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Thursday, 18 July 2013

IP and Digital Entertainment conference: Part II

Your IP address
-- or your life!
Following the coffee break (coffee 3 out of 10; biscuits 10 out of 10), Gary Moss (EIP) continued today's IP and Digital Entertainment conference with a paper on enforcement on the internet.  Gary focused his talk on Norwich Pharmacal orders, which enable owners of copyright in (generally pornographic) films to obtain from internet service providers the IP address details of computer users whose computers had been used for allegedly infringing downloads.  Gary took the audience through the gory history of the Media Cat case, in which Judge Birss QC (as he then was) rumbled a plot to obtain a substantial sum by threatening IP owners, regardless of whether they were infringers or not. As the judge said:
"Simple arithmetic shows that the sums involved in the Media CAT exercise must be considerable. 10,000 letters for Media CAT claiming £495 each would still generate about £1 Million if 80% of the recipients refused to pay and only the 20% remainder did so".
After this ruse was rumbled, a further attempt to do much the same thing was done in Golden Eye v Telefonica, where Mr Justice Arnold allowed Consumer Focus to intervene on behalf of the alleged infringing computer owners.  Arnold J emphasised that just because an IP address is used for downloading an infringing item does not mean that the owner of the IP address is the infringer.  However, it was likely that most of the address owners were infringers.  There were however competing human rights issues, as Rugby Football Union v Viagogo Ltd pointed out: the rights of the wronged party (in our case the right of the copyright owner to obtain compensation in respect of wrongs committed) had to be balanced against the right of privacy: any court order had to be proportionate as between these rights. Proportionality included an assessment of the likelihood of success and the magnitude of any sum claimed. That was not the case in Golden Eye, where a sum of £700 was demanded regardless of the number of alleged downloads. 

In conclusion, said Gary, yes -- you can track down infringers on the internet. You have to follow the rules though. And, if you are a solicitor, be careful!

Ben Challis (Glastonbury Festival) took us to lunch with a perspective on how the Festival turns its popular event into digital products.  The Festival is an early adopter of new technologies, and thus has a vast array of experience -- and a vast archive to complement it.  This year's Festival was the largest ever, with no fewer than nine stages in operation and both live and recorded product.  While copyright is an issue, trade marks and brand issues have become increasingly important -- particularly with regard to China.  

UK and Community trade marks have now been obtained for the relevant classes, the latter in the face of oppositions from local businesses which needed reassurance that registration of "Glastonbury" did not mean that the Festival was about to close them down.  

Unlike most festivals, Glastonbury has a global footprint. This, coupled with the Festival's live streaming, means that every time an act goes out there is someone wanting to record, broadcast or otherwise exploit it.  Simply to say of the extra and unauthorised use, "It's great promotion", is not enough.

The Festival is highly conscious of the need for proper clearances, not least because it works closely with the BBC.  A new business model seems to be shifting the responsibility for clearing to the artists, plus indemnities to the Festival in the event that inadequate clearance has led to liability.  Ben is not aware of any litigation in which indemnities of this kind have been tested. 

Control of use of archived material is a sensitive matter: use of recorded material in political broadcasts or certain advertisement would be unacceptable, so fairly restrictive terms are imposed on what uses can be made of archived content.

The BBC is the Festival's host broadcaster. This year the BBC gave the Festival 250 broadcast hours, spread across its various TV and radio channels as well as on the BBC websites.  Working with the BBC is easy since the corporation has extensive blanket licensing arrangements with collecting societies in the UK and beyond. It's a good combination, since both the BBC and the Festival have lengthy track records in their respective fields.  The Rolling Stones got a huge audience that crossed many digital platform: they were surprised at how many viewers watched their act on iPlayer. Because of the scale and quality of the event, it has been a good springboard for artists seeking to relaunch their careers: Robbie Williams and Shirley Bassey were cited as examples.

Clearances and other responsibilities can be a problem when other major players have their own terms of business which may not mesh in with those of the Festival. Other businesses are also forever proposing new business models that involve micropayments, new schemes for advertising and sponsorship and so on.  The Festival is cautious but tries to keep an open mind; it also makes every effort to find new ways of bringing artists' acts to their fans.

What about the social media? They deserve closer attention, on account of their extensive and increasing use as a means of not just discussing but also sharing popular acts.  

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