Rosemary Klein is the Director of Television at The Television Affairs Consultancy (“TVA”) in London, England. She is a specialist advising as a business affairs consultant & lawyer in the factual, entertainment and children’s genres and has worked in Business & Commercial Affairs roles since 1990 advising on production, distribution, exploitation and protection issues. Ms. Klein graduated from the University of Windsor Faculty of Law in 1990.
You are the Director of Television at the TVA. Could you provide some more insight into your role?
TVA is a joint venture with Harbottle & Lewis, a specialised London law firm that provides legal services to the technology, media, sports and entertainment sectors. TVA represents independent producers, distributors, artists, creators across all media sectors. I also do work with broadcasters and licensing and merchandising and talent management agents. Essentially we provide commercial, legal and business affairs services at the appropriate price point for our clients in the media sector.
What would you say is one of the most unique features of your position?
I would say that one of TVA’s most unique features is that we are not regulated under the Solicitors Regulation Authority and provide commercial advice. Our focus in on the production sector. We are all very experienced in providing business affairs advice and production contracting services to our clients but because of our training and backgrounds as qualified lawyers when a client’s matter becomes a legal, tax or accountancy issue, (i.e. employment law issue, tax advice, corporate structuring, litigation, chain-of-title opinion) we refer them to appropriate legal or professional services. Because of our focus on solely providing business affairs services, we are very specialised and can remain up-to-date on all aspects of production contracting and the acquiring, use and exploitation of content across all genres and territories and can advise our clients in a commercial manner.
What are some of the challenges you faced, and perhaps continue to face, in your role?
One of the biggest challenges that is faced by our clients, is finding the money to produce programming and retaining as much ownership as possible in their original creations. There has been a drastic shift over the last 15 years in production financing models and the sharing of rights. In the not so distant past a simple rights model that was easily trackable, contractible and financed was commonly use. Now the manner in which content is exhibited, distributed, windowed and sub-licensed has made the contracting of rights incredibly complicated and far more international in scope. You may have 20-30 different financers playing into the production budget, which raises concerns about contractual obligations, exclusivity and the division of rights. Alternatively, we have the “back to-the-future” non-linear SVOD model from the likes of Amazon Prime, Netflix and Hulu who pay large sums of money to 100% finance new programmes but take all rights and pay a cinematic like share of backend profit. And piracy continues to be a big challenge to our clients’ financial models. It comes down to who is paying for the content. It’s very hard for the original creator of the underlying rights in content to get paid at times. We as professional advisers must remain current with the way consumers are accessing and paying for content and with how technology is distributed it in order to provide appropriate, innovative advice to our creative clients on how they can both protect and exploit the full value of their IP.
How did you manage to break through to the European legal market as a Canadian-trained lawyer? What were some of the challenges you faced along the way?
I was working at a law firm in Toronto with a London office and did a secondment in 2001 which focused on my working on multi-disciplinary teams that advised on IP transfers in large corporate transactions. As the technology and digital sectors rose, IP started to become the star of many multi-national businesses in the late 1990s. It was a bit of being in the right place at the right time. In England, commercial law is looked at as a separate specialty, while in Canada, commercial law tends to be fused with corporate law.
I had to write the Qualified Lawyers Transfer Scheme test (QLTS) and get a work visa from the law firm. As a qualified lawyer in Canada, I qualified to write the QLTS. I think it is slightly changed now, including a review which requires certificates of good conduct and of course there may be increased pressures on work visas post-Brexit. In the UK, Canadians, Americans, Kiwis and Australians are popular with London law firms. We are looked at as very good candidates because of our work ethic, fluency in the English language, background in English common law and the rule of law and the fact that we have a selective admission and job hiring processes, and are willing to work long hours. The firms are willing to train you in the differences in the law and in procedure. New lawyers should keep in mind that upon leaving law school and having a couple of years’ work experience you should have the basic skills to teach yourself the law for the rest of your life.
What prompted or inspired you to pursue a career related to intellectual property law?
I come from a family of lawyers who followed traditional career paths. (My brother Larry, The Honorable Justice Lawrence Klein, Ontario Court of Justice Windsor Law class of 78, plus my Father who was a lawyer and another older brother who now teaches law) so maybe internally I might have thought that I had to distinguish my approach to law from theirs in order to save the sanity of my Mother having to listen to another law story at the dinner table. Before I applied to law school I worked in stage and company management in theatre in Ontario for 3 years and legal issues were a constant part of the job and I enjoyed working with creatives. Specialising in intellectual property commercial law was a natural progression of my previous work passions. Being curious about my clients’ businesses makes my job very interesting.
How has the law related to your field evolved? Are there any major changes or shifts that you feel are most significant in your practice area?
One of the most significant changes has been the ability of intellectual property to travel worldwide almost instantly. Digital delivery and bespoke digital content has become increasingly dominant (though linear TV is not dead yet). This has also raised privacy and data issues and enforcement of rights issues and tax law and the question of international jurisdiction as IP has an easy ability to cross boundaries
Additionally, Brexit will have an impact on IP law in the U.K and subsequent commercial ramifications. We advise under EU Directives as well as the law of England and Wales. There are existing EU directives that legislate and impact, the media and digital industries and creators in the UK. This includes directives on audiovisual content production and distribution and access to European funding for production of content resulting in possible increases to production budgets due to the need to pay for work visas for non- British EU talent and skilled production staff to work on British productions. Plus, there is the risk of currency fluctuations. There may be a loss of talent, as certain creators and producers are not citizens of the UK. The Canadian production industry created and understood the importance of international co-productions and the reality that production will flow to where it is both cost beneficial to film and to where the talent is located or can re-locate with ease for filming.
Outside of Los Angeles, London has become the biggest broadcasting centre in the world, in part because of the welcoming regulatory environment of the UK, the satellite cable directives of the EU and the access to EU production talent and skills. A lot of the major broadcasters base their European transmission centres in London, where they are governed by English & EU law. That could all change with Brexit: London may lose hundreds of channels from various American and international broadcasters that are now broadcast from the UK into various EU jurisdictions leave the UK.
How has your career, particularly your current position, shaped your outlook on television and entertainment?
As a consumer of content – it has increased the variety of genres that I consume and it has made me very creator friendly but because I advise creators, producers, broadcasters and distributers I understand all points-of-view and this can help the negotiation process as I can explain to my client why another party may require a deal point and advise when to give on a point and when to hold. There is now a renaissance in scripted drama coming from all territories. The millennial generation is much more flexible and creative in terms of writing, producing, and putting their content out there. There is a lot of terrible content but also a lot of good content, just not enough time to view it all!
What advice would you give to a law student looking to pursue a career in Intellectual Property law, particularly in your field?
You have the opportunity to learn American IP law at Windsor Law. This will give you the ability to identify the differences between American and Canadian IP law and build an international perspective. Your undergrad interests and studies can also transfer through to what and how you practice law which can make your job a real joy within the various genres of commercial IP, technology or media litigation law. IP is just so varied and interlinked with other legal genres and travels well. You are rarely at risk of boring your family at the dinner table talking about what you did at work that day.