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Becky Hogge, Open Rights Group, on the BBC, iPlayer and DRM, interviewed by Sean Daly
Friday, November 09 2007 @ 12:07 AM EST

Interview with Becky Hogge, Executive Director of the Open Rights Group,
by Sean Daly, November 2, 2007

Q: This is Sean Daly, reporting for Groklaw, I'm on the wire with Becky Hogge of the Open Rights Group in the UK. Good morning.

Becky Hogge: Good morning, Sean.

Q: Now, I want to thank you very much for taking some time to speak with us today. Can you tell us a little bit about yourself and the Open Rights Group? I understand that you've just added some new members to the board?

Becky Hogge: That's right. The Open Rights Group is a digital civil liberties organization based in the UK. We've been going since 2005, and we were founded by a community of one thousand concerned UK citizens who thought that the UK needed a body to inform public debate and put pressure on public policy when it came to digital civil liberties issues. So we're a group that believes that technology has great potential for society and for civic life, but that this potential is often marred by poor understanding on the behalf of media and policymakers. And wherever consumer rights, civil liberties, political rights, human rights, look like they're affected by the poor implementation or regimentation of technology, we step in and try to inform the debate. And that's right, we've just appointed three new board members. It's a very exciting time for us. We're growing, and there are a lot of issues on the table that we can help with.

Q: All right, now today I would like in particular to talk about the BBC iPlayer project.

Becky Hogge: Sure.

Q: I believe you have said that the current incarnation of the iPlayer distorts the market. Could you elaborate on that?

Becky Hogge: Well, back in March, the BBC Trust, which is the body that regulates the BBC on behalf of license fee payers -- that is, on behalf of British citizens who pay money to fund the BBC to produce public service content -- they asked whether their on-demand services which have now become the iPlayer were the right way to go for the BBC. And we said no, on a number of counts.

The first was that the use of Microsoft-only DRM was not a good way for the BBC to go. Now, we've worked since with the Open Source Consortium, and they're very concerned about this issue of platform neutrality and of market distortion, because with the BBC only using Microsoft DRM and only making its services available to Microsoft, there is the potential for market distortion there. And we always make the analogy that if the BBC developed a great new soap opera, but only let me watch it on a *Sony* TV, the public would be up in arms.

Q: Now, the BBC has repeatedly said concerning platform neutrality that they would provide iPlayer support across platforms and devices, and shortly they're going to make available streaming for Macs. Isn't this just a temporary problem?

Becky Hogge: Yes, right now it is temporary, from what we hear from the BBC. They're hoping to make a download service available to Mac users. They're still very mute on the point of whether they'll make a download service available to users of free and open source software like Linux, and that is regardless of the fact that their regulators, the BBC Trust, those who regulate them on behalf of the license fee payer, have said platform neutrality is a must. So for now it's a temporary problem, but it could be a permanent problem. And it could be a permanent problem if the BBC continues to insist on digital rights management.

Q: Now, let's talk about DRM for a moment. It seems that the current situation the BBC finds itself in with the iPlayer is largely due to the choice to use DRM. My understanding is that without DRM, the rights holders of third-party producers of television programs which are leased to the BBC would withold their programs from online distribution. What do you think is the solution to this? Should those programs just be taken offline?

Becky Hogge: OK, so you're right to identify the problem; in fact you've got it in a nutshell. The BBC is having to negotiate with the people who own the rights in the programs that it broadcasts, because the BBC doesn't own all those rights. For a start, it's bound to use 25% of its commissioning budget to commission programs from independent producers, or "indies" as they're called in the industry. And those indies, most of them, keep the rights, and, like you say, lease them to the BBC for broadcast in a certain window.

Equally, some of the BBC content that the BBC produces itself has got all sorts of complicated rights issues associated with it. That's when the actors, and the cameramen, and all the people that go into it don't necessarily sign over all the rights to the BBC in perpetuity. So this is a really, really difficult problem for the BBC. But at the Open Rights Group, we think that the BBC needs to be tackling this problem head on. Because if it doesn't, it's going to keep having to use digital rights management. And digital rights management is slowly but surely going to eke away the way it can fulfill its public service remit.

This isn't just about a small group of Linux users who can't access iPlayer and are getting stroppy about it. Using DRM is going to push the BBC into more and more of a commercial environment. And what's more, DRM is always going to lead to the kind of platform neutrality issues that the BBC is experiencing now. If you think about it, Apple iTunes, which uses the Apple DRM, is already being accused of distorting the market by regulatory bodies inside the EU. And the BBC is always going to face these issues. Now, what it could do is it could start now to think creatively about how it's going to negotiate with indies and other rights holders in the future.

Now, most recently, Ashley Highfield, who is the head of Future Media and Technology in the BBC, did a podcast with a wonderful group of people inside the BBC called BBC Backstage. And he talked about how some of the really -- what did he call them? -- flagship programs, like Top Gear -- do you know Top Gear?

Q: Yes, I saw a guy who like drove his car across a lake one time.

Becky Hogge: OK, so that's Top Gear. Now, Top Gear make a lot of money with what's called residual rights, downstream rights. So they make books, they make merchandise, there's a podcast, there's all sorts of other stuff. Now, what it sounded like in that podcast that Ashley Highfield did was he thought that if the BBC would own the rights to allow the iPlayer to download Top Gear in perpetuity without DRM, that he'd have to hand over all those rights to make books and DVDs and merchandise and such as well. Now, we don't think that that's the case. In fact, allowing Top Gear to be released to the British public would only enhance the value of those other rights because it would necessarily make it available to more people. More people would be exposed to Top Gear, and more people would, one presumes, take an interest in all this other stuff Top Gear was doing around it. Do you see what I mean?

Q: Yes, well, it seems the record companies are coming around to that point of view also.

Becky Hogge: I think that's right. And there are other situations specific to the way the BBC commissions content. So, for example, going back to indie producers, it may be possible for the BBC to allow independent producers to choose. You know, "Would you like a greater upfront payment to give all the broadcast rights to the BBC so that we could then make it available to the British public for free, and in perpetuity without DRM?" And they could then use that upfront payment to fund their next documentary, or their next film, right? So there's lots of nuanced ways that the BBC could be dealing with its significant problem of rights ownership right now that would shore up its future slightly better than relying always on DRM and other technical protection measures.

And you're right to mention that EMI, Universal, Sony BMG, are all sort of looking at new ways to exploit the content that they produce without DRM. And there's a reason for that. And that is that consumers don't like DRM. DRM gets in the way of what people want to do with the content they consume. And this is really important for the BBC. So right now, when you talk about the BBC's license fee payers -- the citizens of the UK who pay their license fee because they have a television -- which then goes on to fund the BBC to something like the tune of three billion pounds, right now, when you talk about the return that those license fees are getting on their investment, they're getting great content. And the content the BBC produces is fabulous. And they're getting investment in the creative industries in the UK. So they're being assured of a vibrant creative industry to come.

Now, that kind of works right now with broadcast. But if you think about in ten years' time, when you've got your, I don't know, you've got your housewife or your mother of three living in Winchester paying her license fee. If her children are upstairs on the Internet using content in a way that we can see people want to use content in the future -- they want to own it, they want to remix it, all that kind of stuff, they want to blog about it -- then if the BBC isn't allowing her children to do that with her content, with their content, they're probably going to be doing it with other content, with content from commercial producers who have realized that DRM is not what their consumers want. And that way public service broadcast and public service media isn't going to be reaching her children. She's going to start wondering whether her license fee is representing a good return on her investment. Do you follow me?

Q: Yes. Well, I think, if I understand correctly, that the BBC has another argument concerning DRM, which is to say, "Well, there are two separate markets. There's the UK home market, and then there's the international market. And DRM will help us to commercialize BBC content internationally outside of the UK and and make money off it." What would you respond to that? It seems like an effort for the BBC to create a revenue stream.

Becky Hogge: That's right, and in fact BBC Worldwide, which is the organization that helps the BBC monetize its content in other markets, is faced with a difficult problem there. And we're not saying that these problems aren't hard. All we're saying is the BBC needs to be engaging with them at this stage. Well, what I'd say on the BBC Worldwide issue is that the BBC does have a history of making content available for free as well to other worldwide audiences. That's through the BBC World Service and BBC World, and that the BBC could see itself as a node in a global network of media production which makes it valuable to be releasing its content to a wider audience, both for UK license fee payers and for the BBC as a whole. Now, that's not an awfully strong argument, I admit. But you also need to put the economic contribution to the BBC from BBC Worldwide against the economic contribution to the BBC from license fee payers.

This is about balancing interests. This is about balancing the interests of the license fee payers against the interests of BBC Worldwide, against the interests of maintaining a very vibrant independent production sector in the UK. And what we haven't seen at the Open Rights Group, and what we'd like to see, is some serious economic evidence produced, economic analysis of the situation the BBC is in now.

The problems that the BBC are experiencing right now, with people going after them for allegedly distorting the market, people going after them for excluding license fee payers, are only going to get worse. And what the BBC needs to do is, it needs to take a very long view of the impact that on-demand is going to have on its model.

Now, we've seen other parts of the UK government taking the long view on, for example, intellectual property rights around trading funds, people like the Ordnance Survey who make maps available to other businesses in the UK for a specific cost. And right now the government is looking at whether making those maps available -- those maps, the making of which are funded in a sense for the benefit of UK citizens -- making those maps available on a different intellectual property model and how that would affect not only public good but economic good in the UK. We think the BBC needs to be commissioning similar studies, to analyze the impact that on-demand is going to have on its economics.

Q: Now, let's talk for a moment about the document [PDF] that you submitted to the BBC Trust, the BBC oversight board. You said that you were concerned that the BBC's DRM does not consider implied legal rights and will worsen the digital divide. Could you elaborate on these two points?

Becky Hogge: OK, so that comes from a document that we submitted, as well, that thinking comes from a document that we submitted to the All Party Parliamentary Internet Group, who are now called something else, the All Party Parliamentary Communications Group, when they did an investigation into the effects of digital rights management. The problem with digital rights management is that it is in a sense judge, jury, and executioner. So if you're using the content that's restricted by DRM for permitted use -- there are certain exceptions in UK copyright law where you can use this content -- then DRM doesn't necessarily let you do that. DRM doesn't have the sophistication to understand the context in which you're using copyrighted content and allow you to use it as you're permitted to by the exceptions of UK copyright law.

Now, for example, the Gowers Review of Intellectual -- at the moment, we don't have a format-shifting exception in copyright law here in the UK, which means that people who are copying their CDs onto their iPods are in effect breaking copyright law. The Gowers Review of Intellectual Property -- are you familiar with the Gowers Review of Intellectual Property?

Q: No, in fact I'm not.

Becky Hogge: The Gowers Review of Intellectual Property was a review that the Treasury here in the UK commissioned at the beginning of 2006. It reported [PDF] in December 2006, and it made a series of recommendations which the government accepted in totality: for adding flexibility to UK copyright law, allowing for format-shifting, like I mentioned before, for exceptions for libraries and educators to use content in different ways, and for parody, pastiche, and eventually transformative use of copyrighted works.

Now, there is not going to be a DRM system that can judge the context in which you're using content to that degree of accuracy. Copyright is a balance. It's a balance between the people who hold the copyrights, and their interests in exploiting that work for their own financial gain and the incentives that that gives them to produce more work; and that is balanced up against the way that people who consume that content are permitted to use it. What DRM does is, it shifts the balance in favor of those who own the rights and away from those who consume the content, and in effect it makes a nonsense of that balance.

Q: All right.

Becky Hogge: So the fact the BBC, a public service body, in all effect is supporting this technology, we think is bad news.

Q: Now, I took a look at the BBC Charter. It states in Article 6 [PDF] that the BBC "shall be independent in all matters concerning the content of its output, the times and manner in which this is supplied, and in the management of its affairs." If I understand your position correctly, the iPlayer project breaches the Royal Charter, since license fee payers must obtain permission from Microsoft in the USA to view BBC video. Is that accurate?

Becky Hogge: It's an interesting analysis. It's an interesting analysis. So what are you saying, Sean, are you saying that because the BBC needs you to own a Microsoft operating system to view its iPlayer..?

Q: No, I was thinking more like -- again, I was looking at the document that you had sent to the BBC Trust, in which you talked about the BBC Charter -- the fact that UK content created from UK license fee payers, created in the UK and broadcast in the UK, in the case of the iPlayer DRM, needs to be routed through Microsoft in the USA in order to view it, and this was not a normal state of affairs.

Becky Hogge: So, what you're referring to is a section in our submission to the on-demand services consultation that acquiring a license from an American company "requires UK technologists, companies and hobbyists to get permission from a foreign power --"

Q: Right.

Becky Hogge: "-- in order to make use of BBC video"?

Q: Right.

Becky Hogge: There, we're talking about not UK license fee payers, but those trying to make BBC interoperable services.

Q: Ah, OK.

Becky Hogge: So, in effect, I don't know if you listened to Ashley Highfield's podcast [Ogg]?

Q: Yes, I did.

Becky Hogge: He talks about making an API for the iPlayer available. And I'd be really interested to see how that works, especially in light of the recent European decision about interoperability with Microsoft products. I think it's too early to say until we view the process whether this risk that we've identified in the on-demand services consultation brief is actually going to happen, but that's certainly something that we're going to be keeping an eye on.

Q: OK. Now, it was widely reported that the BBC signed a letter of intent with Microsoft which covered the iPlayer, DRM, and other cooperation. Have you seen the document? Is the document available? Do you know what it says?

Becky Hogge: I don't know what it says, I haven't seen it, and I don't know if it's available. Like I say, the Open Rights Group, we're trying to move away from this Microsoft issue and look further into the future for the BBC. The BBC has got itself into a really sticky situation with iPlayer and with DRM, and I think it must be feeling bad at this point. What the Open Rights Group are trying to say here is that yes, these problems are real, a lot of our supporter base are using Linux operating systems and even though they're paying their license fee, they're unable to access iPlayer services. But we'd like to find solutions for the BBC, rather than more problems. And our big solution is that it needs to start reexamining the rights models. For the sake of public broadcast.

Q: So this is, for you, really a fundamental question of how the BBC works with rights holders and how it arranges for content?

Becky Hogge: That's right. I think -- I read your interview with Mark Taylor from the Open Source Consortium, and he spoke about the BBC as 'Auntie'. The BBC is something which the British public are very proud of and very proud to support. And I think that's the basis from where everything that the Open Rights Group does. I mean, the BBC has supported in the past the spread of new technology around the UK. Arguably, the reason the UK has such a vibrant games market, games industry here in the UK is because many of the people now programming games were brought up using the BBC Micros systems they distributed back when I was growing up.

And what we want to find here is a solution for the BBC to continue innovating, both in content-making and in the way that it uses technology. And DRM is just a black hole that the BBC is going to get lost in.

If you listen to some of the Future Media and Technology team -- I'm referring again to this podcast that Ashley Highfield did for BBC Backstage -- he talks about a future technology where content can have "wrappers" which know where you're watching content, who's watching it, you know? In his sense, he wants content to behave intelligently using technology. But without buy-in from the entire value chain of video on the Internet, video online, that is just going to be another more complex and more invasive DRM system. We want the BBC to start stepping away from DRM and to look at some of the rights models that are going to allow it to release the content that the license fee payer funds for the license fee payer, without being crippled by DRM.

Q: All right, Becky, thank you very much for taking time with us this morning.

Becky Hogge: Sean, it's been a pleasure, thank you.

Q: Thank you.


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