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Lord Avebury: My Lords, when I first read the amendments I was not entirely clear what the noble Baroness was driving at and I am grateful to her for that explanation, which has made matters a great deal clearer. I understand that a television licensable content service means TV or EPG, whether broadcast from a satellite or distributed through an electronic communications network, and that "relevant ancillary service" includes any other service apart from advertising which is ancillary to a programme and relates directly to its contents. Thus if the web-streaming service to which the noble Baroness referred was not immediately relevant to the content of the main service, then she need not worry about it. However, the noble Baroness seeks to limit this to a service which is accessible from the main service by the execution of a single action, which I think would be rather too limiting.

An example is given in the Explanatory Notes. At this point I must say that the notes for this particular clause are much more helpful than is usually the case. Often when I turn to them I find that generally they paraphrase what is set out in the Bill, whereas for this clause the Explanatory Notes give an excellent description of a service that might be covered.

They cite a wildlife programme which allows the viewer to choose different camera angles via a menu or to access factual material about the animals from within the broadcast stream. Those would be relevant ancillary services because they are made available by the provider of the main service, but they might not be accessible by the execution of a single action. The viewer might first have to bring up the menu on screen and then perform a second action to pick one of the options displayed. No doubt the provider would try to make the choices as simple as possible, but the effect of the amendment would seem to be to exclude these menu-driven services from the definition and thus to require the provider to obtain a separate licence for

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them, even though from a common-sense point of view they are ancillary to the main service because they come directly under the control of the main provider.

Lord McIntosh of Haringey: My Lords, I am not qualified to know whether the response of the noble Lord, Lord Avebury, to the noble Baroness, Lady Buscombe, has been effective, but I am sure that she will be glad to have had it fed into the debate. This is a horribly complex subject and one on which we know that there is not immediately in sight a definition that will please everyone. That is why we have provided in Clause 231 for amendment of the definition if future technological and other changes require it so that policy objectives continue to be met.

The central distinction we want to make here is that of keeping broadcast services within regulation and leaving on-demand services outside. I think we are all agreed on that point. We have already held discussions with representatives of Channel 4, which is interested in the issues raised by these amendments, and no doubt we shall continue to hold those discussions. We think that the concerns of Channel 4 are misplaced, but we want to ensure that the definition is right. Officials are available to continue to discuss these matters.

Let me explain why we cannot accept these particular amendments. Amendment No. 118A would have the effect of ensuring that an ancillary service which could be accessed from the main service only by "two clicks" should be unregulated. However, that would take out of regulation ancillary broadcast services such as interactive Wimbledon camera angles accessed from BBC1 if they could be accessed only via the BBCi interactive area. I do not think that that is what is intended.

Amendments Nos. 119 and 120 seem to try to ensure that any Internet service dedicated to broadcast material is excluded from regulation as a television licensable content service so long as it is at least two clicks away from a television or radio programme. Our definitions already effectively exclude Internet services of the kind with which we are familiar, but the scenario which our forward-looking colleagues in the industry may have in mind is a service wholly dedicated to web-casts and operated in such a way that it met the criteria for television licensable content services and so fell within regulation. Where that happens, the power in Clause 231 to change the definition would come into force.

However, the particular service to which Channel 4 has referred in discussion is that which provides on the web an uncut version of a film which can be broadcast only in cut form. Channel 4 did this with the Danish film "Dogme 2—Idioterne". We think that such services are already excluded from regulation by way of the definitions in the Bill.

As I said, we are more than happy to continue our discussions to ensure that the definitions work well, but I hope that the noble Baroness will not press her amendments.

Baroness Buscombe: My Lords, I thank the Minister for his response and I agree that this is a complex

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subject. It is certainly helpful to have the contribution of the noble Lord, Lord Avebury, and I admit that I should like to reserve my thoughts until I have had an opportunity to read in Hansard what he said.

This is an important area and I am grateful to the Minister for his reassurance that the Government are in discussions with representatives of Channel 4. This is a matter that will be of growing interest and debate as the distinction between television licensable content services and the Internet inevitably blurs with the further development of the technology. Indeed, I recall that, prior to Second Reading, I had long and really interesting discussions with various people in the media industry about this situation, which will grow. Indeed, the blurred distinction here might test the lifeline of this legislation. It may bring about the need to consider in the future how we deal with licensable content for broadcast television and then find that something available on the Internet is not regulated in any way.

I am grateful to Channel 4 for its two-clicks proposal. It has certainly helped me to understand the potential problem that may arise as the distinction becomes more blurred. I am grateful that the Minister will continue discussions. I hope that the definitions will work and reassure Channel 4 and others in the broadcast media. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 230 [Services that are not television licensable content services]:

[Amendments Nos. 119 and 120 not moved.]

Clause 245 [Services that are not radio licensable content services]:

5.30 p.m.

Lord Davies of Oldham moved Amendment No. 121:

    Page 218, line 38, leave out "or"

The noble Lord said: My Lords, in moving Amendment No. 121, I shall speak also to the other government amendments in the group. I shall delay commenting on three amendments that have been tabled. In Committee, I attempted a pre-emptive strike against amendments. It resulted in a colossal failure on my part. I sought to pre-empt some quite brilliant speeches and suffered the ignominy of being put in my place. I also gave away all the arguments that I had intended to deploy against the amendments and I therefore came off rather worse. So this evening I shall make no comment on those amendments, but I hope, with the leave of the House, to reply to them in due course.

The government amendments relate to the agreement we made in Committee, following an amendment tabled by the noble Lord, Lord Avebury, and the noble Baroness, Lady Howe, that we would consider the need to regulate electronic programme guides provided on radio and giving access to radio services.

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In this fast-moving environment, we need to ensure that EPGs for digital audio broadcasting radio, such as the one recently launched, are regulated whatever form they take, whether they are purely sound services, visual or audio-visual services. This is the purpose of Amendments Nos. 121, 122, 164, 220 and 221.

Amendment No. 218 is a minor amendment to correct a drafting error. It removes the exclusion of digital additional sound service from the definition of "additional radio service". I beg to move.

Lord Avebury: My Lords, I speak to Amendment No. 161, which is grouped with these amendments. The amendment clarifies the meaning of "due prominence" for public service broadcasters on electronic programme guides and ensures that due prominence is given to the correct national or regional variation of public service channels—for example, BBC Wales in Wales and Granada in the North West.

When this issue was debated in Committee, there was considerable support for these arguments. However, at the same time, concerns were expressed by the noble Lord, Lord Lipsey, and the noble Baroness, Lady Buscombe, that the amendments as tabled were rather too prescriptive. Others were concerned that we might be getting involved in a commercial dispute between the BBC and Sky over the electronic programme guide listings.

Since then, I am happy to say, the BBC and Sky have resolved their difference in a way that satisfies the public interest. The BBC will no longer purchase an encryption service from Sky and will therefore broadcast its channels in the clear on digital satellite. BBC1 and BBC2 will continue to be located at slots 101 and 102 on Sky's electronic programme guide.

The BBC will purchase a regionalisation service from Sky to ensure that viewers with viewing cards within the UK receive the right national and regional services. That applies to everyone who has pay TV. In future, new customers will have to buy a card if they wish to access the regional variation of their choice at slots 101 and 102. They will still of course be able to access those channels by memorising a three-digit number if they do not want to buy a card.

The way in which the dispute has been resolved does not guarantee that the outcome of any future commercial arguments between platform operators and public service broadcasters will necessarily be in the public interest. The dispute has underlined the need for Parliament to set as clear objectives as possible for Ofcom while leaving it adequate discretion to implement the policies set by Parliament. That is the purpose of the amendment.

Unless Ofcom is given greater clarity than we gave to the ITC, it is possible that the same problems that led to the recent dispute between the BBC and Sky will

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arise with other public service broadcasters. That cannot be in the interests of the consumer, Ofcom or your Lordships' House.

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