INFORMATION FOR READERS:
This resource aims to give a brief overview of developments in Intellectual Property law and other areas of law relevant to the music and entertainment industries. Each item is categorised according to relevant areas of the music or entertainment business, and by the date of uploading. Uploads are undertaken regularly and are organised on a monthly basis. These updates are designed to give general information for music and entertainment industry professionals and students interested in these areas. These Law Updates are not law reports or detailed references. Users who would like further information should research the relevant area thoroughly. Relevant references and links are therefore provided.
Law Updates also provides hyperlinks to other sites which may be of use or interest to students and those involved in the music industry. These are provided at the end of Law Updates under 'Music Business Law Links'.
This resource is compiled by Ben Challis. Ben is a UK lawyer specialising in entertainment law and a graduate of London University and The City University. Ben acts as General Counsel for 3A Entertainments and is Executive Producer for television of the Glastonbury Festival. Ben is a visiting Senior Lecturer in Law at Buckinghamshire Chilterns University College in England.
We are interested in your views on the Law Updates resource. Please forward any comments to : musiclaw01@aol.com
COMMENT : This Update examines some of the practical problems the record and entertainment industries are facing, and the varying approaches found in different jurisdictions when dealing with piracy and the challenges of the new technologies. The thread of this Update is neatly summarised by the words of John Schwartz, writing in the New York Times on September 22nd 2003: 'long-time watchers of technology trends say the entertainment industry's attack on peer-to-peer software - the technology at the heart of the song-swapping mania - follows a familiar pattern. Every technology can, of course, be used for evil or good purposes. Cars can be used in bank robberies, and radiation can cure cancer. But many new technologies go through a stage of demonization, and communications technologies come in for an especially tough hit from people who feel threatened by them. Long before
girding against the Internet, for example, the entertainment industry objected to cassettes and videotapes because they would allow people to copy music and programming without making additional payments. Even FM radio was opposed by the record companies at the outset because the high fidelity broadcasts were free. The early defenders of the industry did not understand the ways that the power of the new communications tool would help them market their goods to a broader audience.'
© 2003 New York Times.
COPYRIGHT
Record Labels
- Will Smart CDs provide an answer to file swapping? -
Recording companies are looking at a new generation of smart CDs that promise to stifle music fans' ability to use file-swapping networks while still allowing them some freedom to make copies and share music. BMG Entertainment's new album by hip-hop singer Anthony Hamilton will be the first commercial release to use a technology that restricts copying but lets buyers play protected CDs on computers and burn copies onto blank CDs. Fans can even send a limited number of copies to friends over the Internet. BMG is using the new copy-protection advancements by embedding Comin' From Where I'm From with MediaMax CD-3 technology from Phoenix-based SunnComm Technologies Inc. With MediaMax CD-3, each song is written onto the CD twice, once in a format readable by standard CD players and the other as a Windows media file playable on a computer.
BMG has set up the CD so fans can burn each track three times per computer. Songs can also be e-mailed to a limited number of people, who can then listen to the song up to 10 times each. SunnComm says that most people, unless they are hackers or truly determined, won't be able to circumvent the limits, including one that keeps songs locked so they can't be played even if they circulate over file-sharing networks. However it is interesting to note the words 'truly determined'. Most computer savvy teenagers have little trouble unlocking even complicated protection systems or finding loopholes.
A separate technology CDS-300 has been developed by Macrovision Inc., based in Santa Clara. This is also being used by labels including EMI. The Macrovision technology allows for CD burning and listening on computers. The CDS-300, however, blocks other attempts to make copies or share music online.
See: http://www.bayarea.com/mld/mercurynews/business/6913840.htm
ADDENDUM
After this article was written, it became apparent that a student who published details of how to circumvent the SunnComm technology by pressing a single computer key was facing legal action under the criminal provisions of the Digital Millennium Copyright Act. Princeton graduate, John Halderman, published a paper online showing how to defeat the copy-protection software. Mr Halderman found that SunnComm's MediaMax CD-3 software could be bypassed by simply holding down the shift key on a Windows PC when the copy-protected CD was inserted into a disc drive. This temporarily disables the autorun function on Windows, stopping the anti-piracy program from installing itself on the computer. It now appears that SunnComm have decided not to take any action.
This shows just how difficult it is for the record and film industries to defeat those determined to copy material in the digital age. As soon as encryption and protective technologies are written …. they are broken. In a separate matter, The MPAA (Motion Picture Association of America) are also looking for US Government support to ensure hardware manufacturers include content protection technology in future televisions (the so called 'broadcast flag'). The Federal Communications Commissions is due to rule on the matter.
See: http://news.bbc.co.uk/1/hi/technology/3180212.stm
http://www.eff.org
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COPYRIGHT
Record Labels, Internet, Artists, Film & Television
- Does the Recording Industry need a new model to exploit copyright? -
I remember the first VHS tape I ever brought in 1985. The cassette cost £29.99, a lot in 1985, and far more than I would pay for a film on video or even DVD now. This was at the time of the 1984 Sony Betamax case and the film industry was still coming to terms with the ramifications of the US Supreme Court's split decision that the Betamax machine was legal. But unlike the current situation with legal actions being filed around the world by the recording industry against the likes of Napster, Verizon, KazaA and even individuals who download files, the film industry made efforts to widen the consumption of their 'product' - films - through television, video rental, pay-per-view, sell-thru video and video on demand. Could this approach perhaps have been a useful lesson or basic blueprint for the recording industry? The film industry seems historically to have adapted to changes in
consumer habits alongside and embraced changes in technology - cinemas were improved, multiplexes built, new price structures launched and the film companies adapted to and explored the new media. This Law Update it written just two months after the RIAA issued 261 lawsuits against individuals for downloading an/or sharing files over the internet and the IFPI in Israel announcing 'zero tolerance' against file-swapping, filing a copyright infringement lawsuit in New York in late September against the Tel Aviv-based file-sharing network iMesh (which is registered in the U.S. state of Delaware) seeking damages and an injunction. iMesh is the third most used file swapping network worldwide after Kazaa and Morpheus.
An interesting article on this topic was written by Bob Cherry and published on http://www.cybergrass.com. The following is an edited extract from that article. A link to the full article can be found below this Update.
BAD MANAGEMENT - THE RIAA WAY
"The RIAA has said that "most albums lose money after you factor in artist royalties and marketing." USA Today said, "What's more, a study it recently commissioned found that if CD prices had grown as much as inflation since they rolled out in 1983, they'd now be $38.23." But what about the costs of production? Manufacturing of CDs costs only a small fraction of what it did 15 years ago. Blank CD's used to cost $15 each when they came out. Now you can purchase them in bulk for less than 1.5 cents each. And, Artist Royalties?!?!? Over 85 percent of artists NEVER see any royalties so this isn't part of the problem. What the Record Industry actually pays out in real royalties is an insignificant percentage of the gross dollar amount. Music artists make their money on the road doing actual performances. Why doesn't the Motion Picture Association of America (MPAA) suffer from the same problems? Maybe it's their management style."
Here is where it gets interesting. The cost to go to a movie is around $8 today. IMAX productions only cost about $12 for prime seating. By the time you add the cost of your popcorn, candy and drink, you're spending about $20. The cost to purchase the DVD of the movie at discount centers may be around $10 to $15.
Now, compare that to the cost to go to a concert. Tickets can run $35 to $100. Refreshments can easily add $5 to $15 more per person. The cost to purchase a 40 minute average length CD is $15 to $24. The movie DVD offers multiple languages, director commentary, special out-takes, multiple cinema promos, multiple video and audio features, multiple audio encodings and a wide variety of features like music videos or how they produced the movie. The books and cases for the DVD are a big improvement over the common VHS cassette tape packaging too. The DVD offers true digital audio and video and on a high-resolution big-screen television are great.
Now another interesting factor: According to the industry studies, the average cost to produce a motion picture is around $75 million dollars. Many run well over $200 million dollars to produce. Contrast that to the cost to produce a top-talent CD today. Maybe, if there is a music video also, the cost could approach $1 million dollars. On the average, the costs to produce a CD for a popular artists is about half that or $500,000. Both the record and movie industry produce flops that don't sell but the fact is that the movie industry has a lower failure percentage than the music industry. If the music side has too high a failure rate then the music industry should get better management.
Let's take a look at the recording industry and movie industry management differences. Once the MPAA had a strong fear of Video Recorders (VCR) but after the US Supreme Court found them to be legal, the MPAA embraced the technology. By providing a great value to the consumer, they can still keep audiences at the big screen and sell tapes and DVDs of their prime movies. People who purchase DVDs of movies don't feel like they're getting ripped off and the movie industry isn't complaining about declining sales of 20% per year.
You would think that after 30 years the RIAA members could learn something. People today still love the motion picture industry. The MPAA gives their consumer base greater value, low costs, improved theatre comforts, improved sound and realization systems. The RIAA gives its consumers lawsuits, threats, impossible licensing arrangements and an unsatisfactory mediocre product at escalating prices. And, the RIAA wonders why their customers don't like them. The RIAA should look at the motion picture industry. Nobody watches a movie over and over and over again yet they do listen to their music repeatedly. And the movie is a better value all the way around. When DirecTV, DishNetwork, Cable and other subscription television technologies were being developed to offer wide distribution of current movie titles, the MPAA quickly embraced that technology and offered reasonable licensing to these companies. When TiVo digital recorders and others hit the market, the MPAA didn't go out and sue every company out of existence.
We have the movie industry driving the technology and leading the consumer down a path to greater value and actually increasing their profits along the way. The consumer told the MPAA what they want and that industry provided it. It looks like it was the best decision they could have made. The RIAA has consumers screaming at them what they want, but, the RIAA only has deaf ears for the consumer. The RIAA lawyers want money and they don't want to invest in technology … and that technology may very well be their only hope to avoid extinction. And yet, for better than a decade, the RIAA has refused to read the play book written by the MPAA's success stories.
The above is printed (as edited) with permission of the copyright owner © 2003 Bob Cherry
first published September 2003 at http://www.cybergrass.com.
CYBERGRASS® is a registered trade mark.
The full article can be seen at: http://www.cybergrass.com/modules.php?name=News&file=article&sid=68
For another article on this topic, see: http://www.sunspot.net/news/opinion/perspective/bal-pe.music12oct12,0,567122.story?coll=bal-perspective-headlines
'Internet file-sharing and song-buying could be the latest in a century of technological advances opposed, then embraced, by those anxious to protect their profits'.
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COPYRIGHT
Internet, Record Labels, Artists, Music Publishing
- Germany considers new copyright reform -
The German Minister of Justice Brigitte Zypries has announced the "second basket" of reform for copyright laws for Germany. Zypries said she wanted to see the remaining provisions of the EU Directive of Copyright in the Digital Age enacted into law by next summer (see the position in the UK below). In particular the new laws will prohibit the right to make private copies made from digital sources. German commentators have remarked that this provision is similar to that of the US Digital Millenium Copyright Act and have pointed out that such a provision would be unacceptable; Copyright owners who protect their content by encyryption would be relieved from the obligation to offer access for privileged users such as libraries, schools or disabled persons and commentators add that basic constitutional freedoms would be undermined. Eva-Maria Michel, Legal Counsel of the WDR
Public Broadcasting Station has said that the provisions would be a violation of the constitutional liberties of the media. Michel warned that the copyright reform focuses too much on combating piracy and thereby destroy basic privileges in the copyright field.
The movie and music industries have, by contrast, lobbied to remove the right to make private copies completely. The German Phonographic Association have said that private copies, at least for music and films, merely substituted buying the products and were seen as a convenience by consumers. "Consumers are not able to clone their cars, so why should the cloning of our products be allowed?" The Association chair reiterated the negative effect of piracy on the music market: "We've lost one third of our market and had to lay off several thousand people last year and in 2003 we expect a lose another twenty per cent. You may see this as a disaster". The Association has said that it would fight to restrict the right to make private copies to very special cases. "It is not our intention to harm the consumer, we just cannot give away our products as free presents."
But Professor Reto Hilty, Institute for Foreign and International Patent, Trademark and Copyright Law, warned against using copyright laws to address economic problems. "Legislators still have to work on balancing of interests between artists and users, but many of the problems talked about by industry representatives are just purely economic problems. They have nothing to do with the original intention of traditional author-focused European copyright law." It was, said Hilty, in the interest of the industry to make their products and business models more attractive for consumers. So long as consumers had to pay €18 for a music CD knowing that the royalty for the original composer was not more than 72 cents the consumer would hardly be inclined to perceive him or herself as a pirate when sharing CD copies. "When Universal announces it is to cut its CD price by half, you as a consumer start to think about margins, don't you?"
Source: http://www.theregister.co.uk/content/6/32869.html
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COPYRIGHT
Record Labels, Internet
- Nintendo develops low cost 'piracy proof' console for China -
Nintendo has revealed plans to market a cheaper version of its Game Cube console in China, with a flash memory card instead of the optical disc reader found on models sold in other countries. Game Cube software is normally stored on proprietary 1.5GB optical discs. Optical discs, such as DVDs and music CDs, are routinely counterfeited in China.
Chinese users will have to take the Game Cube card to a shop and pay for the download of new games. The data cannot be extracted or cloned from one card to other cards, nor can a card for one console be used on other consoles.
Nintendo hopes that the modified Game Cube overcomes to two obstacles holding back console makers from the potentially lucrative China market - the spending power of the consumer and rampant software piracy. The game device - dubbed iQue Player - is said to be capable of playing both SNES (Super Nintendo Entertainment System) and Nintendo 64 titles, and will sell for 498 yuan (US$60), including the memory card, according to games web site Total Video Games. It will be sold from mid-October in Shanghai, Guangzhou and Chengdu in an effort to enable the efficient distribution of goods, the protection of copyright and smooth collection of revenue in China.
See: http://asia.cnet.com/newstech/personaltech/0,39001147,39152964,00.htm
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COPYRIGHT
Record Labels, Music Publishers, Artists, Film, Television
- Taiwan copyright law revisions 'a step backwards' -
The Taiwan Anti-piracy Coalition have said that the country's revised copyright laws are a step backwards in the fight against piracy. The Coalition said the removal of minimum penalties on some intellectual property offences was a major concern. The Legislative Yuan passed the revised Copyright Law in June 2003 after making a total of 53 changes to a draft originally proposed by the Executive Yuan. According to the Coalition, these changes have seriously weakened copyright protection, especially regarding penalties for copyright violators, since the law now defines a copyright violation as making more than five copies of a product or selling copies that are worth more than NT$30,000 on the street. This means that persons who make fewer than five copies or less than NT$30,000 will not be regarded as criminals. In addition, the Coalition argue that the removal of the minimum
six-month prison penalty would make people less worried about infringing copyright. The Coalition said the lack of adequate intellectual property protection will have serious consequences for industry and the future of the nation's economy.
See: http://www.taipeitimes.com/News/biz/archives/2003/09/17/2003068192
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COPYRIGHT
Record Labels, Music Publishers, Internet
- Ghana to introduce new copyright legislation -
The current Copyright Bill before Ghana Parliament will provide for the creation of a Copyright Tribunal which would have substantially increased penalties available against those who infringe the rights of authors and composers in Ghana. Professor George Hagan, Chairman of the National Commission on Culture, said the Bill met the minimum requirement of the World Intellectual Property Organisations (WIPO) Internet Treaties. At a four day conference, over 30 executives from African intellectual property organisations looked at the problems of piracy on a pan-African level as well as the negative affect of piracy of Western copyrights on African culture. "African culture faces the real risk of being adulterated under the guise of foreign influences, whilst the advanced world are progressively adopting measures to protect and promote their cultural heritage," Prof. Hagan said. Ghana,
through the active collaboration of the WIPO, International Federation of Reproduction Rights Organisation (IFRRO) and the Reproduction Rights Organisation of Norway has now succeeded in establishing a Reprographic Rights Organisation. The Conference was convened under the auspices of the Copyright Society of Ghana in collaboration with the International Confederation of Societies of Authors and Composers (CISAC) and the WIPO.
See: http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=44752
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COPYRIGHT
Publishing
- Japanese authors to win lending right -
The Japanese Cultural Affairs Agency intends to require major book-lenders to pay copyright royalties to novelists, cartoonists and other holders of copyrights. The plan is part of an effort to address growing concerns that an increase in the number of major chains entering the book-lending business could violate cartoonists and authors' copyrights.
For years, shops renting out books, magazines and other publications have been exempted from the law governing payment of copyright royalties. The Agency plans to submit a bill to revise the Copyright Law to the next ordinary session of the Japanese Diet.
Under the proposed bill, major book-lenders will be obliged to pay royalties to copyright holders, such as novelists and cartoonists, starting in 2005 at the earliest.
Copyright holders have the right to restrict the lending of copyrighted material under existing Copyright Law. With videos of Japanese movies, video rental shop operators buy the videos for three to four times the market price to cover the cost of copyright royalties paid to film companies and scriptwriters. In the case of music compact discs, composers, performers and music production companies have the right to lend out the copyrighted material on the CDs. According to the Agency, CD rental stores pay about 10 billion yen a year in royalties to copyright holders. But authors of books and magazines have been denied lending rights in light of the fact that small book rental stores have contributed to the development of the nation's publishing industry.
However, large-scale book rental chains began entering the book-lending industry this year, in combination with major video and CDs rental chains. The right to lend copyrighted material was established under the Copyright Law in 1984, when the number of record rental stores nationwide grew to 2,000, so that profits from the rental industry would be distributed to copyright holders, as well as lenders.
An additional clause stipulates that books and magazines be exempted from this rule. The agency plans to abolish this additional clause when the law is revised.
See: http://www.yomiuri.co.jp/newse/20031001wo32.htm
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COPYRIGHT
Film & Television, Internet, Record Labels
- Sentencing for online film piracy -
A New Jersey man who pleaded guilty to illegally copying and posting a digital version of summer action movie "The Hulk" on the Internet received a three-year probation, was fined us $2,000 and was ordered to serve six months confinement in his home. He also must pay $5,000 in restitution to Universal, the company that produced and distributed the movie. Kerry Gonzalez pleaded guilty to one count of copyright infringement. He admitted to receiving an unfinished copy of the movie from a friend who in turn sourced the 'work print' from a third party who worked for an advertising agency. No one from the ad agency has been charged. The FBI traced the Internet copy back to Gonzalez through an encoded "security tag" on the print.
The Motion Picture Association of America already puts the number of films pirated off the Internet at 400,000 to 600,000 a day, and no one has calculated
what that costs the industry. Jack Valenti, the president of the MPPA, went before Congress in March to warn that "America's crown jewels - its intellectual property - are being looted".
See: http://www.philly.com/mld/inquirer/2003/09/27/news/local/6873888.htm
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COPYRIGHT
Record Labels, Internet
- Sentencing for the online sale of pirated CDs -
New Yorker Alan Davis was sentenced to six months in jail after being convicted of using the Internet to sell hundreds of CDs that were loaded with unauthorised copies of songs. Davis, 42, of Brooklyn, was also ordered to pay $3,329.50 (£2,000 approx). Judge Walton in the US District Court of Washington DC also sentenced Davis to one year of supervised parole, to be served upon his release from jail, and barred him from using a computer for one year. Davis had admitted using his site, EmpireRecords.com, to market more than 100 different CDs and cassette tapes featuring compilations of copyrighted materials from various musical artists. He was caught after an FBI agent ordered 200 CDs and had them shipped from New York to Washington. The Web site has since been shut down.
See: http://news.zdnet.co.uk/business/legal/0,39020651,39117063,00.htm
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COPYRIGHT
Record Labels, Music Publishers, Live Concert
- Suspended prison sentence for contempt of court for repeat copyright infringer: PPL v Tierney -
Regular 'users' of music who either refuse to pay licence fees at all or who do so only under threat of legal proceedings are the bane of music collecting societies. The threat of legal proceedings does not always dissuade a repeat infringer. Furthermore, some infringers are prepared to ignore court orders or undertakings which they have given to the court. In this case the defendant Mr Tierney, the proprietor of an establishment in Guildford, breached a court order by failing to pay licence fees to Phonographic Performance Ltd in relation to certain sound recordings played at his establishment. He had also failed to comply with undertakings given to the court on a number of occasions. Failure to comply with a court order is a contempt of court which is punishable by a fine or an order for committal to prison.
PPL applied for an order to commit Mr Tierney for contempt of court in respect of his failure to comply with the court order. It had reportedly made seven previous applications of this nature against Mr Tierney. PPL succeeded in its application. Mr Tierney had been warned of the consequences of further breaches of the court order only six months previously. The court imposed a term of imprisonment of 35 days. In order that the sentence had the effect of ensuring future compliance, the court suspended the sentence for 40 months.
This case demonstrates that the courts are prepared to impose prison sentences on those who breach court orders designed to prevent copyright infringement. It sends a clear message that the courts will support collecting societies in their efforts to deal with persistent offenders.
This is an edited version of a 'Simkins Early Warning' written by Martyn Bailey and Dawn Hutton at the Simkins Partnership. This update is © The Simkins Partnership. This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters.
Please see www.simkins.com or contact earlywarnings@simkins.com
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CHARACTER (IMAGE) RIGHTS
Artists
- Assertion of character rights in UK advertisement -
It seems that one of the UK most successful advertisements ever will feature in a High Court action. The advert features two 'twin' runners with wild hair and handlebar moustaches in 70s style striped singlets and cut-away shorts running across the country promoting the new directory enquiries number 118118 owned by US firm The Number. 118118 has captured 50% of the directory market from British Telecommunications. The runners have sparked of huge popular support and widespread 'cult' appreciation. But David Bedford, the British 10,000 world record holder in 1973, claims the runners are based on his image. Mr Bedford's solicitors have written to The Number claiming the advertising is based on Mr Bedford's image, in particular his 1973 image, which featured wild hair, moustache, striped singlet and cut away shorts. The Number have rejected the claim as 'ridiculous' and claim the
118118 runner image is an 'aggregate' on 70's runners and that most runners of that era sported wild hair and facial hair. They say that the only runner actually looked at was a friend of Mr Bedford's from the 70s, Steve Prefontaine who died in a car crash in 1975. Mr Bedford, 53, is the race director of the London Marathon.
Actions for image or character rights are relatively new in the UK and are based on an intellectual property - the image - which can be passed off. Most recently the F1 Grand Prix driver Eddie Irvine won an action against TalkSport Radio who used a digitally manipulated image of the driver so that Irvine was seen to be 'listening' to TalkSport. The court recognised a property right in Irvine's goodwill which could be protected from commercial exploitation.
See Law Updates June 2003: British singer Miss Kier alleges that her character rights are being used without consent
See Law Updates July 2003: Spike Lee wins surprise victory in action over Viacom's 'Spike' channel
For an analysis of the 118118 item, See: The Guardian 13 October 2003, Media p10.
and See: http://news.bbc.co.uk/1/hi/uk/3166092.stm
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CONTRACTS
Artists
- Ex-manager wins case against Holly Valance -
Holly Valance's ex-manager, sacked by the star when her pop career began to take off, has won his action against the star in an Australian court. The Court held that Vallance had unfairly terminated the contract of Scott Michaelson in January 2002. Lawyers for Valance claimed Michaelson - like Valance, a former Neighbours actor - had been ill-equipped to manage the star's burgeoning music career.
Michaelson is seeking £160,000 in lost income, a 20% cut of sales of Valance's second album and exemplary damages. The Court will now assess damages. Valance first found fame in Neighbours. She released her first album, Footprints, in October last year.
See: http://news.bbc.co.uk/1/hi/entertainment/showbiz/3161392.stm
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COPYRIGHT
Artists, Record Labels, Music Publishers, Internet, Film, Television
- EU Copyright Directive will finally be implemented in UK law -
Legislation implementing the European Copyright Directive has finally been laid before the UK Parliament. Among other things, it extends the UK's copyright laws to deal with digital piracy, albeit ten months behind the EU's deadline. The Copyright and Related Rights Regulations 2003 will amend the Copyright Designs and Patents Act of 1988 and will come into force on 31st October. The Copyright Directive, passed in 2001, was the EU's attempt to update copyright protection to the digital age. It is also the means by which the European Union and its Member States will implement two 1996 World Intellectual Property Organisation (WIPO) Treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
The new Regulations are available at: http://www.legislation.hmso.gov.uk/si/si2003/20032498.htm
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CONTRACTS
Artists
- Limp Bizkit sued by irate fans -
Limp Bizkit are being sued by 172 rock fans who attended July's infamous Chicago show, which ended after only 17 minutes when the band were booed off stage. A lawsuit was submitted yesterday to District Court in Illinois. The band were supporting Metallica on the Summer Sanitarium tour, at Chigaco's Hawthorne Racetrack. The suit alleges that the plaintiffs were expecting a ninety minute show but the band's front man, Fred Durst, fired-off a tirade against the city and the audience, before challenging the entire crowd to a fight. The breach-of-contract suit has been filed by Michael Young, the lawyer acting on behalf of the 172 aggrieved concertgoers, who are seeking a $25 refund from the July 26 show opening the door to up to 40,000 re-payment claims.
See: www.dotmusic.com
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PATENT LAW
Internet
- Microsoft, OD2 and Tiscali face patent action -
Microsoft MSN Music Club, Tiscali Music Club and Peter Gabriel's OnDemand Distribution (OD2) are facing a patent infringement lawsuit in a German court over their on-demand music services. New York-based E-Data filed the lawsuit last Tuesday in the German court of Mannheim, seeking an injunction against the German subsidiaries of Microsoft, Tiscali and OD2 to defend its European patent EP0195 098B-1. The patent covers the downloading and recording of information, such as music, films and text from a computer onto a tangible object such as a CD or a sheet of paper. The patent also covers nine other European Union countries (the UK, Austria, France, Switzerland, the Netherlands, Italy, Luxembourg, Belgium and Sweden. The original patent was granted in the US in 1985 to Charles Freeny for his "system for reproducing information in material objects at a point of sale location". Both the
MSN Music Club and the Tiscali Music Club use OD2's music catalogue of over 200,000 recordings. Because E-Data's US patent has expired, Apple's popular digital music store, iTunes, is not subject to any action but E-Data's lawyers have written to Apple to alert them to potential patent problems should iTunes be launched in Europe without proper licensing agreements.
See: http://www.arnnet.com.au/index.php?id=1453215694&fp=2&fpid=1
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PATENT LAW
Telecommunications, Internet
- European directive on patents for computer software -
The European Parliament (September 24th 2003) has passed a resolution for a proposed directive to harmonize rules on software-related patents in its member states titled Directive on the Patentability of Computer-Implemented Inventions. Its aim is to provide clear guidance on what software-related subject matter may be patentable. Under the proposed Directive, in order for a computer-implemented invention to be patentable, it must make a technical contribution to the state of the art. An invention will not make a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. The invention may only be claimed in the patent as a product or a technical production process using hardware under the control of software.
See: http://www3.europarl.eu.int/omk/omnsapir.so/calendar?APP=PDF&TYPE=PV2&FILE=p0030924EN.pdf&LANGUE=EN
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PATENT LAW
Record Labels, Internet
- DVD pioneers consider Warners suit -
The inventors of the world's first combined compact disc and DVD are considering legal action against Warner Music, one of the largest record groups, amid allegations of breach of contract and patent abuse. The Dierks Group, the privately-owned German music and technology group that pioneered the double-sided CD and DVD, has warned Warner that it has patents and contract rights over combined music and video discs after the US group signalled plans to manufacture so-called dual discs. Warner Music, a subsidiary of Time Warner, is planning to launch dual discs in the US next year in a potential tie-up with Sony Music, part of the Japanese consumer electronics and entertainment giant.
Dieter Dierks who patented the combined disc technology under the name DVD Plus, has written to Warner Music claiming it has licenses over production of such discs and royalty agreements that promise a share of future profits arising from sales by the US group.
See: www.cdfreaks.com/news2.php?ID=8078
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COMPETITION LAW
Television
- Granada and Carlton Free to merge -
In a move which surprised many industry commentators, ITV giants Granada and Carlton are to merge to form a single ITV in England and Wales. The companies were given outline permission by the Trade and Industry Secretary, Patricia Hewitt, with only limited restrictions. The Competition Commission had advised the minister that the merger would not breach competition laws provided there are conditions attached to the way advertising is sold. At one point it seemed likely that the merged group would not be able to sell its own advertising as the new entity would control 52% of all UK television advertising as the new entity would control 52% of all UK television advertising (worth more than £3 billion). The Competition Commission have recommended a series of rules to prevent market abuse. As well as restrictions on advertising sales, the merged ITV group must agree to a package of
safeguards to protect the protect the remaining three independent channel 3 broadcasters - The Scottish Media Group (Scotland), Ulster (Northern Ireland) and Channel TV (Channel Islands). In response ITV's main commercial rivals in the UK (Channel 4, Five, BSkyB and Flextech's 'UK' channels) are considering a joint advertising sales house. One of the reasons for the merger is to give the UK industry a unified commercial channel, but the merged group is still dwarfed by European and US television broadcast giants.
Statistics: The Stage October 16, 2003.
and See: www.thestage.co.uk/paper/0341/0103.shtml
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COPYRIGHT
Record Labels, Telecommunications, Internet
- Nokia hit by piracy of handset games -
The secret codes protecting games which can be played on Nokia's combined telephone/games platform N-gage have already been cracked and the games can be downloaded from the internet and can be played on other games consoles. The software for the games had already been licensed to a number of companies including Samsung and Siemens.
Source: www.timesonline.co.uk/business
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EVENT SAFETY LAW
Live Concert Industry
- Insurance Bottomley -v- Secretary & Members of Todmorden Cricket Club and Others -
A seemingly uninteresting case involving a cricket club could have important ramificatons for the live event industry in the UK. In the Court of Appeal decision a small cricket club which engaged an independent contractor to put on a pyrotechnics (fireworks) display at the ground was held to owe a duty to ensure that the contractor had adequate public liability insurance. It made no difference that the contractors were paid a fee. Lord Justice Brookes said there might be many occasions when an occupier could be liable in negligence in respect of activities permitted or encouraged on his land. Here, the club allowed a dangerous event to take place on its land with no written safety plan and no insurance and the occupier could not show that they had taken reasonable care to select a competent contractor. The club was therefore liable in damages for injuries sustained by the claimant
who had been employed by the contractor to help with the event. If the occupier of the premises could show that they had taken reasonable care to select a competent and safe contractor then they would normally escape liability. In those circumstances an injured employee or agent would have to look to their employer or the contractor for compensation. But, if an occupier wants something dangerous done on their land then a liability may be imposed on the occupier (as well as the contractor) in certain circumstances. On the facts of the case this was one of those instances.
See: The Times Law Reports, 13 November 2003
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DATA PROTECTION AND PRIVACY
Internet, Artists
- Criminal Proceedings Against Lindqvist ECJ C101/01 -
This case arose out of a simple set of facts. A religious instructor for the Swedish Church, Bodil Lindqvist, posted up webpages on her home computer which were aimed to help parishioners prepare for their confirmation. The administrator of the Swedish Church's website provided a link from their website to the defendant's webpages at her request. The webpages contained information about colleagues of the defendant with first names and in some instances full names, address and telephone numbers. The defendant also remarked that one colleague was on half time work because of medical reasons - she had injured her foot. The web pages were mildly humerous but the defendant had not asked for permission from any of the parties featured. She also had failed to notify the Datainspektionen, the relevant Swedish supervisory authority, of her activities.
The Defendant was charged with (i) processing personal data by automatic means with notification to the relevant authority (ii) processing sensitive personal data without authorisation and (iii) transferring the data to a third party [via the internet].The Gota Hovratt (Court of Appeal, Gota) referred the case to the European Court of Justice for clarification of EC Directive 95/46/EC.
Article 3.1 provides that "The Directive shall apply to the processing of personal data wholly or partly by automatic means." Here the data was processed by the defendant and was personal - names, addresses, jobs etc, and so 3.1 applied. Article 3.2 excludes data processing when it is outside the scope of EC law and in any case concerning "public security, defence and state security ... or for purely personal activities". 3.2 does not exclude data processed for religious or educational activities. The Defendant would therefore fall under this section: she had processed data, had no exclusion, it was not personal use and she had not notified the Datainspektionen.
Article 8 provides that "member states shall prohibit ... the processing of data concerning health." Again the defendant fell within this heading. She had used medical information regarding her colleague's injury.
Article 25 provides that "Member states shall provide that the transfer to a third country of personal data shall only take place .. if the third party country in question ensures an adequate level of protection". The ECJ held that by placing the data on a website the defendant had not transferred the data to a third party country. This is quite an interesting point and can be compared to the recent case of Gutnick -v- Dow Jones (where publication on the Internet was held to be 'global' publication).
The ECJ finally held that the provisions of Directive 95/46 did not fall foul of Article 10 of the European Convention of Human Rights (freedom of expression). Measures taken by member states to implement the Directive and to protect personal data had to be fair and must balance the right to protection of privacy with the freedom of movement of personal data.
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© 2003 Ben Challis