Ireland IP & Technology Law Blog : Dublin Lawyers & Attorneys for Intellectual Property, Communications & Information Technology Law in Ireland, U.S. & England

The ECJ last week handed down a comprehensive ruling on the long awaited Premier League rights case. The main points are as follows:  

• The granting of exclusive broadcasting rights to show Premier League football games on a country by country basis is contrary to the principles of the internal market, according to last week’s ruling by the ECJ.  

• Similarly the prohibition on the supply and use of decoder cards which allow viewers to watch the broadcasts from another jurisdiction is unlawful. This leaves consumers free to purchase decoding equipment and watch the games broadcast from another jurisdiction.
• The ECJ also held that while there is no copyright in the games themselves, showing the games publicly without a broadcast license will infringe copyright in some displayed features, such as the Premier League logo, credits and playback clips. The ruling therefore has the practical effect of still requiring public venues to purchase a license to show the games.

The full text of the judgment is available here.

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Anyone who clicks on a link and reads an article on an aggregator or media monitoring website in a commercial setting may infringe copyright unless licensed by the publisher, according to a UK Court of Appeal Judgement dated 27 July 2011 in the NLA v PRCA/ Meltwater case.

In 2009, the Newspaper Licensing Agency (NLA), representing most UK newspapers, introduced a compulsory licensing regime for aggregators and media monitoring firms that use content from its members’ websites (newspapers).

Meltwater, a company providing online media monitoring services, agreed to purchase a licence for itself as a monitoring company under this new regime, but did not agree that its customers (PR Agencies) should have a licence too in order to use Meltwater’s services.

The Meltwater News Service consists of Meltwater sending its customers reports of articles, which include the headline of the article, the opening words of the article and an extract showing the context in which the chosen search term appears.

The Court of Appeal was asked to decide if members of the Public Relations Consultants Association (“PRCA”), a professional body that represents UK PR consultancies, in-house communications teams and PR freelancers, require a web end-user copyright licence in order to lawfully receive and/or use online media monitoring services from Meltwater.

The Court of Appeal ruled that the members of the PRCA, receiving these reports, need a copyright licence to ensure that they are not infringing copyright. The Court ruled that headlines are capable of being original literary works and that extracts containing opening words can be a substantial part of an original literary work. Moreover, the Court ruled that the technological process of displaying a webpage on a computer is not a “temporary copy” exempt from copyright.

This decision is likely to have an impact on all websites that provide a news aggregator or media monitoring service and could necessitate major changes in the business models of these websites.
 

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 The recent UK Employment Tribunal case of Gosden v Lifeline Project Ltd provides a warning as to the repercussions an employee may face when their private use of social media has the effect of damaging the reputation of their employer and/or breaching an equal opportunities policy. This case involved Mr Gosden, an employee of Lifeline, bringing a claim for unfair and wrongful dismissal to the Employment Tribunal, after an internal disciplinary hearing found him guilty of gross misconduct and  accordingly, dismissed him.  

Lifeline, a charity that works with drug-users in prisons, had assigned Mr Gosden to Lindholme prison. The gross misconduct at issue was that he forwarded an offensive email from his home computer and outside working hours to the home computer of Mr Yates, a colleague, based in Moorland prison, where Mr Gosden had previously been assigned. The email entitled “The British are Way Ahead of Us” contained material of a racist and sexist nature and was of the chain email variety, headed with the words “It is your duty to pass this on!” Mr Yates forwarded the email to a colleague who worked in Moorland prison and so the email entered the computer system of the Prison Service. Lindholme prison held a formal investigation which concluded with the suspension of Mr Gosden and the compulsory retirement of Mr Yates. Lifeline then commenced its own investigation into Mr Gosden’s conduct which led to a formal disciplinary hearing.   The Lifeline disciplinary panel found Mr Gosden guilty of gross misconduct for having carried out an act which might damage Lifeline’s reputation or integrity and for having breached its equal opportunities policy. Accordingly Mr Gosden was dismissed and he in turn brought a claim to the Employment Tribunal. 

The Employment Tribunal dismissed Mr Gosden’s claims for unfair and wrongful dismissal as the reason for his dismissal was reasonable and the manner in which he was dismissed was fair. What is particularly interesting is that the Employment Tribunal went on to consider what impact, if any, the Human Rights Act had to a private life, holding that the email in question, whilst it was sent from his home computer to another home computer, was not intended to be private due to the fact it was headed “It is your duty to pass this on!” and Mr Gosden was aware that it was likely to be passed on. However, Mr Gosden had no control over whether the email would or would not be passed on. 

This decision suggests that employees, who mindlessly forward chain emails outside work, must first consider whether the email in question may have the effect of bringing their employer’s reputation into disrepute or breach their employer’s equal opportunities policy, therefore putting their employment in jeopardy.  As this area of law is developing and the effect on Irish employment law is uncertain, it may be advisable for employers to address employees’ private use of social media where such use would have a damaging effect on the employer’s reputation. 

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In a recent speech to the Royal Television Society, the UK Culture Secretary Of State Jeremy Hunt has outlined the UK Government’s commitment to decentralise broadcasting and increase localisation. With political power increasingly being devolved to locally elected politicians, it makes sense, he says, for a network of local media stations to evolve in order to reflect the strong desire for locally focused coverage.

Mr Hunt outlined a vision of a network of local, cross-platform multimedia TV services which would broadcast for as little as an hour a day, be free to affiliate with each other to bring down costs, be able to offer nationwide deals to advertisers, piggyback on existing national networks, including broadband infrastructure, and exploit new technologies such as Canvas, YouView and mobile TV.

According to Mr Hunt, the UK Government will encourage the development of this new local landscape by removing local cross-media ownership rules, redefining ‘public service broadcasting’ to emphasise local content, legislating to clarify which public service broadcasters should be listed on the front page of electronic programme guides and their online equivalents, and by working with the BBC to encourage partnership with local media providers.

Mr Hunt has asked Nicholas Shott, Head of UK Investment Banking at Lazard, to review this policy in terms of commercial viability. Mr Shott, in his preliminary findings, has urged caution by saying that "it is difficult to see a clear path to commercial viability of local TV" as local channels would not be sustainable on advertising revenue alone and more practical solutions towards local services may need to be explored. Mr Shott's preliminary proposals include providing local content by a variety of means, including broadband. The UK Government's full local media action plan is due to be published before the end of 2010, alongside Mr Shott's final report. Television and media stakeholders will be awaiting publication of both with interest.

A link to Jeremy Hunt's speech can be found here.

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Congratulations to the two winners of Your Country, Your Call, Neil Leyden and father and son duo Colm Mac Fhlannachadha and Cianán Clancy. The two proposals will now go into a development phase and each will be supported by an advisory group and a development fund.

Neil Leyden's global media hub proposal was the first winner to be announced. The proposal sets out to create an Irish Content Industry Association which would then drive the development of a cultural and creative quarter. A media park would be established to attract global content industries. Employment in the region of 45,000 jobs is envisaged by the proposal.

The data island strategy proposed by Cianán Clancy and Colm MacFhlannachadha involves developing green “mega data centres” and developing an international innovation area. The plan aims to place Ireland in a world leading position in areas such as cloud computing, secure information storage and online gaming development. It is believed that the strategy could generate at least 4,000 new jobs.

These ideas are highly innovative and ones that Ireland needs to pursue to remain competitive on the international stage, and to differentiate ourselves with specific advantages in this field. We look forward to seeing them move to the next stage!

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It is interesting to read that the two winners of the Your Country, Your Call competition launched by President Mary McAleese last February will be announced this evening (Friday).

 Congratulations to finalists Neil Leyden (Ireland as a Global Media Hub), Gordan Hyland (an Irish IP financial securities market), Peter Kavanagh (a Solar PV Electricity Generation), Cianán Clancy and Colm MacFhlannachadha (The Data Island Strategy) and Brody Sweeney (a “Superbrand” to market Irish Tourism & Food).

 A&L Goodbody wishes them all the best of luck!

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The European Communities (Audiovisual Media Services) Regulations were adopted on 3 June 2010.  These Regulations transpose the remaining parts of the Audiovisual Media Services Directive, which was published in the Official Journal of the European Communities on 18 December 2007.  The Regulations include provisions in respect of on-demand audiovisual media services and subject providers of such services to regulation by the Broadcasting Authority of Ireland.

Click here to view the new Regulations.

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The United States Copyright Office has granted an exemption to the Digital Millennium Copyright Act 1998 (DMCA) that purports to legalise what has become known as "jailbreaking".  According to reports, users can now legally modify their phones to switch networks and run applications not sanctioned by the device manufacturer. Under previous rules, users could be penalised on two grounds for this activity - both for violating the DMCA and breaching the contract in the form of the Licence Agreement between the user and device manufacturer.  However, as a result of the ruling on 27 July 2010, device manufacturers can only accuse users of breaching their Licence Agreement.

Users should be aware that any modification of a device's software may render the device manufacturer's warranty void - in this regard, the device manufacturer is under no obligation to enable jailbreaking on the device and jailbreaking can lead to an unusable or "bricked" device.

The ruling of the US Copyright Office can be found at: www.copyright.gov/1201/
 

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The ‘Innovation Fund – Ireland,’ was launched last week by Taoiseach Brian Cowen. The €500 million fund has been set up to support enterprise development and position Ireland as the “innovation hub” of Europe.

Speaking in the New York Stock Exchange last Monday, Mr Cowen announced the fund as a key part of the Irish government’s Smart Economy strategy, designed to assert Ireland as “the best place in Europe to turn research and knowledge into products and services”. The Taoiseach pointed to the enterprise-friendly environment and the availability of high quality employees as aspects of the Irish economy that will complement the new fund.

A large portion of the fund will go towards fostering research.  The government has pledged €250 million towards the Innovation fund, half of which will come from the exchequer and another €125 million will be provided by the National Pension Reserve Fund. The remainder will come from venture capital companies.

The fund will seek expressions of interest in early September 2010.

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Jeremy Philips of IPKat fame will deliver the annual lecture of The Copyright Association of Ireland (CAI) on Thursday 17th June 2010 at 6.30pm in the Dublin Chamber of Commerce, Clare Street, Dublin 2. Attendance is free of charge.

The lecture, entitled ‘Exiles and Orphans’, will address “the phenomenon of the ‘orphan work’, its exile from mainstream copyright practice and its recent re-emergence on the agenda of copyright reform”, a topic that Philips has previously written about in the Journal of Intellectual Property Law & Practice. For further information, check the CAI website by clicking on this link.
 

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The recent decision of the Minister for Communications, Energy and Natural Resources to propose that Ireland's Six Nations and Heineken Cup rugby games be designated as "free to air" events, has provoked a storm of media commentary and a strong reaction from the Irish Rugby Football Union (IRFU).

Much of the debate in the media has been focused on the likely financial impact of the Minister's proposals. Supporters of the proposals argue that IRFU will not lose significant revenues, whereas the IRFU estimates that it will lose up to €12 million on an annual basis if the proposal is implemented.

The wide disparity in the figures cited by both sides is derived in part because of a difference of understanding as to the impact on licensing models that results from designating these sporting events as free to air.

There are two dimensions to the financial debate- (a) the impact on the domestic broadcasting rights market and (b) the potential impact on overseas broadcasting revenue that the IRFU generates. Ireland's Six Rugby games are currently shown free to air on RTE for the domestic market and are reported to generate revenues of €3 million per annum with an additional €8 million earned by the IRFU from showing Ireland's Six Nations games overseas and €2-3 million from the Heineken Cup games that are shown on Sky.

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You may recall that in January of last year Eircom agreed to implement a “three strikes and you’re out” policy as part of an out of court settlement with IRMA.  Eircom agreed to work with the “Big Four” music labels in Ireland – Universal, Warner, Sony and EMI – to help them pursue illegal downloaders and uploaders.  Under the system Eircom customers downloading music from peer-to-peer services were to receive two warnings after which they would be disconnected if they continued to engage in the activity.  The settlement agreement set a precedent and it was expected that all other ISPs in the Irish market would be compelled to follow suit.

However, recent developments at home and in Europe now call into question the effectiveness of the agreement.

Eircom and IRMA have requested the High Court to rule on whether implementing the “three strikes” rule contravenes data protection law.  A negative ruling by the High Court is likely to make the enforcement of the agreement very difficult.  

Further afield, in May 2009, the French Parliament passed legislation that introduced measures to combat music piracy, including a “three strikes” regime for persistent copyright infringers that would result in the perpetrator losing their internet connection. However, the French Constitutional Court subsequently held the provision to be unconstitutional. The court held that the legislation went directly against a decision in the European Parliament, whereby disconnecting alleged copyright infringers would violate the fundamental rights and freedoms of internet users.

More recently, the EU has adopted a telecoms directive that guarantees citizen access to the Internet and which requires due process and effective judicial protection for persons whose access to the Internet is denied.  Commissioner Viviane Reading has stated that “Three-strikes-laws, which could cut off internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law”.

These developments pose seriousness challenges to the three strikes regime agreed between IRMA and Eircom.

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