Media Update February 2012
21 Feb 2012
Government Consultation on Copyright System
The UK government has launched a consultation on its proposals to modernise the copyright system, following recommendations in the Hargreaves Review of Intellectual Property and Growth last year.
The proposals include: new exceptions to copyright to allow limited acts of private copying; an exception for parody and pastiche and digitisation of works for library archiving. They also include details of new licence and clearance procedures for orphan works and provision for “voluntary extended collective licensing schemes” to make it easier for digital services to license copyrighted works.
If all of the proposals are implemented it will result in some major changes to UK copyright law.
Responses are due by 21 March 2012. For a full copy of the consultation document click here.
EU Ruling Confirms Film Directors' Rights
The ECJ, (in a referral under an Austrian case, Martin Luksan v Petrus van der Let, C-277/10), has confirmed that EU member states must provide under their national laws that the principal director of a film is presumed to have first ownership of the right to exploit the film and the right to first ownership of fair compensation for private copying.
It was also held that member states can provide for a legal presumption that the exploitation rights (these are the reproduction right, satellite broadcasting right and all other rights of communication to the public) would automatically be transferred to the film’s producer, provided that the parties were free to contract out of such a transfer. The right to fair compensation for private copying however cannot be the subject of an automatic presumption of transfer.
Note that at the moment there is no law in the UK providing for payment of compensation to authors for private copying as this is a discretionary and not compulsory element of EU law. Most EU states permit certain acts of private copying, subject to the payment of copyright levies. A limited private copying exemption is included in the UK government’s response to the Hargreaves Review (see above).
High Court decision in Football Premier League Case
Following the ECJ ruling last October (see Media Update, October 2011), the High Court has given its decision in the three combined foreign decoder card test cases brought by the Football Association Premier League (Football Association Premier League Ltd and others v QC Leisure and others [2012] EWHC 108 (Ch), 3 February 2012.))
In summary, Kitchen LJ held that the publican defendants were communicating FAPL's copyright works to the public in breach of section 20 of the Copyright, Designs and Patents Act 1988 when they screened Premier League games. However, they had a defence to infringement in relation to copyright in the films included in the broadcasts under section 72(1)(c) of the CDPA which states that the showing or playing in public of a broadcast, to an audience who have not paid for it, does not infringe any copyright in the broadcast . So, the copyright infringement was limited to the Premier League anthem (which the publicans have undertaken not to play out loud) and certain graphics.
Kitchin LJ also agreed to make a declaration to reflect the ECJ ruling that obligations in exclusive licence agreements, which prohibited the supply of decoder cards that enabled viewing of Premier League games outside the licensed territory, restricted competition contrary to Article 101(1) of the Treaty on the Functioning of the European Union and were void under Article 101(2) to the extent that they stopped the Greek licensee from supplying decoder cards for use in the UK.
We will have to wait and see how the FAPL changes its practice of issuing licences on an exclusive territory basis.
ECJ Advocate General's Opinion on Database Copyright in Premier League Fixture List
The Advocate General for the ECJ, Paolo Mengozzi, has given his opinion on the case referred by the UK Court of Appeal to the ECJ on the question of whether football league fixture lists are protected by a database right under the EU Database Directive.
The case concerns a claim by Football Dataco Limited and the English and Scottish football leagues against websites and bookmakers, including Yahoo! UK Limited and Stan James, who had used the fixture lists to provide news and information and/or betting services. Football Dataco is arguing that the defendants should pay for the use of the fixture lists, claiming protection for those lists under the Database Directive on the basis of the copyright in the database and the 'sui generis' database right, as well as copyright protection under the Copyright, Designs and Patents Act 1988.
Floyd J in the High Court argued that although the lists were not protected by the database right or any other copyright, they did attract copyright protection under the Database Directive. The defendants appealed to the Court of Appeal, which in turn referred the question of database copyright to the ECJ.
In his Opinion, Mengozzi said that a database can only attract copyright protection under the Directive if it is an original intellectual creation of its author. Activities involved in the creation of the data cannot be taken into account. In the case of football fixture lists, the determination of all the elements relating to each match is a “creation activity” and so not protected.
Opinions of the Advocate General are not binding upon the ECJ but they do tend to be followed by it when reaching its decisions.
This case is being watched closely by websites and bookmakers who have long argued that they shouldn’t have to pay to use fixture data. The Premier League however points to the fact that they spend large sums drawing up the lists, having to deal with local authorities, transport and police, and so are entitled to be paid for their use by third parties. A final ruling from the ECJ is expected later this year.
