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

April 2007

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Here is a new twist in the Joyce Hatto story (which we missed last month!). Until recently Hatto (who died in 2006) had been hailed as one of Britain's foremost classical pianists although she had retired from the concert stage some thirty years ago. But for years rumours had swirled around questions of how she could maintain such productivity and quality in her sound recordings. Her CDs were released by her husband, William Barrington Coupe, on his own label Concert Artist. Then allegations began to surface that some of the CDs were copies – and here is an example of another new development in the digital age (its not just record label woes and consumer freedoms etc). One positive advantage of new digital technology is the ease of comparing recordings. One listener had put Hatto's recording of Liszt's 12 "Transcendental Études" into his computer and lo and behold - his iTunes software identified the disc not as Hatto's recording but as one by Laszlo Simon on the BIS label, originally issued in 1993 (iTunes uses a database called CDDB to identify discs using information about the number and length of the tracks). As rumours abounded, Gramaphone magazine told the 'conspiracy theorists' to 'put up or shut up' and all of a sudden other Hatto recordings came under suspicion - a recording of Brahms's Second Piano Concerto is credited to Hatto is alleged to be that of Vladimir Ashkenazy - and www.classsicstoday.com claims that Hatto's entire Ravel cycle is, in fact, the work of French pianist Roger Muraro. Ex BBC sound engineer Andrew Rose began a thorough investigation into the recordings (which can be seen at www.pristineclassical.co,/hattohoax.html) and the results, if true, are damning. And indeed they seem to be true! At the end of February the UK's Telegraph newspaper revealed that Mr Barrington-Coupe been convicted of tax evasion in the UK (and had served a short prison term) and that he now withdrawn all Hatto CDs from sale - saying that this was not "with any recognition of guilt" but was because he "wanted to do something which I thought was correct". It has also been reported that he has written to his Scandanavian record label admitting to ‘sampling’ or ‘editing in’ excerpts from other pianists recordings in Joyce’s work - and more – although at the moment no one (except Mr Barrington-Coupe) is aware of what the ‘real’ Hatto recordings are and which are those of other recording artists. See The Telegraph 24/02/06 p5, the article in the Sunday Times 04/03/07 (News Review) p3 and see the Boston Globe on this story at http://www.boston.com/news/globe/living/articles/2007/02/23/alleged_hatto_plagiarism_shakes_music_world/?page=2 And see http://www.iht.com/articles/2007/02/16/news/hatto.php

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PATENT LAW
Internet
Patent decision may be critical to download market

A federal jury in the United States has decided that Microsoft infringed on two patents used in the conversion of music to digital MP3 files and has ordered that the computer company must pay $1.52 billion in damages to France's Alcatel-Lucent SA. The two patents cover the encoding and decoding of audio into the digital MP3 format. Microsoft's defence was that it had already paid for and licensed the technology (to the tune of $16 million) from Germany-based Fraunhofer Institute, which licenses it to hundreds of companies, including Apple Inc. and RealNetworks Inc. The decision was the first of six cases that will be heard in the U.S. District Court in San Diego. All stem from claims made in 2003 by Lucent Technologies against PC makers Gateway Inc. and Dell Inc. for technology developed by Bell Labs, its research arm. The next case, which relates to speech coding, is set to go to trial in March or April. Other areas in dispute include video coding on Microsoft's Xbox game console and Windows user interface.

http://www.mercurynews.com/mld/mercurynews/business/technology/16761467.htm

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COPYRIGHT
Internet, music publishing
ARTICLE LINK: MEPs want EU law for online music

The European parliament has criticised its own executive for prioritising competition between collection societies – rather than protecting cultural integrity in member states. Song-writers' and composers' rights are currently controlled by Collective Rights Management societies (CRMs) which grant national distribution licences for record labels and online shops and collect royalties of a few cents per download. The artists are most often represented by their national CRM society - some of which date back to the 1850s - and in the other EU countries by virtue of reciprocal bilateral agreements that allow, say, a Spanish society to licence Dutch music in Spain while channeling cash from Spanish royalties back to the Netherlands. But with the EU digital music sector set to become a €3.9 billion a year industry by 2011, the major record labels are pushing Brussels to break-open the rights monopolies system. The European Commission therefore proposed in its recommendation to open up the copyright market to competition allowing those interested in trading music on the web to negotiate with one CRM instead of each individual CRM in the 27 different EU member states. But MEPs are saying that although competition is good, to open the market without a set of restrictions would endanger European cultural diversity with CRMs then focusing on making money instead of diversity, hampering the developments of national and local music markets. http://www.businessweek.com/globalbiz/content/mar2007/gb20070302_035194.htm?chan=globalbiz_europe_more+of+today's+top+stories http://euobserver.com/9/23595

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TRADE MARK
Artists, merchandisng
Queen protect mark against new application

Ilanah Simons from the purrfect IPKat webblog reports a victory for the rock group Queen before the Trade Marks Registry. Julia Ruhnke made a Madrid Protocol application to register the term QUEEN FOR A DAY for clothing. The surviving members of the rock group Queen opposed the application based, inter alia, on their registration of the word QUEEN for the same goods. Since the goods were identical, the issue came down to whether there was a likelihood of confusion taking the similarity between the marks into account. Yes, there was, said Mr Hearing Officer Reynolds. Although the number of words in the two marks was different, there was a strong conceptual link between them. QUEEN, when used on clothing, would be viewed as referring to the concept of a female monarch, which would be fanciful in relation to clothing. QUEEN FOR A DAY contained a conceptual difference, as it suggested how the wearer would feel when donning the clothes but (hold on to your hats folks), this conceptual difference actually enhanced the degree of similarity between the two marks because it reinforced the connection with royalty by suggesting that the lucky lady wearer would feel like a female sovereign.

Perhaps surprisingly for Bohemian Rhapsody fans, the evidence did not establish that the QUEEN mark had acquired distinctiveness through use for clothing. Although it was undoubtedly the name of a famous band, this did not mean it had acquired any sort of secondary meaning in relation to clothing. Ironically, the IPKat points out, this probably helped the band, as it left the word QUEEN meaning only female monarch, which set up the audacious conceptual (dis)similarity trickshot described in the previous paragraph. The IPKat notes that once again, the issue of trade mark use is rearing its ugly head. Queen is undoubtedly a well-known band, and bands undoubtedly often produce merchandise, such as t-shirts, but they are (according to the Registry) not viewed as the source of that merchandise by consumers. This kind of reasoning could, in theory, put such marks at risk of revocation for non-use, so Queen was quite lucky that its name has an alternate meaning. However, the IPKat isn’t happy that this alternate meaning seems to give the band a wide scope of protection over what’s close to a laudatory term.

http://www.patent.gov.uk/tm/t-decisionmaking/t-challenge/t-challenge-decision-results/o00907.pdf

http://ipkitten.blogspot.com/2007/02/trade-mark-decision-very-very.html

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TRADE MARK
Artists
Did he? He did, didn’t he? Richard Dearlove (trading and professionally known as "Diddy") v Sean Combs (trading and professionally known as "Sean 'Puffy' Combs", Puffy" and "P. Diddy") [2007] EWHC 375 (Ch).

Sean Combs had already been ordered to stop using the name ’Diddy’ in previous litigation which saw him pay over £10,000 in damages to British DH Richard ‘Diddy’ Dearlove as well as £100,000 on costs. Now Mr Justice Kitchen has ordered Mr Combs to drop a lyric in which he calls himself “Diddy” when he performs at Wembley Arena. In a High Court ruling, Mr Justice Kitchin said that Mr Combs had breached the agreement which resulted from the previous litigation. That agreement provided, inter alia, that Combs would refrain from advertising, offering or providing, or causing/procuring others to advertise, offer or provide any goods and services not being the Claimant's goods and services as a remixer, producer, songwriter, recording artist and DJ under or with reference to the word "Diddy . Kitchen J agreed that Combs had clearly advertised himself as “Diddy” in a song called The Future on his latest album Press Play. The judge ruled: “The second verse refers to Mr Combs as ‘Diddy’ as he invites the listener to ‘mainline this new Diddy heroin’. Mr Combs expressly refers to iTunes and asks the listener to ‘Download me in every resident’. He refers to his CD as ‘my CD’s in 3-D holograms’, and finally refers to his shows with the words, ‘the live show’s a hard act to follow man … I see this as straightforward advertisement by Mr Combs of his CD, his songs which can be downloaded from iTunes and his live shows, all under and by reference to the word ‘Diddy’. The Judge ordered a full trial on whether there had been further breaches of the agreement -in which Combs was obliged to re-brand his activities in the UK. He said that the use of the name “Diddy” on MySpace and YouTube websites was a breach, but was unable to decide whether Mr Combs had any control over the content.

http://www.timesonline.co.uk/tol/news/world/us_and_americas/article1454522.ece

http://ipkitten.blogspot.com/2007/03/diddy-or-didnt-e.html

Law Updates October 2006 and see ‘A Tale of Two Diddies” by James Silver, The Guardian (Media Supplement) 12 March 2007.

ARTICLE: US website ‘directed at UK users’ Richard ‘Diddy’ Dearlove v Sean ‘P Diddy’ Combs By Tom Frederikse

The US pop star Sean ‘Puffy’ Combs (aka ‘Puffy’ and ‘P Diddy’), who changed his name to ‘Diddy’ in 2005, was found to have infringed earlier rights in the name owned by Mr Dearlove, who is also known as 'Diddy'. In Richard Dearlove v Sean Combs [2007] EWHC 375 (reported 28 Feb), Summary Judgment was awarded to Mr Dearlove, in respect of certain website and lyric-related aspects of the claim, whilst other control-related aspects were reserved for judgment in a later full trial.

In late 2005, following Mr Combs having changed his professional name, the two parties entered into a settlement agreement in which Mr Combs agreed not to use the name in the UK, including by way of “advertising, offering or providing” any goods or services under the word ‘Diddy’. By late 2006, despite Mr Combs having made some effort to re-brand himself in Europe as ‘P Diddy’, Mr Dearlove claimed breach of the settlement agreement and sought summary judgment against Mr Combs.

The first strand of the complaint concerned Mr Combs’ various websites which, despite some having an icon stating that “UK Residents must click here”, were found to be “directed” at UK users. The court’s reasoning was based on the fact that Mr Combs’ album is sold in the UK and that it will be supported by a UK tour which is advertised – or at least referred to – on the sites’ home page. Some pages using the name “Diddy” were seen by UK users before being told to navigate to a UK-only page. The “presentation” of the site was found to “suggest that the general site is intended” for all users, regardless of location.

The second strand of the complaint concerned the lyrics of Mr Combs’ album Press Play in which Mr Combs refers to himself as “Diddy” and which Mr Dearlove claimed amounted to an advertisement of goods and services in the UK under the disputed name. Citing lyrics such as “Mainline this new Diddy Heroin”, “download me in every resident”, “my CD’s in 3D holograms” and “the live show’s a hard act to follow”, the Court found the lyrics to be a “straightforward advertisement by Mr Combs of his CD, his songs which can be downloaded from iTunes and his live shows, all under and by reference to the word ‘Diddy’”. However, despite finding the lyrics an advertisement in the UK of goods and services using the disputed name, the Court was unable to determine whether or not Mr Combs had sufficient editorial control over the album and this issue was reserved for later argument in a full trial.

This case highlights the key question of whether use of material on the Internet from a location outside the UK can constitute use of that material in the UK and the court confirmed the test of “whether or not the average consumer of the goods and services in issue within the UK would regard the site as being aimed and directed at him” and in applying this test that a court would consider “the nature of the goods or services, the appearance of the website, whether it is possible to buy goods or services from the website, whether or not the [site] has in fact sold goods or services in the UK through the website or otherwise, and any other evidence of the [owner’s] intention”. As specific examples, an Irish furniture shop that advertises a “four-floor” shop would not be regarded as being “directed” at users outside Ireland, whilst a US pop star’s website advertising an album sold in the UK and an upcoming concert in the UK, apparently would be “directed” at a UK user.

The question of where a website is located – and to which law it is subject – is not yet entirely clear, but at least we now have a good deal of useful guidance.

The full text of the judgment may be accessed via: http://www.lawtel.com/~dcea93a769084a2c89aabe3aba5af785~/content/display.asp?ID=AC0112871&HL=Y&BK=Y&ResultID=12251784.

© 2007 Tom Frederikse First published on the Clintons website at at http://www.clintons.co.uk . This article contains general information about English (or other) law. It does not contain or constitute legal advice.

Also on band names - see the new litigation between the founder of Jefferson Airplane (later
Jefferson Starship) Paul Katner who is being sued by a former bandmate (Grace Slick) and the band’s former manager over allegations he is in breach of a previous agreement regarding the use of the former band's various trademarks including the names 'Jefferson', 'Airplane' or 'Jefferson Starship' in hid personal projects. See http://www.cmumusicnetwork.co.uk/daily/index.html

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TRADEMARK / CONTRACT
Artists
Heritage band name dispute drifts towards the High Court

The Drifters are one of the longest serving groups in the history of popular music – and hits like Under The Broadwalk., Saturday Night at The Movies and Save The Last Dance for Me have made them pretty influential as well. But now members in the current line up – who are amongst the fifty or so singers who have been in the Drifters, face a legal action from the wife of the band’s ex-manager who claims she owns the right to the name The Drifters. Faye Treadwell claims she is the legal owner of the name – which her husband brought from the original band in 1954 – and that he ran the band as a business, employing various signers to tour and record as The Drifters. Ms Treadwell is bringing an action in the UK against the band known as the Drifters (who themselves have lodged UK and European CTM trade mark applications for the name) and in the USA against a number of ‘Drifters’. A number of states in the USA have already passed laws protecting ‘heritage acts’ saying that at least one original member must be still involved. Recent band name disputes involving original members included fights for the names Spandau Ballet, Dr Hook, Saxon and Boney M. Other bands who have had to fight for the same name include Liberty (and Liberty X), Suede and Suede and the two ‘Blues’.

The Times 23 March 2007 p31

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CONTRACT
Artists
ARTICLE Ongoing Management Commission gets Seal of Approval : Wadlow v Samuel
By Charlie Anderson, Solicitor, Clintons

The Court of Appeal this week upheld the 2006 judgment in the case of John Wadlow v Henry Olusegun Adeola Samuel (pka Seal). The recording artist failed to persuade the Court of Appeal that a 1995 agreement ending his relationship with Mr Wadlow, his former manager, was procured by undue influence. The Court of Appeal dismissed the appeal on 28 February 2007 and confirmed the validity of the contract for Mr Wadlow, who was represented by Clintons solicitors.

Mr Wadlow discovered Seal in the 1980s and invited him to record some songs at Beethoven Street Recording Studios, which he then ran. In 1988 Seal signed a publishing deal with Mr Wadlow’s publishing company and in 1990 the pair signed a management agreement that provided perpetual post-term management commission to Mr Wadlow on the albums recorded during the life of the contract. In 1995, after the release of two highly successful albums, and as Seal’s career was increasingly based in the US, they amicably parted company and drew up a “settlement agreement” which terminated the management agreement. Under the settlement agreement Mr Wadlow made several valuable concessions, including the return to Seal of the publishing rights in his first two albums. In return for this, the agreement confirmed Mr Wadlow’s right to receive his 20% management commission on future income from those albums, in perpetuity.

In 2001, having paid Mr Wadlow commission under the settlement agreement for six years, Seal stopped paying, and Mr Wadlow sued for breach of contract. In the trial at first instance, Seal ran technical arguments that the terms of neither the management agreement nor the settlement agreement provided for perpetual commission on income from the two albums, on a true construction of their terms. He also argued that both agreements were unenforceable against him, because they were in restraint of trade and/or had been procured by undue influence. The lower court dismissed these arguments. Of particular interest for managers everywhere, he upheld the enforceability of the clauses in both agreements which entitled Mr Wadlow to post-term commission in perpetuity on all income generated from “recordings made and compositions written and residual fees arising from performances given or negotiated” during the term. This finding finally laid to rest the troubling decision in the case of Armatrading v Stone [1984], which has long been cited as a reason why managers cannot put such perpetual commission provisions in their agreements with artists. However, the lower court did find that that, partly due to a lack of evidence after 15 years, Mr Wadlow had been unable to rebut a presumption of undue influence in relation to the signing of the original management agreement. However, this finding had no practical effect, as he found that no undue influence was exerted on Seal at the time of negotiation of the settlement agreement.

Seal’s appeal, whilst raising some further points on construction of the contract terms, centred on the finding that the settlement agreement had not been procured by undue influence. He argued that, despite there being no evidence of Mr Wadlow exerting undue influence over Seal at the time of the settlement agreement, the fact that the presumption of undue influence had not been rebutted in relation to the management agreement meant undue influence was still operative in relation to the settlement agreement, rendering it unenforceable. The Court of Appeal distinguished the case of Yorkshire Bank v Tinsley [2004], finding that the terms of the settlement agreement made commercial sense and did entitle the former manager to post-term commission in perpetuity, not least because Mr Wadlow had given up his future interest in Seal’s publishing under the settlement agreement. Given that Seal had taken proper legal advice on the deal and was, at the time, already effectively managed by a new manager, he was no longer in a position of “trust and confidence” with Mr Wadlow.

The Court also noted that 15 years is a long time to wait before claiming a contract is void for having been affected by undue influence and that it would therefore not be just and fair to now set it aside (though this appears to contradict last month’s case involving the song “A Whiter Shade of Pale”, in which a claimant succeeded after a 40-year delay).

This judgment confirms that, as the Court of Appeal noted, “bargains freely entered into should be enforced” – even in the music industry – provided both parties have taken proper legal advice and the contractual terms are drafted with sufficient clarity. An account will now be taken of Seal’s earnings from the relevant albums over the last six years, to determine how much is owed to Mr Wadlow.

The full text of the judgment may be accessed via: http://www.lawtel.com/~39af41ba83f94a318b0a65113b16c10d~/content/display.asp?ID=AC0112868CA%28CivDiv%29.pdf

© 2007 Charlie Anderson. First published on the Clintons website at at http://www.clintons.co.uk/news.php?NewsID=30 . This article contains general information about English (or other) law. It does not contain or constitute legal advice.

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COPYRIGHT
All areas
ARTICLE LINK The top 10 ways copyright law can ruin your transaction
By Robert S Gerber & Edwin Komen , Sheppard, Mullin, Richter & Hampton

US Copyright law is full of exceptions and qualifiers, and many clients and lawyers have only broad understandings of the way copyright law works to protect the original expression of ideas. Copyright litigators see many deals go sideways because of client or attorney misunderstandings about copyright law. This is Mr Gerber and Mr Komen’s top ten!

http://www.sddt.com/News/article.cfm?SourceCode=20070228cre

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COMPETITION
Record labels
EC to investigate Sony-BMG merger

The European Commission has announced it is launching a new more detailed investigation into the 2004 merger of Sony and BMG's record label operations which means competition regulators will now not rule on whether the merged enterprise, SonyBMG, can continue to operate in its current form until July 4th 2007 (now extended by two weeks). The EC is also considering the potential tie up of BMG Music and Universal Music. The EC had been forced to reconsider their approval of the SonyBMG merger after the European Courts of Justice annulled the approval last year. The annulment came after a case brought by independent label trade association IMPALA: IMPALA members have asked the EC to look at specific concerns about their reduced market access including the collective dominance of the majors and co-ordination of competitive behaviour in retail, radio and television, press and other media, as well as in the vital on-line market. The independents also asked the Commission to address other vital issues such as cultural diversity (which MEPs also recently highlighted as above), the role of creativity and small business in the Lisbon strategy, vertical integration, links with sister publishing companies, unfair leveraging of repertoire and review of SonyBMG promises during the first investigation, as well as what has happened since. SonyBMG are also appealing the ECJ decision. As well as the SonyBMG issue and the potential purchase of BMG Music by Universal, the EC is also facing the potential merger of the recorded music arm of EMI with the Warner Music Group, no doubt keeping regulators very busy this summer. Source: http://www.cmumusicnetwork.co.uk/

For details of the ECJ decision see The European Court annuls the European Commission’s approval of the Sony BMG merger Case T464/04 Independent Music Publishers and Labels Association v Commission of the European Community Music Law Updates August 2006

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COMPETITION LAW
Record labels
US radio stations settle with FCC in payola scandal

Following from New York Attorney General Eliot Spitzer’s successful pursuit of the for major record labels in the US on payola charges, four major US broadcasters (Entercom, Clear Channel, CBS and Citadel) have been fined $12.5M by the Federal Communications Commission, bringing to an end the most recent probe into payola in the US media. The stations have also agreed to up their airplay commitment (of around 4,000 hours) to local and independent acts. While the broadcasters have admitted no wrongdoing, the deal is still subject to final FCC approval. A new set of regulations will also be put in place that will mean closer scrutiny of broadcasters' dealing with record labels, a limit - as well as greater transparency - on the 'gifts' they can receive from labels, as well as the introduction of a "payola hotline" for radio employees to report abuses of the system (Five Eight magazine). The deal appears to close an embarrassing chapter for the music and radio industries. Mr. Spitzer’s inquiry disclosed how payloa payments had become widespread as label executives pressed to obtain exposure for stars. In some cases, label executives offered payoffs directly; in others, they hired middlemen known as independent record promoters, to funnel gifts or other enticements to radio station personnel in return for airplay for tracks.

http://www.washingtonpost.com/wp-dyn/content/article/2007/03/05/AR2007030501286.html

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COPYRIGHT
Record labels, internet
IFPI to sue Yahoo! China

The Asia branch of the International Federation of the Phonographic Industry has confirmed it is suing Yahoo! China for copyright infringement based on the search engine's practice of providing links to unlicensed music download site. IFPI's Asia Regional Director Leong May-Seey has confirmed that Beijing's Intermediate Court has accepted the case, being brought against the web firm by eleven music companies, including all of the majors. It is worth noting that the IFPI is taking the action against Yahoo! China despite ultimately losing a similar previously reported case against China's leading search engine Baidu last year. While the Chinese courts initially ordered Baidu to pay compensation to EMI for its MP3 search service which provided links to illegal sources of music, an appeal hearing in November overruled that decision ruling that Baidu could not be held liable for any copyright violation because it did not, itself, host any of the unlicensed content, it merely linked to the illegal sites.
www.ifpi.org

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Media giant Viacom (parent company of MTV, Nickleodeon and Paramount) is seeking $1B in compensation against YouTube, claiming that 160,000 unauthorised clips have been uploaded and watched over 1.5B times on the video-sharing service. It is also seeking an injunction to prevent YouTube users from illegally uploading any more of its content. Viacom has alleged that YouTube has failed to implement sufficient filtering safeguards and that negotiations were "unproductive". The legal battle is now moving up a gear as Viacom accuses YouTube of increasing user traffic and upping ad revenues as a result of the use "unlicensed content [which] is clearly illegal and is in obvious conflict with copyright laws". YouTube is now owned by Google which brought the user generated platform for $1.65 billion in 2006. It is not the first time YouTube have faced the threat of egal action. Major record labels such as warners and Universal threatened action but eventually entered into commercial relationships with the platform. It is expected that Youtube will use the 'safe harbour' provisions Digital Millennium Copyright Act (DMCA) of 1998 as a primary defence against Viacom's claims although clearly the decision of the Supreme Court in MGM v Grokster will be an important factor here.

http://www.nzherald.co.nz/section/story.cfm?c_id=5&objectid=10428914

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COPYRIGHT
Television, internet
Article Link: Who owns the live music of days gone by?
By Robert Levine, New York Times

This interesting US article looks at the complex issue of ownership of archive TV recordings – especially where these now have a substantial value when incorporated into new formats such as DVD, downloads, Video on Demand, content for mobiles and internet streams: the article touches on the ongoing litigation over internet service ‘Wolfgangs’ Vault’ which is exploiting master tapes previously held in the private archive of legendary US promoter Bill Graham. Also see the item on Tom Jones above.

http://www.nytimes.com/2007/03/12/technology/12video.html?ex=1331352000&en=21492fdaa6dfceef&ei=5088&partner=rssnyt&emc=rss

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COPYRIGHT
Artists, record labels
Jones sues over the release of 1981 TV soundtracks as CDs

Tom Jones has begun legal proceedings against a Californian company called C/F International who, he claims, is illegally distributing sound recordings he made as part of a TV show in 1981. Jones and his company, Tom Jones Enterprises, is seeking to stop the licensing firm from distributing rights to sound recordings from the 24 episode Tom Jones Show. The legal papers apparently allege that (a) any licences granted related to TV use only – rather than use of the audio tracks in sound recording devices such as CDs and (b) have in all events terminated because of breach of contract. Also see the article link on TV archive in this months update.

http://www.cmumusicnetwork.co.uk/

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The United States Copyright Royalty Board has made public its increased royalty rates for sound recordings due to artists and labels for tracks used on streaming radio services. The monies will be administered by the collection agency Sound Exchange. Small Internet broadcasters will no longer be eligible for discounted fees (previously 12% of revenues). The new rate of 0.08 cents per track/per play will be retrospective to 2006 and will increase steadily, effectively doubling by 2010 to 0.019 cents. Streaming media companies and online radio stations also have to pay music publishing royalties. Small stations state they will either have to cut back on the music they play or risk going out of business. The Copyright Royalty Board was set up in 2004 to determine royalty rates for webcasters. Some 72M people in the US listen to online radio in the US each month - far ahead of the 14M satellite radio subscribers currently. There are also concerns that a rates rise will also negatively affect satellite broadcasters. They have a different royalty payment system in place with labels currently, but this too is up for renegotiation.

http://www.latimes.com/business/la-fi radio7mar07,1,6444381.story?track=rss&ctrack=1&cset=true

For the actual rates see http://www.dailytech.com/article.aspx?newsid=6361&red=y

And see http://www.betanews.com/article/Record_Industry_Proposes_Huge_Streaming_Royalty_Fees/1173216492

However, all is not well in the world of satellite radio either - The National Music Publishers’ Association (NMPA) has filed a lawsuit against XM Satellite Radio for refusing to acknowledge the rights of or pay compensation to the music publishers and songwriters who own songs being distributed through XM’s digital download service. The publishers’ suit, filed earlier in federal court in New York, alleges that XM engages in massive copyright infringement through its illegal subscription digital music download service known as “XM + MP3.” The suit was filed after months of discussions between NMPA and XM regarding the satellite radio company’s obligation to compensate creators fairly for the songs it distributes. The music publishers allege in the lawsuit that XM operates an unlawful download service that delivers perfect digital copies of copyrighted recordings to its subscribers. The XM + MP3 service allows users to record and store individual songs on portable music players at the touch of a button, creating extensive permanent libraries for so long as the user remains an XM subscriber. The service also allows subscribers to create personal playlists. XM. e National Music Publishers’ Association is a trade association representing more than 600 American music publishers. http://www.ag-ip-news.com/GetArticle.asp?Art_ID=4181&lang=en

In Canada the Canadian Copyright Board on Friday approved a tariff for online music services.

The federal agency ruled that in the case of permanent downloads, 7.9 per cent of the price of a song must go back to copyright holders. For downloads that require a web subscription, and for on-demand streaming music, the rates are 5.9 and 4.6 per cent of the cost of a month's subscription, respectively. The move ends two years of debate over what qualifies as fair compensation. In 2004, the Canadian Musical Reproduction Rights Agency and the Societe du droit de reproduction des auteurs, two groups representing copyright owners, asked the board to look into what would be fair compensation for the legal, online copying of music.

http://www.canada.com/topics/technology/news/gizmos/story.html?id=cd0256f7-d2c7-40b4-a6f9-12550b02995d&k=59883

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COPYRIGHT
Video games, television
Court of Appeal confirms the decision of Kitchen J in Nova Productions Ltd v Mazooma Games Ltd; Nova Productions Ltd v Bell Fruit Games Ltd[2007] EWCA Civ 219

This action revolves around claims by Nova that the defendants copied elements of arcade games it had designed, made and sold. Nova did not accuse any of the defendants of copying the software code of 'Pocket Money', but said the defendants infringed their copyright by copying their game's screen appearance (the 'outputs'). When asked to identify each particular similarity relied upon and to say how it was the result of an infringing act, Nova served a schedule of similarities and marked up screen shots to identify the relevant features. Kitchin J dismissed all Nova's claims on the basis that there had been no reproduction of any of its work:

* There was no substantial taking of any artistic skill and effort, program code or program architecture and the mere fact that there were similarities in the game's outputs did not raise an implication that there were similarities in the software.

* What had been taken was a combination of a limited number of general ideas that were reflected in the output of the program, but those ideas did not form a substantial part of Nova's computer program itself.

* The visual appearance and the rules of the games were all very different. Even though there were some similarities, each of the games looked and played in a very different way.

Nova’s appeal (after a failed reference to the European Court of Justice) was that:

* although there was no copying of individual frames of graphics, there was a series of graphics showing the movement of the cue and ball that had copied an essential artistic element of its game;

* Kitchin J had misdirected himself on what constituted a "substantial part" of the copyright work and that, having found there to have been some copying, he should have found that a substantial part of Nova's work had been taken;

* only ideas that were an "element" of the program were excluded from copyright protection by the Software Directive.

The Court of Appeal dismissed the appeal. In particular it ruled that

* "graphic work", for the purposes of protectable copyright subject-matter, was defined as including all the types of things specified in the Copyright, Designs and Patents Act 1988 s.4(2), all of which shared the common factor that they were static and non-moving: a series of drawings was a series of graphic works, not a single graphic work in itself and no extra copyright work or protection was created by a series.

* there was no general principle that, whenever copying was found to have occurred, it must follow that a substantial part of the copied work had been taken.

* the existence of coincident features in the copyright work and the alleged infringing work of small, unimportant details was a starting point indicating copying, but those details alone would not mean that there had been substantial copying and Kitchin J had not therefore misdirected himself on this point.

* the Software Directive was clear that, for computer programs as a whole (which included their preparatory design work), "ideas" were not protected. This conclusion was reinforced by TRIPs, which laid down a positive rule that copyright protection must not extend to ideas.

* the fact that the court was considering a computer program did not preclude a mere "idea" as to what the program should do from being excluded as having nothing to do with the nature of the work. This is because the nature of the work was that it was a computer program having all the necessary coding to function and the general idea was only faintly related to that. An idea consisting of a combination of ideas remained no more than an idea and was not thus capable of copyright protection.

* even though Nova's ideas inspired some aspects of the allegedly infringing games, those ideas were too general to amount to a substantial part of Nova's work.

* merely making a program that emulated another but which in no way involved copying the program code of any of the program's graphics was legitimate (applying Pumfrey J's decision in Navitaire Inc v Easyjet Airline Co Ltd ).

http://www.bailii.org/ew/cases/EWHC/Ch/2006/24.html (Kitchen J) and see Law Updates March 2006 (article by Tom Frederikse)

http://www.bailii.org/ew/cases/EWCA/Civ/2007/219.html (Court of Appeal)

This digest from the most excellent IPKat webblog at http://ipkitten.blogspot.com/2006/01/kerly-nova-spend-pocket-money-on-high.html

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COPYRIGHT
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Court of Appeal dismisses appeal in Baigent & Leigh v Random House Group Limited[ 2007] EWCA Civ 247

The Claimants in this case were two of the three authors of a book published in 1982, The HolyBlood and the Holy Grail (HBHG). The Defendant is the publisher in the UK of a book written by Dan Brown, the Da Vinci Code (DVC), first published in 2003. The Claimants' contention is that, in writing DVC, Mr Brown infringed their copyright by copying a substantial part of HBHG in the course of writing six chapters of DVC. The case came to trial over 11 days in February and March 2006 before Mr Justice Peter Smith. In his judgment, delivered on 7 April 2006, he dismissed the claim . The Court of Appeal have upheld that decision although the leading judgment of Lord Justice Lloyd was somewhat critical of the trial judge in places. The case reinforces the position in English law that copyright does not subsist in ideas; it protects the expression of ideas, not the ideas themselves. No clear principle is or could be laid down in the case law in order to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side. Where the material copied is found to be an expression then the court must look to see if a substantial part of the work has been copied in the infringing work (and these two tests are often interconnected). Here what was copied was the theme of the copyright work and on the facts of this case this was held not to be an infringement.

http://www.bailii.org/ew/cases/EWCA/Civ/2007/247.html