Statement on content management on the HD Freeview platform

Statement pubilshed 14|06|10

Summary

Background

1.1 This statement sets out Ofcom's decision on a proposal from BBC Free to View Ltd ^(-1-) (the "BBC") to vary the terms of its multiplex licence for Multiplex B. Under the BBC's proposals, its licence would be varied to allow it to restrict access to broadcast Electronic Programme Guide (EPG) data to only those High Definition (HD) Digital Terrestrial (DTT) receivers which include content management technology ^(-2-). This technology would enable broadcasters to control the multiple unauthorised copying of broadcast HD content and its retransmission over the internet.

1.2 The decision to include content management technologies in HD Freeview receivers was made by the Digital Television Group ^(-3-) (DTG) prior to the BBC's proposal. However, compliance with the DTG specifications is not mandatory and the BBC's proposal to limit access to HD EPG data to receivers that implement the technology is intended to minimise the number of receivers that do not implement the technology.

1.3 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.

1.4 Ofcom issued an initial consultation in September 2009 ^(-4-) . Following receipt of responses to that consultation, Ofcom issued a second consultation on the BBC's request for licence amendment in January this year ^(-5-) ("the Consultation") and a full assessment of responses is provided in sections 3, 4, 5 and 6 of this document.

Ofcom's assessment

1.5 Our aim in assessing the BBC's proposed licence amendment has been to determine whether this change would deliver net benefits to citizens and consumers by ensuring they have access to the widest possible range of HD television content on DTT, whilst not unduly restricting their ability to make use of content or the range of receiver equipment available in the DTT receiver market.

1.6 In response to the Consultation 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. 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.

1.7 We have also considered whether the BBC's request for a licence amendment would impact negatively on the market for HD DTT receivers in terms of market distortion and price. We have concluded this would not be the case. The BBC is proposing to licence 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.

1.8 A large number of individual responses to the Consultation highlighted that 'open source' software developers would be unable to develop receivers that access HD EPG data if they had to take a licence from the BBC in order to access it. We do not fully share this view. The BBC proposals do not prohibit the use of open source software in receivers, but we recognise the proposal may introduce some restrictions on how it is used. We anticipate that any such restrictions will have a negligible impact on the mass market for HD Freeview receivers as many manufacturers do not use open source software and in cases where they do can opt for an open source licence which is compatible with the BBC's proposed licensing arrangements.

1.9 In assessing the BBC's request for a licence amendment we have also considered whether this proposal is proportionate to the aim of ensuring that content management is present in receivers so as to ensure the broadest range of content on the HD DTT platform. Based on consultation responses and our own assessment we have concluded that measures which do not require a licence amendment (such as linking the licensing of the HD Freeview logo to content management) would not be sufficient to secure an effective content management framework. The BBC's proposal would ensure that an effective content management framework was in place and does not unduly restrict receiver manufacturers in their ability to produce marketable products and viewers in their ability to deal with content in the manner they consider 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.

1.10 A large number of individual consumer responses to the consultation expressed concerns that their ability to copy HD content broadcast on the DTT platform would be unduly restricted by the application of content management by broadcasters. It is important to note that Ofcom's role in relation to content management is limited. Ofcom's consideration of the BBC's proposal concerns whether or not it is appropriate to allow the BBC to restrict access to EPG data for the purposes of content management. The specific nature of that content management solution is not something over which Ofcom has been given statutory powers and it would be inappropriate for Ofcom to seek to extend its remit through the BBC proposal. However, we note that the BBC and the other PSB broadcasters have recognised consumer concerns and have set out a number of significant commitments towards protecting consumers' fair dealing of HD content. These include:

• That no content management restrictions will be placed on standard definition content delivered on the Freeview platform;
  
• An undertaking to respect current consumer 'fair dealing' rights for HD content and any future extension of these rights, such as those recommended in the Gowers Review of Intellectual Property;
  
• 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;
  
• A commitment to work with the other public service broadcasters to create a 'user friendly' consumer guide to content management which would be published on their websites and made available to manufacturers and retailers;
  
• A commitment to facilitate discussions between broadcasters, manufacturers, relevant industry bodies and consumer groups to develop and implement a good practice framework for the use of content management on the HD Freeview platform.

Ofcom's decision

1.11 Based on consultation responses and our own assessment of the evidence Ofcom has decided to grant the BBC multiplex licence amendment to allow it to broadcast EPG data in a restricted format, subject to the two following conditions:

• That the licence required by manufacturers to access broadcast programme data in their equipment is provided by the BBC on a charge free basis (as per the BBC proposal).
  
• That the BBC is only able to restrict the availability of broadcast programme data using the licence amendment for the purposes of securing an effective content management framework on the HD Freeview platform.
  

Footnotes:

  1.- BBC Free to View Ltd is the holder of the Multiplex B licence used to deliver HDTV services on DTT.

  2.- Content management is also commonly referred to as digital rights management (DRM).

  3.- The Digital Television Group (DTG) is a cross-industry body that draws up a specification for DTT equipment to ensure interoperability with broadcast services.

  4.- available at http://www.ofcom.org.uk/tv/ifi/tvlicensing/enquiry/ofcom_bbc.pdf

  5.- available at http://www.ofcom.org.uk/consult/condocs/content_mngt/condoc.pdf