Saturday, 30 August 2014

How the Law protects Film Making

Media City, Manchester where much of the UK creative industry is located
Photograph Wikipedia

Jane Lambert

The announcement on Tuesday of a £13 million investment by Vistaar Productions in a post production facility in Manchester coinciding with the Deputy Prime Minister's trade delegation to India is a good time to consider the legal protection of film making in the United Kingdom.

Copyright subsists in films pursuant to s.1 (1) (b) of the Copyright, Designs and Patents Act 1988 ("the CDPA").  It is a property right that confers upon the owner the exclusive right to do a number of restricted acts. Those acts include:
  • copying the film;
  • issuing copies to the public;
  • renting or lending the film to the public;
  • performing, showing or playing the film in public;
  • communicating the film to the public;
  • making an adaptation of the work or doing any of the above in relation to an adaptation.
Anyone who does any of those acts without the licence (that is to say the permission) of the copyright owner infringes the owner's copyright. In England and Wales the copyright owner can sue the person who does those acts without his or her permission ("the infringer") in the High Court or the Manchester, Liverpool and certain other county courts for damages (compensation for any losses the copyright owner may have sustained) or, alternatively, the surrender of any profits that the infringer may have gained from his or her wrongdoing together with an injunction (or order of the court)  to cease and not repeat the infringement or risk a heavy fine or imprisonment.

A "film" is defined by s.5B (1) as "a recording on any medium from which a moving image may by any means be produced". The sound track accompanying a film shall be treated as part of the film for the purposes of this legislation but this provision does not affect any copyright that may subsist in the sound track as a sound recording. The definition of a film should be contrasted with the definition of a photograph and a broadcast. S.4 (2) defines a photograph as
"a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film."
A  broadcast is defined by s.6 (1) as
"an electronic transmission of visual images, sounds or other information which –
(a) is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or
(b) is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,"
but does not include certain types of internet transmissions.

There is no system of copyright registration in the United Kingdom. Copyright subsists automatically in a film from the moment it is made so long as the following nationality, residence or publication qualifications are met. The first way in which those requirements may be met is if the producer or principal director is a British citizen or resides in the UK (see s.154 (1) CDPA). Those requirements are also met if the producer or principal director is a citizen or resident of some other country that provides copyright protection for the works of British citizens or residents under a treaty or bilateral agreement with the British government. As most countries are party to the Berne Convention, Universal Copyright Convention or TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) that includes India, the USA and most if not all other film making countries. The requirements are also met if the film is first published in the UK or one of those other countries under s.155 (1) of the CDPA. Unlike artistic, dramatic, literary and musical works there is no requirement for originality for the subsistence of copyright in a film but s.5B (4) provides that "copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film."

Unless the producer and principal director are the same person a film is treated as a work of joint authorship - that is to say "a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors." The producer and principal director will own the copyright in their film unless they were employed to make the film under a contract of employment in which case their employer will own that copyright.

Subject to a number of exceptions, s.13B of the CDPA provides that copyright expires at the end of the period of 70 years from the end of the calendar year in which the death occurs of the last to die of the following persons -
(a) the principal director,
(b) the author of the screenplay,
(c) the author of the dialogue, or
(d) the composer of music specially created for and used in the film.
It is important to note that different rules apply to films made for the Crown, Parliament or international organizations.

The director of a film also has the right to be identified as the director, to object to derogatory treatment of his or her film and the right not to have a film attributed to him or her falsely. These rights are known as moral rights and are subsist quite separately from the copyright in the film.

It is important to note that the film copyright in a film is only one of a number of copyrights that will involved in making the film. For instance, copyright is likely to subsist in the screenplay as a dramatic work and in the score for the sound track as a musical work. Design right is likely to subsist in the the designs of the props and costumes. Each of the actors is a performer with the right to object to the filming, taping or broadcasting of his or her performance. The studio or distributors of the film will almost certainly register trade marks. 

Francis Gurry, Director-General of the World Intellectual Property Day (the UN specialist agency for intellectual property) discussed the IP issues film making in "WIPO Director General Francis Gurry on 'Movies - A Global Passion." He made that video as a contribution to World IP Day which this year focussed on the cinema. There us more discussion on IP and cinema on the World IP Day page on the WIPO website.

This is a complex topic upon which everyone involved in film making and distribution requires specialist advice. We are lucky that one of our members, Thomas Dillon, has specialist expertise which he gained as Vice President and Deputy General Counsel EMEA in the Brussels office of the Motion Picture Association. We are also fortunate in sharing space with Atlas Tax Chambers who can advise on the tax incentives and other allowances that are available in this country. Should you wish to discuss this article further call me on 0161 850 0080 during office hours or message me through my contact form. You can also tweet me, write on my wall or send me a message through G+, Linkedin or Xing

Wednesday, 6 August 2014

What happens to the Judicial Infrastructure if the North becomes connected?

Yesterday the city regions of Leeds, Liverpool, Manchester, Newcastle and Sheffield published One North A Proposition for an Interconnected North. In it the leaders of Leeds, Manchester, Newcastle and Sheffield city councils and the Mayor of Liverpool wrote:
"The 15m population of the North is larger than London and almost as big as the Netherlands but our economy is not doing as well. Our ambition is for the North to be a dynamic counterweight and complement to the London and South-East economy, a destination of choice for investors, helping re-balance and grow the national economy in the decades ahead."
To achieve that ambition, the leaders and mayor propose "a transformation of connectivity at the heart of an aim to maximise economic growth in the North."

The leaders and mayor want a new high speed railway linking their cities and other population centres on the lines of the HS1 link in Kent shown above as well as improvements to, and better management of, the road network. They list the expected benefits as follows:
  • "Stimulating business investment and innovation by supporting economies of scale and new ways of working.
  • Achieving agglomeration economies by bringing firms and their employees closer to business rivals and partners.
  • Enabling firms to access a larger labour supply and providing wider employment opportunities for workers and those seeking work.
  • Increasing competitiveness through access to new and larger markets with the benefits of increased labour market specialisation.
  • Reducing trading costs and using more efficient logistics networks.
  • Strengthening the existing comparative advantages of the North as a place to do business."
All this is very much in line with my own thinking which I expressed in a number of articles in this and other blogs (see "Power. Performance. Potential. Leeds Economic Conference" 5 July 2014) but, more importantly, it is also in line with the utterances of senior figures in the Conservative, Labour and Liberal Democrat parties. It follows that there must be  good chance that the high new speed railway and improved road links will be built.

If those links are built and the  benefits mentioned above materialize there is likely to be an acceleration of business activity resulting in increased demand for intellectual property services of all kinds. As I noted in "Are Southerners really more innovative than we are?" 20 July 2014 and "Well at least a Yorkshireman invented Cats' Eyes" 20 July 2014 the North of England trails London and the Home Counties in the number of patent applications. If business investment and innovation are to be stimulated there should be far more applications from this region. Inevitably there will be more disputes which businesses will wish to resolve locally.

Until its merger with the Chancery Division the Court of Chancery of the County Palatine of Lancaster had jurisdiction to hear patents and design cases in Liverpool and Manchester. Although other intellectual property claims were brought regularly in the Leeds, Liverpool, Manchester, Newcastle and Preston District Registries and County Courts until October 2010 (and in theory still can be) patent, registered design, plant breeders' rights and semiconductor topography cases have been reserved to the Patents Court and the Intellectual Property Enterprise Court ("IPEC") and its predecessor the Patents County Court.

Page 15 of the One North proposition sets out a timescale for building the transport links and other improvements by the next Preston Guild. By that time the Unified Patent Court should be up and running. Art 7 (4) of the Agreement on a Unified Patent Court permits contracting countries to designate up to 4 local divisions of the Court of First Instance and the German Federal Minister of Justice has already indicated that Germany will take advantage of that provision by setting up local divisions in Düsseldorf, Hamburg, Mannheim and Munich (see "Lokalkammern in Düsseldorf, Hamburg, Mannheim und München Europäische Patentgerichtsbarkeit auf gutem Weg" 14 March 2014 German Federal Ministry of Justice website). If the North is to become "a dynamic counterweight and complement to the London and South-East economy, a destination of choice for investors" it is essential to establish a local division in Manchester or Leeds.

IPEC is already part of the High Court and its judges have indicated that they will sit anywhere in England and Wales. There would be no difficulty in appointing a second circuit judge and at least one district judge to sit permanently in the North.

In 1988, well before the 1992 Preston Guild, Henry Carr QC and I debated the case for a local IP court for the North of England in the Manchester Club. With any luck we shall have such a jurisdiction by the next Guild.