Informationoverlord

Westlaw UK is a service I have a lot of time for generally. Has a better UI and general look and feel than a certain competitor in the market and also tends to be better for most case and legislation searches.

However …

The other day I need to do a search to look for a definition of  ‘market price’. In particular if it had been defined in case law. I open up Westlaw, select case search, and look at my options for search:

Free Text
Party Names
Citation
Term Defined

As I’m looking for a definition of a term, it looked like Term Defined would be my logical first place to search.

I entered into the search box: Market Price.  As I do so, Westlaw suggests that I want to search for market price of the article. I don’t so I leave it as Market Price. I hit search.

I get an error message:

Your query contains a misplaced connector. A search term must precede and follow a connector.

Hmm. I wasn’t aware my search contained ANY connectors, unless Market or Price were connectors Westlaw used, that I was not previously aware of.  Next to the search box, is a handy ‘i’ for information symbol. Hovering over that it says: e.g. international agreement

I try again. Same result.

I decide on a different approach. I decide to use quotation marks, so this time search for “market price”

Doesn’t like that either.

“” Your query contains misplaced quotation marks. Search terms must appear between a set of quotation marks.

Err, My search terms ARE between a set of quotation marks.

So, it must be broke, right?

Wrong. According to Westlaw the Term Defined box only works with terms that are included in their ‘Word Wheel’ - such as ‘market price of the article’ , it seems.  They didn’t actually explain, why they don’t explain anywhere that that is how the Term Defined search works, nor why the error messages associated with it are totally nonsensical. How about an error message that says, that the term can’t be found beacuse not in Word Wheel and a link to what the Word Wheel is, and just what it is for?

In the end I used Free Text search and connectors to find what I was looking for, but still ended my session more than a little annoyed.

Advocate General Mengozzi of the ECJ has recommended that the ECJ rule that a database of football fixtures in the English and Scottish leagues is not protected by copyright law because it is not an original intellectual creation of its author. According to the AG if any intellectual creation happens in this case it is before the database is created and any protection from the database directive concerns the database not its contents, and activities involved in the creation of the data cannot be taken into account for the purposes of that assessment.

The Case ( C-604/10 Football Dataco Ltd ) concerns the English and Scottish football leagues wanting to charge bookies and sites such as Yahoo to use football fixture lists, who currently use the information without paying them for the privilege.

The AG’s opinion is not really a big surprise, as the ECJ has previously made a distinction between the creation of data and obtaining data. In The Fixture Marketing (338/02 (Fixtures Marketing Ltd v Svenska Spel AB),. 444/02 (Fixtures Marketing Ltd v OPAP) and. 46/02 (Fixtures Marketing Ltd v Oy Veikkaus Ab)) and the British Horseracing Board (C-203/02) cases the Court refused to count any investment in creating the data as constituting a substantial investment in the database itself. Indeed these ruling had effectively ruled out any sui generis protection for such databases. The sui generis right states that:”Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.” In the case of Fixture Marketing , the ECJ was clear that “neither the obtaining, verification, nor presentation of the contents of a football fixture list attests to substantial investment which could justify protection by the sui generis right provided for by the directive.”

The current case therefore was looking to ascertain whether or not, with sui generis protection ruled out, copyright protection applies and if so under what conditions. The AG is clear that protection focuses on the structure of the database – including selection of data and how presented, but does not extent to the contents – which may be protected separately by copyright, but are not by virtue of being entered into a protected database.

In this case, the AG states that it believes the referring court – English High Court – starts its assumption on whether there is any selection or arrangement of the data in the database with a misreading of the facts. The AG argues that in this case it is not a generic list of teams, possible dates, and times that is entered into the database and then the specifics of each match is generated after that, rather what is entered into the database is all the individual matches to played with the teams, dates and times already finalised. Indeed, even if this were the case as the court ruled in Fixtures Marketing case said, the term database, as used in the directive, refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected. In this case generic lists of teams, dates, times would have no separate value. Only the set of details identifying each match could have such value. That said, the AG goes on to add “the elements which characterise the matches of a football league, however, are all basic data, and are not output generated by the entry of the basic data in a database.”

A football fixture list could be protected by copyright if there was some additional original elements introduced by the creator - graphical/colour elements etc – but the fact would remain that only that means of displaying the data not the underlying data would be protected.

On the question of whether national law could confer protection on a database not covered by the directive, the AG said it was clear the answer was no. The Directive provided for transitional arrangements for databases formerly covered by national rules – for example, in the UK databases were generally protected by copyright before the directive – but it could clearly not be the intension that databases created after the directive came into force could them benefit from those previous national rules.

This, to me, seems a very sound opinion from AG Mengozzi. It is short, concise and to the point. It also makes sense. In the words of the AG ” the very idea of using copyright to protect football fixture lists seems peculiar, to say the least.” However, the AG’s opinion, is just that. It will be forn the ECJ itself to decide whether or not to follow his recommendation or to bring their own interpretation to bear on the facts.

The Database Directive itself has been one of the biggest failures in copyright law. Passed in 1996 its purpose was to help protect the investment in creating a database as thus stimulate the growth of databases in Europe, improving choice and helping content industries ‘innovate’. Recent review of the directive in 2005 showed that ‘innovation’ has resulting in less databases in the EU now than in 1996. Then, as now, there were calls for the Directive to be repealed or rewritten. However, this line from Evaluation of the 1996 Database Directive raises questions” Single Market News Article - (Issue No. 40 - January 2006) may hint at why nothing has happened: “While the empirical evidence, at this stage, cast doubts on the usefulness of the new right, the European publishing industry argued that “sui generis” protection was crucial to the continued success of their activities.” These were the same people who also claimed the directive had “created more business opportunities and facilitated the marketing of databases.”

The evidence however shows the Directive has shrunk and stifled the market rather than stimulating it, and a look to the US where database investment and creation increased over the same period adds weight to the argument of the need for the directive and especially the sui generis right at all. Of course, if the EU did get rid of the Sui Generis right there is an argument that in this case the UK would have conceivably granted this database protection as a “non-original” compilation, which took some effort to create. So, in this case, at least, maybe the flawed directive has returned the correct legal answer.

The European Court of Justice (ECJ) has ruled that a national measure ordering an internet service provider to install a system for filtering and blocking electronic communications in order to protect intellectual property rights in principle infringes fundamental EU rights.

The Court considers that the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights, and that the deployment of such a system would restrict freedom of an ISP to conduct its business , which is also protected by the Charter of Fundamental Rights.

This decision comes as part of a long running battle between Belgian copyright society SABAM and Internet service provider Tiscali (now Belgacom’s Scarlet) . Back in 2007 the Belgian Court of First Instance ordered Scarlet to put into place blocking and filtering mechanisms to stop its users sending or receiving music through p2p applications, this was after a lower court had found the ISP liable in 2004 for the unauthorised exchange of music files through its service. SABAM had asked the court to force the ISP to use a filter from Audible Magic to screen out file-sharing traffic. However, a judge later reversed this ruling, after confusion over the purported effectiveness of Audible Magic.

Scarlet argued that and filtering technology was flawed and that even if it were not, then it was being asked to monitor all communications coming across its network in order to identify p2p traffic, which would go against EU law.

The Brussels Court of Appeal took up the case, and decided to refer the matter of whether ISPs can be compelled to filter file-sharing traffic on their networks to the ECJ

It is asked for guidance on:

1. Do Directives 2001/29 [copyright in the information society] and 2004/48 [the IP enforcement directive], read in conjunction with Directives 95/46 [on the processing of personal data], 2000/31 [the e-commerce directive] and 2002/58 [on privacy and electronic communications] and interpreted with regard to Articles 8 and 10 of the European Convention on Human Rights, allow Member States to authorize a national court, seized in a procedure on the merits and on solely on the basis of the legal provision which holds that “They [the national court] can equally impose a prohibitory injunction on intermediaries whose services are relied upon by a third party to infringe copyright or a neighbouring right”, to order an ISP to put into place, vis-a-vis all of its customers, in abstracto and as a preventive measure, at the expense of the ISP and without limitation in time, a system filtering all electronic communications, both incoming and outcoming, passing through its service, in particular by means of peer to peer software, with the aim to identify the circulation on its network of electronic files containing a musical, cinematographic or audiovisual work to which the claimant alleges to enjoy rights and to then block the transfer thereof, either at the request or at the time it is sent?

2. If question 1 is answered in the positive, do these directives require that the national court, seized to rule over a request for injunctive relief against an intermediary on whose services a third party relies to infringe a copyright, applies the principle of proportionality when it is asked to rule over the efficacy and the dissuasive effect of the requested measure?”

The court, essentially confirming the view of Advocate General (AG) Cruz Villalón, earlier this year, is clear that the injunction requiring Scarlet to install a system for filtering and blocking electronic communications in order to protect intellectual property, would require it to actively monitor all traffic across its network, which is prohibited under the e-commerce directive. It agrees that under EU law the protection of IP rights is enshrined, but stresses that nothing in the wording of the provision in the Charter of Fundamental Rights of the European Union or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected. It is a right that has to be balanced against other rights, and national authorities and courts must ensure that they strike a fair balance between conflicting rights. In this case the rights balanced are those of the content owners wanting to protect their IP rights and those of the ISP to have freedom to conduct its business. According to the court, the injunction in this case would seriously infringe the freedom of the ISP to conduct its business as it would require it to install a complicated and costly computer system at its own expense, that would have no time limitation, contrary to IP Directive.

The Court goes on the add that the effects of the injunction would also infringe the fundamental rights of the ISPs customers, in respect to protecting their personal data and their freedom to communicate. The systematic analysis of all communications traffic and the collection and identification of subscribers’ IP addresses would particularly.

Finally the court says the injunction would lead to over-blocking of content including much legal non–infringing content.

How does this judgement affect the situation in the UK? The short answer is it doesn’t really. The ECJ has primarily found that the injunction against Scarlet was too broad in that it imposed an obligation to monitor all communications – which itself would (except in limited circumstances) fall foul of the Regulation of Investigatory Powers Act (RIPA). And in theory at least, the UK’s controversial Digital Economy Act does not require ISPs to monitor communications in a manner that would contradict the provisions of RIPA.

Actions such as the recent court order forcing BT to block access to a particular site, Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc (Newzbin case), is more focused and limited than what happened in the Scarlet case. Indeed, Justice Arnold considered this, then pending decision, in reaching his conclusion. he said ” I consider that the present case is clearly distinguishable from that case. Quite simply, the Studios are not seeking an order that BT “introduce, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the sharing of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent”. On the contrary, the order sought by the Studios is clear and precise; it merely requires BT to implement an existing technical solution which BT already employs for a different purpose; implementing that solution is accepted by BT to be technically feasible; the cost is not suggested by BT to be excessive; and provision has been made to enable the order to be varied or discharged in the event of a future change in circumstances. In my view, the order falls well within the range of orders which was foreseeable by ISPs on the basis of section 97A, and still more Article 8(3) of the Information Society Directive. I therefore conclude that the order is one “prescribed by law” within Article 10(2) ECHR, and hence is not contrary to Article 10 ECHR.”

Also, in the BT case, it could be argued that by already having its ‘cleanfeed’ system up and running to deal with blocking access to sites identified as containing child porn images it had already potentially lost any ‘mere conduit’ defence under the e-commerce directive as doing so was a commercial decision not a legislated one.

It is also worth noting that another similar case, with an identical question to the first question in this has been referred to the Court of Justice in Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM) v NETLOG NV.

It is always nice to see some common sense from Judges, and we got some this week when the Supreme Court of Canada ruled that ” a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.”

The ruling came in a case that focused on the issue of liability for linking to allegedly defamatory content on the web where Mr Crookes, a member of the Green Party of Canada, had sued Mr Newton on the basis that two of the hyperlinks he created on his website connected to defamatory material about him, and that by using those hyperlinks, Mr Newton himself was publishing the defamatory information.

According to Justice Abella, writing the majority opinion, hyperlinks share the same relationship with the content to which they refer as do references and footnotes. They communicate that something exists, but do not, by themselves, communicate its content. They require some act on the part of the reader to gain access to the content. “The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers”. Only when a hyperlinker “presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker”.

Chief Justice McLachlan and Justice Fish substantially agreed with the reasons of the majority however, they said “a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication.” So a ‘did you see what someone said about x’ might mean you are ok, but ‘I totally agree with what Y said about x here’ and you’d probably be in trouble, and it should constitute publication.

Justice Abella correctly, in my view, recognises that the internet and the web cannot function without hyperlinks, and limiting their usefulness would create a potential “chill” in how the Internet functions, making anyone creating web content concerned of the risk of linking to any other articles or websites whose content they did not control. As he puts it ” Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.”

To anyone that actually uses the internet the majority approach to this is, of course ,common sense but, common sense and the issue of the courts and linking have not always gone hand in hand (although to be fair they – in this case the US courts - did laugh BT’s attempt to say it owned the patent for hyperlinking out of court). Just last year, the U.S. Bankruptcy Court for the Southern District of Texas, ruled that that sending an email with a hyperlink to a defamatory blog post can be considered a publication, even though the email contained no comments on the links that were sent [Outlaw.com report].

In the Canadian case, one judge, Justice Deschamps cautioned that excluding hyperlinks from the scope of the publication rule was an inadequate solution to the novel issues raised by the Internet, and suggested instead that Court hold that in Canadian law, “a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation.” He argued, a simple reference, absent evidence that someone actually viewed and understood the defamatory information to which it directs third parties, is not publication of that content. In this case he found that whilst Mr Newton’s hyperlink to the material was deliberate, there was no evidence that someone actually viewed and understood it to be links to defamatory information.

I’m not aware (although if you’re reading this, and you are leave a comment) of the English courts really tackling this question of hyperlink ‘publishing’ as such [Obviously from a copyright point of view the recent decision in Newspaper Licensing Agency v Meltwater did cover the idea that a hyperlink was capable of infringing copyright, if it was a hyperlinked headline and/or an extract of the copyright work.] The closest thing I know of is in Metropolitan International Schools v Designtechnica. Here the High Court ruled that Google was not a ‘publisher ‘of defamatory words appearing in its search results, as these results were automatically created and there needed to a human “mental element” in responsibility for publication. The Court added Google was still not a ‘publisher’ even where it had been put on notice of the defamatory statement as long as it operated an effective notice and take-down procedure.
Here’s to a Canadian victory for common sense.

Allan James, the principal hearing officer, at the IPO has made his mind up, and decided that Heidi Manton is the only person who owns a piece of the action with regards the rights to the name Bucks Fizz. Manton and her husband Bobby Gubby – Bobby G (and original member of Bucks Fizz) were in a dispute with fellow original members Mike Nolan and Cheryl Baker over who had the rights to use the name when promoting their touring bands, and over whether Nolan and Baker could register ‘The Original Bucks Fizz’ as trademark. Mr James ruled Heidi Manton, owned the name Bucks Fizz, having registered it as a trademark in 2001. Key in his decision was a letter from Nolan dating back to June 1981, which ceded the rights to them, and that Nicola Martin on behalf of Big Note Music Ltd, who owned the original trademark and had allowed it to lapse consented to the mark being registered in Heidi Manton’s name.

Nolan claimed he was pressured into dropping his opposition to the re-registering and that he did it only to ensure David Van Day (ex of Dollar) who was currently part of the band would be prevented from getting his own hands on the mark. Nolan’s letter said he confirmed “that I have withdrawn my opposition to the trademark and will cease trading as Bucks Fizz that took immediate effect … I also confirm that I have no objections to you having the sole rights to the name Bucks Fizz being the last of the original line up which was formed in 1981.” Here, it would seem he at least believed that Bobby G would be registering the trademark not his wife.

According to Mr James, it was hard to see that Nolan and Baker have much of a case, finding that on the face of it, it is difficult to see why the use of the trade mark by its lawful owner can be said to mislead the public, essentially because of the residual goodwill from the performances and recordings of the original group. The ruling stated: “The submission that two original members are enough to avoid misleading the public (Nolan/Baker) but that one original member (G) is not enough appears to me to be an arbitrary distinction.”

Key in his thinking seemed to be the concept of partnership. He found the individual members of the current partnership - Original Bucks Fizz - can make no claim to be the owners of the goodwill in Bucks Fizz, because they had al left the band and new partnerships had form as and when they did so. This problem may not have arisen if , for example, the original members had “entered into a partnership agreement which expressly provides for the partnership to continue on the departure of one or more members and which expressly confirms the rights of the continuing and expressly limits the rights of departing partners to make use of the partnership name and goodwill.”

What makes the decision interesting, and one that would probably make no sense to a ‘fan’ is that for the last few years the ‘Original Bucks Fizz’ have been touring featuring 3 of the 4 members of the band when they were in their hit making hayday, first Mike Nolan and Cheryl Baker, and Shelly Preston, and then with Jay Ashton the third ‘original member’ replacing Preston (who had originally replaced her in the band). This ruling now prevents them from performing using the Buck Fizz name. From a fans point of view, I’m sure they would argue Mr James was living in the land of make believe to come to a decision favouring Manton and Bobby G, over 3 original members. However, IP law is on his side.

So, and aspiring bands out there, make sure you have a proper partnership agreement in place for the get-go.

But let’s remember them when they were all on better terms. The band’s first hit was the Eurovision winner, Making your mind up , andtheir final hit single (later a bigger and better known hit for Cher) was Heart of Stone

The US District Court for the Southern District of New York has handed down a ruling that will be of interest to any company that has launched - Amazon and Google - or is launching – Apple - ‘digital lockers’ online. The Court was ruling on motions for summary judgment in the case between EMI (and others) and Mp3tunes and its owner Michael Robertson. Mp3Tunes (launched in 2005) allows users to create a digital locker to back up their music collections online. It also allows users to use Sideload.com (an audio search engine), an additional service offered by MP3tune, which has links to audio files and shows you where those files are on the net. These files can then be streamed or added to a users locker.

Back in 2007 EMI and Mp3Tunes exchanged lawsuits over the site. EMI claimed that it Mp3Tunes “enables and encourages users to stockpile digital music files - overwhelmingly infringing music files - in their Mp3tunes locker” and profits from massive copyright infringement by its users. They added that the majority of songs available from Sideload links were illegal infringing copies and therefore so are the songs in users’ lockers. EMI sought preliminary and permanent injunction enjoining mp3tunes and Roberstson from continuing to operate the site, under charges of infringement of EMI’s reproduction rights; infringement of EMI’s public performance rights; Inducement of copyright infringement; contributory copyright infringement; vicarious copyright infringement; common-law copyright infringement of pre-1972 works; and unfair competition as to pre-1972 works.

Mp3tunes and Robertson asked to the court to grant it summary judgment on its defence under the Digital Millennium Copyright Act (DCMA) It also made clear that when informed of infringing material on the site, or linked to from the site, the content is removed, and Robertson gave the example that 350 such songs identified by EMI were immediately removed from the site.

On the issue of digital lockers the court the court said it was clear the EMI mischaracterises the mp3tunes storage system. The site doesn’t store a master copy of a song that users access on its server, it instead retains a compressed copy of a files uploaded or sideloaded into a user’s locker. Additionally the system utilizes an automatic and passive software system to play back content stored at the user’s direction, which is protected by the DCMA.

The court also held that mp3tunes was entitled to protection under the DCMA safe harbour defences, but that this did not hold in relation to a couple of matters.

First EMI scored a personal victory against Robertson himself who the court found was guilty of direct infringement of EMI’s copyrights for the songs he has personally sideloaded from unauthorized sites. Second, it also held the both Robertson and MP3tunes were guilty of contributory copyright infringement in relation to not going far enough when dealing with takedown notices. The court found that whilst Mp3tunes may claim safe harbour protection under the DMCA for songs by EMI artists stored on mp3tunes and linked to Sideload.com, this did not stretch to a failure to remove infringing content from users lockers identified by the sideload takedown notices. This was because mp3tunes kept track of the source and web address for each sideloaded song in a users locker, so takedown letters that identified links in sideload.com to infringing material would also allow mp3tunes to locate illegal sideloads of that track in users lockers. The Court said mp3tunes argument that it would be open to lawsuits if it deleted this content from lockers was clearly wrong given their own terms and conditions allowed it to block a user’s access to material in lockers.

Elsewhere the judgment contained other points of interest. The Court dismissed Mp3tunes’ argument that since EMI often made songs available for free download for promotional reasons, that this in some way authorised any download of that song from any site. According to the court the opposite seemed true and that far from proving EMI’s intent to abandon its rights ” the record reveals that EMI placed careful restrictions on the use of its promotional songs and required consumers to visit certain websites or provide valuable marketing information before downloading a songLikewise the court dismissed EMI’s argument that they should construe the terms ‘free’ ‘mp3′ or ‘file-sharing’ as tantamount to ‘red flag’ knowledge of infringement. The court stated these terms were ubiquitous among legitimate sites offering legitimate services as well as those offer illegal downloading/sharing.

Of course, this is just the end of this round, as both sides are likely to be heading back to the courts to appeal the aspects they lost. On balance however, I think Judge Pauley has got things right on this one. He has, rightly in my view, said the sites such as mp3tunes should have safe harbour protection, but stated that such protection does have its limits and if you stray outside of those limits you risk losing that protection. He also rightly finds that personal digital lockers merely offer users access to their music collection online, and do not violate EMI’s (or any other record label’s) right to public performance.

In the years since I started this blog I have been following the case over access to Ofcom’s sitefinder database with great interest. It all began in January 2005 when an Information Manager for Health Protection Scotland, which is a branch of the National Health Service, asked the Ofcom for the grid references for each base station, for epidemiological research purposes. Ofcom refused. The Information Manager appealed the decision to the Information Commissioner, who told Ofcom to release the data. Ofcom appealed to the Information Tribunal. On 4 September 2007, the Information Tribunal upheld the decision by the Information Commissioner that Ofcom must supply the full Sitefinder dataset to parties who request it, including the names of operators, locations and power levels of all mobile base stations.

The Mobile operators (MNOs) - in particular, T-Mobile - argued that disclosure would breach their database rights, and would leave the mobile operators’ base stations open to vandalism and possible terrorist attack, and that the only reason why anyone would want a complete dataset would be either to make some commercial gain, or for terrorist threats.

Ofcom appealed to the High Court. The High Court dismissed the appeal by Ofcom against that decision confirming that the Information Tribunal had not erred in law in deciding that the public interest in maintaining the intellectual property exception in section 12(5)(c) of the Environmental Information Regulations 2004 had not outweighed the public interest in disclosing the information. O2, 3, Orange, Vodafone, Airwave and Network Rail then resumed the voluntary supply of mobile base station data to Ofcom for the Sitefinder database at approximately three month intervals, whilst T-Mobile continually refused to do so.

Needless to say, Ofcom appealed again, and in February 2009 the Court of Appeal (CA) remitted the decision back to the Information Tribunal . The CA found the Information Tribunal had erred in not considering whether the aggregate public interest in maintaining the two applicable exceptions under the Environmental Information Regulations 2004 outweighed the public interest in disclosure, this was because references to ‘an exception’ in the regulations had to be read as being to ‘one or more exceptions’ and the wording of the directive on public access to environmental information (Directive 2003/4) supported that conclusion. However the CA agreed with the remainder of the IT’s reasoning, and believed it was ‘very likely’ to reach the same conclusion by applying the aggregate public interest test.

It was now the Information Commissioner’s turn to appeal and he appealed to the Supreme Court on the the single question of whether the adverse effects of both of the exceptions concerned are to be weighed together or separately against the public interest served by disclosure. The Supreme Court said it was inclined, by a majority of three to two, to favour the Court of Appeal’s approach, but in order to provide an answer in the case, it was necessary to know the Court of Justice’s interpretation of the provisions of Directive 2003/4 relied on, so it referred the question:

‘Under [Directive 2003/4], where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception (in casu, the interests of public security served by Article 4(2)(b) and those of intellectual property rights served by Article 4(2)(e)), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, does the Directive require a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure?’

This week the ECJ made it’s judgment on the issue and came to the conclusion that a public authority holding environmental information “may, when weighing the public interests served by disclosure against the interests served by refusal to disclose, in order to assess a request for that information to be made available to a natural or legal person, take into account cumulatively a number of the grounds for refusal set out in that provision.”

What next? Well, it looks likley that the Supreme Court will now follow the reasoning of the Court of Apeal and remit the case back the the Information Tribunal, who as the Court of Appeal spectulated are likely to reach the same conclusion to disclose the data. We shall see.

Not very often that the European Court of Justice talks about Libraries, but it did this week. The Court had been asked to rule on the interpretation of the concept of ‘remuneration’ paid to copyright holders in respect of public lending, as set out in Article 5(1) of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (now Article 6(1) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property)

The reference has been made in an action for annulment brought by the Vereniging van Educatieve en Wetenschappelijke Auteurs (the Belgian Association of Educational and Scientific Authors) (VEWA) against the Belgian State concerning the Royal Decree of 25 April 2004 on remuneration rights for the public lending of authors, interpreting or performing artists, phonogram producers and producers of the first fixation of films (‘the Royal Decree’).

The basic question was if the royal decree’s flat rate remuneration of 1 Euro per adult and 50 cents per child (registered with the library) per year – as long as that person have borrowed at least one item from the library per year – amounted to ‘equitable remuneration’ as stipulated in the Directive.

The criteria for determining what remuneration is payable to authors has been pretty much left for each member state to decide, to allow consideration of each states cultural objectives. However, the court stated that the amount of remuneration cannot be completely removed from the actions that cause the ‘harm’ (public lending of books).

According to the Court the size of the library – including the number of books available for loan and the number of registered users should be taken into account, essentially stating that larger libraries should be paying more, as they have more books and more users so more copyrighted works will be made available to the public. As such it found, the Belgian Degree was incompatible with EU law by calculating the remuneration payable to authors in the event of public lending according to the number of borrowers registered with public establishments, on the basis of a flat-rate amount fixed per borrower and per year.

Here in the UK, authors (if they register their books) only get paid if their own books are lent from a sample of public libraries in the UK. The payments are decide on a the ‘pence per loan figure’ – currently 6.29p - which changes each year. The UK also caps pay-outs, meaning that the maximum anyone may receive in a year is £6,600; and earnings that total less than £1 are not paid (Money saved as a result of these thresholds is returned to the fund for redistribution).

Those who read this blog will know I have an interest in the issue of pubs broadcasting Premier League football, and in particular the issue of whether live transmission of Premier League football games in pubs by means of foreign decoder cards (legally purchased) is actually legal in the UK or not.

Last month (see previous blog post on subject) Advocate General (AG) Kokott of the European Court of Justice has issued an opinion in two joined cases C-403/08 and C-429/08 Football Association Premier League Ltd and Others v QC Leisure and Others and Karen Murphy v Media Protection Services Ltd looking at this issue and sided with publicans (The AG opinion does not bind the European Court of Justice, which will deliver its judgment at a later date).

Now the issue has arisen again, but in an interesting legal manner. The High Court has quashed a Crown Court decision to reject an appeal by another publican against a conviction from 2009 (the case had originally been stayed whilst the Murphy v MPS case mentioned above progresses through the English Courts) for a breach of section 297(1) of the Copyright, Designs and Patents Act by showing a Premier League football match at the Pub, without a contract with BskyB – the exclusive rights holder in the UK. The Publican had – back in 2005 purchased a satellite system which gave access to the broadcasts of ART, the Football Association’s Premier League licensee for the Middle East and Africa.

Section 297(1) reads: “A person who dishonestly receives a programme, including a broadcasting service, provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme, commits an offence and is liable on the summary conviction to a fine not exceeding level 5 on the standard scale.”

The Crown Court considered that there were two issues, one of dishonesty and one of EU law. Interestingly the Court chose to essentially ignore the EU law aspect stating, and given the pending references to the EU in the cases mentioned above: “We do not feel, however … that it would be appropriate for this tribunal to consider or to decide the difficult and conflicting issues of community law which arise in the background to this appeal … We think that the broader and complex issues of the application of EU law are for a different tribunal on a different day…”

The appeal was therefore dealt with only on the point of whether or not there was dishonesty on the publican’s part, totally ignoring the EU aspect with the Court saying it was bound by the first ruling in the Murphy v MPS case, and so it should base its decision on domestic law.

The High Court disagreed, finding the Crown Court’s ruling was a plain misunderstanding of the first ruling in the Murphy v MPS case, which whilst it did deal with domestic law did not give a green light to decide issues under section 297 without considering EU law aspects. According to the Court “It is fundamental that a court, along with other courts who have considered similar points, should include a consideration of the EU law dimension.”

The Court however refused to hear arguments about whether this is a case in which EU law applies at all, considering the Satellite licence was with a Middle East operator. But the court decided that actually whether the case in one that involves EU law is itself a decision which requires consideration of EU law.

Gregory Turner v Stafford Crown Court [2011]

The European General Court has ruled that the European Commission was within its rights to allow the UK and Belgium to list major footballing competitions such as the World Cup and the European championship finals as events that must be made available for free-to-air broadcast. The Court stated that the allows Member States to prohibit the exclusive broadcasting of events they judge to be of major importance for society where such broadcasting would deprive a substantial proportion of the public of the possibility of following those events on free television

The Court said that the fact that there is a direct reference to the World Cup and the EURO in recital 18 in the preamble to the Television without Frontiers Directive 97/36

18) Whereas it is essential that Member States should be able to take measures to protect the right to information and to ensure wide access by the public to television coverage of national or non-national events of major importance for society, such as the Olympic games, the football World Cup and European football championship; whereas to this end Member States retain the right to take measures compatible with Community law aimed at regulating the exercise by broadcasters under their jurisdiction of exclusive broadcasting rights to such events;

means that, “when a Member State includes matches from those competitions in the list it has decided to draw up, it does not need to include in its notification to the Commission specific grounds concerning their nature as an event of major importance for society.”

However, it said it would agree it could be questioned if ALL matches in these tournaments could be regarded as of ” major importance for society” in particular member states. Yes, the court says, the games featuring the member state and the final games of the tournament could certainly be regarded as such, but perhaps not other group games for example.

The problem the Court said was that due to the very nature of such tournaments it was hard - at the time when the national lists are drawn up or broadcasting rights acquired – to know which matches may actually be decisive for the subsequent stages of those competitions or which ones may affect the fate of a given national team. For that reason, it may be acceptable for a Member State to consider that all of the matches of those competitions are of major importance for society.

The Court also dismissed FIFA and UEFA’s arguments that this destroyed commercial value of their broadcasting rights “because it does not oblige FIFA and UEFA to sell them on whatever conditions they can obtain.”

From a UK (and Belgian) viewers point of view this is a great ruling from the court.

The Current UK list, drawn up in 1998, is split between full live coverage protected (Group a) and secondary (highlights) protected (Group B) events>

Group A (Full Live Coverage Protected) • The Olympic Games
• The FIFA World Cup Finals Tournament
• The European Football Championship Finals Tournament
• The FA Cup Final
• The Scottish FA Cup Final (in Scotland)
• The Grand National
• The Wimbledon Tennis Finals
• The Rugby World Cup Final
• The Derby
• The Rugby League Challenge Cup Final
Group B (Secondary Coverage Protected)
• Cricket Test Matches played in England
• Non-Finals play in the Wimbledon Tournament
• All Other Matches in the Rugby World Cup Finals Tournament
• Six Nations Rugby Tournament Matches Involving Home Countries
• The Commonwealth Games
• The World Athletics Championship
• The Cricket World Cup - the Final, Semi-finals and Matches Involving Home Nations’ Teams
• The Ryder Cup
• The Open Golf Championship

The last government looks at amending the list and the current government initially seemed very keen to step in and throw some more bones to the commercial rights holders. However, back in July 2010 Minister for Sport and the Olympics Hugh Robertson announced a decision to review the Free to Air list of sports events has been deferred until the end of the Digital Switchover process in 2012.