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JILT 1997 (3) - Richard Stone

Eric Barendt, Stephen Bate, Julian Dickens and Thomas Gibbons (eds)

The Yearbook of Media and Entertainment Law

Volume II 1996

Oxford University Press, 1997, £125
xli + 592 pp, ISBN 019 8262779

Reviewed by
Richard Stone
Inns of Court Law School

1. Introduction
2. Part I: The Articles
3. Parts II and III: Surveys and Reviews
4. Conclusion

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This is a Book Review published on 31 October 1997.

Citation: Stone R, 'Eric Barendt et al, The Yearbook of Media and Entertainment Law, Volume II 1996', Book Review, 1997 (3) The Journal of Information, Law and Technology (JILT). <>. New citation as at 1/1/04: <>

1. Introduction

This is the second volume of the Yearbook of Media and Entertainment Law. It is a very substantial piece of work. It runs to nearly 600 pages, and is divided into three sections. The first, which occupies approximately half of the volume, contains 13 lengthy articles on a wide range of media-related topics. The second section consists of a series of 'Annual Surveys' focusing on recent developments in particular areas. There are another 10 contributions here. The final section, which at 40 pages is much the shortest, is devoted to book reviews. The main focus of this review will be on the section which is likely to be of the most lasting significance, that is the articles, which for the most part consist of reflective analyses of their subject-matter, going beyond short-term points of interest.

2. Part I: The Articles

The Articles in Part I cover topics as diverse as the regulation of media ownership, the use of section 4 of the Contempt of Court Act 1981, and the interaction between freedom of expression and copyright. There is no overall theme, and the book contains no preface or introduction providing an overview. The editors present us with the individual contributions to be considered independently, though there is a limited amount of grouping of topics - the first four articles, for example, all relate to issues surrounding the regulation of media ownership. The first is a revised version of the third Goodman lecture delivered by David Glencross (at that time Chief Executive of the ITC) in May 1995. Under the title 'Television Ownership and Editorial Control', he argues for the continuation of ownership regulation because television is a 'public asset'. The controls should, however, be flexible (in a way in which the Broadcasting Act 1990 was not) because of the unpredictability of developments in the area. Lesley Hitchens, in 'Identifying European Community Audio-Visual Policy', also argues for controls which take account of a changing environment. Rather than treating television separately, however, she suggests that current policies at the European level fail to take sufficient account of the convergence between telecommunications and audio-visual services. They are also inadequate in dealing with the perennial tension between the different demands of economic and cultural policies. Rachel Craufurd-Smith also takes a European perspective, but using the rules of domestic law rather than Community legislation. She draws on Italian and French case law to argue the need to recognise 'pluralism' as a value to be protected alongside freedom of expression. A 'multiplicity of speakers' is not necessarily the same thing as a 'plurality of voices'. This is an issue which is touched on by Monroe Price and Jonathan Weinberg in considering the US position on media ownership. Here, however, the current trend, as exemplified by the Telecommunications Act of 1996 is for competition to replace regulation as the 'engine of diversity'. In contrast to the view taken by Craufurd-Smith, the US approach is now that regulation to produce diverse ownership will not necessarily lead to a diversity of views. Subject to the need for some 'common carrier' type of regulation for those who own the systems of communication (as opposed to providing the content), competition is thought to be the best way to ensure a multiplicity of voices.

The three articles which follow each stands alone, and do not deal directly with issues picked up elsewhere. Ian Cram finds encouragement in the way in which the judiciary is now approaching the question of postponement orders under section 4(2) of the Contempt of Court Act 1981. Although some anomalies remain in this area, for example the difficulties of the defendant who wants to appeal against a refusal to make an order, overall 'the judiciary now treats claims advanced in the name of freedom of speech seriously with the result that applications for postponement orders receive thorough scrutiny'. Andrea Biondi's article is also concerned with the reporting of court proceedings, but in this case by means of television access to the courtroom. He considers in outline the current regulations applying in the United States, France and Italy, and concludes by arguing in favour of limited access 'governed by both procedural and substantive safeguards'. The information provided here is useful, but the arguments do not in the end advance the debate significantly. The third article in this group is Eric Barendt's 'The Impact of Libel Law on the Regional Press', which outlines the results of a survey of regional newspapers, and their response to threats of libel action. There is much interesting information, but no very clear conclusions emerge, other than some confirmation for the instinctive view that the regional editor will have greater fear for the consequences of being sued, and will therefore be more likely to be affected by threatened legal action, than will the editor of a national.

The next group of articles focus on IP rights, and copyright in particular. Howard Johnson details the changes introduced into English law by the EC Directive (93/98) on the term of protection for copyright and the Duration of Copyright and Rights in Performance Regulations 1995 (SI 1995/3297). He is very critical of changes and the lack of debate about them. He concludes that those in favour of increasing protection are currently 'making all the running'. What appears to amount to 'harmonisation by stealth is dangerous and there needs to be a much more open and public debate about the way copyright law is going.' By contrast Steve Anderman notes that the traffic is not all one way, in that following the decision in the Magill TV listings case (RTE and ITP v Commission [1995] FSR 530), it is clear that in certain situations copyright may be overridden by the protection of competition provisions in Article 86 of the Treaty of Rome. The final contribution on copyright is the one that this reviewer found the most interesting. It is by Fiona Macmillan Patfield, and is entitled 'Towards a Reconciliation of Free Speech and Copyright'. In what is the longest contribution to this section of the volume, Patfield attempts to apply a free speech analysis to the copyright control. She argues that the public interest arguments which underpin many free-speech considerations are not adequately addressed by existing copyright legislation. The conclusion is that there is a strong argument for the existence of a 'public interest' defence to copyright claims, which goes beyond the rather limited 'fair-dealing' exemptions. There is much to be said for this. The analysis, however, perhaps needs to address more fully the fact that copyright is not generally used to prevent speech altogether (which is the most normal situation in which free speech arguments arise), but rather to protect the commercial interests of the original 'speaker'. The problem is addressed briefly at page 215, and is also implicit in the discussion of the relevance of the 'idea/expression' dichotomy to free speech issues, but it deserves a more central consideration. Overall, however, Patfield's analysis constitutes a valuable set of first steps in opening up a debate on an issue which to date has received very little attention.

The final contribution to the Articles section is by William Housely, and addresses a different type of 'IP' right - that is the unauthorised commercial exploitation of an individual's personality. The article contains a very thorough analysis of the existing protection of personality under English law. Housely's conclusion is that 'commercial need' is adequately protected by the law (e.g. by trade marks, passing off and malicious falsehood). The debate about the need for a 'publicity right' should therefore properly be focused on arguments for the protection of privacy and 'human dignity' interests.

3. Parts II and III: Surveys and Reviews

Part II of the volume contains the annual surveys, covering the ECHR, libel, reporting restrictions, complaints against the media, copyright, the music industry, broadcasting, competition law, multimedia and computer/video games. From these broadcasting has two contributions, and copyright three. All of the surveys relate primarily to developments in 1995. They are not entirely descriptive, but do generally attempt to analyse developments within a broader context. Some of the discussion is inevitably now out of date. On the ECHR, for example, the cases of Wingrove and Goodwin are both dealt with in terms of the Commission's proceedings, rather than the Court. This limits the long-term usefulness of these contributions. It is, however, appropriate that a Yearbook should contain material of this kind. It is less clear that there is a need for the reviews section contained in Part III. This is not to say that the individual reviews are not interesting and well-written: for the most part they are. Their presence is not likely, however, to be significant consideration in deciding whether or not to purchase the Yearbook. If the Yearbook is to continue into the future, it might be worth dispensing with this section in order to reduce space, and therefore cost.

4. Conclusion

There is a great deal of valuable material in this volume. Many of the articles, in particular, constitute significant contributions to the development of the areas under discussion. The annual surveys also contain much useful information. The only areas for suggested improvement, which might be picked up for future volumes, are that a clearer overall editorial perspective would be of assistance to the reader, and that the section of reviews could be reduced even further (or dispensed with). Overall, however, the Yearbook would be a very worthwhile addition to the library of anyone interested in media law.

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