Creative Uncommon?

Do you know what this symbol means?  We admit we did not know, either, until we read a survey report on the use of Crown Copyright carried out by Bunnyfoot for the Office of Public Sector Information.  Yet this is the most common form of the Creative Commons’ family of copyright licences, the “Attribution” licence.

We quite like the idea of using Creative Commons licensing for online content.  Frankly, what is the point of slapping © on online content that can easily be ‘cut and paste’.  Even we use the copyright symbol on our official website.  A Creative Commons licence would seem to be more realistic, even if it only limits the enforcement question by recognising some “fair use”.

There are 6 Creative Commons licences:

Regulatory holidays all WACC'd out?

How can national regulatory authorities (NRAs) promote investment in next generation access networks (NGAs) ?  It’s a common question, to which some would reply that “not interfering” would be an appropriate answer.  In other words, let those who are willing to risk investment in these uncertain times exploit their investment unregulated by NRAs – let them have a “regulatory holiday” (see, for example, the explanation from our friends at Ofcomwatch).

In previous blogs we have suggested that we think regulatory holidays are a bad idea.  We cannot see that regulation and investment are mutually incompatible.  We believe that it is highly likely that investment in NGAs will introduce new economic bottlenecks. Where an NGA is deployed, no effective and sustainable infrastructure competition will be possible in the short or medium term.  NRAs will therefore find that there will be at least some form of dominance in wholesale access to super-fast broadband.  The remedy for the dominance will be the requirement to provide access at a cost-orientated price, with an allowable regulated mark-up, the old favourite Weighted Average Cost of Capital.

We consider that those who protest that investment is impossible in super-fast broadband should explain to simple regulatory lawyers such as ourselves what is wrong with the old model of wholesale access at cost + WACC?  Doesn’t WACC include an assessment of risk? (See, for example, Ofcom’s statement on its approach to risk in the assessment of the cost of capital).

Please may I have my ball back?

The Football Association made an admirable offer to refund ticket holders who were unable, as a result of a widespread Tube strike, to go to the England -v- Andorra World Cup Group Qualifier on Wednesday, 10 June 2009 (for the record, a comfortable 6 – 0 win for England).  There was no question of the FA hiding behind any terms and conditions to deny refunds, even though it could easily have claimed that it was not at fault.  57, 897 England fans were, after all, able to get to Wembley to see the match.

This contrasts very favourable with the attitude of some of the clubs.  In particular, Tottenham Hotspur were brought to task by the Office of Fair Trading for including in its terms and conditions a term that stated that tickets would not be refunded or exchanged in any circumstances.  Not surprisingly, as soon as the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs) were brought to bear on this term, then this term was ruled unfair.  The OFT took particular exception to the possibility that a fan unable to attend a match that had been postponed or rescheduled would not be able to claim a refund for a ticket to that match.

This is not an isolated case.  Premiership clubs seem to have a problem remembering that they are not above the UTCCRs.  Most recently, Man United were required by the OFT to amend their season ticket terms and conditions.

As an aside, we wonder if a competition law analysis could be applied to these facts.  Certain fans appear to have a particular loyalty to their own football club.  There is arguably not much cross-elasticity between clubs.  It should be possible to define a relevant market as narrowly as, say, the retail market in tickets to matches of a particular Premiership club.  A SSNIP test on an increase of season ticket prices, especially for the Big Four (Manchester United, Liverpool, Chelsea, Arsenal) could easily show dominance.  Would unreasonably refusing refunds be an abuse of dominance?

The only reason this might be interesting is that under competition law the OFT can fine up to 10% of turnover.  That’s a few millions for most Premiership clubs.  However, under the Unfair Terms in Consumer Contracts Regulations, OFT can only apply to a court for an injunction to prevent a person using an unfair term.