TRADEMARK
All Areas
-New .EU domain names to be available in 2005-
The new .eu top level domain names are to be phased into use in 2005 following an agreement reached between the European Commission and EURid, the registry responsible for the new .eu domain name. The first period of registration, the 'sunrise period', will allow those with registered trademarks , names of public bodies and territories governed by such bodies the right to apply for the .eu suffix. The application for the domain name must exactly match the name registered or for that which priority registration is claimed and evidence supporting the registration must be provided within 14 days of application. This phase will last for two months probably starting in April or May 2005. After the sunrise period the .eu domain will 'go live' and be freely available on a first come first serve basis. Certain names will not be registerable by EURid (eg geographical names and those which are clearly defamatory). Evidence may be adduced to support a registration (such as the name of a company registered with Companies House) but where an application is based on an unregistered right or mark then the onus will be on the applicant to produce evidence supporting the application - brochures, packaging, products, catalogues, advertisements and similar materials. The new rules include a specific policy for resolving disputes which is similar to existing policies adopted by domain name registrars such as Nominet; The complainant will need to show that the domain name in question has been registered in bad faith by a third party with no legitimate interest in the name.

See : http://www.eurid.org

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COPYRIGHT
Record Labels, Internet
-BPI and IFPI take action against Jetgroove.com-
An international anti-piracy action by the BPI and IFPI has led to the removal of over 50,000 tracks and albums being offered for sale at the website jetgroove.com. Jetgroove claimed that they would pay royalties to the copyright owners based on the material that was actually downloaded, but the website prompted numerous complaints from IFPI and BPI members on the grounds that these tracks were being made available without permission. The content providers were based in Moscow and the Domain Name Server & streams were hosted on US servers. IFPI sent a strongly worded cease and desist notice to the content providers requesting the immediate removal of the infringing material.

BPI Director of Anti-Piracy David Martin said: "Whether it's individuals illegally uploading files to peer-to-peer networks or companies seeking to make money out of our members' copyrights without permission, the BPI's anti-piracy unit is here to protect our members' rights". Although none of the current remaining tracks and albums are believed to be infringing members' copyrights, the BPI and IFPI will continue to monitor the site. Any BPI members who have content on the site should contact antipiracy@bpi.co.uk with the full details of the tracks concerned.

See : http://www.ifpi.org

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HEALTH & SAFETY
Live Concert Industry
-Reggae Star refused entry to UK-
Jamaican reggae star Sizzla Kalomji has been refused entry to the UK. Sizzla's lyrics which are allegedly homophobic are under investigation by the police. The singer has also allegedly supported the burning of homosexuals and murder of all white people. He was banned form the UK by Home Secretary David Blunkett.

Source : The Times, 5 November 2004

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CRIMINAL LAW
All Areas
-Rap label bookkeeper faces money laundering charges in the US-
A bookkeeper for the hip-hop label Murder Inc has been arrested on charges of laundering drug money and hiding some of the label's earnings from the Internal Revenue Service, according to an indictment in Federal District Court in Brooklyn. Cynthia Brent, pleaded not guilty and was released on bail. The indictment comes almost two years after federal agents raided Murder Inc.'s New York offices as part of an investigation into ties between its founder, Irv Gotti, and a Queens' drug dealer, Kenneth McGriff. Investigators are trying to determine whether Mr. McGriff, currently serving a prison sentence, used his drug profits to help Mr. Gotti start Murder Inc. According to the indictment, Ms. Brent conducted financial transactions that involved money she knew to have come from drugs. She is charged with two counts of money laundering. The indictment also states that in the fiscal year beginning in October 2000, Ms. Brent divided large amounts into small deposits of less than $10,000 to avoid reporting rules. The small deposits added up to more than $100,000, the indictment states.

See : http://www.nytimes.com/2004/11/09/nyregion/09rap.html?oref=login

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TAXATION
All Areas
-Tennis Star's Court of Appeal hearing will have important ramifications for the international live tour business-
Andre Agassi has launched an appeal against the Inland Revenue in the United Kingdom in a case which will have implications across the sporting and entertainments worlds. The tennis star is fighting an Inland Revenue decision to allocate a taxable charge against some of his sponsorship income even though he is a foriegn national and the monies were paid to him outside of the UK by a non resident sponsor. The Inland Revenue deemed that some of the income from the sponsorship must be attributable to tournaments and public appearances made in the United Kingdom. The High Court (Mr Justice Lightman) has already rejected his challenge against the assessment of a tax payable of 250 (E40,000 approx) in respect of payments from Nike and Head even though neither company had a tax presence in the UK. The High Court ruled that the payments, made in the 1998/99 tax year, fell within the provisions of the Income and Corporation Taxes Act 1988 and supported the Inland Revenue assessment on the basis that at least part of the payment was derived from time Agassi spent at tournaments in the UK including the Wimbledon grand slam event. The Court of Appeal hearing continues.

COMMENT :This case has clear implications for touring artists where a sponsor payment could be subject to tax charges in a number of countries on an international tour even where the original payment may have been taxed in the country of origin and/or where the artist is a taxpayer. This could result in complex double taxation issues and financial complexity when planning an international tour backed by sponsorship.

Source: The Times 5 November 2004

See The August 2003 Law Updates for the European Court of Justice decision regarding the illegality of German withholding tax applied to touring artists in the Arnoud Gerriste Case C-234/01 12 June 2003

ADDENDUM
Andre Agassi has now successfuly appealled this decision: The Court of Appeal has said that he is not a person who could be charged for income tax in these circumstances and the provisions of section 555 of the Income and Corporation Taxes Act 1988 did not impose a liability. This will be updated in the January Law Updates.

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TAXATION
Artists
-New Pension Law Revisions in Italy Challenged by Ballet Stars-
Italian ballet stars have threatened to strike if proposed reforms to pension laws mean they have to keep working until normal retirement age. Italian dancers escaped reforms eight years ago when new pension laws designed to harmonise retirement ages excused ballet dancers allowing retirement at age 45 for women and 52 for men. The new rules would mean ballet dancers would not be eligible for pensions until at least 60 years of age post 2008. Deputies in the Italian parliament are lobbying the Parliamentary Budget Commission for amended legislation allowing ballet dancers to retire between the ages of 47 and 49. The new legislation covers dancers employed by Italy's opera and ballet companies including dancers at La Scala and the Rome Opera House.

Source: The Times 5th November 2004

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COPYRIGHT
Film Industry, Record Labels, Internet
-Hollywood film studios to sue individuals who swap pirated copies of films over the Internet-
The Motion Picture Association of America (MPAA) has said that it will follow the example set by the record industry and file the civil suits against individuals who upload/download films and swap these over the internet and would seek damages of up to $30,000 (300) per film. Dan Glickman, head of the MPAA, said the lawsuits were necessary before high-speed internet access made downloading pirated films easier. The MPAA have said it will file hundreds of lawsuits commencing November 16 commenting that "Illegal movie trafficking represents the greatest threat to the economic basis of movie-making in its 110-year history." The crackdown will target individuals who deal in illegally copied cinema products on file-swapping networks, as well as the pirates themselves. Glickman added: "People who have been stealing our movies believe they are anonymous on the internet, and wouldn't be held responsible for their actions. "They are wrong. We know who they are, and we will go after them, as these suits will prove." The MPAA claims the US film industry loses more than $3bn every year in potential global revenue because of piracy. But Glickman said the figure did not take into account the losses from thousands of illegal online downloads that were swapped every day. The MPAA represents the seven major Hollywood film studios. One of the problems the MPAA will face is that unlike the now numerous legal music download sites such as i-Tunes, Sonyconnect and mycokemusic.com there is no equivalent legal download sites for films as yet. The Recording Industry Association of America and other recording industry trade associations faced numerous complaints when they first launched legal actions against internet service providers and individual downloaders that they had failed to launch legal download sites so allowing the illegal practice of file swapping to develop almost unchallenged.

See : http://news.bbc.co.uk/1/hi/entertainment/film/3984755.stm

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COPYRIGHT
Record Labels, Music Publishers
-Pensioners unlicensed tea dance attracts the attention of the PPL-
Dancers at an over-60's tea dance club are calling to be let off from paying fees for copyright use. Members of the High Wycombe club face having no music if they do not pay the a-year charge to the Performing Rights Society and Phonographic Performance Limited. The club, who meet once a fortnight at the Reggie Groves Centre in High Wycombe are appealing to the societies to waive the fee. The members enjoy two hours of dance to the music provided by 87-year-old Charlie Bristow from his personal CD collection. Mr Bristow, who has won national dancing awards, said dancing was good healthy exercise for older people. Charlie has been running the club for 16 years, playing organ and dance band music from people such as Victor Sylvester and Joe Loss. "None of that modern rubbish", he says. Mr Bristow went to Wycombe District Council to complain about the extra costs and to see if the council could help with cash But the council could not offer much help saying that it was the PPL calculated how much people had to pay, not the council. The club was let off paying last year but would have had to pay this year. It was only a further 6p on the entrance fee the council noted, adding that the club got a discounted rent and had a grant from the council. Phonographic Performance Limited said it would not waive the fee, which it considers reasonable. The fee goes to the record labels, recording artists and session artists. The PRS fee goes to songwriters.

See : http://www.bucksfreepress.co.uk/news/localnews/display.var.536600.0.storm_in_a_tea_dance.php

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COPYRIGHT
Record Labels, Internet
-Puretunes operation ends in $10 million victory for the Recording Industry Association of America-
The Recording Industry Association of America has won an important battle against the four men behind Puretunes who attempted to take advantage of what they perceived as a loophole in Spanish law to allow them to sell MP3s online legally.The four individual defendants have, along with the company that owned the site they ran, agreed to pay music labels $10.5 million to settle the copyright infringement case brought against them by the Recording Industry Association of America. The RIAA sued Wayne Rosso, Daniel Rung, Michael Rung, Matthew Rung and Sakfield Holding Company SA in July 2003, alleging copyright infringement and that the defendants had defrauded customers into believing the music downloading site, Puretunes.com, had secured licenses from RIAA members even though they hadn't. The site was established in Madrid May 2003 to sell music subscriptions, falsely believing that a loophole in Spanish law would allow it to sell US music licensed through Spanish music publishing agencies, without having to consult the record labels themselves. According to Rosso, the company shut down Puretunes.com in June 2003, after just a month in business, once they realized this was not the case. During its operation, Puretunes sold download subscriptions, ranging from $4 for eight hours a month access to the site, to $168 for a 12 months' access. Numerous former users have alleged they never received refunds when the site closed. The settlement of that suit will see Sakfield pay RIAA members $10 million, with Rosso and the Rungs together coughing up an additional $500,000. All of them have agreed not to undertake any activity that would violate music labels' copyright.

See : http://www.thewhir.com/find/articlecentral/story.asp?recordid=1042

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COMPETITION LAW
Record Labels
-New York Attorney General Investigates 'Payola' Charges Against Majors-
The New York Attorney General, Eliot Spitzer, has targeted the major labels in the US (Warners, Universal, EMI, BMG-Sony) in an anti corruption investigation into payola - securing radio airplay for acts. Mr Spitzer has issued subpoenas to EMI and the other majors to seek details of any links between record companies and independent pluggers who are used to promote artistes to radio stations. Mr Spizer is investigating whether the use of 'go-betweens' violates anti-payola laws in the US - enforced by the Federal Communications Commission which prevent labels buying airtime. In 2002 the RIAA called on the US Government to bolster the laws and investigate questionable practices in the radio industry.

Source: The Times 23 October 2004

and see : http://www.guardian.co.uk/business/story/0,3604,1334252,00.html

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DEFAMATION
Artists, Internet, Broadcasters
-ARTICLE: Forum non conveniens Principles upheld in Claim Against Schwarzenegger. Richardson v Schwarzenegger & Others (2004)-
Jonathan Coad, Solicitor, Simkins Partership
This case where judgment was handed down on 29 October 2004 concerned the allegations which surrounded Arnold Schwarzenegger as he stood for election as governor of California. The claimant was the television presenter Anna Richardson. She was one of a number of women who came forward and suggested that Schwarzenegger had engaged in inappropriate conduct. It was the denial of these allegations and suggestion that they were fabricated which gave rise to a claim in which the question of the appropriate forum to litigate Schwarzenegger's reputational issue came before Mr Justice Eady.
There was what the judge himself described as a cri de coeur from Richard Spearman QC on behalf of one of the defendants, Mr Walsh (a spokesman for Mr Schwarzenegger), in these terms: "This case is about whether a spokesman for a foreign politician in a local election campaign who was asked by a foreign newspaper to respond on behalf of the foreign electoral candidate to allegations concerning the past conduct of that candidate, and he provided a response that is immune from suit under local law and is protected by qualified privilege under our system in circumstances where malice is not and could not reasonably be alleged, should nevertheless be amenable to the exorbitant jurisdiction of the English court ...". The application was therefore to set aside an order giving the claimant permission to serve a claim form outside this jurisdiction, which had previously been refused by a master and was now the subject of an appeal before the judge. In upholding the master's order the judge identified the following factors:

(i) The claimant was a United Kingdom citizen.
(ii) She was both resident and worked here.
(iii) She was widely known and had an established reputation in this country.
(iv) She had no comparable connection with any other jurisdiction, including the United States.
(v) On the basis of the presumption of damage established in Shevill v Presse Alliance, damage to her reputation in this jurisdiction is presumed.
(vi) The underlying events (should there be a plea of justification) took place in London.
(vii) English law is applicable to publication in this country.

The judge affirmed the Court of Appeal approach in Lewis v King, which applied the same principles. The UK will therefore remain the preferred forum when the necessary circumstances are in place for determining high profile reputational issues which might be determined in the US if the legal climate there were not so pro defendant.

Jonathan Coad

e Simkins Partnership. This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court.

see : http://www.simkins.com

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COPYRIGHT
Retail, Internet
-Database Protection narrowed: British Horseracing Board v William Hill ECJ, 9 November 2004-
This case arose out of a referral by the Court of Appeal who asked the European Court of Justice to clarify the extent of the Database Right. The Database Right, which was thought to provide wide-ranging protection for databases far beyond that afforded by standard copyright, has been narrowed in reality once a fixture database was published it became unprotected. The right was thought to be useful where a database may not qualify as an original literary work under the provisions of the Copyright Designs & Patents Act 1988. The European Court of Justice finally ruled in the case by giving answers to some key questions regarding interpretation of the Database Right, which was created by an EU directive and implemented in the UK by the Database Regulations 1997. The ECJ ruled in William Hill's favour by finding no infringement of BHB's Database Right. The case involved the accessing of data from BHB's database of pre-race information by William Hill bookmakers (via an intermediary subscription service), which was then displayed on the William Hill website. Given the immense amount of information in the original database, it was accepted by both sides that William Hill had only displayed a small proportion of the total amount. The ECJ ruled that whilst the BHB had spent time and money in compiling the database they had not 'substantially invested in the obtaining, verifying and presenting' of the listed material meaning that the Database Right protection would not extend to the database. A substantial investment in the collation of the database must be made. Here the data was captured at the stage it was created which was not enough to qualify for database protection.

The full text of the judgment can be accessed via:

and see : http://www.curia.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79958890C19020203&doc=T&ouvert=T&seance=ARRET&where

Source earlywarnings@simkins.com
See also Media Guardian, 15 November 2004, p16

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COPYRIGHT
Record Labels, Music Publishing, Artists
-Newton fails in appeal against the Beastie Boy's unauthorised use of song melody, Newton v Diamond-
Jazz flutist James W. Newton has again failed in his action against the Beastie Boys as a federal court in San Francisco denied for a third time his copyright infringement claim against the band and various distributors of the rappers' 1992 recording "Pass the Mic." The suit, filed in Central District Court in Los Angeles in 2000, claimed that the sample infringed the Newton composition "Choir." Although the Beastie Boys licensed Newton's recording before releasing their song, they claimed the six-second sample of the underlying composition - consisting of only three notes - was too small to require a license under copyright law even though it was looped over 40 times in their song. The District Court agreed with the group, and granted summary judgment in 2002. Newton appealed, but the Ninth Circuit Court of Appeals also sided with the Beastie Boys in 2003. The court held that the amount of the composition sampled was too small to be unlawful; it was a lawful "de minimis" use. Newton petitioned the three-judge panel to reconsider its decision or to hold a rehearing en banc, with the participation of all active Ninth Circuit judges. In this latest ruling, the appellate court denied the request, but it also amended - and republished - its year-old opinion. According to the group's attorney the changes in the opinion appear minimal and, if anything, strengthen the court's original position. Meanwhile, in Nashville, the Sixth Circuit Court of Appeals has yet to decide whether it will reconsider its Sept. 7 decision involving N.W.A's two-second sample of a Funkadelic recording. That court held that the "de minimis" sampling of a recording was copyright infringement even though the amount sampled was too small to infringe the underlying composition.
Westbound Records and Bridgeport Music v No Limit Films (September 2004)

COMMENT : This leaves the position in US law as follows: use of ANY part of a sound recording without permission will be a copyright infringement. However where a 'tune' is used without permission the test for copyright infringement of the musical copyright will be the subject to a 'de minimum' test - the use must satisfy a test of 'substantial' use or 'identifiable' use.

and see : http://www.musicjournal.org/03thesongremainsthesame.html

The full text of the Newton v Diamond judgment can be accessed via: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D791D50A58397FF388256F470054A6A0/$file/0255983.pdf?openelement

The full text of the Bridgeport Music v Dimension Films judgment can be accessed via: http://pacer.ca6.uscourts.gov/opinions.pdf/04a0297p-06.pdf

See also Simkins Early Warnings (by Tom Frederikse) : http://www.simkins.com 15 November 2004

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CONTRACT
Record Labels, Music Publishing, Artists
-Rolling Stones must arbitrate royalty dispute with Decca-
Mr Justice Pumfrey has held that the Rolling Stones must settle their royalty dispute with Decca by way or arbitration. The band had been seeking to audit Decca's books to force the label to pay out millions of pounds allegedly owed to the band. However the High Court hearing resulted in a ruling that under the terms of an agreement between the label and Mick Jagger, Keith Richards and Charlie Watts, disputes over royalty payments must be referred to arbitration rather than being dealt with by the court. The dispute arose out of royalties from the best selling compilation 40 Licks. The band were given leave to appeal.

SourceThe Times 13 November 2004

and see : http://www.billboard.com/bb/daily/article_display.jsp?vnu_content_id=1000718886

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HEALTH & SAFETY
Live Event Industry
-House of Lords restricts occupiers liability for accidents: Tomlinson v. Congleton Borough Council and others (2004)-
The House of Lords has made an important decision limiting the liability of occupiers: This case arose out of a tragic accident at Brereton Heath Country Park, between Holmes Chapel and Congleton. The Park covers about 80 acres and owned by Congleton Borough Council since 1980 when the council acquired the land surrounding what was then a derelict sand quarry and laid it out as a country park. The Park is managed by Cheshire County Council. On a very hot 6th May 1995 18 year old John Tomlison and some friends went to the Park and to cool of Tomlinson dived into the lake and his head hit the bottom, broke his fifth vertebrae and is now a tetraplegic. The majority of the Court of Appeal (Longmore LJ dissenting) had allowed an appeal from the decision of Mr Justice Jacks and held that the defendants were liable for a claim in occupier's liability. However the House of Lord robustly criticised the majority decision in Court of Appeal and all five Law Lords found that no liability was owed to the claimant, upholding the original judgement of Jacks J and supporting the position of Longmore LJ.

Lord Hoffman in the House of Lords remarked "in these proceedings [Tomlin] seeks financial compensation: for the loss of his earning capacity, for the expense of the care he will need, for the loss of the ability to lead an ordinary life. But the law does not provide such compensation simply on the basis that the injury was disproportionately severe in relation to one's own fault or even not one's own fault at all. Perhaps it should, but society might not be able to afford to compensate everyone on that principle, certainly at the level at which such compensation is now paid. The law provides compensation only when the injury was someone else's fault. In order to succeed in his claim, that is what Mr Tomlinson has to prove".

The claim was brought under the Occupiers Liability Act: The County Council, as manager of the Park (and a joint defendant), had for many years pursued a policy of prohibiting swimming or the use of inflatable dinghies or mattresses and there were prominent signs to this effect. Park Rangers would regularly ask people to disengage from swimming although were often ignored or insulted. Leaflets were handed out warning of the dangers of swimming and ropes and life-belts provided for emergencies. There were a number of near fatalities at the lake as the rules and warnings were ignored. The claimant accepted that he was a trespasser for the purposes of occupier's liability so outside the provisions of the Occupiers Liability Act 1957 but brought a claim under the Act of 1984. Lord Hoffman remarked "the duty under the 1984 Act was intended to be a lesser duty, as to both incidence and scope, than the duty to a lawful visitor under the 1957 Act. That was because Parliament recognised that it would often be unduly burdensome to require landowners to take steps to protect the safety of people who came upon their land without invitation or permission. They should not ordinarily be able to force duties upon unwilling hosts".

Lord Hoffman went further and confirmed that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state. Lord Hoffman then added that "Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises It follows that in my opinion, there was no risk to Mr Tomlinson due to the state of the premises or anything done or omitted upon the premises. That means that there was no risk of a kind which gave rise to a duty under the 1957 or 1984 Acts.

Lord Hoffman went on to consider the position if there HAD been a duty. He considered that the Council would have (i) Knowledge or foresight of the danger [caused to swimmers] and (ii) would have had knowledge or foresight of the presence of visitors. The third part of the test is whether (iii) it was reasonable for the claimant to expect protection. Here the House of Lords held that what the court had to do was to look at the balance of risk, gravity of injury, cost and social value …… will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, That is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may be think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so. there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them.

Also allowing the appeal, Lord Hobhouse added the following comment "the fact that it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coast line and other beauty spots to be lined with warning notices? Does the law require that attractive water side picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in activities dangerous only to themselves? The answer to all these questions is, of course, no. But this is the road down which your Lordships, like other courts before, have been invited to travel n truth the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen"

and see : http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030731/tomlin-2.htm

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COPYRIGHT
Broadcasting, Record Labels, Music Publishing, Publishing
-ARTICLE: Fair Dealing - Or What Connects Princess Di, L. Ron Hubbard and A Clockwork Orange?-
Carrollanne Lindley, trademark attorney and partner, Kilburn & Strode
In this article, UK trade mark attorney Carrollanne Lindley explores the defence of 'fair dealing' which in UK law can be used as a defence in certain circumstances by those who have copied an original work without permission. Fair dealing (and 'fair use') in the USA do have a direct relevance to the music industry, particularly to music sampling disputes, and readers may also wish to reference the Music Business Journal article by Ben Challis on this topic -"'The Song Remains The Same" - and a link is given at the foot of the page for this article.

Copyright law in the United Kingdom stems from statute. Therefore, as any act of copying an original work is subject to a blanket cover, all exceptions must be given by statute. Fair dealing as a defence, dealing equating to use in this context, is derived exclusively from legislation. The provisions are laid out in Sections 29 and 30 of the Copyright, Designs and Patents Act 1988 as amended. There are three permitted purposes generally - criticism or review; reporting current events; research and private study.

Criticism or Review

Fair dealing for the purposes of criticism or review applies not just to the work being reviewed but extends to another work or the performance of the work , provided that the criticism or review is accompanied by sufficient acknowledgement. The Act itself contains a definition of sufficient acknowledgement (Section 178). This requires that the work is identified by its title or another description and that the author is identified. There are various points to be drawn from this:

1. It is possible for the reviewer to quote from Work A in the context of the criticism or review of Work B and not infringe either Work.
2. Criticism or review is only considered fair dealing if it is carried out by a person for his own purposes and not for the purposes of others. For example, if a commercial book of study notes of literary works was produced containing copied extracts, this would not qualify as fair dealing. Had a student produced it for his own purposes , the fair dealing defence would have applied, but in this context, it would be the publisher dealing, not the students.
3. The exception still applies if the criticism is not of the style of the piece but rather of the underlying doctrine or the subject matter under review. This was the case in the Scientology row, Hubbard v. Vosper (1972) 2QB 84. Here, the defendant had been a scientologist for a number of years but having ceased to believe, he wrote a book highly critical of the cult of scientology. In the book, there were substantial extracts from works written by L. Ron Hubbard, some of which were unpublished . The defence of fair dealing for the purposes of criticism or review was successful against a claim of copyright infringement.
4. There will not be fair dealing if what the party produces is a mere reproduction without comment or, if a copyright work is merely explained or reproduced in a different form, e.g. a long passage from a film is excerpted with no comment.
5. The Fair dealing exemption only applies if there is sufficient acknowledgement. In cases where the work is anonymous, this of course cannot include the name of the author but should still identify the work being reviewed. It is not always necessary however to use the name if there is sufficient matter to identify the party who produced the original work, e.g. a photograph or a logo representing the individual or company owning the copyright. The test is whether the acknowledgement given is sufficient to advise a reasonably alert member of the audience by whom the copyright work is being reviewed. In the Pro Sieben Media AG v. Carlton UK Television Limited case (1998) FSR 43, a thirty-second video of a woman pregnant with eight foetuses was included in a television programme. The purpose of the defendant in using the copyright video was to show that the claimant was involved in cheque book journalism. The extract contained the initials of the claimant's television programme and its logo. This was deemed to be sufficient to identify the copyright owner, particularly since that was the manner in which the company tended to identify itself. This was another case commenting not upon the criticism of the copyright work but of the ideas and social and moral implications contained within the work, and as such deemed still to be criticism or review.
6. Extracts from a work can be copied just to criticize one feature of the work. There is no requirement that what is shown, being just a limited selection of a copyright work, presents a balanced view of the whole. In the Clockwork Orange case (Time Warner Entertainments Co. Ltd. V. Channel 4 Television Corp. plc (1994) EMLR 1), the television channel defendant showed a programme criticizing the decision to continue the refusal to show the film in the United Kingdom. The claimant obtained an injunction to prevent the screening of this programme. The injunction was lifted on the basis that the defendant could rely on the defence of fair dealing. The Court confirmed that in order to present serious criticism of the film, sufficient time must be spent showing extracts from the film. A Clockwork Orange is notorious for its violent sequences and was withdrawn originally because the director thought that some of the public might be tempted to copy the violence in real life. One judge said the broadcasting of a single violent scene of an otherwise innocuous film would not defeat a fair dealing defence.

News Reporting

Fair dealing with any copyright work other than a photograph for the purposes of reporting current events is a further exception. Again, generally a news report should be accompanied by a sufficient acknowledgement of the work and the author. There are exceptions to this based on the need for fast flow in some media.

1. The defence of reporting current events is unlimited as to the medium by which the current events are being reported. However, fair dealing does not apply in the case of a photograph. Even if one newspaper has obtained a unique photograph of an event which is published in an early edition, this cannot then be used a second time by a different newspaper or by television or any other broadcast media claiming fair dealing. Scoops are still available for photographs. Even the practice of copying a photograph from another newspaper with the intention of obtaining a licence retrospectively is unlawful.
2. As stated, there is a limitation to the acknowledgements that are required. The acknowledgement is not required if the current events are being reported in a sound recording, film, broadcast or cable programme (Section 30 (3)). This is an exception on the basis that introducing an acknowledgement would just be clutter in such a context.
3. The question must arise of what is a 'current' event. This is in fact fairly broad. It does need to be current certainly in the terms that it deals with a contemporary issue or at least an issue in the past relating to an event of current interest. In a case involving one of the Liberal Party politicians in the United Kingdom , the MP dictated a minute of a meeting he had with the Prime Minister. The minute was then copied by the Defendant newspaper in an article about secret plans to form a Liberal/Labour Party coalition. As there was no actual criticism of the minute itself, rather the actions of the individuals, this copyright infringement did not fall within the defence, although it was held that as long as the event is of current public interest, it could be deemed to be current. Ashdown V Telegraph Group Ltd (2001) RPC 659
4. What is an 'event' is again quite broad. It would cover any matter of national or international importance, be that political, sporting or cultural. The Princess of Wales became involved in one such decision in Hyde Park Residents Limited v. Yelland (2000) RPC 604. Stills were taken from video footage recorded by security cameras in which copyright existed. These showed Diana and Dodi Fayed arriving and leaving the Villa Windsor in Paris. These were shown one year after originally being taken. However, they were deemed to fit within the definition of reporting 'current events' as the purpose of the reporting was to show that Al Fayed (the owner of Harrods) had lied about the time that his son and the Princess of Wales had been at the villa. Whilst the event was held to be current, this was not deemed fair dealing as the information was already known and there was no need to use the footage to show this as the information could as well have been put into words. Some matters do not qualify as events, for example a television schedule or the latest underwear collection from Marks & Spencer, so to these, the exemption could not apply.
5. In every case there is the question of extent. The death of a famous person does not justify reproduction of their past correspondence, given that the event is the death not the place in history of the individual. This arose when correspondence between the Duke and Duchess of Windsor was published and the newspaper attempted to raise both the criticism and review and reporting current events as defences ( and failed) (Associated Newspaper Group plc. V. Newsgroup Newspapers Limited (1986) RPC 515).

Research or Private Study

1. This divides neatly into two areas. Research or private study which is for a commercial purpose infringes the copyright and a licence is required. In the United Kingdom, there are blanket licensing systems so that the exact terms on which e.g. a firm of lawyers can copy decisions to give an opinion as to their clients are determined by, for example, the Copyright Licensing Agency.
2. Research or private study which is non-commercial is permitted in relation to most types of works. Therefore if access was being given for e.g. Learned articles to be written , that would have fitted within a fair dealing exemption. Again, a requirement is made that the original work being used is acknowledged unless for some reason that is not possible. If a work is purely for private study for non-business purposes where basically nobody else is going to see the work produced, then no acknowledgement is necessary (nor indeed, nor would anybody probably find out).
3. It is not deemed to be fair dealing to commit any act of copying in relation to computer programs. Fair dealing with a database for research or private study requires an indication of the source (Section 29(1)(a) inserted by the Copyright and Rights in Databases Regulations 1997 Statutory Instrument).

What is Fair?

The issue of whether the dealing is fair is always one of degree. There is always the question of quantity. How much is being used? What is in use? Is the work competitive? There is also the issue of whether the purpose could have been achieved in a less intrusive manner. Here, we return to the Princess Diana and Dodi case. Whilst these were certainly current events, the defence failed because the purpose was not to report the events shown in the stills, but to point out the lies that Al Fayed had told. That purpose could have been achieved in a less intrusive manner. The question of financial gain also arises, when returning to the case concerning the correspondence between the Duke and Duchess of Windsor. The Sun newspaper which had copied those extracts and reprinted them claimed fair dealing and the Court held that even if the newspaper had been able to show the use amounted to criticism, review or reporting of current events, the defence would have failed as its objective in publication was simply to attract readers and not to achieve any fair dealing objective.
Another lodestone for making a judgement on whether the dealing is 'fair' is the status of a work. This arises where the work being copied was confidential or published. A fair dealing defence cannot apply to a work prepared in confidence. Therefore, copying the correspondence between the Moors Murderess Myra Hindley and the parole board could not be fair dealing given that these letters were prepared entirely in confidence (Hindley v. Higgins (1983) unreported).
Throughout Europe, another aspect to be considered on fair dealing is the impact on the copyright owner. Under the Berne Convention, Article 9 (2), consideration is to be given as to whether the fair dealing adversely affects the normal exploitation of the work by its copyright owner.

Conclusion

In appropriate circumstances, even a substantial part of a copyright work is likely to fall within the provisions of fair dealing. It is however a matter for the finances of the parties in each case to try and work out where the boundaries lie and this will bring into account the purpose, the proportion, the motive and the statuses of other works in the course of the decision.

(c) 2004 Carrollanne Lindley

Carollanne is a lawyer with Kilburn & Strode in London.This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters.

See : http://www.kstrode.co.uk

See also: "Don't Shoot The Messenger: A Review of The Legalities Of Music Sampling" by Ben Challis at : http://www.musicjournal.org/03thesongremainsthesame.html

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04 Ben Challis