Medium Law

Daithí Mac Síthigh

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317195030
• Edition: 1
• Topic: Social Sciences
• Subtopic: Media Studies
• Index: Social Sciences

Why should anyone care about the medium of communication today, especially when talking about media law?

In today's digital society, many emphasise convergence and seek new regulatory approaches. In Medium Law, however, the 'medium theory' insights of Harold Innis, Marshall McLuhan and the Toronto School of Communication are drawn upon as part of an argument that differences between media, and technological definitions, continue to play a crucial role in the regulation of the media. Indeed, Mac Síthigh argues that the idea of converged, cross-platform, medium-neutral media regulation is unattainable in practice and potentially undesirable in substance. This is demonstrated through the exploration of the regulation of a variety of platforms such as films, games, video-on-demand and premium rate telephone services. Regulatory areas discussed include content regulation, copyright, tax relief for producers and developers, new online services, conflicts between regulatory systems, and freedom of expression.

This timely and topical volume will appeal to postgraduate students and postdoctoral researchers interested in fields such as Law, Policy, Regulation, Media Studies, Communications History, and Cultural Studies.

1
Introduction

The age of the message

Why should anyone care about the medium of communication today, especially when talking about media law? Jeremy Hunt MP, while Secretary of State for Culture, Media and Sport in the UK, argued that ‘sensible cross-platform regulation’ was a prerequisite if the British media were to develop ‘world-beating cross-platform offerings’.¹ Ed Richards, as chair of the communications regulator Ofcom, foresaw a future where media would be the subject of a ‘single regulatory system … underpinned by a common set of core principles’; it would ‘simplify where possible for the digital age’ and not grow ‘piecemeal in light of events’.² In 2013, the House of Lords Communications Committee waxed lyrical about the many ways in which users could access content in light of technological and market change, and called for ‘placing much audiovisual content on an equal regulatory footing’.³ One could be forgiven for thinking that all sensible lawmakers would ignore the medium if at all possible, or at least look forward to the day when broad, clear laws on content regulation can be promulgated.

These views are not without their supporters beyond the ranks of politicians and regulators, either. In the 1980s, Pool pointed out that ‘convergence’ between different means of communication, brought about through technological innovation, challenged the historic separation of different media,⁴ while Kittler set out in the following decade (albeit with considerably less optimism than Pool) how digital technologies ‘erase the very concept of the medium’.⁵ An extensive inquiry by the Australian Law Reform Commission in the present decade identified a number of different forms of convergence (e.g. economic, technological) and how this challenged the ‘silos’ recognised within media regulation.⁶ As a typical account of media history put it, the present day position is that ‘all the accepted wisdom about … copyright, censorship … is now being called into question’.⁷

In this book, I will set out the case for continuing to acknowledge within regulation, and in some cases use as the basis for special regulation, the medium. This is not to say that every silo ought to be defended on equal terms. There are plenty of examples where the lines drawn for legal purposes make no sense, and may have never made sense in the first place. We will encounter Morris dancers and lap dancers, space invaders and streaming video, and surprisingly detailed consideration (by regulators) of everything from ringtone subscriptions to titles and credits in audiovisual works. But I will propose that the idea of converged, cross-platform, medium-neutral media regulation is unattainable in practice and potentially undesirable in substance.

Revisiting the medium

In Chapter 2, I set out the conceptual basis for studying the medium within law. Within communication and media studies, a sustained engagement with the medium is found in the work of Canadians Harold Innis and Marshall McLuhan. Innis and McLuhan studied the history of communications, making arguments about the relationship between a medium and its social or economic impact. They distinguished between media, often situating the emergence of a new medium against the affordances of an older one (i.e. what it can be used for or what we think it can be used for). Their work, and the work of others, sits within the labels of the ‘Toronto School’ or ‘medium theory’; echoes are found in other work, including the ‘apparatus’ tradition within film studies. I summarise the main contentions of Innis and McLuhan, and respond to the criticism that the study of the medium is unhelpful because of the tendency to attribute excessive agency to technology, i.e. technological determinism. I then develop an argument in favour of using the Toronto School’s perspective as a tool for analysis of law, particularly media law. I note that searching for the role of the medium in media law allows for the examination of whether differences in the treatment of the ‘same’ content can be justified, as well as whether applying the same rule across more than one medium could lead to differing results depending on the characteristics of a particular medium. This means that although much of this book is an attempt to identify and explain what the law is, there is a strong normative dimension in that asking questions in this way is based on an assumption (which some would contest) that there is value in categorising media regulation in this fashion.

The other contention made in Chapter 2 is that the medium of communication is the basis for regulation, or for the application of one set of rules over another, well beyond the area of media law. I support this argument through discussion of two examples in specific fields of law, and a broader argument regarding human rights law. The first example is ecclesiastical law, and more precisely a set of cases and statutory provisions relating to ‘ritual’ in the Church of England during the nineteenth century. These controversies demonstrate that the choice of medium is closely related to the desired communication or effect, but that regulating by reference to the medium presents opportunities for innovative legal arguments and, in some cases, avoiding the intended impact of regulatory intervention. The second example is how planning law treats the flying of flags. Flags are readily identified as a means of communication, but once more, there are flag-specific rules and also situations where a flag is deliberately used in preference to another medium. Finally, I highlight how human rights law (specifically, freedom of expression and of assembly) interacts with the medium used for communication; I find examples of this phenomenon in the legal control of advertising, processions, and the like.

Film and games: two labels, many mediums

Chapters 3 and 4 contain a detailed treatment of two broad themes: ‘film’ and ‘games’. Film is without doubt a contested label, especially in relation to its status as a medium. Legally, there are significant differences between the arguably narrower categories of ‘cinema’ and ‘video’, although there are also areas of overlap with, for instance, broadcasting law. Games (by which I mean video, computer or digital games) might have a certain deal of attraction as a category, but even this younger sector has seen definitional and regulatory challenges, such as in relation to casual games and smartphone/tablet apps. In both cases, the goal is to identify and assess the regulation of the medium or media in question, with particular emphasis on how boundaries are set and how specific rules apply to a medium – whether that is above and beyond that applicable to other media, or copied from or influenced by the rules already in place elsewhere.

Within these chapters, I attend to both internal and external aspects of the legal definition of a medium. The internal dimension is the consistency (or otherwise) of the way that the terms are used in law. The external dimension is the way in which audiences and the industry relate to the definitions and the specific technologies or platforms covered by a definition, in the light of technological, social and economic change.

Note that both chapters include a discussion of tax relief and (primarily regarding games rather than film) copyright law. These provide an important contrast with the more familiar discussion of content regulation. For instance, the offering of favourable conditions under tax law to particular aspects of the creative industries requires Parliament to identify both the rationale for doing so and the conditions of eligibility. Unsurprisingly, these conditions involve identification of a relevant medium (not necessarily in the same fashion as in content regulation), and in turn form part of the analysis of what rules apply within a given medium and how particular they are to that medium. Similarly, copyright depends in part on assumptions made about a medium (e.g. whether to treat something as ‘software’ or ‘art’ and therefore applying the relevant set of rules) and can form part of the overall regulatory environment for and constitution of a medium, especially in light of technological change.

Medium law at the media margins

Each of the following three chapters are then dedicated to the analysis of medium specificity within three fields: radio and audio, video-on-demand (VOD), and premium rate (telephone/SMS) services (PRS). As Marsden has highlighted through his work on net neutrality⁸ and on Internet co-regulation⁹ (while also using the label ‘medium law’), there is a need to identify aspects of content regulation even where not obvious at first glance (e.g. in his work, telecommunications law). The three sectors discussed in Chapters 5, 6 and 7 have been chosen because they all fall, to some extent, outside the major preoccupations of media law. VOD is an emerging area and may take on more significance in future work, while PRS has been around for a while longer, but is re-emerging as an influential regulatory model in light of technological and market changes. The detailed investigation of press regulation through the Leveson Inquiry saw renewed discussion of the plethora of regulatory models used within media, although some remain better known than others. Textbooks and syllabi may deal with areas like radio to some extent, but often with much less detail than those issues of interest to television and the press. Of course, the regulation of television is still discussed throughout the book, often through comparing it with film, radio and VOD.

The same marginalisation may also be observed within media studies. As Benson argued, even the emergence of the interdisciplinary study of video and new media saw pre-recorded video treated as the ‘bastard child of cinema and television’ deserving of little critical attention.¹⁰ Dymek proposes that an industry such as video games can only be properly understood as a subcultural industry working within a subcultural industry logic; the transition between such and becoming a ‘mass-cultural medium’ therefore requires attention.¹¹ This also justifies the separate treatment of premium rate services; it is more tenuous in the case of radio, although as the chapter deals with a broad range of audio services (including pod-casts, streaming, and the like), some similar tensions and questions can be observed.

I contend that even in these arguably marginal areas, the significance of medium law can be tested. Indeed, it may be more relevant because of the growing pains or revisionist challenges that they are currently facing (e.g. the future of positive obligations within radio). The chapters therefore have the dual purpose of identifying the coherence of the regulation of the field through how the medium is defined by various means, and of interrogating the significance of the medium within the operation of the regulatory system.

Let me entertain you

The final substantive chapter could fall within what is sometimes labelled as ‘media and entertainment law’, although again the focus of scholarly attention and of teaching tends to be elsewhere (e.g. regulation of the music industry more broadly, aspects of intellectual property). This chapter instead considers the regulation of entertainment through the Licensing Act 2003 and other provisions. The 2003 Act is a notable high water mark of Parliamentary attempts to consolidate and to approach regulation in a demonstrably more ‘converged’ fashion. It is therefore significant that, not just in the Act itself but in subsequent amendments, the result has been the creation of a very complex set of medium-based categories and subcategories. The story of entertainment licensing serves as an illustration of the conflict between convergence and complexity, and the enduring appeal of the medium – even if the distinctions between one medium and another are sometimes beyond parody.

Approaches and methods

Unsurprisingly, the influences on this book are drawn from media studies and from law. Chapter 2 is based on a reading of Innis, McLuhan, and others who study the media (including through other disciplines; Innis was after all an economist and a historian, first and foremost). But even in later ch...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Table of cases
• Table of statutes
• Series editors’ foreword
• Acknowledgements
• 1 Introduction
• 2 The medium and the media
• 3 Film, cinema and video
• 4 Games
• 5 Radio
• 6 Video on demand
• 7 Premium rate services
• 8 That’s entertainment?
• 9 The message about the medium
• Bibliography
• Index