Author: Nathanael Young

According to the Guardian, Brian Belo has begun court proceedings against ITV and Lime Productions for copyright infringement and breach of confidence. It appears he is claiming that The Only Way is Essex is based on an idea he had developed with Sassy Films and Massive TV, co-claimants with him in the litigation.

Given the subject matter, the case seems sure to be in the headlines until it is resolved. However, the legal difficulties in bringing a claim over ideas for shows should not be underestimated. Copyright infringement applies not to ideas themselves, but to the tangible expression of ideas – something the Americans call the idea/expression dichotomy. In the past, only highly developed ideas – such as preliminary drafts of final works – have been found to be protected in this way.

This issue has put paid to many cases of copyright infringement – among the most famous being the case over the Da Vinci Code, and the plot elements its author had borrowed from an earlier work called the Holy Blood and the Holy Grail.

Turning to TV shows, the classic case on copyright infringement is Green v NZ Broadcasting Corporation [1989] 2 All ER 1046. In that case, Hughie Green objected to a copy of his ‘Opportunity Knocks’ show being aired in New Zealand. However, the elements he alleged were copied were the title, certain catch phrases and other practices in relation to the show. The Privy Council held this could not be breach of copyright, and TV show producers have rarely relied on copyright ever since.

In confidentiality however, the picture is quite different. TV shows are frequently protected by the use of ‘production bibles’, supplied under confidentiality agreements, containing the sort of know-how that goes into the show but cannot be readily identified by watching it. This makes it hard for copycat shows to air without obtaining the confidential information and ending up on the wrong side of the law.

Indeed, before the show is first aired, confidentiality can offer still greater protection. The ideas, characters, format and flavour of the show are not yet in the public domain, and can all be covered by well drafted confidentiality agreements. This is certainly the route that any budding TV show producer would be advised to go down.

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For further information or to discuss a particular matter or situation in more detail, contact Nathanael Young at our St Albans office by email at nathanael.young@salaw.com or on 01727 798000.

© SA LAW 2012
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual cases.

Author: Nathanael Young

There has been plenty of sport in court over the last few months, what with super-injunctions, Sky decoders and match fixing. Now a libel case brought by former New Zealand cricketer Chris Cairns has hit the headlines.

As with many recent libel actions, it all started on Twitter. In this case, the offending tweet was posted by Lalit Modi, former chairman of the Indian Premier League, accusing Cairns of involvement in match fixing.

The tweet was soon posted on Cricinfo, a cricketing website with a worldwide audience. After Cairns objected, Cricinfo swiftly made peace – they withdrew the report, apologised and paid damages.

Modi took a different route. He defended on the ground of justification, calling evidence from a number of Cairns’s team mates in an effort to show the allegations were true.

In his judgment however, Mr Justice Bean was scathing about the reliability of some of Mr Modi’s witnesses, and accepted Mr Cairns evidence, noting he had emerged ‘essentially unscathed’ from prolonged questioning.

In a particularly interesting move, the judge then ruled that damages would be increased from £75,000 to £90,000 in view of the ‘sustained and aggressive’ attack on Mr Cairns by the Mr Modi’s lawyers. Apparently the words ‘liar’, ‘lie’ and ‘lies’ were used 24 times in Modi’s barrister’s closing speech.

The case is yet another reminder of the dangers of careless tweets. It is also a reminder of the dangers of trying to justify allegations in libel cases. Although the defendant only needs to prove on the balance of probabilities that they are true, not all attempts at justification survive the intense scrutiny of trial. When they go wrong, they can then lead to additional damages, and certainly far more costs than a quick early settlement.

It seems that the damages awarded may yet be the subject of an appeal. However, the principle that vindictive behaviour can aggravate damages is a long standing one. Defendants to libel trials should be warned: justification is not for the faint-hearted, nor for those without the greatest confidence in their evidence.

Author: Victoria Thomson

SA Law’s outstanding work for commercial and private clients has been recognised by the Chambers and Partners 2012 Guide to the UK legal profession.

SA Law has been recognised as a leading regional practice by independent legal research bodies Chambers & Partners and The Legal 500, in addition to achieving The Law Society’s Conveyancing Quality Scheme accreditation.

A leading publisher of legal research, Chambers conducts thousands of interviews with lawyers and their clients every year to identify regional leaders around the world.
All of SA Law’s departments have been recognised as regional leaders in the Northern Home Counties, with Managing Partner Steve Ryan cited as a top tier lawyer: “These achievements are extremely important in a sector that suffers from fierce competition in a slow economy. Achieving recognised first class credentials in the marketplace has never been more essential.” Adds Steve Ryan.

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Author: Nathanael Young

Hot on the heels of the Advocate General’s opinion on the use of foreign decoders (well, 8 months later) the Court of Justice has now given its ruling on the issue. As expected, the Advocate General’s opinion has been followed, and prohibitions on using or selling foreign decoder cards have been held contrary to European law.

Although the judgment runs to 212 paragraphs, it has already been scrutinised and re-scrutinised across the EU. This is because, as mentioned in my previous blog piece, it strikes at the heart of the current licensing system used for football in the UK and elsewhere.

In principle, the Court held that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services. It also held that a system of exclusive licences is itself contrary to competition law if the licences prohibit the supply of decoder cards to television viewers outside the licensee’s territory.

However, in an odd quirk, the Court also held that the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and certain other graphics fell into a separate category. These works could only be used with authorisation from the rights holder.

Although pub owners can protect themselves from this exception by only screening games from kick off, rights holders are no doubt looking at whether they can use this additional material in an effort to preserve the status quo. However, given the fundamental antagonism in the judgment towards the notion of partitioning rights, and towards artificial price differentials resulting from such partitioning, this may be hard to achieve.

Whilst broadcasters and rights holders will be disappointed at the decision, it was hardly unexpected after the Advocate General’s opinion. They must therefore have given some thought to contingency plans, and to new business models to cover just this eventuality. Whether these will involve the pan-European licences the Advocate General seemed to envisage is another question. So too is the issue that has the widest interest – the effect of such new models on football itself.

The importance of this decision on football has resulted in considerable media attention already, with much speculation as to whether the result will be business as usual or fundamental change. However, the case is worth noting for other reasons as well. Apart from anything else, it is a vivid illustration of how the importance of a single market and competition across member states is hard-wired into European law. Intellectual property rights have not proved sacrosanct when they have come into conflict with competition law, as even Microsoft has found to its cost.

Author: Chris Alexander

You may have heard me this morning on the Jonathan Vernon-Smith show on BBC Three Counties Radio discussing the implications of long-term solar energy contracts when it comes to selling your property.

There are a number of companies in the marketplace currently offering free installation of solar panels in exchange for contracts of up to twenty-five years which entitle the householder to benefit from the electricity generated and allows the installer to sell surplus energy back to the Grid. I was asked to comment upon the implications for householders proposing to sell where these agreements are in place.

The first observation I would make is that each company’s terms and conditions will be different. However, remember that by signing up to them, you are entering into a long-term contract with obligations you will need to perform for the entire duration. It is therefore essential to check the termination provisions in the contract (if any), to see what should happen in the event that you no longer wish to continue. I consider it is going to be unlikely to be easy to terminate the contract because of the capital investment made by the solar panel company.

The contract provides you with personal obligations to the solar panel company and these cannot generally be assigned to a buyer of your house without the solar panel company being a party to that arrangement. Therefore, if your buyer was prepared to continue with the contract, a novation agreement would be needed to transfer the obligations to the buyer and to release you from the contract. If you failed to procure the agreement of your buyer to step into your shoes and went on to breach your obligations to the solar panel provider, then I could envisage a hefty damages claim being brought by the solar panel company based on their losses for the remaining term of the contract.

However, in practice I would expect that this is unlikely to be an insurmountable problem, but will add to the complexity and cost of a sale transaction. Further, it may limit the type of buyer who would like to purchase your property.

Other Legal Issues to Consider

Before entering into one of these contracts you should consider whether or not planning or other permission is required for the development to your roof or wall. The government’s planning portal website provides some useful guidance on this. Also check that the terms of the contract are not granting any specific rights over your property to the solar panel company. These could require registration of the Land Registry and, also, could require the consent of your mortgagee to put in place.

Follow Chris on Twitter: @Alexander_CJ http://twitter.com/#!/Alexander_CJ

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© SA LAW 2011

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual cases.

Author: Clare MacKay

Allocation of school places started to be announced on March 1and will continue until April4.
As a firm, we are keen to let parents know what they can and can’t do about these decisions if they are unhappy. There is a good reason for a call to action – for 2009/2010, nationally 33.3% of secondary school appeals and 25% of primary appeals succeeded.

To read the full article on the Hertfordshire Life website, click here.

Author: Clare MacKay

With the shops full of new uniforms and back to school offers, September for many parents means the start of the application process for places at primary and secondary schools.   With many of the most popular and best performing schools heavily over-subscribed, the temptation may exist to try and play the system to ensure a place is obtained at a parent’s preferred school.   Councils charged with the allocation of school places therefore need to be on their guard to avoid abuses of the application process and to ensure that places are fairly allocated to children in accordance with set criteria.   But how far can a Council go when it suspects that a parent has, for example, used an address near the favoured school which is not in fact where the family reside?

Well, the Council certainly can’t now act all cloak and dagger and use its surveillance powers under the Regulation of Investigatory Powers Act 2000 (“RIPA”).   That legislation was introduced to allow Councils to carry out covert surveillance on individuals if it suspected that serious crimes were being committed.   However, planning to commit an act of terrorism is a long way from manipulating your application for a place for your child at an oversubscribed school.

Such was the situation that Jenny Paton and Tim Joyce found themselves in.   Ms Paton, Mr Joyce and their three young daughters were the subject of covert surveillance by Poole Council following two phone calls alleging that they did not actually live at the address they had given on their primary school application.   The family were watched as they went on with their daily family life at their home and a detailed record was kept of their movements.   Even their car was described as the “target vehicle”.   Ms Paton and Mr Joyce only became aware of the surveillance when it was inadvertently revealed to them at a meeting to discuss their application.

The tribunal found in acting in this way, the Council had gone too far.   The surveillance was neither proportionate nor could it reasonably have been believed to be proportionate.  The surveillance of the family was therefore unlawful and the family’s right to privacy enshrined in the Human Rights Act had also been breached.   As an aside, it seems that the family had not, in any event, actually manipulated the application process but had simply but their house up for sale and had continued to live in it until the end of the requisite period to ensure that they obtained a place at their preferred school for their daughter.

There are of course times when it is appropriate for a Council to carry out covert surveillance – but to do so, such use must be proportionate and the use of such tactics in school admission cases is extremely unlikely to be lawful in future.   With budget cuts to public spending, surely Council funds are also better spent elsewhere.   The Coalition Government plans to change the law to require the sanction of a magistrate before a Council can use its powers under RIPA, with such permission only to be granted to prevent serious crime.

Councils suspecting foul play in the school application process will now have to find alternative ways to deal with tip offs about abuses by parents anxious to secure a place at the best schools for their children.   Such suspicions may be best dealt with by talking openly and frankly to the parents in question and asking for documentary evidence to be produced of their residence at the address in issue.  Very few people are adept at lying in the face of direct questioning and this is likely to be a fairer, more proportionate, cheaper and ultiamtely more effective way of weeding out fraudulent applicants than hanging around in unmarked cars watching the every move of a family going about its day to day business.