Same Same but Di!erent? Video Policies for Asian Pay-TV and OTT

In partnership with About CASBAA CASBAA is the Asia Paci"c region’s largest non-pro"t media association, serving the multi-channel audio- visual content creation and distribution industry. Established in 1991, CASBAA has grown with the industry to include digital multichannel television, content, platforms, advertising, and video delivery. Encompassing some 500 million connections within a footprint across the region, CASBAA works to be the authoritative voice for multichannel TV; promoting even-handed and market-friendly regulation, IP protection and revenue growth for subscription and advertising, while promoting global best practices. For more information, visit www.casbaa.com

CASBAA Executive O!ce 802 Wilson House 19-27 Wyndham Street Central, Hong Kong Tel: 852 2854 9913 Enquiry: [email protected]

© 2016. CASBAA Ltd holds all rights to this report, and no part thereof may be reproduced or replicated without prior explicit and written permission. Table of Contents

3 Foreword 4 Introduction – Same Same but Di!erent? Policy Environment Overview – Pay-TV and OTT

11 Australia 15 Cambodia 19 China 25 Hong Kong 29 India 35 Indonesia 41 Japan 45 Malaysia 51 Myanmar 55 New Zealand 59 Philippines 63 Singapore 69 South Korea 75 Sri Lanka 79 Taiwan 83 #ailand 87 United Kingdom 93 United States of America 97 Vietnam

Foreword

With the assistance of expert Knowledge Partners across the Asia Paci"c region, CASBAA has been studying the regulation of pay television and “over-the-top” video services in Australia, Cambodia, China, Hong Kong, India, Indonesia, Japan, Malaysia, Myanmar, New Zealand, the Philippines, Singapore, South Korea, Sri Lanka, Taiwan, #ailand and Vietnam (as well as international benchmarks in the United States and the United Kingdom). What we have found is that the same content is treated di!erently, both in terms of applicable rules and in terms of enforcement, depending on the platform (traditional cable-, satellite- or IPTV-based pay television on the one hand, or “over-the-top” internet television on the other), where the operator is based (local or o!shore) and whether the service is legitimate or illegitimate in respect of copyrights. As a result, licensed, tax-paying local pay television operators are subject to a much stricter regulatory regime, placing them at a signi"cant competitive disadvantage to other operators, particularly – at the other extreme – o!shore, over- the-top television services supplying pirated content. Our investigations produced comprehensive summaries of a host of regulatory policies and issues. We present our "ndings in this book on a country-by-country basis. Each country’s entry commences with a short commentary reporting recent developments of note. #e commentary is followed by a detailed matrix setting out the rules applying to pay television and over-the-top television respectively. #e regulatory information used to prepare the analyses was current as of November 2015. In some jurisdictions, legislative or policy changes have been announced since that time, and the report does not take account of them. Additional changes in the regulatory environment being introduced (for example, in Vietnam) will be noted online at www.casbaa.com/rfg. A report of this scope is only possible because of the assistance of our knowledge partners, which provided regulatory information, industry data and market insights to support this study. However, the judgments and evaluations herein are the responsibility of CASBAA alone, and have not been reviewed/approved by its knowledge partners, nor by individual CASBAA member companies. CASBAA gratefully acknowledges the participation of Janine Lapworth, BA (Hons), LLB (Hons), whose regulatory and industry expertise provided vital contributions to this report, in her role as lead researcher and drafter.

Same Same but Di!erent? 3 Introduction – Same Same but Di!erent

In recent years, television has undergone a comprehensive air television and OTT television regulation would also transformation. Delivery network digitization, the wide be instructive, given that free-to-air television is typically availability of high-speed broadband, and technological subject to the strictest regulatory requirements of the developments enabling digital devices, particularly mobile various television platforms.) telephones, to handle data-heavy applications, have For the purposes of this study, we refer to “pay combined to revolutionize television. television” as the established pay television platforms of More and more of CASBAA’s member companies – cable, satellite and IPTV, where operators provide both content companies and network operators – are adopting network infrastructure and content to their customers. multi-faceted business models – seeking to deliver content By “over-the-top” video, we mean video services to consumers via OTT as well as traditional platforms. supplied by businesses that do not necessarily provide Investments are being made that will determine the future the networks over which the video is being transmitted, shape and capabilities of networks in Asia. although sometimes they do. Over-the-top (OTT) video Investment decisions are in$uenced by the policy providers use internet infrastructure to deliver content environment – sometimes in ways governments do not to consumers. OTT services are diverse, covering local anticipate. CASBAA is acutely aware of the complex and international services; using various business models policy environment for video distribution; we have been including free, subscription-based or advertising-based; examining and explaining the regulation of pay television in being standalone services or linked to services supplied over Asia for the last decade. Four years ago, we added “over-the- other television platforms; featuring professionally-created top” video services. #e present study is an extension of that or user-generated content, or both; and supplying legitimate work, with more detailed information and insights about or illegitimate content, as in pirated or illegal content, or all how policies are developing over time. (Although beyond of these. the scope of this study, a comparative analysis of free-to-

DESCRIPTION EXAMPLES

Legal services Catch-up television for local free-to-air or BBC iPlayer, TVB.com, iwantv.com.ph pay-TV services Linear online simulcasts of local free-to-air or ABC iview, SKY GO pay-TV channels “TV Everywhere” ancillary online o!erings StarHub GO, Singtel TV GO for pay-TV subscribers International live streaming services with Willow.tv subscription revenue base Embedded video in online news websites and ninemsn.com.au in o%cial websites for local free-to-air or pay- TV services Video-on-demand o!ered by pay-TV now Video Express providers Transactional video-on-demand services iTunes Subscription video-on-demand services Net$ix, Quick$ix, Hulu International video services with advertising Youtube, Dailymotion revenue base Illegal services Cyberlockers ziddu.com Live streaming justin.tv Peer-to-Peer BitTorrent networks Popcorn Time Closed peer-to-peer networks TVPad

4 ASIAN TV POLICIES Already, a high and growing proportion of consumer of pay television and OTT television across the Asia-Pacific Internet traffic worldwide consists of OTT video. region in 2012. Since our last review, there have been few major changes in the regulation of these platforms, despite Global Consumer Internet Traffic, 2014 significant changes in the market. Typically, OTT video has remained subject to generally light-touch regulation of Internet services, whilst pay television is subject to a higher degree of regulation. Internet video File sharing The current state of regulation can be summed up in Online gaming the well-known regional phrase, “Same same but different”: Web, email, data the same content (for example, a television series) is subject to a range of different rules and different enforcement mechanisms, depending on the delivery platform, whether the service provider is local or offshore and whether the

Source: Cisco Visual Networking Index, 2015 Report service is legitimate or illegitimate. Such differences in (Note: Cisco defines peer-to-peer traffic as “file sharing”, even if it originates on treatment lead to competitive distortions and – in a world a commercially-oriented site. Most of this “file sharing” traffic comprises video content.) characterized by communications convergence – are increasingly difficult to justify. It has been predicted that Internet video streaming and The comparative levels of regulation for pay television downloads will grow to over 80% of all consumer Internet and OTT television in each country may be mapped traffic by 2019. In the Asia-Pacific region, it is predicted on a continuum of regulation, with light regulation on that video will comprise approximately 78% of all consumer the left moving towards strict regulation on the right. Internet traffic by 2019, up from 62% in 2014. Whilst a necessarily crude means of representing complex regulatory regimes, it illustrates the different, and at times, Approaches to the regulation of pay television and OTT contradictory, approaches taken to regulation of the various television services platforms. Comparing a government’s position on the two CASBAA last conducted an in-depth study of the regulation tables is illuminating.

Pay television continuum of regulation

Light Heavy Cambodia Hong Kong Australia India China Myanmar Japan Malaysia Indonesia Sri Lanka NZ Philippines Vietnam Singapore Taiwan S. Korea Thailand

OTT television continuum of regulation

Light Heavy Cambodia India Australia China Hong Kong Japan Malaysia Indonesia NZ Singapore Myanmar Philippines S. Korea Sri Lanka Taiwan Thailand Vietnam

Same Same but Different? 5 Meanwhile, numerous OTT television o!erings – local, – and value. Such businesses may in fact exceed the strict regional and international – are being launched across the requirements of the law for reputational or other reasons. Asia-Paci"c region. #e subscription OTT giant, Net$ix, International services may do so for operational e%ciencies, launched in Australia, New Zealand and Japan in 2015, so that the one service complies across all relevant followed by Cambodia, Hong Kong, India, Indonesia, jurisdictions. Malaysia, Myanmar, the Philippines, Singapore, South In addition, some local regulators are seeking to require Korea, Sri Lanka, Taiwan, #ailand and Vietnam in early a higher standard; some pay television network operators, 2016. Regional OTT services launched in 2015 include for example, may be compelled to extend pay television i$ix, HOOQ and Viu. A variety of local services are also content rules to the operator’s related OTT television o!ered on a country-speci"c basis, often supplied by or services, although other local OTT television services are partnered with established pay television and free-to-air not required to do the same. (FTA) platforms and mobile phone networks. Of course, the OTT television industry also includes #e diversity of OTT television services gives rise to businesses without the same reputational investments to a range of practical responses to local regulatory regimes. protect, such as pirate sites and pornography sites. For these Established broadcasters, network operators and other businesses, there is no question of compliance. content suppliers respect clear rules; compliance is implicit #e following table shows some examples, by no means in the broadcasting ethos as well as their institutional exhaustive, of the interaction of the various OTT television cultures, and is necessary to maintain brand reputation services with local regulatory requirements.

Responses of OTT television services to local regulatory environments

TYPE OF OTT TELEVISION SERVICE RESPONSE

Local streaming or subscription video-on-demand (SVOD) Complies with local rules applicable to OTT services service, geo-blocked Local streaming or SVOD service, not geo-blocked May comply with local rules in home jurisdiction, but not necessarily with rules in other jurisdictions where content may still be accessed Local catch-up television service May import stricter rules from original platform (free-to- air, pay television) for convenience, although some online platforms might show uncensored version of content OTT television services related to a local platform (free-to- Related online services may comply with stricter rules air, pay television) of original platform, whether for reputational reasons, e%ciency or as may be required by local regulator International subscription or advertising-based video May adopt general rules consistent across all jurisdictions, service (e.g. YouTube, Net$ix) stricter than some particular jurisdictions may require, though laxer than others might require, with ability to comply with additional requirements in speci"c jurisdictions Alternatively, may launch country-speci"c o!erings to manage local regulatory requirements, licensing constraints and local language preferences and to o!er locally-targeted advertising Local or international video service supplying pirated or Ignores applicable rules illicit content

#e above table illustrates some of the challenges facing in the jurisdiction. Another is how to regulate the same regulators in respect of OTT television services. #e "rst content made available over multiple platforms, each with challenge is how to regulate, at a local level, international its own rules. content services which may not have any physical presence

6 ASIAN TV POLICIES Same content – di"erent rules strict content regulation was justi"ed by reference to the From studying the regulatory frameworks in the various protection of vulnerable viewers, such as children. Most jurisdictions, it is clear that a video stream, delivered over regulators tended to recognise that free to air television a pay television network (such as cable, satellite or IPTV), services, being freely available and accessible to all, required must comply with various rules and restrictions. When the the strictest content rules. same video stream is delivered over the top of a broadband Pay television services were typically subject to rules Internet connection, it is not typically subject to the same which, whilst not as strict, were still extensive. #is may constraints. have made sense in the analogue era, when subscribers typically received, as a minimum, a basic pack of speci"c Content regulation channels providing scheduled, linear broadcasts and when In respect of content regulation, pay television operators in there were no technical means to control access to particular many Asia-Paci"c countries must comply with: channels or content. t
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India, Malaysia and #ailand. Two common issues are free-to-air broadcasters. transparency (or lack thereof) in the application of site- blocking procedures and resistance from internet network In a very few jurisdictions, local OTT television operators who must actually implement blocks. operators may have to comply with licensing requirements #ere is also the complaint that site-blocking, without or foreign investment restrictions as in China, or class more, does no more than encourage the o!shore operator licence conditions in Singapore, but OTT television to commence operations from a di!erent Internet operators are largely free to structure and "nance their location. Viewed from this perspective, it is, at most, an businesses and service o!erings as they see "t. #ey are not inconvenience to the operator and does not deter the subject to any of the constraints listed above. operator’s illegitimate or unlawful activities. In addition, pay television operators have to fund and However, site-blocking is the prevailing solution o!ered maintain their network infrastructure, a major ongoing cost by regulators to address non-compliance by o!shore OTT that OTT television operators do not have to bear. operators. CASBAA believes it is imperative that the regulation of pay television services be reviewed and substantially reduced Enforcement of copyright laws in order to enable pay television operators to fairly compete #e enforcement of copyright laws in many Asian with their OTT counterparts, whether local or o!shore. jurisdictions is already challenging due to a number of factors: weak copyright laws particularly in respect of Same content – di"erent enforcement digital infringement, cultural indi!erence to intellectual To the extent that there are rules governing OTT television property protection and signi"cant resource constraints on services – with copyright laws being an obvious example enforcement authorities, to name a few. (and we focus on this topic separately below) – the rules #e o!shore dimension of copyright piracy makes are not enforced consistently against all OTT television enforcement of national copyright laws even more di%cult. operators. #ere is a very clear dichotomy between local Approaches taken in various jurisdictions include site- operators and o!shore operators, with the latter often being blocking, taking action against local end users rather than beyond the reach of local regulators. #is is not surprising the o!shore suppliers of the pirated content, and consumer given the limits of national governments’ ability to impose education. However, these approaches have not been their will on internet broadcasts, but the practical e!ect is su%cient to reduce, or indeed eliminate, the online $ow of that o!shore OTT television services can, and do, act with pirated content across borders. impunity and without consequence. In the current environment, o!shore pirated content Having said that, we see more jurisdictions adopting services have a substantial competitive advantage over both mechanisms to block local access to some non-compliant local and international legitimate services. Advertising o!shore websites. #is is, in fact, the major development represents a lucrative source of income for pirate services, since CASBAA’s last comparative study of the pay television and legitimate services can "nd themselves competing and OTT television regulation, published in 2012. directly for ad dollars as well as indirectly for viewers’ Australia, India, Indonesia, Malaysia, Singapore, South eyeballs. Often, the pirate services compete against Korea, #ailand and Vietnam have adopted site-blocking legitimate services using exactly the same content, but procedures to address content issues and/or copyright without the burden of copyright licence fees, regulatory piracy. #e speci"c procedures vary from country to compliance costs or tax obligations. With such an country, with some countries opting for administrative advantage, pirated content services present an attractive processes and others requiring court orders to be obtained. business proposition for criminal operators and discourage Interestingly, site blocking proposals were vigorously investment in legitimate services, to the detriment of the opposed by major Internet website operators in the United industry and consumers alike.

8 ASIAN TV POLICIES As one CASBAA member has expressed the issue: Same content, same opportunities? “You cannot separate piracy from OTT services and it It is clear that the current state of a!airs – with pay remains a main concern for companies: television and over-the-top television services being t
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over-the-top video services – particularly o!shore services obtain an operating license in a jurisdiction that doesn’t supplying pirated content – will only increase over time address piracy.” as pay television services remain burdened by restrictions which are no longer necessary nor appropriate. Outdated In our last study of pay television and OTT television regulation and competitive disadvantage discourages regulation in 2012, we proposed online copyright piracy be investment in local networks and content, to the ultimate addressed by: detriment of consumers. t
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and possible solutions in the context of their country’s o!shore. unique circumstances. However, CASBAA believes that future regulation Although site-blocking mechanisms have been should aim to enable legitimate content services to thrive. introduced in jurisdictions such as Australia and Indonesia, We see this as a process of “levelling the playing "eld”, by and a “three-strikes” program for serial downloaders is on reducing unnecessary restrictions on pay television services the books in New Zealand, there is still much that needs to and by removing the advantages currently enjoyed by be done to address online piracy. illegitimate online pirate businesses, wherever they may be. By contrast, the United Kingdom has over the past two #e cost of inaction will be diversion of investment funds years stepped up its anti-piracy e!orts, with some success. away from legitimate onshore businesses, and the hollowing Its strategy involves a dedicated police unit, voluntary of creative industries starved for remuneration as eyeballs agreements with the local advertising industry and local turn to pirated content streamed from abroad. ISPs, a consumer education campaign and engagement with pirate sites. It is only through such a comprehensive strategy, properly resourced over the long term and involving cooperative action by government and businesses in the Internet, advertising, content and business services industries -- and, we would add, across borders -- that enforcement will have the best chance of success.

Same Same but Di!erent? 9

Australia Australia Australia

#ere has been much discussion about regulatory reform relation to that application (presumably by not vigorously in Australia in recent years, with little change so far to opposing it). #e ACMA is considering the proposed the rules on the books. #e Convergence Review in 2012 Code. Meanwhile, negotiations continue at industry level recommended sweeping changes, whilst a 2013 Law as to the apportionment of the costs of the scheme; this Reform Commission Report on copyright statutory licences issue continues to obstruct implementation. #e intended recommended, relevantly, that the broadcast retransmission commencement date of 1 September 2015 has now passed scheme should remain in its current form and be considered and it is not clear when it will come into e!ect. by the government when developing its broader media and #e Productivity Commission has embarked on an communications policy. No action has been taken by the economic review of Australian intellectual property laws and Australian government following these reviews. Currently, is due to report in August 2016. However, given the terms of the role of the regulator, the Australian Communications reference for the review, it is unlikely to address the site-blocking and Media Authority (the ACMA) is being reviewed, as is provisions or the industry notice scheme mentioned above. Australia’s intellectual property regime. #e compulsory captioning scheme is also scheduled for review in 2016. Convergence Further, after a much-reported review a couple of years In March 2012, the Convergence Review recommended: ago, the extensive regime regulating designated sporting t
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number (over 1000) of sporting events. to pay-TV and free-to-air TV broadcasters with rules Nevertheless, the regulatory stasis has not a!ected the applying across all platforms to large professional pace of change in the market. Existing free-to-air and pay content service providers meeting certain Australian television broadcasters have expanded their content o!erings audience and revenue thresholds; and by launching several subscription video on demand services t
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in addition to their online catch-up services. Additional control of large, professional content service providers of streamed content services are now available through several national signi"cance by applying a “public interest” test. standalone and bundled set top boxes. #e major pay-TV Following the 2013 national elections, no government action provider has reduced its entry-level subscription fees in has been taken in response to the review. As a result, media response to the increased competition. regulation remains fragmented, with online content providers enjoying a much lower level of regulation compared to pay- Anti-piracy reforms television and free-to-air television broadcasters. One area where some legislative action has been taken is in respect of online piracy. Content regulation in respect of over-the-top television Amendments to copyright laws in mid-2015 permit a services rights holder to apply to the Federal Court for an injunction #e Australian legislature has, however, sought to manage to require ISPs to disable access to online locations outside content regulation of both domestic and o!shore online Australia which infringe, or facilitate infringements, of content services through a two-part scheme based on public copyright. Observers are waiting to see which pirate web complaints. If the ACMA receives a complaint that online services get blocked "rst. video content is X-rated or refused classi"cation, or is R- or At the industry level, Australian ISPs and rights MA15+ rated without access restrictions, the ACMA may: holders have developed a voluntary Code of Practice for t
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of that ISP. #e ISP in turn noti"es that customer of the – notify ISPs to deal with the content pursuant to the alleged infringement. If a customer has received three prevailing industry code or standard (e.g. by "ltering such notices in a 12-month period, and the rights holder the content) or, in the absence of a relevant code or applies to the relevant court for preliminary discovery to standard, direct ISPs to take all reasonable steps to identify that customer, the ISP agrees to act reasonably in prevent end-users from accessing the content.

Same Same but Di!erent? 11 #e ACMA has reported that in the "nancial year from "rst to free-to-air television. Pay-television broadcasters 1 July 2014 to 30 June 2015, it took action in respect may only acquire the rights if those rights have not been of almost 7,000 items of online content hosted outside acquired by a free-to-air broadcaster within 12 weeks of the Australia. In the same year, no take-down notices were start of the event, or if the rights have also been acquired issued in respect of content hosted in Australia, an by either of the national broadcasters or by free-to-air indication that Australian online providers are e!ectively broadcasters reaching more than half of the Australian self-regulating. population. #e list of designated sporting events is very extensive. Restrictions on exclusivity #is regime places pay-television at a signi"cant competitive Restrictive “anti-siphoning” provisions require the broadcast disadvantage vis-a-vis both free television and online rights for a large number of sporting events to be o!ered content services, in respect of which the rules do not apply.

Policy Environment

Regulatory Regime Review Pay TV OTT TV

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UP
technologies platforms can be authorized under a licensing. subscription TV licence. t
"
OVNCFS
PG
TVCTDSJQUJPO
WJEFP
PO
t
)PXFWFS
QSPHSBNNJOH
JT
BMTP
CFJOH
demand providers have launched services provided by Internet providers under telecom during 2014-2015. licenses.

Licensing of foreign t
/P
SFTUSJDUJPOT
PO
SFUSBOTNJTTJPO
PG
t
/P
MJDFOTJOH
SFRVJSFNFOU
GPS
EPNFTUJD
OPS
channels foreign channels. foreign OTT TV services. Allowed, prohibited or t
/P
NFBOJOHGVM
SFTUSJDUJPOT
PO
VQMJOL unregulated? downlink; licenses readily granted.

12 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Licence fees and taxation t
.JOJNBM t
/POF

Rate regulation t
/POF
PUIFS
UIBO
VOEFS
HFOFSBM
t
/POF
PUIFS
UIBO
VOEFS
HFOFSBM
Including wholesale and competition law. competition law. retail rate regulation and whether there are any price controls on e.g. basic tier

Program packaging t
/P
SFTUSJDUJPOT
t
/P
SFTUSJDUJPOT
Including tiering, bundling, any mandatory a la carte

Restrictions on advertising t
4VCTDSJQUJPO
GFFT
NVTU
CF
QBZ57T
t
/P
BE
SFWFOVF
MJNJU
BQQMJFT
UP
055
Including localization rules, predominant source of revenue. No more services, whether free or subscription. revenue and minutage than 50% of pay-TV operators’ total t
"E
DPOUFOU
JT
HPWFSOFE
CZ
JOEVTUSZ
$PEFT
restrictions revenues can come from advertising. of Practice. t
"E
NJOVUBHF
VOMJNJUFE
CZ
HPWFSONFOU
t
"E
DPOUFOU
JT
HPWFSOFE
CZ
JOEVTUSZ
$PEFT
of Practice.

Content regulation t

PG
UPUBM
QSPHSBN
FYQFOEJUVSF
PO
t
$VSSFOUMZ
OP
MPDBM
DPOUFOU
RVPUBT
Including local content drama channels must be spent on new t
*O
SFTQFDU
PG
055
57
DPOUFOU
IPTUFE
quotas, content control and Australian/New Zealand dramas. Flexibly outside Australia, if ACMA receives a insertion of classi!cation administered; a shortfall in one year can be complaint that the content is X-rated, and other content labels into made up during the next year or R- or MA15+ rated without access international feeds t
4FMGSFHVMBUJPO
BDDPSEJOH
UP
$PEFT
PG
restrictions, ACMA may notify ISPs to Practice devised and published by the deal with the content pursuant to the industry association. prevailing industry code or standard (e.g. by "ltering the content). t
*O
SFTQFDU
PG
055
57
DPOUFOU
IPTUFE
within Australia, if ACMA receives a complaint that the content is X-rated, or R- or MA15+ rated without access restrictions, ACMA may require the content to be removed.

Regulations on languages, t
1SFTDSJCFE
BOOVBM
DBQUJPOJOH
UBSHFUT
t
(FOFSBM
BOUJEJTDSJNJOBUJPO
MFHJTMBUJPO
dubbing/subtitling and apply to pay television services under in principle requires closed-captioning of captioning broadcasting legislation. Targets vary audio-visual material. However, at this according to category of service (e.g. stage the government has not put forward movies, news, sports, music). any implementing proposals in respect of OTT TV.

Program supply restrictions t
/P
HFOFSBM
SFTUSBJOUT
PO
FYDMVTJWJUZ t
/P
SFTUSBJOUT
PO
FYDMVTJWJUZ
PUIFS
UIBO
Including must provide t
3FTUSJDUJWF
iBOUJTJQIPOJOHw
QSPWJTJPOT
under general anti-trust law. rules and other restrictions require many sporting events to be o!ered on exclusivity and anti- "rst to free-to-air TV. siphoning rules

Same Same but Di!erent? 13 Regulatory Regime Review Pay TV OTT TV

Investment restrictions t
4QFDJëD
GPSFJHO
BDRVJTJUJPOT
PG
NFEJB
t
"T
GPS
QBZ57
GPS
EPNFTUJD
055
TFSWJDFT
Including foreign direct assets are reviewable under general foreign O!shore services not a!ected. investment in platforms investment policy. Media sector (including and wholesale supply of television and internet sites that broadcast programming and cross- or represent television) is categorised as a media ownership restrictions “sensitive sector”, meaning that all foreign investments of 5% or more are subject to approval. t
/P
TQFDJëD
SFTUSJDUJPOT
PO
DPOUFOU
providers other than general competition laws. t
/P
TQFDJëD
DSPTTNFEJB
PXOFSTIJQ
restrictions other than general competition laws. Retransmission t
/P
HPWFSONFOU
NVTUDBSSZ
SVMF
t
#SPBEDBTU
SFUSBOTNJTTJPO
TDIFNF
EPFT
arrangements t
3FUSBOTNJTTJPO
PG
GSFFUPBJS
CSPBEDBTUT
not apply to online retransmissions of Including must carry and subject to payment of equitable free-to-air broadcasts. Australian OTT remuneration remuneration to underlying rights holders platforms would have to negotiate carriage pursuant to a statutory licence. commercially. Consumer protection t
4VCTDSJQUJPO
#SPBEDBTU
5FMFWJTJPO
$PEFT
PG
t
/P
TQFDJëD
SVMFT
PUIFS
UIBO
HFOFSBM
Including cooling-o" period Practice registered with the ACMA (which consumer protection law). and termination rights may compel compliance as a condition of licence) require: – “Plain English” agreements with subscribers; – Rental agreements for domestic reception to allow for customer to terminate on one month’s notice; – A high quality service to be available to subscribers, including timely response to reported service faults; – Referral of subscribers to State consumer advisory services if subscriber not satis"ed with disputes about fault repairs, credit management or billing. t
(FOFSBM
DPOTVNFS
QSPUFDUJPO
MBXT
BMTP
apply.

Knowledge Partner Jennifer Millington #e Australian Subscription Television and Radio Association [email protected] (ASTRA) is the peak body representing the subscription television Tel: +61 2 9776 2621 industry in Australia.

Australian Subscription ASTRA spearheads the development of industry codes of practice Television and Radio Association in consultation with the Australian Communications and Media (ASTRA) Authority. 4 Broadcast Way Artarmon NSW 2064 ASTRA actively represents the industry on regulatory and policy Australia issues, its members in the media and conducts conferences and forums. Tel: +61 2 9776 2686 www.astra.org.au/ #e annual ASTRA Awards celebrate and recognise the diversity, quality and continued growth of the subscription television industry in Australia.

14 COUNTRY REPORT Cambodia Cambodia Cambodia

Cambodia’s fast pace of development is re%ected in its pay !e Ministry of Information has in the past implemented television and online content industries. In addition to ad hoc broadcasting rules, particularly during election incumbent cable television services and a digital terrestrial periods. As a result, the regulatory environment, while pay television service, several over-the-top television services commendably light-touch in theory, can be somewhat are entering the market, mainly in response to the uptake of unpredictable. smartphones. In addition, content creators tend to exercise caution in Domestic regulation remains focussed on the reporting on public a"airs as defamation and the insulting “traditional” pay television platforms. Such regulation of public o#cials are criminal o"ences under Cambodia’s focuses on basic principles and content control; it does not Penal Code. restrict foreign channel availability, program supply and In respect of online content, the Ministry of packaging arrangements or advertising; nor does it impose Information established a working group in late 2014 to requirements in respect of rates, languages or captioning. investigate restricting online access to immoral content. However, notable in Cambodia is the combination of Around the same time, the government announced the government control regarding domestic content, and an establishment of a Cyber War Team to monitor online openness to foreign investment. activity “to protect the government’s stance and prestige.” A cybercrime law drafted in 2014 prohibited online Intellectual property publications which were damaging to moral and cultural Historically, piracy has been a major problem in Cambodia values, challenged the integrity of the government or and this remains an issue. In addition to cable and signal were defamatory. !e proposed penalties were $nes and piracy, the online distribution of and access to pirated content imprisonment. !e draft law was withdrawn in late 2014, is widespread. Enforcement of copyright laws is uncommon. but remains under consideration by the Ministry of Post Legislation has been drafted to protect encrypted and Telecommunications. satellite signals and is under review. !ese recent developments evidence the Cambodian government’s increased interest in controlling content Convergence available online. !ere are various pieces of legislation, in draft form or in the process of being drafted, which may have an Foreign investment impact upon the provision of content services over Despite State ownership of various media assets, including mobile and online platforms. !ese include a Law on free-to-air television channels and newspapers, foreign Telecommunications and a Law on E-Commerce. direct investment is not restricted, although subject to the administrative requirement of registration. Content control However, media companies do not have access to !e Ministry of Information and the Ministry of Fine Arts various tax bene$ts and duty concessions that are a"orded and Culture regulate content on pay television platforms. to foreign investment activities in other sectors. Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
57
BOE
SBEJP
CSPBEDBTUT
JODMVEJOH
QBZ t
ɨFSF
JT
DVSSFOUMZ
OP
SFHVMBUJPO
PG
055
Details of regulators %55
BOE
DBCMF
57
BSF
SFHVMBUFE
CZ
UIF
57
TFSWJDFT
Ministry of Information. t
*U
SFNBJOT
VODMFBS
XIFUIFS
UIF
.JOJTUSZ
t
.PCJMF
QIPOFT
PS
PUIFS
EFWJDFT
UIBU
of Post and Telecommunications would may deliver content are regulated require a license or permit to be obtained by the Ministry of Posts and JO
PSEFS
UP
QSPWJEF
BO
055
57
TFSWJDF
JO
Telecommunications. Cambodia, with existing services assessed on a case by case basis.

Same Same but Di!erent? 15 Policy Environment

Regulatory Regime Review Pay TV OTT TV

Copyright Protection t
6OBVUIPSJ[FE
VTF
PG
BOZ
DPQZSJHIUFE
XPSL
t
$BNCPEJBO
DPQZSJHIU
QSPUFDUJPOT
BQQMZ
JO
is an act of copyright infringement. theory to online platforms. t
$PQZSJHIU
JOGSJOHFNFOU
JT
B
DSJNJOBM
o!ence and penalties include imprisonment and/or "nes. t
/P
TQFDJëD
DPQZSJHIU
QSPWJTJPOT
SFMBUJOH
UP
broadcasting. t
*O
QSBDUJDF
DPQZSJHIU
MBXT
BSF
SBSFMZ
enforced.

Convergence and new t
ɨFSF
JT
B
QBZ%55
PQFSBUPS
UIBU
JT
SFHVMBUFE
t
/FX
UFDIOPMPHJFT
SFHBSEJOH
JOUFSOFU
technologies according to the same rules as cable. content are governed by the Ministry of t
/P
*157
OPS
NPCJMF
CSPBEDBTU
JO
Posts and Telecommunications. Cambodia yet (although 3G phones are t
*U
SFNBJOT
VODMFBS
XIFUIFS
B
MJDFOTF
PS
used to watch television programming, permit would be required to provide OTT often through proxy servers). TV services in Cambodia. t
(
MJDFOTJOH
JT
HPWFSOFE
CZ
UIF
.JOJTUSZ
of Posts and Telecommunications.

Licensing of foreign t
0QFSBUPST
IBWF
OFHPUJBUFE
DPNNFSDJBM
t
/P
SFHVMBUJPOT
FYJTU
channels contracts for retransmission of foreign Allowed, prohibited or channels. unregulated? t
/P
SFHVMBUJPOTSFTUSJDUJPOT
JO
SFTQFDU
PG
uplink/downlink.

Licence fees and taxation t
/POF t
/P
SFHVMBUJPOT
FYJTU

Rate regulation t
/P
SFHVMBUJPOTSFTUSJDUJPOT
FYJTU t
/P
SFHVMBUJPOT
FYJTU
Including wholesale and retail rate regulation and whether there are any price controls on e.g. basic tier

Program packaging t
/P
SFHVMBUJPOTSFTUSJDUJPOT
FYJTU t
/P
SFHVMBUJPOT
FYJTU
Including tiering, bundling, any mandatory a la carte

Restrictions on advertising t
/P
SFHVMBUJPOTSFTUSJDUJPOT
FYJTU t
/P
SFHVMBUJPOT
FYJTU
Including localization rules, revenue and minutage restrictions

Content regulation t
ɨF
.JOJTUSZ
PG
*OGPSNBUJPO
IBT
EJTDSFUJPO
t
/P
SFHVMBUJPOT
FYJTU
Including local content to regulate content quotas. To date, there quotas, content control and are no speci"c implementing regulations insertion of classi!cation a!ecting foreign channels on Cambodian and other content labels into pay-TV systems. However, Cambodian international feeds domestic channels are required to broadcast only domestic "lms between 7 and 9 pm.

16 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Content regulation t
ɨF
.JOJTUSZ
PG
*OGPSNBUJPO
BOE
.JOJTUSZ
Including local content of Culture and Fine Arts have the quotas, content control and authority to regulate content. insertion of classi!cation t
/VEJUZ
JT
OPU
BMMPXFE
PO
QBZ57
OPS
GSFF and other content labels into to-air TV in Cambodia. international feeds Regulations on languages, t
/P
SFHVMBUJPOTSFTUSJDUJPOT
FYJTU t
/P
SFHVMBUJPOT
FYJTU
dubbing/subtitling and captioning Program supply restrictions t
/P
SFHVMBUJPOTSFTUSJDUJPOT
FYJTU t
/P
SFHVMBUJPOT
FYJTU
Including must provide rules and other restrictions on exclusivity and anti- siphoning rules Investment restrictions t
/P
JOEVTUSZTQFDJëD
SFHVMBUJPOT
PS
t
/P
SFHVMBUJPOT
FYJTU
Including foreign direct restrictions. investment in platforms t
(FOFSBM
GPSFJHO
JOWFTUNFOU
SVMFT
BQQMZ
and wholesale supply of #e approval of the Council for the programming and cross- Development of Cambodia (CDC) is media ownership restrictions required for, relevantly, foreign investment in projects involving capital investment of US$50 million and above and certain infrastructure projects. Media activities are speci"cally excluded from investment projects which may be eligible for certain government incentives. t
/P
DSPTTNFEJB
PXOFSTIJQ
SFTUSJDUJPOT Retransmission t
/P
SFHVMBUJPOTSFTUSJDUJPOT
FYJTU t
/P
SFHVMBUJPOT
FYJTU
arrangements Including must carry and remuneration Consumer protection t
/P
SFHVMBUJPOTSFTUSJDUJPOT
FYJTU t
/P
SFHVMBUJPOT
FYJTU
Including cooling-o" period and termination rights Other country-speci#c www.information.gov.kh/ www.mptc.gov.kh/ information www.mptc.gov.kh/

Knowledge Partner Vannaroth Sovann BNG Legal is a leading law "rm with o%ces in Phnom Penh and [email protected] Yangon providing comprehensive legal services to foreign and local clients. Our diverse team of legal professionals combine BNG Legal international standards with local expertise for a business-focused No. 64, Street 111 approach to client service. Sangkat Boeung Prolit, Khan 7 Makara We facilitate business, investment and trade between Cambodia, Phnom Penh Myanmar and the rest of the world through innovative and Cambodia cost-e!ective legal services. Superior knowledge of local protocol, local procedure, and local people is necessary for any business to Tel: +855 23 217 510; succeed in Cambodia, Myanmar and throughout Southeast Asia. +855 23 212 740 Conducting daily business in Cambodia and Myanmar, BNG Fax: +855 23 212 840 Legal is up-to-date with the latest procedures and requirements, www.bnglegal.com helping clients e%ciently and successfully complete any project.

Same Same but Di!erent? 17 18 COUNTRY REPORT China China China

China continues to impose the most intensive and Convergence extensive controls over media in the Asia-Paci"c region, #e State Council has announced a plan to integrate with strict licensing regimes, censorship and restrictions telecommunications, broadcasting and Internet networks. on foreign participation extending to all platforms. #e #e plan would permit certain pay-TV platform operators regulatory environment is complex, given the number to operate in the telecom and internet sectors (for example, of local and national government agencies exercising as internet service providers) and telecom businesses to authority. At the national level, these agencies include the produce and transmit television and radio programming Ministry of Industry and Information Technology, the other than current a!airs and politics. State Administration of Press, Publication, Radio, Film A pilot program commenced in a number of cities and Television (SAPPRFT), the State Internet Information in 2011, and this program is intended to be expanded O%ce and the Ministry of Culture. nationally. #e government has proposed preparing Copyright piracy, the heavy involvement of the State legislation and policies to support this integration, although – particularly in terms of media ownership and content no draft laws have been released at the time of publication. control – and the restrictions on foreign programming and foreign investment still operate to constrain the domestic Content regulation pay television industry. Heavy restrictions on pay-TV have Stringent content control is well-established in China on given an enormous boost to growth of online content traditional and new media platforms, both in terms of distribution – both legal and illegal. censorship and access to foreign content. While online content supply was initially relatively less regulated, recent Copyright protection developments are tending to extend the State’s restrictive Recent enforcement activities by the Chinese government approach to online platforms. have been welcomed by rightsholders, including the regular SAPPRFT has issued a draft amendment to the “Sword-Net” campaigns investigating and prosecuting regulation on OTT TV, to consolidate existing rules online copyright infringement. #e successful prosecution applying to various networks such as IPTV, mobile TV, of online piracy services, such as the streaming website internet TV and OTT TV. #e draft amendments would QVOD which received a US$42 million "ne in June 2014, prohibit the making of news programs by online content is notable. Other prosecutions resulted in "nes and prison providers and would require online broadcasters to engage sentences as well as the closure of several notorious piracy program censors. services. In respect of foreign content, regulations issued by However welcome the above enforcement activities, SAPPRFT in September 2014 required online distributors piracy remains a major issue in respect of both individual of foreign "lms and television dramas to have foreign programs and intercepted pay television channel content censored by SAPPRFT and to limit foreign content transmissions. In addition to widespread copyright to 30%, among other requirements. infringement occurring within China, local businesses are facilitating copyright infringement beyond China’s borders Foreign investment through the manufacture and export of “black boxes” #e Chinese media landscape is characterised by substantial (streaming media set-top-boxes), which make available vast levels of State ownership, and foreign investment in pay quantities of pirated programming transmitted online. #e television and OTT TV content services is prohibited. software which facilitates access to the infringing content #e draft amendments to the regulation of OTT is either pre-loaded or supplied after-sale. China has taken TV (see above) propose to lift the prohibition on foreign steps to control domestic distribution of “third-party” investment but require the online service provider to be apps (those not under control of the box distributor or state-owned or controlled. #ese amendments, along with its partners), but millions of boxes which enable piracy other recent regulatory developments noted in this report, continue to be exported. suggest that China intends to maintain its control of media for the foreseeable future.

Same Same but Di!erent? 19 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
0WFSMBQQJOH
HPWFSONFOUDPOUSPMMFE
t
ɨF
SFHVMBUPSZ
SFHJNF
GPS
iPWFSUIFUPQw
Details of regulators regulatory agencies including Ministry television services distinguishes between of Industry and Information Technology audio-visual programming delivered (telecommunications and broadcast via the Internet to either: (i) physical satellite and internet infrastructure) television sets with or without set-top (MIIT), the State Administration of Press, boxes (Internet TV); or (ii) other devices Publication , Radio, Film and Television such as mobile phones, websites, etc. (SAPPRFT) (television and radio content (OTT TV). and coaxial cable infrastructure) and the t
7BSJPVT
HPWFSONFOU
SFHVMBUPSZ
BHFODJFT
Ministry of Culture (online content). exercise overlapping authority, including t
"ENJOJTUSBUJWF
SFWJFX
CZ
B
IJHIFS
MFWFM
MIIT (value-added telecoms services administrative body) and judicial review of such as internet content providers or regulatory decisions technically available information service providers), SAPPRFT, but rarely sought. State Internet Information O%ce (internet news and monitoring of online content) and Ministry of Culture (online transmission of “Internet culture products” including music and gaming).

Copyright Protection t
$IJOBT
DPQZSJHIU
MBX
HSBOUT
QSPUFDUJPO
t
0OMJOF
DPOUFOU
QJSBDZ
XJEFTQSFBE
in respect of copyright works (including Pre-2010, Internet TV manufacturers audiovisual works). However, online worked with online video companies to content piracy is widespread despite recent build up their own platforms for OTT improvements in enforcement. TV operation, causing online piracy t
/P
FêFDUJWF
MFHBM
QFOBMUJFT
UP
EFUFS
to spread to Internet TV. However, China-based international circumvention most partnerships between Internet TV networks. manufacturers and online streaming t
6OBVUIPSJ[FE
PWFSTFBT
DPOUFOU
SFDFJWFE
CZ
websites terminated with the introduction millions of Chinese consumers using illegal of the SAPPRFT permit system, given satellite dishes. its strict requirements for content (as t
-JLF
$BCMF
BOE
%5)
*157
BOE
NPCJMF
for traditional TV platforms), indirectly TV services are subject to SAPPRFT bolstering copyright protection. license. Foreign invested entities are t
%FTQJUF
HPWFSONFOU
DPOUSPMT
$IJOB
IBT
prohibited from providing such services. become a hub for streaming of intercepted international programming onto the global Internet, pushed by criminal syndicates pro"ting from subscriptions, sales of internet-linked set-top boxes, and from advertising.

Convergence and new t
-JLF
$BCMF
BOE
%5)
*157
BOE
NPCJMF
t
055
QMBZFST
NVTU
PCUBJO
UIF
SFMFWBOU
technologies TV services are subject to SAPPRFT License for Spreading Audio-visual license. Foreign invested entities are Programs via Information Network issued prohibited from providing such services. by SAPPRFT (the AVSP) depending on the type of content of the audio-visual programs.

20 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Convergence and new t
(PWFSONFOU
DPNNJUUFE
UP
DPOWFSHFODF
t
Internet TV: Only those holding AVSP for technologies of telecommunications, broadcasting content and aggregation services relating and Internet and to expand ongoing to Internet TV may engage in Internet TV experimental measures from pilot areas to services (Internet TV AVSP). However, nation-wide by the end of 2015. SAPPRFT has issued only a few Internet TV AVSPs to its a%liated entities and traditional domestic TV stations. t
OTT TV: #e operators of OTT TV businesses must obtain a value-added telecom service permit from the MIIT or its provincial level counterparts.

Licensing of foreign t
3FUSBOTNJTTJPO
PG
GPSFJHO
DIBOOFMT
Internet TV channels generally prohibited. However, with t
ɨFPSFUJDBMMZ
*OUFSOFU
57
JT
TVCKFDU
Allowed, prohibited or regulatory approval, foreign TV channels to same restrictions as traditional TV. unregulated? may be transmitted in hotels rated 3-stars Re-transmission of foreign channels or above and in designated areas where is prohibited; any import and re- foreigners predominantly reside. broadcasting of foreign content on t
ɨF
JNQPSUBUJPO
PS
SFCSPBEDBTUJOH
PG
Internet TV requires the prior approval of foreign content requires prior approval SAPPRFT. from SAPPRFT. t
ɨJT
SVMF
JT
JHOPSFE
CZ
UIF
*OUFSOFU
57
t
'PSFJHO
BEWFSUJTJOH
NVTU
DPNQMZ
XJUI
streaming piracy syndicates, whose content domestic advertising rules. is available both inside and outside China. t
6QMJOLJOH
BOE
EPXOMJOLJOH
QFSNJTTJPO
required for all channels (for foreign OTT TV channels, transmission and dealings with t
%PNFTUJD
QSPWJEFST
PG
055
57
BSF
SAPPRFT must be done through the only subject to the SAPPRFT import review SAPPRFT-designated agent, a wholly system in respect of certain foreign owned subsidiary of China International content, such as foreign television dramas Television Corporation). Severe restrictions and "lms. Foreign "lms and teleplays imposed on foreign channels and to date may only be screened over OTT TV uplink/downlink has been required to be when (i) the "lms and teleplays have been via the Apstar-6 satellite. duly examined by SAPPRFT, and (ii) t
&TUBCMJTINFOU
PG
EPNFTUJD
QBZ57
the relevant SAPPRFT Licence has been channels subject to approval by SAPPRFT obtained. or its local counterparts.

License fees and taxation t
/P
JOEVTUSZTQFDJëD
MJDFODF
GFFT t
/P
JOEVTUSZTQFDJëD
MJDFODF
GFFT
IBWF
CFFO
made known.

Rate regulation t
#BTJD
DBCMF
QSJDFT
EFUFSNJOFE
CZ
MPDBM
/%3$
t
/P
HPWFSONFOUEFUFSNJOFE
SBUFT
JO
UIJT
Including wholesale and bureaus in consultation with SAPPRFT. area. retail rate regulation and t
1SJDJOH
PG
WBMVFBEEFE
DBCMF
TFSWJDF
PS
whether there are any price digital TV services above the basic level controls on e.g. basic tier can be solely determined by the operators. t
/P
XIPMFTBMF
SBUF
SFHVMBUJPO

Same Same but Di!erent? 21 Regulatory Regime Review Pay TV OTT TV

Program packaging t
/P
TQFDJëD
SFTUSJDUJPOT
PO
UJFSJOH
PS
t
/P
SFTUSJDUJPOT Including tiering, bundling, bundling, however customers must be able any mandatory a la carte to subscribe to basic cable packages only (with prices regulated by the NDRC – see above under ‘Retail rate regulation’) and not be forced to subscribe to additional channels or value-added services.

Restrictions on advertising t
"EWFSUJTFNFOUT
HFOFSBMMZ
QSPIJCJUFE
t
5BLJOH
B
MJUFSBM
JOUFSQSFUBUJPO
PG
UIF
Including localization rules, on domestic pay-TV channels unless regulations, only the general restrictions revenue and minutage the channel specialises in screening on advertisements will apply to Internet restrictions advertisements or if it is promoting pay TV and OTT TV. #e speci"c restrictions TV channels. on advertisements on TV broadcasts do t
(FOFSBMMZBQQMJDBCMF
BEWFSUJTJOH
SVMFT
not apply to Internet TV and OTT TV require, among other things, integrity as Internet TV and OTT TV do not fall of the program to be maintained and within the de"nition of traditional forms continual visibility of the channel’s mark. of TV and radio. #ey also restrict, among other things, t
)PXFWFS
JU
JT
VOEFSTUPPE
UIBU
UIF
HFOFSBM
insertion of advertisements in the corner of industry practice among Internet TV and the screen during a TV program. OTT TV players is to seek to comply with t
.JOVUBHF
SFTUSJDUJPOT
PG

NJOVUFT
QFS
IPVS
all advertising regulations in the PRC. (or 18 minutes maximum during the two hour peak viewing period of 7pm – 9pm.) t
*OQSPHSBN
BEWFSUJTJOH
JT
OPU
BMMPXFE
TP
ads should be broadcast before or after programs. t
"T
B
NBUUFS
PG
MBX
BEWFSUJTJOH
PO
GPSFJHO
channels is expected to comply with Chinese advertising laws. In practice, the advertising laws are not currently enforced against foreign channels on the hotel platform.

Content regulation t
'PSFJHO
DPOUFOU
NVTU
OPU
FYDFFE

PG
t
/P
MPDBM
DPOUFOU
RVPUBT Including local content daily programming on a domestic pay TV t
(FOFSBM
SFRVJSFNFOUT
SFHBSEJOH
*OUFSOFU
quotas, content control and channel. Cannot retransmit the entirety of content similarly apply to both Internet insertion of classi!cation a foreign channel on pay TV (i.e. must be TV and OTT TV, including that such labels into international done on a program-by-program basis). content should not violate basic principles feeds t
%PNFTUJD
QBZ57
DIBOOFMT
NVTU
TFMG speci"ed in constitutional laws, harm the censor to ensure programs comply with unity, sovereignty or territorial integrity stringent censorship requirements. of China, or harm the social morality and t
"MM
JNQPSUFE
QSPHSBNNJOH
BMTP
TVCKFDU
UP
damage the cultural traditions of China. censorship and approval of SAPPRFT. t
.PWJFT
BOE
57
QSPHSBNT
BSF
TVCKFDU
UP
censorship and approval of SAPPRFT, as is required for cable TV.

Internet TV t
*OUFSOFU
57
DPOUFOU
BHHSFHBUPST
IBWF
TBNF
obligations as TV channels. All imported programs subject to censorship and approval.

22 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Content regulation t
4DSJQUT
GPS
57
QSPHSBNT
QSPEVDFE
CZ
OTT TV Including local content Sino-foreign cooperatives are subject to t
055
57
DPOUFOU
NVTU
BMTP
DPNQMZ
XJUI
quotas, content control and examination by SAPPRFT. strict content rules. Although imported insertion of classi!cation t
4DSJQUT
GPS
BMM
NPWJFT
OFFE
UP
CF
TVCNJUUFE
programs are not yet subject to prior labels into international to SAPPRFT for "ling. However, approval, SAPPRFT recently issued a feeds according to recent guidance from circular requiring online content providers SAPPRFT, only "lms that deal with to closely self-regulate online video content. particularly sensitive subject matter such t
ɨF
BOOVBM
UPUBM
BNPVOU
PG
GPSFJHO
ëMNT
as politics, foreign a!airs or religion are and teleplays introduced by a single subject to review and scrutiny. website for broadcasting shall not exceed 30% of the total amount of domestic "lms and teleplays purchased by the website for broadcasting in the previous year. t
4QFDJëDBMMZ
GPS
XFCTJUFT
JOUSPEVDJOH
foreign "lms and teleplays, the operators of such websites are required to seek SAPPRFT’s prior approval before making it available on the website.

Regulations on languages, t
"OZ
GPSFJHO
MBOHVBHF
DIBOOFMT
SFRVJSF
t
Internet TV: All foreign language content dubbing/subtitling and SAPPRFT approval. on Internet TV requires prior SAPPRFT captioning approval. t
OTT TV: Websites introducing foreign "lms and teleplays are required to seek SAPPRFT’s prior approval before making them available on the website.

Program supply restrictions t
/P
SFTUSJDUJPOT
t
/P
SFTUSJDUJPOT
Including must provide rules and other restrictions on exclusivity

Investment restrictions t
'PSFJHO
JOWFTUNFOU
QSPIJCJUFE
t
Internet TV: In principle, foreign investment Including foreign direct t
/P
DSPTTNFEJB
PXOFSTIJQ
SFTUSJDUJPOT
JO
is prohibited. However, some investors are investment in platforms and the context of heavy state ownership and involved at various points in value chain. programming and cross- control. t
OTT TV: Foreign investment prohibited. media ownership restrictions t
'PSFJHO
JOWFTUNFOU
BMTP
QSPIJCJUFE
JO
online news businesses, online audio program services and all online culture businesses other than music. t
1SPWJEJOH
UFDIOJDBM
TFSWJDFT
SBUIFS
UIBO
content integration or supply for Internet TV and OTT TV is permitted to foreign investors. t
"CPWF
SVMFT
BSF
JHOPSFE
CZ
QJSBDZ
syndicates, some of whom appear to have signi"cant foreign involvement.

Retransmission t
"MUIPVHI
OPU
SFRVJSFE
VOEFS
XSJUUFO
MBX
t
/P
SFTUSJDUJPOT arrangements in practice, state-owned provincial satellite Including must carry and channels must re-transmit the CCTV remuneration evening news.

Same Same but Di!erent? 23 Regulatory Regime Review Pay TV OTT TV

Consumer protection t
$VTUPNFST
NVTU
CF
BMMPXFE
UP
TVCTDSJCF
UP
t
ɨFSF
BSF
HFOFSBM
PCMJHBUJPOT
UIBU
BQQMZ
Including cooling-o" period just basic cable packages only. to OTT service providers including the and termination rights obligations to protect the rights and personal information of its users, to ensure that there are no unfair restrictions on the part of the users, and to make public disclosures of the charges and terms of the services (if any).

Knowledge Partner Adrian Fisher Linklaters is a leading global law "rm, supporting clients in adrian."[email protected] achieving their strategies wherever they do business. Tel: +65 6692 5856 Linklaters is long established in Asia, with o%ces in Beijing, Richard Gu Shanghai, Hong Kong, Tokyo, Singapore, Bangkok, and Seoul, [email protected] and over 320 lawyers. We provide US law advice across the region. Tel: +86 21 2891 1839 Where local regulation allows, we o!er high-quality practices in domestic law. In China, Linklaters has unparalleled insight into the Linklaters, Shanghai local legal framework, having advised clients in the region for over 29th Floor, Mirae Asset Tower 30 years. Our market-leading practice is unique in having a truly 166 Lu Jia Zui Ring Road integrated team of over 240 lawyers working across China’s three Shanghai 200120 major business centres: Shanghai, Beijing and Hong Kong. Our China leading track record on some of the most complex international investments into the PRC has provided us with an exceptional Tel: +86 21 2891 1888 understanding of the PRC legal and economic landscape. Fax: +86 21 2891 1818 www.linklaters.com Our global TMT practice is recognised as a top-tier practice that provides regulatory and commercial advice on all aspects of telecoms and broadcasting, including voice and data, "xed and mobile, and cable and satellite.

24 COUNTRY REPORT Hong Kong Hong Kong Hong Kong

Under the “one country – two systems” approach in place It remains to be seen whether the legislation, once since the handover of Hong Kong to China in 1997, Hong passed, will have any real e!ect on enforcement of Kong’s pay television businesses have not been subjected intellectual property rights: substantial additional work by to the same controls as their mainland counterparts. By the government – possibly with additional legislation – is contrast, they have in general enjoyed relatively positive, likely to be necessary to achieve real protection of broadcast light-touch regulation with corresponding competitive content from various forms of online piracy. bene"ts. Current issues in this jurisdiction relate to the slow pace Convergence of copyright reform and adaptation of regulatory frameworks In 2012, the broadcasting and telecommunications to digital convergence. #ere has been a rising level of public regulators were merged to form the Communications concern over press freedom, and pointed questions have Authority (CA) as the "rst step in the Government’s plan to been raised about political intrusions into the licensing address convergence, with legislative reform to follow. process for free-to-air TV. However, the pay-TV and online However, despite the merger of regulators several years TV frameworks have not been a!ected as yet. ago, telecommunications and broadcasting continue to be regulated separately and little progress appears to have been Copyright protection made on convergence legislation. Hong Kong copyright law currently does not include a #e Government now states that it is planning to review generally-applicable communication right that would the telecommunications and broadcasting legislation over protect online exploitation of copyright material. three years, commencing in early 2016. #e Hong Kong government has introduced #e Copyright (Amendment) Bill 2014, which would provide Content regulation for such a right as well as introducing a “safe harbour” Compared to other jurisdictions in the region, the regime for online service providers on whose platforms regulation of content on pay television and OTT TV infringing material is found. #e Bill also clari"es when is relatively light. However, regulations on television distribution of infringing content would constitute a advertising are particularly outmoded and have not been criminal o!ence. At the time of publication, the Bill had updated in light of competition from online content supply. not yet passed into law, having been subject to excessive delay due to ongoing debate over the scope of protection for internet parodies.

Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
"
TJOHMF
CPEZ
PWFSTFFT
CPUI
CSPBEDBTUJOH
t
(PWFSONFOUBM
QPMJDZ
JT
UFDIOPMPHZ
Details of regulators and telecommunications – the neutral, but there is no economic Communications Authority (CA), the regulation of internet-based services: #e executive arm of which is the O%ce of the Telecommunications Ordinance focuses Communications Authority (OFCA). on the means of provision of services, t
$"
JT
BO
FïDJFOU
USBOTQBSFOU
TUBUVUPSZ
while the Broadcasting Ordinance body, nominally independent but sta!ed excludes “services provided on the service by civil servants. commonly known as the internet” from t
3FHVMBUPSZ
SFGPSN
IBT
TUBMMFE
BT
MJUUMF
being classi"ed as television programme progress made on an update of laws services. planned when the CA was established in 2011.

Same Same but Di!erent? 25 Regulatory Regime Review Pay TV OTT TV

How regulated? t
4FQBSBUF
SFHVMBUJPOT
GPS
57
DPOUFOU
BOE
t
055
57
TFSWJDFT
BSF
IPXFWFS
TVCKFDU
UP
Details of regulators broadcasting network infrastructure, with general laws prohibiting the distribution telecoms facilities and frequencies licensed of certain materials, including child under a uni"ed carrier license regime. pornography, obscene images and pirated t
"QQFBM
QPTTJCMF
UP
$IJFG
&YFDVUJWF materials. t
+VEJDJBM
SFWJFX
BWBJMBCMF

Copyright Protection t
*OGSJOHFNFOU
PG
DPQZSJHIU
JO
CSPBEDBTUJOH
t
$PQZSJHIU
MBX
JO
UIFPSZ
BQQMJFT
UP
is usually a civil, not a criminal, o!ence. internet broadcasts, but infringement is t
$PNNFSDJBM
USBOTBDUJPOT
JOWPMWJOH
widespread. unauthorized decoders are a criminal t
(PWFSONFOU
IBT
QSPTFDVUFE
VQMPBEFST
PG
o!ense, but enforcement is lax for infringing content. decoders for international TV. t
0OMJOF
QJSBDZ
JT
SBNQBOU
UIFSF
JT
OP
meaningful protection against online streaming of TV channels. t
$PQZSJHIU
MBX
IBT
OPU
CFFO
VQEBUFE
JO
over a decade; inadequacies becoming more apparent.

Convergence and new t
3FHVMBUPSZ
SFHJNF
JT
UFDIOPMPHZOFVUSBM
BT
t
"MUIPVHI
SFHVMBUPSZ
SFHJNF
JT
UIFPSFUJDBMMZ
technologies between traditional TV platforms. technology-neutral, the government has t
$BCMF
%5)
*157
BOE
NPCJMF
no legal authority to regulate OTT TV distribution platforms all compete. services.

Licensing of foreign t
/P
SFTUSJDUJPOT
PO
SFUSBOTNJTTJPO
PG
t
(PWFSONFOU
IBT
OP
MFHBM
BVUIPSJUZ
UP
channels foreign channels. regulate channels broadcast over the Allowed, prohibited or t
/P
NFBOJOHGVM
SFTUSJDUJPOT
PO
internet, whether domestic or foreign in unregulated? downlinking: channels not subject origin. to downlink licensing, but operators’ bouquets must be noti"ed. t
4QFDJBM
GBDJMJUBUJPO
GPS
iOPOEPNFTUJDw
broadcast uplinks.

Licence fees and taxation t
%PNFTUJD
QBZ
57
BOOVBMMZ
),
t
(PWFSONFOU
IBT
OP
MFHBM
BVUIPSJUZ
million plus HK$4 per subs. to impose licenses or fees on channels t
/POEPNFTUJD
57
BOOVBMMZ
BT
MPX
BT
broadcast over the internet, whether HK$56,400. domestic or foreign in origin. t
*OUFOUJPO
JT
UIBU
GFF
POMZ
DPWFST
BMM
administrative costs.

Rate regulation t
/POF t
/POF Including wholesale and retail rate regulation and whether there are any price controls on e.g. basic tier

Program packaging t
/P
SFTUSJDUJPOT t
/POF Including tiering, bundling, any mandatory a la carte

26 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Restrictions on advertising t
/P
NJOVUBHF
MJNJU
GPS
QBZ57 t
/P
MJNJUT
PO
BEWFSUJTJOH Including localization rules, t
4QFDJëD
MFHJTMBUJPO
BOE
UIF
(FOFSJD
$PEF
t
)POH
,POH
MBX
PVUMBXT
TPMJDJUBUJPO
revenue and minutage of Practice on Television Advertising of bets (bookmaking) by unauthorized restrictions Standards contain a range of other websites, including TV sites, whether they restrictions on television advertising are located inside or outside Hong Kong. (including on pay-TV platforms). (However, as a practical matter, police are only able to take action against sites located within Hong Kong.) t
"EWFSUJTJOH
SFTUSJDUJPOT
JO
UIF
(FOFSJD
Code of Practice on Television would not apply to OTT TV services. However such services would be subject to the restrictions and prohibitions in "rearms and smoking legislation.

Content regulation t
/P
MPDBM
DPOUFOU
RVPUBT t
/P
MPDBM
DPOUFOU
RVPUBT Including local content t
1MBUGPSN
PQFSBUPST
BOE
DIBOOFMT
SFRVJSFE
t
#BTJD
DPOUSPMT
JO
UIF
$0*"0
BQQMZ
quotas, content control and to adhere to broad guidelines. to Internet TV. Distributing obscene insertion of classi!cation t
*O
BEEJUJPO
UP
HFOFSBM
57
DPOUFOU
materials through a website based in Hong labels into international regulation, the Control of Obscene and Kong would be an o!ense. feeds Indecent Articles Ordinance (COIAO) t
"
$PEF
PG
1SBDUJDF
DPNNJUT
JOUFSOFU
regulates the publication and public service providers in Hong Kong not to display of obscene and indecent articles. allow their services to host material “likely to be classi"able as obscene.” t
/P
FYUSBUFSSJUPSJBM
SFBDI
UP
XFCTJUFT
outside Hong Kong. No attempts are made to repress reception of obscene video from foreign sites.

Regulations on languages, t
/POF t
/POF dubbing/subtitling and captioning

Program supply restrictions t
/P
SFTUSJDUJPOT
t
/POF Including must provide rules and other restrictions on exclusivity

Investment restrictions t
/P
MJNJUT
PO
GPSFJHO
JOWFTUNFOU
UIPVHI
t
/P
SFHVMBUPSZ
SFTUSJDUJPO
PO
GPSFJHO
Including foreign direct a majority of directors must be HK investment. investment in platforms and residents. t
/P
MJNJUT
PG
BOZ
LJOE
PO
JOUFSOFU
programming and cross- t
4PNF
DPOTUSBJOUT
PO
DPOUSPM
PG
NVMUJQMF
broadcasters, including cross-media media ownership restrictions media outlets apply to both domestic and ownership. foreign investors.

Same Same but Di!erent? 27 Regulatory Regime Review Pay TV OTT TV

Investment restrictions t
"
CSPBEDBTU
MJDFOTFF
DBOOPU
IBWF
DPOUSPM
Including foreign direct of other licensees (unless it is a non- investment in platforms and domestic licensee controlling a domestic programming and cross- pay licence) nor can an advertising agency, media ownership restrictions sound broadcasting licensee, a proprietor of a newspaper produced in Hong Kong, a sound/television material transmitter, a domestic sound broadcasting licensee, a broadcast content provider, or a person who exercises control over the abovementioned categories of persons or the associate of these persons have control over a licensee without prior government approval. Retransmission t
/POF t
/POF arrangements Including must carry and remuneration

Consumer protection t
/P
NBOEBUPSZ
DPPMJOHPê
QFSJPE
JO
QMBDF
t
5SBEF
%FTDSJQUJPOT
0SEJOBODF
XPVME
Including cooling-o" period but a minimum 7 day cooling o! period is theoretically apply to OTT TV services and termination rights recommended in a code of practice issued available locally as it applies generally to all by the CA. commercial practices in Hong Kong. t
5SBEF
%FTDSJQUJPOT
0SEJOBODF
HFOFSBMMZ
prohibits false trade descriptions, false marks and mis-statements in respect of services sold, and requires speci"c information to be provided to consumers for speci"ed products. t
*G
B
DVTUPNFS
JOUFOET
UP
UFSNJOBUF
B
telecommunications service contract or exercise his rights under the contract, and the operator imposes non-contractual barriers that are onerous or disproportionate, such behaviour may constitute aggressive commercial practices which are prohibited under the Trade Descriptions Ordinance. t
0'$"
IBT
OP
QPXFS
PS
SPMF
JO
UIF
settlement of contractual disputes between individual customers and operators.

Knowledge Partner John McLellan Haldanes is a Hong Kong-based law "rm experienced in serving [email protected] the needs of clients, both locally and throughout the Asia region. Tel: +852 2230 2868 Established in 1975, the partners have an extensive collective knowledge of legal practice in the region. Haldanes 7th Floor, Ruttonjee House John McLellan is the partner in charge of Haldanes’ commercial, No. 11 Duddell Street media, sports and entertainment practice in Asia. He has Central acted in commercial transactions in most Asian jurisdictions Hong Kong including mergers and acquisitions, joint ventures and licensing arrangement, as well as more industry speci"c arrangement. Tel: +852 2868 1234 Fax: +852 2845 1637 www.haldanes.com

28 COUNTRY REPORT India India India

Like China, India has one of the largest pay television Convergence markets in the world. Like China, the pay television In late 2014, the Department of Telecommunications market is subject to a high level of regulation; and in India’s revived a plan to converge and reform the various regulatory case, covering matters such as downlinking licenses, retail agencies, but no legislation has been introduced to date. and wholesale rates and program supply and packaging. Content regulation remains the purview of the Ministry of However, unlike China, strict regulation does not extend to Information and Broadcasting, while “carriage” regulation content supply, and OTT television is lightly regulated. (including broad controls on content distribution and In addition to the restrictive regulatory environment retail/wholesale rates) are in the hands of the Telecom and onerous administrative requirements, the pay Regulatory Authority of India (TRAI). television industry is challenged by a lack of transparency; #e Government is also considering the regulation in particular, under-reporting of subscriber numbers of net neutrality, which may impact the provision and by cable operators has been a major problem for many availability of OTT TV services in India. In March 2015, years. However, some progress is being made on the latter the Telecom Regulatory Authority of India (TRAI) issued issue; the ongoing progressive digitization of India’s cable a consultation paper on the regulatory framework for networks is helping to address it to a large extent. OTT services which explored regulatory approaches to net Ongoing copyright issues include cable and DTH signal neutrality. #e Telecom Ministry has also been considering theft and online piracy. Enforcement is possible through these approaches; no government response to the numerous India’s courts, but the processes are long. Whilst legislative submissions made during the consultation process had yet convergence remains a work-in-progress, the Indian been "nalized at the date of publication. Government in November 2015 con"rmed proposed changes to its foreign investment regime, lifting certain Foreign investment restrictions in the media sector. In November 2015, the Government announced an easing of foreign investment restrictions, enabling 100% foreign Copyright ownership of network operators (cable television, DTH, Pay television piracy, particularly interception and HITS and mobile TV). However, it is understood that redistribution of channel signals by tens of thousands of government approval will still be required for investment local cable operators, has been a particular problem in beyond 49%. India. Although the digitization process should reduce cable #e FDI limit for Indian news channels has also been signal theft, its impact is likely to be constrained by the use raised from 26% to 49%. of inadequate technological protection measures in set top Although the changes have been received positively, boxes and the continued supply of analogue cable services it has also been noted that the administrative procedures in many digital areas. for any required approvals may need to be streamlined for Online and mobile piracy has proven di%cult to control foreign investment to increase. and Indian law provides only a limited ability to block infringing websites. #e courts have however, taken some initiative to put a hold on such activities. In 2014, the Delhi High Court issued orders to ISPs to disable access to some 400 websites; which were carrying and streaming pirated sports content online without authorization. John Doe orders were handed down, to put a ban on such websites. Various proposals have been made by industry to amend the Copyright Act and the Information Technology Act, to bolster police capacity and to modernise court processes nationwide to enable more e!ective enforcement in similar copyright cases.

Same Same but Di!erent? 29 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
.VMUJQMF
BHFODJFT
XJUI
PWFSMBQQJOH
t
6OEFS
UIF
*OGPSNBUJPO
5FDIOPMPHZ
Details of regulators responsibility: Act, the Indian Computer Emergency – Information Ministry (MIB) is part of Response Team (CERT) monitors online the government content, but agency has mandate limited – Telecom Regulatory Authority of India to computer security. At present, no other (TRAI) is independent of the Ministry, regulatory agency involved. though sta!ed by civil servants. t
*O
UIF
BCTFODF
PG
BOZ
TQFDJëD
SFHVMBUJPOT
t
3FHVMBUPST
BSF
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PG
BMM
for OTT, several local OTT operators operators. have been voluntarily adhering to the same t
+VEJDJBM
SFWJFX
BWBJMBCMF
BOE
SFHVMBSMZ
VTFE content code and advertising code as for cable television networks. t
*O
SFTQFDU
PG
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DPOUFOU
on o!shore OTT services, the Indian Government may, in limited circumstances, have recourse to site- blocking powers under the Information Technology Act. However, site-blocking has proven controversial.

Copyright Protection t
%PNFTUJD
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MBXT
PO
TJHOBM
QJSBDZ
t
0OMJOF
QJSBDZ
JT
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are good, but enforcement lax, as local CERT is the de facto authority for agencies not well educated on copyright addressing online issues including piracy, matters. in absence of any other enforcement t
1JSBDZ
PG
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TFFNT
UP
CF
HSPXJOH agency. t
$PNNFSDJBM
GSBVEVOEFSEFDMBSBUJPO
IBT
t
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PG
been rife – government hopes to address pirated channel streams. this problem by cable digitization program now underway.

Convergence and new t
%JTQBSBUF
USFBUNFOU
XJUI
UFMFDPNT
t
/P
SFHVMBUJPOT technologies favoured in a variety of ways. t
%JêFSFOU
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being used to regulate IPTV and mobile. t
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PS
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SVMFT
(contained in cable legislation) will apply to other platforms.

Licensing of foreign t
(PWFSONFOU
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SFRVJSFE
t
/P
MJDFOTJOH
SFHJNF channels t
%PXOMJOLJOH
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IBT
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Allowed, prohibited or applications requirements for channels. unregulated? (Heaviest restrictions on news channels.) t
)PXFWFS
BSPVOE

JOUFSOBUJPOBM
channels now licensed. Licenses given for 10-year period.

30 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

License fees and taxation t
/PNJOBM
GPS
$BCMF
o

3QT t
/P
MJDFOTF
GFFT t
%5)
o
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1,000,000 Rps plus 10% of gross revenues. t
)*54
o
  
3QT
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entry fee; no annual fees other than spectrum license fee of 1,000 Rps per "xed mobile station plus spectrum royalty calculated by multiplying 35,000 Rps by a factor determined by the particular bandwidth used. t
*157
o
BOOVBM
GFF
SBOHFT
GSPN

depending on license. t
$IBOOFM
EPXOMJOLJOH
o
BOOVBM
GFFT
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from 500,000 Rps (domestic-origin channels) to 1,500,000 Rps (foreign-origin channels). For downlinking foreign-origin channels 1,000,000 Rps to be paid at the time of grant of permission. t
"O
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CVSEFO
JT
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State level of entertainment taxes on pay television service providers, with some taxes being excessively high – up to 50%.

Rate regulation t
3FUBJM
SBUFT
GPS
DBCMF
DPOUSPMMFE
TJODF

t
/P
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*NQMFNFOUBUJPO
PG
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BEESFTTBCMF
TZTUFNT
controls on e.g. basic tier brought greater $exibility; gradual cable digitization implies gradual removal of overall caps, except for basic tier of “FTA” channels whose price should be 100 Rps or less. t
%5)
*157
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not regulated, with the exception that each operator must o!er a basic tier at a price not to exceed 150 Rps. t
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GPS
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GSP[FO
4NBMM
increments allowed.) Since 2006, in digital areas, wholesale prices set by government. t
(PWFSONFOU
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wholesale price ceilings for DTH and IPTV systems at 50%/42% (respectively) of the rate charged to non-digital cable operators.

Program packaging t
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PG
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t
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SFTUSJDUJPOT Including tiering, bundling, channels is currently prescribed. any mandatory a la carte t
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are mandatory at wholesale and retail levels.

Same Same but Di!erent? 31 Regulatory Regime Review Pay TV OTT TV

Restrictions on advertising t
.JOVUBHF
MJNJUFE
UP

NJOT
QFS
IPVS
t
/P
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UP
055
Including localization rules, plus 2 promo mins. Applies to cable, DTH TV. revenue and minutage and IPTV. t
ɨF
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CPEZ
UIF
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restrictions t
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Standards Council of India, seeks to depictions of smoking in programs must be regulate advertisements in any media, accompanied by special tobacco warnings. including online media, and industry t
*OUFSOBUJPOBM
OFXT
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OPU
BMMPXFE
UP
convention is to voluntarily comply. carry local ads.

Content regulation t
/P
MPDBM
DPOUFOU
RVPUBT t
/P
MPDBM
DPOUFOU
RVPUBT Including local content t
$POUFOU
SFHVMBUJPO
OPU
SFTUSJDUJWF
o
MBSHFMZ
t
/P
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TQFDJëDBMMZ
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UP
quotas, content control and a self-regulatory approach. OTT. insertion of classi!cation t
#BTFE
PO
B
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1SPHSBN
$PEF
t
3FHVMBUPST
FYQFDU
055
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labels into international with separate codes adopted by industry same content code as for cable television feeds organizations. networks. Application to o!shore OTT providers has not been tested. t
*O
SFTQFDU
PG
PCKFDUJPOBCMF
DPOUFOU
on o!shore OTT services, the Indian Government may, in limited circumstances, have recourse to site- blocking powers under the Information Technology Act. However, site-blocking has proven controversial.

Regulations on languages, t
/POF t
/POF dubbing/subtitling and captioning

Program supply restrictions t
&YDMVTJWJUZ
OPU
BMMPXFE
GPS
MJOFBS
DIBOOFMT
t
/P
SFHVMBUJPOT Including must provide rules “Must Provide” regulations in force, t
/P
BQQMJDBCMF
TQPSUT
TIBSJOH
SVMFT
JO
and other restrictions on applying to all platforms – cable, DTH respect of major sporting events. exclusivity and IPTV. t
&YDMVTJWJUZ
JT
BMMPXFE
GPS
TQFDJëD
QJFDFT
of content on channels, and for VOD o!erings. Many digital platforms using “VOD” channels to air exclusive content. t
3FTUSJDUJWF
iTQPSUT
TIBSJOHw
QSPWJTJPOT
require many sporting events to be given to the public broadcaster, since 2006.

Investment restrictions t
'%*
JT
MJNJUFE
UP t
/P
SFHVMBUJPOT Including foreign direct – 74% in Teleports, DTH, Cable MSOs, investment in platforms and HITS (49% automatic and FIPB programming and cross- approval required beyond 49% up to media ownership restrictions 74%). – 49% in last-mile cable operators. – 74% in Telecom, who can operate IPTV and mobile. – 100% for downlinked foreign channels. – 100% for uplinked Indian channels (non-news). – 26% for Indian news channels.

32 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Investment restrictions t
$SPTTIPMEJOHT
CFUXFFO
%5)
QMBUGPSNT
Including foreign direct HITS licensees, mobile TV licensees investment in platforms and and other types of broadcasters or programming and cross- cable operators limited to 20%. (#ese media ownership restrictions restrictions are not very e!ective according to TRAI.)

Retransmission t
"OBMPHVF
DBCMF
TZTUFNT
NVTU
DBSSZ

t
/P
SFHVMBUJPOT arrangements mandatory channels including 2 national Including must carry and Doordarshan channels and two Parliament remuneration channels and a regional Doordarshan channel. t
%JHJUBM
DBCMF
%5)
BOE
*157
PCMJHFE
UP
carry 21 Doordarshan channels and three other channels. t
/P
SFNVOFSBUJPO
GPS
SFUSBOTNJTTJPO

Consumer protection t
$POTVNFST
IBWF
WBSJPVT
SJHIUT
JODMVEJOH t
/P
SFHVMBUJPOT
BMUIPVHI
HFOFSBM
DPOTVNFS
Including cooling-o" period – Requesting terms and conditions of protection laws would theoretically apply. and termination rights subscription and set top boxes and a Manual of Practice; – Requesting channels on an a-la-carte basis; – Requesting receipts and bill details; – Suspending a cable service for a limited period; and – Seeking redress under consumer protection and other legislation. t
$BCMF
PQFSBUPS
DBOOPU
EJTDPOUJOVF
exhibition of any channel without giving prior notice of "fteen days to its subscribers via local newspapers and scrolling notices on television screens.

Knowledge Partner Kaushik Moitra TMT Law Practice is India’s "rst and only boutique Technology, [email protected] Media and Telecommunications Law "rm. Our practice combines Tel: +98 1040 1650 Intellectual Property, regulatory, corporate and transactional, dispute resolution, and legislative work in the Technology, Media TMT Law Practice and Telecommunications Industry. C-2/39, Safdarjung Development Area Our strength lies in understanding the issues faced by corporate New Delhi 110 016, India decision makers because our lawyers have themselves held key government and in-house positions. We understand how Tel: +91 11 4168 2996 geo-political issues a!ect operations because our lawyers Fax: +91 11 4168 2995 have themselves worked in complex business and regulatory Email: [email protected] environments. tmtlaw.co.in

Same Same but Di!erent? 33 34 COUNTRY REPORT Indonesia Indonesia Indonesia

In recent years, the Indonesian pay-TV industry has #e site blocking scheme has been a positive enjoyed a relatively positive regulatory environment, development given the high incidence of online piracy in with fewer restraints on pay-TV o!erings than in other Indonesia. It is understood that the scheme will soon be Asian countries and some legislative improvements in the e!ective, once Kominfo "nalises certain technical processes. protection of intellectual property rights online. However, On the other hand, the new copyright legislation also uncertainty remains a challenge for the industry, with new contains a new exception to copyright infringement for broadcasting and convergence legislation being anticipated, the dissemination of copyright content through online but remaining unpassed, for several years. In addition, media for non-commercial or non-pro"t purposes or recent actions of the Indonesian Broadcasting Commission where the author has not objected to the dissemination. (KPI), demonstrate a very “blunt instrument” approach to It is considered that this exception is inconsistent with content regulation issues, treating even premium pay-TV Indonesia’s treaty obligations, undermines the rights of channels on a par with FTA TV that is available in every copyright owners and may dilute the e!ect of the website home. In particular, this has resulted in a considerably blocking scheme. stricter approach being taken to advertising and content In addition, cable signal theft remains a signi"cant censorship. problem throughout the country, and while there have been a number of successful enforcement actions launched by Legislative uncertainty the Indonesian industry association APMI, the problem A draft of the Broadcasting Law was introduced to continues to grow. Government e!orts to use cable licensing Parliament but not passed before the 2014 elections. A to require respect for IP rights are not sustained once the new draft is anticipated but is unlikely to be issued anytime license is issued. soon. It is expected that the revised legislation will address matters including the division of authority between the “Made in Indonesia” advertising rules Ministry of Communication and Information (Kominfo) “Made in Indonesia” advertising regulations have existed and KPI, exclusive content arrangements and cross-media for several years in Indonesia, requiring local resources to be ownership. used in the production of most commercials targeted at the At the same time, convergence legislation has been local market. However, the e!ect of these regulations was expected for several years as the existing broadcasting moderated by limited implementation and by permitted legislation does not address the online provision of content. exceptions, such as advertising for international brands. #e Minister has recently announced that he intends to However, over the past twelve months KPI has taken a study recent developments in Europe in respect of OTT much stricter position, stating that the law requires foreign services before addressing the subject domestically. advertising to be replaced with domestic advertising, without exception. KPI’s position appears to be unique Copyright reform in the region and causes particular di%culty for foreign Indonesia’s new copyright legislation became law in October channels transmitted via regional feeds. 2014 and implementing regulations were signed in July 2015. #e legislation introduced a scheme to block access to Content regulation websites containing infringing materials. #e scheme allows In addition to its position on local advertising, KPI has members of the public to report copyright infringement, also become more conservative in its approach to content with a veri"cation team assessing the case. If the veri"cation regulation over the past year, requiring operators to team concludes that the site should be blocked, it reports implement parental controls and content labelling and to to the Director General of Intellectual Property, who in pre-censor content on all pay-TV channels. KPI’s approach turn makes a submission to Kominfo. Sites are then to be is rooted in a requirement that pay-TV follow the same blocked within a period of 8 to 12 working days, depending (strict) code promulgated for free-to-air TV, a requirement on urgency. Kominfo publishes details of blocked sites which runs counter to international practice. and, where an entire site has been blocked, Kominfo must submit the matter to court review within 14 working days.

Same Same but Di!erent? 35 A “temporary” ban has already been issued for one choice. #e Commission’s isolationist approach is ignoring foreign channel, and KPI is now devoting particular regional and global best practices which recognize di!erent attention to fashion and music channels. Operators are content standards for pay-TV (where adult consumers admonished to ensure inappropriate content is not aired. choose to receive a channel or channels) and free terrestrial To date, KPI has not imposed any sanctions. Potential TV, which can be watched by all viewers. And at the same sanctions on pay-TV operators range from 6 months to 12 time, it is turning a blind eye to growing competition years imprisonment and/or "nes of IDR250mn to IDR6bn from totally unregulated (and frequently pirated) OTT (US$18,000 - 430,000). content. KPI’s approach to advertising and content regulation Together with the legislative uncertainty, the risk of negatively impacts the pay-TV industry, increasing costs, investing in the Indonesian pay-TV industry has increased creating new barriers to entry and reducing consumer as a result of these developments.

Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
3FHVMBUPSZ
KVSJTEJDUJPO
TIBSFE
CFUXFFO
t
1VSF
055
UFMFWJTJPO
JT
OPU
SFHVMBUFE
Details of regulators Ministry (Kominfo) and Broadcasting Unlike IPTV service providers, OTT Commission (KPI). operators are not required to be licensed t
,PNJOGP
IBT
MFBE
PO
MJDFOTJOH
BOE
nor to give a service level guarantee to market structure; KPI has lead on content customers. regulation. t
*OEPOFTJBO
SFHVMBUPST
BSF
BXBSF
PG
UIF
t
,PNJOGP
QSPGFTTJPOBM
BOE
FWFO disparity between traditional pay-TV and handed, but KPI has recently taken a OTT TV services. Minister intends to controversially hardline position against study new European regulations before foreign channels. addressing OTT services in Indonesia.

Copyright Protection t
4USPOH
SFHVMBUJPOT
PO
QBQFS t
$PQZSJHIU
QSPUFDUJPO
GPS
POMJOF
DPOUFOU
t
4PNF
FOGPSDFNFOU
BDUJPOT
UBLFO
BU
UIF
or online infringement of copyright in request of the local industry Association. audiovisual materials, remains untested in t
8FBL
QVCMJD
VOEFSTUBOEJOH
MFBET
UP
NVDI
Indonesia. infringement, especially outside Java. t
6OEFS
OFX
$PQZSJHIU
-BX
,PNJOGP
IBT
t
(PWFSONFOU
VTFE
MJDFOTJOH
QSPDFTT
UP
FYFSU
ordered blocks on access to some websites pressure on cable industry to respect IP, containing infringing materials, using but now even licensed operators backslide implementing regulations signed in July and carry illegal content. 2015.

Convergence and new t
3FHVMBUJPOT
SFRVJSF
TFQBSBUF
MJDFOTFT
GPS
t
/P
MJDFOTJOH
PG
055
57
TFSWJDFT
technologies pay-TV and telecom services. currently. t
*157
SFHVMBUJPOT
JTTVFE
JO

continue this approach, requiring a consortium with licenses for a) pay-TV, b) ISP service, and c) network infrastructure.

Regulation of OTT services t
/P
TQFDJëD
SFHVMBUJPO
PG
05557
services, other than certain content restrictions which have so far been enforced through blocking some pornographic websites.

36 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Licensing of foreign t
/P
MJDFOTJOH
QSPDFEVSF
GPS
GPSFJHO
DIBOOFMT
t
/P
MJDFOTJOH
SFHJNF
PS
SFTUSJDUJPOT
PO
channels However, some channels risk exclusion channel programming. because of KPI content censorship. t
,1*
JT
JODSFBTJOHMZ
QMBDJOH
SFTUSJDUJPOT
on content broadcast on pay-TV and has mandated that operators internally censor to ensure no inappropriate content is aired. t
"
SFRVJSFNFOU
GPS
TBUFMMJUF
TJHOBM
MBOEJOH
rights has been in force since 2007. t
ɨF
VQMJOL
TUBUJPO
GPS
%5)
PQFSBUPST
must be located within Indonesia. t
6QMJOLEPXOMJOL
QPMJDZ
IBT
OPU
CFFO
B
signi"cant barrier; initial uncertainty about satellite “reciprocity” has given way to growing con"dence, in light of steady and reasonable policy.

License fees and taxation t
-JDFOTF
GFFT
GPS
OFX
QBZ57
MJDFOTFT
BSF
BT
t
/POF
JO
SFTQFDU
PG
BO
055
57
TFSWJDF follows: t
"QQMJDBOUT
GPS
B
UFNQPSBSZ
JOJUJBM
MJDFOTF
pay IDR15-50mn depending on the zone. #is is a one time fee payable for each licensed coverage area. t
3FDJQJFOUT
PG
QFSNBOFOU
MJDFOTFT
QBZ
IDR5.3 -17.7mn annually, depending on the zone. Fees are levied for each licensed coverage area.

Rate regulation t
/POF t
/POF Including wholesale and retail rate regulation and whether there are any price controls on e.g. basic tier

Program packaging t
5JFSJOH
JT
BMMPXFE
BOE
XJEFMZ
QSBDUJDFE
t
/POF Including tiering, bundling, No a la carte requirement. any mandatory a la carte

Restrictions on advertising t
6OUJM
'FCSVBSZ

BMUIPVHI
UIFSF
XFSF
t
/POF Including localization rules, regulations on foreign-made ads (including revenue and minutage a list of exceptions) the regulation was restrictions never implemented and foreign ads were aired on pay TV. In Feb 2015, KPI sought blanket replacement of foreign ads with domestic ads and in its interpretation did not permit the exceptions for “international brands” that were outlined in previous “Made in Indonesia” ad regulation. t
6ODMFBS
XIFUIFS
BOZ
TBODUJPOT
GPS
OPO compliance have been imposed to date. t
/P
MJNJU
PO
NJOVUBHF
PS
PO
BE
SFWFOVF

Same Same but Di!erent? 37 Regulatory Regime Review Pay TV OTT TV

Content regulation t
1BZ57
PQFSBUPST
BSF
SFRVJSFE
UP
CSPBEDBTU
t
/P
MPDBM
DPOUFOU
RVPUBT
ɨF
*OEPOFTJBO
Including local content 20% local channels (10% FTA and 10% Pornography Law requires ISPs to block quotas, content control and local content). Broadcasting Commission all access to pornographic content. insertion of classi!cation has developed detailed content codes; in Government blocking lists are extensive, labels into international 2012 the codes for FTA TV and pay-TV but do not cover some piracy sites which feeds were merged, greatly increasing strictures frequently contain pornography. on pay-TV. t
ɨF
&MFDUSPOJD
*OGPSNBUJPO
BOE
t
4FOTJUJWJUJFT
PO
DPOUFOU
JTTVFT
BSF
IJHI Transactions Act contains some content t
,1*
JT
SFRVJSJOH
QBZ
57
PQFSBUPST
UP
restrictions, including in respect of content undertake internal censorship, broadcast against propriety, defamatory content the Indonesian program classi"cations and and content inciting racial or ethnic provide parental controls. hatred, although there has not yet been t
,1*
JT
UBLJOH
BO
JODSFBTJOHMZ
IBSE
MJOF
XJUI
any enforcement action against content content that contravenes the Pornography providers under this legislation. Law, recently issuing a “temporary” ban against a foreign channel.

Regulations on languages, t
'PSFJHO
ëMNT
NVTU
CF
TVCUJUMFE
PS
t
/POF dubbing/subtitling and dubbed. captioning

Program supply restrictions t
#SPBEDBTUJOH
-BX
JT
TJMFOU
PO
FYDMVTJWF
t
/POF Including must provide rules content. However, the Ministry has taken and other restrictions on a stance that “essential” content must be exclusivity distributed through a transparent tender process. t
"OUJ.POPQPMZ
MBX
IBT
BMTP
CFFO
interpreted to restrict some essential content from exclusive contracts. t
i/POFTTFOUJBMw
QSPHSBNNJOH
NBZ
CF
exclusive.

Investment restrictions t

'%*
QFSNJUUFE
JO
QBZ57
QMBUGPSNT
t
*O
SFBMJUZ
OPOF
BT
055
57
PQFSBUPST
EP
Including foreign direct 49% in telecoms. not need to be registered in Indonesia. investment in platforms and t
/P
MJNJUT
PO
XIPMFTBMF
QSPWJTJPO
PG
QBZ t
*G
UIF
DPNQBOZ
JT
BMTP
B
iNVMUJNFEJB
programming and cross- TV programming. service provider” (if so described in its media ownership restrictions t
$PNQBOJFT
NBZ
PXO
EJSFDUMZ
PS
JOEJSFDUMZ
articles of association, or if the Investment no more than: Coordination Board regards it as such) or – one pay-TV company, one private ISP then there is a 49% foreign ownership radio station and one newspaper in the cap. same region; – one pay-TV company and one private FTA TV station with one newspaper in the same region; – one pay-TV company, one private FTA TV station and one private radio station. t
*O
SFBMJUZ
POMZ
MJNJUT
PO
EJSFDU
PXOFSTIJQ
are enforced.

38 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Retransmission t

PG
FBDI
QBZ57
PQFSBUPST
CPVRVFU
t
/POF arrangements must be Indonesian channels (10% FTA Including must carry and and 10% local content). Virtually all remuneration operators comply with the 10% FTA requirement, whilst most of the larger operators comply with the local channel requirement. t
.VTU
BMTP
DBSSZ
HPWFSONFOU
DIBOOFM
TVRI.

Consumer protection t
/P
TQFDJëD
SFHVMBUJPO t
/P
TQFDJëD
SFHVMBUJPO Including cooling-o" period and termination rights

Knowledge Partner Jeanette K. Chan Paul, Weiss is a highly respected international law "rm serving [email protected] clients in China, Japan, Taiwan, Korea, Singapore and India Tel : +852 2846 0388 through our o%ces in Beijing, Hong Kong and Tokyo. We represent some of the best known U.S. and international "nancial Paul, Weiss, Rifkind, Wharton institutions, telecommunications and media companies, private & Garrison equity funds, investment banks, consumer goods and other 12th Floor, Hong Kong Club companies in connection with a broad range of international Building business ventures across Asia. We also assist international 3A Chater Road, Central companies in handling regulatory matters that arise in conjunction Hong Kong with their U.S. operations.

Tel: +852 2846 0300 www.paulweiss.com

Same Same but Di!erent? 39 40 COUNTRY REPORT Japan Japan Japan

In Japan, pay television competes against a strong free-to-air #e Japan Interactive Advertising Association issues television sector. Various OTT television services have been guidelines to member online ad media companies as a available in Japan for several years, the most successful being means of self-regulating online advertising. supported by either existing television broadcasters or by One aspect of the advertising ecosystem in Japan is the mobile phone carriers. limited availability of ratings information. Video Research Japan’s regulatory approach to pay television is light- Ltd remains the principal ratings company in the country. It touch and OTT television is not speci"cally regulated. is owned by a partnership of advertising agency Dentsu and Features of Japan’s regulatory environment include the terrestrial broadcasters. It does not provide data for pay- legislative convergence, e!ective copyright protection and TV that is comparable in scope or frequency with FTA TV self-regulation of advertising and content. data, and as such, it puts pay-TV advertising at a competitive disadvantage vis-a-vis free-to-air television advertising. Convergence Japan’s broadcasting laws were revised in 2010, when Content regulation telecommunications, cable television and cable radio #e regulation of content is minimal in Japan: there are no statutes were merged. local content quotas, nor requirements for local classi"cation #ere are no plans for further legislative change as at the or other content labels to be inserted into international date of publication. feeds. #ere are no content-sharing rules requiring certain content to be available on free-to-air television. Copyright protection Broadcasting legislation sets basic content standards, Copyright protection and enforcement is more e!ective requiring broadcasters to avoid harming public safety or in Japan than in most other countries in the Asia-Paci"c morals, to be fair, to avoid distorting facts, to provide region. Japanese copyright law does not provide for site- balance and to establish and disclose program standards. blocking to address online piracy, instead providing for #e Japan Commercial Broadcasters Association has criminal penalties ("nes and imprisonment). developed template standards. In addition, the public broadcaster Nihon Housou Advertising regulation Kyoukai (NHK) and the Japan Commercial Broadcasters #e Japan Commercial Broadcasters Association, comprised "TTPDJBUJPO
DPNQSJTF
UIF
#SPBEDBTUJOH
&UIJDT

1SPHSBN
of the major domestic television and radio broadcasters, Improvement Organization (BPO) which deals with supervises television advertising on a self-regulatory basis. complaints and ethical issues. #e BPO conducts investigations Its template standards are typically incorporated into and issues opinions and recommendations to broadcasters. broadcasters’ internal standards. In respect of advertising, the In respect of OTT television, online service providers Association’s standards set an 18% limit on the volume of targeting teenagers are required by law to adopt measures to advertising for both free-to-air television and pay television. minimise young people’s exposure to harmful content.

Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
ɨF
.JOJTUSZ
PG
*OUFSOBM
"êBJST
BOE
t
ɨF
#SPBEDBTU
-BX
EPFT
OPU
EFëOF
055
Details of regulators Communications (the MIAC) administers TV. the Broadcast Law and the Radio Wave t
.PTU
055
TFSWJDFT
BSF
OPU
TQFDJëDBMMZ
Law. #e MIAC is a government ministry regulated. However some services (such and is therefore not autonomous from the as the NOTTV mobile service) have been government. MIAC formulates policies categorized as broadcasting and required to through consultative councils which may get licenses. include industry representatives.

Same Same but Di!erent? 41 Regulatory Regime Review Pay TV OTT TV

How regulated? t
'VSUIFS
UIF
+BQBO
$PNNFSDJBM
Details of regulators Broadcasters Association (JCBA) plays the role of a self-regulatory organization, which maintains speci"c content standards required by the Broadcast Law. Commercial broadcasters usually incorporate or refer to the Association’s codes in their own standards. Copyright Protection t
$PQZSJHIU
JT
QSPUFDUFE
CZ
UIF
$PQZSJHIU
t
"T
GPS
QBZ
57 Law which has a strong framework and imposes signi"cant penalties. t
ɨFSF
JT
FêFDUJWF
FOGPSDFNFOU
BOE
DPOUFOU
protection. Online piracy is a violation of the Copyright Law which imposes criminal sanctions (imprisonment and "ne). Criminal sanctions on illegal downloading were introduced in 2012. Generally speaking, the police are pro- active in uncovering illegal uploading. t
$PQZSJHIU
DPMMFDUJOH
TPDJFUJFT
NVTU
SFHJTUFS
with the Commissioner of the Agency for Cultural A!airs, and submit to the Commissioner the terms and conditions on how third parties can use copyright. #is applies whether the users are pay TV or online TV operators. Convergence and new t
ɨF
#SPBEDBTU
-BX
JT
QMBUGPSNOFVUSBM
BOE
t
ɨFSF
JT
OP
TQFDJëD
SFHVMBUJPO
PG
055
57
technologies requires broadcasters to be licensed. services. t
1BZ
57
PQFSBUPST
BSF
OPU
SFRVJSFE
UP
PCUBJO
the regulator’s permission before o!ering ancillary services insofar as the services do not contradict the programming plan or the business plan submitted by them with their license application. t
/P
SFHVMBUJPOT
HPWFSO
UIF
SFDFJQU
PG
television on di!erent end devices. Licensing of foreign t
/P
TQFDJëD
MJDFOTJOH
SFRVJSFNFOUT
GPS
t
"T
GPS
QBZ57 channels foreign channels as long as the pay-TV Allowed, prohibited or platform has necessary licenses. unregulated? t
/P
TQFDJëD
SFTUSBJOUT
PO
DIBOOFM
VQMJOLJOH
or downlinking to satellites. License fees and taxation t
#SPBEDBTUFST
NVTU
QBZ
B
GSFRVFODZ
VTBHF
t
/P
MJDFOTJOH
PS
GSFRVFODZ
VTBHF
GFFT fee if using transmission via radio waves. #e fee varies depending on the frequency band. t
"
SFHJTUFSFE
DBSSJFS
VOEFS
UIF
Telecommunications Business Law must pay a nominal administrative "ling fee. Some cable TV operators may be classi"ed as registered carriers.

42 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Rate regulation t
#BTJD
CSPBEDBTUFST
,JLBO
)PVTPV
t
ɨFSF
BSF
OP
TQFDJëD
SFHVMBUJPOT
Including wholesale and Jigyousha) are required to submit their pay retail rate regulation and TV terms and conditions to the Minister of whether there are any price MIAC and disclose them publicly (e.g. on controls on e.g. basic tier their websites); however, MIAC does not speci"cally regulate retail/wholesale rates. t
ɨFSF
BSF
OP
QSJDF
DPOUSPMT
PO
BOZ
UJFS
PG
pay TV service. Program packaging t
5JFSJOHCVOEMJOH
PG
DIBOOFMT
JT
BMMPXFE
t
/P
SFTUSJDUJPOT Including tiering, bundling, and utilized in practice. any mandatory a la carte Restrictions on advertising t
"EWFSUJTJOH
JT
QFSNJUUFE
t
"EWFSUJTJOH
JT
QFSNJUUFE
BOE
JT
HFOFSBMMZ
Including localization rules, t
/P
NJOVUBHF
SFTUSJDUJPO
VOEFS
UIF
not regulated by the Broadcast Law. revenue and minutage Broadcast Law, but JCBA’s program t
+*""
+BQBO
*OUFSBDUJWF
"EWFSUJTJOH
restrictions standards require that that the volume of Association; formerly Japan Internet advertising per week is 18% or less of total Advertising Association) issues guidelines broadcasting hours. to members (online ad media companies) as a means of self-regulation. Content regulation t
ɨFSF
BSF
OP
MPDBM
DPOUFOU
RVPUBT
UIFSF
BSF
t
/P
MPDBM
DPOUFOU
RVPUBT
OPS
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Including local content no requirements for the insertion of local requirements. quotas, content control and classi"cation and other content labels into t
6OEFS
UIF
"DU
PO
UIF
%FWFMPQNFOU
PG
insertion of classi!cation international feeds. an Environment that Provides Safe and labels into international t
ɨF
#SPBEDBTU
-BX
SFRVJSFT
CSPBEDBTUFST
UP
Secure Internet Use for Young People, feeds avoid harming public safety or morals, to be operators who provide internet services politically fair, to avoid distorting facts and to to teenagers are to adopt measures for provide balance where there are con$icting the minimum exposure of teenagers viewpoints, and to establish and publicly to harmful information, including disclose standards for television programs. information that induces them to commit t
ɨF
+$#"T
QSPHSBN
TUBOEBSET
BMTP
a crime, stimulates sexual drive or contains require broadcasters to consider viewers’ atrocious descriptions such as graphic circumstances, such as broadcasting time, depictions of a murder. when making program content and ensure that viewers do not feel uncomfortable due to the program’s content.

Regulations on languages, t
(FOFSBMMZ
CSPBEDBTU
QSPHSBNT
DBOOPU
CF
t
/POF dubbing/subtitling and dubbed more than once (programs for captioning free-to-air TV may be dubbed up to 10 times). Program supply restrictions t
/P
iNVTU
QSPWJEFw
SVMFT
PS
PUIFS
t
/POF Including must provide rules restrictions on exclusivity. and other restrictions on exclusivity Investment restrictions t
'PSFJHO
JOWFTUNFOU
JT
SFTUSJDUFE
UP

GPS
t
/P
SFTUSJDUJPOT Including foreign direct basic broadcasters (Kikan Housou Jigyousha). investment in platforms and t
ɨFSF
BSF
OP
GPSFJHO
JOWFTUNFOU
programming and cross- restrictions on “general broadcasters”, such media ownership restrictions as 124/128 CS broadcasters, IP multicast broadcasters and cable broadcasters, nor in respect of producers or distributors.

Same Same but Di!erent? 43 Regulatory Regime Review Pay TV OTT TV

Investment restrictions t
ɨFSF
BSF
OP
GPSFJHO
JOWFTUNFOU
Including foreign direct restrictions on telecoms carriers, although investment in platforms and foreign investments in "xed line carriers programming and cross- require prior noti"cation to the relevant media ownership restrictions ministries. t
ɨF
#SPBEDBTU
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broadcaster (Kikan Housou Jigyousha) from owning, directly or indirectly, multiple basic broadcasting businesses, with certain exceptions. t
ɨFSF
JT
OP
TQFDJëD
SFTUSJDUJPO
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integration, subject to general competition laws. Retransmission t
%FTJHOBUFE
DBCMF
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BSF
SFRVJSFE
t
/P
TQFDJëD
BSSBOHFNFOUT arrangements to rebroadcast terrestrial TV channels Including must carry and broadcast by basic broadcasters (Kikan remuneration Housou Jigyousha) in areas of poor terrestrial reception. Whether any payment is required in respect of such rebroadcasting is a matter for negotiation. Consumer protection t
ɨF
#SPBEDBTU
-BX
SFRVJSFT
CBTJD
t
/P
TQFDJëD
SFRVJSFNFOUT
Including cooling-o" period broadcasters (Kikan Housou Jigyousha) to: and termination rights – submit pay TV terms and conditions to Minister of the MIAC and disclose them publicly (e.g. on website); – notify users in advance before suspending or ceasing their business; – explain terms and conditions to users; and – deal with users’ complaints or queries regarding the terms and conditions appropriately and promptly. Other country-speci#c t
/POF t
/POF information

Knowledge Partner .PSJ
)BNBEB

.BUTVNPUP
JT
B
GVMMTFSWJDF
JOUFSOBUJPOBM
MBX
"rm based in Tokyo, with o%ces in Fukuoka, Nagoya, Osaka, Beijing, Shanghai, Singapore, Yangon and Bangkok. #e "rm has over 350 attorneys and a support sta! of approximately 400, Hiromi Hayashi Mori Hamada & including legal assistants, translators and secretaries. #e "rm is one of the largest law "rms in Japan and is particularly well- [email protected] Matsumoto known in the areas of mergers and acquisitions, "nance, litigation, Tel: +81 3 5220 1811 Marunouchi Park Building, insolvency, telecommunications, broadcasting and intellectual Fax: +81 3 5220 1711 2-6-1 Marunouchi Chiyoda-ku, property, as well as domestic litigation, bankruptcy, restructuring Akira Marumo Tokyo 100-8222 and multi-jurisdictional litigation and arbitration. #e "rm regularly advises on some of the largest and most prominent [email protected] Japan cross-border transactions representing both Japanese and foreign Tel: +81 3 5225 7738 www.mhmjapan.com/en clients. In particular, the "rm has extensive practice in, exposure to Fax: +81 3 5223 7638 and expertise on telecommunications, broadcasting, the internet, information technology and related areas, and provides legal advice and other legal services regarding the corporate, regulatory, "nancing and transactional requirements of clients in these areas.

44 COUNTRY REPORT Malaysia Malaysia Malaysia

Regulation of Malaysia’s pay television industry is generally “Made in Malaysia” advertising rules positive, with a technology-neutral regime, no uplink/ Malaysia is one of very few jurisdictions in the world which downlink restrictions on foreign channels, no program require most advertising to be made in-country, using supply or packaging rules, no language restrictions and no local talent and with content in the local language. #e retransmission requirements. However, extensive content Malaysian rules provide that at least 80% of a commercial control and “Made in Malaysia” rules for advertising and must be local content. Local talent must be used. foreign investment restrictions restrain the industry, and #e rules apply to advertising on foreign channels create competitive inequalities vis-à-vis online content (including pass-through channels) as well as local channels, supply. with foreign advertisements permitted (with an exemption OTT television is theoretically subject to the same certi"cate) for up to 30% of total advertising time. #ese legislation governing pay television, although OTT rules pose a particular challenge for foreign channel television is currently exempt from many requirements, providers wishing to supply the Malaysian market, as a including the “Made in Malaysia” rules. customised feed, rather than an unedited regional feed, Outlined below are certain notable aspects of Malaysia’s would be required. pay television and OTT television environment, being copyright enforcement, the introduction of a goods and Content regulation services tax, the “Made in Malaysia” rules and content #e Communications and Multimedia Act (CMA) restrictions. prohibits the provision of content which is indecent, obscene, false, menacing or o!ensive in character. Copyright protection Beyond this, the CMA contemplates that an industry As in other Asian jurisdictions, online piracy rates are high. body (in this case, the Malaysian Communications and Malaysian law provides various remedies to assist Multimedia Forum, or CMCF) would act as content forum in addressing online copyright infringement: copyright and prepare a content code which, whilst voluntary, can be legislation provides a notice and takedown procedure enforced against members. #e applicable Content Code for infringing online content on Malaysian websites. provides further guidance on the CMA prohibition and A service provider who has received a noti"cation of sets out a content classi"cation system covering free-to-air copyright infringement must remove or disable access and pay television platforms. Online content providers are to the infringing content within 48 hours from the time also subject to the Content Code. Although the content noti"cation has been received. classi"cation system does not apply to online content, In addition, the Malaysian Communications and service providers are subject to other procedures in order to Multimedia Commission has applied its administrative site manage content on their services. blocking powers to require disabling of access to a limited MCMC has increased its scrutiny of content posted number of notorious overseas piracy websites. However, online, predominantly targeting social media and these measures have not kept up with the growth of piracy. online news portals. It has proposed amendments to the Communications and Multimedia Act to assist in Taxation enforcement. #ese amendments may a!ect online services #e Malaysian government introduced a goods and services more generally, including OTT television services. Details tax in 2015. Relevantly, the tax applies to satellite television of the proposed amendments have not been publicised as of subscription fees, television airtime advertisement services the date of this report’s publication, although registration of and to domestic OTT television services. Goods and online news portals has been mooted. services tax only applies to o!shore OTT television services MCMC has also used its site-blocking powers to restrict if used in Malaysia for business purposes. access to over a thousand pornography websites as well as #e tax rate has been set at the relatively low rate of 6%. websites discussing controversial political issues. MCMC has indicated that it is reviewing the Communications and Multimedia Act more generally to take into account the changing media landscape.

Same Same but Di!erent? 45 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
1SJODJQBM
SFHVMBUPS
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t
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SFHVMBUJPO
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Details of regulators Communications and Multimedia to pay-TV regulation. However, OTT Commission (MCMC). #e MCMC is TV is currently exempt from the licensing independent of all operators. regime, rate regulation and local quota and t
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PG
UIF
.$.$
“made in Malaysia” requirements. not assured as it is largely comprised of t
.$.$
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members of the executive government. the Malaysian Communications and t
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CVU
Multimedia Forum (CMCF) is the never tested in practice. designated industry body regulating t
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$PNNVOJDBUJPOT
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content. Multimedia Forum (CMCF) is the designated industry body co-regulating content.

Copyright Protection t
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DPQZSJHIU
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QSPUFDUT
t
.BMBZTJBO
MBX
QSPUFDUT
POMJOF
broadcasts. communication/broadcasts. A notice and t
&OGPSDFNFOU
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takedown procedure applies to infringing agencies namely the Ministry of Domestic online content on Malaysian websites. Trade, Cooperatives and Consumerism t
.$.$
IBT
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JOUFSOFU
TFSWJDF
and MCMC. providers (ISPs) to block access to various t
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CVU
notorious foreign piracy websites. the DTH operator supports investigations in cooperation with Government. t
0O
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QBSUOFSTIJQ
has made for good enforcement.

Convergence and new t
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PG
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SFHJNF t
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DPOUFOU
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BSF
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technologies t
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exempt from the licensing regime. “standardize” licenses, but some di!erences t
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57
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IBWF
FOUFSFE
persist. the market. t
/P
SFTUSJDUJPOT
PO
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PG
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(except DTH exclusivity for current licensee). t
4FWFSBM
OFX
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JTTVFE
DPNQFUJUJWF
cable and IPTV networks now operating.

Licensing of foreign t
/P
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SFTUSJDUJPOT
t
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DPOUFOU
TFSWJDFT
BSF
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channels Operators must notify channels for exempt from the licensing regime. Allowed, prohibited or carriage to MCMC prior to launch. unregulated? t
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DPOUFOU
TVCKFDU
UP
JOUFOTJWF
local content control laws. t
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BEWFSUJTFNFOUT
XJUI
.BEF in-Malaysia “exemption certi"cates”) permitted only up to 30% of total advertising time; all other ads, even those in pass-through channel streams, must be replaced by ads meeting the “Made in Malaysia” requirements.

46 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

License fees and taxation t
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GFF
PG
.:3
 
UP
PCUBJO
t
$VSSFOUMZ
OP
MJDFOTJOH
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individual license for content application content services exempt from licensing services and MYR 50,000 for upon grant regime. of the license. t

HPPET
BOE
TFSWJDFT
UBY
JT
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PO
t
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UP

(PPET
payments to Malaysian OTT TV content and Services Tax (GST). E!ective 1 April providers. In respect of o!shore OTT TV 2015 the GST net was extended to include services, the local consumer to pay GST satellite TV subscriptions and TV airtime if the OTT TV service is used in Malaysia ad sales. for business purposes. Personal use of OTT TV services is exempt from GST.

Rate regulation t
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PG
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XIJDI
t
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SFRVJSFE Including wholesale and an “investigation” could be opened by t
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retail rate regulation and MCMC). set rates for good cause or in the public whether there are any price t
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interest, but currently no such intervention controls on e.g. basic tier set rates for good cause or in the public in respect of OTT TV services. interest but currently no intervention in respect of Pay TV.

Program packaging t
/P
SFTUSJDUJPOT t
/P
SFTUSJDUJPOT Including tiering, bundling, any mandatory a la carte

Restrictions on advertising t
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t
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Including localization rules, requirement. Malaysia” requirements. revenue and minutage t
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.BEF t
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restrictions in-Malaysia “exemption certi"cates”) voluntary basis, although the MCMC is permitted only up to 30% of total empowered to require compliance by OTT advertising time; all other ads, even those TV service providers. in pass-through channel streams, must be replaced by ads meeting the “Made in Malaysia” requirements. t
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UP

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hour/channel average over 24 hours. t
ɨF
$POUFOU
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and transmitters of advertising to ensure advertisements comply with general content rules, are honest and do not concern tobacco, gambling, pornography or other prohibited content. t
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.$.$
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empowered to compel adherence to the Content Code.

Same Same but Di!erent? 47 Regulatory Regime Review Pay TV OTT TV

Content regulation t
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DPOUFOU
RVPUBT Including local content t
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t
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quotas, content control and Prohibition on providing content which is indecent, obscene, false, harassing, insertion of classi!cation is indecent, obscene, false, harassing, menacing or o!ensive. Under the Content labels into international menacing or o!ensive. Code, providers should ensure content feeds t
1BZ57
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transmitted complies with general content allowed to perform self censorship based control guidelines. on detailed, published guidelines from t
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Government. control or knowledge of non-compliant t
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content will be deemed as innocent classi"cation system. carriers. However, ISPs, content hosts and t
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QSPHSBNNJOH
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content aggregators should comply with for pay-TV must be submitted "rst to the a notice and take-down mechanism in Censorship Board. respect of prohibited content. t
i6
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t
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shown at any time of the day. “PG-18” apply. programmes can be shown any time after QN
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can only be shown after 10pm.

Regulations on languages, t
/POF t
/POF dubbing/subtitling and captioning

Program supply restrictions t
/P
SFTUSJDUJPOT t
/P
SFTUSJDUJPOT Including must provide rules and other restrictions on exclusivity

Investment restrictions t
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JO
t
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SFTUSJDUJPOT Including foreign direct Malaysia. investment in platforms and t
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programming and cross- 30%. media ownership restrictions t
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pay TV programming. t
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(e.g. TV-newspapers) but restriction against cross-sectoral ownership (e.g. TV- telecoms). t
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reasons, still require shareholding restrictions / Bumiputera equity as a criteria for licence holders depending on the type of licence, which is decided on an ad hoc basis.

Retransmission t
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SFRVJSFNFOU t
/P
SFRVJSFNFOU arrangements Including must carry and remuneration

48 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Consumer protection t
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JT
QSPWJEFE
t
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Including cooling-o" period under CMCF’s General Consumer Code, Consumer Code applies to OTT TV and termination rights including model procedures for handling services. consumer complaints and disputes. Compliance with the General Consumer Code is mandatory.

Other country-speci#c t
'PSFJHO
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t
/POF information channels directly to hotels in Malaysia, but must license them through the Ministry of Communications and Multimedia as sub- licensor.

Knowledge Partner Timothy Siaw &TUBCMJTIFE
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[email protected] oldest full service law "rms in Malaysia, dedicated to meeting Tel: +603 2027 2660 its clients’ needs by providing the best, comprehensive range of services to a wide clientele ranging from private individuals to Shearn Delamore the largest multinationals. Over 100 lawyers and 250 support 7th Floor, Wisma Hamzah-Kwong sta! form the resources the Firm needs to run and manage the Hing most complex projects, transactions and matters, while constantly No 1 Leboh Ampang coordinating and collaborating across borders with other foreign 50100 Kuala Lumpur and international law "rms. By combining its lawyers’ diverse Malaysia experience, and interdisciplinary collaborations, Shearn Delamore 
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TLJMMT Tel: +603 2027 2727 Fax: +603 2072 2758 www.shearndelamore.com

Same Same but Di!erent? 49 50 COUNTRY REPORT Myanmar Myanmar Myanmar

Myanmar has experienced considerable internal turbulence Content regulation over many decades. Since the 2010 general election and Content has in the past been strictly controlled by the o%cial dissolution of the long-standing military junta government and this situation continues. In addition to in 2011, Myanmar has undertaken a gradual process following Government guidelines, broadcasters perform of reform. Relevantly for broadcasters, a new TV and internal censorship. Broadcasters would also be conscious Broadcasting Law was enacted by the Parliament in August of the fact that Myanmar’s Penal Code provides for criminal 2015. Implementing regulations are yet to be published. defamation. Regulation of pay television under the new broadcasting Online, there are no rules speci"cally regulating law is basic, with no uplink/downlink rules, rate regulation, content. However, the Government has applied criminal constraints on program packaging or supply, retransmission provisions of the Electronic Transactions Law and the requirements or language requirements. #ere are rules Telecommunications Law to restrict online publication addressing advertising, content and foreign investment. of undesirable material, such as satirical postings on Implementing regulations may introduce additional rules. Facebook. #e Electronic Transactions Law created an #e TV and Broadcasting Law expressly does not o!ence of “creating, modifying or altering of information apply to internet and OTT TV services, which remain or distributing of information created, modi"ed or altered unregulated. by electronic technology to be detrimental to the interest #ree aspects of particular note with respect to the of or to lower the dignity of any organization or any Myanmar regulatory environment for broadcasting are the person.” Similarly, the Telecommunications Law contains woeful state of copyright law, the new licensing regime a provision restraining a person from “extorting, coercing, under the TV and Broadcasting Law and content control. restraining wrongfully, defaming, disturbing, causing undue in$uence or threatening to any person by using Copyright protection any telecommunications network.” Along with criminal Myanmar’s 1914 copyright legislation is outdated and defamation, these provisions would constrain the range of wholly inadequate. It does not protect the copyright of content made available online. works created elsewhere. #ere is very little enforcement. As a result, copyright piracy is rife, including the use of unauthorised satellite dishes to illicitly access pay-television program streams. #e Myanmar Government commenced the process of modernising the country’s intellectual property laws in 1998. Since then, many drafts have been produced. #e current draft was scheduled for parliamentary debate during 2015 but remains o! the statute books at the date of publication.

Licensing Prior to the enactment of the TV and Broadcasting Law, broadcasters could not be privately owned. Despite the theoretical prohibition, a number of privately-owned broadcasters were permitted to operate. Under the new legislation, private ownership will be permitted, although licences will be subject to conditions such as foreign investment restrictions. It is unclear how many new licences the Government will issue.

Same Same but Di!erent? 51 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
ɨF
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#SPBEDBTUJOH
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t
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Details of regulators the Ministry of Information (MOI) is states that it does not apply to internet and responsible for regulating the television OTT TV services. and broadcasting sectors in Myanmar. t
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Myanmar given the country’s low internet selected from 18 members proposed by the penetration rates. Although there are no President, Chairman of the Upper House existing rules speci"c to OTT TV, it is and of Lower House of Parliament. likely that such services will fall under the purview of the MOI if the Myanmar Government is minded to regulate OTT TV in future.

Copyright Protection t
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t
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copyright infringement is a criminal Regulated”. o!ence, and civil remedies are also available to the copyright owner. t
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dissemination of pirated pay-TV program streams. t
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enforced and there is reportedly widespread pay-TV piracy, particularly through the use of unauthorised satellite dishes. t
ɨF
57
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the power to cancel the licence of a TV and Broadcasting Service if the licensee is found to use “overspill broadcasts”.

Convergence and new t
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t
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technologies but at present there are few new media Regulated”. services available in Myanmar.

Licensing of foreign t
'PSFJHO
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BEWFSUJTFNFOUT
t
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DPNNFOU
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channels may be distributed by licensed pay-TV Regulated”. Allowed, prohibited or operators. unregulated? t
/P
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License fees and taxation t
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CZ
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57
BOE
t
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Broadcasting Council on a case-by-case Regulated”. basis, depending on the nature and scope of the TV and Broadcasting services to be provided.

Rate regulation t
/P
SFHVMBUJPOT t
1MFBTF
TFF
DPNNFOU
VOEFS
i)PX
Including wholesale and Regulated” retail rate regulation and whether there are any price controls on e.g. basic tier

52 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Program packaging t
/P
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t
1MFBTF
TFF
DPNNFOU
VOEFS
i)PX
Including tiering, bundling, Regulated”. any mandatory a la carte Restrictions on advertising t
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57
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4FSWJDFT
t
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TFF
DPNNFOU
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Including localization rules, are allowed up to 12 minutes of advertising Regulated” revenue and minutage for every hour of broadcasts. restrictions Content regulation t
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57
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DPOUBJOT
t
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TFF
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Including local content a requirement that at least 30% of each Regulated”. quotas, content control and channel’s daily programming and 20% of a insertion of classi!cation licensed commercial TV and Broadcasting labels into international Service’s total programming must contain feeds local content. #e local content quota applies in principle to all channels, but in practice international channels without Myanmar content continue to be retransmitted on pay-TV platforms. t
*O
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DPOUFOU
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comply with Government guidelines aimed at ensuring moral standards, safeguarding Myanmar’s traditions and culture, and maintaining public order and stability. t
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57
and Broadcasting Services under their own internal guidelines. Regulations on languages, t
/P
SFHVMBUJPOT
t
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TFF
DPNNFOU
VOEFS
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dubbing/subtitling and Regulated”. captioning Program supply restrictions t
/P
SFHVMBUJPOT
t
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TFF
DPNNFOU
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Including must provide rules Regulated”. and other restrictions on exclusivity Investment restrictions t
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UP
t
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TFF
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Including foreign direct invest in more than 30% of the total Regulated”. investment in platforms and capital investment in a commercial TV and programming and cross- Broadcasting Service. Such investments are media ownership restrictions further subject to approval from the MOI. t
(PWFSONFOU
BQQSPWBM
JT
SFRVJSFE
GPS
DSPTT ownership of print media and broadcasting media. Retransmission t
/P
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iNVTU
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SFHVMBUJPOT t
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arrangements t
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Regulated”. Including must carry and (MRTV) of the State broadcaster is carried remuneration on all pay-TV platforms. Consumer protection t
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t
1MFBTF
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DPNNFOU
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Including cooling-o" period (CPL) provides for general consumer Regulated”. and termination rights protection rights and responsibilities of both consumers and service providers. Advertisers in particular who engage in any false advertising of goods and services may be held liable under the CPL.

Same Same but Di!erent? 53 Knowledge Partner Chester Toh 3BKBI

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Partner: Head, Integrated Singapore and South East Asia. Over the years, the "rm has been at Regulatory Practice the leading edge of Asian law, having worked on many of the biggest Co-Head, Myanmar Practice and highest pro"le cases in the region. #e "rm has a vast pool of talented and well regarded lawyers dedicated to delivering the very Practice Areas: highest standards of service across all the "rm’s practice areas. Telecommunications, Media, Competition Law In the last few years, the "rm has formed or signed strategic alliances [email protected] with leading local "rms across South East Asia and this led to the Tel: +65 6232 0220 MBVODI
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Rajah & Tann Singapore LLP resources to deliver excellent service to clients in the region including 9 Battery Road Cambodia, China, Indonesia, Lao PDR, Malaysia, Myanmar, #25-01 Straits Trading Building #ailand and Vietnam. #e "rm’s geographical reach also includes Singapore 049910 Singapore based regional desks focusing on Japan and South Asia. Further, as the Singapore member "rm of the Lex Mundi Network, Tel: +65 6535 3600 the "rm is able to o!er its clients access to excellent legal support in Fax: +65 6225 9630 more than 100 countries around the globe. www.rajahtannasia.com

54 COUNTRY REPORT New Zealand New Zealand New Zealand

New Zealand’s pay television market is small, with one Convergence dominant pay television provider. Historically, competition #e New Zealand government has been considering has come from free-to-air broadcasters, but more recently a convergence over several years. In 2011, the Law number of over-the-top services have entered the television Commission proposed that new content streamed online marketplace, including catch-up, subscription video on be subject to the same rules as broadcast material. #e demand and transactional video on demand services. New Zealand government rejected the proposal, stating #e light-touch regulatory framework, typically that it would further observe the impact of technological favouring market forces and self-regulation, is a convergence on news media before making a decision on contributing factor to the dynamic quality of the television any legislative change. industry. More recently however, the New Zealand Government Of particular interest in this jurisdiction are the has embarked on a convergence program, examining “graduated response” mechanism to deal with repeat issues such as broadband infrastructure, cybersecurity, infringers of copyright; the Government’s work on spectrum management, telecommunications regulation, convergence reform and recent legislation aimed at intellectual property laws, cross-border taxation issues and preventing harmful communications online. content regulation. As part of this review, the government speci"cally indicated it would consider relaxing existing Copyright protection constraints on pay- and free- broadcasting, where there was In 2011, the New Zealand copyright legislation was a substantial asymmetry with online video regulation. #e amended to introduce a “graduated response” mechanism to program is ongoing. assist in enforcement against online infringers of copyright. If a copyright holder became aware of a user infringing Content regulation copyright online, the copyright holder could request the In mid-2015, the Harmful Digital Communications Act user’s ISP to send an infringement notice to the user. After was passed by the New Zealand Parliament. #e legislation three such notices, the copyright holder could approach the was originally intended to address online bullying. Among Copyright Tribunal for relief against the user. other things, the Act introduced a notice and take-down However, the mechanism has not been particularly mechanism for content that was the subject of complaint e!ective. Only a small number of cases have been brought and imposed penalties on online content providers hosting before the Tribunal; those that have proceeded to a decision “harmful communication” (being a communication made have involved small awards in the order of several hundred with the intent of causing the recipient serious emotional dollars. #e various industry players have found that the distress) or failing to remove such communications upon high costs involved discourage them from utilising the complaint. #e broad wording of the Act could capture scheme in any signi"cant way. #ere does not appear to pay television services provided via broadband and OTT have been any lasting impact on the levels of piracy, with TV services. It remains to be seen how the legislation will many users appearing to circumvent detection through the operate in practice. use of virtual private networks and other tools. It is anticipated that the Government will undertake a review of copyright legislation following the recent conclusion of the Trans-Paci"c Partnership negotiations. #is review is expected to consider the e!ectiveness of the legislation in addressing infringement using digital technologies.

Same Same but Di!erent? 55 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
/P
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agencies, which are generally regarded as censorship legislation by prosecuting transparent, open and autonomous of both New Zealanders who trade objectionable government and large corporate players. material via the internet. Publications t
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BWBJMBCMF categorised as ‘objectionable’ are automatically banned by the Films, Videos, and Publications Classi"cation Act 1993. t
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o!shore websites, but this has not been tested to date.

Copyright Protection t
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t
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Act 1994 with good enforcement. applies. t
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t

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but there are signi"cant loopholes on to take action against the internet account circumvention devices, including omission holder before the Copyright Tribunal for of coverage for access controls. online "le sharing that infringes copyright, t
(SBEVBUFE
SFTQPOTF
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provided that after two infringement introduced in 2011 to address online notices are issued, the third notice is issued copyright infringement, but it has been within 9 months (this applies only to used relatively little due to heavy cost peer-to-peer "le sharing, and not to online burdens on complainants. streaming of content).

Convergence and new t
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t
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technologies even-handed. players, with many emerging very recently. t
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users to live stream a range of content to any device.

Licensing of foreign t
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SFTUSJDUJPOT t
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SFTUSJDUJPOT channels Allowed, prohibited or unregulated?

License fees and taxation t
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Rate regulation t
/POF t
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Program packaging t
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SFTUSJDUJPOT t
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SFTUSJDUJPOT Including tiering, bundling, t
1BDLJOH
PG
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any mandatory a la carte di!erentiated packages is a common practice in the market.

56 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Restrictions on advertising t
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t
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revenue and minutage Authority (ASA). the ASA, then no avenue of complaint restrictions t
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(BSA) has jurisdiction over an advertising programme in linear broadcasts (e.g. streaming, but not on-demand content), if neither the broadcaster nor the advertiser recognise the ASCB’s jurisdiction in relation to a complaint. t
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to o!shore websites, but this has not been tested to date.

Content regulation t
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t
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quotas, content control and Codes of practice for Pay-TV less Act 1989. #is legislation contains insertion of classi!cation restrictive than for free-to-air TV. broad de"nitions of “broadcasting” and labels into international t
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#4" “programme”, causing it to apply to feeds programmes broadcast online, other than on-demand content. t
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to OTT TV. t
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broadcasts (including an online stream), but not available for “on demand” content available online only. t
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apply to o!shore websites, but this has not been tested to date.

Regulations on languages, t
/P
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SFTUSJDUJPOT dubbing/subtitling and t
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TVQQPSU
GVOE
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captioning on Air contributes $11 million annually to funding programming for minority and disabled audiences, such as captioning on selected programmes.

Program supply restrictions t
/P
SFTUSJDUJPOT t
/P
SFTUSJDUJPOT Including must provide rules and other restrictions on exclusivity

Same Same but Di!erent? 57 Regulatory Regime Review Pay TV OTT TV

Investment restrictions t
/P
MJNJU
PO
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t
"T
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QBZ57 Including foreign direct Government review/consent based on investment in platforms and transparent, non-restrictive criteria, programming and cross- including, relevantly, where a 25% or more media ownership restrictions ownership interest is being acquired in business assets valued at over NZD$100 million. t
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programming for foreign entities. NZ entities potentially subject to same criteria as platforms. t
/P
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SFTUSJDUJPOT

Retransmission t
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Including must carry and negotiated commercially. remuneration

Consumer protection t
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t
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57 Including cooling-o" period protection legislation. and termination rights t
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Zealand Commerce Commission any unfair terms in standard form contracts for services. #e Commission may report these complaints to a court which has the power to prohibit the use of the term. t
1BZ
57
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CFFO
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mentioned by the New Zealand Commerce Commission as an area of focus for unfair terms in standard form contracts. In particular, the Commission has referred to clauses a!ecting the termination of the contract as being a type of term that may be unfair. However, any fees for early termination of a contract would not be unfair if it was a reasonable estimation of the loss su!ered due to the termination.

Other country-speci#c t
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PG
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t
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QBZ57 information the New Zealand Bill of Rights Act.

Knowledge Partner Malcolm Webb Malcolm Webb is a law "rm, focusing on advising corporate and [email protected] government clients engaging in technology-driven change. We provide legal and regulatory advice to media and telecoms clients Malcolm Webb in New Zealand and throughout the Asia Paci"c and Middle 20 Seaview Road East regions. Our recent experience includes advising on level Remuera playing "eld policy initiatives across the media, telecoms and Auckland 1050 transportation sectors. New Zealand

58 COUNTRY REPORT Philippines Philippines Philippines

#e regulation of the pay television industry in the Online content regulation Philippines is relatively positive, although a major restraint #ere are few laws or standards that apply to over-the-top is the constitutionally-enshrined requirement that mass television. #at said, there are several local laws which do media be locally owned and managed. In addition, as a speci"cally apply to the content available online, such as the developing country with relatively low rural incomes, pay Anti-Child Pornography Act of 2009 and the Cybercrime television penetration is lower than in many other countries Prevention Act of 2012. Notably, the latter statute extended in the region and content piracy is an ongoing problem. the operation of criminal libel to the online environment. Whilst broadband penetration is also very low and the (#is legislation survived a Supreme Court challenge on the quality inconsistent (especially outside the Manila region), grounds that it was unconstitutional for restricting freedom the uptake of smartphones is considerably higher. of speech.) It is therefore not surprising that the numerous Other than these speci"c pieces of legislation and the television services launching in the Philippines recently have general laws relating to obscenity, there are neither laws mainly been over-the-top services which are not subject to nor self-regulatory standards that apply to over-the-top the same ownership restrictions, which take advantage of television. mobile internet accessed by smartphones and which are typically a%liated with an existing telecommunications Foreign ownership provider. Such over-the-top services are minimally regulated #e Filipino Constitution requires mass media to be locally at present. owned; as a result, no foreign direct investment has been Issues of note include developments in intellectual permitted with respect to cable operators, DTH operators property protection, the regulation of online content and or terrestrial broadcasters. However, the same restriction the foreign ownership rules for pay television. does not apply to telecom operators (including those supplying mobile television and IPTV services), which are Intellectual property subject to a 40% FDI limit, and the restriction has not been In recent years, the Intellectual Property Code has restrictively interpreted with respect to a telco’s control of been updated to some degree, introducing a public the major DTH broadcasting platform operator. communication right and providing recourse against It remains unclear how long the unde"ned status of circumvention of technological measures and tampering OTT television will continue; in the future it is possible with rights management information. Legislation was also that the Congress or the principal regulator, the National passed in 2013 prohibiting unauthorised interception of Telecommunications Commission, will treat over-the-top cable television signals. television services unambiguously as broadcasting services In addition to the criminalisation of online piracy under or telecommunications services. the Electronic Commerce Act of 2000, a proposed anti- piracy bill was introduced into Congress, but has not passed into law. Despite these developments, and the removal of the Philippines from the US Trade Representative’s Priority Watch List in 2015, the domestic copyright law still requires modernisation, with respect to addressing technological change and improving enforcement and judicial procedure.

Same Same but Di!erent? 59 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
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t
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Details of regulators as well as telecom is the National television, but there are no regulations Telecommunications Commission. dealing with domestic or foreign OTT t
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TV since there has been no de"nitive unclear. As an agency established under pronouncement (from Philippine Congress the O%ce of the President, it is not and NTC) whether OTT TV should be independent of government and is subject regulated as broadcast or telecoms. to in$uence by major operators. t
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t
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operating in the Philippines. but the judicial process is slow and the t
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courts have been used to stymie e!ective NTC regulation is likely to apply to regulatory action. all services available in the Philippines, t
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including international services, despite also has a role in regulating television the challenges of enforcement against content. o!shore service providers.

Copyright Protection t
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t
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for both criminal and civil remedies in provide for infringement of copyrighted instances of copyright infringement. material accessed through OTT; it may Penalties include prohibitory injunction, be assumed that the same rules, as regards payment of "nes, destruction of prohibited copyright, would most probably apply. materials, and imprisonment. t
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of 2000 provides additional penalties for government e!orts to address it. online piracy and copyright infringement. t
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judicial complaints subject to long delays. t
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achieve.

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t
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technologies has recently been introduced; so far free) are in operation, with no licensing it is used only for free (ad supported) requirement. broadcasting. t
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t
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such services. a while, but commercial operations were impeded by licensing. Operators then abandoned mobile broadcasting in favor of 3G / 4G video. t
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imposing serious regulatory risk on such new ventures.

Licensing of foreign t
/P
SFTUSJDUJPOT t
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SFTUSJDUJPOT channels Allowed, prohibited or unregulated?

60 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

License fees and taxation t
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t
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annually). Rate regulation t
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retail rate regulation and market. whether there are any price controls on e.g. basic tier Restrictions on advertising t
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t
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quotas, content control and the Association of Broadcasters of the arguably apply to internet distribution. A insertion of classi!cation Philippines (KBP) in coordination with 2009 law banning child pornography was labels into international MTRCB. Non-KBP members subject to speci"cally written to apply to internet feeds regulation by NTC. distribution. t
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t
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/POF t
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57
industry; Philippine broadcasters jealously guard their exclusive content. Investment restrictions t
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Including foreign direct operators, DTH or terrestrial broadcasters. would be classi"ed as broadcasting or investment in platforms and However, some indirect foreign holdings telecommunications, investment rules programming and cross- have been tolerated. are uncertain. (If broadcasting, no FDI media ownership restrictions t

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allowed; if telecoms, a maximum of 40% IPTV and mobile TV are generally FDI would be allowed.) regarded as telecom services. t
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t
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by telcos under the telecom rules. to engage in broadcasting and vice versa. However, in practice awards of dual franchises to related entities have been tolerated, enabling some level of indirect participation in both platforms. t
/P
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providers for wholesale provision of programming.

Same Same but Di!erent? 61 Regulatory Regime Review Pay TV OTT TV

Retransmission t
$BCMF
57
PQFSBUPST
SFRVJSFE
UP
DBSSZ
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t
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free access channel for government, health, educational, cultural and civic purposes. In theory, this requirement should also apply to DTH, but the NTC has not expressly ruled on this. #e regulations requiring a free access channel have not been made applicable to IPTV.

Consumer protection t
ɨF
/5$
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Knowledge Partner $BTUJMMP
-BNBO
5BO
1BOUBMFPO

4BO
+PTF
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1981. It counsels both local and international clients in all aspects of Philippine law. #e "rm excels in both advisory and implementation work, provides e%cient, value-added legal service Mel A. Macaraig Castillo Laman Tan Pantaleon & and assists multi-sectoral clients in understanding Philippine law [email protected]; San Jose and implementing their objectives. [email protected] #e Valero Tower 2nd, 3rd, 4th, 5th and 9th $oors #rough the years, the "rm has structured itself to meet the 122 Valero Street, Salcedo Village complex needs of clients in the rapidly evolving Philippine Makati City, Metro Manila environment by carefully ensuring a high level of client Philippines 1227 involvement and professional legal expertise, encompassing a broad range of capabilities in practically every area of Philippine Tel: +632 817 6791 up to 95; law practice. +632 810 4371 Fax: +632 819 2724; +632 819 2725 www.cltpsj.com.ph

62 COUNTRY REPORT Singapore Singapore Singapore

Singapore is highly regarded internationally for ease of doing initiated Media Convergence Review in 2012. #e Media business. #e Singaporean government is also known for Convergence Review Panel recommended that all broadcast its promotion of the information, communications and and online content services, excluding user generated media sectors, including its investment in a nationwide Next content and private communications, and wherever located, Generation Broadband Network, its “Smart Nation” initiative be subject to speci"c licensing under the Broadcasting Act if and its Infocomm Media 2025 Plan. However, whilst its such services targeted the Singapore market. copyright regime is stronger than those of most other Asian #e Media Convergence Review Panel also countries, its media laws have not been updated to take recommended that all content providers of a certain scale be account of online content supply, and they contain a variety of required to invest a minimum percentage of either content restrictions a!ecting content, exclusive arrangements and foreign expenditure or revenue in local content creation. investment which apply to pay-TV but not online platforms. #e Review’s recommendations on these matters have Over-the-top television and other online content not been implemented to date. However, the government services are subject to an Internet Code of Practice and the has stated it is planning to propose amendments to the Media Development Authority’s (MDA’s) Class Licence Broadcasting Act, which could introduce such measures. Conditions, which apply automatically. Whether operators #e government also announced a plan to merge the two with a subscription-based business model must obtain a regulatory bodies (Media Development Authority – MDA, Niche TV Licence or Nationwide Subscription TV Licence and Infocomm Development Authority – IDA ), a process is e!ectively at the discretion of the MDA. that is to be completed by mid-2016. Of note are recent amendments to Singapore’s copyright legislation, as well as the government’s announced intention Online content regulation to merge regulatory bodies in an e!ort to deal with issues of As mentioned above, online content services are subject to convergence. the Internet Code of Practice, which prohibits the publication of material which is objectionable on the grounds of public Copyright protection interest, public morality, public order, public security, national #e Copyright Act was amended in 2014, providing harmony or is otherwise prohibited under Singapore law. for injunctive relief to block overseas websites which are In May 2015, the MDA suspended the class licence in being used to “$agrantly commit or facilitate” copyright respect of the website located at www.therealsingapore.com infringement. #e amendments, which took e!ect in for publishing prohibited material. Notably, the two editors December 2014, were intended to reduce the high levels of had previously run the website from outside Singapore consumption of infringing content within Singapore. and the MDA regarded them to be outside the jurisdiction At the time of publication, there have not yet been any of the Broadcasting Act at that time. However, when the decisions of the High Court involving the new provisions. operations were moved within Singapore, they came within jurisdiction. #e editors were also charged with publishing Convergence seditious articles. Singapore’s Broadcasting Act is already drafted su%ciently broadly to include some aspects of online content services and Program supply restrictions the MDA has taken the approach that such services should Singapore’s cross-carriage regime is unique in the region, generally be subject to an automatic class licence. However, requiring pay television licensees to cross-carry content that over-the-top television operators with a subscription-based would otherwise be exclusive to one pay television provider. business model may be required by the MDA to obtain a #e regime was a regulatory response to the exclusive Niche TV Licence or Nationwide Subscription TV Licence. content strategies of the two nationwide pay television As at the date of publication, it is not known whether Net$ix, licensees, StarHub and Singtel, especially with regard to launched in Singapore in January 2016, is to be subject to football (soccer) matches. In 2013, the MDA directed any licence other than the automatic class licence. However, Singtel to allow Starhub to cross-carry live matches of the existing nationwide licensees are expected to comply with the English Premier League over three seasons (2013-2016). Nationwide Subscription TV Licence conditions in respect of #e cross-carriage regime was scheduled for review in their ancillary over-the-top television services. 2013. Although the review did not occur at the time, it is Issues of convergence were considered in a government- understood that it is now being assessed by the MDA. Same Same but Di!erent? 63 Policy Environment

Regulatory Regime Review Pay TV OTT TV

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MDA’s Class Licence Conditions and the the Minister. Under law, the Minister can Internet Code of Practice. give directions to the MDA. t
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mechanism in place to require o!shore courts seldom challenge government OTT operators to observe the conditions actions. and the Code. t
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Singapore in charge of spectrum regulation for OTT licenses. At the discretion of and management. the authorities, OTT TV providers with a subscription-based business model could also be required to obtain a Niche TV Licence (if it has a daily reach of up to 100,000 unique viewers per channel, or up to 250,000 unique viewers per broadcaster) or Nationwide Subscription TV licence if it is a mass-market service provider (i.e. the number of unique viewers exceed the limits stated above) in which case all regulations in relation to foreign channels, rate noti"cation, content standards, packaging/program supply, as well as restrictions on languages, advertising and investment, would apply. t
"
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providing content outside of Singapore is also regulated by the MDA, however certain content regulation codes (e.g. Singapore Code of Advertising Practice) may not apply where content is not available in Singapore. For such providers, as well as o!shore OTT providers, the comments below apply.

Copyright Protection t
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e!ectively enforced. works and other subject matter (e.g. by t
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reproduction of TV broadcasts). possess unlicensed broadcasting apparatus t
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or unauthorised decoder, or to wilfully unlicensed broadcasting apparatus or receive or rebroadcast pirated pay-TV unauthorised decoders do not apply to broadcasts. reception over the internet.

64 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Convergence and new t
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technologies have entered the market. t
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conditions as an incentive for “niche” operators. t
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broadband network provides potential foundation for additional competition.

Licensing of foreign t
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t
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channels Government expects channels to comply requirements are not imposed on o!shore Allowed, prohibited or with content regulation codes (e.g. OTT broadcasts received in Singapore. unregulated? Singapore Code of Advertising Practice, t
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Subscription TV Programme Code). observe MDA’s Class Licence Conditions t
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and the Internet Code of Practice. Content granted for most channel transmissions in regulation codes (e.g. Singapore Code dialects, but VOD operators are allowed of Advertising Practice, Subscription TV to broadcast dialect content up to a Programme Code) should also be complied maximum of 50% of their o!erings (unless with, where applicable. otherwise approved by the MDA). t
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operating a satellite uplink and downlink service for broadcasting purposes.

License fees and taxation t

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t
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nationwide subscription TV service services: annual fee of SGD$1,000. providers whether they use a traditional t
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pay-TV or OTT model. Subscription TV Licenceees who o!er OTT: 2.5% of revenues. O!shore OTT providers do not pay this tax.

Rate regulation t
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Including wholesale and present. imposed on OTT operators including retail rate regulation and t
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o!shore. whether there are any price all niche and nationwide subscription t
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controls on e.g. basic tier television service providers including for required to obtain a Niche TV Licence or their OTT service o!ers. Nationwide Subscription TV licence, the t
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Program packaging t
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Including tiering, bundling, of bundling and pressure for a-la-carte. imposed on any OTT operators. any mandatory a la carte t
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numbering, but no steps have been taken required to obtain a Niche TV Licence or in that direction. Nationwide Subscription TV licence, the t
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same rules as pay-TV would apply. in channel line-ups.

Same Same but Di!erent? 65 Regulatory Regime Review Pay TV OTT TV

Restrictions on advertising t
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57
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t
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Including localization rules, advertising time limited to 14 minutes applies to all advertising appearing in revenue and minutage per hour for channels with scheduled Singapore, regardless of the place of origin restrictions programming. Time limit does not of the advertisement. apply to Video-on-Demand content and t
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UP
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interactive advertising services. OTT services received in Singapore. t
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57
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no more than 25% of the operator’s total revenue can come from advertising. t
4JOHBQPSF
$PEF
PG
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issued by Advertising Standards Authority of Singapore and the MDA Television Programme Sponsorship Code also apply. Content regulation t
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RVPUBT t
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DPOUFOU
RVPUBT
GPS
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Including local content t
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services. quotas, content control and through Content Codes: depending t
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PG
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insertion of classi!cation on the type of services o!ered, the applies, in addition to the other content labels into international Subscription-TV Programme Code or the regulation codes as may be applicable, for feeds Niche Services Code apply to niche or example, the Subscription TV Programme nationwide subscription television service Code in relation to those providers providers including their OTT o!ers. licensed under the Niche TV Licence or t
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57
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the Nationwide Subscription TV Licence. to be rated according to Film Classi"cation t
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Guidelines. is racist, incites hatred, is anti-national, or t
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contains explicit nudity/sexual activity. individual programs of pay TV service t
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providers. enforced against foreign providers but the t
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government has the right to block foreign required to adhere to certain rules: M18 sites and has blocked pornographic / programmes should only be broadcast gambling sites in the past. between 10pm and 6am; and pay TV t
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service providers o!ering programmes expressly apply to domestic providers rated NC16 and over must o!er a parental communicating content outside of lock. Singapore, the Singapore Government may require compliance with the Internet Code. Regulations on languages, t
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t
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dubbing/subtitling and dialects is tightly controlled for all niche imposed on OTT operators including captioning and nationwide subscription television o!shore providers. service providers, including their OTT t
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o!ers. required to obtain a Niche TV Licence or t
70%
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UP
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Nationwide Subscription TV licence, the dialect content up to 50% of programming same rules as pay-TV could apply. o!ered on any one service. Program supply restrictions t
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57
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t
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Including must provide rules must cross carry each other’s exclusive on any OTT operators. (An OTT provider and other restrictions on content e!ectively bans exclusivity in would not be a “relevant platform.”) exclusivity the cable industry. (Applies where the content rights are for Relevant Platforms which currently include cable and "bre networks.)

66 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Program supply restrictions t
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Including must provide rules TV operators must widen the distribution and other restrictions on of exclusive content by o!ering it to other exclusivity subscribers through the set-top boxes of other Nationwide Subscription licensee operators. t
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essential content (largely sports events), for which subscription TV providers are prohibited from obtaining exclusive rights.

Investment restrictions t
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t
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Including foreign direct restricted – 49% cap unless otherwise imposed on OTT operators including investment in platforms and approved by Minister. o!shore providers. programming and cross- t
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PG
t
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media ownership restrictions substantial shareholders, (calculated with required to obtain a Niche TV Licence or di!erent limits according to voting power Nationwide Subscription TV licence, the or size of shareholding) directors and same rules as pay-TV would apply, with CEOs. relaxed conditions for niche licensees. t
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PG
t
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"nancing any broadcasting service owned o!shore but received in Singapore, then no or operated by any broadcasting company restrictions. also subject to prior Government approval. t
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restrictions, but general requirements for government approval of shareholdings greater than 5%. t
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its investment holding companies, controlling shares in both pay-TV and free-to-air TV operators as well as other media.

Retransmission t
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t
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arrangements providers required to carry all licensed imposed on OTT operators including Including must carry and FTA channels. o!shore providers. remuneration t
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t
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of copyright licensing fees. to obtain a Nationwide Subscription TV licence, the same rules as pay-TV would apply.

Consumer protection t
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Including cooling-o" period Code includes the following conditions applies to all “regulated persons” who hold and termination rights applicable to any niche or nationwide television broadcasting licences and thus subscription television service providers would in principle apply to all niche or including their OTT o!ers: two-year nationwide subscription television service maximum length of subscription contracts; providers who o!er OTT TV services. protection against excessive charges for t
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early termination; and subscribers to been imposed on other OTT operators have procedures for disputing charges including o!shore. reasonably believed to be incorrect.

Same Same but Di!erent? 67 Knowledge Partner Gabriela Kennedy Mayer Brown JSM is part of Mayer Brown, a global legal services gabriela.kennedy@mayerbrownjsm. provider, advising clients across the Americas, Asia and Europe. com Our geographic strength means we can o!er local market knowledge combined with global reach. Mayer Brown JSM 16th - 19th Floors, Prince’s We are noted for our commitment to client service and our Building ability to assist clients with their most complex and demanding 10 Chater Road legal and business challenges worldwide. We serve many of the Central, Hong Kong world’s largest companies, including a signi"cant proportion of the Fortune 100, FTSE 100, DAX and Hang Seng Index companies Tel: +852 2843 2211 and more than half of the world’s largest banks. We provide Fax: +852 2845 9121 216 legal services in areas such as banking and "nance; corporate www.mayerbrown.com and securities; litigation and dispute resolution; antitrust and competition; employment and bene"ts; environmental; "nancial services regulatory and enforcement; government and global trade; intellectual property; real estate; tax; restructuring, bankruptcy and insolvency; and wealth management.

Mayer Brown JSM thanks Chung Nian Lam at Wong Partnership LLP for his assistance with this project.

68 COUNTRY REPORT South Korea South Korea South Korea

Although South Korea’s broadband and smartphone Meanwhile, over-the-top television services have not penetration rates are amongst the highest in the world, yet been the subject of explicit regulation in Korea as its domestic pay television market remains focussed on the market for these services is still nascent. However, free-to-air television and the established pay television current legislation such as the Telecommunications platforms of cable, satellite and IPTV. Convergence of Business Act and the Internet Multimedia Broadcasting regulation is yet to occur, with IPTV being the subject of Business Act (in respect of for-pro"t services only) are separate legislation. #e regulatory regime in South Korea is drafted in such a way that either could arguably apply. #e particularly protective of local content, as evidenced by the application of the legislation to speci"c services has not range of restrictions on retransmitted foreign programming been tested to date, although the Korea Communications as well as mandatory local content quotas. Commission (KCC) takes the view that OTT TV services #e over-the-top television market remains at an early are “value added telecommunications services” under the stage of development and there is some uncertainty as Telecommunications Business Act. It is not clear whether to the legislation applicable to local and o!shore OTT the proposed amendment to the Broadcasting Act would TV services. #is is further discussed below, as is South resolve the existing uncertainty. Korea’s online copyright enforcement processes and recent developments in respect of convergence, advertising and Advertising regulations foreign investment. In July 2015, a new “Advertisement Cap” system took e!ect. It sets a maximum cap on the total duration of Copyright advertisements aired, at an average of 17% of program In 2009, South Korea amended its copyright legislation duration but no more than 20% of any speci"c program’s to introduce a graduated response mechanism for online duration. In-program advertising is generally limited to one copyright infringement. #e mechanism empowers Korean minute, with the balance of advertising appearing prior to authorities to suspend online access of repeat copyright and following the program. infringers. It has been reported that no suspensions of user accounts have been necessary in recent years as users have Foreign investment responded to initial warnings from the relevant authority. Following rati"cation of the US-Korea Free Trade In addition to the graduated response mechanism, site- Agreement, restrictions on foreign investment in program blocking powers have been used to block access to some providers (except for general channels, news channels, and o!shore infringing websites. shopping channel) is being relaxed.

Convergence #e Korean government has recently introduced an amendment to the Broadcasting Act. #e proposed amendment would repeal the current Internet Multimedia Broadcasting Business Act by merging it with the existing Broadcasting Act, e!ectively bringing cable television, satellite television and IPTV together to be regulated under the one statute.

Same Same but Di!erent? 69 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
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standards. (KCC) is responsible for programming t
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and content standards; broadcasting to South Korea and do not yet have a production and channel policies; oversight substantial presence, they have not been of investigatory productions; user the subject of explicit regulation. protection and privacy and regulation of t
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broadcast frequencies. TV service is operated for pro"t, it would t
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be governed by the Internet Multimedia of IPTV operators, including business Broadcasting Business Act (IMBBA), approval for program providers of news which applies to “broadcasting programs and general programming channels over broadband networks” (including on and compliance with fair trade and a scheduled linear basis or an on-demand viewer rights provisions of the Internet basis). Such an application of the IMBBA Multimedia Broadcasting Business Act. has not been tested to date. t
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Planning (Ministry of ICT) responsible for “value-added telecommunications services” general communication policies, combined under the Telecommunications Business broadcasting communication policies Act (the TBA), particularly if the services and new media (cable broadcasting, are not operated for pro"t. If so, the satellite broadcasting, IPTV and OTT IMBBA regulations listed below would not broadcasting), but must obtain KCC apply. consent before regulating new media or revising new media approval procedures. t
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Commission (KCSC) is an independent body that administers content standards in broadcast programs, in mobile communications and online.

Copyright Protection t
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t
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although the government has recently competes with pay-TV. implemented a number of policies to t
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address this problem. consent” of FTA channels have resulted in t
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government intervention. Sports and Tourism has sought to require internet service providers and online content portals to ensure that only legitimate content is accessible by users. t
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powers against infringing o!shore websites as permitted by Korean copyright law.

Convergence and new t
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technologies t
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be regulated under the IMBBA (as for and satellite. IPTV), but this has not been tested to t
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date. di!erently than cable.

70 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Licensing of foreign t
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channels Ministry of ICT) for each channel is required. apply to for-pro"t OTT TV services Allowed, prohibited or t
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pursuant to IMBBA, although this has not unregulated? 20% of each operator’s bouquet. been tested to date. t
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retransmitted channels. t
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principle, transmission facilities for joint- venture channels should be in Korea, but exceptions can be granted. t
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foreign channels.

License fees and taxation t
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t
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registering, and amending Cable TV or to for-pro"t OTT TV services pursuant satellite TV licenses. to IMBBA, although this has not been t
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tested to date. If applicable, new OTT Broadcasting Promotion Fund fees that TV services will be exempt for three years are calculated by multiplying the fee rate from contributing to Broadcast Promotion designated and disclosed by the Ministry Fund. of ICT to not more than 6% of the operator’s broadcasting and advertising revenues for the previous year.

Rate regulation t
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Including wholesale and eliminated. rate changes applies to for-pro"t OTT TV retail rate regulation and t
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services pursuant to IMBBA, although this whether there are any price requirement of KCC approval for any changes. has not been tested to date. controls on e.g. basic tier t
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Program packaging t
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channels a la carte but there is no regulatory requirement.

Restrictions on advertising t
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pro"t OTT TV services, although this has restrictions include ads for the Korean market. not been tested to date. t
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System” is in e!ect, imposing maximum cap local and o!shore OTT TV services and on total duration of advertisements aired, the KCC may order the blocking of an regardless of the type of advertisement – o!shore OTT TV service which does not advertisements lasting for 17% of program comply with the relevant advertising rules. duration on average may be aired, but no t
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more than 20% of each program’s duration. KARB also is intended to apply to OTT t
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TV services, although this does not appear limited to 1 minute of ads per airing of the to have been tested to date. program (with the balance of advertising appearing prior to and following the program), although the number of times a program ad may be aired may vary according to the length of the program. t
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review is administered by the Korea Advertising Review Board (KARB).

Same Same but Di!erent? 71 Regulatory Regime Review Pay TV OTT TV

Content regulation t
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Including local content to domestic (not foreign) channels. the general content rules and the age rating quotas, content control and t
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rules apply to for-pro"t OTT TV services insertion of classi!cation Following implementation of the pursuant to the IMBBA, although this has labels into international US-Korea FTA, local programming not been tested to date. feeds requirements now 20% for "lms and 30% t
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for animations. local and o!shore OTT TV services and t
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the KCC may block an o!shore OTT TV broadcasting operators are subject to service which does not comply with the separate local content quota (more than relevant content rules. 40% but not more than 70% of the total broadcasting for each half of the year is to be local content, i.e. content produced in Korea). t
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regulation by pay-TV operators, with supervision and standards-setting by the KCSC. t
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age rating for the program determined by the KCSC during the broadcast of the program. Local pay-TV providers are responsible for inserting age ratings into foreign programming.

Regulations on languages, t
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subject to restrictions related to timing and size of subtitling. t
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sign language, closed captioning, audio descriptions, etc. to assist disabled viewers. t
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GPS
disability assistance set for di!erent types of broadcasting operators, which are to be achieved by 2016, as follows: i) for General Service Program Providers (“jonghap-pyunsung” Program Providers”), 100% closed captioned, 10% audio description assistance, and 5% sign language assistance; ii) for satellite TV operators, 70% closed captioned, 7% audio description assistance, and 4% sign language assistance; iii) for IPTV operators and program providers, 70% closed captioned, 5% audio description assistance, and 3% sign language assistance.

72 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Program supply restrictions t
/P
SFHVMBUJPO
PG
FYDMVTJWF
DBSSJBHF
t
*U
JT
BSHVBCMF
UIBU
UIF
DPOUFOU
TIBSJOH
Including must provide rules contracts for channels. rules apply to for-pro"t OTT TV services and other restrictions on t
3FRVJSFNFOU
UP
TIBSF
CSPBEDBTU
QVCMJD
pursuant to the IMBBA, although this has exclusivity events of widespread popularity or great not been tested to date. signi"cance, as speci"ed in Broadcasting Act and related enforcement regulations. (Relevant speci"ed sporting events include the Summer and Winter Olympics, the FIFA World Cup, the Asian Games, the World Baseball Classic and national team football matches.)

Investment restrictions t
'PSFJHO
*OWFTUNFOU
JO
QBZ57
QMBUGPSNT
t
*U
JT
BSHVBCMF
UIBU
UIF
GPMMPXJOH
JOWFTUNFOU
Including foreign direct limited to: rules apply to for-pro"t OTT TV services investment in platforms and – 49% in cable operators, DTH operators pursuant to the IMBBA, although this has programming and cross- and IPTV content providers (being not been tested to date: media ownership restrictions persons receiving internet broadcasting – Foreign Investment in OTT-TV content and providing such content to operators limited to 49% users) – Cross-media ownership of OTT – 20% for general channels, which have TV services by newspaper groups or no restrictions on the broadcast genres; conglomerates limited to 49%. – 10% for news channels. t
$SPTTNFEJB
PXOFSTIJQ
CZ
OFXTQBQFS
groups or conglomerates limited to: – 49% of cable operators, DTH operators and IPTV content providers – 30% of general channel providers, news channel program providers for television platforms (including IPTV) – 10% of terrestrial broadcasters. t
ɨFSF
BSF
BMTP
NBSLFU
TIBSF
SFTUSJDUJPOT

Retransmission t
$BCMF
*157
BOE
%5)
QMBUGPSN
PQFSBUPST
t
*U
JT
BSHVBCMF
UIBU
UIF
SVMFT
SFMBUJOH
UP
arrangements required to carry 2 terrestrial channels carriage of channels apply to for-pro"t Including must carry and (KBS1, EBS), as well as more than 2 news OTT TV services pursuant to the IMBBA, remuneration channels and more than 1 general channel. although this has not been tested to t
"DSJNPOJPVT
EJTQVUFT
PWFS
iSFUSBOTNJTTJPO
date and it is not clear how it would be consent” of FTA channels have resulted in intended to work in practice. government intervention.

Consumer protection t
'PS
USBEJUJPOBM
QBZ57
QMBUGPSNT
t
*U
JT
BSHVBCMF
UIBU
UIF
SVMFT
SFMBUJOH
UP
Including cooling-o" period broadcasting business operators must “key broadcasting programs” pursuant to and termination rights supply their programs at a fair and the IMBBA apply to for-pro"t OTT TV reasonable market cost, in order to ensure services, although this has not been tested the general viewing rights of the public. to date and it is not clear how it would be t
'PS
*157
QMBUGPSN
QVSTVBOU
UP
*.##"
intended to work in practice. to ensure that the general public has equal access to content, the KCC designates certain programs as “key broadcasting programs” and the provider must supply such programs at a reasonable cost.

Same Same but Di!erent? 73 Knowledge Partner #omas P. Pinansky Barun Law is Korea’s one of the fastest-growing and most dynamic [email protected] full-service law "rm. Founded in 1998 and named after the Tel: +82 2 3479 7517 Korean word for righteous or just, Barun Law has quickly taken its place among Korea’s top, full-service law "rms. Conveniently Barun Law LLC located in Seoul’s Gangnam Business District, next to one of Asia’s Barun Law Bldg. largest and most prestigious convention center complexes, Barun 92 gil 7,Teheran-ro, Gangnam-gu Law is comprised of approximately 190 attorneys who, together Seoul 135-846 with highly quali"ed support sta!, provide a full range of legal Korea services. Barun Law has a plethora of experience representing some of the largest and most prominent companies in Korea and the Tel: +82 2 3479 7517 world, including most Korean conglomerates and Fortune 500 Fax: +82 2 538 3533 companies in various practice areas. www.barunlaw.com #e "rm’s partners include some of the most prominent and well-respected members of the Korean Bar, while a sophisticated and highly experienced team of foreign lawyers adds international sophistication and recognized expertise, creating a substantial comfort factor for international clients.

74 COUNTRY REPORT Sri Lanka Sri Lanka Sri Lanka

Despite the Sri Lankan pay television industry’s relative Licensing conditions youth and small size, it has embraced technological Certain regulatory requirements for pay television services change. IPTV was introduced in 2008, and the "rst video are not set out in generally applicable rules, but in licence on demand and subscription video on demand services a conditions which vary by platform and by operator. few years later. In mid-2015, the Sri Lankan government (Variable licence conditions are not as transparent, signed a Memorandum of Understanding with Google X consistent or predictable as rules of general application, to explore the provision of universal WiFi internet access and would operate as a barrier to entry for new service from stratospheric balloons. At the same time, the Ministry providers.) for Mass Media is reviewing its policies to address next- generation television networks, including over-the-top Content regulation television services, which currently remain outside the Although freedom of speech is constitutionally protected regulatory framework. in Sri Lanka, political interference in the media has been Nevertheless, the regulatory environment is still reported. Historically, news media were controlled through developing, with considerable improvements still to be the Press Council, a body established by legislation with made in respect of regulatory agencies’ independence and the power to impose penalties, including imprisonment, on transparency. journalists. More recent examples involve politicians’ use of Current issues for Sri Lanka include intellectual civil defamation law and, in some instances in 2014, site- property rights protection, licensing conditions, content blocking for political reasons by the Telecommunication regulation and foreign ownership rules. Regulatory Commission. Licence conditions for pay television operators contain Intellectual property protection general prohibitions on content that is detrimental to #e Sri Lankan copyright legislation is up to date in national security, incites ethnic or religious hatred, is many respects: the 2003 intellectual property statute morally o!ensive and/or indecent or breaches Sri Lankan provides a right of communication to the public and anti- law. In light of this, and given the historical context, media circumvention measures. However, there is no mechanism operators are said to practise self-censorship. to directly address online copyright infringement, such as site blocking. Foreign ownership rules Pay-TV broadcast piracy, particularly involving overspill Foreign direct investment in “mass communication” transmissions from India, remains common in Sri Lanka; businesses is limited to 40% of issued capital, although the the Ministry of Mass Media and Information reported Board of Investment may approve a higher limit. Removal in mid-2014 that over 300,000 Sri Lankans had been of this barrier to foreign participation would be likely to using illegal satellite equipment. To put this number in increase competition in the pay television industry. perspective, legitimate pay television subscribers numbered almost 700,000 at the end of 2014.

Same Same but Di!erent? 75 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
.JOJTUSZ
GPS
.BTT
.FEJB
BOE
t
/P
SFHVMBUJPO
PG
055
57
TFSWJDFT
BU
Details of regulators Parliamentary A!airs is responsible for present. media policy, codes of ethics and licensing private television broadcasting services. t
5FMFDPNNVOJDBUJPOT
3FHVMBUPSZ
Commission (TRC) licenses television distribution platforms. t
ɨF
WBSJPVT
SFHVMBUPSZ
BHFODJFT
BSF
OPU
independent from the Ministry, forming part of the Sri Lankan Government. t
+VEJDJBM
SFWJFX
PG
SFHVMBUPSZ
EFDJTJPOT
JT
available and cost-e!ective, though time- consuming.

Copyright Protection t
5FMFDPNNVOJDBUJPOT
"DU
NBLFT
TJHOBM
t
$PQZSJHIU
MFHJTMBUJPO
BEESFTTFT
POMJOF
theft and unlicensed pay-TV operations copyright infringement but there have a crime. Police have pursued enforcement been no reported cases to date. activities. t
)PXFWFS
QJSBDZ
QBSUJDVMBSMZ
JOWPMWJOH
overspill DTH transmissions from India, is common and unchecked.

Convergence and new t
ɨF
53$
JTTVFT
MJDFODFT
GPS
QBZ
UFMFWJTJPO
t
ɨFSF
JT
DVSSFOUMZ
OP
MJDFOTJOH
SFHJNF
technologies distribution platforms in Sri Lanka, applicable to OTT TV services. including DTH and cable. t
-JDFODF
DPOEJUJPOT
WBSZ
GSPN
POF
QMBUGPSN
to another and from one licensee to another.

Licensing of foreign t
/P
SFHVMBUPSZ
SFTUSBJOUT
PO
SFUSBOTNJTTJPO
t
/P
SFHVMBUPSZ
SFTUSBJOUT
PO
SFUSBOTNJTTJPO
channels of foreign channels. of foreign channels on OTT TV services. Allowed, prohibited or t
"
CSPBEDBTUJOH
MJDFOTF
NBZ
SFTUSJDU
UIF
unregulated? operator’s programming to particular genres, such as educational or family programming. t
/P
VQMJOLEPXOMJOL
SVMFT

License fees and taxation t
"QQMJDBUJPO
GFF
GPS
B
CSPBEDBTUJOH
MJDFODF
t
/POF
is Rs. 100,000. t
-JDFODF
GFF
QBZBCMF
VQPO
HSBOU
WBSJFT
GSPN
licence to licence.

Rate regulation t
3FUBJM
SBUFT
BSF
BQQSPWFE
BT
QBSU
PG
UIF
QBZ
t
/POF
Including wholesale and television operator’s license. Any change in retail rate regulation and rates requires regulatory approval. whether there are any price t
/P
XIPMFTBMF
SBUF
SFHVMBUJPO controls on e.g. basic tier

Program packaging t
/P
SFHVMBUPSZ
SFRVJSFNFOUT
5JFSJOH
t
/P
SFHVMBUPSZ
SFRVJSFNFOUT
Including tiering, bundling, permitted. any mandatory a la carte

76 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Restrictions on advertising t
/P
SFTUSJDUJPOT
PO
NJOVUBHF t
/P
SFTUSJDUJPOT Including localization rules, revenue and minutage restrictions Content regulation t
/P
MPDBM
DPOUFOU
RVPUBT t
/P
SFTUSJDUJPOT
Including local content t
/P
BEWBODF
DFOTPSTIJQ
quotas, content control and t
3FTUSJDUJPOT
DPOUBJOFE
JO
UFMFWJTJPO
insertion of classi!cation broadcasting licenses include prohibitions labels into international on programmes: feeds – detrimental to national security; – inciting ethnic or religious hatred; – morally o!ensive and/or indecent; – breaching Sri Lankan law. Regulations on languages, t
/POF t
/POF dubbing/subtitling and captioning Program supply restrictions t
/P
SFTUSJDUJPOT t
/P
SFTUSJDUJPOT
Including must provide rules and other restrictions on exclusivity Investment restrictions t
-JNJU
PG

PG
JTTVFE
DBQJUBM
BQQMJFT
UP
t
/P
SFTUSJDUJPOT
Including foreign direct foreign investment in mass communication investment in platforms and businesses. Additional foreign investment programming and cross- may be allowed, with approval of the Board media ownership restrictions of Investment of Sri Lanka. t
/P
DSPTTNFEJB
PXOFSTIJQ
SFTUSJDUJPOT Retransmission t
/P
NVTUDBSSZ
SVMFT t
/P
NVTUDBSSZ
SVMFT
arrangements t
1BZ
UFMFWJTJPO
PQFSBUPST
QBZ
GSFFUPBJS
Including must carry and broadcasters for retransmission of free-to- remuneration air channels. Consumer protection t
/P
TQFDJëD
SFHVMBUJPOT t
/P
TQFDJëD
SFHVMBUJPOT
Including cooling-o" period and termination rights

Knowledge Partner Anjali Fernando '+

(
EF
4BSBN
UIF
PMEFTU
MBX
ëSN
JO
4SJ
-BOLB
XBT
anjali.fernando@&gdesaram.com established in the year 1841. #e Firm is a top-tier, full-service "rm, specializing in corporate and commercial law. Its legal advice Charana Kanankegamage is sought by leading Sri Lankan business houses, multilateral charana.kanankegamage@ organizations and transnational corporations including several &gdesaram.com 'PSUVOF

DPNQBOJFT
'+

(
EF
4BSBN
JT
BMTP
DPOTUBOUMZ
engaged with precedent-setting legal matters in Sri Lanka and F.J.& G. de Saram manages sophisticated transactions in all "nancial, corporate and Attorneys-at-Law sector-speci"c areas. It is well reputed for advising on complex 216 de Saram Place matters that require an innovative approach. #e "rm is the Colombo 10, Sri Lanka exclusive member in Sri Lanka for Lex Mundi, the world’s leading association of independent law "rms with over 160 members Tel: +94 11 4 605 100 worldwide. Fax: +94 11 4 718 220; +94 11 2669769 Email: &gdesaram@&gdesaram.com www.&gdesaram.com

Same Same but Di!erent? 77 78 COUNTRY REPORT Taiwan Taiwan Taiwan

Taiwan’s system of pay television regulation is known for Content regulation its complexity, involving multiple levels of government and Currently, a cable system operator and its a%liated di!ering rules for the various platforms. Cable operators enterprises cannot supply more than 25% of the channels are subject to heavy control of rates, packaging, advertising, available to that system operator’ subscribers. #is local content and foreign investment; DTH and IPTV restriction is intended to restrain vertically integrated operators are less constrained. OTT TV services are not control of programming. It has been proposed that this rule yet subject to regulation, although legislation has been be amended to allow only 10% of channels to be supplied proposed by the regulator, the National Communication by the system operator or its a%liates. Commission (NCC). In respect of online content regulation, the NCC is Current issues in Taiwan include the proposed considering the creation of a foundation to develop new regulation of OTT TV services, cable rate and packaging rules to protect minors from harmful internet content. #is regulation, content regulation for cable services and online may involve the introduction of online classi"cation or content services, and retransmission rules. mandatory "ltering and access controls.

Proposed regulation of OTT TV services Retransmission arrangements Some members of the NCC have proposed amendments to #e scope of Taiwan’s retransmission rules are the subject the Satellite Broadcasting Act to address the regulation of of ongoing dispute. Under the cable television legislation, OTT TV services. If passed, the amendments would require cable operators must retransmit terrestrial television pre-approval of OTT TV services available in Taiwan, channels. #ere is no similar requirement for DTH or including (in theory) those located o!shore. #e pre- IPTV operators. approval process would include a review of the proposed As terrestrial operators have digitized, they have o!ered rates and content mix for OTT TV services. subsidiary channels in addition to their main channels. In addition, the amendments contemplate capping Whilst cable systems remained predominantly analogue, advertising on regular programming on OTT TV services the NCC permitted cable operators to retransmit only and limiting foreign direct investment in a local OTT TV the terrestrial operators’ main channels. However, as cable licensee to 50%, similar to the rules applicable to satellite systems are also being digitized, the NCC expects cable broadcasting businesses. operators to retransmit all terrestrial television channels. However, it is not yet clear which online content Debate continues within the industry as to whether the services would be regulated nor how the rules would be retransmission rules remain necessary and appropriate. enforced against o!shore operators.

Cable rate and packaging regulation Unlike DTH and IPTV services, cable services are subject to extensive rate and packaging regulation. At present, analogue cable services are required to carry a prescribed basic package of up to 100 channels. #e NCC has called for a restructuring of this regulation, premised on full digitization of cable services. #e new structure would involve a basic channel package of at least 11 channels, including must-carry channels and public television channels. #e retail price of the basic package would be capped at NT$200 (approximately US$6) per month. Operators would be expected to also o!er bundles of other channels and premium channels; further price regulation has also been proposed on these bundles.

Same Same but Di!erent? 79 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
3FHVMBUPSZ
TZTUFN
IBT
IFBWZ
TUBUFDPOUSPM
t
/PU
ZFU
SFHVMBUFE
BMUIPVHI
TPNF
Details of regulators orientation. NCC members have proposed drafting t
3FHVMBUPS
/$$
JT
OFVUSBM
BOE
legislation in this area. independent of operators, but leaves little scope for private initiative. t
$VNCFSTPNF
MFHJTMBUJWF
QSPDFTT
EFMBZT
BOE
inhibits needed regulatory updates. t
1PMJUJDJ[BUJPO
BOE
WFTUFE
JOUFSFTUT
QBSUJDVMBSMZ
at the local level also block reform e!orts. Copyright Protection t
8FBL
CVU
JNQSPWJOH
HFOFSBM
FOGPSDFNFOU
t
5BJXBO
DPQZSJHIU
MBX
TIPVME
QSPUFDU
of IP laws. online television broadcasts and t
-FHBM
GSBNFXPSL
EPFT
OPU
GBWPS
QSPUFDUJPO
programmes broadcast online. However, in of pay-TV signals. Copyright owners bear practice there is no enforcement possible heavy burden to stimulate enforcement. against overseas websites. Fines for violations are too low. t
(PWFSONFOU
IBT
OP
BCJMJUZ
UP
FOUFS
JOUP
major IPR conventions but there are bilateral copyright agreements that help protect content owners. t
$PNNFSDJBMTDBMF
POMJOF
QJSBDZ
JT
B
growing problem. Convergence and new t
4FWFSBM
%5)
TZTUFNT
BVUIPSJ[FE
BOE
t
/PU
ZFU
SFHVMBUFE technologies government licensed one ADSL-based system. Mobile TV is available over 3G/4G systems. t
1MBZJOH
ëFME
JT
OPU
MFWFM
EJêFSFOUJBM
restrictions bind cable, DTH and IPTV operators. t
*157
PQFSBUPS
BOE
TPNF
DBCMF
ëSNT
IBWF
various handicaps from restrictions rooted in government shareholding. Licensing of foreign t
$IBOOFM
SFUSBOTNJTTJPO
QFSNJUUFE
t
/PU
SFHVMBUFE
channels Downlinking requires government Allowed, prohibited or “landing rights”, with application through unregulated? a local o%ce. Most licenses readily granted, but some applicants have been delayed for non-transparent reasons. t
"ET
PO
QSFNJVN
DBCMF
DIBOOFMT
DBOOPU
CF
retransmitted, in theory. (Not applicable to satellite or IPTV.) t
#VSEFOTPNF
SFTUSJDUJPOT
PO
HSBQIJD
advertising inserts sometimes enforced. License fees and taxation t
7BSJPVT
OPNJOBM
BOE
USBOTQBSFOU
GFFT
t
/PU
SFHVMBUFE
charged for license application and renewal. t
*O
BEEJUJPO

PG
BOOVBM
SFWFOVF
JT
DIBSHFE
to a development fund, whose proceeds are used by the government to bene"t pay-TV, free-to-air TV, and local cultural facilities.

80 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Rate regulation t
&YUFOTJWF
BOE
SJHJE
SFHVMBUJPO
PG
SFUBJM
t
/PU
ZFU
SFHVMBUFE
Including wholesale and cable rates from central and local retail rate regulation and government bodies. whether there are any price t
/P
NBSLFU
PSJFOUBUJPO
$BCMF
SBUFT
IBWF
controls on e.g. basic tier been manipulated for political purposes, especially at the local level. t
3BUFT
GPS
OFX
EJHJUBM
QBDLBHFT
BSF
unregulated, as are satellite DTH rates. t
/P
EJSFDU
XIPMFTBMF
SFHVMBUJPO
CVU
TUSPOH
government interference. t
8IPMFTBMF
NBSLFU
JT
IFBWJMZ
DBSUFMJ[FE

Program packaging t
'PS
BOBMPHVF
DBCMF
NBOEBUPSZ
DBSSJBHF
t
/PU
SFHVMBUFE Including tiering, bundling, of large, prescribed basic package (90-100 any mandatory a la carte channels). t
1SPHSBNT
QSPWJEFE
CZ
TZTUFN
PQFSBUPST
and their a%liated enterprises shall not exceed 25 percent of channels. t
"CPWF
DBCMF
CBTJD
MFWFM
BOE
GPS
BMM
*157
a la carte prices must be set but in practice some bundling has been permitted, with prices lower than the sum of a la carte rates. t
1BDLBHJOHCVOEMJOH
OPU
TVCKFDU
UP
approval.

Restrictions on advertising t
*O
UIFPSZ
OP
BEWFSUJTJOH
QFSNJUUFE
PO
t
/PU
ZFU
SFHVMBUFE Including localization rules, “pay” premium channels but enforcement revenue and minutage unclear. restrictions t
0O
CBTJD
UJFS
DIBOOFMT
NJOVUBHF
JT
MJNJUFE
to 10 mins per hour.

Content regulation t
$BCMF
NVTU
QSPWJEF
BU
MFBTU

MPDBM
t
/PU
ZFU
SFHVMBUFE Including local content programming in its mix. (#ere is ample quotas, content control and local supply, so this requirement is not insertion of classi!cation burdensome.) DTH, IPTV and mobile labels into international have no similar requirement. feeds t
(FOFSBM
HVJEFMJOFT
PO
DPOUFOU
DPOUSPM t
0WFSBMM
DPOUSPMT
OPU
CVSEFOTPNF
CVU
UIFSF
are substantial political issues. t
3FHVMBUPS
JT
CFDPNJOH
NPSF
interventionist on content standards, motivated by concerns about content quality.

Regulations on languages, t
/POF t
/POF dubbing/subtitling and captioning

Program supply restrictions t
/P
SFTUSJDUJPOT t
/P
SFTUSJDUJPOT
Including must provide rules and other restrictions on exclusivity

Same Same but Di!erent? 81 Regulatory Regime Review Pay TV OTT TV

Investment restrictions t
ɨFPSFUJDBM
MJNJU
PG

EJSFDU
GPSFJHO
t
/PU
ZFU
SFHVMBUFE Including foreign direct ownership of domestic cable operators, investment in platforms and with total direct and indirect foreign programming and cross- investment capped at 60% of total shares. media ownership restrictions (Does not apply to “o!shore” DTH broadcasters). Foreign shareholdings in satellite broadcasting business to be less than 50%. t
*O
QSBDUJDF
GPSFJHO
IPMEJOHT
BSF
TUSVDUVSFE
to allow higher levels. t
/P
SFHVMBUJPO
PG
DSPTTNFEJB
PXOFSTIJQ
but in practice such ownership has been controversial and seems to be discouraged. Retransmission t
$BCMF
PQFSBUPST
NVTU
DBSSZ
GPVS
NBKPS
t
/PU
ZFU
SFHVMBUFE arrangements analogue FTA channels. No copyright Including must carry and licensing payments are required. remuneration t
/P
TJNJMBS
SVMFT
GPS
*157
PS
%5)
operators. Consumer protection t
4ZTUFN
PQFSBUPST
BSF
SFRVJSFE
UP
TFU
VQ
t
/PU
ZFU
SFHVMBUFE Including cooling-o" period a channel carrying the system operator’s and termination rights name, logo, license number, telephone number of subscribers’ complaint hotline, business address, a list of all channels, the license period for each channel, and the programs transmitted on each channel. t
ɨF
DPOUSBDU
XJUI
UIF
DVTUPNFS
NVTU
include: – Rates and restrictions on fee adjustment; – Numbers and names of channels, and the expiration date of each channel contract; – Restoration of reception of terrestrial programming in certain circumstances; – Compensation for certain service disruptions and cancellations; – Subscribers’ complaint hotlines; and – Other items required by the regulator. Other country-speci#c t
/POF t
/PU
ZFU
SFHVMBUFE information

Knowledge Partner Michael Yang Lee and Li is a full-service law "rm who is constantly re"ning and [email protected] expanding practice areas in response to the rapid developments Tel: +886 2 2715 3300 ext. 2230 in trade and technology. Over the decades, Lee and Li has built the largest intellectual property right practices in Taiwan, and Lee & Li have been involved in the phenomenal growth of foreign direct Lee and Li, Attorneys-at-Law investment since 1970s. Lee and Li was a pioneer in developing 7F, 201 Tun Hua N. Road banking and capital market practice in the 1980s, and played a Taipei, Taiwan 10508, R.O.C. pivotal role in the formation of technology law practice in the 1990s. Lee and Li is also active in public construction, government Tel: +886 2 2715 3300 procurement, merger and acquisition, and many of the most Fax: +886 2 2713 3966 important lawsuits concerning intellectual property in Taiwan. E-mail: [email protected] www.leeandli.com

82 COUNTRY REPORT !ailand !ailand #ailand

#e development of #ailand’s pay television industry Prior to this amendment, copyright owners had is hampered by weak intellectual property enforcement informal arrangements with #ai internet service providers and restrictions on advertising and foreign investment. to block access to infringing online material. It is likely that In other respects, the regulatory framework has improved this practice will continue as a more convenient and less with the National Broadcasting and Telecommunications expensive remedy than the preliminary injunction process. Commission (NBTC) assuming its role as converged regulator in recent years. #e Minister of Information Convergence and Communciations Technology continues to supervise It remains unclear in #ailand whether mobile or online internet-transmitted content and there is minimal content services are required to obtain licences. To date, the regulation of OTT-TV services. However, political NBTC has not required online content service operators to instability has brought a level of uncertainty, with further be licensed. reforms mooted, which would a!ect the scope of the It has been reported that the NBTC is drafting rules to NBTC’s powers. regulate online content services in #ailand, although little Recent developments in #ailand involve amendments is publicly known about the progress of this work. to the copyright law to assist (apparently unsuccessfully) in online copyright infringement matters, ongoing “Must-carry” rules convergence, industry challenges to the “must carry” rule, In 2012, the NBTC introduced “must-carry” provisions, and controversy over cross-media ownership rules. under which all platforms had to carry both public service and commercial free-to-air television channels. #e NBTC Copyright protection amended the rules in late 2015 to require all 36 FTA As in many other Asian countries, online copyright channels to be grouped together, reserving channels 1 to piracy, streaming media box piracy and cable and satellite 36 on set-top boxes. #ese amendments were challenged in signal theft are widespread and the government’s poor separate court proceedings commenced by various groups, enforcement e!orts have not been assisted by recent including cable and satellite operators and certain channel political turmoil. operators. As of the date of publication, the challenges have #e National Legislative Assembly passed amendments not yet been successful, but some of the cases are ongoing. to the Copyright Act in late 2014. #e amendments came into e!ect in mid-2015. Relevantly, the amendments Investment regulation introduced protection of rights management information, In January 2015, new NBTC regulations came into e!ect anti-circumvention provisions and a mechanism intended governing media mergers and acquisitions and cross-media to assist in taking down online content suspected of ownership. #e rules require prior NBTC approval of any infringing copyright. proposal of a radio or television licence holder to acquire #e new mechanism enables a right holder to seek a more than 25% directly, or more than 50% indirectly, in preliminary injunction against an internet service provider another licensed company. If the proposal is approved, the if the right holder reasonably believes that a copyright work purchaser must report to NBTC on a six-monthly basis has been infringed on a computer system. If a court grants for two years, providing updated "nancial, market and the injunction, it will specify a period of time within which company structure details to the regulator. the service provider must comply with the court order and #e #ai broadcasting law also contains provisions within which the right holder must commence proceedings limiting all NBTC licensees to 25% foreign ownership. #is against the alleged infringer. However, following an initial rule has constrained investment in the broadcasting sector. series of court injunctions, internet service providers have refused to follow the orders, without apparent consequences.

Same Same but Di!erent? 83 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
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internet-based services; the principal law governing providers is the Computer Crime Act 2007, which also involves the Police Department.

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for violators. internet broadcasts, but infringements are t
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widespread. growing problem. t
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uploaders of content, but for the most part, civil suits by copyright owners themselves are required. t

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empower courts to order blocking of piracy websites.

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technologies clarity; DTH, cable TV and DTT content distributors. platforms are now licensed. An IPTV service is also operated by a telco, under its telecom operator license.

Licensing of foreign t
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Allowed, prohibited or obtain permit from NBTC; permits are unregulated? readily granted. t
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downlinking.

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totalling 4% of gross revenue before to impose licenses or fees on channels expenses, half constituting the annual broadcast over the internet, whether license fee and the other half constituting domestic or foreign in origin. a fund contribution. Partial reductions of annual licence fee portion are available depending upon the broadcast’s content mix.

Rate regulation t
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/POF Including wholesale and retail rate regulation and whether there are any price controls on e.g. basic tier

Program packaging t
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84 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Restrictions on advertising t
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revenue and minutage limits remain: a daily average of 5 mins but there is no control over foreign restrictions per hour, with no more than 6 mins in any websites. one hour for pay-TV. t
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medicine and foods, fortune-tellers, etc. alcohol. online.

Content regulation t
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quotas, content control and based on published guidelines from a no published guidelines. As a matter of insertion of classi#cation government regulator. law, some categories (obscenity, o!ending labels into international t
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the monarchy) are illegal even on the feeds general viewing) must be inserted on- Internet. screen. #is requirement only applies to t
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TV operators who use a frequency wave, respect of TV streams originating in analogue and digital, allocated by NBTC. #ailand than on internet broadcasts from Currently, there are no pay TV services overseas. using an allocated frequency wave. t
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be broadcast between midnight and 5am.

Regulations on languages, t
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Program supply restrictions t
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operator securing rights in respect of 7 other sporting events to share the broadcast rights at reasonable fees.

Investment restrictions t
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cross-media ownership providers based in #ailand. restrictions t
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structured to allow foreign partners considerable indirect ownership. t
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cross-media ownership limitations. Allows ownership percentages to be speci"ed by the national regulator.

Same Same but Di!erent? 85 Regulatory Regime Review Pay TV OTT TV

Investment restrictions t
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Including foreign direct took e!ect in January 2015. Radio and investment in platforms television licence holders wishing to take and programming and over or acquire more than 25% directly, cross-media ownership or more than 50% indirectly, in another restrictions licensed company or to perform a cross- holding must submit their plan to NBTC for approval at least 60 days in advance. If approval is granted, ongoing reporting requirements apply.

Retransmission t
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t
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Consumer protection t
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t
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SVMFT Including cooling-o" period Contract for pay-TV mandates certain and termination rights requirements for standard subscription contracts, such as a complaints process, etc. A subscriber may terminate the subscription contract any time without penalty by giving written notice to the pay-TV operator not less than 5 days in advance. In the case of change of channel composition causing reduction of rights or bene"ts of the subscriber, the subscriber can terminate the subscription contract immediately.

Knowledge Partner &TUBCMJTIFE
JO

7JDLFSZ

8PSBDIBJ
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CSPBE based commercial and business practice acting primarily for multinational corporations conducting operations in #ailand.

Worachai Bhicharnchitr Vickery & Worachai 7JDLFSZ

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[email protected] 16th Floor, GPF Witthayu Tower A litigation services and also advises "nancial institutions and 93/1 Wireless Road borrowers on project "nancing and takes an active role in Lumpini, Pathumwan assisting clients in contract and concession negotiations with #ai Bangkok 10330, #ailand government entities. #e "rm also handles broadcast, telecom, merger, acquisition, reorganization, restructuring expatriate Tel: +662 256 6311, +662 650 9691 formalities, labour dispute and resolution and etc. Fax: +662 256 6317 Email: [email protected] www.v-w.co.th

86 COUNTRY REPORT United Kingdom United Kingdom United Kingdom

#e television and online content markets in the United Convergence Kingdom are competitive and diverse. In addition to a Ofcom recently launched a Strategic Review of Digital strong free-to-air sector, pay-television services are available Communications, considering issues of competition and on satellite, cable and IPTV platforms. Local pay television investment in converged communications infrastructure. operators have also launched several online television Although the review is not intended to consider content services to compete against standalone services such as services as such, it is expected to address the relationship Net$ix and Amazon Prime. between communications infrastructure and the delivery Rule-making at the European Union level is a feature of content; in particular, bundled pay television services. of regulation in the United Kingdom. Several current Ofcom is expected to issue the report in early 2016. proposals and investigations of the European Commission are relevant to the broadcasting industry, in addition to Program supply restrictions reviews by the local regulator, Ofcom. #e European Commission has recently been examining Of particular note are local strategies to combat online territory-based exclusive arrangements in various forums. copyright piracy, Ofcom reviews relating to convergence In 2014, the European Commission launched an and retransmission arrangements and the consideration of antitrust investigation to examine provisions in agreements program supply restrictions by the European Commission. between several major US "lm studios and the largest European pay TV broadcasters which grant “absolute Copyright protection territorial exclusivity”. #e investigation is ongoing. #e United Kingdom government has implemented a range In May 2015, it launched a sector inquiry into of strategies to combat online piracy. e-commerce, examining cross-border trade in goods and Court orders are available to require ISPs to block services including digital content. Its preliminary report is access to illegal websites based outside the jurisdiction due in mid-2016. which infringe online copyright. Such orders have been As part of the Commission’s Digital Single Market obtained on a number of occasions, particularly in litigation Strategy, the Commission presented a proposal in commenced by members of the Motion Picture Association December 2015 to allow for cross-border digital content of America and the British Phonographic Industry. service portability so that subscribers can access their #e “Creative Content UK” campaign was launched content wherever they travel within the Union. It plans in 2015 with an educational campaign on the bene"ts of to implement the proposal as a Regulation in 2017, to purchasing legitimate content. A voluntary noti"cation coincide with the scheduled end of mobile phone roaming scheme, involving ISPs warning users who access infringing charges within the European Union. content, is expected to commence imminently. #e Police Intellectual Property Crime Unit has been Retransmission arrangements running a multi-year campaign known as “Operation United Kingdom copyright legislation permits cable Creative”, aimed at reducing the revenue obtained by the retransmission of the core public service broadcaster channels operators of infringing sites from advertising appearing on their without the payment of licence fees to channel operators. sites. #e campaign involves the compilation and veri"cation In March 2015, the United Kingdom government of a list of infringing websites (the IWL), which the advertising announced a consultation on the relationship between the industry then uses to ensure that clients’ advertising is not public service broadcasters and television platforms. #e directed to those sites. In addition, the Police Intellectual consultation is intended to consider carriage fees and whether Property Crime Unit engages with the operators of infringing the cable retransmission copyright exception should be repealed. sites and, where an operator does not cooperate, may seek to Submissions closed on 30 June 2015 and the Government had suspend the site via the site’s domain name registrar. not released its response at the time of publication. In December 2015, the European Commission proposed Local litigation involving unauthorised online streaming to modernise copyright rules, including by developing has raised questions about the application of the cable re- a “follow-the-money” framework for addressing online transmission exception to online services. #ese proceedings copyright piracy, by improving enforcement and by improving are currently before the Court of Justice of the European the processes for ISP removal of infringing content. Communities.

Same Same but Di!erent? 87 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
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(ATVOD) to regulate the editorial content well respected. Before making major policy of UK video on-demand services. From changes it undertakes impact analyses and 1 January 2016, Ofcom will be solely extensive consultations. responsible for regulating VOD services. #e t
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applicable rules otherwise remain unchanged. decisions by a public body, and certain t
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speci"c rights of appeal, are available in Ofcom licence, including linear channels relation to its decisions. transmitted via online means. t
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but there is a compulsory pre-noti"cation to ATVOD. t
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are in theory obliged to comply with UK standards in order to be receivable in the UK. In practice, the regulatory authorities are only likely to take enforcement actions in instances which are likely to give rise to child protection issues and in these instances there are formal arrangements with ISPs, which result in the relevant sites being blocked to UK users. Copyright Protection t
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88 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

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to obtain the regulator’s permission before o!ering ancillary services such as pay per view or on-demand television. t
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end devices is not subject to di!erent regulation. Licensing of foreign t
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competition law.

Same Same but Di!erent? 89 Regulatory Regime Review Pay TV OTT TV

Program packaging t
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“minimum carriage requirements” which limit the ability of channel providers to dictate packaging terms to platforms. #ese requirements are rarely triggered in practice. Restrictions on advertising t
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90 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Content regulation t
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likely to give rise to child protection issues not subject to UK content regulation due to and in these instances there are formal the “country of origin” principle except in arrangements with ISPs, which result in very limited circumstances laid down in the the relevant sites being blocked to UK AVMS Directive e.g. incitement to hatred. users. Regulations on languages, t
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57
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the viewing share threshold. ATVOD is to meet following targets over 10 years under an obligation to encourage non- from launch: generally 80% subtitling, 5% linear content providers to ensure that signing, 10% audio description. their services are progressively made more t
4NBMM
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XJUI

PS
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accessible to people with disabilities and viewing share (and, in respect of signing has an Access Services Plan to improve only, with less than 1% viewing share) are access to non-linear content. exempt. Ofcom publishes an annual list of t
$BQUJPOJOH
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broadcasters subject to these requirements. o!shore services. t
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not subject to UK subtitling rules due to the “country of origin” principle. Program supply restrictions t
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PG
DPOUSBDUT
GPS
FYDMVTJWF
t
"T
GPS
QBZ
57
Including must provide rules carriage of content is permitted, and such t
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BMTP
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and other restrictions on agreements are common in the market. to potential restrictions on the exclusive exclusivity Contractual arrangements (including broadcasting of events considered to be between operators) are subject to general of national importance. #e restrictions competition law and to scrutiny by Ofcom would not apply to o!shore services. in relation to competitiveness and the e!ective functioning of markets. t
4LZT
8.0
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GPS
TQPSUT
JT
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result of such speci"c scrutiny. t
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4FSWJDF
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'5"
NVTU
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core channels available to all platforms. t
ɨF
HPWFSONFOU
NBJOUBJOT
B
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PG
speci"c sporting events considered to be of major national importance and subject to availability requirements, including the Olympic Games and FIFA World Cup "nals. Investment restrictions t

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JT
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JO
t
"T
GPS
QBZ
57
Including foreign direct pay television platforms and in content investment in platforms and providers. programming and cross- t
ɨF
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BOE
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media ownership restrictions Broadcasting Act 1990 regulate cross-media ownership so as to prevent, for example, the owner of a signi"cant market share of UK newspapers from also controlling the major commercial UK broadcasters.

Same Same but Di!erent? 91 Regulatory Regime Review Pay TV OTT TV

Investment restrictions t
.FSHFST
BOE
BDRVJTJUJPOT
JODMVEJOH
Including foreign direct vertical integration, are subject to general investment in platforms and competition law. #e government may programming and cross- also intervene on public interest grounds media ownership restrictions relating to media plurality. t
ɨFSF
BSF
WFSZ
GFX
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PG
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application of the media plurality test. Ofcom previously expressed concerns regarding media plurality when a proposed cross-media take-over would have resulted in an increased market share of news consumption by 10% to 24%.

Retransmission t
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BOE
SFMFWBOU
QBZNFOUT
t
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57
$BUDIVQ
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TFF
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arrangements for most pay-TV channels are decided by raised questions around the scope of the Including must carry and commercial negotiation. cable re-transmission exception in relation remuneration t
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MFHJTMBUJPO
SFRVJSFT
to online services, which have now been the PSBs to make their core channels referred to the Court of Justice of the available without fee on all major European Communities for determination. platforms (i.e. those networks used by a signi"cant number of end-users as their principal means of receiving television programming).

Consumer protection t
ɨFSF
JT
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DPOTVNFS
QSPUFDUJPO
JO
t
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57 Including cooling-o" period relation to pay television services (unlike, and termination rights for example, telecommunications services). However, general consumer protection law will apply, for example the inclusion of informational requirements and a cooling- o! period of (typically) 14 days.

Other country-speci#c t
/POF t
/POF information

Knowledge Partner John Enser Olswang is an international law "rm recognised for our deep [email protected] industry expertise in technology, media and telecoms. We pride Tel: +44 20 7067 3183 ourselves on our innovative approach to legal services and bringing insight and in$uence to our clients. Our network of o%ces spans Olswang LLP Belgium, France, Germany, Spain, the UK and Singapore, and 90 High Holborn together with our ‘best friends’ network of leading independent London law "rms, enables us to advise clients across EMEA, the US WC1V 6XX and South-East Asia. Our best ambassadors are our innovative, collaborative and responsible people, who strive for excellence in Tel: +44 (0) 20 7067 3000 everything they do and make Olswang a great place to work. Fax: +44 (0) 20 7067 3999 www.olswang.com

92 COUNTRY REPORT United States United States United States

Pay television regulation in the United States is fragmented, Multichannel video programming distributors involving various levels of government and separate #e FCC issued a Notice of Proposed Rulemaking in late regulatory regimes for each platform. #e key regulator is 2014, seeking comment on its proposal to treat certain the Federal Communications Commission (FCC), which linear television streaming services as “multichannel has been engaging with the industry on various proposals video programming distributors” (MVPDs) under the for reform. Communications Act. Under current legislation, MVPDs By contrast, over-the-top video services are minimally include providers of multichannel pay television services, regulated, encouraging the launch of numerous over-the- such as cable operators and direct broadcast satellite top services with a variety of content o!erings and business operators. Bringing linear television streaming services models. within the MVPD de"nition would impose a range of Some recent issues of note involve strategies to rights and obligations on service operators, including the address online copyright piracy; the FCC’s proposal to retransmission consent regime (see further below) and bring certain linear online television streaming services program carriage rules. within the existing regulatory regime as “multichannel After receiving many submissions from Internet video programming distributors”; and reform of the companies opposing the proposal, the Chairman of the retransmission consent process. FCC noted in a November 2015 hearing before the House Energy and Commerce Committee that the FCC was not Copyright proceeding with its proposal at this time. In 2011, a bill was introduced into the House of Representatives proposing to introduce a mechanism Retransmission consent for blocking access to sites with infringing content. #e Under US law, television broadcasters may elect to either Stop Online Piracy Act, as it was known, was vehemently require cable systems to retransmit certain local television opposed by Internet companies and it never passed into law. signals to local subscribers without remuneration (the “must Four years later, members of the Motion Picture carry” requirement) or to permit MPVDs to retransmit Association of America commenced litigation against broadcast signals in return for a fee. When broadcasters and MovieTube, an infringing movie streaming site, seeking a MPVDs negotiate over retransmission consent, they are preliminary injunction requiring ISPs and a range of other required to do so in good faith. However, there have been online intermediaries to block access to the site. Following many instances of blackouts, whereby a broadcaster has the "ling of a joint brief from several major Internet refused to allow retransmission of its signal until payment companies, the request for a preliminary injunction was has been agreed, causing major disruptions for consumers. dropped, although a narrower form of "nal injunction Members of Congress and the FCC have been arguing is still being sought in the matter. #e court’s decision is for reform of the retransmission consent process as a result pending. of the licensing disputes. Most recently, the FCC issued a In late December 2015, the US Copyright O%ce Notice of Proposed Rulemaking in October 2015, this time announced an inquiry into the notice and takedown to examine the requirement that television broadcasters and procedures under the Digital Millennium Copyright Act. MVPDs negotiate retransmission consent in good faith. #e #e inquiry is part of a larger review of copyright law FCC has yet to respond to the submissions it has received. being undertaken by the House Judiciary Committee, commenced in 2013.

Same Same but Di!erent? 93 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
'$$
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t
/POF Details of regulators transparent and has a long history of regulating video programming services. t
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Copyright Protection? t
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MBXT
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TUSPOH
t
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PG
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protection with civil and criminal penalties action to address online piracy, including and su%cient enforcement. charges and criminal sentences against t
$BCMF
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founders of Megaupload and other online unauthorized use of encrypted overspill piracy sites. signals, is a criminal o!ence as well as a civil copyright infringement. t
$PVSUT
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TPNF
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on circumvention box syndicates: $628 million and $121 million.

Convergence and new t
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BOE
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CZ
'$$ t
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technologies t
$POGVTFE
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GPS
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to treat OTT services provided by federal, state and local authorities all traditional pay TV providers as a separate seeking to regulate. About half of states Multichannel Video Programming have created statewide franchising (for Distributor (MVPD) service, not a cable cable as well as IPTV). In most cases, this services. However, this proposal has not is bene"cial to cable as well as IPTV. moved forward. t
055
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competitive force, with no regulatory clarity. t
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JT
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Licensing of foreign t
/P
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SFTUSJDUJPOT
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VQMJOL t
/POF channels downlink; licenses readily granted. Allowed, prohibited or unregulated?

License fees and taxation t
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DIBSHF
B
GFF
t
/POF of no more than 5% of revenue. t
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required to pay modest contributions to Universal Service Funds.

Rate regulation t
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t
/POF Including wholesale and regulation: FCC has adopted a rebuttable retail rate regulation and presumption that cable operators are whether there are any price subject to “e!ective competition,” controls on e.g. basic tier requiring local regulators to demonstrate that this competition does not exist before regulating basic cable rates.

Program packaging t
/P
SFTUSJDUJPOT t
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SFTUSJDUJPOT Including tiering, bundling, any mandatory a la carte

94 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Restrictions on advertising t
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MJNJUT
JO
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t
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PG
'$$
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Including localization rules, programming. clear. revenue and minutage t
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MJNJUFE
UP
t
$POTVNFS
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BTLFE
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restrictions 10.5/12 min/hour (weekends/weekdays). investigate an OTT service (the YouTube Kids app) for unfair and deceptive marketing practices. Content regulation t
/P
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DPOUFOU
RVPUBT t
/P
MPDBM
DPOUFOU
RVPUBT Including local content t
1BZ57
TFSWJDFT
QFSGPSN
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SFHVMBUJPO
t
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055
TFSWJDFT
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quotas, content control and based on individual channel standards and or VOD voluntarily utilize same parental insertion of classi!cation guidelines. ratings/content labels as pay-TV, but there labels into international t
"U
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is no regulatory requirement. feeds apply to pay-TV. Regulations on languages, t
3FRVJSFNFOU
GPS
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GPS
t
'$$
SFRVJSFT
DMPTFE
DBQUJPOJOH
PG
WJEFP
dubbing/subtitling and hearing-impaired viewers applies to clips that are both shown on TV and captioning most new English and Spanish-language posted online on distributors’ own websites programming. or apps. Requirements begin January 1, t
3FRVJSFNFOUT
GPS
DBQUJPOJOH
PG
iPMEw
2016 and continue into 2017. programming being gradually phased in. t
/P
DMPTFE
DBQUJPOJOH
SFRVJSFNFOUT
GPS
VTFS
t
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GPS
BVEJP
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generated content shown online unless also for visually-impaired consumers to begin shown on TV, nor for websites/streams o!ered phase-in. by non-TV operators and foreign websites. Program supply restrictions t
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BQQMZ
t
/POF Including must provide rules t
6OEFS
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MBXT
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and other restrictions on or vertically integrated carriers and channel exclusivity providers cannot do exclusive contracts. t
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channels extended from satellite channels to include “terrestrially-distributed” regional sports channels. Investment restrictions t
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Including foreign direct limit of 25% foreign private investment in investment in platforms and television broadcast licensees (although FCC programming and cross- reviews exceptions on a case-by-case basis). media ownership restrictions t
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of newspapers and terrestrial broadcast stations; no rules for pay-TV operators. Retransmission t
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t
/POF arrangements have the right to mandatory carriage of Including must carry and one digital program stream on local cable remuneration systems. Broadcasters who exercise this right give up right to licensing fees. t
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consent,” i.e. negotiation of carriage agreements with fees. t
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must carry one feed from each of them. Consumer protection t
-JNJUFE
BQQMJDBCJMJUZ
$POTVNFST
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Including cooling-o" period complain to franchising authorities. and termination rights

Same Same but Di!erent? 95 Knowledge Partner Howard Waltzman Mayer Brown is an international law "rm noted for its [email protected] commitment to client service and its ability to solve the most complex and demanding legal and business challenges worldwide. Mickey Leibner Because of our commitment to client service, we are routinely [email protected] named to the BTI Client Service A-Team, an annual ranking of the top 30 law "rms based on independent survey feedback from Mayer Brown LLP corporate counsel at global and Fortune 1000 companies. 1999 K Street, NW Washington, DC 20006 #e Mayer Brown Practices comprise more than 1,500 lawyers – among the largest law "rm workforces in the world. We operate Tel: +1 202 263 3848 in the world’s principal "nancial centers in the Americas, Europe www.mayerbrown.com and Asia, and collaborate with a carefully nurtured selection of internationally experienced lawyers in other countries with whom we have worked closely for many years. Our presence and network in the world’s leading markets enables us to o!er clients access to local market knowledge combined with a global reach.

96 COUNTRY REPORT Vietnam Vietnam Vietnam

#e regulation of Vietnam’s pay television industry is Rate regulation characterised by a high level of government involvement, #ere is currently no rate regulation in Vietnam, however, with dominant State ownership (wholly owned or majority the draft Decree provides for MIC to “manage” pay stake) in the largest cable television networks, major telcos, television pricing. If the signed Decree includes these and the largest satellite operator in Vietnam. Government provisions, the MIC will have a legal basis to issue agencies also conduct close scrutiny of foreign channel regulations controlling prices of pay television. retransmission licenses, maintain intensive content and advertising controls and impose “must-carry” requirements Advertising in respect of channels serving “national political tasks”. According to the text of existing regulations, advertising By contrast, OTT TV services are e!ectively unregulated. is not permitted on foreign channels unless such However, the Government has been considering a advertisements have been “inserted” into programming draft Decree on Management, Supply and Use of Radio within Vietnam. #is is taken to mean that there has to be Broadcast and Broadcast Services and it is anticipated that some kind of in-country transaction (resulting in payment it will be signed imminently (the “draft Decree”). #e draft of tax obligations), but the requirement remains unclear. Decree is expected to introduce new rules for OTT TV Advertising is otherwise subject to a range of services as well as amending various existing rules governing restrictions, on both pay television and OTT TV platforms. pay television services. Please see www.casbaa.com/rfg for updated information regarding the draft Decree. Content regulation Since the existing pay-TV regulations (contained in Copyright protection Decision 20/2011) came into full e!ect in 2013, foreign As with other countries in the region, online copyright channel operators have been required to appoint a local, piracy and pay television signal theft are rife in Vietnam, registered agent and to have foreign programming censored with limited enforcement by the Vietnamese government. by a local “editing” agency. #is requirement has raised It is understood that the Government is working on various a number of concerns as to editorial independence, improvements to intellectual property rights enforcement. particularly in respect of foreign news channels. As a One recent change has involved the transfer of practical matter, the two major editing "rms are operating responsibility for enforcement against online copyright at capacity and have very limited capacity to edit additional infringement from the Ministry of Culture, Sports channels. In addition, under existing regulations, the and Tourism to the Ministry of Information and number of “editing” licenses granted for foreign channels to Communications (MIC). In September 2015, a notorious serve the market has been constrained by the government, local pirate site, hayhaytv.vn, was shut down by the MIC with the appropriate licenses awarded for only about 40 and the operators "ned. foreign channels, a much smaller number than are available in neighboring countries. License fees With respect to online content services, a site-blocking Existing regulations require payment of license fees, which mechanism is used to enforce censorship and to restrict the have not yet been speci"ed. availability of other objectionable content, such as sexually #e draft Decree provides that the income from explicit content. providing pay-TV services is proposed to be the basis for calculating the license fees for pay-TV services. #e Ministry of Finance is likely to issue guidance on this matter.

Same Same but Di!erent? 97 Policy Environment

Regulatory Regime Review Pay TV OTT TV

How regulated? t
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t
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Details of regulators Communication (MIC) is the primary Communication (MIC) is the primary operational regulator of communications government regulator. #e Administration in Vietnam. for Broadcasting and Electronic t
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Information (ABEI) of MIC oversees TV and is not independent. It takes on the Internet. guidance from the Party Committee on t
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Popularization and Education (CPE), and Education (CPE) has ultimate which has ultimate decision-making decision-making power. power. t
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t
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regulated by outdated rules on internet the authority currently exercised by the content which have no speci"c provisions MIC over multiple government-linked covering OTT TV. players and ministries is limited. t
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Decree on Management, Supply and Use multiple players jostle for broadcast rights of Radio Broadcast and Broadcast Services in the most popular telecast areas. and it is anticipated that it will be signed t
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imminently. It is expected to introduce MIC is itself the owner of one of the major new rules for OTT TV services. Please players within the industry (VTC). see www.casbaa.com/rfg for updated t
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information regarding this Decree. Decree on Management, Supply and Use of Radio Broadcast and Broadcast Services and it is anticipated that it will be signed imminently. It is expected to a!ect various existing pay-TV rules. Please see www. casbaa.com/rfg for updated information regarding this Decree.

Copyright Protection t
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PG
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t
ɨF
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strong, and includes protection of rules governing OTT-TV. However, all broadcasts. However, compliance is weak copyright regulations are applicable to due to limited enforcement. OTT-TV. t
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re$ecting government political priorities) must meet copyright requirements, including – having documentary evidence of legitimate copyright; and – content must remain intact though it may be amended to avoid violation of Vietnamese law.

98 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Convergence and new t
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BSF
t
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BCPWF
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technologies applied to all types of pay-TV services, of OTT-TV services. namely, cable television services (analogue, digital, IPTV), digital terrestrial television, satellite television services (DTH) and mobile television. In addition, the receipt of television on di!erent end devices (e.g. television screen, mobile handset, and tablet) is subject to the same regulations. t
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57
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mobile TV are already operating. t
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Television services via pay-TV platforms, pay-TV operators are entitled to supply: – Programs belonging to program channels supplied on pay-TV (programs provided or edited by content providers); and – Film programs or music programs provided by companies licensed under the press law for operations in the television "eld.

Licensing of foreign t
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PG
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t
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PG
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channels channels (required by the regulations) the supplying of OTT-TV will be treated Allowed, prohibited or are not routinely granted; application is as providing “specialised application unregulated? a time-consuming and non-transparent websites”. In such cases, a license for process which has substantially reduced providing this service is not required. overall channel availability and prevented However, the management, provision some channels from obtaining licenses. and use of content on such websites must t
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comply with the press and intellectual to obtain new landing licenses as well property (copyright) laws. as “editing” licenses. Foreign channels must have a local agent as well as a local “editing” agency to censor content. t
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channels from local pay-TV operators wherever possible. A speci"c hotel licensing system is in place for unedited programming that is not available locally. Enforcement of these rules is lax; use of pirated overspill channels by hotels still occurs.

License fees and taxation t
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PG
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t
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TFSWJDFT fees, as yet unspeci"ed. t
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program channels serving political tasks, or providing local essential propaganda information (local public television channels).

Same Same but Di!erent? 99 Regulatory Regime Review Pay TV OTT TV

Rate regulation t
ɨFSF
JT
OP
PïDJBM
SFHVMBUJPO
PG
FJUIFS
t
/POF Including wholesale and retail or wholesale rates, although in retail rate regulation and practice it is di%cult to raise rates because whether there are any price of market pressures. controls on e.g. basic tier

Program packaging t
ɨF
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UXP
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PG
t
/POF Including tiering, bundling, program packages: basic service package any mandatory a la carte and advanced service packages. – #e basic service package includes, at a minimum, a prescribed list of local and national channels serving “political tasks” and providing essential propaganda information at the lowest price rate. – Advanced service packages have di!erent programs with di!erent fees, supplied at subscribers’ request. t
5JFSJOH
IBT
OPU
CFFO
QSFWBMFOU
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analogue cable industry because of low consumer spending power and preferences to receive the entire range of channels available. However, growing DTH, IPTV and digital cable platforms all have program tiers. t
*157
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70%
BOE
interactive content. Restrictions on advertising t
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t
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Including localization rules, channels are allowed while in theory, are to comply with provisions of laws on revenue and minutage advertising activities on foreign program press and advertising, for instance: restrictions channels are not, unless such advertisements – Advertisements should be in are inserted into the programming (in a Vietnamese unless the website is technical sense) within Vietnam. licensed to be published in languages t
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of ethnic minorities in Vietnam or in some sort of payment is to be made foreign languages; in-country. However, the concrete scope – An advertisement’s content should be of this restriction (and the amount of truthful, accurate and clear and should required payments) is still unclear. not cause loss and damage to producers, t
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business persons and advertising they are broadcast on program channels recipients; and that use languages of ethnic minorities in – Advertisements should not be designed Vietnam or in foreign languages. or arranged to insert into items of t
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news; advertisements at un"xed truthful, accurate and clear and must not positions to be designed so that readers cause loss or damage to producers, business may themselves open or close the persons and advertising recipients. advertisements and the maximum t
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period for awaiting opening or closure over a 24-hour period, with no more than of an advertisement to be one and a half 2 ad breaks (max 5 minutes each) per "lm, seconds. and 4 breaks (max 5 minutes each) in other t
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entertainment programs. Enforcement of is lax. these requirements is not stringent. t
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news programs or live radio or television programs showing special political events or ceremonies of nationally important events.

100 COUNTRY REPORT Regulatory Regime Review Pay TV OTT TV

Content regulation t
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PG
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Including local content – except for program channels re$ecting t
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quotas, content control and government political priorities, all exercise day-to-day control over content insertion of classi!cation domestic programs and channels must under direction from several government labels into international be provided by “content providers” agencies, which have the power to "ne/ feeds that have a license for press operation punish o!ending operators (both ICPs and in the television "eld and a license for ISPs). producing paid television programs. t
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decree provide o%cial “encouragement” for local movies to make up at least 30% of movies broadcast by each operator and for most local movies to be broadcast between 8pm and 10pm. Similar o%cial encouragement is provided for movies for children to account for at least 5% of total movies broadcast by each operator and should end by 10pm. Regulations on languages, t
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ownership. However, each type of media requires a separate license, giving the government a high degree of e!ective control.

Same Same but Di!erent? 101 Regulatory Regime Review Pay TV OTT TV

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arrangements channels that serve “national political Including must carry and tasks” and provide national essential remuneration propaganda information. t
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transmission technology enables them to insert local channels for broadcast, must broadcast channels that serve “local political tasks”. Where technology permits, operators must also carry inserted messages from the local authorities. t
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programs as requested by the government (e.g. national evening news), and also the national news agency channel VNA-TV. t
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broadcaster’s “entertainment” channels without authorisation or payment, despite the absence of any “must carry” requirement.

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Including cooling-o" period stipulate a “cooling-o! period”. However, same general rights under the Law on and termination rights they do grant subscribers the right to: Protection of Consumers’ Rights. – refuse to use part or the whole of a pay- TV service; and – to complain on price and service quality. t
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QBZ TV and pursuant to the Law on Protection of Consumers’ Rights, subscribers have the right to: – Choose their pay-TV service provider; – Request pay-TV service providers to provide essential information related to using pay-TV service, the provider and the contract; – Use the pay-TV service consistently with the quality, price and other speci"cations in the contract; – Expect private information to be treated con"dentially; – Obtain compensation if the pay-TV service is inconsistent with the contract; and – Complain or take other action to protect their rights.

102 COUNTRY REPORT Knowledge Partner Je! Olson Hogan Lovells is a global legal practice that assists corporations, [email protected] "nancial institutions, and governmental entities across the Tel: +84 8 3825 6370 spectrum of their critical business and legal issues globally and locally. We have over 2,500 lawyers operating out of more than 45 Hogan Lovells International LLP o%ces in Asia, the Middle East, Europe, the United States, and 38th Floor Bitexco Financial Tower Latin America. 2 Hai Trieu District 1, Ho Chi Minh City We have more than 80 practitioners across Asia providing a Vietnam full range of contentious and non-contentious TMT services, including corporate and commercial transactions, licensing Tel: +84 8 3829 5100 and technology transfer, regulatory advice, IT contracts and Fax: +84 8 3829 5101 agreements, and project support and dispute resolution. www.hoganlovells.com

Same Same but Di!erent? 103

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