Content conflict

The creation of the Digital Video Broadcasting - Handheld (DVB-H) standard has been hailed as one of the most exciting developments to impact the digital broadcasting space. However, questions linger over its potential impact on content rights management, writes Arjun Aiyar.
The Rights Lawyers' Arjun Aiyar argues that legal hurdles may lie ahead for broadcasters looking to launch DVB-H services.
The Rights Lawyers' Arjun Aiyar argues that legal hurdles may lie ahead for broadcasters looking to launch DVB-H services.

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The creation of the Digital Video Broadcasting - Handheld (DVB-H) standard has been hailed as one of the most exciting developments to impact the digital broadcasting space. However, questions linger over its potential impact on content rights management, writes Arjun Aiyar.

It was announced earlier this year that DVB-H mobile television services would be launched in Dubai in early-2009. DVB-H has also been adopted by the European Union as its preferred mobile TV format.

Currently the talk of the global technology world, DVB-H is a suite of internationally accepted, open standards for digital television maintained by the DVB Project, a global industry consortium with more than 300 members.

 

"The introduction of DVB-H [-based mobile television services] promises to revolutionise how, when and where consumers view TV in the UAE. - Arjun Aiyar, The Rights Lawyers."
 

Trials and pilot services in key global markets have endorsed the technical capabilities and economic advantages of DVB-H.

The introduction of DVB-H promises to revolutionise how, when and where consumers view television in the UAE. In addition it throws open the possibility of a whole host of on-demand and interactive services related to infotainment, news and sports.

In a nutshell, DVB-H promises to allow users of mobile devices access to high quality digital television programming while on the move.

While this development - both from a technological and consumer viewpoint - is extremely exciting, it does, however, throw up some interesting legal problems which could be an issue in respect of who owns the rights to broadcast certain programming.

Given that DVB-H would enable the broadcast of television on your mobile, would you be watching television or would you be watching a mobile broadcast while accessing the service?

Currently, if a television company wants to buy the rights to a programme, it draws up a contract which states it is buying the rights to broadcast that content to television viewers.

With DVB-H, a television broadcaster could still argue that the transmission of its signal to a mobile device, is still, by definition, a television broadcast.

At the same time, a mobile operator who has acquired the rights to content for distribution on its mobile network could also reasonably argue that it has the right to broadcast that content via DVB-H.

The issue becomes particularly tricky with programming that has already been sold separately to mobile and television broadcasters.

 

Customer coverage

According to the DVB project, thirteen countries as far flung as Germany, Albania and Vietnam, currently operate DVB-H services. Despite du's recent extension of 3G TV services in the UAE, mobile TV services in Asia and the Middle East remain mostly inconsequential.

• Hong Kong - Trial ongoing

• India - Service launched

• Libya - Trial completed

• Morrocco - Service launched

• Qatar - Trial ongoing

• Singapore - Trial complete

• UAE - Trial ongoing

• Vietnam - Service launched

 

In these cases, money has already changed hands for these rights and it is very unlikely that television broadcasters or mobile service providers would be thrilled at the idea of having content which they have already paid for being transmitted elsewhere via DVB-H.

In 2007, controversy arose in Australia between FTA broadcaster the Nine Network and dominant telco Telstra regarding new media rights to National Rugby League (NRL) broadcast content.

By the end of the same year, Cricket Australia faced similar issues in terms of the ownership of new rights also. One suspects that these aren't the first or last of the problems, but what are the solutions?

From a historical perspective, broadcasters faced a similar problem with the advent of the internet where the term broadcast was only applicable to television broadcasting and wasn't applicable to broadcasting via any other medium (quite simply because a medium such as the internet had never previously been envisaged).

Ultimately broadcast rights were split into three broad categories, i.e., broadband, mobile and television rights.



DVB-H is challenging that classification again, though possibly to a lesser, more nuanced degree.

As for solutions, it is imperative that rights holders ensure that future technologies are excluded from the rights that they are granting.

What this means is that, as a producer of a show, if you have agreed to give a particular organisation the right to broadcast your programme via TV only, then you must ensure that your contract also says that they cannot show the programme on any other medium whether now known or invented in the future.

If future technologies have not been excluded, then rights holders need to speak with broadcasters and mobile operators to whom they have licenced these rights to ensure that they are in the clear insofar as the DVB-H platform is concerned.

There will likely be instances where rights holders cannot renegotiate their contracts, in which case they would have to wait for their existing contracts to expire or risk litigation if they wish to leverage DVB-H services.

As with all technology, it never hurts to be a little careful in the beginning. DVB-H is no different.

Bringing back the biff!

Telstra & nine go head-to-head

The Telstra/Nine Network dispute in Australia was one of the first cases to highlight the potential controversy surrounding DVB-H and existing broadcast rights deals. At stake were the internet and mobile rights to Australia's National Rugby League (NRL) competition. The stumbling block was DVB-H, the cellular content delivery platform which was still considered commercially unviable at the time of the initial deal.

As the NRL's exclusive FTA broadcaster, the Nine Network maintained it had rights to all methods of service delivery barring new media services, which were exclusively the domain of NRL naming-rights sponsor and Australia's dominant telco, Telstra.

In March 2007, a settlement was agreed which allowed Nine to show no more than 30 seconds of game footage on its own website.

Meanwhile, Telstra was forced to fork out US$78 million to gain exclusive online and mobile rights over six-years. A short time later, Telstra sued NRL pay TV rights holder Fox Sports for broadcasting extended game highlights during news reports.

The courts however blocked the majority of Telstra's claims for damages regarding reduced website traffic and lost advertising revenue, but did concede that Telstra had "lost the advantage" gained from its considerable multi-million dollar investment in online and mobile rights.
 

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