Media & Entertainment Legal Digest: January - February 2019

Broadcasting

Ofcom publishes FAQs on No Deal Brexit implications for Broadcasting and VOD

Ofcom has published a fairly comprehensive “FAQs” document setting out what broadcasters and VOD providers should be doing about the licensing of their services in the event of a “no deal” Brexit. Whereas, if there is a deal, the current regulatory set-up is expected to continue unchanged for the duration of the transitional period, under “no deal” the UK will immediately fall outside of the EU’s “country of origin” system of licensing (deriving from the AVMS Directive) as of 29th March 2019. - Read more

Agreement reached on new EU legislation to facilitate copyright licensing for online services of TV and radio broadcasters

This proposed Regulation has been provisionally agreed between the EU’s Council, Commission and Parliament and is likely to be formally adopted in the next few weeks. It is designed to make the clearance of copyright simpler for TV and radio broadcasters when running online live streaming or catch-up services, by introducing a “country of origin” principle for the licensing of content. This should mean that such services are available online throughout the EU rather than being limited just to the Member State in which the content originated. Those licensing content to broadcasters will no doubt want to take this new, potentially EU-wide, market into account when agreeing licence fees. - Read more

Promotional competition involving premium rate phone entries breached Ofcom Code rules as it was not justified by being sufficiently programme-related

Section Nine of the Ofcom Broadcasting Code sets limits on the extent to which commercial references can appear within programming. The use of premium rate telephony services (PRS), in particular, is only permitted where the broadcaster can demonstrate that it is “programme-related”, and thus editorially justified. In this case, a broadcaster ran - during non-commercial airtime - a Christmas competition for viewers to win a holiday in Norway, participation being via PRS. It argued that the competition was “programme-related” as it was intended to promote the channel’s Christmas programming (in particular its films), but Ofcom held that this link was too tenuous to avoid a breach of the Code. Only material directly derived from the Christmas films season would have been sufficiently “programme-related” to justify using PRS in this way. - Read more

Copyright

EU Digital Copyright Directive proposed text made available, as informally approved in trilogue negotiations

An important stage has been completed in the adoption of this somewhat controversial Directive: a text has been informally agreed between the EU Commission, Council and Parliament, and that text has also now been published (and approved by the Legal Committee of the European Parliament). Before reaching final adoption, the text still has to be formally approved by a full vote of the European Parliament, and by the EU Council.
In terms of its content, informal agreement was reached based upon a number of compromise amendments, including the reduction of the term of protection of the proposed Article 11 “press publishers right” to 2 years, and the exclusion from the requirements of Article 13 of newly-launched content-sharing services if their revenue is below Euros 10m. - Read more

Defamation

Council worker’s defamation claims against publishers of The Sun and MailOnline dismissed
The High Court has upheld an application for summary judgment in respect of libel claims brought by one of Haringey Council’s former managers in charge of child welfare, against Associated Newspapers (which publishes the MailOnline) and News Group Newspapers (“NGN”, which publishes The Sun). During the case the Claimant, Carol Carruthers, accepted that whilst working at Haringey, she sent “sexual messages and photographs to someone she had met on a dating website and… she did so whilst she was at work”. - Read more

Music

Advocate General argues that use of samples from phonograms in principle requires a licence

In a reference to the European Court of Justice (ECJ) from the German courts relating to a two second sample from a recording by the band Kraftwerk, re-used in another phonogram, Advocate General Szpunar has issued an Opinion which recommends that the ECJ should rule as follows: (i) that re-using such a sample without permission does infringe copyright in the sound recording from which the sample came, and that there is no de minimis rule in EU copyright law which says that samples of less than a certain length are exempt from infringement; (ii) that the copyright exception for quotations is not applicable to such use of samples – for the quotation exception to be available the material quoted must be easily distinguished as a foreign element rather than integrated into the new work, and the new work must interact with the quoted material, neither of which the AG found to be the case in the context of music samples; and (iii) there was nothing in the EU Charter of Fundamental Rights (including its “freedom of the arts” provisions) which meant that producers could not enforce the rights in their sound recordings against other creative artists. - Read more

European Court of Justice rules that copyright owner's right to control distribution includes storage with intent to sell

In a reference from the Swedish courts, the ECJ has ruled that storing infringing products in a warehouse with the intention in due course to sell them (in circumstances where similar infringing products were already being sold) in itself amounted to an infringement of the copyright owner’s distribution right. It was for the referring court to decide whether the necessary intention to sell them was present; mere storage would not in itself infringe the distribution right. The distance between the storage facility and the site of intended sale was not decisive, but might help the court to evaluate whether that was the intention. - Read more

Sponsorship

ASA ruling on Tombola of 6th Feb 2019 - Sponsorship-related gambling ads on “I'm a Celebrity” app did not adequately minimise exposure of under-18s

As part of its sponsorship of the “I’m a Celebrity, Get Me Out of Here” TV programme, ads for Tombola’s gambling site and games (and a sponsorship message) were included in the app for the programme (which amongst other things allowed viewers to vote on who should be evicted from the jungle). There was no evidence that the app would particularly appeal to children any more than the TV programme itself, which had fewer than 10% of viewers under 18 years of age. However, the app had no mechanism through which age-restricted ads (such as those for gambling) could be targeted only to the appropriate age group. On this basis, the ASA felt that the “I’m a Celebrity” app was simply not an appropriate medium for Tombola to have used to deliver gambling ads. They were thus in breach of the CAP Code for failing to minimize the exposure of under-18s to gambling ads. (The use of “18+” and “begambleaware .org” text in the ads was not considered by the ASA to be a significant counter-vailing consideration.) CAP has also during February reinforced this message by issuing new Guidance (in force from 1st April) designed to minimise the visibility of irresponsible gambling ads to the under-18s. - Read more here and here

Ticketing

CMA issues Open Letters to Event Organisers and Website Operators regarding Secondary Ticketing

As part of its ongoing action against misleading practices in the secondary ticketing market, the CMA has secured new undertakings from viagogo, StubHub and Ticketmaster so as to improve processes and information on their websites, with effect from 17th January 2019. (Enforcement action through the courts is being taken against viagogo, which the CMA has concluded is still not complying with its undertakings.) - Read more