United Kingdom Journals

James N. Talbott, New Media: Intellectual Property, Entertainment, and Technology Law, Clark Boardman Callaghan, Deerfield Illinois USA, 1997, ISBN 0-8366-1132-2 Hb, price: please contact supplier.

Reviewed by Irini A. Stamatoudi

EU TMR Marie Curie Research Fellow
Attorney-at-Law (Athens)
Faculty of Law
University of Leicester

Copyright 1998 Irini A. Stamatoudi

First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

By receiving this book and browsing through its contents, one gets the impression that there is scarcely anything in the area of new media that has not been dealt with by the author. This is not far from the truth, especially when one notices the comprehensive and coherent division and structure of the chapters of this book. Yet, if one is expecting an in depth analysis of the implications of new media and an academic analysis of the problems they present, one will be slightly disappointed. The same slight feeling of disappointment is created by the absence of a comprehensive examination of legal status of these new media. How are they to be characterised? In which legal category can they be accommodated? These questions receive no direct answers and consequently the legal status of the new media is not defined clearly. The book rather focuses on the use that can be made in this area of existing legal provisions and theses provisions themselves are then explained. This book is designed, in the words of the author, to provide the legal background in each of the different practice areas that constitute "new media" law and to provide a general background to the technologies that are driving today's entertainment and digital communications market (see the Foreword).
The target-audience of this book is of a mixed nature. First of all there are the lawyers who already have some idea about the legal environment in which new media operate. For them this book provides a comprehensive analysis of this environment. Second, there are also the lawyers that have to get acquainted with this new and rather different area of law if they choose or find themselves tempted to represent new media companies. For them and for the non-lawyer new media executive this book provides the basic legal information, which they need in order to get started.
Whilst reading this book it became apparent to me that "new media" is probably a misnomer for it. At the outset the author implies that "new media" and "multimedia" are notions which are interchangeable. (...all falling under the rubric of "multimedia" or "new media", page 1-1). However, multimedia can be a generic term with a pretty wide scope, but it is still generally understood as being more concrete and coherent in nature than the term "new media". Multimedia refers to a product and a single new work in which multiple works of a different type and nature are combined. New media, on the other hand, can encompass almost anything in the area of new technologies and communication. This includes the whole area of satellite broadcasting, digital television and video, as well as telecommunications. Whilst the latter are discussed in some detail, it has to be admitted that discussion has to be placed squarely against the background of their use in relation to multimedia. In particular, these new media forms, which also include the Internet, are considered in relation to their role as distribution media, which are used to carry and distribute multimedia products. From this point of view the title "new media" slightly overestimates the scope of the book. New media are included, but the overall focus is on multimedia, which constitutes any product in which multiple types of works are combined rather than on the carriers used for the distribution of these works.
Moreover, the notion of multimedia, though vital for this book, is not described properly. Multimedia is referred to only as including a mixture of various forms of text, video, still photographs, computer software and sounds (page 1-1). The fact that this particular mixture is placed on a single medium, which on top of that has to provide the user with interactivity (an essential element of its purpose and use) by means of a computer, is not clear. A mixture of many media and forms of expression makes no difference on its own. It does not necessarily make a work qualify as a multimedia work. The single medium and the interactivity are also required.
The key purpose of this treatise is to answer the following question: What do I do when I want to produce a multimedia work in the US? In this respect J. Talbott's book is very instructive. Of course, questions, such as what a multimedia product is all about, how intellectual property rights relate to it and what courses of defence do I have against non-intellectual property liabilities, are also dealt with.

In its first chapter (Introduction) the book starts by clarifying to some extent the elements of a multimedia product, such as text, images, sound, and so on. It then goes on to familiarise the reader with the distribution media, linear and non-linear, of a multimedia product, such as interactive cable, Internet, CD-ROMs and others. Chapter 2 deals with multimedia technology. At this stage the writer's background in engineering and the computer industry becomes apparent. The underlying technologies of a multimedia product are described concisely and coherently and in a way that provides the basic knowledge for those of us that are not familiar, or not familiar enough, with these notions. The author succeeds in keeping these descriptions to a level understandable also by those who do not posses the same technical background as himself. Chapter 3 discusses the regulation of telecommunications in the context of their use as a distribution method in relation to multimedia products and especially from the point of view of the US 1996 Telecommunications Act.

Chapters 4, 5, 6 and 7 deal with copyright, trade marks, patents and trade secrets respectively. All these chapters start from the very basic and elementary points which underlie the legal analysis of these intellectual property rights, as they are to be found in any basic textbook on these rights, before they are approached from the point of view of their application to a multimedia project. These basic points include definitions of the rights, functionality and limitations placed on the right as such. Yet, one gets the impression that although the reader is provided with all the relevant information in the area, he is not assisted in making a decision whether his project is as a whole capable of qualifying for one of those intellectual property rights, and which of all the bundle of rights mentioned is the most appropriate one for his project. The points made in relation to the rights are too rudimentary for that purpose and no information is given as to how they can be combined and how a choice between them should be made. This issue is left for the lawyer to decide. The failure to provide a comprehensive guidance can arguably be justified on the basis that there are substantial differences between the various types of multimedia works and that those differences require different legal treatment. This argument has to be rejected, though, as there must at least be a common core of the legal analysis that is applicable to all multimedia products (for example, what constitutes a multimedia work and how are the rights in the works that are to be incorporated dealt with). This common core should have been described in a more comprehensive way rather than in a discussion that focuses solely on individual aspects without bringing them together. The forms of legal protection and draft agreements between contractors in this area are also included as appendices to this book. Once more this is a particularly helpful tool for practitioners, but as these are drafted from the point of view of US law, they are not always as helpful for a wider audience. That wider audience will need to be able to adjust these forms to the specific aspects of their own respective legal contexts.

Chapters 8 and 9 deal with the rights of privacy and publicity (as it developed out of the law of privacy in US law) and how a lawyer or a developer of a multimedia product should take them into account. If these rights are not respected actions for libel and slander, and in some jurisdictions, such as the US, also privacy actions, may arise. Chapter 10 deals with these actions.
Development and distribution is the topic of chapter 11. The discussion on development and distribution agreements is assisted with multimedia development agreements, software licences and other types of agreement in the relevant appendices. Chapter 12 is a chapter on US Unions that are relevant to multimedia, in essence in the sense that their role as collecting societies may assist in the clearance of rights. Other practicalities in the development of a multimedia project, such as completion bonds, problems of professional liability insurance and other insurance are dealt with in chapter 13. Lastly, chapter 14 is about obtaining and clearing rights, which is often also the most difficult phase in the production of a multimedia work. It is not always obvious what type of rights should be obtained and how all these rights should precisely be cleared without allowing one of the rights which remains not cleared to block the project. On the other hand, the rights in the pre-existing works that are incorporated are not affected and should thus be respected and a licence should be applied for. Many multimedia products contain indeed a very difficult balance between completeness and feasibility, e.g. an encyclopaedia must contain all possible entries, but its developers cannot pay extra-ordinarily high licence fees for a single entry as this would make the project no longer cost effective. Additionally, any mistakes of serious and secure clearance of rights at the outset might be capable of jeopardising the whole project, along with the investment made for it.

This book has two inherent limitations. First, it is in practice solely addressed to multimedia practitioners and does not offer any legal solutions in relation to issues such as which is the most appropriate regime of protection for multimedia products?; can the existing regimes of protection sufficiently accommodate the protection of multimedia products? or, is there a need for a separate regime of protection? Although all these questions are primarily the subject of an academic discussion, that does not mean that sometimes they are not highly relevant in order to determine the importance of the different intellectual property rights which the author includes in his book. This relevance is shown in practice in the sense that, for example, a practitioner would no longer have to go through the whole bundle of rights if he is confronted by no more than a classic form of interactive database, for example, which will, be delivered to an airline company to track its clients and their preferences before being able to identify the most appropriate regime of protection.
The second inherent limitation is the fact that this book is a guide for US lawyers only. Yet, this does not justify the exclusive emphasis on US law and it does not exclude the need for at least a short comparison with EU Member States' legislation and EU legislation. This is so for two basic reasons. First, because the development of a multimedia product is in most cases transnational, in including contributors from different states. The rights of these contributors have to be cleared in all these states. Secondly, it is very unlikely that a multimedia product in the English language will be marketed solely in the US. Therefore, the following questions arise. What is then the position of a lawyer in the other states? Which law applies? Is the same course of action to be followed? All this is not to say that this book will not inform a wider audience. Any multimedia product, whatever its origins may be, will also be exploited in the US and it will, therefore, also be subject to certain aspects of the US legislation that are described in this book.
Moreover, since the EU is equally advanced in the area of new media and multimedia and occupies a substantial part of the international market, its legislation affects the market in the US as well. This is especially so in view of the approximation between national laws and the current updating of international intellectual property conventions, such as the Berne Convention and its new protocols and the TRIPs, to which the US adheres as well. In the EU context, the Directive on Databases ([1996] OJ L77/20) was also based to some extent on American decisions in the area such as the Feist Publications Inc. v Rural Telephone Service Co. Inc.,(111 S.Ct. 1282 (1991)), decision but differences remain. This means that these international elements are very important if one has international clients or if one wants to have a global idea of the evolution in the area of new media. The Directive on Privacy ([1995] OJ L281/31) is another example of this. The era where intellectual property rights were territorially based is, unfortunately for some lawyers, already over.
Lastly, the attempt by the author to cover almost everything sometimes detracts from the completeness of the analysis of certain issues which might seem less important at present, but which may be particularly significant in the future. An example is found in the question whether a multimedia developer is able to copyright a virtual reality world (para 4:1). The author then refers to para 5:26, which in essence does not provide the reader with any help if he is not acquainted with the Two Pesos case (932 F.2d 1113 (5th cir. 1991), aff'd, 505 US 763, 112 S. Ct. 2753, 120 L.Ed 2d 615 (1992)). This case deals with the trade mark, and, by analogy, copyright, protection of virtual reality worlds that have achieved a secondary meaning that removes their normal functional and non-protectable nature. Such hints and open questions without a clear answer are not helpful and they often tend to confuse the reader, especially when dealing with areas such as new media where clarity is already difficult to find.
Nevertheless, the aforementioned comments concern relatively minor points and certainly do not point to disadvantages that are capable of detracting from the overall worth of this book as a guide to US practitioners with regard to the development of multimedia products. It covers most of the issues which are considered to be of decisive value in the area and throws light on issues and in general on an area which is not always easy to deal with. This book is in fact a coherent encyclopaedia for multimedia producers and lawyers and contains valuable information for people working in the area. Those who have to pull the various strings together before giving birth to new technology products will find useful guidance, though not complete, or ready-made solutions, in it.
In the end the author has probably met his aim. Different European and academic aims will have to be fulfilled by other works that set out to do exactly that.