COPYRIGHT
Record Labels
-Massive haul of blank CDs in Mexico-
Almost 16 million blank CD-Recordable discs - a worldwide record - have been seized in raids in Mexico. The bulk of the discs are believed to have been destined for the country's piracy-ridden markets. The raids mark recent stepped-up enforcement efforts by the Mexican authorities to try and stem the overwhelming pirate music trade in the country. Customs agents, with the support of federal investigation agents initially seized ten million blank CD-Rs in raids on two warehouse facilities in the municipalities of Morales and Tacubaya within metropolitan Mexico City. The raids followed eight months of intensive investigation. At the same time, customs authorities, assisted by federal fiscal agents, stopped and appropriated two shipments containing 5.8 million additional blank CD-Rs at the ports of Ciudad Juarez and Manzanillo. The shipments were apparently entering the country without proper documentation. Mexican authorities have said that all the seized products were either owned by or imported by a company which is a major supplier of blank CD-Rs to markets notorious for being centres of piracy such as Tepito in Mexico City. The seizures indicate the increasing enforcement actions by the Mexican authorities to try and stem the pirate trade which has devastated Mexico's legitimate market. The raids follow a new 'Mexico Plus' initiative, aimed at transforming the illegitimate market stalls selling pirate product by offering them budget-priced legal CDs. At the same time, periodic raids aim to dissuade established pirate stalls from distributing illicit product and seek conversion. Mexico was, in 2000, the eighth-largest music market in the world, but in 2003 the country dropped out of the world's top ten. The explosion of CD-R piracy in the country over the past few years has seen the legitimate market shrink from US$665 in value in 2000 to US$346.5 million in 2003 - a fall of 48%. In the same period the industry laid off nearly half of its workforce and new releases fell by around 50% - particularly devastating to the country's domestic music artists and producers. Mexico is also one of the top ten priority countries named in IFPI's 2004 Commercial Piracy Report. However, Mexican authorities have recently begun more systematic enforcement against the pirate trade, including the handing down of severe jail sentences for copyright pirates.

Source: www.ifpi.org

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COPYRIGHT
Internet, Record Labels
-Tokyo District Court orders a suspension of service and awards damages in leading Japanese case on file swapping on the Internet-
The Tokyo District Court has handed down its judgment against MMO Japan Ltd ordering the company to suspend transmission of digital music files. MMO administer a file exchange service called File Rogue which allows exchange of music files free of charge on the Internet. In addition, the court ordered that MMO Japan Ltd and its representative (and co-defendant) Michihito Matsuda pay compensation by way of damages for losses resulting from the copyright infringements. JASRAC (Japanese Society for Rights of Authors, Composers and Publishers) had filed a suit in February 2002 demanding suspension of music file transmission and compensation by way of damages. The Tokyo District Court made an interim ruling on 29 January 2003 acknowledging copyright infringement by the two defendants and also their joint responsibility. Today's ruling, together with the interim ruling, sets the boundaries for proper usage of copyrighted works in Japan as it clearly affirms copyright infringement resulting from use of File Rogue and as it also acknowledges both an order of suspension of service and compensation for damages as appropriate remedies in a situation where distribution of copyrighted works uses the Internet. The damages were based on the "Tariffs for Use of Musical Works" submitted by JASRAC to the Commissioner of the Agency of Cultural Affairs: taking into consideration the number of music files which could have actually been downloaded the amount of damages equivalent to royalties was set at 30 million yen (,000). This amount is about 1/10th of the amount which would have applied if calculated formally by applying the "Tariffs for Use of Musical Works". JASRAC added that they will continue to be vigilant regarding the illegal use of copyrighted works on the Internet and will have "strict attitude from the legal perspective". The Society will be using its own surveillance system to stamp out illegal activities and protect copyright. JASRAC will also promote various technical measures such as digital watermark technology and the development of the easy to use digital rights licensing system JASRAC Networchestra system.

Source: www.jasrac.or.jp/ejhp/release/2003/1217.html

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COMPETITION
Technology
-Microsoft ordered to open up windows-
Computer giant Microsoft has been ordered to pay a million fine (497 million euros) to the European Commission for anti-competitive activities and abuse of market dominance. This is the biggest fine ever in Europe for a competition case. The company had appealed to the European Court of First Instance in Brussels but the ECJ upheld the European Commission's ruling in March 2004 that the firm had abused a virtual monopoly. In addition, Microsoft must now make Windows available to consumers without its Media Player software bundled in as part of the package. The European Commission's aim is to give Media Player's competitors such as Apple's Quicktime and RealNetwork a level playing field. The company must also hand over confidential coding information from the Window's operating system to rivals. Microsoft may still appeal to the full European Court of Justice. The Court of First Instance rejected a suspension of payment of the fine until such appeal.

See: www.eubusiness.com/afp/041222193914.qgqu0dis

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TRADEMARK
Artists
-House Judiciary committee reviews use of band names-
The United States House Judiciary Committee has reviewed legislation that would prohibit groups from using the name of a well-known band, unless the group has one of the band's original members. Representative Dwight Wrangham (R-Bismarck) is sponsoring the bill. It says performers may do "tribute" concerts, but only if advertising makes it clear that the group doesn't have any original members. Evidence before the Committee included the example of 'the Platters' where a number of groups bill themselves as The Platters, a doo-wop act that had a number of hits in the 1950s and 1960s. Several of the groups have little or no connection to The Platters, which were inducted into the Rock and Roll Hall of Fame in 1990. The Committee further heard that many group names are owned by someone who was never in the group. That person may sell the rights to the name to other performers. The Committee heard that "There has been a lot of misinformation, and this is an attempt to correct that," he said. Representative Andrew Maragos (R-Minot) said the bill wouldn't affect such groups. "If they have the legal right to use the name 'The Platters,' then they are not purporting to be anything they are not," Maragos said.

See: www.in-forum.com/ap/index.cfm?page=view&id=D87NEQA81

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CENSORSHIP & DISCRIMINATION
Artists, Theatre, Live Concerts, Film, Television
-Demonstrations by some members of the Sikh community close the theatric presentation of Behzti and raise issues of free speech-
A desire to stamp out religious, sexual and other hatred often clashes with the desire to retain a right of free speech for all members of a community. In our December 2004 Law Updates we briefly covered the story of Jamaican reggae star Sizzla Kalomji being barred from the UK by the then Home Secretary as police investigated claims that his lyrics were homophobic and anti-white. Of course the counter argument is that Sizzla Kalomi is an artist who should have the right to free expression (which is now provided for in the Human Rights Act 1998 and the European Convention for Human Rights). In a widely reported story, violent demonstrations by members of the Sikh community have caused the temporary closure of the play Behzti at the Birmingham Repertory Theatre. The play included scenes of sexual abuse and murder in a Sikh Temple. Along with the Sizzla case it is quite possible that the play could fall foul of existing laws against stirring up racial hatred. Under the Public Order Act 1986 it is an offence to use threatening, abusive or insulting words or behaviour within the hearing of a person likely to be caused harassment, alarm or distress (the Racially Aggravated offence provided for by way of S4 Public Order Act and S31 Crime and Disorder Act 1998) as well as Racially Aggravated Threatening Behaviour. Section 4A provides for an office triable either way. The Protection from Harassment Act 1997 provides for the offences of Racial Aggravated Harassment causing fear of violence or harassment (S4 and S2) as either way offences with suggested custodial level entry points. The law also provides for the offence 'Incitement to racial hatred' and this will almost certainly become an offence under a proposed change to the Serious Organised Crime and Police Bill with a maximum sentence of seven years imprisonment. If enacted this would apply to religious hatred as well so it would be a criminal offence to use threatening, abusive or insulting words or behaviour to 'stir up religious hatred'. In Australia, a Pakistani Christian has recently been found liable in a civil trial to have incited hatred against Muslims as the result of controversial remarks about Islam and mocking the religion without distinguishing between moderate and fanatical muslims. Nick Griffin, leader of the far right British political party the BNP, was recently arrested after a video tape of Griffin allegedly making extreme remarks about Islam was passed to the police in the UK. In 2001 Harry Hammond was convicted under the Public Order Act after standing in Bournemouth town centre holding a placard bearing the words 'Stop Immorality: Stop Homosexuality; Stop Lesbianism'. The Magistrates Court found that this was insulting to homosexuals and lesbians; on appeal the Divisional Court found that the magistrates had the right to find this. But whilst one can understands the need for improved controls on racial (and other) hatred, and at the moment the proposed new laws would involve the consent of the Attorney General to bring an action, it does raise the issue of freedom of expression. A large number of the theatre and acting communities have come out in support of Behzti, alarmed at the prospect of religious demonstrations being used to suppress what might be valid criticism and free speech.

In a separate matter, OFCOM, the UK media regulator, passed on some 7,000 complaints about a television screening of Jerry Springer, the Opera, even before the programme, based on the award winning West End show which itself is a fictonalised version the popular TV show, was shown on BBC TV. Christian groups and broadcasting standards pressure group UK Mediawatch have made a concerted effort to have the transmission cancelled. Christian Voice posted the home telephone number and address of two senior BBC executives on their website although admitted later this was 'naive' after the pair were subjected to abusive phone calls. The BBC reported that it had received over 50,000 emails although suggested that a large number were identical or near identical (in the USA, the Parent's Television Council used email templates and a direct submit to the Federal Complaints Commission to orchestrate complaints against the TV show Desperate Housewives).

The second half of the show portrays Springer confronted by both God and the Devil in the burning fires of hell. At one point Jesus appears in a nappy and declares that he is a 'bit gay'. Press speculation was that up to 8,000 swear words were included in the show although writers say the true number is far less. The Observer newspaper set the number at 400 including numerous uses of the word 'fuck' and the scriptwriter estimated swear words at 300. The programme was broadcast at 10pm (22.00) on Saturday 6th January 2005 and 2.4 million viewers watched the broadcast. The previous record for complaints was 1,554 after The Last Temptation of Christ was shown in 1996. The BBC received 1,000 calls after the transmission of Jerry Springer, of which 400 were supportive. Christian groups plan a private prosecution of writer Stewart Lee, composer Richard Thomas, the BBC and the Cambridge Theatre (which is staging the play live in London) for blasphemy.

For an interesting article on this topic by John Scriven see his essay Hatred Is No Play On Words in the Times (T2) 28th December 2004.

Also see the article by David Pannick QC A Curb On Free Speech That Should Offend Us All, Whatever Our Religion, in the Times (T2 Law) 11th January 2005 - www.timesonline.co.uk/law

For details of the law of Blasphemy see the article Beyond Redemption by Dan Tench in the Media Guardian, 17 January 2005.

See The Guardian 6th and 10th January 2005 www.mediaguardian.co.uk

And see the Observer 9th January 2005

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TAXATION
Artists
-Three new tax cases are to be heard by the European Court of Justice-
After a success for the live music industry in the case of the 2003 Arnoud Gerriste in Germany there are now three new tax cases pending before the European Court of Justice (ECJ) regarding the taxation of non-resident artists. The industry has long argued that German withholding tax laws are unfair to non-resident touring and performing artists, particularly where these artists are EC citizens. In all three cases, the German Bundesfinanzhof (Federal Fiscal Court) has raised preliminary questions to the ECJ as to whether German taxation of non-resident artists is in accordance with the EC Treaty. The Geriste case held that Article 49 and 50 of the EC Treaty (previously articles 59 and 60) precluded a national provision which, as a general rule, taxed non-residents on gross income without allowing for the deduction of business expenses whilst allowing residents to deduct such expenses before a tax on net income. The case also held that a fixed rate of 25% was allowable on non-residents provided this would not be a different taxation rate to residents taxed on a progressive scale but on net income. However the decision has only been partially applied by Germany in its legislation while other countries, such as France, Spain, Italy, Greece, Portugal, and the Czech Republic have simply ignored the decision of the ECJ.

In the case of FKP Scorpio Konzertproduktion a German promoter, Scorpio, contracted with a Dutch tour promoter in 1993 for performances by American and European artists in Germany. Scorpio did not pay any German withholding tax and the tax authorities raised a massive tax assessments because of breach of of the German Einkommensteuergesetz (Income Tax Law). The Bundesfinanzhof raised four questions to the ECJ: (1) is it correct that non-residents fall under a withholding tax, and residents not; (2) does the withholding tax at source need to be reduced because of the expenses of the non-residents, because residents only pay tax on their net income after the deduction of expenses;(3) can an exemption provided for in a tax treaty be used without the explicit approval of the domestic tax authority; (4) do the answers to these questions also apply to artists and sportsmen living outside the EU? The Scorpio case attacks the artist tax system more explicitly than the Gerritse case and the German tax authorities have already allowed organisers of performances to postpone the payment of the withholding tax for non-resident artists.

The case of Centro Equestro de Leziria Grande Lda concerns German Einkommensteuergesetz (Income Tax Law) and the very strict application of tax refunds for non-resident artists. The German tax authorities have created the Vereinfachtes Erstattungsverfahren (Simplified Tax Refund Procedure), but only expenses that are directly connected with the performances are taken into account and these expenses need to be more than 50% of the earnings. Applications are only considered when the original invoices are attached. The procedures are somewhat complex and not widely used. The Portugese company Centro Equestro de Leziria Grande wanted to make use of the procedure because it had paid 29% withholding tax on the fees for its 11 horse shows in 1996 in Germany and had calculated post-tour that the total expenses (both direct and indirect) had been higher than the gross earnings. One of the horses had died during the German tour, giving an additional depreciation for the book value of the animal. The German Bundesamt für Finanzen (Tax Office) rejected the application for a full tax refund because the indirect expenses were not accepted. The Bundesfinanzhof raised the question to the ECJ, whether this strict procedure is correct under the EC Treaty, because German resident artists and sportsmen are taxed on their net income, after the dedcution of all their business expenses.

The final case is Centro di Musicologia Walter Stauffer. This case concerns an Italian non-commercial foundation which provides education for classical music students. The institution is exempt from the Italian l'imposta sul reddito delle persone giuridiche (Corporation Tax) and comparable German institutions would be exempt from the German Körperschaftssteuergesetz (Corporation Tax Law). The Centro di Musicologia Walter Stauffer had rental income in Germany which was taxed under a of the German KStG but could not make use of the exemption for cultural institutions, because it was not based in Germany. The German Bundesfinanzhof has raised the question to the ECJ, whether this exclusion for non-resident institutions is correct under the EC Treaty as an Italian institution would suffer tax on income whereas as comparable German institution would not.

COMMENT :In some ways the very nature of a withholding tax on entertainers and sports people is quite unusual but almost all countries worldwide apply these taxes. Within the European Community there is a very diverse range of taxes schemes, each administered by the fiscal authority in that country. Despite the Gerriste case there is no harmonisation in place within the EC. All three of the new cases are food for thought and the live music industry must be hopeful that a favourable decision from the ECJ will lead to major revisions in national legislation in Germany and elsewhere, at least in as much as taxes are applied to artists and sportsmen/women from EC member states. The details of these cases were kindly provided by Dick Molenaar of All Artists Tax Advisors in the Netherlands and Dr Harald Grams of Grams und Partners in Germany. Both Mr Molenaar and Dr Grams have been advising the International Live Music Conference (ILMC) Tax Group for a number of years as the international touring industry has tried to deal with prohibitive withholding tax laws on foreign artists, particularly in Germany. Germany taxes touring artists at a current rate of 20% of gross income (25% until January 2003) and some artists reduce touring activities in Germany because of the tax. The UK has a fairer system where foreign artists are allowed to deduct tour expenses before a calculation is made to determine tax. In fact the ILMC acknowledges that "the UK has the fairest system in the main European touring world s because it's the only country that has a dedicated, commercially tuned in tax unit called the Foreign Entertainers Unit". The system allows foreign artists and sportsmen to negotiate and agree their tax liability in advance based on the basis of budgeted figures. An act can also file an income tax return if the results of the tour are not as expected. Holland also has a model system very similar to the UK with withholding tax 2% lower than the UK's rate of 22% at 20% of net income. But it is the difference between taxing on gross versus taxing on net which is the main bone of contention - in a business where expenses can account for upwards of 75% of performing fees it can make a massive difference in the final financial reward (or indeed loss) for the artist! (Taxing Times, ILMC Globetrotters Guide 2004).

The most interesting case above seems to be the Scorpio case. Here the German courts are asking the ECJ to answer the following questions: (1) Is it right that non-German residents should be liable to withholding tax whereas German residents are not? (2) does the withholding tax at source need to be reduced because of the expenses of the non-residents, because residents only pay tax on their net income after the deduction of expenses? The Gerriste case surely goes some way in answering this and the first question (3) can an exemption provided for in a [international] tax treaty be used without the explicit approval of the domestic tax authority? This is a fascinating point, particularly as the German Bundesamt für Finanzen has virtually ignored the provisions of the EC treaty and the simple concept of a 'common market', unfairly penalising citizens from other member states who perform in Germany; But does that mean Scorpio were right not to withhold tax without permission from the tax authority? If the Bundesamt fur Finanzen are wrong and in light of clear provisions in the EC Treaty, would Scorpio have been acting wrongly or even illegally if they had withheld tax? (4) do the answers to these questions also apply to artists and sportsmen living outside the EU? Again, an interesting question - but surely the ECJ's decision will primarily be to look at the position of artists and sportsmen and women from EC member states when being taxed on earnings in Germany.

- FKP Scorpio Konzertproduktion C-290/04
- Centro Equestro de Leziria Grande Lda. C-345/04
- Centro di Musicologia Walter Stauffer C-386/04
- Arnoud Gerritse (reference by the Finanzgericht Berlin) decision of the ECJ (Fifth Chamber)12 June 2003, C-234/01
Useful websites:
www.grams-partner.de
www.allarts.nl

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COPYRIGHT
Record Labels, Artists
-Bridgeport Music Inc & Westbound Records Inc v Dimension Films and No Limit Films (2004)-
It is understood at the time of writing that the US Court of Appeals Sixth Circuit is to review its decision. This three judge panel held that whilst a de-minimis test (substantial use) might apply to the use of a song (the musical and lyrical copyrights) the use of any part of a sound recording without permission would be an infringement of copyright. The original appeal judgment can be found at:

http://fsnews.findlaw.com/cases/6th/04a0297p.html

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TRADE MARK
Artists
-Civil rights era icon Rosa Parks and Jerry Garcia's estate fight to protect their names-
Rosa Parks, who famously refused to give up her seat on a bus for a white man in Montgomery, Alabama in 1955 is close to reaching a settlement with hip-hop duo Outkast over the use of her name. Mrs Parks was arrested for the act and her action prompted a 381 day boycott of the city's buses by the black population. The dispute relates to a 1998 song Rosa Parks released by Outkast which makes little reference to the Mrs Parks save for the lyric 'Aha, hush the fuss, everybody move to the back of the bus'. However the title, lyric and reference to sex in the song prompted lawyers for Mrs Parks to bring an action in 1999 against Outkast for failing to secure permission to use Mrs Park's name and false advertising. Outkast claimed the right to freedom of speech under the First Amendment to the US Constitution and the case was dismissed in the District Court. The case was reinstated in the superior court along with a second claim against stores which sold the album was due to go ahead in the summer but both parties agreed to settlement talks with a mediator.

In a federal suit filed in Atlanta on Dec 8th 2004 against Moe's Southwestern Burritos LLC, Jerry Garcia's family is alleging the burrito chain has used Garcia's image unlawfully to sell tacos and Southwestern food. Moe's stands for Musicians, Outlaws and Entertainers, and the chain has been using images of deceased celebrities including Jim Morrison, Janis Joplin, Bob Marley, Frank Sinatra, Elvis Presley and others as restaurant artwork and as the inspiration for the names of menu items. Food offerings include the "Alfredo Garcia," a fajita dish, the Full Monty taco, and a Puff the Magic Dragon taco. The Garcia estate suit accuses Moe's of violating federal trademark and copyright laws and state fair trade laws and is asking for unspecified but "significant" Specifically, the suit said paintings of Garcia were installed at more than 130 franchises, and the images were used in print advertising without the estate's permission. The suit also said the trademarked lyrics of the Garcia song, "Casey Jones," were altered and hung in stores. The changed lyrics read, "Trouble Ahead, Trouble Behind, Just Have My Taco Ready on Time," in a violation of a trademark on the song, the suit said.

The burrito chain claim that they have the right to use a painting that was created by an artist, even if it looked like Garcia, and Moe's defence lawyers have cited the First Amendment that protects an artist's ability to create artwork and anyone's right to display that artwork if in lawful possession of it, even if it bears similarity to a public figure. The Garcia name has been licensed in the past including its use as the Ben and Jerry's ice cream flavor Cherry Garcia.

Source: The Independent, 2 January 2005

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COPYRIGHT
Record Labels
-Delhi hotels charged with violating music copyright-
The Delhi High Court has restrained 14 hotels and pubs in Delhi from playing music for which Phonographic Performance Ltd (PPL) holds the copyright. PPL is the collection society formed by more than 100 audio firms including the global majors Universal, Warners, EMI Virgin and Sony BMG. The dispute revolves around whether or not special licences are needed from PPL. PPL issues two types of licences - the annual licence required for playing background music, and secondly the event licence which is needed for special events such as fashion shows, film awards, Christmas or New Year celebrations. The controversy is over how an 'event' is defined. The fee for a single event can sometimes be almost equal to the cost of an annual licence for the hotel and the hotels claim that many events where PPL are asking for special licences are nothing more than normal nights in a restaurant or room. The cost of event licences are based on factors such as the type of event, number of guests and duration: the Federation of Hotels and Restaurant Association contend that the annual fee includes the fee for the event also. The matter will be heard in court on January 17.

In Australia, Eyre Peninsula hotels with dance floors or cover charges are facing huge fee increases to play recorded music. Local hoteliers have labelled the proposed hikes as "totally outrageous and unjustifiable" and fear they will have to stop playing music. The Phonographic Performance Company of Australia (PPCA) is proposing changes to the tariffs it charges for nightclubs and dance parties to play foreground music in bars. Clubs and dance parties currently pay seven cents per person per night for the playing of recorded music but under the current proposal the PPCA is looking at increasing that fee to $1 per person per night. The PPCA collects the fee on behalf of recorded music while the Australia Performing Rights Association collects a fee on behalf of songwriters. The Australian Hotels Association is fighting the new fee structure in the copyright tribunal in Sydney.

See: http://www.financialexpress.com/fe_full_story.php?content_id=78914 and http://portlincoln.yourguide.com.au/detail.asp?class=news&subclass=local&category=general%20news&story_id=362142&y=2005&m=1

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COPYRIGHT/TRADE MARK
Record Labels, Artists, Music Publishers
-Pepsi claim that new film's title infringes their advertising slogan-
Pepsi has brought an action in the Delhi High Court against the makers of the film 'Dil Maange More' alleging that the film title is an infringement of copyright, as it closely resembles Pepsi's previous ad tagline, 'Yeh Dil Maange More'. The film include a sequence by actor Actor Shahid Kapoor crooning ' Dil Maange More' . The Delhi High Court has issued notices to the producer, director, music distributor and owner of the website promoting the film, `Dil Maange More'. Pepsi has alleged that the film title is an infringement of the copyright, as Pepsi had earlier used the phrase, 'Yeh Dil Maange More' as the tagline for all its advertising. The film's producer Nikhil Panchamiva has said that Pepsi are too late in serving the notice as the film has been released and the promos for the film have been on air since November 1. In its application, Pepsi also appealed for an order restraining the defendants from using the film title for overseas audio and video distribution. However, the film has been released overseas through Mumbai-based distributor Neptune and producers claim that the notice will have no impact on the film per se.

See: http://www.moneycontrol.com/backends/News/frontend/news_detail.php?autono=158847

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COPYRIGHT
Record Labels
-US court quashes subpoenas to produce personal details of file sharers-
Just as Justice Konrad von Finckenstein turned down a Canadian Recording Industry Association (CRIA) request that would have forced five Canadian ISPs to hand over the names of 29 people the CRIA alleged were distributing hundreds if not thousands of music copyright files to millions of others, the Recording Industry Association of America (RIAA) have failed in an effort to force ISP Charter Communications Inc. to turn over the names and addresses of Internet subscribers suspected of illegally sharing copyrighted music after a U.S. appeals court ruled against them. "A three-judge panel of the U.S. 8th Circuit Court of Appeals in St. Louis quashed subpoenas issued in 2003 by a federal judge. The appeals court said the Digital Millennium Copyright Act doesn't allow the RIAA to subpoena Charter for user information because the files at issue aren't stored in the company's computers. U.S. Circuit Judge Diana Murphy issued a dissenting opinion in which she said the other two judges defined the copyright act too narrowly: She argues that 'to interpret the statute in the way Charter urges, and the court adopts, is to block copyright holders from obtaining effective protection against infringement through conduit service providers'.

See: http://p2pnet.net/story/3463

Law Updates September 2004: Ninth Circuit rule Grokster & Morpheus not liable for infringement
Law Updates May 2004: Federal Court of Canada dismisses the CRIA's motion for disclosure [subject to appeal]
Law Updates February 2004: Netherlands Supreme Court judgment in Kazaa v BUMA & STEMRA
Law Updates February 2004: RIAA lose valuable tool in fight against piracy as Verizon win appeal

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HEALTH & SAFETY/DISCRIMINATION
Live Events Industry
-Court of Appeal rule on unlawful discrimination: Ross v Ryan Air & Stanstead Airport (2004)-
The Court of Appeal held that the policy of the Disability Discrimination Act 1995 was to provide disabled persons with access to services as close as it was reasonably possible to get to the standard normally offered to the able bodied. Here the Court ruled that Ryanair had discriminated against the appellant, Mr Ross, who suffers from cerebral palsy and arthritis, contrary to part III of the Act. Ryanair insisted on charging for the use of a wheelchair to get from check in to the aircraft each time the service was used. Ryanair accepted that Mr Ross had been the victim of unlawful discrimination but contended that Stanstead Airport should also be liable. Mr Ross appealed on those grounds and the Court found that the Airport could not escape liability and was guilty of unlawful discrimination contrary to section 19(1)(b) of the 1995 Act.

Source: Times Law Reports 11 January 2005

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HEALTH & SAFETY
Live Events Industry
-German court find promoter liable for damaged hearing-
Leading German concert promoter Marek Lieberberg Konzertagentur (MLK) has been ordered to pay four thousand Euros (E4,000, approx 00) to a woman who claimed her hearing was damaged at a Bon Jovi concert four years ago. The company must also pay medical expenses and loss of income. The Court said that MLK had failed to take sufficient precautions to limit the volume of the outdoor concert in 2000. The injured woman said she was standing 2.5 metres from a speaker and now suffered from tinnitus. This case contrasts to an earlier US ruling which held that a promoter could not be liable for the alleged damaged hearing of a plaintiff lawyer who should have realised that loud music was played at rock concerts.

In a separate report, the UK's Royal National Institute for the Deaf (RNID) and Trades Union Council, have said that over 500,000 bar and club workers in the UK are at risk from loud music played at their places of work. The report, 'Noise Overload', states that the noise in some nightclubs is comparable to being next to an aircraft taking off and that not enough is being done to protect bar, club and pub workers to music played above the legal levels. The report highlights the lack of noise-free rest areas and protective ear-wear for staff. New European laws protecting staff will be implemented in 2008.

Source: Audience Magazine issue 59 (January 2005)
and see Law Updates June 2003: US judges throws out claim for damaged hearing

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COPYRIGHT
Record Labels, Internet
-South Korean find no ISP liability for infringing use-
The Seoul Central District Court (Appellate) has ruled that the two brothers - Yang Jung-hwan and Il-hwan - behind the South Korean P2P Soribada cannot be held responsible for any copyright violations by the service's users. The P2P launched in 2000, attracting up to 8M users. The brothers were indicted the following year on charges of contributory infringement of copyrights. The free service closed in 2001 but quickly re-launched as a paid service. South Korea was listed as a 'priority watch' country by the US last year following growing concerns over lax piracy enforcement. The Music Industry Association of Korea may appeal the decision. The court accepted that those who use the service are infringing copyrights. But in a separate ruling on the same day, the Seoul High Court said Soribada helped site users infringe on copyright and ordered it to shut down its file-sharing software and its three computer servers, upholding a lower court's decision. Eleven record companies had filed charges against the P2P music exchange website.

See: http://english.chosun.com/w21data/html/news/200501/200501120032.html

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COPYRIGHT/TRADE MARK
Artists
-Image Rights-
For an interesting article on image rights by Sarah Staines of Pictons, solicitors :
Beauty is in the Eye of the Beholder: at http://www.pictons.com/article.php?id=71§ion=7

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COPYRIGHT
Record Labels, Artists, Music Publishers
-IFPI Digital Music Report 2005-
Music on the internet and mobile phones is moving into the mainstream of consumer life, with legal download sites spreading internationally, more users buying songs in digital format and record companies achieving their first significant revenues from online sales. These are the conclusions of the IFPI Digital Music Report 2005, a comprehensive review of the music industry's digital strategies and of the fast-emerging market for online and mobile music distribution. The report is published by the IFPI. Music fans downloaded well over 200 million tracks in 2004 in the US and Europe - up from about 20 million in 2003. This helped bring record companies their first year of significant revenues from digital sales, running into several hundred million dollars. Analyst Jupiter estimates that the digital music market was worth US$330 million in 2004, and is expecting it to double in value in 2005. The supply of music available digitally is proliferating. The number of online sites where consumers can buy music legally has now hit more than 230, up from 50 a year ago, with record companies licensing the bulk of their active catalogue for download, totalling over one million songs - more than doubling the amount of available repertoire within one year. Services like iTunes and Napster have become household names internationally, and many other national sites are specialising in local repertoire. Portable players, led by the hugely successful iPod, and mobile phones, are helping transform the consumer experience of enjoying music and creating new revenue opportunities. There are estimates that 50% of mobile content revenues will be from music. Digital piracy remains a very significant problem, but the recording industry claims that it's campaign of legal actions against music uploaders is helping contain this. Consumer awareness of the illegality of unauthorised file-sharing remains very high (seven people out of 10) compared to before the enforcement actions began. The supply of music files on unlicensed P2P services has fallen over the last year. The total number of infringing music files on the internet in January 2005 is slightly down on one year ago at 870 million tracks, and this is despite a huge increase in the use of broadband internationally. The report reviews the progress of more than 7,000 legal actions launched so far against alleged illegal uploaders in eight countries (Austria, Canada, Denmark, France, Germany, Italy, UK, US), and makes clear there will be many cases launched in more countries in 2005. Uploaders facing the threat of litigation are now regularly paying settlement fees averaging several thousand euros in Denmark, Germany and Austria.

See: http://www.ifpi.org

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COPYRIGHT
Record Labels
-RIAA secure first convictions-
Two men have pleaded guilty to copyright-infringement for distributing music, software and movies over the Internet in the first U.S. convictions for piracy over "peer to peer" networks, the Justice Department has said. William Trowbridge, 50, of Johnson City, New York, and Michael Chicoine, 47, of San Antonio, face up to five years in prison and a fine of $250,000 in the criminal convictions stemming from an August raid, the department said late on Tuesday. Trowbridge and Chicoine operated hubs in a file-sharing network that required members to share between one gigabyte and 100 gigabytes of material, the equivalent of 250,000 songs Attorney General John Ashcroft said when the raid was announced. investigators downloaded material worth $25,000 from the two hubs. Sentencing is set for 29 April in the U.S. District Court for the District of Columbia.

See: www.reuters.com/newsArticle.jhtml?type=topNews&storyID=7371590

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COPYRIGHT
Record Labels
-Bertlesmann settle first claim over actions resulting from its financial support of Napster's file sharing service-
Bertelsmann has agreed to pay about $50,000 to settle accusations from Bridgeport Music that it had contributed to copyright infringement by lending millions of dollars to Napster in 2000 and 2001. The settlement, which covers the small label's legal fees, is the first sign of a break in a battle that has taken shape amid the fallout from the collapse of Napster. Napster was forced to file for bankruptcy protection Bridgeport is the smallest of the music companies pursuing copyright-infringement claims, and Bertelsmann may still face a protracted battle with the industry's bigger and wealthier players including the EMI Group and the Universal Music Group. Bertelsmann owns 50 percent of the newly merged music giant Sony BMG Music Entertainment. The companies contend that Bertelsmann, which lent Napster about $85 million to develop a new service that would compensate labels and songwriters, in essence controlled the online company and should be held responsible for the theft of songs. Bertelsmann's lawyers say the company did not hold an equity stake or seats on Napster's board, and lacked the sort of control needed to be found liable. The federal judge overseeing the case recently denied Bertelsmann's motion to dismiss the case, but Bertelsmann lawyers said they thought the judge's decision established.

See: http://news.com.com/Bertelsmann+settles+with+firm+over+Napster/2100-1027_3-5543546.html

CNET / New York Times

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05 Ben Challis