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Tuesday, October 17, 2006

UK Fighting the Good Fight
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For the last several weeks, UK Ministers led by Broadcasting Minister Shaun Woodward have been reaching out to EU member states seeking a compromise on the proposed Television without Frontiers (TVwF) directive. The outreach by the UK ministers is driven by a fear that broadcast-like regulations will be extended across the Internet, even to an individual's rugby match home video. The effort comes as Ofcom has released a substantial study by RAND Europe raiding serious concerns about TVwF.

European Commissioner Viviane Reding, the woman behind TVwF, has previously dismissed concerns about individual video bloggers, saying they are not a target of regulation. She has also said that she has no intention of regulating the Internet.

Yet she also makes clear that TVwF will direct EU member states to pass laws regulating online content involving hate speech and protection of children, not to mention advertising. This is a difficult circle to square.

As mentioned in a recent paper of mine PFF published called "Do's and Don'ts for Global Media Regulation: Empowering Expression, Consumers and Innovation," part of the problem is that Reding and her supporters are trying to make a distinction without meaning. In TVwF, there are two tiers of regulation. One applies to "linear" services such as broadcasting, the other to "non-linear" services such as Internet postings or video-on-demand.

Let's look at this distinction for a minute. First, let's take the BBC, a broadcaster that is aggressively embracing the Internet, in my opinion because it needs to show UK households the added value they're getting from the mandatory TV tax that funds the service. Their over-the-air broadcast clearly is linear. But the BBC is putting their programming online in an on-demand format. That is non-linear. When the BBC News is filmed, then, it is both linear and non-linear, depending on whether or not someone watches it live on TV or later on the Web. But what about TiVo? If I record BBC over the air and watch it later, that is non-linear, because I have time-shifted it and watched it on demand. But I'm watching the broadcast signal captured in a box. So is a TiVo box a linear device and a computer a nonlinear device? What if I watch a stream of the BBC News online live? Wouldn't that be linear?

Woodward's concern is the video hobbyist. There certainly are a lot of people expressing their creativity through home video now, and Google obviously thought it was a big enough phenomenon that it committed more than a billion and a half dollars in stock in buying YouTube. So let's take another example, this time the coach of an amateur rugby club whose brother films a match.

If he posts it to a personal web site, Reding would likely call that non-linear. But what if there is advertising on there? What if the audio of the match contains some not-so-PC shouts from the crowd? Even if it's non-linear, the EU member states implementing TVwF would have grounds to act. What if, instead of posting to a personal web site, the coach's brother posts to YouTube? And further, what if YouTube develops a subscription service where any rugby video will be "pushed" to you, an attempt to compete with myriad other video services that are now hoping to steal YouTube fans disillusioned by it "selling out"? What if a mobile phone operator packages that viedo to send out to rugby fans over video-enabled phones? And what of the services and sites we haven't even thought of yet? After all, where was YouTube a year ago?

In fairness to Reding, she firmly believes such video producers have nothing to worry about:

This provision provides that, to qualify as an "audiovisual media service", the following six conditions must all be filled:

- It must be a Service as defined by the Treaty

- Having as its principal purpose

- The delivery of moving images with or without sound

- In order to inform, entertain or educate

- Addressed to the general public

- By electronic networks

As Recitals 13 to 17 of the amending Directive further explain, this notion covers mass media in their function to inform, entertain and educate, but excludes any form of private correspondence, such as e-mails sent to a limited number of recipients or private web-logs.

The overwhelming majority of blogs would not be covered by the Directive because they would not respond to the six cumulative criteria recalled above: in particular, the following would not be covered: private websites or blogs of a non-commercial nature; Blogs that do not have as their "principal purpose the delivery of moving images". This would exclude for example, a blog put up by the local village football team, even if it is sponsored, for example, by the local building firm.

So apparently the coach's brother can post the video and run ads, but he better make sure most of the site contains non-video elements. Not sure how that will work for the latest blogging trend, vlogs. Perhaps that trend won't take root in Europe. Why should it matter how much video the coach's brother posts? Also, what other purposes can a video have other than to inform, entertain or educate (to bore, perhaps?), and what is the difference between inform and educate?

So far only Slovakia has endorsed Woodward's legislative compromise. To be honest, without further detail I'm not sure I can endorse it; I think I'd prefer TVwF simply be abandoned. But anything less restrictive than the current proposal is preferable to the current proposal being adopted by the Parliament and implemented by EU member states. The time is now, however, as numerous EU committees are examining the proposed directive and will begin releasing proposals soon.

Modern Europe has embraced to a large extent the nanny state that Hayek warned against in "The Road to Serfdom" (although his target audience for that book was the UK intelligentsia, and it appears that nation has resisted nannyism better than its continental compatriots). But the irony here is that TVwF is part of the EU's Lisbon agenda, a goal to catch up to the US in productivity by 2010 through embracing the digital world. Imposing burdensome regulations on new media in Europe will only serve to retard economic growth and productivity, continuing the stagnation that continent has endured throughout this decade.

UPDATE: The 463 blog, which has written extensively on TVwF, chimes in with a good summary of the latest developments. Buckle yourselves in, we're going to be on this ride for awhile.

posted by Patrick Ross @ 11:42 AM | Free Speech , Internet , Mass Media

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The threat is that the revised "Television Without Frontiers" Directive legislation will create legal uncertainty because it directly overlaps with other legislation (currently in place within each member state) and is to vague to establish clear direction. Furthermore, self-regulation schemes should be encouraged instead of more regulation related to the broadcasting and advertising scope of new interactive services. Currently there is no industry standard for advertising on emerging platforms such as video content and video on demand – will the new legislation establish limits before the market can determine the best balance between user experience and monetary contribution?

It is a matter of Dark Matter Politics when regulation ordained by the European Union preludes the opportunity for the market, through testing and self regulation, to determine the best way of managing new emerging technologies. Furthermore, the Audiovisual Media Services (AVMS) Directive may not only stifle the growth of interactive content in Europe but take precedence over the choices and legislations of each member state.

Posted by: The Dark One at October 17, 2006 4:27 PM

Great comment. Of course, the tensions you mention between member state laws and the EU are inherent in any EU directive, and invite all sorts of opportunities for mischief, rentseeking and inefficencies.

Posted by: Patrick at October 17, 2006 5:39 PM

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