Archive for the ‘Music’ Category

Should Ofcom have the power to block or approve media and news deals?

A 4 February 2014 report published by the House of Lords communications committee has urged for changes to the regulation of media ownership.  It finds that the UK communications regulator, Ofcom, should take a more prominent and leading role in deciding whether media transactions or concentration should be approved. 

Merger control in media transactions be a complex area given the relationship between merger control review by the UK competition authorities on competition grounds and the potential for political/ public interest intervention on newspaper and/ or media public interest grounds.  Currently, the UK Government is able to intervene in a newspaper or a broadcasting/ media merger where the Secretary of State believes that a merger may raise a relevant public interest consideration and the transaction constitutes a relevant merger situation under the standard UK merger control rules.  There are specific public interest considerations for newspaper cases and also broadcasting and cross-media cases. 

When the UK sought to develop its laws in relation to public interest scrutiny of media mergers the relevant Government minister said in 2003 that:  “[media] plurality is important for a healthy and informed democratic society.  The underlying principle is that it would be dangerous for any person to control too much of the media because of his or her ability to influence opinions and set the political agenda” (Hansard, Lord McIntosh of Haringey (Parliamentary Under Secretary, DCMS) 2 July 2003). 

In relation to broadcasting and cross-media mergers, the principal media plurality considerations are set out in section 58(2C) of the UK Enterprise Act 2002 and include: “the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience.” 

UK communications regulator Ofcom conducted a significant research study and extensive stakeholder consultation on plurality matters between November 2011 and June 2012.  In October 2011 Ofcom stated that: “We have defined plurality as a) ensuring there is a diversity of viewpoints available and consumed across and within media enterprises and b) preventing any one media owner or voice having too much influence over public opinion and the political agenda.” 

The committee now recommends that Ofcom should undertake periodic reviews of media plurality every four to five years to examine the sufficiency of plurality at the relevant time.  This power to examine and ultimately require divestments in tightly defined circumstances would arise independently of any structural change in the market such as a merger or acquisition. 

As a further change from the current rules, the committee recommends that Ofcom rather the Secretary of State should have final decision making power over whether specific media transactions should be approved, based on a balancing of the effect on competition and plurality. 

The committee’s report comes following an extensive public consultation.  Media plurality issues have come under scrutiny recently.  In the decade since the current regime was put into operation, only three cases have raised plurality “issues” such as to warrant a further inquiry.  Critically, there has been no final UK determination in a case involving only plurality issues.   

In BSkyB/ ITV, BSkyB had acquired material influence over ITV, an important UK broadcast news provider.  The Competition Commission concluded that sufficient media plurality remained for each major audience in the UK, both for a TV audience and a cross-media audience (taking into account the readership of News International’s newspapers).  BSkyB was required to divest its shareholding in ITV to below 7.5 per cent, for reasons connected with competition and not media plurality. 

The second case involved News Corporation’s proposed acquisition of the shares in BSkyB that it did not already own.  This was a highly unusual case which is unlikely to have many if any counterparts. The case did not reach a final decision by the Secretary of State so provides no definitive support for the efficacy or otherwise of plurality controls.  Quite the contrary, the case contributed to a full review of whether the existing media plurality test in the UK is workable in practice. 

A third case involved Global Radio’s acquisition of the entire issued share capital of GMG Radio Holdings Limited, the third largest UK commercial radio operator and operator of several radio stations across the UK.  On 3 August 2012 the Secretary of State issued a public interest intervention notice.  The intervention notice was issued on the basis that the media plurality public interest test might be relevant to consideration of the merger.  Despite the issue of the intervention notice, the Secretary of State announced that, on the advice of Ofcom, she would not refer the acquisition to the Competition Commission on media plurality public interest grounds.  The case was nevertheless referred but only on competition grounds.  The Competition Commission published its final report on 21 May 2013.  Global was required to partially divest some of the acquired or its own stations in each of the overlap areas to address the substantial lessening of competition found by the Competition Commission. 

Against this background, it appears that giving greater powers to Ofcom is intended to serve as a check on political interference that most ‘mainstream’ (i.e. non-media) media are insulated from. However, whether the Government will relinquish determinative power to Ofcom in the review of often high profile media transactions remains to be seen.   

The proposal to allow Ofcom to intervene even outside a specific transaction is highly controversial, albeit there would be a higher bar to intervention in such cases. 

The recommendations also propose to maintain a clear distinction between competition and plurality. Pluralism is designed to capture issues other than those that are covered by competition inquiries into market concentration.  The analysis has to encompass also the capacity of an entity to unacceptably influence public debate quite separately from any competition issues.   

Whether the recommendations will be implemented at all or in their proposed form is a matter of debate.  The recommendations also sit rather uncomfortably with the mandate of the new Competition and Markets Authority which will replace the Office of Fair Trading and the Competition Commission from April 2014. Its remit will be to have tighter reins on the sector regulators rather than giving them a wider berth. 

This post was prepared in consultation with Suzanne Rab, independent barrister specialising in competition and regulation at a leading chambers in Lincoln’s Inn.  Suzanne provided evidence to the House of Lords Select Committee review of media plurality.

DEFAMATION HAS CHANGED - How does this affect your business?

The new Defamation Act 2013, passed into law on the auspicious date of 25th April 2013, has come into force on 1st January 2014.

It brings in a whole new look to defamation, enacting a series of new measures, including:

  • a “New serious harm threshold”, which is aimed at helping people to understand that a certain level of damage has to be done to someone’s reputation before a claim will be successful, and which discourages wasting the Court’s time;
  • enabling protection for scientists and academics who publish “peer-reviewed” material in scientific and academic journals;
  • enabling protection for those publishing material on a matter of public interest (where they reasonably believe that it is in the public interest);
  • reducing libel tourism by tightening the test for claims involving those with little connection to England and Wales;
  • introducing a new process aimed at helping potential victims of defamation online, by resolving the dispute directly with the person who has posted the statement;
  • bring in a single-publication rule to prevent repeated claims against a publisher in respect of the same material.
  • Please contact Roger Field or Ian Penman

    ( or

    if you would like to know more about the new defamation law, and how this will affect your business, please get in touch.

    Tel: +44 20 7291 1670

    Ian Penman

    Partner, New Media Law LLP

    +44 20 7291 1670


    The European Commission has started a consultation on its continued efforts to review and modernise EU copyright rules. 

    The consultation “document” is focused on ensuring that the EU framework for copyright remains fit for the challenges of the digital world, exploits full potential for the single EU market, and stimulates growth and investment, while fostering cultural diversity.  It’s an ambitious aim and one which has been on the EU regulatory agenda for some time.

    The consultation comes in the wake of the Commission’s Content in the Digital Single Market communication of 2012 []. There it asserted its efforts to update the EU copyright rules through an industry-led initiative.  That process has led to recommendations for multi-territory licences for the use of music online on a small scale.  The Commission is expected to decide later in the year whether it wants to back this up with legislation.

    The consultation invites views on a wide range of topics including whether there are limitations in the current regime due to a patchwork quilt of rules and fragmented protection.

    The consultation spans some 80 questions over 8 sections.  It is a portmanteau ‘catch all’ document reflective of the multiple interests at stake.  It covers such issues as: 

    • Have you faced problems when trying to access online services in an EU Member State other than the one in which you live?
    • Have you faced problems when seeking to provide online services across borders in the EU?
    • How often are you asked to grant multi-territorial licences?
    • Do you think that further measures (legislative or non-legislative, including market-led solutions) are needed at EU level to increase the cross-border availability of content services in the Single Market?
    • Does the territoriality of limitations and exceptions, in your experience, constitute a problem?
    • Should digital copies made by end users for private purposes in the context of a service that has been licensed by rightholders, and where the harm to the rightholder is minimal, be subject to private copying levies?
    • Should the EU pursue the establishment of a single EU Copyright Title?

    These issues are among the most perplexing issues facing rights owners, collecting societies and distribution platforms in a digital age.  The territorial aspects of licensing are particularly controversial.  Rightowners have traditionally licensed different EU countries individually taking account of the specificities of each territory.  Yet this model is coming under increasing pressure in the face of goals for a truly borderless EU and demands for a more flexible pan-European solution.

    On a different but parallel track, the Commission has also indicated that it will launch an inquiry in 2014 into exclusive licensing of ‘premium’ rights.  That inquiry has arisen in a sports rights context following FAPL’s legal challenge through the UK and EU Courts.  Its interface with the current copyright consultation cannot be ignored.  See, further,  New Media Law News » Blog Archive » Do exclusive licences for media rights breach European law?  

    The crux of the matter is that this has been a long standing debate and where copyright, competition law, free movement of goods and the raft of EU legislation interact.  There have been noble efforts at “solutions” including a move for an EU copyright but so far none of these have received widespread support.  The consultation is laudable for its aims.  Yet as any avid watcher of this area will know, it can take time for consultations to work their way through and for solutions to be implemented and effective.  So, is the EU licensing framework fundamentally broken or is it a case of tweaking around the edges?   

    Answers on a post-(Christmas) card to Brussels. The 5 December consultation document invites comments by 5 February, 2014.

    For details of the Commission’s consultation see:

    This briefing has been prepared with Suzanne Rab, a barrister specialising in EU competition and regulatory law at a leading chambers in Lincoln’s Inn and whom New Media Law instructs for competition law matters.

    Please contact Ian Penman or your usual NML advisor for further information on how we may assist you in responding to the consultation.



    December 4

    We are delighted to announce that Suzanne Rab is now working with New Media Law, and is available to advise clients on Competition Law issues via our office.

    Suzanne is an independent barrister specialising in competition law at a leading chambers based in Lincoln’s Inn. Suzanne has wide experience of EU law and competition law matters combining cartel regulation, commercial practices, IP exploitation, merger control, public procurement and State aid.

    Suzanne advises in relation to a wide range of industry sectors, with a focus on industries that are subject to sector-specific regulation. Suzanne has advised on a considerable range of competition law and regulatory issues in the converging communications and media sector including in matters relating to telecoms, online distribution, pay TV, newspapers, sports rights and licensing of copyright.

    In the telecoms sector, she has advised a UK mobile operator on the licensing, competition and regulatory aspects of the UK Competition Commission’s investigation into termination charges. At EU level, she has advised on the European Commission’s competition investigation into differential pricing of iTunes in the EU Member States. She has also been engaged to advise on the EU and UK competition law, regulatory and merger control issues relating to Video-on-Demand.

    In the print media, Suzanne’s representative engagements include advising a UK investor on the competition law and public interest aspects of its proposed investment in a major UK newspaper quality title and a regional newspaper on the competition law implications of its distribution arrangements. She has also conducted legal and economic analysis of competition and consolidation in the UK regional newspaper sector with PwC Economics.

    Suzanne has advised at the cutting edge of media plurality issues including advising News Corporation on the UK and EU competition law and public interest aspects of its proposed acquisition of the shares in British Sky Broadcasting Group that it does not already own.

    The law is a challenging platform from where we can genuinely help others + enjoy learning continous lessons. Objectivity, personability + excellent organisational skills are key. The size + nature of a niche media practice like ours allows me a good amount of flexibility with which I can also enjoy motherhood as well as a career in the law.

    To see Suzanne’s full CV (in pdf format) use the link below.

    PHILOMENA and THE SCOTTSBORO BOYS score a double hit!

    New Media Law’s clients scored a double triumph this week when TWO projects were simultaneously listed in The Sunday Times as Top Picks in the Film and Theatre Sections of their Critical List.

    Philomena” starring Judi Dench & Steve Coogan is produced by New Media Law film stalwart Peter Dally’s client Gaby Tana of Magnolia Mae Films. It has already won the Best Screenplay award at the Venice Film Festival and is tipped for Oscars. Peter’s producer client Josephine Buchan was involved in the production of  “The Scottsboro Boys”,  currently showing at The Young Vic. It ’s a musical based on the true story of a group of black teenagers wrongly accused of rape.  As per The Sunday Times review: “The appalling story of the wrongly imprisoned Boys is told as a disconcerting minstrel show, and it works brilliantly – grotesque, hilarious and shameful all at once”.

    Well done to Peter and of course CONGRATULATIONS! to Gaby and all involved in the production of “Philomena” and to Josephine, Catherine Schreiber and The Young Vic for “The Scottsboro Boys”!

    WOODY ALLEN / REQUIEM FOR A NUN - Copyright infringement?

    Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., et al

    ‘My dad was a nun..’ said Baldrick. 

    ‘Don’t be silly…., how could that be?’ said Blackadder. 

    ‘Because… when the judge said “Profession?”, my dad responded “Nun”‘.  Replied Baldrick!  


    This case concerns an ambitious claim by Faulkner Literary Rights against Sony. They claimed that the use of a quote from “Requiem for a Nun”, a book by William Faulkner, in the Woody Allen film “Midnight in Paris”, amounted to copyright infringement.

    Owen Wilson (the lead character) in Midnight in Paris misquoted Faulkner, and stated that: ‘The past is not dead! Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.’  This is a variation on the quote in Requiem for a Nun which reads: ‘The past is never dead. It’s not even past.’

    The courts tested for substantial similarity in copyright using both quantitative and qualitative analysis.  The plaintiff relied on the latter and stated that the quote was central to the theme of the book.  The courts rejected this under the established law that copyright protection does not reach to ideas (or concepts), only expression. 

    The US District Court for the Northern District of Mississippi ultimately found that the use of the quote was considered de minimis - a trifle which the law does not concern itself with. In short, a snappy line paraphrased and credited to the original author was considered fair use.

    The courts went on to add that if anything, the homage paid to William Faulkner in the film would increase the market value of Requiem for a Nun.  The fact that the case was even brought before the courts seemed to irk the judge who questioned ‘How Hollywood’s flattering and artful use of literary allusion’ came to be a point of litigation.

    Kester Mather – Intern at New Media Law, 17/10/13

    CHINA TIGER REVIVAL - Inaugural dinner


    Breaking news: 2 October 2013


    New Media Law would like to thank Sir David Tang and Stephen Fry for their most excellent hospitality at China Tang in the Dorchester Hotel last night (1st October 2013) for the inaugural dinner for China Tiger Revival.

    China Tiger Revival is a new charity set up by conservationist Li Quan, together with New Media Law partner Ian Penman (who is Chairman and founding director of the charity), with patrons Lord Clement-Jones, Lang Lang, Nick Rhodes and Jackie Chan.

    Its primary focus is working with the Chinese government to provide a protected habitat in China for the South China Tiger.  The South China Tiger is an endangered species, but thanks to the efforts of Li Quan, the Tiger is now slowly but surely increasing in numbers.  Li’s groundbreaking work in the re-wilding of the South China Tiger has shown that there is still a glimmer of hope for the survival of the species.

    New Media Law is proud to be associated with Li’s work, and with the support of patrons such as Sir David Tang and Stephen Fry, Li will be able to continue her vital work in ensuring that the words of William Blake continue to refer to an existing species that can still be seen by our children in the future.

    Tiger! Tiger! burning bright
    In the forests of the night,
    What immortal hand or eye
    Could frame thy fearful symmetry?

    In what distant deeps or skies
    Burnt the fire of thine eyes?
    On what wings dare he aspire?
    What the hand dare sieze the fire?

    And what shoulder; what art.
    Could twist the sinews of thy heart?
    And when thy heart began to beat,
    What dread hand? what dread feet?

    What the hammer? what the chain?
    In what furnace was thy brain?
    What the anvil? what dread grasp
    Dare its deadly terrors clasp?

    When the stars threw down their spears,
    And watered heaven with their tears,
    Did he smile his work to see?
    Did he who made the Lamb make thee?

    Tiger! Tiger! burning bright
    In the forests of the night,
    What immortal hand or eye
    Dare frame thy fearful symmetry?

    New Media Law - at

    Ian Penman and Rick Riccobono attended and spoke at in Moscow on 24 and 25 June 2013.

    The conference was in Moscow, and focussed on global licensing, the future of copyright and mobile.

    On Monday 24, Rick and Ian gave a presentation about the copyright licensing process for new models in the music industry, which led to an analysis of the future of copyright licensing.  The panel discussion that followed was moderated by Ralph Simon.

    The slides and transcription of the presentation can be found here:

    But beware, the transcription is in Russian!

    On Tuesday 25, Ian participated in a panel discussion about content and mobile.

    More detail can be found at


    About the Forum

    On June 24-25 the international innovation Forum rASia.COM will be held at the Digital October centre in Moscow.

    It is a unique annual event encouraging  the exchange of latest technologies  and experiences between entrepreneurs from all over the world.

    The main goal of the Forum is to answer the most pressing question: ‘What will tomorrow bring?’ It will give us a new perspective and thus allow us to observe trends of the world economic system and help to evaluate the efficiency of our own business strategies in a new way, and get new ideas and inspiration.

    Traditionally, the Forum programme consists of 4 subjects:

    • wireless mobile technology and the Internet;
    • new media, up-to-date advertising technologies and marketing solutions;
    • venture capital funding, finance and investments, payment systems, innovative bank technologies;
    • content and entertainment business.

    The most current issues will also be covered:

    • innovations in luxury and premium markets;
    • amazing innovations (robots, 3D printing, augmented reality, immortality);
    • women and innovations, the female point of view on the situation;
    • Brands & Co-branding;
    • Made in Moscow.

    This year the Forum is focused on Indian business perspectives—”Doing business with India”.

    An exclusive video TELL (Techology, Edutainment, Life and Lifestyle) will be shot within the Forum with the participation of companies’ top managers: shareholders and and executives.

    The Forum will combine the reports by leaders from all over the world and they will share their success stories with the audience.

    Also, various training conferences, workshops and round table discussions will be held at Digital October.

    The Forum is an excellent opportunity to present your ideas and business models, finding new contacts and offering your services.


    Russian Piracy Bill now active

    Moscow, Monday 24 June

    The State Duma in Russia passed a bill last Friday which combats copyright infringement on the Internet.

    The law allows Russian authorities to block websites which infringe audio-visual copyright content at the request of copyright holders.

    Google in Russia has spoken out against the bill, saying that it will allow whole websites to be blocked indefinitely.

    The bill is designed to combat damage from internet piracy in Russia, which is estimated at 60 billion rubles per year ($1.8 billion).

    The bill allows authorities to take unspecified “provisional measures” against infringers using internet “resources”.

    The copyright holder can apply to the Federal Mass Media Inspection Service, who will then notify the hosting provider about the copyright infringement.  The hosting provider then has 1 day to demand that the website owner removes the infringing content. The owner has 1 day to remove it.  If the provider fails to take action, the FMMIS can demand that telcos block access to the content.

    The copyright holder must file a civil lawsuit at the same court within 15 days after the provisional measures are approved by the court.

    If the civil court rules that the content does not infringe, then the website can be switched back on and unblocked and the owner of the non-infringing content can sue for damages and costs.


    Ian Penman

    rAsia conference

    Moscow, 24 June

    The high price of sharing 24 songs

    In March 2013, the US Supreme Court upheld a verdict of an award of $222k in damages in relation to the 6 year legal saga involving the first [music] file sharer in the US to challenge a Recording Industry Association of America lawsuit.

    It confirmed that Jammie Thomas-Rasset will be told to pay the money to the recording industry, despite her petition against the verdict in which she claimed that the damages award was “unconstitutionally excessive” and “not proportionate” to the loss caused to the music industry.

    Cases of RIAA file-sharing involved not only Jammie Thomas-Rasset but also “innocent infringers”, who are individuals who have no knowledge of the infringements being carried out on their computers (or via their internet account) by a third party - and for this type of infringer the fine is usually $200 per violation.  Thousands of other individuals have settled their cases out of court for a few thousand dollars.

    The RIAA decided in 2008 to cease an active campaign aimed at finding and suing individual file-sharers but together with the Motion Picture Association of America, it has now convinced internet service providers to initiate punitive actions against “scofflaws”.

    Despite the numerous cases against individual file-sharers and the numerous actions taken against her, not only by the courts but also by private associations, Ms. Thomas-Rasset has firmly declared that she will not be paying the money now or anytime in the future.  It looks like personal bankruptcy now awaits her as the only way out.


    Elisabetta Elia - Intern - New Media Law LLP

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