Scope Determination
Service: The Guardian YouTube Channel
Service provider: Guardian News and Media Limited
The Determination set out below was made on 28th June 2011. This Determination was withdrawn on 21 December 2011.
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: The Guardian YouTube Channel (http://www.youtube.com/TheGuardian)
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 1st November 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 and that the fee for the period to 31 March 2011 was £2,900 per service. Small scale providers who can demonstrate that they have or will have genuine difficulties in paying the full fee may be eligible for a reduced concessionary fee for the period to 31 March 2011. 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 7th April 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 a response dated 4th May the service provider stated that:
- The Guardian YouTube channel does not constitute a service in its own right
- It is disputed that The Guardian YouTube channel is a programme service, as defined by s405 of the Communications Act 2003.
- Its principal purpose is not 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. It is the provision of video content generally.
- Its videos are not ‘TV-like’ in terms of duration. The average duration of the content uploaded via the YouTube channel in 2010 was 5 minutes.
- This channel does not compete with broadcast television. Only a small percentage of its views are in the UK.
- There is no single person who has editorial responsibility for the Guardian’s presence on YouTube.
ATVOD’s Final Determination
The Service
The service is accessed via the internet at http://www.youtube.com/TheGuardian. Guardian YouTube follows the standard layout of a channel on the YouTube website. The page is headed with the text ‘guardian.co.uk’ and the Guardian graphics. Below this six tabs (eg. ‘Entertainment’) link back to the corresponding collection of videos on the Guardian website (eg. in this case culture videos at http://www.guardian.co.uk/culture/culture+content/video).
The bulk of the page is given over to video content in the usual YouTube fashion, with a central player which can be maximised to play videos full screen. Content can be sorted (via tabs above player) into ‘Uploads’ or ‘Playlists’, both of which bring up picture menus to the right. The Uploads section can be sorted by ‘Date Added’, ‘Most Viewed’ and ‘Top Rated’. The ‘Playlists’ include ‘Fashion’, ‘Film’, ‘Sport’, and ‘Travel’, and each links to a list of programmes in that category. Text below the viewing window offers a brief description of the video being played. At the bottom of the page appears text information on the channel, a channel profile, and subscriber and friend lists.
It is ATVOD’s view that this constitutes a service in its own right, presented as a consumer destination in its own right, and as with other YouTube services offering primarily audio-visual content which can be viewed, enjoyed and made sense of without reference to content external to the YouTube channel.
ATVOD notes the service provider’s comments regarding s405 of the Act: However, this section does not define an On Demand Programme Service.
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;
We have again described below those programmes noted in our ‘Preliminary View’ letter of 7th April. We note your contention that the videos are not ‘TV-like’ in terms of duration. However, shorter programmes are regularly found on broadcast television services (for example music videos, news bulletins, drama shorts) and ATVOD does not believe that brevity necessarily precludes a programme being considered ‘TV-like’. By way of example, we describe below a short programme on the Hepworth Wakefield gallery which runs at 4 mins 26 secs (below the average duration of content uploaded to the YouTube channel in 2010, according to your figures).
1) A tour of the Hepworth Wakefield gallery (4 mins 26 secs)
http://www.youtube.com/theguardian#p/u/19/GmCPVQupPKo
This takes the form of a short arts documentary, with television-like features including: on-screen presenter (Martin Wainwright); archive photos (eg. black and white images of artists at work); scene setting views of gallery, interviews, on-screen captions (eg. to introduce ‘Gemma Millward – Curator’), narrative following tour around gallery focussing on particular pieces.
2) “The Rise of Vienna’s Far Right”
With a running time of 19 mins 45 secs, some of its television-like features include: Preceded by a short advert; Subtitled foreign language dialogue; Captions detailing place and time and/or names of participants (eg. ‘HC Strache FPO (Freedom Party), Pre-election campaign, Vienna 2010); on-screen graphics (eg. illustrating statistics); intercut footage of pertinent literature (comic book pages) and music video; ‘talking heads’ interviews with politicians, novelists, commentators and journalists; End credits which use captions to acknowledge sources of various material (eg. ‘Pre-election campaign footage courtesy of Timon Mikochi and Manual Machel’), provide on-screen ‘special thanks to’ section and display final logo ‘Nectiluca – Media Production gmbh’.
3) “The True Cost of Mother’s Day Flowers”
At 13 mins 41 secs this again offers an editorially coherent piece including the following television-like features: preceded by a short advert; on-screen presenter interviewing participants and providing a voice-over to the programme as a whole; on-screen captions introducing participants (eg. ‘Craig Oulton, General Manager, Flamingo Farm’); intercut images setting scene and illustrating points (eg. view from helicopter, images of pastoralists at work); interviews with economic experts, trade representatives and local workers; End logos of ‘Guardian Films’ and ‘Christian Aid’.
ATVOD considers the provision of these ‘TV-like’ programmes to be the principal purpose of The Guardian YouTube Channel. As described above, and in line with other YouTube channels, audio-visual material (in this case ‘TV-like’ programmes) is the dominant component of the site, with other material such as subscriber lists occupying a secondary role. The programmes can be viewed and enjoyed without reference to any other site. The links back to sections of the Guardian website (www.guardian.co.uk) are of secondary importance to the video content present on the YouTube site itself, and in any case - as already described above - themselves link to collections of audio-visual material.
(b) access to it is on-demand;
The Guardian YouTube Channel 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 The Guardian YouTube Channel have been selected and thereby organised into a coherent catalogue of viewing options with a distinct editorial proposition. ATVOD does not think it reasonable to suggest that Guardian YouTube is not a service in the terms of the Act as there is not a single person with editorial responsibility for the content. This is a channel operated by Guardian News and Media Limited – the content is evidently not user-generated and has been chosen by the operators for inclusion on the channel.
(d) it is made available by that person for use by members of the public; and
The Guardian YouTube Channel is made available on the open internet. Anyone 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.
The Guardian YouTube Channel is provided by Guardian News and Media Limited which has its registered office at PO Box 68164, King's Place, 90 York Way, London N1P 2AP
It is ATVOD’s view that the Service is an ODPS regardless of how it is in fact used and the number of UK users of the service. The Act is concerned with providers who are under the jurisdiction of the United Kingdom, but not with the users of services. Indeed, in some cases of ODPS notified to ATVOD, UK users are geo-blocked from using those services.
In coming to this determination, ATVOD has taken note of Recital 28 of the AVMS Directive 2010, which is not binding, and has concluded that Guardian YouTube is a service in its own right which is distinct from the online version of the Guardian newspaper and which has as its principal purpose the provision of programmes which are comparable to the form and content of programmes normally included in television programme services.
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, you have 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 2011, 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.