Copyright Protection

Creating a Front Line to Fight Battle for Intellectual Property

Monday, 15 December 2014 15:37

British Member of Parliament Mike Weatherley looks back on his stint as an IP adviser to Prime Minister David Cameron and outlines his three-pronged strategy in winning the war against infringements Mike Weatherley says the turning point in his campaign against intellectual property rights infringement was the moment the British government decided to take him seriously about two years ago.

"In the past two years the British government has made very welcoming progress," says Weatherley. "Overall I would give the government a 'B'. Not quite 'A' yet but getting there."

The Conservative Party backbench parliamentarian – he was elected to his seat of Hove and Portslade on the southern coast only in 2010 – had previously been a businessman in the manufacturing and entertainment industries, two sectors that rely on a robust IP rights regime.

David Cameron, who led the Conservative- dominated government elected in 2010, appointed Weatherley as IP adviser to the Prime Minister, a new position. "This was an important historic step, enabling progress in many specific areas."

In true parliamentary tradition, Weatherley decided what was necessary was a report to give Cameron and his colleagues. The result was Search Engines, a private discussion paper released in May 2014. He stressed that search engines are not the cause of online piracy, but that data showed that they play an important role in inadvertently guiding consumers towards illegal content and are well placed to be part of the solution.

"My first report recommended that the Internet search engines sit down with government and industry to thrash out problems and solutions, and the first such meeting took place, showing that the government was taking the report seriously."

Search Engines was the first of a trilogy of reports. Emboldened by support from Cameron and Sajid Javid, Secretary of State for Culture, Media and Sport, Weatherley published Follow the Money, which addresses the impact of illegal websites profiting from advertising, and Copyright Education and Awareness, which examines IP education and aims to help reinforce the importance of respecting IP and paying a fair price for content.

Weatherley says his business background explains his interest in IP. "As the owner of a company exporting customised products around the world, I built up a knowledge of patents and trade marks. And then I worked in the music and film industries around licensing and rights holders," Weatherley says. "It became a logical step to use this expertise in Parliament."

One of the shortcomings in the prosecution of IP infringement cases was the absence of a coordinated response by the authorities. Weatherley campaigned for the creation of the national Police Intellectual Property Crime Unit (PIPCU), which was set up in September 2012.

"Setting up PIPCU signalled a change in tactics that infringers would be tracked down and prosecuted by a specialist team," Weatherley says. "It has brought in other and more specialists as well. It basically just got more serious."

The support of senior politicians also galvanised the bureaucracy. "The Intellectual Property Office has restructured to become much more focused on delivering a robust programme," Weatherley says of Britain's government body responsible for IP policy, educating businesses and consumers about IP rights and responsibilities and supporting IP enforcement as well as granting patents, trade marks and design rights throughout the U.K.

Weatherley says his reports were received by the IPO with some trepidation, as he urged that the IPO coordinate cross-sector IP working groups and awareness programmes reach out to the wider public and set out a strategic outreach plan by the first quarter of 2015, with a cross-industry working group convening quarterly to review its progress. "I think they were a little nervous to start with but now see that [the reports] are there to be constructive and support them."

Weatherley recommends that every country develop a coordinated structure that defends IP rights and prosecutes infringements. "With a variety of agencies all with their own part to play – the IPO, PIPCU, National Crime Agency, the various trading standards organisations and legislators – the task seems almost too daunting," he observes. The solution, he adds, is a "dedicated IP tsar" or coordinator. "Without one, coordination is almost impossible. I would recommend every nation appoint one as soon as possible."

Once coordinated, IP protection can be a basically three-pronged approach, Weatherley recommends. "There is no one solution to piracy – it involves a combination of education, carrot and stick," he says, "and then on top of that there are further disruption measures such as search engine support and follow-the-money initiatives."

However, Weatherley acknowledges that education and awareness campaigns have had very limited impact. "The big challenge of the future is in how we deliver a meaningful message on respect for IP," he says. "It's a huge task with little immediate tangible gain."

The carrots, he says, involve creative industries changing the way they make products available to ensure that consumers can easily access content legally. "Proponents of piracy say downloading content legally is too complicated," says Weatherley. "Industry, therefore, needs to find innovative ways to ensure that content is easily available and in so doing make piracy a less attractive option." New, workable solutions that Weatherley welcomes include the film industry's multi-format licence option for home use. "Industry must step up and provide alternatives that are attractive to consumers – they can't just keep insisting on getting the stick out," he says. "We need to start embracing solutions like Spotify and Bloom.fm, both of which have a one-off licensing model, which is proving popular," he says.

When the sticks are deployed, Weatherley says, they should be used proportionately. They can be directed partially at end-user infringers, but much of the heavy artillery should be aimed at upstream providers of infringing content. "Before any punitive action can be taken, we do need society to be on the side that piracy is wrong as a general concept," he says. "Only then can we think about punishment for offenders."

Weatherley stepped down as Cameron's IP adviser in October 2014 and is not seeking reelection to parliament next year. However, he hopes he will continue the IP rights fight outside the House of Commons. "I remain available to advise and support in any capacity industry or government would like me to," he says. "The difference will be that I will need to be asked formally to be involved in projects, rather than initiate debate as I do now."

   

Discussion Papers by Mike Weatherley, MP

Monday, 03 November 2014 00:00

During the CASBAA Convention 2014, Mike Weatherley MP, Conservative MP for Hove and Portslade, UK Parliament and Former Intellectual Property Advisor to the Prime Minister was featured in an In Conversation session discussing copyright protection. As the Intellectual Property Adviser to the UK Prime Minister, Weatherley is charged with leading the British government's efforts at fighting piracy and raising awareness of IPR. Formerly the Vice President (Europe) for the Motion Picture Licensing Company, Weatherley is bringing his media industry experience to bear on the piracy problem, raising awareness in innovative ways. To find out more about his viewpoints and recommendations, download a series of discussion papers drafted by Weatherly.

Read an article on Weatherley's appearance "Creating a Front Line to Fight Battle for Intellectual Property"

Download ‘Follow The Money’: Financial Options To Assist In The Battle Against Online IP Piracy
Download Search engines and Piracy
Download Copyright Education and Awareness

   

Stark Messages for Hong Kong: You Are Losing Jobs to Piracy; Copyright Law Badly Needs Fixing

Friday, 24 October 2014 10:45

The local and international television industries united this week in delivering a stark message to Hong Kong's Legislature: the rise of online piracy is already damaging jobs and investment in one of Asia's leading media hubs, and urgent legal and enforcement action is needed to restore some level of balance in a Copyright environment that has badly deteriorated.

The messages came in a series of TV industry submissions to a legislative panel considering improvements to Hong Kong's Copyright Ordinance. The law has never been updated to take account of legal and illegal digital distribution of copyrighted materials, including individual programs, linear channel streams, and entire packages of pay-TV programming. CASBAA, in its submission, noted "The 10 years of delay in formulating...these amendments mean that online piracy problems have grown and changed far beyond the expectations of those who began this process, including both government and industry."

Download CASBAA submission

A series of submissions from international media groups using Hong Kong as their Asian headquarters, as well as Hong Kong's major indigenous TV producer TVB and leading telecommunications network provider PCCW, offered similar messages. Here is a selection (in alphabetical order) of key quotes:

CNN"...legitimate content distributors face unfair competition from platforms and online services that provide and facilitate access to pirated content with little or no investment in content or infrastructure. Declining revenue puts increasing pressure on CNN International's ability to cover and report big news stories in the way consumers demand."

Download CNN Submission

Discovery Networks Asia-Pacific"The current Copyright Ordinance, last amended in July 2001, is outdated and does not provide an effective legal framework to tackle infringements in the changing new media landscape. At present, the balance is heavily tilted away from a comprehensive protection of copyrights."

Download Discovery submission

Fox International Channels" We strongly urge the Legislative Council to initiate further reform of the Copyright Ordinance to protect legitimate rights holders and industry participants who invest significant amounts of money in the local film and television industry to produce and acquire content, providing employment to many people in Hong Kong, only to have such content stolen by unscrupulous illegitimate operators who do not contribute anything in return."

Download FIC submission

HBO"...we are witnessing a decreased willingness of consumers to pay a fair price for programming....subscription revenue in the pay-TV industry is declining, and jobs are already being affected."

Download HBO submission

PCCW/nowTV"We urge the Government not to be sidetracked....With every day of delay, more jobs are at risk, investment goes elsewhere and Hong Kong's standing as a media hub is diminished."

Download PCCW Media Submission

Television Broadcasts Ltd (TVB)"TVB has been suffering huge losses due to the online piracy problem. We are cutting jobs to keep our business, especially our overseas pay-TV operations, going. There is really no time to lose in implementing solutions."

Download TVB Submission

Time Warner"While online piracy is undoubtedly a global challenge, as a result of Hong Kong's inadequate copyright laws which have not kept up with the growth of both the digital content and digital transmission industries, the problem of online piracy is exacerbated in Hong Kong."

Download Time Warner Submission

Turner Broadcasting"...it is notable that Hong Kong is increasingly falling behind nations that were formerly its peers in creating a positive environment for intellectual property. Other governments (such as in the UK, Korea, and Singapore) have sought, and implemented, creative approaches to deal with streaming piracy."

Download Turner Submission

Twenty First Century Fox"...the ten-year delay in formulating amendments to Hong Kong's copyright laws has been troubling both for us and the local Hong Kong creative community that we work with and support. It has allowed online piracy to metastasize to the point that it directly threatens creative content companies..."

Download 21CF Submission

And the television industry is not alone – other creative industries are also pleading for relief. The Hong Kong Copyright Alliance (an umbrella group of companies and associations in the film, music, television, publishing, software, and electronic games industries) told the Legco "Failure to introduce an updated copyright legislation would stifle Hong Kong's creative industries, ultimately hurting consumers."

Download the submission by the Hong Kong Copyright Alliance

   

New Chinese Copyright Amendments Published

Monday, 11 August 2014 10:37

In early July, China's State Council Legislative Affairs Office published a new draft Copyright Law for public comment. Major provisions of the draft have been summarized by member company Hogan Lovells in a helpful English-language summary, which can be accessed through this web page.

   

WIPO Expert: HK Is Right To Reject A Copyright Exception for UGC

Thursday, 17 July 2014 10:22

A leading international expert in copyright law published a commentary on Hong Kong's proposed approach to user-generated content (UGC), in which he concludes that "to guarantee safe harmony with international treaties", the government is wise not to pursue a sweeping exception for UGC. Dr. Mihaly Ficsor is former Assistant Director (Copyright) of the World Intellectual Property Organization (WIPO), and his commentary can be found on the website of the Hong Kong Layer magazine, here.

"Netizen" advocacy groups in Hong Kong used the recent public consultation on exceptions for parody and political commentary to demand exceptions for all user-generated content, and they continue to press their case in the Legislative Council. The HK government's legislative proposal rejected a sweeping exception and proposed more targeted exceptions to make sure there is no obstacle to parody and political commentary. Dr. Ficsor says this is the right approach: genuine parody is "a typical form of UGC creation" which deserves support through "fine-tuned exceptions", but "the concept of UGC is too broad and vague" and a broad exception will likely conflict with WIPO's own treaties and their "three-step test" for copyright exceptions.

While netizens groups propose simple-sounding safeguards, they are frequently unworkable. Dr. Ficsor observes that, for example, just stating that UGC should be excepted as long as it has no commercial purpose doesn't cut the ice, as "even if the (user-generated) adaptation does not generate profit for its creator, the websites on which UGC adaptations are included are themselves usually profit-oriented (based, in general, on advertisement money)."

Noting that the European Union (among other governments) recently also rejected proposals for a broad UGC exception, Dr. Ficsor says "there does not seem to be any real need to legislate on UGC." The situation is hardly different in Hong Kong from the EU, he says, where a just-published White Paper notes: "There is a lack of evidence that the current legal framework for copyright puts a brake on or inhibits UGC (absence of 'chilling effect')". On the other side, a broad exception for secondary adaptations risks damaging primary creation: "Possible exceptions aimed at facilitating secondary productions must not endanger the sustainable creation and production of the primary works," says Dr. Ficsor.

For those following the political dialectic in the Hong Kong legislature, the commentary is worth reading in its entirety.

   

Annual Submission on Intellectual Property in Broadcasting

Monday, 10 February 2014 10:30

As in past years, CASBAA gave its views to the US Trade Representative as that organization began its annual review of intellectual property policies and practices around the world. Most of the situations in CASBAA's Asian markets have not radically changed, though the rise of online piracy is a growing concern as the region's broadband networks are built out. The submission expresses grave concern about development and export of Android-based pirate "black boxes" that make available whole bouquets of pay-TV programming, usually streamed from China to other markets in the region. On the good news side, it lauds the Indian government for its cable digitization policy, and notes that the Vietnamese government's liberalization of its pay-TV regulations in May 2013 has resulted in a smooth market situation there.

Read here

   

Human Resources Ministry Stakeholders Meeting Notes

Thursday, 11 April 2013 16:05

The Human Resources Ministry (which manages India’s WIPO participation) held a “Stakeholders’ Meeting” on March 21, 2013 to consult on India’s position for the upcoming meetings. CASBAA’s India representative and a few members of India’s broadcasting industry attended. They strongly advocated for India to abandon its insistence on excluding the internet from the treaty.

Here are a few of the points they made:

Given the rapid development and increasing maturity of India’s broadcasting industry, it is becoming a serious competitor in global entertainment markets. But to make this happen, its intellectual property must be protected.

The government needs to take cognizance of this, and work actively to advance India’s real interests, by pressing forward on a treaty to provide global protection to broadcasting organizations.

It is ridiculous to contemplate a treaty that does not include internet broadcasting. The internet is an essential tool for broadcasters in today’s world, and it is also the source of the lion’s share of copyright infringement. Developing-country broadcasters are trying to use the internet to reach out to consumers around the world. And of course this includes Indian broadcasters. Here in Asia, developing-country broadcasters distributing their channels by means of the internet come from China, India, Indonesia, Malaysia, and the Philippines, to name a few.

Download note on India's HRD Ministry Meeting on Protection of Broadcasting Organizations' Rights At WIPO, March 21, 2013, New Delhi here

   

Broadcasters’ Retransmission Rights Affirmed by EU Court

Thursday, 21 March 2013 12:07

In a landmark verdict delivered in early March, the European Court of Justice issued a very strong decision in support of the rights of broadcasters to control simultaneous relay (on the internet or otherwise) of their signals.   CASBAA member ITV was one of the plaintiffs, and law firm Olswang acted for them.  Under the ECJ decision, many third-party internet relay services and “catchup” TV services will be considered to violate broadcasters’ copyrights -- even where (i) the subscribers to the service could otherwise lawfully have received the broadcast on their television receivers; and (ii) the service may or may not be profit-making or competing with the original broadcaster.   See an article and read the decision here.

   

Content and ISP Industries Unite: HK Copyright Legislation Must Go Ahead

Friday, 15 March 2013 00:00

A coalition of Hong Kong copyright associations (including CASBAA) and internet service providers is urging the SAR government to move expeditiously to enact copyright amendments that were six years in the making, but which stalled in the Legislative Council before it adjourned for elections last summer. At that time the legislation was criticized because of allegations it would restrain political parodies based on photos and other copyrighted works. The coalition noted that the legislation represents “a balance of considerations for all stakeholders, including many safeguards for real ‘parody’,” and urged the government to swiftly amend the 2011 bill, clarify the proposed criminal liability relating to “parody,” and submit the Bill to the Legislative Council “at the earliest possible opportunity.”

Download the full statement of the coalition here.

For its part, CASBAA joined the coalition in supporting rapid passage of the existing legislation, believing that broad-based unity of stakeholders in legitimate content is important, and noting that Hong Kong’s policy development process has dragged on for far too long. But the bill itself is no panacea. CASBAA’s Chief Policy Officer John Medeiros described it as “thin gruel” that will “do little or nothing to stem the rampant growth in online piracy of TV content in Hong Kong.” CASBAA urges the government to proceed rapidly to obtain enactment of this bill, and then move on rapidly to taking serious action to deal with the real problems of piracy in the digital age.

CASBAA joins other Hong Kong industry associations in an exchange of views with Hong Kong legislators from the IT sector.   On the left, IT Sector Representative Charles Mok, and Chief Policy Officer John Medeiros.  At right, directly-elected legislator Sin Chung-Kai.

CASBAA joins other Hong Kong industry associations in an exchange of views with Hong Kong legislators from the IT sector.   On the left, IT Sector Representative Charles Mok, and Chief Policy Officer John Medeiros.  At right, directly-elected legislator Sin Chung-Kai.

   

Australia Opens Consultation on Copyright in the Digital Economy

Tuesday, 11 September 2012 10:02

Australia’s Law Reform Commission is consulting the public about digital copyright issues.   The consultation paper includes a broad range of topics, including cloud computing, exceptions for libraries and others, statutory licenses and retransmission consent for FTA broadcasting.

Download the paper here

   

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