Out-Law News 3 min. read

BBC given go-ahead for HDTV copy restrictions


Media regulator Ofcom has given the BBC permission to encrypt programming information on its free-to-air high definition service. The BBC said the move was essential to cut down on pirating of content on its HD Freeview service.

Though programmes themselves will not be encrypted, the information that forms the electronic programme guide (EPG) that allows viewers to choose what to watch will be subjected to anti-piracy technology.

The BBC said that it wanted to protect the EPG as a barrier to those who might otherwise copy and disseminate unlicensed versions of programmes. Without these protections, it said, channels would be unable to buy in programmes to show on HD Freeview, also known as HD digital terrestrial television (HD DTT).

"Without this change, the BBC argues that the ability of broadcasters on the HD DTT platform to secure content from third party rights holders on similar terms to those on other platforms would be reduced, thus limiting the range of broadcast content available to viewers on the HD DTT platform," said Ofcom's ruling.

"The BBC, ITV and Channel 4 provided confidential details on the acquired HD content that would be affected if an effective content management framework was not provided on the DTT platform, including the need to 'blank out' some HD content. This evidence was supported by the views expressed by representatives of rights holders," said Ofcom.

The regulator accepted the argument, and said that it would allow the change to be made.

"Based on this information, and the increasing use of content management on other digital TV platforms, we have concluded that the BBC's proposal would widen the range of HD content available on the DTT platform, in particular high value film and drama content, and that this would bring positive benefits to citizens and consumers and also help ensure that the DTT platform is able to compete on similar terms with other digital TV platforms for HD content rights," it said.

The EPG information will now be restricted so that it can only be used by HD DTT receivers which contain content management technology which restricts the copying and dissemination of material.

The move was condemned by digital rights body the Open Rights Group (ORG), which said that the decision could restrict users' legitimate use of material and claimed that it could result in more expensive receivers.

"This is a serious blow to UK license-payers, who will be forced to buy non-standard equipment that does less at a UK premium price. Ofcom’s remit is to protect consumer interest and competition. They have failed to do either," said Jim Killock, executive director of ORG.

"The USA's regulator rejected such restrictions, because of the barriers to innovation and trade. The UK should be doing the same," said Killock.

Ofcom said that it did not think the move would negatively impact the market for high definition receivers and TV sets because the BBC would license the decoding technology for free.

"The BBC is proposing to license the intellectual property required to gain access to the HD EPG data (Huffman lookup tables) free of charge and major receiver and integrated digital TV manufacturers are including content management in their HD Freeview products. Hence the impact of the BBC proposals on the supply of receivers to the mass market is negligible," it said.

Ofcom said that it had examined options that were weaker than the one they adopted – such as the linking of the use of the HD Freeview logo to content management technology – and those that demanded more interference, but neither was appropriate.

"More intrusive alternatives to the approach proposed by the BBC, such as the full encryption of the programme content would be disproportionate to this aim as they would go further than the BBC proposal whilst not offering any additional viewer benefits," Ofcom said.

Broadcasts and the programmes contained in them are separately protected by copyright law. But that law is not absolute – some uses are allowed without the permission of the copyright owners.

Ofcom said that its decision was partly based on a promise by the BBC and other public service broadcasters, including Channel 4, that they would seek to protect people's 'fair dealing' rights.

"[Broadcasters pledged] a commitment to establishing a process whereby viewers who believe their lawful usage of HD content is being impinged by the BBC's use of content management can raise their concerns to the BBC, rather than having to write to the Secretary of State, which is the current practice," said Ofcom.

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