BBC On Demand Services Consultation

Open Rights Group submission to the BBC On-Demand Services (iPlayer) Consultation

The BBC's Executive has been developing proposals to offer BBC programmes and content 'on demand'. They made an application last August for the following:

• Seven-day TV catch-up over the internet
• Seven-day TV catch-up over cable
• Simulcast TV over the internet (streaming of live television networks)
• Non-digital rights management (DRM) audio downloads over the internet (podcasting of selected radio programmes)

A full description of the proposals is contained in the BBC Trust’s Public Value Assessment, PDF (652kb).

The consultation period ends on 5pm, Wednesday 28 March 2007.

Context

The role of the BBC:

• BBC's Royal Charter

Proposed revisions to the BBC Service Licences:

• Statement from the BBC Trust on the Licence Fee

BBC On-demand Service Proposal:

• Public Value Assessment: BBC On-demand Service Proposal
• BBC on-demand proposals: Public Value Test provisional conclusions and public consultation

Non-DRM Downloads

Definition:

The BBC Executive proposes to provide audio programming, with the removal of full track commercial music for download without Digital Rights Management (DRM) protection. This would enable users to transfer programmes to portable devices such as MP3 players, and would sit alongside the BBC’s existing seven-day catch-up streaming service for radio programmes (BBC Radio Player), which largely ties users to listening to programmes at their computer.

The content proposition would be restricted to those programmes where the rights holders agree that non-rights protected distribution is appropriate. The proposed non-DRM download service will not include full track commercial music or archived audio material.

Consultation Questions

Summary

para 1

The Open Rights Group (ORG) is an independent non-profit advocacy group which campaigns for digital rights in the UK.

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para 2

As a body involved in digital rights we have grave concerns over the BBC proposal to make heavy use of Digital Restrictions Management (DRM). Digital Restrictions Management blocks and controls access to content without consideration of implied legal rights, and can cause serious problems to many users even when it functions correctly.

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para 3

In addition, the Open Rights Group is gravely concerned that the BBC proposes to limit some of the services to Microsoft Windows XP and Vista. These products are associated with higher-end PC systems and upgrades which are often out of reach of poorer citizens or libraries. This will worsen the digital divide and is contrary to stated government policy.

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para 4

The use of DRM criminalises making BBC-interoperable devices (software, PVRs, etc) without getting a license from an American monopoly. It requires UK technologists, companies and hobbyists to get permission from a foreign power in order to make use of BBC video. This is completely inappropriate for a public service broadcaster supported by the license fee.

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para 5

This proposal is also of concern because Microsoft are currently appealing a decision by the EU commission that it unlawfully obtained monopoly positions (Decision COMP/37.792). This decision relates in part to PC video-playing tools. The BBC proposal would continue and greatly extend this distortion of the market. There is a serious likelyhood of judicial review by other vendors or of the BBC decision being dragged into the ongoing Microsoft investigation. The Open Rights Group is worried both about the market distortion and the possibility that legal review could delay or disrupt the entire project, wasting licence payers' money (as happened with Research Machines v BBC which required the intervention of the Culture Secretary) [BBC Governors Report 2002/3 page 68].

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para 6

It is also the opinion of the Open Rights Group that such a DRM tie to Microsoft is unnecessary. Within our answers we provide an alternative model that is library-friendly, end-user-friendly and cross-platform.

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Question 1

Do you agree with the BBC Trust's proposal to approve the new BBC on-demand services, subject to the modifications outlined in the Trust's report of its provisional conclusions?

Response

We believe that the Trust's conditions are inadequate. We question the value of the internet based service as proposed. We do not believe the use of extensive DRM for television has been adequately justified or explained. Nor, more importantly, do we believe that it will create a viable service.

Notes

Yes.

Question 2

In a market in which most broadcasters are expected to be offering on-demand services, would you agree that it is a priority for the BBC to be investing in this area?

Response

para 1

There is clear value in the BBC supporting on-demand services where appropriate, including via cable services. The notion that recycling existing content onto the internet is providing value is dubious at best, especially given the use of DRM. The report itself observes that "simulcast and non-DRM download" offer the greatest value (1.8). The statement that "public value is primarily delivered through content consumption" also illustrates the failure of the BBC to grasp the further opportunities for the internet as a medium including increased availability of archive programming through the internet.

para 2

We further note the low interest in the DRM based services (page 43) and the low value for money they offer (page 82).

Notes

What other broadcasters are doing shouldn't be relevant. If it's in the public interest, particularly the interest of license fee payers, then it's something the BBC should be investing in. [1]

Question 3

The BBC Trust has proposed setting a limit of 30 days as the amount of time that programmes can be stored on a computer before being viewed. As this is a nascent market, there is currently no clear standard on the length of the storage window. On balance, the Trust thinks 30 days is the right length of time. How long do you think consumers should be able to store BBC programmes on their computers before viewing them?

para 1

Existing PVR systems provide equivalent facilities without DRM restrictions and without time limits. This is true both of standalone devices and PC plug-in cards that receive “free to air” transmissions. Many of these allow the recording to be saved to tape or digital storage media indefinitely. Regardless of the finer points of law, end-users consider this to be “fair” and expect that facility. The Gowers proposals may also change the law in this area in favour of the end-user, making the DRM even less appealing.

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para 2

The report estimates 47% penetration of PVR devices into the target market area. As the prices of PVR devices fall, the ability of a restrictive and more inconvenient internet service to compete will be non-existent. If launched with the proposed restrictions, the service is probably doomed to failure.

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para 3

History tells us that DRM technology does not work. DVD was cracked with ease, HDMI is believed to have been cracked, and recently the AACS encryption used for high definition discs has been broken. In another case (that of Sony), the software installed to implement the restrictions was flawed and led to a class action lawsuit in the USA. Your report maintains that the risk of DRM being cracked is low but all the evidence is the contrary: people will crack DRM schemes when they feel excluded (eg by the Windows XP requirement). HD DVD was cracked by an individual who was simply upset that he could not watch the film on his monitor. [2]

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para 4

The BBC has also failed to explain why DRM is needed for video but not audio and what the distinction is. When you consider the simulcast of the Proms on television and radio, the value is clearly in the audio rather than the video of the musicians, yet the simplistic BBC proposal suggests that it is necessary only to lock up pictures of trombones, arm-waving conductors and the reactions of the audience.

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para 5

Finally if the BBC wishes to use strong DRM we note that it has failed to grasp the opportunities to tie downloads to the TV licence, to control access by age via this mechanism (as the licence owner proper will not be a minor) and to individually watermark each stream with the licence number of the downloader.

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Notes

Why have a time limit? It will have the same impact on the market, irrespective of how many days it's available for, simply by being made available in the first place.

Is the impact on the "nascent market" something they take into consideration when they broadcast repeats? Would it even have a negative impact?

How? Presumably using DRM...

Question 4

The BBC Trust concluded that public value would be created by allowing series stacking. This would allow viewers to catch-up with all episodes of a series for the duration of its run. The Trust recognised that although it would provide increased opportunities to view BBC programmes, it could also deter people from buying DVDs or using commercial video-on-demand services. Do you consider series stacking to be a useful feature? What kind of series would you expect to be included? Should there be any limitation on the number of episodes of a series made available for catch-up or the length of time for which they can be viewed?

Response

para 1

This essentially falls within the answer to Question 3 above. Stacking restrictions assume that users will not simply adapt their habits or switch to technology that does not enforce awkward rules. This technology is cheap and getting cheaper.

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para 2

Stacking restrictions have an additional problem. They implies that the user owns the system and will download and watch material on the same computer. There are many cases where this is not true. Users travel, families share a PC, and people also use services such as libraries. In libraries, watching educational series is a legitimate purpose, yet the PC is not owed by an individual. Such a requirement is exclusionary, and hurts the poorest most. It is very difficult to see how such stacking would work in a household with a shared computer.

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para 3

There is a better approach to implementing this service than the use of heavy DRM restrictions, and library-unfriendly market-distorting technology which will serve to widen not narrow the digital divide.

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para 4

The BBC could provide the following instead, which can easily be implemented with current tools and infrastructure.

• A system where, given licence or other information, a user may create an account with the BBC.
• Having logged in, the user is then permitted to see live streams (restricted by location), and 'catch-up' TV. This would be implemented by streaming the data from the BBC site, not by placing files on end users' hard discs where the data will be vulnerable to DRM cracks.
• Any policy for stacking would be implemented on the BBC web site, which also means the stacking policy could be tuned per programme and dynamically if problems are found.
• No new streaming video tools are needed beyond those currently used.

Comments on para 4

• Having a streaming only service does not allow for mobile content viewing. i.e, catching up with missed episodes during a train journey.
• Streaming assumes that the viewer is located at the end of a fast Internet connection, which implies that there would be better options available for viewing the content. i.e via existing cable or satellite subscriptions, or a future iteration of Freeview, as a free of charge on-demand service using equipment that is already in place.
• Linking download access to TV licence registration is a good idea.

para 5

Such an approach is cheaper, lower risk, more inclusive (it works for example in libraries) and more flexible than the current BBC proposal. It may not appeal to consultants looking to make huge profits at public expense however, precisely because it is simple, clean and low-risk.

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para 6

It does not of itself address the desire for users to obtain content in DRM free downloadable form for any platform, but it provides a basis until the BBC is able to identify more open solutions for the download of content, preferably ones which do not depend upon DRM. Such solutions would provide interoperating implementations for playback available from different manufacturers and for many pieces of equipment. The Open Rights Group considers it is quite possible that, as already is clearly happening in the music world, the use of DRM will soon be abandonded by the market itself.

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para 7

The BBC may also want to consider quality and DRM issues together. It is not unreasonable to argue that the basis of the existing BBC “protection” of internet streaming is not in fact DRM but the quality limits of the footage.

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Notes

[I have moved this section from response to notes to make way for a suggested response sent over email - please feel free to feed back in - Becky]. The BBC should recognize that broadcasting is an out-dated distribution mechanism and that there exist many more relevant distribution mechanisms without the disadvantages of broadcast, and without the disadvantages that they are still trying to tie content down with.

Limits on the stacking of episodes will not affect peoples media-less aquisition of episodic collections, but it will affect peoples aquaintance with non-BBC sources of media-less episodes

Question 5

How important is it that the proposed seven-day catch-up service over the internet is available to consumers who are not using Microsoft software?

Response

para 1

The proposal is not limited to Microsoft software but specifically to Windows XP and Vista. The question is thus phrased in a misleading fashion as it is estminated around 20% of users (often the poorer ones) do not have Windows XP or Vista but do have Microsoft Windows products.

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para 2

The basis of the BBC is impartiality. A partnership with a convicted US monopolist currently also involved in legal action over allegations that it used its own video player to create a new illegal monopoly is not conducive to improving the BBC name or the BBC reputation. It is also likely to result in OFT investigations, judicial review and delays, if not cancellation.

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para 3

As an alternative implementation scheme exists, there is no justification for the BBC being permitted to proceed in this manner. The Trust would without doubt have thrown out a proposal that some programs did not work on anything smaller than a 36” TV set or did not work on Sony TV sets. The computer world is no different.

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para 4

The proposed "within two years" is valueless. Windows Vista is a product of the moment, the desktop battle with Apple and Linux is under way and two years on, the damage is done. At the very least it should defer such a Microsoft-only decision until the end of the final appeals of EU Commission v Microsoft and the verdict.

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Notes

Crucial!!! The BBC is supposed to be impartial, it's not supposed to favour any one commercial company, eg. Microsoft. Therefore they must ensure that customer is free to make their own choice about the software that they use to access the content made available via this service. Apple Macintosh User Groups are extremely concerned by the BBC's proposals which would exclude them from using content they pay for as license-payers. Macs are heavily used in many sectors including education - it is particularly worrying that schools and colleges committed to the Mac will be unable to take advantage of On Demand Services with their students.

Would they be breaking any laws if they don't ensure that customers can access content using software other than Microsoft's? The Royal Charter requires the BBC to:

act in the public interest and, in particular, it must—

• (b) secure that the independence of the BBC is maintained;
• (e) have regard to the competitive impact of the BBC’s activities on the wider market;

Question 6

Should the BBC be allowed to offer book readings from its radio services as audio downloads over the internet?

Response

The BBC already provides digital MPEG1L2 streams of the radio services to DAB users. DAB devices such as 'The Bug' permit the recording and transfer of these streams to personal computer or PDA devices. In short, the BBC already offers this service easily and conveniently in all but name. We welcome the BBC providing such a service in accordance with copyright law and proper renumeration of authors for in copyright works.

Notes

Of course! Why ever not? These are a great way to introduce people to books that they might otherwise never read. Usually they are broadcast in abridged form anyway - encourages people to read the complete, unabridged version for the full experience.

Contrary to the above note I feel that the BBC has a moral write to the creator of the piece. If there are no copyright issues then the moral right of the author as the owner of the piece shoudl be considered, and where possible, the author should be consulted. If the BBC has no creative investment then I believe they are morally obliged to protect the wishes of the artist/Creative.

Question 7

The BBC Trust concluded there was fine balance between public value and market impact in deciding whether to allow the BBC to offer audio downloads of classical music. While such downloads could help introduce new listeners to classical music, they could also deter purchases of commercial recordings. What is your view on whether - and to what extent - the BBC should be allowed to offer radio broadcasts of classical music as audio downloads over the internet?

Response

para 1

The Open Rights Group does not understand why the BBC distinguishes classical music from other audio works. If the BBC wishes to offer out-of-copyright works it should say so; and if it wishes to offer a performance by musicians of a work still within copyright it should say so. The Open Rights Group does not understand why a 1750's folk song would be considered different to a Bach piece.

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para 2

The Open Rights Group welcomes the availability of more content on the internet and hopes that the BBC will look at ways to use the internet to increase the value to society by including features not available via conventional non-interactive media. Such features include web-based notes synchronised with the audio feed, or the ability to listen to specific channels of the recording to understand how the music is built up.

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para 3

The Open Rights Group furthermore notes that as with Question 6, the BBC already stream MPEG1L2 audio of their concerts to DAB users who have the technology to record the audio.

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Notes

If the BBC/license payers have paid for it then it should be available.

Educational value: may inspire people to want to listen to more music by the same composer or performer or the same piece performed by another artist or other examples of music featuring the same instruments or from the same period!

Correlation between increase in music sales and downloads.

Question 8

How important is it to you that the BBC provides some means for parents to control which of its programmes are accessible on-demand to children? Is such a facility necessary or is it more a matter for parents to exercise controls over how children use the internet?

Response

para 1

The internet provides standard content-labelling mechanisms (PICS). The tools to use them are present in most operating systems and publically documented for open implementation in any others. The BBC should use those standards. The basis for internet service from a public service organisation should always be open, freely-implementable and documented standards.

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para 2

If the BBC persists in using DRM and further protection of video feeds is needed, then it should be integrated with the DRM, and the age rules set by the person who types in the TV licence details. This could be a condition of the licence modification if DRM is used, or the use of the PICS standard if not.

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Question 9

What are your views on whether the BBC should offer content from non-BBC providers on the on-demand service on its website?

Response

para 1

The BBC should provide links to non-BBC material when appropriate and be allowed to host material that is directly relevant to a program with the permission of the rights owners. This is necessary as the BBC may want to refer to a piece of content that is hosted on a small system unable to cope with the demand caused by linking, or on the other side of the world. (Examples here might be end user video clips of a news event.)

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para 2

It is this ability to tie together media for the user to explore which is the heart of the internet, not the recycling of existing non-interactive content. The BBC should therefore be encouraged to embrace the opportunities.

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Notes

[Again, moved this para moved from response to notes - Becky] The BBC is producing gradually less and less of it's own content, and buying more content from production companies run by ex-BBC production staff.

With this trend, BBC may have to show non-BBC content if it is to show anything at all.Only if it doesn't have a negative impact on bandwidth. Could just link to material hosted on other people's websites.

Question 10

What are your views on whether and how the BBC should make available on-demand content on services run by other providers - such as multi-channel services or internet-based audio and video downloading services?

Response

The BBC should evaluate such opportunities as they arise. When they are in the interest of the BBC (as defined by the BBC Charter), it should make use of those opportunities, whilst taking care not to harm its good name by poor choices of association. It must not, however, be allowed to use such options to “farm out” responsibilities to other parties who then fail to fulfil them.

Notes

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Question 11

Do the revisions proposed to BBC Service Licences to allow the new services to go ahead seem appropriate?

Response

They do not. The proposed use of DRM is poor and the high-cost and low-value internet provision of existing content under restrictive DRM policies, should not go ahead in this form. The highly exclusionary and possibly unlawful proposals which tie the services to recent computers and software made by a single manufacturer should not be accepted, particularly in the light of the continuing EU case against Microsoft Corp.

Notes

What revisions are proposed?

Question 12

Are there any other issues you would like the BBC Trust to consider in relation to the proposed services?

Response

para 1

The BBC Trust needs to consider the following questions more fully

• What are the impacts of current DRM technology on the disabled user (and not just to the blind user)?
• What are the implications of DRM on shared computers such as library terminals?

If the current proposal is allowed and 24 months later the BBC says 'we haven't fixed the platform problem' would the Trust really have the ability to kill the service?

• What is the impact of the European Commission v. Microsoft legal case and the fact it directly bears upon the choice of supporting only a single platform?
• What is the market impact of the proposals on the Desktop personal computer market?
• Whether it would accept a BBC TV proposal that did not work on Sony TV sets, but which would “hopefully” be fixed in 24 months. If not, why are computers different?

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para 2

We believe the Trust evidence indicates that the Trust is weak in its understanding of internet technology, and has failed to consider the broader markets outside the media, despite this proposal having a huge impact on the technology markets. In particular, it has failed to consider the personal computer market; this despite the main beneficiary of the proposals being a convicted US monopolist currently on trial in the EU for alleged monopoly offences related directly to media players.

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para 3

In short, the Trust does not appear to have done its job at this point and should urgently visit those areas and rework the decision after the consultation period.

Comments on para 3

Is this language a little strong? It makes no sense to criticise an ongoing task as being incomplete.

Notes

• Simulcast
• DRM