Informationoverlord

‘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

A few weeks ago I posted on the ongoing dispute over Ofcom’s sitefinder database. The website shows the location and characteristics of mobile phone base stations that use the GSM, TETRA and UMTS(3G) technologies. On 4 September 2007, following a Freedom of Information request, the Information Tribunal upheld a decison by the Information Commissioner that Ofcom must supply the full Sitefinder dataset to parties who request it, including the names of operators, locations and power levels of all mobile base stations.

The Mobile operators - in particular, T-Mobile - and Ofcom were none too pleased about this, arguing that it breached their database rights, IP rights, and would leave the mobile operators’ base stations open to vandalism and possible terrorist attack. So they took their case to the High Court.

Sadly for Ofcom, the Court could find no fault with the ruling of the Information Tribunal. The Court held that the Tribunal had not erred in law in finding that the public interest in maintaining the exception (12(5)(c) of the Environmental Information Regulations 2004, which states that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect intellectual property rights) had not outweighed the public interest in disclosing the information.

3, O2, Orange, Vodafone, Airwave and Network Rail recently resumed the voluntary supply of data for the database to Ofcom at approximately three month intervals. T-Mobile has continually refused to do so since 2005. Ofcom did not say whether or not it intends to appeal the ruling further.

I don’t see Ofcom taking this further as the Court were clear that in “all the circumstances, the tribunal had not erred in law”.

Still catching up on a few items I missed last week due to illness, and I’m pleased to see that the ASA and Ryanair have renewed their ad warfare.

You may recall a couple of months ago, I quoted Ryanair’s Peter Sherrard, who called the ASA ‘absurd, silly asses’. In my post at the time, I made clear who I thought the ass was, in that PR ‘toys out of the pram’ exchange. Well, last Wednesday, the gloves really came off, when the ASA found yet another Ryainair ad misleading and referred the low cost airline to the Office of Fair Trading (OFT).

On this occasion the ASA upheld complaints against a national press ad, in which Ryainair offered flights from £10 (inclusive) including travel Mon-Sun. When asked reply to the complaint that flights were not available for Friday and Sunday travel, Ryainair sent two booking forms from customers which showed they had both booked flights for travel on Friday and Sunday. However, according to the ASA, when asked to provide details of the percentage of the £10 flights that were available for travel on Fridays and Sunday, Ryanair refused to supply that information. The ASA therefore concluded that the details of the two booking forms provided were not sufficient evidence to show sufficient quantities of flights were available for those days, and therefore the ad was misleading.

In addition, they decided that “Through misleadingness and unfair comparisons Ryanair has repeatedly breached the CAP Non-broadcast Advertising Code, which is designed to protect consumers and promote fair competition. Over a two-year period the ASA has formally investigated complaints about Ryanair’s advertisements and found them in breach on seven occasions. Separately, the ASA has also found Ryanair in breach of the Broadcast TV Advertising Standards Code”.

Ryainair has, in turn, submitted a formal complaint against the ASA to the OFT regarding “the unfair procedures, bias and factually untrue rulings”, and in the current case claims to have offered to provide details of over 10,000 flights booked on Fridays and Sundays to the ASA, which the ASA refused. They believe the ASA has it in for them.

Ryanair’s press release states “Ryanair has today published its complete correspondence with the ASA in this latest complaint”. I would link to this, but I could find no sign of this correspondence on their website. I was going to email them and ask where it was, but Ryanair don’t seem to be too keen on putting any email addresses on their website either. [If anyone from Ryanair is reading this , please post links to the docs in the comments section. Thanks]

So, it is now over to the OFT to decide what to do.

What will happen? Well, I do have some sympathy with Ryanair over a few of the decisions against them; however, usually by the time the ASA makes a ruling the ad campaign has finished, so the message (misleading or not) has already gotten out there and had its effect. This makes Ryanair’s ‘we are being bullied by the big bad ASA’ line - including dishing out abuse to the ASA and those on its council, whilst still complaining to the ASA about other people’s ads - feel like what it is …. attention seeking.

Actually, just reading the Ryanair press release again, where it lists the ASA’s blunders:

“Ryanair’s “Robbed by last minute.com” advert where the ASA ruled that a last minute.com handling charge of up to 100% per ticket was not “a rip off”.”

Compare this with the text from the actual ad - quoted in the adjudication, which read “IF YOU BUY A RYANAIR TICKET THRU AN ONLINE AGENT YOU’RE BEING RIPPED OFF… *THEY OVERCHARGE BY 100% OR MORE”

Now I’m making no comment, but it is funny how “100% or more” has already become “up to 100%”

Hard to say which way the OFT will go on this one, as I do believe in some of the cases the element of misleading was not as blatant - nor as obvious as that employed by almost all advertisers. That said though, and even if the Correspondence says what Ryanair claim, the ASA would have known that it would come out, and they still took a step that they have not done since 2005 in referring someone to the OFT. Expect Ryanair to carry on playing the martyr for a good time yet.

The problem with being laid up in bed for a couple of days (although this did provide time for many episodes of The Wire and Battlestar Galactica) is that you do miss stuff, such as Ofcom doing blogging. No, really. Seems, with the review of Public Service Broadcasting now underway, they decided that a blog to go with it might be an interesting experiment.  The blog is written by Rhona Parry & Tom Loosemore, both members of the PSB Review team, and I - both with my Informationoverlord and Ofcomwatch hats on - look forward to seeing how it pans out, and how adventurous they’ll be.  Good luck Rhona/Tom.

The Conservative party shadow Culture Secretary, Jeremy Hunt, published a paper last week setting out the Conservative Party’s vision of the the future of public service broadcasting (PSB). Quite an interesting read, as it happens. It actually makes quite a lot of sense, on the whole.

Recommendations include the creation of PSB Commission, which would allow other broadcasters to bid for funds from the licence fee in specific areas where plurality of provision was lacking (such as children’s TV); and the deregulation of some aspects of commercial broadcasting - such as allowing Channel 4 and ITV to exploit overseas rights for programmes, and relaxing the impartiality requirements on commercial broadcasters.

Of course the press and the BBC jumped on the fact that once again the issue of top-slicing the beeb’s licence fee was mentioned, and that other broadcasters, such as Ch4 and ITV etc might get their hands of the beeb’s (the tax payer’s) money. Closer reading of the proposals showed this not to be the case.

The PSB Commission would only dole out funds to genres of PSB where their was a lack of plurality of provision being created by the market. These would be funded on the basis in contracts running parallel to the lee fee period; and would preferably go to new organisations/channels to avoid blurring the lines between public and commercial money.

It goes on to stress that these arrangements must NOT damage the BBC, and that the BBC should be freed to further exploit its commercial opportunities in foreign markets to make up for any shortfall.

For me, the most interesting - and ill conceived - aspect of the paper on impartiality in broadcasting.

“Impartiality is at the foundation of what it means to be a public service broadcaster. If public service broadcasters are to remain credible in the digital era, most people would say that impartiality is one of the most important areas of “distinctiveness” to be preserved … In the US, where there is no impartiality requirement on broadcasters, the market has evolved along similar lines to the UK newspaper market. As the Daily Telegraph caters for a right of centre readership, so Fox News caters for right of centre viewers. As the Guardian caters for a more liberal readership in the UK, so CNN addresses a more liberal audience in the US. Why do we want things to be different in the UK? Partly perhaps because the power of television makes many feel that it should be constrained to be impartial in order to preserve the health of the democratic process. Partly also because public service broadcasters receive public subsidy. But perhaps the most significant reason is that there is a widespread acceptance and appreciation of the quality of public service news and current affairs output… It is right therefore that impartiality should remain at the heart of Britain’s public service broadcasting contract with the nation.”

However, the paper then goes on to say: well, actually, we don’t really want it different from the US at all. Impartiality should not be an issue if you’re not a PSB. Being impartial ’stifles creativity and diversity’ The question is posed: Why should Telegraph TV - or for that matter Guardian TV - be prevented from following the editorial lines pursued by their newspapers if they were to become digital channels and not simply broadcast on the internet?

On the one hand, once the natural knee-jerk reaction to such a proposal dies down you can see an argument for it, especially in the multimedia and multi platform delivery world we are living in, but then - if you’re like me - you return to the view that actually your knee-jerk was correct. There is not such thing as impartiality in broadcasting in the UK now, PSB or otherwise. It is neigh on impossible to do. However, the valid and valiant attempt to do it and to present the news as facts and not spin is one that I still feel is hugely important in a democratic society, and is one that is still a credit to UK news broadcasters. Indeed, as the paper argues for PSBs “the power of television makes many feel that it should be constrained to be impartial in order to preserve the health of the democratic process”. If this is true of PSBs, than it is also true of other broadcasters - the power and impact of a story on CNN is no different from that of one on the BBC News.