Media convergence accelerates
Net neutrality remains a hot topic: while the US Federal Communications Commission (FCC) ensured that Internet providers cannot grant privileged positions to certain players or impose blocks on others, Europe is debating the issue at another level. In Germany, the issue in summer 2015 was how distributors were to deal with the newly arrived streaming service Netflix. The CEOs of Vodafone and Liberty Global were not afraid to admit that Netflix’s data received preferential treatment – in exchange for a fee, of course. On the other hand, the Federal Committee on Petitions supports enshrining net neutrality in law.
This discussion will certainly continue (not only at EU level) and lawyers will have plenty to do: video on demand platforms such as Netflix are nothing new, and competitors such as Maxdome, T-Entertain and Amazon Prime have been slogging it out for some time, but in the end they are dealing with the same problems that occupied the music industry years ago.
When the streaming service Napster broke open the market by offering cheaper access to many songs, the music industry had a hard time reacting to the new conditions and arriving at a sensible financing strategy. In order to avoid this situation in the film and TV sector, media lawyers are employing many facets of media law: alongside traditional licensing issues, there is an increasing focus on the interface with telecommunications in contracts with infrastructure providers, the interface with IT for data protection issues, and regulatory issues around protection of minors.
Retransmission fees and ancillary copyright remain perennial issues
The problems related to retransmission fees also require combined legal expertise, this time in copyrights, broadcasting and antitrust law. The Federal Court of Justice (Bundesgerichtshof) was expected to make a precedent-setting decision on this matter in summer 2015, which would affect about 18 million cable subscribers. However, the dispute between Kabel Deutschland and Bayerischer Rundfunk/Südwestrundfunk (SWR) was referred back to the lower courts. This is actually not unusual in precedent-setting media cases.
The lengthy discussion over ancillary copyrights also seems to have no end in sight. Some lawyers are disappointed with the current situation: “Ancillary copyright was meant to be much more comprehensive, but it’s turned out to be purely decorative.” The law was adopted in 2013. A year later VG Media took Google before the Arbitration Board under Copyright Administration Law at the German Patent and Trademark Office (DPMA) in order to force it to pay (preferably six percent of its German profits) for contents of published material. Suits against Yahoo, Deutsche Telekom and 1&1 were also pending. In late summer, however, the Arbitration Board ruled six percent too high and called for VG Media to amend its requirements.
Another prominent legal battle concerns bestsellers: after a number of fiction authors went to court, the wave grew to encompass non-fiction authors.
In short, media convergence continues. If the media world seemed like a one-way street before, where traditional media forms merged into the Internet, it now goes both ways with YouTubers going on to make cinema films.
Legislators playing catch up with market trends
But legislators are behind the times with regard to media convergence. The best example of this is the discussion over the broadcasting of regional ads on national TV shows, which was allowed by the Federal Administrative Court (Bundesverwaltungsgericht) in Leipzig in 2014 and enshrined in the Interstate Broadcasting Agreement. The whole issue was faintly amusing to Internet company operators, who have been integrating targeted ads for specific users into major websites for years.
Pure media law is a thing of the past
The boom in data protection gives firms a welcome opportunity to add value to their practices and impress clients with their interface expertise. For complex issues concerning streaming services, this applied to Taylor Wessing, SKW Schwarz, Noerr, Osborne Clarke and Morrison & Foerster – partly due to their integrated practices and extensive IT expertise. Antitrust expertise, on the other hand, is more important for the issue of retransmission fees. Here Noerr, Hengeler Mueller, White & Case, Loschelder, McDermott Will & Emery and Redeker Sellner Dahs had the advantage.
Copyright law’s central position in media law is determined by the discussion over ancillary copyrights. Raue was particularly visible here (on the side of VG Media), but also Reed Smith for Yahoo, Taylor Wessing and Hengeler Mueller for Google, and Klinkert, which originally focused on music law, for 1&1.
DLA Piper, on the other hand, continued to provide extensive advice at the interface with unfair competition and public media law. In terms of regulatory law, the change to the Interstate Broadcasting Agreement could be a milestone for the advertising industry and distributors.
Staff changes altering the law firm landscape
DLA Piper also caused a stir when it poached Bird & Bird’s entire Hamburg media team around Dr. Stefan Engels, while SKW Schwarz made headlines twice: Dr. Martin Diesbach, a specialist in film and a figurehead at Noerr, joined SKW, and Dr. Daniel Kaboth left for the IP boutique Ampersand. Almost the entire media team at Olswang also changed loyalties: in October 2015 it opened the first German office of Greenberg Traurig.
The firms presented here specialize in advice to the film, TV and entertainment industries. In order to clarify the various specializations, there are three separate ranking tables. One is for contracts (between production companies, broadcasters and artists or record producers and marketing companies) and copyright issues. Another table shows firms specializing in media regulatory law, while a final one lists firms that are particularly active in transactions.
Firms that focus on advice to the telecommunications sector, which is closely connected to media, can be found in the chapter on ?telecommunications.
JUVE Law Firm of the year