Friday, July 01, 2011

Ofcom response on BBC HD DRM freedom of information request

Ofcom have responded to my latest freedom of information request relating to HD DRM.
Dear Mr Corrigan

Freedom of Information: Right to know request

Thank you for your request for information requesting copies of documents relating to
Ofcom’s decision regarding Content Management on the HD Freeview platform which
Ofcom received on 6 June 2011 and is considering under the Freedom of Information Act
2000 (‘the Act’).

I am writing to confirm that Ofcom has now completed its search.

You asked:

I would like to make a freedom of information request for full and
complete copies of the documents:

(a) recording and explaining the reasons behind Ofcom's decision in
2009 to abandon its long standing opposition to the idea of the BBC
adding digital rights management technology to its high-definition
broadcasts and

(b) outlining the decision making process leading to the Ofcom
public consultation 'Content management on the HD Freeview
platform' (Start date: 22 January 2010, End
date: 02 April 2010).

In respect of your request we are able to provide the following information:

(a) recording and explaining the reasons behind Ofcom's decision in
2009 to abandon its long standing opposition to the idea of the BBC
adding digital rights management technology to its high-definition
broadcasts and

Please refer to the Statement on Content Management on the HD Freeview platform
published on Ofcom’s website via link:

(b) outlining the decision making process leading to the Ofcom

public consultation 'Content management on the HD Freeview
platform' (Start date: 22 January 2010, End
date: 02 April 2010).

I would refer you to the Minutes of three Policy Executive Meetings as detailed below and
to the associated Papers. The Papers are attached to the covering email to this letter.

PE255 (09) Digital Rights management on DTT

24th September 2009:
• The team tabled PE 255(09). PE explored with GB and the team the background to the
current issues and the team’s initial assessment of the options for proceeding;
• PE noted that the team would return to a future meeting with a recommendation for how
Ofcom should proceed. PE agreed that, to progress the issue most effectively, the team
should, as a priority, arrange a series of face to face meetings with the key stakeholders,
including rights holders, to better understand their respective positions.

PE 275(09) Digital Rights Management on HD Freeview

22nd October 2009
DH introduced PE 275(09), reiterated the background to Ofcom’s recent consultation
with industry on the BBC’s request to amend a multiplex licence to encrypt HD Freeview
Electronic Programme Guide data, and summarised the responses to that consultation.
During the ensuing discussion, PE:
• agreed that the team should prepare a further consultation (for publication in November
or December 2009, to conclude in February or March 2010) which:
• reiterated Ofcom’s view that providing services in HD on DTT would be in the interest of
consumers, and explained the steps that Ofcom had taken so far, and would continue to
take, to facilitate this;
• emphasised that the BBC’s request had raised a number of broader issues that were not
within Ofcom’s remit to answer, and explained the issues on which Ofcom was consulting;
• expressed concern about competition issues arising from the BBC’s approach and
sought evidence of its impact on the competitive landscape;
• agreed the team should encourage the BBC to resubmit its request with a more thorough
assessment and analysis of the broader range of issues it raised;
• agreed that the team should send a copy of the second consultation document to PE for

PE 370(09) Digital Rights Management on the HD Freeview platform:

17th December 2009
Following a short discussion of the issues raised in PE 370(09), PE:
• agreed that Ofcom should issue a second consultation in early January 2010 on the
BBC’s request for a Multiplex B licence amendment to support their plans to apply Digital
Rights Management to HD content on the DTT platform;
• agreed that approval of the final version of the consultation document should be
delegated to the project sponsors, HN and PP.

Some information within Papers PE255 (09) and PE 275 (09) is exempt from disclosure
under Section 41of the Act. This part of the Act deals with information provided in
confidence and the disclosure of information to the public (otherwise than under the Act)
by Ofcom would constitute a breach of confidence actionable by the person providing the

information. Section 41 is an absolute exemption under the Act and does not require a
public interest test.

It is likely that other exemptions will apply.

Please ensure that when using the provided information in any way, you comply with all
relevant legislation. For example, the information provided may be protected by copyright
under the Copyright, Designs and Patents Act 1988 (as amended). If in doubt, please
seek independent legal advice. For Ofcom’s policy on copyright and related issues, please
refer to

If you have any queries about this letter, please contact me. Please remember to quote the
reference number above in any future communications.

Yours sincerely

Julia Snape
Some of the information in papers PE255(09) and PE275(09) has been withheld under section 41 of the Freedom of Information Act. The information withheld appears to be related to manufacturers of broadcast receiving equipment and the Digital Transmission Licensing Administrator (DTLA). Ofcom, in PE275(09) refers to this group as the 'Digital Television Licensing Authority'. The DTLA is an organistion set up by Hitachi, Intel, Panasonic, Sony and Toshiba which, according to Ofcom "own the IPR for the DRM technology included in the minimum HD Freeview receiver specifications.

Paper PE255(09)  is a set of slides for a Policy Excutive meeting on 24 September 2009. They refer to the BBC, C4 and ITV being under pressure from rights holders leading to the BBC proposing the HD DRM scheme ("very late in the process") which in turn led Ofcom to write to "key stakeholders" (not including civil society or open source advocates/businesses) and launch a short consultation on the issue, (Enquiry to Ofcom from BBC Free to View Ltd. concerning its DTT High Definition License) on 3 September 2009.  Despite the short 2 week time window for the consultation they got over 200 individual responses "universally against" the BBC scheme.

From PE275(09):
 [...] Is Ofcom a reluctant participant in the HD DRM issue...
The paper then goes on to consider the 4 options facing Ofcom in more detail ie
  1. Allow drm
  2. Refuse to allow drm
  3. Consult again
  4. Consult again but allow drm in the interim
It states that there are risks to Ofcom in all of these but also implicitly accepts, without any evidence, the notion that without DRM the availability of content for HD broadcasts will be restricted. They discuss in relation to option 3 the fact that the BBC proposal "removes the ability of consumers to purchase receivers without DRM" and hence "Ofcom's decision on the BBC's proposal is likely to be dependent on advice form the IPO on whether broadcaster planned use of DRM would be consistent with consumer "fair use" and "format shifting" of the content."

Maybe we should ask for evidence of that advice being sought and what specific advice was received in that regard.

On the risks: "Ofcom could face a potentially significant reputational risk if it were to adopt option 1."  It might be said that Ofcom:
 They were also concerned at the risk of a legal challenge due firstly to Ofcom not following due process and secondly because the BBC might be accused of rigging the market to favour certain manufacturers of receiving equipment.
Paper PE370(09), dated 11 December 2009, recommended option 2 - a second consultation to be initiated in January 2010. The BBC had at this stage submitted a more detailed report, on 9 November 2009, on why they wanted the HD DRM. It's included as an annex to paper PE370(09) but this we've seen before (see p47-86 at
The interesting thing is that despite this paper containing no evidence for the claim that HD content will be restricted unless the BBC DRM proposal is approved, the recommendation of this paper to Ofcom's Policy Executive at this point is that
"In the second consultation, we propose to express support for the adoption of the BBC‟s
proposal subject to  subject to consultation responses, on the basis that DRM is a
justified objective which ensures the broadest range of content for consumers and the
means of implementation appears to us to be proportionate to that aim.
3. Stakeholders:
Ofcom received nearly  consumer  200 responses to its first consultation opposing the
BBC‟s proposed multiplex licence amendment.  The new consumer commitments set out
in the additional information provided by the BBC address many of these concerns, but
the use of DRM is likely to remain contentious and will continue to need careful handling
with consumer groups, MPs and the press. We intend to meet with relevant consumer
groups during the consultation period and highlight that if Ofcom does not approve the
proposed licence amendment there will a reduced incentive for the BBC and other
broadcasters on the DTT platform to introduce a self regulatory code of practice for how
they implement DRM on the DTT platform.
4. Risk and Impact (including Equality Impact):
There is a potential risk to the long term viability of the DTT platform if the BBC‟s
proposed licence amendment is not accepted which must be balanced against the risk of
undue  restrictions  being  placed  by DRM  on consumer  use  of HD content, and the
removal of the ability to purchase receivers without DRM. The  recently  proposed
commitments made by the BBC relating to safeguarding consumer interests against the
inappropriate use of DRM, significantly reduce the potential consumer downsides of their
From a  competition perspective there is a risk associated with the BBC leveraging its
control  of EPG data (using its position as a multiplex licence holder)  to secure an
outcome in the receiver market. The BBCs fuller submission provides a useful basis for
evaluating the significance of the consumer benefits and the impact on the competition
from the proposed licence variation."
Taking all of this at face value it would seem that it was the BBC paper of 9 November 2009 that convinced the project group advising the Ofcom Policy Executive that HD DRM was such a good idea that the consultation should not just ask for opinions but support the proposal.

I'll have to ponder this but in the meantime I've sent a follow up request on the IPO advice regarding evidence that it was sought and what specific advice was received.