Un-conventional

Here’s a paper by me on the European Convention on Transfrontier Television. Not perhaps the most familiar of legal instruments, but I promise you that it is a story full of mystery and excitement. The background to the work is that the Council of Europe has (had?) a convention on broadcasting, which came out of a great deal of interest in the subject in the 1980s. (The Television Without Frontiers directive of what was then the EEC emerges from the same period). However, after the EU revised its law (the Audiovisual Media Services Directive), the Council tried to do the same.

What happened next took me a long time to unpick (unpack?) and involved a lengthy FOI process with the UK government, a (fortunately more straightforward) access to documents request to the EU, research on the EU’s external powers, and quality time with Council of Europe minutes. And then I presented it (to three different audiences), and had some wonderful colleagues volunteer to read it and give detailed comments.

This version (the ‘Accepted Version’, on SSRN) appears in the Edinburgh Law School Working Paper Series.

Death of a Convention: Competition between the Council of Europe and European Union in the Regulation of Broadcasting

If you have access via, for example, a university library, the published version is available here, in volume 5(1) of the Journal of Media Law.

This article considers a dispute between the European Union and Council of Europe regarding their respective roles in the broadcasting field, so as to explain and assess its relevance for the development at the international level of media law and policy. The dispute is a long-running one and dates back to the adoption of the first EEC Directive and Council Convention on this subject in 1989. It is argued that the expansion of the scope of EU broadcasting law and the consolidation of the European Commission’s role in external affairs left little room for the Council to continue to exercise influence over the regulation of the electronic media in the way it has done for some time. The exact nature of the dispute between the institutions, and the response of a vocal member state, is ascertained through consideration of published minutes and internal correspondence, set in the context of doctrinal and political developments. The article concludes with analysis of possible future actions for the Council.

The European Commission should ask for a refund

I was surprised to see discussion of the Mediadem project in the Telegraph this week (picked up elsewhere although without additional information), which some of my Edinburgh colleagues have been involved in.  I should say at the outset (as you can see from the previous post) that I have spoken at two Mediadem events.  I’m not part of the project.  I’ve benefitted to the tune of approximately £50 worth of food, biscuits and coffee from the two events I attended.

It’s always good to see the discussion of academic projects in the media.  Here, though, I don’t think that the article gives a fair reflection of the relevant outputs.  The author (Andrew Gilligan) makes a number of claims, which deserve further investigation.  (This is my own opinion and not that of any of my colleagues, Mediadem or otherwise).

The EU has spent £2.3 million on the previously unpublicised “Mediadem” project to “reclaim a free and independent media”. In a “policy brief” co-authored by its lead British researcher, Rachael Craufurd Smith, Mediadem says it is “simplistic” to “see state influence [over the press] as inherently stifling”.

Dr Craufurd Smith, an Edinburgh University academic, said that it was also “simplistic” to believe that “market-driven media” were now “free and independent”.

Most importantly, it’s not unpublicised.  See this website – stacks of papers, updates, etc. Regular updates over the last three years.  And here’s the Twitter feed.

It is simplistic to see state influence as inherently stifling. The debate on media regulation is a nuanced one.  Very passionate at times – but even those in favour of limiting the role of the state can identify for the purposes of debate a spectrum of state responses (perhaps bad vs very bad in some views), but still worth talking about.

The ‘policy brief’ is one of a whole bunch of very interesting (and wide-ranging) briefs.  Check them out here (there are not far off a hundred).  The quote comes from one of the shorter ones, addressed to a wide audience.  In any event, what the report actually says.

“Understanding free and independent media requires a move away from simplistic categorisations that see, on the one hand, state influence as inherently stifling and, on the other, market driven media to be free and independent.A media service may be independent in the sense of being autonomous from state control, yet still offer partial, biased or inaccurate information. Alternatively, a media service that is under state direction may be established with a clear remit to carry out and offer impartial reporting.”

This is mostly a descriptive statement.  It recognises that an assessment of independence requires more work than just checking the ownership – as well as ownership, one needs to look at remit, autonomy, accuracy, etc.  Remember that this is a Europe-wide project and that the high standards of the British press may not be present in the same way in every jurisdiction. Similarly, there is a wide range of types of state-directed media across Europe. I can’t see why someone interested in the media – even those very sceptical of state regulation – wouldn’t find that an interesting question.

Mediadem recently produced “recommendations for the UK” demanding the “imposition of sanctions beyond an apology or correction” on errant media outlets and the “co-ordination of the journalistic profession at the European level”.
The recommendations call for the press to be controlled by the same body and on the same basis as broadcasters, who are currently tightly regulated with statutory “balance” obligations that do not apply to newspapers.

Mediadem produced recommendations for lots of other jurisdictions too, by the way (see the link above).  The recommendation in question (demand – really? I wish we of the ivory tower had that power) is worth reading.

On the paragraph itself, I think it is an unfair characterisation of the document.  It omits the paragraph immediately before it, which explains that the point on sanction is part of a proposal for self-regulation. I don’t read the point as saying that newspapers should be regulated on the same basis of broadcasters.  If anything, it suggests starting with the press system and folding other sectors into it.  (Not sure I’d agree with it, but it’s a well-argued point and backed up by more thorough analysis of the existing regulatory systems in earlier, much longer papers on the site).   What the report actually says (before making that recommendation) is:

“The first would be to create a self-regulatory framework open to all media sectors and players. As the PCC Code is substantively quite close to the content codes applicable to broadcast television, a framework broadly based on the PCC Code could be extended across all sectors, video, audio and text, to create a more coherent framework. The more detailed provisions in the broadcasting codes could, where relevant, be drawn on to develop the code further.”

The point on the co-ordination of the journalistic profession is taken from a completely different part of the document – an annex summarising recommendations directed at the European institutions.  It appears to be copied across from the more detailed discussion on p. 16 of this document, which is a more general point about the different models of journalistic status across Europe, including its consequences for the protection of journalists.  Again, not everyone’s cup of tea, but far from as scary as it sounds.

I should say that the UK brief contains quite a range of points.  (Again, not endorsing all of them, but they are plausible, relevant assertions).  For example, there’s discussion of using the taxation of ISPs to support journalism, and of clarifying statutory public interest defences for offences that restrict reporting.  Or making the appointment of the BBC Trust more transparent.  As it happens, some of these recommendations were discussed at a workshop I attended earlier in the year.  Also in attendance as an invited keynote speaker was a representative from the Icelandic Modern Media Initiative.  Her presentation was extremely critical of the restrictions on press freedom in the UK.  (Indeed, it sparked an interesting exchange as some of the audience argued in favour of greater protection of privacy – I call it a draw).  It’s a strange sort of stooge project that invites people like that to speak.

Gilligan’s article goes on to discuss various other EU-funded projects.  Erroneously, this is described as ‘coordinated’ and the responsibility of one Commissioner.  However, Mediadem is funded under FP7 (i.e. as an academic project), whereas some of the other projects are work run by or directly commissioned by the European Commission for its current policy work.  There are various suggestions made about the involvement of those supporting changes to media regulation (e.g. the “Hacked Off” campaign group).  It’s hard to see how much of an influence UK campaigners (particularly in relation to Leveson) have had on a 14-country consortium of universities, particularly for a project that was applied for long before and started its public activities in early 2010.

I found it funny to see the point being made that Prof. Steven Barnett attended the final Mediadem conference.  (I received an invite, but couldn’t attend).  I don’t doubt that he did, but the conference report discloses a wide range of presentations, including the participation of representatives of journalists and media organisations, and a particular focus on freedom of expression.  The list of attendees (again, an unusual way to hide a project, publishing such information) includes a lot of journalists, commercial and public service broadcasters, as well as academics from different countries and lots of regulatory bodies.  Not unusual for this sort of event. Not unusual that a Prof of journalism like Barnett would be in the crowd.

All in all, I think those who disagree with the regulation of the media might find a lot to interest them in the Mediadem project.  To suggest that it is part of the EU’s attempt to regulate the media is far off the mark – it’s an academic project with stacks of recommendations (which even contradict each other, so coordination is hardly the key), lots of people involved, various ideas floating around – fairly typical for this sort of project, in my experience.  Looking in from the margins, I thought it a useful exercise and the amount of information that has been made available (for all on a very non-secret website) would, I think, actually assist campaigners on different sides of the argument.  So while the article does raise some interesting questions about the overall EU approach to media regulation, and does highlight the work to a wider audience, I would advise the interested reader to check out the policy briefs, research reports and conference proceedings for themselves.  It’s more balanced and engaging that the Telegraph suggests.

Recommended reading, 24 January – 6 February 2013

Double edition! At the end of January, I was caught up in the excitement of the official launch of CREATe.  I was taking notes on laptop and paper, so more to follow on that soon.

News, blog posts, etc

Eric Goldman, ‘17 USC 512(f) Is Dead–Lenz v. Universal Music‘ (Technology & Marketing Law Blog 25 January 2013). Goldman discusses the latest decision in the Lenz case (the infamous ‘kid dancing to Prince‘ video and how it was taken down at the request of the record label).  He reports on the way in which section 512(f) of the DMCA (misrepresentation in takedown notices) has been read in a narrow fashion by the court and argues that it will have little purpose in the future.  This is interesting (as is his neat point that because a lot of takedowns now happen outside of the DMCA process, it’s already becoming irrelevant) – for me, having argued that the EU should apply its ‘groundless threats’ approach to notice and takedown to come into line with the DMCA, it’s a warning to draft that suggestion more carefully.

Mike Madison, ‘Coulton, Glee, and Copyright‘ (Madisonian 28 January 2013). On a theme of legal and other considerations – this is an article responding to a scandal which I confess had escaped me (involving Glee!), about a legal issue I’m more familiar with ‘covers of covers’.  For the interest of non-US readers – this is a particular feature of US copyright law where a ‘cover version’ can be the subject of a compulsory licence.  (Actually – as discussed in the post – this isn’t always the solution, as there can be negotiation or going through the Harry Fox Agency instead).  However the situation here (the rights of B in its cover version of A’s composition against C’s cover version of A which is derived from B’s) may stretch the effectiveness of that solution (and, as Madison talks about in the second half of his post, suggest questions about the purpose of the law and about the ethics of the situation.

WhatsApp breaches privacy laws‘ (CBC News 28 January 2013). You know I like stories about apps.  This one is about one of the success stories of last year, WhatsApp (instant messaging).  As the CBC story explains, the Privacy Commissioner of Canada (along with equivalent authorities in the Netherlands) has investigated a bunch of issues regarding the service and privacy.  Some were resolved through changes to the operation of the service, but one major continuing breach was noted – the requirement to grant access to full address books in order to use the service.  The full report is here.

Liat Clark, ‘WTO grants Antigua right to launch ‘pirate’ site selling US media‘ (Wired UK 29 January 2013).  This story, widely reported during this period, is about Antigua’s success before the World Trade Organisation (some time ago now – see case file DS285) in its criticism of US violation of world trade law in respect of the regulation of online gambling.  As suggested for a few year now – but now getting more likely as the measure has been approved – it proposes to use the WTO mechanism of trade retaliation, because the US has failed to implement the binding decision of the dispute settlement process.  The US is professing shock and dismay.  However, as a strong proponent of free trade (and indeed the sanctions associated with the WTO process), I’m sure that an understanding can be reached.  Remember: the US took the case to an appeal and lost, and arbitration has also been pursued.

Jason Del Rey, ‘YouTube Set to Introduce Paid Subscriptions This Spring‘ (Advertising Age 29 January 2013). There’s been a flurry of stories in 2013 about how to build a model of charging for video-on-demand; this story explains the proposal to identify selected channels and charge a monthly (and possibly PPV) fee.  Answers on a postcard – will this, if it succeeds, encourage broadcaster-managed non-archive VOD (e.g. the ‘catchup’ bit of 4od, for example) to try and build a charging system – and if so, is it Spotify-style or micropayments per programme?  (I say non-archive VOD because there is a relatively clear mixed economy emerging for archive VOD with various forms of charging and ad support)

Kevin Chao, ‘Mobile Kills the Console But Advances the Gaming Industry‘ (Wired 31 January 2013). Is this finally the year of mobile gaming?  Lovely stats here and a framing of the issue as being about reach, engagement and monetization.  (There is however an ongoing and very significant issue in the UK – and no doubt elsewhere – about monetization and mobile, the role of mobile network operators vs (e.g.) Facebook credits vs other models and the role of PhonePayPlus (regulates premium rate calls and texts which is one of the ways the charge can be set) – see the very perceptive market study for that very organisation.

Bob Tarantino, ‘What the *BLEEP*? Coarse Language in Radio Broadcasts‘ (Entertainment & Media Law Signal 31 January 2013).  Round-up of Canadian broadcast standard decisions on language and radio.  (On that note, I noted subsequently how the New York Times reported the well-deserved Grammy success of Jay-Z & Kanye West as being for ‘___ in Paris’, and the awkward pacing of the bowdlerised broadcast version of the new UK no. 1 single, Thrift Shop; compare the editing on this page (short silencing of the offending part making the result ‘This is ___ing awesome’) with what actually went on air in the chart show (looping, making the result ‘This is aws-aws-awesome’), here at 2h54m)

Josh Halliday, ‘YouTube study shows children ‘three clicks away from explicit material’‘ (Guardian 5 February 2013).  Oh dear.  Apparently if you find a video aimed at children and then click and then click and click again you end up at a less suitable video.  Traumatic I’m sure, but has anyone figured out a way to prevent that without making ‘related videos’ completely unworkable?  Say a video has 20 ‘similar video’ links, then by the third click we are at up to 8000 possible videos – and by click five it’s over three million possibilities.  See also Six Degrees of Separation, etc.

Adrienne Jeffries, ‘Why Amazon wants its own currency‘ (The Verge 5 February 2013). I was reminded about The Verge by a student recently – just in time for this piece on e-money, with a nice approach to the practical as well as legal or technological reasons to adopt a particular model of payment.

Patrick Wintour, ‘Peers pass low-cost arbitration law for victims of press defamation‘ (Guardian 6 February 2013). Somewhat overtaken by events since, but this was a tricky development in the post-Leveson story – specifically, adding in one bit of the recommendations to the Defamation Bill.  Although I’m not convinced by this approach, I still hold to the view that the Defamation Bill needs to be properly linked up with the Leveson settlement.  I appreciate that some people have waited a long time for defamation reform, and that there is work that needs to be done…but its changes will be more legitimate and sustainable if they form part of the new approach to press regulation (particularly as many of the Bill’s changes are specifically defended as pro-press).

Recommended reading, 17-23 January 2013

Action!

Hacked Off would like your comments on its draft Leveson Bill.  Read all about it at this post on Inforrm. Comments by 15 February 2013.  It would be wonderful to see more of this type of engagement on the part of civil society organisations.

Academic publications

Matthias Kettemann, ‘The UN Human Rights Council Resolution on Human Rights on the Internet: Boost or Bust for Online Human Rights Protection‘ [2012] Human Security Perspectives 145. A short, well-referenced and very exacting comment on the ‘La Rue Report’ and associated documents on human rights and the Internet.

Timothy Zick, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties. The first two chapters of this new book (forthcoming, Cambridge University Press) are available for download from SSRN.  Zick’s first book on speech and place is one of the most important contributions to the field of First Amendment studies of recent years; it was very useful when I wrote about similar issues in a European context and I read it with great interest.  So this new book is something to look forward to.

Lorna Woods, ‘Beyond Murphy, Films and Football: Audiovisual Content in Europe’ (2012) 4 Journal of Media Law 189 (£). A copyright-focused discussion sparked by the Murphy (Greek decoder cards in UK pubs) decision and its consequences, with a particularly interesting section on competition and video-on-demand (which is the theme of this week’s post, it seems).

News, blog posts, etc

John Tate, ‘Ensuring prominence for public service content as media converges‘ (About the BBC Blog 17 January 2013). A BBC report on ‘due prominence’ for public service media, on its way to Government but already the subject of interesting debate. A key issue is dealing with alternative forms of distribution (e.g. video-on-demand) and the future-facing yet very 90s issue of ‘portals’ – specifically, how to apply the type of regulation currently used, i.e. a ‘good’ slot on an electronic programme guide or EPG.  (When I was speaking about minority-language broadcasting in the UK recently, I was intrigued to see how a debate arose in relation to a point I had just mentioned, which was geographically-limited EPG prominence for Gaelic and Welsh broadcasters; some saw this as significant but others very much deemed it a legacy issue).

Eleonora Rosati, ‘The (low) cost of balancing broadcasting rights with the public interest‘ (IPKat 22 January 2013).  A note on the Court of Justice decision in Sky v ORD C-283/11.  The case is a human rights challenge to the ‘short extracts’ provision of EU broadcasting law, added in the beloved Audiovisual Media Services Directive in 2007, and now consolidated as article 15 of Directive 2010/13.  The rights cited by Sky (for that is who challenged the provision – and it was clearly the principle rather than any specific problem in the Austrian implementation or the specific incident) were property rights (EUCFR and ECHR) and the freedom to conduct a business (EUCFR). However, the Court of Justice comes down pretty firmly in favour of the Directive.

Dirk Voorhoof & Inger Høedt-Rasmussen, ‘Copyright vs Freedom of Expression Judgment‘ (ECHR Blog 22 January 2013). Another case note – this time with the added significance of being about a decision not currently available in English. The decision raises a number of issues on which the Court’s view has been awaited for some time, particularly the relationship between copyright and article 10 ECHR.  However, as the note points out, it is also important in terms of new technology more generally and the long-running issue on the status of commercial speech.

Fred Campbell, ‘What Does Netflix’s Decision to Block Internet Content Tell Us About Internet Policy?‘ (Technology Liberation Front 23 January 2013).  This is a link-rich update on a story that has developed during the week, on Netflix and how it is managing/negotiating peering.  While I’m not completely convinced by the author’s framing of the issue along the lines of his long-established opposition to net neutrality rules, the issue is a serious one – and how it is resolved may affect the direction in which VOD goes – the Netflix ‘model’ is interesting, and is being replicated outside the US in related but different ways.  (See earlier post here)

David Streitfeld, ‘Keeping the Internet Safe From Governments‘ (New York Times: Bits Blog 23 January 2013). A petition to propose the US not fund the International Telecommunications Union, in protest at its alleged attempt to regulate the Internet and suppress free speech.  (One wonders how (a) withdrawing support when you don’t get your way in debate and (b) not cooperating with other states so as to ensure that telegraph, telephone, satellite and data traffic can cross borders support this cause.  I’d be the first in the queue to criticise actions of intergovernmental organisations, but the demonisation of recent ITU debates is a road we have been down before, with UNESCO and other organisations; hopefully, calmer and more constructive voices will be heard soon.  (On the other hand, if you think I’m wrong, then the petition is here. Speech for all).

Recommended reading, 10-16 January 2013

Well, the first thing with a new series is for it to happen more than once. Here are this week’s recommendations. Two lists, one for academic journals/conferences and another for blogs, newspapers and similar.

Action!

The BBC Trust is reviewing BBC Online (and BBC Red Button). Questionnaire or online form. Closes 24 January 2013. All the details here. No doubt the usual suspects will be telling the BBC Trust that they would just love to invest in web content but sadly can’t do so until the BBC cuts back on what it does. But anyone can – and should – take part in the consultation.

Academic publications

Stefan Bechtold, ‘The Fashion of TV Show Formats‘ (working paper, ETH Zurich, November 2012). This is terrific – a 50-page, multinational tour of the law on formats (which is a really interesting topic in its own right – particularly when it illustrates the ability to ‘monetise’ inside and outside of copyright law as we know it. Clearly informed by conversations with industry and standing as a neat history of the sector as well as a legal analysis. Hopefully I’ll be teaching this topic on a course in 2013/14; the last time I taught it, the literature was lively but fairly thin. So this is an excellent addition, even as a work in progress.

Martin Robins, ‘A Good Idea at the Time: Recent Jurisprudence Under the Service Provider Safe Harbor in Section 512c of the Digital Millenium Copyright Act’ (2012) 15 Tulane Journal of Technology & Intellectual Property 1. The first half covers the cases that safe harbourwatchers will know quite well, but the second half is quite interesting, including an attempt to draft advice for service providers in response to the Circuit Court decisions.

M Heller, ‘The Tragedy of the Anticommons : A Concise Introduction and Lexicon’ (2013) 76 Modern Law Review 1 (£). A revised LSE lecture by Heller (author of The Gridlock Economy and indeed of the phrase included in the title). Has the splendid final subtitle ‘towards a non-squiggly language’, which is reason enough to read it. It’s a review (lit review, theoretical review, overview, as you wish) of the ‘anticommons’ problem (“when too many people own pieces of one thing, nobody can use it”) across a very wide range of sectors, including some of particular interest to me and perhaps to you, e.g. communications technology, patents.

News, blog posts, etc

Eric Goldman, ‘Top Ten Internet Law Developments of 2012‘ (Technology & Marketing Law Blog 11 January 2013). An annual fixture from Prof. Goldman and well timed for the start of the new semester. As well as the top ten issues, there’s a list of other issues and of interesting cases. Start rewriting your syllabi now…

Randall Stross, ‘Im Losing Money. So Why Do I Feel So Good?‘ (New York Times 12 January 2013). Stross (a consistently interesting journalist and author) has a piece on gambling, technology and psychology. It’s prompted by a new book, Addiction by Design. I picked this up from the new books shelf in the library just before Christmas, but haven’t made much progress on it yet. The article by Stross gives a nice peek into its key concerns.

Ryan Tate, ‘California Decides App Crime Is a Serious Problem‘ (Wired.com 13 January 2013). Well-written piece on two of the latest developments in the management of the app store – Apple’s action against an approval scam (get an innocuous version approved, then change the details afterwards) and the ongoing interest of the California AG in privacy and apps. (Plug: the final – and much improved – version of my app stores paper is published later this year; I’ve sent off the final version, so the next stage is proofs and then it goes online in the International Journal of Law & IT.

Campaign for Freedom of Information, ‘Crunch week for FOI in Scotland as Parliament debates coverage‘ (UK FOI Blog 14 January 2013). A preview of the discussion of new FOI legislation in Scotland (a Bill amending the existing Act), which took place on Wednesday. The legislation was passed, although the important arguments made by the Campaign (primarily on the application of FOI laws to those carrying out public functions under contract, looking for some automatic designation or better monitoring of the designation power) were, in the most part, not successful. A pity. The parliamentary debate is available here.

Simon Hattenstone, ‘Arsenal ticket protest ban yet another blow to football fans’ free speech‘ (Free Speech Blog 15 January 2013). You might have noticed the fuss over the cost of away tickets at Arsenal v Man City at the weekend (62!!), and the reaction of stewards and police to attempts to highlight the problems with this level of charging. Hattenstone rounds up the coverage of the various protests, tracks down a fairly unconvincing justification from a club spokesperson (insert shoddy defending gag of choice)