COPYRIGHTRadio, internet
US broadcasters fall silent for a day
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 sits as a magistrate in Cumbria, England.
We are interested in your views on the Law Updates resource. Please forward any comments to : musiclaw01@aol.com
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COPYRIGHT
Radio, internet
US broadcasters fall silent for a day
On June 26 th US online music broadcasters held what was dubbed the “Day of Silence” when they shut down their services to protest a hike in licensing fees that they say threatens their existence. The website for the online demonstration, SaveRadioNet.org encouraged visitors to contact their representatives in Congress in support of the “Internet Radio Equality Act”. In total
14,000 Web radio stations went off the air protesting the hefty increase in royalty rates that's scheduled to take effect July 15. The record label’s collection society, SoundExchange which collects digital royalties for labels and artists, successfully lobbied the Copyright Royalty Board this year to enact the higher, retroactive rates. This decision was upheld by the District of Columbia Court of Appeal who refused to stay the decision. Webcasters say the new rates, which require paying a flat fee per song instead of a percentage of their revenue, could bankrupt them. The new bill, H.R. 2060 or the so-called Internet Radio Equality Act, is pending in the U.S. House. It would scrap the Copyright Royalty Board's decision and allow Webcasters to continue paying royalties based on a percentage of their revenue. This is the second Day of Silence for Webcasters. In 2002, they went off the air, also to protest rates from the Copyright Royalty Board
http://www.usnews.com/blogs/news-desk/2007/6/26/online-music-goes-silent-to-weigh-in.html
Update by Dugie Standeford for Intellectual Property Watch:
The decision by the District of Columbia Court and subsequent moves to legislate in the matter led to a meeting between US webcasters and SoundExchange and this appears to have cooled some of the heat surrounding a 2 March decision by the US Copyright Royalty Board (CRB) setting new rates for Internet radio performances.
With the new rates scheduled to come into effect 15 July, the Digital Media Association (DiMA) said that it is prepared to accept an offer floated by SoundExchange at a roundtable with US House of Representatives Telecom and Internet Subcommittee Chairman Ed Markey (a Massachusetts Democrat). Under the agreement, the annual minimum statutory license fee for the 2006-2010 license term for commercial webcasters not covered by a “small webcaster” license is capped at $500 per channel subject to an annual cap of $50,000 per license, DiMA said. Webcasters have claimed the CRB’s 2 March decision would raise payments by as much as 1200 percent.
For its part, DiMA and its members agreed to revamp their statutory royalty reporting schemes to enable all webcasters to report uniformly so that royalties can be distributed more efficiently and accurately. Webcasters also said they would investigate the prevalence of “stream-ripping” - where Internet radio users turn performances into digital music libraries - as well as potential technologies record companies or webcasters might use to limit or end the activity.
SoundExchange expects large commercial webcasters such as Yahoo! and AOL to pay the new rates beginning 15 July, Executive Director John Simson said. The organisation has been talking with small and non-commercial webcasters about royalty rates and would continue to do so
See this full article at http://www.ip-watch.org/weblog/index.php?p=691&res=&res=1280&print=0
Webcasters Close in On Royalty Settlementhttp://www.hollywoodreporter.com/hr/content_display/business/news/e3i89e4f40c1678880c6e028d6c2bc8a0eb
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COPYRIGHT
Record labels, internet
As ALLOFMP3 finally goes ….. a ‘new’ site opens
AllofMP3, the music download website whose activities threatened to scupper Russia's entry into the World Trade Organisation (WTO), has been shut down. The site, Allofmp3.com has shut as the Kremlin sought to end criticism from the United States that Russia was failing to clamp down on music and video piracy and Russia promised to target other Russian sites that distributed copyright material illegally. However, an alternative site run by the same Moscow company has already emerged - mp3Sparks.com and owners MediaServices say it is legal under Russian law, using many of the same arguments advanced in support of allofmp3.com. Allofmp3.com insisted that it was a legitimate business because it paid royalties to a Russian organisation that collected fees for distribution to copyright holders. It argued that it was helping to prevent piracy by offering an alternative to free file-sharing sites. Western music companies refused to accept the fee, arguing that the Russian Multimedia and Internet Society had no right to represent their interests. The site had been under investigation for two years by the Russian Interior Ministry. A bigger blow was struck in January, when Visa and MasterCard told MediaServices that they would no longer process payments for allofmp3.com. The site had attracted 5.5 million subscribers buying songs for between 10 and 20 US cents each, compared with 99 cents at Apple’s American iTunes store and 79p in the UK. Most customers were in Russia, but it was estimated to be the second most popular download site in Britain after iTunes. It was set up in 2000 by six computer programmers, who initially developed the site for their personal use then built it into a business earning a reputed $30 million a year. The Mp3Sparks.com is virtually identical to the old site and claims to offer thousands of albums by popular artists for around 15 US cents per song. MediaServices said that the site was registered with the Russian Licensing Societies, which it claimed had the right under Russian law to "grant licences and to collect royalties for the use of music without necessarily obtaining permission from the copyright owners". The major labels strongly dispute this. However in related news, a Russian court has held that Visa and Mastercard’s earlier actions in cutting off credit cards payments to the Alltunes’ AllofMP3 service was illegal under Russian law. Visa and MasterCard blocked all payments due to the sites' alleged copyright infringement violating Russian contracts.
http://www.timesonline.co.uk/tol/news/world/europe/article2016297.ece
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COPYRIGHT
Internet
IFPI hails Court ruling that Belgian ISPs must filter illegal content
A court in Belgium has confirmed that an Internet Service Provider must take responsibility for stopping illegal file-sharing on its network. The ruling is the first of its kind in Europe and, since it implements EU legislation, it sets an important precedent in the fight against piracy internationally. The judgment is warmly welcomed by the international recording industry, which has been pressing for action by ISPs to curb piracy on their Networks. The judge said that ISPs have the technical means at their disposal to either block or filter copyright-infringing material on P2P networks and gave the ISP Scarlet (formerly Tiscali) six months to implement such measures. The judgment pointed in particular to the filtering technology developed by Audible Magic. It also referred to six other possible solutions to block the traffic of unlicensed music, which are highlighted in an experts’ report commissioned by the court. This is the first case in Europe that has examined in detail the technologies that are available to block or filter copyright-infringing traffic on file-sharing networks. The Belgian court was ruling on a case brought by the body representing authors and composers in Belgium, SABAM, against the ISP Tiscali. The IFPI estimates there were some 20 billion illegal files shared on P2P networks in 2006; about 20 times the number of legal music downloads . The decision will be appealed . www.ifpi.org
Tom Frederikse of Clintons adds:
A Belgian court has ordered an internet service provider to use filtering technology on its systems to root out copyright-infringing content. In SCRL Societe Belge Des Auteurs v SA Scarlet (No. 04/8975/A) the ISP Scarlet (formerly Tiscali) was found liable in 2004 for the unauthorised exchange of music files through its service and, in a judgment made available this week, the Belgian Court of First Instance has ordered Scarlet to put into place blocking and filtering mechanisms to stop its users sending or receiving music through peer-to-peer applications.
The Court had been understandably reluctant to enforce its 2004 injunction against Scarlet without knowing if an effective technical solution existed so it ordered an expert evaluation. The experts looked at various solutions – including the Audible Magic application “CopySense Network Appliance” – and found that there were affordable measures Scarlet could take to block P2P on its network without affecting other legitimate internet exchanges.
Scarlet now has six months to implement a suitable solution, which the Court said should cost no more than €0.50 per month per user and was therefore “not excessive”.
Aside from the slightly-uncomfortable notion of a court making technical and commercial evaluations of IT products, it is perhaps most surprising that a European court has ordered a telecoms provider to explore the information in its systems at all. The court apparently did not fully consider the “Mere Conduit” protections for ISPs (known in the US as “Safe Harbor”) though it took pains to distinguish this filtering and blocking order from any type of “surveillance” which would have been contrary to EU law.
This decision will be seen as a foothold for music companies in its fight against P2P file sharing, but most of the big questions – especially those regarding secondary liability, telecoms’ immunity and free speech – remain unanswered. IF Belgium has correctly implemented the underlying EU laws and this court has correctly interpreted those laws, and other EU countries have similar correct implementations, then this decision may be followed – though not as a precedent – elsewhere within the EU. This is, however, a big IF and, in any case, Scarlet may yet appeal the decision.
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COPYRIGHT
Technology
DRM debacle continues to claim scalps
Sony BMG is taking the company behind an ill-fated CD copy-protection fiasco to court in an attempt to stem some recourse from the legal backlash. Back in 2005, Sony BMG embarked on a DRM initiative utilising CD copy-protection software from The Amergence Group. The move was widely derided as the software was accused of installing spyware onto computers which left them open to viruses. Amergence Technologies, and its sales agent MediaMax Technology, how find themselves on the receiving end of a $12M writ which sees the major claiming damages over lawsuits it had to settle in relation to the flawed software. However the MediaMax technology on charge here is only one of two failed DRM attempts. The other is the now better know ‘Rootkit’ software developed by First4Internet's. The Amergence Group refutes the claims, laying the blame squarely at the other provider's feet.
From FiveEight Daily
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COPYRIGHT
Tecnology
Swiss implement MP3 levy
A court ruling in Switzerland will now mean consumers in the country will have to pay a tax on digital music devices such as iPods and MP3 players, as well as some types of audio/video recorders. The one-off tax ranges in price from SFr30-90 ($25-75): The Federal Court rejected consumer complaints about the tax which will be levied by Swiss collection society SUISA.
http://www.swissinfo.org/eng/front/detail/Judges_confirm_tax_on_digital_music_players.html?siteSect=105&sid=8013457&cKey=1184162841000
Canada is to implement an ‘iPod’ tax after a decision by the Copyright Board of Canada
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COPYRIGHT
Internet, record labels
Telecom data not available to copyright groups in civil action : Productores de Música de España v Telefónica de España SAU
Juliane Kokott, Advocate General to the European Court of Justice, has provided her opinion that groups representing music copyright owners should not be able to demand that telecommunications companies hand over the details of people they suspect of swapping illegal music downloads. The AG said that while it was necessary for such details to be revealed in criminal prosecutions, EU law does not compel telecom companies to make the same disclosures in civil cases. The opinion aims to help judges come to a final decision when they decide on legal questions put by a Spanish court looking at a complaint made by Spanish music copyright owners against Telefonica, Spain's largest Internet provider. Promusicae, a non-profit group of music producers, sued Telefonica for not handing over the names and addresses of internet users it believes are illegally swapping music online. The Advocate General agreed with Telefonica’s argument that EU law only allows them to share personal data for criminal prosecutions or matters of public security stating that it compatible with EU law for European countries to exclude communication of personal data in the context of a civil, as distinct from criminal, action.
http://business.timesonline.co.uk/tol/business/law/article2098359.ece
http://ipkitten.blogspot.com/2007/07/telefnica-gains-edge-in-promusicae.html
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LICENSING
Live event industry
George Michael gets Wembley over-run fine
George Michael has been fined £130,000 for overrunning the licence curfew at Wembley Stadium on June 9 th. The singer has had to pay £10,000 per minute for the over-run. Car parking fines generated the local authority another £36,000 (their second highest ever haul!).
http://www.nme.com/news/george-michael/29632
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LICENSING
Live event industry
Magistrates can attach conditions on appeal Crawley Borough Council v Attenborough [2006] EWHC 1278 (Admin) 171 JP 69
A Magistrates Court, sitting as a licensing appeals court from the decision of a local authority, may impose conditions in its decision when awarding a licence but those conditions must be clear and enforceable. Here a pub successfully challenged a local authority’s refusal to extend licence hours on noise grounds. The High Court held that the Magistrates Court has the power to make such order as to costs as it sees fit on appeal. See The Magistrate Volume 63 No 7
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LICENCING
Live event industry
Fudge bar overcomes West End blanket ban
A landmark licensing case has seen a London bar granted extended hours in the West End stress area. Fudge, just off London’s inconic Leicester Square, was granted a licence until 1am on Fridays and Saturdays, following an appeal to Westminster Magistrates Court. Westminster City Council operates the policy, similar to a cumulative impact policy, under the Licensing Act 2003, meaning that any application for a new licence or variation are usually rejected, unless there are “exceptional” circumstances. Under the terms of the policy, pubs and bar are limited to opening only during “core hours” – until 11.30pm on Fridays and Saturdays, 11pm Mondays to Thursdays and 10pm on Sundays. The decision is believed to be the first to over turn this policy. Among the reasons for magistrates granting the application were a low level of residents in the area and a voluntary reduction of the venue’s capacity. The bar had applied for extended hours during the week and a 2am licence for Fridays and Saturdays, but was eventually offered 1am. The Council added that the applicants had agreed to a number of conditions that addressed the underlying reasons for the Stress Area. The extended hours were granted on this basis as a recognised exception to policy. The Council highlighted the fact that there is private entertainment at the venue and the bar's overall capacity has been set for the first time. This is 110 persons (including staff) with a minimum of 70 seated places. Poppleston Allen acted for Fudge in the case. http://www.thepublican.com/story.asp?sectioncode=7&storycode=55940&c=1
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LICENSING
Live event industry
Small-scale concerts are being put at risk by new licensing laws, according to a government-backed group.
The Live Music Forum says that whilst the Licensing Act 2003 was broadly ‘neutral’ in its effect on live music, grass roots music has suffered because of increased bureaucracy and regulation and should be exempt from the new regulations. The Forum, led by Feargal Sharkey, also said that some councils are "unreasonable" when issuing licences. The laws came into effect in 2005, introducing a single licence covering entertainment and alcohol, aimed at easing restrictions on live music. The Forum, which was set up by the Department for Culture, Media and Sport, said on one occasion a brass band was told it could only perform religious songs if their performance was for charity. It was then asked to apply for a licence which would cost more than the funds it expected to raise. A pub landlady was told she required a variation in her licence to allow regular gatherings of a group of elderly men who sang folk songs together. The group has also recommended that acoustic performances should be exempt from licensing, that ‘incidental music’ - not the main attraction at a venue – be clarified and exempt and that venues holding less than 100 people be exempt. It added that local councils should set up performance spaces for musicians. Sharkey said: "The UK's live music scene is a massive success, but the government needs to do more to help grass roots musicians and particularly small venues. "We believe that a pub putting on an acoustic folk trio, for example, should not need a licence. That small acoustic gig does not impact on crime, disorder or public safety so should not fall under the remit of the licensing laws," he added. Sharkey told the BBC's Breakfast programme: "It's these little rooms in the back of little pubs that sustain the £6 billion business known as the music industry." Licensing minister Gerry Sutcliffe welcomed the "interesting and challenging" findings. He said: "We will now look at each of the recommendations, discuss with stakeholders and will respond fully in due course." The Forum, which was set up in 2004, said that the "vast majority" of local authorities had been "very helpful" in dealing with live music licences, but new regulations "lacked clarity". It cited some positive effects of the new rules, such as abolishing the separate fee for a music licence and the annual process of getting one renewed.
http://www.thestage.co.uk/news/newsstory.php/17334/sharkey-calls-for-changes-to-ambiguous
Lords to debate new guidelines which ‘clarify’ the Licencing Act and live music
http://www.thestage.co.uk/news/newsstory.php/17508/lib-dem-lord-forces-debate-on-live-music
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LICENSING
Live event industry
Cumbrian pubs and venues forced to operate illegally due to council delays
Pubs in Allerdale in North Cumbria have been forced to operate illegally because Allerdale Borough Council has failed to issue premises licences for licensed premises seemingly because of understaffing. Scores of pubs are believed to have been opening illegally for nearly two years because Under the Licensing Act 2003 pubs should have had their licences displayed behind the bar from November 24, 2005 – the first day of the Licensing Act. The council now say that it has authorised the recruitment of two members of staff for six months to shift the backlog and that “All private members’ clubs certificates have been issued, as have the biggest part of the premises licences for regulated entertainment (no alcohol), and most of the premises formerly holding off licences.” The British Beer & Pub Association added that the Council’s lack of action was inexcusable as it “it exposes licensees to threats of action because they don’t have a license,” and added that “given the expectations placed on our industry by local authorities, it’s only right that we set expectations on local authorities, and in this area they have fallen woefully short”
http://www.thepublican.com/story.asp?sectioncode=7&storycode=56247&c=1
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LICENSING
Live event industry
Figures show l that late night drinking changes lead to small rises in violence, injury and drink-driving but drink related injuries rise rapidly
Figures released by the Home Office as part of the British Crime Survey have provided statistics on the impact of round-the-clock licensing since its introduction in November 2005. The figures, based on reports from 30 police forces in England and Wales, showed 940,522 violent crimes (including woundings and assaults), harassments and cases of disorder and criminal damage were committed from 6pm to 6am in the year after pubs and clubs were allowed to open later. That is a negligible 0.7 per cent increase on the 933,701 recorded in the previous year. Whilst the Times reported that “ More than one million people were attacked by drunken thugs last year as the first official analysis of round-the-clock drinking revealed increasing public disorder in the early hours as Alcohol-fuelled violence rose in the first full year of relaxed licensing laws, with a particular jump in the hours after midnight as clubs and pubs stayed open later ” A Home Office official, said: "There was a lot of worry when we were changing the Licensing Act that we would be engulfed by mayhem and murder. We all know from our experience that has not happened." But there was a sharp increase in violence between 3am and 6am, suggesting some fights were happening later because pubs and clubs were not closing at 11pm, although the total number of attacks was still low. Gerry Sutcliffe, the newly appointed Licensing Minister, said “any increase in alcohol-related crime at any time of day is unwelcome but these statistics must be seen in context. Overall, serious incidents have fallen and been spread more evenly throughout the night.” However a simultaneously released study from St Thomas’ Hospital in London disclosed that alcohol-related visits to A&E departments had trebled since the licensing reforms and the British Crime Survey statistics showed that t he number of deaths by dangerous driving or while under the influence of drink or drugs reached its highest level for 30 years, increasing by 7 per cent over the year to 462.
http://www.timesonline.co.uk/tol/news/uk/crime/article2106658.ece
http://news.independent.co.uk/uk/crime/article2785456.ece
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LICENSING
Live event Industry
Brecon Jazz Festival mourns the loss of street gigs
The Brecon Jazz festival is really missing its outdoor street gigs which became impossible to stage because the town centre “isn’t licensable as a premises. About 10 events were cancelled in what looks like being an otherwise hugely successful event. Live UK Magazine issue 89
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COPYRIGHT
Internet, music publishing
UK Copyright Tribunal endorses online rate for songwriters
The UK Copyright Tribunal has returned its decision in relation to the rate paid to songwriters and composers when their music is used in online music services. The Tribunal has endorsed a settlement agreement negotiated in September 2006 between the MCPS-PRS Alliance and the majority of the online music industry. The Tribunal concluded that this agreement should be the basis for the template for online licensing in the future.
The royalty rate to composers, songwriters and music publishers when their works are exploited for online and mobile in the UK has been under scrutiny for the last two years. In June 2005, the MCPS-PRS Alliance was referred to the UK Copyright Tribunal by a consortium of music users. This was made up of: The BPI (representing over 300 record companies), The Digital Service Providers (AOL, Apple iTunes, MusicNet, Napster, RealNetworks, SonyCONNECT and Yahoo), and The Mobile Network Operators (O2, Orange, T-Mobile and Vodafone). In September 2006, the BPI withdrew from the Tribunal process by signing a settlement agreement with the Alliance which sees composers, songwriters and publishers receiving 8% of gross revenue (excluding VAT) when their music is made available for download, limited download or by on-demand streaming. A rate of 6.5% was negotiated for webcast services. Importantly the concept of minimum royalties was agreed for all services. This ensures that music creators receive payment for their work when it is used online in all cases, for example, where music is bundled with other products and services, offered free as an attraction for other products, or as a loss leader.
Four of the Digital Service Providers (iTunes, MusicNet, Napster and SonyCONNECT) and four UK mobile network operators (O2, Orange, T-Mobile and Vodafone) also agreed these rates. The Mobile Network Operators and iTunes sought additional clarity from the Tribunal on two discrete issues relating to how revenue is defined. However the Alliance was not able to reach a settlement with the remaining Digital Service Providers (AOL, Real and Yahoo) who continued with their reference to the Copyright Tribunal. Between September 2006 and January 2007, the Tribunal sat to hear the case brought by AOL, Real and Yahoo and to determine the remaining issues on the revenue definition brought by iTunes and the four mobile network operators
The Tribunal decision confirms that songwriters, composers and their publishers should receive 8% of gross revenues from online music service providers for on-demand services including downloads and subscription streaming services, 6.5% of revenues for interactive webcasting services and 5.75% for non-interactive webcasting. The difficult in finding a ‘royalty base’ (ie what actually constituted “Gross Revenues”) was also considered (with digital service providers keen to exclude revenue sources not directly linked with music content and the Tribunal decided that “no definition of Gross Revenue will perfectly balance the interests of all concerned” and therefore an “Independent Online Adjudicator” was recommended as a mechanism to resolve future disputes of what is and isn’t a revenue stream that can be levied. However the Tribunal decided revenues which attract the royalty should include at least: “in-stream advertising” and where “music actually offered” forms the sole content or predominant part (75%) of a page with advertising. In certain situations, small specific deductions from the Gross Revenue base (e.g. for the costs of obtaining the advertising) would be considered reasonable.
British Phonographic Industry Limited (and various online and mobile providers) v MCPS and PRS [CT84-90/05]
http://www.ipo.gov.uk/ctribunaldownloadingdecision.pdf
http://www.clintons.co.uk/news.php?NewsID=36.
for an analysis of this decision and the position the USA with web radio see the excellent article at http://technology.guardian.co.uk/weekly/story/0,,2129109,00.html#article_continue
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COPYRIGHT
Music publishing
Avril Lavigne faces new plagiarism claims
Following a lawsuit claiming Avril Lavigne stole a chunk of a 1979 Rubinoos’ song for her recent hit 'Girlfriend' which sold some 2.6 million copies worldwide, now some fans of Peaches are claiming Lavigne's song 'I Don't Have To Try', which appears on 'The Best Damn Thing', is a rip-off of the track 'I'm The Kind Bitch'. Lavigne, who responded angrily to The Rubinoos song stealing claim, is yet to respond to these new, more informal allegations. The Lavigne-Rubinoos action is stirring up widespread interest. YouTube videos depicting the connections between the two songs have received 1.4M views:
From CMU Daily see http://www.unlimitedmedia.co.uk
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COPYRIGHT
Music Publishing
James Blunt faces claim against songs
Ex British army officer turned international pop star James Blunt is facing a claim from a Los Angeles based record producer, Lukas Burton, who has said that he co-wrote a number of Blunt’s songs including “Goodbye My Lover”, “I Really Want You”, “Don’t Lose Yourself”, “No Bravery”, “Cry” and I “Don’t Believe”. All feature on Blunt’s 14 million selling ‘Back to Bedlam’ album. Royalty payments to Blunt as a songwriter have been suspended whilst a High Court action looms between Burton and Blunt and Blunt’s publisher, EMI Music Publishing. Blunt has made it clear his case is that he wrote the songs on his own, either whilst serving as a Guards officer in Kosovo in 1999 or before that at his own or his parent’s home.
The Times 28 July 2007
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COMPETITION
Record labels, film & TV
Does China discriminate against foreign copyrights?
The United States is seeking urgent consultations with China over China’s rules on music downloading and cinema rights that The US say discriminate against foreign sound recordings and films. Hollywood studios and U.S. Internet music providers such as Apple Inc.'s iTunes store could be among the groups that suffer from "less favorable distribution opportunities" for imported films and foreign suppliers of music recordings in China, which the U.S. cited in a World Trade Organization request in July. The main issue is that music from foreign sources needs to undergo content review before being distributed in China. Chinese music doesn't have to face that process and it is suggested that these reviews delay Chinese Internet providers and Chinese consumers from accessing foreign music. The same discrimination exists when Chinese consumers seek to download music onto mobile phones the US allege. The problem for American music providers is compounded by rules that prevent foreign companies from owning or investing in businesses that distribute music over the Internet. We are not quite sure about this one at Music Law Updates - whilst seen in the strict headlights of competition law that screening of foreign music may seem unfair, it seems a tad hypocritical of the US to take an anti-censorial / anti-regulatory role (Nipplegate anyone?) and why shouldn’t China or indeed any nation have at least some regard to matters other than business – and examine what may be seen as immoral, inappropriate or offensive lyrics or content in films – at least to the Chinese people. Certainly in Europe, cultural issues now being raised against the ‘pan-Europe’ open market philosophy so loved by the EC and more and more countries now feel it is important to take a stand against a homogenized ‘European’ culture – despite competition law!
http://www.iht.com/articles/ap/2007/07/18/business/EU-FIN-ECO-WTO-US-China.php
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COPYRIGHT
Record labels, internet
RIAA adds 23 more colleges to hit list but admits that law suits are not the only answer
The Recording Industry Association of America has added another 23 universities and colleges to its hit list of institutions whose students are targeted for pre-litigation settlement letters but has neatly avoided a row with Harvard by omitting the Ivy League University where Professor John Palfrey has been critical of the trade association’s actions. However the RIAA has acknowledged that lawsuits are “not the answer” but a “necessary part of the bigger equation”. A spokesman for the RIAA added that whilst lawsuits grabbed headlines “ what is the most important anti-piracy strategy is aggressive licensing and offering great legal alternatives. That is what our member companies obviously do and our job is to complement that, which is the most important thing to do to win over fans”. According to the latest statistics from the RIAA, there were over 7.8 million households in March 2007 in the U.S. that illegally downloaded music versus 6.9 million households in April 2003, when the litigation campaign began. Whilst litigation may seem to have had little effect it should be noted that broadband penetration in the U.S. has also more than doubled since 2003.
http://www.tgdaily.com/content/view/33022/120/
http://yro.slashdot.org/article.pl?sid=07/07/23/0417223
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COPYRIGHT
Record labels, film &TV
2 year sentence not excessive R v Blower (aka Robinson) [2007] EWCA Crim 1775
The Court of Appeal (Criminal Division) has upheld the custodial sentence of 14 months on each of three trade mark charges (to be served concurrently) which were handed down to a defendant who was twice caught in possession of counterfeit CDs and DVDS, playstation discs and copying equipment for burning CDS and DVDs. Pre-sentence report stated that Blower was someone who regularly committed offences of dishonesty when tempted to do so by receiving an opportunity for easy gain; he had nine previous convictions for 13 offences, including seven of theft, one of fraud and one against property. The offences included a number of handling offences, for one of which he had received a sentence of nine months' imprisonment. The Court of Appeal (Wilkie J and Stanley Burnton J) held that the sentence was not manifestly excessive and that the trial judges reduction in sentence of 25% for a guilty plea (which was not made at the first occasion) was proper.
From the IPKat
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TRADE MARK
Artists
Dykes on Bikes ride on in USA
The Court of Appeals for the Federal Circuit in the USA has held that an application to register the mark Dykes on Bikes as a trade mark by the San Francisco Women's Motorcycle Contingent cannot be barred from registration on mortality grounds. The application was made by a group of lesbian bikers who lead the annual San Francisco gay pride march, and was turned down twice by the US Patent Office. However the IPKat reports that the decision itself is very narrow as the mark itself was not considered. Opposition to the mark was brought by a Michael McDermott on the grounds that it is immoral or offensive who argued that by including the term 'dykes' was disparaging, and also that the mark was scandalous because it was associated with a pattern of illegal activity by the applicants
But the Court’s the decision is based on whether the opponent had standing to oppose the mark. According to the court's past case law, to have standing in opposition proceedings, a party must have (i) a real interest in the proceedings and (ii) reasonable basis for his belief that he would be damaged by registration. A previous finding that McDermott had a real interest went unopposed by the trade mark applicants, and so the case turned on whether he had a reasonable basis for his belief that he would be damaged by the registration. The Court found that he had no such basis for the simple reason that he was a man, and so was not 'implicated' by the term 'dykes'. Additionally, there was no evidence that others in a similar position to McDermott believed that they would be damaged by the mark.
http://ipkitten.blogspot.com/2007/07/dykes-on-bikes-opposition-fails-on.html
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TRADE MARK
Artists
Another US state legislates for ‘the real thing’
‘impostor’ bands who have no connection with original heritage bands now face $5,000 fines each time they pretend to be The Coasters, The Drifters or some other band they’re not. Florida is the latest state to draft the law, which has been pushed by Jon “Bowzer” Bauman, former frontman for ’60s rock revivalists Sha Na Na. Bauman who has been lobbying states for laws to prevent phonies and fakers from passing themselves off as authentic members of groups. Ten other states already have enacted the law. These fake bands mislead fans and steal income and glory from surviving members of legitimate bands, he said. “It’s heartbreaking for the people who made this music to be suffering this indignity at this point in their life when they should be recognized as pioneers.” Under the Florida law, musicians must meet strict criteria if they’re going to advertise or take the stage using the name of a famous band. The group must have at least one member from the original group and be legally entitled to that name. The law lets bands use names they already have trademarks for — even if they aren’t the original members — and it still lets tribute bands perform, as long as it’s clear that’s what they are.
http://www.news-press.com/apps/pbcs.dll/article?AID=/20070629/NEWS0120/70628095/1075
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CONTRACT
Live event industry, artists
ARTICLE LINK : US appeal court overturn Rod Stewart cancellation case: Rod Stewart’s agent, lawyer win appeal
by Susan Butler
The California Court of Appeals has overturned the decision of the Los Angeles Superior Court who awarded £$1.6 million in damages from the cancellation of Rod Stewart shows against Stewart’s agent and lawyer. However the appellate court affirmed that Stewart must re-pay $780,000 paid to him as deposits for a number of cancelled South American shows and $472,000 in legal fees to the promoters.
http://www.billboard.biz/bbbiz/content_display/industry/e3i9aaa6659e3c485e76d40847f87a5bf38
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© 2007, Ben Challis