Intellectual Property Law Updates

Law Updates also provides hyperlinks to other sites which may be of use or interest to students and those involved in the music industry. These are provided at the end of Law Updates under 'Music Business Law Links'.

This resource is compiled by Ben Challis. Ben is a UK lawyer specialising in entertainment law and a graduate of London University and The City University. Ben acts as General Counsel for 3A Entertainments and is Executive Producer for television of the Glastonbury Festival. Ben is a visiting Senior Lecturer in Law at Buckinghamshire Chilterns University College in England.

We are interested in your views on the Law Updates resource. Please forward any comments to : musiclaw01@aol.com

OCTOBER 2004

COPYRIGHT
Internet, Technology
-MPAA Brings New Actions Against Chip Manufacturers-
The Motion Picture Association of America has said that its members have sued two microchip makers, alleging they sold their products to makers of equipment that can be used to illegally copy DVDs. The suits are the latest legal action by the MPAA which claims its members lose billions of dollars annually to copyright piracy. The MPAA said the suits against Sigma Designs and MediaTek followed testing that it said proved the two were selling microchips to companies whose DVD players lack what the MPAA called "appropriate security features". The suits were filed in California Superior Court in Los Angeles. Sigma and MediaTek make chips to decode the Content Scramble System, or CSS, which is the copy-protection system used for DVDs. Their licences require they sell only to other CSS-licensed companies. The CSS licence pact has aided the success of DVDs because it has provided protection against illegal copying to copyright owners of movies, television shows and other content sold on DVD.
In July, a California court issued a preliminary injunction barring ESS Technology from selling its own CSS-decoding chips to unlicensed makers of DVD players.
The MPAA, recognising the damage the advent of digital file-sharing did to the music industry, has waged an aggressive campaign against movie piracy. It has sued people and companies for purported acts of piracy and rewarded movie projectionists for turning in people who make illegal recordings in theatres. However the MPAA was dealt a blow in August when a federal appeals court said makers of file-sharing software (Morpheus and Grokster) could not be held liable for copyright infringement. They had been sued by movie and music companies that claimed they should be held liable because of how their software was used. However it should be remembered that 321 Studios lost its case when trying to promote the legality of its DVD software which circumvented anti piracy and copying encryption.

See : http://www.itweb.co.za/sections/business/2004/0408250937.asp?A=HOME&O=FPW

See Law Updates July 2004 (321 Studios) and see the article by Fred Von Lohmann below. Metro-Goldwyn-Mayer Studios v. Grokster, Ltd.,, 259 F. Supp. 2d 1029 (C.D. Calif. 2003, aff'd, CV-01-08541-SVW, slip op. (9th Cir. Apr. 19, 2004).

Article: Ninth Circuit Affirms That Peer-To-Peer Software Providers Are Not Secondarily Liable For Illegal File Sharing Of Copyrighted Material Over The Internet http://www.mondaq.com/article.asp?articleid=27999&searchresults=1

Article on CNET: XM Radio pulls PC hardware amid piracy concerns - http://news.com.com/XM+Radio+pulls+PC+hardware+amid+piracy+concerns/2100-1026_3-5330698.html

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HEALTH & SAFETY
Live Event Industry
-Club Doorman Cleared of Manslaughter-
A club doorman has been cleared of killing a sports teacher at the Central Criminal Court in London. The doorman, 29 year-old former reserve soldier Robert Demitrou, was charged with killing Philip Mesner who hit his head after being knocked down by Demitrou outside the Roadhouse venue in London's Covent Garden. But Old Baily Judge Peter Fingret held that the defendant had no case to answer after determining that the blow was a shove (a push) rather than a punch. Mr Mesner, 31, had been out celebrating with teaching colleagues in July 2003 when he was asked to leave the venue but continued to remonstrate outside. The defendant had denied manslaughter which has two forms in English law. Voluntary manslaughter is where the defendant has caused the death of the victim and has the necessary intent for murder BUT can establish a defence in law; these defences include provocation and diminished responsibility. Involuntary manslaughter involves the defendant causing the death of the victim but the defendant does not have the necessary intent for murder; the death must result from either an unlawful criminal act (constructive manslaughter), from the recklessness of the defendant or from the negligence of the defendant. The judge in any case of manslaughter has a wide discretion on what sentence to impose where a conviction is made by a jury, ranging from life imprisonment to a conditional discharge.

Source: London Evening Standard

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COPYRIGHT
Record Labels, Internet
-BUGS Back Online in Korea After Agreement With Labels-
South Korea's largest music streaming site www.bugs.co.kr will have up to 20,000 songs reinstated on its service. Bugs Music said that it has reached an agreement with the Korean Association of Phonogram Producers (KAPP), the lobby group representing about half of the music industry, on long-standing copyright rows. This means Korean music enthusiasts will be able to enjoy 20,000 songs, of which the KAPP retains copyrights, at Bugs' Web site. Currently, Bugs is prevented from providing some 40,000 songs to its users. The KAPP holds copyrights for around 50 percent of the titles, with non-member recording labels owning the remaining half. The KAPP and other recording labels brought Bugs to court last year citing the firm's unauthorised use of copyrighted songs with the court proposing a settlement of 2.22 billion won. The music industry initially opposed the mediation, saying Bugs earned much more by using their songs but the KAPP later changed its stance and accepted the proposal. However, non-KAPP member firms remained steadfast in rebuffing the offer, claiming the compensation amount should surpass 100 billion won. According to local Internet market research firm Metrix Corp. Bugs was the fifth most visited site in Korea with a total of 12.8 million users logged on in August.

See : http://times.hankooki.com/lpage/200408/kt2004082717245553460.htm

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COPYRIGHT
Music Publishing
-Ludlow Music Inc v JibJab: EFF Question Whether 'This Land' is in the Public Domain but Case Ends With Settlement-
In The September Law Updates we reported on the case being brought by Ludlow Music against JibJab over the unauthorised use of the song 'This Land' in a piece of flash animation. Jibjab were raising the defence of 'fair dealing'. The Electronic Frontiers Foundation backed Jibjab and provided research that showed that the piece had fallen into the Public Domain and a 're-registration' of the title in 1984 was ineffective as the copyright expired in 1973, 28 years after first publication in 1945. Fred von Lohmann, EFF Senior Intellectual Property Attorney said:

JibJab's fantastic animation is a clear fair use of Woody Guthrie's "This Land Is Your Land," for the reasons described in detail in EFF's initial letter to Ludlow's attorney. But also important was our other discovery: the Guthrie classic has been in the public domain since 1973. Fact 1: Guthrie wrote the song in 1940. At that time, the term of copyright was 28 years, renewable once for an additional 28 years. Under the relevant law, the copyright term for a song begins when the song is published as sheet music. (Just performing it is not enough to trigger the clock.). Fact 2: A search of Copyright Office records shows that the copyright wasn't registered until 1956, and Ludlow filed for a renewal in 1984. Fact 3: Thanks to tips provided by musicologists who heard about this story, we discovered that Guthrie published and sold the sheet music for "This Land Is Your Land" in a pamphlet in 1945. An original copy of this mimeograph was located for us by generous volunteers who visited the Library of Congress in Washington, DC. This means that the copyright in the song expired in 1973, 28 years after Guthrie published the sheet music. Ludlow's attempted renewal in 1984 was 11 years tardy, which means the classic Guthrie song is in the public domain (I'll note that Ludlow disputes this, although I've not heard any credible explanation from them.) So Guthrie's original joins "The Star-Spangled Banner", "Amazing Grace", and Beethoven's Symphonies in the public domain. Come to think of it, now that "This Land Is Your Land" is in the public domain, can we make it our national anthem? That would be the most fitting ending of all.

However Billboard.com reported that Ludlow Music had agreed a settlement with Jibjab: Ludlow agreed to allow the cartoon - one of the biggest Internet draws of the summer - to keep using the song. In return, JibJab dropped a lawsuit against Ludlow that sought an order saying its use of the song was protected because it was a parody and "This Land" was in the public domain. The creators also agreed to provide a link on their Web site to the song's original lyrics and to donate 20 percent of any profits to the Woody Guthrie Foundation (www.billboard.com August 26th 2004)

EFFector Vol. 17, No. 31 August 26, 2004

For the original version of this piece online, including links to relevant websites and documents, see: http://www.eff.org/deeplinks/archives/001840.php

Official press release on the JibJab victory: http://www.eff.org/news/archives/2004_08.php#001838

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COPYRIGHT
Record Labels, Collection Societies
-PPL can sue UK Government for failing to implement EC Directive: Phonographic Performance Limited v Department of Trade & Another-
In a trial relating to preliminary issues in an action sought by the PPL against the DOT and the Attorney General the Vice Chancellor, Sir Andrew Morritt, held that PPL did have a right to bring an action as the UK was in continuing breach by failing to implement article 8.2 of the EC Rental Directive 92/100/EC to provide for ' a single equitable remuneration is paid by the user if a phonogram is published form commercial purposes or a reproduction of such a phonogram is used for broadcasting by wireless means of for … communication to the public. This should have been implemented by July 1 1994. However the UK Limitation Act 1980 (s2) provides that actions must be brought within six years from the date at which the cause of that action accrued. The Vice Chancellor held that as there were repeated failures to implement, PPL were not time-barred by reason of delay in brining the action ten years after the first failure of the UK Government. The UK Government needed to amend sections 67 and 72 of the Copyright Designs & Patents Act 1988 which provide for royalty free use of sound recordings in 'not for profit' clubs and societies (s67) and for the free showing or playing of broadcast and cable programmes (s72). The PPL therefor have been allowed to bring an action that the UK should have amended the CDPA 1988 by repealing sections 67 and 72 and the claim is not statute barred and a claim could be brought for any loss sustained in the six year period immediately preceding the issue of proceedings in March 2003.

The Vice Chancellor added that the PPL's action could be by way of an original action (since this was not statute barred) or by way of judicial review. The choice of either might be an abuse of process and how to exercise that jurisdiction would depend on all the relevant circumstances including matters occurring before the proceedings were instituted and which remedy was in the circumstances more appropriate. In Morritt VC's judgement the proceedings were essentially private law proceedings and should be brought by ordinary action.

Judgement 23 July 2004
The Times Law Reports 27 August 2004

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COPYRIGHT
Record Labels
-Consumers Target EMI France Over Unplayable CDs-
French authorities have launched an investigation of EMI France and music retailer Fnac over anti-copying technology included on CDs that allegedly renders them unplayable on some systems. Labels use the technology to protect their copyrights but a magistrate judge on 31 July ordered the investigation following a review of consumer complaints by a local division of the Bureau of Competition's antifraud unit (DDCCRF).The move is among the most threatening actions yet taken in Europe against record labels and retailers over anti-copying technology. The DDCCRF carried out its own tests, and a judge subsequently ordered a judicial examination of EMI Music France and Fnac on charges of fraud. The charges carry possible prison terms of up to 2 years for company executives, and a fine of about $45,000 (£25,000).

See : http://news.zdnet.co.uk/business/0,39020645,39164760,00.htm

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COPYRIGHT
Record Labels, Music Publishers
-Music Sampling: Westbound Records and Bridgeport Music v No Limit Films (2004)-
A US federal appeals court has ruled that recording artists should licence every musical sample included in their work even minor, unrecognisable snippets of music. The lower court had ruled that artists must pay when they sample another artists' work where the use is recognisable but that it was legal to use musical 'snippets' as long as it wasn't identifiable; The decision by a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati over-ruled that distinction. The court posed the question "If you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole?" The Court's answer to this was in the negative" and the court added "Get a license or do not sample - we do not see this as stifling creativity in any significant way." The case centred on the NWA song 100 Miles and Runnin, which samples a three-note guitar riff from Get Off Your Ass and Jam by '70s funk-master George Clinton and Funkadelic. In the two-second sample, the guitar pitch has been lowered, and the copied piece was "looped" and extended to 16 beats. The sample appears five times in the new song. NWA's song was included in the 1998 movie I Got the Hook Up, starring Master P and produced by his movie company, No Limit Films. No Limit Films has argued that the sample was not protected by copyright law. Bridgeport Music and Westbound Records, who own the copyright to the Funkadelic song, appealed the lower court's summary judgement in favour of No Limit Films. The lower court in 2002 said that the riff in Clinton's song was entitled to copyright protection, but the sampling "did not rise to the level of legally recognisable appropriation." The appeals court disagreed, saying a recording artist who acknowledges sampling may be liable, even when the source of a sample is unrecognisable.

See : http://www.usatoday.com/tech/news/techpolicy/2004-09-08-sampling-ruling_x.htm

COMMENT : This case re-affirms the position advanced in this column that sampling any part of a sound recording will always result in a copyright infringement - as Mr Justice Peterson said in 1916 - if it's worth copying then it's worth protecting. The position with lyrics and particularly the music in the song which is contained in the sound recording is not quite as clear. The US case of Newton v Diamond & Others (2003) suggested that whilst the copying of any part of a recording would need permission of the copyright owner, the 'use' of the music (contained within that recording) in a sample may or may not infringe the rights of the owner of the music - it will not infringe if it is not recognisable because in effect the melody or the tune has NOT been copied. But if the use of the song (or lyric) is recognisable then there will be infringement. Certainly if a 'hook', identifiable 'riff' or identifiable sequence of notes is used there may well be infringement just as use of only one verse of the lyrics of another song would be enough to constitute infringement (Ludlow Music v Williams & Others).

For further information on sampling see the article by Ben Challis 'The Song Remains The Same' at : www.musicjournal.org/03thesongremainsthesame.html and the article on sampling and independent dance labels by Jenna Bruce at : www.musicjournal.org/02sampling.html

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COPYRIGHT
Record Labels
-Australian Pirate to be Extradited to US-
A ground-breaking ruling against an Australian man accused of pirating, games and music worth over $50 million means that Hew Raymond Griffiths will be tried in a U.S. court after the U.S. won the battle to extradite him. At first instance an Australian magistrate denied the extradition request but after an appeal the U.S. won the right to try Griffiths. Griffiths is accused of being the ring leader of an Internet release group called DrinkOrDie. Eleven members of DrinkOrDie have already been convicted in the United States but Griffith's infringements all took place on his home computer in Australia. If the extradition and trial go ahead; he is facing up to 10 years in an American prison and a possible fine of $500,000.

See : http://www.afterdawn.com/news/archive/5564.cfm

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ARTICLE : HEALTH & SAFETY
Live Concert Industry
-New Door Supervisor Licences Come Into Effect: The PRIVATE SECURITY INDUSTRY ACT 2001. THE PRIVATE SECURITY INDUSTRY (LICENCES) REGULATIONS 2004.-

by Ben Challis

Variation in the quality of regulation and licensing of the private security industry in the United Kingdom and a small but noticeable criminal element within the industry led to the passing of the Private Security Industry Act 2001 (the Act), the Private Security Industry (Licences) Regulations 2004 and the creation of the SIA, the Security Industry Authority. The SIA has the remit to regulate and licence the private security industry in England and Wales and aims to ensure that there are professional, trained and qualified door staff working at all licensed pubs and clubs. An estimated 85,000 door supervisors and staff now have to or will have to have a SIA licence to work in licensed premises (as defined under the Licensing Act 1964). The Act defines a door supervisor as those whose work

is limited to licensed premises and includes guarding against unauthorised access or occupation or against outbreaks of disorder or screening the suitability of people entering premises when they are open to the public.

The door supervisor licences are being introduced on a regional basis with over half of the country already part of the scheme. Wales introduced SIA licences on the 14th June, The North East joined on 6th September and the East on 4th October. The last region will be London where all door supervisors must be licensed by the 11th April 2005. The licence is personal to each door supervisor who must apply for his or her own licence. The application fee for each application is £190.00 and is non-refundable.