Intellectual propertyin a digital worldThe challenges and opportunitiesin media and entertainmentMedia & Entertainment
About this reportThis report was prepared by Ernst & Young in                      The results of this year’s study combin...
Table of contentsMedia & Entertainment companies face a persistent challenge .....................3Content distribution co...
Introduction2   |   Global Media & Entertainment Center
n            Media & Entertainment companies             face a persistent challenge    It has been more than a decade    ...
Content distributioncomplexity creates new risksIn today’s digital world, the number of distribution opportunities is dizz...
The eight arguments                                                                                                   cons...
IP laws exist, but enforcementis the key issueInternational copyright protection surfaced in the middle of the 19thcentury...
WIPO                                Anti-Counterfeiting Trade AgreementIn 1996, 89 countries signed        In 2011, severa...
IP laws exist, but enforcement is the key issue (continued)Authors’ rights                               Continuing effort...
Government action: graduated law responses                                                       Moral rightsThere is no s...
IP laws exist, but enforcement is the key issue (continued)Germany and the UK follow                         New rules fro...
Industry action:Center for Copyright InformationInstead of government intervention, in the US, the film, music and televis...
IP laws exist, but enforcement is the key issue (continued)                                       Disparities in national ...
ffSecondary liability. Most commonwealth countries                                  These disparities produce a legal unce...
Protection by design:IP finds an ally in technologyOver the last 20 years, technology and electronics companies have exper...
FingerprintingDigital fingerprinting is expected to play a growing role                       Fingerprinting was used succ...
Protection by design: IP finds an ally in technology (continued)Distribution technologiesDistribution-enabling technologie...
Consumers can benefit from thecloud in many ways, including:                                           The cloud also enab...
Distributors and aggregatorsbecome partners in protectionOver the years, content creators have wanted                     ...
Effective impact of IP                                                                                     Legal Framework...
An effective IP strategy doesn’t justprotect — it drives revenue growthThe rapidly shifting landscape presents numerous ch...
IP protectionReducing the risk of piracy is an enterprise-wide effort.Top-level management must set a tone that prioritize...
Conclusion: It’s time toshow leadershipThe international IP legal framework provides consistent         By focusing on par...
AppendixSources for duration of protectionbetween the G20 countriesCountry             Legislation (source used)Australia ...
24   |   Global Media & Entertainment Center
Global survey contactsGlobal contacts                                                                         Telephone   ...
Ernst & Young : Intellectual property in a digital world
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Ernst & Young : Intellectual property in a digital world

  1. 1. Intellectual propertyin a digital worldThe challenges and opportunitiesin media and entertainmentMedia & Entertainment
  2. 2. About this reportThis report was prepared by Ernst & Young in The results of this year’s study combine an analysis ofconjunction with the 2011 Forum d’Avignon. Bringing the business law framework within the G20, interviewstogether culture and cultural industries, the Forum of international experts — academics, artists, businessd’Avignon assesses economic and social issues, representatives and policy-makers — and discussions withincluding both social cohesion and job creation. the working group of the think tank “Forum d’Avignon.”Ernst & Young understands the importance of cultureand its economic impact, and has been a partner of the For more information about the Forum d’Avignon, visitForum d’Avignon since its first session. their website at publication contains information in summary formand is therefore intended for general guidance only. Itis not intended to be a substitute for detailed research,legal advice or the exercise of professional judgment.Neither EYGM Limited nor any other member of theglobal Ernst & Young organization can accept anyresponsibility for loss occasioned to any person acting orrefraining from action as a result of any material in thispublication. On any specific matter, reference should bemade to the appropriate advisor. Global Media & Entertainment Center
  3. 3. Table of contentsMedia & Entertainment companies face a persistent challenge .....................3Content distribution complexity creates new risks ........................................4IP laws exist, but enforcement is the key issue .............................................6Protection by design: IP finds an ally in technology ....................................14Distributors and aggregators become partners in protection ......................18An effective IP strategy doesn’t just protect — it drives revenue growth....... 20Conclusion: It’s time to show leadership.....................................................22Appendix .................................................................................................23Global survey contacts .............................................................................25 Intellectual property in a digital world | 1
  4. 4. Introduction2 | Global Media & Entertainment Center
  5. 5. n Media & Entertainment companies face a persistent challenge It has been more than a decade since Napster appeared on the Years of litigation and millions of dollars invested in protecting Content distribution is more complex than it has ever been, and digital has scene, pioneering a peer-to-peer intellectual property (IP) have not made IP an immaterial concept. It (P2P) online file-sharing service that resolved the issue. As digital media takes a village to create, distribute, enabled users to share MP3 files — for consumption grows at double- and deliver, track and protect content free. Wildly popular among a young, triple-digit rates, and as the number across the entire digital supply rebellious, web-savvy generation, of platforms, devices and distribution chain. There are legal frameworks Napster and P2P services that channels proliferates, safeguarding in place to help, but, ultimately, followed upended the media and content remains a persistent M&E companies will be able to drive entertainment (M&E) industry with challenge for M&E companies. more value from their IP assets their facilitation of massive copyright by collaborating across the digital infringement. Today, thanks to To truly address IP challenges, M&E landscape and around the globe. enhanced capacity, the use of companies need to work with all streaming is significantly developing members of the digital value chain — to access music and video services, including internet service providers and is the new challenge. (ISPs), search engines and new media distributors — to find a solution. Intellectual property in a digital world | 3
  6. 6. Content distributioncomplexity creates new risksIn today’s digital world, the number of distribution opportunities is dizzying —both in expanse and in the pace at which these opportunities are growing.New platforms, emerging economies and increased competition are drivingcontent owners to reach broader audiences, either through traditional ordigital distribution or a direct-to-consumer model — or both.However, in pursuing these distribution opportunities, M&E companies needto understand the risks.IP management Data protectionThe proliferation of products, High-profile security failures have These risks are set to spread beyondplatforms, devices and partnerships made data protection a top-of-mind network operators. M&E companieshas made the process of managing issue for many M&E executives. In are increasingly pursuing direct-contracts, rights, ownership and several cases, hackers have gained to-consumer relationships. As theyroyalty agreements much more access to online networks and do, they will face similar securitydifficult. systems, stealing not only proprietary concerns and brand risks. information but also personal Content creators do not solely customer data, such as names, Because M&E companies process distribute content that they own. addresses, passwords and credit card more and more personal data, they They also distribute a significant information.1 The financial costs of need to comply, especially in the amount of content they have the these breaches are often significant, European Union (EU), with the rights to but do not own. In this ranging from tens of millions to demanding requirements of data sense, a content creator is really a billions of dollars. The damage to a protection laws (e.g., EU Directives“bundler” of various IP elements. For company’s brand and its reputation 95/46 on protection of personal data example, when a studio distributes as a secure provider of online and 2002/58 dealing with eprivacy). a movie, there are several IP entertainment often costs far more. These requirements reach far beyond components of the film that it may mere security issues to encompass not own, such as the music. Keeping Security breaches cause obvious provisions requiring organizations to: track of the various content elements financial risks in the form of lost ffNotify national data protection and their associated rights, and revenues, restitution to harmed authorities of data processes clearing those rights, is an enormous customers and a hit to the affected challenge for all M&E companies as company’s share price. However, ffInform data subjects about the they create new ways to configure the risk goes beyond the immediate way their data is used content and distribute it across legal or financial consequences of multiple platforms. a data breach. Companies that are ffLegally secure transfers of data seen as lacking effective defenses outside the European Economic to safeguard both content and Area consumer data face significant ffDelete data when it is no longer reputational risk. Consumers won’t needed use a platform they don’t think is secure — and content creators won’t keep their valuable content on it. 1 Carolyn Giardina, “Scenios CEO Mark Davis Warns of Security Risk Surrounding ‘the cloud,’” Hollywood Reporter, 5 June 2011, via Dow Jones Factiva, © 2011 Nielsen Business Media; “Cloud computing’s growing pains: Break-ins and breakdowns,” Economist Intelligence Unit, 6 May 2011, via Dow Jones Factiva, © 2011 The Economist Intelligence Unit Ltd.; Ian Sherr, “Hackers Breach second Sony service,” The Wall Street Journal, 3 May 2011, via Dow Jones Factiva, © 2011 Dow Jones & Co.; Holman Jenkins, “Napster’s Revenge,” The Wall Street Journal, 1 June 2011, via Dow Jones Factiva, © 2011 Dow Jones & Co.4 | Global Media & Entertainment Center
  7. 7. The eight arguments consumers put forward to steal content 1. Timing. Many illegal users want earlier access to content beforePiracy windowed distribution.Creative America, a coalition of US of IP theft. When faced with real (or 2. Ease. It is often the easiestM&E companies, estimates that perceived) factors that limit their way to access digital media andpiracy has robbed the US of 140,000 ability to obtain legal products, many entertainment or to find thejobs.2 The International Music consumers believe that acquiring desired content.Association IFPI reports that more illegal material is the only viable 3. Price. Many consumers havethan one million jobs will disappear alternative to purchasing the desired limited disposable income, andfrom the creative industries in product.4 According to research by the price of legitimate contentEurope by 2015 if piracy is not industry-watcher Envisional, more may put it out of reach foraddressed.3 than 17% of internet traffic in the US certain segments. is infringing. Globally, that number isContrary to public perception, closer to 25%.5 4. Access. Providers limit thecopyright infringement doesn’t only production and/or distributionimpact the largest copyright owners BitTorrent accounts for of legitimate content, making itand distributors. It affects all creators, approximately half of the global and more difficult to obtain. Unlikewith independent artists and creators US infringing traffic — almost 99% of the US, many countries don’tfeeling the brunt of it. Unauthorized content shared on BitTorrent sites have services like Netflix oruse reduces revenues that content are infringing.6 However, BitTorrent Hulu or the ability to buy showscreators receive from legitimate sale is not the only culprit. Other online from iTunes.8and distribution of their efforts. The internet storage sites, such asexact economic cost to content cyberlockers and video streaming 5. Government restrictions.creators of digital piracy is not sites, contravene copyright laws. Some governments either limitknown, but it is substantial enough Unlawful IP use not only impacts or censor certain credibly threaten the adoption M&E company revenue, it also 6. Use format andof new digital business models for diminishes the compensation of interoperability. It is easier tocompanies in several M&E sectors. creators and workers and harms transfer illicit content, which communities, depriving them of jobs lacks digital rights managementOnly a few years ago, illegal physical and diminishing their tax revenues.7reproductions of CDs and DVDs were (DRM) or other controls, tothe M&E industry’s main worry. This It is particularly interesting to note other digital devices.has been supplanted by the massive that many of the reasons consumers 7. Timeliness. Sites like Netflixillegal copying of digital content. do not pay are linked to factors and Hulu are continually addingDigital content enables new forms that can be corrected by current more content. However, many members of the digital value chain. sites primarily offer older library titles. 8. Lack of education and awareness. Many consumers are unaware of the2 Rachel Abrams, “Industry groups form anti-piracy org; Creative America site to provide info requirements and objectives of to creative circle,” Daily Variety, 6 July 2011, via Dow Jones Factiva, © 2011 Variety, Reed Business Information. copyright law and the impact of3 “IFPI Digital Music Report, 2011,” IFPI website, accessed 18 October 2011. copyright infringement on the creative industry.4 Anthony Miyazaki, Alexandra Aguirre Rodriguez and Jeff Langenderfer, “Price, scarcity and consumer willingness to purchase pirated media products,” Journal of Public Policy & Marketing, Spring 2009, © 2009 American Marketing Association.5 House Judiciary Subcommittee on Intellectual Property, Competition and the Internet hearing: ”Promoting investment and protecting commerce online: The ART (Artists’ Rights and Theft Prevention) Act, the NET (No Electronic Theft) Act and illegal streaming,” Congressional Documents and Publications, 1 June 2011, via Dow Jones Factiva, © 2011 Federal Information & News Dispatch. 8 Jenna Wortham, “Will Netflix cure movie piracy?” NYT blogs, 28 April 2011, via6 Ibid. Dow Jones Factiva, © 2011 The New York7 Ibid. Times Co. Intellectual property in a digital world | 5
  8. 8. IP laws exist, but enforcementis the key issueInternational copyright protection surfaced in the middle of the 19thcentury on the basis of bilateral treaties. There are a number oftreaties which (together with implementing legislation at the nationallevel) provide a consistent global framework to protect IP.The Berne Convention TRIPSIn response to the need for a should generally be protected for at Signed in 1994, TRIPS representsuniform system, the Littéraire et least 50 years after his or her death.9 the most important attempt toArtistique Internationale (the ALAI), establish a global harmonization offounded by Victor Hugo, pushed for Today, the main provisions of the IP protection. It creates internationalexclusive rights for creative works Berne Convention remain in effect standards for protecting patents,to be automatically in force without and the will behind Victor Hugo’s copyrights, trademarks and design.any prior formality of declaration initiative is still largely intact. More It also provides a dispute settlementor registry. As soon as a work is than 160 countries are members of schema and establishes enforcementwritten or recorded or as soon as the Berne Convention and almost all procedures at the intergovernmentalthe expression of the work is fixed, nations are members of the World level. All 153 WTO members are alsoits author is automatically entitled Trade Organization (the WTO). The members of the agreement on all rights in the work and to any WTO requires in the Agreement on This includes all EU Member States,derivative work. These rights were Trade-Related Aspects of Intellectual the US and China.10enshrined in the Berne Convention, Property Rights (TRIPS) that futureinitially adopted on 9 September members accept almost all of the1886. The Berne Convention further conditions of the Berne Convention.asserted that an author’s copyrightDuration of protection of copyright/author right from the author’s death*100 years Mexico 70 years Australia Brazil France Germany Italy Russia Turkey United Kingdom United States 60 years India 50 years Canada China Japan Saudi Arabia South Korea* The durations noted are those applicable in most circumstances. In certain circumstances, the period of protection may be shorter or longer. For instance, in certain situations and especially when it is not possible to identify the author (orphan works), and/or in the collective works, and/or for anonymous/pseudonymous works and/or for works for hire, the duration of protection for these rights is in principle the number of years indicated above from the publishing date, except for the US (which uses 95 years from publication or 120 years from creation, whichever is shorter).11 See appendix for source.9 “Knowledge thieves are still thieves,”, 6 April 2011, via Dow Jones Factiva.10 “The Globalisation of Intellectual Property Rights: Four Learned Lessons and Four Theses,” Global Policy, v. 1, May 2010.11 US Copyright Law TITLE 17 > CHAPTER 3 > § 302.6 | Global Media & Entertainment Center
  9. 9. WIPO Anti-Counterfeiting Trade AgreementIn 1996, 89 countries signed In 2011, several countries signed enforcement procedures in placethe World Intellectual Property the Anti-Counterfeiting Trade to permit effective action againstOrganization (WIPO) Copyright Agreement (ACTA). The signatories online infringement. ACTA leavesTreaty, which provides additional include Europe‘s 27 countries, it to the individual companies toprotection for on-demand, the US, Canada, Japan, Mexico, determine the best laws to combatinteractive communication Morocco, New Zealand, Singapore, piracy. Industry groups such as thethrough the internet. It forms South Korea and Switzerland. Its Recording Industry Associationa special agreement under aim is to improve the enforcement of America and the Motion Picturethe 1886 Berne Convention to of IP rights to combat piracy. In Association of America believe thisenable computer programs and addition to film and music, the ACTA agreement is a positive step towardthe arrangement and selection covers other categories, such as curbing online piracy. Unfortunately,of databases to be subject fashion items, cars and medicines. the ACTA does not include China —to copyright protection. The It calls on countries to have a source of widespread piracy.13treaty also allows authors tohave control over the rental anddistribution of their works, andprohibits the circumvention oftechnological measures for theprotection of works and theunauthorized modification ofrights management informationcontained in works. Signatoriesinclude all EU Member States,China and the US.12 12 “Intellectual Property Strategy – Frequently Asked Questions,” Plus News Pakistan, 24 May 2011, via Dow Jones Factiva. 13 “Anti-counterfeiting accord: MEPS set out content conditions for ratifying the deal,” US Fed News, 24 November 2011, via Dow Jones Factiva, © 2010 HT Media Ltd.; Ted Johnson, “Piracy pact lacks punch; China mostly let off the hook on counterfeits,” Daily Variety, 7 October 2011, via Dow Jones Factiva, © 2010 Reed Business Information; Jonathan Lynn and Doug Palmer, “Countries to fight trade in pirated goods,” National Post, 7 October 2010, via Dow Jones Factiva, © 2010 National Post. Intellectual property in a digital world | 7
  10. 10. IP laws exist, but enforcement is the key issue (continued)Authors’ rights Continuing efforts at a national leveland copyright: As countries move toward greater However, if voluntary actions bytwo different cooperation, they are also re- companies don’t meaningfully protect examining their own rules to protect IP, legal and regulatory sentimentapproaches for and promote IP. Regulators in many could swing in favor of a morecontent protection countries would prefer that companies interventionist posture. find their own solutions, and in manyCopyright law countries/ countries this is indeed happening.civil law countriesWorks are protected either by Enforcement beyond the legal frameworkcopyright or the authors’ rights,depending on whether it is a civil Although many useful laws are in Among the interesting examples arelaw or common law system. The place, proper global enforcement countries where, surprisingly, thetwo approaches are equally split of IP law has yet to be addressed. enforcement efforts are significant.among the G20 countries. One stumbling block may be the In Russia, the number of cases with costs to prosecute and enforce decisions is consistently increasing:Both systems protect materials judgment of an infringement in 1,500 in 2009 and 1,900 in 2010.created, but not ideas.14 one country against a guilty party However, the increasing number ofHowever, the scope of the who resides elsewhere. The justice cases has not resulted in a significantprotection granted by copyright system is often slow and expensive decrease in piracy.16 In China, theis generally broader than the for the owners of copyright, and the number of criminal cases involvingscope of authors’ rights because remedies are relatively inadequate infringement on intellectual propertycopyright aims to protect the for both the owners of rights and rights (IPR) reached 3,942 in 2010,investment more than the the end users benefiting from up 8% from 2009. A total of 6,000expression of the creativity of online infringement. As a result, the people were judged guilty of IPRan individual. standard court system may not be infringement. Moreover, Chinese the most appropriate vehicle for courts at all levels in the countrySince the adoption of the Berne resolving massive IP infringement. have decided 41,718 IPR-related civilConvention, copyright and Participants across the M&E supply cases, representing a 37% year-on-authors’ rights are partially chain are working together to year increase.17aligned on minimum principles. enforce the existing legal frameworksHowever, some important and educate consumers on legaldifferences still remain (e.g., alternatives to piracy.moral rights, work for hire).15 16 Russian court practice and legislation databases: Garant (Гарант) and Consultant Plus (Консультант Плюс); Russian Higher Arbitration Court ( electronic database of court cases. 17, accessed 27 September 2011.14 WIPO Intellectual Property Handbook: 16 Russian court practice and legislation databases: Garant (Гарант) and Consultant Plus Policy, Law and Use, Chapter 2, Fields (Консультант Плюс); Russian Higher Arbitration Court ( electronic database of Intellectual Property Protection. of court cases.15 Sundara Rajan, Mira T., “Moral 17 “6,000 people guilty of IPR infringement in 2010,” Intellectual Property Protection in China Rights and Copyright Harmonization: website, Prospects for an ‘International Moral html, accessed 27 September 2011. Right’ (April 5, 2002),” 17th BILETA Annual Conference Proceedings.8 | Global Media & Entertainment Center
  11. 11. Government action: graduated law responses Moral rightsThere is no simple or complete solution to piracy. An effective approach may In almost all countries covered byinvolve a combination of measures targeting both illegal use and illegal offers this survey, authors are grantedfrom online players, such as video streaming websites. the moral rights, which generally include (but are not limited to):The HADOPI three-strikes law ffRight of attributionSeeking alternate forms of redress, France recently created Haute ffRight to publish a workAutorité pour la diffusion des oeuvres et la protection des droits sur anonymously or pseudonymouslyinternet (HADOPI), a government agency assigned to ensure that internetproviders screen their internet connections to prevent the exchange of ffRight to the integrity of the workcopyrighted material without prior agreement from the copyright holders.Under a three-strikes regulation, repeat offenders of illegal downloading of These rights are distinct from anycopyrighted material could be banned from having internet service and are economic rights tied to copyright.subject to a criminal fine. Moral rights have had a less robust tradition in countries that adhere toA recent study issued by the French government found that 50% of all copyright laws where the exclusiveFrench believe HADOPI is a positive initiative and that it motivated them to rights tradition is likely inconsistentaccess online content ”more often legally.” The study also found that 72% with the notion of moral rights whenof the 100 people who personally received a HADOPI warning, or knew of compared to countries that followsomeone who did, said they either ended or reduced illegal downloading a civil law system. In countriesas a result of the law.18 The first year report, issued in September 2011, that use civil law, moral rights arestates that 22 million infringements were reported by right holders considered to be an emanation ofor their representatives in France, triggering 580,000 notifications to the personality of the author andinternet users, of which 35,000 were notified twice. The limited number of cannot be assigned to a third party.cases (lower than 60) transmitted to prosecutors should not mitigate the However, such an assignment isexpected impact of this new regulation.19 permitted in certain countries that follow copyright laws.20Initially widely criticized for its repressiveness and amended severaltimes in France before being passed and implemented, the paradox isthat HADOPI has in practice inspired other governments to implement orconsider graduated responses to fight piracy.18 “HADOPI Study Says France’s Three-Strike Law Having Positive Impact on Music Piracy,” 20 Marjut Salokannel and Alain Strowel,, 16 May 2011, via Dow Jones Factiva, © 2011 Nielsen Business Media. Study contract concerning moral rights in the context of the exploitation of19 “HADOPI yearly activity report 2010,” HADOPI website, works through digital technology, http:// files/page/pdf/rapport-d-activite-hadopi.pdf, accessed 27 September 2011. docs/studies/etd1999b53000e28_ en.pdf, accessed 27 September 2011. Intellectual property in a digital world | 9
  12. 12. IP laws exist, but enforcement is the key issue (continued)Germany and the UK follow New rules from the EU CommissionFrance’s lead regarding IP rights23In May 2011, Bernd Neumann, The EU Commission recently announced its objective to establish new rulesGerman Minister of State to the that strike the right balance between ensuring reward and investment forFederal Chancellor and Federal creators and promoting the widest possible access to goods and servicesGovernment Commissioner for protected by IP rights.Culture and the Media, announcedcopyright law reforms. While the “Ensuring the right level of protection of intellectual property rights inGerman authorities initially criticized the single market is essential for Europe’s economy. Progress dependsthe graduated response, they are on new ideas and new knowledge,” said Internal Market Commissionernow intending to implement a system Michel Barnier. “There will be no investment in innovation if rights are notcloser to HADOPI.21 protected. On the other hand, consumers and users need to have access to cultural content, for example online music, for new business modelsIn the UK, after initially favoring and cultural diversity to both thrive. Our aim today is to get the balanceblocking websites that provide between these two objectives right for IPR across the board. To makeaccess to illegal content, authorities Europe’s framework for intellectual property an enabler for companies andare moving ahead with a graduated citizens and fit for the online world and the global competition for ideas.”response. During the summer of2011, the UK government confirmed To achieve such objectives, the EU Commission has highlighted theits intention to implement the following initiatives:graduated response set out in the Introduce legislation that allows the digitization and online availability ffUK Digital Economy Act 2010 (the of orphan works (books and newspaper or magazine articles that areDEA). Effective 2013, the UK is still protected by copyright, but where the rights holders are not knownplanning an email communication as or cannot be located to obtain copyright permissions) targeting thea first step. This decision reflects all creation of European digital libraries that preserve and disseminate10 recommendations outlined in an Europe’s rich cultural and intellectual heritage. Please note thatindependent review on intellectual according to the last proposal of the European Commission for aproperty in the UK, which was directive on orphan works, this notion shall be enlarged and cover workscommissioned by Prime Minister such as: “(i) works published in the form of books, journals, newspapers,David Cameron and authored by Ian magazines or other writings, and which are contained in the collectionsHargreaves.22 of publicly accessible libraries, educational establishments, museums or archives, or (ii) Cinematographic or audiovisual works contained in the collections of film heritage institutions, or (iii) Cinematographic, audio or audiovisual works produced by public service broadcasting organisations21 Wolfgang Spahr, “German Culture Minister Announces Copyright Reform,” http://www. before 31 December 2002 and contained in their archives.” german-culture-minister-announces- Simplify the collective management of copyright in the EU. Collecting ff copyright-1005206402.story, 27 May societies license the rights of creators and collect and distribute their 2011; “l’Allemagne envisage un système de réponse,” Le Monde website, 30 May royalties. 2011, accessed 27 September 2011.22 Ian Assess the feasibility of creating a European copyright code, including ff Hargreaves, Digital opportunity – a review of Intellectual Property and Growth the creation of an optional “unitary” copyright title to provide rights (independent report), May 2011; “UK holders with the flexibility to choose whether to license and enforce their moving ahead with graduated response after Hargreaves Review of IP,” http:// copyrights nationally or on a multi-territory basis. moving-ahead-with-graduated-response- Explore to what extent voluntary measures can be used to reduce the sale ff after-hargreaves-review-of-ip/, 10 August of counterfeit goods over the internet by involving the stakeholders most 2011; “Graduated Response Mapped out in UK Digital Economy Bill,” http:// concerned by this phenomenon (rights holders and internet platforms). graduated-response-mapped-out-in-uk- 23 Communication from the European Commission, “A Single Market for Intellectual digital-economy-bill/, 22 November 2009, Property Rights - Boosting creativity and innovation to provide economic growth, high accessed 27 September 2011. quality jobs and first class products and services in Europe” 24 May 2011.10 | Global Media & Entertainment Center
  13. 13. Industry action:Center for Copyright InformationInstead of government intervention, in the US, the film, music and televisionindustries, in partnership with ISPs and other distributors, have formed aconsortium under the Center for Copyright Information. Established in responseto the rising loss of revenue from online piracy, the center has a mandate toeducate consumers on copyright protection and direct them to lawful sourcesto obtain content.24Education measures include a system of alerts to inform internet userswhen potential content infringement is identified on their internet accounts.The system consists of five consecutive alerts, all to provide internet userswith information about content infringement. The first two alerts existsolely to inform. However, the third, fourth and fifth alerts require the userto acknowledge receipt of the alert by clicking a pop-up notice or similarmechanism. If the user receives a fifth alert, the ISP may take steps to helpresolve the content infringement matter. These measures include temporaryreductions of internet speed, redirection to a landing page until the usercontacts the ISP and is educated on copyright, or any other measures the ISPdeems necessary. Unlike France’s HADOPI law, this alert system does not resultin internet account suspension or termination. Rather, it is meant to educatein the hope that creating awareness of illegal action will encourage offendingusers to abandon any further internet content fraud.24 “Content Owners, ISPs Reach Pact to Deter Online Piracy With ‘Progressive’ Measures,” Telecommunications Reports, 15 July 2011, via Dow Jones Factiva, © 2011 Aspen Publishers; “MPAA, RIAA join with ISPs to counteract piracy,” Broadcast Engineering, 14 July 2011, via Dow Jones Factiva, © 2011 Penton Business Media. Intellectual property in a digital world | 11
  14. 14. IP laws exist, but enforcement is the key issue (continued) Disparities in national case laws regarding ISP liability: the stakeholder solution The liability of ISPs to protect online content has become a top-of-mind issue for many countries. Areas of particular concern include: ff rise of P2P and other methods allowing illegal The downloading or access ff evolution of the web toward web 2.0 services, The where users can generate or mediate content by themselves ff growing importance of streaming and linking The websites A study of legal systems and case laws suggests a more complex picture of the liability issues than litigation has generated. The reasons for this complexity are linked to the ease of disseminating information and the difficulty for copyright owners to control the subsequent use of their work. In trying to balance the author’s rights with legitimate public interest, three approaches have emerged: ffConditional liability. ISPs can benefit from a limitation of their liability if they act “expeditiously” to remove or disable access to content upon “actual knowledge or awareness” of “illegal activities.” This system, known as “Notice and Takedown,” has been adopted by the European E-Commerce Directive. The Directive specifies that an application of strict liability would impair the expansion of electronic commerce within the EU.25 25 Directive 2000/31/EC on electronic commerce, 8 June 2000, Preamble 40.12 | Global Media & Entertainment Center
  15. 15. ffSecondary liability. Most commonwealth countries These disparities produce a legal uncertainty, but with recognize the notion of vicarious liability (P2P) file effective collaboration, countries could achieve a single, sharing and secondary liability in copyright law, which consistent international regulation. imposes liability on one person for the negligence of another to whom the former has entrusted (or Such disparities result in a legal uncertainty which ”delegated”) the performance of some task on their can also be mitigated through wide and effective behalf.26 In Australia, the Copyright Act adopted collaboration through signed agreements between in 2000 recognizes an offense of “authorization” stakeholders (contractual approach). consisting in a form of vicarious liability for ISPs. To In the meantime, contractual law seems to be the be found liable for the infringement of copyright only way to efficiently address this issue and reach a committed through the use of their services, the balance between both the interests of the public and courts are required to take three factors into account: of the authors. To this end, major record companies Whether the ISP had the power to prevent the ff and important ISPs have already adopted this solution infringement to reduce their loss of profit in the digital environment. In France, for instance, Universal Music has signed ff nature of any relationship between the ISP and The an agreement with the music service Deezer to allow the infringer streaming of its catalog.30 Universal Music has also joined Whether the ISP took reasonable steps to prevent ff Warner Music and Sony Music in signing with a leading infringement27 Chinese search engine to allow the streaming or direct download of their respective catalogs.31ffDirect liability. This system can be seen as a clear recognition of the court’s power to issue orders against ISPs to prevent illegal activity online. In a recent case in the UK, an internet access provider (IAP) was ordered to take direct action to block a website that made available unlawful copies of film, television programs and other protected works without permission and despite a previous court order.28 In Japan, an ISP was found liable for copyright infringement by “making copyrighted works transmittable” and “public transmission of copyrighted work” through a P2P file- sharing service. 2926 Alan Strowel, “Peer-to-Peer file sharing and secondary liability in copyright law,” ebooks/1847205623%20Peer-to-peer%20File%20Sharing.pdf, accessed 27 September 2011.27 University of New South Wales v. Moorhouse, (1975) HCA 26; (1975) 133 CLR 1 (High Ct. Australia, 1 August 1975).28 Twentieth Century Fox Film and Others v. British Telecommunications PLC (High Court [Chancery Division] 28 July 2011).29 JASRAC v. MMO Japan (Tokyo District Court, 29 January 2003).30 “Les Echos: Deezer, Universal Music reach agreement over music catalogue,” European Intelligence Wire, 27 September 2011, via Dow Jones Factiva, © 2011 AII Data Processing Ltd.31 “Baidu, Record Companies Reach Digital Music Deal,” Telecommunications Report, 1 August 2011, via Dow Jones Factiva, © Copyright 2011 Aspen Publishers. Intellectual property in a digital world | 13
  16. 16. Protection by design:IP finds an ally in technologyOver the last 20 years, technology and electronics companies have experienced incredible growth basedon consumer appetite for music, video and books. Given that it is consumers driving demand for devicesthat enable content access and consumption, it may be time to team with technology and electronicscompanies to embed content protection into the devices.Security technologiesAlthough there is no one technology solution to protectIP from unauthorized use, many M&E companies are Watermarkingdeveloping security strategies that employ a suite of Like a physical serial number, a watermark is a piece oftechnologies and capabilities to: information added to content that establishes the identity and ownership of an individual piece of content. It allowsffIdentify ownership and the source of a piece of owners to enforce copyrights by identifying and tracking content. Technologies used for this purpose include music, movies, television programming and other material metadata and watermarking. as they move through various distribution channels.33ffProtect by providing content security and tracing Watermarking is generally an after-the-fact tool because it during distribution. Technologies may include allows content creators to trace their content as it is being protected streaming and DRM to deter unauthorized used. However, the biggest benefit of watermarking is its distribution by controlling access to the content. potential for deterring unauthorized uses of content, ratherffDetect data leaks. than enforcing ownership rights after the fact.Two types of technology that are receiving significant For example, several studios are experimenting withattention from M&E companies are watermarking and premium on-demand offerings of some major films.fingerprinting.32 For US$30, consumers can watch movies at home 60 days after they open in theaters through an exclusive streaming deal with DirecTV.34 The studios insisted that DirecTV use watermarking technologies to allow them to track copies to individual purchases should the films end up online.35Laws and enforcement are Watermarking alone does not prevent piracy. However, studios and other content creators are instituting it as partnecessary but not sufficient. of an overall package of content protection measures.32 Linda Moss, “Survey: content creators at risk sans tracking tool; bottom lines could be damaged unless monitoring, measuring occur,” Multichannel News, 19 November 2011, via Dow Jones Factiva, © 2007 Multichannel News.33 Digimarc 2010 Form 10-K, accessed 27 September 2011.34 “DirecTV locks newer-run digital movies—for a price,” St. Paul Pioneer Press, 20 April 2011, via Dow Jones Factiva, © 2011 NewsBank; Michelle Kung and Ethan Smith, “Filmmakers pan DirecTV plan...” The Wall Street Journal, 21 April 2011, via Dow Jones Factiva, © 2011 Dow Jones Co.; “DirecTV to launch Home Premiere service...” Los Angeles Daily News, 20 April 2011, via Dow Jones Factiva, © 2011 Los Angeles Daily News.35 Philip Hunter, “Content security vendors caught in battle between studios, theaters,” Penton Insight, 8 April 2011, via Dow Jones Factiva, © 2011 Penton Business Media; Cynthia Littleton, “DirecTV key to VOD; Satcaster worked with studios on test for new window,” Daily Variety, 20 April 2011, via Dow Jones Factiva, © 2011 Reed Business Information.14 | Global Media & Entertainment Center
  17. 17. FingerprintingDigital fingerprinting is expected to play a growing role Fingerprinting was used successfully during the 2008in protecting and monetizing content. Like a human Olympics. NBC aired 2,000 hours of live streamingfingerprint, every piece of content is unique in its own content and 3,500 hours of on-demand content. As anway. A digital fingerprint is an exclusive pattern of ones ad-supported venture, driving traffic to the NBC.comand zeros that identifies content. This can be either a site was critical to monetization. To prevent users fromwhole piece of content or specific portions of it. Content capturing the video and posting it to their own websites,is scanned to create a pattern that is mapped, stored and NBC worked with YouTube to employ a fingerprintingmatched to protect content. system that helped NBC monitor video as it traveled across the internet. The technology generated a digitalUnlike watermarking, digital fingerprinting does not fingerprint in real time that compared NBC’s footage tomark or otherwise modify the content. Fingerprints are content uploaded to YouTube. If such content was found,effective even after compression or degradation, so that it was blocked from being uploaded.38the piece of content can still be detected in the poorestquality clip. Because it can identify small pieces of Both watermarking and fingerprinting offer multiplecontent, it even works on mash-ups — files that combine benefits, including:snippets of several different pieces of content, such as ffEstablishing ownership, copyright and contentmusic or video.36 creatorship, and allowing for quicker reaction toFingerprinting can help content owners identify TV shows piracy when it occursand films that are posted on video-sharing sites without ffCreating a deterrent effect that mitigates potentialtheir permission, and enable the video-sharing site to damageeither remove the content or share advertising revenuewith the content owner. For example, if a user wants to ffEncouraging increased sales of legitimate contentupload a video clip onto a user-generated video website, ffReducing the risk of litigation from copyright ownersthe site’s fingerprinting technology would identify theclip and check its database for distribution rules given ffEnhancing the content owner’s reputation as a sociallyby the owners. If the content owner does not give responsible partner that lives up to its obligation topermission for the clip to be shown, it would be blocked protect copyright holdersfrom uploading. Alternatively, the video may be allowedto load, with the provision that the content owner shares Taken together, watermarking and fingerprinting providein any advertising or other revenues that the clip might a layered content-security approach that provides thegenerate. Beyond blocking uploads, content creators can most effective way to protect content in the digital world.use fingerprinting technology to scan internet sites todetermine where their content is playing, and put in placemeasures to either take down or monetize it.3736 Philip Hunger, “Civolution adds SeaChange to partner list for watermarking,” Broadcast Engineering, 27 June 2011, via Dow Jones Factiva, © 2011 Penton Business Media.37 “Identifying and managing digital media: a technology comparison of digital watermarking and fingerprinting,” Digimarc website, accessed July 2011.38 Amy Chozick, “NBC rallies for the count; networks the Olympics to test measures of new media,” The Wall Street Journal, 16 February 2010, via Dow Jones Factiva, © 2010 Dow Jones & Co.; Niels Thorwirth, “Tech tools can ward off pirates,” Multichannel News, 20 July 2009, via Dow Jones Factiva, © 2009 Multichannel News, Reed Business Information, a division of Reed Elsevier, Inc. Intellectual property in a digital world | 15
  18. 18. Protection by design: IP finds an ally in technology (continued)Distribution technologiesDistribution-enabling technologies provide another means by which the M&Esupply chain is protecting intellectual property.Streaming services Cloud computingAlthough P2P technology remains Cloud offerings provide another Not all of the large M&E companiesa thorn in the side of many M&E distribution method for consumers are participating in UltraViolet —companies, newer, legitimate to experience content across digital some are building their own systems.distribution technologies have gained platforms whenever, wherever and Apple’s iCloud service, launched intraction. Services such as Netflix from any device without resorting October 2011, enables consumers(television and film) and Deezer to piracy. The Digital Entertainment to download and access all of their(music) stream content that is readily Content Ecosystem (DECE) — a iTunes content across multiple iOSavailable, secure and affordable. consortium of entertainment, devices and PCs.40 In May 2011, software, hardware and retail Google announced the availability companies — has developed a of its Music Beta service, which will universal format that makes storing enable users to store and access their and using content easier. Its cloud music remotely.41 system, called UltraViolet, lets consumers buy and watch movies These cloud systems all use a and TV shows on any device — a common set of features: television, game console, tablet, ffConsumers access content from a PC, Blu-ray player or mobile device. group of external servers Content sharing with a small group will also be allowed within limits.39 ff system authenticates the user The One of UltraViolet’s key advantages ff system enables the consumer The is that it brings standardization to the to use the content on a variety of digital locker concept. This should devices help give consumers confidence This allows consumers to buy the that they can “buy it once and play content once without having to it anywhere.” By the end of 2011, copy it for multiple devices and then participating companies will sell access it directly from the web, likely DVDs and digital downloads with the through service providers. UV logo. Consumers will begin to see the logo on a range of consumer electronics hardware. 39 “UltraVioletTM Begins B2B Deployment in U.S. Market,” Business Wire, 13 July 2011, via Dow Jones Factiva. 40 “Apple to Launch iCloud on October 12,” Business Wire, 4 October 2011, via Dow Jones Factiva. 41 “Google unveils cloud-based music service to rival Amazon,” Associated Press Newswires, 10 May 2011, via Dow Jones Factiva.16 | Global Media & Entertainment Center
  19. 19. Consumers can benefit from thecloud in many ways, including: The cloud also enables companies to establish a direct relationship with Dumb cloud vs. their customers, many of whom will smart cloudffMeeting the increasing demand go directly to the provider for branded Cloud technology has evolved for anytime, anywhere, any device media and entertainment, bypassing significantly since its inception. access to content and services intermediaries. Cloud delivery allowsffImproving the customer companies to analyze consumer use Dumb cloud (Cloud 1.0) refers to experience by safeguarding patterns and preferences, which can the traditional cloud service offering content in a location that is be used to create new and profitable of storing and accessing content on immune to hard drive crashes and products. If they are designed with a remote server via the internet. stolen devices effective recommendation engines, Smart cloud (Cloud 2.0) represents cloud services should drive more long-ffSaving money because they won’t the next generation in cloud tail content purchases. have to purchase media-playing computing capabilities. Smart clouds devices such as Blu-Ray players However, for all its opportunities, enable anytime, anywhere, secure or storage devices with smaller the cloud also presents both M&E content distribution and can include: hard drive companies and consumers with ffAccess from multiple devices several risks. From an industry (tablets, smartphones, internet-For M&E companies, the cloud is not perspective, M&E companies mayonly about storage and access. It has connected TVs, PCs) lose revenue from not being able tothe potential to transform business sell the same content to consumers ffAuthenticated access so thatmodels. Cloud storage and services on multiple devices. This loss may not only those users with the right tooffer several new potential revenue be offset by the new revenue streams access the material can do sostreams and greater pricing flexibility. the cloud creates. From a consumerFor instance, a content owner can ffRobust DRM protection of perspective, hosting content inintroduce new choices for consumers, content so that it cannot be the cloud exposes consumers tosuch as pay per each use, pay for five pirated by unauthorized cloud significant privacy issues. Companiesuses, pay to own and share, etc. access or illegally copied by will not only have access to personal authorized users information, they will be able to use it to profile consumption behaviors and ff recommendation engine that A target consumers in ways they may recommends content based on not have consented to. consumer preference inputs or content choices ffAnalytics to capture data such as customer demographics, content use, etc. Intellectual property in a digital world | 17
  20. 20. Distributors and aggregatorsbecome partners in protectionOver the years, content creators have wanted As the industry evolves, however, the interestsdistributors and aggregators to take a more active of content creators, distributors and aggregatorsrole in helping them control access to content. Until are not only aligning, in some cases, such as withrecently, however, they have been stymied because Comcast and NBC, their businesses are converging.the interests of content creators, distributors and This convergence means that distributors andaggregators weren’t necessarily aligned. aggregators have a greater interest in protecting professionally produced content. They want toTraditionally, content creators want to sell or rent profit as they sell legal music and video to theircontent and build audiences to generate ad revenue. customers, and they recognize that their ownDistributors and aggregators have different growth depends on delivering secure content.value drivers. ISPs want to sell profitable, high-speed data packages. For other aggregators, the Telecommunications companies may have anobjective is amassing eyeballs to sell advertising. equally strong interest in prioritizing certainThis divergence has created sizable financial types of content to limit the significant broadbandand reputational risks for many distributors and investment required to accommodate ever-growingaggregators, and caused tremendous friction in downloads and video streaming.relationships with content creators. As partners in the protection of content, producers,Some organizations, such as Research4Life, have distributors and even government agencies aremade portfolios of scientific publications available, joining forces to help combat piracy. HADOPI androyalty free, to developing countries for research the Center for Copyright Information (discussedand educational purposes.42 Similarly, some earlier) are two such examples.creators are willing to broadly share their works,either through open licenses, such as creativecommons, or simply by not enforcing their rights.The risks of not working togetherffRoyalty risks. Inadequate IP management exposes ffDistribution risks. In as much as content creators M&E companies to several royalty risks, including: face financial and reputational risks for selling content underpayments, overpayments, and a lack of an they don’t have the rights to, distributors face similar audit trail to support payments, making the company risks; some are distributing content that they don’t vulnerable to claims. have the rights to. Like content creators, distributors have an obligation to ensure that artists are being paidffRights risks. There is a significant reputational risk for their efforts. In a fast-moving market, distributors that stems from not properly clearing rights and may rush to market with new products without having safeguarding assets. A content creator that does not all the proper rights agreements in place. This period, manage and protect rights properly risks damaging from idea to execution, creates significant financial its reputation among content creators — directors, and reputational risks. producers, authors, musicians, etc. This may result in a loss of access to creative talent, both in house and ffLegal risks. Improper IP management can result in third party. criminal liability. IP infringement can also mean paying significant damages to compensate for the loss of revenues for rights holders.42 “Over 700 Elsevier Science & Technology Books Now Available in Research4Life,” PR Newswire (US), 10 January 2011, via Dow Jones Factiva.18 | Global Media & Entertainment Center
  21. 21. Effective impact of IP Legal Framework on the development of legal offers Most surveyed countries are showing their will to enforce measures against online piracy but an important issue for IP protection remains the delay taken by legal offers to develop accordingly.Accountability for IP protection In its report on the application of directivestrengthens digital ecosystems 2004/48/EC on the enforcement of IP rights,43and preserves cultural diversity the European Commission considered piracy was notably caused by this lack of legal offers,As the distribution landscape grows in size, scope and complexity, stating that this lack “has led many law abidingparticipants are aligning their value chains and partnerships. For citizens to commit massive infringement ofexample, 10 years ago, it would have been inconceivable that copyright. On this topic, the Commissionretailers such as Fnac or Walmart would be in the digital content recommends a double approach:distribution business. But in a hyper-competitive retail market, “New regulation to target those who trade in ffboth companies see digital content distribution as a driver of their counterfeit goods over the internet,core businesses. “The creation of a European framework for ffFinancial success and managing reputational risk are no longer online copyright licensing would greatlyabout what one company does or doesn’t do — they are about the stimulate the legal offer of protectedpartnerships and arrangements companies make. Interconnection cultural goods and services across the EU.”means that a mistake by one impacts others in the value chain.Trust is indispensable to making the entire ecosystem function. If the law may seem unable to effectively create or develop legal offers ex nihilo, inAll members of the value chain have a vested interest in making many countries the strengthening of the IPsure that what’s being distributed is valid and legal. They are enforcement framework has shown to bebeing asked to take more responsibility for their impact on the an enhancement factor for the success andcommunities in which they operate. However, the community they diversification of legal offers while failure to doserve is more than geographic. It comprises all the creative people so undermines investment both in new contentwho make informing and entertaining the public possible — writers, and in digital platforms that use content.producers, directors, musicians and authors. ff European Grouping of Societies of TheDemanding greater accountability could preserve the diversity of Authors and Composers, in a submission44creative content by reducing the need for independent creators to issued in March 2011 on this subject,invest in enforcement that they often cannot afford, particularly in stresses that in the UK, which can bethe digital world. considered as having one of the toughest laws for IP protection, there are at least 24In the digital age, the creative community is searching for a legal services of online musicbusiness model that will allow them to earn a fair living at a timethat their work is often stolen without earning them a dime. M&E ffSweden is the “World’s Dominantcompanies have a duty to achieve commercial success in ways that Information Economy” according to the IDC/respect all of the people across the value chain. This means doing World Times Information Society Index,45all they can to make sure that IP rights owners are adequately thanks to a severe IP framework and acompensated for their work. highly competitive ecommerce sectorWhen M&E companies meet the needs of the present, they are Based on the above experiences, it appears thatalso ensuring their future. Being accountable for adequately strengthening IP rights protection contributescompensating rights holders forms the basis for the future of to favor the development of diverse and highthe business. Adequately managing and protecting IP serves as quality legal offers based on the collaboration ofa cornerstone of any creative relationship. M&E companies that all stakeholders in a digital environment.are in violation of rights and usage agreements will be viewedas untrustworthy. This is a huge reputational risk as the world 43 becomes more digital. It could threaten the very 2011/intellectual_property_rights_en.htm, accessed 27 September 2011.survival of those distributors and aggregators that choose not to 44 accountable. download/017VDH11.pdf, accessed 27 September 2011. 45, IDC website, accessed 27 September 2011. Intellectual property in a digital world | 19
  22. 22. An effective IP strategy doesn’t justprotect — it drives revenue growthThe rapidly shifting landscape presents numerous challenges — and opportunities — for M&E companiesnow, and in the future. IP protection is crucial, but to maximize the value IP assets offer, M&E companiesare beginning to think more broadly. They are rethinking their strategies to protect and monetize theirIP assets. They want a better understanding of how current and emerging technologies can improve IPprotection and exploitation. They also want to develop new product and distribution strategies that driverevenue and market share gains, and forge closer relationships with their customers.In developing an effective IP strategy, M&E companies should include the following four elements:Customer monetization Digital supply chain optimizationTo monetize their content, M&E companies need to Many M&E companies still lack an effective digital supplydeliver a branded experience. Companies need to: chain (DSC) that can manage digital media delivery from content creation to post-production and distribution.ffBuild consumer awareness Companies need to know what assets they have,ffDetermine pricing and bundling regardless of the form, and they must have those assets readily available for exploitation. DSC optimization allowsffEnable payment M&E companies to exploit their assets more efficientlyffProvide customer care management across platforms and geographies. It also makes it easier for M&E companies to better exploit a deeper catalog — theffManage churn and usage long-tail strategy. It is not uncommon for a company to have content that no longer reaches the market becauseIP management it is lost in the archives or is no longer physically available. These hidden treasures are often just waiting to beM&E companies have the ability to reach vast numbers discovered and monetized. For example, Google signedof new consumers across multiple platforms and through with a European publisher to scan and sell digital editionsnew and innovative monetization models. However, they of selected titles that are no longer in print.46cannot monetize their intellectual property assets if theydon’t know the rights and usage associated with thecontent. Effective IP management is necessary to reachnew monetization opportunities. 46 “Google Reaches Book Deal in France,” The Wall Street Journal Online, 18 November 2010, via Dow Jones Factiva, © 2010 Dow Jones & Company, Inc.20 | Global Media & Entertainment Center
  23. 23. IP protectionReducing the risk of piracy is an enterprise-wide effort.Top-level management must set a tone that prioritizes IPand data protection. This means more than just having adata protection policy. It means making data protectiona priority and communicating that mind-set to customersand partners. M&E companies must also:ffCreate dedicated teams that focus on the true impact of piracy in terms of lost revenues, higher costs and the potential risk to brand and reputationffSupport industry efforts — regulatory, legislative, forensic and technological — to stem piracyffPlace tight controls over individuals that have access to content, both within your organization and among your supply chain partnersffConduct audits of partners’ anti-piracy systems, processes, policies and procedures Intellectual property in a digital world | 21
  24. 24. Conclusion: It’s time toshow leadershipThe international IP legal framework provides consistent By focusing on partnerships, agreements and the useand flexible protection for owners of both traditional of technology to ensure that rights are protected andand digital forms of content. The existence of a legal monetization opportunities exploited, all players in thisframework by itself has an influence on the behavior new, digital marketplace can benefit.of stakeholders. However, neither legal frameworksnor regulatory intervention will ever keep pace with Brand and trust are the most valuable assets of thetechnology or the pirates that seek to circumvent that operators in the digital world. They attract both thetechnology. As a result, the onus for enforcement of creators and the users. IP infringement can put them at aIP law needs to be on all members of the media supply risk they can no longer afford in a world where reputationchain, including owners, aggregators, distributors and can change in a millisecond.electronics manufacturers. The success of tablets, IP protection is an essential element to encouragesmartphones and other mobile devices, for example, creators to innovate and to preserve the diversity ofpresent significant opportunities not only to boost creation.revenues but to protect IP using technology embeddedinto the devices. Leadership is building the effective legal offer, even if this requires alliances and agreements that were not a given.22 | Global Media & Entertainment Center
  25. 25. AppendixSources for duration of protectionbetween the G20 countriesCountry Legislation (source used)Australia ffCopyright Act n°63, of June 27, 1968  ffCopyright Amendment Act n°158, of November 6, 2006 Brazil ffLaw on Copyright n°5.648, of December 11, 1970  ffLaw changing, updating and consolidating the Law on Copyright n°9.610, of February 19, 1998 Canada ffCopyright Act, R.S.C., 1985, c. C-42, of 1985, c. C-42 China ffCopyright Law of the People’s Republic of China of September 7, 1990 as amended by presidential  order n°26, of February 6, 2010France ffLaw No. 85-660 of July 3, 1985 on Authors’ Rights and on the Rights of Performers, Phonogram and  Videogram Producers and Audiovisual Communication EntreprisesGermany ffLaw on Copyright and Related Rights n°DE078, of September 9, 1965 (Urheberrechtsgesetz) Italy ffLaw No. 633 of April 22, 1941 Protection of Copyright & Other Rights Connected with the Exercise  ThereofIndia ffCopyright Act n°14, of June 4, 1957 Japan ffCopyright Act n°48, of May 6, 1970 Mexico ffFederal Law on Copyright of December 5, 1996 Russia ffFederal Law on Copyright and Neighboring Rights n°5351-I, of July 9, 1993 Republic of Korea ffCopyright Act of 1957 (Law No. 432, as last amended by Law No. 9625 of April 22, 2009) Saudi Arabia ffLaw issued by Royal Decree No. M/41, 2 Rajab, 1424, of August 30, 2003 on Copyright and Related  RightsTurkey ffLaw No. 5846 on Intellectual and Artistic Works of December 1951  ffLaw No. 4630 for the Amendment of Certain Articles of the Law No. 5846 on Intellectual and Artistic  Works of February 21, 2001United Kingdom ffCopyright, Designs and Patents Act 1988 (C. 48) of November 15, 1988 United States ffU.S. Copyright Act of October 19, 1976, 17. U.S.C. §§ 101 et seq.  Intellectual property in a digital world | 23
  26. 26. 24 | Global Media & Entertainment Center
  27. 27. Global survey contactsGlobal contacts Telephone EmailBruno Perrin, Ernst & Young et Associés, EMEIA Media & Entertainment +33 1 46 93 65 43 bruno.perrin@fr.ey.comAssurance Leader (Paris, France)Mark Borao, Ernst & Young LLP, Global Media & Entertainment +1 213 977 3633 mark.borao@ey.comAdvisory Services Leader (Los Angeles, US)Sylvia Ahi Vosloo, Ernst & Young, Global Media & Entertainment Center +1 213 977 4371 sylvia.ahivosloo@ey.comMarketing Lead (Los Angeles, US)Louisa Melbouci, Ernst & Young et Associés, EMEIA Media & Entertainment +33 1 46 39 76 47 louisa.melbouci@fr.ey.comMarketing Manager (Paris, France)Local country contactsFrance Fabrice Naftalski, Ernst & Young Société d’Avocats, Partner Attorney at Law, Head of Intellectual property and information technologies team in France With the assistance from: Axel du Boucher, Ernst & Young Société d’Avocats, Manager Attorney at Law Guillaume Marcerou, Ernst & Young Société d’Avocats, Attorney at LawRussia Igor Nevzorov, Ernst & Young (CIS), B.V. Senior Manager, Legal ServicesGermany Dr. Peter Katko, Ernst & Young Law GmbH, Rechtsanwalt, Director, Head of Intellectual property and information technologies teamTurkey Mehmet Kucukkaya, Ernst & Young, Partner, Legal Counsel, Tax & LawForum d’Avignon contacts EmailLaure Kaltenbach, Managing Director of the Forum d’Avignon laure.kaltenbach@forum-avignon.orgAlexandre Joux, Director at the Forum d’Avignon alexandre.joux@forum-avignon.orgAcknowledgmentsWe would like to thank the following international experts We also would like to thank the working group membersfor their straightforward commentary: Alain Augé and of the Forum d’Avignon. Our regular discussions havePascal Ruffenach, Bayard; Alexandra Laferrière and Antoine been invaluable: Sabine Madeleine, Bayard; Irène Braam,Aubert, Google; Patricia Barbizet and Julien Cantegreil, Bertelsmann; Simon Morrison, Google; Carolina Lorenzon,Pinault-Printemps-Redoute; Jean Frank Cavanagh and Nick Mediaset; Anne Le Morvan and Ludovic Julié, French MinistryFowler, Reed Elsevier; Pascal Rogard and Hubert Tilliet, Société of Culture and Communication; Sylvie Forbin and Marie Sellier,des Auteurs et Compositeurs Dramatiques; Bernard Miyet, Vivendi; Emmanuel Mahé, Orange – France Télécom; andSociété des Auteurs, Compositeurs et Editeurs de Musique Catherine Boissière, Société des Auteurs, Compositeurs et(SACEM); Patrick Grüter and Troy Dow, The Walt Disney Editeurs de Musique.Company; Françoise Benhamou, professor, economist; OlivierBomsel, professor, economist; Pierre-Yves Gautier, professor,lawyer; Laurence Franceschini, French Ministry of Culture andCommunication; Lorena Boix Alonso, European Commission,Cabinet of Ms. Neelie Kroes; Marielle Gallo, EuropeanParliament; and Maria Martin-Prat, European Commission. Intellectual property in a digital world | 25