The Legal Cut

    Saarah Badr explores the legalities surrounding Second Screen TV
    Saarah Badr, Bird & Bird.
    Saarah Badr, Bird & Bird.

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    Last month, I attended Singapore’s vast international media conference: Broadcast Asia. I spent an interesting afternoon listening to various broadcasters and social media entrepreneurs explaining the pros and cons of a (reasonably) new phenomenon, referred to as Second Screen TV.

    This is (generally speaking) the use of a mobile device to enhance the experience of an audience viewing content on TV. The audience interacts with the broadcast by commenting and actively participating on their ‘Second Screen’.

    Some of the most successful examples of this phenomenon are shows that rely on real-time audience voting. For example, it was reported that X Factor Arabia broke all-time UAE audience records back in 2013 by reaching 8.5 million youth through its second screen interactions.

    According to a recent “Ipsos Facebook Reach Survey” carried out across the MENA region (and commissioned by Facebook), Facebook came out on top as the most popular second screen platform in the region.

    Of course, cutting edge technology is a key element of the success of social TV. It was reported recently that Yootoo, a software company providing interactive TV and gaming solutions to broadcasters, has crossed the ocean from the US to set up in Dubai.

    The company’s software allows viewers to interact with their favourite shows in real-time, driving revenues for broadcast networks. And the revenues can be huge, with Markets & Markets reporting that social TV will be a US$ 250 billion industry by 2017.

    Issues, what issues? It may be difficult to imagine that there are any potential legal issues with this lucrative and innovative trend in audience interaction with traditional broadcast.

    All is well if the second screen experience is officially sponsored by the broadcaster (or its sponsors), enhancing experiences and multiplying show revenues. But what happens when the social interaction is “unofficial”?

    An unofficial social media blog on X Factor would not necessarily be legally problematic if it is simply a conversation between fans. However, if that unofficial blog included X Factor Arabia’s trademarks or clips of its content, this could well be a breach of the UAE’s copyright and trademark laws.

    Copyright infringement: An unofficial X Factor Arabia blog that includes clips from the show (perhaps asking audience members to vote for their favourite) may be in breach of the UAE Copyright Law (No. 7 of 2002).

    The clip of the show is an audiovisual work, with the rights in that work owned or licenced by the broadcaster. Use of that copyright work (i.e. including the clip on a blog), without the permission of the copyright holder/licencee is a breach of those rights.

    Not only that, but the unauthorised use of the clips by the unofficial blog could potentially jeopardise the agreement between the broadcaster and the ultimate owner/licensor of those rights (e.g. the original producer of the show) if the broadcaster is under obligations to actively prevent such unauthorised use.

    It should also be noted that the software which enables audience interactivity, such as that development by Yootoo, is likely to be protected as a copyright work under the UAE copyright law.

    Trademark infringement: The UAE Trademark Law (No. 37 of 1992) prohibits the unauthorised use of a trademark in the UAE. Penalties for breach of the law include fines and imprisonment.

    Therefore, the unauthorised inclusion of the X Factor Arabia branding on a second screen platform running an unofficial audience poll may fall foul of the law.

    Further, in both trademark and copyright cases, as the infringement would be “online”, the UAE’s Cybercrime Law of 2012 may well come into play. This law prohibits an owner or operator of a site from making available illegal content (which could be interpreted to include content that breaches the UAE’s trademark or copyright law).

    There are, of course, ways that a broadcaster can help to protect their rights from unofficial use of their brands and copyright works through second screen and social TV. Your legal advisor will be able to give you further information in this regard.

    Fact:
    - $250bn value of social tv industry by 2017 - markets & markets

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