Archive for the ‘Digital Media’ Category

New Media Law moves!

On Monday 8th December, New Media Law moved from Little Portland Street in Noho, to Hanover Square in Mayfair.

The full address of our new office is:

24 Hanover Square

London, W1S 1JD

All other contact details remain as they were previously.

We look forward to welcoming you to our new office very soon!

UK Music Industry announces record growth

The UK music industry announced record year on year growth in 2013 of 9%.

This is a phenomenal success, when one considers that the UK economy as a whole grew by 1.9%.

Perhaps the corner has in fact been turned….

 

See the UK Music report in full here: 

http://www.ukmusic.org/assets/general/UK_MUSIC_Measuring_Music_September_2014.pdf

New parody exception comes into force today

1 October 2014

Background 

Under current UK legislation the Copyright Designs and Patents Act 1988 (“CDPA 1988”) did not provide for a parody exception to copying of copyright works.

Copyright law protects an owner of copyright works from, amongst other things, unauthorised copying or reproduction of the whole or a substantial part of one’s works.  A defendant who parodies a work in the UK could therefore potentially be sued for copyright infringement.  The claimant would then argue two main points:

i) that the defendant has copied a substantial part of his work which is an exclusive right of the copyright owner (s.16 CDPA 1988); and/or

ii) that the defendant is in breach of the claimant’s moral rights in the work, more specifically the right to object to derogatory treatment.

A defendant could then try to use what is known as the fair dealing defence of criticism and review, or try to argue human rights freedom of speech principles, both of which would be quite weak points.

Following the Gowers Review (2006) and the Hargreaves Report(2011) consultations began which considered the introduction of a new copyright exception, namely that of parody or pastiche.

New changes

Under the new law, third parties will be able to use minor aspects of copyright works with greater freedom without fearing being drawn into legal battles. Third parties will no longer have to seek the copyright owners’ permission to use their works in the context of parodies. The need for reform has been pushed by the continued increase of protected material being used on social sites such as YouTube and Facebook. The changes will bring the UK in line with other jurisdictions such as Germany, France, Australia, Canada and the Netherlands.

The new changes to copyright law which come into force today introduces a parody exception, albeit under the umbrella of fair dealing. The new section 30A CDPA 1988, introduces the following text:

30A    Caricature, parody or pastiche

(1) Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.

(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.

The idea behind this new exception is to bring copyright law in line with acceptable norms in a digital society by allowing users to parody the work of a copyright owner without his or her consent.

Will these changes have any practical significance to the creative industry?

Although some have applauded the new defence as a big step forward in UK copyright law, others are more critical. This is partly due to the difficulty in establishing what amounts to a parody and partly because the provisions under both copyright law and the law of defamation could trump any parody or pastiche defence.

What is a parody?

Lawyers, practitioners, judges and indeed the general public struggle in their attempts to define parodies. In a recent preliminary ruling the Court of Justice of the European Union a three stage test for what amounts to a parody was discussed. The parodical work needs to invoke the earlier work whilst still being noticeably different and must be respectful of the original work. Secondly, there must be an aspect of humour to the work in question.

In essence this means that the work must be sufficiently similar, yet different enough to enable the recipient to identify the work that is being parodied whilst simultaneously understanding it to be a parody.

However, humour has not been defined and it’s still unclear as to whether humour is determined by the public’s response or it’s defined from the perspective of the parodist. Furthermore, section 30A makes no reference to satire.

Fairness in the fair dealing

The first question that this raises is of course the extent to which the “comedian” can parody the work within the remits of what is fair. Case law shows that this in itself limits the amount that a person can copy from the original work. The comedian should therefore be cautioned as to the amount of the work actually copied.

This puts the comedian in a catch-22:

Copying a substantial amount of the claimant’s work will most probably not amount to fair dealings and therefore infringe the rights in the copyright work, whilst not copying a substantial part may risk the work not being identifiable as a parody.

Defamation and moral rights

The next hurdle is that the proposed changes do not amend the moral rights to object to derogatory treatment of one’s work under the CDPA 1988. This may arguably defeat the purpose of a parody, as in many circumstances it indeed involves some form of derogatory treatment of the work in question. Likewise, a claimant could still rely on the laws of defamation where the parody allegedly goes too far. This would, again, trump the fair dealing parody defence.

The future

As much as these changes appear to be in favour of third party use of protected content, it may also encourage copyright owners to take legal action, as parodies commonly push the boundaries of what is considered to be of good taste.

Further, as the new exception raises more questions than it answers its implications for the copyright owner, and indeed the comedian, remains to be seen. It can be anticipated that this issue will initially give rise to many disputes as to the boundaries of its application before the issue settles down. It is apparent therefore that future case law will have to reveal the real benefit of these changes.

 

Paida Dube, Intern, New Media Law LLP

Sarmad Saleh, New Media Law LLP

 

 

MIPCOM attendance

new-logo.jpg

MIPCOM

We are delighted to announce that the following of our lawyers will be attending MIPCOM this year, from Sunday (11th) to Wednesday (15th) October.

 

Ian Penman – Partner   ( ian.penman@newmedialaw.biz )   ( +44 7765 244 111 )

Paul Hosford – Partner  ( paul.hosford@newmedialaw.biz )   ( +44 7765 244 222 )

Michael Hekimian – Counsel  ( michael.hekimian@newmedialaw.biz )   (+44 7979 345 181 )

 

For further information, please contact:

+ 44 20 7291 1670

info@newmedialaw.biz

Screen and cache copies are not an infringement of copyright

A recent Court of Justice of the European Union decision confirms that browsing websites does not infringe copyright:

Newspaper Licencing Agency Ltd and others v Public Relations Consultants Association Ltd [2014]

Article 5 of Parliament and Council Directive 2001/29/EC of 22 May 2001 established that website copies on an end-user’s computer screen and in the Internet ‘cache’ of the computer’s hard disk could be made without the copyright holders’ authorisation while the end-user is browsing the internet. The copies in question were held to be “temporary”, “transient or incidental” in nature and an “integral and essential part of a technological process”.

The Public Relations Consultants Association (“PRCA”) use a third party called Meltwater to monitor reports on press articles published online.  The reports are compiled using key words inputted by the PRCA.  Meltwater wanted their customers’ acts of reproduction to be exempted from the Article 2 reproduction right.

The Newspaper Licensing Agency collectively licences newspaper content and wanted Meltwater and its customers to obtain authorisation from copyright holders for providing and receiving the media monitoring service.

The PRCA appealed to the Supreme Court in the UK, who referred certain questions to the Court Of Justice of the European Union in Brussels (the “CJEU”). The CJEU interpreted Article 5(1) as well as Article 5(5) of the Directive to decide whether the conditions were satisfied.

Following the precedent set in Football Association Premier League Ltd v QC Leisure (which established that the conditions of Article 5(1) and Article 5(5) need to be satisfied), the CJEU held that this was a special case since the on-screen and cached copies were only for viewing websites. These copies were held not to conflict with a normal exploitation of the works and did not unreasonably prejudice the legitimate interests of the properly safeguarded rights holders.

Bankole Kasumu, Intern, New Media Law LLP

Ian Penman spoke at rAsia conference in Moscow, 25-28 June 2014

Ian Penman, one of the founding partners of New Media Law, spoke (for the 2nd time, having attended the conference in 2013) at the rAsia conference in Moscow in June.

For further details of the conference, please see: http://rasia.com/

Ian presented on the background and function of New Media Law at 12.30pm at the “TELL Academy” on Thursday 26th

He also spoke on the subject of “LEGAL ASPECTS OF THE NEW DIGITAL ENVIRONMENT” in the Main Hall of rAsia at 3.15pm  on Thursday 26th. http://rasia.com/2014/forum/ru/full26

The presentation focussed on legal developments across Europe and the USA, notably the drive to “encrypted” content and storage, following on from the closure of sites such as KAZAA (www.kazaa.com) and LimeWire (www.limewire.com)  and the impact of the “Kim Dotcom” litigation.

He also spoke on Friday 27th: http://rasia.com/2014/forum/ru/full27

WHY THE NEW IT SOLUTIONS ARE IMPORTANT FOR MEDIA AND CONTENT AND HOW THESE NEW IT SOLUTIONS WILL CHANGE MEDIA AND CONTENT

in a panel chaired by Ralph Simon in Hall A of rAsia at 10.15am

The panel focussed on what the new technological developments mean for the content and media industries.

And again on:

ALWAYS CONNECTED.  THE NEXT STEP IN WIRELESS

in a panel chaired by Shaukat Shamim, of YouPlus, in Hall A of rAsia at 17.00

The panel focussed on what the move to wireless means for content owners and advertisers.

For further details, please contact: esther.mchale@newmedialaw.biz

or, Ian himself, at: ian.penman@newmedialaw.biz

CHINA TO OPEN INTELLECTUAL PROPERTY COURTS

On 6 June 2014, the Chinese government took a major step forward in the protection of IP.

As someone who is married to a card-carrying member of the Chinese Communist Party (the daughter of the Chairman of Dong Feng Motor Co, Liuzhou, no less), I take a special interest in these affairs.

As Chairman Mao famously said: “A journey of a thousand miles begins with a single step…”.

China has voted to establish specialised courts for intellectual property rights.  The decision was endorsed at the third meeting of the Central Reform Leading Group on Comprehensively Deepening Reforms, a top-level decision-making and coordinating body established by the 3rd Plenum of the 18th Central Committee of the Chinese Communist Party in November 2013.

The introduction of a court which specialises in Intellectual Property is as a crucial step forward for the protection of IP rights in China.  It continues a process of started in 1993 when the first IP tribunal was set up within Beijing’s First Intermediate People’s Court.

A great leap forward – without doubt.

 

Ian Penman

Partner

New Media Law LLP


For more details, please contact: ian.penman@newmedialaw.biz

Or our Marketing Manager, Esther McHale at: esther.mchale@newmedialaw.biz


New Technology Transfer Block Exemption and Guidelines


On 21 March 2014 the European Commission (Commission) adopted a revised Technology Transfer Block Exemption Regulation (TTBE) and accompanying Guidelines (Guidelines).  The new rules will take effect from 1 May 2014 and follow a series of consultations on the draft texts that the Commission launched in 2011 and 2013.  We asked EU and competition law barrister Suzanne Rab of Serle Court about the key implications in practice. 

What, in brief summary, is the TTBE?

The TTBE provides a safe harbour or ‘block exemption’ for certain categories of technology transfer agreements that fulfil the conditions set out in the TTBE.  Where the requirements of the TTBE are met, the agreement will be compatible with Article 101 TFEU without the need for individual assessment.  The TTBE applies to a variety of IP licensing scenarios including licences of patents, know-how and software copyright.    As with other block exemption regulations, the application of the TTBE is conditional on the parties’ market shares not exceeding certain thresholds.  These apply to both the relevant technology and product markets concerned by the technology licensing arrangements (20% combined for agreements between competitors and 30% for agreements between non-competitors).  The application of the TTBE is also conditional on the non-inclusion of certain ‘hardcore’ restrictions which are set out in Article 4.  In addition, the TTBE contains a list of ‘excluded’ restrictions (Article 5) which do not benefit from block exemption but whose inclusion does not automatically prevent the TTBE applying to the rest of the agreement.  Such restrictions are subject to individual assessment to determine whether they are compatible with Article 101.  The Commission has published accompanying Guidelines which help parties and their advisors to determine whether the TTBE applies.  The Guidelines also provide guidance on the application of Article 101 to technology transfer agreements which do not benefit from the TTBE.  

In terms of the revised TTBE adopted on 21 March 2014, what are the main changes from the current TTBE which expires at the end of April 2014?

The key changes are the following: ·         The scope of exempted restrictions on passive sales has been narrowed.  As between non-competitors, the 2004 TTBE allowed a restriction of passive sales into an exclusive territory or exclusive customer group allocated by the licensor to another licensee during the first two years that this other licensee is selling the contract products into that territory or customer group.  This exception from the hardcore restriction on selling into allocated territories is removed.  However, the Guidelines allow this type of restriction where the restrictions are objectively necessary for a licensee to enter a new market.

·         All forms of exclusive grant-back obligations will be excluded from the TTBE.  This narrows down the scope of the TTBE.  The 2004 TTBE excluded only those exclusive grant-backs that related to severable improvements.  The aim is to ensure that there are incentives for follow-on improvements.

·         Clauses entitling the licensor to terminate the licence in the event of a challenge to the validity of the technology in a non-exclusive licence will not benefit from the TTBE.  Up to now it has been typical to provide the licensor with a right to terminate the licence in the event of a challenge to the IPR but this carve-out no longer enjoys the protection of the TTBE.  However, such a clause will amount to an excluded restriction so that its inclusion which not automatically prevent the TTBE applying to the remainder of the agreement.·         The current requirement that the purchase of raw materials or equipment in the context of a technology licence must be secondary to the technology licensing in order for the TTBE to apply has been removed.  The new TTBE will apply to such purchases where they are directly related to the production or sale of the contract products which are produced using the licensed technology. 

What was the main thrust of feedback from the consultation process?

The feedback from the first (late 2011) consultation was broadly positive in that most commentators thought that the TTBE and Guidelines were important tools to assist parties to determine the application of EU competition law to their licensing agreements.  Comments focused on issues such as the scope of application of the TTBE, market share thresholds, hardcore restrictions, grant-backs and cross-licensing.  The second consultation which expired on 17 May 2013 was supportive of the Commission’s intention to retain the broad structure of the TTBE and focused on amendments of an incremental nature.  Most comments related to market share thresholds, the treatment of termination clauses in the event of a challenge to the validity of IPR, grant-backs and patent pools.     

Are there any surprises and/ or provisions that will prove controversial?

The new TTBE is not a radical overhaul of the existing rules – it is more an evolution and tightening up of the existing structure.  Despite some simplification, the list of hardcore restrictions as between competitors remains substantially the same.However, the refined scope does mean that the new TTBE is less permissive than the previous version in some respects, in particular as regards the ability to impose restrictions on passive sales, grant-backs and termination provisions as already discussed.The changes to the Guidelines that are particularly noteworthy concern settlement and technology pools.  These changes coincide with the Commission’s competition law investigations into abuse of patent rights.The Guidelines provide that settlement agreements which lead to otherwise delayed or limited market entry may be restrictive of competition under Article 101(1).  If the parties are actual or potential competitors and there is a significant value transfer from the licensor to the licensee, the Commission will be vigilant to the risk of market sharing.  This reflects the Commission’s sustained interest in provisions which are frequently referred to as ‘reverse payments’ (in the current context, typically payments from the licensor to the licensee).  Another feature of the Guidelines is the stance on no-challenge clauses in settlements.  The Commission recognises that such clauses are often an inherent feature of settlements but considers that they may infringe Article 101, particularly where the underlying IPR is a necessary input for the licensee’s production.  This may strike industry as surprising since the very aim of settlement is to draw a line under disputes between the parties.  The extended provisions of the Guidelines on technology pools clarify the application of the safe harbour to pools.  The Commission notes that the concept of essentiality covers not only the position where the technology is essential for producing a particular product but where this is essential to meet a particular standard.  The safe harbour will apply not only to the creation of the pool but also to any licensing out to members.  However, any licensing arrangements between the pool and third parties will not be covered by the TTBE since such arrangements are considered by the Commission to be multiparty licensing arrangements where the parties collectively set the conditions for licensing.  

Has anything changed since the draft TTBE was circulated following consultations in 2011 and 2013? The Commission had initially proposed that the lower 20% market share threshold that applies to competitors would also apply to agreements between non-competitors where the licensee owns a substitute technology that it uses for its own in-house production.  Commentators thought that this would increase the complexity of the TTBE and was, in any event, a relatively unusual scenario.  The Commission has decided to retain the existing market share thresholds for competitors and non-competitors.Following the 2013 consultation, the TTBE will continue to apply to exclusive agreements which entitle the licensor to terminate the licence in the event of a challenge to the IPR (assuming that the TTBE market share thresholds are met).  This concession (i.e. exempting such clauses in the case of exclusive licensing) is intended by the Commission to achieve a better balancing of the incentives to innovate against the public interest in removing invalid IPR from the register.  Another refinement is that the Guidelines make clear that a restriction on passive sales in an agreement between non-competitors might be necessary for a period of longer than two years to enable the licensee to recover the costs of penetrating a new market. 

This content is based on material first published on LexisPSL Competition. A free trial is available here:http://www.lexisnexis.com/uk/lexispsl/competition/home

NEW MEDIA LAW signs Joint Venture agreement with PLEIMO.COM

Ian Penman, partner of New Media Law says:

“We are delighted to be officially on board with such an amazing new company as Pleimo.com.  Pleimo is the most exciting development in the world of musicians for many years, bringing a brand new revenue stream to the creative people that need it most”.

Pleimo is a new digital music service, originating from Brazil, and created by the inventor and entrepreneur, Dauton Janota.

It provides an immediate income to musicians whose fans decide to use its music streaming service, and nominate their favourite act.  Pleimo pays a monthly amount to each act, from the streaming subscription income.

Pleimo also offers a-la-carte downloads (per iTunes); ticketing services (per Ticketmaster); merchandising services and music publishing services to its artist clients.

Ian Penman from New Media Law has been appointed an executive director of Pleimo Corp (in the USA), as well as Pleimo Limited and Pleimo Music Limited (in the UK).

Rick Riccobono from New Media Law has been appointed to Pleimo Corp’s Advisory Board.

 

For further information, please contact: Esther McHale, Marketing Manager, New Media Law: esther.mchale@newmedialaw.biz  Tel: +44 207 291 1670

New Media Law and Pleimo

Photo: Left to Right: Christian Ulf-Hansen, Artist & Writer Relations, Pleimo; Gustavo Vaz, VGRI (Brazil); Richard Homer, Solicitor, New Media Law; Ian Penman, Partner, New Media Law/Director Pleimo; Rick Riccobono, Consultant, International Digital Rights Licensing, New Media Law/Advisory Board Member, Pleimo; Dauton Janota, CEO, Pleimo.

Getty makes its photos free!

In a radical move, Getty Images has allowed some 35,000,000 of its photographs, including images as varied as Adolph Hitler or Al Capone, to Marilyn Monroe or Marion Morrison (aka John Wayne), to be used royalty free without the Getty watermark.  The condition is that the user “embeds” a credit/link at the bottom of the image, which links to Getty.  Of course, that will also give Getty access to data (as to the photograph’s use) which it may be able to monetize.

Nevertheless, a brave step, which is akin to what groundbreaking “free music” services such as (originally) Qtrax.com, then Spotify.com, and now Pleimo.com did for access to music.

For further details on licensing of copyright images, please contact:

Ian Penman, Paul Pattinson, Daniel Eilon, Michael Hekimian or Richard Homer at New Media Law

www.newmedialaw.biz

Tel: 020 7291 1670

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