Laurence Kaye on Digital Media Law

Copyright exceptions, 'Kindle Worlds', fan fiction and IP

Dear reader

The copyright world is hotting up. The Government has just published the first batch of draft legislation to change copyright exceptions for private copying, parody, quotation and
public administration. You can find details here and I'll be doing a post in the next day or so.

Meanwhile, I've been meaning to do a post about Kindle Worlds, which is important both as regards fan fiction and, more generally, about the world of derivative works.

Fan fiction - new stories inspired by popular books, shows, movies, comics, music, and games - isn’t new. The worldwide publishing phenomenon ‘Fifty Shades of Grey’, by English author EL James, started life as fan fiction and features the main characters from the ‘Twilight’ books.

So Amazon’s recently announced ‘Kindle Worlds’, its new fan fiction platform, is capitalising on a well-established genre rather than inventing a new one. Amazon have started by doing a deal with
Alloy Entertainment, Warner Bros’ book packaging division, covering three book/TV series crossovers, ‘Gossip Girl’, ‘The Vampire Diaries’ and ‘Pretty Little Liars’. The deal enables Amazon to licence fanfic authors to write new stories based on the characters and themes featured in the ‘Worlds’ created by the authors of the original works.  Other World licensors will be added. Fanfic authors get 35% of net revenues, after royalties are paid to the World licensors, from Kindle sales.

In Kindle Worlds, Amazon Publishing stands as publisher at the centre of the fanfic universe. It takes licenses from the authors or other rights owners of the ‘Worlds’. Whilst World licensors no doubt retain the underlying copyrights and trademarks, Amazon gets worldwide publication rights in
the new fanfic works via an exclusive licence from fanfic authors over thestory and new elements they create. I would guess that rights in those newelements accrue back to the World licensors, subject to Amazon as publisher being able to license them to other fanfic others to create new works. That way, the ‘Worlds’ continue to grow.

I think ‘Kindle Worlds’ is important for at least three reasons. First, it’s a further advance by Amazon into the publishing world and demonstrates how it’s able to leverage its technical platforms and ‘end to end’supply chain from author to platform to consumer device to create additional revenue streams. No wonder that at one of the publishing industry spectrummajor players in the publishing industry are thinking hard about merger inorder to gain scale and at the other end niche players are looking at creating vertical sectors in which they compete through specialisation.

Second, whilst fanfic will continue outside Amazon’swalled garden with its proprietary technology, Kindle Worlds will also see that garden grow. For many consumers that’s great and the convenience of the ‘one click’ experience with Amazon outweighs any downsides for them by being tied in
to the Kindle platform. But others will think hard about that and wonderwhether they want their content available on any device, any time.

Third, Kindle Worlds is a great example of how intellectual property and derivative works have moved to the heart of the publishing business model, driven by the reader/consumer.  This goes well beyond fan fiction. Intellectual properties in literary works, including underlying themes, plots and characters, together with formats, brands, software and online communities,together form the heart of the publishing ecosystem. A publisher may firstpublish a story as a print or digital book, but that may soon be followed – or even preceded – with a partnership for a full or short form television
programme which is broadcast or available as a ‘VOD’ services, a computer game, live event or in a variety of other formats.

In this ‘hub spoke’ world, a clear and effective IP strategy to manage rights across a range of works and multitude of platforms is not just a part of the legal function, it’s at the very heart of publishers’
business models in the 21^st century.

Have a good week

Laurie Kaye

 

Copyright Meltdown in Supreme Court?

Dear reader

Traditionally the reproduction right - covering copying a work - has been the cornerstone of copyright law. The scope of that right in the digital age has been called into question in the Supreme Court's decision in Public Relations Consultants Association Limited v. The Newspaper Licensing Society.

The Court looked at whether clients of media monitoring agency would need a licence to view a media monitoring report on screen. If they downloaded it to their machines or or printed it they clearly would. But, said the Court, simply viewing a web page was just like reading a book and it's never been an infringement to view or read a copy of an infringing copy in physical form.

Of course, a service provider like a media monitoring agency would need a licence to make press cuttings available online for its end-users. But if the growth of 'cloud-based' services renders redundant the notion of download, the end user's "consumption" of a work by its temporary display on screen will form an economically significant part of the service which, unless the European Court of Justice is in disagreement, will not require a licence. 

True, even if the end user doesn't need a licence merely to view on screen, the content owner could still seek argue in its negotiations with the service provider (SP) that there's value to the SP in being able to make the work available to its end users, including on-screen use, and so the licence charged to the SP should reflect that. But you can see the counter argument.

 The Supreme Court decided that article 5.1 of the Copyright Directive "...extends in principle to temporary copies made forthe purpose of browsing by an unlicensed end-user." So this is a really important issue, and hence the Supreme Court's decision to refer the matter to the European Court, which has already looked at this point in (Case C-5/08) Infopaq International A/S v. Danske Dagblades Forening (“Infopaq I”) [2010], (Case C-403/08) Football Association Premier League Ltd v QC Leisure and Others and (Case C-429/08) Karen Murphy v Media Protection Services Ltd (“Premier League”) [2012] 1 CMLR 769; and (Case C-302/10) Infopaq International A/S v. Danske Dagblades Forening (“Infopaq II”), 17 January 2012.

In thinking about the outcome of that referral, I'd like to add a couple of comments, including some personal recollections. I took part in the negotiations of the Copyright Directive - 2001/29/EC. In particular, I recall a meeting between representatives of the large Telcos on the one hand and rights holders on the other some time around 1999 or 2000. The focus was Article 5.1 of the Directive, the one on which the Supreme Court focused in this case. It was like two nations each struggling to understand the other's language. The Telcos were concerned about being sued for copyright infringement because technical, temporary copies of works being carried on their networks were being made in their routers and server caches.

It was these these types of technical, temporary copies without independent economic significance which were the focus of Article 5.1 of the Directive. It carves out of the reproduction right "temporary acts of reproduction which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary; or (b) a lawful use."

As I recall, the majority of the discussions around Article 5.1 concerned these kinds of temporary copies made by the Telcos' networks and machines. True, the reference to "lawful use" pointed to other, "off the network" technical, temporary copies such as cached copies in a computer's memory which were incidental to some other "lawful use" e.g. prior to a download. But this was not the central point and the notion of "lawful use" was seen in the context of technical copies which happened in the course of some other licensed activity.

True, the Supreme Court has said that European case law has interpreted "lawful use" more widely. Effectively, the Court said that if someone does not need a licence to view a work on screen, then technical copies made the user's machine are "lawful". The Court said that "..the far broader meaning given by the Court of Justice...to the concept of "lawful use" makes it impossible to confine the scope of the exception to the internal plumbing of the internet. Once it it accepted that article 5.1 extends in principle to temporary copies made for the purpose of browsing by an unlicensed end-users, much of teh argument which the courts below accepted unravels."

Getting the ambit of the exemption in Article 5.1 is of fundamental concern for everyone in the digital value chain. It should also be remembered that the debates around Article 5.1 should be seen in the context of the exemptions from liability for 'mere conduite', 'caching' and 'hosting' in the E-Commerce Directive which was going through the legislative process at the same time.

The issues here are complex and what's important is that we 'look through' the technology to get a uniformly agreed and accepted view of preciselly what "lawful use" means in the world of digital copyright. We must get the balance right. Clearly, no-one seeks to turn internet users into copyright infringers. Equally, it's important that there isn't a legal hole in digital content services.

Have a good week,

Laurie Kaye

The ten overriding themes of the 'digital shift' (concluding)

Dear reader

I owe you an apology for my radio silence. But, along with my colleagues Mailin and Sherif, I've been busy with my own 'digital shift', following my firm's amalgamation at the beginning of the month with national law firm Shoosmiths where we've established a publishing and digital media team. Details here. I'm pleased to say it's going really well and our new collegues have been tremendously supporting and welcoming.

The 'digital shift' doesn't stand still. In just a couple of weeks, we've had some important US Court decisions on the scope of the US 'first sale' doctrine (Kirtsaeng v. John Wiley & Sons & Capitol Records v. ReDigi), more of which in another post. We also about to see the details on the European Commission's settlement deal with Google following its investigation into its search business.

Tomorrow, I'll be at the 'Digital Minds' conference and on Tuesday I'll be at the London Book Fair where digital is, of course, high on the agenda. As well as looking around and catching up with all you 'movers and shakers', I'll be running a seminar on Tuesday April 16th at 10 am with Neil Blair of The Blair Partnership and Pottermore and Eric Huang of Penguin on the theme of "21st century publishing - multi-platform, IP-centric" (details here) and at 2:30pm that day I'm a panel member on "What should authors, agents and rights' professionals know when making deals with film and television companies in the brave new digital world?" (details here).

So I hope to see some of you at one of these events.

Anyway, as a result of time passing, I didn't quite get to the end of my 10 themes of the 'digital shift'. As a refresher, you can find a list of them, together with the first 7 themes, here. So I thought it was time to complete the list. I'll keep it brief and just focus on the big picture.

T8: It’s a mobile economy

 The continuing growth in mobile devices – tablets and smartphones in particular – means that mobile commerce and mobile advertising will be an increasingly important part of the digital economy’s landscape and in which it will be vital to create the right advertising products and business models for mobile.

 

T9: Everyone’s in the technology business

I remember a meeting some time in 2000 - (remember Y2K and how the world's IT infrastructure was going to collapse on the chime of Big Ben at 00:00?) - between the representatives of the ISP industry and and the creative industries discussing the Copyright Directive.  The topic under discussion was the copyright exception that the ISP's wanted to ensure that copies of copyright works cached on their servers could not be treated as acts of reproduction needing the copyright owner's permission.

The meeting was a great example of how the worlds of intellectual property and technology lacked a shared vocabulary and vision. That's changing. Slowly. But the drive to collaboration and sharing through machine to machine communications and API's is relentlessly driving the two together. 

The media, entertainment and information industries are now all in the technology business, including learning to borrow programme and content development techniques  like 'agile' from the software industry.

 

T10: It’s a borderless world

This is our number one challenge. National laws, but A global medium. We see this every day. How do we create an effective regulatory framework for the press in the UK when Blogs publish the same content overseas? How does a digital platform based in country A set its standards for data protection compliance when it targets consumers on an international basis with EU and non EU laws often setting different requirements for compliance for user consent?

The answer, of course, is a slow but inexorable move towards harmonised standards of 'hard law' (e.g. through a forthcoming revision to EU's data protection legal framework) and 'soft law' in the forms of voluntary codes of practice and an increasingly international outlook of the Courts.

Have a good week,

Laurie Kaye

The 10 overriding themes of the 'digital shift'

Dear reader

In my last post, I looked at the ‘digital shift’. In this post, I'm going to list the ten overriding, interlinked themes which characterise this shift and shape digital media’s legal agenda. I'll also describe the first 3 themes. I'll look at the remaining themes in my next two posts. In future, when I blog about a new case or legal/business development, I'll 'tag' the post with the relevant theme(s) so that, hopefully, we can continue to see the digital wood for the trees.

So here are the themes:

T1: Digital disruption in the value chain

T2: Being IP centric, platform agnostic

T3: The rise and rise of social media

T4: The digital citizen/consumer calling the shots

T5: Mind the [digital] platform

T6: Collaboration is the name of the game

T7: Consolidation & Fragmentation

T8: It's a mobile economy

T9: Wer'e all in the technology business

T10: It's a borderless world.

I'll now turn to the first three:

T1: ‘Digital Disruption’ in the value chain

Digital disruption is a fact of digital media life. The disrupters are everywhere.

They’re new players, often ‘born digital’ businesses, which enter an industry and create an entirely new business which didn’t exist before e.g.a new consumer products business which use ‘the crowd’ as their ‘R&D’ division to identify new inventions and product or a new entrant like anobii, a social platform for book recommendations.

 They’re also new players who enter an industry and perform an an existing activity in the value chain better and/or differently to existing incumbents and in the process displace them.‘Kobalt’ is an example, a new online platform which offers a service to streamline royalty payments to artistes.

But ‘digital disrupters’ are also existing players who reinvent themselves and in the process even cannibalise part of their business in order to create a new business and income stream e.g. Getty’s ‘istockphoto’ service.

So what’s on the legal agenda with TI? They include the legal structurees which underpin business models and the contracts and business relationships which implement them; applying existing laws to new models e.g. when is a ‘sale’ of a digital work a licence or vice versa? (See here); & watch out for developments in the US case of Capitol Records v. ReDigi which again examines whether a digital file is a licence or a digital good.

 T2: ‘IP Centric, platform agnostic’

Increasingly, content owners are “getting” the fact that they need to take a ‘360 degree’ approach to their intellectual property (IP) in a multi-platform world, multi-format world. For instance, a number of leading publishers have recently created new roles with responsibility to transition publishers into being multi-platform organisations. Often, the people appointed come from outside the industry - games, television etc. - with cross-platform experience.

At the heart of this '360 degree’ approach is a ‘format/platform neutral’ approach to IP and new products and services. In turn, this demands skill in being innovative with IP creation and exploitation, building new business models etc. It also puts IP rights, especially copyright and trade marks (brands) at the heart of the business.

T2’s legal issues include the role of copyright and the copyright reform agenda (Hargreaves etc.), including proposed changes to copyright law. The bigger picture is how copyright continues to maintain the balance between rights holders, users and intermediaries. This is a dynamic area. Only last week, Germany's Parliament have introduced a new 'neighouring right' which gives print publishers the right to licence their web content. This is a hugely significant development.

More broadly, IP covers a whole range of rights including those in brands, designs and patents. These can be used both offensively - see in the ‘patent wars’ in the digital space and defensively. No creative company can be without an IP strategy

T3: The rise and rise of social media

It's already a truism to say that social platforms such as Facebook, Linked-In, Twitter and Pinterest are playing an increasingly significant role n business. For some, these platforms may simply be relevant from a marketing and PR perspective e.g. a company having a FaceBook page to build engagement with its customers.

For others, especially those in the media and information sectors, these social platforms are becoming increasingly integrated into their business. For instance, digital services provider ‘Soundcloud’ are embedded within FaceBook so that FaceBook users can launch sounds on SoundCloud rom within Facebook. This integration process is two way – Facebook is also embedded into these services.

So what are the ‘T3’ legal issues?  Linked to social media, but not confined to it, is the whole issue of tracking consumers’ behaviour online and using this data in an aggregated way for marketing and
advertising purposes. This brings us to the heart of the debate about privacy and data protection.

Also, the presence of celebrities, public figures and others on social media such as Twitter makes reputation management an increasingly important area, which from a legal perspective brings defamation into the picture along with the laws and regulations governing data protection, consumer protection and marketing and advertising.

I'll continue this theme in my next post.

Finally, if you enjoy my blog post, please share it with colleagues and anyone else you think may encourage them, with a suggestion that they might like to subscribe.

Have a good week

Laurie Kaye

 

Laurence Kaye's digital shift

Dear reader

On the move

I wanted to let you know - in case you hadn't heard - that the Laurence Kaye team - Mailin Bala, Sherif Malak and I -  is in the middle of its own shift. As from April 2, we're joining forces with national law firm Shoosmiths to create a specialist publishing/digital media team, backed up by the firm's broad commercial offering.

So it's very much 'business as usual' for us and the clients we're bringing, but with the benefit of having lots of clever - and good value! - lawyers to deal with all the legal issues outside our core areas on which our clients need legal advice, including areas such as corporate and business sales, financing, employment, competition and dispute resolution.

There's a press release about our move here. If you want to know anything more, please drop me an email at laurie@laurencekaye.com or send me a message via Linked-In.

But have no fear, my blog posts will continue without change, though apologies if they're slightly more sporadic than as usual during this period of change.

My next post, on the overriding themes of the 'digital shift', should be whizzing its way to you in the next few days.

London Book Fair

Also, if you're planning to come to the London Book Fair, I'm running a seminar as part of the LBF's 'Love Learning' programe at 10 am on April 16th (Cromwell Room, EC1) on "21st Century Publishing - IP centric, multi-platform", details here. I'll be presenting along with Eric Huang, New Business/IP Acquisitions Director for the Penguin Children’s Group, and Neil Blair of The Blair Partnership and Pottermore, and well known as J K Rowling's Agent. I hope you can join us. We'll be taking a close look at the new '360 degree' approach needed in publishing today. For those non-regular LBF attendees, you need to register with LBF. You can do so here.

Have a great weekend

Laurie

'IR2' and the Digital Shift

Dear reader 

In my previous post, I wrote that in order to see the wood for the trees in forthcoming legal and regulatory changes and developments, I’d look in a bit more detail at ‘the digital shift’ and then then overriding themes which reflect these complex interactions. This posts looks at that shift.

‘IR2’

The first industrial revolution, which began in the 1750s, lasted for between 80 to 100 years.  The pace of technological change todayencourages us to believe that the 2nd industrial revolution (‘IR2’) will be completed at much greater speed. So if we take the mid-1980s as a starting point, with the emergence of optical disk technologies into consumer markets, you would expect us to be well on the way to completion, 30 years into IR2.

 But we’re not. IR2 is multi-factorial,consisting of developments and changes in technology, law, business models and consumers’ attitudes to copyright, privacy and their use of social media. All of these changes are moving at different speeds, with technology way ahead of the others.  If there isn’t a law which states that that “the pace of change is dictated by the slowest moving part”, there should be.

So let’s assume that 2013 marks an approximate midway point, then it is not unreasonable to guess that we have another 20 years or so to go before the tectonic shifts of IR2 have substantially occurred. On that basis, we are still in a period of flux.

Timing is all

In fact, change seems to occur in bursts of acceleration. For instance, we have seen the rapid emergence of a market for e-books in 2011-2012,preceded by a longer period of around 9 years during which the technology for e-books began to emerge but before the market took off. 

These cycles of impending change and pent up demand, followed by rapid bursts of accelerated change, can lead to complacency (“these changes won’t happen or will only happen much later”) or to over-optimistic projections (“this is all going to happen overnight”).

Both are wrong. The smart money identifies the indicators of change during the ‘impending change’ part of the cycle and makes an informed guess – no-one can precisely predict – about when the trends which are apparent during this part of the cycle are going to burst into market development.  That way, you can be ready to take advantage of these market developments and avoid having to play catch-up.

All human activity is here

The ‘digital shift’ affects all aspects of economic activity.

Certainly, we are seeing how the Web and Mobile connected digital devices, together with social platforms, are transforming the ways we consume and participate in entertainment and information products and services.  But the ‘digital shift’ is also changing the broader world of business and consumer products and services too. New ‘peer to peer’ lending services like Zopa are appearing in the financial services industries. New fashion businesses are being established which sell direct to consumers.  The advertising industry is in the process of re-inventing itself to find new models for mobile advertising that works effectively on tablets and smart phones. Social sites like Facebook and Twitter are emerging as platforms for new services. In the retail industry, the boundaries between physical and online shopping are beginning to blur. Smart phones can be used by customers to get updates on the latest in-store offers and to enhance the shoppers’ in-store experience. The list goes on.

For content owners and producers, the challenge is to avoid dependency. If they acquire their customers through FaceBook or Google, or monetise them through a revenue share with Apple, they have a vulnerable business model in the longer term.  They may start that way but will need to break
one of those dependencies and therefore need a migration path so that they can acquire customers directly or can monetise them through subscription etc.

In my next posts, I’ll look at the  overriding themes of the ‘digital shift’ and 'tag' them with the key legal issues associated with them.

Have a good week,

Laurie Kaye

Seeing the digital wood for the trees

Dear reader

In the world of digital media law, it’s easy to miss the wood for the trees. That’s because the ‘digital shift’ represents a complex set of interactions of ‘multi-track’ and inter-related change - in the law, consumer behaviour and attitudes, organisational structures, technology, traditional supply chains and business models.

This is really well illustrated in the research themes of ‘CREATe’, the cross disciplinary research project launched last Friday in Glasgow by a consortium of Universities. (You can keep tabs on Twitter - #CREATE).

In turn, these shape the many areas of law under review, nationally, internationally and globally. Adjustments to exceptions to copyright law; the role of intermediaries in enforcing the law (e.g. via the Digital Economy Act) and indeed for their own roles and legal responsibilities as platforms v. content distributors; revisions to data protection law to reflect the flows across national boundaries into and out of the ‘Cloud’.

And often it's more a case of fundamental re-think. For instance, As Dominic Grieve commented at a recent lecture, the tendency of Jurors to use the Web can change the evidence on which they base their decisions.

These complex interactions become even more complex because, in the words of the Bard, “one man in his time plays many parts’. You and I are simultaneously citizens, consumers, authors, creators and publishers. Intermediaries can be hosts for other people’s content but can also offer their own services.

When we come to legal and regulatory policy, the real debate has moved beyond a binary ‘good’ v. ‘bad’, ‘copyright maximalists’ v. ‘copyright minimalists’. The challenge now is to create the right legal and policy framework which reflects a world of ‘complex interactions’ in which real innovation is happening right across the entertainment, information and e-commerce indusries. We must encourage and sustain this. This really matters because the creative and cultural industries are one of the ways that the UK economy can really grow and create jobs and opportunities for young people.

Throughout 2013, I will be looking at some of these key policy changes, such as the envisaged changes to UK copyright law and, at a European level, Data Protection law. I will also examine the increasingly varied and complex world of platforms, from the ‘digital gorillas’ to innovative new platforms like ‘Movellas’. In order to see the wood for the trees in forthcoming legal and regulatory changes and developments, in the next few posts I’m going to look in a bit more detail at ‘the digital shift’ and the overriding themes which reflect these complex interactions.

Laurie Kaye

In Praise of the UK's Creative Industries

Dear reader

I spent Friday in an almost sunny Glasgow at the launch of CREATe, the Centre for Copyright and New Business Models in the Creative Economy, which is a partnership of 7 UK-based Universities which will also have industry input, aimed at helping the UK's cultural and creative industries thrive and become innnovation leaders within the global digital economies. I'm delighted to be a partner.

It was a brilliant day. Whilst the regulation, management and enforcement of copyright forms the framework within which these industries operate, the big theme of Friday's launch was collaboration, sharing and innovation across the entertainment and information industries and in cultural institutions through innovative new business & organisational models. 'Digital/physical' hyrid models, Freemium and crowd-funded models (e.g. Knowledge Unlatched), new live events broadcasting services (e.g. Quipu TV) and even opportunities to reinvent the retail experience to use in-store technologies and content to revive the High Street - the day was full of inventive case studies. And there were many more.

Anyone who spent the day at CREATe's launch at the Lighthouse, Scotland's Centre for Design and Architecture,would have found the US West Coast entrepreneurial, 'can do' and creative spirit alive and well on Glasgow's West Side.  

The 'digital shift' is multi-dimensional and CREATe's inter-disciplinary research programme reflects that, with researchers in law, business, economics, technology, psychology and cultural analysis, who will build an evidence base and look at themes and players across the value chains from individual creators to SME's, intermediaries, corporates, cultural institutions and, of course the individual in his or her various roles as citizen, consumer, user and creator.

The buzz evident throughout the day at CREATe demonstrated that the UK does not need to look to the US West Coast or anywhere else for inspiration. It's here, right across the UK from the Lighthouse in Glasgow to the Digital Hub in Brighton and all points in between. It's in every entertainment and information industry and beyond. It's And it's not confined to start-ups. For instance, many innovative big publishers are making their content accessible to developers to create new products via APIs.

As CREATe notes, the UK has probably the largest creative sector in the world relative to GDP, accounting for over 6% of the overall economy and contributing around £60b p.a.

Of course, policy has a role to play. Aspects of copyright law, including exceptions, are going to be updated. Giving consumers and citizens choice about the use of their personal data through data effective and easy to implemen data protection law in a world of cloud-based, global services is a challenge. Competition law has a vital role to play in ensuring a level playing field between the 'digital gorillas' and other players in the value chains of our creative industries.

As industry silos crumble as the digital transition speeds up, so does the need increase for collaboration and communication between policy makers, the creative communities, technologists, academia and business. If we get this right, that 6% of UK GDP will rise and we'll create more jobs for young people.

There are definitely many in Government on both side of the Border that 'get' this. So let's continue to encourage Government to bang the drum for our creative industries at the very highest level.

Finally, well done to the organisers of CREATe and good luck with a great project.

(You can follow on Twitter #CREATe).

Have a good week. 

Laurie Kaye

UK Copyright - exceptions which prove the rule?

Dear Reader

So the Government's decided to fill Christmas stockings with its response to its consultation on copyright exceptions. It would herald major changes to UK copyright law. Copyright has always been about the balance between rights and exceptions. But the big question is whether these proposals have got it right or do they threaten to undermine some emerging digital content business models?

That's a question I'll try and answer in upcoming posts. But, in the meanwhile, here's a quote from the IPO's Response, published yesterday. It also needs to be read in conjunction with its Impact Assessments on these proposed measures.

In the meanwhile, enjoy the festive break and let me wish you and my other readers a very happy holiday season and a healthy, prosperous and creative year ahead. It's going to be a busy one.

So here's the Government's own summary - their words, not mine:

Permitted act	What will the Government do?
Private copying	Introduce a narrow private copying exception, allowing  copying of content lawfully owned by an individual (such as a CD) to another  medium or device owned by that individual (such as a mobile phone, MP3 player or private online storage), strictly for their own personal use.
Education	Introduce a fair dealing exception for non-commercial  use of copyright materials in teaching. Expand the type and extent of copyright works that can be copied by educational establishments. Expand the exceptions to enable distance learners to access educational materials over secure networks. Retain existing licensing arrangements for recording broadcasts and photocopying.
Quotation	Introduce an exception permitting fair dealing with quotations, as long as sources are identified.
Text and Data mining	Create a copyright exception to cover text and data  analytics for non-commercial research within certain restricted limits, which  will protect publishers from large-scale copyright infringement.
Parody	Introduce a fair dealing exception to allow limited copying for parody, caricature and pastiche, while maintaining current system of moral rights.
Research and private study	Change the scope of copyright law to allow copying of  all types of copyright works for non-commercial research purposes and private  study. Introduce an exception to allow educational institutions, libraries, archives and museums to offer access to all types of copyright works on the premises by electronic means at dedicated terminals for research and private   study.
Disabilities	Broaden the scope of the current disability copyright exceptions to include all relevant types of disability and copyright work, and simplifying the processes and procedures related to these exceptions.
Preservation	Enable libraries, archives, museums and galleries to make preservation copies of all classes of work.
Public Admin. and reporting	Amend the current copyright exception for public administration and reporting to permit the publication of relevant third-party documents   online.
Other permitted acts	Current position to be maintained.

Reconciling national laws and legal jurisdictions in a borderless, networked word.

Dear reader

In my last post, I said I'd look at more detail at this issue. If you were an Internet pioneer, you'll remember the adventure book language of 'Cyberspace' and the Wild West in the early 1990's, in which the Net/Web was seen as a parallel universe beyond legal and other norms. But there's been a slow but steady theme emerging that, at least in legal terms, 'online =offline' is a more accurate starting point for cyberlaw analysis, a point hammered home by the recent slew of libel claims arising from tweets on Twitter.

The issue of jurisdiction

Sure, the debate about the enforceability and acceptability of certain aspects of intellectual property and other legal rights as they apply online rages on. But an issue of equal importance is the location of the legal jurisdiction where rights can be enforced. In the online world, there is a cross-border, continuous chain of transmission. Content is copied and distributed across multiple legal jurisdictions on its journey from the browser request, across multiple servers until it's served up to the user's device.

So if that content is illegal or infringing content, where does the rights owner go to enforce those rights? And for rights clearance purposes, which national rights need to be cleared?

In short, the hunt for legal jurisdiction over content online has travelled from "it's nowhere" >"its everywhere" > to "its somewhere". In this post, I examine the rules which determine where that "somewhere" is. As we'll see, under European law it's the country where the recipient computer/device is located assuming there's some targeting of the public there.

The legal framework about jurisdiction is the so-called Brussels Regulation which says that the general rule is that you sue someone where they are domiciled. (So, in the case of a company, it would be where that company was established). But there's an exception for 'torts, including intellectual property rights. In that case, you can sue "where the harmful event" occurs. So with creative content which is travelling from server to server across legal jurisdictions, where does the "harm" take place?

The case

That was the point examined in detail by the European Court of Justice (ECJ) in Football Dataco and others v Sportradar GmbH and another, Case C-173/11, 18 October 2012. The legal right in question was the often misunderstood and often overlooked database right (aka sui generis right), which was created by European law in the Database Directive. The Directive harmonised the rules in Europe about copyright protection for databases but also introduced a new right - the database right - to protect investment in database content. (You can read a guide I wrote about the Directive here).

In short, the database right gives the owner of that right - the database producer or their successor - the right to prevent others from "extracting" or "re-utilising" substantial parts of database without a licence.

Case details

Football Dataco Ltd (Dataco), a UK company, gathered and exploited data about English Premier League football matches through its 'Football Live' database available via the Web. Sportradar GmbH has a competitor service - 'Sport Live Data' - available via its betradar.com website which was hosted on servers in Germany and Austria. UK-based customers were using online betting services provided to them by UK companies who were taking a data feed from Betradar. Dataco alleged that Sportrader had 'extracted' data from its 'Football Live' database without permission.

So the question for the ECJ was this: where was the infringement of the database right taking place? In Germany and Austria where the servers were located, in the UK where the UK customers were using the data or both? (To be precise, the question was whether Sportradar was jointly liable for acts of infringement of the database right by users in the UK who accessed the data).

ECJ's decision

The ECJ decided two things about the Database Directive. First, that sending data that has previously been uploaded from a database protected by the sui generis/database right from a web server to the computer of another person for the purpose of storage in that computer's memory and display on screen, is an act of re-utilisation by the sender (Sportradar in this case).

On the issue of jurisdiction, the ECJ decided that that act of re-utilisation takes place at least in the member state where the receiving computer is located - in this case the UK - as long as there is evidence that the sending discloses an intention to target members of the public in that member state. That evidence about "targetting" must be considered by the national court. Relevant factors in this case might include the fact that Sportrader made agreements with companies which offered betting services to the UK public; the fact that betting companies' websites were in the English language.

In fact, this decision of locating "harm", and therefore jurisdiction, in the "targeted" country is narrower that other intrepretations. The Attorney General had previously given an opinion that infringement proceedings can be brought in any country where an act in the chain of re-utilisation takes place.

Conclusion

This case will not be the last case on the issue. But it does demonstrate that, at least in legal terms, there is growing proximity between the online and offline worlds. In both the physical and digital worlds, "stuff" happens somewhere. And you just have to deal with it.

Have a great week,

Laurie Kaye