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The Marketing Trinity

In our connected world brand owners are increasingly using media assets to promote their wares. As Steven Heyer of Coca Cola said: “This is a new era of co-creation, the convergence of the marketing trinity: entertainment content, media and brands”

The benefits of this combination are attractive. An association with entertaining, aspirational content and the access to eyeballs that that brings can help drive up sales. Understanding the deals that can be struck with the media owners and the technological and regulatory framework in which those deals reside is key.ATVOD, is the Authority for Video on Demand. It regulates all services that offer the ability to access video content on an on-demand basis

As the media and retail sectors converge many of the more progressive retailers are using content from the creative industries in their online shop fronts to enhance the customer experience. Brands are using media to help align themselves with content. Increasingly, retail websites feature video content (for example where a brand sponsors an event and features documentaries about it or where an online clothing stores features music videos). That content may well be subject to regulation by ATVOD.

When most people think of Video on Demand (VOD) they think of services like the BBC iPlayer or BT Vision. ATVOD does regulate services like those but its remit goes much further. In particular it regulates video content that is found on websites, including some of the content found on the channels of Youtube. It is very easy for anyone operating a site that contains video content to find themselves subject to ATVOD regulation.

ATVOD is responsible for regulating On Demand Programme Services (ODPSs). For a service like a website to qualify as an ODPS it must have the following five characteristics:

1. It must give access to video content which is similar to the sort of content that can be seen on broadcast television. ATVOD refer to this a “TV-like”. It is very easy for content to be regarded as TV-like by ATVOD because they adopt a very broad definition of the sort of content that will pass this test;

2. The content must be available on demand. This requirement is very simple to fulfil and virtually all video
content that is accessible on (say) a player in a website will qualify as on-demand;

3. The content must be made available to members of the public. This test, which is meant to exclude content made available through services like internal training videos sites, will be easily passed by most public facing websites;

4. There must be someone who has editorial responsibility for the choice of video content that is featured on the service. Again, this requirement will usually be easily fulfilled, unless no-one has control over the content that is featured on the site (e.g. of the content is user-generated);
5.The person who has editorial responsibility must be based in the UK. There are special rules that ATVOD applies that determine this. The test is quite wide and it is fairly easy to find that you are within the UK jurisdiction.

ATVOD Notifications

If a website or any other service qualifies as an ODPS the person who has editorial responsibility for the video content is required to notify ATVOD that they are operating that service. They must pay an annual fee based upon their turnover. They must also then comply with the rules and regulations that ATVOD imposes about the video content. A failure to notify an ODPS to ATVOD is a criminal offence so this is an obligation that should not be ignored. If you are in any doubt you should seek specialist advice.

The notification process itself is quite simple and the forms are available on the ATVOD website (www.atvod.co.uk).

The fee payable is based upon the turnover of the operator, not the turnover associated with the site. It can be as low as £200 per service, for a small undertaking or as much as £10,350 for a first service for a large undertaking.

The rules and regulations that the operator of an ODPS must comply with are similar to the rules that OFCOM imposes on television broadcasters when it regulates their content. Again, specialist advice may be needed to interpret these rules.

What isn’t caught?

ATVOD specifically recognise that advertising content is not caught by their regulations. That is because the Advertising Standards Agency (ASA) regulates that type of content including, now, specifically where it appears in websites. More on ASA in our next edition.

For further information contact Wiggin’s online retail group:

Shaun Lowde
t: +44 (0) 20 7927 9683
e: shaun.lowde@wiggin.co.uk

Michael Brader
t: +44 (0) 20 7927 9679
e:michael.brader@wiggin.co.uk

Sarah MacDonald
t: +44 (0) 1242 631 268
e:sarah.macdonald@wiggin.co.uk

Antonia Anness
t: +44 (0) 1242 631 349
e:antonia.anness@wiggin.co.uk

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