From Laurence Kaye on Digital Media Law
Dear Reader,
I've always liked Bill Gates' observation that "We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten".
So I thought I'd apply that to my own observations back in the early credit crunch days of April 2008 about the changes we're seeing in digital media law. You can find a transcript of my talk on 'What's Hot in Digital Media Law' here.
I identified four focal points of change: (1) What and how do you regulate?; (2) Who carries the can?; (3) Where should you draw the boundary between the public and private domains?; and (4) Making the transition from analogue to digital.
I think Bill got it right on all of them. It will probably take us to around 2015 to get a true perspective (and, let's face it, hindsight is 20:20). But it seems pretty clear that all the incremental changes taking place will add up to a profound 'digital shift'.
So where are we on those four focal points of change? In this post, I'll just mention a couple of developments on (1), the regulatory front.
The picture on the regulation of online 'television-like' services has got a bit clearer(?) under the Audiovisual Media Service Directive 2010/13/EU, now implemented in the UK, which imposes more 'TV like' regulation on 'TV like services such as YouTube channel pages e.g. on rules on product placement and sponsorship. So just remember to check the rules if you're developing a service that has on-demand content. The Directive applies 'lighter touch' regulation to non-linear services, but the boundary between linear and non-linear – a.k.a. the increasingly convergent worlds of broadcast v. on-demand – isn't always obvious.
Also on the regulatory front, I picked competition law as one to watch as a key to ensuring a level playing field in digital media. Joaquin Almunia, VP of European Commission responsible for competition policy, gave a lecture on 'Competition in Digital Media and the Internet' in London this July, and it's definitely worth a read to get the Regulator's perspective.
'Fair competition' and 'Fair Search' are themes that underpin the German Newspaper and News Magazine publishers’ complaint against Google filed before the German antitrust authority. Under the banner 'Fair Share', the publishers are requesting a fair allocation of Google's online advertising revenues. They cite a number of reasons to justify the claim, but at the heart of the claim is the fact that Google is monetising publishers' content without compensation e.g. by displaying 'snippets' in its advertising funded search service. They also argue that, in reality, publishers can't opt-out of Google's search engine because Google's dominance would result in a de facto ban of publisher-generated content from the Internet.
OK, I hear you say, it's a lot more complicated than that: publishers are now starting to provide and charge for their own paywall-protected content. It is complex, but the point I am making is that anti-trust/competition law is one of the key battle grounds between incumbent and new players in the markets for paid-for services.
In future posts, I am going to look at some recent developments in my three other focal points of change, starting with 'Who carries the can' – intermediaries and the position of Google on keywords as well as the Digital Britain Act. I'll follow that up with a quick look at publisher contracts and 'e-book' rights, which received some attention in the light of the literary agent Andrew Wylie's recent exclusive deal with Amazon to sell electronic versions of 20 classics.
Laurence Kaye
Laurence Kaye Solicitors
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, 2010' 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.
I think Bill got it right on all of them. It will probably take us to around 2015 to get a true perspective (and, let's face it, hindsight is 20:20). But it seems pretty clear that all the incremental changes taking place will add up to a profound 'digital shift'.
So where are we on those four focal points of change? In this post, I'll just mention a couple of developments on (1), the regulatory front.
The picture on the regulation of online 'television-like' services has got a bit clearer(?) under the Audiovisual Media Service Directive 2010/13/EU, now implemented in the UK, which imposes more 'TV like' regulation on 'TV like services such as YouTube channel pages e.g. on rules on product placement and sponsorship. So just remember to check the rules if you're developing a service that has on-demand content. The Directive applies 'lighter touch' regulation to non-linear services, but the boundary between linear and non-linear – a.k.a. the increasingly convergent worlds of broadcast v. on-demand – isn't always obvious.
Also on the regulatory front, I picked competition law as one to watch as a key to ensuring a level playing field in digital media. Joaquin Almunia, VP of European Commission responsible for competition policy, gave a lecture on 'Competition in Digital Media and the Internet' in London this July, and it's definitely worth a read to get the Regulator's perspective.
'Fair competition' and 'Fair Search' are themes that underpin the German Newspaper and News Magazine publishers’ complaint against Google filed before the German antitrust authority. Under the banner 'Fair Share', the publishers are requesting a fair allocation of Google's online advertising revenues. They cite a number of reasons to justify the claim, but at the heart of the claim is the fact that Google is monetising publishers' content without compensation e.g. by displaying 'snippets' in its advertising funded search service. They also argue that, in reality, publishers can't opt-out of Google's search engine because Google's dominance would result in a de facto ban of publisher-generated content from the Internet.
OK, I hear you say, it's a lot more complicated than that: publishers are now starting to provide and charge for their own paywall-protected content. It is complex, but the point I am making is that anti-trust/competition law is one of the key battle grounds between incumbent and new players in the markets for paid-for services.
In future posts, I am going to look at some recent developments in my three other focal points of change, starting with 'Who carries the can' – intermediaries and the position of Google on keywords as well as the Digital Britain Act. I'll follow that up with a quick look at publisher contracts and 'e-book' rights, which received some attention in the light of the literary agent Andrew Wylie's recent exclusive deal with Amazon to sell electronic versions of 20 classics.
Laurence Kaye
Laurence Kaye Solicitors
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, 2010' 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.
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