Informationoverlord

Ofcom  has published all of the non-confidential responses to its consultation on its market investigation into pay TV in the UK, following receipt of a number of late responses (one of which was from Sky). Ofcom recognised that there are issues raised by the Sky/NGW proposal to replace Sky’s free channels on Freeview with pay TV channels that will inform the market investigation and vice versa. Engagement with stakeholders has confirmed that the issues regarding the Sky/NGW proposal, such as access to premium content, need to be considered alongside the wider market investigation.Ofcom therefore intends to publish a further consultation document on each subject simultaneously by the end of summer 2008.

I think the most interesting thing here is how slow Ofcom have gone on this. It was back in March 2007 when Ofcom said it would look at the Pay TV market - as Sky says, from a complaint made by BT, Setanta, Top Up TV and (of course) Virgin Media. It took Ofcom until January THIS year to consult on it (Sky/NGW proposal was consulted on in Oct 07), and now it is putting off until the end of summer issuing further consultations, pretty much guaranteeing that no action will be taken, one way or the other, until the start of 2009. I actually think that Ofcom is hoping that if it drags thing out long enough that any possible case against Sky might evaporate.

Sky’s attempts to play the victim here, don’t really wash with me either. This is not to say I don’t think they make some valid points, but as with Virgin Media in their battle with Sky over carriage rights, it all sounds just a little to self righteous and arrogant to me. Ofcom certainly do not have it in for Sky, our friend at Rapture TV would certainly attest to that. Whether or not there is a case really rests on the level of importance given the Sky’s power in the wholesale market.

The Association of Licensed Multiple Retailers submission, in regard to pay sports coverage via Sky is interesting. They say: “For this segment of the market, premium sports are exclusively available through one platform and one provider… There is no choice of platform available to commercial subscribers because of BSkyB’s policy on wholesale pricing for commercial services - and in particular premium sports broadcasting - to competing platforms. Subeconomic pricing has seen the exit of cable competitors from the commercial market. Moreover, Setanta Sports is only available to commercial subscribers as a buy-through from Sky’s basic tier service. We believe that this is only the case for commercial subscribers, but the pub and club agreement makes clear that sourcing Setanta via another route will be in breach of the contract.”

This kind of thing is likely to catch Ofcom’s eye more than whinges from Virgin et al. That all said, at the end of the day I actually feel Tiscali get it right when they say in their response “It is vitally important that Ofcom’s focus remains on the facts of the UK market and what might need to be done to protect and advance the interests of competition and thus the consumer, rather than commercial and public conflicts between large companies.”

About six weeks ago I blogged about PhonepayPlus and my dislike of aspects of their website and of their email updates.

Time for an update.

On the 1st of May I got an update email from PhonepayPlus informing me that “The following cases were heard at a meeting of the PhonepayPlus Adjudication Panel on 24 April 2008. The full adjudication will be published on the PhonepayPlus website in due course.”

It listed 4 cases and gave details of the sanctions handed down, in the following manner.
Service Provider: Verisign Communication GmbH
Information Provider: Jamba! GmbH
Service title: Jamster Ringtone Services
Breaches upheld: Misleading, STOP command
Sanctions: formal reprimand, £2,000 fine, a requirement that the information provider seek and implement compliance advice from PhonepayPlus in relation to the cross promotional and rejoin messages

On this day, they also launched a new look HTML format to their email updates, with a link for feed back. So I emailed back and complimented them on the nice new look, but said I would question the value of being told about new adjudications which are not currently available to read on the site, and asked whether I was expected to keep checking to see when they are published? or whether I was going to get another email alert when they’re actually published - so getting to same information again?

I did say that this new version of the adjudication alerts was better, in that it did provide some detail on what the fine was etc, and that it had started to address part of my concerns voiced in a previously unanswered email of (3rd April) which I had expanded upon on in my blog post.

I still haven’t heard back from anyone at PhonepayPlus incidently. Email answering obviously not a priority for our premium rate regulator.

However, Today another email update arrived, entitled, Latest adjudications and reviews.

“The following cases were heard at a meeting of the PhonepayPlus Tribunal on 08 May 2008. The full adjudications and reviews will be published on the PhonepayPlus adjudication database in due course. However, brief summaries of the cases can be found in Recent adjudications and reviews .”

Adjudications
Service Provider: First Sound Ltd
Information Provider: Telebilling Ltd
Service title: T By Telebilling
Breaches upheld: Legality, Pricing Information and Contact Information.
Sanctions: Formal reprimand and £1,000 fine

This links to a page with the latest adjudications and brief details on a page with the information starting at the top of the page with no need for scrolling and further clicks (hurrah!). This is MUCH better. Now, if they could only do this for their full adjudications - have each on its own page with the adjudication starting at the top of the page - I’d be a happy man (indeed link to the full adjudications for these cases from this landing site. Simple)

Bottom of this latest email has news that: “The full adjudications of the Tribunal meeting held on 24 April have now been published on the PhonepayPlus adjudications database .

After all that good work, they go and stuff it up again. This is news that the full adjudications, that were mentioned in the 1st May email, have now been published. In answer to my question, they do not republish the same information in the email, but instead we are back to just being given a link to the databases, and having to do all the scrolling and clicking I complained about in the original post.

If I have clicked on this link, it is because I want to see the adjudications from the April 24th meeting, so I should be taken directly to a page with those on it, and not need to click again (See my point about using the brief details of new adjudications above, to link to the full text adjudication). The email should also state that those 24th April adjudications are actually dated 13th May in the database - as this may also cause confusion that did not exist previously.

So, are things improving? Yes, but there is still a long way to go. Taking 6 weeks (and counting) to answer an email (two weeks since a second one) demonstrates this. Also, when we go back to my original post questions 1 & 2 remain unanswered, as does the question of RSS feeds. I’ll keep watching and waiting for those improvements and for my email (which, if it ever shows up, I may frame).

Ofcom has fined ITV £5,675,000 for what it calls ‘institutionalised compliance failures’ which lead to serious and repeated breaches of the Ofcom code in relation to the use of premium rate interactive services (PRS) in programming on all ITV channels.

It has taken a while for Ofcom to get to this one. After the fines of £2 million for GMTV; (the previous record fine); £1.5m for Channel Four ; and £300,000 for Five; all dished out last year.

The fines against ITV relate to competitions in the programmes Ant and Dec`s Saturday Night Takeaway (£3m fine), Gameshow Marathon (£1.2m Fine), Soapstar Superstar (£1.2m fine), and in repeated programmes (£275,000 fine) where production staff consistently overrode votes, allowed viewers to enter competitions they had no chance of winning, and choose people who would look good on screen or who lived in a particular area, and not at random as claimed in their own terms and conditions. Ofcom also criticised ITV for an inability to provide Ofcom with sufficient data and evidence to investigate possible breaches in ITV’s regional programming, commenting that ITV ‘appeared to have introduced the use of PRS in ITV regional programming with little or no assessment of the associated risks and with poor levels of supervision”.

In arriving at the level of fine Ofcom took into account ITV’s co-operation; the positive measures it had taken to address the problems, including bringing in Deloitte to audit the broadcasters use of PRS; and its pledge to make available £7.8m for viewer compensation and for giving to the Charities Aid Foundation. Ofcom makes clear the fine WOULD have been higher were it not for this (Ofcom can impose a financial penalty on a Channel 3 licence holder of a maximum of 5% of its qualifying revenue, for licence breaches).

What is interesting about the level of the fine (which most pundits and media types last week were guessing would be around £4m) is if we look again at the GMTV fine. That fine was for misconduct relating to its viewer competitions between August 2003 and February 2007. Ofcom found that GMTV was grossly negligent in its disregard for the need to operate any reasonable compliance procedure, verification, oversight or management of the arrangements for the conduct of these competitions, and it seemingly unquestioning and unaudited use of a service provider (Opera Telecom - fined a measly £250,000 by ICSTIS) who had received 22 adverse adjudications from the premium rate services regulator, ICSTIS (now PhonepayPlus), during the time of the contract.

Of course, GMTV is separate from ITV and has a much much smaller qualifying revenue level, which would probably explain why its fine was not greater.

Russ, over at Ofcomwatch, has just received a letter from Ofcom denying his Freedom of information (FOI) Act request to uncover how much money GMTV refunded to victims of its wrongdoing, in that case. Ofcom stated that the information was subject to exemption 44 under the FOI Act and also stated ‘Ofcom have not conducted any follow up and therefore we do not hold any information on this.’

Russ goes on to make the interesting observation that when Ofcom testified before Parliament on 22nd April — and was asked whether it was too soft on GMTV — they said they could provide Parliament with the amounts refunded to victims by GMTV (but not to Russ in his FOI Act request apparently). To be fair, Ed Richards’ reply to whether he knew how much they had refunded was “No, but I am sure we can find out for you.”

Ofcom still has a couple more PRS cases to rule on, but this one is the big one in all senses of the word.  ITV will feel hard done by becuase of the efforts they have made to clean up their act, but Ofcom is being clear that it is willing to use its legal powers if broadcasters show blatant disregard for the Ofcom code and their licence conditions.

Total Web Solutions Limited (TWS) has succeeded in its appeal against a Nominet expert’s decision to transfer its domain name myspace.co.uk to News Corp’s MySpace.

TWS set up the site to provide internet services including email and ‘web hosting space’ in 1995. Social networking site Myspace was set up in 2003, and subsequently bought by News Corp in 2005, with a UK version launched in 2006. News Corp approached TWS to buy the domain and were told it would cost $100,000 - $430,000. In May 2007 they issued cease and desist letter demanding transfer of domain and willingness to pay 220,00 = VAT.

The Panel accepted that as the domain existed before the social network site existed it could not have been registered abusively, so the only question was whether it is being or has been used abusively by TWS. The Panel were satisfied that from about July 2004 the domain name has been connected to one or more revenue earning parking pages hosted by Sedo. They also accepted that any links displayed on the parked pages are done so automatically by a standard software package operated by Sedo.

The panel expressed “grave suspicions” that the use of the parked domain name with advertising links had occurred after the publicity surrounding the acquisition of MySpace by News Corp in July 2005, but it said that MySpace had not proved this to be so. News Corp has “failed to discharge its burden to establish that the date of first use of the page postdated the publicity surrounding the acquisition of myspace”

They concluded that the “just result is to leave it to News Corp to litigate the issue, if it so wishes’ because it is not satisfied on the evidence before it that the domain name is an abusive registration within the terms of the policy”.

‘Cause the man from Mars won’t eat up bars when the TV’s on (Blondie - ‘Rapture’)

Rapture TV has announced it is to appeal the ruling of the Competition Appeal Tribunal (CAT) of 31 March 2008 which roundly dismissed its appeal against an Ofcom decision relating to electronic programme guide (EPG) services. In March 2007, Ofcom resolved a dispute between Rapture and BSkyB, concluding that charges levied by BSkyB for the provision of EPG services between November 2005 and November 2006 were fair, reasonable and non-discriminatory. In May 2007, Rapture appealed the decision to the CAT, claiming that Ofcom did not conduct a thorough investigation and defined the scope of the dispute too narrowly. In November 2007, the CAT granted Rapture`s application for permission to amend its original notice of appeal.

Now, Rapture seeks to appeal the CAT decision claiming they were unable to submit new evidence that came to light too late for the initial appeal notice (presumably the one, as amended). This is the same notice of appeal that the CAT described as lacking in `clarity, precision, and particularisation`, in a case, where it found Rapture`s claims to be `ill-founded` and `misconceived`.

According to Rapture’s website, the appeal will argue that Rapture TV believes that BSkyB is charging excessively high fees for the supply of an EPG service on the Digital Satellite platform which include costs that are nothing to do with the cost of supplying a technical service.
Rapture argues the Ofcom was wrong to base its whole dispute investigation on a confidential ‘Sky Platform Model’, which neither separates the technical costs and is not up to date and has not been independently verified. Rapture believes that this fact leaves the burden of proof on BSkyB to prove that its technical costs are economic and do not include costs for non technical services. The Rapture Appeal ruling laid the burden on Rapture to prove that the costs were too high but with out access to the Sky technical costs this was an impossible task.

The problem for Rapture is that the CAT addressed this issue in its ruling “Rapture did not apply in this Appeal for disclosure and inspection of the Sky Platform Model. It made its submissions without having seen this Model. Without having done so there is a lack of foundation for its submissions which purport to address the Sky Platform Model and the use which OFCOM made of it.”
It also pointed out that Rapture could have, but choose not to, place further evidence before Ofcom when it was conducting its original investigation “Rapture had sufficient opportunity to place before OFCOM such information as it considered relevant to OFCOM’s determination of the dispute. Rapture cannot now complain if there was further information which was relevant but which Rapture did not provide OFCOM. In any event Rapture has not sought to identify or put such information before this Tribunal or shown its relevance. Rapture’s assertions are bald and devoid of particularity.”

I do hope Rapture’s David Henry has unearthed some hidden gems in this case - I do have some sympathy with his position - but legally thus far he has failed to even land a punch, never mind a knock out blow to either the soundness of Ofcom’s decision, or as to the question of whether or not BSkyB supplies the EPG to all parties on a Fair Reasonable and Non-Discriminatory basis. In reality, I see little chance of his company coming out in top in this case.

The Welsh blogger who was found guilty of posting a grossly offensive and menacing message has picked up a bit of coverage.

Mold magistrates fined Gavin Brent £150 (plus £364 costs) for a blog post found to be in breach section 127(1)(a) of the Communications 2003 Act, which makes it an is an offence to send over a public electronic communications network a message that is “grossly offensive or of an indecent, obscene or menacing character”. [most of the coverage including the BBC’s say that “Brent was prosecuted under the Telecommunications Act, relating to the sending of an electronic message.” I’m presuming this is an error, as the relevant section of the Telecommunications Act 1984 (section 43(1)) was superseded by section 127(1)(a) of the Communications 2003 Act, which makes it an is an offence to send over a public electronic communications network a message that is “grossly offensive or of an indecent, obscene or menacing character.”]

Brent, who it seems from the coverage is a petty criminal, had been charged with several offences and had vented his anger on his blog at his treatment by local police, and his annoyance at one officer who was absent for the birth of his baby. He ended his post with the P.S. “D.C. Lloyd, God help your new-born baby.”

Now, Brent claimed that what he was trying to convey was that he been mistreated and hoped the officer would not treat his child the same way. He admitted on reflection that he could see how the Officer and his wife could interpret the line as a threat against their new born child, but re-iterated that “their interpretation is different to what I intended.”

However, according to magistrates, any reasonable person would find the words about the baby to be menacing in the context of the overall blog.

This serves as another warning that you do always need to be careful about what you say on your blog. In this case, I have no doubt that - despite his anger - Mr Brent meant nothing more than I feel sorry for your new kid having you as a father. But, it is also easy to see how, had you been the officer in question (and his wife), the interpretation of the comment could be taken as being less than harmless.

These days when you see a headline that reads B’caster fined over gay depiction, you’re not expecting to read on and find that the broadcaster in question was fined for ‘promoting’ homosexuality; but that’s what an article in Daily Variety says. It seem that Singapore’s media regulator, the MDA have fined state broadcaster MediaCorp’s Channel 5 $15S,000 (US$11,040) for broadcasting an episode of home decorating series “Find and Design” which was found to have normalized and promoted a gay lifestyle.

Under Singapore law, gay sex is deemed “an act of gross indecency,” punishable with a maximum of two years in jail, and promoting homosexuality is also a breach of section 5.2 of the MDA’s Free-to-Air TV Programme Code which states: “Information, themes or subplots on lifestyles such as homosexuality, lesbianism, bisexualism, transsexualism, transvestism, paedophilia and incest should be treated with utmost caution. Their treatment should not in any way promote, justify or glamorise such lifestyles. Explicit depictions of the above should not be broadcast.”

The fine was issued due to this being a repeat offence by the broadcaster.

This fine also follows $10,000 fine handed out to pay TV operator Starhub, for a TV commercial for Olivia Yan’s single and new album ‘Silly Child’, which contains a scene in which she kisses actress Pei Lin, which ‘ romanticised scenes of two girls kissing were shown and it portrayed the relationship as acceptable. This is in breach of the TV advertising guidelines, which disallows advertisements that condone homosexuality.’

The public domain is not merely a graveyard of recordings that have lost all value in the market place”

The latest issue of European Intellectual Property Review has a solid piece by Natali Helberger, Nicole Dufft, Stef Van Gompel, and Bernt Hugenholtz and the push by the music industry for an extension in the term of copyright protection for sound recordings.

Those regular readers of this blog will know this is one of my hobby-horse topics.  The article, which takes the same view as I do on such things (so, yes it is preaching to the converted rather than the Industry, Sir Cliff, and Music Week) argues that there is no valid reason for increasing the current level of 50 years.

Indeed, the article even manages to remove the view I had previously held, as espoused by EU Commissioner, Charles McCreevy “I have not seen a convincing reason why a composer of music should benefit from a term of copyright which extends to the composer’s life and 70 years beyond, while the performer should only enjoy 50 years.” (although even here, I wanted to see both reduced).

According to the article, “unlike the exclusive rights that are granted to authors, i.e. the creators of literary, musical or dramatic works, the objectives for granting related rights to sound recording producers are exclusively of an economic nature, not of a social or moral nature.”

The right is there to provide incentives to produce new recordings by allowing those producing the sound recordings to recoup the investment needed to make the recording in the first place. Given that most sound recording recoup their investment within months or the first couple of years, and that if one hasn’t done in 50 years, then it is likely that it never will, the authors argue that it is hard to justify calls for extending the protection of this ‘temporary monopoly’.

A further good point made is that up to 95% of the music industry’s back-catalogue material remains in vaults gathering dust, as only a very small percentage of material is still generating commercial value after 50 years.

The authors conclude by commenting on the usual rally call - made by the likes of Sir Cliff Richard - that the protection needs to be extended to allow poor musicians to continue to receive sound production royalties for longer to keep them off the poverty line. As they have already established that most recordings have no commercial value after 50 years, the number of performers this would actually benefit is questionable. The authors have a better idea. “If the legislator would want to improve the situation for all performers, the more sensible and effective thing to do would be to scrutinise the contractual terms between performers and music publishers and phonogram producers rather than extend the term of protection of sound recordings for the benefit of only a few”.

A recommended read.

[2008] E.I.P.R  Issue 5 - Never Forever: Why Extending the Term of Protection for Sound Recordings is a Bad Idea.

This week’s issue of the Lawyer doesn’t make great reading if you’re an IP or TMT associate. Or at least that is what you might think from the headline ‘IP and TMT associates left behind in a promotion round to forget’.  Closer reading of the article itself, which is almost 100% focused on IP lawyers in its examples and quotes, finds the Lawyer concluding that the credit crunch has meant firms have been restricting access to partnership for those in IP/TMT practice areas. As I work for a bunch of TMT (we call it CMT) lawyers, this article caught my eye, but, in the end the headline was more interesting than the piece itself. Added to which, it includes a table of IP/TMT partner promotions by firm, over the last three years. According to the table we (Clifford Chance) haven’t promoted/made up any TMT associate(s) to partner in those years. This may come as a shock to André Duminy, who became a partner in the CMT Group of CC in 2007.

Bond Pearce take a look at how the Electronic Communications Code and communications providers ‘code powers’ can effect landowners, and concludes that landowners need to be aware of the protections afforded by the Code, both before entering into any form of agreements with telecoms operators.

The Code enables network providers to construct infrastructure on public land and to take rights over private land, with the consent of the landowner or approval from the County Court,
or the Sheriff in Scotland. It also conveys certain immunities from the Town and Country Planning legislation in the form of Permitted Development.

Despite how this sounds, the Code and the issue of code powers is not one that is written about that often. Indeed the last law firm I know that did so was Charles Russell, back in 2005.

For those interested in who has ‘code powers’ in the UK, Ofcom has a full list here