Government of the Russian Federation s1

Government of the Russian Federation

National Research University Higher School of Economics

Faculty of Media Communications

Department of Media Production and Creative Industries

Curriculum

«Entertainment Law»

Lecturer: PhD, Associate Professor Elena Sherstoboeva

Approved by section EM Approved at meeting of Department of Media

Journalism Production and Creative Industries

Chair Head______Head of department______I.V. Kiriya «____»______2013 г .

Approved by Academic Council of «____»______2013 г . Faculty of Media Communications

Academic secretary______

«____»______2013 г .

Moscow, 2013 PROGRAM CURRICULUM NOTES

This course is specially designed for students proposing to work or establish business in the entertainment industry. The course aims to develop the understanding, through lectures and case studies, the main legal trends and issues existing in the entertainment field (music, film, television, publishing and online entertainment industries) in Russia and other countries. Students explore the impact of the law upon creative work and are given the practical skills necessary to succeed in a career in the entertainment sphere. They have an opportunity to examine legal problems arising from the multistage processes of production, distribution and exhibition of entertainment media products and services (scripts, TV-shows, songs, performances, etc.). The course is mainly focused on entertainment contracts and intellectual property protection. In the course of studying, students learn about practical strategies for protecting and exploiting rights to creative works properly. It examines the requirements for copyrightability, the bundle of rights that make up copyright, fair use and other exceptions and limitations to copyrights, copyright ownership and transfer, moral rights, copyright duration, possible limitations to copyright holder rights and liability. It involves the discussion of some arguable questions in this area, for instance, the legal status of TV- formats and the law of ideas. Students will also learn how to express their views in creative work without fear of consequence. The present course covers various aspects relating to the regulation of entertainment speech with a strong emphasis on the right of privacy, and defamation, blasphemy and obscenity aspects in creative works. Practical necessity of the course is directly connected with the specifics of the entertainment industry and its rapid evolvement. It has strongly been changing under the influence of digitalization, convergence of platforms, and development of multimedia, to name a few. The entertainment industry lacks professionals, who not only have creative talent but who are able to promptly produce entertaining content of high quality, without breaching alien rights and protecting their own. ‘Entertainment Law’ is a course on student’s choice, and it has been created for students from various faculties regardless of their specialization. This course is absolutely unique for Russian university education which is caused by the relative newness of the entertainment industry in Russia. Such courses are successfully run at many universities abroad, especially in the USA (for instance, UCLA School of Law, USC Gould School of Law, Harvard Law School, Stanford Law School, etc.) and in the UK (the University of Westminster School of Law), and their experience has been taken into account while preparing this curriculum. It is also based on the courses «Legal Aspects of the Media», «Information Law», «Management of Rights» teaching at the Faculty of Media Communications of the HSE and «Basics of law and management on TV» at the Faculty of Journalism, Lomonosov MSU. The author of this course is a practitioner who has been working as a senior lawyer in the entertainment area. She headed legal departments of various TV-channels and production companies in Russia and is well aware of practical problems in the entertainment industry. Thus, this course combines the academic analysis and commercial practice elements of entertainment law. The course is designed for 32 contact hours. A form of control is a written test. As part of the course, students also prepare reports based on the analysis of a specific case in the entertainment field and present them in oral form at seminars.

Course objectives At the completion of the Entertainment Law course, the students will:  Understand the legal aspects of the processes of production, distribution and exhibition of entertainment media products and services;  Know the special rules that apply to the protection of creative works (including titles and characters);  Know when it is necessary to conclude entertainment contracts and what are the necessary contractual provisions (copyright, the right of privacy issues);  Be able to give a preliminary assessment of the provisions of entertainment contracts and understand what should be amended;  Be able to discern the distinction between the role and legal status of a TV or film producer and an author;  Know the process of obtaining rights, as well as the clearance process for an entertainment project and how to deal with author societies;  Know how to establish remedies for the breach of an entertainment contract and how to avoid a finding that the claimed damages are speculative;  Be able to identify and evaluate risk of legal claims as part of that process;  Understand the meaning of the notions ‘freedom of expression’, ‘freedom of creativity’, and ‘censorship’ as well as of the other key for creative process legal notions;  Understand the scope of the restrictions of freedom of expression in creative works;  Know about the restrictions on the dissemination of obscene materials and information which is harmful to children;  Know how to classify content according to the law on protection of children from information harmful to their moral and physical health;  Know the meaning of the notions ‘defamation’, ‘libel’, ‘slander’, and ‘business reputation’;  Understand the concept of defamation (including defamation of religions) in the context of creating humoristic and satirical content;  Understand the scope of the right to privacy of celebrities and the conception of «public interest»;  Be able to review entertainment content for compliance with legislation;  Understand how to express themselves when creating entertainment content without fear of legal consequence.

Grade Determination

This course includes seminars (discussions and case-studies) and a final test exam. Percentages for all kinds of activities is as follows:  Attendance – 40 %;  Seminars - 30%  Test - 30% The formula is: (the grade for attendance)* 0.4 + (the grade for seminars) * 0.3 + (the grade for the test) * 0.3 = final grade.

1. Forms of the educational process:  Carrying out lectures;  Conducting seminars;  Self-study of students.

2. Distribution of hours

№ Contact hours Title of the topic Total hours Lectures Seminars Self-study 1 Theoretical foundations of the right to freedom of expression and the right to creativity 4 2 0 2 2 Privacy and confidentiality in the entertainment industry 8 2 2 4 3 Defamation, obscenity and blasphemy in creative works 12 4 2 6 4 Copyrights in the entertainment industry 20 6 4 10 5 Exploitation of copyrighted work: copyright agreements 12 4 2 6 6 Copyright infringements 8 2 2 4 Total 64 20 12 32

Main reading: 1. Biederman, D.; Lionel S. International Entertainment Law. - Westport: Praeger Publishers, 2003. 2. Biederman D., Pierson E., Silfen M., Glasser J., Biederman C., Abdo K., Sanders S. Law and Business of the Entertainment Industries. - 5th Edition. – Westport: Praeger Publishers, 2006. 3. Miller P. Media law for producers. – 4th edition. – Burlington: Focal press, 2003. 4. Smartt U. Media and Entertainment Law. - 1st edition. – London and New York: Routledge Taylor and Francis Group, 2011. 5. Towers-Romero S. Media and Entertainment Law. - 1st Edition – NY: Delmar, Cengage Learning, 2009.

Main international legal documents: 1. UN Universal Declaration of Human Rights 1948. 2. UN International Covenant on Civil and Political Rights 1996. 3. European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. 4. Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, completed at Paris on May 4, 1896, revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, revised at Rome on June 2, 1928, at Brussels on June 26, 1948, at Stockholm on July 14, 1967, and at Paris on July 24, 1971, and amended on September 28, 1979, available at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

Main legislation of the Russian Federation: 1. The Constitution of the Russian Federation (was adopted at National Voting on December 12, 1993) (with Amendments and Additions) 2. The Civil Code of the Russian Federation (Parts One and Four) (with Amendments and Additions) 3. The Criminal Code of the Russian Federation No. 63-FZ of June 13, 1996 (with Amendments and Additions) 4. Code of Administrative Offences of the Russian Federation No. 195-FZ of December 30, 2001 (with Amendments and Additions) 5. Law of the Russian Federation No. 2124-1 of December 27, 1991 on Mass Media (with Additions and Amendments) 6. Federal Law No. 436-FZ of December 29, 2010 on the Protection of Children Against Information That May Be Harmful to Their Health and Development (with Amendments and Additions)

Topic 1. Theoretical foundations of the right to freedom of expression and the right to creativity

Historical development of free speech. International treaties. The Universal Declaration of Human Rights. Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The boundaries of the right to freedom of expression. The role of the European Court of Human Rights. The notion of freedom of expression in the Constitution of the Russian Federation. Censorship. Freedom of expression via the Internet.

Further reading: 1. Clayton R., Thomson H. The Law of Human Rights. – 2nd edition. – Oxford: Oxford University Press, 2009. 2. Elst M. Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation. - Leiden, NLD: Martinus Nijhoff Publishers, 2004. 3. Fenwick H., Phillipson G. Media Freedom under the Human Rights Act. - Oxford: Oxford University Press, 2006. 4. Harris D., O’Boyle M., Warbrick C., Bates E., Buckley C. Law of the European Convention on Human Rights. – 2nd edition. - Oxford: Oxford University Press, 2009. 5. Lichtenberg J. Foundations and Limits of Freedom of the Press / Democracy and the Mass Media. - Cambridge: Cambridge University Press, 1995. Topic 2. Privacy and confidentiality in the entertainment industry

Privacy and public interest. Balancing the freedom of expression and the right to privacy. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Privacy and the European Human Rights Court. Restraining unauthorized information. Exclusivity and privacy: the case ‘Douglas v Hello!’ (2001). Publication of personal identity and pictures. Photographs of celebrities and breach of privacy: the ‘Von Hannover v Germany’ case (2004), ‘Campbell v Mirror Group Newspapers Ltd’ (2004). Public places. A child’s right to privacy. Filming and recording in the context of the right to privacy. Shooting or location permits. The distinction between the rights of privacy and defamation. Internet privacy. The ‘Streisand effect’.

Further reading: 1. Barber N. A Right to Privacy// Public Law, 2003. Win. Pp. 602-610. 2. Carter-Silk A., Cartwright-Hignett C. A Child’s Right to Privacy: “Out of Parent’s Hands”// Entertainment Law Review, 2009. 20 (6). Pp. 212-217. 3. Clayton R., Thomson H. The Law of Human Rights. – 2nd edition. – Oxford: Oxford University Press, 2009. 4. Fenwick H., Phillipson G. Media Freedom under the Human Rights Act. - Oxford: Oxford University Press, 2006. 5. Goldfarb R. In Confidence: When to Protect Secrecy and When to Require Disclosure. - New Haven, CT, USA: Yale University Press, 2009. 6. Harris D., O’Boyle M., Warbrick C., Bates E., Buckley C. Law of the European Convention on Human Rights. – 2nd edition. - Oxford: Oxford University Press, 2009. 7. Hixson R. Privacy in a Public Society: Human Rights in Conflict. - Oxford: Oxford University Press, 1987. 8. Moore B. Privacy: Studies in Social and Cultural History. – Armonk, New York: M.E. Publishing, 1984. 9. Moreham N. The Right to Respect for Private Life in the European Convention on Human Rights: a Re-examination // European Human Rights Law Review, 2008. № 1. Pp. 44-79. 10. Rolph D., Beveridge F., Velluti S. Reputation, Celebrity and Defamation Law. - Abingdon, Oxon, GBR: Ashgate Publishing Group, 2008. 11. Schilling K. Privacy and the Press: Breach of Confidence – the Nemesis of the Tabloids? // Entertainment Law Review, 1991. № 2 (6). Pp. 169-176.

Topic 3. Defamation, obscenity and blasphemy in creative works

The notion of defamation. The claimant and what must be proven: defamation, identification, publication. Libel, slander and malicious falsehoods. Recriminalization of libel in Russia. The distinction between opinions and facts in the context of creativity. Humour, satire and irony: the case ‘Elton John v Guardian News and Media Ltd’ (2008). ‘Jyllands-Posten Muhammad cartoons’ controversy (or ‘Muhammad cartoons crisis’). Blasphemy and freedom of expression. The ‘Gay News’ case (1979). Abolition of blasphemy laws. The ‘Pussy Riot’ case (2012): blasphemy or hooliganism? The definition of obscenity. ‘Miller test’: the case ‘Miller v California’ (1973). The case ‘Handyside v. the United Kingdom' (1976). The saucy seaside postcards: the art of Donald McGill. Filth or literature: ‘Lady Chatterley’s lover’ and other obscene creative works. The ‘Lolita’ dispute. Art or obscenity: Jerry Springer ‘The Opera’, Richard Prince ‘Spiritual America’. Indecency or freedom of expression? Proportionality regarding contemporary tastes and standards. Protection of children from information harmful to their moral and physical health. Age grading of entertainment content in Russia.

Further reading: 1. Amponsah P. Libel Law, Political Criticism, and Defamation of Public Figures: The United States, Europe, and Australia. - New York: LFB Scholarly Publishing LLC, 2004. 2. Blasphemy, Insult and Hatred – Finding Answers in a Democratic Society // Science and Technique of Democracy, Council of Europe Publication. 2010. № 47. 3. Byrne C. The Church vs. the Cinema: Philip Pullman’s Blasphemous Materials/ The Independent. 28 Nov., 2007. 4. Carter–Ruck P. Memoirs of a Libel Lawyer. – London: Weidenfield & Nicolson, 1990. 5. Clayton R., Thomson H. The Law of Human Rights. – 2nd edition. – Oxford: Oxford University Press, 2009. 6. Fenwick H., Phillipson G. Media Freedom under the Human Rights Act. - Oxford: Oxford University Press, 2006. 7. Harris D., O’Boyle M., Warbrick C., Bates E., Buckley C. Law of the European Convention on Human Rights. – 2nd edition. - Oxford: Oxford University Press, 2009. 8. Kearns P. Obscene and Blasphemous Libel: Misunderstanding Art // Criminal Law Review, 2000. Aug. Pp. 652-660. 9. Milo D. Defamation and Freedom of Speech. – Oxford: Oxford University Press, 2008. 10. Mitchel P. The Making of the Modern Law of Defamation. – Oxford/Oregon: Hart Publishing, 2005. 11. Rolph D., Beveridge F., Velluti S. Reputation, Celebrity and Defamation Law. - Abingdon, Oxon, GBR: Ashgate Publishing Group, 2008. 12. Samuels A. Obscenity and Pornography // Criminal Law and Justice Weekly. 2009. 173 (12). Pp. 187-189. 13. Zolotov A. Russia, Defamation of Religion & Free Speech: Implications for Media. Available at themediaproject.org

Topic 4. Copyrights in the entertainment industry The origins of copyright. International copyright legislation: the Paris Convention (1883), the Bern convention (1886), the Rome Convention (1961), ‘the TRIPS Agreement’ (1994). The World Intellectual Property Organization (WIPO) and the WIPO Treaty. The fundamental international principles of copyright. The distinction between the conceptions ‘copyright’ and ‘droit d'auteur’. The development of copyright laws in Russia. Civil code of the Russian Federation, 4th part as the main source of copyright law. The scope of copyright protection. The protection of literary, dramatic, musical and artistic works. No copyright in news or in unrecorded ideas. No copyright to domain names: the case ‘Odnoclassniki v Eksmo’ (2008). Orphan works. Copyright in interviews. Joint authorship. Copyright to a part of the work: title, character etc. Audio-visual work as a complex object. The ‘Star Wars’ case: Lucasfilm v Ainsworth (2010). The legal status of producer. Copyright to TV formats. The key cases: ‘Green v Broadcasting Corporation of New Zealand’ (1989), 'Endemol и TV Globo v TV SBT' (2004 г .). The Format Recognition and Protection Association. The bible of the TV format. Copyright to a photo: the ‘Grisburg v MGN Ltd’ (2009). Musical works: the ‘Fisher v Brooker’ case (2009). Sound recording and the right in performances. Derivative works: remakes, remixes, playlists, etc. Related rights. Perfomer’s right and rights of the producer of phonograms. The ‘Bob Dilan’ case: Sony Music Entertainment (Germany) GmbH v Falcon Neue Median Vertrieb GmbH (2009). The rights of the broadcaster. Copyrights to Works-Made-for-Hire. The duration of copyright. Public Domain.

Further reading: 1. Agreement on Trade-Related Aspects of Intellectual Property Rights. Signed in Marrakesh, Morocco on 15 April 1994. Available at http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htmCornish W. Intellectual Property: Patients, Copyrights, Trademarks and Allied Rights. – 7th edition. – London: Sweet & Maxwell, 2010. 2. Baden-Powell E., Bleakley A., Eneberi J. Intellectual Property and Media Law Companion. - Great Britain: Bloomsbury Prof., 2010. 3. Gordon S. The Future of the Music Business. How to Succeed with the New Digital Technologies. A Guide for Artists and Entrepreneurs. – 2d edition. – San Francisco, CA: Backbeat Books, 2008. 4. Harrison A. Music: The Business. The Essential Guide to the Law and the Deals. – 4th edition. – London: Virgin Books, 2008. 5. Hilderbrand L. Inherent Vice: Bootleg Histories of Videotape and Copyright. – Durham, North Carolina, USA: Duke University Press, 2009. 6. Kamina P. Film Copyright in the European Union. - Port Chester, NY, 2002. 7. Moran A., Malbon, J. Understanding the Global TV Format. – Bristol: Intellect Ltd., 2006. 8. Passman D. All You Need to Know about the Music Business. – 6th edition. – London/ New York: Penguin, 2008. 9. Paris Convention for the Protection of Industrial Property of March 20, 1883, as revised at Brussels on December 14, 1900, at Washington on June 2, 1911, at The Hague on November 6, 1925, at London on June 2, 1934, at Lisbon on October 31, 1958, and at Stockholm on July 14, 1967, and as amended on September 28, 1979, available at http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html 10. Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. Done at Rome on October 26, 1961, available at http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html 11. Senftleben M. Copyright, Limitations and Three-Step Test: An Analysis of the Three-Step Test in International and EC Copyright Law. The Hague: Kluwer Law International, 2004. 12. Stamatoudi I. Copyright and Multimedia Works : A Comparative Analysis. – Port Chester, NY, USA, 2002. 13. Sterling A. World Copyright Law. – 3td edition. – London: Sweet & Maxwell, 2008. 14. WIPO Copyright Treaty. Adopted in Geneva on December 20, 1996, available at http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html

Тopic 5. Exploitation of copyrighted work: copyright agreements

Moral and economic rights. Exclusive and non-exclusive rights. The means of exploitation of copyrighted work. Digital rights. New business models in the publishing and recording industries. Fair use of copyrighted works. The ‘Beckham family’ case: ‘Fraser-Woodward Limited v BBC’ (2005). Parody and fair use: the key cases: ‘Campbell v. Acuff-Rose Music’ (1994), ‘D.C. Comics, Inc. v. Crazy Eddie, Inc.’ (1979), ‘Bondarchuk v Bolshaya Razniza’ (2010). The right to fee. Royalties. Obtaining the right to use copyrighted materials. Assignments and licensing agreements. Production Contracts. Option agreement. Creative Commons. The music permissions process. Music publishing and collecting societies (Russian Authors’ Society, RAO; Russian Organization For Intellectual Property, VOIS). Public performance rights, mechanical reproduction rights. The definitions of trademarks and brand names. Registration of trademarks. The breach of rights to trademarks: the ‘Gull v Frankie Goes To Hollywood Ltd’ (2008).

Further reading: 1. Aczon M. Musicians Legal Companion. - Vallejo, CA: Artistpro.com, LLC, 2004. 2. Baden-Powell E., Bleakley A., Eneberi J. Intellectual Property and Media Law Companion. - Great Britain: Bloomsbury Prof., 2010. 3. Colston C., Galloway J. Modern Intellectual Property Law. – 3d edition. – London: Routledge, 2010. 4. Fiscor M. Collective Management of Copyright and Related Rights at a Triple Crossroads: Should It Remain Voluntary or May It Be “Extended” or Made Mandatory? // Copyright Bulletin, 2003. № 3, Dec. United Nations, Educational, Scientific and Cultural Organization, available at portal.unesco.org/culture/en/ec.php-URL_ 5. Gordon S. The Future of the Music Business. How to Succeed with the New Digital Technologies. A Guide for Artists and Entrepreneurs. – 2d edition. – San Francisco, CA: Backbeat Books, 2008. 6. Harrison A. Music: The Business. The Essential Guide to the Law and the Deals. – 4th edition. – London: Virgin Books, 2008. 7. Passman D. All You Need to Know about the Music Business. – 6th edition. – London/ New York: Penguin, 2008. 8. Tarleton G. Wired Shut : Copyright and the Shape of Digital Culture. - Cambridge, MA, 2007.

Topic 6. Copyright infringements

Civil, administrative and criminal responsibility. Remedies. Injunctions and damages. The right to seize. Internet piracy: artist in revolt. Physical piracy, counterfeiting, bootlegs. Piracy and file-sharing: the ‘Pirate Bay’ case. On-line streaming jukeboxes. The responsibility of the provider of searching services: ‘Eksmo v Yandex' (2012), 'AST Press Book v Yandex' (2011). The responsibility of a hosting provider: the ‘Masterhost’ case (2008). Piracy and social media: the ‘S.B.A. Gala Rec. v Vkontakte’ case (2012).

Further reading: 1. Agreement on Trade-Related Aspects of Intellectual Property Rights. Signed in Marrakesh, Morocco on 15 April 1994, available at http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htmCornish W. Intellectual Property: Patients, Copyrights, Trademarks and Allied Rights. – 7th edition. – London: Sweet & Maxwell, 2010. 2. Baden-Powell E., Bleakley A., Eneberi J. Intellectual Property and Media Law Companion. - Great Britain: Bloomsbury Prof., 2010. 3. Colston C., Galloway J. Modern Intellectual Property Law. – 3d edition. – London: Routledge, 2010. 4. Dehin V. The Future of Legal Online Music Services in the European Union: a Review of the EU Commission’s Recent Initiatives in Cross-border Copyright Management // European Intellectual Property Review, 2010. 32(5). Pp. 220-237. 5. Harrison A. Music: The Business. The Essential Guide to the Law and the Deals. – 4th edition. – London: Virgin Books, 2008. 6. Senftleben M. Copyright, Limitations and Three-Step Test: An Analysis of the Three-Step Test in International and EC Copyright Law. The Hague: Kluwer Law International, 2004. 7. Smartt U. Stay out of Jail: Performance, Multimedia and Copyright Laws / Hill L., Paris H. Guerilla Performance and Multimedia. – 2nd edition. – London, New York: Continuum, 2004. 8. Stamatoudi I. Copyright and Multimedia Works : A Comparative Analysis. – Port Chester, NY, USA, 2002.