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A plethora of technological developments in the diverse arena of media law is spawning an increasing number of opportunities for lawyers, says Leo Schulz. Leo Schulz is a freelance journalist.
When the Spice Girls made it to the top of the 1997 Christmas hit parade at the last moment there were a good few lawyers who, along with most of the country's pre-adolescents, shrieked with glee. As a pop phenomenon with a half-life measured in months, the girls and their backer, Virgin Records, have been quick to throw well-paid lawyers at anyone who seems to be even thinking about plundering their intellectual property.
'Success breeds parasites,' says Kevin Garnett QC, a barrister at 5 New Square who represents several music publishers and record companies.
The problem, according to Garnett, is that a company like Virgin has to promote a hundred bands in order to get one Spice Girls. No one knows which will succeed, and it is impossible to go through the time and expense of tying up every new act's intellectual property interests with the full panoply of trade mark registrations. As a result, those acts that do succeed will almost certainly be thrust into the spotlight with little or no formal legal protection for some of their most valuable assets.
'You are then in the position,' says Garnett, 'of having to invest a lot of money mounting a sophisticated marketing campaign for an entity that has no legal standing, no contracts, no agreements.'
But Girl Power has been far from the most important issue keeping media and entertainment lawyers busy over the past year. In many cases, legal practitioners have had to work with a laptop in one hand and a crystal ball in the other as various new media-related technologies leap from the lab to the front line.
Digital television has kept several teams of lawyers busy, resolving conflicts and writing contracts for everyone from producers to distributors, advertisers and black-box manufacturers. Meanwhile, digital recording equipment arrived last year on the high street, greatly exacerbating what is probably the single most complex issue of the Information Age how to protect trade marks and copyright while not only allowing but actually encouraging instant, international, electronic multiplication.
The primary means of global multiplication, the Internet, has continued to throw up legal problems. At the same time, even newer new media for example, 'convergence technologies' such as PCTV, the combination of a PC and a television has introduced not only fresh commercial possibilities but new legal pitfalls.
Two issues prominent on the Internet in the past year are domain name ownership and unauthorised hypertext links. A domain name is the primary name by which a Web site is designated, essentially the URL (Uniform Resource Locator) or Web address for the site's home page. Search engines, such as Alta Vista and Yahoo!, which scan text and titles for key words, often throw up a vast number of references and rarely lead directly to an organisation's own principal home page.
Usually, the best way of finding a home page is to type in the name or abbreviation by which the organisation is best known and simply to experiment with the most popular domain suffixes currently '.co.uk' for national entities and '.com' for multinational entities. Thus a general search for 'BT' on Alta Vista would give thousands of references, most but not all of which would relate to British Telecom, while trying your luck with bt.com would take you straight to its home page.
Nominet in the UK controls '.co.uk' and NSI in the US controls '.com'. Both organisations operate a simplistic, first-come-first-served distribution system, supplemented by a dispute resolution procedure that can lead to the suspension but not to the transfer of a site name. Neither Nominet nor NSI is geared up to make even a cursory inquiry into whether the applicant has a legal right to use the brand name being bought. And both systems are astonishingly quick and cheap an e-mail and £60 buys a perpetual right to any '.com' name not already registered.
Inevitably, Net-nerds world-wide have been buying up domain names that sleepy multinationals will one day realise they urgently need. Some of the first to be snapped up were bmw, harrods, m&s, cellnet, ladbrokes and virgin. But recent decisions in the English courts have shone some light on the use of trade marks in domain names, with Marks & Spencer gaining an injunction preventing a company called One in a Million from using the word 'marksandspencer (see The Lawyer, 9 December 1997, page 13).
Dennis Toeppen in the US grabbed panavision.com and used it as the URL for a Web site providing a map of the town of Pana. Panavision had to prove in court that Toeppen was trying to sell the maps and that he was therefore diluting the company's trade mark through commercial use before it could get an order returning control of a brand name in which it had invested millions.
Dinah Nissen, partner at Harbottle & Lewis involved in the first case of domain name piracy in the UK, says organisations such as Nominet and NSI are failing to exercise proper control over what are valuable properties. People are registering a whole raft of names and hoping for pay-offs. Another problem is close copies. You can register anything that is not identical to a name registered already.
Nissen has also been involved with the Internet dispute between electronic publisher Shetland News and regional newspaper the Shetland Times (see The Lawyer, 18 November 1997, page 10). Shetland News created hypertext links from its own web site to a weather report on the Shetland Times site. The latter sued for copyright infringement with the case finally being settled out of court.
According to Nissen, this case highlights an issue which is beginning to affect some big players. Microsoft, for example, has created links to the Ticketmaster site, bypassing Ticketmaster's hard-sold advertising further up the site.
From the second half of this year, with the advent of digitalisation, television will be the site of yet another information revolution. John Enser, a partner in the entertainment and media group at Olswang, has been kept busy for much of the past year preparing the way for digital television in the UK, the last major European market to make the switch.
'There has been a lot of work buying the relevant equipment, sorting out the distribution,' says Enser. 'Because of the need for content, there has been a lot of fighting over rights.'
One of the prime issues, once lawyers have been paid to secure the rights to a product, is how to get it in front of viewers. At present there are five terrestrial channels, with perhaps a further 20 or 30 via satellite or cable. To find out what is on, printed listings can be flicked through or channels can be surfed using a remote control. But where there are hundreds of channels, neither of these methods is practical. The answer, apparently, is an Electronic Programme Guide (EPG). An EPG is a hierarchical set of menus similar to those used on computers. At the first level a broad category is selected sport, news, music, film the process then carries on down further levels until the desired matter is found.
However, the way in which the information is presented, and how the hierarchies are weighted and the programmes are listed, will have an enormous influence on the programme where viewers are most likely to arrive. The competition to acquire the right slot on the EPG has attracted the attention of Oftel and the Independent Television Commission (ITC) and the presence of heavyweight regulators has in turn created more work for lawyers.
Another issue connected to digitalisation is channel 'bundling'. Channel providers such as BSkyB want to remain in the position they are in at present where, for example, they can mix prime material, such as Sky Sports One, with lesser material, such as Sky Sports Three, and sell the lot to cable companies as an all-or-nothing package. Distributors, on the other hand, argue that this is a constraint of trade and that they should be free to buy or not to buy in accordance with their own marketing plans.
With the renaissance of the film industry in the UK, the big screen is becoming another busy area for lawyers. 'In respect of film, it is a very lively time to be around,' says Leon Morgan, head of media and entertainment at Davenport Lyons. 'The UK has always been a big production centre, driven by the exchange rate. But we're now starting to get a sense for equity investment.'
Film finance is a complicated area and one in which skilful lawyers can play a crucial role. Usually, an idea is sold to a distributor. Banks are then brought in to provide cashflow on the basis of a discount to the sale price. The problem, according to Morgan, is that so few films have been financed in the UK over the past 20 years that banks have lost the know-how.
'It is changing', says Morgan. 'We have a good relationship with Barclays, who can do cashflow. Others are getting interested Coutts, Guinness Mahon, Bank Leumi. The London operation of Berliner Bank is starting to put in risk money.'
According to Medwyn Jones, a partner at Harbottle & Lewis, the Internet and PCTV are throwing up a raft of legal and financial problems. One is in defamation, where an item is put up on a Web site in one country and available in another.
The same issue arises in respect of censorship if a video is available through a supplier in one country and accessible via a phone line to customers in another country. 'Whose laws apply and how do you prosecute?' says Jones.
Selling videos over the phone also introduces dilemmas of payment and accounting, an issue that will be further complicated by PCTV.
Product endorsements are already a feature of the film industry, as with James Bond's choice of cars. With PCTV it will not only be a matter of showing off the product viewers will be able to call up a menu, enter a credit card number and an electronic signature, and buy on the spot what they have just seen.
Besides the payment and ordering legalities, facilities such as these could transform the content and purpose of programmes such as Top of the Pops, The Clothes Show and the Holiday Programme, bringing into question who owns what rights over the large amounts of money that could potentially be generated.
The information revolution has come a long way in the past 10 years. Lawyers will be among those pleased to know that it seems to have a long way still to go.