Media & Entertainment legal digest: July - August 2019

Broadcasting

Ofcom consults on revised rules to protect participants in TV and radio programmes

The Ofcom Code already imposes certain duties upon broadcasters in respect of participants in their programming (and there are specific more detailed rules requiring “due care” in relation to children). Partly in response to rising public concern over the safety and mental health of participants in reality TV shows, Ofcom is now consulting on proposals to strengthen the regime by adding the following new rules: i) “Due care must be taken [by broadcasters] over the welfare, wellbeing and dignity of participants in programmes”; and ii) “Participants must not be caused undue distress or anxiety by taking part in programmes or by the broadcast of those programmes”.

The proposed new rules would apply to programmes including, but not limited to, the following genres: reality (including scripted reality shows), documentaries, news, current affairs, audience phone-ins, audience interaction shows, quiz shows, talent contests and other forms of factual and entertainment programming. But they would not apply to drama programming, including soaps and sitcoms. Accompanying guidance is also being consulted upon, setting out Ofcom’s expectations as to the broadcaster’s approach before, during and after production. In addition, some consequential tweaks are proposed to the existing rules protecting child participants. Responses to the consultation must be submitted to Ofcom by 23rd September 2019. - Read more here

Music

EU Court of Justice rules that the use of samples (even if very short) without authorisation can infringe a phonogram producer's right of reproduction where the sample used is recognisable to the ear

The EU Court of Justice issued three important judgments on copyright law at the end of July. For the music industry, that of greatest interest was its ruling in a dispute that has rumbled on since 1997 between two members of the group Kraftwerk (as producers of their song Metall auf Metall) and the two composers of a subsequent song which was alleged to have included a 2-second sample of a rhythm sequence from the Metall auf Metall sound recording.

Balancing the rights of the copyright owners in the sound recording on the one hand against the fundamental rights enshrined in the EU Charter on the other hand, which include the “freedom of the arts” of individuals, and the public interest more generally, the EU Court of Justice ruled that: i) the unauthorized use of a sound sample, even if very short, does prima facie infringe the producer’s exclusive rights in the sound recording; ii) but if the sample is modified so as to be unrecognizable to the ear, then that would not infringe; and iii) although in theory a “quotation” exception may be applicable to the use of musical extracts, this does not apply if the work quoted from cannot be identified, and in any case quotations must be “in accordance with fair practice” and in some sense “enter into dialogue” with the work quoted from.

The Court also ruled that Member States are not free to enact their own special rules (as Germany has purported to do in its notion of “right to free use”) to permit the use of samples in the creation of new cultural works. -  Read more here

EU Court of Justice rules that freedom of information & of the press do not justify derogations from copyright beyond the exceptions set out in the Copyright Directive

The third July ruling of the EU Court of Justice again addressed the balance between copyright and press freedoms. The German Federal Republic was relying upon its alleged copyright in various classified military status reports to sue a German newspaper that had posted them on its website. The EU Court expressed no view on whether the reports were sufficiently original to be entitled to copyright protection in the first place, but if they were then it confirmed that only the exceptions to copyright set out in the EU Copyright Directive could be relied upon by the newspaper in its defence. There was no separate right to “freedom of information” or “freedom of the press” on top of the copyright exceptions – the copyright legislation and the rulings of the EU Court had built in the necessary balancing of copyright with press freedoms in the process of drafting and interpreting the Directive. - Read more here

High Court grants permanent injunction in respect of 'kiss and tell' book that infringed the claimant's privacy and copyright

In publishing a book containing intimate details of her former relationship with the claimant, together with private photographs of them taken by the claimant, the defendant was found to have breached the claimant’s reasonable expectation of privacy (and that of his children) and also his copyright in the photographs. The defendant felt that she was “putting the record straight” regarding their relationship, but there was no public interest in law to justify her revealing private details such as of their sexual relationship, nor had the claimant consented to her doing so. Damages and a permanent injunction were awarded against the defendant. - Read more here

Regulatory - Competition Law Enforcement

EU Commission imposes Euro 6.2m fine for restrictions on cross-border sales contained in 'Hello Kitty' non-exclusive licensing agreements

Having already fined Nike 12.5m Euros in March 2019 for similar offences, the EU Commission has now announced fines of 6.2m Euros against Sanrio for including restrictive provisions in its licensing and merchandising agreements for the sale of “Hello Kitty” products in the EU, preventing licensees from selling across borders within the EEA outside their own allotted territories. EU competition law has forbidden these kinds of territorial restrictions on sales for many years, which are seen as “partitioning the Single Market to the ultimate detriment of European consumers”. - Read more here

Casio fined £3.7m for resale price maintenance in online sale of keyboards & digital pianos

The Competition and Markets Authority has announced a fine of £3.7m against Casio after the latter admitted that between 2013 and 2018 it had broken competition law by implementing policies designed to restrict the freedom of retailers to set prices online, requiring its digital pianos and keyboards to be sold at or above a set minimum price. This kind of “resale price maintenance” is a practice that has long been outlawed, but it has become increasingly prevalent again in the online environment where price competition is particularly keen, and with manufacturers (including Casio in this case) able to use software to monitor online prices in real time, and potentially penalise online retailers found to be discounting below the Casio minimum price. - Read more here

Sport and Gambling

ASA ruling on Sky Bet of 10th July 2019 - Earlier ruling reversed - references to “sports noggin” had not exaggerated the role that knowledge can play in gambling success

Regular readers of this Digest may recall that in our March-April edition we flagged up the potential inconsistency between a) a recent Advertising Standards Authority ruling against a TV ad for Sky Bet that asked gamblers “how big is your sports noggin?”, and b) the ASA’s January 2017 ruling in which use of a strapline “Luck is No Coincidence” was found not to be misleading. It seems that Sky Bet may also have pointed this out, as the ruling against them has now been reversed. The ASA had previously held that Sky Bet’s references to sporting knowledge were irresponsible as they created “an unrealistic perception of the level of control consumers would have over betting success.” But the ASA has now accepted that the ad focused instead upon particular features of a “Request a Bet” service that was being promoted, while the use of the phrase “in sport anything does happen” in the same TV ad also helped to remind viewers of the uncertain nature of sporting outcomes. - Read more here