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:

http://stakeholders.ofcom.org.uk/consultations/content_mngt/statement/

(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
information.

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 http://www.ofcom.org.uk/disclaimer.

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 http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/summary/condoc.pdf).
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
proposal.
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.

Tuesday, June 28, 2011

Overcoming cultural agoraphobia - the making of OpenLearn

Transcript and slides of my Gikii VI talk in Gothenburg.
Overcoming Cultural Agoraphobia
View more presentations from rcorrigan.
(Apologies for inaccessible links on slide 12 - behind OU firewall)

A case study in overcoming cultural agoraphobia

I’m going to take you through a whistle-stop tour of the development of the open education resource (OER) platform at the Open University.  In reality it’s a more complex story than I’ve got the time to tell, so forgive me if I skim over parts you’d like to have more detail on. We can cover some of them in the Q&A at the end.

My guilty Gikii past ranges from tales of warring monks and Maxwell’s demon on the Internet to algebra with tiddlywinks but on with the story.

52 years ago CP Snow stood up in the Cambridge University senate and gave his “two cultures” lecture outlining the damaging divide between “literary intellectuals” and natural scientists which was interfering with our capacity as a society to deploy science and technology for the public good.

50 years on James Boyle articulated an, IMHO, equally important divide for the 21st century – the clash between the desire for openness and unfettered creativity and the desire for control, order and lock down.  Interestingly you find Snow’s two cultures on both sides of the Boyle divide.  Additionally, Boyle suggested, we are mostly culturally agoraphobic – inclined towards order and control.

For those of you who don’t know the Open University, we’re the largest university in the UK with about 200,000 students and we do supported open & distance learning. We create, write, publish and produce all our own textbooks and multimedia materials and these are specially designed for students studying at a distance i.e. not on a traditional bricks and mortar campus. The OU is deeply committed to open education and social justice and our courses are open to anyone – there are no entry qualifications.

This video from our YouTube channel will give you a rough idea what we’re about.

Cue video.

Around about the year 2000 a few people at the OU thought we needed to get into the OER game and approached the then Vice Chancellor (VC). He was quite taken by the idea and even supplied some funding to start a small project in the area.  That was a really interesting project and had a sound set of principles but for a variety of reasons didn’t take off. Then Creative Commons (CC) was founded and MIT’s OpenCourseWare (OCW) was announced in 2001, the latter then launched with 50 pilot courses in 2002. So OERs were on the education agenda.

In 2002 the first CC licenses were released and the OU got a new VC  and I wrote a short online netlaw course based on Larry Lessig’s book The Future of Ideas.

This is a screenshot of the welcome screen. A version of this course is still available at the link shown.  The best bits were the cartoons I commissioned from a talented artist by the name of Tony Seldon.  Some colleagues, who are not lawyers, liked my abridged guide to Lessig for 6-year-olds.

We ran the course for credit for a couple of years but only got 400 students so decided to discontinue it in 2004.  Around that time the VC had some informal contact with the Hewlett Foundation which had been involved in funding OCW at MIT and were particularly impressed by the quality of the OU’s educational materials. She asked a senior management colleague to find out about open source and OER and he was briefed by my friend and colleague John Naughton, the OU Professor for the Public Understanding of Technology, who some of you will know as the internet correspondent for the Observer newspaper.  At the time the OU was also going through major re-branding and futures planning exercises. 

So as an institution we were exceptionally busy with standard operational processes and planning for the future.  Serious professional business ideas were the order of the day.  Hence we were pretty much too busy to think deeply about giving our stuff away for free.  After all the bulk of our income is derived, as per conventional universities, from student fees and the government grant that each student attracts.

Meanwhile a few of us decided the Lessig course was too important to be archived inaccessibly and, since we were no longer signing up revenue generating students, thought it would be a good idea to make it available openly under a CC BY-NC-SA license.  This gave the material a new lease of life after I announced it on various forums and listservs and we actually had more visitors to the site within a couple of weeks of openly releasing it than we’d had formal students in the two years the course ran for credit.  It was a really interesting experiment.

Then it became known amongst the OU senior management that I’d released the material CC.  There was concern and interest (probably in equal measure and sometimes from the same people). It was also becoming evident in the OU that the Hewlett Foundation were very serious about putting substantial funding into OERs. So even though we were busy as an institution a combination of factors came together which resulted in the OER question becoming an important one at senior level in the OU.  And the environment was right for an institutional discussion on the matter. 

But it also meant, three weeks into my little CC experiment, I was asked by the OU hierarchy to take my netlaw course site down; until we worked out if we wanted to be in the OER game at all and if we did then it could be incorporated in a proper OER site if and when that happened.

We did then have a mature institutional debate on the subject of OERs.  A task group was formed to look into it and reported to Academic Board and Council in the summer of 2005. Genuine questions were raised about sustainable business models for OERs. The task group advised we could neither fully commit to putting all our material online for free nor completely reject the idea. And in principle if we were going to do it we should do so on a big scale. Broadly speaking, though there were concerns and opposition, when we went through the process of talking and thinking about it, the idea of an OU OES received a lot of support.

We agreed to explore the idea further with the aid of a $250,000 grant from the Hewlett Foundation. We then sent them a proposal for a next generation, “robust” and “scalable” OES in November 2005. The HF got 5 reviewers to comment on the proposal by December 2005. Their main issues were
  1. that we were potentially being a bit ambitious in our desire to make 13,000 hours worth of material available in two years.
  2. and  we were considering using a bespoke license similar to the one developed by the BBC at the time for the BBC archive.  At the time the Hewlett Foundation were open to debate about CC licensing but asked us to think about whether it would be the right way to go. Now they are committed to CC.
We put in a revised proposal in January 2006 saying we could do it in 2 years and we would run with a CC BY-NC-SA license.

In February 2006, the Hewlett Foundation Board agreed to fund an OU OER to the tune of $8.9 million.

OpenLearn was subsequently launched in the autumn of 2006 with 900 hours of content.  It’s since expanded to iTunesU and YouTube etc.

Conclusions?

Firstly you need to understand I’ve only given you a brief outline of the story.

Secondly James Boyle was right when he said we’re naturally predisposed towards cultural agoraphobia. Hey I remember thinking “that’ll never work” when Jimmy Wales started Wikipedia.

But that natural cultural agoraphobia we have as individuals also becomes part of the psyche of the institutions we work for and belong to.  Even open institutions like the Open University, dedicated to open education and social justice.

Thirdly, it can be difficult, when there are other institutional priorities but sometimes you’ve just got to break through the logjam and get a rational and mature discussion going both to air the genuine concerns – what is a sustainable business model for OERs? – and to shine a light on our cultural agoraphobia as individuals and as institutions, public and private.

Fourthly even when you have exposed the cultural agarophobia don’t expect everyone to abandon their preference for control over openness. The process is a success if you’ve got people to seriously consider their position in a deep, rational and mature way. After all openness is not a panacea and no one has yet really cracked the sustainable business model for OERs.

The final lesson is that the internet is great, web 2.0, 3.0 and who knows what else is to come in terms of modern communications tools, are all great. But it is the people that make a difference.  Whether that is in building OERs or demonstrating on the streets against hostile regimes through the Arab spring, putting people in touch with people is what changes the world.

If you have been, thanks for listening.

RC.

PS From August 2009 to July 2010 there were:
•             over 1.5M video views on OU YouTube channel
•             17.2M downloads from OU on iTunesU
•             3.1M unique visitors to LearningSpace and
•             Just under 0.25M exploring multiple pages on Open Learn 

Update: lots of interest in the abridged guide to Lessig for six-year-olds.  Links to audio and transcript here. Also I neglected to put a link to the Open Source Teaching Project in the slides, so here it is.