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It’s TV, but not as we know it

The EC has drafted new rules for TV transmitted over the internet. But, asks Peter Warren, how do you police what is freely available at the click of a mouse?

The European Commission and the UK are once again set on a collision course. Forget constitutions, euros or Maastricht, this time it’s about something you care about: television, and particularly the future of TV and new media over the internet.

The complex row between the UK government, the Confederation of British Industries (CBI), UK technology companies and the EC revolves around the cheerily named “TV Without Frontiers” directive. It’s a proposed piece of European legislation intended to bring television in line with recent changes in technology.
The name might imply that it will remove frontiers from TV viewing. But there’s another side to the coin: the directive means that anything that appears to be television and travels over the internet is television, and therefore becomes subject to TV regulations. Anything else must abide by four principles: internet content should be governed by regulations that apply in the country it was transmitted from; it should apply minimum standards for the protection of minors; if it contains advertising it must be clearly identified; and content should not include incitement to racial hatred.

Two tiers for TV

Which all sounds very simple, so simple that the EC is utterly perplexed by the determined opposition from UK government and business to the measure, which it claims is the equivalent of deregulating the £170bn European television market.

“The directive has two tiers, one for traditional TV and the other for on demand,” said Martin Selmayr, spokesman for Vivianne Redding, the EC’s Information Society and Media Commissioner. “The UK is claiming there are restrictions – where are the restrictions? We have made a general distinction between push and pull services and have treated video-on-demand and other internet services and downloads with a lighter touch than traditional TV.

“We can’t see anyone having a problem with the rules on internet content, nor do we see a problem with enforcement. The idea that the internet is a lawless place is not true any more. What is illegal offline is illegal online.” And what’s more, adds Selmayr, only the UK and Slovakia oppose the directive. The CBI, however, is unimpressed. “The European Commission seems to be ignoring the fact that opposition to the directive has been signed by the business associations of six other countries,” says Jeremy Beales, the CBI’s head of e-business. “The problem with this piece of legislation is that the EC has focused on television because that’s all that they are interested in. Their motivation is to protect public service broadcasters and the TV industry with a catch-all piece of legislation that could affect huge numbers of websites because of a badly phrased piece of legislation.”

Dangerous dogs

This is at the heart of the opposition to the directive. According to its many opponents in the UK, the directive has been put together with the same amount of thought as the UK’s Dangerous Dogs Act, which was introduced hurriedly in 1991 after a number of vicious dog attacks on humans, but which turned out to be vague and poorly drafted. The new directive, opponents say, is similarly badly considered and paternalistic.

“This is telephone age thinking in an internet age,” says Beales. His sentiment is shared by the Broadband Stakeholders Group, a body part-funded by the UK government to provide information on the internet industry’s concerns. “It’s good that there’s a recognition of what’s happening in the TV sector; where it’s gone wrong is that because IPTV [TV sent over the internet] and mobile TV have not really formed yet, they are trying to regulate something that is not there,” says Vicky Read, an expert on the issue for the BSG.

According to television equipment manufacturers such as Hauppauge, which produces TV cards and TV tuners for laptops, the industry is now concentrating solely on the future mobile TV market. “We are just looking at mobility and people being able to access TV anywhere on mobile devices,” says Yehia Oweiss, Hauppage’s European sales director. “We think that people aren’t just going to be watching the TV everyone thinks of, they will be watching TV their friends make, TV that shops make as adverts and media that maybe only a small group of people are interested in. There will be devices that do both one-to-many and one-to-one broadcasting.”

That will put stress on the UK’s TV licence, which is already undergoing frantic reinterpretation as a result of internet technology. According to a TV Licensing spokeswoman, TV watched over the internet on a PC is still TV; anyone caught doing it without a valid TV licence can be fined. Watching TV on a battery-powered device is legal so long as the person has a licence at home. And you can watch TV if it is broadcast from your home via the internet to a PC you are using. That is, if what you’re watching is TV. And that is the nub of the problem. No one quite knows what TV is going to become, and so there is confusion over what will constitute TV.

The EC legislation is framed to cover anything that looks like TV. According to the BSG, that could even include video blogs on websites. The EC disagrees, but even lawyers are confused. “The whole debate is about ‘what is TV?’,” says Cliff Fluet, a former television lawyer who works for internet law specialist Lewis-Silkin. “This is about keeping an industry alive. Defining what is TV is going to be the real headache.”

Brussels buzzwords

Conscious that some definitions may be slipping beyond its reach, the commission is thinking of a new name for the directive – the “Audio Visual Media Services Directive” – and the proposed legislation has spawned some Brussels buzzwords, such as “linear” and “non-linear” TV. Linear TV is TV as we know it – the schedules of the broadcasters. Non-linear TV is content that we grab when we want it, such as video on demand, music downloads, computer games and anything else we choose at whim from the web. By 2010, according to PricewaterhouseCoopers, that will represent a global market worth £977bn. Where the problem comes is aptly demonstrated by Channel 4, which at the end of last month decided to begin streaming its output via the web. Streaming means its output is linear: it works off a schedule. But towards the end of the year Channel 4 intends to put all of its content on a database, to be available on demand. That’s non-linear.

At the BBC, producers are attending seminars designed to hammer home the message that the corporation does not expect the schedule to exist in six years time. That means that the long-standing idea of the “9pm watershed” (after which violent or sexual material not intended for minors can be shown) will become irrelevant; the material will be available at any time. As, indeed, already happens online with non-television sites.

Theoretically, non-linear material should be governed by the directive’s four rules, but enforcing them will be a challenge for Brussels. In the UK, for a start, the communications and media regulator OfCom privately thinks the proposals are vague and unworkable. “The whole problem is with the definitions,” said one OfCom official. “The EC say they want a light touch but because [the directive] is vague it will be a heavy touch. If you’re a small company, to make sure you don’t get accused of incitement to racial hatred you’ll have to keep tapes of all of your content; that’s a cost. How do we come down on a content producer if material that they produced went out at the wrong time, and to the wrong audience, because its broadcast was beyond their control?”

OfCom, the CBI and others in the UK think that would drive any new generation of TV entrepreneurs out of Europe because of a fear of increased costs. Jeff Pulver, one of the prophets of internet TV, agrees: “This seems like a case of some people waking up to what happened with VoIP [Voice over Internet Protocol] and the threat that is coming from disruptive technologies and trying to stop it, which won’t happen. All it means is that it will encourage the entrepreneurs to go elsewhere.” Pulver says the content will also find a way around any regulations.

That could leave the EC looking at the option any administration tends to find unacceptable: letting the industry and the people decide what they want to watch.

Graham Lovelace, a former top TV executive, thinks that’s what will happen. “I think the public will vote with their mouse. If material is on-demand you regulate yourself. Ironically, all of this means that there could be a new role for the BBC as a moral reference point for people in an uncertain world.”

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Published – 6th of July 6, 2006 – The Guardian