TV Catchup – CJEU gives little air time to retransmission defence

By Alastair Mackichan

The Court of Justice of the European Union has put to bed any doubt as to whether section 73 of the Copyright Designs and Patents Act (“CDPA”) is compatible with the EU Copyright Directive. Section 73 provides a defence against copyright infringement for operators of cable platforms in relation to the retransmission of “qualifying services” (those of the UK public service broadcasters). However, more recently, the section 73 defence has also been relied upon by the operators of the TV Catchup service to retransmit content via the Internet without the broadcasters’ consent, triggering litigation by ITV and others (see our previous blog posts here, here and here for the background to these lengthy proceedings). Read the rest of this entry »

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New Federal Archives Act (Bundesarchivgesetz) enters into force

By Dr. Michael Stulz-Herrnstadt and Fabian Jeschke

On 16 March 2017 the new Federal Archives Act (BArchG) entered into force. The German Federal Parliament (Deutscher Bundestag) had adopted the reform in one of its sessions in January 2017.

Besides the Freedom of Information Act (Informationsfreiheitsgesetz) the BArchG is a central instrument for access to documents of federal authorities. It had not been substantially updated since its introduction in 1988 and is now being replaced by a constitutive amendment. Alongside comprehensive restructuring, tightening and verbal revision the new BArchG also includes some significant material changes.

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Germany takes steps to tackle fake news

Germany’s Justice Minister has put forward a new draft law calling for social networks to remove slanderous or threatening online postings quickly or face fines of up to 50 million euros ($53.15 million). This announcement comes as no surprise as there have been calls from various quarters for stricter regulation, and some commentators in Germany have already said that it is not strict enough.

What will be interesting, is to see whether the UK and other countries introduces similar measures. All modern democracies are facing the same problems, with fake news influencing elections or hate speech inciting people or groups, and the view here is that there is a general need for this kind of regulation.

Social media platforms will now need to invest considerable time and resource in the development and implementation of proper standards and procedures, such as deletion of clear infringements within 24 hours and easy complaint management.

We’ll be following the development of this story closely and please do get in contact if you want to know more about how it could impact your business.

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eSports YouTube star and business partner prosecuted for operating and promoting an unlicensed gambling website

By Greg Mason

On 6 February 2017, in the first successful prosecution of its kind by the GB Gambling Commission, Craig Douglas (33) and Dylan Rigby (34) pleaded guilty to offences under the Gambling Act 2005 relating to unlicensed eSports gambling.

Douglas, a prominent eSports YouTuber known as “NepentheZ”, was fined £91,000 for advertising unlawful gambling and inviting children to gamble. His business partner, Rigby, was ordered to pay £174,000 in fines and costs for offences relating to the provision of facilities for gambling and the advertising of unlawful gambling.

The pair admitted to being directors of Game Gold Tradings Limited which operated and advertised the unlicensed gambling website, which has no official connection with the FIFA series of games or EA Sports, allowed customers to buy virtual currency known as “FUT coins”. These FUT coins could then be used to gamble (on products including sports betting, a jackpot lottery style game and a higher or lower style game) and could even be converted into FIFA coins which could be sold for real money via an unauthorised secondary market.

In this case, the lack of child protection was particularly concerning. The District Judge, DJ McGarva, labelled the offences as “very grave” given that there were no restrictions on young persons from accessing the website and placing bets. Sarah Harrison, CEO of the GB Gambling Commission, noted that “the defendants knew that the site was used by children and that their conduct was illegal but they turned a blind eye in order to achieve substantial profits. The effect on children of online gambling was rightly described by the Court as ‘horrific’ and ‘serious’“.

Given the gravity and nature of offending, it is perhaps surprising that the Court did not impose a custodial sentence and instead opted for a relatively small financial penalty. Previous voluntary settlements with the GB Gambling Commission relating to failures in AML compliance and social responsibility controls resulted in significant financial penalties.

With eSports and eSports gambling becoming a growing global trend, it is attracting greater attention from regulators. The GB Gambling Commission is currently undertaking a discussion paper on emerging products in the gambling market, including betting on eSports events. The GB Gambling Commission’s current guidance states that “betting on eSports should be treated no differently as betting on any other live event… if you wish to offer bets to GB consumers on eSports events then you will need a betting licence. The types of betting offered and how you offer them will determine the licence required.

For further information from the GB Gambling Commission in relation to eSports, please visit:

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UK: Search engines agree to demote pirate sites in search result listings

By John Wilks and Alastair Mackichan

The UK Intellectual Property Office (the “IPO”) announced last month that Google and Bing have agreed to enter into a voluntary code of practice with the UK creative industries (represented by the British Phonographic Industry, the Motion Picture Association and the Alliance for Intellectual Property) (the “Code”). The “Code of Practice on Search and Copyright” came into force on 9 February 2017 and aims to push websites offering copyright infringing content further down search result listings.

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Ofcom publishes guidance on references to providers of technical information in sports television broadcasting

By Jonathan Salt

Ofcom has published guidance on the established industry practice of broadcasting on-screen references to providers of technical information in sports programming.

Rule 9.5 of The Ofcom Broadcasting Code (the “Code”) requires broadcasters to ensure that “no undue prominence may be given in programming to a product, service or trade mark. Undue prominence may result from: (i) the presence of, or reference to, a product, service or trade mark in programming where there is no editorial justification; or (ii) the manner in which a product, service or trade mark appears or is referred to in programming“.

Although the Code does not specifically reference sports television broadcasting, Ofcom’s previous finding following a complaint against Sky Sports’ use of Specsavers’ sponsorship of “Hawk-Eye” technology during coverage of Ashes cricket in 2009 confirmed that circumstances exist where there is sufficient editorial justification to include a brief on-screen acknowledgment of a provider of technical information during broadcast coverage of sporting events.

Whilst Ofcom have indicated that they will continue to make judgments under the Code on a case-by-case basis, the new guidance does provide broadcasters with the following important information on factors that are likely to be considered by Ofcom in such cases:

  • technical information should enhance the viewing experience either providing viewers with a broader understanding of the event they are watching (e.g. match statistics) or providing information which is integral to viewers’ understanding or enjoyment of the event (e.g. lap times in athletics);
  • the principal purpose of including technical information should not be to promote the information provider and “any credit should be brief and secondary“;
  • matters of objective fact concerning the sports event which in theory could be provided by a number of companies (e.g. scoreboards) are permitted whereas products from specific providers available and targeted for sale at viewers are unlikely to be a legitimate form of technical information (e.g. betting odds). However, there may be limited circumstances where betting odds within a programme may be justified (e.g. where there exists a close association between a sporting event and betting which is longstanding and uncontroversial (i.e. horseracing)); and
  • broadcasters are advised to take particular care when crediting providers of technical information with whom they have entered into sponsorship, product placement or commercial arrangements for the same programmes especially if there is the potential for such commercial arrangements to engage the product placement rules.

The full guidance published in Ofcom Broadcast and On-Demand Bulletin, Issue 321 (23 January 2017) can be found here.

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Sports betting does not require a German gambling license in North Rhine-Westphalia at the moment

By Dr. Michael Stulz-Herrnstadt and Christoph Engelmann

The Higher Administrative Court of North Rhine-Westphalia (OVG NRW) ruled in a recent decision that sports betting intermediation by an EU-licensed provider does not require a(n additional) German gambling license in North Rhine-Westphalia at the moment. With this decision the court takes a very liberal stance. Yet, this is consistent with last year’s decisions by the ECJ and the German Federal Administrative Court (BVerwG). As a result the operation of sports betting in North Rhine-Westphalia on the basis of an EU-license (and without a German license) cannot be prosecuted as a criminal offense and it cannot be subject to an administrative prohibition.

The decision is anticipated by other EU-licensed sports betting operators that are now able to offer their services at least in the German state North Rhine-Westphalia until the new State Treaty on Gambling enters into force in 2018 when a new sports betting licensing procedure is expected to start. Although the decision is limited to only one of the 16 German states (i.e. North Rhine-Westphalia) it would be consistent to apply it to the other German states, too.

Update: Dr. Michael Stulz-Herrnstadt and Christoph Engelmann commented on the decision of the BVerwG in the German magazine “GRUR-Prax” 2017 p. 132. The article can be viewed here (in German, subscription based).

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Ofcom announcement on non-domestic TV channels: changes to access service obligations

By Patrick Mitchell and Ed Chalk

Following a consultation, on 2 December Ofcom announced decisions on a number of measures designed to improve access to non-domestic TV channels (i.e. channels licensed by Ofcom for transmission to other EU Member States). As you will know, channels licensed by Ofcom but targeted at European territories other than the UK are required to provide certain levels of subtitling, audio description and signing – albeit that certain exceptions exist for non-domestic broadcasters with smaller audiences. A channel with a “smaller audience” in this context is one whose audience share is above the audience share threshold set by Ofcom for that country, but below the audience share level at which Ofcom requires channels transmitting to that country to provide signing (in France, for example, a “smaller audience” would mean an audience share of between 0.05% and 1.07%).

The three key changes detailed in the announcement are that:

  • the transitional period for non-domestic channels with smaller audiences, originally ending on 31 December 2016, will be extended to 31 December 2017. During this period channels can continue to meet signing requirements through the provision of additional subtitling;
  • after the transitional period (i.e. from 1 January 2018), non-domestic broadcasters with smaller audiences must meet rising targets for sign language, or make rising financial contributions to Ofcom-approved alternative arrangements which progress the objective of making signing more widely available. Alternatively, where Ofcom is satisfied that sign language users in a particular target country would prefer assistance other than the signing of programmes, Ofcom may allow broadcasters to supply alternatives such as additional subtitling instead; and
  • from 1 January 2018, channels broadcasting to Iceland, Liechtenstein and Norway – i.e. EEA countries where the Audiovisual Media Services Directive applies – will be required to provide access services on the same basis as those targeting EU Member States.

The full Ofcom statement can be found here:


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Amendment to the Polish Gambling Act signed by the Polish President

On 28 December 2016, an amendment to the Polish Gambling Act (described in this post) was signed by the Polish President. It will come into force on 1 April 2017. On 30 December 2016, new secondary legislation to the amended Gambling Act was notified to the EC. The notifications can be found here (700, 699 and 698). The standstill period expires on 31 March 2017.

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Amendment to Polish Gambling Act adopted

Last Thursday (Sejm) and Friday (Senat), an amendment to the Polish Gambling Act was adopted. Once signed by the Polish president and published, it will come into force on 1 April 2017. Its official aim is to increase the protection of players against risks related to excessive gambling and to decrease the unlicensed market. However, it extends the number of games permitted in Poland and includes a couple of revolutionary changes: Read the rest of this entry »

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