Last week the BBC contributed its thoughts to the W3C committee contemplating the Encrypted Media Extensions Proposal to the HTML standard, which would allow for more standardized video viewing across multiple platforms. After establishing its bonafides as a source of Internet video broadcasting, it got to the point. The proposal, it said, was was overall a helpful one as far as the standardization was concerned. Technological fragmentation is a problem for someone who wants to make sure their video is viewable to a wide audience. Despite that enormous benefit, however, the BBC could only support the Proposal if it incorporated a DRM standard such that the BBC could pointedly control the retail market for its programming.
It’s worth questioning whether manipulating markets ultimately enlarges them — or, instead, potentially reduces them — but that’s not a subject for these pages right now. The problem was how the BBC required the proposal to be changed in order to ostensibly enable such manipulation:
The proposed Encrypted Media Proposal looks to be a useful starting point. However, the BBC is unlikely to be able to use any such mechanism unless we feel that it is sufficiently secure that there would be the possibility of legal action in the event of bypassing it.
This is not an easy qualification: the W3C is an international body, and laws on bypassing technical protection measures vary significantly from country to country. In this instance the BBC would be looking for such a mechanism to be secure enough in the UK that it would be a “effective technical protection mechanism” under section 296zb of the Copyright, Designs and Patents Act 1988 (as modified by the Copyright and Related Rights Regulations 2003). We expect that other providers will look for similar assurances in their own territories, such as the anti-circumvention provisions in the Digital Millennium Copyright Act in the United States. (emphasis added)
To summarize, the BBC, “the world’s leading public service broadcaster,” “established by a Royal Charter” and “primarily funded by the licence fee paid by UK households” with a “mission [...] to enrich people’s lives with programmes that inform, educate and entertain,” has just lobbied an international technical standards organization charged with “lead[ing] the World Wide Web to its full potential by developing protocols and guidelines that ensure the long-term growth of the Web” such that it enables “involves participation, sharing knowledge, and thereby building trust on a global scale” to make its standards such that people could be imprisoned for using that very technology in a way the BBC did not like.
True, perhaps the BBC was only contemplating there being civil penalties, which is problematic as well. But both the DMCA and section 296zb of the Copyright, Designs and Patents Act 1988 allow for state criminal enforcement when people circumvent technologies designed to control access to content, regardless of how legitimate that access would be.