COPYRIGHT
Record Labels, Artists
-No payment for artists yet from RIAA download actions?-
A Daily Texan article shares some startling numbers about the Recording Industry Association of America's (RIAA) litigation campaign: The RIAA has settled 8,423 suits with an average settlement of $3,000. The Daily Texan works out that this is a total of $25,269,000.00 (twenty five million two hundred and sixty nine thousand dollars) and the newspaper claims that not a penny of which goes to the artists that the RIAA claims to speak for. The United Kingdom's Times newspaper also ran a front page article (6 March 2005) saying that the British Phonographic Industry had settled a total of 23 civil claims against 23 file downloaders with a total compensation payment of 000.00. Peter Jamieson, chairman of the BPI, commented that unauthorised downloading "effectively steals the livelihood of musicians and record companies. We will not hesitate to protect the rights of our members and the artists they represent". The BPI has said it will now target file sharers with collections of unauthorized downloaded tracks ranging from a few hundred to "high four figures" although no detail was yet given as to the division of receipts between recording artists and BPI member labels.

See: www.eff.org/cgi/tiny?urlID=402 and www.bpi.co.uk

COMMENT :The Daily Texan article does raise a very interesting point about record company economics and their relationship with artists: As the chairman of the BPI rightly points out, illegal downloading steals from both musicians and record labels (as well as the songwriter it should be added). If millions of dollars of un-attributable income are collected, in effect in lieu of royalty payments, then surely the real losers are the artists and AS WELL AS the record labels. It is also prudent to add that whilst it is the record labels and their trade associations who are taking the moral high ground in the fight against peer-2-peer file swapping and illegal downloading, in the past labels have been regularly accused of "biting of"' the hand that feeds them - binding recording artists and musicians to long and complex agreements and then failing to pay them a fair share of profits made from the exploitation of recordings. High profile claimants against record labels for accountings and royalty payments have included the Beatles and more recently Michael Jackson (in a claim against Motown) and the Rolling Stones (in a claim against Decca). Part of George Michael's ultimately unsuccessful claim against Sony in 1994 was that there was an inequitable division of profits between artist and label from his album sales and that his label used royalty reducing clauses to keep his CD royalty payments lower than they should have been. Music Business Journal have asked the BPI press office for a comment on this in early March but have heard nothing as yet.

For an artist's view on downloading, recording contracts and relations with the recording industry see the Recording Artists Coalition website at www.recordingartistscoalition.com. There are interesting comments from Eagles drummer and vocalist Don Henley (17th February 2004) on the home page.

The George Michael Case: Panayiotou v Sony Music Entertainment (UK) Ltd (1994) EMLR 229
Law Updates December 2004 Rolling Stones must arbitrate royalty dispute with Decca
Law Updates June 2003 Michael Jackson launches royalty action against Motown

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COPYRIGHT
Live Event Industry, Music Publishing
-Cypriot event organisers pay up for music use-
The Nicosia District Court has awarded the Performing Right Society (PRS) 40 in compensation after event organisers arranged four dinner balls with live music without acquiring the requisite licence for publicly performing copyrighted music either mechanically or live. Judge Alecos Panayiotou found in favour of the applicants, awarding them 12 per cent of the revenue raised from ticket sales for the dinner balls. The PRS noted that the organisers could have got away with paying half that amount using a special discount price if they had acquired the licence from PRS before the public performances. The judge noted in his conclusions that the plaintiffs could have sued for more since the defendants had been warned early on about the need to acquire a licence.

Source: Cyprus Mail - www.cyprus-mail.com/news/main.php?id=18546&cat_id=1

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COPYRIGHT & PATENTS
Technology
-Debate on the protection of software by patents vs copyright-
"Once upon a time, we intellectual property lawyers got to live peacefully in our ivory towers. Now it seems that intellectual property policy issues have become fraught with partisan rhetoric. Most open-source promoters are against software patents. Most corporate spokesmen side with patents, period, whether they cover software or not. But it is worth looking beyond the rhetoric"

Microsoft are busy patenting their software and for a very interesting discussion of the relative merits of protecting software by the monopoly protection of patent law or by the more 'flexible' protection of copyright see the very useful article "the Fuzzy Software Patent Debate Rages On" by US Attorney Heather J Meeker at : www.technewsworld.com/story/40676.html

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COPYRIGHT
Record Labels, Music Publishers
-Nigeria enforces copyright laws-
OVER 100 People are now standing trial before various courts in Nigeria for allegedly engaging in piracy and other unlawful acts that violate the Copyright (Amendment) Decree No. 42 of 1999, the Director General of the Nigerian Copyright Commission (NCC), Professor Adebambo Adewopo announced. Speaking during a meeting with stakeholders in the Music Industry in Enugu, Adewopo also said that the commission had intensified its battle against piracy in the country, adding that prosecution of offenders had been strengthened as part of efforts to sanction perpetrators under the new anti-piracy programmes.

Source: http://allafrica.com/stories/200503180883.html

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COPYRIGHT
Record Labels, Music Publishers
-Malaysian authorities crack down on copyright infringement-
Enforcement officers in Malaysia have raided an entertainment outlet for playing music in public without the consent of Music Authors Copyright Protection Association (MACP) on Thursday. The 43-year-old operator was arrested and would be charged under Section 45 of the Copyright Act which carries a RM50,000 fine or five years' jail, or both, upon conviction. Authorities also seized two VCD players, an electronic stereo system, an equaliser, an amplifier, a television set, a speaker, a VCD and a catalogue of songs. There were between 40 and 60 people at the outlet during the 3am raid by six ministry enforcement personnel and MACP representatives. The operator had been previously visited and had been issued warning letters last year in a bid to educate him to comply with the copyright law before playing music in public. Usually a venue operator must pay a RM2,500 fee annually to obtain a licence from MACP before playing music in public.

Source: http://thestar.com.my/news/story.asp?file=/2005/3/12/nation/10397723&sec=nation

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HEALTH & SAFETY
Live Industry
-The UK's Security Industry Authority warns of low levels of applications by door supervisors but also admits to its own delays-
The Security Industry Authority has warned that inaction by door supervisors in the South East and London may force pubs and clubs to close if licensees cannot employ enough licensed door staff. Insufficient numbers of the South East's door staff have applied for their new door supervisor licence. However pubs, clubs and venues have countered the SIA's press announcement saying that numerous staff have applied for badges but the SIA's own examiners are far too slow in coming back with results for applicants, slowing the whole process down.

From 28 February in the South East region and from 11 April in Greater London it will be a legal requirement for all door staff to hold a new Security Industry Authority (SIA) door supervisor licence. All local authority registration schemes will cease. There has been widespread publicity of the new licensing scheme, and door staff in the South East of England have been able to apply for their new licences since 25 October 2004. The SIA commented that "The South East and London benefit from a vibrant night-time economy and the public deserve a high level of service from door staff when they go out to pubs, clubs and bars. An SIA door supervisor licence demonstrates that the holder has undergone identity and criminal record checks and has reached set levels of training and professional standards". Door supervisors and their managers working without an SIA licence risk prosecution and damage their eligibility to be licensed in the future. Premises licence holders using unlicensed door staff put their premises' licence at risk. To attain an SIA door supervisor licence applicants must: undergo a four-day training course and attain a Level 2 qualification in door supervision (some exemptions to training may be allowed); undergo an identity check; undergo a criminal record check. Door supervisors working in the South East excluding Greater London require a licence by 28 Feb 05. Door supervisors working in Greater London require a licence by 11 April 2005. A list of door supervisor training providers is on the SIA website - http://www.the-sia.org.uk and licence application packs can be obtained form (UK) 08702 430 100. The maximum penalty at a Magistrates Court for a person found guilty of working as a door supervisor without an SIA licence is a 00 fine and or six months imprisonment.

However there is concern that the door supervisors programme outlined above will lack a framework for supervision. The Magistrate Magazine (January 2005) reported that in one English county, East Sussex, the SIA has just 'one tenth' of the resources previously in place with possibly just one officer to supervise the entire county which includes the bustling towns of Brighton and Hastings.

The SIA has put a brake on the continuing of its developing regulatory programme after admitting it was not in a position to implement the next stages of the regulatory framework for the private security industry. To the fury of consumer groups, the SIA has announced that the next phase of regulation, initially for private car clamping companies, has been suspended indefinitely despite the SIA setting this timetable itself. This position will be reviewed in June. Only a small proportion of wheel clamping companies had applied for accreditation and it is suggested that the marking and results of examinations set for clampers had not been completed.

See: The Times 16 February 2005 and http://www.the-sia.org.uk

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TAXATION
Artists, Live Industry
-EU Council of Ministers recognises withholding tax problems-
The EU Council of Culture Ministers has decided to "solve the obstacles caused by the taxation of mobile artists". They have included this item as Paragraph 5 of their Work Plan for 2005-2006. Dick Molennar, a Dutch tax advisor with All Arts Tax Advisors commented that "this is an important step forward, because the EU now recognizes officially the issue of taxation of international artists as a problem to be solved. The Dutch Ministry of Culture has been very active during the Dutch presidency of the European Union (July - December 2004) to push this decision through. We hope that the English presidency of the EU (July - December 2005) can develop this subject further." German Tax expert Dr Harald Grams and Mr Molennar chaired a EU conference in Rotterdam in October 2004, that made the recommendation for the EU Council of Culture Ministers to progress in this manner and both are members of the International Live Music Conference (ILMC) Tax Working Group.

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COPYRIGHT
Film & Television
-UK Bollywood pirate jailed for 3 years R v Buhecha (2005)-
Bollywood film distributors claimed a victory in their battle against bootleg DVDs yesterday but said the problem was approaching epidemic levels as millions of counterfeit films flooded into the United Kingdom from Asia. Jayanti Amarishi Buhecha was jailed for three years yesterday after being found guilty of two offences under the Trade Marks Act 1994 at Harrow crown court, north-west London, last month. The British Phonographic Industry, the trade body which compiled much of the evidence that resulted in Buhecha being charged, welcomed the sentence as a sign the courts were taking DVD and CD piracy seriously. It estimated that at least four out of 10 Bollywood DVDs and CDs sold in the UK were counterfeit, well above the average for Hollywood movies and western CDs. Others in the industry put the figure at more than seven in 10. The DVDs imported into the UK by Buhecha were manufactured in Pakistan and Malaysia and sold wholesale to shops in London and the Midlands. He began as a legitimate distributor arranging film screenings in Cambridge and went on to become an authorised distributor for Yash Raj Films, an Asian film company. In 2002 he was suspended by the company when it discovered he had been selling pirated copies of its blockbuster Mohabbatein. The firm sued him and Buhecha agreed to pay £16,000 in damages and stop copying the movies. But Buhecha returned to piracy and on one occasion Brent and Harrow trading standards officers found more than 1,000 counterfeit DVDs in the boot of his car. Despite being arrested and bailed, he was caught again by trading standards officers, prompting a police raid on his home and warehouse in Cambridge, during which 18,000 fake DVDs and other equipment were seized. Confiscated computer files showed emails to a global network.

Source: http://www.guardian.co.uk/uk_news/story/0,,1423160,00.html

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COPYRIGHT
Record Labels
-Recording industry welcomes police investigation of Allofmp3.com but prosecution stalled-
The International Federation of Phonographic Industries (IFPI) has welcomed action by the Russian authorities against a Russian website alleged to be offering digital copies of recorded music for sale illegally.Allofmp3.com and its principals are alleged to be involved in large-scale copyright infringement by offering music for sale without authorisation from rights holders in Russia and internationally. Russia is the worlds 12th largest music market with sales of US326.20 million in 2003 but has a piracy rate of 64%. The Computer Crimes unit of Moscow City Police formally passed the results of its criminal investigation to the Moscow City Prosecutor's office on February 8. IFPI, on behalf of its members, also submitted a formal complaint to the prosecutor's office in support of further action on the same date. The prosecutor has thirty days from the date of receiving evidence to decide whether to proceed. However it seems that Moscow prosecutors have declined to press criminal charges against the popular Internet site according to Russian news reports, citing "specifics of Russian copyright law".

Source: http://asia.cnet.com/news/personaltech/0,39037091,39220696,00.htm and http://www.ifpi.org

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COPYRIGHT
Record Labels, Film & Television, Music Publishing
-Ghana clamps down on hard copy piracy-
A joint exercise undertaken by Ghana's National Anti-Piracy Task Force of the Customs, Excise and Preventive Service and the Police led to the arrest of 12 suspects included Nigerians and Ghanaians and the seizure of 7,632 pirated CDS. The operation was undertaken at the CEPS checkpoint at Dadala Junction in the Volta region. The CDs seized included foreign and local music and movies. The local artistes affected were Slim Busterr, Kojo Antwi, Daddy Lumba, Nana Acheampong, Esther Smith, Christina Love and Ama Boahemaa, among others. The suspects will be charged under copyright legislation and in addition those found to possess pornographic material will face additional charges under Section 280 of the Criminal Code of 1960.

Source: http://www.ghanaweb.com/GhanaHomePage/entertainment/artikel.php?ID=75757>

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COPYRIGHT
Recording Industry
-Swedish music sales plummet-
The sale of CDs and music in Sweden has slumped for the third year running. Last year sales declined by a massive 17%. Many industry insiders believe illegal downloads across peer-to-peer (P2P) networks over the internet are responsible. although this contrasts with certain territories and the position that world wide sales have actually begun to pick-up. Mårten Aglander, head of the Swedish division of Universal believes Americans have dealt more decisively with illegal downloading and that the US has the "lawful alternative [Apple's iTunes] which is working well." iTunes, which is available in the UK and other parts of Europe, is yet to open in Sweden. But the prevailing view is that it would help the industry if and when it does. Per Sundin, head of Sony BMG in Sweden says the sale of music over the internet in Sweden is improving but there remains much to be done. A new Swedish law which expressly forbids file-sharing of copyright material over the Net is expected to be in place by the summer. An article in Sweden's The Local pointed out that there already seems to be a declining interest in the music business on the part the Swedish media. Aftonbladet and Expressen have both slashed their coverage of bands and music in the last year, shifting more attention onto docusoap and film celebrities. The Friday supplements, once filled with band interviews and record reviews, are now overflowing with features on the lifestyles of the rich and famous.

Source: http://www.thelocal.se/article.php?ID=1061&date=20050307

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COMPETITION
Record Labels, Internet
-EU to investigate download pricing in Europe-
The European commission is to begin an investigation into the pricing of Apple Computer's digital music service after consumers complained that downloading tracks was more expensive in the UK than other parts of Europe. Officials are investigating whether price differentials on iTunes between the UK and other countries such as France and Germany of up to 20% amount to a breach of EU pricing regulations. The inquiry comes after Which? (formerly the Consumers' Association) wrote to the Office of Fair Trading last September, asking it to look into iTunes' pricing across Europe. In the UK, iTunes charges users around 1.20 (83p) a track against 99 cents in France and Germany. The OFT later referred the case to the commission, which yesterday said it would begin an investigation.

Source: http://www.guardian.co.uk/uk_news/story/0,,1424769,00.html

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COMPETITION
Computer Software
-Microsoft faces the wrath of the European Commission-
The European Commission is threatening to fine Microsoft 5% of its global revenue for failing to comply with sanctions imposed last year. Microsoft was fined E497 million ( million) and was ordered to implement EU remedies forthwith - these included allowing competitors access to software protocols so they could compete in the provision of interoperable servers and providing Windows software without the obligation of taking Microsofts MediaPlayer software. Microsoft has already posted details of secret protocols to enable other software manufacturers to produce servers compatible with Microsoft's Windows operating system but is now disputing the royalty (or licence) fees competitors should pay. The software giant also has chosen the name 'Windows Reduced Media Edition' for the new version of soft ''unbundled' from Microsoft's MediaPlayer software. This and other names (for what Microsoft call their 'degraded' software) have bee rejected by the EU as a serious deterrent to consumers. Microsoft's total revenues in 2004 were approximately $40 billion.

Source: The Guardian 26/02/05

Also see: Microsoft Ordered to Open Up Windows - Law Updates March 2005

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COMPETITION
Television, Internet, Radio
-European Commission seeks to restrict public services broadcasters' online and digital services-
The European Commission is to look at the role played by public service broadcasters in the provision of digital and online services. In particular the EC Competition Directorate, headed by Commissioner Neelie Kroes, will look at whether state funding of online and digital services is unlawful state aid. The commercial sector has complained that the online services provided by German public service broadcasters ARD and ZDF and by the BBC in the United Kingdom results in unfair competition to the commercial sector as it is funded by public money or governments. In an effort to head of confrontation ARD and ZDF are to limit their online services to programme related services. The licence fee funded BBC provide its 24 hour news channel News 24 (against commercial providers such as CNN and Sky) childrens' channels CBBC and CBeeebies (against commercial providers such as Nickleodeon) and a wide range of highly successful web pages at http://www.bbc.co.uk. The BBC also provides a free to air 'youth' and comedy channel, BBC3, and the arts and culture channel BBC4. Whilst the principle of licence fee funded broadcasting is not under threat, recent state funding of web and digital services could be. Action against the German state broadcasters could result in an interesting challenge between the German Constitutional Court which guarantees ZDF and ARD the right to extensive web services and the European Court of Justice which would be used by the EU to (presumably) ratify the Competition Directorate's decision(s).

Source: The Guardian 28/02/05

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CONTRACT
Live Event Industry
-Patti LaBelle brings claim for non-payment of appearance fees-
Patti Labelle (nee Patricia Edwards) has brought an action through her management company, Pattonium Inc, against an American promoter Kensey Wright and Fifth Degree Entertainment after she was promised $150,000 to perform at the annual football classic between N.C. Central University and N.C. A&T University during the summer of 2003. She alleges that she was told that a portion of the money from the concert would go to scholarships. She also says she was led to believe that travel and hotel expenses for herself, her band and her stage crew would be covered. The suit is for breach of contract, unjust enrichment and fraud and filed in Chesapeake Circuit Court. Wright, through his attorney, Bernard T. Holmes, denies the allegations. Holmes described the event as a charitable concert that lost money but is quoted as saying "Putting on any concert is an undertaking," he said. "Anything can go wrong at any time." According to the lawsuit, Labelle arrived at the RBC Center in Raleigh on August 29th 2003, and performed, even after she realized she would not be paid in full, according to the lawsuit to entertain fans. LaBelle was to be paid $75,000 before the concert and the remaining $75,000 just prior to taking the stage, according to the lawsuit. Wright allegedly gave LaBelle $9,873 before the concert, then gave her a "promissory note" or an IOU for $75,126, plus interest payable on September 10th 2003, according to the lawsuit. In the promissory note, Wright listed as assets his interest in the concert and entertainment business and a dwelling. Wright, however, did not own the property, according to the suit. In addition to Wright, the lawsuit names Fifth Degree Records Inc., Fifth Degree. The lawsuit seeks $179,377 in expenses and an additional $350,000 in punitive damages. The expenses, according to the lawsuit, are for the following: $140,126 for the concert performance; $12,004 for airfare; $11,550 for the band payroll; $11,725 for the crew payroll; and $3,970 for the hotel. From an article by John Hopkins at the Virginian Pilot at: http://home.hamptonroads.com/stories/story.cfm?story=82998&ran=83780

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PRIVACY/IMAGE RIGHTS
Artists
-Elizabeth Jagger wins right to protect intimate moments in a nightclub-
Elizabeth Jagger was entitled to a "legitimate expectation of privacy" Mr Justice Bell has ruled in the High Court, awarding the model an injunction to prevent images of Jagger and boyfriend Callum best taken from a security camera being published. Three of the pictures had already been published in a Sunday tabloid. The pair had been involved in what The Times described as 'heavy petting'. Mr Justice Bell said that although the claimant may be guilty of misconduct in the most general sense e was not guilty of moral turpitude to prevent her seeking recourse through the courts. Jagger claimed breach of copyright, her rights to data protection, her rights to respect for her private life under article 8 of the European Convention of Human Rights (Human Rights Act 1998) and at common law. Using wording which stem from the new 'privacy laws' resulting from the Human Rights Act, the Judge held that Jagger had a right to privacy and that he could see no public interest in the in further dissemination of the images which would only humiliate the claimant for the "prurient interest of others". The balance between the article 8 right to privacy and the article 10 right to a freedom of expression came down firmly in favour of restricting publication.

Source: The Times 10 March 2005

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COPYRIGHT
Film & Television
-New US Copyright Legislation: Congress and the Silver Screen-
The Family Entertainment and Copyright Act of 2005 was passed swiftly with unanimous consent by the US Senate on February 1, 2005 following introduction of the bill on January 25, 2005. The statute is comprised of four parts:

The Artists' Rights and Theft Prevention Act (or the ART Act) will criminalize the use of camcorders to record movies in theatres and the posting of unreleased films and music on the Internet. Anyone using a camcorder in a movie theatre could face a penalty of up to three years in prison. In order to ease the burden of proof, the Copyright Office will allow works to be registered three months before their release. The Family Movie Act will allow consumers to view only certain portions of movies when watching them at home. It legalizes 'jump and skip' technologies such as those used by ClearPlay, which allow consumers to bypass material considered objectionable. This helps to clarify copyright protection in light of the Digital Millennium Copyright Act (DMCA), under which this manipulation of a copyrighted work could be considered infringement.

The National Film Preservation Act will allow the Library of Congress to continue its motion picture preservation program and will assist libraries, museums, and archives in preserving films, and in making those works available to researchers and the public. Finally, The Preservation of Orphan Works Act will allow libraries to create copies of orphan works, copyrighted materials that are in the last 20 years of their copyright term, are no longer commercially exploited, and are not available at an affordable price. The bill was referred to a House of Representatives Subcommittee for review and no serious opposition to the legislation is likely because more controversial provisions were removed from an earlier version of the bill that failed to pass last year.

See: http://makeashorterlink.com/?G430211AA and http://www.techlawjournal.com/topstories/2005/20050201.asp

Based on a summary by: Clare McCurley of Deeth Williams Wall LLP. See: http://www.dww.com

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TRADEMARK
Artists, Record Labels
-ARTICLE : by Emma Lambert, Pictons Solicitor - A guide to UK and European Community Trade Mark registrations-

See: http://www.mondaq.com/article.asp?articleid=29341&email_access=on

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COPYRIGHT
Record Labels, FILM & Television
-ARTICLE - revisiting the Sony Betamax decision in light of the pending Grokster US Supreme Court appeal - Copyright law should continue to balance interests {Harvard Law School - The Record}-

See: http://www.hlrecord.org/news/2005/03/10/News/Editorial.Copyright.Law.Should.Continue.To.Balance.Interests-893032.shtml

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CRIMINAL LAW
Artists
-German Court confirms prison sentence for Landser singer-
Germany's Supreme Court has ruled that neo-Nazi rock group Landser spread racial hatred and was a criminal organization, upholding the first such judgment in the country against a music group. The court also upheld the three year and four month prison sentence against lead singer Michael Regener. A Berlin court had ruled in December 2003 that Regener, 39, had formed a criminal organization, incited racial hatred and spread Nazi propaganda in a case that set a legal precedent by bring a collective action against a group of musicians. The Supreme Court ruling upheld the lower court's judgment, saying the group had acted together to produce and distribute right-wing, racist material. Two other group members had received suspended sentences of 21 and 22 months at the trial which lasted six months. Landser is an old German name that means soldier.

Source: http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=7872969

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COPYRIGHT
Artists, Record Labels
-French choir child seek share of film and CD success-
Parents of the children who sang the music in the award-winning film Les Choristes say that their offspring have not been paid a centime for their work. Other parents have taken their children out of the Choeur du Collège Saint-Marc in Lyons because they say that the film's success has made the choir's touring schedule "infernal". One parent says his daughter, Lucile 14, is entitled to a cut from the phenomenal success of Les Choristes, including revenue from 8.5 million cinema seats and 1.5 million soundtrack CDs sold in France alone. The low-budget movie, about a choir in a school for delinquent boys in the 1940s is enjoying worldwide box-office success. The leader of the Saint-Marc choir was offered a cut in the profits when his children recorded the original songs for Les Choristes . He chose instead to take a one-off E21,000 (£14,600) fee. The movie's producers have since given the choir an ex-gratia payment of E121,000 as a share of the royalties from the soundtrack CD. All of this money has been paid into the funds of the choir. Not a penny has been paid to the children. Some parents accept the argument of the film's producers and the choir leader that this is normal and above-board. The choir members are amateurs, they say, who belong to a voluntary organisation. They should not expect a cut of the proceeds. The lawyer acting for some of the parents argued that musical performers would normally get between 8 and 10 per cent of the proceeds of the sale of a CD. The 20 children in the choir, he says, are therefore entitled to royalties of 1.2m from the 1.5 million records sold of the song.

Source: http://news.independent.co.uk/europe/story.jsp?story=618845

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COPYRIGHT
Film & Televison, Record Labels
-French courts accept personal downloading of movies -
A French appellate court has confirmed that downloading a movie file for personal use is acceptable. A man accused of downloading 500 film and music files has been acquitted by the Montpellier Court of Appeals in the south of France, confirming an earlier ruling by a bankruptcy court in Rodez in October last year. The plaintiff admitted lending CDs made from his copies to friends. But this still fell within the concept of 'personal use,' the court ruled. The man's lawyers argued the CDs had already been bought and paid for before they appeared online. The court said that once the work had been made public it can be copied for personal use.

Source: http://www.mp3newswire.net/stories/5002/french.html

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HEALTH & SAFETY
Live Music Industry
-Noise fines in New Jersey and Toronto-
A New Jersey state appeals court has rejected a bid by the former owner of the Clarksburg Inn to overturn two convictions of violating the township's anti-noise ordinance, ruling that such terms for noise as "loud," "unnecessary," and "unusual" don't have to be defined by decibel levels. A 2003 trial before Municipal Court Judge Debra Gelson resulted in $1,250 in fines and $60 in court costs for summonses issued to the restaurant by the State Police, which provides police coverage to the township. The decision was upheld on an initial appeal to the Law Division of Monmouth County Superior Court. Roger Weltner, one of three witnesses at the municipal trial, testified that he lives 81 feet from the Clarksburg Inn and endured ongoing disturbances because of loud music. Weltner said he called police three times to complain on the night of Feb. 1, 2003. A three-judge panel of the Appellate Division of Superior Court wrote in its decision last week that attorney Richard J. Simon's main argument for vacating the convictions that the township ordinance is unconstitutional because its definition of noise is vague was "unpersuasive." Though 46 New Jersey municipalities regulate noise based on decibel levels, there is no requirement that towns establish such criteria, the justices ruled. Millstone's anti-noise ordinance states it is "unlawful for a person to make, continue or cause to be made or continued any loud, unnecessary or unusual noise." The playing of a musical instrument so that it is "clearly audible" 100 feet away is a violation, the ordinance says. This has been held to be a legal ordinance. In Toronto an appeal court has upheld a conviction against the Docks Entertainment Complex for violating noise bye-laws. The nightclub must pay $6,000 in fines and is prohibited from excessive noise at one part of its complex. The conviction stems from music events in the summer of 2001 when two live music events, the heavy-metal OzzFest and an electronica and hip hop event were held at the Docks. The Docks has not held any music events on that parking lot since.

Source: http://adopt.specificclick.net/adopt.sm?l=1912917041&sz=pop&redir=1&nmv=1&nrsz=1&r=h&rnd=31293 and http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&cid=1110840608406&call_pageid=970599119419

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HEALTH & SAFETY
Live Music Industry
-UK pub's breach of noise order results in 00 fine-
Noise from a UK public house which was so loud that a shelf in a nearby home was "clearly vibrating" has resulted in a 00 fine for the licensee. Mid Suffolk District Council area environmental health officers visited a home in Debenham at around 9pm on August 10, 2003, after receiving a complaint about the level of noise from the Cherry Tree pub, where music was being played. There had been previous complaints about noise from the pub and a noise abatement order had been issued in October 2003. The Environmental Health Officer, Eric Foxton, told the court that in his opinion "the level of noise was a nuisance and it was taking away from that family the ability to enjoy their property." Magistrates decided there had been a breach of a noise abatement notice, and fined licensee Zoe Hearn 00 and ordered her to pay prosecution costs of 48 in her absence after hearing evidence from Mr Foxton and householder John Bridges. Mr Foxton told the court that he set up noise monitoring equipment in Mr Bridges' garden during an event at the pub in August 2002. Over two five-minute periods he found the noise reached up to 81 decibels and measured around 60 decibels as a continuous sound pressure level. This roughly equated to the noise of passing traffic when standing by the roadside, he said. Noise came from bands and discos and the court heard that doors and windows were left open causing noise problems. The council wrote to Ms Hearn on various occasions reminding her the notice was in place.

Source: http://www.eveningstar.co.uk/Content/news/story.asp?datetime=15+Mar+2005+01%3A00&tbrand=ESTOnline&tCategory=News&category=News&brand=ESTOnline&itemid=IPED12+Mar+2005+12%3A17%3A58%3A737

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LEGISLATION
Live Music Industry
-The European Live Music Forum Launches at ILMC -
The European Live Music Forum (ELMF), first announced at the Noorderslag Seminar in Holland had its foundation meeting in London at the seventeenth International Live Music Conference in London on the 10th March 2005. The ELMF, currently was proposed by eight associations including Europe wide festival association Yourope, The Concert Promoters Association (CPA), the Agents Association, Network Europe and the International Music Managers Forum (IMMF) will try and identify issues, themes and objectives and formulate a constitution over the next few months but will hope to make a preliminary announcement at the ILMC. An invitation has been extended to all national and Europe wide live music, festival and cultural events to be involved with the ELMF. More groups and associations have been invited to join to give the Forum broad based European wide industry support.

See: http://www.ilmc.com

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COPYRIGHT
Record Labels, Music Publishers
-Hyperion Records wait for appeal verdict-
Hyperion Records who lost a copyright action brought by Dr Lionel Sawkins are awaiting the decision of the Court of Appeal in the matter. Mr Justice Patten had held that copyright was owned by Sawkins in the 'editions' of a musical works originally written by baroque composer Michel-Richard de Lalande. Hyperion contend that an edition of an existing musical work cannot be an original musical work.

COMMENT : This case is a good example of what is, and isn't, an 'original work' and therefore protected by UK copyright law. It is also interesting to see that Mr Justice Patten found that Dr Sawkins had done enough to become an author. But in the well know 'Spandau Ballet' case of Hadley v Kemp it was held that contributing to the performance and interpretation at the recording of pop songs would not make the person a co-author of a work. But as Cornish & Llewelyn rightly say, this is a sphere where the dividing line is ''difficult to draw"

See Law Updates August 2004
Hadley v Kemp (1999) EMLR 589
Wood v Boosey (1868) LR 3 QB 33
Redwood Music v Chappell (1982) RPC 109
Cornish, WR & Llewlyn (203) Intellectual Property at page 394

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COPYRIGHT
Record Labels
-IFPI gain extra time to lobby-
The International Federation of Phonographic Industries (IFPI) and other interested parties in the music industry have been granted extra time to present their case for the extension to the 50 year term for the life of copyright for sound recordings in Europe after the European Commission altered its timetable for reviewing legislation. Recordings by classic rock and roll artists such as Elvis Presley are beginning to fall into the public domain. Already nearly 140 European artists, managers and trade organisations (including the IFPI and BPI) have provided comment to the EC.

Source: http://www.ifpi.org

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COMPETITION
Songwriters
-Music composers complain to OFT-
The British Society of Composers and Songwriters (BACS) has made a formal complaint to the Office of Fair Trading (OFT) about the assignment of music publishing rights in music for films and television programmes. BACS are concerned about the practice of some film and TV companies of demanding an assignment of publishing rights as part of a composer's engagement to write music for a film or television programme. BACS point out that in some circumstances the commissioning company may take rights but not exploit these, exclude mechanical royalties from any deal and sometimes offer less favourable publishing deals to composers that those they could find with third parties, depriving composers of revenues. BACS has also raised wider competition concerns in that many publishers are excuded from the film and television production market because they have no relationship with film and television companies. The OFT will investigate breaches of the Competition Act 1998, Article 81 of the EC Treaty and whether the case merits reference under the Enterprise Act 2002.

Source: PACT Magazine March 2005

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PERFORMERS'RIGHTS
Artists
-UK Government consults on moral rights for performers-
The UK Government is consulting on legislation which would give performers the same moral rights as those owned by authors of literary, musical, dramatic and artistic copyrights under the Copyright, Designs and Patents Act 1988. These include the right to be identified as the author (or here performer) and to object to the derogatory treatment of a work (or here a performance). The new right could have important ramifications for screen credits and the right to object to derogatory treatment of a performance could impact on the producer's right to edit programmes and performances. The changes result from the UK's adherence to the WIPO Performances and Phonograms treaty.

Source: PACT Magazine March 2005

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COPYRIGHT
Music Publishing
-The Corrs face claim over copyright to 'Breathless'-
The Corrs, one of Ireland's most successful music acts, have been accused of stealing their biggest hit from an American songwriter. Jenesee Ricco, a Los Angeles-based musician, is suing Atlantic Records over a claim that the group's 2000 hit, "Breathless", was copied from his own track of the same name. He is claiming damages of $50,000 (E37,500). Ricco has filed a case in the Los Angeles Superior Court claiming he wrote his version of Breathless in 1999. He has highlighted his claim on American television, telling the Celebrity Justice show that the track was given to Atlantic Records by "a person I had taking songs around at the time". He added: "The hope was that someone making an album would record the song. I didn't know where it was going or who was getting it, I never even heard of this band and then it came out on the radio and nobody had ever contacted me." The Corrs deny any similarity in either melody or lyrics and that apart from the phrase "leave me breathless" that there is no overlap in the words. They deny that the band members know Ricco, that the band and Mutt Lange wrote Breathless and that Lange has also never met Rocco. Ricco originally sued four years ago in a Boston court, seeking the profits from the song, which amounted to several million dollars. He lost the case and the appeal.

Source: http://www.timesonline.co.uk/article/0,,2091-1533275,00.html

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COPYRIGHT
Film & Television, Record Labels, Internet
-New ways for pirates to obtain downloads-
A new report from Pew Internet & American Life states that 36M people in the US download music and films (equal to 27% of all Internet users). Half of them, however, also use alternative channels to get music for free. 19% of P2P users (7M people) have copied files illegally from other people's digital music players while 28% (10M people) get tracks via e-mail and instant messaging. 23% of users have used both routes. This is a new 'invisible piracy' that will be impossible for the industry to plug. Even the DRM on digital players (designed to stop copying in this way) is hacked on a regular basis. Interestingly, however, 53% of Internet users believe that the operators of P2Ps should be held responsible for piracy over their networks while only 18% say the file-sharers themselves should be held accountable.

Source: http://money.cnn.com/2005/03/23/news/fortune500/grokster/ and FiveEight - http://www.fiveeight.net

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HEALTH & SAFETY
Live Event Industry
-ILMC calls for European legislation to govern ticket re-sales-
European promoters and venues aired their worries about the secondary market in concert tickets at the seventeenth annual International Live Music Conference. Conference speakers highlighted events such as 3A's Kylie Minogue and Cream concerts and Glastonbury where prices quoted by ticket touts and on auction website Ebay have risen to many multiples of original face values. Most European speakers at the ILMC said that there was nothing to prevent concert ticket re-selling in their territories. In the UK it is only a criminal offence to resell football tickets and the rise of Ebay had led to a rise in re-selling - not just by touts but by members of the public. Most delegates felt that legislative action was the only way forward.

The position is different In the USA on a state by state basis where ticket reselling or 'scalping' can be prohibited. Ticket broker Chris Lipton has agreed to pay $30,000 to settle a lawsuit brought by the state who alleged that that he scalped tickets to a benefit concert featuring Bruce Springsteen. Under a deal announced Monday by the state Division of Consumer Affairs, $7,500 of the settlement money would go to the Rock and Roll Music Fund, the charity getting proceeds from the 2003 concert in Red Bank that also featured Jon Bon Jovi. Lipton, who operates A Good Time Tickets Inc., was accused of reselling tickets to the Hope Concert. The Concert raised money for Robert Bandiera Jr., son of guitarist Bobby Bandiera of Southside Johnny and the Asbury Jukes, who has a neurological disorder. Lipton admitted no wrongdoing in the settlement, and denies he did anything wrong. The deal was approved late in February by a state judge.

COMMENT : US attorney David Moser adds "In the U.S., ticket reselling or scalping is governed by state and local law and there is therefore quite a bit of variation. Generally, it is not illegal to resell tickets, but some states impose regulations. Some states require resellers to obtain a license and some prohibit reselling tickets for greater than the face value of the ticket price. In New Jersey, if you aren't licensed to resell tickets, you cannot resell tickets for more than 20% of the price or $3 more than the ticket's face value, whichever is greater. However, in addition to state laws, cities sometimes regulate reselling tickets by requiring vendor permits and many venues prohibit reselling at the venue. Reselling tickets online seems to be a current trend. This brings up some interesting jurisdictional issues of which state law applies to an online sale. I think the answer would be the law of the state where the event is taking place regardless of the location of the seller."

Source: http://www.ilmc.com

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05 Ben Challis