CONTENT MANAGEMENT AND DIGITAL TECHNOLOGY, REGULATION AND POLICY1

Jason Bosland, Andrew T. Kenyon & Julian Thomas

Abstract

The landscape of is changing rapidly, with new chan- nels, new broadband networks, and new high definition and interac- tive formats. This article focuses on a neglected but important feature of the new platforms: their capacity to offer novel forms of content management, that is, control over the accessibility and usability of content delivered into viewers’ households. In the US the ‘broadcast- ing flag’ proposal generated considerable public controversy, while in Europe the DVB group’s CPCM has continued its development. Apple’s iTunes, the US networks’ Hulu, and the BBC’s iPlayer all incorporate different models of content management for television programming over the broadband Internet. Content control is also a feature of everyday household technologies such as HDMI, a popular interface for consumer electronics. The BBC is now seeking to incorporate content management technologies in its new free-to-air high definition services. An understanding of how these diverse systems operate provides important context for audiovisual policy more broadly. This article considers digital content management as a new challenge for policy. We review the basic elements of content management and raise some of the policy problems involved. What has driven the shift towards digital rights management? What are the implications for national and international digital media markets? What are the implications for the cultural and social policy settlements embodied in public service broadcasting?

Keywords Copyright, television, , techno- logical protection measures, content management

Introduction

From the turn of this century, with the transition to digital television in sight, broadcasting and content industries called loudly for regula- tory intervention to protect content broadcast on digital television. The debates were especially prominent in the US, with its ‘broadcast flag’ proposal. The industries’ basic claim was that high value content would be withheld from terrestrial television broadcasters unless regulatory action was taken. If content was withheld from broadcast platforms,

23 24 Communication, Politics & Culture 43.2 (2010) this would threaten their longstanding broadcast business model. At the same time, public interest groups called for different forms of regula- tion to safeguard historical forms of television public service (Kenyon & Wright 2006, p. 338). Each group argued, in quite different ways, that without regulatory intervention the cultural, political and economic roles played by broadcast television in the second half of the twentieth century would be lost. In the years since those calls emerged, there have been very sub- stantial shifts in the delivery and use of television content.2 A host of platforms has emerged, with licit examples including Apple’s iTunes, the US networks’ Hulu, and the BBC’s iPlayer. All of these provide tel- evision programming over broadband Internet and incorporate models of content management. Content control has also become a feature of everyday household technologies such as HDMI, a popular interface for audiovisual consumer electronics. Yet digital broadcast television, in almost all markets,3 has developed so far without any system of content management. With regard to digital broadcast television, regulatory intervention has either failed—after legal challenge to the broadcast flag in the US—or it has just begun to be formulated. However, that does not mean there has been no industry response to the shifts that digitisation poses to audiovisual content markets. Industry groups have relied in large part on other legal avenues, such as trade mark protection, to construct their own limitations on the functionality of digital reception equipment in attempting to protect their traditional business models even while they evolve into multiplatform content providers. The fact that some of the goals sought by public regulation have been pursued through these pri- vate regimes is an important illustration of the shifting conceptions of public interest and regulation in relation to audiovisual content. The first part of the article considers the current state of technologies to control the reuse of content that is supplied through digital terres- trial television (DTT). In Europe, a content control standard known as the Content Protection and Copy Management (CPCM) system is being developed by the Digital Broadcasting Project (DVB). DVB stand- ards are used by many countries, excluding the US, for digital television across a wide variety of platforms. While CPCM is having a ‘protracted gestation’ (Brennan 2007, pp. 214, 219), there have been recent advances toward its development and deployment. The current US situation, where there appear to have been no recent public policy movements, is also examined. (Similarly, in Australia interest in the technological control of DTT content appears to have been minimal. On this point see Wright, Kenyon and Bosland (2007, pp. 2–3)). The article’s second part considers the trend of limiting the functional features of DTT reception equipment through restrictive trade mark and Content Management 25 certification mark licensing terms. This de facto regulatory ‘solution’ has been used in places such as Europe, Australia and New Zealand. It involves requiring receiver manufacturers to limit features (such as restricting analogue and digital outputs from reception equipment) or to install technological measures, such as the High-Definition Content Protection (HDCP) system, to prevent unencrypted digital content being released from reception equipment. This de facto approach also provides a possible avenue for industry adoption of the CPCM standard without the need for regulation. As a preliminary matter, a brief background is provided to DTT. Some countries, such as in the US and a number of EU Member States, have completed the transition to digital and have switched off analogue transmission. Most Western countries, however, are still in the process of converting. Much of the literature on the transition has focused on the regulatory environment surrounding the conversion process.4 Less attention, at least within the academic literature on television, has been given to an important consequence of DTT—its impact on copyright owners and their ability to protect audiovisual content from unauthor- ised copying and redistribution (Kenyon & Wright 2006, p. 339). The concerns of content owners, producers and distributors stem from two features of free-to-air DTT. First, broadcast television has tradi- tionally been ‘in the clear’, without any form of technological protection limiting its reuse. For example, content could be recorded on video cas- sette recorders and viewed at a time other than when it was broadcast, a situation which led to its own legal debates.5 Free-to-air television signals are not encrypted at the point of broadcast and are not subject to the systems commonly used on subscription services to limit access to subscribers. This means that content can be accessed by anyone located within the broadcast signal’s footprint using an appro- priate receiving device. Second, digital transmission without technologi- cal measures over content allows content to be captured from the DTT signal. This content can then be distributed over the Internet and associ- ated networks via peer-to-peer file sharing technology. Faced with this situation, content owners argued that content would be withheld from broadcast television, especially valuable high-definition content, unless DTT content was protected by technical meas