By Lord Clement-Jones - 5th July 2011
Lord Clement-Jones urges the creative industries minister to take a greater involvement in combating the "rising and disproportionate cost" of the Video On Demand co-regulation scheme.
There has been serious and growing concern about the rising and disproportionate cost and scope of the new Video On Demand (VOD) co-regulation scheme.
ATVOD (the Association for Television on Demand) was designated by Ofcom in March 2010 as the co-regulator for non-linear editorial content ('television-like services') offered on demand and falling under the EU's Audiovisual Media Services (AVMS) Directive.
Broadcasters and VOD providers were initially supportive of a self- or co-regulatory implementation of the VOD aspects of AVMS and were encouraged by DCMS/Ofcom's strong preference for a system that would not place too great a burden on new VOD services.
One year on, and the reality of the co-regulatory system is far from light-touch. Individual companies have been engaged in an ongoing succession of disputes with ATVOD about which services must notify, which services should fall under ATVOD's remit, what constitutes one service as separate from another, and who holds editorial control of the VOD content and must act as the notifying company.
Above all, the most significant problem is the level of fees per service that are required to be paid to ATVOD on an annual basis. Under the new fees structure announced last week, fees for this financial year will be based on the revenue of the holding company rather than the website involved, and so will place a disproportionate burden on these services.
Not only does it appear that the fees are disproportionate for the services, but they also appear disproportionate to the obligations that ATVOD is tasked with carrying out. Contrary to initial assurances – and the AVMS Directive – short video clips, typically on magazine and newspaper websites, are caught. How can they be considered 'TV-like' when services such as YouTube are exempted?
Furthermore the UK's approach is disproportionate when compared to the way that other EU member states have implemented this part of the Directive. As a result, many UK-regulated VOD providers are refraining from launching new VOD services.
To add to the uncertainty, the outcome of the appeal brought by Hachette over Elle TV on the scope of ATVOD's powers is still awaited.
This situation does not honour DCMS/Ofcom's intention of 'minimal scope', a light-touch regulatory system in accordance with the Better Regulation Principles, or a legal interpretation of the Directive that will allow UK operators to compete on a level playing field with other Member States.
The DCMS, and I in particular, believe the minister for culture, communications and creative industries needs to become involved. The DCMS needs to review the operation of ATVOD as a matter of urgency to ensure that the association is fit for purpose and is operating as originally intended.
Lord Clement-Jones is a partner at DLA Piper and has been a Liberal Democrat life peer since 1998.
Dods Parliamentary Communications Ltd
joe turner
5th Jul 2011 at 10:20 pm