Saturday, 26 April 2014

Liverpool International Festival for Business

I should first like to wish all my readers a Happy World Intellectual Property Day.

In June and July Liverpool will host the International Festival for Business. According to its website
"The International Festival for Business (IFB) 2014 is the largest global concentration of business events during 2014......... IFB 2014 is very ambitious. It is a key part of the government's target of rebalancing the economy and achieving its export and investment objectives."
The blurb continues:
"A festival like this has never been held before. IFB 2014 isn’t a talking shop - it’s a chance for you to develop your business. We are placing an explicit focus on creating new international and domestic business-to-business relationships and commercial openings for small, medium and large UK companies."
This is not just a business event. There is also to be a festival of culture embracing music, theatre, art and sport.

We think it is a great idea and we will support the project in any and every way we can. As intellectual property is the glue that holds together investment in branding, design, technology and the creative works we shall hold a workshop on the Intellectual Property Bill similar to the one we are holding in London on 19 May in conjunction with our good friends in the Intellectual Property Department of QualitySolicitors Jackson & Canter and other IP professionals in and around Liverpool.  We also hope to run clinics, seminars on tax, media and entertainment and sports law, help for inventors, designers and performing artists, a roving publication, social media events - you name it we shall do it.

In the meantime, if you have any questions call George on 0161 850 0080 or fill in our contact form.

Friday, 11 April 2014

Costs: The Football Association Premier League Ltd v Berry and Another

Jane Lambert

In The Football Association Premier League Ltd v Berry and Another [2014] EWHC 726 (Ch) (13 March 2014) the claimant sought summary judgment in its claim for copyright infringement against the proprietor of  a watering hole almost opposite the Queen Elizabeth II Law Courts in Liverpool that is well known and well loved by counsel on the Northern Circuit and their instructing solicitors (see "City centre bar fined showing Premier League football could be forced to close" 14 March 2014 Liverpool Echo). The application was largely conceded and counsel for the parties agreed a minute of order which provided for injunctions, an inquiry or account of profits and costs on the standard basis. The only issue that was not agreed was the amount of an interim order for costs and that issue fell to be decided by Richard Spearman QC sitting as a judge of the High Court.

The transcript of the hearing before Mr Spearman does not give very many details of the action but the press report to which I referred above provides the following background information:
"Premier League bosses said their investigators had visited First National earlier in the season and seen TVs in the bar showing the Al Jazeera channel, which was recently rebranded beIN Sports.
They argued the channel had only bought rights to show games to viewers in the Middle East and North Africa, and so by showing it in the UK the law was being broken."
In his judgment the deputy judge noted that the claim was not "not for the entirety of the broadcasts, which are broadcasts of football matches, but is limited to claims for infringement of the copyrights in logos and graphics which appear as part of the broadcasts." However, he also said at paragraph [14]:
"it seems to me absolutely obvious that these rights are valuable and important rights. From the brief sight I have had of the relevant screenshots it is quite obvious that they convey useful and interesting information to viewers."
The defendant had argued that the claimant could expect only a few hundred pounds by way of damages and that this action was an example of a sledgehammer being used to crack a nut. Her arguments were summarized by Mr Spearman as follows:
(a)   This was a claim against a single publican in respect of a very small number of broadcasts, 7 in all.
(b)   Only some of those broadcasts were the subject of the summary judgment application now conceded by the defendant.  
(c)   Licences would have been available from BSkyB for £1,230.18 plus VAT per month, which would have given him access to the entirety of BSkyB's premium sports content of which the logos and the graphic works the subject of the litigation were only a small part.
Mr Spearman was "very far from persuaded that the value of the claim will be in the measure of a few hundred pounds." A monthly licence fee from BSkyB would amount to £28,000 over the period during which the matches were shown.  Moreover, additional statutory damages had also been claimed.

At the hearing the defendant argued that the claim could and should have been brought in the Intellectual Property Enterprise Court ("IPEC") where recoverable costs are capped. His problem, however, was that he had raised that argument for the first time only a few days before the hearing. Moreover, his defence had been based on European and national competition law which was outside IPEC's jurisdiction, he had put the claimant to proof on subsistence, title and use and both sides had instructed leading and junior counsel in the litigation.  

Much more significant in the deputy judge's view than the amount of the recoverable damages was that this litigation was "part of a battle on a much wider front between publicans and the like in general and copyright owners such as the claimant in this case and BSkyB as to whether the claims of the copyright owners are untenable in light of European and competition law considerations."  Accordingly, it seemed to Mr Spearman that "the importance of the rights to the parties on both sides are very high and very clear, reflected not least by the fact that both sides in this litigation have used very well known and experienced leading and junior counsel."   That he considered "to be very relevant on the proportionality of this litigation and the costs incurred."

The claimant's costs of the applications were over £148.000 and it asked for an interim payment of £65,000. In United Airlines Inc. v United Airways Limited [2011] EWHC 2411 Mr Justice Vos had  said that he had to determine not the irreducible minimum that was likely to be awarded, but a reasonable estimate of what is likely to be awarded.  An interim payment of £65,000 had been ordered in the somewhat similar case of the Football Association Premier League v Luxton (see "Premier League live football: Pub landlord broke copyright law" 30 Jan 2014 BBC).  Although Mr Spearman did not place much reliance on what was said about other cases, the fact that Mr Justice Rose ordered an interim payment of £65,000 within 28 days gave him some comfort that an order of that sort was not wildly out of the appropriate league. Accordingly, Mr Spearman made an order for payment of the same interim amount in this case.

The awarding of costs generally and deciding the amount of interim payments are matters within a judge's discretion. Though I am a little puzzled at his finding that the damages likely to be awarded upon an inquiry will exceed £25,000 since the claimant would receive only a proportion - and I would have thought only a small proportion - of the licence fee paid to BSkyB for a whole month's sport I cannot see any obvious fault in the judge's exercise of his discretoion. Despite Woolf, Jackson and the launch of IPEC civil litigation in this country is still too damned expensive. It is imposing an intolerable burden on British business and something needs to be done about it.  Until something is done the lesson from this litigation seems to be that if you want to fight the football clubs make sure you get some proper funding to do so either from others in your trade or from an insurer (if insurance is available for a case like this) or some other third party.

It is important to note that intellectual property law exists not just for the benefit of intellectual asset owners - in this case the Premier League - but is intended to strike a balance between the interests of intellectual asset producers, competitors and consumers.  However that picture is complex because the public also has an interest in maintaining the viability of the clubs, investment in the sport and the convenience of watching football on television, According to the Echo Liverpool received £54,8 million from broadcasting and Everton £51.8 million last season. At least some of that money seems to find its way to schoolchildren.  For instance the Echo reported that Rainhill School received a grant of £300,000 to improve its football facilities.

After the World Cup Samuel Okoronkwo, Robert Griffiths QC and I together with one of our colleagues from Atlas Tax Chambers will hold a half day seminar in London on regulation of agents, competition, broadcasting, licensing and other issues relating to football. If you are interested in pre-registering call George on 0161 850 0080 or fill in my contact form.  You can also tweet me, write on my wall or send me a message through G+, Linkedin or Xing. We look forward to seeing you.

Further Reading
Jeremy Phillips "Costly copyright litigation? Blame the litigants" 18 March 2014 1709 Blog

Saturday, 5 April 2014

Creating a Northern Counterweight to London is good for the Nation

Salford Quays        Source Wikipedia

On the 28 Oct 2013 The Royal Society for the encouragement of Arts, Manufactures and Commerce ("RSA") launched an independent commission known as the City Growth Commission is to investigate how England’s cities can become engines for growth (see the RSA press release Independent City Growth Commission launched by RSA  28 Oct 2013).

Chaired by the well-known economist Jim O'Neil the Commission will address the following questions:
  • "What are the key benefits – for the economy, investment, innovation, productivity and public finances – of shifting to a multi-polar growth model, in which our major cities are key players in the nations’ economy? 
  • What does the international evidence show about the role of cities in driving growth and catalysing innovation and what are the key success factors that we can learn from?
  • What is the relationship between public service reform and economic growth at city level? How can more effective demand management through public service reconfiguration and integration help to drive social and economic productivity and enable our cities to become financially sustainable?
  • How can decision making and responsibility be better aligned with the reality of local labour markets, so that employment support, childcare, skills policy, welfare strategy and economic development are integrated around the needs of local people and businesses?
  • How can growth in other English cities complement London’s economic success, and what should be the interrelationship between devolution, growth and reform strategies in London and in our other major cities?
  • What needs to change between Whitehall and our cities to make multi-polar growth a reality? What does the Centre need to do to enable this and what economic and revenue levers do cities require?
  • What are the practical, organisational, cultural and systemic barriers that stand in the way of a fundamental shift in economic power to our cities and how can these be overcome?"
The Commission will take evidence until this summer and then deliver its report in the autumn.

In "Prosperity Lives in the City" 30 Oct 2013 Bloomberg View, O'Neill wrote:
"More often than not, cities are the engine that powers economic growth. When a country’s cities succeed -- and I do mean cities, plural -- the economy is much more likely to prosper."
He also noted that although the British economy was beginning to pick up growth is not well balanced. The most conspicuous form of imbalance is regional in that there is an increasing dependence on London and the South East. O'Neill developed his ideas in an interview with Toby Helm of  The Observer 2 March 2014  "Cities chief Jim O'Neill's tip for a prosperous Britain: devolve to the north"  Stressing that the economic success of the capital was a good thing he suggested that the solution to the regional imbalance lay not in holding London's back but in making the other cities of the United Kingdom more like London. For instance, by improving transport links in the M62 corridor cities along its route could be welded into a single economic area. 

The BBC's economics correspondent Evan Davis took the idea a stage further in his article "The case for making Hebden Bridge the UK's second city" 10 March 2014 BBC website and his TV programme "Mind The Gap: London Vs The Rest" shown that same evening. Citing a World Bank conclusion that
"The large and growing academic literature suggests that doubling city size increases productivity by 3% to 8%"
Davis argued that if the population of Manchester could be quadrupled it would be between 6 and 16% richer than it is now. Now if Manchester were to quadruple in size it would occupy much of the space between Leeds and Liverpool. The components for such a conurbation already exists in the four contiguous metropolitan counties of Merseyside, Greater Manchester, West and South Yorkshire. If those conurbations would only think of themselves as one we have our second city already with a green centre located somewhere around Hebden Bridge.

In his article Davis wrote:
"The suggestion that[Henden Bridge] is Britain's second city came from resident David Fletcher, who was active in the 80s saving the town's old mills and converting them to modern use.
His point is that Hebden Bridge is an inverted city with a greenbelt centre and suburbs called Manchester, Leeds and Liverpool.
His point was that the real second city of the UK is a trans-Pennine strip that extends the relatively short distance across northern England, joining the built-up areas that lie second, fourth and sixth in the UK ranking.
Certainly, Hebden Bridge has attracted a lot of professional couples who are split commuters, one heading towards Manchester and one towards Leeds each morning. It is a place that allows both those cities to be treated as next door.
And maybe therein lies some kind of answer to the critical mass of London. It's not a second city called Hebden Bridge, but a super-city that tries to turn the great cities of northern England into one large travel-to-work area.
It would require a lot of physical infrastructure to improve links between the different centres.
And there would doubtless be rivalry and tension. The fact that Manchester is at its centre may not delight those who enjoy the football rivalries that are well known in that neighbourhood.
But there is no need to combine the teams, or to combine the names.
There would simply be a need to build on the success the bigger cities of Britain have been enjoying in recent years."
Regrettably but perhaps predictably Davis and O'Neill's suggestions of integrating existing conurbations was taken literally and stimulated all sorts of unhelpful emotions including Trans-Pennine rivalries not to mention Cis-Pennine rivalries such as those subsisting between Liverpool and Manchester on one side and Bradford and Leeds on the other.

As I pointed out in "NESTA in Manchester" 3 Jan 2013 the Pennines are not a big deal. The coastal range that separates the San Fernando Valley from the city of Los Angeles is a much more formidable barrier but it does not prevent the people of Southern California from thinking of themselves, and functioning, as one metropolitan area.

It may be that this sort of regional thinking is beginning to take root at last. Something very similar to Davis's plan was canvassed by Haughton G, Deas I, Hincks S, 2014, "Making an impact: when agglomeration boosterism meets antiplanning rhetoric" Environment and Planning A 46(2) 265 – 270. It may also be manifesting itself in the ‘Destination Management Plan’ to turn the formerly derelict Manchester Ship Canal docklands into a cultural and sports complex to rival London's South Bank. This scheme has the support of Lancashire County Cricket Club, Manchester United Football Club as well as The Lowry, the Imperial War Museum North, the BBC, the University of Salford. Trafford MDC and Salford City Council. Certainly if the M62 corridor is to be an economic counterweight to London and the South East it needs a strong cultural base to attract and keep the professionals and business leaders who can make that happen.

As O'Neill is a prominent Manchester United supporter he might reasonably be expected to favour initiatives like Destination Management Plan.