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Entertainment & Media Industry

Seminar Pack

Developments in copyright lawJune 2017

Developments in copyright law


Agenda

16.00 Guest arrival and Registration

16.30 Seminar commences

Welcome and overview of the topics to be covered, Gregor Pryor and Stephen Edwards

Abolition of section 73 of the CDPA, Stephen Edwards

Recent UK decisions on copyright, Nick Breen

The CJEU decisions on linking to copyright content, Anette Gaertner

Territorial restrictions in licensing of content to online services in the EU, Stephen Edwards

17.30 Break

17.40 Key points in the draft Digital Single Market copyright directive, Gregor Pryor

The Portability Regulation, Stephen Edwards

The draft Regulation on broadcasters’ online services, Stephen Edwards

18.30 Drinks and networking

20.00 Close


Name Company

Andrew Birtles All3Media International Limited

Lina Harfouche All3Media International Limited

Noah Craven AmazonYasmin Joomraty Amazon VideoPhilip Waterfield Amazon VideoMadeline Moncrieff AOL UKTom Cadwaladr Bauer MediaCharlotte Hart Bauer MediaKirsty Morton Bauer MediaAndrew Ailwood BBCIdo Azil BBCJoanne Ballard BBCJason Bandy BBCAmy Cairns BBCAlex Cramp BBCLaura Davis BBCSusan Dean BBCAlexander Evans BBCMike Griffiths BBCDiane Hamer BBCBen Haskey BBCDavid Hudson BBCSean Mason BBCAilsa McIntyre BBCRosalind Miller BBCMab Moeiri-Farsi BBCSusanna Morley BBCLuke Sanford BBCValerie Smith BBCDaniel Tonkin BBCNikki Touchard BBCElen Vogler BBCDi Wu BBCSanjiv Arora beIN Media GroupDana Toohey beIN Media GroupBen Green Ben Green AssociatesJames Grant Big Talk Productions

LimitedVirginia Burgess British Film InstituteCharlotte Hildebrandt CBS Studios

International

Name Company

Khalid Hadadi Channel Four Television Corporation

Kirstin Hadley Channel Four Television Corporation

Fiona Lomax Channel Four Television Corporation

Carl Pfeiffer Channel Four Television Corporation

Hamish Thomson Channel Four Television Corporation

Adelina Ferrara DBCaroline Hartley Discovery

CommunicationsEmma Stanyer Ecosse Films LimitedNicola Bean EEJohn Parsons Endemol UK LimitedKathryn Horne EndemolShine GroupKaty Boxall Entertainment One UK

LimitedTim Pfeiffer Entertainment One UK

LimitedNadia Lachman eOneCassandra Carias eOne FeaturesKate Bryan Eurostar International

LimitedDarren Broad FremantleMedia LimitedChristine Hall FremantleMedia LimitedNancy Stedman FremantleMedia LimitedVictor Mound GamesysLuke Anthony GoogleAlastair Cox GoogleJames Kevany Google / YouTubeSilvia Schmidt IngeniousFiona Hammond IrisSimon Abrahams ITVMagnus Brooke ITVChris Day ITVJames Glanville ITVCharlotte Miczek ITVRachael Mooney ITVNilesh Patel ITVMadeleine Richards ITVJulia Stephenson ITVChristina Vinton ITVLisa Williams ITV


Name Company

Stephanie Woods ITVKatherine Cunliffe Kat C ConsultingTanya Dempsey KudosKate McCullagh KudosHannah Woodthorpe KudosSimon Moran Last.fmSophie Poulter Last.fmRachael Elliott Lionsgate (UK) LimitedSimon Hughes McDonald's CorporationNicola Hartley Mint & Co.Josh Kendal Music Publishers

AssociationKaren Baring Objective FictionAmanda Russell PACT LTDTimiko Cranwell Pernod RicardStephen Godsell Press AssociationHugo Cox PRS for Music LimitedJoshua Myers PublicisJustin Kelly Recorded Picture

CompanyOlivia Bedell-Pearce Reed Business

Information LimitedTom Rivers Rivers ConsultancyDamian Herrington ShazamLaura Crowley Sister PicturesLily Girdlestone Sony Music

EntertainmentStuart Levene Sony Music

EntertainmentZarina Bart Sony Pictures TelevisionTricia Irele Sony Pictures TelevisionDaania Karim Sony Pictures TelevisionHarry Robinson TelefonicaJudy Edmonds The Agency (London)

LimitedStacey Mitsopulos The Box Plus Network

LimitedTom Crowley TurnerAnnabelle Perrot Turner Broadcasting

System Europe LtdAdam Roberson Turner Broadcasting

System Europe LtdVirginie Sintrat Turner ProductionsSimon Vyvyan TVAJo Latimer UKTV

Name Company

Ravina Ravindran Universal Music and Brands

Alex Flanagan Universal Music GroupSamantha Doney Universal Pictures

International LimitedRichard Pringle Valideus LtdJade Allen Vice MediaKatherine Chandler Vice MediaCristina Lombardo Vice MediaNicky Kelvin Virgin EMI Records -

Universal MusicAndrew Wileman Virgin Media LimitedNg Gregory vlmaRae Gibbons-Fraser Walt Disney Company

Ltd.Alice Prickett Warner BrosKimberleigh Tucker Warner BrosHelen Tulley Warner BrosAhalya Nambiar Warner Bros.

Entertainment UK Limited

Ewan Watson Warner Bros. International Television Distribution

David Speirs Warner Bros. International TV Distribution

Marco De Roni


Gregor PryorPartner+44 (0)20 3116 [email protected]

Gregor is co-chair of the firm’s global Entertainment and Media Industry Group, and is a digital media specialist.

He has broad experience of advising clients concerning the acquisition, production, licensing and distribution of content on digital media networks and platforms. He regularly advises companies that are involved in the distribution and sale of digital content, such as digital music, video and gaming services, social networks, online retailers, aggregators, network operators, platform owners and search engines, regarding their arrangements with content owners and consumers. He also advises content owners such as computer game companies, film and television production houses, record labels, music publishers and advertisers regarding the protection and exploitation of their intellectual property rights.

Due to his experience of negotiating and advising on cutting-edge digital content arrangements, Gregor also works with clients to help formulate strategies that align with the developing body of laws relating to digital media. He also often works with innovative start-up companies to help leverage their new technology and grow quickly.

In addition to working with digital media clients, Gregor continues to advise companies on information technology matters, including the development and implementation of systems and software. He also counsels clients concerning data protection and privacy matters, particularly in relation to IP-network operations and advertising.

The Legal 500 has described Gregor as a “digital carriage superstar”, whilst Chambers and Partners has rated him consistently in the Tier 1 of advisors in his sector, recognising his knowledge of digital music copyright issues and “unrivalled experience in the market”. The International Who’s Who of Sports and Entertainment lawyers has described Gregor’s digital media practice as “second to none”.

In acknowledgement of his work in the sector, Gregor was listed in the ‘Top 100 Most Influential People in Digital Media’ in Wired Magazine and was featured in the ‘TechCity Insider 100’ list of 2014. He is a member of the Advisory Panel for the UK Government’s ‘Future Fifty’ programme for high-growth companies and sits as Vice Chair on the Committee of the Internet and Media Leadership Group of the Prince’s Trust charity. He also holds non-executive advisory roles in start-up companies from time to time.


Stephen EdwardsPartner+44 (0)20 3116 [email protected]

Stephen is a partner in the Entertainment and Media Industry Group. He is an expert in copyright and broadcasting law, handling both rights-related and other commercial transactions as well as regulatory work for clients ranging from start-up ventures to some of the media industries’ household names. In the past year, for instance, he has worked on such matters for the BBC, Channel Four, Raidio Teilefis Eireann (RTE) and the European Broadcasting Union. He also has experience in dealing with the creation of UK and EU legislation in the copyright and regulatory fields.

In addition to television, radio and digital media work, Stephen’s experience also covers film and music rights, sports agreements and all forms of print and online publishing.

Stephen serves on the committee taking forward the development of the Copyright Hub, and chairs the Education Licensing Working Group which has streamlined copyright licensing for the education sector.

For many years Stephen has been rated in the top tier of media lawyers by the directories Legal 500 and Chambers. He writes the chapter on the broadcasting sector for the standard work on copyright law, “Copinger & Skone James on Copyright”.

Nick BreenAssociate+44 (0)20 3116 [email protected]

Nick is an associate in the Entertainment and Media Industry Group, and focuses on digital media, music, advertising, theatre and content distribution.

Nick has broad experience in advising clients on the production, licensing and digital distribution of content on various digital platforms and networks. In particular, Nick works extensively with music and film digital service providers across Europe and regularly advises clients on managing their relationships with content providers, talent and consumers. Nick also advises television and radio broadcasters, advertisers, agencies, and tech start-ups on a range of copyright, clearance and general commercial matters.

In addition to working with digital media and advertising clients, Nick continues to advise theatre producers, music artists, managers and promoters on a broad range of matters from production, management, label and publishing agreements, to sponsorship arrangements.

Having undertaken a number of secondments; Bauer Media, McCann Erickson and Audible (a division of Amazon), Nick understands the internal pressures, expectations and sensitivities facing clients and the commercial awareness required to effectively advise clients in a pragmatic and clear manner.


Anette GaertnerPartner+49 (0)69 22228 9818+49 (0)89 20304 [email protected]

Anette holds a dual qualification (Germany and England/Wales) and advises her clients on all aspects of intellectual property and copyright law.

Her main focus is on patent related matters, both contentious and non-contentious. Anette has more than ten years experience as a patent litigator, having represented clients in proceedings both before state courts and arbitral tribunals. She has special expertise in developing litigation strategies for cross-border matters and dealing with cases that involve a multitude of jurisdictions. In addition, she advises on licensing programmes, R&D projects and issues relating to the German Act on Employee Inventions. Anette also has broad experience in providing IP advice in the context of corporate transactions.

Her clients come from a range of industries, including the healthcare/chemicals and the electronics sector.

According to IAM, The world’s leading patent professionals 2016 “Reed Smith’s Anette Gärtner is ‘very smart. She really is strong in both procedural and substantive law issues. She is not afraid of technology, which is important when you are doing patent litigation work. Technically, she is brilliant’.”

She is further mentioned as a recommended lawyer (copyright law/transactions) in the Legal 500 ranking and JUVE Handbuch 2016/2017.


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Entertainment and Media Industry Group


15 June 2017

Reed Smith LLP

AgendaWelcome and overview

Abolition of section 73 of the CDPA

Recent UK decisions on copyright

Recent CJEU decisions on linking to copyright content

Territorial restrictions in licensing of content to online services in the EU

Break

Key points in the draft Digital Single Market copyright directive

The Portability Regulation

The draft Regulation on broadcasters’ online services

Questions

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Cable Retransmissions of public service television channelsStephen EdwardsPartner


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Cable Retransmissions of public service television channelsDigital Economy Act 2017, Section 34, repeals sections 73 and 73Aand paragraphs 19 and 19A of Schedule 2, CDPA

Cable operators will need licences to re-transmit the public service channels of the BBC, ITV, Channel Four and Five

The CJEU had ruled on 1 March 2017 that section 73 was incompatible with the Infosoc Directive – see ITV and others v TV Catchup

The section did not fall within the scope of Article 9 allowing retention of provisions concerning “access to cable of broadcasting services”

What will follow from this repeal?

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Nick Breen

Associate

Reed Smith LLP

Recent UK decisions on copyright – Court of Appeal

Absolute Lofts South & West London Ltd v Artisan Home Improvements(Chancery Division) [2017] EWHC 480 (Ch) (13 March 2017)

• Appeal dismissed – authority on how to assess damages for infringement of the copyrights subsisting in photographs.

• Quantum of damages (marketvalue) for the unauthorised useof copyright protected photographson the website of a small homeimprovements company namedArtisan.


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Recent UK decisions on copyright – Intellectual Property Enterprise Court

Phonographic Performance Ltd (PPL) v Hagan (t/a Lower Ground Bar and Brent Tavern) (IPEC) [2017] F.S.R. 24 (30 November 2016)

• Awarded a claimant additional damages for copyright infringement under section 97(2) of the Copyright, Designs and Patents Act 1988

• An important factor was the extent to which an award of additional damages was likely to be dissuasive. There were two ways of looking at the dissuasive requirement:

1. The defendant should be dissuaded from infringing again2. Other infringers, actual and potential, should be dissuaded from infringing: the court

might take either or both into account, as appropriate.

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Recent UK decisions on copyright – Court of Appeal

Sony Music Entertainment Ltd v UPC Communications IrelandCourt of Appeal (Ireland) [2017] E.C.D.R. 8 (28 July 2016)

• Upheld decision of the High Court - the Court was permitted to grant graduated response system (GRS) injunctions to support the enforcement by music companies of copyright infringements against ISPs subscribers

• Analysed what steps the Court may require internet service providers to take to assist copyright holders to identify those of its customers who use the network provided by these providers to access the internet for the purpose of illegally downloading or uploading copyright material.

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Football Association Premier League Ltd v British Telecommunications Plc(Chancery Division) [2017] EWHC 480 (Ch) (13 March 2017)

• Court granted a blocking injunction requiring six internet service providers to block customer access to streaming servers that infringed the copyrights of the Football Association Premier League by streaming live match footage without permission.

• The injunction was proportionate, of short duration and contained safeguards over and above those previously adopted in the context of website blocking.


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Recent UK decisions on copyright – Chancery Division

Gloucester Place Music Ltd v Le Bon [2016] EWHC 3091 (Ch) (02 December 2016)

• Members of the pop group Duran Duran and their service companies had acted in breach of various music publishing and associated agreements made with the claimant music publisher.

• They served notices under the United States Copyright Act 1976 s.203 which terminated assignments to the claimant of the US copyrights in 37 songs.

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ITV Network Limited v PRS Limited and MCPS Limited [2017] EWHC 234 (Ch)• ITV brought an action in the Copyright Tribunal against a decision by the PRS to raise the rate

of ITV’s blanket license in 2013.

• Tribunal held the PRS could increase the tariff beyond the 2013 fee payment of £23 million per annum to a new base rate of £24 million for all ITV uses (including breakfast TV) adjusted by:

(a) BARB viewing figures for ITV during each year; and(b) the percentage change in RPIJ (the RPI inflation measure).

• ITV appealed to the High Court, which upheld the Tribunal’s decision.

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Anette Gärtner

Partner (Frankfurt)


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Right of communication to the public, Article 3(1) Info Soc

Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and time individually chosen by them.

How can this right be delineated?

Difficult. Total number of CJEU decisions regarding the right of communication: 18, four of which relate to linking to copyright content.

Starting point: TV Catchup (C-607/11) – streaming of television programmes

Concept of “communication to the public” implies

a) ‘Act of communication’: Making available

b) ‘Public’: A fairly large number of persons.

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Svensson (C-466/12) – hyperlinking to freely accessible newspaper articles

a) ‘Act of communication’: Making available in such a way that the public may access the works (irrespective of whether members of the public use this opportunity)

b) ‘Public’: If made available by the same technical means as the initial communication (internet), which was authorised by the copyrights holders, the communication must be directed at a ‘new public’.

BestWater (C-248/13) – embedded link to freely accessible film/ framing

Reasoning according to Svensson also applies to embedded links.

Irrelevant that the alleged infringers appeared to “appropriate” the film by using the framing technique, thereby creating the impression that the work was accessible at their own website.

Same technical means (internet), therefore a ‘new public’ must be targeted.

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GS Media (C-160/15) – hyperlinking to freely accessible photos illegally placed on the internet

Clarification: Svensson/BestWater (‘new public’) related to cases where the content had originally been made available with authorisation of the rights holders.

If content is freely accessible, but rights holder did not consent: Necessary to balance the rights of the copyright owner on the one hand and the freedom of expression and of information on the other hand. (The internet is based on hyperlinking.)

Therefore:

a) ‘Communication to the public’: If the person who posts the hyperlink knows or ought to have known that the work was illegally placed on the internet. Ought to have known, in particular, if notified thereof by the copyright holder.

b) Rebuttable presumption of ‘communication to the public’ if posting is carried out for profit. Rationale: Person who posts for profit can be expected to check whether work had been published illegally.


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Filmspeler (C-527/15) – multi media player with pre-installed apps

Recital 27:

The mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive.

Sale of devices at issue does not constitute a “mere provision of physical facilities” because of the pre-installed apps with hyperlinks.

Reasoning of GS Media applied:

a) Sale in full knowledge of the fact that the filmspeler gave access to illegally published content

b) Also done for profit.

See also Pirate Bay (C-610/15) – online platform, press release of 14 June

https://curia.europa.eu/jcms/jcms/p1_370399/en/

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This is where we stand:

Content freely accessible

Published with consent

Know-ledge

Profit making intention

Art. 3(1)

√ √ n/a n/a no

√ no √ √/no √

√ no no √ Rebuttable presumption

no n/a √ √/no √

no n/a no √ Rebuttable presumption

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Territorial Restrictions in licensing of audiovisual content to online services in the EUStephen Edwards

Partner


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Territorial Restrictions in licensing of audiovisual content to online services in the EU

May 2015: Competition Directorate of the European Commission decision to launch an Inquiry into the E-commerce sector

June 2015: Fact-finding Questionnaire issued to providers of online content services:

Information required on territorial restrictions in contracts with top 30 suppliers of programmes in each major genre of programming.

March 2016: Questionnaire issued to licensors of content to providers of online content services:

Information required on territorial restrictions included in their licences granted to their 8 largest customers of that kind.

September 2016: Preliminary report issued by the Commission that rights tend to be split by technologies, territories and release windows. 70% of providers of online content services implement geo-blocking and most have agreed with their programme suppliers to do so. Exclusive agreements are prevalent and many are long-term and renewable. As such there are difficulties for potential new entrants to the market and for smaller operators.

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Territorial Restrictions in licensing of audiovisual content to online services in the EU

May 2017: Final Report issued by Commission

Main concerns relate to contractual restrictions in licensing agreements:

Bundling of rights for online transmission with rights in other transmission technologies may hinder other operators and new entrants from competing

Geo-blocking. Prevalence noted but no particular concern expressed

Duration. Long duration contracts are common: over 50% last for more than 3 years and 23% for more than 5 years. This makes it difficult for new players to enter the market and for existing players to expand their activities

Payment structures (e.g. minimum guarantees) favour existing players over new entrants

Commission will:

a) target enforcement of competition rules at practices that may negatively affect competition and cross-border trade

b) Broaden the dialogue with national competition authorities to contribute to a consistent application of EU competition rules as regards e-commerce-related business practices.

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Break


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Key points in the draft Digital Single Market copyright directive

Gregor Pryor

Partner

Reed Smith LLP

Agenda

1. Legislative backdrop

2. Passage and timescale to implementation

3. Key provisions

4. Possible outcomes

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Commercial context

https://www.youtube.com/watch?v=vZv9-TWdBJM

San Holo example:

https://open.spotify.com/user/alltrapnation/playlist/0NCspsyf0OS4BsPgGhkQXM


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1 Legislative backdrop

Perceived problemProliferation of Information Society Service Providers (ISSPs) in the years leading up to 2000

Fears of ISSPs being subject to intermediary content liability in circumstances where active and exhaustive monitoring by such providers of their services for copyright-infringing material was a practical impossibility

Consensus that ISSPs should not be liable for copyright infringing content held by or passing through their service

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EU Parliament and Council adopted the E-Commerce Directive in June 2000, creating a set of ‘safe harbours’ including Article 14: the ‘hosting exemption’ (Directive 2000/31/EC).

Liability would generally only arise where ISSPs were put on notice of the infringing material and failed to act expeditiously to remove or disable it.

The InfoSoc Directive, adopted in 2001, also provides an exemption of intermediary liability where the infringing reproduction of protected works is transient or incidental, and an integral and essential part of a technological process, subject to certain requirements. (Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society).

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European case law flowing from the E-Commerce Directive

Google France (C-236/08 to C-238/08, CJEU, 23 March 2010 )• Claimants claimed ‘hosting’ defence not available to Google and:• a search engine service should not be classified an ISSP• advertising activity in question should not constitute ‘hosting’

• CJEU: is role neutral, i.e., merely technical, automatic and passive?• Did ISSP play “an active role of such a kind as to give it knowledge of, or

control over, the data stored”• Irrelevant that:• Google received remuneration; and• system automatically matched the two sets of data in response to each

search query• Article 14 defence was available• Not clear exactly what kind of conduct would be considered more than

merely technical, automatic and passive


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Discrepancies in interpretation around EuropeYahoo v RTI (2015, Milan Court of Appeal)• The provider did not have actual knowledge of the infringing content• The fact that an hosting provider:• enables a search functionality on the website• manages the website; and• gains an economic benefit, does not mean that it has taken an “active role” in the

infringement such as to render the hosting exemption unavailable.

Associação Nacional Do Ramo Automóvel (ARAN) v Google Portugal (1086/10.5TVPRT.L1.S1 2016, Supreme Court of Portugal)• Upheld the absence of a general duty to monitor• Clarified that a service provider is only liable if it does not remove content:• which obviously is illegal in nature; or• following a decision from a court or supervision authority.

• “Obviously” to be interpreted as meaning blatant; that a conclusion on the illegal nature could be reached without discussion or investigation.

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PRS v SoundcloudBackground• SoundCloud’s service originally operated without licences. • PRS alleged that SoundCloud infringed its (and its members’)

copyright. However it did not send SoundCloud a take-down notice. • PRS issued legal proceedings, listing examples of its members' works

that were being made available on SoundCloud. • In response, SoundCloud removed a large number of posts.• SoundCloud announced in 2014 that the matter had been settled,

and a licensed subscription service was launched.

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PRS v SoundcloudPRS’ Primary Claims:1 PRS owns the performing right in works created by its members

2 SoundCloud has infringed PRS’ copyright by communicating to the public certain PRS-controlled works without a licence

3 SoundCloud is not entitled to rely on the hosting defence: - It plays an active role and its actions go beyond mere hosting - It exercises control over the content - It had actual knowledge of unlawful content and failed to act expeditiously to disable / remove

PRS’ Secondary Claims:

1 Joint tortfeasor

2 Authorising infringement


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PRS v SoundcloudSoundcloud’s defence:• All specific content that SoundCloud is aware of is lawful content.• SoundCloud takes all reasonable steps to prevent infringement of

copyright occurring through use of its platform.• Users undertake the communication of works, not SoundCloud.• SoundCloud neither authorises infringement nor is jointly liable for

infringements committed by users.• Even if it could otherwise be liable, SoundCloud is exempt from

liability as a host and / or mere conduit.• PRS had not properly notified SoundCloud of the locations of any of

the content about which it complained.

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Safe Harbour in the USRondinelli Reilly v. Twitter, Inc. et al (January 2016, Federal court of California, USA)• Reilly claimed Twitter failed to remove infringing copies of her work• Twitter ignored 28 DMCA takedown requests• Reilly demanded an injunction and compensation for the damage sufferd• Claim was withdrawn, most likely settled out of court

• Hendrickson v. eBay, Inc. 165 F. Supp. 2d 1082 (C.D. Cal. 2001)• Copyright infringement claim brought against eBay• Alleged facilitation of unlawful sale of pirated DVDs by:

– providing an online forum;– tools; and– services to third party sellers

• Claim failed because the notice did not comply ‘substantially’ with the DMCArequirements (written statement of good faith and accuracy, identify infringing material)

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Solution: proposal for a new Directive on copyright in the EU (the Proposed DSM Directive, COM(2016) 593) as a core part of the Commision’s broader ‘Digital Single Market’ strategy.

Commission plans to tackle the ‘value gap’, and unfair practices in the remuneration of rightsholders:The ways in which copyright protected works are created, produced distributed and exploited have changed.

Current legislative framework not fit for purpose: new business models; consumption patterns; and cross-border uses.

Desire to avoid fragmented digital market

Desire to clarify the role of online services in the distribution of works.

Facilitate new uses in research and education.


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2 Timescales to implementation

Prior to today…Commission delivered its proposal on 14 Sep 2016.

Proposal formally presented to the Competitiveness Council on 29 November 2016.

EP Committee on Legal Affairs (JURI) published its Opinion on the proposal on 2 March 2017.

European Economic and Social Committee (EESC) adopted its Opinion on the proposal on 21 April 2017.

European Commission delivers Note to national delegations on feedback received on the proposal on 27 April 2017.

EP Committee on Civil Liberties Justice and Home Affairs (LIBE) published its draft Opinion on the proposal on 22 May 2017.

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2 Timescales to implementation

The proposal will go through the Ordinary Legislative Procedure:1st reading in the European Parliament (expected end of this year): here the Commission's proposal will be examined and may be adopted or amended.

1st reading in European Council: here the Council may decide to accept Parliament's position, in which case the Directive will be adopted , or it may amend Parliament's position and return the proposal to Parliament for a 2nd reading.

European Parliament and Council then have two further opportunities each to read each other’s position and approve/reject/amend it.

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3 Key provisions

Article 13 – Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users.

Articles 14 and 15 - Transparency obligation and contract adjustment mechanism.

Article 11 - Protection of press publications concerning digital uses.

Articles 3, 4 and 5 – Mandatory exceptions.


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3 Key provisions

Article 13:

Who is caught?“Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users.”

What are the obligations? ISSPs will be required to agree licensing deals with rights-holders or implement “effective content recognition technologies” (i.e. content filters) to prevent the availability of those works.

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3 Key provisions

Article 13:How will the proposal interact with Article 14 of the E-Commerce directive (ISSP hosting exemption)?Potential conflict with relevant European case law:• Scarlet v SABAM• SABAM v Netlog

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3 Key provisions

Article 14: what are the obligations?Rightsholders to receive regular and detailed information about how their works are being exploited including:(i) methods of exploitation(ii) revenues generated, and(iii) payments due


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3 Key provisions

Article 15: Contract adjustment mechanism“Member States shall ensure that authors and performers are entitled to request additional, appropriate remuneration from the party with whom they entered into a contract for the exploitation of the rights when the remuneration originally agreed is disproportionately low compared to the subsequent relevant revenues and benefits derived from the exploitation of the works or performances.”

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3 Key provisions

Article 15: Contract adjustment mechanism

Etymology of law stems from Germany:The German Copyright Act provides that any license agreement needs to specify reasonable remuneration for the author. The author may request an amendment providing for such remuneration if not included. The author may claim additionalremuneration if a work has unexpected success irrespective of whether that success was predictable or not.

These provisions can not be waived or contracted out of. The provisions will also apply if the license agreement would have been governed by German law but for the choice of law in the agreement and, alternatively, if the object of the agreement are significant exploitations of the work within Germany.

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3 Key provisions

Article 11: Protection of press publications concerning digital uses A new ancillary right for publishers of press publications. Lasts for 20 years.To license the reproduction and making available of their news publications online.


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3 Key provisions

Articles 3, 4 and 5: Mandatory exceptions

Member States must implement exceptions for: “Text and data mining”

On-site or online education purposes

Preservation of cultural heritage

No “freedom of panorama” exception

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4 Outcomes

What happens next?

Under the Ordinary Legislative Procedure, the proposed legislation is a constantly moving target

We are currently at committee stage, with each offeringits own opinions and amendments (close to 1000)

Disproportionate investment into lobbying from both sides due to the high stakes involved:• Google: “We believe there’s a better way. Innovation and partnership – not

subsidies and onerous restrictions – are the key to a successful, diverse and sustainable news sector in the EU, and Google is committed to playing its part.”

• IFPI: The proposal is “an opportunity to champion Europe's creative sectors and their digital growth” and “recognises the need to properly enforce and protect IP rights in Europe in order to allow the digital market to grow.”

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Stephen EdwardsPartner


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Direct Application

Requires a provider of online content services to a subscriber in an EU Member State to ensure the subscriber can have access to the same service when temporarily present in another EU Member State

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Online content services caught by the Regulation are those:Provided on a portable basis within the Member State of residence

Whether linear or on-demand

Provided against payment of money or without payment of money provided the subscriber’s Member State of residence can be verified by the provider.

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The Portability RegulationThe provision of and the access to and use of an online content service is deemed to occur solely in the subscriber’s Member State of residence

Contractual restrictions contrary to this are overridden

But holders of rights may require the service provider to make use of effective means to verify that a subscriber is only temporarily present in another Member State

The effect of Brexit


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Draft Regulation on Broadcasters’ Online Services and Retransmissions of Television and Radio ProgrammesStephen Edwards

Partner

Reed Smith LLP

Draft Regulation on Broadcasters’ Online Services and Retransmissions of Television and Radio Programmes

Published in September 2016

Broadcasters’ online services:Applies the “country of origin” rule to ancillary online services: typically, these are broadcasters’ catch-up services

Concerns have been expressed about the potential negative impact of this on programme sales

Broadcasters are not required by the draft Regulation to make their online services available in other EU states, nor are programme distributors prevented from imposing contractual restrictions to prohibit cross-border provision

Retransmissions of television and radio services:Extends the mandatory collective rights-management regime created by the Cable and Satellite Directive in relation to cable retransmissions so as to apply to online retransmissions of broadcasts, but not to internet retransmissions

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Questions


Notes

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HONG KONG

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