Archive for the ‘Trade Mark’ Category


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.



The Red White and Blue:

Mrs Murphy revisited

The possible EU sector inquiry into premium rights


At almost £300 million per season, in November 2013, BT paid more than double the current UK deals for the exclusive right to screen live Champions League matches from 2015.  Both of the current rights owners, Sky and ITV, were reported as saying that they were unwilling to pay over the odds based on their business models.  The BT Champions League deal follows a massive increase (71%) in the amount paid for the UK Premier League live broadcasting rights back in June 2013, in which BT played a part.  But a recent communication regarding the EU’s competition directorate may call into question the EU law treatment of territorial premium content rights. 


The licensing of audiovisual content rights is typically conducted on a national basis to the extent that there is only a limited demand from bidders for global or pan-European rights; broadcasters usually operate on a territorial basis and serve the domestic market either in their own country or in a small cluster of neighbouring countries with a common language.[1]  

Moreover, content licensing has traditionally been contracted on a territorially exclusive basis; licensees are granted absolute territorial protection regarding the licensed rights.  As one commentator points out, territorial exclusivity has been broadly accepted in individual Member States:

In principle, under EU competition law, territorial restrictions fragmenting the EU internal market, such as absolute territorial protection, restrict competition by their very object (without the need to prove their effects). However, the jurisprudence and decisional practice concerning territorial exclusivity in the agreements between right holders (owners of premium content rights) and broadcasters has so far been limited and interpreted as allowing such absolute territorial protection.[2]

This stance was endorsed at the EU level by the landmark Coditel II case.[3]

Under well-established EU case law restrictions on the freedom to provide services can be justified if they pursue a legitimate objective, are justified by overriding reasons of public interest and are suitable for securing the attainment of that objective without going beyond what is necessary.

Territorial exclusivity: Mrs Murphy and the Red White and Blue

Then there was a challenge to the accepted thinking on exclusive territorial licensing in cases concerning pubs that bought foreign satellite decoders for screening live football matches.  The Premier League sought to prevent the avoidance of the exclusive territorial licensing and brought actions against the Greek suppliers and their licensees. 

A parallel case arose from an appeal against a criminal conviction in proceedings against Mrs. Murphy, the now infamous publican who showed Premier League matches in her pub using a Greek decoder card.  What at first blush may have appeared to be a relatively straightforward case was ultimately a multi-layered complex legal scenario with a number of potentially wide-ranging outcomes.  The issues raised straddle free movement of goods, competition law and copyright infringement as well as the criminal law. 

The UK High Court referred various questions to the Court of Justice of the EU (‘CJEU’) relating to the compatibility of The Premier League’s licensing arrangements with EU law.  These included questions relating to application of EU free movement rules and competition law.  In October 2011, the CJEU provided a landmark ruling, stating, amongst others:

 The Court of Justice holds that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.[4]Ultimately Mrs. Murphy’s prosecution was quashed by the High Court in London.  It was not a criminal offence to subscribe to a foreign decoder and to receive broadcasts from outside the UK using that decoder and the restrictions on the use of such decoders were unlawful under EU free movement principles.  She was therefore free to continue subscribing to Greek pay TV retailer Nova TV for broadcast Premier League matches via its decoder.  But she was not permitted to show the broadcasts in her pub as they would have breached the limited copyright the Premier League has, namely any opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics.  The CJEU considered that the EU rules on free movement (specifically Article 56 TFEU) precluded national legislation that made it unlawful to import and sell foreign decoding devices.[5]  This restriction could not be justified by the objective of protecting IP rights.  It further ruled that the grant of exclusive satellite broadcasting licences for the territory of a Member State or states and which required the licensee not to supply decoding cards to enable viewing outside the territory restricted competition within Article 101(1) TFEU.On 22 November 2013, the Financial Times reported that the European Commission is set to launch a formal investigation into sales of pay-TV rights, quoting a short paragraph from a Commission communication published in May 2013:whether licensing agreements for premium pay-TV content contain absolute territorial protection clauses which may restrict competition, hinder the completion of the single market and prevent consumers from cross-border access to premium sports and film content…”[6]The context or impetus for the Commission comment in the document is that following the Murphy decision, it had conducted a preliminary fact-finding investigation to examine licensing agreements.  We observe that DG Competition categorises “sport rights, music, popular films, etc.” as premium content.   The comment by the judge in Murphy that there were wider legal issues to explore (and not least the delicate relationship with copyright) is expected to lead to a wider inquiry at EU level.  Such an inquiry may presumably take the form of an EU sector inquiry or similar which permits the Commission to undertake an inquiry into a sector even where it does not suspect wrongdoing by individual companies.  As stated in Article 17 of Regulation 1/2003 such inquiries are within the Commission’s remit.  In particular: 

Where the trend of trade between Member States, the rigidity of prices or other circumstances suggest that competition may be restricted or distorted within the common market, the Commission may conduct its inquiry into a particular sector of the economy or into a particular type of agreements across various sectors.”[7]

A principal question to ask is, why now?  While there are no further comments from the Commission available in the public domain (save the one referenced at footnote 6), it is assumed that the judgment in the Murphy case was a catalyst.  And some preliminary fact-finding will have been necessary to justify opening the case.  Moreover, it is worth noting that it is over four years since the Commission concluded its pharmaceutical sector inquiry in July 2009 after a probe of some 18 months.  It is understandable that it may want to avoid too precipitous a probe to fend off the criticism in the pharmaceutical sector inquiry that a disproportionate amount of time was spent in basic fact-gathering. 

As stated above, the Murphy case entailed a complex array of legal issues but it signals what appears to be a move away from the comfort of the previous case law enshrined in Coditel and a reassertion of a clear focus on the free movement of goods and services.

Moreover, further complexities may arise owing to individual Member State investigations and competition cases (such as Ofcom’s pay TV investigation and the Competition Commission’s movies on pay TV investigation).  It cannot go unnoticed that in the UK’s probe into premium movies, the Competition Commission concluded that Sky did not enjoy such an advantage over its rivals as to adversely affect competition in the pay TV retail market.[8]

What does a Commission sector inquiry entail?

EU sector inquiries typically begin with an announcement (although in the pharmaceutical sector inquiry the Commission launched its inquiry with dawn raids) and the following process is invoked:

      Information requests sent to interested parties, suppliers, customers and the Member States.

      Preliminary findings issued followed by a consultation on the findings and proposed action (if any).

      Assessment of further information and a final report is issued.

      Standalone competition law investigations may be opened if the Commission believes that there has been an infringement of competition law; it may recommend other parties (e.g. Member States) to take action.

A brief overview of previous Commission sector inquiries is provided in Figure 1. 

Figure 1: overview of Commission sector inquiries

Sector Dates Outcome
Pharma Jan 08 to Jul 09 1.58 years Monitoring continues.Enforcement actions.  New legislation for Member States re: introduction of generic drugs
Retail banking Jun 05 to Jan 07 1.67 years Enforcement actions.Range of measures to strengthen competition in retail banking, including in the market for payment cards.
Energy Jun 05 toJan 07 1.67 years Standalone competition lawInfringement cases; Third Energy Package.
Local loop Jul 00 toJan 02 1.75 years Follow on actions – Infringement actions and monitoring.
Leased lines Jul 99 to Dec 02 3.50 years Commission closed the inquiry owing to the ‘strong drop in prices since the inquiry’s launch’.

While at a high level (each inquiry was both detailed and nuanced), key takeaways are:

      A sector inquiry requires disclosure of vast amounts of information by affected companies, even if they are not the main focus of inquiry.

      Since an inquiry may last well over a year, this inevitably presents challenges for ‘business as usual’ during the period of regulatory uncertainty and a consequent burden on management time.  The Commission aims to resolve such inquiries in 18 months but previous inquiries have lasted at least that time or longer. 

      On the other hand, a sector inquiry may allow for the industry case to be more effectively presented and heard if the process is properly managed.

As such, even though a sector inquiry is different from a competition investigation into a possible infringement of competition law it should be treated with no less seriousness.

In Figure 2 we provide a summary of potential (generic) outcomes of an EU sector inquiry. Figure 2: potential outcomes of an EU sector inquiry

Sector Dates Outcome
Pharma Jan 08 to Jul 09 1.58 years Monitoring continues.Enforcement actions.  New legislation for Member States re: introduction of generic drugs
Retail banking Jun 05 to Jan 07 1.67 years Enforcement actions.Range of measures to strengthen competition in retail banking, including in the market for payment cards.
Energy Jun 05 toJan 07 1.67 years Standalone competition lawInfringement cases; Third Energy Package.
Local loop Jul 00 toJan 02 1.75 years Follow on actions – Infringement actions and monitoring.
Leased lines Jul 99 to Dec 02 3.50 years Commission closed the inquiry owing to the ‘strong drop in prices since the inquiry’s launch’.

This demonstrates that:

      The outcomes of sector inquiries are potentially wide ranging from a clean bill of health to a follow on investigation under competition law. Indeed many of the abuse of dominance investigations in the energy sector were sparked by or coincided with the energy sector inquiry (2005-2007).

      However, the Commission has no power to apply intrusive remedies such as mandated divestments unless an infringement of competition law is found (unlike the Competition Commission or its successor the Competition and Markets Authority (“CMA”) in the UK.[9]  Nevertheless, the Commission may make recommendations to other bodies or even national authorities to take effective action where they are better placed to deal.  For example, in the pharma inquiry the Commission urged wider reforms in relation to an EU Patent, a reform thought by many to be overdue.

What are the implications for this inquiry?

The recent Premier League and Champions League live broadcast rights auctions have led to the signing of numerous new contracts.  We do not have access to their detail and thus cannot form a view as to whether amendments were made following the Murphy judgment. 

Rights to certain live football matches tend to be high value in monetary terms and for the viewers, a matter of life and death for many (recalling the famous Bill Shankly quote).  However, they are but one sub-genre within the broader sports genre.  There’s the other sports, and further genres beside – ‘music, popular movies etc.’ – to quote the Commission.  Multiply the number of rights holders by genre and licensees within Member States and it is clear that any industry inquiry (if all-embracing) is potentially enormous in scale and scope. 

Moreover, each genre/sub-genre has its own specific economics and characteristics.  The economics of Hollywood movies and their temporal multi-format release channels – or windows – contrasts significantly to many other forms of content.  The packaging of content is also important – content has to be made specific to suit each particular territory.  In addition to marketing and promotion, there is possible adaptation to each relevant population on the basis of cultural and linguistic specifics.  Such costs are not negligible. 

And don’t forget about online – it is conceivable that geo-blocking will be an issue of focus, particularly following the Commission’s ‘Licences for Europe’ stakeholder dialogue.  This resulted in, amongst others a pledge for the further development of cross-border portability of subscription services.  And we must not dismiss the CJEU’s focus on the importance of the free movement of goods and services in the internal market. 

While the actual scope and focus of the inquiry remains to be seen, a number of issues have been flagged by the Commission in its comments so far.  It has earmarked that the following issues are likely to be examined, namely, whether the relevant licensing agreements contain clauses which may:

      restrict competition between Member States;

      hinder the effective operation of the single market; and

      unduly prevent EU consumers from accessing premium sports and film content across EU borders.

We consider each in turn.

Restriction of competition

An agreement falls within the prohibition laid down in Article 101(1) TFEU when it has as its object or effect the prevention, restriction or distortion of competition. 

In the Murphy case, the CJEU stated:

it is apparent from the Court’s case-law that the mere fact that the right holder has granted to a sole licensee the exclusive right to broadcast protected subject-matter from a Member State, and consequently to prohibit its transmission by others, during a specified period is not sufficient to justify the finding that such an agreement has an anti-competitive object (see, to this effect, Case 262/81 Coditel and Others (‘Coditel II’) [1982] ECR 3381, paragraph 15).[10]

However, any comfort given to rights holders and broadcasters that the principles enunciated in Coditel remained unaffected was short-lived. Several paragraphs later the CJEU stated that:

“…a premium is paid to the right holders concerned in order to guarantee absolute territorial exclusivity which is such as to result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference to which it gives rise are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market. In those circumstances, that premium cannot be regarded as forming part of the appropriate remuneration which the right holders concerned must be ensured.”

Consequently, the payment of such a premium goes beyond what is necessary to ensure appropriate remuneration for those right holders.”[11]

And in conclusion:

Accordingly, given that those clauses of exclusive licence agreements have an anticompetitive object, it is to be concluded that they constitute a prohibited restriction on competition for the purposes of Article 101(1) TFEU.[12]

The CJEU considered that agreements that aimed to partition markets according to national borders or made cross-border supply more difficult must be regarded as agreements whose object is to restrict competition.

It appears from the judgment that it is not the exclusive licences themselves that are being challenged as restrictive by object but the requirements on broadcasters not to supply devices that would enable supply outside the territory. This latter requirement is the basis of absolute territorial exclusivity which is the apparent nub of the CJEU’s concern.  The CJEU considered that such clauses would not meet the conditions of individual exemption under Article 101(3) TFEU since they would go beyond what was necessary to protect the underlying IP rights.

However, Article 101(3) was not raised before the national court. In the authors’ view, the issue of compatibility with Article 101(3) will inevitably be testing ground for further inquiries which by their nature will be fact-based.  One thing is sure, however, is that the CJEU’s pronouncements as to such clauses being restrictive by object raises the burden on rights holders to justify their arrangements under Article 101(3).

Hindering the completion of the single market

There is some overlap between the CJEU’s reasoning in relation to free movement and competition issues.  The crux of the matter from the perspective of free movement is whether the restriction on free movement so identified is objectively justified.  In the pub cases the CJEU rejected the objective of the protection of IPR and the objective of encouraging the public to attend football stadiums as adequate justification.  In so doing it has forced the question as to whether the hitherto accepted economic justifications for the current premium rights licensing models still hold.  In short, it has forced a rethink into the underlying economics of the industry.

Prevention of consumers from cross-border access to premium sports and film content

The CJEU cast doubt about the legality under competition law and free movement law of restrictions in exclusive licensing that provide absolute territorial protection for broadcasters by preventing consumers in one Member State from acquiring devices to allow them to view broadcasts from another Member State.  As such, it may be considered a partial victory for consumers who buy such equipment across borders.  A prime example is expats who like to view their favourite domestic TV shows once abroad. 

And this is of course where online enters the fray.  Consider all the frustrated Brits on holiday abroad during the summer of 2012, unable to watch the Olympics on the BBC iPlayer. The Licences for Europe stakeholder dialogue resulted in a pledge by the audiovisual industry to increase gradually the cross-border portability of subscription-based audiovisual services.  The status of this initiative at the time of the inquiry, will play a key part in the extent to which the Commission delves deeper into online cross-border issues. 

It is unclear as to whether music will fall under the scope of the inquiry.  A question arises as to the extent to which such content could be considered ‘premium’ – if indeed any EU inquiry is limited to such.  Whatever the scope of inquiry, it is likely that any examination of the EU rules on exclusive licensing on a territorial basis will not go unnoticed by players in other or related sectors where such practices are common.  In a different context the European Commission’s inquiry into the licensing practices of collective societies in the CISAC case has emphasised that the delicate balance between competition, copyright and fee movement remains an ongoing policy priority.

On 12 April 2013, the General Court gave judgment in appeals brought by CISAC and its collecting society members against the Commission’s decision in 2008 finding that the societies had infringed Article 101(1) TFEU through their reciprocal representation agreements.[13]  Although the General Court ruled that the Commission had not established evidence of a concerted practice between the societies as to the terms of their agreements it dismissed appeals against the Commission decision finding that the individual provisions in the agreements were in fact contrary to Article 101(1) TFEU.[14]

What next?

What are the likely implications of the sector inquiry for stakeholders?  Some serious issues are sure to be raised.  For example, may there be a wholesale change to future content licensing deals?  May the economics of the various content genres be significantly undermined?  To what extent will DG Competition take into consideration possibly nuanced audiovisual-specific (and policy) factors?

Rights holders, broadcasters and licensees all have a stake in the inquiry and will need to assess where their interests lie.  Those facing complaints or investigations domestically will also need to ensure consistency of messaging. The key drivers of the inquiry will likely be the strength of complaints, the coherence of arguments and the evidence presented.  While an ostrich-like strategy may be warranted for a peripheral player, such players may want to consider whether there are opportunities from more active participation.

Among the issues to consider are:

      Development of the business’ regulatory strategy and how this impacts on commercial decision-making (licence fees, renewals etc.).

      Case-making and submission to the Commission and other bodies.

      Evidence assembly in relation to the above.

Whatever the focus of the inquiry, interesting questions arise as to its relevance to licensing of audiovisual rights more generally.  At this stage it may be premature to predict the way in which the inquiry might unfold.  Important issues for determination will include:

      Whether and to what extent music is covered.

      The relationship between online access and cross-border access.  The commitments made in the recent Licences for Europe initiative may provide a sufficient level of comfort in some areas (e.g. cross-border access to online live streaming of live and catch-up domestic broadcasts for consumers when they go overseas).

      The extent to which the economics of different sectors dictate a different treatment.  In the Murphy case, the CJEU expressed concerns about partitioning national markets, “such as to result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference to which it gives rise are irreconcilable with the fundamental aim of the Treaty … that premium cannot be regarded as forming part of the appropriate remuneration which the right holders concerned must be ensured”.  An important first step will be to demonstrate the economics of the movie value chain and the nature of licensing policies vis-à-vis individual territories.  

      The Premier League cases concerned premium sporting rights.  The traditional rationale for territorial licensing is based on the different risks inherent in penetrating different territories.  The CJEU accepted that the objective of protecting intellectual property rights could be a relevant justification for restrictions on free movement but only appropriate remuneration is accepted.  The CJEU considered that the restrictions in issue went beyond what was necessary. 

Interesting issues arise as to whether a particular pricing model is justified by reference to the economic value of the services provided. In the case of broadcasting this may be measured in terms of the size of the audience.   Where high returns are not guaranteed, rights holders and licensees (including putative licensees) will want to argue their case as to why a particular business model is or is not justified.

How may we assist

We are able to assist you in preparing your response to the forthcoming inquiry as follows: 

      Helping you to develop the strategic response to the inquiry, including advice on the appropriate ‘lines to take’ with the Commission.

      Collating evidence in support of specific licence pricing policies.

      Developing the appropriate counterfactual and approach to benefits/efficiency/economic arguments.

Please get in touch if you would like to discuss the issues raised in this paper. 

Any opinions expressed in this communication are personal and are not attributable to Competition Economists Group LLP

Contact details 

Dr. Alison Sprague Partner, CEG EuropeOne Fetter Lane, London, EC4A 1BR, United Kingdom   T  / +44 (0)20 3440 5526M / +44 (0)75 0784 0740 E / Suzanne Rab Barrister, Serle Court6 New Square, Lincoln’s Inn, London, WC2A 3QS, United Kingdom T /  +44 (0)20 7242 6105D /  +44 (0)20 7400 7117M / +44 (0)75 5704 6522E /

Alison Sprague

Dr. Alison Sprague is a partner in CEG’s London office.  She has more than 15 years’ economics consulting experience and specialises in the media, entertainment and telecoms sectors, advising private and public sector clients. Her sector experience includes television, radio, film, internet, music, sport, gambling, music, publishing and fixed/mobile telecoms.  She has led numerous strategy and economics projects, providing commercial, competition, policy and regulatory advice.  She has additionally conducted research into brands and advertising effectiveness and led a number of expert witness reports. Several projects have employed econometric techniques.  Clients comprise leading broadcasters; pay TV retailers, and telcos; trade associations; regulators, government departments, and their legal advisers, in the UK and overseas (including the EU, Eastern Europe, South Africa, Russia, India, Hong Kong). Alison has written numerous thought leadership papers - on media plurality (in the UK and Australia), local newspapers, government media policy, copyright, gambling, future business models for fixed and mobile internet, mobile markets in the EU, consumer policy and the competition regime in the UK.   Alison has expertise in advertising revenue forecasting gained in numerous successful franchise applications and renewals and cases covering competition, deregulation, litigations, due diligence, and privatisation. She has also examined funding models, public value and economic impact in relation to public service broadcasters, assessed possible uses, values and bidders for the UK’s ‘digital dividend’ (UHF) spectrum, and examined the likely impact of changing the amount of permitted advertising minutage on TV.   She conducted two major studies of pay TV markets in the EU as input to a client’s submission to Ofcom’s pay TV investigation. Other competition experience includes a merger in the Netherlands TV market, EU roaming charges, UK transport pricing, the collective selling of UK sports rights, UK newspaper and magazine distribution, EU and UK fixed-to-mobile termination rates, the UK outdoor advertising sector, EU local loop and leased lines, and GSM spectrum in the Netherlands. She recently appraised international media plurality and competition regimes as input to a regulatory response on behalf of a major satellite industry association.  She has additionally examined sports rights including an estimation of the implicit value of the rights to the Champions League in terms of advertising and sponsorship revenue, an analysis of the Premier League’s revenue distribution model, an assessment of the regulatory and competition issues in respect of the Premier League’s next sale of its broadcast rights, and reviewed an expert report regarding the collective selling of football rights following an investigation by the OFT.   Many of the studies she has led have been published, including: the BBC’s educational activities for the BBC Trust; the European pay TV sector in support of client submissions to Ofcom’s pay TV investigation; advertising effectiveness; the economic impact of the BBC, how Ofcom takes into account the consumer interest in its regulatory processes; the assumptions underpinning the reach projections for the BBC iPlayer; measuring media plurality on behalf of News Corporation, and a report for Ofcom on the commercial viability of local TV.   Alison has three degrees in economics. She was Research Assistant to Professor Patrick Minford and her M.Phil and D.Phil theses supervisor was Professor Stephen Nickell.  She was also a college lecturer at Oxford University.  Prior to joining CEG, she held positions at FTI, PwC, KPMG and NERA.  She is a member of the IAB’s Future Trends Working Group and is co-author with Suzanne Rab of “Media Ownership and Control: Law, Economics and Policy in an Indian and International Context” (forthcoming in Hart Studies in Competition Law in 2014). 

Suzanne Rab 

Suzanne is a barrister specialising in competition law at Serle Court, 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.  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.  In the audio-visual sector, she has advised a range of players from start-ups to major content owners and broadcasters.  Suzanne has advised extensively on the intersection between intellectual property and competition law in communications, and media and technology cases.  Suzanne has wide experience of advising business, governments, regulators and governments on the design and implementation of new laws and regulatory regimes in line with international best practices, including in telecoms and network industries.   


 In private practice as a solicitor for 15 years prior to joining the bar, she has held positions at magic circle and leading international antitrust practices.  Most recently she was an antitrust partner with a leading international practice.  She has also held the role of director at PricewaterhouseCoopers working within its strategy, economics and forensics teams. 

Suzanne is also co-author with Alison Sprague of “Media Ownership and Control: Law, Economics and Policy in an Indian and International Context” (forthcoming in Hart Studies in Competition Law in 2014).

[1] In contrast, demand for music licensing is often much wider than national e.g. from iTunes.

[2] OECD Roundtable on Competition Issues in Television and Broadcasting, contribution submitted by the services of the European Commission, Directorate-General for Competition; p 92. See:

[3] Case 262/81 Coditel SA and others v Ciné-Vog Films SA and others [1982] ECR 3381.  Available at: .do?uri=CELEX:61979CJ0062:EN:PDF 

[4] Judgment of the Court, Joined Cases C‑403/08 and C‑429/08.  Available at:

[5] TFEU refers to the Treaty of the Functioning of the European Union.

[6] See:Commission Staff Working Document accompanying the report from the commission on Competition Policy 2012 at: SWD:2013: 0159:FIN:EN:HTML

[7] DG Competition web page outlining the media sector.  Available at:

[8] Although we note that this inquiry was not focused on absolute territorial protection, not least given its domestic remit. 

[9] The CMA replaces the UK’s first stage and second stage competition authorities with effect from 1 April 2014.

[10] See: Para 137, Judgment of the Court, Joined Cases C‑403/08 and C‑429/08.  Available at:

[11] Ibid.

[12] Ibid.

[13] CEG advised one of the parties in the CISAC case.

[14] Case T-392/08 - AEPI v Commission, Case T-398/08 - Stowarzyszenie Autorów “ZAiKS” v Commission, Case T-401/08 - Säveltäjäin Tekijänoikeustoimisto Teosto v Commission, Case T-410/08 - GEMA v Commission, Case T-411/08 - Artisjus Magyar Szerzõi Jogvédõ Iroda Egyesület v Commission, Case T-413/08 - SOZA v Commission, Case T-414/08 - AKKA/LAA v Commission, Case T-415/08 - IMRO v Commission, Case T-416/08 - EAU v Commission, Case T-417/08 - SPA v Commission, Case T-418/08 - OSA v Commission, Case T-419/08 - LATGA-A v Commission, Case T-420/08 - SAZAS v Commission, Case T-421/08 - Performing Right Society v Commission, Case T-422/08 - Sacem v Commission, Case T-425/08 - KODA v Commission, Case T-428/08 - STEF v Commission, Case T-432 - AKM v Commission, Case T-433/08 SIAE v Commission, Case T-434/08 - TONO v Commission, Case T-442/08 - CISAC v Commission and Case T-451/08 - Stim v Commission


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.

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



New Media Law is delighted to announce that our long time client, P & P Songs, owned by the music publishing veterans, Peter McCamley and Paul Flynn, and publishers of sensational songs like James Arthur’s “Impossible” (the massive selling UK Christmas hit of 2012/13) has been sold to Reservoir Media.  New Media Law’s Rick Riccobono brokered the deal with Reservoir, acting for P & P Songs, whilst Ian Penman handled the contract negotiations from inception to completion.

Ian Penman said of the deal:  We are delighted about this fantastic win-win for our clients, Peter and Paul.  Clearly, once the guys had told us that they were selling, we were keen to help.  Having Rick’s incredible music publishing knowledge and enormous contact base within our offering is unique in Europe, as clients such as P & P, STIM, Broadchart and 7 Digital can easily verify.  This has enabled New Media Law to deliver a great result for P & P, which we look forward to repeating for other clients in the future. Of course, this is a true win win, as Reservoir have aquired a fantastic catalogue with some of the best pop writers in the world.

New Media Law was ably assisted with the US law elements of the transaction by Robert Epstein and his team, Joshua Sessler and Steven Werier of Cowan, DeBaets, Abrahams & Sheppard LLP in New York.  Reservoir used their in house lawyer, Jeff McGrath in Toronto, aided by Steve Hurdle of Loeb & Loeb in LA, as well as Mark Levinsohn in New York, with Rell Lafargue leading the transaction for Reservoir.

Reservoir’s press release follows:



NEW YORK, February 15, 2013—Reservoir is pleased to announce the acquisition of British independent music publishing company P&P Songs.  The transaction makes Reservoir the owner of over 1,000 P&P pop music titles, while aligning the company with popular songwriters Ina Wroldsen, Sandi Thom, and Lotte Mullan.

Reservoir Executive Vice President Rell Lafargue spearheaded the deal.  “P&P has long been associated with prolific pop music writers and iconic catalogs alike,” Lafargue notes. “Absorbing the catalog and focusing our creative energy on opportunities for each songwriter allows Reservoir to do what we do best—market, develop, and otherwise support incredible talent and hit songs.” 

Reservoir will support P&P’s U.K. based writers from its Reverb Music office in London, where Managing Director Annette Barrett oversees European operations. The company’s New York City headquarters will focus on expanding writers’ profiles in America through new co-writes, synchronization, and marketing opportunities.

P&P Songs was founded seven years ago by respected music publishing veterans Peter McCamley and Paul Flynn.  Under their leadership, the catalog grew into an enviable collection of contemporary Top 40 singles and classic pop and rock gems.  P&P’s reputation as a leading British independent music publishing company is underscored by its longstanding relationships with iconic songwriters including Steve Miller and Albert Hammond, a Songwriter Hall of Fame inductee.

At the helm of the contemporary movement are three expert pop songwriters: Sandi Thom, the recording artist and writer whose own release “I Wish I Was a Punk Rocker (With Flowers In My Hair)” topped the UK Singles chart in 2006; Lotte Mullan, the multi-talented songwriter, artist, and author whose account of working in the music industry recently won her a book and film deal with Elton John’s Rocket Entertainment; and the highly sought-after Ina Wroldsen, a BMI Award winner and writer of hit songs for Britney Spears, Cobra Starship, One Direction, Shontelle, Leona Lewis, and The Wanted, among numerous others.  Wroldsen in particular has been exceptionally successful as one of the leading female top-line pop writers in the business today.

P&P’s Peter McCamley and Paul Flynn encourage the acquisition, saying, “From our first conversations with Reservoir it was clear that they share our vision of music publishing, where creativity is matched by business insight and strategy. We are both proud of what we have achieved at P&P and being able to transfer our catalogue and writer agreements over to a similarly respected, creative and hardworking independent publisher in Reservoir was extremely important to us. We trust that their team will provide the P&P roster with the continuing attention and support such songwriters deserve.”


Reservoir is a New York City based boutique music publisher boasting a multi-genre, hit-driven catalog.  With over 75 #1 singles worldwide by 50 Cent, 2 Chainz, Aaliyah, Beyoncé, Donna Summer, Madonna, Justin Timberlake, and Usher, among many others, Reservoir is home to the catalogs of Nate “Danja” Hills, Lil Jon, Scott Storch, John Rich, Kenny Alphin, Bruce Roberts, Jamie Hartman, Phil Bentley, Peter Gordeno, Slakah The Beatchild, and Stephen “Static Major” Garrett. 

Recent milestones for Reservoir include seven 2013 Grammy Award nominations, four new RIAA certified Gold and Platinum albums, the acquisitions of UK publishing company Reverb Music and classic soul catalog Philly Groove Records, #1 albums by Rihanna, Wiz Khalifa, 2 Chainz, Nicki Minaj, Usher, Chris Brown, and Tank, and exclusive agreements with Black Fountain Music, Blackground, and Lifted Publishing.

Reservoir aggressively pursues new marketing opportunities and revenue streams for its writers, providing world-class administration using the latest technology and software.  The company continues to grow through the acquisition of new catalogs and the signing and development of top creative talent. 

Link to Billboard article:

Link to Music Week article:

The Right To Bare Arms…?

I was reading a fascinating series of posts in the marvellous ” ” on the subject of the Second Amendment of the US Constitution, and what the founding fathers had meant when they drafted it, notably of course what is meant by “the right to bear arms”.

Of course, some of the lighter posts were just lovely:

“It was a simple spelling mistake. The founding fathers anticipated the eighties fashion trend of rolled-up sleeves, whose exponents included bands such as Mr. Mister, and it was the right to bare arms they hoped to enshrine. “Militia” was late 18th century slang for “synth-pop combo” and by well-regulated they meant it had to have a particularly tight rhythm section.*

*answer may not be factual. ” ( )

followed by…

“I’m not on board with this until we get an exact definition of “bare arms” - does it or does it not include the shoulders?”


“No no no, it clearly says that Americans have the right to hunt down bears and collect their arms. The right to bear arms shall not be infringed.

I don’t believe that shoulders are required but I do believe they are allowed.”

Which caused the original author to reply:

“Some interpret as the right to wear muscle shirts, others say it’s clear that the founding fathers never anticipated the invention of the muscle shirt and members of the general population should not have access to such powerful clothing.”


However, as an impartial observer (albeit that I am a countryman of the country that the founding fathers threw out), may I make an independent (if you will pardon the expression) comment:

Surely the point is not what the authors meant in December 1791, when the amendment was drafted, but what should be done today… ?

I read that the US Federal Government spending on defence will be $868,100,000,000 in 2013. (…l_fy12bs12013n).  Which equates to 23% of the total US Federal budget.

Now I do not profess to be an expert on 18th century history, but I would warrant that the founding fathers didn’t spend anything like that on defence (note the English spelling)… such that giving the populace the right to bear arms may not be quite as necessary as it was in 1791.  Perhaps it should be changed?  For good.

As South Africans can most recently tell, having lost the beautiful Reeva Steenkamp to 4 bullets from her boyfriend, giving ordinary private citizens the right to “bear arms” can often have the most horrid of conseqeunces:…cle3690834.ece

Time for change?

Perhaps the incumbent (Mr Obama) can do something drastic here, for the public good, and bring about a change which is fit for the 21st Century and which others can follow?  After all, it is not like he needs to worry about being voted back in…..!

Ian Penman

[NB. This is a personal opinion of Ian Penman, and may not be shared by all of the members of New Media Law LLP]

New Media Law client a key partner in Samsung’s brand new music service – “Music Hub”

New Media Law, and its international rights licensing and global digital strategy specialist, Rick Riccobono, are proud to congratulate our client 7digital on its groundbreaking alliance with Samsung and wish them both the best of success with the outstanding new digital music service “Music Hub”.

By way of background, Samsung, which is the number one phone manufacturer globally, with probably the number two handset (after Apple), namely the Galaxy, launched its own music service in Europe this week – called the “Music Hub”, which includes streaming, downloads and a locker - on the new Galaxy III.

Music Hub uses a scan-and-match technology, so that a user only need to upload unrecognised songs to their locker.  The service offers a streaming catalogue of 19 million tunes, and a radio service as well.  The subscription price (£9.99) – is a little higher than Apple’s cloud subscription, but is similarly priced to Spotify’s and others.  This subscription frees up the whole catalogue for users to stream freely and store for offline use.  Importantly, iTunes still doesn’t let its users do this.  Another critical difference - which could give Samsung’s Music Hub the edge, is that it can be used via a web browser, whereas iTunes can be used on a variety of devices by installing the iTunes client or app, but not via a browser without carrying out the install first.

A key part of the infrastructure for the new service has been provided by New Media Law’s client, 7digital, which has worked with Samsung for three years to develop Music Hub.  The Hub is 7digital’s first streaming service (until now, it has focused on providing white label download stores for HP, the major record companies and others).

New Media Law has been told that there are a number of other great new things to come from 7digital this summer, so…..stay tuned!


For further information - please contact Rick Riccobono (Global Digital Strategy Consultant, New Media Law), or Ian Penman (Partner, New Media Law) - on +44 20 7291 1670 - or via email at: or

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