Keeping Your House In Order Getting It Right When Selling Online
Exploitation of digital media rights
1. Exploitation of digital media rights
Robert Blamires
Media Lawyer
robert.blamires@ffw.com
Presentation to Cartoon Digital
Wednesday 22 April 2009
2. About Field Fisher Waterhouse LLP
• We are a full-service European law firm with offices in Brussels, Hamburg,
Paris, London and Manchester and associated offices in Spain and Italy
• 130 Partners and over 300 other lawyers
• Core areas of practice are IP, media and technology, corporate and
commercial, banking and finance, regulatory and real estate
• We also have particular expertise in competition & EU law, dispute resolution,
employment, personal injury and tax
• Our client include listed and unlisted companies, multinationals, financial
institutions, professional partnerships, trade associations and Government
departments
4. Overview
A. Introduction
B. IPR in media content
C. Ownership of IPR in media content
D. Distribution of media content
E. Licensing of IPR in media content
F. Concluding thoughts
6. Introduction: “New” media
• Internet Protocol Television (IPTV)
• Internet/web TV
• Mobile TV
• Format/time/place-shifting
• Computer games
7. Introduction: characteristics of digital media
• Ubiquity
• Relative accessibility
• Ease of distribution
• Opportunities for interactivity
• Increasing participation/manipulation
• New business models
8. Introduction: IPR refresher
• Broad range of legal rights that attach to inventions,
software, artistic and musical works, performances, brands,
data bases, designs etc
• Do not protect ‘ideas’ on their own: only the expression of
ideas
• Protect creators (inventors, programmers, authors, artists,
brand owners)
• Monopoly rights
• Generally tradable and transferable
• Frequently jurisdictionally specific
• A shield and a sword
• Ability to exploit and right to prevent infringement
9. IPR in media content
• IPR in audiovisual content – typically copyright
• Copyright protects creative and artistic works, eg:
• Performances
• Music
• Sound recordings
• Broadcasts
• Literary works (eg scripts)
• Images
• Films
10. Ownership of IPR in media content
• Copyright
• Typically copyright owned by creator
• Exception: copyright in works created by employees
• Commissioned works
• Audiovisual content may have multiple underlying rights owners
• scriptwriters
• performers
• music rights holders
• artists
• producers
• Underlying rights clearances in digital media is still developing
• collective bargaining
• collecting societies
11. Distribution of media content
• Distribution across a range of media:
• “old”/“traditional” media; and
• “new” media
• Rights exploitation in emerging digital media
• definitions in rights licences are critical
• licensing on the basis of (eg): platform, device, on
demand/linear delivery, retail model, etc
• An understanding of the delivery mechanics and
technology is crucial
12. Licensing of IPR in media content
• Licensors will almost always have a different perspective from
licensees
• If licences are not tightly drafted, licensors may give away too many
rights or licensees may fail to acquire the rights needed.
• Avoid broad, vague terms, eg:
• “motion picture and ancillary rights”
• “television rights”
• “in all media now known or hereinafter invented”
• Avoid overlap: the “Deutsche Telekom” lesson
13. Licensing of IPR in media content
Why is it important to get it right?
• Deutsche Telekom/Arena
• DFL, German soccer league sold “pay tv” and “free tv” (note
designations) to Bundesliga matches for €220m to pay tv provider
Arena
• DFL sold the “internet” rights to Deutsche Telekom for €45m
• Deutsche claimed the definition of “internet rights” included the
right to transmit via cable and satellite (a breach by DFL of its
exclusive licence grant to Arena)
14. Licensing of IPR in media content
• “New media” is too broad a categorisation
• “Mobile”, “online”, “on-demand”, “interactive”, “PPV”
• ISPs, producers, telcos and technologists all speak
different languages
• Always look at the individual elements of the licence: new
media boundaries are not as clear as “established” media
15. Licensing of IPR in media content
Elements
1. Linear or non-linear?
2. Service-based definition?
3. Platform: specific or generic
4. Device: what limitations are relevant?
5. Windowing
6. Technological features
7. Retail model
8. Location for viewing: home, mobile
16. Licensing of IPR in media content
1. Linear or non-linear
• Linear: scheduled broadcast rights
• Non-linear: on-demand rights
• Likely to be the key distinguishing feature of new
media rights definitions
• Reflects business models
17. Licensing of IPR in media content
2. Service-based definition
• Licences specified with reference to a particular
service
• Narrow service-based definitions:
• Attractive to licensors
• But, unattractive to licensees – what if the service changes?
18. Licensing of IPR in media content
3. Platform
• Cable, satellite, terrestrial, internet etc
• “Electronic communications network” : this is
technologically neutral
• Can be supplemented with reference to “delivery by wire or
wireless means” “fixed or mobile”
• Platform neutrality likely to be less attractive to licensors
19. Licensing of IPR in media content
4. Device
• May be permissive, either with regard to end user
experience, or in order fully to describe the functionality of
the delivery mechanic
• May be a limitation on number of copies/types of device
• Mobile, home hubs, PCs etc….
20. Licensing of IPR in media content
5. Windowing
• Staggered licensing of rights (eg film, then DVD, then TV
etc).
• Consumer access window
21. Licensing of IPR in media content
6. Technological features
• Technological features of the model are likely to impact the
drafting, eg:
• Peer to peer models: users of a service may need to be
permitted to store data files, for the purpose of uploading
copies to other authorised users – this reflects the
distribution mechanic as opposed to the user experience
• PVR-based models: may require a licence to copy the
content away from the home
22. Licensing of IPR in media content
7. The retail model
• Move from broadcast economics to retail economics
• Subscription, pay per view, advertisements
• Payment model often conflated with the service, or sometimes
within the linear/non-linear distinction eg Video On Demand
Rights occasionally include “pay per view” qualification
• Usually helpful to separate the payment mechanism as an
additional qualification: may also clarify revenue share
mechanics
23. Licensing of IPR in media content
8. Location
• Home only
• Mobile/portable
• Commercial use
• Place-shifting?!
24. Concluding thoughts
• IPR is not an abstract concept…
• Understand:
• the technology;
• the distribution process; and
• the rights being granted
• Define the licence carefully!
25. Questions?
Robert Blamires
Digital Media Lawyer
robert.blamires@ffw.com
+44(0)20 7861 4136
