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We are pleased to introduce our second media law newsletter. This newsletter identifies some of the key legal and regulatory developments affecting the media and entertainment industries in the UK and Europe. As before, we have included three important, recent developments in the media sector, and consider one of these in depth. We hope you enjoy it.
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Copyright on social media
In August, the Tribunal de Grande Instance of Paris reviewed the intellectual property clauses contained in Twitter’s terms and conditions. The dispute centred around the validity of the licence granted by users to Twitter and other users to use content they share on the platform. The court decided that the blanket transfer of present and future copyright contained in the terms and conditions was void under French law. We discuss this decision in more detail below.
Digital services tax
The UK Treasury announced on 30 October that it would introduce a “digital services tax” targeted at the largest social media platforms, online market places and search engines, i.e. the so-called “FAANG” companies. The 2% tax will be levied on revenues (rather than profits) exceeding £25m that are “linked” to UK users. The EU Commission also proposed new rules earlier this year attempting to find a way to tax large digital businesses that are currently paying relatively small amounts of tax in the EU despite having substantial operations and numbers of customers there. These proposals, led principally by the French government, have met significant opposition within the EU. In the absence of an international agreement, the UK government is attempting to lead the way with a UK tax. While 2% is fairly low in comparison with corporation tax (and there is intended to be a safe harbour for loss-making companies), the tax is still significant bearing in mind that those revenues could have little relationship to profits. Further, the rate will inevitably rise if the Treasury considers it to be effective at raising revenues and protecting the UK high street from online competition.
New Audiovisual Media Services Directive
On 6 November, the EU Council approved amendments to the Audiovisual Media Services Directive. The revised Directive obliges EU member states to implement rules extending obligations that previously applied only to broadcasters and video on demand services on video-sharing platforms (such as YouTube). Those obligations include:
- Protecting minors from content that might harm their development, including through, among other things, parental controls
- Improving the identifiability of marketing materials
- Protecting the public from unlawful, violent or harmful content and hate speech
- Introducing measures to allow for flagging inappropriate content.
The revised Directive also introduces a 30% quota of “European works” to be included in the catalogues of video on demand providers. Member states have until around September 2020 to implement the Directive. This is within the proposed Brexit transition period, which (if the transition period is agreed) is likely to mean that the UK will have to implement it. We will be discussing the new Directive in detail in the InDepth section of our December newsletter.
InDepth analysis – Paris Court reviews Twitter’s terms and conditions
In 2014, the Union Fédérale des Consommateurs – Que Choisir (“UFC”) (a French Consumer Association) applied to the Tribunal de Grande Instance of Paris for an order that various provisions of Twitter’s terms and conditions be declared void. In particular, the UFC challenged the licence of users’ copyright to Twitter. The decision was handed down in August this year.
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