Legal landscape – Where next? Paul Bennett Bennett’s Legal Limited 0844 472 2378 firstname.lastname@example.org
What law applies? • Copyright; • Trade Mark; • Technology law (wide discipline for lawyers); • Litigation – Commercial and technology based; • Regulatory – Criminal and civil enforcement; • Case law – UK and ECJ changing risks;
What’s in the news? • Pirate Bay Operators and users jointly and independently infringed copyright said the High Court (20th February 2012); • 6 Main ISP’s were defendants; • Blocking order position likely to be enhanced against ISP’s under Section 97A CDPA 1988.
Allowing content to be shared is a growing commercial risk • Pirate Bay shows a growing risk of actions against the ISP’s (and other intermediaries) is likely; • Copyright legislation being used in unexpected ways; • Theme emerging from courts – “head in sand no defence” if active - and/or aware in restricted circumstances; • Snifferdog enhances the evidence against infringers, ISP’s etc. Put bluntly it exposes failure to deal with issues.
Music site RnBXclusive.com has been shut down by the UKs Serious Organised Crime Agency (Soca).• Criminal conspiracy being used by SOCA to close sites;• The fight against infringement is becoming criminal as well as civil law based;• Evidence of infringement is central to both but criminal convictions make civil matters easy to prove - Section 11 Civil Evidence Act 1968.
Advertisers • Do they market around breach of copyright/TM material? Reputational & legal effects; • TM holders may take action against secondary infringers – untested before UK courts in respect of advertising online around content – my view claim exists building on recent judgements; • Who wants to defend one of these first? a) Against backdrop of e-evidence? b) After a take down/warning notice?
Advertisers• ECJ although the operator of an online marketplace does not "use" third-party trade marks within the meaning of EU legislation when its customers advertise their goods under such marks, it may lose the benefit of the exemption from liability for intermediaries under the E- commerce Directive (2000/31/EC) if it takes an active role in relation to advertisements for infringing goods placed on its site (such as by assisting in matters of presentation or promotion) which allows it to have knowledge or control of the data that it is storing.• Chilling warning for marketing/advertising companies, legitimate website operators, ISP’s.
Practical Tips1. Review the risks to your business? ISP, Advertisers, Broadcasters, Marketing agencies will need a different perspective;2. Manage those risks – talk to suppliers/customers;3. Be proactive - record your efforts;4. Get advice – What? Why? How are things changing?;
Practical Tips 5. Evidence is key: • Your evidence; • Those who might bring claims against you; 6. Educate your Directors/Board; 7. Review regularly – on-going process.