‘New business models, new legal issues’
London Book Fair
April 12th 2011
Laurie Kaye & Mailin Bala
Laurence Kaye Solicitors
Laurence Kaye Solicitors LBF. 12.04.11
Agenda
1. ‘Digital Shift’
2. Legal landscape in publishing
3. Successful digital projects
4. Top 10 Points
‘Digital Shift’
Laurence Kaye Solicitors LBF. 12.04.11
‘Digital Shift’
Analogue / Pre-Internet
TransitionalPeriod
NetworkedDigitalSociety
1980’s? 2020?2011?
Laurence Kaye Solicitors LBF. 12.04.11
‘Digital Shift’
Law
Technology
Business Models
“Social norms”
Laurence Kaye Solicitors LBF. 12.04.11
‘Digital Shift’
Tech Law
Biz Models
Social Norms
Creative sector, represents some 8.2% of the UK economy
Employs 2.28m people in the UK
The publishing sector is a major UK strength, worth £22bn
Exports more than any other media sector
Book publishing alone reported exports of £1.2bn in 2009
That export market depends critically on copyright.
Laurence Kaye Solicitors LBF. 12.04.11
‘Digital Shift’
Laurence Kaye Solicitors LBF. 12.04.11
‘Digital Shift’
Laurence Kaye Solicitors LBF. 12.04.11
DPF: “Hot Legal Issues”Big Themes
’
Laurence Kaye Solicitors LBF. 12.04.11
‘Digital Shift’
‘Work’
Enhanced Edition
Book
E-book
App
‘Digital Shift’
Author
Publisher
Developer
Distributor
Community
Search
Laurence Kaye Solicitors LBF. 12.04.11
Laurence Kaye Solicitors LBF. 12.04.11
“The copyright system will never work on the Internet” Professor Lawrence Lessig (Nov 2011)
v.
“Let’s innovatively adapt”
Legal landscape
Laurence Kaye Solicitors LBF. 12.04.11
DPF: “Hot Legal Issues”Digital Rights
Copy
‘1 to 1’ – making available on demand on the internet
‘1 to many’ – comm to the public
Laurence Kaye Solicitors LBF. 12.04.11
While the digitization of books and the creation of a universal digital library would benefit many, the ASA would go too far. It would permit this class action – which was brought against Google to challenge its scanning of books and display of “snippets” for on-line searching – to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google significant advantages over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in this case”
Judge Denny Chin
Legal landscape
Laurence Kaye Solicitors LBF. 12.04.11
DPF: “Hot Legal Issues”Digital shift
Amended Google Settlement
Laurence Kaye Solicitors LBF. 12.04.11
“Many of the concerns would be ameliorated in the ASA was converted from an “opt-out” settlement to an “opt-in settlement”
Judge Denny Chin
Legal landscape
Laurence Kaye Solicitors LBF. 12.04.11
Hargreaves Review
• No.10 initiative – seeking hard evidence • “obstructing growth?” – barriers to new internet-based business
models (including permissions) • Cost and complexity of enforcing IP rights – UK and abroad • Interaction between IP and Competition frameworks
• Cost and complexity for SMEs
Legal landscape
Laurence Kaye Solicitors LBF. 12.04.11
Gowers: o/s exceptions to copyright• Gowers 2006 and ‘Taking Forward’ 2008 • Dropped: personal copying, research and private study, parody • 2 left: ss. 35/6 – education via distance learning (nb licensing
proviso) • Libraries and archives: s42 – copying for preservation and archiving
to be extended to sound recordings, films etc
Legal landscape
Laurence Kaye Solicitors LBF. 12.04.11
The International agenda 2011: EU
• WIPO – copyright exceptions? • Treaty (or Stakeholder forum) on VIPs? • EU – Impact Assessment on Orphan Works • ‘Out of Commerce’ – Stakeholder Forum • Framework Directive on Collective Management
Legal landscape
Laurence Kaye Solicitors LBF. 12.04.11
Simplicity
Transparency
Ease of use
Laurence Kaye Solicitors LBF. 12.04.11
What are the top 5 issues to focus on in contract?
:
• The Licence
• What about the technology?
• It’s a commercial term!
• New IP?
• Plan for exit…
Laurence Kaye Solicitors LBF. 12.04.11
The Licence (permission to use the work)
:
• Exclusive or non-exclusive?
• Territory?• off line• on line
• Delivery?• What medium?• What platform?
• Permitted acts?• Is it sub-licensable?
Laurence Kaye Solicitors LBF. 12.04.11
What about the technology?
:
• Understand the process
• Think about the related issues e.g.
Enhancements
Bug Fixes
Backups
Access to source code
Laurence Kaye Solicitors LBF. 12.04.11
Don’t mistake a commercial term for a legal term
:
E.g. exclusion and/or limitation of liability clauses
Laurence Kaye Solicitors LBF. 12.04.11
Any new IP?
:
• Who is the owner?
• Include an assignment
Laurence Kaye Solicitors LBF. 12.04.11
Plan for the exit?
:
• What are the rights of termination
• What is the effect of termination? What happens to content on
termination? Revenues Any other provisions to continue post
termination? (e.g. audit, access to licensee’s proprietary code)
Laurence Kaye Solicitors LBF. 12.04.11
What are the top 5 mistakes in a contract negotiation?
:
1. Don’t start work before the contract has been negotiated.
2. Don’t negotiate the commercials in tandem with the legal negotiation of the contract
3. Remember to consider the presentation and tone of your contract
4. Don’t reinvent the wheel
5. Involve your lawyer early
Laurence Kaye Solicitors LBF. 12.04.11
Starting work before the contract has been negotiated
:
• Exposure if things go wrong
• Solution: agree one page term sheet
Laurence Kaye Solicitors LBF. 12.04.11
Negotiating the commercials in tandem with the drafting of the contract
:
• Negotiate commercials first
Laurence Kaye Solicitors LBF. 12.04.11
Consider the presentation and tone of your contract
:
• Plain English
• User friendly format
Laurence Kaye Solicitors LBF. 12.04.11
Don’t reinvent the wheel
:
• Working with what you’re given = speedier resolution
Laurence Kaye Solicitors LBF. 12.04.11
Involve your lawyer early
:
• Ask them to identify:
Key issues
Ways in which you can manage
your risk
Laurence Kaye Solicitors
10 PRINCIPLES OF DIGITAL MEDIA LAW
• There’s always a solution• Online rules = offline rules (mostly)• Living with uncertainty, so manage your risk• Value your IP• Copyright: permissions first, restrictions last• Think privacy• Collaboration’s the name of the digital media game• Make it simple(r)• Do the deal but allow for the exit• What are the things you don’t know you don’t know?
Laurence Kaye is an expert lawyer in the fields of digital law, intellectual property and media law. He is recognised in “Chambers Guide to the UK Legal Profession, 2011” as a leader in the fields of Media Entertainment & Information Technology law.Laurence was one of the first lawyers in the UK to advise on Internet law. He combines cutting-edge legal work on digital media projects with strategic and policy-related work in the field of copyright and online law. He is Copyright Adviser to the European Publishers Council for whom he has worked closely on a number of key EU Directives, including the Copyright, Database and E-Commerce Directives, and on many copyright strategy papers.
Laurence also served as a member of the Copyright Expert Panel from 2008-10 which advised UK Strategic Advisory Board for Intellectual Property Policy (SABIP.
Laurence founded Laurence Kaye Solicitors in 2002. The firm’s mantra is “legal solutions for the digital age”, with a proven track record for combining innovation with practical legal advice.Laurie is also a regular blogger at ‘Laurence Kaye on Digital Media Law’.
Contact details:[email protected]
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