Archive for the 'Media and entertainment' Category

The SPL’s big bar bill (broadcasting rights)

Over the past couple of years I have written periodic updates regarding the rights of English (or English-based) pub landlords to use “foreign” decoders to screen football matches in their pubs.  Following the European Court of Justice (“ECJ”)’s decision as reported in Football Association Premier League v QC Leisure, in  my post from last February I offered this summary of the state of play:

The ECJ decided that national legislation banning the use of overseas (non-UK, but EU supplied) decoders amounted to an unlawful restriction on competition, and it was probable that only certain elements of Sky’s broadcast of match footage was protectable by copyright….Provided a landlord is using an EU decoder of some description, the consequences very much remain to be seen.  Perhaps the best way to summarise the current situation is to borrow some football terminology:

  1. Win – Use a decoder supplied by Sky
  2. Lose – Use a decoder without paying for it, or a decoder obtained from/that accesses the feed of a non-EU rights holder
  3. Draw – Use a decoder supplied by a EU (but non-UK) rights-holder

A new development in the pub landlords v football rights holders battle emerged on Monday, when it was reported that the Scottish Premier League (SPL) is facing a £1.7m damages claim over its legal bid to stop a pub group screening live matches via a Polish broadcaster.  The case in question is The Scottish Premier League Limited v Lisini Pub Management Company Limited

The background of the case

The story starts way back in 2006, when new Rangers boss and “fitness fanatic” Paul Le Guen was at war with Barry Ferguson, and present-day SPL player of the year Charlie Mulgrew was being “made into a man” (and what a hunky one!) at Wolves. 

The SPL took proceedings back in against Lisini Pub Management Co Ltd for unlawful broadcasts of Celtic games in autumn 2006 using a broadcast signal from Poland.  At the start of 2007 Lisini signed an undertaking saying that they would stop using foreign decoders.  They then used a Polish decoder to screen a match in April 2007.  The SPL then obtained interdict to prevent any more use of foreign decoders.  And the case was then sisted to see what the ECJ had to say about the use of decoders supplied by EU rights-holders. 

Of course, as described above, the ECJ decided that the use of foreign decoders was probably OK, and Lisini Pub Management Co Ltd is now counterclaiming against the SPL, seeking damages of £1,761,749. 

The decision

In the Outer House of the Court of Session Lord Woolman refused to dismiss Lisini’s counterclaim, concluding:

 In my view the English Premier league case has an important bearing on the present action. The material facts are virtually identical. The ECJ gave clear answers to the precise questions referred to it. Its decision means that subscribers in member states are entitled to access broadcast signals from other member states. An EC citizen living in (say) Germany should not be prevented from obtaining a signal from Sky, BBC, RAI, Nova or Polsat.

The SPL sought to argue that the ECJ arrived at its conclusions without any detailed investigation of whether banning the use of overseas (non-UK, but EU supplied) decoders would actually have an anti-competitive effect on the market for live football broadcasts.   Lord Woolman found this argument “unconvincing”. 

What’s not reported amongst the “SPL face £1.7m claim” headlines is that I think Lisini will have to work quite hard to actually prove such a huge loss.   It will be interesting to see how they reach that figure – it’s not exactly “small beer”.

John-McGonagle

Leveson, Royal Charters and the future of press regulation in Scotland

On Monday the three main political parties in Westminster agreed on a plan to implement the Leveson Report’s press regulation recommendations in England and Wales.

The plan
The agreed approach involves a Royal Charter which will establish a new regulator for the press, and amendments to the Enterprise and Regulatory Reform Bill (to help entrench the Royal Charter so that it can only be dissolved by a two-thirds majority vote of both the House of Commons and also House of Lords) and the Crime and Court Bill (so that all “relevant publishers” who do not sign up to the new regulator will pay extra or exemplary (punitive) damages for libel and breaches of privacy). 

The Royal Charter is surprisingly difficult to find, but here is a link.  It remains to be seen whether the new plan will gain widespread acceptance.

Labour leader Ed Miliband has claimed that:

What we have agreed is essentially the royal charter that Nick Clegg and I published on Friday. It will be underpinned by statute. Why is that important? Because it stops ministers or the press meddling with it, watering it down in the future.

Tough talking, but what exactly does Ed Miliband mean when he says “essentially the royal charter”?  What might end up being different?

Well, according to the Royal Charter as drafted at present, a “relevant publisher” means:

a person (other than a broadcaster) who publishes in the United Kingdom:

i) a newspaper or magazine containing news-related material, or
ii) a website containing news-related material (whether or not related to a newspaper or magazine)

It’s an alarmingly wide definition, which could capture not just foreign news websites but also bloggers and perhaps Tweeters. It doesn’t entirely correspond with Culture Secretary Maria Miller’s assertion that:

a publisher would have to meet the three tests of whether the publication is publishing news-related material in the course of a business, whether their material is written by a range of authors – this would exclude a one-man band or a single blogger – and whether that material is subject to editorial control.

By way of example, here on Brodies Techblog we have a team of bloggers, we publish news-related material in our blogs (in that we comment on topical legal issues), and our posts are subject to editorial control before they are published. Did Cameron, Milliband and Clegg have blogs like this in their sights when agreeing the draft charter? Should a blog like this be treated differently from the blog of a individual, but high profile and influential blogger? It’s not clear.

What is clear is that there is still work to be done on the drafting of the charter.

Should the press be regulated like broadcasters?
An interesting – but often overlooked – aspect of the press regulation debate is that broadcasters are regulated by communications regulator Ofcom.

The traditional freedom of the press (particularly in comparison to broadcasting) has complex roots and justifications, including the practical issue of scarcity of broadcast spectrum, which has led to far stricter regulation of television and radio broadcasters.

As a consequence of Ofcom’s regulatory control over broadcasters, broadcasters’ websites are specifically excluded from the Royal Charter definition of “publishers” set out above.  These websites will continue to be regulated by Ofcom.

The Scottish dimension
Press regulation is a devolved competency of the Scottish Parliament.  Alex Salmond has said the concept of a UK-wide regulator backed by Royal Charter may be “an idea worthy of consideration”.

It appears that the First Minister is keen to distance himself from the report produced of the Expert Group on the Leveson Report in Scotland, better known as the “McCluskey Report” (in reference to the Group’s chair, Lord McCluskey), which was published three days before the Westminster announcement.

The recommendations were widely derided last week as being draconian and having gone too far.

Allan Rennie, editor-in-chief of Media Scotland, said:

it’s not just about the press, it’s about anyone in Scotland who dares to express an opinion.

Analysis of a Report and recommendations which appear stillborn are perhaps academic, but it’s not entirely easy to reconcile some of the more vigorous attacks on the McCluskey Report with the actual content of the Report’s proposed Draft Press Standards (Scotland) Bill.

For example, one of the most widely repeated claims over the weekend was that the proposed draft Bill would apply to any publication which can be viewed from Scotland (in other words, anything on the internet, regardless of where the author of the content in question is located). While it’s correct that in the case of allegedly defamatory publications posted on the internet it is generally accepted that “publication” takes place where the article is downloaded, the proposed draft Bill didn’t explicitly refer to this understanding of “publication”.

It referred instead to a publication which “takes place in Scotland”. Further, paragraph 20 of the McCluskey Report specifically stated that the proposed draft Bill was written in “plain English”. (On the other hand, it does seem curious that the proposed draft Bill dispensed with the “publishes in the United Kingdom” wording in several of the draft bills that have been in circulation recently, including Hacked Off’s “Proposed Media Freedom and Regulatory Standards Bill”.)

Differences under the Scottish legal system
Less ambiguous was the McCluskey Report’s conclusion that

we have reached the view that there is no practical alternative to making [the new regulation system] compulsory for all news-related publishers.

As discussed above, the new plan agreed by the three main parties in Westminster does not provide for compulsory opt-in, but instead envisages exemplary damages for publishers who fail to sign up to the new regulator.

However, because damages under Scots civil law are purely compensatory, the concept of exemplary or punitive damages is unknown in Scotland. This is explained in further detail in the Scottish Government’s “Carrots and Sticks” Leveson Briefing Note.

There are also other aspects of Scots Law which would require consideration should the Royal Charter plan be followed, including arbitration and court expenses (in Scotland “costs”).

However, none of these problems would be insurmountable, and the McCluskey Report itself noted at Paragraph 10:

Scottish legislation could provide for a separate Scottish Recognition Body. We do not consider that there is anything in such a proposal that would prevent the formation of a single UK-wide Regulatory Body if that as considered appropriate”.

Alex Salmond has said that he shall continue cross-party talks on press regulation, and report to the Scottish Parliament after Easter. The Scottish Government has separately sought clarification from the UK Government on the impact of the proposed Royal Charter in Scotland.

For the timebeing, however, the future regulation of the press and the web in Scotland (or available in Scotland), and its scope, remains unclear, leaving publishers in the UK uncertain as to whether they will be subject to two different regimes or a single, harmonised, regime.

We will continue to follow this debate as it evolves.

John-McGonagle

iHard: Bruce Willis and ownership of downloaded content

It seems that last week’s widely-repeated story that Bruce Willis was preparing to sue Apple for ownership of songs downloaded from iTunes was unverified and probably untrue.

Journalists can be forgiven for hedging their bets however, as resale of digital assets a complex subject. In fact, you could say it is pretty “iHard” to understand.

A licence to use
When you buy a music download you are actually paying for a contractual right – a licence – to permit you to do something with that copyright work that would otherwise be contrary to the author’s copyright. (For further discussion of the bundle of rights which protect songs, read this Tech Blog from last September.) 

The licence will set out what you can do with the copyright work, e.g. listen to it in private, burn it to CD/download it to other devices up to a set number of times etc. If what you are doing is not expressly permitted under the licence then you are probably infringing copyright.

In this respect the rights obtained by a purchaser of a music download from iTunes are no different to the rights acquired by a purchaser of a CD from a high street store. If you buy a CD you own the physical CD, but you don’t own the songs on it.

The practical differences are that:

  1. the licensed products are embodied in a physical CD, permitting easy transfer; and
  2. the first-sale doctrine applies to CDs.

The first-sale doctrine provides that once copyright products embodied in a physical object are introduced in the market in a given territory, the right holder loses control of them, and they can be freely resold, lent, or given away by the purchaser. In other words, the purchaser of a CD containing songs has the right to resell, lend or give away their copy of the songs (although not copies of their copy – which is an important distinction.)

The first-sale doctrine
There are various historical justifications for the first-sale doctrine (market failure; the free movement of goods; the impossibility of controlling the uses of a purchased copyright work; enhancing the circulation of culture), and a very similar concept called “exhaustion of rights” exists in the EU.

The catch is that the World Intellectual Property Organization Copyright Treaty (the international treaty on copyright law adopted by the member states of the World Intellectual Property Organization, including the US and, through the Council of the European Union, the EU) limits application of the first-sale doctrine to “fixed copies that can be put into circulation as tangible objects- not intangible content distributed over the internet”.

This means that if the licence for a digital copyright work prevents making copies of it, or prevents transfer of the licence, then reselling, lending or giving away that work is forbidden. (The degrees to which major players such as Amazon and Apple explicitly forbid such transfer is a matter of licence interpretation, and tends to be debated amongst lawyers and academics.)

Posited potential “workarounds”, particularly in the case of death of the owner, include: creating a legal trust (though this seems far-fetched – you can’t change a licence through a trust); burning your media onto a device and bequeathing that device in your will; or writing down the password. As noted above, the legality of these methods will depend on interpretation of particular licence terms.

The distinction between physical and digital content appears increasingly untenable
The European Court of Justice recently ruled that, in relation to a computer program, the rights of the copyright owner Oracle in relation to a copy of is software had been exhausted – even though the software had been downloaded from the internet. 

The judgment addressed the distinction between tangible or intangible forms of the computer program, concluding (via a rather circuitous route that deeemed the Computer Program Directive to be a lex specialis of the Copyright Directive):

it must be considered that the exhaustion of the distribution right under [the Computer Program Directive] concerns both tangible and intangible copies of a computer program”

In theory therefore, although the judgment’s treatment of the tangible/intangible issue is far from the most robust reasoning you will ever read, this suggests that in certain circumstances exhaustion of rights in “used” digital content may be possible.  (If resale of software is an issue of particular interest to you, please read my colleague Martin Sloan’s in-depth summary of the judgement and his key points.)

Similarly, there is forthcoming litigation in the US regarding the legality of reselling of “used” digital songs. Capitol Records is suing ReDigi, a Massachusetts start-up which runs an online marketplace where individulas can resell music files. The legality of ReDigi’s business model will probably turn on whether it is making a copy of the song when it moves the “used” files it to its cloud servers. Capitol has insisted in its filing that copies are being made, claiming: 

While ReDigi touts its service as the equivalent of a used record store, that analogy is inapplicable: used record stores do not make copies to fill up their shelves”

As discussed above, making copies of copies isn’t protected by the first-sale doctrine, so ReDigi will have to prove that only a single copy of a song is being used throughout its entire sales process (as well as finding its own way around the tangible/intangible goods issue).

Hudson Hawk
In the meantime, I appreciate you may have been lured to this blog post on the promise of Bruce Willis, and been subjected to law instead.  So, in a wonderful scene from the unfairly maligned Hudson Hawk, let’s round things off by enjoying Swinging on a Star.


Twitter: @BrodiesTechBlog feed

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