The Future Lawyer Weekly Update – w/c 18th November

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Intellectual property

Intellectual Property and ‘The Streaming Wars’

Reported by Laurence Tsai 

Rumors about The Streaming Wars have been spreading for a while with various other corporations within the TV industry keen on getting the edge over Netflix. But now The Streaming Wars officially kicked off with rival companies releasing their own versions of Netflix – Apple TV+ launched on 1 November and Disney+ shortly followed on 12 November. Established industry leaders like Amazon Prime Video, Netflix, Hulu and HBO need to be ready for fierce competition with this entertainment giant.

One of the foundations for the existence of IP system is the notion that an author may only have a limited monopoly right to exploit whatever they have produced. Once the relevant protection period has expired, the public can freely access the creation as this benefits society as a whole.

Regarding the TV industry, it lies various copyright elements concerning streaming services. The Copyrights, Designs and Patents Act 1988 (“CDPA 1988”) provides that the author of a work has the exclusive right to distribute content and nobody else has this right. The statute does, however, allow the author to grant an exclusive licence of his work to a third party, meaning the latter can distribute the author’s work under the licence.

To that end, the deal between Netflix and Disney means that all the family-friendly films produced by Disney be removed from Netflix and screened exclusively on Disney+. These movies would include the Star Wars films, Marvel films, Pixar and many more – which have arguably formed the bedrock upon which Netflix built its empire (and profit). The deal, however, does provide that these shows and movies will eventually be returned to Netflix by 2026 – and, of course, be removed from Disney+ at the same time.

In that respect, there have been arguments that there is virtually no competitive element to this market. Many consumers will be tightening their budgets and, therefore, will not be willing to subscribe to more than one streaming service. In effect, this means that consumers can only watch particular content if they subscribe to the relevant platform.

One of the main difficulties of the interplay between IP rights and competition is buying the licences to a show is that one media conglomerate can buy the exclusivity to distribute particular content and legally prohibit others from distributing the same. Without innovating the way they deliver their content to gain a technological advantage over their competitors, these platforms arguably detract from the competitive nature of the market.

The consequence is that streaming TV will become very expensive and there will be an inevitable split between consumers as to which service they deem the most valuable. It is also foreseeable that these entertainment giants will begin to focus on producing original content to maintain their subscriber base and adopt more aggressive marketing techniques to claw in a few more subscribers along the way.

Find out more here or here.

Case Law: medical confidentiality

An issue between medical confidentiality and informing relatives who may inherit a serious disease.

Reported by Emma Ducroix

This case is about Huntington’s disease. It is caused by a faulty gene and leads to the progressive loss of brain cells, affecting movement, mood and thinking skills. It can also cause aggressive behaviour.

In a recent case, a father tested positive for Huntington’s Disease, and told doctors he did not want his daughters told about his diagnosis, fearing she might kill herself or have an abortion if she found out.

Today, this woman is suing three NHS trusts, saying they owed a duty of care to tell her about her father’s Huntington’s disease, saying that she would have had an abortion if she’d known at the time of her pregnancy. This was actually the fear of her father. Indeed, any child of someone with the condition has a 50% chance of inheriting it.

Doctors suspected the diagnosis after her father shot and killed her mother and was detained under the Mental Health Act. But the daughter only found out about that her father had Huntington’s Disease four months after giving birth. Her own daughter is now nine.

At the High Court, she said she’d been told about her father’s condition by accident: “I was utterly traumatised by the way I was told”, she said. “I had no family support and was left to Google the condition.” This woman eventually had a test and found that she also carries the faulty gene. The symptoms of Huntington’s Disease usually appear between the ages of 30 and 50. Her daughter, who’s not been tested, has a 50:50 chance of inheriting it from her.

In written submissions, Philip Havers QC on behalf of the trusts, said the question for the court was whether there was “a duty to disclose to her confidential information about her father against his express wishes” which he said was “plainly not the case”. The court heard that after this woman had found out about her father’s disorder, her sister also became pregnant.

Philip Havers QC for the trusts said this woman had asked doctors not to tell her sister that their father had tested positive for Huntington’s. And she declared at the time, she’d been “utterly terrified” about the impact on her sister adding that the situation should have been managed by health professionals.

In 2017, the Court of Appeal said the case should go to trial. She is now suing St George’s Healthcare NHS Trust in south-west London and St George’s Mental Health NHS Trust and Sussex Partnership NHS Foundation Trust for damages.

If she wins the case, it would trigger a major shift in the rules governing patient confidentiality, and raise questions over the potential duty of care owed to family members following genetic testing.

A spokesperson for St George’s Healthcare NHS Trust said: “This case raises complex and sensitive issues in respect of the competing interests between the duty of care and the duty of confidentiality. It will be for the court to adjudicate on those issues during the trial.”

Find out more here.

Citizenship

The fight to get citizenship for descendants of German Jews.

Reported by Emma Ducroix 

A British lawyer is accusing the German government of violating the country’s constitution by refusing to restore the citizenship of thousands of people descended from victims of the Nazis.

One of them is James Strauss who has lived in New York but in the 1930s his family ran an inn and butcher’s business in the town of Gunzenhausen. As Nazis rioted in the town, Julius Strauss, James’s father, was beaten unconscious and locked up in the town’s jail. As soon as he was able to, Julius fled Germany in fear of his life and settled in New York and he died as a result of his injuries in 1956. In 2015, James Strauss decided to claim his right to have the family’s German citizenship restored. He thought he had a watertight case when he made his application in 2017. “But when I arrived with the papers at the New York consulate, I was advised there was a problem,” he says. Strauss was told he was not eligible because his father became an American in 1940 – before he had been officially stripped of his German nationality.

London lawyer Felix Couchman is putting together a case to persuade – or force – the German government to stop excluding various categories of Jewish people from Article 116. Article 116 of Germany’s post-war constitution says descendants of people deprived of their citizenship during the Nazi era “shall on application have their citizenship restored”, but the German authorities are refusing the descendants of people like Julius Strauss on the grounds that they left “voluntarily”. It’s an argument that flies in the face of historical realities. Had Julius Strauss stayed in Germany he would have perished in the Dachau concentration camp, along with the other Jewish residents of Gunzenhausen.

In another case, Judith Rhodes’s mother, came to the UK in 1939 on the Kindertransport, an operation that brought thousands of Jewish children to safety while their parents remained behind. Rhodes, who lives in Yorkshire, is now active in Holocaust education in her mother’s home town of Ludwigshafen am Rhein.
To make it easier to continue doing this after Brexit, Rhodes decided to apply for German citizenship. But she was refused.
Rhodes’s application was rejected on the grounds that she was born before 1 April 1953, to a German mother married to an Englishman. “I think the attitude of the German government is that Jews should have stayed in the Third Reich and not fled to safety.”

Felix Couchman’s mother also came to the UK on the Kindertransport. He set up the Article 116 Exclusions Group when, like Judith Rhodes, one of his brothers was advised by the German Consulate in London that he would not be eligible to apply for German citizenship. Even though Article 116 says that descendants of Germans deprived of citizenship “shall… have their citizenship restored”, the consulate argued that under German naturalisation law citizenship could only be passed on through the father, up until the 1970s.

While Couchman and a Cambridge University PhD student, Nic Courtman, lobby political parties in Germany, his wife Isabelle runs a support network. Central to Couchman’s case against the German government is the atmosphere in which Article 116 was implemented.The head of the Interior Ministry department that dealt with residence and asylum was at that time Kurt Breull, a former Nazi who had made his anti-Semitic views clear during the 1930s. It was in this period that people like Julius Strauss, who had fled the country and taken another nationality before they were stripped of their German citizenship, were deemed ineligible.

Nic Courtman has studied the German government’s own investigations into the failure of de-Nazification, finding documents that show the Interior Ministry was aware of controversy surrounding Article 116 in the 1950s, when a commission was set up to examine possible reforms. That commission was led by Prof Ulrich Scheuner, a former Nazi supporter who, the documents reveal, supported the practice of trying to exclude certain groups. In August, the Article 116 Exclusions Group won their first battle. Two decrees issued by the German government, after pressure from the group, permit some of the descendants of Hitler’s victims to apply for discretionary naturalisation under the Nationality Act.

Judith Rhodes is one of those who might meet the requirements, but only if she takes a series of language and citizenship tests. For Couchman the concessions are “a partial resolution but do not cover all the exclusions”. “This is a discretionary act that you have to go in begging for,” he says. “What we want is our constitutional right under Article 116.”

Couchman’s group has some powerful allies and has managed to gain the support of opposition parties – the Greens, Die Linke and the FDP – who are leading a parliamentary investigation into the issue.
Couchman points out that in September Austria’s parliament unanimously ratified a law that extends citizenship to the descendants of Nazi victims who fled Hitler’s Third Reich.

As a final point, the fight has taken over the Couchmans’ lives. His grandfather, Fritz Beckhardt, was a German flying ace and World War One hero, but after the Nazis came to power his war record was wiped from the history books.

Find out more here.

Crimes against humanity

Violence against Rohingya: accusation of mass persecution and ‘ongoing genocide’ of Muslim minority

Reported by Emma Ducroix

The Rohingya are Muslims who live in majority-Buddhist Myanmar. They are often described as “the world’s most persecuted minority”. Nearly all of Myanmar’s 1.1 million Rohingya lived in the western coastal state of Rakhine. The government does not recognize them as citizens, effectively rendering them stateless.

The violence in Myanmar, described by the UN as ethnic cleansing and possible genocide, included the killing of thousands of people, the rape of women and children, villages razed and more than 600,000 forced to flee over the border into Bangladesh. Marzuki Darusman, chair of the UN fact-finding mission on Myanmar, said last year there was an “ongoing genocide” in Rakhine.

Between 600,000 and one million Rohingya were forcibly displaced from Myanmar to neighboring Bangladesh from 2016 as a result of ethnic cleansing, according to numerous human rights reports.

Judges at the international criminal court (ICC) have authorized a full-scale investigation into allegations of mass persecution and crimes against humanity that forced Rohingya Muslims to flee Myanmar into neighboring Bangladesh.
Myanmar is not a party to the Rome statute that established the ICC, but its neighbor, Bangladesh, has accepted the court’s jurisdiction.

The ruling sets a significant precedent in expanding the jurisdiction of the war crimes court.
By declaring that the ICC exercises jurisdiction over crimes where part of the alleged criminal conduct – in this case mass deportation – takes place on the territory of a state party, the ICC has extended its international law-enforcement role.

On Monday, a submission was made by the Gambia to the international court of justice (ICJ) accusing Myanmar of genocide through the murder, rape and destruction of communities in the country’s western Rakhine state.
The ICC decision, announced on Thursday, follows a request by the court’s chief prosecutor, Fatou Bensouda, for a formal investigation into alleged ethnic cleansing since 2016.

Extremist nationalist movements insist the group are illegal immigrants from Bangladesh, although the Rohingya say they are native to Rakhine state.

In its decision on Thursday, the ICC authorized the prosecutor to “proceed with an investigation for the alleged crimes within the ICC’s jurisdiction in the situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar”.

Three judges in the ICC’s pre-trial chamber, Judge Olga Herrera Carbuccia, Judge Robert Fremr and Judge Geoffrey Henderson, found “a reasonable basis to believe widespread and/or systematic acts of violence may have been committed that could qualify as the crimes against humanity of deportation across the Myanmar-Bangladesh border and persecution on grounds of ethnicity and/or religion against the Rohingya population”.

Myanmar’s population is overwhelmingly Buddhist, and the Rohingya, who are Muslim, have been stigmatized and targeted in attacks. Buddhist nationalists, led by firebrand monks, have organized an Islamophobic campaign calling for them to be expelled. Aung San Suu Kyi, Myanmar’s de facto ruler, has been condemned for her refusal to intervene and protect the Rohingya.

The ICC’s judicial authorization gives the green light for prosecutors to start collecting evidence that could form the basis for summonses to appear or arrest warrants for Myanmar’s military and political leaders.

You can find out more here.