COPYRIGHT
Record Labels, Internet
-National Consumer Council asks for fair play in EC copyright legislation-
The National Consumer Council (NCC) has warned that 'heavy-handed' European Commission plans to enforce intellectual property rights on music and other creative content overstep the mark. Consumers, says the NCC, are being treated like organised criminal gangs (who, they accept, should be pursued). Consumers already face the prospect of legal action for sharing music files. The NCC report that in the UK sixty internet users have settled legal claims against them by the British Phonographic Industry, each paying up to £6,500 in compensation. The NCC has lobbied that any new laws must strike a balance between right holders' interests in getting a fair return and the public and consumer interests of fair access and use, and the encouragement of innovation. NCC is concerned that new European IP laws are being planned before there has been a chance to assess the impact of the existing law. The existing (2004) Directive on the Enforcement of Intellectual Property Rights is barely a year old and is not yet implemented in the UK.

See: http://www.broadcastbuyer.tv/publish/article_5962.shtml and http://www.ncc.org.uk
and see the BPI's (somewhat predictable) response at : http://www.mi2n.com/press.php3?press_nb=83860
Also see also the blog by David Berlind looking at the problems and unfairness of DRM software - why can't David play his legally purchased music from i-Tunes on his home stereo? : http://blogs.zdnet.com/BTL/?p=1952

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COPYRIGHT/PRIVACY
Record Labels, Internet
-ARTICLE: Privacy v Piracy-
by Mark Watts & Myles Jelf of Bristows, Solicitors
An interesting article on www.mondaq.com which investigates some of the concerns online users have where their basic privacy rights are being eroded away by the state, software companies and internet service providers amongst others but in the context of rampant software and music piracy: "the distribution of intellectual property content such as books, films, and music is increasingly electronic and new technology, such as Digital Rights Management (DRM), is becoming more popular amongst copyright owners, enabling the monitoring of private 'consumption' of their content. Also, the possibility of significant IP infringing acts taking place at home is increasing, through the popularity of Peer-to-Peer (P2P) file-sharing networks. Now, more than ever before, both sets of rights need to be considered together. Are they heading for a collision?" Please read this article online : http://www.mondaq.com/article.asp?articleid=35006&email_access=on

See also the EFF articles on the 'warden' software which can read all of a user's computer files (including every process on a gamer's computer, any URLS open and his and his/her email address books) to 'prevent cheating' by users of the hugely popular online game World of Warcraft (all gamers who sign up must allow 'warden' into their systems: see EFFector 18:36) Also note the rather alarming news that The U.S. Secret Service has admitted that they had asked for tiny tracking 'dots' or information to be printed in all documents as part of a deal struck with selected color laser printer manufacturers, ostensibly to identify counterfeiters : http://www.eff.org/news/archives/2005_10.php#004063

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COPYRIGHT/PRIVACY
Telecoms, Internet
-EFF criticises plan for restrictive new cell technology-
Having just returned from the In The City Conference, the importance of mobile cell phones in the music and entertainment industries as well as the IT and telecoms industries cannot be underestimated. This is why they will now become the new 'battleground' between companies seeking to achieve dominance in the new market and also between consumers who wish to have choice and retain privacy and companies who wish to maximise commercial growth and 'lock in' customers to preferred applications, software and pricing plans. The Electronic Frontiers Foundation has criticized a plan for restrictive new cell technology put forward by the Trusted Computing Group (TCG), an industry consortium developing controversial computer security specifications. TCG has released a wish list of applications of TCG technology to cell phone security. Unfortunately the EFF says, much of this "security" aims to help cell phone carriers cement their control over their customers …TCG is proudly offering to help cell phone carriers lock down your phone," said EFF Staff Technologist Seth Schoen. "The proposals described today aim to help your cell phone company decide who can publish software or media for your phone, whether you can load your own documents, and even whether you can switch carriers or resell your phone. These are not innovations that consumers will applaud." TCG announced a set of eleven "use cases" that its members will discuss how to support with TCG technologies in cell phones. Among other applications, TCG suggested were (1) "Device integrity" and "SIMlock/device personalization" which according to the EFF would prevent you from switching mobile carriers or reselling or donating your phone to someone else. (2) Platform integrity" and "software use" controls, which would let your cell phone company, not you, decide what software is allowed to run on your phone, and, (3) "Digital rights management support" helps publishers, not you, control how you can use media on your cell phone.

For this release see : www.eff.org/news/archives/2005_09.php#004014

For TCG's announcements at the CTIA Wireless IT & Entertainment conference : www.trustedcomputinggroup.org/groups/mobile/

See also Law Updates October 2005 EFF's new guide to digital music services points to unexplained restrictions with Digital Rights Management Systems

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COPYRIGHT
Record Labels
-EFF warns against new digital television restrictions-
The Electronic Frontiers Foundation has filed comments with the Department of Culture, Media, and Sport (DCMS) in the British House of Commons about plans for digital television broadcasting in Europe. In the comments, EFF expressed concern that switching off analog broadcasts could result in new digital television standards that unduly restrict the public and manufacturers.

The Digital Video Broadcasting Project (DVB) - a group that creates standards for digital television in Europe, Australia, and much of Asia - has proposed a complex system for restricting digital broadcast programming after reception, analogous to the disastrous broadcast flag proposal in the United States. This system, called "Content Protection Copy Management" (CPCM), has been under discussion since 2003. The CPCM restrictions include an "authorized domain" governing the number of devices that can use content and a myriad of broadcast flags that will restrict usage, recording, and storage. They also specify compliance rules for all manufacturers. As with the US broadcast flag proposal, these compliance rules would result in a ban on the use of free and open source software in connection with digital TV reception and usage. "The DVB broadcast flag is much more sweeping than the one they tried for in America," said Cory Doctorow, EFF's European Affairs Coordinator, who attends the standards-specifying meetings on behalf of manufacturers who use free and open source software in their products. "The North American Broadcasters' Association has threatened to turn this into a global regulatory mandate. If that comes to pass, you'll never know which TV shows your devices can record or whether a new device will be allowed onto your home network. Additionally, this will give a veto over technology to entertainment companies, who've already ruled out open source because it lets users modify their own equipment." EFF believes that a European broadcast flag would also be used to gain political leverage to argue again for a broadcast flag in the United States.

For this release see : http://www.eff.org/news/archives/2005_10.php#004024

For EFF's full comments submitted to the British House of Commons : http://www.eff.org/IP/DVB/dvb_critique.php

EFF's action alert on the US broadcast flag : http://action.eff.org/site/Advocacy?id=129

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COPYRIGHT
Games, Technology, Television, Radio, Internet
-ARTICLE: Australian High Court rules that modifying chip is not illegal Stevens v Sony-
by Campbell Thompson and Genevieve Wilkinson of Freehills
In a set-back for copyright owners, the High Court of Australia (6th October) has ruled that the sale of 'mod chips' by Mr Stevens for use with Australian Playstation consoles did not breach the anti-circumvention provisions of the Act even though it meant that Mr Stevens could now play games brought abroad - genuine games albeit purchased perhaps more cheaply than domestic games.

Link at : http://www.mondaq.com/article.asp?articleid=35482&email_access=on

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DEFAMATION
TV and Radio, Internet, Newspapers
-Jurisdiction issues: Canadian Courts give out mixed messages as the Ontario Court of Appeal Overturns Jurisdiction Decision in Washington Post Case but BC Court finds it has jurisdiction in an action against New York Post-
Taken from a summary by Michael Erdle in E-Tips: E-Tips is a publication of Deeth Williams Wall and edited by Richard Potter QC.
The Ontario Court of Appeal has overturned a controversial lower court decision which had held that it did have jurisdiction in a lawsuit against the Washington Post brought by a United Nations official. The appellate court held that the claimant had no substantial connection with Ontario - so the court had no jurisdiction. The Washington Post published articles in January 1997 about a, Cheickh Bangoura who was employed by the United Nations in Africa. The articles related to Mr Bangoura's conduct in a prior posting with the United Nations. Bangoura moved to Ontario some time before the action was commenced, more than six years after the publication of the articles. There were only seven subscribers to the Washington Post in Ontario when the articles were published. Although the articles were available through the newspaper's online archive, there was no evidence that anyone in Ontario other than Bangoura's lawyer had accessed them. The trial court held that it did not matter that Mr Bangoura had no connection with Ontario at the time the articles were published. The newspaper continued to make its articles available through the electronic archive and should have known that they might be read anywhere in the world. The decision caused a considerable stir in media and Internet publishing circles, because it raised the potential for any publisher to be sued anywhere in the world. The Court of Appeal ruled that it was not reasonably foreseeable that Bangoura would move to Ontario and that online availability of the articles and a newsgathering office in Toronto were not sufficient to create a "real and substantial connection" with Ontario. Meanwhile, the British Columbia Supreme Court (Burke v NYP Holdings) relying in part on the now overturned lower court decision in Bangoura, has held that it has jurisdiction in a defamation action by Brian Burke, former General Manager of the Vancouver Canucks hockey team, against the New York Post, over comments a columnist made about Burke's alleged role in a notorious on-ice incident. The Court found that Mr Burke did have a real and substantial connection in the province, even though he didn't actually live in Vancouver at the time the article was published. The Court noted that the column was available on the Internet to readers in BC and had been referred to and quoted on a popular sports radio show in Vancouver. The Court held that the New York Post should have known that the column would have been of interest to, and read by, sports fans in BC because the Bertuzzi/Moore incident and related civil and criminal cases were of interest to local hockey fans.

For the text of the Ontario Court of Appeal decision in Bangoura v Washington Post et al, see: http://www.ontariocourts.on.ca/decisions/2005/september/C41379.htm

For the BC Supreme Court decision in Burke v NYP Holdings Inc et al, visit: http://www.courts.gov.bc.ca/Jdb-txt/SC/05/12/2005BCSC1287.htm

To review past issues of the E-TIPS® newsletter, visit: http://www.dww.com/newsletter/archive.html

And see Criminal Proceedings Against Lindqvist ECJ C101/01 Law Updates November 2003.

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PRIVACY
Internet
-Is a new Universal Data Protection Law possible?-
Earlier this month, Privacy Commissioners from forty countries met in Switzerland for the 27th International Conference of Data Protection and Privacy Commissioners (ICDPPC). The Commissioners adopted a declaration in which they agreed to collaborate with governments and international organizations for the development of a universal convention for the protection of personal data. The various universal data protective principles the Commissioners agreed to promote are set out in the declaration and in its written declaration, the ICDPPC appealed to the United Nations to prepare a legal binding instrument identifying the rights of data protection and privacy as enforceable human rights. To review a copy of the two resolutions and declaration, see:

http://makeashorterlink.com/?N20741FDB
http://makeashorterlink.com/?O61725FDB
http://makeashorterlink.com/?W23712FDB

From a summary by Lenni Carreiro in E-Tips: E-Tips is a publication of Deeth Williams Wall and edited by Richard Potter QC. To review past issues of the E-TIPS® newsletter, visit: http://www.dww.com/newsletter/archive.html

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COPYRIGHT
Record Labels, Internet, Telecomms
-IFPI say that booming global online demand offsets a small decline in CD sales-
The IFPI have released figures showing that booming demand for music on the internet and mobile phones nearly offset the decline in physical formats as recorded music sales fell 1.9% to a retail value of $US 13.2 billion in the first half of 2005, compared to $US 13.4 billion in the same period of 2004. The IFPI has estimated the retail value of the digital music market in order to be consistent with its reporting of physical sales, and to allow year-on-year comparisons. On that basis, digital music sales in the period amounted to approximately $US 790 million, up from $US 220 million in the first half of 2004. This is the equivalent of 6% of total record industry sales, almost triple what it was. On a trade basis, excluding the retail margin, digital sales in the first half of 2005 totalled $US 440 million. This includes sales from a-la-carte download stores, music subscription stores and from mobile music services such as downloads and 'ringtunes'. The figure does not include revenues from monophonic and polyphonic ringtones.

The surge in digital music sales is being driven by the growing uptake of broadband, increasing penetration of 3G mobile phones and portable music players, and a series of successful launches of new music services in different countries over the past year. The digital music market has now overtaken the value of the global singles market. The figures show online and mobile sales making a significant impact on the world music market for the first time. The digital music business is so far being driven largely by the world's top five markets - US, Japan, UK, Germany and France - but is expected to spread rapidly and will benefit many other markets in the coming months. Physical music sales in the first half of the year, by contrast, fell by 6.3% in retail value to $US 12.4 billion, and by 6.6% in units, compared to the same period of 2004. This drop is attributed to a number of factors, including lower retail prices, a small decline in DVD music video sales, which fell 3.1% in value and 1.6% in units, the continued impact of illegal downloading and CD burning and other factors such as release schedules, commercial piracy and competition from other entertainment sectors.

The US saw a drop in physical sales of 5.3% in value and 5.7% in units, but a counterbalancing strong increase in digital music sales. Sales of single track downloads alone in the US were up almost threefold in the first half of 2005 compared to the same period in 2004, totalling 159 million. Different forms of piracy, such as illegal downloading and CD burning, are having a significant impact on the US market while the record clubs segment continues to decline. The overall fall in sales is accentuated as a result of the strong first half sales in 2004. In Canada physical sales were up slightly in units, driven by releases from Michael Bublé, 50 Cent, Coldplay and Il Divo, but fell 4.6% in value primarily due to retail discounts. Sales in Europe are a mixed picture. The biggest markets (UK, Germany and France) were helped by substantial growth in the digital music business, combined with robust local repertoire sales. Other markets in Europe continue to feel the impact of illegal downloading and CD burning and, in particular, of a reduced number of big international releases - notably in Netherlands, Norway and Sweden. In the UK physical sales fell by 4% in value and 1.7% units in the first half period. By contrast digital sales saw explosive growth, with single track downloads alone increasing tenfold to 10 million units in the first half of 2005 compared to the same period in 2004 (OCC/BPI). DVD music video sales value grew in the UK, despite a fall in retail prices. In Germany, digital sales helped compensate for a fall in disc sales, with single track downloads alone growing to 8.5 million in the first half of 2005 compared to only one million a year ago (IFPI Germany). Physical retail sales saw a decline in the low price sectors (record clubs and premiums) and fell 7.7% in units. Among the major markets, France showed the smallest fall in physical sales (2.7% in value) while unit sales actually grew by 7.5%. French CD album sales were up a healthy 9.5% in units helped by a changing product mix, but due to falling prices value growth was a more modest 1.2%. The downward trend in retail prices also affected the DVD market, which grew 22% in units but only 3.9% in value. Digital sales in France grew strongly, with single track downloads totalling 4 million, up fourfold on the same period of 2004 (SNEP).

Russia continues to grow as a music market (up 21.2% in value) driven by the switch from cassettes to CDs along with increasing local repertoire sales. Today CDs account for 85% of the market value compared to only 35% in 1995. Local repertoire accounted for 75% of sales in the first half of 2005 compared to 65% in 2003. More than 80% of the Russian market is composed of independent labels, including those specialising in marketing a few local acts popular in specific regions. Music markets in the Asia/Pacific region fell significantly during the first half of the year. In Japan physical sales fell 9.2% in value and 6.9% in units. CD sales remained flat in volume terms but falling retail prices led to an overall value drop of 10.1%. Digital sales in Japan (online and mobile) totalled $US 133.4 million at retail level in the first half of 2005 (RIAJ). While mobile sales accounted for the bulk of activity (96%), both sectors delivered healthy growth. In Australia, physical sales continued to fall, with CD sales down 9.8% in value. DVD music video fell for the first time (by 16% in value), indicating that the format's previous steep growth had been heavily driven by rapid adoption in the DVD player market. However, the digital music market is set for growth in Australia, with several legal download services now launched and iTunes expected in the second half of the year.

The Indian market saw a continuing shift from cassette to CD, leading to a 15% increase in CD units. However, this growth did not offset the drop in cassettes and the market was down 2.4% in value. In Latin America physical sales results were mixed following a partial recovery in 2004. Mexico was the fastest growing market in the first half of 2005, up 21.5% in value spurred by continued anti-piracy efforts, expanded lower price campaigns and successful releases. The strength of Latin releases was also felt in the US, with Latin sales growing 17% in the first half of 2005. However, the Brazilian market fell by 16.5% primarily due to a steep drop in mid/budget line sales and higher than average returns from retailers. DVD music video sales, which had been driving the sales recovery in Brazil, fell for the first time by 6.3% in value.

Source: http://www.ifpi.org (3 October 2005)

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COPYRIGHT
Record Labels, Internet
-Israel clamps down on P2P sites-
Israel's rampant culture of internet copyright infringement is the bane of global trade bodies but Israel has now clamped down on file swappers. Israel has been a haven for early adapters of modern technology and has one of the highest internet use rates in the world - but has little in the way of legal controls againt online piracy and peer-2-peer file swapping. But now the Haifa District Court has ruled against music file-sharing websites including Shift, Lala, Lionetwork, and Subcenter. The lawsuit was filed by 27 music recording companies, including Hed Arzi Ltd., Helicon Ltd., and NMC Music Ltd. The IFPI presented the NIS 500,000 claim. The petitioners claimed that the sites were violating their copyright. The sites' operators were ordered to pay an interim sum of NIS 500,000 until damages to the petitioners are assessed. The lawsuit follows the US Supreme Court's decision at the end of June that on-line file-sharing services Grokster and Streamcast could be held liable for copyright infringement if they encouraged Internet users to illegally copy movies and music from each others' computers. The long-awaited ruling was seen as a key test of copyright law in the digital era.

Source The Jerusalem Post : http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/ShowFull&cid=1128565304979&p=1077768895034

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TECHNOLOGY
Record Labels, Telecomms, Internet
-ITC Keynote address by Ralph Simon highlights role of mobiles-
In The City conference keynote speaker Ralph Simon is a music industry veteran and famously the man who founded Zomba and sold it at the right time! He is still involved in the music industry and gave the speech to introduce delegates to the wonders of 'mobilised A&R' and asked the question 'R U Connected'. Ralph pointed out that labels in particular shouldn't be asking the question 'should we mobilise' but that they just should mobilise - from the song upwards through artists to singles and albums. Ralph pointed out that even they way music is traditionally sold - CD albums and singles - will change - perhaps to 'clusters' of songs released by an act every 3 to 4 months. The mobile industry itself is worth some $548 billion annually (Deloitte & Touche) with 2.4 billion users worldwide. The UK has a 84% use (almost one phone per person) and even China, a developing country with 1.24 billion people now has a 27% penetration. Ralph's short term vision is that mobiles will become mobile social computers, adopted primarily by the 14 - 28 year old demograph. They will provide television programmes, radio (although most already do), online 'print' eg mobile magazines, the internet and email, music content and recordings including special content and facilities and publicity for events including mobile ticketing. Ralph used the new Nokia N91 as an example (the 'iPod killer' !!) which can store 3000 recordings and 2 hours of TV and video. Mobiles will provide new tools for marketing and new tools for making money. ACDC sold over 2 million ringtones from an archive track! Users in the US can now get the Billboard charts immediately sent to their phones and can download directly onto the phone. The mobile is personalised, they connect peer groups, they can form communities, that allow immediacy, allow impulses to be realised, promote loyalty and are interactive. And involve lawyers in a whole new area of discrete rights!

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REGULATION
Internet
-China regulates for a sanitised web-
The Chinese State Council Information Bureau and Ministry of Industry and Information have issued new restrictions on Chinese websites. All Chinese websites are now prevented from putting out news that:
- violates the basic principles of the Chinese constitution
- endangers national security, leaks national secrets, seeks to overthrow the government or endangers the unification of the country
- destroys the country's reputation and benefits
- arouses national feelings of hatred, racism, and endangers racial unification
- violates national policies on religion, promotes the propaganda of sects and superstition
- diffuses rumours, endangers public order and creates social uncertainty
- diffuses information that is pornographic, violent, terrorist or linked to gambling
- libels or harms people's reputation, violates people's legal rights
- includes illegal information bounded by law and administrative rules.

Websites also have to conform with the following provisions:
- It is forbidden to encourage illegal gatherings, strikes, etc to create public disorder
- It is forbidden to organise activities under illegal social associations or organisations
Websites that break these new rules will be shut down and those running them will have to pay a fine that could reach 30,000 yuans (3,000 euros).

See: http://www.rsf.org/article.php3?id_article=15141

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COPYRIGHT
Record Labels, Music Publishing, Telecomms
-Eminen looks to ban ringtones-
Eminem's publishing companies have filed a lawsuit yesterday in an effort to stop his songs from being used as cell phone ring tones. The suit, filed in U.S. District Court in Detroit by Michigan based Eight Mile Style and Martin Affiliated seeks a court order to prohibit five companies from selling Eminem song ring tones on the Internet. Lawyers for the rapper, whose real name is Marshall Mathers III, said they also plan to sue karaoke companies that sell Eminem songs without getting the proper licenses. The companies named in the suit are Colorado-based Cellus USA, Georgia-based FanMobile, New York-based Nextones.com, New Jersey-based MyPhoneFiles and New Jersey-based MatrixM LLC.

Source : http://www.billboard.com

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TRADE MARK
Telecomms, Artists, Record Labels, Film, Television
-Canada - top ten myths about trademarks-
A link to this clear and informative article can be found at :
http://www.mondaq.com/article.asp?articleid=35216&email_access=on

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TRADE MARK
Telecomms, Artists, Record Labels, Film, Television
-ICANN approves more top level domain names-
ICANN (Internet Corporation of Assigned Names and Numbers) has approved the designation of three new generic Top Level Domain Names (TLDs)- mobi, .travel, and .jobs.- and is reviewing six more TLDs. Applications for domain names in the .jobs and .travel TLDs are now being accepted. ICANN has approved the .mobi TLD, and details regarding the beginning of registration will soon be available. In addition, ICANN has also preliminarily approved the launch of four more TLDs -.post, .cat, .tel, and .xxx and has entered into commercial and technical negotiations with the sponsors of these TLDs. Finally, ICANN is reviewing the applications for .asia and .mail TLDs.

See : http://www.mondaq.com/article.asp?articleid=35082&email_access=on

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IMAGE RIGHTS, COPYRIGHT FAIR USE
Artists, Record Labels, Film, Television, Internet
-ARTICLE: Who Owns Barbie - Copyright Owners and Artists disagree-
John Petrick in seacoastonline.com An interesting article from the USA on the use of cartoon and other fictional characters in modern art. Is it parody - does it fall under the 'fair use' provisions of US law or even under the right to free speech? Or is the use of characters such as Batman & Robin, Micky Mouse and Barbie in any context without permission an infringement of the owner's intellectual property rights? "In 1994 2 Live Crew were sued for its rewritten version of Roy Orbison's classic song "Pretty Woman." The case ultimately went to the U.S. Supreme Court, which found the song was "fair use" in that it was a parody. It's a seminal case for artists and their lawyers, in that it's the first to make such distinctions. Also in favor of artists' rights was a more recent case in which Mattel sued Utah photographer Tom Forsythe for copyright infringement after he created a series of images titled "Food Chain Barbie." The collection showed Barbie dolls posing in every kind of kitchen appliance from blenders to toaster ovens. Mattel didn't care what he was trying to show. He was using their property in his artwork. Though he earned only a few thousand dollars at the time in sales, the company sued in 1999 and pressed the case forward all the way to California's federal Ninth Circuit Court of Appeals. In a scathing ruling against Mattel in 2003, the court found no basis for the lawsuit and ordered the giant toy company to pay for all of Forsythe's legal fees and expenses - a whopping $2.1 million worth of pro bono work. The artist prevailed largely on First Amendment grounds."

See : http://www.seacoastonline.com/news/10042005/it/66258.htm

See also "Barney's Temper Tantrum"

The EFF report that 'Barney the purple dinosaur is throwing another temper tantrum that his little fans would envy'. Lawyers for the TV character have sent another cease and desist notice to the creator of a Barney parody site http://dustyfeet.com/evil/enemy.html . This is the same web page that the same lawyer threatened back in 2002. And, just like in 2002, the EFF argue that this Barney parody is unequivocally protected under both the First Amendment and fair use law. The cease and desist notice threatens the web page creator with a claim of copyright infringement to his Internet service provider. The EFF point out that it's illegal to make that claim if you know that the charge is bogus. EFF Legal Director Cindy Cohn, who represents the Barney parodist, points out that EFF and another client were paid $125,000 in damages in a similar case (see Diebold Coughs Up Cash in Copyright Case : http://www.eff.org/news/archives/2004_10.php#002009)

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TRADE MARK
Artists, Merchandising
-Manchester United's manager fails to protect his own name on posters-
Sir Alex Ferguson, manager of the iconic and world famous Manchester United Football Club has claimed that his human rights have been abused after the United Kingdom's Trade Mark registry (Patents Office) refused an application to trade mark his name for posters because he is 'too famous'. The adjudicator, Charles Hamilton, found that when consumer purchased a poster featuring Ferguson's name they would not think that this was an 'endorsement' by the manager. The test is whether or not a consumer buying the poster thought that 'Alex Ferguson' referred to the person featured on the poster OR to the person who made the poster. If it only applies to the former then no protection will be granted as this is just descriptive. This is has led to the position that non famous sports, entertainment and music stars can trade mark their (distinctive) names before they are famous but once a name passes into the public's consciousness it is far more difficult to secure a registration especially for items such as posters where a name would not be seen as a 'badge of origin', merely a name on that poster which may or may not be endorsed by the person or persons featured. However the decision does not extend to clothes, jewellery, commemorative coins and other merchandise where Sir Alex is expected to successfully secure trade mark protection in the UK. The band Linkin Park lost an attempt to register its own name as a trade mark in respect of the sale of posters. An appeal to the Appointed Person was dismissed, the original objections of the Patent Office Examiner (that the mark lacked "distinctive character" and was "descriptive") being upheld. The American pop group applied for the mark "Linkin Park" for use in marketing of posters of their band and argued that the mark must be distinctive because they had invented the words. However, the Appointed Person cited the 1970 "Tarzan" application in which it was held that, by the date of the trade mark application, the word had become well known and had therefore ceased to be an invented word.

The Times, 9 October 2005
Law Updates May 2005 (In the matter of Application 2313504 in the name of Linkin Park LLC)

http://www.patent.gov.uk/tm/legal/decisions/2005/o03505.pdf

See also the decision of the Court of Appeal in Arsenal Football Club Plc -v- Reed (Law Updates May 2003). In almost any other area of merchandise then a valid trade mark WILL be protected against third party use and the question of 'badge of origin' or 'badge of allegiance' would not be relevant. In Arsenal v Reed the European Court of Justice held that unauthorised use of 'badges of allegiance' were protected by trade mark law. Mr Reed's use of the signs created an impression of a link between the goods he sold and AFC and so AFC as the proprietor [of a registered mark] was entitled to prevent unauthorised use of their marks. Whilst the ECJ decision was less than clear the Court of Appeal held that non trade mark use could amount to infringement where it undermined the essential function of a registered trade mark which is to identify the origin of the goods. In his leading judgment Aldous, LJ stated: "As the ECJ pointed out, the actions of Mr Reed meant that goods not coming from Arsenal but bearing the trade marks, were in circulation. That affected the ability of the trade marks to guarantee the origin of the goods." This appears to introduce the principle of "dilution" into UK trade mark law. Under this principle the rights of the trade mark proprietor go beyond preventing use by others of the trade mark to mislead consumers and enable the proprietor to prevent use by others simply to protect the exclusivity of the trade mark and the goodwill associated with it (additional summary by Dominic Free of the Simkins Partnership).

This decision, taken alongside the Linkin Park case (and earlier authorities such as Elvis Presley Trade Marks [1999] RPC 567and Tarzan Trade Marks [1970] RPC 450) and Irvine v Talksport Ltd [2002] EWHC 367 mean that whilst a celebrities name or mark can be protected as a badge of origin and can, to an extent, be used to prevent commercial use of an person's image by way commercial endorsement - it cannot be effective when a poster merely features the person as the subject of the poster - then the mark cannot be protected. Even with the name of bands on (bootleg) CDs the issue of trademark infringement is not 100% clear. However the leading House of Lords authority, R v Johnson (2003) UKHL 28 suggests that putting 'Bon Jovi' or U2' on a CD cover without permission will be a trade mark infringement in as much as it indicates that the contents of the CD are from a source known as 'Bon Jovi' or 'U2'. However this will depend on the facts of the case - it does not necessarily follow that the use of the name of a performer or author acts as a indication of the trade origin or a CD or book which embodies the performance or work - The use could indicate that the band or performer had authorized the CD - the use could be passing off - or the use could just be descriptive. See also the dissenting judgment of Davies J in the Australian case of Musidor BV v Tansing (1994) 123 ALR 594 and Sutherland v V2 Music [2002] EWHC 14. This is a highly contentious area and one which where those who wish to register trade marks of personal or band names need expert help.

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TRADE MARK
Television, Artists, Internet
-BBC paid $375,000 for domain name-
The British Broadcasting Corporation (BBC) have finally admitted that they paid US $375,000 to Boston Business Computing to secure the www.bbc.com top level domain (TLD) in the late nineties. As the US firm had a legitimate claim to the acronym 'BBC' there was no question of bad faith or trade mark infringement and it is difficult to see how any legal challenge (usually by way of a WIPO domain name claim) would have resulted in the British Broadcasting Corporation securing the domain name. The domain is still not used fully by the BBC and just directs users to the bbc.co.uk website which is the main UK URL for the BBC. The .com domain may be used in the future for an international portal for the BBC's website.

The Times, 9 October 2005

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TRADE MARK
Internet
-Ownership of domain names used for criticism and review-
"In a victory for free speech advocates and operators of so called internet gripe sites" the U.S. Court of Appeals for the Fourth Circuit reversed a summary judgment ordering domain name registrant Christopher Lamparello to cease using the name "fallwell.com" and to transfer it to the controversial televangelist and political commentator Jerry Falwell. In its decision, the Fourth Circuit rejected Falwell's trademark infringement and cybersquatting claims because there was no likelihood of confusion between Falwell's web site and trademarks and Lamparello's use of the domain name "fallwell.com" to criticize Falwell's views on homosexuality. Lamparello v. Falwell, Case No. 04-2011, 2005 U.S. App. LEXIS 18156 (4th Cir. Aug. 24, 2005) (Motz, J.)"

For a link to this article by James Griffith go to : http://www.mondaq.com/article.asp?articleid=35338&email_access=on

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CONTRACT
Internet, general
-Abusive contract terms struck down by French court in AOL Standard Form Contract-
In a judgment released September 15, a three-judge panel of the Versailles Court of Appeal has unanimously dismissed an appeal by SNC AOL France (AOL) from a lower court decision handed down in 2004 in favour of a French consumer protection body, Union Fédérale des Consommateurs "Que Choisir" (UFC), relating to AOL's online subscriber contract in France (AOL Contract). In the case, UFC v AOL France, many different clauses in the standard form contract were at issue, including such fundamental provisions, for example, as those relating to AOL disclaimers of liability (including liability for content information originating from third parties and liability for failure to provide the online service contracted for) and AOL's rights of termination (including the right of AOL to terminate the contract unilaterally). Several of the clauses in the AOL Contract were found to be abusive and unenforceable because they were contrary to French local law or, in some cases, contrary to EU-wide laws such as the Unfair Terms in Consumer Contract Directive of 1993. Under the latter legislation, courts have the power to decline to enforce provisions in consumer contracts that are seen to demonstrate a "significant imbalance" of bargaining power between the parties.

For extracts from the judgment (in French) and a link to the full text of the case, visit: http://www.juriscom.net/jpt/visu.php?ID=741

From a summary by Richard Potter QC, Editor of E-TIPS, a publication of Deeth Williams Wall LLP. To review past issues of the E-TIPS® newsletter, visit: http://www.dww.com/newsletter/archive.html

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COPYRIGHT
Internet
-Adult website lawsuit against Google Image Search could have important ramifications for fair dealing and fair use-
The Electronic Frontiers Foundation has filed a brief in support of Google Image Search, arguing that a federal district court should reject a request for a preliminary injunction that could shut the service down. In its lawsuit, adult entertainment website Perfect 10 claims that Google violates its copyrights by making and delivering thumbnail images of its photos as Internet search results. In its friend-of-the-court brief, EFF shows that these copies are a well-established fair use of digital images, and they help people find and use the works for informational and educational endeavors. "Google Image Search helps millions of people locate and learn about information on the web every day," said Jason Schultz, EFF staff attorney. "We're concerned that the public will lose out if Perfect 10 succeeds in shutting it down." Perfect 10 argues that a preliminary injunction is justified because Google is violating its right to reproduce, distribute, and display its copyrighted work. But there is a long tradition in fair use that certain kinds of copies are socially useful, even without permission of the author. Courts have held that copies are a legal intermediate step to making non-infringing uses of the copyrighted work - for example in teaching, education, and news reporting. Thumbnails created by Google Image Search allow users to identify information they are looking for online and then access that information - much like an electronic card catalog. As certain information about images can only be conveyed visually, there is no other feasible way to provide image search on the Internet than capturing images, transforming them into thumbnails, and then displaying them on a search results page for users. While the images provided by Perfect 10 may have limited academic application, the ramifications of its lawsuit could have a huge impact on educational research. "Without the right to make legal copies, Google Image Search wouldn't be able to help you find a picture of Martin Luther King, Jr., at the Lincoln Memorial, for example," said Schultz. A hearing in this case is set for November 7, 2005.

For the full text of the brief: http://www.eff.org/legal/cases/Perfect10_v_Google/EFF_amicus_brief.pdf

For the full release: http://www.eff.org/news/archives/2005_10.php#004058

See also law updates May 2005 Google sued over reproducing news extracts from AFP

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COPYRIGHT
Internet, Mobiles, Television
-US talent guilds want a fair cut of i-Tunes download revenues-
The presidents of unions representing Hollywood writers and actors have joined together to ensure that their members get a fair shares of revenues coming from the new download revenue stream. This follows the announcement that ABC shows such as "Lost" could be downloaded for portable viewing on Apple's video i-Pod. ABC became the first network to allow viewers to download episodes of their shows the day after they air. Other networks are expected to follow. The development was news to the presidents of the Writers Guild of America, West, and the president of the American Federation of Television and Radio Artists. The two called their counterparts at the Screen Actors Guild (SAG), Directors Guild of America and the Writers Guild of America, East. The Unions have not yet contacted ABC (owned by the Walt Disney Corporation) to discuss how much of the $1.99 fee per episode should go to writers, actors and directors. The unions already have agreements that cover the reuse of their work on the Internet and in "pay per view" models. They also have newer deals covering work produced for the Internet.

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COPYRIGHT
Internet, Record Labels, Radio, Television
-ARTICLE "How Bowie's moonage daydreams came true"-
by John Naughton (the Observer Sunday October 16, 2005) An interesting article by John Naughton on the future of 'paid for' music. Synopsis: Rock star David Bowie wrote a thoughtful piece in the New York Times in June 2002 about the future of music. 'The absolute transformation of everything we ever thought about music will take place within 10 years,' he wrote, 'and nothing is going to be able to stop it. I see absolutely no point in pretending that it's not going to happen. I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing. Music, itself, is going to become like running water or electricity...'

For a link go to : http://observer.guardian.co.uk/business/story/0,,1592964,00.html

See also the article by Ben Challis on digital distribution and online business models at : http://www.musicjournal.org/05digitaldilemma.htm

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CRIMINAL
Merchandising
-UK Teenager convicted for 'race hate' T-shirt-
Wearing a Cradle of Filth T-shirt emblazoned with the slogan 'Jesus is a c**t' has left a UK teenager with an 80 hour community penalty (unpaid work). The 19 year old teenager, Adam Shepherd, also has to pay £40.00 costs at Weymouth Magistrates Court. Shepherd's girlfriend was wearing the T-shirt when this was reported by a member of the public. When approached by the police the two teenagers swapped shirts but Shepherd then refused to take of the offending T-shirt. The teenager was convicted under new UK race hate laws. In the punk era Stiff Records had product banned for being offensive ('if it aint Stiff it aint worth a F**k' being one memorable T-shirt slogan) and even the Sex Pistols' 'Never Mind The B**locks' album was removed from many shop windows after a visit from the local police.

http://www.ilmc.com (news)

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COPYRIGHT
Internet, Music Publishing
-One stop licensing scheme for online rights in Europe-
The European Communities Internal Market and Services Commissioner: Charlie McCreevy has said that online music service in Europe such as Apple's i-Tunes will be able to acquire a single licence to use songs from one of the European Collection Societies. Currently use requires the consent of dozens of license holders from each country where the service wants to operate ‹ from record labels or their collections societies for the use of the sound recording and from music publishing royalty collection societies (such as the MCPS and PRS) or music publishers for the use of the song. In some instances consent will be needed from the artists themselves. The resulting lengthy negotiations have pushed back the launch of services such as i-Tunes and Napster and some popular U.S. music services such as Yahoo have yet to appear in Europe in part due to the complexity of the rights situation. The new move is hoped to make the launch of new online services in Europe easier and hopefully will facilitate better artist and songwriter payments.

MCPS-PRS eM Magazine October 2005
See Law Updates August 2005 European Commission proposes Europe wide music licensing for online use

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COMPETITION
Radio, Record Labels
-US payola scandal rumbles on-
TSR Records has filed a lawsuit in Los Angeles against Sony BMG, accusing the company of bribing radio programmers in order to unfairly dominate radio playlists. This new case comes just three months after Sony BMG agreed to pay $10M in settlement after the Eliot Spitzer-led investigation into payola in the US radio sector. TSR alleges it was "systematically excluded" from a number of playlists and this affected its business prospects. Sony disciplined a number of executives and Clear Channel sacked two programming executives and disciplined a number of others following internal payola investigations.

See: http://www.nytimes.com/2005/10/19/business/media/19payola.html and http://www.latimes.com/business/la-fi-payplay19oct19,1,7448152.story?coll=la-headlines-business

And see Law Updates September 2005 SONY BMG settle payola claim

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DEFAMATION
Newspapers, Television, Radio, Internet
-Campbell v Mirror Group Newspapers (No2)-
In this case the House of Lords held that where a successful claimant in a libel action against a newspaper had entered into a conditional fee arrangement (CFA) which included a percentage uplift as a success fee, the newspaper's liability in costs to pay that success fee was not incompatible with its right to freedom of expression (under the Human Rights Act and Article 10 of the European Convention of Human Rights) even though the claimant (in this case Naomi Campbell) might have had sufficient resources to fund their litigation without resorting to a CFA. The House of Lords refused the application of Mirror Group Newspapers for a ruling that the uplifted percentage of the fees charged by Schillings to their client, Ms Campbell be disallowed. In total MGN faced legal costs, including their own, totaling £1,086,295. The House of Lords held that since Access to Justice Act 1999 the uplift of success fee element can be included in a claim for costs against the losing party. The deliberate purpose of the 1999 Act was to impose the cost of all CFA litigation on the unsuccessful party, in this case MGN.
The Times Law Reports 21 October 2005

See Law Updates August 2005 European Commission proposes Europe wide music licensing for online use

And see Law Updates June 2005 Beckhams kidnap case shows the difficulties of 'no-win no-fee' litigation but also see Law Updates July 2004 Lawyers Costs Capped in Contingency Fee Cases, Musa King v Telegraph Group Limited (2004)

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© 2005 Ben Challis