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Intellectual Property Office publishes summary of responses to its consultation on copyright.

Generally, there was support for the view that creators should continue to be protected and rewarded, but that reform of copyright law was needed. However, several respondents expressed concerns at the Government’s evidence base in relation to economic growth. Some felt that the Government’s estimates were either too high or incomplete and several questioned whether copyright reforms would result in any significant economic growth at all.

There was some feedback on the idea of a Digital Copyright Exchange although this is not a legislative proposal. Some considered it key in moving the copyright framework forward for rights holders and users alike, even suggesting that it would remedy many of the current issues. Others, however, were less sure and preferred to await the outcome of the feasibility study on the creation of a DCE before expressing a view.

As for a scheme to make “orphan works” available, there were mixed views on the extent to which such works posed a problem in the first place. The proportion of orphan works reported by respondents varied between 5% and 40% of existing collections. Several respondents felt that limiting the term of copyright for unpublished works in a similar way to published works would help to reduce the scale of the orphan work problem. In any event, nearly all respondents said that a robust diligent search was necessary to any scheme, but there were mixed views on the benefits of extending the scheme to commercial use of works, with some respondents expressing concern that this could interfere with the market for non-orphan works. The Design and Artists Copyright Society said: “Any commercial use of orphan [works] would not lead to the envisaged growth but to a substitution of works already available in the free market”.

Many respondents supported the introduction of codes of conduct for collecting societies based on minimum standards. Some collecting societies argued that complaints made to Ministers were not as significant as perceived by the Government, but they supported the idea of voluntary codes.

There was a distinct divergence of views on proposals regarding the private copying exception. Respondents who supported it were mainly users of copyright material. Some said it was unnecessary to restrict private copying to the individual because it did not cause substantial harm to rights holders to permit sharing within households or other private groups. However, rights holders and their representatives expressed concerns at the potential of the exception to cause harm and affect revenues. BPI said: “The consultation has not set out convincingly why, when it is accepted that harm accrues to rights holders from a private copying exception in virtually all other EU countries, no such harm would accrue from private copying in the UK…” Meanwhile, UK Music supported the proposal, but only in conjunction with a levy. Some argued that the music sector was different to other creative sectors, such as film and e-books, and suggested that an exception should only apply to certain types of works, such as sound recordings. As for the text and data mining for research exception, researchers and research institutions were generally supportive, whereas publishers felt that current demand for such services was low and that they already met most requests in any event. Publishers also said that such an exception would prevent them from ensuring security of content and stability of provision. In their view, licensing should be the solution for the use of these technologies.

There was consensus that the case for a large economic benefit arising from the introduction of a parody exception was not well supported. However, there was a shared view that cultural benefits would arise, such as the development of free speech, the fostering of creative talent and the benefit to educational programmes.

As for the use of works for quotation and reporting current events, several rights holders said that such use would have a significant impact on existing business models and that they had concerns as to the length of extracts that could be used. Photographers strongly opposed any extension as it is impossible to extract from or quote a photograph. Film and broadcast archives also did not support the proposal since short clips represented the largest part of their sales, the free use of which would have serious commercial consequences.

Finally, on the proposal to protect copyright exceptions from override by contract, some felt that if exceptions delivered public benefits they should not be restricted by contract, whereas others were concerned that such a measure would constitute an unduly excessive restriction on the freedom to contract. For a link to the summary of responses, click here.

Government launches new Communications Review website and invites comments on discussion papers for upcoming communications review seminars.

The Department for Culture, Media and Sport is inviting professionals from the communications and creative industries, TV and radio, publishers and other digital industries to comment on the discussion papers that will inform the five upcoming communications review seminars announced earlier this month. The areas to be discussed in the seminars are:

  • Consumers;
  • Competition in content;
  • Spectrum;
  • TV content; and
  • Radio.

The seminars and comments received will inform a White Paper and Draft Bill, expected in spring 2013. The DCMS says that it wants “to ensure the UK continues to have a world-beating communication sector delivering innovative, high-quality content, along with safe and efficient services”. It expects to achieve this through deregulation, “enabling growth and innovation to thrive, leading to an open and dynamic communications and media market in the UK”. The DCMS press release can be read here. To submit comments to the DCMS via the new Communications Review website, click here.

Business, Innovation and Skills Commons Select Committee publishes report on Hargreaves Review of Intellectual Property.

The report is part of the Committee’s inquiry into the Hargreaves Review.

On the parody copyright exception, the report states that the Committee believes further work remains to be done in analysing whether the economic benefits of such an exception would be as extensive as claimed. However, other grounds, it states, may yet support a change to the law.

On content mining, the Committee agrees that the ability to read published scientific data automatically is useful and needs to be opened up. The Committee recommends a further look at cooperative licensing models before any wholesale exception is implemented. 4 N2K 22 to 28 June 2012 On the Digital Copyright Exchange, the Committee encourages the Government to push forward with this idea provided the system is kept simple and there is a proper cost/benefit analysis.

On the Government’s approach to negotiations on the Unified Patents Court, the Committee says that it is concerned about the Government’s approach. A unified patent and litigation system could bring many benefits, particularly if the central court were situated in London, but the current proposals have not been welcomed by practitioners or industry. Commenting on the publication of the report, Chairman of the Committee, Adrian Bailey said: “Professor Hargreaves was right that IP policy needs to be more rigorously supported by solid econometrics. This should be a primary consideration, albeit not the only consideration, when policy is being developed in this area. Work undertaken during the past year, and ongoing, is helping to address some of the inevitable evidential gaps in Professor Hargreaves’ broad analysis of the subject. Given the potential for legal reform to boost growth, the Government should set out a clear timetable for implementation once the evidence for change has been assessed. The Enterprise and Regulatory Reform Bill provides scope for some changes to copyright law through secondary legislation. The Committee will carefully monitor the debate on these proposals in the light of our report conclusions. Other areas, notably those of orphan works and extended collected licensing, will rightly be covered in primary legislation. These are controversial topics and will benefit from full debate”. For a link to the report, click here.

Court of Justice deems German law criminalising distribution of copyright-protected works imported from Italy where such works are not protected as justified and proportionate.

Titus Donner, a German national, was convicted by a regional court in Munich of aiding and abetting the prohibited commercial exploitation of copyright-protected works. He had distributed replicas of Bauhaus style furniture, which was protected by copyright in Germany, for sale to customers in Germany. The goods originated from Italy where they were not at the relevant time protected by copyright.

For the purposes of German criminal law, the Munich regional court found that distribution took place not in Italy but in Germany where it was prohibited without authorisation from the rights holders. The court found that whilst ownership of the goods was transferred in Italy to the German customers, the transfer of the power of disposal over the goods did not take place until the goods were handed over to the purchaser upon payment of the purchase price in Germany, with the help of Mr Donner. Whether or not the replicas enjoyed copyright protection in Italy was therefore, in the German court’s view, immaterial.

On appeal the German Federal Court of Justice referred the case to the CJEU for guidance on whether the application of German criminal law in this case gave rise to an unjustified restriction on the free movement of goods contrary to Articles 34 and 36 TFEU.

Having found that whether there was a “distribution to the public” for the purposes of the Copyright Directive in this case was a question for the national court to decide on the evidence, the CJEU found that the prohibition on such distribution sanctioned by German criminal law did constitute a restriction on the free movement of goods. However, it considered that such a restriction might be justified by reasons relating to the protection of industrial and commercial property. The CJEU considered that in the current case the protection of the right of distribution could not be deemed to give rise to a disproportionate or artificial partitioning of the markets. The application of criminal law provisions might be considered necessary to protect the specific subject matter of the copyright, which conferred, amongst other things, the exclusive right of exploitation. As such, the restriction in question seemed to the court to be justified and proportionate to the objective pursued. (Case C-5/11 Titus Alexander Jochen Donner (21 June 2012) – to access the judgment in full, go to the curia search form, type in the case number and follow the link).

European Union Media Futures Forum issues “wake-up” call to Europe.

In December 2011, European Commissioner Neelie Kroes established the Media Futures Forum, a group of 28 people from the publishing, broadcasting, advertising, telecommunications, equipment manufacturers, social media and online industries, as well as academics and government representatives, to analyse the future of the media in Europe against the background of the current economic crisis and the internet revolution. The group was asked to debate how to improve the policy framework for European media industries and to make practical recommendations to ensure that Europe takes full advantage of its potential. The Forum has now published its report, setting out its conclusions and recommendations. The Forum members essentially identified eight problem areas that need to be addressed and proposed solutions to each.

The Forum’s first message, however, was that Europe needs to “wake up”. Change is happening fast and Europe is “not leading the change, but undergoing it”, the report says. Few European companies are global leaders and Europe is now facing “fierce competition” from the rest of the world. What is needed, the report says is “a framework that enables, not one that is holding us back”.

It recommends:

1. Europe must be a digital single market by 2015: obstacles preventing cross-border digital trade in areas including the protection of personal data, consumer rights, taxation, mobile payments and the lack of an integrated postal and delivery markets, need to be removed. In particular, it calls for offline and online VAT to be aligned at the lower rate;

2. Promote new business models that protect personal data but provide consumer benefits: Since many businesses now rely on using personal data, the Forum calls for one set of rules for the processing of personal data across the EU which give individuals control over their data, but which also allow businesses to deliver consumer benefits;

3. Reward creators and creation of content: the Forum believes that the best response to illegal downloading is legal offers and making payment for content easier through the use of new technologies. It also proposes a distinguished European prize for quality journalism that would become as prestigious as the Pulitzer Prize in the US;

4. Adapt financial support for audiovisual creation: the Forum calls for a more efficient and bigger European support programme, together with better coordination between national financing schemes to promote the creation and distribution of audiovisual works across borders;

5. Treat like as like: different rules apply for offline and online businesses, as well as to broadcasters and to ISPs. The Forum calls for equitable regulatory and fiscal principles for businesses competing with each other on the same market;

6. Avoid new barriers to entry: competition rules need to adjust to the fast changing world of the internet. Accordingly, the Forum calls for closer monitoring of developments to prevent new barriers arising and competent authorities to take effective action when competition and innovation are threatened;

7. Increase access to and use of legal content and services from anywhere in the EU on any device for all citizens in the EU. “Geo-blocking”, i.e. where access to a website is blocked due to the user’s location, is creating problems. Legal content should be easily accessible to all consumers from anywhere in the EU. The Forum urges policymakers to work towards a genuine single market for prices charged for access to data, whether roaming or at home; and

8. Quickly roll out the infrastructure for the future: the Forum calls for all EU citizens to have access to highspeed internet as soon as possible.

For a link to the report, click here.

Ofcom publishes consultation on revised draft Initial Obligations Code requiring ISPs to notify subscribers of online copyright infringement in accordance with Digital Economy Act 2010.

The DEA amended the Communications Act 2003 to create two new obligations for ISPs referred to as the “initial obligations”. They are to:

  • Notify their subscribers if the internet protocol addresses associated with them are reported by copyright owners as being used to infringe copyright; and
  • Keep track of the number of reports about each subscriber and compile, on an anonymous basis, a “Copyright Infringement List” of those subscribers who are reported above a certain number of times. After obtaining a court order to obtain personal details, copyright owners will be able to take action against those included in the list.

The DEA provides that the implementation and regulation of these “initial obligations” must be set out in an Initial Obligations Code drafted by Ofcom.

As well as the revised draft Code, Ofcom has published its conclusions on the consultation it carried out on the original version in May 2010. Ofcom explains that publication of the draft Code has been delayed due to the judicial review of the DEA provisions brought by BT and TalkTalk and the subsequent appeal to the Court of Appeal, as well as the revision by Government of secondary legislation in relation to the cost sharing arrangements as a result of that litigation.

Under the Code, when notifying customers of reported infringements, ISPs must explain the steps subscribers can take to protect their networks from being used to infringe copyright and tell them where they can go to find licensed content on the internet.

The Code will initially cover ISPs with more than 400,000 broadband-enabled fixed lines, currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media. It requires ISPs to send letters to customers, at least a month apart, informing them when their account is connected to reports of suspected online copyright infringement.

If a customer receives three letters or more within a 12-month period, anonymous information may be provided on request to copyright owners showing them which infringement reports are linked to that customer’s account. The copyright owner may then seek a court order requiring the ISP to reveal the identity of the customer, with a view to taking legal action for infringement under the Copyright Designs and Patent Act 1988. Ofcom says that the Code is designed to encourage copyright owners to focus legal action on the most persistent alleged infringers.

Subscribers would have the right to challenge any allegation of infringement through an independent appeals body. Ofcom will appoint this body and require it to establish transparent, accessible appeal procedures. Copyright owners will need Ofcom approval of their procedures for gathering evidence of infringement before they can be used under the scheme.

The key proposals of the first draft code, on which Ofcom consulted in May 2010, are unchanged. However, a number of revisions have been made, including:

  • Evidence-gathering procedures: copyright owners’ procedures for gathering evidence of infringement must now be approved by Ofcom, rather than by the copyright owners themselves. Ofcom plans to sponsor the development of a publically-available standard to help promote good practice in evidence gathering;
  • Notification letters: ISPs must now include, in letters to subscribers, the number of copyright infringement reports connected to their account;
  • Appeals: subscribers should have 20 working days to appeal an allegation of infringement. Following a direction from the Government, Ofcom has removed the ability for subscribers to appeal on any grounds they choose: they must now do so on grounds specified in the DEA.

The DEA also provides for further technical measures that the Secretary of State might require ISPs to take against relevant subscribers in certain circumstances. These include internet bandwidth reduction, blocking internet access, or temporarily suspending accounts. However, these measures can only be considered after the Code has been in force for at least 12 months, and would require further legislation and Parliamentary approval.

Following consultation on the revised draft Code and subject to further review by the European Commission, the Code will be laid in Parliament towards the end of 2012. Ofcom currently expects the first customer notification letters to be sent in early 2014.

Ofcom will review the criteria for applying the Code to ISPs once the obligations have been up and running for six months. The consultation closes on 26 July 2012. For a link to the Code and consultation documentation, click here.

Ofcom consults on implementation of Costs Order setting fees payable by copyright owners to ISPs and to Ofcom in relation to online copyright infringement notification under Digital Economy Act 2010.

The Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order will require Ofcom to set fees payable by copyright owners to ISPs and to Ofcom if they intend to take advantage of the notification scheme in relation to online infringements of their copyright under the DEA. The notification scheme is set out in the draft Initial Obligations Code on which Ofcom is also currently consulting on (see above).

The Costs Order determines who should bear the costs incurred by: a) ISPs in delivering their notification obligations; b) Ofcom in developing the Code and overseeing the scheme; and c) the appeals body which will consider subscriber appeals against reports of infringement. The Order also sets out the basis on which ISPs’ costs should be shared among participating copyright owners and ISPs.

Generally speaking, the overall framework of the Order is that copyright owners should bear all of the costs incurred by Ofcom, the majority of costs incurred by the appeals body, and 75% of the costs efficiently and reasonably incurred by ISPs in carrying out their obligations. Other than in relation to the costs of the appeals body, an individual copyright owner’s share of the costs should be in proportion to the number of Copyright Infringement Reports it proposes to send to qualifying ISPs during any notification period.

Under the Order, subscribers will have to pay a £20 fee to make an appeal against a report of infringement, which will be refunded in the event the appeal succeeds; the remaining costs of determining an appeal will be met by the copyright owner who submitted the Copyright Infringement Report which has been appealed.

Implementation of the Costs Order requires a number of material issues to be resolved, Ofcom says. Accordingly, Ofcom has set out proposed solutions in the consultation document.

Ofcom considers that the earliest date an appeals body will be established so that ISPs can deliver their obligations is February 2014. It therefore proposes that the first notification period should start on 1 March 2014. This is appropriate, Ofcom says, because it does not believe ISPs can be obliged or expected to start investment in the relevant systems until the Code is in force and the ISPs have committed funding from copyright owners.

Costs that Ofcom has incurred to date in executing its functions under the DEA by developing the Code, establishing the appeals body, enforcing the Code and providing reports measuring the efficacy of the Code and levels of online infringement will all be charged to copyright owners at the beginning of the first period.

The consultation sets out the basis for Ofcom’s estimates of the costs ISPs will incur in complying with their obligations. Ofcom must estimate these costs in order to set the notification fee that a copyright owner must pay the ISP for each Copyright Infringement Report the copyright owner proposes to send. According to the Order, Ofcom must set the notification fee with reference to those costs, which “would be reasonably and efficiently incurred by a notional qualifying internet service provider” (and not the actual costs which any individual ISP may incur). Ofcom has commissioned BWCS Ltd to provide a report of the costs the notional ISP might incur, drawing on information provided by five of the six main ISPs (BT, Virgin Media, TalkTalk, BSkyB, and O2 provided information, Everything Everywhere did not). The estimates are contained in the consultation documentation.

The Order also requires that each copyright owner pay a share of Ofcom’s costs set by reference to the number of Copyright Infringement Reports it estimates it will send. The mechanism for working these figures out is also contained in the consultation documentation, together with fee tables. The consultation closes on 18 September 2012. For a link to the consultation documentation, click here.

Government to repeal parts of Digital Economy Act 2010 that allow for regulations to be made in relation to blocking of websites that infringe copyright.

At the same time as Ofcom published its revised draft of the Initial Obligations Code under the Digital Economy Act 2010 (see above), the Government has announced that it will be repealing ss 17 and 18 of the DEA, which give the Culture Secretary powers to bring in regulations in relation to the blocking of internet sites that infringe copyright.

The decision comes after Ofcom concluded last year that the specific measures in the DEA would not work in practice as they would be too costly and take too long to implement.

In any event, the Government says, rights holders have already successfully used existing legislation (s 97A of the Copyright, Designs and Patents Act 1988) to secure court orders instructing internet service providers to block access to websites dedicated to copyright infringement (see the Pirate Bay case Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 1152 (Ch) and the Newzbin2 case Twentieth Century Fox Film Corporation v British Telecommunications plc [2011] EWHC 1981 (Ch)). Repealing ss 17 and 18 of the DEA is, the Government says, part of its commitment “to removing unnecessary legislation from the statute book”. To read the Government’s statement in full, click here.

European Commissioner, Neelie Kroes, says that Cloud technology “means a big boost to our economy”.

Speaking at the Economic Council Symposium on 25 June, Ms Kroes addressed the question, “why do we need a European Cloud strategy?” The answer, Ms Kroes said, is to revolutionise the economy and public services.

The Cloud, Ms Kroes said, provides a different model for the provision of IT infrastructure, platforms and software. It means that businesses would not have to purchase and maintain separate IT infrastructure or software, but could buy as much or as little access as and when needed, all at a lower cost.

Further, it could revolutionise public services, making it easier to provide services that are “integrated, effective, and at lower cost”.

Overall, the Cloud “means a big boost to our economy”, Ms Kroes said. It has been estimated that, in a country like Germany, Cloud computing could generate over €200 billion in economic benefits, and 800,000 jobs over five years. Plus there are savings to public authorities, she said. For example, the UK government expects to save 20% on IT expenditure, by harmonising software with Cloud computing.

The Cloud strategy has to be European, Ms Kroes said, in order to create a true digital Single Market where businesses and consumers can operate right across the EU. “Rules in the Cloud should make it easy to do that, whether they’re rules on personal data, contractual arrangements, or whatever”, she said.

Adopting separate, national Cloud strategies would create “walls and limits” that would inhibit business and make it difficult to share data in, for example, the field of science. Ms Kroes said that “to get the most Cloud benefits, we must avoid national fortresses: and think European”.

As for why we need a strategy at all, Ms Kroes said that “clearly our aim is not to over-regulate. That would constrain innovation and stunt growth”. However, the situation is currently “pretty confusing”, given the different national laws that apply. A European strategy would make it all much less uncertain.

In addition, public intervention can build trust, Ms Kroes said, so that people know the Cloud is a safe and secure place to be. “We must ensure the security of our networks. We must assure people that their data is safe and protected online. And we must give them legal certainty that they can enforce their Cloud contract, if they need to”, she said.

In conclusion, Ms Kroes said that “2012 is the year when the Cloud grows up… We have a chance to put ourselves in a more competitive position, and, yes, even well ahead of the global pack. So let’s not just be Cloud-friendly: but Cloud-active”. To read the speech in full, click here.

Data Protection
Ministry of Justice publishes Summary of Responses to Call for Evidence on Proposed EU Data Protection Legislative Framework.

The Call for Evidence received a total of 143 written responses from a range of organisations from all sectors, consumer and rights groups as well as the general public. Rights groups and members of the general public generally welcomed the strengthening of individuals’ rights and greater transparency in the processing of personal data. However, businesses and some public sector organisations expressed their concern about the possible additional burdens and unintended consequences stemming from the General Data Protection Regulation as proposed by the European Commission.

There were also concerns that the legislation should take into account the evolving nature of technology and its growing dependence on personal data, particularly social networking and cloud computing. Responses highlighted the need for a Regulation that is consistent with future technological advances, whilst at the same time effectively safeguarding people’s right to data protection.

The MoJ says that the Government will negotiate at EU level for an instrument that does not overburden business, the public sector or other organisations, and that encourages economic growth and innovation. However, this must be achieved at the same time as ensuring that people’s personal data is protected. With these guiding principles in mind, and backed up by the information provided in response to the Call for Evidence, the UK Government will:

  • support the provisions requiring transparency of processing, including the new transparency principle and the requirements for data controllers to provide accessible and easy-to-understand information about processing;
  • support the requirement for additional information to be provided to data subjects both proactively and in response to subject access requests (subject to consideration of the additional costs), but resist the proposal that subject access rights be exercisable free of charge;
  • push for an overhaul of the proposed “right to be forgotten” given the practicalities and costs and the potential for confusion about its scope for both organisations and individuals; however, the Government reaffirms its commitment to the right for individuals to delete their personal data, where this is appropriate;
  • resist new bureaucratic and potentially costly burdens on organisations which do not appear to offer greater protection for individuals; examples of this include mandatory data protection impact assessments, seeking prior authorisation from the supervisory authority for certain processing operations and the mandatory designation of independent data protection officers;
  • support the introduction of data breach notifications both to supervisory authorities and affected individuals, but only if the provisions reflect the timescales needed to properly investigate a breach and if a sensible and proportionate threshold is provided which excludes minor and trivial breaches from the scope of the requirement;
  • reaffirm its commitment to a strong and independent supervisory authority at national level and support the establishment of a consistency mechanism to ensure a degree of harmonisation in the application of data protection rules across the EU, whilst allowing independent national authorities some flexibility in how they use their powers;
  • support a system of administrative penalties for serious breaches of the Regulation’s requirements, but push for a more proportionate level of maximum fines, which allows supervisory authorities greater discretion in applying the powers available to them; and
  • push for the removal of many of the powers for the European Commission to make delegated and implementing acts, particularly where these have the potential to make a big difference to fundamental requirements and principles (for example, the legitimate interests upon which data controllers can rely to make their processing lawful or the safeguards that must be established to allow profiling to take place).

For a link to the Summary of responses and related documentation, click here.

Ofcom upholds complaint of unwarranted infringement of child’s privacy because programme failed to obtain explicit parental consent to broadcast footage.

BBC2’s Meet Britain’s Chinese Tiger Mothers: A Wonderland Film looked at the high levels of academic achievement of British Chinese children and featured scenes of a Chinese family celebrating their son’s seventh birthday. The programme, which included several close up shots of their son’s best friend, Mr and Mrs C’s son, prompted complaints of unwarranted infringement of privacy in that family C was included in the programme without its prior knowledge or permission.

Ofcom dismissed the complaint in relation to Mr and Mrs C’s privacy. However, when it came to that of their seven year old son who was referred to by name, Ofcom had more to say. It found that even though the filming took place in a public restaurant, there was still a legitimate expectation of privacy because the party was held in a private room.

Ofcom accepted that the BBC and the complainant held differing views as to whether consent was given. It noted that there was no written consent, nor were there any written communications between Mr and Mrs C and the programme makers before the broadcast. Ofcom also noted that a complication arose on this point in the form of a note explaining the nature of the proposed future filming which had been handed out to a seemingly unworried Mrs C at a private academic class. Nonetheless Ofcom considered that, even if Mrs C had actively consented to filming at the class, that consent would not have amounted to valid consent to the filming at another location at the party, on the basis that consent given for one purpose should not be relied upon for a different purpose.

Ofcom also found that the although the programme makers took a number of steps to obtain consent from those being filmed – e.g. the note, and the director explaining to the Cs at the party that footage was being filmed for inclusion in the programme – more active steps to clarify the position in relation to Mr C’s son should have been taken. Ofcom noted that the complainant’s son was named and referred to as “fighting” for the top class place and suggested that the subject of the documentary was neither trivial nor controversial. Ofcom concluded that because Mr and Mrs C’s son was significantly under the age of 16 and his participation not minor, it was not sufficient for the programme makers to have relied on the steps they took to infer consent for the inclusion of footage of the child.

Since explicit parental consent had not been properly sought and obtained and since, in Ofcom’s view, the footage of Mr and Mrs C’s son did not appear to be essential to achieving the public interest objective, the programme was found in breach of rules 8.20 and 8.21 which relate to the privacy of people under 16. To read Ofcom’s adjudication on a Complaint by Mr C on his own behalf and on behalf of Mrs C and their son (a minor) published in issue 208 of Ofcom’s Broadcast Bulletin (25 June 2012), click here.

Press Complaints Commission finds Sunday Life’s publication of letter from victim to rapist was a “regrettable and avoidable” breach of Editors’ Code of Practice.

The article headlined “‘Sorry’ victim’s begging letter to her rapist”, was published in the Sunday Life on 29 January 2012. The letter from the complainant to the convicted rapist Jason King was reproduced obscuring only her name and address. It explained that she “didn’t want [him] to go to jail”, would “never forgive” herself for her role in his conviction, and had considered saying that her diary, which was used as evidence in the trial, was a “lie”. The newspaper had obtained the handwritten letter and showed it to the complainant’s mother for comment before publishing it.

Investigating the woman’s complaint that the article was intrusive and contributed to her identification as a victim of sexual assault, the PCC stated that regardless of whether she was identifiable, the complainant retained a right to privacy with respect to such intimate correspondence. On the question of whether a countervailing public interest justified publication, the PCC said that the newspaper could have achieved its aim – to expose the extent of Mr King’s continuing hold on one of his victims – through less intrusive means. It concluded that the reproduction of the handwritten letter, in full, represented an unjustified intrusion into the complainant’s private life without consent, in breach of Clause 3 of the Code.

Whilst acknowledging the newspaper’s position that it had acted to protect the complainant, the PCC said that she was now an adult, with rights to privacy even within her own family, and that the decision to show the letter to the complainant’s mother without her consent had represented a further breach of Clause 3.

On the issue of identifying victims of sexual assault, the PCC dismissed the newspaper’s argument that the article, which included the complainant’s current age, her age at the time of the attack, the general area in which she lived, and an image of the letter showing her distinctive handwriting, contained no information about the complainant beyond what had been reported at the time of the trial. The PCC found that the letter constituted material “likely to contribute” to identification of a victim of sexual assault. As such, the PCC concluded that “it was the publication of the letter that tipped the balance” and led to a breach of Clause 11 of the Code. To read PCC adjudication on A woman v Sunday Life (25 June 2012) in full, click here.

European Commissioner for the Digital Agenda Neelie Kroes holds CEO-level meeting to discuss issues in eBook market and to sign Declaration.

Participants from across the publishing industry attended the eBook roundtable meeting on 26 June 2012 to discuss the eBooks market and to sign a Declaration.

Discussions identified that trying to buy eBooks across borders often faces obstacles. Some cited copyright as a problem, whilst others disagreed, given that rights are allocated on a linguistic basis rather than a territorial basis in publishing. It was agreed, however, that establishing where the problem really lies will be important for making the Digital Single Market a reality in Europe.

In any event, once readers have paid for and downloaded their files, they may face further obstacles arising from restrictions imposed by Digital Rights Management systems. It was accepted that these are intended to limit copying, but have the effect of preventing files from being moved freely between devices. Easing such restrictions will be important for the widespread acceptance of eBooks.

The purpose of signing the declaration was to send a strong signal indicating that these problems are being addressed. The declaration remains open for market players involved in eBooks to sign. Any authorised representative of such an entity wishing to sign should send an e-mail to this address indicating that they would like their organisation to be a signatory of the declaration.

The Declaration reads as follows: “The European ebooks segment is growing rapidly and is demonstrating its potential to all stakeholders, in particular readers and authors, and also to publishers, book sellers and network operators. For authors, ebooks are a new way of reaching the public and provide a new revenue stream. For readers, there are significant benefits, including the possibility to store, access and buy a large number of books on June 2012 portable devices. Signatories welcome the development of the European ebook segment, the prospects of growth and renewal that it brings. They support an increasing number of ebooks and devices being made available to consumers across the European Union. Signatories of this declaration endorse the principle that there should be no barriers for consumers to acquire ebooks across territorial borders, platforms and devices. Signatories of this declaration underline the importance of installing a VAT regime which is neutral as far as ebooks are concerned and does not damage sales of printed books”. For further information, including a list of participants and signatories, click here.

Film & TV
Treaty on Audiovisual Performances concludes at WIPO Beijing conference.

The new Treaty, to strengthen the economic and moral rights of audiovisual performers, was concluded following a six-day conference in Beijing this month. WIPO says that the new Treaty “brings audiovisual performers into the fold of the international copyright framework in a comprehensive way, for the first time”.

The Treaty provides a clearer international legal framework for the protection of audiovisual performers’ rights. It will potentially enable performers to share proceeds with producers for revenues generated internationally by audiovisual productions. Further, it grants performers moral rights to prevent lack of attribution or distortion of their performances.

The Treaty will also provide performers with protection in the digital environment and will contribute to safeguarding their rights against the unauthorised use of their performances in audiovisual media.

The Treaty is the result of over 12 years of negotiations. WIPO Director General, Francis Gurry said: “The conclusion of the Beijing Treaty is an important milestone toward closing the gap in the international rights system for audiovisual performers and reflects the collaborative nature of the multilateral process. The international copyright framework will no longer discriminate against one set of performers”.

At the opening of the Conference, actors from around the world, including Meryl Streep and Antonio Banderas, appealed for adoption of the Treaty. In the end, 122 countries signed the Final Act of the Treaty, and 48 countries signed the Treaty itself. Signature of the Treaty constitutes a preliminary endorsement by demonstrating the state’s intent to examine the Treaty domestically and consider ratification, though signing does not create a binding legal obligation to ratify. The Treaty will enter into force only once it has been ratified by 30 eligible parties, including countries or certain intergovernmental organisations. To read the WIPO press release in full and for a link to the text of the Treaty, click here.

British Video Association in support of Ofcom’s draft Initial Obligations Code.

Lavinia Carey, Director General of the BVA, has responded to the publication by Ofcom of the revised draft Initial Obligations Code (see above) with a short statement welcoming “this step towards implementing the Digital Economy Act”. Ms Carey stressed that “Copyright theft damages the audio-visual industry because, despite popular misconceptions, the sector depends heavily on video revenues to produce good quality future content”. The BVA is therefore looking forward “to working with our partners and ISPs to implement effective notice-sending under an agreed code and ensuring the public is aware of the threat that infringing services and illegal file-sharing represents to their family’s online security. We need to reduce the damage to the return on investment in film, television and other video content enjoyed by millions and encourage those who do so through illicit means are persuaded to use legal alternatives.” The statement can be read here.