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Informe de industria: Copyright y asuntos legales de la industria audiovisual

Aspectos legales de los derechos digitales


- Robert Blamires definió algunos de los derechos de los nuevos medios sobre el uso digital de Internet, telefonía móvil, televisión, IPTV y televisión a la carta.

Este artículo está disponible en inglés.

Robert Blamires is Digital Media Lawyer at FIELD FISHER WATERHOUSE LLP.

How do you define new media?
Talking about new media, in general terms, we are talking about digital content. Compared to the traditional media we must define the platforms format, the place and the time shifting.
We can look back to the 80s and the battle between Betamax and Sony over the VHS formats; through format shifting devices we got computer games.
We should start looking at the licensing and what makes digital media so exciting and interesting for media companies. The most important tend to be the distribution of digital media: the fact that you can reach such a huge number of people very easily simply with one click. We are starting to see today different opportunities for revenue earning.

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How do you define Intellectual Property Rights?
Talking about IP rights, in very general terms, we can define them as a broad range of legal rights attached to a specific kind of work. But a real fundamental tenet of IP rights is the idea that you are not really protecting the idea itself but the expression of that idea. For example you can protect a book only when it is written. These are rights that are attached to all creators, whether they are software programmers or authors, artists, depending as well on the type of work they have created.
A very crucial factor is the monopoly rights concept: the opportunity to exploit your creation or the creation in which you have bought rights to the exclusion of others. Another crucial element is the opportunity to grant rights for others, so that they can exploit on your behalf in exchange of royalties. These are the two fundamentals of IP: the ability to exploit the rights and the ability to exclude others from exploiting those rights without your permission.

Which Intellectual Property Rights exists in media content?
We are talking about copyrights. In any given piece of media content there are a number of different works. In an animated work you might have performances, voices, music (either created for the purposes of that particular media or already existing). All these works are protectable and licensable.
It is important to be sure that the producer has all the rights in the piece of media content, before start licensing it. Some general principles, typically copyrights, are owned by the creator of that content. There is a big exception which is that, unless you have a contract that says otherwise, copyright in a work created by an employee will be owned by the employer; conversely if you commission a third party to create something for you, unless you specifically state in your contract that you will own those rights, the person you have commissioned to create that work will own the IP rights on that work.
Music is a difficult area; there are different rights that will exist in a music performance that the producer needs to clear before using it. There are various collecting societies that make this process easier, but they tend to be specific to a particular right or territory and the process of going through the clearance is not always straightforward.

How do Intellectual Property rights work in the distribution sector?
As long as you are a licensor adequately remunerated, and as a licensee as long as you have the specific rights, you’ll both be looking at distributing your content on as many different media as possible. But when we start to look at digital media, and distributing content via different new media platforms, it starts to look a little bit tricky. You must make sure that you are granting exactly the rights you intent to.
The sorts of things you can look at in terms of licensing are the platform and the device. In order to define these licenses correctly, you need to understand the delivery mechanics and the technology of your platform or service.
It is inevitable that the parties involved have different perspectives on what rights they are granting or getting, they also have different understandings of the terms. You don’t just refer to generic terms. The most unhelpful are “motion pictures” and “ancillary rights”; “ancillary rights” could really cover anything as rights to posters, to DVDs, online VoD… When we are looking at new media, these kinds of expressions are not particularly helpful.
An example of how a badly drafted license can start to cause problems is the case of Arena. DFL, the German soccer league sold “pay tv” and “free tv” to Bundesliga matches for €220m to pay tv provider Arena. Then DFL sold the “Internet” rights to Deutsche Telekom for €45m. Deutsche claimed the definition of “Internet rights” included the right to transmit via cable and satellite, which ended with a breach by DFL of its exclusive licence grant to Arena.
Although the parties spent significant amount of money for litigation, ready to take the case to court, they came to an agreement. Deutsche Telekom agreed to not transmit via cable and satellite for a reduced fee. Ultimately the agreement resulted in making less money than it had originally intended. It is important to get the drafting right, and to talk about new media on its own. It is important to ensure that everyone knows what exactly is being licensed, in terms of mobile, online, interactive pay-per-view etc. You must start to narrow down what you are granting as a licensor, or as a licensee what you are getting, and of course all the parties involved will have different understandings of what they mean by specific terms. It is important to define all these terms in the contract and make sure everyone understands what rights are being granted.

What different terms and definitions can you start to use in the grant of rights in new media content?
We are talking about a number of different means that can be used together, in order to produce the perfect license, so a grant will include a number of these different options.
Probably most closely aligned to new and old media is the non linear and linear distinction, where by linear we mean a traditional consumption of media on a schedule basis, where users are sitting in front of the TV watching content scheduled by the broadcaster; by non linear instead we get closer to new media and we are talking about the consumer who pulls content himself, so the content is delivered only if it is specifically asked.
This distinction reflects different business models, types of revenues arrangements for downloading, own or rent.
We can define our license by the service itself; this is likely to be attractive for a licensor. You go out to a distributor or a broadcaster offering content to make available on the service, like SkyPlus in the UK. In this case licensees tend to be uncomfortable because the content may be slightly modified on the delivery.

How do you define windowing?
Windowing is slightly different, is about staggering your licensing and making content available initially on a film release that goes after on DVD and TV, giving consumers a way of accessing your content on different formats at different times.

How do you define the retail model?
The retail model is another way of drafting the license. One that we often see in the drafts is how is the user actually paying for the content and how am I willing to make this content available.
IPR are not an abstract concept, but are fundamental rights to any media business. Without them there is no business model. The rights for the content exclude other people from using it, and exploiting it yourself is the only possibility to generate revenues. And also it's always important to define the licenses as clearly as you can.

Observing continental or UK law, is one of them more adapted to digital?
The legislation more adapted to new media is the Audiovisual Media Services Directive adopted by the European Commission. Its application depends by each Member State, that have to transpose the Directive in their own legislation.

Regarding place shifting, if I live in the UK and I travel abroad with my set of box with me and I watch it from another country, or watch it on Slingbox, isn’t it in conflict with territory rights?
Slingbox is a very interesting case, and in theory yes; even before Slingbox was launched, making content available on line it's a very difficult question because it is not like broadcasting content on TV, it is about making it accessible worldwide.

What is the most interesting type of protection, the Geneva closes or the European design protection right?
Trademarks and registration under the Geneva closes are expensive. The European design rights are a little bit cheaper, and it's quite a new right fairly effective. Which is the best, it depends on your show and the extent and the availability of resources.

When you say avoid broad terms like all media, and put the specifics in, how do you protect yourself from those media that will be invented in the future?
A licensor will be uncountable if the content acquirer uses the term 'all media'. And you will not necessarily find that you will cover any media or any platform.
In Spain you are not allowed to include any future devices. In the UK instead you can grant a license for future rights, you can assign future rights in terms of a work that hasn’t been created yet.

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