Laurence Kaye on Digital Media Law

Of content, technology and copyright

Dear reader

I hope you enjoyed the weekend. We had a walk on the glorious Ashridge Estate today. Highly recommended; good for mind, body of spirit. Talking of which, I'm off tomorrow to the Frankfurt Book Fair. I'm chairing a session on Tuesday at 10:40 'CONTEC' (yes, Content + Technology), on 'Reader rights: exhaustion (of the legal v. physical kind) and digital re-sale'. I have a great panel so if you're there, do drop by.

I also recently penned a piece for 'CREATe' on that favourite chestnut, "Is the current copyright framework fit for purpose in relation to writing, reading and publishing in the digital age?"

Sometimes you just have to go back to first principles. Here's the piece (short answer: "yes, with improved rights management"):

"This is not a new question. I remember taking part in a debate on the same subject in 1994 at ‘Cyberia’, one of London’s original Internet cafes – remember them? That was four years before Brin and Page published their algorithm for Google’s first search engine and nearly ten years before Facebook, Twitter and social media appeared.

 The fact that we are still debating this subject is revealing. Some people take the view that copyright is a dodo, belonging to a ‘read only’ world that cannot come to terms with a world of linking, sharing, mixing and mashing. From that perspective, copyright has been dying a lingering death since the Internet and then the Web first appeared in the early 1990’s.

I reject that view. Copyright is inherently format and platform neutral. Copyright exists in literary, audio-visual, artistic and other works in whatever digital, analogue or other forms in which they are expressed. It is ideas which fuel creativity and innovation. Copyright does not protect ideas, but only their expression.

 Change driven by ‘digital’ - technologies, networks, platforms and tools – is complex and multi-factorial. It affects everything, from the law and business models through to social, cultural and politicalnorms. These changes aren’t synchronised. Technological change outpaces everything. It raises questions for others to answer. Sometimes the law seeks to anticipate or at least keep pace with technological change. In other cases, it is playing ‘catch up’. That’s often the job of the courts. For instance, the ase of creating and re-distributing perfect digital copies of copyright ontent raises questions about how the laws of copyright and free movement of goods and services are reconciled when applied to online marketplaces for re-owned digital content.

 The point is that working through these issues and finding balanced solutions takes time. Perhaps the immediacy and instantaneous nature of online communications makes it hard for us to have atience. The fact that we are still working on solutions in the copyright field doesn’t mean that those solutions can’t be found. Rather, adaptation and adjustment simply takes time.

 I am not complacent nor am I arguing that everything in the copyright garden is perfect. In the UK, a number of changes to copyright exceptions will be introduced, following the Hargreaves Review. At a UK and European level there is a framework in place for orphan works. There are also a number of initiatives to improve rights management, including the Copyright Hub here in the UK. And that highlights the biggest challenge: how to make the management of copyright permissions as easy as ‘click to buy’ when you shop online.

 The copyright framework is fundamentally Darwinian. It never stands still. It is always adapting. Sure some would prefer to dispense with it or to dilute it through ever wider exceptions, compulsory licences and a shortening of the term of protection for copyright works.

 But readers need professional authors of literary, artistic and audio-visual works to create works which they can enjoy in whatever form they want. Copyright is the facilitator of the value chain that exists between authors and readers. For everyone in between, including publishers, their reward depends on the value that their authors on the one hand and the readers on the other perceive them to add. A perfectly Darwinian solution!

 So the copyright framework is and will continue to adapt, whatever new technologies and indeed forms of work. In my view, the real focus of work is not the framework per se but the management of rights, especially through the ‘machine to machine’ communication of rights."

Have a good week,

 

Laurie Kaye
Head of Publishing & Digital Media

Shoosmiths LLP

 

 
  
  
  
  
  
  
  
  
  
  
  
  
 
 
 

 
 
 

 
 

 

 

 

 

 

 

 

Hi again - have a cookie

Dear reader

If you're a regular reader, you may have noticed a slight gap since my last post - July 31st to be precise. That's not good. But I do have some justification. And it wasn't just due to the lovely weather over the summer, when a cool glass of white wine took precedence too easily over another post. I've also been busy, along with my colleagues Mailin and Sherif, integrating my law practice into its new home at national law  Shoosmiths which, I'm pleased to say, has gone really well. Apart from having found some great colleagues to work with, I've re-discovered my table tennis skills, thanks to my colleague Andy who demonstrates admirable skill in countering my fearsome topspin smash with a mean counter-attacking forehand.

But, no, digital media law is not being overlooked. I'm now getting back on track. And talking about tracking, I was speaking at the EASDP Congress in Amsterdam last week on the upcoming changes to Data Protection law (e.g. the 'right to be forgotten'and possible changes to the definition of 'consent' for lawful processing) and the further impact the Regulation may have on the tracking, profiling and targeting of individuals for online advertising and other purposes.  David Worlock, one of the most experienced and wisest digital strategists, asked whether data protection law, present and future, allowed users to knowingly exchange privacy rights in a granular way with advertisers and with others.

At the moment, the nature of that exchange is blurry and still in the early stages of development. Think about the rather clunky way that you as a user give your consent to cookies. When you visit a website, do you bother to click through to understand the 1st and third party cookies that the website  may serve to your computer before you proceed further or do you just get rid of the pop-up box?

The debate about cookies and consent can be very black or white - track or do not track. Interestingly, Google is exploring replacing 3rd party cookies, installed by companies such as ad networks or other parties, but not by the website you're visiting, with the use of a personal identifier. FT reported on this this weekend, and said that this ID would enable internet users to "...adjust a single setting in their browser to determine how much information about them is given to advertisers. But this is not a new approach. Apple blocks cookies with its Safari browser and gives users control over information contained in a single personal ID.

Returning to David Worlock's point, we need the technology to make it much easier for individuals to manage their online identity - or indeed to manage a number of different identities - so that the nature, extent and types of permissions we give to 3rd parties to use and share information about us can be varied according to particular contexts and particular instances.

My next post will be about the current debate about the re-sale of digital content content copyright material. If you're coming to the Frankfurt Book Fair, I'll be chairing a session on that topic at CONTEC. Please drop in to our session if you can.

Have a good week,

Laurie Kaye

Digital copyright and the strange case of the lawful user

Dear reader

If you're a 'legal eagle', you may remember from law school 'the man on the clapham omnibus'. He's the quintessential reasonable person who pops up in the law of tort. In  cases about negligence, the Court uses his (or her) imagined opinion to decide whether a duty of care is owed in a particular situation.

In digital copyright, we've moved from the person on the bus to the 'lawful user'. With digital transmission  of copyright works, this person is becoming really important in copyright but there's an element of mystery about their identity. Like everything about the 'digital shift', it's taking time for the clouds to lift but they will.

Let me give you a couple of examples. The proposed new exception to UK copyright for data analysis  for non-commercial research applies where a person has "lawful access" to a work. The proposed private copying exception allows an individual who has "lawfully acquired" a copyright work to make a further copy for private use.

In the Supreme Court's decision earlier this year in the so-called Meltwater case, the Court decided that making temporary copies of a work in a user's browser to view a work on screen (but not to download or print) fell within the exception to copyright law which was introduced under the Copyright Directive (2001/29/EC) to exempt temporary electronic copies of works made to enable "efficient transmission in an network" (e.g. cached copies) or a "lawful use" of work.

So what is "lawful" in the access or use of a copyright work? The Copyright Directive said that a use should be considered "lawful" where (1) it is authorised by the right holder or (2) the use is not restricted by law. (1) is easy. If the right holder has granted a licence to allow the use, then it's clearly "lawful". The difficulty arises in circumstances where there's no authorisation by the right holder but the use falls within the scope of copyright. Here the issue turns on whether the use is "restricted by law". 

In Football Association Premier League cases in 2011, the European Court of Justice analysed the position regarding the unauthorised viewing of football games in UK pubs using a satellite decoder purchased from Greece. The ECJ said that as the reception of a broadcast and their visual display on a screen in a pub - a "private circle" -was not restricted by copyright, the use was lawful. So the fact that the use fell outside the ambit of copyright meant that it was not a use was not restricted by copyright. As such, the issue of authorisation did not arise.

But what about the situation where (1) the work is not authorised but (2) its use falls within the scope of copyright e.g. making an on-screen copy? Here, the issue of whether the use is lawful will depend on whether the use is covered by an exception. But as we've seen from the forthcoming UK copyright exceptions, they only apply where the use is lawful or the copy has been lawfully acquired.

Clear as mud? In a situation where a work has been licensed for use A, and the user then seeks to use it for use B which is not expressly licensed but is covered by a copyright exception, it's clear that use B is "not restricted". But where the work has not been licensed at all, it's not so clear.

The conclusion I draw is that authorisation through licences is the right route. Well drawn licences will be "exception+". In other words, the scope of the licences will cover acts which require authorisation and those which are not restricted because they fall within an exception. In the digital world, attaching and communicating permissions is essential.

Have a good week and, if your vacation is soon, enjoy!

Laurie Kaye

 

Copyright exceptions - beware the law of unintended consequences

Dear reader

You'll recall that Professor Hargreaves' Review recommended two areas for change - copyright licensing and copyright exceptions. On licensing, there are the proposed schemes for orphan works licensing  and  extended collective licensing (ECL), the framework for which is in the Enterprise & Regulatory Reform Act 2013.  This isn't likely to be before 2014. The Govermnent  has published a FactSheet here.

But the process of overhauling copyright exceptions in the UK's Copyright, Designs & Patents Act, which started with implementation of the EC Copyright Directive of 2000, temporarily gathered - then lost - momentum with the 2006 Gowers Review, re-started with the 2011 Hargreaves Review is now once again on the move. On June 7, the IPO published the first pieces of draft secondary legislation for technical review until July 17 - not long!. They deal with exceptions for private copying, parody, quotation and public administration. The draft legislation can be found here. Draft legislation for  the remaining exceptions will follow shortly.

In 'Modernising Copyright', its response to the Hargreaves Review, the Government accepted Hargreaves' proposals to update copyright exceptions in nine areas - private copying, education, quotation, text and data mining, parody, research and private study, disabilities, preservation and public administration and reporting.

Whilst updating certain copyright exceptions may make sense, the devil is in the detail. What makes the stakes so high is that the 'digital shift' means a move from the sale of physical product, including creative content on fixed digital media like DVSs, to the grant of a licence. There is no exchange of physical goods in a streamed or rental service. So great care has to to be taken to avoid the law of unintended consequences with copyright exceptions because they remove the need for a licence to do the things they cover. 

I've got the following immediate reactions to the drafts.

My first comment arises from the piecemeal publication of the draft legislation. It's clear that the Government wants to avoid a 'domino' effect i.e. if the Government published all the changes in a single statutory instrument, all of them could fall if the consultation shows that they got the drafting wrong on just one. So they're dealing with each exception on a case by case basis, each with their own statutory instrument. That approach is understandable. But that makes the consultation really difficult if they're not all published at the same time. For instance, to get the full picture, I want to have the proposed changes for research and private study, quotation text and data mining and parody 'side by side' so that I can see their combined effect.

My second comment relates to the issue of 'contract override'. The proposed exceptions for parody, private copying and quotations all contain a provision which would make unenforceable any provision in a contract which purported to prevent or restrict the doing of something which is permitted under the exception. On the face of it, it is a reasonable proposition to say that if a particular use of a copyright work is permitted under an exception, a term in a contract (e.g. between a content provider and a user), should not be able to take away from the consumer what the law has said that he or she may lawfully do.

But beware the law of unintended consequences. Take the proposed new exception which will allow use of a quotation from a work providing (amongst other conditions) it is 'fair dealing'. This exception is not a binary "yes it's ok" "no it isn't" choice. Fair dealing imports tests about the extent of use that's been made, whether it's for a rival or competitive purpose and about proportionality. So a contract term won't be written to say "you - the user - can't use quotations" but it is likely to set out what the provider regards as reasonable and what is not. So this 'contract override' does not create contractual certainty. If anything, it muddies the water. And does it really give the user/consumer added protection? I'm not sure that it does. I think the practical solution, which is one that I think industry shares, is to develop the right licensing solutions which accomodate exceptions i.e. are 'exceptions +'. So I'm not convinced on this change.

My third point relates to 'lawful copies'. The notion that the exercise of copyright exceptions applies only to copies etc. of works which are lawful copies is sometimes expressly referred to in existing UK copyright law and otherwise may be implied. So  the proposed exceptions for private copying and quotation, although not parody for some reason, both introduce the notion of 'lawful'. So the private copying exception allows the consumer for non-commercial purposes to make a further copy for their private use provided it was "lawfully acquired". The proposed exception for quotation only applies to works already "lawfully" made available to the public.

However, as the recent referal to the European Court of Justice by the UK Supreme Court in the Meltwater case showed - see my blog post here - there is still legal uncertainty about what constitutes a legal copy in the online world. That is deeply troubling if we're about to introduce further exceptions and needs urgent clarification.

Copyright exceptions may need to reflect the realities of digital life. But the devil is in the detail. In a world in which our creative industries are one of the few in which we are world leaders, and where increasingly the transaction between provider and consumer is a licence not a sale of goods, the stakes are high here. We cannot afford to rush the process of amending the law. If we do, and make mistakes along the way, in the long run the losers will be consumers and users as well as creators and distributors. The only ones laughing will be those in whose interests it is to have a weakened UK copyright framework.

Have a good week.

Laurie Kaye

 

 

 

 

 

 

 

 

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

 

Digital media + big, smart open data

Dear reader

I attended the recent FT Digital Media Conference 2013. As ever, it was full of useful insights and I highly recommend viewing the sessions which are available on demand here. Mostly, it was about incremental change. There were lots of stats and discussion about the year on year growth of digital as a % of media businesses, the proliferation of VOD platforms on TV and mobile, the presssure on advertisers to integrate their ads into content on games and other media to keep viewers' attention, the ongoing challenge for newspapers to monetise their content and generally for traditional publishers and others to transform their existing business models. According to a couple of speakers, digital is now 30% of media businesses and Martin Sorrell of WPP said that 34% of WPP's business is now digital.

But the one theme that, for me at least, really stood out, was data. You name it - big, open, smart, social, CRM and every other kind of data was present in almost every panel. What was really interesting was not just the fact that the gathering, analysis and use of customer and other data gathered online is a core marketing function, it's the way that data management is now at the very heart of business. The language and discourse of media business has changed. One speaker talked about the need for data scientists who can take raw data and push it through their analytic tools and algorithms. Another said "organisations are increasingly data-centric". A representative of The Weather Channel described their business as "a data science and technology company as well as a media company."

Whilst much of the discussion was about customer data gathered via the web and social media, the issue of data is much broader. The availability of open data, the midata initiative and other data sources makes a strategic approach to data management absolutely essential.

My legal eagle readers involved in this area of the law will already have their eyes on the draft EU Regulation which will replace the existing regime set out in Directive 95/46/EC. It contains measures that will harmonise data protection procedures and enforcement across the EU, and aims to achieve consistency with the existing system for ensuring privacy online, which is set out in the Directive 2002/58/EC  (E-Privacy Directive).

I cannot claim any great insight in saying that data protection and privacy is really important to all organisations. Not "just" at the level of legal compliance but at the heart of the brand - just think about Bloomberg's current problems with disclosure of user's data. Sometimes it takes time for the message to sink in. But my tip for anyone looking to build their legal career in the online sector is become a data law expert.

Against this background, the Regulation will  extend the impact of data protection law.  For instance, it's expected to have a significant impact on data controllers and processors who are active within the EU, including many who are located outside it but who monitor the behaviour of EU consumers, or offer them goods or services online. Data processors will now explicitly be included in the scope of the data protection regime. 

In addition, the definition of "data subject" will now make it clear that "personal data" includes all data that can identify an individual, whether that data is held by the data controller himself or by a third party which, in combination with the data held by the controller, could identify the data subject.

So for data scientists and data lawyers, things are getting to get really busy.

Have a good week,

Laurie Kaye

Fair use? You gotta be kidding

Dear reader

If you're a regular reader, you may remember that during the Hargreaves Review process, one of ideas floated was to introduce a broad, US style 'fair use' exception into UK copyright law. It fell at the first hurdle because 'fair use' is not one of the permitted exceptions under the EU Copyright Directive and would therefore require amendment at the European level.

However, an element of 'fair use' could creep into UK copyright law by the back door if the Government proceeds with its stated intention of introducing an exception to permit use of a copyright work for caricature, parody or pastiche. It's certainly allowed to do so under the Copyright Directive. And with the passing into law of the Enterprise & Regulatory Reform Act this week, a technical amendment has been made which would allow new copyright exceptions to be passed by secondary legislation into UK law.

I'm all for creativity but I haven't really seen a strong evidence-based case made that the absence of a parody exception has been a significant barrier. The Intellectual Property Office recently published three research papers on the subject, including this one here. They're worth reading.

So what's the point? It's whether commercial use is or could be permitted under a parody exception. Both the US 'fair use' exception and the proposed parody exception cover the creation of derivative works. Creation of a derivative work for commercial purposes can, in certain circumstances, be allowed under US fair use, particularly where the derivative work has a 'transformative character'

Whilst it is understood that the proposed parody exception under UK law will be for non-commercial purposes, I wonder whether that will always be the case.

In this context, it's worth taking a look at a recent US decision on fair use in a US Court of Appeals decision Cariou v. Prince which I read about this week on trusted info source, PLC. It reported that the plaintiff, photographer Patrick Cariou, published a book of photographs entitled Yes Rasta, featuring portraits and landscapes taken while he lived and worked among Rastafarians. A few years later, artist Richard Prince altered and incorporated several of Cariou's Yes Rasta photographs into a series of paintings and collages called Canal Zone that was exhibited at the Gagosian Gallery. The gallery also published and sold an exhibition catalog with reproductions of Prince's paintings.

In 2008, Cariou sued Prince, the Gagosian Gallery and the gallery's owner, alleging that Prince's Canal Zone works and the exhibition catalog infringed his copyrights. The defendants raised a fair use defense.

The  Second Circuit Appellate Court found that Prince had used key portions of certain of Cariou's photographs but that, because in 25 of his works, Prince transformed Cariou's photographs into something new and different, this factor weighed heavily in Prince's favour. To put this in perspective, the Court did look at the impact of the derivative works on the market for the source works. It concluded that Prince's works and the show of his works did not usurp the market for Cariou's photographs because Prince's audience is very different from Cariou's. Also, none of the evidence suggested that Cariou would ever develop or license secondary uses of his work in the vein of Prince's artworks.

What all this shows is that the devil is in the detail in getting the balance right between rights and exceptions. As my good friend and the Publisher Association's esteemed copyright Counsel Hugh Jones says, "beware the law of unintended consequences."

Have a great Bank Holiday.

Regards

Laurie Kaye

p.s. just a quick final note to say that the Laurence Kaye team are settling in at our new home at Shoosmiths LLP. You can see what we're up to here.

 

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