31 July 2012

Digital Copyright Exchange: Hooper's Final Report

On 5 Jan 2012 I reported the Richard Hooper had been appointed to carry out a feasibility study on a digital copyright exchange and his call for evidence (see "Copyright: Hooper Calls for Evidence" ). Richard Hooper has now published his report: Copyright works: Streamlining copyright licensing for the digital age.


In his report, he said that the creative industries had responded constructively to Professor Hargreaves's report and were busy streamlining copyright licensing for the digital age. He expected such streamlining to reinforce the lead enjoyed that the British creative industries already enjoy in the distribution of digitized content. However, more could be done and his main suggestion was

"the creation of a not-for-profit, industry led Copyright Hub based in the UK that links interoperably and scalably to the growing national and international network of private and public sector digital copyright exchanges, rights registries and other copyright-related databases, using agreed cross-sectoral and cross-border data building blocks and standards, based on voluntary, opt-in, non-exclusive and pro-competitive principles."
Such a Hub would serve both copyright owners and content users in the UK and beyond and it would have 5 main purposes.   First, acting as a signposting and navigation mechanism to the complex world of copyright. Secondly, being the place to go for copyright education.   Thirdly, being the place where any copyright owner can choose to register works, the associated rights to those works, permitted uses and licences granted.   Fourthly, being the place for potential licensees to go for easy to use, transparent, low transaction cost copyright licensing via for example digital copyright exchanges (DCEs), acting in effect as a marketplace for rights,  Fifthly, being one of the authoritative places where prospective users of orphan works6 can go to demonstrate they have done proper, reasonable and due diligent searches for the owners of those works before they digitize them.

To maintain momentum, Hooper has recommended setting up a steering group to be called the Copyright Licensing Steering Group (CLSG) with a wide mandate to ensure continuing cross-sector and where
possible cross-border coordination. The creative industries had already agreed to provide an office for that work for another year.   The report addresses a number of technical issues such as the standardization of identifiers and other data. It also describes some of the licensing and registration schemes that exist in various parts of the world,

Should anyone wish to discuss this article or Richard Hooper's final report, call me on 0800 862 0055 or contact me through Facebook, Linkedin, twitter or Xing, or through my contact page.

Olympics Association Right and London Olympics Association Right



Olympics association rights and the London Olympics Association rights are often referred to as intellectual property rights but as their purpose is to raise revenue from corporate sponsorship and broadcasting they have rather more in common with the the monopolies peddled by James I in his attempt to govern without Parliament.   The sale of such monopolies was bitterly resented and was arguably one of the underlying causes of the Civil War which led eventually to the execution of Charles I in 1649 (the scene of which is depicted in the well known woodcut above).   It is ironic that the king was put to death at Whitehall Palace, not far from where scantily clad young women have been prancing around a sandpit patting a ball over a net.   Happily nobody is likely to lose his head nowadays but there is plenty of resentment against the modern equivalent (see Andreas Whittam Smith "In our race to win the Games, we lost our dignity" Independent 26 July 2012).

Purpose of Intellectual Property Law
The statute that abolished monopolies - the Statute of Monopolies 1623 - allowed an exception for "the sole working or makinge of any manner of new Manufactures within this Realme". The inventors of those new manufactures were granted "Patents and Graunt of Privilege for the tearme of fowerteene yeares or under" for their inventions provided they were "not contrary to the Lawe nor mischievous to the State, by raisinge prices of Commodities at home, or hurt of Trade, or generallie inconvenient."

The above words from section v of that Act summarizes the policy of that statute and also of every subsequent intellectual property statute right up to this day.  Intellectual property law is supposed to strike a balance between two conflicting imperatives:
  • encouraging competition for the benefit of the consumer by abolishing monopolies and other restrictions on freedom to trade; while at the same time
  • providing an incentive for innovation or creativity by allowing a temporary monopoly or other respite from competition to enable the innovator to recoup his or her investment and possibly make a return.
Olympics association right and London Olympics association right do not do that.  They do nothing for innovation or creativity. Unlike true intellectual property rights Olympic association right is perpetual.. They restrict competition in all sorts of markets from soft drinks to florists in Stoke on Trent.  Their only purpose is to provide an economic underpinning for an otherwise extravagant,  peripatetic and unsustainable quadrennial spectacle.

Why have Olympics Association Right and London Olympics Association Right been created?
The answer lies in a paper by Professor John T Gourville of Harvard and Professor Marco Bertini of the London Business School entitled "The London 2012 Olympic Games"  (Harvard Business School, 4 Feb 2011). Of the US$2.8 billion revenues generated by the Sydney Olympics some $1.3 billion came from broadcasting, $892 million from domestic and international sponsorship and only $551 million from ticket sales.   To attract that kind of money the sponsors need some protection.  That is provided by the Nairobi Treaty on the Protection of the Olympic Symbol and the Host City Contract for the Games of the XXX Olympiad in 2012.

The Nairobi Treaty
This treaty has been signed by 50 countries but not as yet by HM government or indeed the government of the United States or most of our EU partners.  The principal obligation under art 1 was subject to certain exceptions
"to refuse or to invalidate the registration as a mark and to prohibit by appropriate measures the use, as a mark or other sign, for commercial purposes, of any sign consisting of or containing the Olympic symbol, as defined in the Charter of the International Olympic Committee, except with the authorization of the International Olympic Committee."
That obligation is implemented in the UK by s.13 and s.14 of the Olympic Symbol etc. (Protection) Act 1995.

Host City Contract
The Host City Contract was offered to all the cities in the 2005 bidding process in Singapore on a take it or leave it basis. It is a massive document some 47 pages long and incorporates by reference an even longer set of technical manuals.   The parties to the contract were the International Olympic Committee, the successful municipality (in this case, London) and its national Olympic Committee. It is governed by Swiss law and any disputes between those parties are to be determined by the Court of Arbitration for Sport.

Part VII of the agreement deals with intellectual property related matters.  Clause 40 (a) requires the host city, national Olympic Committee and the local organizing committee for the Olympic Games ("OCOG") to acknowledge that
"the Games are the exclusive property of the IOC, that the IOC has secured certain international trademark rights regarding the “CITY + 2012” identification of the Games, either combined or not with the Olympic Symbol (i.e. the five rings), and that the IOC owns all rights and data relating to their organization, exploitation, broadcasting, recording, representation, marketing, reproduction, access and dissemination by any means or mechanism whatsoever, whether now existing or developed in the future."
Clause 41 obliges the city, Olympic Committee and the OCOG to obtain legal protection for the above signs.   Clause 40 (g) requires the OCOG (in the event "LOCOG") to enforce those rights in its own country at its own expense in consultation with the IOC.

Implementing Legislation
Four statutes and well over 40 statutory instruments have been enacted to give effect to the obligations of the British parties under the Host City Contract. In addition to the Olympic Symbol etc. (Protection) Act 1995 that I have already mentioned, there are the

The 1995 Act creates the right known as "Olympics association right" and the 2006 Act the right known as the "London Olympics association right."

Olympics Association Right
S.1 (1) of the 1995 Act establishes a right, to be known as the "Olympics association right" which is exercisable by such person as the Secretary of State may appoint by statutory instrument. S.2 (1) confers on the IOC exclusive rights in relation to the use of the Olympic symbol, the Olympic motto and certain protected words.  S.3 (1) provides that the right is infringed by using in the course of trade
(a)    a representation of the Olympic symbol, the Olympic motto or a protected word, or
(b)    a representation of something so similar to the Olympic symbol or the Olympic motto as to be likely to create in the public mind an association with it,
known as “a controlled representation”.   A controlled representation includes
  • affixing it to goods or packaging;
  • incorporating it in a flag or banner,
  • offering or exposing for sale, putting on the market or stocks for those purposes goods which bear it or whose packaging bears it,
  • importing or exporting goods which bear it or whose packaging bears it,
  • offering or supplying services under a sign which consists of or contains it, or
  • using it on business papers or in advertising.
This section is subject to a number of exceptions in s.4.  Olympics association right may be enforced by civil action.  Certain infringements are also offences under s.8.  Instead of decapitation for abuse of this right, s.16 happily provides a threats action.

Schedule 3 to the London Olympic Games and Paralympic Games Act 2006 makes a number of amendments to the 1995 Act.

London Olympics Association Right
Para 1 of Schedule 4 to the 2006 Act creates a right, to be known as the London Olympics association right, which confers 
"exclusive rights in relation to the use of any representation (of any kind) in a manner likely to suggest to the public that there is an association between the London Olympics and— (a)    goods or services, or (b)    a person who provides goods or services."  
The concept of an association between a person, goods or a service and the London Olympics includes, in particular—
(i)    any kind of contractual relationship,
(ii)   any kind of commercial relationship,
(iii)  any kind of corporate or structural connection, and
(iv)  the provision by a person of financial or other support for or in connection with the London Olympics.
Again, there are exceptions and paragraph 4 provides for authorization by LOCOG. Paragraph 10 incorporates several of the provisions of the 1995 Act as amended into Schedule 4 including the right to bring a claim for groundless threats.

Conclusion
Had the Olympic Symbol etc. (Protection) Act 1995 and the London Olympic Games and Paralympic Games Act 2006 been passed to implement an EU directive instead of the Nairobi treaty and the Host City Contract UKIP and the right wing of the Tory Party would have been fuming.  They would have had every right to be angry because the 1995 and 2006 Acts would have been classic examples of gold plating.  Olympics association right and London Olympics association right go far beyond what was necessary for complying with London's obligations under the Host City Contract and a Treaty to which HMG is not even party. Can this draconian legislation be challenged? Probably not directly, but perhaps some of the sponsorship and broadcasting deals could be tested against art 102 or art 107 of the Treaty on the Functioning of the European Union.

Further Information
If anyone wants to discuss this article or requires further information on the legislation, call me on 0800 862 0055 or contact me through Facebook, Linkedin, twitter or Xing, or through my contact page.