Scope Determination
Service: Coffee Shorts
Service provider: Coffee Arts and Media
The Determination set out below was made on 12 July 2011. The Determination was withdrawn on 2 February 2012.
DETERMINATION THAT THE PROVIDER OF THE SERVICE NAMED BELOW HAS CONTRAVENED SECTION 368BA (REQUIREMENT TO NOTIFY AN ON-DEMAND PROGRAMME SERVICE) AND SECTION 368D(3)(ZA) (REQUIREMENT TO PAY A FEE) OF THE COMMUNICATIONS ACT 2003:
Re: Coffee Shorts (www.coffeeshorts.co.uk)
Background
ATVOD, as the appropriate regulatory authority, has determined in accordance with section 368BB(1) and section 368I(1) of the Communications Act 2003 (“the Act”) that as the provider of the On-Demand Programme Service (“ODPS”) named above (“the Service”) is contravening or has contravened section 368BA (requirement to notify an ODPS) and section 368D(3)(za) (requirement to pay a fee) of the Act.
The Audiovisual Media Services Regulations 2010 came into force on 18 March 2010, introducing additional provisions into the Act in relation to certain video on-demand services. Section 368BA of the Act requires that every provider of an ODPS, as defined in section 368A of the Act, must not provide an ODPS before it has given a notification to the appropriate regulatory authority of its intention to provide that service. For an ODPS which was already being provided on 18 March 2010, notification should have been given before 30 April 2010. For an ODPS beginning after 18 March 2010, notification should have been given before the service began. Section 368D(3)(za) requires that a provider of an ODPS must pay to the appropriate regulatory authority such fee as that authority may require under section 368NA of the Act.
The Authority for Television On Demand (“ATVOD”) has been designated as the appropriate regulatory authority for editorial content in an ODPS and also for determining whether the provider of an ODPS has complied with its obligation to notify. ATVOD wrote to the service provider on 16th August 2010 informing them of the statutory obligation to notify provision of an ODPS, and setting out the statutory criteria which define an ODPS. We advised the service provider to refer to ATVOD’s ‘Guidance on who needs to notify’ which is available on our website (www.atvod.co.uk) and to seek legal advice if appropriate. This letter made clear that a fee was payable with regard to each ODPS. Fees for the year to 31 March 2012 follow a banded structure based on service provider revenue, with concessionary rates for non-commercial and small scale providers. Please see our website for details.
Having applied the statutory criteria to the Service, and having considered any response the service provider may have made to our previous letter, we wrote to the service provider on 1st June 2011 to inform them that we had come to a preliminary view that the Service is an ODPS in respect of which a notification has not been given and in respect of which a fee has not been paid, and that our preliminary view was that the service provider is in contravention of sections 368BA (Requirement to notify an ODPS) and 368D(3)(za) (Requirement to pay a fee) of the Act.
In accordance with our powers under section 368BB(1) of the Act, we invited the service provider to make representations within 21 days. In the responses dated 7th September 2010 and 10th June 2011 the service provider stated that:
- The principal purpose of the service is not the provision of TV-like programmes. It is to showcase and promote short film work by emerging filmmakers.
- The short films are not ‘TV-like’. None of these films would be expected to broadcast on linear television. They do not compete for the same audience as television broadcasts.
- Coffee Arts and Media Ltd is arguably not the ‘media service provider’ under the meaning of the AVMS Directive.
- Coffee Arts and Media Ltd cannot edit the films in any way and therefore arguably cannot have editorial responsibility.
ATVOD’s Final Determination
The Service
The Coffee Shorts service is website based and is accessible via the following url http:www.coffeeshorts.co.uk. On the homepage there are 7 main navigation tabs from where to choose your destination. They are “Narrative Shorts”, “Music Videos”, “Documentary”, “Animation”, “Experimental”, “Movie Trailers” and “DVD Store”. A viewing window on the homepage plays short films (which can be played full screen if chosen). Below this thumbnail stills from films link to various genres of content (eg. experimental film, music videos). Clicking on these stills starts the first film from this category playing in the viewing window, accompanied below by a short text description of that genre. Likewise if the user clicks on, say, the ‘documentary’ tab at the top of the page, the documentary content begins to play in the central window. Of these top tabs, only clicking on the ‘DVD Store’ takes the user away from the home page to a listing of available DVDs. Other content on the home page includes (on the date of this letter): adverts, a Google search bar, links to other channels where these films appear. Tabs at the bottom of the homepage include links to ‘About Us’, ‘Our Filmmakers’, and ‘FAQ’s – these sections take the viewer to short text pieces.
Application of s368A(1)
Taking all the relevant considerations into account, including the representations made by the service provider, ATVOD has concluded that the Service is an ODPS. This is because the Service fulfils each of the relevant criteria set out in section 368A(1) of the Act as follows:
(a) its principal purpose is the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services;
The content across the service includes narrative and documentary shorts and music videos. While it may be that the service as a whole does not resemble linear television, the definition in the Act applies to individual programmes. As you acknowledge, short films do sometimes appear on linear television as stand-alone items. The individual programmes on Coffee Shorts are comparable in terms of form and content to programmes found on linear television, whether or not these specific films have or would be broadcast. The Act does not, for example, refer to the technical quality of a programme.
Examples:
Nasciturus – short experimental narrative film about abortion
This runs at 8 minutes and 32 seconds long including the end credits and follows the broad conventions of short films shown on broadcast television, including for example: Opening credits lasting 10 seconds, a narrative progression in which a child is awoken from sleep, scared by a white light encroaching on his room and by drilling noises, and finally detached from his bedroom and seen floating in space, cutting to a final scene in which a girl lies in hospital. Other television-like features include a music soundtrack adding to the suspense, and closing credits.
Dandy Davy’s – Smoking in the Sun Video
This runs at 2 minutes and 59 seconds long and follows the broad conventions of music videos shown on broadcast television, including: an advert prior to the start of the programme, a loose narrative sequence (following a couple riding bikes to woods, smoking, returning home) to accompany music soundtrack.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of the Coffeeshorts website, as suggested by the tagline to Coffeeshorts ‘screening the best independent short films online’. The representations suggest that the principal purpose is promotional, but the focus on the home page is very much on the viewing of films in their own right, sorted by genre and so on. Links to the filmmakers are found only if the user follows a link at the very bottom of the homepage, placed alongside the ‘FAQ’ link. This and the other text-based explanatory elements appear to play a role secondary to the provision of the programmes.
(b) access to it is on-demand;
Coffee Shorts programmes can be watched at a time of the viewer’s choosing.
(c) there is a person who has editorial responsibility for it;
The programmes on Coffeeshorts appear to have been selected and organised into a coherent catalogue of viewing options with a distinct editorial proposition. In your representations you suggest that you may not be the ‘media service provider’, as every aspect of the video serving comes from a US company. However, in terms of the Act you do appear to hold ‘editorial responsibility’ for the service and are therefore the provider of that service, as you exercise general control over both selection and organisation of the programmes. The location of the server is irrelevant. S368A(4) of the Act makes clear that editorial control over a service is possible regardless of editorial control over the content of individual programmes or of the broadcasting or distribution of the service.
(d) it is made available by that person for use by members of the public; and
Coffee Shorts is made available on the open internet and any member of the public with access to the internet can view the programmes.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
Coffee Shorts is provided by Coffee Arts and Media which has its registered office at 36 Braunstone Drive, Allington, Maidstone, Kent, ME16 0HZ
Having concluded that the Service is an ODPS, ATVOD has determined that a contravention of section 368BA (Requirement to notify an ODPS) and section 368D(3)(za) (Requirement to pay a fee) has occurred because on the basis of the information available (a) the Service is an ODPS; (b) as the provider of the Service, has not, before beginning to provide the Service, given a notification to the appropriate regulatory authority of an intention to provide that service or, if the Service was already being provided on 18 March 2010, did not give a notification before 30 April 2010; and (c) the service provider has not paid the regulatory fee for the financial period ending 31 March 2012, as required by ATVOD under section 368NA of the Act.
If the service provider notifies this service within 14 days, and pay the subsequent invoice within 14 days of its issue, no further enforcement action will be taken.
Alternatively, the service provider may request an appeal by Ofcom of ATVOD’s decision that the Service is an ODPS or that it is the provider of the ODPS. Ofcom requires appeals to be made in writing within 10 working days of the date of the relevant decision. In urgent cases a shorter period may apply. If the service provider wishes to request an appeal of this determination to Ofcom, it should consult Ofcom’s current procedures as soon as possible. These may be found at: http://stakeholders.ofcom.org.uk/consultations/on-demand-programme-services/ Requests for appeal should be sent to: Tony Close at Ofcom, Riverside House, 2a Southwark Bridge Road, London, SE1 9HA or via email to tony.close@ofcom.org.uk
If no notification is made and/or no fee paid within the specified times, and no appeal to Ofcom is made, or any appeal made to Ofcom is unsuccessful or Ofcom determines that the request has been made out of time, ATVOD may proceed to issue an Enforcement Notification under section 368BB(1)(a) or section 368I(1) of the Act following consultation with Ofcom. ATVOD may also refer the matter to Ofcom for consideration of the imposition of a financial penalty under section 368BB(1)(b) of the Act or of suspension or restriction of the service under section 368K of the Act.