Intellectual Property Law Updates

INFORMATION FOR READERS:
This resource aims to give a brief overview of developments in Intellectual Property law and other areas of law relevant to the music and entertainment industries. Each item is categorised according to relevant areas of the music or entertainment business, and by the date of uploading. Uploads are undertaken regularly and are organised on a monthly basis. These updates are designed to give general information for music and entertainment industry professionals and students interested in these areas. These Law Updates are not law reports or detailed references. Users who would like further information should research the relevant area thoroughly. Relevant references and links are therefore provided.

Law Updates also provides hyperlinks to other sites which may be of use or interest to legal professionals, academics, students and those involved in the music industry. These are provided at the end of Music Law Updates Archive under 'Music Business Law Links'. You will also find all of these links and other hyperlinks on the links page.

This resource is compiled by Ben Challis. Ben is a UK lawyer specialising in entertainment law and a graduate in law from Kings College London and The City University. He also holds the degree of Master of Arts in Mass Communications from the University of Leicester. Ben is a fellow of the Royal Society of Arts. Ben acts as General Counsel for 3A Entertainments, one of the UK's leading concert promoters, and is Executive Producer for television of the Glastonbury Festival. Glastonbury is the UK's leading music and arts festival attended by over 150,000 people. For Glastonbury, Ben combines the role of managing the Festival's broadcast and other media rights alongside acting as General Counsel for the Festival. Ben's other clients have included the Prince's Trust, the Granada Media Group, Pioneer LDCE and British Telecom. Ben regularly writes articles and other material on music business and intellectual property law, contributes to books and is a regular conference speaker in particular on the live music industry. He is currently preparing a collection of cases and materials on music business law for publication. Ben is a visiting Senior Lecturer in Law at Buckinghamshire Chilterns University College in England and sits as a magistrate (Justice of the Peace) in Hertfordshire, England.

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

December 2006

We would like to wish all of our readers a very merry Christmas and a prosperous 2007.

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COPYRIGHT
Record labels, music publishers, film, television
Digital Freedom Campaign launches to fierce copyright industry opposition

The Consumer Electronics Association and a coalition of trade groups and nonprofit groups including Public Knowledge and Media Access Project have launched a new public relations campaign to warn the public against restrictions on digital technologies. Dubbed the Digital Freedom Campaign (www.digitalfreedom.org) the group aims to target legislative proposals and legal efforts by Hollywood studios, record labels and other content providers which they say would place unfair restrictions or impose excessive fees on digital technologies. But both the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have hit back and the RIAA said "Our position is basic: artists, songwriters, music publishers, musicians and record labels deserve to be paid when our music is downloaded and enjoyed by fans," the ad states. "We ask that you recognize our right to make a fair return on the music we produce - our innovation." Meanwhile, the MPAA highlighted the damage the entertainment industry suffers from DVD, illegal downloading and other piracy. However the new group said that digital music players like Apple's iPod, the social-network and video-sharing Web sites MySpace and YouTube, and other digital technologies have brought "creative democracy" to countless consumers, artists and innovators but said that the big studios had historically battled manufacturers of revolutionary technologies, from the VCR to its digital counterpart and added that recent legislation had been unbalanced with Acts such as The Copyright Modernization Actof 2006, the PERFORM Act, the Audio Broadcast Flag Licensing Act of 2006 and the recording industry's lawsuit against XM Satellite Radio all serving to protect the copyright industry, not the public. In an another news story from the USA, the MPAA has said that it had teamed up with the 52,000 strong Boys Scouts of America organization and will award a ‘copyright’ badge for Scouts who can prove an understanding of copyright law, the economic cost of piracy, explain the role of those involved in filmmaking and demonstrate the evils of illegal downloading. An independent study last year estimated that MPAA studios lose $6.1 billion to piracy every year and the US copyright industries as a whole lose $20.6 billion to piracy, downloading and counterfeiting.

http://www.publicintegrity.org/telecom/telecomwatch.aspx?eid=2127

The Times 28 November 2006 p44

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COPYRIGHT
Artists, record labels
ARTICLE LINK: The Legal Smack Down On Music Sampling: Is The Age Of Hip Hop Over?
By Marina Whelan Sedgwick Detert Moran & Arnold LLP

Using the recent case of Bridgeport Music v. Dimension Films (2005) the legalities of the ‘borrowing’ of sound recording samples are explained. http://www.mondaq.com/article.asp?articleid=43602&email_access=on

See also the ARTICLE on this site ‘The song remains the same’ by Ben Challis analysing the legality of sampling in both the US and the UK, the Bridgeport case and the recent Newport vDiamond (2003)decision and the defences of ‘fair use’ and ‘fair dealing’. And also see this ARTICLE LINK http://www.slate.com/id/2153961/ “The shady one man company that’sdestroying hip-hop” which looks at the activities of the same Bridgeport Music who have been very active in protecting their copyrights, in particular the works of funk-master George Clinton - which have been repeatedly sampled. Bridgeport recently took on Jay-Z alleging unauthorized samples in his work. There seems to be a growing feeling that recent court decisions on sampling (particularly in the USA) have perhaps now shifted the balance of power so far in favour of copyright owners that music creators, especially hip hop, are starting to suffer unfairly.

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COPYRIGHT
Music Publishing
Publisher’s plagiarism claim against 50 Cent fails

A copyright case which claimed 50 Cent's 'In Da Club' copied from 2 Live Crew’s ‘Its Your Birthday’, written by Luther Campbell, has been dismissed by a US judge. Judge Paul Huck ruled that the line of Campbell's song ("Go Shelia, it's your birthday") was a "common, unoriginal and non copyrightable element of the song" which was not entitled to protection. Judge Huckle found that were no similarities between 'In Da Club' and 'It's Your Birthday'. He added that no reasonable jury would infer otherwise and said that no one would get the two songs confused.
The original lawsuit was filed in January on behalf of Lil' Joe Wein Music, the company that holds the copyright to 'It's Your Birthday'.

http://www.nme.com/news/50-cent/24903

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TRADE MARK
Live event industry, artists
ARTICLE LINK - A case of look-alikes and smell-alikes: L’Oreal v Bellure (2006)
Article by Lindsey Wrenn, Lee Curtis and Rebecca Tilbury, Pinsent Masons

On the 4th October 2006, the English High Court handed down a judgment which appears to make it easier for trade mark owners to prevent so-called look-alike products by holding that ‘look-alike’ products can infringe a trade mark. Here the packaging of a rival perfume was not identical to L’Oreal’s trade mark so a claim under S10(1) of the Trade Marks Act 1994 could not be brought. The court also held that whilst the packaging was similar to L’Oreal’s and was for the same nature of goods, the defendant had not produced packaging that was confusingly similar to the claimants so a claim failed under section 10(2) of the TMA failed. However, the court found that section 10(3) DID apply in that a person infringes a registered trade mark if he uses in the course of trade in relation to goods and services a sign which (a) is identical with or similar to the trade mark,… where the trade mark has a reputation in the United Kingdom and the use of the sign being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.'

See http://www.mondaq.com/article.asp?articleid=43726&email_access=on

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TRADE MARK
Artists
Buffet fights online merchandisers

Country Singer Jimmy Buffett has filed law suit asking a U.S. federal judge to stop a Web site operator from infringing Buffett's trademarks. The lawsuit filed in U.S. District Court in Galveston, Texas, accused Robert Akard of operating a Web site, underonehut.com, which sells Buffett-trademarked items without permission. Buffett, one of the biggest selling artists in the world, won a previous court order in Nevada, but it "wasn't comprehensive enough" and Akard has since surfaced in New York, Florida and Texas, Buffet’s lawyer alleges. Buffett complains that Akard advertises as "Jimmy Buffett's Online Store for Merchandise," and sells T-shirts, music CDs and other items that Buffett sells himself. Buffett is asking a judge to order Akard to stop using the singer's name and likeness, account for his profits, turn infringing goods over to Buffett and pay unspecified damages.

http://www.billboard.biz/bb/biz/newsroom/legal_management/article_display.jsp?vnu_content_id=1003381582

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Having already finalised a $115 million settlement with record labels, the firm behind file-sharing network Kazaa has now settled a case with music publishers in the US, according to the wonderful out-law.com site. Sharman Networks, the company behind Kazaa, is the latest file-sharing software company to reach a settlement with the music industry. The NMPA said that it had pursued a class action law suit against Kazaa for infringement of the copyright of its music publisher members who own and represent the rights to songs and lyrics on behalf of songwriters and composers. The US National Music Publishers' Association (NMPA) said that it had informed the US District Court that it would not be pursuing its action because Sharman Networks had

agreed to pay an undisclosed "substantial sum" to settle the dispute. The landmark case of MGM v Grokster established a liability for companies that operate peer-to-peer (P2P) file-sharing networks for users infringements in illegally downloading and swapping files. Supreme Court Justice H Soutar held that Grokster's “unlawful objective is unmistakable” and that "We hold that one who distributes a device with the object of promoting its use to infringe copyright ... is liable for the resulting acts of infringement by third parties". Grokster closed not long afterwards.

http://www.out-law.com/page-7441

MGM v Grokster (2005) 04-480 Supreme Court 26th June 2006 (see Music Law Updates Archive August 2005)

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In a judgment which will dismay the record industry, a Spanish judge has held that downloading for personal non-commercial use is not a criminal offence. Judge Paz Aldecoa of ruled that under Spanish law a person who downloads music for personal use can not be punished or branded a criminal. He called it "a practised behaviour where the aim is not to gain wealth but to obtain private copies". The Judge, in Penal Court No3 in Santander, held that that article 31 of the Intellectual Property Law in Spain established the right of the public to obtain copies of music without permission of the author, provided they were for private use and no profit was made. The Spanish recording industry federation Promusicae says it will appeal against the decision. The state prosecutor's office and two music distribution associations had sought a two year sentence against the man, who downloaded songs and then allegedly offered them on a CD through e-mail and chat rooms. However, there was no direct proof he made money from selling the CDs. The Spanish Justice Minister Juan Fernando Lopez Aguilar says Spain is drafting a new law to abolish the existing right to private copies of material.

http://www.enn.ie/frontpage/news-9841602.html

http://www.typicallyspanish.com/news/publish/article_7207.shtml

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COPYRIGHT
Recording industry, internet
ARTICLE LINK – Australian copyright law limps into the digital age
By Nathan Cecil, Norton White

A useful article explaining the much criticized provisions of Australia’s new Copyright Amendment (Exceptions, Enforcement and Other Measures) Bill

http://www.mondaq.com/article.asp?articleid=43670&email_access=on

The bill has caused quite a storm in Australia – with the Government and record labels being openly mocked. See http://radar.smh.com.au/archives/2006/11/copyright_out_o.html and see

http://australianit.news.com.au/articles/0,7204,20792269%5E15306,00.html

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COPYRIGHT
Internet, record labels
IFPI Knocked by Chinese decision

Following on from a Spanish Court's decision that private downloading for personal use wasn't illegal, The Chinese Internet search leader Baidu.com has been cleared of helping users to download music illegally in a case brought by the International Federation of the Phonographic Industry on behalf of some of the world's largest music companies. The IFPI which estimates that about 85 percent of all music consumed in China is pirated, said it would appeal against the ruling by the No. 1 Intermediate Court of Beijing and was confident it would be overturned. I am amazed by this inexplicable judgment that is totally out of step with Chinese law," IFPI chairman John Kennedy said in a statement. The decision seems to have been made on the basis that Baidu merely links to infringing third party sites and hosts no infringing material itself. Its links do not differentiate between legal sites and infringing sites.

http://www.shanghaidaily.com/art/2006/11/20/297569/Music_giants_lose_online_copyright_fight.htm and http://www.theregister.co.uk/2006/11/21/baidu_wins_music_downloading_ruling/

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COPYRIGHT
Internet, record labels
New rules for illegal downloading in Germany

In Germany, Justice Minister Brigitte Zypries has introduced draft legislation limiting fines for private downloading to a cap of 50 euros ($64) per case in Germany. Zypries said that ''the limitation for the first warning letter from a lawyer ensures that we don't exaggerate in punishing copyright breaches". The maximum applies only to those who download without intending to resell it. To fine the downloaders, the music industry has been using a provision of German law that allows lawyers to force wrongdoers to write apologies, and then to pay the law firm's entire bill. In future, the law firms would only be able to charge members of the public 50 euros per incident for this service. Zypries also said that the darft legislation would also increase powers to prevent product piracy, enabling German customs agents to rapidly destroy counterfeit goods that imitate famous brands.

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COPYRIGHT
Internet, record labels
No deal – so Universal take on MySpace

Universal Music Group may have reached an agreement with YouTube, Google and now Microsoft's Zunes about legal content use but has now filed a lawsuit against popular social networking site MySpace for infringing copyrights of thousands of its artists' works.

Universal , owned by Vivendi, filed the suit at the US District Court Central District ofCalifornia,Western Division. The lawsuit accuses MySpace, owned by News Corp, itself of course a champion of copyright laws (!) of allowing users to upload videos illegally and taking part in the infringement by re-formatting the videos to be played back or sent to others saying MySpace "encourages, facilitates and participates in the unauthorized reproduction, adaptation, distribution and public performance. The action points in particular to features of MySpace that enable users to store copies of videos on their profile pages, and to access copyright material without permission. The suit comes at a time when Universal’s talks with MySpace had broken down and with a leak of Jay-Z’s album onto MySpace . However (and remarkably a t the same time!) MySpace unveiled an enhanced copyright protection tool to make it easier for content owners to remove unauthorized material. MySpace described Universal's action as "meritless litigation," saying in a statement its procedures for removing illegal downloads lived up to laws protecting digital rights. Last month Universal Music sued two smaller video sharing sites, Sony Pictures Entertainment's Grouper and independent site Bolt. http://www.mercurynews.com/mld/mercurynews/news/local/states/california/northern_california/16041092.htm

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Despite the bad news in Spain and China, The International Federation of The Phonographic Industry has welcomed a ruling in Finland that will see a man who sold pirated karaoke records over the internet face a suspended custodial sentence and significant fine. The Swedish man who sold the pirated material has been given a 30 day suspended prison sentence by the Finnish courts for copyright offences. He will also have to pay 70,000 euros in compensation, damages and expenses to the rights holders. Although based in Sweden, the man sold the pirated material via a website and magazine adverts in Finland, and was caught via an operation led by Finnish authorities with the support of the Swedish police.

www.ifpi.org

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HEALTH & SAFETY
Live Event Industry
ARTICLE LINK: Will safety law kill clubs? Seattle club owners fear sprinkler rule is one business cost too many
By Gene Stout at Seattle pi .con.

In the wake of the Great White disaster in Rhode Island, nightclub owners in over 30 Seattle venues are scrambling to meet new fire requirements in time for a 1st December deadline. With costs ranging from US $15,000 to US$50,000 for each venue, many of the owners are questioning the sense of the new requirement and a number say they will close under the combined burdern of new Mayorial regulations, fire requirements and a smoking ban.

http://seattlepi.nwsource.com/local/291018_sprinklers03.html

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HEALTH & SAFETY / LICENSING
Live event industry
The UK’s new Licensing Act rings in the changes

As the merits of the Licensing Act 2003 become more apparent, members of a town band are furious after being told they couldn't play Jingle Bells in their Christmas shows unless they paid for a licence - because the song has no religious content. Callington Town Band in Cornwall, a registered charity, is having to fork out £21 for each of seven temporary licences to cover their Christmas programme after Caradon District Council's licensing department told the band it would fall foul of the Act which came in to force this April, if it played anything other than religion based carols during its seven Christmas concerts. The council said a temporary entertainment notice (TEN) was needed every time entertainment was provided in venues without public licences. That means festive favourites like Jingle Bells, White Christmas and Rudolph the Red Nose Reindeer need a licence whereas Christmas carols which are considered religious music do not.

In London, Lambeth Council has revoked the premises licence of a Brixton nightclub where police discovered two loaded handguns and drugs during a raid earlier this month. The council’s licensing sub-committee took the decision to revoke the licence for the J-Bar in Stockwell Road, Brixton, at a meeting this week. The meeting was called after police raided the bar on Sunday October 8, discovering drugs and two loaded handguns. Using new powers granted under the Licensing Act 2003, within days the police had made an application to the local magistrates’ court that the club to be closed in the interests of public safety and to prevent crime and disorder.

For Caradon District Council’s very fair comments see http://www.4barsrest.com/news/detail.asp?id=4384

Comment on the UK Government's ‘false promises’ to de-regulate

http://www.timesonline.co.uk/article/0,,1072-2444112,00.html

Punch Taverns see little upside from the Licensing Act

http://www.thepublican.com/story.asp?sectioncode=7&storycode=53392&c=1

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PATENTS
Internet
The rules for patents for computer software examined in Aerotel v Telco (2006)
By Tom Frederikse, Solicitor, Clintons

The Court of Appeal has provided a welcome clarification on the extent to which a computer programme (software) is protectable by UK Patent Law: none (*except where the computer program has a “technical effect”). In two appeals heard together, Aerotel Ltd v Telco Holdings Ltd and Re: Macrossan [2006] EWCA Civ 1371, Telco was sued for patent infringement and counter-claimed for revocation of Aerotel’s patent, whilst Mr Macrossan had appealed against his patent application having been refused for “unpatentable” subject-matter. The appeal from Mr Macrossan was dismissed, the appeal from Aerotel was allowed and the Court took this opportunity to examine the patentability of software and business methods.

Under UK and EU law, “computer programs” and methods for “doing business” or “performing mental acts” cannot not protected by a patent, but the question of what a computer program or a business method actually is has long been uncertain. The main problem in this area is so many inventions and gadgets use software as a element that the line is vague between what is and is not a “computer program”. The Court likened it to an elephant: “you know it when you see it but you can’t describe it in words”. The Court set out a staged test for patentability of a computer program which begins with an effectively-drafted application followed by an identification of the software’s substantial “contribution” to the state of the art (i.e. are there any “new” inventive elements) and finally – crucially – showing that the contribution is “technical”. This test is largely based on the existing EU test of whether the software has a “technical effect” and is, to some extent, based on whether the invention uses hardware or a new physical combination of hardware. This suggests that an entirely virtual invention would have a very difficult path to a patent registration.

A “method for doing business”, such as Amazon’s “1-click” patent for a method of online purchasing, Priceline’s patent regarding a “reverse auction” method for online air tickets, or Aerotel’s application in this case for a new method of telephone exchange connection, would also be subject to the patentability test. This complexity in Patent Law is made worse for the IT industry by the fact that the US routinely grants patents for these and nearly all types of inventions. As the Court put it: “Since [inventors] can get them there, they must as a commercial necessity apply for them everywhere [and] an arms race in which the weapons are patents has set in”.

The Court stressed that, most importantly, computer programs have protection under Copyright Law that is, after all, a more convenient shield under which software developers can take cover for up to life plus 70 years.

The full text of the judgment may be accessed via: http://www.patent.gov.uk/2006ewcaciv1371.pdf

This Update contains general information about English (or other) law. It does not contain legal advice. For further information on any specific legal matter, please consult a solicitor at Clintons (www.clintons.co.uk). © 2006 Tom Frederikse / Clintons

The IPKat adds:

On Friday the UK Patent Office issued a Practice Note as to when and whether such inventions are patentable. According to the prelude to the Practice Note:

"Following the Court of Appeal’s judgment in Aerotel v Telco and Macrossan’s Application, issued last Friday, The UK Patent Office has issued a Practice Notice on how it will in future decide if an invention is not patentable because it is a computer program or business method as such.

The Notice notes that the judgment considers all the previous caselaw from the UK courts and the European Patent Office and provides a clear approach as to how the computer program and business method questions should be tackled. The judgment is binding on the High Court and the Patent Office, and from now on the Patent Office will follow this as set out in the Practice Notice.

The approach is in the form proposed to the Court by the UK Patent Office and the Notice concludes that it is unlikely that it will substantially change what innovations are and are not patentable. The Notice refers to a number of worked examples applying the new approach to cases recently decided by the Office under the previous approach and in each case the same decision as to patentability is reached".

The IPKat says, the really important bit of the Practice Note is paragraph 4:

"4. In reaching its judgment, the Court also fully considered all the precedent UK case law in this area. ... [T]he Office takes the view that Aerotel/Macrossan must be treated as a definitive statement of how the law on patentable subject matter is now to be applied in the United Kingdom ( UK). It should therefore rarely be necessary to refer back to previous UK or EPO case law".

In other words, says the IPKat, if citation of pre-Aerotel/Macrossan case law is cut out or kept to a minimum, the Patent Office can concentrate on patentability on a more highly-focused basis and both examiners and the courts will have far fewer real or hypothetically contradictory precedents to worry about. The comment also adds that previous attempts to draw a line under old case law in other areas of IP law, notably breach of confidence law, have generally failed.

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COMPETITION
Music publishing
Vivendi’s purchase of BMG Music clears first regulatory hurdle

The Federal Trade Commission and the US Justice Department have both given the green light for Vivendi Universal to acquire BMG Music Publishing FiveEight magazine reported. The acquisition now needs the approval of the European Union's regulators who are due to make their decision by the 8th December. Independent label trade association IMPALA is rounding up its independent label members to oppose the tie up. With the Sony BMG merger under scrutiny following the European Court Of First Instance's ruling on the flaws in the EC's approval of that merger, IMPALA clearly believes there is a strong chance that the EC may block the Vivendi/BMG Music Publishing marriage. The E1.6B deal would create the single biggest publishing entity in the world. Based on 2005 figures, a combined BMG Music Publishing and Universal Music Publishing would control 25.7% of the market, far ahead of EMI Music Publishing's 16.7% and Warner/Chappell's 15.1%.

http://www.billboard.biz/bb/biz/newsroom/legal_management/article_display.jsp?vnu_content_id=1003382106

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CONTRACT
Artists
ARTICLE Sports agents are ‘less essential’ than Artist Managers Proform v Proactive
Tom Frederikse, solicitor, Clintons

The High Court has confirmed its quite different view of sports agency contracts from those of musicians’ and artists’ agencies. The former agent of Wayne Rooney, Proform Sports Management Limited, lost its claim of unlawful contract interference against the footballer’s new agents, Proactive Sports Management Limited, in a judgment published yesterday.

Proform entered into an exclusive management and agency agreement with Rooney in 2000 (when he was 15 years old) for a term of two years. He did not take legal advice, though his father also signed the contract. The contract covered all “functions in respect of personal representation on behalf of his work as a professional football player” as well as all “contract negotiations and transfers”. Within two years, Rooney left Proform to join Proactive, who Proform claimed had induced Rooney to breach his contract by leaving. Proactive claimed that the contract did not cover “marketing and image rights” and more importantly, in any event, was voidable by Rooney for being a contract with a minor.

The court accepted that a contract with a minor is not enforceable against him unless it is a contract for “necessaries” but it was unclear whether this covered only “necessary goods and services supplied to the minor” (such as food, essential clothing and shelter) or if it extended to contracts of apprenticeship, education and service. The court found that, as Rooney was at the time already with a club (Everton) that was providing him with training, and the Proform contract made no provision for training, education or instruction, the contract was voidable by (i.e. not binding on) Rooney. The Proform agreement, the court said, did not “fall within the class of minors’ contracts which are analogous to contracts of apprenticeship, education and service”. Accordingly, there can be no legal action for inducing or assisting a person to ignore a contract which is anyway unenforceable.

Whilst this case has implications for sports agents (who need to consider other methods for confirming any contracts they make with minors), it may be less important for music managers who, the court said, “organise matters essential to the very business of the musical artiste”. “Players’ representatives”, the court went on, “do not undertake matters that are essential to the player’s training or his livelihood. They do not enable the minor to earn a living or to advance his skills as a professional footballer.”

It should be noted that the Proform contract appears to have been terminated before any professional contract could have been negotiated with Everton. The decision also does not seem to take into account the relevance of using a form of contract approved by the FA, registering that contract with the FA or of the contract being with a corporate entity (which cannot be a licensed agent) rather than an individual (i.e. a licensed agent).

The full text of the judgment may be accessed via: http://www.lawtel.com/~9ba65fc06e31447e9cdb913e6155ed2d~/content/display.asp?ID=AC0111991ChD.pdf

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A Whiter Shade Of Pale, The Procul Harum hit which has generated £6 million in British radio, club and jukebox plays and was named the most-played record of the past 70 years in 2004, is to become the centre of a million-pound royalties dispute to be heard at the High Court in London. Released in 1967, the song became a global smash, selling 10 million copies. It is still used in advertisements and regularly features in “greatest song of all time” polls. The song has always been credited to Gary Brooker, Procol Harum’s frontman, and lyricist Keith Reid. Now almost 40 years on, Matthew Fisher, the band’s classically trained organist and now a computer programer, claims that the song’s signature winding melody line was his work. The dispute is more complicated because all sides agree that Johann Sebastian Bach originally inspired the song’s mournful melody. Brooker first wrote the song as a straight R&B tune, based on Bach’s Air from the Orchestral Suite No 3 in D (or Air on a G String), which he had heard on a Hamlet cigar advertisement, and the composer’s Cantata No 140, known as Sleepers Awake. With Bob Dylan’s records then popularising the Hammond organ sound, the band called on Fisher to embellish the track, but the organist argues that his contribution was far greater. Musicologists supporting Fisher will tell the court that he transformed the organ melody into something far superior to the chord structure that Brooker borrowed from Bach and that his organ melody includes lines running in counterpoint to the vocal melody and also the memorable eight-bar solo that appears between verses and that he transformed the tempo and rhythm of the cantata “lift”, cleverly disguising its classical source. Brooker, who strongly contests the claim, concedes that Fisher, who left the band in 1969, “refined” the song’s use of Bach. But Brooker believes he created an original melody before Fisher even joined the band and questions why it has taken the organist 40 years to bring the caim. Fisher, 60, has hired Jens Hill & Co, the company that represented Pete Best when the axed Beatles drummer successfully sued his former bandmates for royalties. Brooker, 61, has engaged Harbottle & Lewis. This is an interesting area of law and Blackburne J (who studies law and music at Cambridge) could give an interesting judgment on what does and does not constitute songwriting for the purposes of authorship under the Copyright Designs & Patents Act 1988. A keyboard will be installed in the court.

Previous case law isn’t that helpful: Tony Hadley and other members of Spandau Ballet lost their claim against fellow member Gary Kemp over a share of songwriting royalties for their efforts in 'arrranging' the band's songs and Aston Barrett recently lost his claim to have co-written Wailer's tracks with Bob Marley: In the Spandau Ballet case Park J said that "there is a vital distinction between composition or creation of a musical work on one hand and performance and interpretation on the other. But fiddle player Bobby Valentino did succeed in his High Court claim for co-authorship for writing (as well as performing) the distinctive violin part in The Bluebell's song and recording of 'Young at Heart' which was held to be a significant and original contribution (confirmed at the Court of Appeal). Clare Torry recently won an undisclosed sum for providing the vocal lines for Pink Floyd's The Great Gig In The Sky, one of the songs on Dark Side Of The Moon?. In Hyperion Records v Sawkins (2004) EWHC 1530 (Ch) Patten J held that copyright subsisted in the 'edition' version of a public domain work based on the work of 18th century French composer Lalande and ‘recreated’ by Dr Sawkins - even though no significant changes were made to the melody created by Lalande.

See Archive Music Law Updates April 2005, June 2005 and August 2004

Wood v Boosey (1868) LR 3 QB 33

Redwood Music v Chappell (1982) RPC 109

Aston Barrett v Universal-Island Records and Others [2006] EWHC 1009 (Ch)

Hadley and Others v Kemp and Another (1999) EMLR 589

Beckingham v Hodgens (2003) Court of Appeal, 19 February 2003 (Bobby Valentino) see http://www.swanturton.com/ebulletins/archive/DAFValentino.aspx

and see http://www.musictank.co.uk/events_creative_collaborations.htm http://www.timesonline.co.uk/article/0,,2-2446338,00.html

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Research commissioned by the BPI seems to show majority support among British consumers for an extension in the recording copyright in Britain – although answers given always depend on the question asked! The BPI is currently lobbying the UK government to extend the term of UK sound recording copyright from the current 50 years to match the equivalent copyright in the US which runs for 95 years. In a survey undertaken by YouGov on behalf of the BPI, 62% of those surveyed agreed that UK recording copyrights should be brought inline with the US. Only 20% opposed the proposal, with 18% undecided. The BPI argue that a copyright extension is vital to support the unique cultural asset of the UK music industry, to drive re-investment in the creative economy, to end the discrimination of protection afforded to other cultural industries, to benefit consumers through increased availability of music at no extra cost and to boost UK's international competitiveness in the global knowledge economy. Commenting on the YouGov poll, BPI chief Peter Jamieson told reporters this weekend: "We are hugely encouraged that the majority of British consumers agree with us that UK musicians should receive as much copyright protection as their US counterparts. Our unique and internationally renowned industry would use a term extension to continue to invest heavily in the creative economy for future generations and consolidate the rights and works of our cultural ambassadors".

See the ARTICLE: 'Extending the Term' - Should the UK recording industry have new obligations as well as new rights if the copyright term for sound recordings is extended?
by Ben Challis - on this website for comment on this area

And see ARTICLE LINK: Extend the term in sound recording copyrights? This writer certainly doesn’t think so: ‘Breaking the Deal’ by Professor James Boyle.

This is a clever and well written argument which sets out why this is an unacceptable move.

http://www.ft.com/cms/s/a83519c8-7593-11db-aea1-0000779e2340.html

and also see http://www.p2pnet.net/story/10454

COMMENT by Ben Challis: I have to say that I find the BPI’s campaign to ‘extend the term’ for copyrights in sound recordings beyond the current fifty years somewhat of a little bizarre – is it really their biggest worry? The ‘record industry’ has an amazing ability to shoot itself in the foot although the campaign brings up one important issue straight away – that the BPI are NOT the ‘voice of the music industry’ even if some in government and the press think they are. Increasingly the BPI are worryingly out of step with the independent labels, with the music publishing industry, with the voices of musicians, artist managers and songwriters and with the live industry. And lets be frank, they also haven’t done much to endear themselves to consumers (although the BPI have never reached the elevated status of the Recording Industry Association of America when it comes to bile and mockery). The whole argument about ‘extending the term’ is like watching an irate self righteous customer on the bridge of the Titanic complaining about a broken toilet. It’s not really the most important issue! The copyright industries are going through a period of profound and radical change and expending this much time and energy campaigning to extend the copyright protection for sound recordings is a nonsense. Now I know the major labels are taking steps to develop new business models to deal with the crisis in monetizing copyrights – The deals by Warners, Universal and SonyBMG with Google and Youtube and Universal’s deal with Microsoft’s new Zune service and hardware are testament to this. But banging on about whether or not Sir Cliff Richard’s albums recorded fifty years ago should be protected by copyright law just misses the point. The BPI needs to get off the Titanic, get into a lifeboat, get rowing, get home and start re-building the new ship – the all new SS Copyright - fit for the digital age.

In fact I am not sure copyright law needs a radical overhaul right now – there is some tweaking that’s needed – maybe a private copyright right and new rights for libraries and archives spring to mind. But like the extension of term, these are peripheral to how copyright law (indeed IF copyright law) can function in a digital age. At the moment the problem is most pressing on the recorded music industry – but as the uptake of broadband increases, the all powerful film industry will become a player and I can’t see them being distracted in the way the BPI have – and that may actually be a good thing for the record industry as new solutions and new business models are looked at.

The association for independent record labels, AIM, came up with a ‘Value Recognition Right’ earlier this year (now called their ‘Value Recognition Strategy’) and this at least begins to highlight the problems being faced by an ‘industry in crisis’. One of the main problems is that some of those who perhaps benefit most from the distribution of recorded music are not part of the paying chain of supply at all. Some consumers pay for their music – this payment goes via their service providers to the record labels and ultimately a share should go back to the artist. But a substantial majority of customers don’t pay for music but do provide traffic for Internet Service Providers, websites and increasingly telecoms companies – who benefit. Music drives the net and music increasingly drives mobile sales and mobile traffic. Radio stations have to pay for the use of recorded music – consumers do too – but some in the ‘value’ chain benefit from the supply of music but pay nothing. AIM are right to look at how this ‘value’ should be monetized by the record labels – although I am not sure anyone quite knows how to achieve this as yet.

I think ultimately we will see a shift in the balance of power in the record industry in favour of Artists. I think this will have to happen as traditional sources of income will just dry up. Indeed I feel that even in the current copyright regime music is seriously undervalued – as I write this comment I have just seen adverts for the Beatle’s new CD and Westlife’s new CD – both under £8 at Tesco in time for Christmas. It’s a difficult dilemma for the record industry to face – but to be frank music was undervalued even before the rise of the internet and peer-2-peer file swapping – its even worse now as music is so easy to ‘acquire’ for free. So we have to ask the question - where is the money in music now? Well certainly in the booming live industry, in merchandising, in music publishing, in radio, in films, in TV and in advertising. But perhaps not in the ytraditonal idea of just ‘selling music’ as a product itself. What might become more prevalent is the monetization of the ‘image’ or brand rights to and in artists – Robbie Williams being a great example as is (taking an example from the world of sport) the ‘business’ of David Beckham being David Beckham: It wouldn’t surprise anyone that the revenue streams resulting from endorsement and advertising contracts can substantially outstrip earnings from record sales. Believe you me Kate Moss makes a darn sight more from her advertising and endorsement contracts that Pete Doherty does from selling Babyshambles CDs and downloads.

So the major labels are going to have to work on their relationships with their artists – it was refreshing to see the head of SonyBMG in the UK, Ged Doherty, acknowledge this in a recent speech. But I write this at the time of the sad news of the death of Ruth Brown who championed for the rights (and payment!) of artists and famously rejected a ‘gift’ of $1000 from the boss of Atlantic Records boss, Ahmet Ertegun, lamenting that the money was ‘crumbs from a rich man’s table’. There is a story that when Ruth finally got enough money to hire a lawyer the money was from her Broadway show, not from record sales of course) her $30,000 negative recoupment position miraculously turned into a $20,000 royalty payment. The Music Managers Forum are fighting hard in this area; at the recent Music Tank Beyond The Soundbytes conference it was a shame and a missed opportunity that the session on new artist contracts was diverted onto – of all things – a lengthy debate on extending the term of copyright for nsound recordings! Keynote speaker Professor Martin Kretschmer and an outstanding panel were well placed to discuss this but in the end time ran out on a discussion on this important issue. I for one would have liked to have heard more. And this is surely where surely the labels need focus their efforts – on building meaningful, co-operative and FAIR contracts with recording artists. Only then can they begin to build new business models and then go to government to ask for new legislation to enable the monetization of music, or the ‘benefit’ of music or even enhanced image right – fit for purpose in the digital age.

‘EMI chief makes final plea to have copyright extended’ The Times 23 November 2006

‘Beyond the Soundbytes’ report by Peter Jenner (and conference report) see www.musictank.co.uk

Note to the major record labels – this cartoon (itself a parody of a copyrighted advert published to promote the iPod) says it all ……. Pin it to you wall and cogitate!

“I steal music and I’m not going away”

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TRADE MARK /COPYRIGHT
Mechandising, record labels, artists
BPI welcome successes against CD and DVD pirates

The BPI has welcomed two success stories in the ongoing battle against counterfeit CD and DVD piracy in the UK. The BPI successfully prosecuted James Cowan, his wife Ann Cowan and Andrew Wood, all from County Durham, after a routine anti-piracy operation unveiled a sophisticated bootleg CD enterprise. The three defendants made pirate of copies of CDs and DVDs at a property above a video rental store, and are thought to have made £10,000s a week by selling the pirated material at markets, pubs and industrial units all over the North East. James Cowan was last week found guilty on counts of conspiracy to defraud, tax evasion and benefit fraud. Ann Cowan was found guilty of defrauding the music and film industries, benefit fraud and attempting to pervert the course of justice. Wood, who was allegedly in charge of the pirating operation, had earlier pleaded guilty to counts of conspiracy to defraud and tax evasion. CMU Daily reported that all three will be sentenced in the New Year. The BPI also welcomed the seizure of over 200,000 Bollywood CDs and DVDs following a raid in West London last week. With a value of just under £1 million, even at bootleg prices, this is the biggest ever haul of pirated Bollywood content in the UK. The pirated CDs were found alongside a load of counterfeit clothing which police estimate could take the value of all the goods seized to over £5 million.

From CMU daily

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COPYRIGHT
Record labels, film, television, technology
ARTICLE LINK The End User: When it comes to digital hardware, copyright levies are a taxing debate
By Victoria Shannon, International Herald Tribune

A useful summary of the pros and cons of levies on hardware such as photocopiers, technology such as CD Burners and CDR discs etc: These are widely used in Europe (but not the UK) to compensate copyright owners – extra charges on hardware to make up for the ease of copying.

http://www.iht.com/articles/2006/11/22/business/ptend23.php

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The US Library of Congress has approved six exceptions to the rules against decryption of technological protection measures in the Digital Millennium Copyright Act. These include (a) allowing users of mobile phones to break software which locks their handsets in with a particular network (b) allowing academics to break locks on DVDs to obtain film snippets which will be used for teaching compilations and (c) allowing blind people use special software to read copy-protected electronic books. The changes do not include the now much debated ‘personal use’ exception which would allow consumers to legally de-encrypt security protection on their own CDs so contents to be copied on to personal MP3 players. The new exceptions will expire after three years.

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DEFAMATION
Artists, publishers
60s pop star wins libel settlement

Sixties pop star Frederick Gladstone, professionally known as Tony Rocco, has won a High Court settlement against author Jake Arnott and Publishers Hodder & Stoughton for libel. Were had performed under the stage name "Tony Rocco" since 1962 when he had had a hit single, Stalemate. Arnott (born 1961) wrote a novel, Johnny Come Home, which featured a character called "Tony Rocco" who was said to be a popular music manager famous for having had a hit single in the 1960s. The fictional Rocco was depicted as a sordid, predatory pederast who lusted after teenage boys. Arnott and the publisher have both apologised for the distress and embarrassment caused to Were and openly acknowledged that Gladstone was and is nothing like the fictional Rocco: The defendants confirmed that the character of Tony Rocco in the novel was not intended to depict Were or refer to him in any way. They undertook not to repeat the allegations and said they would attempt to recall all copies of the novel distributed so far. They also agreed to change the name of the character for all and any future reprints of the novel and to pay Were a substantial sum by way of damages, together with his legal costs. Frederick Gladstone Were v Hodder & Stoughton and Jake Arnott.
From the most excellent IPKat http://ipkitten.blogspot.com/2006/11/between-rocco-and-hard-place.html

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