Need to Know – 2014.11.24

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General

Intellectual Property Office publishes Orphan Works Licensing Scheme Appeal Guidance.

Government publishes response to consultation on implementing Alternative Dispute Resolution Directive (2013/11/EU) and Online Dispute Resolution Regulation (524/2013).

Technology

Advocate General Yves Bot says Spain’s challenge to unitary patent protection should be dismissed.

Ofcom publishes decision to make 700 MHz frequency band available for mobile broadband services while securing the future of digital terrestrial TV.

Broadcasting

Ofcom finds truTV programme in breach of inappropriate scheduling rules although BARB ratings indicated that no children watched the programme.

Sport

Ofcom opens investigation into how Premier League sells live UK audio-visual media rights for Premier League football matches.

Gambling & Betting

Gambling Commission publishes updated guidance as Gambling (Licensing and Advertising) Act 2014 now in force.

Advertising

ASA finds Currys’ Samsung Smart TV ad misleading because the saving claim applied to a price last charged 11 months earlier.

General

Intellectual Property Office publishes Orphan Works Licensing Scheme Appeal Guidance.

Applicants for an orphan works licence, or rights holders in respect of a work that is the subject of an orphan works application or licence, can appeal against the actions and decisions of the IPO.

The Guidance explains that there are different appeal routes for: i) rights holders of a work that has been licensed; and ii) applicants for an orphan work licence.  Appeals are first made to the IPO.  Appeals to either the Copyright Tribunal (for applicants) or the First-tier Tribunal General Regulatory Chamber (for rights holders) are not permitted unless an appeal to the IPO has been made first.

There is also, separately, a route of appeal to the Copyright Tribunal for rights holders for works used under the Orphan Works Directive (2012/28/EU) where the rights holder and user of an orphan work under the Directive cannot agree the level of fair compensation.  To access the Guidance, click here.

Government publishes response to consultation on implementing Alternative Dispute Resolution Directive (2013/11/EU) and Online Dispute Resolution Regulation (524/2013).

In March 2014, the Government published a consultation on its proposals for applying the requirements of the ADR Directive and the ODR Regulation.  It has now published its response, which outlines its proposals on how:

  • it can make sure ADR is widely available (as a cheaper and quicker alternative to the courts for disputes which a business is unable to resolve directly with a consumer);
  • consumers can be signposted to an appropriate ADR supplier; and
  • ADR suppliers will be certified and monitored.

The Government says that better ADR and easier access to it “will give consumers greater protection and more confidence in resolving any problems with their purchases” and “will be good for all businesses that are committed to giving their customers the best possible service”.  To access the response, click here.

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Technology

Advocate General Yves Bot says Spain’s challenge to unitary patent protection should be dismissed.

Spain is seeking annulment of the two Regulations making up the unitary patent package, namely the Unitary Patent Protection Regulation (1257/2012/EU), and Regulation (1260/2012/EU) which provides for translation arrangements.

Advocate General Bot opined that both Regulations were within the EU’s legislative remit and that unitary protection would bring “real benefit” in terms of uniformity and integration.

Spain is mostly objecting to the language arrangements and the fact that the official languages are German, French and English.  The Advocate General noted that EU law has no principle of equality of languages.  He acknowledged that those who do not know one of the official languages will be discriminated against, but took the view that the choice of languages pursued a legitimate objective and was appropriate and proportionate.

Having only three languages would help to reduce costs translation costs, the Advocate General said.  Further, it will ensure stability for professionals in the patent sector, who are already accustomed to working in those three languages.  Moreover, the choice of languages acknowledged the linguistic realities of the patent sector: i) most scientific papers are published in German, English or French; and ii) those languages are spoken in the Member States from which most of the patent applications in the EU originate.  (Advocate General’s Opinion in Cases C-146/13 and C-147/13 Spain v Press and Information Parliament and Council – to access the Opinion in full, go to the curia search form, type in the case number and follow the link).

Ofcom publishes decision to make 700 MHz frequency band available for mobile broadband services while securing the future of digital terrestrial TV.

The decision allows mobile network operators to deliver mobile broadband using some of the frequencies currently used for digital terrestrial TV services, such as Freeview, and wireless microphones.  These frequencies make up the 700 MHz frequency band. 

As a result, consumers and businesses should get faster and cheaper mobile data services, Ofcom says, while viewers can continue to enjoy the free-to-view TV services they value without another switchover.  Ofcom’s objective is to make this happen by the beginning of 2022, and possibly up to two years earlier.

Ofcom says that it will also ensure that users of wireless microphones in the programme making and special events sector, such as theatres, sports venues and music events, continue to have access to the airwaves they need to deliver their important cultural benefits.  To read Ofcom’s decision in full, click here.

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Broadcasting

Ofcom finds truTV programme in breach of inappropriate scheduling rules although BARB ratings indicated that no children watched the programme.

Ofcom was alerted by a complainant to offensive language in a pre-watershed episode of Bait Car, an American factual entertainment series in which undercover police officers leave a vehicle fitted with hidden cameras unlocked to lure would-be car thieves.  Although all offensive language had been bleeped, where there was poor audio quality, subtitles appeared.  These subtitles contained 19 uses of “f**k” or “f*****g” and two uses of “m**********r” to reflect fully bleeped instances of the corresponding expletives.

In Ofcom’s view, the broadcast of the subtitles at the same time as the repeated bleeped words made clear the specific offensive language being used, and made the material unsuitable for children.   Ofcom took into account that truTV is not a channel aimed at children and that BARB ratings indicated that no children watched this programme.  However, Ofcom noted that the programme was broadcast at 3.30pm on a Saturday when there was a significant likelihood that children were available to view.  Ofcom also noted that the channel is freely available on a number of television platforms and children may come across it unawares.  It therefore found that the programme had not been appropriately scheduled and was therefore in breach of Broadcasting Code rule 1.3.  To read Ofcom’s Adjudication on Bait Car, published in Issue 267 of the Broadcast Bulletin (17 November 2014), click here.

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Sport

Ofcom opens investigation into how Premier League sells live UK audio-visual media rights for Premier League football matches.

As set out in s 25 of the Competition Act 1998, Ofcom may conduct an investigation where there are reasonable grounds for suspecting that there is an agreement which has as its object or effect the prevention, restriction or distortion of competition within the UK and/or the EU.  In such cases, Ofcom will consider whether there is a breach of the UK and/or EU competition law prohibition on agreements and decisions that restrict or distort competition.

The investigation concerns arrangements for the “collective” selling of live UK television rights by the Premier League for matches played by its member clubs and whether it is in breach of competition law.  In particular, the investigation concerns the number of Premier League matches for which live broadcasting rights are made available.

In the initial phase of this investigation, Ofcom says that it will gather further information using its powers under the Competition Act.  The initial analysis of this information will help inform its view on whether and how to proceed further with the investigation.  The case is at an early stage and Ofcom has not reached a view as to whether there is sufficient evidence of an infringement of competition law for it to issue a statement of objections.  To read Ofcom’s media release in full, click here.

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Gambling & Betting

Gambling Commission publishes updated guidance as Gambling (Licensing and Advertising) Act 2014 now in force.

The Gambling (Licensing and Advertising) Act 2014 came into force fully on 1 November 2014.  As a result, the Gambling Commission has updated its various guidance documents and republished them on its website.

The updated guidance includes:

  • remote gambling and software technical standards: technical standards that remote gambling and gambling software licence holders are required to meet;
  • guide to gambling advertising codes: a brief outline to the codes.  Relevant for all gambling licence holders;
  • offering lotteries with gaming and betting products under common branding: advice for operators who wish to combine the promotion of lotteries with provision of other facilities for gambling;
  • remote gambling equipment guidance: guidance on the elements of a remote gambling system which the Gambling Commission considers to meet the definition of “remote gambling equipment”, as set out in the Gambling Act 2005;
  • security audit advice: for holders of all remote gambling operator licences including specified remote lottery licences; and
  • sponsorship of British sporting clubs by gambling operators: a growing number of British sports clubs are obtaining sponsorship deals with gambling providers based outside Great Britain.  A short advice note on gambling sponsorship is available to help sports clubs stay within the law.

To access the updated guidance, click here.

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Advertising

ASA finds Currys’ Samsung Smart TV ad misleading because the saving claim applied to a price last charged 11 months earlier.

A regional press ad for Currys PC World, published in June 2014, stated “Samsung 55” Smart 3D LED TV £899 Save £400 … Was £1299 from 09.06.13 to 01.07.13”. 

A reader challenged whether that the claim “Save £400” could be substantiated.  The ASA found that the claim implied that customers would be able to make a significant saving against a price at which the TV had been recently sold, whereas the saving claim applied to a price last charged some 11 months earlier, rather than on the price consumers would have paid during those 11 months.  The ASA said that, although the ad stated the basis for the savings claim, because no consumer would actually have paid that amount during the 11 months since the price applied, £1299 should not have been referred to as the selling price of the TV.  The ASA therefore concluded that the claim gave a misleading impression of the saving and as such, breached CAP Code rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.17 (Prices) and 3.40 (Price comparisons).  To read ASA Adjudication on DSG Retail Ltd t/a Currys PC World (19 November 2014), click here.

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