Weekly Notes: legal news from ICLR – 15 August 2014

Posted on 15th Aug 2014 in Weekly Notes

With this week’s roundup of legal news from home and abroad we get into another Vine mess over copyright, we pit an unstoppable force against an immovable object, we question the value of victim statements and we look back in anger at the miscarriages of justice before the ending of the death penalty.

 

Another Vine mess…Football

The Premier League has rushed in where FIFA did not fear to tread – issuing its own warning to football fans against the posting online of unofficial videos, usually in the form of short Vine loops depicting goals and other key moments, in breach of copyright.

In an interview with BBC Newsbeat, Dan Johnson, director of communications at the Premier League, said:

“You can understand that fans see something, they can capture it, they can share it, but ultimately it is against the law.”

Vine is a smartphone app released by Twitter which enables users to share short, looping videos just like tweets. Fans can use their phones’ cameras at football matches, or when watching the match on TV, and if they catch a critical goal, or foul, or some other key moment, they can quickly upload it – often in advance of official media reporting of the match. In that sense it’s like uploading a bit of breaking news on Twitter; the difference is that the images may be covered by copyright. Apart from the length of what’s shown, it’s no different from uploading an illegal copy of a film or song. And the rights involved are valuable.

According to The Verge,

“Rights to Premier League goals are tied up in lucrative contracts with British newspapers The Sun and The Times, so a lot of money is at stake for the companies involved. Sky Sports and BT Sport in the UK pay £1 billion per season to broadcast some Premier League games live. The Premier League’s warning comes just days after Manchester United banned tablets from its stadium, resulting in a hostile week for tech and soccer enthusiasts.”

Though the Premier League have got involved now as the UK season begins, the problem was confronted in its global dimension by FIFA during the World Cup last month, as reported on c|net: Vine in the cross-hairs as FIFA, ESPN seek World Cup takedowns.

However, the intellectual property blog IPKat has now posted the question: Uploading goal videos online? A copyright breach, says FAPL. Is it? wondering (by reference to Football Association Premier League Ltd v QC Leisure (Joined Cases C-403/08 and C-429/08) [2012] Bus LR 1321; [2012] All ER (EC) 629;  [2011] WLR (D)  286, ECJ Vine posters may be able to rely on the “news reporting” exception:

Overall, despite being arguable that copyright subsists in goal videos, it would seem equally arguable that those uploading them onto social media might be able to invoke the news reporting exception successfully, of course provided that their dealing is fair, ie limited to reporting the newsworthy moment, which is the scoring of the goal, and not other moments.

[With apologies to Vine for not very fair dealing with its logo on a football.]

 

More monkey business…

Last week’s story about the black crested macaque who took a selfie using David Slater’s camera, creating a picture whose copyright is in dispute (though the balance of opinion seems in favour of its being in the public domain) has continued to generate comments.

You can now register your views in a sidebar poll by the 1709 blog, Who owns the copyright to THAT macaque selfie? Here’s our new poll.

It turns out the 1709 blog got onto the story much earlier than everyone else, having blogged on it back in July 2011, with a post entitled: Monkey See, Monkey Do, Monkey get Copyright, too?

More recently the IPKat blog commented with The Case of the Black Macaque.

 

Victim-centric justice

According to a judge’s off-hand remark accidentally captured on microphone, victim impact statements make no difference to parole decisions.

The Guardian reported that Judge Graham White’s remark was overheard by the family of a murder victim and he was obliged to apologise for the upset it caused them. But he added that while the statements had an impact they did not affect the parole board’s assessment of the prisoner’s risk.

According to the CPS guidance on Victim Personal Statements (VPS), The purpose of a VPS is to:

• give victims a more structured opportunity to state how the crime has affected them – physically, emotionally, psychologically, financially or in any other way;
• allow victims to express their concerns in relation to bail or the fear of intimidation by or on behalf of the defendant;
• provide victims with a means by which they can say whether they feel that the crime was racially motivated or that their age, gender, faith, sexuality or disability played a part in the crime;
• provide victims with the opportunity of stating whether or not they wish to claim compensation or request assistance from Victim Support or any other help agency;
• provide the criminal justice agencies with a ready source of information on how the particular crime has affected the victim or in the cases of homicide, the family of the victim; and a practical way of ensuring that the sentencing court will consider, (in accordance with s.143 of the Criminal Justice Act 2003), “any harm which the offence caused”.

The incident has prompted wider questions about the involvement of victims in the Criminal Justice System. This is something we plan to write about more fully in due course. Meanwhile, Dan Bunting, writing in Halsbury’s Law Exchange on 5 August  – Are Victim Impact Statements worth the paper they are written on? – observed:

Over the last 20 years (driven in part by European legislation, not that you would ever hear that from the Government) there has been a drive to ever increasing involvement of victims in the Criminal Justice System. Whether that is a good or a bad thing is probably a matter for another day, but it does raise an important question – “do Victim Impact Statements ‘work’”?

His answer is, we don’t really know, because we haven’t done the necessary research.

 

No noose is good news

The death penalty has been in the news this week marking the 50th anniversary of the last time it was actually carried out in this country (on 13 August 1964).

The Guardian reported that a YouGov poll had been carried out to see how many members of the public still support the idea – the answer was 45%, but this was lower than the figure of 51% four years ago, when the last such poll was carried out. (In case it is of any interest, or perhaps to confirm what you might expect, it transpires that The strongest support for a re-introduction was among Ukip voters, the over-60s and those in lower social grades.)

Opponents of the death penalty point to the number of cases where miscarriages of justice have later come to light. One such case, that of Timothy Evans, hanged in 1950 and later pardoned in 1966, was the subject of proceedings in the Administrative Court ten years ago, when Edward Fitzgerald QC of Doughty St Chambers (who more usually appears in the Privy Council on behalf of live but condemned prisoners subject to the death penalty in Caribbean states) argued on behalf of the Evans family that the Criminal Cases Review Commission ought to refer the conviction to the Court of Appeal to be overturned (see BBC: Hanged man’s pardon ‘inadequate’). The application was refused, on the ground that any detriment suffered by the family had already been rectified not only by the subsequent pardon but also by the substantial compensation which had later been paid: see Westlake v Criminal Cases Review Commission [2004] EWHC 2779 (Admin).

The case is of particular interest because the deaths of Evan’s wife and daughter, of which he was exonerated, had taken place at 10 Rillington Place, not far from the famous Portobello Road street market in Notting Hill, at the same address where the notorious serial killer, John Christie lived in a downstairs flat. As well as a string of other murders, it appears that Christie probably committed those attributed to Evans, in whose trial Christie appeared as a witness, though Christie (when eventually caught and tried some years later) was not specifically convicted for them. The Christie murders were the subject first of a book by Ludovic Kennedy and later a gruesome film (starring Richard Attenborough), entitled simply “10 Rillington Place”.

The house – indeed the whole street – was later demolished and redeveloped as part of Notting Hill’s regeneration. It’s actually just round the corner from the flat where, for about ten years, the present author once lived, until the place got too gentrified and posh and lost all its carnivalesque raffishness and charm.

The death penalty was finally abolished in December 1965.

See also: Sex crimes, murder and the death penalty: “A Matter for the Jury”, by Peter Murphy

 

A level playing field

Law degree bum

Students in England’s schools got their A level results this week and began the process of matching their ability with a university course of their choice. The Lawyer is reporting (log-in required) (Door still open for students gunning for top law universities) that several Russell Group universities still have LLB places available. 

But for those thinking of applying, one piece of advice may well be timely: is your law degree really necessary?

With legal aid cuts biting deeper each year, and with what seems to have been a massive expansion in the number of law courses available, commentators have been suggesting that there are simply too many lawyers about. In short, the market is saturated.

In an episode of  Law in Action last year, Joshua Rozenberg questioned

law graduates who spent tens of thousands of pounds training to be lawyers, only to find the essential training contracts which would seal their career were in short supply. Should the regulatory bodies and law schools be more open with prospective students about the odds of finding work? And could they be more selective when it comes to choosing who can undertake professional exams?

It’s a problem by no means confined to this jurisdiction; indeed, there appears to be a similar issue even in the notoriously litigious USA, resulting in what might be termed a pre-career redundancy situation, as this report in The Atlantic on The Law School Scam:

For-profit law schools are a capitalist dream of privatized profits and socialized losses. But for their debt-saddled, no-job-prospect graduates, they can be a nightmare.

The picture comes from the Atlantic’s tweet of this article and is reproduced with gratitude (and some trepidation given the number of copyright stories we’ve run).

 

Law in the world

Brazil

The Public Prosecutor’s Office in the Brazilian state of São Paulo is investigating why women are being asked to either submit to gynecological tests or, in some cases, prove their virginity in order to apply for state jobs.

Full story: Huffington Post 

 

China

The authorities in a city in the western Chinese region of Xinjiang have banned long beards and apparel with Islamic symbols on public buses as part of an effort to increase security and ensure stability, according to the New York Times.

The ban …  is directed at “five groups of people,” said The Karamay Daily. These are anyone wearing headscarves, veils, hijabs or clothing bearing the crescent moon and star traditionally associated with Islam, as well as men with long beards. The ban will be in place until the conclusion of a local sports competition on Aug. 20, the newspaper said.

If you can read or translate from the (simplified) Chinese, here’s a link to the Karamay Daily.

 

Ireland

What happens when an unstoppable force meets an immovable object?

Here’s an example. At the end of last month a US judge ruled that Microsoft must comply with an order to turn over a customer’s emails and other personal information to the US Government (aka Unstoppable Force). But the information is being stored in a data centre in Ireland, and to do so would be contrary to EU law (aka Immovable Object).

The issue has arisen because a data service can be provided in one place, subject to one law, while the data itself remains in another, subject to a different law.

Brad Smith, Microsoft’s top lawyer, said in a statement.

“We will appeal promptly and continue to advocate that people’s email deserves strong privacy protection in the U.S. and around the world.”

Via CaseCheck, citing

eWeek: Court Orders Microsoft to Turn Over Data in Ireland Email Case

Forbes: US Judge Insists Microsoft Break EU Law To Obey US Law Over Email In Ireland

My money’s on the immovable force. No, the unstoppable object. No… oh crumbs. Which was it now?
Ah yes, I remember:

When the force is unstoppable, immovability is no object.