“Intellectual Property (IP) Counsel for content companies need to embrace new technologies,” says Dean S. Marks, Senior Vice President, Intellectual Property, Warner Bros Entertainment, Inc. IP Counsel should work closely with their business counterparts to figure out how to make the most of potential opportunities afforded by new technologies and not view technological advances as just a threat, he goes on to say.

Marks is a speaker at the marcus evans IP Law Summit Fall 2013.

What challenges has the digital world brought to IP Counsel?

Unauthorized, infringing copies of our works can be uploaded and downloaded to a variety of devices and made available nearly instantly, on a global basis. Manufacture, shipping and distribution are no longer barriers to the illegal distribution of our content as they were in the world of physical piracy, such as unauthorized videocassettes and DVDs. The internet and mobile environment make it easy and seamless for a single unauthorized digital version of one of our works to be duplicated endlessly and distributed all over the world. However, mobile also presents a huge opportunity for us, as it is an additional platform on which people are increasingly consuming content.

Our philosophy at Warner Bros. is to try to get our content out to consumers via as many legitimate offers as we can on these new platforms and devices.

How can they capitalize on these opportunities?

They should work closely with their business and technical counterparts, to identify the best opportunities that exist for distributing content. Issues to consider include whether the new platform is better suited for a rental or sale opportunity, or perhaps as an add-on feature for those purchasing a physical copy of the work.

IP Counsel also have a role to play when it comes to managing the risks of these new platforms and technologies. They must work closely with the engineering and technical people, at both their own content company and the potential distributor/new platform partner, to understand how the content will be protected from a technical and digital rights perspective. Agreements with mobile platform providers, for example, should include provisions that require robust technical protection measures for the content and remedies in the case of hacks.

A win-win situation for the new platform provider/distributor and content owner is clearly possible. But they need to sit down early, and exchange views and concerns. They must work together, for example, to put digital rights management technologies and practices in place while ensuring that the content offers will be attractive to consumers and drive business to the new platform.

What technological changes should they plan for?

One change is the increasing speed with which content can be distributed online. For example, Google is building very high speed broadband networks in certain localities in the US. How will such high speed internet connectivity impact content distribution? In Korea, for example, high bandwidth speeds coupled with widespread broadband adoption decimated the physical home video market. But, at least for Warner Bros., the legitimate online and digital distribution of our content is now growing, leading to a rebound of our revenues in the home video window in Korea.

IP Counsel must be aware of changes in technology, bandwidth speed, file compression technology, cloud storage and delivery and new ways of accessing the internet in developing countries, so that they can both analyze threats and potential business opportunities quickly.

Any final words of advice?

If IP Counsel look at new technology solely as a threat to existing business models, then they will be on the losing end. Lawyers have a tendency to see changes as potentially threatening. Of course we need to recognize threats and to take appropriate actions, including legal actions, when our rights are violated. But equally, we need to put our skills towards assisting our business counterparts in creating and seizing new business opportunities afforded by technological advances and the emergence of new platforms.