UK Autumn Budget 2017

KEY POINTS

On Wednesday 22 November, the UK Chancellor of the Exchequer delivered his Autumn 2017 Budget. The most significant announcement (though absent from the Chancellor’s speech) was that, from April 2019, the UK will be imposing UK tax on gains made by non-residents disposing of UK commercial property whether directly or via property-rich companies or other entities.

The Budget has also confirmed that with effect from April 2020, non-resident companies with UK source income such as rental income from UK real estate will be within the scope of UK corporation tax rather than income tax.

Alongside the Budget, the UK government has produced a position paper on how the digital economy should be taxed and a proposal to impose a withholding tax on royalties derived from UK sales paid to low tax jurisdictions from April 2019. Below is a summary of some the measures announced:

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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/11/uk-autumn-budget-2017/

Can a TV show format acquire copyright protection?

By Patrick Mitchell and Will Thorman


Many years ago the Courts determined that there was no copyright in the format for the “Opportunity Knocks” game show (see Green v New Zealand Broadcasting Corporation [1989] 2 All ER 1056) and since then several other claims to copyright in TV formats have failed when considered under English law.

However, in its judgment (available here), the English High Court held that it was possible that a game show format could acquire copyright protection as an original ‘dramatic work’.

Facts
Banner Universal Motion Pictures (BUMP) was formed by a Danish citizen named Mr. Banner who had devised and documented a TV game show:

“MINUTE WINNER
Mini-format Game show
Daily or weekly show.
Or short one minute between main programs.
Morning, Evening or Afternoon program.
One minute, or 30 minutes with several winnings”

This format was recorded in a document which described a show which is filmed either in a studio or in a variety of locations, featuring a single game played for one minute against the clock by a member of the public who has been selected randomly and without warning, and who was given “one minute to win” a prize provided by sponsors or advertisers.

BUMP claimed that Mr Banner disclosed the idea for Minute Winner during a meeting with Friday TV, who then used the information to develop a TV game show format, known as “Minute to Win It”, which was subsequently licensed, produced and broadcast all around the world. Mr Banner had also sent the Minute Winner format document as an attachment to an unsolicited email to the Friday TV representatives following that meeting. BUMP claimed that it was the owner of copyright in the format document and that the creation and broadcast of Minute to Win It constituted copyright infringement.

Copyright in an original ‘dramatic work’

Under the UK’s Copyright Designs and Patent Act 1998 (CDPA) one of the requirements for copyright protection is originality. The test for originality, as applied by Mr Justice Snowden here, was that the work (taken as a whole) must be an expression of the author’s own intellectual creation, although  not every constituent aspect of a work must be original.

The expression “dramatic work” is not defined in the CDPA (save that it is expressed to include a work of dance or mime). However, Mr Justice Snowden recalled that  the courts have held that the expression should be given its natural and ordinary meaning and that a dramatic work had previously been described as being “a work of action, with or without words or music, which is capable of being performed before an audience.”

Therefore, Mr Justice Snowden explained that each recorded episode of a television game show or quiz show would be likely itself to qualify for copyright protection as a dramatic work, so that copyright would be infringed if someone else staged a re-enactment of the same episode. However, since Minute Winner was never actually produced the question here was whether the format of a TV game show or quiz show is separately capable of being protected by the law of copyright.

Note that BUMP did not claim that the document was a ‘literary work’, since under the CDPA a work cannot be both a literary work and a dramatic work.

Decision

Mr Banner’s case was dismissed by summary judgment on the grounds that there was no realistic prospect of BUMP persuading a court that the contents of the Minute Winner document qualified for copyright protection.

However, the Court held that it was possible that a game show format could acquire copyright protection as a ‘dramatic work’, even though a genuine game or quiz show will contain “elements of spontaneity and events and events that change from episode to episode.”

That said, Mr Justice Snowden made it clear that “copyright protection will not subsist unless, as a minimum (i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.”

In this instance, Mr Justice Snowden said the contents of the Minute Winner document were “very unclear” and “lacking in specifics” and the features were “common place and indistinguishable from the features of many other game show features.”

The Minute Winner Format

Mr Justice Snowden made the following observations about the features recorded in the Minute Winner document:

  • Neither the title itself nor the phrase “one minute to win” are “clear or distinctive” – the performance of a task against the clock to win a game or a prize is a common feature of most game shows.
  • The words “one minute to win” are not identified in the document as a catchphrase that is required to be repeated in the program, or how that should occur.
  • The fact that the show would give members of the public the chance to win something on television, and that it would record their reactions whilst doing so is entirely non-specific and “entirely banal”.
  • The document does not describe where the action is to take place.
  • The document does not contain any specification of who the contestants should be, or how they are to be identified or approached.
  • The document does not seek to prescribe the type of one-minute tasks that are required to be performed in any such a way that might be regarded as forming a recognisable or repeatable structure.
  • The length of the program and when it is to be aired is not adequately defined or described.
  • The generalised descriptions of why the program might be attractive to viewers, advertisers or producers would not form part of the format itself for copyright purposes.

It is also worth noting that Mr Justice Snowden concluded that there is no similarity between the idea outlined in the Minute Winner document and the Minute to Win It game shows, other than the fact that they both involve games played against the clock for one minute which is a commonplace idea. Therefore, even if the Minute Winner document had qualified for copyright protection there had been no infringement.

Breach of Confidence

BUMP had also made a claim for breach of confidence, on the basis that Mr Banner had disclosed confidential information to Friday TV. However, this claim also failed.

Mr Justice Snowden explained that no confidential information had been disclosed during the meeting, but he also asserted that Friday TV were not under an obligation not to disclose the Minute Winner document that Mr Banner had sent to them: Friday TV had refused to sign a non-disclosure/ confidentiality agreement and an alleged oral confidentiality agreement extended only to matters discussed at the meeting.

Comment

This decision and Mr Justice Snowden analysis of the recorded features of the Minute Winner document shows that anyone looking to rely on copyright to protect the format of their game or quiz show should produce detailed documents that specifically describe and detail elements of the format of that show. However, even with this in place – the hurdle of originality is a real one, causing issues for protection particularly in the context of general TV show concepts.

The case also again demonstrates the importance of putting in place effective non-disclosure agreements before disclosing any ideas for a new TV format, which could have high commercial value.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/11/can-a-tv-show-format-acquire-copyright-protection/

CINEMA AND AUDIOVISUAL MEDIA SERVICES: A WIDER PROTECTION FOR EU WORKS

On 2 October 2017, the Italian Council of Ministers approved a new Legislative Decree (“Decree“), aimed at ensuring a wider protection to EU (and Italian) works in the audiovisual media services (“AVMS“) sector. A brief outline of the new provisions is set out below.
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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/10/cinema-and-audiovisual-media-services-a-wider-protection-for-eu-works/

Ofcom launches revised rules on consumer protection and nuisance calls

By Francis Keepfer

The UK telecoms regulator, Ofcom, has launched a review of its General Conditions of Entitlement (the regulatory rules that all UK communications providers (CPs) must follow in order to operate) and a consultation on updating its guidance concerning the provision of calling line identification (CLI) facilities.

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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/09/ofcom-launches-revised-rules-on-consumer-protection-and-nuisance-calls/

Update: German Sports Betting Regulation

By Dr. Michael Stulz-Herrnstadt and Christoph Engelmann

The state parliament of Schleswig-Holstein announced that it will not approve the new State Treaty on Gambling. They want to push for an entire new law that includes licenses for online casinos as mentioned in their coalition agreement.

In addition the administration of North Rhine-Westphalia announced that it will not ratify the new law and that it stopped the implementation of the new responsibilities (the new law provides that North Rhine-Westphalia takes over the sports betting regulation from Hesse).

The consequence of this situation is that the new State Treaty will not enter into force on 1 January 2018 as planned. This is because the law provides that it will be invalid if it is not ratified by all 16 German states until 31 December 2017.

Until the German states find an agreement for a new law the current regulatory situation remains. Sports betting will be tolerated for EU-licensed operators as long as they comply with material regulatory requirements like advertising restrictions and AML obligations. This is now confirmed by several higher administrative courts like the ones of North Rhine-Westphalia, Saarland and Hesse.

Dr. Michael Stulz-Herrnstadt and Christoph Engelmann recently commented on the decision of the higher administrative court of Hesse in the German magazine “GRUR-Prax” 2017 p. 387; the article can be viewed here (in German, subscription based). Dr. Michael Stulz-Herrnstadt was also interviewed about the Schleswig-Holstein situation by the magazine “Online Gambling Lawyer“.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/09/update-german-sports-betting-regulation/

Changes to the law on Sport in Poland

by Rafał Burda and Wojciech Biegański

The new Polish Sports Law that came into force on 12 September 2017 introduces important changes with respect to the regulatory aspects of sport as well as some organisational and structural changes to sport in Poland that are aimed at conforming with modern standards of sports regulation. Read the rest of this entry »

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/09/changes-to-the-law-on-sport-in-poland/

UK – Gambling Commission – Revised Remote Gambling and Software Technical Standards

By Jonathan Salt

Following a consultation in October 2016, the Gambling Commission (Commission) has recently announced revised remote gambling and software technical standards (RTS) aimed at ensuring that online operators offer consumers a uniformed set of tools to monitor their gambling activities in the United Kingdom.

Prior to the consultation, the RTS has remained generally unchanged since it was first implemented in 2007. The Commission has concluded that it is now necessary to reflect the modern changes in technology in the gambling environment and the significant growth of online gambling in the United Kingdom with the revised RTS.

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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/08/uk-gambling-commission-revised-remote-gambling-and-software-technical-standards/

Update on the new AML Act in Germany

By Dr. Michael Stulz-Herrnstadt and Christoph Engelmann

The new German Anti Money Laundering (AML) Act entered into force on 26 June 2017 after it has been published in the Federal Law Gazette.

The new AML Act brings three important changes for gambling companies:

  • Extension of the scope from online to offline gambling and from licensed to unlicensed gambling
  • Revised AML measures in detail
  • Extended catalogue of administrative offenses with higher administrative fines (up to 1 million Euro)

For more information on the new AML Act we published a client alert for gambling companies that are offering their services in Germany. In addition we wrote an article in the German newspaper FAZ covering the main impacts on gambling companies.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/07/update-on-the-new-aml-act-in-germany/

Implementation of the AML Directive in Poland

By Magdalena Gmur

The first quarter of 2017 saw extensive amendments being made to the Polish Gambling Act. However, gambling operators should now focus their attention on proposed anti-money laundering (AML) regulations, which may also affect their business activity. The Polish government has just published the first draft of the new Act on Combating Money Laundering and the Financing of Terrorism (Draft AML Act), which will implement into Polish law Directive EU 2015/849 of the European Parliament and of the Council on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing. Read the rest of this entry »

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/06/implementation-of-the-aml-directive-in-poland/

New licenses for online casinos in Germany?

By Dr. Michael Stulz-Herrnstadt and Christoph Engelmann

After the elections in the German state Schleswig-Holstein the Christian Democrats, Free Democrats and Greens plan on a new gambling law in their coalition negotiations.

The Greens mention on their website that the coalition does not want to implement the new State Treaty on Gambling into their state law. Instead they plan on resigning from the State Treaty and on passing a new gambling law together with the states North Rhine-Westphalia, Rhineland-Palatinate and Hesse. The new gambling law is supposed to be based on the 2012 Schleswig-Holstein gambling law. Other than the State Treaty on Gambling it intends to offer (new) licenses not online for sports betting but also for online casinos including poker games.

State revenues will be used for prevention of gambling addiction, consumer protection, grassroots sport and common public interest. Brick-and-mortar casinos will be sold neutral in terms of effect on competition after the online licenses have been issued.

This is a very exciting development for operators that are looking into the German market. After the new State Treaty on Gambling has been criticized in recent court decisions it now looks like at least a few states might rethink their current gambling policies.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/06/new-licenses-for-online-casinos-in-germany/

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