While a lot of local authorities will already have started thinking about drafting a statement it will require a lot of input from both officers and members and will need to be approved by the full authority. This approval is aimed at making the authority more accountable to the local tax payers with the hope that the gap between the highest and lowest earners will reduce.

The policy must be applied from 1 April 2012 and it will be interesting to see if the government’s wish to effectively “cap” the pay of the most senior officers will come true.

Posted by Anja Beriro, who specialises in : local authority law, public sector procurements, commercial agreements, projects and shared services; clients: local authority and private sector bodies

Anja Beriro
0115 976 6589
aberiro@brownejacobson.com

The DCE is proposed as a solution to the problem of the collapsing value of creative content – which can be electronically replicated and shared – by creating a cheap and efficient online copyright licensing system. The Government hopes that this will harness the growth potential of creative industries and make the UK a leader in digital copyright services.

However, there was a note of uncertainty from Baroness Wilcox, the intellectual property minister, who indicated that it was still to be determined if the DCE was a “workable proposition.” Updating copyright law for the digital age will be complicated and, whatever the government’s decision, Hargreaves’ proposed completion date of the end of 2012 looks increasingly ambitious.

Dave Drew
0115 976 6226
ddrew@brownejacobson.com

The 57th version seeks to bring uniformity and clarity to the meaning of “more advantageous” and “at least as advantageous” in Part 36. In recent cases judges have been seen to use their discretion leading to inconsistency in their decision making when it comes to awarding costs following an unaccepted Part 36 offer.

From 1st October, “more advantageous” means “better in money terms by any amount, however small”. And “at least as advantageous” shall be “construed accordingly.”

The amendment will provide a clearer cut approach to the costs rules, and it is hoped that the change will reduce the number of appeals bought forward regarding costs.

CPR.14(2)(a) provides that the normal cost consequences of Part 36 do not have to apply following judgment if it is unjust for them to do so. It remains to be seen as to whether parties will seek to rely on this aspect of the Part despite the clarity provided, if for example, the award is better in monetary terms by a nominal amount.

Posted by Nichola Evans, who specialises in professional indemnity work, directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.

Nichola Evans
020 7337 1019
nevans@brownejacobson.com

Miffy, a small white female rabbit, was created in 1955 by Dick Bruna. Cathy, also a small white female rabbit, was created by Sanrio in 1976.

In 2010 Mercis Media BV (Mr Bruna’s copyright management firm) brought trademark and copyright infringement proceedings against Sanrio. Why it took Mr Bruna 34 years to bring proceedings is unclear…

Sanrio was ordered to stop production, sale and marketing of Cathy character goods in the Netherlands, Belgium and Luxembourg and to pay €25,000 per day if it did not comply, up to a maximum of €2m.

Sanrio appealed and filed a counter claim seeking the Miffy trade mark be removed from the register.

The matter has now been resolved, with Sanrio agreeing to no longer use the Cathy character. Both parties have also agreed to donate €150,000 jointly to the victims of the Japan earthquake. A very commendable settlement indeed.

Oliver Laing
0115 908 4854
olaing@brownejacobson.com

Sportradar, the European-based defendants, provide “live scores” data to UK companies including bet365.

One issue involved “database right”. “Extraction” or “re-utilization” of a qualifying database would infringe this right, and re-utilization as defined includes “transmission”. As UK database right only covers acts within the UK, was Sportradar’s provision of data over the internet (from Austrian servers) extraction or re-utilization within the UK?

Dataco argued that a transmission needs both a sender and receiver, so takes place in both countries. Sportradar says “transmission” occurs only where the data is sent.

Although Sportradar’s view suggests defendants could escape liability just by having overseas servers, theirs is surely the only practical interpretation, given that finding otherwise could mean website proprietors having to comply with copyright laws worldwide.

The Court of Appeal referred the question to the ECJ. You could say all bets are off…

Laura Phillips
0115 976 6182
lphillips@brownejacobson.com

Steve Coogan and Andy Gray have requested that private investigator Glenn Mulcaire reveal for whom he was working when he allegedly hacked into the voicemail on their mobile phones.

This is not the first time that The News of the World journalists have been linked to phone hacking. Reporter Clive Goodman was jailed in 2007 for pleading guilty to phone message interception charges.

The court’s decision as to whether to grant the request for information has been adjourned until 31 January to allow the claimants to submit statements on the calls they claim were intercepted. We can only hope that, if breaches of privacy laws are proved, the Court continues to take a firm stance.

Oliver Laing
0115 908 4854
olaing@brownejacobson.com

The system was introduced to ensure that ordinary UK citizens would in the absence of being able to obtain public assistance still be able to take proceedings to defend their position in a whole range of areas

In this instance Miss Campbell is no ordinary UK citizen but a millionaire with the ability to pay her lawyers.

The system was never designed to be abused by the super-rich in libel and defamation cases and so the decision of the ECHR on the facts of this case is absolutely right.

The legal profession needs to take a reasonable and sensible approach to how we approach these arrangements and if we don’t do so soon this essential aid ensuring that all have at least the opportunity to defend their position will be gone forever!

Posted by Declan Cushley, who specialises in intellectual property dispute resolution involving infringement and validity of patents, trade marks, designs and copyright, as well as reputation management and domain name disputes.

Declan Cushley
0121 237 3993
dcushley@brownejacobson.com

It is not necessary for a publisher to have identified the matters on which comment is based in sufficient detail to enable a reader to judge for themselves whether the comment is well founded. Instead, an honest comment  ”must explicitly or implicitly indicate, at least in general terms, the facts on which it is based” so that “the reader can understand what the comment is about and the commentator can, if challenged, explain…”. However, a defendant is not permitted to get support from facts that were not referred to by the comment, or facts that the defendant did not know when he made his comment.

This clarification allies the defence more closely with the realities of publication on the internet, in editorials and in blogs, and makes a little progress towards the more robust reform position currently proposed in the Defamation Bill. The ruling will please publishers and proponents of free speech – but on the other hand, it might make the judicial process for persons defamed in unbalanced attacks more difficult.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

In the case of Football Dataco Limited and others v Sportradar, the claimants ran a site which exploited certain data relating to English and Scottish football matches. Sportradar ran a similar site hosted on webservers in Germany and Austria. Dataco argued that when the British public viewed Sportradar’s site, this infringed Dataco’s UK copyright and database rights. The High Court disagreed.

Whilst this decision does clarify the law on this point, it does not particularly assist in aiding the prevention of online infringement. In fact it may influence some operators to host infringing data on servers in selectively sourced countries…thereby making the protection of intellectual property rights in relation to the internet even more difficult than it already is.

Holly Mitchell
0115 908 4886
hmitchell@brownejacobson.com

Thiercelin asserted that CyberDeal had registered the domain name in question in bad faith in order to prevent him from reflecting the trade mark in a corresponding domain name. However, the Centre declared that as CyberDeal had registered the domain name well before Thiercelin registered his trade marks or acquired common law trade mark rights and, as there was no evidence that CyberDeal had been aware of Thiercelin’s plans to use the trade mark at the point of registration, the claim had been brought in bad faith constituting an abuse of the administrative proceedings. Thiercelin was attempting to use the complaints process to deprive a registered domain name holder of a domain name – Reverse Domain Name Hijacking . So brand owners think before complaining – are you a hijacker?

Posted by Sara McNeill, who specialises in non-contentious intellectual property matters, including licensing, franchise, collaboration and development arrangements and IP audits and strategy; experienced in drafting and advising on commercial agreements.

Sara McNeill
0121 237 3930
smcneill@brownejacobson.com

The judge recognised that any definition of “defamatory” must incorporate some qualification or threshold of seriousness, so as to exclude trivial claims. He preferred the following definition: 

“the publication of which he complains may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do”.

This interpretation provides defendants with another weapon in their armoury. Plus in an increasingly pro-publisher environment, coupled with the prospect of claimants not being able to recover success fees and ATE insurance premiums from defendants, it may make potential claimants think twice before commencing an action.

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com

Omega Engineering argued that Omega SA had no right to oppose its application to register OMEGA in respect of certain goods since it had expressly agreed not to do so under a co-existence agreement between the two parties. Omega SA argued, amongst other things, that the co-existence agreement was irrelevant to an objection made on relative grounds. Mr Justice Arnold disagreed stating that it would be unjust if a party who had consented to the registration of a trade mark could successfully oppose the application to register it.

This has to be the right decision otherwise the usefulness of co-existence agreements would be severely threatened.

Posted by Sara McNeill
0121 237 3930
smcneill@brownejacobson.com

Publishers welcomed the move but the oncoming election has led to the reforms being derailed. A number of MPs have also openly opposed the reforms because the proposals would not adequately protect the “little guy” who sues the publisher. Does this mean these same MPs disagree with the conclusions and recommendations of the Jackson report? It is only a matter of time before defendants are given greater protection against liability to pay success fees and after-the-event insurance premiums in defamation cases, and publishers will feel that not passing this legislation is an opportunity missed.

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com