Jane Hyndman – General Counsel at Compact Media

From the complex legal matters involved in IP prosecution and maintenance, to the increasing difficulties media companies, content creators and producers encounter on a daily basis, Lawyer Monthly has been speaking with Jane Hyndman, General Counsel at Compact Media Group, this month.

Jane details the roles she is involved in at Compact Media, discusses the clients she works with and the challenges they face, and in relation to recent affairs surrounding the Digital Millennium Copyright Act (DMCA) and the rights of content producers on the net, Jane provides an overview of her vision for the future of IP rights.

Can you tell LM about your GC role and what it involves on a day to day basis?

As Group General Counsel, I work across all Compact’s business units, including royalty management and collection, collection account management (CAM) and enforcement; this provides an interesting mix of providing specialist IP advice to both internal and external clients.

This is probably quite unusual as most counsel solely have an in-house function but I also have contact with some great external clients. We have recently launched a division – Compact Tech – to assist clients to manage and enforce their rights, including assisting with identifying infringing uses, tracking down infringers through the use of digital forensics which enables us to trace breaches to their source and take down procedures so that infringing content is removed from key platforms such at Facebook, YouTube and Google with an extremely high success rate.

Who are Compact Media’s biggest clients and what particular legal challenges do they present?

We are the world’s largest independent collection agent with over 750 clients worldwide and over 350 clients based in the UK. We represent producers and distributors of all genres across film and TV, including the BBC, ITV Global, Aardman Animation, Hat Trick, FremantleMedia, and All3Media. Increasingly our clients are looking to us for more than just collection services due to the depth of our IP and rights management services.

One of the key challenges facing all our clients, no matter what sector they are active in, is that they are all being pushed to provide more for less. Whilst budgets are falling and it is rare for one broadcaster or platform provider to fully fund a project, rights owners are being pushed to throw in a much wider bundle of rights – not just TV rights, for instance, but digital and in-home/out of home viewing/streaming rights. At the same time, they are facing a challenge in tracking and identifying usage so that they can identify piracy, take unauthorized uses taken down and ensure that they are being correctly remunerated.

Of course, we are all waiting on tenterhooks to see how Brexit will affect the creative industries and will be looking for government support to ensure that the growth of such an important contributor to GDP will not be stymied by exit.

In the meantime, fresh challenges will be faced with rights positions being affected by the proposals coming through from Brussels in relation to the Digital Single Market, including the introduction of the portability regulations next summer.

What are the key IP matters you advise these clients on and what are the most important pitfalls/risks you advise them to look out for?

The main focus for our clients (both internal and external) is on pro-active management of their IP (generally copyright and trade marks). We see many producer clients at the start of their careers and it is fair to say that many of them over-focus on getting a project off the ground and can compromise their rights position in order to get financing/a project green lit. We encourage them to understand that pro-active rights ownership can result in their projects having a longer life cycle than merely the first transmission on a UK PSB and so if they retain rights, they can benefit from an ongoing and long term revenue stream. That is why we are now active in the enforcement sector to assist clients in understanding the implications of their copyright being infringed and how they can combat piracy through the use of pretty simple to use software and rights management systems.

In terms of intellectual property surrounding the creative industries, what are currently the biggest difficulties globally?

One of the biggest issues for any rights owner is tracking the uses of their works and making sure that their licensees are correctly handling their IP and protecting it from piracy and other forms of unauthorized use.

One challenge is that we have a global industry but copyright protection is territorial. Thus proceedings for infringement have to be taken on a territory by territory basis.

And we have all heard of the apocryphal stories of format thefts which can be very tricky to combat given the limited forms of protection for formats.

How do you foresee a solution, and how would you see the DMCA changed?

The law needs to be bolstered to ensure that take down means a permanent take down and ensure that service providers and platform operators take the matter as seriously as rights holders. We’ve seen a move in the right direction recently with the Court of Appeal judgement in the Cartier case which resulted in ISPs being required to block sites selling counterfeit goods. This is a great result for rights holders as ISPs are no longer able to dodge responsibility for the access they provide to infringing websites.

Pertaining to rights negotiations and deal terms, what would you say are the priorities for any rights holders? How do these differ for visual content creators and the film industry?

The position is the same for any rights holder: keep back as much ownership as you can. Sometimes you cannot identify the full value in a work at the point of creation. Compact represents some catalogues where works have a practically unlimited life span and are generating secondary royalties unprojected for at the point of creation. Interestingly, the type of royalties we collect are not usually factored in to production budgets as it can be difficult to project at the outset where royalties will be generated several years down the track; this means that they tend to belong to the producer and do not have to be paid into a CAM account or used to repay any outstanding finance on the production. This can have a real value in generating income for producers.

How do you envision the future of creative content rights progressing over coming years?

The creative industries are currently growing at a phenomenal rate. The UK is a real powerhouse of creativity and this growth is likely to continue provided that we continue to have a regime which encourages and supports growth though mechanisms such as the terms of trade and advantageous tax credit regimes.

In the UK, TV producers have the unique benefit of the terms of trade negotiated by Pact with the PSBs and the ability to retain copyright has been a key factor in our now flourishing independent production sector. Long may this system remain the same