Media Brief - February 2010
05 February 2010
Welcome to the February 2009 edition of Media Brief, the
bi-monthly, media-related newsletter from Field Fisher Waterhouse.
We hope you enjoy it. Please feel free to contact us if you would
like to discuss in greater detail any of the issues raised, or
indeed any other issues.
In this issue:
Helmet producer has a storming victory in the Court of
Appeal
The Court of Appeal has made a significant ruling (Lucasfilm
& Others v Ainsworth & Others [2009] EWCA Civ 1328)
which prevents the production and licensing companies behind the
Star Wars films from stopping Mr Ainsworth, the person who produced
the stormtrooper helmets and armour for the films, from making and
selling replicas in the UK. In particular, the Court of
Appeal held that:
- the prototype helmets for the stormtrooper costume were not
"sculptures" and thus did not benefit from protection as a
copyright work under UK law.
- Since the helmet and armour were not sculptures or works of
artistic craftsmanship (i.e. artistic works), section 51 of the
Copyright Designs and Patents Act 1988 provided a defence to a
claim of infringement based on use of those works. (Section
51 provides that it is not an infringement of any copyright in a
design document or model recording or embodying a design to make an
article to the design or to copy an article made to the design
unless the design is for an artistic work or a
typeface.)
- UK courts do not recognise a system of mutual recognition of
copyright jurisdiction and of copyright judgments. Therefore, the
Court of Appeal overturned the first instance decision to enforce
US copyright.
This judgment acts as a reminder that production companies and
others dealing in designs should obtain written agreements at the
time of instructing a designer ensuring that the intellectual
property in all props etc, belongs to them. Furthermore, following
this decision it will be difficult to enforce US copyright in the
UK.
Online newspaper successfully relies on hosting defence in
libel claim
A court has ruled that a newspaper is not liable for user
comments posted on its online bulletin boards. The case (Imran
Karim v Newsquest Media Group Ltd [2009] EWHC 3205) concerned
an article reporting on the decision of the Disciplinary Tribunal
of the Law Society to strike Mr Karim off the Solicitors Roll. The
article appeared on a number of websites, and comments on the
article were posted to the bulletin boards on websites hosted by
Newsquest. In a summary judgment application against Mr Karim's
defamation claim, Mr Justice Eady ruled that the article benefited
from absolute privilege as it was a contemporaneous, fair and
accurate report of court proceedings. As for the comments posted on
the bulletin boards, Mr Justice Eady held that Newsquest was
entitled to rely on the hosting defence under regulation 19 of the
Electronic Commerce (EC Directive) Regulations 2002 because it did
not have actual knowledge of unlawful activity or information until
it was pointed out by Mr Karim in January 2009, and the material
was taken down as soon as the nature of the complaint reached
Newsquest.
Ofcom consults on proposed changes to Satellite Services
licences
Ofcom has issued a Notice of its intention to change Satellite
Services Licences for permanent ("PES") and transportable ("TES")
earth stations. The change is required to comply with new
legislation implementing the Audio Visual Media Services Directive
which extends the scope of Ofcom's regulation to include non-EU
based satellite television channels (and certain on-demand
programme services) which are broadcast into EU member states by
means of UK-based uplinks. Licence holders have until 25 February
2010 to make representations about the proposal. Subject to any
comments received, Ofcom will modify the schedules to PES and TES
licences in Spring 2010.
To view the Notice,
click here.
Consultation on free-to-air listed events
Following on from the report published in November 2009 by a
panel led by David Davies recommending which sporting events should
be free-to-air, the Department for Culture, Media and Sport has now
launched a consultation document on this issue. In particular, the
government is seeking views and evidence in relation to:
- The principles of retaining a list;
- What constitutes a major event and how this should be
assessed;
- Which sporting events should be considered as being major
events;
- The economic and wider impact of listing, and how this should
be measured; and
- Which events should be listed, taking all these factors into
consideration.
- Responses to the consultation must be submitted by 5 March
2010.
Please contact us if you would like us to assist with responding
to the consultation or to respond on your behalf.
To view the consultation document,
click here.
Extension of the remit of the Press Complaints Commission
Following a consultation exercise, the Press Standards Board of
Finance (PSBF) has decided to extend the remit of the Press
Complaints Commission ("PCC") to include on-line only based
publications. Previously online newspapers and magazines that
were also available in printed form had already fallen under the
PCC's remit, but those circulated purely online had not. Where the
websites are recognisable as UK based newspapers or magazines
which, if in printed form, would come within the jurisdiction of
the PCC, the publisher and editor of such websites must now
subscribe to the PCC's Editor's Code of Practice and the publisher
must pay registration fees to the PSBF.
Video Recordings Act 2010 comes into force
The Video Recordings Act 2010 came into force on 21 January 2010
to rectify an administrative error that occurred when the Video
Recordings Act 1984 ("the 1984 Act") was implemented. The 1984 Act
introduced a system of classification for video films and some
video games and a series of offences regarding the supply of
classified films and games to underage people and the supply of
unclassified material. In August 2009 the Government discovered
that the 1984 Act was not enforceable because of a failure to
notify the European Commission of the Act's provisions in draft
prior to its implementation. This anomaly has now been corrected,
with the Commission being informed of the provisions in September
2009, and the Video Recordings Act 2010 repealing and reviving the
1984 Act. This now clears the way for the government to amend the
1984 Act in the Digital Economy Bill to introduce a new system of
classification for boxed video games.
Further information about the Digital
Economy Bill
The publication of the Digital Economy Bill was mentioned in the
last edition of the Media Brief. The Bill is currently going
through the Committee stage of the House of Lords. It includes
proposals to combat illegal file-sharing and to change Ofcom's
remit.
Click here for further information
about the file-sharing proposals in the Bill.
Click here for further information
about the proposed changes to Ofcom's remit.