Memorandum by the BBC
1. The BBC welcomes the opportunity to give
evidence to the House of Lords on the review of EU Directive 89/552/EEC
on the coordination of certain provisions laid down by law, regulation
or administrative action in Member States concerning the pursuit
of television broadcasting activities ("Television Without
Frontiers").
REVIEW OF
THE DIRECTIVE
2. The BBC supports the Commission's initiative
in revising the "Television Without Frontiers" Directive
and considers that the Commission's proposal is a good basis for
this revision. The BBC sympathises with the aim of improving regulatory
conditions for advertising funded broadcasters in the face of
challenges posed by interactivity, shift-viewing and on demand
access to broadcast services. Simplifying EU rules on advertising
seems a priority to all commercial public service broadcasters
in the UK and across the EU.
SCOPE AND
DEFINITIONS
3. The BBC supports the principle of extending
the definition of services covered by the Directive from "broadcasting"
to "audiovisual media services". Technological convergence
blurs the lines between different media and makes it increasingly
difficult to draw a clear distinction between different types
of services. This includes the current distinction in EU law between
"broadcast" services as defined in the "TV Without
Frontiers" Directive and "Information Society Services"
as defined in the "e-commerce" Directive. Reviewing
these definitions is a precondition for modernising the Television
Without Frontiers Directive in any of its parts. In particular,
it would be helpful to clarify, in the articles on scope, that
the definition of an AV media service is independent from the
type of network—satellite, terrestrial, cable, mobile, IP—used
to distribute it.
4. However, the nascent new media sector
should not be subject to unnecessary content rules. Regulation
should support the development of new media. The BBC is strongly
committed to contributing to the rapid development of new digital
services, provided both by public service broadcasters and by
commercial media. The BBC and other European public service broadcasters
already play a decisive role in ensuring that new media develop
rapidly and successfully and that users have access to an attractive
mix of innovative quality content on all platforms and through
all access modes.
5. For this purpose it is important that
definitions of covered services are as clear as possible as to
the services the directive intends to cover; that they are accompanied
by explicit exclusions in relation to categories of services that
should not fall under the directive's scope; and that the Directive
includes guidance for regulators to interpret scope limitatively
in borderline cases—err on the side of restrictive rather
than extensive application.
6. In our submissions to the European Union
institutions we have proposed that in addition to "purely
private websites" the list of services excluded from the
Directive's scope should include:
— Activities which are primarily non-economic
(a moderate transactional activity aimed, for example, at recouping
costs, should not automatically be equated with economic purpose).
— Any exchange of audiovisual material
for the expression of personal opinions, in particular services
organising the exchange of user-generated audiovisual content.
— In general, services which do not
have a clear impact on a significant number of members of the
public.
LINEAR AND
NON LINEAR
SERVICES
7. The BBC welcomes the Commission's approach
to regulation in two tiers of graduated intensity, one applicable
to all audiovisual media, and another, more detailed, for linear
broadcast services. User behaviour is changing alongside technology.
Thanks to the proliferation of ubiquitous and portable platforms
and devices, and the growing possibility for time-shifted viewing,
content tends to be used increasingly in a non-linear way. However,
the transition from linear and narrative to non-linear and participatory
services will take time. Linear television channels will remain
at the centre of most people's media consumption for the foreseeable
future. In the coming years regulation will have to cater for
this hybrid, complex media world.
8. The criteria for distinguishing between
linear and non linear services could be clarified. Exclusive editorial
responsibility is hard to identify as the growing number of links
in the media value chain all exercise some degree of editorial
control over the nature of content which is offered (or not) to
the viewer. In the EU debate we suggested a distinction based
on the user's experience rather than editorial control and existence
of a schedule: between synchronous access by many, or on demand
access determined by an individual.
9. Technology and user behaviour are evolving
very rapidly. There are several services already which are hard
to capture in a future-proof regulatory formulation. Others yet
will emerge even before the Directive's review is complete. For
example, computer software can generate personalised schedules
for individual users based on their past preferences. The user
would have the feeling of accessing a scheduled series of programmes,
but no human editorial decision would have been involved in producing
that particular order of content items, other than the user's
own past record of content selection. As the user determines the
criteria for this selection, the BBC has suggested that this kind
of software-generated service should be considered at the same
level as on demand services. Conversely, the streaming or broadcasting
of live events shares the key feature of linear content, ie the
simultaneous watching by an indeterminate number of viewers of
the same content, and this renders live content "linear"
even when a single event is accessed on demand.
SELF- OR
CO -REGULATION
10. We consider that only a limited number
of high priority public policy objectives can be pursued credibly
in the context of on demand services, and then only through full
cooperation between industry and regulators. Self-regulatory schemes
should be the preferred option in addressing public policy concerns
in the context of on demand services.
11. In our submissions prior to the publication
of the proposal we maintained that the context in which users
access services on demand determines a lower requirement for regulatory
protection than in the case of linear broadcasting. Users associate
on demand access with a higher degree of individual responsibility
than traditional television viewing. In relation to on demand
services, binding regulation would be at best premature, almost
certainly ineffective and possibly undesirable.
12. EU institutions and Governments are
discussing the problems involved in implementing a directive through
self-regulatory measures. Self-regulatory schemes for the internet
and the advertising sector in the UK are widely considered to
be effective. BBC suggestions for amendments to the draft directive
include language ensuring that the self-regulation can be used
to implement the provisions applicable to all audiovisual media
services ("Tier 1") as opposed to those reserved for
broadcast services only ("Tier 2").1[1]
COUNTRY OF
ORIGIN
13. The country of origin principle is central
to the Directive's effectiveness in regulating the free circulation
of audiovisual services, broadcast or on demand. The BBC supports
the Commission's proposals to incorporate the effects of jurisprudence
from the European Court of Justice within the Directive's articles
on this matter. We would be concerned at any change complicating,
and weakening the principle of, free provision and free reception
of audiovisual services within the European Union.
PROTECTION OF
MINORS
14. A harmonised approach to protection
of minors across all audiovisual media services can enhance the
conditions for freedom of circulation and reception of services.
Like all the provisions in the directive applicable to all AV
Media Services ("Tier 1"), article 3d should rely on
self-regulatory measures and cooperation between regulators and
industry in each Member State. The wording should be clarified
to ensure that it would be possible for Member States to implement
the article through self- (or co-) regulation and that there would
be latitude to adapt the concept of "seriously impair"
according to different cultures and values, as in the case of
linear services.
RIGHT OF
ACCESS TO
SHORT EXTRACTS
OF EVENTS
OF MAJOR
IMPORTANCE FOR
THE PURPOSE
OF NEWS
REPORTING
15. In the course of the consultation preceding
the publication of the Commission's draft in December 2005, the
BBC submitted that there is no need for the creation of a new
right of this kind, since in most cases code of practice under
the fair dealing exceptions to copyright are sufficient in dealing
with any access problem at national level. It is necessary to
take account of existing legislation and self-regulation on News
Access in Member States—and the possibility of using existing
regulation as a base to address any real problems on news access,
rather than creating a new right. Since this right is now formulated
in the Commission's draft, the language in the Directive's article
should strike a balance between right of information and exclusive
broadcast rights. In the BBC's view, if it is unavoidable to create
a new right, this should be limited to off-air access only, in
respect of footage relating only to events covered by exclusive
rights; such a right should only be exercisable by those who directly
exercise the function of informing the public. The only extension
to that category of beneficiaries of the right should be in wholly
exceptional cases (and we know of none in practice) where for
specific proven technical or practical reasons (eg geographical
distance) a particular broadcaster has no other means of obtaining
access to such footage without making recourse to the services
of an intermediary. In any case, in line with established practice,
access to information does not include physical access to premises
where the event is held.
PROMOTION OF
EUROPEAN CONTENT
16. The BBC supports the objective of promoting
European audiovisual production. The vast majority of content
shown and made available through BBC services is of British, and
therefore of European, origin. The BBC believes that like other
"Tier 1" provisions, the article on promotion of European
content by providers of non-linear, on demand services should
be clarified to ensure its implementation is left to self- (or
co-) regulatory mechanism. This should allow industry to take
account of the objective of cultural promotion at a pace and across
a selection of services which is consensually identified as relevant
and reasonable.
October 2006
1 There are precedents for the coexistence of soft
law with hard law in the same EU directive. Directive 2002/21/EC
on a common regulatory framework for electronic communications
networks and services, for example, contains articles that commit
Member States and the EU institutions to binding action and others,
like Article 18, that urge Member States to "encourage"
certain actions and outcomes subject to review by the Commission. Back
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