© Clearance Issues for Online Video
Seminar on IP and Creative SMEs in the
Digital Environment
WIPO – 21 MAY 2008
Ted Shapiro (Senior Vice-President,
General Counsel & Deputy MD, EMEA)
A successful film industry of course
depends on a wide range factors.
One important factor relates not only to how copyright
protects film but also how it regulates and permits the
audio-visual sector to function….
The Complexity of Rights Clearance
• What is rights clearance?
– Securing rights for production and exploitation
– Preventing third party claims
– Consequences for failure to clear
• Copyright and Related Rights (authors/performers etc)
• Underlying works/Pre-Existing Content
– Inclusion in new works or new uses of old works
– E.g., books to films, clips on UGCs, old films on VOD
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Personal: Rights of publicity, privacy and/or moral rights
Residuals (Guilds) and Remuneration (Statutory)
Music – particularly for online uses
Trademarks, Business names, Titles, Products, Locations
Orphans, Remakes, Sequels, Prequels,
Scope and nature of licenses particularly for new Internet
services: territoriality, DRMs. (See also IFTA materials)
• Related points: E&O insurance, co-production agreements,
completions bonds, financiers, banks
• International aspects – laws vary - e.g., exceptions
Focus for Today
• Overview of AV © in the US and EU
• Some Rights Clearance Issues for the
Exploitation of Video on the Internet
– VOD
– Electronic Sell-Thru
– New Modes of Retransmission
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• FIN
DTT
Mobile TV
IPTV
Internet
Exploitation of Rights by the Producer
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European approaches (Transfer, Cessio Legis, by contract)
– Producer gets exploitation rights
– Remuneration and moral rights
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US Work Made for Hire Doctrine (17 USC §§ 101, 201)
– Collective bargaining – residuals and some “moral” rights
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Producer may assign copyright to a distributor or license a number
of companies (e.g., by territory, by language, by category of rights)
Producer responsible for securing necessary clearances
Producer aims to position film in best competitive position in order
to cover costs, pay everyone, to secure return on investment and
to create new works.
– Film released in different formats in a sequential order (windows) to
get maximum return.
– Very few films make money in the theatrical release
– Bulk of return has been home video
– New Modes/Piracy….are challenging existing practices!!!!
Delivery – 2 emerging models*
1. Electronic Sell-Thru (EST)(aka Digital-To-Own):
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On-demand transmission of an AV work in an encoded
file for download via DRM technology
consumer is authorised to retain a permanent copy
(initially on hard drive or similar device and potentially
for burning onto an optical disk)
unlimited use/playback.
2. Video On-demand (VOD):
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On-demand content transmission for limited viewing
period via DRM technology
• no permanent copy being retained by the consumer
• content received via streaming or self-erasing download
*indicative only
VOD and EST – Some legal issues
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Electronic Sell-Thru (Digital to own) & Video On-Demand
–What exclusive rights are involved?
• Making available – WCT Article 8
• EUCD Article 3.2
• In the US – Registrar of © but cf recent caselaw
• Public Performance?
• Reproduction?
–New modes of exploitation – do you have the rights?
•“for all media now known or hereafter invented”
•Bans on the licensing of unknown uses
– German CA §31.4 – REPEALED
– New §31a – transitional provisions, right of revocation (not an
issue for AV), mandatory collective admin for old contracts
•How do you remunerate for distribution via UGCs? Clips,
•Other Issues:
–Exhaustion (Art 3.3 EUCD – First Sale Doctrine in US 17 USC §109)
–Exceptions/DRM (Art 6 EUCD – DMCA Section 1201 )
–Interoperability
VOD and EST – Clearing the music?
• What rights are required for music in film?
– Reproduction (exception for temporary copies)??
– Communication to the Public – Public Performance???
– Making Available -- interactive services
• Who is the owner of those rights?
– Pre-existing/specifically created - Composers/Publishers
• Rights Acquisition by Producers
– Contract and/or
– Statutory (work made for hire, cessio legis or presumption of transfer)
• Which Law Applies? What about mandatory rules?
• Buyouts and local collecting societies
• US is a single territory (ASCAP, BMI, Harry Fox, contractual
freedom)
• Music licensing in the EU is undergoing a lot of change…
New Modes of Retransmission
• Cable retransmission (and Satellite)
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Mandatory collective exercise of rights
Role of initial broadcasters
EC Cable & Satellite Directive (Art 9/10)
US Compulsory License (17 USC §§ 111, 119 and 122)
Berne Convention Article 11bis(2)
• New modes of Retransmission
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IPTV
Digital Terrestrial TV
©
Mobile TV
Internet TV
Exclusive rights or mandatory collective exercise or
compulsory license
– Territorial scope?
– Simulcast issues
Some Tips
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Continual process
Start Early
Document
Research
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lots of sources online
Document
Monitor
Document
Legal advice
Risk Assessment
Consequences/Cost
Liz Wilson
Candice Orwell
Sofia Coppola
Keira Knightley
Bronagh Gallagher
John Fensom
Greg Proops
Scott Capurro
Margaret Towner
Dhruv Chanchani
Oliver Walpole
Katie Lucas
Megan Udall
Hassani Shapi
Gin Clarke
Khan Bonfils
Michelle Taylor
Michaela Cottrell
Dipika O'Neill Joti
Phil Eason
Mark Coulier
Lindsay Duncan
Peter Serafinowicz
James Taylor
Chris Sanders
Toby Longworth
Marc Silk
Amanda Lucas
Produced by
George Lucas ....
Rick McCallum ....
Original Music by
John Williams
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executive producer
producer
Eirtaé (as Friday 'Liz' Wilson)
Yané
Saché
Sabé
Radiant VII captain
TC-14
Beed (voice)
Fode (voice)
Jira
Kitster
Seek
Amee (as Jenna Green)
Melee
Eeth Koth
Adi Gallia (as Gin)
Saesee Tiin
Yarael Poof
Even Piell
Depa Billaba
Yaddle
Aks Moe
TC-14 (voice)
Darth Maul (voice)
Rune Haako (voice)
Daultay Dofine (voice)
Sen. Lott Dodd/Gragra (voice)
Aks Moe (voice)
Tey How/Diva Funquita (voice) (as Tyger)