we are very
much in line with what Ofcom has said, concerning the Television
without Frontiers Directive, in that the European Commission are
trying to extend the scope way, way beyond what they need to or
what is appropriate. It is going to set Ofcom, I think, an impossible
task, as far as regulation is concerned, and I just think that
the approach is wrong; that is for what they call the non-linear
side, the online environment. I think in the linear environment
broadly we are happy with the relaxations that are happening.
I think there are some tweaks to think about, because some of
the rules of advertising around broadcasts may not quite read
across into mobile, I think this one about you cannot put out
an advert, the thirty-five minutes rule, but mobile users, on
the whole, are not watching a programme for thirty-five minutes;
so those sorts of things you can tinker with around the edges.
Q186 Philip Davies: How confident
are you that the Commission will take note of your concerns, of
these concerns, and actually respond to them; or is your feeling
that they are going to press ahead anyway? Have you got a feeling
for that?
Mr MacLeod: It is hard to say
at the moment. Obviously, the Government are at the forefront
of doing the negotiation and they do indicate to us that they
have set out their position very clearly and there are other countries
which are starting to see what they mean. In many instances we
are much further ahead in the development of the new media platform,
so it is more real for us. They do indicate that there are signs
of change but we will just have to see, I think.
Q187 Philip Davies: Are you happy
that the Government is doing enough to represent your particular
concerns?
Mr MacLeod: Yes, I think they
are, and Ofcom, so it would be good if the Committee could support
them.
Q188 Chairman: This is an issue which
affects you in certain ways, obviously it affects the ISPA in
different ways, but equally very important ways; what is your
attitude?
Ms de Stempel: Actually, we have
a pretty similar position. We were very supportive of the UK Government's
position, and the UK Government officials have also asked us to
reach out to our international partners to highlight maybe some
of the concerns that we have, because I understand that in other
countries, including my own, it might not have been taken as seriously
as it might have. Our main concern is that we do not understand
why there should be an extension, the definitions are terribly
vague, we have a lot in place already for the protection of children,
protection of minors, and it seems that it is not practicable
to implement such a Directive.
Mr Lansman: Actually, industry
at a European level has been working closely together; certainly
EuroISPA, which is the European Federation of ISP Associations,
has been working, indeed mobile organisations, GSN, and so forth,
in Brussels. We have been putting these arguments very effectively
to the Commission, but to a certain extent there is a little bit
of a brick wall facing us, despite the UK being very much supportive
of trying to counter these proposals, certainly the DTI, DCMS,
Ofcom, but we are lacking support from other Member States, and
that is the big problem at the moment. I think Slovakia, and one
other small country, also is not convinced. If I give you just
one example of the type of level of detail that this could impact
on, you may be aware of things like animated images in the internet,
they are called animated gifts, that is the detailed type of thing
that would now be regulated. It is getting into such a level of
detail that there is a danger it could slow down development of
the internet, e-commerce, on the mobile side and the internet
side. Normally the UK can see it actually as being an enhancer;
indeed, as my colleague Camille said, generally the concerns,
things like protecting children and minors, are already in place,
so support from your Committee would be very useful.
Q189 Chairman: Recently I heard Commissioner
Reding give a speech on this matter, where she began by emphasising
how she had absolutely no wish or intention to regulate the internet;
she then spent the next 20 minutes describing precisely how she
intended to regulate the internet. The UK Government is absolutely
at one with you on this, but having been to the Liverpool Audiovisual
Conference we appear to be in something of a minority. What happens
if we lose this battle, which it appears we may well?
Mr Lansman: I think, obviously,
it would be nice to go out firstly with a policy of continuing
to fight the battle, so that this Directive is not required. There
is some time away, obviously there is a whole lot of negotiations
based in the European Parliament, under the Council of Ministers
level, and I think, before we start admitting defeat, we have
to keep arguing the case. I think the cases that we are putting
forward are very cogent, and hopefully will be heard and understood
by the other Member States, but I think it is one of education.
I do not think the other Member States are actually against, I
just think they have not got to grips with the technology in the
same way as in the UK perhaps we have.
Chairman: The rest of Europe does not
understand it yet.
Q190 Rosemary McKenna: We will leave
that one. Can we move on to copyright infringement, please: what
steps do you take to discourage this, and do you take any steps
to educate your customers about illegal downloading?
Ms de Stempel: Yes, we do. I work
for AOL and, for example, we launched a campaign called Play Legal,
where we were actually showing people what it is, where is the
legal music, where it is, how they should consume music, why it
is important that they should consume music that they pay for.
We try to facilitate the availability of music to our consumer
by having deals with the music recording industry and making sure
that we direct people to legitimate content. A while back, it
was very easy to find illegal content and not so easy to find
legal content to consume, and I think that we have worked very
hard to try to direct people to where they can consume legitimate
content.
Mr Blessing: A lot of ISPs make
sure that if they get any notices from copyright holders it is
forwarded to the responsible contact for that particular connection.
In a lot of cases you get a worried parent on the line, saying,
"Are you taking me to court?" That is a good point for
the education, saying, "No, we're just telling you, somebody
using your connection has been doing this; you need to investigate,"
and we tend to see very few repeat offenders when that happens.
Q191 Rosemary McKenna: There is such
a lot of work going on in stopping access to child pornography;
cannot that technology be used to assist in preventing copyright
infringement?
Ms de Stempel: Blocking technology
does exist and it is possible to block websites. What it is not
possible to do is decide what is legal and what is not legal.
As ISPs, we cannot decide "This website is legal," or
"This website is not legal." It is very clear in the
case of child abuse images that it is an illegal image, and the
ISPs are not deciding whether it is illegal or not, the IWF decides
that a particular website contains illegal content which is illegal
for us as well to possess, which is quite a different position.
Mr Lansman: Can I make just a
couple of points. The ISPA is a self-regulatory body; it represents
the industry and has a code of practice and part of its raison
d'être is to promote the internet industry but also
encourage our members to not condone any illegal activity. Infringing
copyright is not supported by ISPA in any shape or form; however,
there are problems if those companies which are providing internet
connectivity then have to police the internet. I think my colleague
Camille was right in saying there is a big difference between
the Internet Watch Foundation being able to interpret the law,
the Child Protection Act, and what is illegal in terms of child
images. It is much harder to decide if something is infringing
copyright, and it can take courts' and judges' time to make the
decisions. However, it has to be said that as soon as a UK ISP,
certainly a member of ISPA, receives a court order, saying "This
particular content is an infringement," it will be removed,
and that does happen on a regular basis.
Q192 Chairman: The example that we
heard about, 45 minutes ago, of the site in Russia, which is now
making available large amounts of music illegally to people in
this country, you would bar access to that if asked to do so by
a court?
Mr Lansman: If a court told us
to bar access to it, I think that would be a very different thing
from a letter, which we do get, from solicitors, maybe in the
US, saying "We think this is infringing contents on your
network." I think if it can be proved that the content is
on an ISP's network and a court order comes in then it can be
removed. I think it has complicated the situation for all content
which is not hosted, and this is where we rely on the E-Commerce
Directive, and indeed the UK regulations, to help grow the e-commerce
area but also give a clear guide to internet service providers
about what you can and cannot do. Within these regulations are
elements to say that if you have control over that content, in
other words, if it is on your network, or you host it, and you
are made aware of it then you have to remove it. Therefore, it
does give ISPs a defence for content which is not under their
control, in other words, it goes between, say, a customer of an
ISP and a third party that is something outside of the control
of ISPs.
Q193 Chairman: If it is a case where
very plainly a site, like the Russian one, is making available
material which is quite obviously in breach of copyright, you
do not feel that you have any responsibility to take action unless
a court should intervene and tell you to do so?
Mr Blessing: There is a slight
problem there, that actually it has not yet been decided by a
court that it is illegal. Some people are saying one thing, the
owners of the site are saying the other, so as an ISP we do not
know which side to believe. There are cases where this happens
a lot.
Q194 Chairman: Would you go to the
owner of the site though, let us say, the site in Russia, if you
had a complaint that this is simply a way of distributing illegal
material, would you go to the owners of the site and say, "Can
you show us that this is not the case?"?
Mr Blessing: No. We would forward
it to the internet service provider which provides service to
that company.
Mr Lansman: I think part of the
problem that British Music Rights has explained is dealing and
finding who is the culprit, which is the organisation or company
in Russia, for one; getting assistance from the Russian authorities
to take this as a very serious issue is quite complicated. It
has to be said that the ISPs would face the same complications
if they were part of the equation; but ISPA is very strong on
saying that if there is illegal content or infringing copyright
that is in the UK and we receive a court order it will be removed.
Q195 Mr Evans: Why do you not just
do it? You know that this site is distributing illegal stuff:
just do it?
Mr Lansman: You say that. I am
not going to dispute whether this is very clear or not. There
is a whole range of different content that someone might decide
is illegal or not, or infringing or not, and I think it would
be very difficult to make a decision on one example. There are
lots of complaints which come in from very different audiences
saying that certain content is illegal, but also it depends on
jurisdiction, it depends on the interpretation, but I cannot comment
on this particular case as I really do not know very much about
it. You are saying that indeed it is very clear, and I am sure
you are right, but you have to rely on courts. It is not for ISPs
to act as judge and jury, or indeed I am sure my colleagues from
the mobile sector will make the same claim, that it is not up
to the intermediaries to decide what is legal or not illegal.
Q196 Chairman: But you do in the
case of child pornography?
Mr Lansman: In the case of child
pornography, the self-regulatory body, ISPA, has helped, with
other bodies as well in the industry, including the mobile organisations,
to set up the Internet Watch Foundation. It is a self-regulatory
body, it is funded by the industry and we rely on the knowledge
and expertise of the Internet Watch Foundation to send out notices
to the ISPs to say, "This is illegal." The differences
are two-fold. One is that it is easier to interpret what is illegal
in terms of child abuse images than lots of other areas, including
defamation and racism, and so forth, that is very clear, and we
do rely on the Internet Watch Foundation to do that.
Q197 Chairman: Would you consider
setting up a copyright watch foundation, as a self-regulatory
body?
Mr Lansman: That has been tried
and it did not succeed, for a variety of different reasons, partly
because of how to interpret, without a court and a judge having
to spend a lot of time dealing with it and going through the minutiae
of the detail, to make that decision. Again, it is very difficult
for ISPs just to accept the view of a body like that on issues
like copyright, and it is not just copyright, it is also defamation,
because you have two voices, you have someone saying "I have
been defamed," and someone saying "No, that was a fair
comment." The same applies for copyright. There are cases
where copyright is clear, and I think Camille has spoken about
cases where ISPs are in dialogue with rights holders to try to
sort out these problems. This is a new area for the rights holders,
as they admitted, it is also an area that is very complicated
for ISPs, because they do not want to take on this pretty onerous
liability; but I think what we will see is more and more dialogue,
and hopefully innovative ways to solve these issues.
Q198 Chairman: Just before we finish,
I promised Hamish that we would come back to the issue of new
media rights; it is clearly of great concern, but in the argument
which is raging between where the rights should lie, broadcasters
or producers, is that something which matters to you, or do you
just want it resolved one way or another?
Mr Blessing: As long as it is
legal.
Q199 Chairman: It affects both of
you; let us start with mobiles?
Mr Lord: It has genuinely impacted
a number of times on our negotiations, that we have done a lot
of work to, say, put up a new bit of content that we are very
excited about, that we think consumers will like, and at the last
minute we have to pull it because some broadcaster, or somebody,
goes "Oh, we're not sure we've got this cleared." It
is a real problem and it is a real barrier to new services and
to kick-starting this market. We have not come down on one side
or the other, we have just said "We'd like it resolved clearly,
so that we can get on and do our job," as it were. It is
depressing, because I think that while this fight goes on an opportunity
is being missed.
Mr MacLeod: I think one other
point is to try to avoid false distinctions between we are putting
it out over cable or putting it out over satellite, we are putting
it out over the internet. Essentially we are putting out the same
programming over a mobile platform; why you are suddenly carving
this out and treating it differently seems odd.
Mr Lord: A lot of the distinctions
do not really add up. Sky has bought the rights for all simultaneous
transmission on television and mobile, and it does not matter,
and they need that and we understand why they need it, and yet
we have not got the same kind of clarity for all we need to buy.
Ms Tonroe: I will correct myself
on the World Cup. If you want to watch the World Cup on your mobile
'phone, you have to buy a data card and put it in your laptop,
or then mobile, and watching the World Cup over the internet,
so you can do it but just not with a 'phone like you have got.
It is a false distinction.
Mr Blessing: I agree completely.
We are not really too much involved in it. It comes down to is
it legal content or not; if it is legal then the problem is solved.
We would like someone else to solve the argument between the broadcaster
and the publisher, and so on.
Chairman: We have the producers and the
broadcasters appearing two weeks today, so we will try to do it
for you. Thank you very much indeed.
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