News and Events 2011

Appointment of Compliance Officer for Finance Administration ("COFA") and Compliance Officer for Legal Practice ("COLP") - October 2011

Jenny Cooper and Rosanna Cooper were recently appointed as the firm's COFA and COLP respectively. Congratulations to them both. Further information about the roles can be found here.

Legal News

Intellectual Property – Media Law – Entertainment lawyers - Copyright – Duration of Copyright – Sound Recording – Performances - September 2011

The Council of the European Union, specifically the General Affairs Council, has adopted a Directive extending the term of copyright protection for performers and sound recordings from 50 to 70 years.

The previous terms were embodied in Article 3 of The Copyright Term Directive (Directive 2006/116/EC).

This change has been in the pipeline for some time with the European Commission publishing a proposal to extend the term of protection from sound recordings from 50 years to 95 years (like the US term of protection) in July 2008. One of the proposals was that the term of protection of a musical composition expire 70 years after the death of the last surviving author, be it the author of the lyrics or the composer of the music.

Previously, the UK government rejected an extension of copyright protection for sound recordings and both the Gowers Review on Intellectual Property and the Hargreaves report concluded there was no economic case to support an extension and a lack of evidential support for the proposal, respectively. Furthermore, many believe the new Directive will not help lesser-known artists because any extra income would be highly skewed towards the small number of very successful artists whose work continues to sell more than 50 years after it was recorded. More

Commercial Law – Arbitration Available in Unfair Prejudice Petitions – Sports Law - The Football Association Premier League Ltd - July 2011

The case of Fulham Football Club (1987) Ltd v Richards and another [2011], concerned an unfair prejudice petition by Fulham Football Club (1987) Ltd (“Fulham”) against Sir David Richards (“Richards”), the chairman of The Football Association Premier League Ltd (“the Association”), and against the Association, under s 994 of the Companies Act 2006 (“the Act”). The petition related to the allegation by Fulham that Richards had interfered with the negotiations for the transfer of Peter Crouch from Portsmouth City Football Club to Tottenham Hotspur Football Club, when Fulham had put in a higher offer for the player. More

Regulatory Law – Food Laws – Product Liability – EU Legislation on Food Labelling - July 2011

On 6 July 2011, MEPs approved the new EU food labelling rules.

According to MEP Renate Sommer (EPP, DE), “the new rules are supposed to provide more and better information to consumers so they can make informed choices when buying.” More

Media and Entertainment law: News of The World Phone Hacking Scandal – 8 July 2011

Senior Solicitor, Tunde Oyedele, was asked by Radio France International, to comment on the recent News of the World Phone Hacking Scandal. The commentary was broadcast to weekend listeners across Europe and Africa and touched upon the background and implications of the News of the World’s actions. See: http://www.english.rfi.fr/europe/20110708-british-pm-announces-inquiry-phone-hacking-scandal.

Conference: Compliance Hub – ‘Compliance in the New World’ - 30 June, 2011, Chandos House, London, UK

Dr Rosanna Cooper and Tariq Sayfoo conducted two workshops on (i) Internet Law and (ii) Data Privacy. The workshops were tailored to those operating in healthcare compliance and the attending delegates included a host of pharma companies, agencies and healthcare professionals.

Some of the topics discussed include:

Online obligations of Pharma;
Trade marks;
Trade libel;
Advertising on the internet;
E-marketing;
Data protection principles;
Confidentiality of data;
Backing up of data;
Data security;
Website cookies;
Data sharing;
Best practice compliance; and
Case studies addressing specific issues relating to the topics discussed.

Sports Law: Alex McLeish resigns as manager of Birmingham City FC amid breach of contract claims - June 2011

Between Monday 13th and Wednesday 15th June 2011, Tunde Oyedele of our offices was a legal analyst for BBC Radio 5 Live, both on the London and Birmingham broadcasts, in relation to the resignation of Alex McLeish from Birmingham City F.C., and his subsequent appointment as manager of their local rivals, Aston Villa F.C. Amongst other issues, Tunde was asked to comment on the legal implications of Alex McLeish and Aston Villa’s actions, as well as the likely outcome of any legal action threatened by Birmingham City F.C.

Data Protection – Data Sharing – Personal Data – Information Commissioner’s Office - June 2011

A Data Sharing Code of Practice (“the Code”) was launched by the Information Commissioner’s Office (“ICO”) to provide organisations within both the public and private sectors, with guidance on how they may share personal information legally.

This is a statutory code prepared and published by the Information Commissioner under Section 52 of the Data Protection Act 1998 (“DPA”), but is not law – merely the ICO’s advice on good practice. Despite this, the Code can be used as evidence and/or taken into account by the courts in any legal proceedings. It therefore carries much weight and should not be blindly dismissed.

Data controllers involved in the sharing of personal data. Under the DPA, a ‘data controller’ is a person who determines the purposes for which and the manner in which any personal data are, or are to be, processed.

Data sharing is taken to mean the disclosure of data from an organisation to another or to different departments within an organisation.

The Code makes clear that data sharing can take a variety of forms ranging from obvious information sharing to pooling and covers routine and one-off sharing. Organisations should be cautious of the fact that their operations may involve data sharing even where this is not apparent on the face of it. More

Internet Law - Digital Economy Act - Copyrights - Intellectual Property – Human Rights - May 2011

Further to our recent legal update relating to the Digital Economy Act (“DEA”), there have been some developments with regards to the DEA’s anticipated “three strike rule”.

DEA “three strike rule”

In its current form the DEA requires ISPs to provide an anonymous infringement list to the copyright owner on request, if the copyright is infringed on more than 3 occasions in a 12 month period. ISPs could potentially be forced to suspend and slow down internet access of online copyright infringers.

A violation of human rights?

According to a report from the United Nation’s Human Rights Council, laws which threaten to cut off internet access to illegal file sharers violate fundamental human rights.

Countries such as the UK and France (which have already adopted the three strike system) are urged to repeal any such system. France’s Hadopi system includes a more explicit net disconnection clause for persistent infringers when compared to the UK’s vague DEA provisions – which refer to the imposition of “technical obligations” on ISPs. More

Media and Entertainment Law: Super injunctions granted to Celebrities – 20 May 2011

Senior Solicitor, Tunde Oyedele, was asked by Channel One Russia, the largest TV channel in the country, to clarify the ambiguity and complexity surrounding super injunctions. In a short broadcast for the lunchtime news snippet, Tunde was able to clarify the concepts of injunctions, super injunctions and their significance in relation to social media platforms such as Twitter and Facebook. See: http://www.1tv.ru/news/other/177568

Employment Law – New Minimum Wage Proposals Accepted - April 2011

Following detailed recommendations in a report by the Low Pay Commission in April 2011, the Government has announced that it will accept proposals for increases to National Minimum wage rates, which will take effect from 1 October 2011.

Unions and employee interests groups have welcomed the intervention, whilst the proposals have received mixed-feedback from employers.

A summary of the increases are as follows:

· The adult rate will increase from £5.93 to £6.08 an hour. More

Legal Alert: Employment Law - Changes to Statutory Sick Pay - Unfair Dismissal – Flexible Working Time - April 2011

From 11 April 2011, the following changes to employment payment rates will take effect:

Statutory Sick Pay will increase from £79.15 to £81.60;
The standard rates applicable for (i) Statutory Maternity Pay, (ii) Statutory Paternity Pay and (iii) Statutory Adoption Pay, will increase from £124.88 to £128.73; and
Maternity allowance will increase from £124.88 to £128.73.

Internet Law – E-Commerce – E-Privacy – Cookies – Directive 2009/136/EC – Data Protection – Privacy Policy - April 2011

In December 2009 the E-Privacy Directive (2002/58/EC) was amended by Directive 2009/136/EC. This was partly due to the nature of third party cookies and the growing perception that their existence could amount to an invasion of personal privacy.

Need for Consent

According to Recital 66 of Directive 2009/136/EC, website owners can only use cookies if they provide users with “clear and comprehensive information” about their purposes and the user consents. The Recital provides for an exception to this obligation where the use of cookies is “necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the…user”. An example of this (as already mentioned) is where the use of cookies is necessary to online shopping websites in respect of a user’s shopping cart. More

Advertising – Misleading Advertising – Trading Standards – Advertising Standards Authority – Consumer Protection from Unfair Trading Regulations 2008 – Committee for Advertising Practice Code - March 2011

Two brothers, Victor and Henry Mears, ran the Lapland New Forest attraction which was quickly closed due to the high volume of complaints. The brothers failed to deliver the “…amazing snow-covered Lapland village” they had promised consumers. Judge Mark Horton described the ‘attraction’ as “something that looked like an averagely-managed summer car boot sale”.

The trial was recently brought by Dorset Trading Standards and the brothers were found guilty on eight charges under The Consumer Protection from Unfair Trading Regulations 2008 (“Misleading Regulations”), relating to misleading advertising. Consequently, the brothers were disqualified as company directors for five years and most notably, have been jailed for 13 months each. More

Intellectual Property – Patents – Generic Products – Pharmaceutical Products – “Clear the way” – English Patents Court - March 2011

The recent decision in the case of Cephalon Inc v. Orchid Europe [2011] may be the first signs that the UK are about to remove the burden on generic pharmaceutical companies to “clear the way” before launching a generic pharmaceutical product.

What is “clearing the way”?

The concept of clearing the way concerns instances where generic pharmaceutical companies are about to launch generic pharmaceutical products and the patent owner seeks to prevent this (usually by injunction).

Those generic pharmaceutical companies are required by the Court to show that they have attempted to clear the way by using the procedures for revocation and/or declaration of non-infringement. This ensures that when the generic product is launched, all the problems of an interim injunction are avoided. Otherwise, the Court is entitled to/may draw adverse inferences.

This differs to the general rule in patent litigation where if a potential defendant anticipates it is about to be sued, there is no obligation upon it to seek a declaration of non-infringement and/or revocation and no adverse inferences will be drawn.

The process of clearing the way is a cumbersome and risky one for generic pharmaceutical companies as they must make the tough commercial decision of either. More

E-commerce – Advertising – Advertising Standards Authority – Online Advertising – Comparative Advertising – Misleading Advertising – Misleading and Comparative Advertising Directive - March 2011

Since 1 March, 2011 the Advertising Standards Authority’s (“ASA”) remit has been extended so as to allow the organisation to regulate marketing claims made by businesses on their websites, or on other non-paid sites e.g. facebook or twitter. The ASA were still able to regulate advertising placed online prior to this and did so primarily by pre-publication vetting of advertisements and restricting access of media space for future advertisements. More

Intellectual Property – Trademarks – Trademark Infringement – Advertising – Comparative Advertising – Malicious Falsehood – Misleading and Comparative Advertising Directive - March 2011

In the recent case of Kingspan v Rockwool [2011],the High Court ruled on whether comparative advertising satisfied the Misleading and Comparative Advertising Directive 2006/114/EC (“MCA”) (implemented by the Business Protection Regulations 2008).

Comparative Advertising

Under the Comparative Advertising Directive, lawful comparative advertising does not infringe a registered trade mark and will not amount to trade mark infringement.
The purpose of the Comparative Advertising Directive is to stimulate competition to the consumer's advantage while prohibiting unfair practices that are detrimental to competitors or consumer choice (Lidl v Vierzon)

Facts

Kingspan manufacture insulation materials made of plastic foam.
Rockwool manufacture non-combustible stone wool insulation materials.
Rockwool’s advertisements showed the performance of the parties’ insulation materials in fire-growth tests in comparative terms. Rockwool’s aim was to demonstrate the difference between combustible and non-combustible insulation products.
The advertisements took the form of road shows featuring small-scale fire demonstrations to an industry audience and marketing DVDs of footage of large-scale fire tests. More

Intellectual Property - Patents - Invalidity Proceedings - Patent Infringement - February 2011

In the case of Nokia GMBH and another v IPCom GMBH & Co KG [2011], the Court of Appeal dismissed the defendant’s appeal, ruling that the defendant’s patents were invalid.

The defendant has patents in respect of various mobile phone technology. The defendant and claimant were at one point in negotiations whereby the defendant was intending on granting the claimant licences for the use of such patents. Negotiations failed as the claimant refused to pay the licence fees.

As a result, the defendant brought an action in Germany for patent infringement against the claimant. The claimant in turn brought revocation proceedings against the defendant's patents in both the UK and Germany. In the UK the claimants commenced revocation proceedings for 15 of the defendant’s patents. There were 2 European patents included (the synch patent and the access rights patent). More

Data Protection, Organisations are being fined for violating the Data Protection Act - January 2011

In April 2010 the UK Information Commissioner’s Office (“ICO”) was bestowed with extended enforcement powers designed to deter personal data security and other breaches.

Fines were issued for the first time by the ICO on the 24th November 2010. These were as follows:

Hertfordshire County Council received a penalty of £100,000 after negligently releasing sensitive personal information to unintended recipients on two occasions.

The council accidentally sent 2 faxes to wrong recipients. The first was meant for barristers’ chambers and was sent to a member of public. The second was mistakenly sent to barristers’ chambers unconnected with the case.

The ICO felt the level of fine sufficiently reflects the fact that the Council’s procedures failed to stop two serious breaches and the council did not take sufficient steps to reduce the likelihood of another breach occurring. More

Employment Law – Maximum Award by Tribunal – Employment Tribunal –Unfair Dismissal- Redundancy Pay. January 2011

As from 1 February 2011 the Tribunal compensation limits will increase. The new rates will apply where the event giving rise to compensation occurs on or after this date.

Maximum compensatory award for unfair dismissal – £68,400 (from £65,300)
Maximum weekly pay for calculating statutory redundancy pay - £400.00 (from £380.00)

Sports Law - Liverpool FC: Former part owner of Liverpool FC, Tom Hicks, has failed in his petition for leave to sue Royal Bank of Scotland (RBS) and the former directors of Liverpool FC in the US - 17 February 2011

In October 2010, we reported that Tunde Oyedele from the Sports Law team was asked by Ominsport (part of the Perform Group), to comment on the decision of the High Court to rule against Tom Hicks and George Gillett in their efforts to remove Christian Purslow and Ian Ayre from the Board of Directors of LFC, and thereby influence the subsequent sale of LFC.

The sale of the Football Club went ahead in October 2010 for a figure reportedly in the region of £300,000,000. Mr Hicks and Mr Gillett are seeking damages in the region of $1bn (£620,000,000) from RBS and the former directors of the football club but, in the High Court today, their application for leave to bring an action in the US was denied.

More

RT Coopers have been awarded Lexcel - January 2011

We are pleased to announce that the firm has been awarded Lexcel Accreditation. The Lexcel quality mark assures our clients and potential clients that we provide a quality service.

Lexcel is the Law Society's practice management standard. It is a scheme to certify that we have met certain standards following independent assessment. The Lexcel practice management standard is only awarded to solicitors who meet the highest management and customer care standards. In order gain Lexcel Accredition we had to undergo a rigorous independent assessment to ensure we met the required standards of excellence in areas such as client care, case management and risk management.

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