Entertaining on the Move
Content is now consumed on multiple devices and in multiple locations. Consumers are increasingly ditching traditional media in favour of digital downloads, cutting out as many middle men as possible.
Content is now consumed on multiple devices and in multiple locations. Consumers are increasingly ditching traditional media in favour of digital downloads, cutting out as many middle men as possible. For example, one of the most pressing challenges for film studios at the moment is that the bottom has fallen out of DVD sales. Increasingly, consumers are watching films using online VOD services.
While a publisher may specify the law which is to govern the contract (and the download) in its terms and conditions, the choice of law will not outweigh national IP laws, defamation or privacy laws. Those terms and conditions will be a matter of contract between the consumer and the publisher and not between the publisher and any third party bringing a claim against the publisher. There is no getting round the fact that distributors of content need to consider the laws of each of the countries in which they make content available. These are the sorts of media law quirks that a distributor might face when distributing on a European or international scale:
- Unlike most of Europe, it’s possible to defame the dead in France. This would be relevant if the content in question was a book which talked about the dead in a defamatory way. While this would usually be without legal risk in the UK, the position may be different in France.
- Duration of copyright is not always harmonised as between, for example, the United Kingdom and the United States of America. With older works, these may no longer attract copyright protection in the US but may well still be protected in the UK, in which case a licence would be needed from the copyright owner before any lawful exploitation could take place in the UK.
- Currently, there is no general provision under English law permitting private copying. For example, it is illegal to copy music from a purchased CD onto a computer or MP3 player. The closest that the UK has to a private copying exception is the "time shifting" exception, which permits individuals to record copyrighted works for the purposes of watching them at a later date. Where rights owners want to avoid copying and general format shifting, they are increasingly employing digital rights management technologies (DRM) to assist. While the DRM employed might be commercially viable in the UK where we have no exemption from copyright infringement for private copying, what about jurisdictions where private copying is allowed, or countries which have fair dealing copyright exceptions permitting limited copying for the purposes of e.g. news reporting? Consumers in these countries are less likely to stomach this.
- The UK currently has some of the strictest libel laws in the world. While material may have been deemed suitable for distribution in the US, it won’t necessarily follow that it is suitable in the UK. It is much harder to establish liability for defamation in the US, particularly given that the claimant has the burden of proving defamatory allegations are untrue in cases where truth is pleaded by the defendant. The position is the reverse in the UK. As the law currently stands, a far higher standard of pre-publication review ought to take place before material is published in the UK.
- Have the right people been credited in the content being distributed? Moral rights, such as the right to be identified as the author of a work, can be waived in some countries, such as the UK, but cannot be waived in other parts of Europe, such as France.
Bearing all of this in mind, it is immediately apparent how location based services technology can help publishers and distributors of content to stay on the right side of the law when providing content for download. Identifying where your potential audience is can help avoid liability for copyright infringement and defamation and privacy claims, given the law in these areas is far from harmonised throughout the world. Establishing the location of your consumers (i.e. the place of download) and having pre-determined rules about the sort of content that you make available to consumers in those countries, and the restrictions that accompany supply, is one of the safest ways to proceed. Location based service technologies that identify where your user is based will be enormously helpful in applying those predetermined rules.
These technologies are not only a powerful sales targeting tool but also a potential tool to help suppliers reduce exposure to legal risk.
"Lorna Caddy looks at how location based services technology can help publishers stay on the right side of the law when navigating media law in different countries."
"While a publisher may specify the law which is to govern the contract (and the download) in its terms and conditions, the choice of law will not outweigh national IP laws, defamation or privacy laws."