COPYRIGHT
Record Labels, Internet, Music Publishers, Artists
-Federal Court of Canada Dismisses the CRIA's Motion For Disclosure in its File-Sharing Suit and Upholds the Legality of Music File Downloading in Canada-
The Federal Court of Canada has dismissed the Canadian Recording Industry Association's (CRIA) motion to compel several Internet Service Providers (ISPs) to disclose the names of customers who traded music on the Internet. In dismissing CRIA's motion, the Court came to three key conclusions:
(1) The CRIA did not make out a prima facie case of copyright infringement;
(2) The CRIA did not establish that the ISPs are the only practical source for the identity of the P2P file swapper; and
(3) CRIA did not establish that the public interest for disclosure outweighs the privacy interests of the ISP customers.
With respect to copyright, Mr Justice Konrad von Finckenstein stated that copying a song for personal use does not amount to infringement. Individuals in Canada are free to copy music from CDs or tapes or download tunes from the Internet and save them on their own computers. This is provided for in Canadian Law where a levy system operates on some hardware, blank tapes and CDRs. The Court went further and held that copying files and saving them in shared directories on a peer-to-peer (P2P) network (such as Kazaa) is not copyright infringement. Referring to the recent Supreme Court decision of CCH Canada Ltd. v. Law Society of Canada, 2004 SCC 13, the court said it "cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service. " The Court concluded that the mere placement of personal copies of music files in a shared directory which can be accessed via a P2P service does not amount to distribution. There must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. On the privacy front, the court said it must balance privacy rights against the rights of other individuals and the public interest. Privacy laws cannot be used to protect a person from the application of either civil or criminal liability. Although the Court agreed that CRIA has a legitimate interest and is entitled to protect against infringement, it ruled that the privacy concerns outweighed the public interest concerns in favour of disclosure.

See : http://news.bbc.co.uk/1/hi/entertainment/music/3588659.stm

This article is taken from a review by Colin Adams of Deeth Williams Wall. For more information, see: href="http://www.dww.com/newsletter/index.htm

For information on this subject see: http://www.cbc.ca/stories/2004/03/31/canada/download_court040331

Related articles on Law Updates:
April 2004 Canadian Record Industry Follows RIAA Model Despite Legislative Hurdles
February 2004 Canadian Copyright Board Rules on Private Copying Levies and P2P Music Downloading
February 2004 Netherlands Supreme Court Judgement in Kazaa v Buma & Stemra (2003)
February 2004 RIAA Lose a Valuable Tool in the Fight Against Piracy as Verizon win appeal

ARTICLE: by Ben Challis
Don't Shoot The Messenger: Copyright Infringement in the Digital Age at:
http://www.musicjournal.org/03dontshootthemessenger.html and at http://138.40.1.4/articles/digital_age.htm

ADDENDUM
The Canadian music industry is fighting a decision that endorsed music swapping on popular sharing services such as Kazaa. In a five-page notice of appeal filed in the Federal Court, the Canadian Recording Industry Association argued current copyright legislation unequivocally prevents people from freely copying or downloading songs from the Internet. In its appeal document, the CRIA argues it has grounds for appeal because the "judge made serious and reviewable errors of law, made overriding and palpable errors in his assessment of the factual record before him, and, in the end, purported to exercise his discretion on improper and irrelevant bases, and in a manner of excess of his jurisdiction." Four of the five Internet service providers - Bell Canada, Shaw Communications, Telus Communications and Rogers Cable - had argued in court that they weren't compelled to hand over the information because privacy legislation protected the identities of their customers. Heritage Minister Helene Scherrer has also promised to punish music file sharers. She has said that her department, in tandem with Industry Canada, plans to draft legislation to amend a loophole in the Copyright Act that permits music downloading. Had Canada already ratified two relevant WIPO Treaties by legislative amendments to the Copyright Act, the outcome of the CRIA case might well have been different.

See: http://www.cjad.com/content/cjad_news/article.asp?id=e041349A

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TRADE MARK
Merchandise
-Lacoste Loses Trademark Action Against Crocodile International-
Lacoste has lost its trademark suit against rival Crocodile International over the use of the crocodile logo in China. The emblem became symbolic of the Lacoste brand but Singapore based Crocodile International claimed it was first to dream up the design, registering the emblem in 1951. Lacoste, a French based company was ordered to stop using the logo and to pay one dollar in compensation. The Shanghai court started the hearings last December. The dispute had been ongoing for over four decades. The logos only differ materially in the direction they face - one to the left and one to the right. The crocodile design is slightly different. Lacoste says tennis legend Rene Lacoste registered the logo in France in 1933; then in China in 1980. But Singapore businessman Tan Hiantsin says his logo was designed in 1947 with the English word "crocodile" and registered in Singapore in 1951. He disputed Lacoste's claim to have registered Chinese rights before the late 1990s. The case centred on Lacoste's moves to register the trademark under its brands of cosmetics products in 1995. A key point in the argument was Mr Tan's nationality. He's a Chinese-born Malaysian and he claimed that Malaysia's adherence to international copyright conventions gives his design blanket protection in China from 1990. These issues have become a common problem since economies such as China and Russia have opened up their markets and brands have moved in. International firms have been embroiled in a raft of copyright disputes in developing economies. Lacoste have also sued Crocodile International and its partners, Shanghai Oriental Cartelo Apparel and Beijing Hualian Department Store Shareholding for trademark infringement in Beijing. The case has yet to be heard.

See : http://news.bbc.co.uk/1/hi/business/3570895.stm

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TRADE MARK
Merchandise
-Oxford University Denied Exclusive Use of 'Oxford Blue'-
Oxford University has been denied exclusive use of the 'Oxford Blue' mark after the Registrar of Trademarks ruled that HS Tank & Sons from Birmingham were entitled to produce a line of clothing with the same name. The company had been producing jackets and other garments using the mark since 1985. Oxford University have never trade marked the name. The Registrar held that whilst the University owned the reputation in the name Oxford Blue they enjoyed no goodwill which could stop HS Tank from exploiting the name.

The Times, 7 April 2004 at page 5
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COPYRIGHT
Television
-High Court Dismisses Format Rights Claim: Miles v ITV Network (2004)-
The case law on formats and television programmes still only amounts to a handful of decisions. The recently reported case of Miles v ITV Network Limited gives a further indication as to how such issues will be dealt with. It concerned a dispute over the rights to an ITV programme, Dream Street.
The claimant, James Miles, appealed the decision of a Master who dismissed the claim on the ground that it had no hope of succeeding. That decision has been affirmed by Mr Justice Laddie. Miles alleged that in 1998 he supplied the ITV Network with promotional material for his cartoon, Trusty and Friends. The main character was a traffic light, and the ancillary characters were "traffic furniture" such as bollards and cones.
The later ITV programme (Dream Street) had a recovery truck as its main character and, as Miles conceded, the look and feel of the two programmes were very different. Miles argued that there was sufficient inference of copying for the matter to go to trial because of similarities between the characters in the two programmes, and the fact that they both featured traffic equipment. The creator of Dream Street, however, produced evidence that designs for his programme had been in existence since 1997, ie before Mr Miles had sent his material to the ITV Network.
The judge dismissed the appeal since, on the evidence, the only similarity between Trusty and Friends and Dream Street was the use of anthropomorphised traffic equipment, which meant the claim was "hopelessly weak".
The judge agreed that Miles had no arguable claim, and that there was "nowhere near enough substance in this case to justify allowing these parties to go to what may be an extremely expensive trial." In coming to this decision, the judge bore in mind the fact that the claimant had no resources with which to pay the defendant's costs should he lose the trial. The High Court is therefore willing to take a robust view of claims over the rights in television programmes at an early stage where they have no realistic prospects of success. It also seems that where the defendants have no prospect of recovering their costs against what is a very dubious claim, this will weigh in the minds of judges in deciding whether summarily to dismiss weak claims.

Jonathan Coad, solicitor.

This update is © The Simkins Partnership. This article 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. The Simkins website is at www.simkins.com

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COPYRIGHT
Record Labels, Artists, Music Publishers
-IFPI Announces A Wave of International Legal Actions Against File Swappers-
IFPI and the recording industry associations in Denmark, Germany, Italy and Canada have announced the first wave of international lawsuits charging individuals with illegally file-sharing copyrighted music. A total of 247 alleged illegal file-sharers face legal action in a move that steps up the record industry's international campaign against online copyright theft. Further waves of lawsuits against major offenders will be launched in different countries in the coming months. The legal actions charge the individuals with illegally making available hundreds of music tracks for copying, transmission and distribution via file-sharing services. However the move comes against a backdrop of criticisms in the United States where the Recording Industry Association of America has already used similar tactics. Critics point out that the European legal download market is still hampered by a lack of available rights and that the use of lawsuits is heavy handed. However the IFPI argue that More than 600,000 consumers in Europe alone are now accessing a large catalogue of 300,000 tracks that are available from 50 legal online sites. Jay Berman, Chairman and CEO of IFPI. said: "Today's announcement should come as no surprise. Over the past year the record industry has been extremely active internationally and locally, educating the public about the huge damage being done by illegal file-sharing, explaining the laws and promoting all the sites where large catalogues of copyrighted music are available for consumers to access legitimately. "IFPI figures show that global sales of recorded music fell 7% in value in 2002. IFPI's global figures for 2003 have not yet been released, but it estimated that sales for the year will have been down by over 7%. A number of third party surveys in major music markets have confirmed that illegal file-sharing directly depresses music purchases by consumers. Other countries have stepped up their 'warning' campaigns to put illegal file-sharers of music on notice that if they continue with their activities they risk court action. Sweden is announcing today the launch of their instant messaging campaign to users of peer-to-peer networks, following a similar announcement by the UK on 25 March. Enzo Mazza, General Director of FIMI, the Italian Recording Industry Association adds "Music piracy is an enormous and ongoing problem in Italy, threatening the jobs and livelihoods of thousands of Italians in the music industry. As Italians take up broadband, they also take up unauthorised P2P file sharing in increasing amounts - almost half of all regular internet users in the country already regularly download music although the activity is most popular with younger internet users. 3.3 million Italians use P2P services and most of them share illegal files over the net. We cannot allow this to continue at this pace. With this in mind the Italian industry has worked closely with the education authorities to get schools to adopt copyright protection measures." In Italy 30 individuals have been charged with copyright infringement. The Public Prosecutor's office in Milan ordered criminal raids that started in January. A special unit of the Fiscal Police has seized 25 computers, 30 hard discs and storage systems, and 50,000 files as evidence.

Source: IFPI (International Federation of the Phonographic Industries)
www.ifpi.org
www.pro-music.org

ADDENDUM

IFPI figures for 2003 confirmed a drop in world sales of recorded music of 7.6% in value in 2003 although the year-on-year decline was slowed by a stronger second half in the US market, combined with resilient sales in the UK. The IFPI attribute the fourth consecutive year of falling music sales to the combined effects of digital and physical piracy alongside competition from other entertainment products. The decline affected virtually all major markets, with Western Europe showing particularly sharp falls compared to recent years. Sales in Germany were down 19% in 2003 and down by more than 30% in value since 1999. Denmark, France, Sweden, Belgium, Greece, Ireland, Portugal and Switzerland also experienced double digit declines. Year on year, the industry has suffered global losses of 20% over the three years since 2000. Internet piracy remains a very significant factor in the decline in world music sales. Positive signs include more robust album sales in the US - thanks partly to a strong end-of-year release schedule - and a global rise in music DVD sales. DVD music video now accounts for 5.7% of global retail revenue compared to 3.1% in 2002. These factors helped restrict a global downturn in CD sales, which at the six-month point had been down 10.9% in value. Online sales of physical CDs also continued an upward trend, with an increase in the US from 3.4% to 5% in volume and in the UK up from 5.6% to 6.6% of total units. The global music market was worth $US32 billion with total unit sales (including music video) of 2.7 billion.
The IFPI's report on world music sales does not include sales in digital formats, but IFPI's market research department is collating information on these purchases across major markets and intends to include information on online sales for the first time in 2005. Apple's iTunes announced it had reached the 50 million downloads mark in March 2004. Puretracks in Canada reached 1 million downloads in February, and in Europe OD2 " powering many of the now 50 plus European portals for music downloads" announced in April it had sold more.

Region by Region Breakdown

North America: The USA, which saw a 12% fall in the first half of the year, saw a sales increase in the second half, particularly in the fourth quarter, bringing the full year sales drop back to 6%. Best-selling CD album releases by artists including OutKast, Alicia Keys and Ludacris drove the recovery. Canada, the world's sixth largest market was down 2.9% in value, 4.2% in units.
Europe: In the UK, overall sales were virtually flat with 0.1% growth in 2003. There was continuing market strength in CD albums, bolstered by a strong release schedule, bonus packages and a vibrant retail environment. CD album growth was however offset by intense downward price pressure and fall in singles sales of 31% in units. Around the rest of Europe sales continued a downward trend, with the major markets of Western Europe seeing very sharp falls. Germany, heavily affected by CD-R burning and illegal file-sharing, saw a 19% drop " the sixth consecutive year sales have fallen. France fell into line with other European countries in 2003, with a 14.4% drop. The market has now fallen back to year 2000 levels following two years of growth driven largely by local repertoire. In Scandinavia, despite strong local repertoire, Sweden and Denmark saw steep declines of 14.7% and 12.5% respectively. Belgium, Greece, Ireland, Portugal and Switzerland also saw double digit percentage declines.
Asia: Across Asia sales were down by 7.5% in units and 9.8% in value. This trend was led by a fifth consecutive year of shrinking sales in Japan, the world's second largest market, which fell by 5.2% in units, 9.2% in value. Some Asian markets did show positive growth. Malaysia and the Philippines saw increases after a tough 2002. China, despite endemic physical piracy, was also an exception, showing a third consecutive year of growth. Sales value was up by 21.7% fuelled by the country's large young population with increased disposable income and continued market development.
Australasia: Australasia was the only region to show growth in 2003, with local stars such as Delta Goodrem, Powderfinger and Guy Sebastian generating significant sales, along with a 100% increase in the value of DVD music video purchases " a small market but one that is showing robust signs of growth.
Latin America: Latin America continued to suffer from piracy in both physical and online forms as well as difficult economic conditions. Sales are down across the region for the third year in a row with a drop of 14.4% in value in 2003. The industry has shrunk, causing labels to downsize, retail stores to close and the reduction of certification awards in many markets to reflect fewer sales. Mexico dropped out of the world's top ten rankings, suffering a 16.2% decline in value. Argentina, Peru and Uruguay showed increases on 2002's steep declines.

Effect of illegal file-sharing on music sales

Forrester Research Europe January 2003
Recent research by Forrester in Europe ('WholeView Technographics', January 2003) presents stronger arguments of the negative impact on sales specifically in Europe. The study states: "music industry executives claim that downloading tracks via services like KaZaA and Morpheus cannibalises CD sales and they're right". The survey concluded that more than 40% of frequent downloaders buy less music now than they did before they began downloading. 2% of people say that they bought more CDs after having downloaded.

Jupiter Research US August 2003
This was a survey of 1,326 US-based online music fans. One third of active file-sharers said that they had decreased spending on music since they started file-sharing. Only 16% said spending had increased.

Ipsos-Reid (US) Q4 2002
As at end 2002, the quarterly US study TEMPO found that while 25% of Americans aged 12+ own a PC-based CD burner, 59% of file-sharers own a CD burner. Of these, 42% (representing 17 million people) reported having burned a pre-recorded music CD rather than actually purchasing that CD.

Edison Media Research May 2003
The survey found that the heaviest downloaders have the most negative influence on sales. Among those who have downloaded more than 100 files, roughly 16% of respondents, CD purchases dropped 61% from last year. A year ago heavy downloaders purchased an average of 28.9 CDs a year versus the current average of 11.3 CDs.

Source and © : IFPI - http://www.ifpi.org/site-content/statistics/worldsales.html

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COPYRIGHT
Record Labels, Television, Radio, Live Event Industry
-PPL Successful in Action Against Show Organiser in India-
The organisers of the Mega Model Man Hunt, Gladrags Media Limited, have been ordered by the the Bombay High to pay Rs 46,000 to Phonographic Performance Ltd (PPL) as copyright fees. PPL approached the court when Gladrags refused to pay copyright fees for its event in April 2004 at the Mahalakshmi Race Course. PPL is the Indian society that collects copyright fees on behalf of the music companies including BMG Cresendo, Magnasound, Virgin Records, Venus, Saregama and others. The 1957 Copyright Act in India specifies that any public performance of Indian or international music has to obtain a public performance licence, or will invite criminal action. In India, PPL is the sole authority to administer the broadcasting, telecasting and public performance rights on behalf of the music industry. Advocate Rohini Vakil for PPL, said, "Despite sending out notices requesting them to pay up, they ignored it. Last year, too, they had gone ahead and held performances with taped music without paying copyright fees" Vakil explained that PPL has varying tariffs depending on category, and Gladrags had been asked to pay up under the hotel category for playing pre-recorded music at performances.

See : http://ww1.mid-day.com/news/city/2004/april/80000.htm

For more information on copyright law in India see: http://www.kaplegal.com/content/articles

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PRIVACY
Artists
-The New Zealand Court of Appeal Formulates a Law of Privacy: Michael Hosking v Pacific Magazines-
By a majority of three to two, the New Zealand Court of Appeal has approved the development of a law of privacy in a jurisdiction which is closer than any other to that of the UK. Since the judgement was only handed down on 25 March 2004, it is too early to say whether the approach adopted by the Court of Appeal in New Zealand will be followed in this country. However, if an appeal is made it will be to the Privy Council, who are members of the House of Lords.

On the facts, the New Zealand Court of Appeal had no difficulty in finding that there was no breach of privacy. The claimant was a New Zealand television personality whose two baby children were photographed in the street. All five judges rejected the claimant's appeal, but three went on to indicate the direction which they considered that the New Zealand law should take.

Two of the judges observed that a "privacy" jurisdiction had been developed via the well established action of breach of confidence. They observed that there are now two distinct versions of this tort. One is the traditional situation in which information has been disclosed in circumstances giving rise to a duty of confidence. "The second gives a right of action in respect of the publication of personal information of which the subject has a reasonable expectation of privacy irrespective of any burden of confidence, but only where that publication is or is likely to be highly offensive to a reasonable person."

They went on to observe that the two fundamental requirements for a successful privacy claim in New Zealand are:

"1. The existence of facts in respect of which there is a reasonable expectation of privacy; and
2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person."

The third judge who found in favour of the law of privacy summarised it as follows:

"It is actionable as a tort to publish information or material in respect of which the plaintiff has a reasonable expectation of privacy, unless that information or material constitutes a matter of legitimate public concern justifying publication in the public interest. Whether the plaintiff has a reasonable expectation of privacy depends largely on whether the publication of the information or material about the plaintiff's private life within a particular circumstance would cause substantial offence to a reasonable person. Whether there is sufficient public concern about the information or material to justify the publication will depend on whether in the circumstances those to whom the publication is made can reasonably be said to have a right to be informed about it."

The last sentence is very redolent of the Reynolds defence already familiar to the UK jurisdiction. The extension of the Reynolds principles bringing in a public interest element is logical, although unlike one's reputation, privacy once lost cannot be restored.

We await the outcome of the appeal to the House of Lords in Naomi Campbell's action against The Mirror. In a sister jurisdiction at least, the validity of a privacy law along with appropriate safeguards to protect the right of freedom of speech have been recognised and formulations attempted.

Jonathan Coad, solicitor.

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. Where reference is made to Court decisions facts referred to are those reported as found by the Court. The Simkins website is at www.simkins.com

See related articles on Law Updates on PRIVACY and DATA PROTECTION:
April 2004 Campbell v Mirror Group Newspapers Reaches the House of Lords
January 2004 Paparazzi Cleared of Breaching French Privacy Laws
December 2003 Zeta Jones and Douglas Win Limited Damages
November 2003 Criminal Proceedings Against Lindqvist ECJ C101/01
October 2003 Ms Dynamite Wins Privacy Protection For Her Home
July 2003 DJ's Case Strengthens Case For UK Privacy Law
May 2003 EU Privacy Directive

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DATA PROTECTION AND PRIVACY
Retail, Merchandising, Internet, Artists
-ARTICLE: Data Protection Act Guidelines - a Practical Summary By Sarah G Staines, solicitor-
The Data Protection Act 1998 (the "Act") is unusual in English law in that it gives considerable discretion to the person (or company) controlling and handling information which identifies living individuals. There are eight Data Protection Principles in the Act which oblige "best practice" when businesses are collecting, using or keeping computer (or other regulated paper system) stored information, which identifies living individuals. The Act uses obtuse definitions such as "data subject", "personal data" and "data controller". The supervisory authority enforcing the Data Protection Act - the Information Commissioner's Office (ICO) encourages business owners to "embrace the spirit of the legislation" and recommends a practical and pragmatic approach to the Act; but only provides guidance which it admits is intended for lawyers and not for Directors or Managers of SME's. One thing is clear - paying lip service to the Act is not an option; even if your business is "notified" to the Information Commissioner as a controller of personal information, unless you are complying with the Act your actions could lead to civil and/or criminal prosecution.

What is Personal Data? The starting point is to decide whether the information is protected by the Act. In the recent Court of Appeal case of Durant v Financial Services Authority [2003] EWCA Civ 1746 the Court stated that "personal data" protected by the Act was "information affecting a person's privacy whether in his personal or family life, business or professional capacity". Often this test is subjective and depends on context and focus. For example, a static CCTV photograph of a crowd may not amount to personal information protected by the Act, even if everyone in it can be individually identified. But what if I own the camera and the film and control the information derived from it and I know that the person standing in the fourth row is my brother's company sales manager. I also recognise the person next to him as their biggest competitor's sales director. Does that change the anonymous crowd scene into focused personal data? Would it matter if the two people had accidentally stood next to each other and had no idea who the other was; or they were meeting to pass over trade secrets? In these circumstances the test of "context and focus" is subjective as it depends on what other information is known and how the information is presented. Best practice is to be cautious and use an objective test. Consider all information which identifies individuals as potentially "personal data" as its status may change during its capture and storage life. For a deliberation of protected personal data from the European Court of Justice see also Criminal Proceedings Against Lindqvist ECJ C101/01 Law Updates November 2003.

Best Practice: The Eight Principles
The First Principle requires you to process information "fairly and lawfully", which means not misleading the people whose information you hold, ensuring that you have consent, or if no consent has been obtained, that the way you gather and use the information is "necessary". The Act sets out particular situations in which the word "necessary" can be applied. These include: performing a contract you have been asked to undertake by the person whose information you hold (an optician writes to its customer at home to tell her that her glasses are ready); compliance with legal obligations (a Government Department may legitimately demand information); your legitimate business interests (unless this conflicts with the rights and freedoms or legitimate interests of the subject of the information); (you would be well advised to take specific advice if you want to rely on this exemption). Consent must be freely given, informed and unambiguous. You will have to set out clearly what information you intend to obtain and hold and, very specifically, what it will be used for. For instance the use of "opt-out" boxes when gathering personal information may not be sufficient to grant consent. Special rules apply to sensitive information (e.g. racial or ethnic origin, religious beliefs, political opinions etc). There are also special rules that apply to direct electronic marketing. You need to be precise and clear in setting out what personal information you are gathering and what it will be used for, before you collect and process it, and if possible, obtain the individual's consent to use that information in that particular way, and only use it in that agreed way.

The obligation of only using personal data for "specified and lawful purposes" is set out in The Second Principle. For instance a company selling car washing products obtains information from an individual customer, i.e. their name, address and type of car they own, and an agreement to send out marketing information about any of it's new products. That information could not then be passed on to anyone else, even if that was to send out details of complimentary products. The Third Principle requires personal data held to be "adequate, relevant and not excessive". You will have to evaluate whether the information you collect and hold is reasonably required to carry out the agreed or "necessary" objective. For example, if you collect customer's names and addresses to let them know about price changes for your food products should you be keeping information about their children's ages? If you sold children's clothing and price changes fluctuated for age/sizes in the range then keeping this information may not be considered excessive. The Fourth Principle insists that "personal data shall be accurate and, where necessary, kept up to date". It is your duty to ensure that the information you hold about individuals is accurate, as you will be liable for any loss or damage that an individual suffers if it is not. If you keep information about employees health and they fall ill at work and you release inaccurate information that could have a detrimental effect on any emergency treatment given. Therefore it is important to put in time and effort to ensure that the information is well managed.

The Fifth Principle requires that any personal information "be kept for no longer than is necessary". Procedures need to put in place for culling information, which is not longer needed. Culled information must be disposed of securely. Electronic information needs to be burnt from electronic media and storage disks need to be disposed of at a recognised outlet. There was a reported incident where a computer was thrown onto the local council dump with personal information still held on it. The information was read by an unauthorised third party putting the owner company at risk of prosecution. The Sixth Principle requires that personal data shall be "processed in accordance with the rights of data subjects". This means you are obliged to reply to written requests from individuals for a description of what personal data you hold about them, what it is to be (or has been) used for and to whom it has been disclosed. The Seventh Principle obliges you to take appropriate, technical and organisational measures to "avoid accidental loss or destruction" of, or damage to, personal data. Reasonable steps should be taken to ensure the reliability of staff who handle personal information and the effectiveness of technical safeguards for the information that you hold. The level of care taken and company expenditure in this regard will depend on how secure you need to keep the information and the harm that would be caused if it was accidentally released, lost or destroyed. Attached to this responsibility is the need to identify potential threats and risks to your computer system and the effect of a security breach. It is advisable to familiarise yourself with BS7799 and ISO/IEC standard 17799.

The Eighth Principle puts a "bar on transferring personal information outside the European Economic Area ("EEA")", unless that country or territory has similar data protection rights and freedoms for individuals. There are a number of countries which have equivalent protection but some, particularly the USA, that do not. This is particularly pertinent to a UK subsidiary of a foreign company where the computer server is outside the EEA, any management task involving use of personal information (such as employment and salary administration) may involve the cross border transfer of personal information. It is advisable to seek specific legal advice if you are transferring information from within the EEA to a country outside the area. However see Criminal Proceedings Against Lindqvist (ECJ C101/01 Law Updates November 2003) where the European Court of Justice's held that there was no the transfer of data out of the EAA where the information was posted and published on a (Swedish) website.

Practical Application of the Eight Principles: The ICO is currently preparing a set of guidelines specifically for SME's that should be available soon. In the meantime the best advice is to be cautious when identifying personal information and a practical and pragmatic approach to the use of that information. Complying with the Act has cost implications for any business but failure to take action has such onerous consequences to the company and its individual officers that we suggest you strike a balance between your business needs and the rights of the individual. The following questions may be helpful to ask: What harm would be caused to the individual if we failed to meet the Act's strict requirements? How would it look to the shareholders if we spent too much money and time managing the personal information that we collect? and; What would be said about the company if we make a foolish and unwarranted decision about the information we hold? If you are still in difficulty as to whether or not the information you collect and process falls under the Act's protection or if you are undertaking an information audit or writing your company data protection policy then talk to the ICO direct or to your specialist legal team. Alternatively, try talking it through with the individual whose information you hold and if you cannot convince them of your authority to hold or use their information then perhaps you shouldn't be doing it!

Sarah Staines is a solictor and partner at Pictons Solicitors.
© Pictons 2004.
Pictons Solicitors is regulated by the Law Society. The information in this article is correct at the time of publication in January 2004. Every care is taken in the preparation of this article. However, no responsibility can be accepted to any person who acts on the basis of information contained in it. You are recommended to obtain specific advice in respect of individual cases.
www.pictons.com

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DEFAMATION
Artists
-The Effect of the Offer of Amends Procedure on Damages Awards: Jimmy Nail v Harper Collins and News Group Newspapers (2004)-
The Offer of Amends procedure was introduced into the law of libel by section 3 of the 1996 Defamation Act. It was intended to provide a means to the media and other defendants of avoiding the uncertainty of jury awards. After a slow start, the regime is increasingly being used, although the media is watching it closely to see whether it will have the desired effect of providing a quick and inexpensive exit route from what might otherwise be expensive litigation.

In 1998 Harper Collins published a biography of Jimmy Nail entitled Nailed which contained a series of defamatory allegations against him. For various reasons Jimmy Nail decided neither to issue proceedings nor even complain about the book at the time of publication.

In May 2002 the News of the World published an article entitled "Auf Weidersen Jimmy's Secret Bondage Orgies". The content of the article can be guessed from the title. The News of the World article was to a large extent based on the contents of the book. Jimmy Nail then issued proceedings concerning both publications. In both actions an Offer of Amends was made and accepted. Apologies were published and all that remained for Mr Justice Eady to determine was the appropriate compensation to be paid under section 3(5) of the Act.

The judge accepted submissions on behalf of the defendant that if media defendants are going to make use of the Offer of Amends procedure then they must "feel confident of getting a "healthy discount" for a adopting what is, in effect, a conciliation process." The judge agreed that, "Media defendants who act promptly when confronted with a claim are entitled to be rewarded for making the offer and, correspondingly, the claimant's ordeal will generally be significantly reduced with immediate effect."

Despite the recent doubting of its appropriateness by the Privy Council in Gleaner v Adams the judge applied the principle that the damages available to the claimant should be judged by comparison with personal injury judgements. He also took into account the fact that by the time the News of the World article was published the allegations in the book had been "allowed to gain to some extent in currency" because of Jimmy Nail's failure to challenge them.

Applying these principles to the action against Harper Collins, bearing in mind that only approximately 100 editions of the book were published after the limitation period had expired, the judge awarded £7,500 by way of damages. So far as the newspaper article was concerned, he said that he would have awarded £45,000 without taking into account the mitigating factors, for which he made a reduction of 50%, leaving a figure of £22,500. As was widely reported however, since there had been an offer of settlement of £37,500, the award has the effect of leaving the claimant with a substantial net liability in costs.

This is a clear example of the court rewarding the media defendant for having adopted the Offer of Amends procedure very early on, and granting it a very substantial discount of 50% which is intended to serve as an incentive to the print press in the future to adopt this procedure. It seems likely, therefore, that this procedure allied with a payment into court will become increasingly common, particularly where judges like Mr Justice Eady (who effectively invented the process) make such a point of both extolling its benefits and halving the sum of damages awarded.

Jonathan Coad, Solicitor.

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. Where reference is made to Court decisions facts referred to are those reported as found by the Court. The Simkins website is at www.simkins.com

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LICENSING
Live Event Industry
-UK Licensing Act 2003-
The UK Licensing Act 2003 received Royal Assent on 10th July 2003 but is not expected to come into full effect until 2005. The main points are that pubs, bars, restaurants, hotels and concert venues will be covered by a new 'Premises Licence' which will cover the sale of alcohol and any or all of the seven 'regulated entertainments' including performance of live music, performance of dance and the playing of recorded music. A one-off fee of between £100-£500 will be paid the applicable local authority and their will be an annual inspection fee to the local authority of £50-£100. Licence applications must be submitted to the local authority 28 days in advance and must include a plan of the premises, details of licensable activities and times of licensable activities.

The following is taken from the Department of Culture Media & Sport's website under the heading Regulated Entertainment. Under the new licensing regime, the concept of a separate public entertainment licence will disappear. Under the new regime only a single authorisation will be needed to supply alcohol, provide regulated entertainment, such as a performance of live music, or provide late night refreshment or any combination of these activities. Six existing licensing regimes will be integrated into one, cutting at a stroke significant amounts of red tape. Accordingly, under the Licensing Act 2003 an authorisation will be required in order for alcohol to be supplied at a public house but the applicant will be free to apply simultaneously for the authorisation to cover the provision of regulated entertainment, such as music or dancing whenever desired. Generally, the authorisation in these circumstances will be a premises licence. The fee for a premises licence will be no different whether an applicant simply applies for an authorisation for use of premises to supply alcohol or also decides to apply at the same time for authorisations to provide regulated entertainment. Any difference in fee levels, which will be set centrally to avoid inconsistencies, is likely (although no final decisions have been taken yet) to relate to the rateable value of the premises so that use of larger venues is likely to attract a higher fee than smaller ones. The 'two in a bar' rule is being discontinued. This is a disapplication under current licensing law of the need for a public entertainment licence in certain situations, such as two performers singing of playing music, at a premises where a justices' licence is in force.

See : http://www.culture.gov.uk/alcohol_and_entertainment/licensing_act_2003/regulated_entertainment.htm

And see M Magazine (PRS/MCPS) Issue 11
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COPYRIGHT
Record Labels, Telecommunications
-Korean Government Sets Up Novel Solution to Phone Download Licence-
The dispute between MP3 phone handset makers and the music industry in Korea has been settled when LG Electronics agreed to a government-mediated proposal. The Korean Ministry of Information and Communication reported that LG accepted the arrangement of allowing its customers to download and listen to free music files on the MP3 phones for three days. As a result, MP3 phone holders will be able to download any music files from their PCs and play them without charge. The files are programmed to stop working after the agreed time span. In two months, mobile carriers will be required to provide music services for their customers, although at a low-quality sound less than 70 Kbps (FM radio level) in a move to stop downloading but provide music content. Initially the local music industry voiced strong opposition to the new phone features, and refused to co-operate with MP3 handset owners, preventing them from legally listening to music files. In an effort to iron out the difference, the government stepped in and masterminded the three-day free play suggestion for the two-month grace period, which was accepted by Samsung earlier this week. LG argued that the time span should be at least five days but finally decided to compromise.

Source : The Korea Times
See: http://times.hankooki.com/lpage/tech/200404/kt2004040218541912350.htm

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© 2004 Ben Challis