COPYRIGHT
Record Labels
-BPI To Bring First Legal Actions Against 'Major Filesharers' in the UK-
The British record companies trade association the BPI (British Phonographic Industry) has announced that it is joining sister associations in the US and in Europe to begin a rolling programme of legal action against 'major filesharers' who illegally make copyright music available to millions of people across the world on peer-to-peer networks. The BPI is beginning the process of legal action against 28 UK filesharers. More cases are expected to follow. The BPI will seek damages and injunctions to stop these filesharers illegally uploading recordings on to filesharing networks. The large-scale uploaders subject to legal action include users of the KaZaA, Imesh, Grokster, Bearshare and WinMX networks. The announcement comes against the background of a breakthrough year for legal online music services in the UK, with the launch of high-profile services like Mycokemusic, iTunes and Napster and the launch on September 1st of an Official UK Download Chart. However the major labels and the BPI have done little to endear themselves to the British consumers having allowed Apple and Coke to develop business models which consumers actually want at a price they will pay. The labels own services were unwanted and poorly thought out. BPI chairman Peter Jamieson said, "We have been warning for months that unauthorized file-sharing is illegal. These are not people casually downloading the odd track. They are uploading music on a massive scale, effectively stealing the livelihoods of thousands of artists and the people who invest in them." After warning of possible legal actions in March over 350,000 instant messages have been sent to uploaders' computers warning them of the consequences if they continue. The announcement of the first actions in the UK forms part of an announcement from international record companies' trade body the IFPI of a total of 459 new legal actions against illegal filesharers across six European countries.

See : http://www.ifpi.org

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COPYRIGHT
All Industry Areas
-Creative Commons Launched in Canada-
On September 30, 2004, the Canadian Creative Commons project was launched online. Led by the University of Ottawa's Canadian Internet Policy and Public Interest Clinic, it is designed to allow Canadians who create digital works, such as web sites, texts, courseware, music, film and photography, to share their works and allow others to copy, modify and redistribute them. The project attempts to create a balance between a system of total creative control - the "all rights reserved" scenario and an unprotected public domain in which creators are vulnerable to exploitation "no rights reserved". A creator using the Creative Commons licence will be able to publicise terms and conditions under which other creators may have access to the work's source code. In other words, it's a system of "some rights reserved". The system has already been launched in the Netherlands and the US Creative Commons was established in 2002 and has provided licences to more than three million digital works. The conditions include the following: (a) attribution (others may copy, distribute, display and perform the work, and any derivative works based on it, if the creator is given credit); (b) non-commercial use (others may use the work for non-commercial purposes only); ((c) no derivative works (only verbatim copies of the work may be used); and d) 'share-alike' (derivative works may only be distributed by others under a licence identical to that governing the original work). The US Creative Commons was established in 2002 and, since then, has provided licences to more than three million digital works.
Not everyone is an unqualified supporter of the Creative Commons. A representative from the Canadian Recording Industry Association has said that this type of system won't work for artists who want to make a living from their creativity. But those who support the project say that it allows for flexible copyright and that the sharing of creative works helps set the stage for continued innovation.

For more background and related news stories, visit the Creative Commons web site at: http://www.cippic.ca

Taken from the article 'Some Rights Reserved' by Clare McCurley and published by E-Tips Vol 3 No 9 October 13 2004
etips@dww.com

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COPYRIGHT
Record Labels, Music Publishers, Software, Artists
-Entertainment Giants Push Supreme Court to Rewrite Copyright Law-
The EFF have reported that a group of 25 entertainment companies have filed a petition for certiorari with the Supreme Court, asking the Court to rewrite copyright law principles that establish when high-tech companies can be held liable for the copyright infringements of their customers. The petition asks the Supreme Court to overturn the recent Ninth Circuit Court of Appeals decision in MGM v. Grokster, where the court ruled that Grokster and StreamCast Networks were not liable for the infringements committed by people using their software to share copyrighted works. EFF is counsel for StreamCast in the case. "The entertainment industry petition is a frontal attack on the Betamax doctrine and threatens innovators of every stripe," said EFF Senior Staff Attorney Fred von Lohmann, who argued the MGM v. Grokster case before the Ninth Circuit. The Betamax doctrine takes its name from a landmark 1984 Supreme Court case involving the Sony Betamax VCR. Often described as the Magna Carta of the technology industry, the Betamax doctrine makes it clear that innovators need not fear ruinous litigation from the entertainment industry so long as their inventions are "merely capable of substantial noninfringing uses." In the petition for certiorari, the entertainment industry urges the Court to reverse that established rule and impose on innovators a "legal duty either to have designed their services differently to prevent infringing uses, or to take reasonable steps going forward to do so." Under such a rule, Sony's Betamax VCR would never have seen the light of day, since Sony could have designed it differently or could have modified it after Disney and Universal Studios complained. The entertainment industry's petition was filed just one day after Senator Orrin Hatch (R-UT) announced that the Senate was not ready to adopt his Inducing Infringement of Copyrights Act, S. 2560 (formerly known as the INDUCE Act). He suggested that Congress would return to the issue next year. "The entertainment industry appears to think that it can treat the Supreme Court and Congress interchangeably in pushing for their rewrite of copyright law," said von Lohmann. "But it's Congress that writes the Copyright Act, not the courts. The Supreme Court will not be eager to end-run Congress on this complex legislative issue." Added EFF Staff Attorney Jason Schultz, "The RIAA and MPAA refuse to accept the reality that consumers and technology companies have rights too. They are hell-bent on writing their own laws, one way or another." EFF will file a response brief with the Supreme Court on behalf of StreamCast in mid-November. It will be several months before the Supreme Court determines whether to hear the case.

See : http://www.eff.org/news/archives/2004_10.php#001988

EFFector Vol. 17, No. 38 October 13, 2004 A Publication of the Electronic Frontier Foundation

See an article on this topic by Ben Challis : Don't Shoot The Messenger : Copyright Infringement in the Digital Age at http://www.musicjournal.org/03dontshootthemessenger.html

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DEFAMATION, CONFIDENTIAL INFORMATION & PRIVACY
Artists, Record Labels, Press, Television
-When a Pre-trial 'Gagging' Order Will Be Granted by the Courts: Cream Holdings Ltd & Others v Banerjee & Another (2004) -
In this House of Lords decision it was held that the proper test for a court to use when looking at a prior restraint order preventing the publication of information before a trial was that the order would not be granted unless the court was satisfied that the applicant's prospects of success at trial were sufficiently favourable to justify the order being in made in the circumstances. In general terms the applicant had to satisfy the court that he would probably succeed at trial although there might be circumstances where a lower threshold might apply. Where a real probability of success could not be proved then the court should look a where the balance of convenience lay. This case revolved around the publication of certain information to do with the business of the Cream nightclub which was provided to the Liverpool Daily Post and the Liverpool Echo by Ms Banerjee who had been the financial controller of one of the Cream group companies but had been dismissed. The information allegedly showed illegal and improper activities by the Cream group. The defendants admitted that the information was confidential. These allegations were published on June 13 and 14 by the two newspapers. The Cream group sought an injunction against any further publication(s). Their Lordships first looked at the existing criteria in American Cyanamid which held that the test that the court should apply is firstly to see if there was a serious issue was to be tried and provided the case was not frivolous or vexatious then look at the balance of convenience before grated an injunction. the House of Lords applied Section 12(3) of the Human Rights Act which provides that when asking for a pre-trial injunction "no such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed". Given that the principal happenings in this case the Post and the Echo wished to publish were of serious public interest the House of Lords was firmly of the opinion that the claimant's prospects of success were not sufficiently likely to justify making an interim restraining order. This case reinforces the purpose of section 12(3) to buttress the protection afforded to the freedom of the press and the section raises the threshold for granting a interim injunction against the media.

The Times 15 October 2004
American Cyanamid Co v Ethicon Ltd (1975) AC396

COMMENT: from George Festing, Solicitor with the Simkins Partnership

The House of Lords last week handed down its judgment in the case of Cream Holdings Limited and Others v Banerjee and Others. A Merseyside publisher of the "Daily Post" and the "Liverpool Echo", published allegations by Ms Banerjee, a former employee of part of the Cream Group, the nightclub promoters, regarding alleged corruption involving one of the directors and a local council official. The allegations were, to some extent, supported by documents that Ms Banerjee had copied without permission when she was dismissed from one of the Cream companies. These documents had been passed on to the newspaper. Cream claimed that Banerjee, as an ex-employee, was in breach of her duty of confidence and sought an injunction from the court to restrain the newspaper from publishing any further confidential information given to it by her.
The High Court granted the injunction, a decision that the newspaper appealed on the wording of section 12(3) of the Human Rights Act 1988 which states:
"No such relief [which might affect the exercise of the convention right to freedom of expression] is to be granted so as to restrain publication before trial unless the court is satisfied that the application is likely to establish that the publication should not be allowed."
The Court of Appeal held that "likely" meant "more probable than not". The claimant had to show a "real prospect of success, convincingly established" in order to be successful in its application for an interlocutory injunction. The Court of Appeal dismissed the newspaper's application for the removal of the injunction.
The newspaper took this decision to the House of Lords who allowed their appeal, discharging the original injunction imposed by the first instance judge. With regard to the test to be applied by the courts on an interim injunction application Lord Nicholls said:
"There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success "sufficiently favourable", the general approach should be that the court will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ("more likely than not") succeed at the trial."
This decision raises the threshold higher than the conventional American Cyanamid case that required a claimant only to be able to show that the claim is "not frivolous or vexatious: in other words that there is a serious question to be tried." In most instances, a claimant would now be expected to show that it is more likely than not that he will succeed at trial.
Despite this, the House of Lords indicated that the courts should retain an element of flexibility where it would be appropriate to allow a lesser degree of likelihood to grant the injunction. This might be appropriate where the adverse consequences of disclosure were particularly serious or where a significant injustice would be done to the claimant if no protection were offered pending trial.

George Festing 22 October 2004

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.
© This comment The Simkins Partnership http://www.simkins.com

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COPYRIGHT
Record Labels, Internet
-International Webcasting Agreement Extended to The US-
IFPI has welcomed the US performance rights organisation Soundexchange as the latest signatory of its international webcasting agreement, the reciprocal licensing arrangements that allow internet webcasters to stream music programmes to consumers on the basis of a single "one-stop" licence. Also joining the network of licensing bodies this month are the producer collecting societies in Iceland (SFH) and Ireland (PPI), bringing the number of countries in the programme to 16. The webcasting agreement, which was announced in November 2003 allows webcasters to clear record producers' rights in a multitude of countries by entering into a licence in one participating country. Previously, these rights would have had to be cleared country-by-country. Webcasting - the streaming of music programmes on the internet - is just one of the new forms of online music distribution that the music industry is now promoting as it develops new business models and revenue streams for the online environment. Webcasting is already well-established in the USA, where there are currently 1250 licensed services.
IFPI Deputy General Counsel Lauri Rechardt said: "The reciprocal Webcasting Agreement that IFPI and the record companies' and artists' collecting societies have put together is an important step forward in that it creates global one-stop-shops for the licensing of streaming of sound recordings over the Internet. SoundExchange joining in this reciprocal agreement is great news both for the US artists and record companies and users that want to stream music over the Internet legally". The webcasting agreement has been developed by the recording industry, represented by IFPI, together with the national collecting societies representing producers. The webcasting agreement followed an earlier international simulcasting accord, which collecting societies in 35 countries have now joined. SoundExchange is the first performance rights organisation in the United States to collect and distribute digital audio transmission royalties to featured artists, sound recording copyright owners.
SoundExchange represents over 750 different record companies and thousands of recording artists and is seeking out more labels and artists who are owed royalties for sound recordings played on satellite or cable radio or streamed via non interactive webcast.

See : http://www.ifpi.org

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DEFAMATION & COPYRIGHT
Internet
-"ISP's the Weakest Link When It Comes to Free Speech" -
The Observer newspaper's Networker column often provides food for thought and writer John Naughton often has a fresh approach to new issues which have developed out of the internet. He writes in his 17th October 2004 column about the way in which the internet, which was once perceived to be the great and wonderful holy grail of real truth in a world of spin, of exposure in a era of hush-ups and of free speech in a world of censorship is now nothing of the sort. Indeed such is the nervousness of ISPs (Internet Service Providers) to avoid any liability for defamation or copyright infringement because of those who use their systems; When activist group 'Bits of Freedom' placed a public domain work by Dutch author Multatuli on ten Dutch websites, all but three removed the work when contacted by a fake society claiming to represent the copyright owner of the work. In fact Multatuli died over 100 years ago and the article posted on the ISPs stated the work was in the public domain. Only one ISP responded to the fake society (set up by the actvist group) pointing out that the work was well known and clearly in the public domain. One ISP took down the 'offending' article within one hour. As John Naughton points out "if you want to censor someone, just get your lawyer to write a snotty letter to the ISP that hosts his or her site".

See : http://www.briefhistory.com/footnotes

The Observer, 17 October 2004

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COPYRIGHT
Record Labels
-IFPI Say That Markets Are Showing Signs of Recovery-
The International Federation of Phonographic Industries (IFPI) say that global sales of recorded music - audio and music video - grew by 1.7% in units and fell 1.3% in value in the first half of 2004, compared to the same period in 2003. Audio sales fell by 2.7% in value, while the music video sector grew by 20.2% driven by DVD music video, which increased by 26.6%. Interim sales of all audio and music video formats totalled $US13.9 billion, compared to $US14.1 billion in 2003. The figures reflect a slowing of the rate of decline in music sales of the past four years. This is the best first-half year result achieved since 2000. Sales in regional and individual territories varied widely, with the effects of unauthorised file-sharing on the internet and commercial piracy, among other factors, still affecting many of the world's markets. The US music market is leading the recovery, while markets such as Canada, Germany and Japan are showing a substantial reduction in their rate of decline. But other markets including Spain, Italy and the Netherlands are still weak, and more recent reversals have hit sales in France and Australia.

Two bright spots are DVD music video, which continues to show strong growth and has helped offset the decline in audio formats. Meanwhile, the growth of legitimate digital music downloads which suggests a strong future for the online music market. These are not currently included in official industry figures. Jay Berman, IFPI Chairman and CEO said: "There are some signs that the world's markets are beginning to recover, boosted by the continued growth of DVD music video, digital sales and added-value releases. However, markets continue to be hampered by the dual effects of commercial and internet piracy. IFPI and its national groups are continuing to persuade music fans to download from legitimate music sites, and not file-share illegally. More and more consumers are using authorised download services - a distinctly positive sign."

See : www.ifpi.org

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HEALTH & SAFETY
Live Event Industry
-Club Doorman Charged With Murder-
A doorman at London's Stringfellows nightclub has been charged with murder after an incident at the West End venue on Friday 8th October. George McDonald from Warwickshire died of a head injury after the incident. Doorman Marcus Marriott, aged 32 and from London, will appear before Magistrates at Bow Street today (11th October). New licensing procedures for door supervisors in the UK are currently being rolled out by the new Security Industry Authority and will be implemented in London by April 2005.

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LICENSING, HEALTH & SAFETY
Live Music Industry, Venues
-ARTICLE: the Live Music Forum says "Save UK Live Music"-
by Tom Frederiske
The Live Music Forum, created by the Licensing Act 2003 and chaired by Feargal Sharkey, has issued a call to arms to the music industry and fans alike: act now to help exploit a rare opportunity to expand live music in the UK. On 7 February 2005, an unprecedented six-month period begins, in which licences for putting on live music will, at least theoretically, be easier to obtain provided action is taken now to ensure that proper guidelines are put in place locally. According to the Culture Minister, this amounts to the "biggest social change and reform of our leisure industry ... in 40 years".

We are now half way through a pre-transitional period (ending in February) during which licensing authorities must prepare, consult on and publish local licensing policy statements. With these statements, local authorities effectively create their own guidelines for granting licences (in conjunction with the "Guidance Issued Under Section 182 of the Act" which aims to provide best practice and greater consistency of approach and which seeks to promote a "thriving and safe night-time economy" and "enhance people's lives by providing important opportunities for the enjoyment of leisure time"). The Guidance and local guidelines should, ideally, create a balance between the promotion of culture and community, and public safety.

Next year's expected flood of live music licence applications must be decided with regard to the national guidance and to the authority's own statement of licensing policy. According to the Live Music Forum, it is therefore essential that each individual "local statement" be drafted in such a way as to allow the maximum scope for granting licences for more and better venues to host live music throughout the UK.

The Live Music Forum is urging all publicans, promoters, lawyers, managers, event organisers and community activists to seize this rare opportunity to encourage, foster and enable local live music by ensuring that their local authority is making good progress toward publishing their statement and by ensuring that, before final publication in February, the statement properly implements the national guidelines and supports and encourages live music, as far as possible, in line with the spirit and letter of the Act. The Guidance itself suggests that local authorities should "consult local performers, performers' unions (such as the Musicians' Union and Equity) and entertainers involved in the cultural life of the local community", though it seems likely that at least some local authorities will need encouragement to make such approaches.

Perhaps the key assistance needed from interested lawyers and industry figures is advice on handling the complaints of anticipated objectors to licence applications and liaising with probable objectors such as police, developers, community and neighbourhood groups and local residents.

The national Guidance document can be found online at http://www.culture.gov.uk/global/publications/archive_2004/guidance_issued_under_section_182_of_the_licensing_act_2003.htm though the document is very long and it may be more practical to go straight to relevant sections such as:

Chapter 3 - Statements of Licensing Policy - which provides guidance on the development and preparation of local statements and the core content which should be added. Notably, section 3.58 "Live Music, Dancing and Theatre" features highly unusual UK legislative drafting such as "Performances of live music and dancing are central to the development of cultural diversity and vibrant and exciting communities where artistic freedom of expression is a fundamental right and greatly valued" and "the absence of cultural provision in any area can itself lead to the young people being diverted into anti-social activities that damage communities and the young people involved themselves".

Chapter 5 - Premises Licences - which provides advice about best practice for the administration of the processes for issuing, varying, transferring and reviewing premises licences and other associated procedures.

Feargal Sharkey was appointed Chair of the Live Music Forum in January 2004 with a remit to take forward the ministerial commitment to maximise the take-up of reforms in the Licensing Act 2003, relating to the performance of live music generally, and to monitor and evaluate the impact of the Act on the performance of live music.

The Live Music Forum requests and recommends that all interested parties should contact it directly at LiveMusicForum@culture.gsi.gov.uk, or the legal or other relevant department of their local authority.

Tom Frederikse

This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters.
© This comment The Simkins Partnership http://www.simkins.com

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© 2004 Ben Challis