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Broadband and the UK TV licence
I live in one of the two million or so households in the UK that does
not own a television. The television licencing authorities would have
us believe that not owning a television is aberrant, bizarre
behaviour, and only a handful of people would be so perverse. By their
reasoning, therefore, the only credible reason for a person not to
have a television licence is that he or she is a licence-dodger. That
reasoning was reflected a couple of years ago in an advertising
campaign ran by the licencing authority. The ads were phrased along
these lines: `There are two people in East Dogpatch that don't have a
TV licence, and we know who they are'. The implication was,
presumably, that these people were automatically criminals, because no
right-thinking person would actually decline to own a television. I
was one of the many people who made complaints about this campaign to
the Advertising Standards Agency; my objection was that a huge number
of people don't have televisions, either because of objections on
principle, or because they don't have time to watch, or because they
simply can't afford one. It didn't seem fair to be accused of
criminality simply for not wanting a television. In the end, these
complaints were not upheld, but the authority did in fact withdraw the
advertisements.
Although I don't own a television, I do own a video recorder and a DVD
player, which I use to play movies through a video projector. The
video recorder is capable -- in the the narrow sense -- of receiving
broadcast television, although I don't have an aerial and the machine
has never been tuned. I suspect that this set-up is not very
different from that enjoyed by a large number of people who aren't
against entertainment, per se, but don't want to open up their homes
to the dross of broadcast TV.
The TV licencing people are not averse to allowing people to believe that
this configuration -- using a video recorder to watch pre-recorded
movies -- is licenseable. However, it is fairly clear that is
not. Last year Andrew Carey MP made a statement to the House of
Commons select committee on culture, media, and sport (HC539, appendix
67, 2002) complaining that the licencing authority was
deliberately mis-stating this position on its
Web site.
The wording used on the site was ``Anyone who uses a television
without a licence
is breaking the law and faces a fine of up to £1,000''. Recently, the
Web site has been re-worded, and is now more in accord with the law
as it is currently understood:
``If you use or install television receiving equipment to receive or
record television programme services you are required by law to have a
valid TV licence''. Despite this, many people still believe the
old propaganda; universities, for example, continue to pressurise
students to buy television licences that they may not need.
Anyway, this article is not about the dull question of whether you
need a TV licence to watch pre-recorded movies with a VCR, as this is
now settled. It's about a much more interesting question: do you need
a TV licence to watch video material that you download from Internet
sites? And does the answer depend on the origin and type of the
material? If I download BBC programmes and watch them, it doesn't
seem unreasonable that I need the same licence as those who
are watching on an ordinary television set. But what about other
material, perhaps produced outside the UK? There are some authorities
who are prepared to argue that anyone who owns a computer with an
Internet connection is legally obliged to have a television licence
simply because it is capable of being used to watch television
programmes.
At first blush it might appear that a computer with an Internet
connection does not constitute a `television receiver', and is
therefore is not licenseable, however it is used. But
`television' is a term that is construed quite widely. It is clear,
for example, that a video recorder with no television attached is
a `television' for the purposes of UK licencing legislation, so we
shouldn't necessarily assume that a computer can't be a television.
This question whether a TV licence is required to watch downloaded
material is very prominent at present, with the increase in the
availability of broadband Internet services. I should say at the
outset that I don't know the answer; moreover, until new legislation
is introduced to address this specific problem, or until cases start
to get heard in the higher courts, I don't think anyone else knows the
answer either. However, we can look at the legislation and make some educated
guesses.
The governing statute remains the archaic Wireless Telegraphy Act
(1949), primarily sections 1(1) and 1(7). The Act itself is subject
to a number of amendments, and associated with a whole raft of
delegated legislation. So much, in fact, that it is now very
difficult to determine accurately what usage of television equipment
is licenseable and what isn't. So, let's see if we can disentangle the
various legislative instruments and arrive at a proper understanding.
To begin, s(1) and s1(7) of the 1949 Act say:
``No person shall establish or use any station .. or instal or use
any apparatus for wireless telegraphy except under the authority of a
licence in that behalf granted under this section ... if it is a
television licence, by the BBC''
and
...``television licence'' means a wireless telegraphy licence
authorising the installation and use of a television receiver; and
``television receiver'' means television receiving apparatus of any
class or description specified in regulations made by the Secretary of
State...''
So the 1949 Act says that you need a licence to operate a television
receiver (unless you are repairing or testing one in the
course of business), but in itself does not attempt to define a
television receiver. It is left to the Secretary of State to issue
regulations to define this term as he sees fit. At present, the most recent
definition of a television receiver appears to be the one in s.3 of the
Wireless Telegraphy (Television Licence Fees) Regulations (1997):
``apparatus installed or used for the purpose of receiving television
programme services, as defined by section 2(4) of the Broadcasting Act
1990, whether or not the apparatus is installed or used for other
purposes.''
The phrase `for the purpose of' is important here; this sort of
wording in a statute is usually interpreted by the courts as meaning
that a person must deliberately and intentionally set out to do
something. That is, you won't be guilty of using a television without
a licence if it's merely standing in the corner of the room. It
appears that TV licencing inspectors have been known to resort to
trickery to overcome this statutory limitation. We know this because
it was revealed in the Scottish case of Mitchell v MacKenzie (1991).
The householder claimed that the television, which was standing in the
corner switched off, was never used. The inspectors asked her to
switch it on to see if it worked. She did, and the reaction was
`you're using it now, so you're nicked!'. Happily the Scottish High
Court refused to allow liability to be established in such an
underhand way,
s.2(4) of the Broadcasting Act 1990 defines television programme
services quite widely, to include those operated by the BBC or the
Welsh Authority, satellite TV services, digital programme services
including `multiplex' services, and a few other minor things.
`Multiplex' services are those designed to carry more than one
`digital programme service', which is defined by s.1(4) of the
Broadcasting Act (1996) as a service of `television programmes', but
specifically excludes teletext and services that do not consist of
moving pictures.
All the types of service defined in s.2(4) of the 1990 Act, digital or
otherwise, are limited to those broadcast from the UK (not
to the UK), or from places in UK jurisdiction. It seems fairly
clear that you don't need a licence to receive programs from outside
UK jurisdiction, however they are received.
s.3 of the 1997 Regulations would seem to be capable of including a
computer. In particular, a device does not have to be exclusively
intended for television to be a television receiver. Moreover, the
Internet, taken as a whole, could be regarded as a `multiplex' service
if it is used to carry one or more `television programme'. So it
appears that if you use your computer to receive `television
programmes' from within UK jurisdiction, then you need a licence. The
phrase `for the purpose of...' in s.3 probably prevents you needing a
licence simply because your computer is capable of doing this; you
need actually to do it.
We still need to determine what a `television programme' is.
To the best of my knowledge this is not defined anywhere, in statute
or case law. So if a case were to come to court, it would come
down to the judge or magistrate to decide, on the particular facts,
whether what you were watching was a television programme or not.
It seems a reasonable assumption that if it were material that
has been broadcast through an ordinary broadcast medium, or was
intended to be, then it will be deemed a television programme.
In conclusion, then, it appears that the actual use of a computer
to watch television programmes delivered by the Internet, and
originating within UK jurisdiction, requires a TV licence. There are
some who believe that there is a difference between downloading and
storing material, and watching it in real time by streaming.
While there may be differences as regards intellectual property
law, there does not appear to be a difference for licencing purposes.
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