Convergence Review

The Commonwealth Government has released the Final Report of the Convergence Review (pdf).

While initially there were some indications that this review might relate to intellectual property issues, especially copyright, the Final Report focuses on the areas of regulation traditionally covered by labels like “broadcasting”, telecommunications, “spectrum allocation”, “media ownership” and “local content” requirements.

The Minister’s Press Release notes that:

The release of the report provides an opportunity for stakeholders to engage with the Committee’s recommendations. I expect the recommendations will generate robust public debate

and indicates the Government will respond in due course

Links to various preliminary documents and Word version of Final Report.

Lid dip: Copyright Council

Framing the Convergence Review

On 28 April, the Government’s Convergence Review (noted here) issued a Framing Paper.

According to p. 4 of this curious document:

This initial consultation paper seeks to identify the principles that should guide media and communications regulation in Australia, and provide stakeholders with the opportunity to raise the key issues arising from the principles. Its intent is to invite big-picture thinking about the Australian media and communications environment in its global context and how it may need to be shaped in order to achieve principles that serve the public interest. The committee will use these principles as a starting point to advise government of its preferred alternative policy framework

Accordingly (from p. 11):

the committee considers it appropriate to develop and consult with stakeholders on a set of principles to guide the committee’s consideration of specific issues. These principles have two main aims: to provide a consistent and transparent basis on which to consider specific issues and to ultimately form the basis of a set of policy objectives suitable for a converging media environment.

So your comments on the Framing Paper are sought by 10 June 2011. Then, the timetable is:

  • Emerging Issue paper : June 2011
  • Hearings: July 2011
  • detailed Discussion Papers: August 2011
  • Final Report: March 2012.

For the most part, the Framing Paper appears to relate to the regulatory regimes for broadcasting and telecommunications.

When announcing his intention to refer aspects of copyright law to the ALRC, the Attorney-General appeared to indicate that the reference (if any) will be subject to what happens in this Convergence Review. It is not so easy to identify from the Framework Paper, however, what areas might be cut across by the ALRC reviewing copyright law.

The Framework Paper does refer in several papers to “legitimate content services”. May be, it is to be found in “principle 6” which is (proposed to be):

Principle 6: Australians should have access to the broadest range of content across platforms and services as possible

This principle is taken from paragraph 5(e)(ii) of the Terms of Reference and is consistent with the objects in the BSA12, and s.3(1)(a) of the Telecommunications Act to ‘Promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.’ The committee considers that a guiding principle for the review is to maximise the range of legitimate content services available to Australians. A consideration is that regulation should be flexible and adaptable to changing market and technological circumstances, and constructed with a view to enhancing audiences and consumer choice.

Principle 7 appears to be directed more to the question of ‘net neutrality.

Convergence Review Framing Paper (pdf)

The Convergence Review’s home page

Convergence Review: Let the bun fight(s) begin

Over at Lawfont, Sarah reports that the terms of the Convergence Review have been announced.

This is not just about ‘regulatory’ matters. From the preamble:

…. At the same time, the globalising effect of the internet is profound and rapid, and has challenged regulatory boundaries.

New content services channelled through internet service providers and across jurisdictional borders are challenging traditional media business models and forcing governments all over the world to reconsider the assumptions behind existing legislation and regulatory frameworks.

….

The government wants to make sure that the policy framework upon which Australia’s industry structures and regulation are built is adequately designed for the convergent age and does not impede continued technological change and innovation. At the same time, the framework must ensure the ongoing protection of Australian content and cultural values, the adequate reflection of community standards and expectations and the safeguarding of privacy and other citizens’ rights.

The government recognises that any discussion of the production and distribution of Australian content raises issues of copyright in the digital age. The Review Committee may offer views on copyright and the ongoing protection of content in a converged environment, noting that the Attorney-General will ultimately determine these matters.

(my emphasis)

and point 2 of the terms of reference:

the Committee shall have regard to all legislation and regulatory frameworks relevant to these terms of reference and, where necessary, advise the government on issues outside the purview of the Minister’s portfolio responsibilities.

(my emphasis again)

[remembering, as the preamble noted, that copyright is within the Attorney General’s portfolio, not the Minister for Communications etc.]

The review is specifically directed to  take into account amongst other things by point 5(b), (c) and (d):

  • b) ensuring the ongoing production and distribution of local and Australian content that reflects and contributes to the development of national and cultural identity;
  • c) the impact of policy settings on industry and government revenue;
  • d) appropriate ways to treat content, and the services and applications used to deliver content, which are cross-border in nature;

We also heard (or read) last week that the ALRC will be told to keep its hands off the issues covered by the Convergence Review.

The Review is to deliver their final report to Government by the first quarter of 2012.

The terms of reference.

The Minister’s speech (not to Parliament) announcing the release of the terms of reference.

A Mr Boreham, from IBM, will chair the review; a Mr Long, with a background from the regulatory agencies, will be the second member and a third member is to be announced.

An earlier time, when “convergence” seemed new (and iTunes and P2P) were not even twinkles in our computer monitors (pdf).

Convergence review

It’s never too late to discover a government inquiry (at least before the legislation comes through)!

Back in December, the Minister for Broadband, Communications and the Digital Economy announced a Convergence Review.

Media Release, draft Terms of Reference and “home page“.

Given its departmental provenance and some of the discussion in the Background Paper, it might be thought the Review is mainly targeted at the Telco Act, the Radiocommunications Act and the Communications/Media regulator.  There are some interesting straws in the wind for IP however:

First, the first draft term of reference:

In light of convergence, the Committee is to review the current policy framework for the production and delivery of media content and communications services. The Committee is to:
  1. develop advice for Government on the appropriate policy framework for a converged environment;
  2. advise on ways of achieving it, including implementation options and timeframes where appropriate; and
  3. advise on the potential impact of reform options on industry, consumers and the community.

(my emphasis).

In the Background Paper, there are also some interesting IP-related aspects:

So, at pp. 14-15:

Another trend affecting business models is the trend towards the ‘granular’ nature of media consumption; for example consumers can now download songs, not albums; watch specific TV shows on demand and not the linear programming of a channel, and read a single news article through an online search engine, rather than purchase and read the day’s newspaper edition. In the online world the consumer is in the driving seat of their own media and entertainment consumption patterns with more choice and control than ever before. In addition to the rise of competing online platforms and fragmentation of the consumer market, another challenge to established business models is that digital revenues are not yet matching analog ones. In 2008, NBC Universal CEO Jeff Zucker famously stated that media companies should not ‘trade analog dollars for digital pennies’24. By 2009, he quipped that this may have increased to ’digital dimes’25. While online revenues are growing and the gap is reportedly closing26, ensuring ongoing investment while balancing the difference between analog dollars and digital cents presents challenges to established media companies.

On p. 16 under the heading ‘Policy settings that encourage Australian, local, and children’s content’, the discussion about Australian content quotas imposed on tv and radio, ends:

The rise of these alternative audiovisual services and the growing fragmentation of the media market raises questions as to appropriate policy settings to ensure the ongoing production and distribution of Australian media content which reflects and contributes to the development of national and cultural identity.

(Their emphasis)

And, of course, the paranoid among you out there in cyberspace, will no doubt recall the rather cavalier treatment (e.g. here and here) meted out to iiNet before it won the (first round of) the Roadshow case.

Now, you could have fun (and spend lots longer than a year) on this: e.g. Prof Gans lambasts the authors (and, I guess, indirectly the other copyright owners who have similar ideas), but (for balance) also the App Store and, of course, until the Floods came, we were all twisted up with Gerry Harvey wondering if putting a GST on online purchases (overseas) will change the fact that you can often buy things online from overseas for prices 30-40% less than in stores here. Assuming of course you can “buy”: compare the tv shows or movies or books in the iTunes store or on Kindle or audible from Australia to what you can get with a US address, maybe. Somehow, I have avoided mentioning Google so far. Wonder how many examples the Review will come up with which lead to peeling back regulation?

Now, the time for commenting on the draft Terms of Reference closed on 28 January, so the scope of the review may become clearer. Then, there will be an independent committee to conduct the review, with their report scheduled for 1st quarter 2012.

One to watch!

Lid dip: Mary Wyburn