Welcome to the February 2011 edition of Media Brief, the bi-monthly, media-related newsletter from Fieldfisher. We hope you enjoy it. Please feel free to contact us if you would like to discuss in greater detail any of the issues raised, or indeed any other issues.
In this issue:
Government announces thorough review of Communications Act
The Culture Minister, Jeremy Hunt, has announced a "radical rethink" of media and communications that will lead to a new Communications Act. The government’s ambition is to have "the most modern, innovation and investment-friendly legal structure in place". Mr Hunt has revealed that the government will be consulting with industry over the coming months on the key questions that need to be addressed, so that a Green Paper can be published at the end of the year setting out proposals for the new Bill. The government's current plan is to enact new legislation by 2015, which will put in place a regime that will last for a decade.
European Commission consults on resale right for artists
The European Commission has launched a consultation to assist its preparation of a report on the implementation and effect of the Resale Right Directive (Directive 2001/84/EC). The Commission has issued a series of questions seeking information about developments in national art markets over the past five years and the effect the resale right has had on trade. Other details requested include the number of artists who have benefitted from the right, the value of royalties distributed, and the administration costs for the scheme. In the UK, the government has delayed the application of the resale right to the estates of deceased markets until January 2012, but royalties are still payable to living artists. Responses to the consultation are requested by 11 March 2011.
High Court confirms that end users require a licence from the Newspaper Licensing Agency to receive and use on-line media monitoring services
The High Court has ruled that business customers of Meltwater, which provides a commercial media monitoring service, must obtain a licence from the Newspaper Licensing Agency (NLA). Meltwater scrapes websites of newspaper publishers to obtain details of articles using keywords which are relevant to its customers’ businesses. Meltwater then provides to its customers a hyperlink to each article, citing the headline, opening words and an extract from the article showing the context in which the keywords appear, in a service called Meltwater News. Meltwater is in separate licensing discussions with NLA regarding its use of content from publishers who are NLA members. Therefore, the judgment was limited to the use by Meltwater’s customers. The High Court ruled that some headlines and text extracts are capable of being literary works in their own right. In the judge’s view, even a small amount of the original article may be protected by copyright if it demonstrates the stamp of individuality reflective of the creation of the author(s) of the article. End users who receive an e-mail containing Meltwater News, or who view Meltwater News via Meltwater’s website on screen, will make a copy of the works on their computers and thus infringe copyright unless they are licensed by NLA to do so. The Court held that none of the exceptions to copyright infringement applied, including the temporary copying defence.
European Commission seeks to strengthen protection against piracy on conditional access services such as pay TV
Currently conditional access services (where access to the protected service is made conditional on prior individual authorisation, such as pay TV) are protected in EU member states by Directive 98/84/EC. However, there is concern that some European states which are not members of the EU may provide havens for the development or distribution of devices for hacking into conditional access services if their legal systems do not provide appropriate sanctions. Therefore, the European Commission has recommended that the Council of Europe ratifies the Convention on the legal protection of services based on, or consisting of, conditional service, which was adopted in January 2001. The Convention is almost identically worded to Directive 98/84/EC. The hope is that, if the EU ratifies the Convention, this will encourage countries who are not members of the EU to ratify the Convention and so extend legal protection for conditional access services to cover nearly the entire European continent.
Government seeks to establish local television
The Culture Secretary Jeremy Hunt has announced an action plan to award local television licences in the UK by the end of 2012. The proposal is to set up a new national television channel on Digital Terrestrial Television (DTT) which is given a prominent position in Electronic Programming Guides. The idea is that the new UK-wide channel will act as a "spine", carrying a certain number of hours of local (rather than regional) programming, while also supplying network content to make it attractive to advertisers and so commercially viable. Mr Hunt has invited expressions of interest by 1 March 2011, with a formal process to begin in early summer. This announcement follows the publication of two reports on local television in December; one from Oftel highlighting regulatory issues the government will have to address in the system of Public Service Broadcasting for delivery of local television, the other from Nicholas Shott, Head of UK Investment Banking at Lazard. Mr Shott’s report concluded that, in the short term, when services are likely to be delivered over DTT, it is unlikely that more than about ten or twelve local TV services, based on urban areas, will be sustainable throughout the UK. In the long term, Shott considers that local programming may be more suited to delivery via Internet Protocol Television. Mr Hunt has commented that he will allow the market to resolve the number of commercially-viable proposals.
Pink Floyd wins its royalties battle against EMI following Court of Appeal ruling
The Court of Appeal has upheld a judgment in favour of the rock band Pink Floyd (reported in the April 2010 edition of Media Brief), ruling on the interpretation of an agreement which licensed EMI to exploit Pink Floyd’s albums. Pink Floyd alleged that EMI had breached the agreement by failing to account properly for online sales and by selling single downloads and ringtones and streaming individual tracks. The Court of Appeal upheld declarations made by the High Court that EMI should account for income received by internet music providers, such as iTunes, and that the clause prohibiting sales of the albums in question as individual tracks also applied to online distribution. The latter declaration was upheld by only two out of the three appeal court judges, who were influenced by the fact that at the time the licence agreement was entered into in 1999, online and digital exploitation of sound recordings was contemplated, but did not exist commercially. In light of this judgment, it may be prudent for artists and publishing companies to review contractual arrangements made before the age of online music sales.
Call for evidence from committee leading independent review on intellectual property
Professor Ian Hargreaves, who is leading an independent review of intellectual property (“IP”) and growth commissioned by the government, has issued a call for evidence. The Review Team has asked interested parties to provide information about their experiences of the current IP framework and their assessment of how well it promotes entrepreneurialism, economic growth and social and commercial innovation. The call for evidence sets out a number of questions, focussing particularly on the patent and copyright systems, the mechanism for enforcement of rights, the balance between competition and IP, and the needs of small and medium size enterprises in accessing IP services to help them protect and exploit IP. Any submissions are requested by 1 March 2011. Further details about the call for evidence can be accessed here [Source: Intellectual Property Office website].
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