COPYRIGHTAll areas
LINK: The Gower’s Review on intellectual property
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
We would like to wish all of our readers a Happy New Year!
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COPYRIGHT
All areas
LINK: The Gower’s Review on intellectual property
Link to the Gower’s Review Report on Intellectual Property which was published on the 6th December on the HMT website . http://www.hm-treasury.gov.uk/pre_budget_report/prebud_pbr06/other_docs/prebud_pbr06_odgowers.cfm
Statement by the IFPI’s Chairman John Kennedy in response to the leaked news that Gower’s says “don’t extend the term”
“If the Gowers Review has indeed decided not to recommend the equalisation of the Copyright Term then that is a big disappointment but not a complete surprise to the music industry. There have been rumours for a time – founded or unfounded – that Mr Gowers did not think it appropriate. However, this report is only a recommendation, and it is the government which will make the final decision. At the end of the day, it will be an interesting test of how future Labour governments will conduct business. The UK music industry has thrived over the years, producing great talent, paying taxes, generating employment and maximising overseas revenues. The music industry is facing tremendous challenges but even now the UK music industry punches above its weight on the international stage.
I have often asked on behalf of the UK music industry shouldn’t we have a government that each day when it comes to work, asks itself ‘What can we do for industry?’ Copyright equalisation is one of the few things the music industry has seriously asked the government for over the years. Now the Treasury has to decide whether or not it wants to support one of its successful industries. If the UK government decides not to support copyright equalisation then the music industry will have to continue its campaign in Europe. There the signs are encouraging but there is no doubt that there will be raised eyebrows and the question will be asked ‘Why should Europe help the music industry when the government of the most important music market in Europe and the government of EMI has decided not to?’ UK and European governments give speech after speech talking of the importance of the knowledge economy. A decision not to equalise the Copyright Term would confirm that there is no real belief in these words. We have let our manufacturing industry slip away. Will we now show the same lack of support for our creative industries?”
www.ifpi.org and see http://news.bbc.co.uk/2/hi/entertainment/6186436.stm
And see the article Extending the Term on this website (Articles)
For general comment on the Gower’s Review see: http://www.theregister.co.uk/2006/12/06/gowers_review_brief/
And the ever informative out-law site from Pinsent Mason at: http://www.out-law.com/page-7558
And see http://www.mondaq.com/article.asp?articleid=44884&email_access=on (CMS Cameron McKenna)
The artists view? See: http://www.clevelandleader.com/node/847
See also Brown promises an extra £5 million to fight piracy
http://politics.guardian.co.uk/arts/story/0,,1966206,00.html
Some quick snippets from the wonderful IPKat blog (http://ipkitten.blogspot.com/2006/12/gowers-has-landed-part-1.html)
Copyright
* Confirming the heavy leak of recent weeks, there is no proposal to extend the term of copyright protection for sound recordings from its existing term of 50 years [IPKat comment: an initiative to extend term would be unlikely to carry weight in the European Union unless someone could persuade the Commission that it was their own idea, driven by (i) the purest of economic justifications or (ii) the need to beef up IP protection in the fight against piracy].
* Private copying should be permitted [IPKat comment: this looks a bit like a blanket defence rather than a specific one that fulfils the three-fold Berne Convention test - does this mean that if you can't realistically stop it, you should legalise it? If so, what about cannabis, parking on yellow lines and exceeding the speed limit?].
* Directive 2001/29 on copyright in the information society should be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test [IPKat comment: let's hope so. Some of us have been relying on this exception for years ...].
* Introduction of a defence of parody or pastiche by 2008 [IPKat comment: long overdue! Spain and some other countries have long taken a robust view of such works. Is their sense of humour better than ours?].
* Provision should be made for orphan works, i.e. those whose authors and/or copyright owners have become untraceable [IPKat comment: this is already the subject of very serious and constructive debate in the US. Simply taking a chance and using a work in the hope you won't be sued isn't enough].
Trade marks
* Fast-track trade marks for small businesses [IPKat comment: is this likely to make a real difference? You can trade surprisingly well even without a trade mark - and cloggingly slow oppositions from both small and big businesses are inevitable. Merpel says, but a registered mark offers some protection against an infringement action and is also something you can mortgage
http://ipkitten.blogspot.com/2006/12/gowers-has-landed-part-1.html
The excellent CMU Daily had this to say:
As expected, former Financial Times editor Andrew Gowers yesterday formally recommended to the government that the recording copyright here in our United Kingdom (and, by association, across Europe, this is all tied to our intellectual property commitments to the European Union) should remain at 50 years, and should not be extended to 95 years to bring it in line with
the US, as the record companies had been campaigning for. Gower recommends that "the European Commission does not change the status quo and retains the 50 year term of copyright protection for sound recordings and related performers' rights".
Gowers reached the conclusion in his much previously reported government commissioned review of the UK's intellectual property laws. Of course government ministers are not obligated to follow all (or any) of Gowers' recommendations, so a proactive and public lobbying campaign by the music industry, already launched last week when rumours of Gowers' conclusions first circulated, continued yesterday with key industry organizations calling on politicians to extend the recorded copyright anyway. Of course, even if they do go with Gowers' recommendations (which early indications suggest they will), the industry will continue to lobby for the extension at
both a UK and European level, but record companies had hoped to secure the extension in the latest IP law review because the fifty year copyright is about to expire on a raft of lucrative UK rock n roll recordings.
Elsewhere in his report, Gower also recommended that new copyright laws should allow consumers the 'private copying rights' enjoyed by consumers in many other countries, which allow people to legally make copies of music they have bought for personal use (eg transferring music from CD to MP3 player, or making a second CD copy for use in the car). Such rights would be "strictly limited", but would remove a copyright restriction which has been criticised by many as a foolish law given that nearly every consumer disobeys it and no copyright owners would ever try to enforce it. The BPI itself has admitted that record labels would never try to protect their
right to stop consumers making limited private copies, though some in the industry advocate a system whereby labels licence purchasers of music the right to make private copies, rather than the actual change in the law that Gowers is proposing. Others in the industry will also be disappointed that Gowers does not suggest a private copying levy system like that which
operates in some other countries where private copying rights exist, a levy that is charged on devices used for making private copies - tapes, CDRs and, sometimes, MP3 players - which is then passed back to the music community.
Where the record labels will agree with Gowers, however, is in his tough talking regarding piracy, and especially online piracy. The report says that piracy and counterfeiting are probably the biggest challenge facing the "intellectual property system", estimating that 20% of the entertainments industry's potential turnover was lost to illegal copying. It also suggests
that online piracy should be taken as seriously as that involving physical product and therefore piracy penalities for people who sell pirated versions of music and film over the net should be on par with those for people who sell bootleg CDs and DVDs. Currently the maximum sentence in the UK for the former is two years, while for the latter it is ten. Gowers also suggests that Trading Standards Officers who currently only deal with physical piracy should also have a remit to investigate online pirates.
While it will take some time for the government to now assess Gowers' recommendations and to translate them into legislation proposals for parliament, that Gordon Brown chap, who commissioned the report, said in his budget statement yesterday that he would immediately back a greater role for Trading Standards Officers in the fight against content piracy, pledging an
extra £5 million in government money to fund extra work in the area.
The BPI’s response to the Gower’s Review was this:
"The BPI believes that extending the copyright term from 50 to 95 years would have sent an
unequivocal sign to the international community that the UK values copyright and end the competitive disadvantage that British record companies face in comparison with their US counterparts. Copyright extension would also benefit lesser known artists who have helped establish the British music industry as one of the most creative and dynamic in the world, and also enable the British consumer to benefit from continued investment in new music and artists. Nevertheless, the BPI is pleased that Gowers has recognised the importance of the British music industry by choosing to recommend stronger enforcement measures against illegal downloads of music". BPI boss Peter Jamieson added: "Overall we are encouraged by Mr Gowers'
support for raising the profile and enforcement of intellectual property and we look forward to working closely with the government on this. Stealing music is effectively stealing the future of British musicians and the people who invest in them".
On the extension issue he added: "We will continue to make the case to the UK government for term extension. As Mr Gowers says, the decision on extension is ultimately for the European Commission and we will be putting our case vigorously when it reviews the relevant directive next year. Gowers commissioned Cambridge economic research to argue the case against term
extension; but this analysis completely fails to address the central argument of discrimination against sound recording copyright inherent in the current system."
AIM (the Association of Independent Music, representing independent UK record labels ) made this response:
AIM notes the recommendations set out in theGowers Intellectual Property Review published today, and regards them as a noteworthy contribution to the continuing debate about the role and future of the creative industries in Great Britain. Copyright is, and will remain, vitally important to those who rely on it for their living. It is equally important to the Government.
However, AIM and its members are very disappointed by the two key recommendations relating to issues vital to the UK music industry, and can only reject these firmly.
On creating an exception in copyright law for Private Copying :
This recognises, and appears to deal with, the realities of private copying - a universally assumed right, irrespective of the industry’s (some would say) aggressive stance against individuals identified to be serious uploaders of copyrighted music. But, whilst appearing to satisfy AIM’s urge to be pragmatic, such an exception applied without any reciprocal benefit to the creator and copyright owner is taking pragmatism to the point of capitulation, and falls drastically short of creating the progressive copyright framework needed in the digital age. By tidying up a small part of the copyright law, we believe Gowers may well be opening the floodgates to uncontrolled and unstoppable private copying and sharing from person to person, as well as format to format. Once owned, however acquired, music will be passed on freely.
It ignores the principle of granting a concession to an exclusive right in return for some kind of remuneration – a principle long served in much of Europe by levies on blank recording hardware and software. The fact that these levies, across the board, may be judged to be working imperfectly and arguably may require some reform, rationalisation (possibly even replacement by some system which fulfils the objective more efficiently or imaginatively) does not detract from the essential justice of their existence. Therefore an unremunerated exception for Private Copying will exacerbate the problems facing the creative industries in the digital age. And it ducks the real issue of how to remunerate creators for mass digital private copying of their work. It may well harm creators’ further in terms of bolstering the widespread public perception that all music should be free – thereby hampering and/or rendering impotent all industry attempts to establish a legitimate market structure for online distribution and paid-for downloads.
AIM has initiated and, with British Music Rights, is leading a pan-industry think tank to examine a copyright concept currently called Value Recognition. This assumes that the private copying and sharing of music by consumers is not only inevitable, it is desirable, provided the industry can establish appropriate value for the use of their copyrights with the service providers. This would allow different usages to achieve different values according to the services offered. It does not require the government to impose levies. Commercial licenses in the open market will be the basis of agreement with service providers. Failure to strike the right commercial balance between licensee and licensor can be referred to the Copyright Tribunal, as exists presently with large and small commercial operators for some usage types.
More on the question of Value Recognition can be found in the New Statesman publication Copyright Reform in the Digital Age published 18 September 2006 and on this website (see Music Law Updates Archives).
On denying owners of copyright in recorded music an extension of term of protection
AIM notes with disappointment that Mr. Gowers has not made a recommendation to extend the current copyright term. Copyright extension is a complex issue. There are pros and cons to extension, but after much debate, AIM’s view is that parity between the USA and writers and composers is only just, fair and reasonable, and any other arrangement represents discrimination against the performers who bring the music to life. AIM believes that any copyright extension should be married to the creation of a public fund for creativity. This fund could be used to support the digitisation, restoration and preservation of the nation’s National Sound Archive, held at The British Library. The fund would be created by a charge on PPL income earned on the extended works. AIM believes in the ‘Use It or Lose It’ principle, and recommends that the artist is able to release his work if the copyright owner chooses not to make it available.
Both are major issues, and AIM did not expect Gowers to have found a complete solution within nine months. The seemingly simplistic judgment behind these two recommendations seems to point to AIM’s cautious lack of high expectations being well founded. The Gower’s Review is patently not conclusive in its reasoning, its element of issue-avoidance or its wholly negative recommendations in terms of copyright extension and the creation of a private copy exception.
AIM believes strongly that this Report can and must only be seen as the starting point for a historic, now urgent, debate - leading to positive, future-proof decisions which benefit as many constituencies as possible. The real debate will need to hear currently-developing new thinking from all industry stakeholders, who are engaged in unprecedented levels of collaboration in considering the future of creators, and producers’ rights in the digital age. www.musicindie.com
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COPYRIGHT
All areas
New Zealand copyright bill reaches parliament
New Zealand’s Copyright (New Technologies and Performers' Rights) Amendment Bill which is awaiting its first reading in Parliament, puts a maximum penalty of a $150,000 fine and five years in prison for anyone caught selling devices or publishing information which could be used to circumvent technology used to protect digital copyright. The current Copyright Act bans this but has no criminal penalties. However the new bill is not without critics and Colin Jackson, president of non-profit society InternetNZ, calls the anti-circumvention clauses a "toxic provision" and warns they could be used to "suppress all kinds of legitimate valuable work and speech". The Copyright Amendment Bill also stops people from removing information from files, such as terms and conditions of use or who owns the copyright. The Bill does allows people to crack digital rights for personal use, and libraries, archives and educational institutions can also crack codes provided this is to correct software errors, make software interoperable or to do encryption research. The bill would allow format shifting - converting CDs to MP3s, for example and consumers would be able to make one copy of a song they own for personal use for each device they own – although this can be overridden by contract provisions – for example if a music download service banned format-shifting in its terms. Format shifting video files - from DVD to Dvix, for example - would still be illegal, as would format-shifting audio tracks to sell or give to others. Under the bill, an Internet service provider isn't liable for material posted by its users unless it has reason to believe it infringes copyright and fails to remove infringing material. ISPs are allowed to cache pages. This makes ISPs subject to the same take-down notices as their US counterparts (which tend to favour copyright owners as ISP’s err on the side of caution and remove almost anything which is alleged to offend or defame.
http://www.stuff.co.nz/stuff/print/0,1478,3894864a28,00.html
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COMPETITION
Live event industry
Hamsard 2786 Ltd / Academy Music Holdings Ltd
The Competition Commission (CC) has provisionally decided that the proposed acquisition of a controlling interest in Academy Music Holdings Limited (Academy) by Hamsard 2786 Limited (Hamsard) would lead to a loss of competition in relation to certain live music venues in London. Hamsard is jointly controlled by Live Nation (Music) UK Ltd (Live Nation) and Gaiety Investments Ltd. Through its ownership of Mean Fiddler Music Group Ltd, Hamsard operates live music venues in London, including the Astoriaand the Forum. It also has a management contract for the Wembley Arena. Academy owns the Shepherd’s Bush Empire (SBE), and the Brixton Academy as well as a number of other venues in London and elsewhere. Live Nation owns the Hammersmith Apollo, and a number of theatres in London. It also owns venues (mostly theatres) in 20 other cities in the UK. The Competition Commission Inquiry Group has concluded that the acquisition is expected to result in a substantial lessening of competition. Inquiry Group Chairman, Diana Guy , said: The extent to which different live music venues provide alternatives for artists, agents and promoters depends on a number of factors, including capacity, ambience and the type of events generally held there. On this basis, we found that the Brixton Academy and the Hammersmith Apollo are the closest alternatives to each other, and similarly for the SBE and the Astoria, with the Forum also acting as a significant substitute for the SBE. Under the planned acquisition, these five venues would all come under common control, removing the existing competition between them. We expect that this would lead to higher venue rentals as well as some loss of service quality. Although booking agents, particularly those who represent a substantial roster of artists, may at present be in a relatively strong bargaining position, this depends in part on their having a choice of venues into which to put their artists.
LINK – the Competition Commission’s provisional report into the UK live music industry
http://www.competition-commission.org.uk./inquiries/ref2006/hamsard2786/provisional_findings.htm
http://www.competition-commission.org.uk./inquiries/ref2006/hamsard2786/pdf/prov_find_ab.pdf
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COMPETITION
Record labels
EC to investigate Universal – BMG music publishing tie up
Perhaps unsurprisingly in light of the comments by the European Court of Justice when they annulled the European Commission's approval of the Sony-BMG record label merger, the European Commission has extended its investigation into Universal's $2.2bn (£1.12bn) acquisition of BMG's music publishing business by up to 90 working days (to April 27th 2007). The combined Universal Music / BMG Music would have an appoximate 22% of the music publishing market. Both BMG and Universal Music currently have 11% market shares, behind EMI Music's 20% share and Warner's 15% share but ahread of and Sony Music (7%). The regulator wants more time to consider whether the deal will undermine competition. The inquiry could last up to five months. In a statement Universal said that "although we understand why, in the current environment, the European Commission has sought more time for its review, we believe, as we have always done, that the merger will be approved" adding that Universal were looking "forward to working with the Commission over the next few months to complete the process. The original Sony-BMG ECJ review was due to a law suit from the European trade association IMPALA which represents independent labels and IMPALA has promised to battle the Universal takeover effort just as fiercely. IMPALA chairman and head of the Beggars Group, Martin Mills, said the issue for the Universal takeover was one of market access. "One of our main concerns is the ability of the majors to leverage excessive market strength in recording and publishing as well as the crucial online market," he said. "We have also asked the commission to implement the Sony-BMG judgment as a matter of urgency. These mergers are bad news for artists and music." The new investigation again casts doubts of where EMI might be going - recent gossip has been that private equity group Permira were interested in the UK based major - but talk of a Warner-EMI merger/takeover is ongoing.
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COMPETITION
Record labels, internet
EMI and UMG settle on Napster
EMI Music and the Universal Music Group announced yesterday that they have reached a conditional settlement with investment firm Hummer Winblad over its $13 million investment in the late nineties in the original Napster. The settlement is conditional on trial Judge Marilyn Patel revoking her order against the record labels to produce certain documents which Humer Winblad had originally said would show that the label’s original moves to develop their own download websites were anti-competitive. Hummer Winblad had always defended to label’s claim saying that their funding was to develop a new legitimate Napster but clearly the Supreme Court judgment in MGM v Grokster would have been worrying the investment firm. Less obvious is why the labels wanted to settle unless the documents ordered to be produced by Judge Patel (using criminal law exceptions to privilege) really are that damning. There have long been suggestions that the record label’s Musicnet and PressPlay opetrations were set up to prevent the development of a competitive digital market (although with iTune’s dominance this clearly failed): Limewire recently used the allegation as a defence to actions by the RIAA.
MGM v Grokster see Law Updates August 2006 04-480 27th June 2005
Limewire see Law Updates November 2006
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COPYRIGHT
Internet, music publishing
US mechanical rights agency withdraws streaming licence from Musicnet – but do they actually need it?
Billboard has reported that the Harry Fox Agency, the US's largest mechanical rights agency, has told digital music service provider MusicNet that it is withdrawing its proposed licence for 'interactive streams' because of a potential industry-wide dispute as to what kinds of licence are
required on such services. The story highlights the legal arguments about what type of distribution (of content) a stream is – is it a ‘sale’ or a rental’ to the user - so administered as a mechanical right (eg by HFA in the US or the MCPS in the UK) or is it a ‘broadcast’ or transmission, in effect a perfoming right. The same confusion appears to apply to video on demand where the exact nature of the service is, in legal theory, an equally grey area.
HFA have been renegotiating their licence agreement with MusicNet ever since the digital music company was acquired by investment firm Baker Capital in April 2005, at which point HFA claimed MusicNet's existing licence, which was based on a 2001 agreement between the royalties agency and the Recording Industry Association of America (MusicNet was originally co-owned by three of the major record companies), was no longer valid. Those negotiations were thought to be reaching a conclusion until the new setback, which has seemingly been caused by the wider discussions regarding mechanical rights and streamed music. Many in the digital music space argue that streamed music should be fully covered by performing rights licences (which are provided by the likes of BMI and ASCAP in the US and the PRS in the UK), and that there shouldn't be a need to acquire a mechanical rights licence too. Clearly download sales attract a mechanical licence because they are in effect a sale of a copy – but streaming has been held to be analogous to broadcasting. Needless to say, organisations like HFA don't agree. They say a mechanical right is required because, technically speaking, a 'copy' of their members' music is made when music is streaming in the same way as when a download or physical CD is sold. That debate is due to go before the US Copyright Royalty Board, and the DiMA, the industry association which represents MusicNet and other digital companies, has declined to suggest a figure for the mechanical royalty on streamed music, raising speculation they plan to dispute that such a royalty is due at all. With that in mind, HFA say they are unwilling to enter into a new deal with MusicNet, though the specific reasons as to why they have reached that conclusion is unclear. It is also unclear what the decision means for MusicNet's interactive streaming services which, with active negotiations on hold, could be said to be unlicensed. Nevertheless, MusicNet remain optimistic that their ongoing licence negotiations with HFA will still be successful.
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COPYRIGHT
Technology, internet
ARTICLE LINK Electronics makers furious as EU stalls plan to end levies on iPods and discs
The International Herald Tribune reports on the fight between copyright owners and technology manufacturers over whether to scrap, hold or increase levies on items such as iPods and blank discs.
http://www.iht.com/articles/ap/2006/12/13/business/EU_FIN_EU_Copyright_Levies.php
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MEDIA
Internet, broadcasting
China impose tight rules for digital music distribution
The Chinese government is set to impose new laws on digital music. The new measures will mean that all music products and music service operators will be required to obtain a central license from the Ministry of Culture. “ The "Guidelines on the Development and Management of Network Music" have the stated purpose of preventing problems, such as poor quality, pirated uploads and downloads, and content that "offends" ethnic groups or "affects social stability". They will also ban the creation of 'network entertainment firms' funded by foreign investors and will see the government increase control over blogs and social networking sites. Whilst the new laws will primarily govern piracy in the internet and mobile space, they are also likely to have severe consequences for foreign companies looking to capitalise on the growth of digital music, especially in the mobile space.
www.chinatechnews.com
english.people.com.cn
http://news.xinhuanet.com/english/2006-12/17/content_5499019.htm
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COPYRIGHT
Broadcasting
China needs to develop mechanisms to collect broadcast royalties
Chinese radio and TV stations are expected to pay royalties on the music they broadcast from next year, when a set of fee collection methods and standards will be officially promulgated. The
“methods and standards” are being drawn up by the Office of Legislative Affairs of the State Council according to a statement from the National Copyright Administration, who refused to be named. In 2001, the Chinese government amended its copyright law, requiring radio and TV stations to pay fees to copyright holders for playing their recordings unless they have reached other agreements on fees. However, specific methods and standards are yet to be set out and
the Music Copyright Society of China had raised a motion to the legislative National People's Congress (NPC) urging the process be pushed forward.
http://news.xinhuanet.com/english/2006-12/18/content_5503602.htm
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COPYRIGHT
Internet
Liability for links site for operator and ISP host upheld in Australia
A Federal Judge has said Google could be in breach of Australia's Copyright Act because of its web links to unauthorised copies of copyright material. The statement that Google’s position was ‘untested’ by Justice Catherine Branson came as a full bench of the Federal Court upheld a finding that Australian website operator Stephen Cooper was liable for "authorising copyright infringement" on his (now defunct) mp3s4free.net. Cooper had argued that his website which provided links to illegal download sites and services was analogous to that run by Google and was therefore lawful. Cooper had noted Google's victory in a US court case this year against pornography publisher Perfect 10, in which Google's linking to copyright material was said to be legal "fair use". In a further legal development, the full bench of the Federal Court also found that the internet service provider that hosted the website was liable for authorising copyright infringement. The internet service provider, E-Talk Communications, did not operate the website, but Justice Branson noted that (a) E-Talk was aware of the copyright problems arising from the website and (b ) E-Talk took no steps to prevent copyright infringements from arising. Justice Branson noted, "Rather than withdrawing hosting of Mr Cooper's website, or otherwise placing pressure on Mr Cooper to stop his website being used for the predominant purpose of copyright infringements, E-Talk sought to achieve a commercial advantage from advertising on Mr Cooper's website." Justices Robert French and Susan Kenny issued judgments in broad agreement with Justice Branson's. Damages against Cooper and E-Talk are yet to be assessed.
www.theage.com.au and see Music Law Updates August 2005 for the original ruling (Justice Brian Tamberli). In the USA see Field v Google and the ‘Perfect 10’ case both Law Updates March 2006. See also MGM v Grokster (US) and see Blunt v Tilly (liability of ISPs in the UK).
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COPYRIGHT / DEFAMATION
Internet
ARTICLE LINK – US Web site providers can take a deep breath!
The California Supreme Court has ruled that ISP’s are not legally responsible for content posted by third parties on their sites ( Barrett v Rosenthal ). Article by E J Sinrod at http://news.com.com/How+Web+providers+dodged+a+big+legal+bullet/2010-1030_3-6144464.html
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COPYRIGHT
Live event industry
PPL victory over unlicensed pub
A Burnley publican has been banned from playing music and ordered to pay costs of £1,500 after failing to take out a licence with Phonographic Performance Limited (PPL) to play recorded music. Pub clubs and venues which pay recorded music need both the usual PRS licence (for playing ‘songs’) and the PPL licence for the sound recordings they use. Plane Treet Hotel Proprietor Neil Cook, who was not present or represented in court, was warned by Mr Justice Briggs that he faced a fined of up to £10,000 if he played any music before bringing his licence up to date
http://www.burnleycitizen.co.uk/display.var.1079506.0.music_ban_for_pub_after_licence_breach.php
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TRADE MARK / DOMAIN NAMES
Artists
ARTICLE LINK: Two home wins for Wayne Rooney
By Sally Dunston, Bristows
Two recent decisions by WIPO and Nominet on the domain names www.wayneroony.com and www.waynerooney.co.uk are reviewed and compared. See November Law Updates for more.
http://www.mondaq.com/article.asp?articleid=44796&email_access=on
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TRADE MARK /IMAGE RIGHTS
Artists
Knievel takes exception to Kanyevel
Motorcycle stuntman Evel Knievel is suing Kayne West for trade mark infringement over the latter’s "Evel Kanyevel" character who is featured in the ‘Touch The Sky’ promo video. West’s character is dressed in a jumpsuit similar to that which Knievel is famous for wearing recreates a stunt similar to one performed by Knievel in the 70s. Knievel, who has trade marks over his name and image, argues that the video is "directly counter to Evel Knievel's long-established public persona, utterly inconsistent with his toy products and appeal to children, and harms the reputation of the Evel Knievel trademark and the Evel Knievel costume."
You cans see what our friends at the IPKat say http://ipkitten.blogspot.com/2006/12/kayne-he-do-it.html
And see http://www.washingtonpost.com/wp-dyn/content/article/2006/12/12/AR2006121201219.html
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TRADE MARK / IMAGE RIGHTS
Artists
The Last Emperor’s image rights cannot be owned
The brother of the last Emperor of China, Aisin Giorro Pu yi, has lost a claim to protect his late brother’s image rights. Jin Youhzi (originally Aisin Giorro Pu Ren, now aged 88) filed the suit in Bejing saying that an official exhibition in the Forbidden City on his brothers life who ruled China from boyhood till his forced abdication in 1911 “violated the image rights of the deceased and hurt Pu Yi’s survivors”. The exhibition was in the former imperial palace of the Ming and Qing dynasties. Jin's case which asked for the exhibition's closure, the payment of legal costs and apologies by organizers to be printed in five national newspapers was first rejected on July 14 by the Beijing Dongcheng District People's Court before the appeal went to Beijing No. 2 Intermediate People's Court. The appellate court found against the claimant saying that Pu Yi was a public figure whose life was closely connected with China’s history and these rights were in the public domain.
http://www.china.org.cn/english/culture/192106.htm
http://newsinfo.inquirer.net/breakingnews/world/view_article.php?article_id=37650
http://english.people.com.cn/200612/11/text20061211_331143.html
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PRIVACY
Artists
As a ‘famous sportsman’ has his right to privacy upheld, the Court of Appeal confirm a right of privacy in Niema Ash v Loreena McKennitt and Prince Charles keeps his journals private.
Both these cases involved Mr Justice Eady and in the first case, simply known as CC v AB, he had to decide whether or not to allow injunctive relief to prevent a certain ‘AB’ spilling the beans about sportsman CC’s adulterous affair with AB’s wife (N). Once AB knew about the fling he decided to go public both for revenge on and of course to get some money. CC sued for interim injunctive relief to stop AB spilling the beans on the basis that any such communication would either be a breach of confidence or harassment under the Protection from Harassment Act 1997 (AB had allegedly made a number of calls to CC and this matter was not resisted). The article 8 right to privacy under the Human Rights Act 1998 was also argued (against the context of the Article 10 rights to a freedom of expression). AB argued that an adulterer (ie CC) could never prevent the release of information about an adulterous affair. Eady J did not agree with this final point and said that there could be no blanket rule that an adulterer could never restrain the publication of matters relating to his adulterous relationship and even an adulterous relationship might attract a legitimate expectation of privacy. That being so, there was no rule which automatically exempted a 'wronged' husband from being gagged - even though his right to free speech might, on the right facts, be given priority. Both CC's and N's privacy rights under ECHR Article 8 had to be taken into account. This being so, on the facts of the case an injunction restraining AB from communicating, directly or indirectly, with the media or on the internet in relation to the subject of the former relationship with N was appropriate (effective immediately until review in February 2007). CC v AB [2006] EWHC 3083 (QB)
McKinnit involves folk singer Loreena McKinnit whose new age celtic music has sold more than 13 million albums worldwide. The case concerns the publication in 2005 of a book "Travels with Loreena McKennitt: My life as a Friend" written by Ash, who was formerly a close friend of Ms McKennitt. Ash had also worked for McKinnit. The Court of Appeal dismissed an appeal against the decision of Mr Justice Eady that Loreena McKennitt's former friend Niema Ash could not make public details of privacy-conscious McKennitt's personal life in a book written by Ash. Eady J had awarded £5000 in damages and restricted the publication of certain sections of the book. Giving the lead judgment, Lord Justices Buxton (with whom Latham and Longmore LJJ concurred) carefully reviewed and complimented Eady J's approach towards the balance between Ash's freedom to tell her story, the public's interest in knowing it and McKennitt's entitlement to keep a major part of her private life free from public scrutiny. The nub of Ms McKennitt's claim was that a substantial part of the book revealed personal and private detail about her which she was entitled to keep private. That claim was brought against the background that Ms McKennitt was and is unusual amongst world-wide stars in the entertainment business as she very carefully guards her personal privacy. The Court of Appeal agreed with Eady J that this was a matter of ‘great importance’ when looking at matters that included Ms McKennitt's personal and sexual relationships, her personal feelings in particular, in relation to her deceased fiancé who tragically died in a boating accident in 1998, matters relating to her health and diet and matters relating to her emotional vulnerability.
The Court of Appeal have now firmly tied together the UK domestic tort of ‘breach of confidence’ with the right to privacy set out in article 8 of the Human Rights Act 1998. This seems to follow Lord Nicholls in MGM v Campbell who observed that "the time has come to recognise that the values enshrined in Articles 8 and 10 [of the European Convention on Human Rights] are now part of the cause of action for breach of confidence." He went on to observe that "the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy". In this case the Court of Appeal said in order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of articles 8 and 10. Those articles are now not merely of persuasive or parallel effect but, as Lord Woolf says, are the very content of the domestic tort that the English court has to enforce. Accordingly, in a case such as the present, where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by article 8? If no, that is the end of the case. If yes, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10”
Eady J had held that some of the material was clearly confidential and had been gathered by Ash as part of their close relationship. But the Court needed to decide on how the Article 8 right of privacy might apply and the Court made stated that “there is little doubt that Von Hannover extends the reach of article 8 beyond what had previously been understood”. In finding for McKinnit the Court had to balance the right of privacy against the article 10 freedom of expression – and clearly found in favour of McKinnet. In this balancing act the Court of Appeal had to decide between the approach in A v B & C and Von Hannover. In A v B & C Lord Woolf made out a test that freedom of expression applied where the public had 'an understandable and so a legitimate interest in being told' information – so the press had a right to publish information if the public were interested in this – the public interest test was ‘what are the public interested in’. This can be compared to the more restrictive test in Von Hannover. In the latter the ECHR said that
“a fundamental distinction needs to be made between reporting facts- even controversial ones- capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of "watchdog" in a democracy by contributing to imparting information and ideas on matters of public interest it does not do so in the latter case.”
The ECHR also said “Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant's private life.”
The Court of Appeal sided firmly with Von Hannover saying “it seems clear that A v B cannot be read as any sort of binding authority on the content of articles 8 and 10. To find that content, therefore, we do have to look to Von Hannover and in so doing found that McKennit had a right to protect her privacy.
Niema Ash and another v Loreena McKennitt and others [2006] EWCA Civ 1714.
http://www.bailii.org/ew/cases/EWCA/Civ/2006/1714.html
The Times Law Reports 20 th December 2006
Other relevant cases:
Von Hannover v Germany (2005) 40 EHRR 1 (European Court of Human Rights) see Law Updates August 2004
M v Secretary of State for Work and Pensions (2006) 2 AC 91[83]
Campbell v MGN (2004) 2 AC 457 Law Updates June 2004
Douglas v Hello! (No3) ( 2006) QB 125[53] see Law Updates June 2005
A v B & C (2002) http://www.bailii.org/ew/cases/EWCA/Civ/2002/337.html
Finally on privacy, The Court of Appeal has confirmed the decision of Blackburne J in the High Court agreeing that HRH The Prince of Wales can maintain privacy in his private diaries (where he called some Chinese officials ‘appalling old waxworks’). The action was brought against the Mail on Sunday who sought to publish journal entries. Eight diaries were given to the newspaper by a former employee of the Prince, who breached a confidentiality agreement by copying the journals. The journals were copied at the time to a carefully selected group of 50 or so confidants close to the Prince. The newspaper had argued there was a public interest in knowing the prince's attitude toward relations between Britain and China, as well as more about Charles' conduct in his role as heir to the throne. However the Court held that the newspaper breached the Prince Charles’ confidentiality as well as his literary copyright in the journals.
http://edition.cnn.com/2006/WORLD/europe/12/21/charles.diaries.ap/
http://news.bbc.co.uk/1/hi/uk/4816268.stm
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COPYRIGHT
Music publishing
Fisher wins 40% of future earnings from ‘A Whiter Shade of Pale’
Matthew Fisher, a founding member of 1960s rock group Procol Harum, has won a High Court battle over who wrote their hit song A Whiter Shade of Pale. For almost 40 years, the music in the song has been credited to lead singer Gary Brooker and the words to lyricist Keith Reid. Mr Justice Blackburne decided that the keyboard player, who played the distinctive organ melody on the 1967 recording, made “a distinctive and significant contribution to the overall composition” and this was “quite obviously, the product of skill and labour on the part of the person who created it". Mr Justice Blackburne ruled Fisher was entitled to 40% of the musical copyright (or 20% of the whole copyright). He shares the musical copyright with Gary Broooker who said that the decision had ‘shattered’ his faith in British justice. However Fisher's claim for back royalties of up to £1m was rejected and his claim was backdated to May 2005 (when the claim was brought). Both parties face substantial costs bill. Brooker was granted leave to appeal.
http://news.bbc.co.uk/1/hi/entertainment/6196413.stm
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COPYRIGHT
Internet
Majors to take action against allofMP3.com
Not unsurprisingly Universal, EMI, Warners and SonyBMG have taken legal action against rogue Russian download site ALLofMP3.com. They have filed a copyright infringement suit in New York against Mediaservices and allTunes.com which seeks more than $1 trillion in damages. The labels have accused the Russian download site of being a "notorious online black market" and a "poster child" for Internet music piracy. AllOfMP3.com is thought to be the world's highest-volume online seller of unlicensed music, with 5.5M subscribers and an annual revenue of $30M. The US has already made its closure a condition for negotiations with Russia on joining the World Trade Agreement. AllOfMP3.com claims to pay royalties to Roms, but the music industry argues that it has "no rights... whatsoever" to collect royalties. Both Visa and MasterCard have previously stopped all card payments to the site:
www.nypost.com
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COPYRIGHT
Music Publishing
ARTICLE: Judge refuses to bow to peer pressure Peer v Editoria Musical de Cuba
By Julian Turton & Stuart Barry, Swan Turton
One of the world's leading independent music publishers, Peer Music ("Peer"), has tried and failed to persuade the English court to declare that it is the owner of the entire UK copyrights in thirteen songs composed by six Cuban composers, all of whom are dead.
Peer claimed its rights under original agreements entered into in the 1930s and 1940s with the composers and then under subsequent agreements entered into principally in the late 1990s and early 2000s with their heirs. All of these songs were subject to reversion under the 1911 Copyright Act which provided that rights for the final 25 years of copyright protection reverted to a "composer's legal personal representatives". These representatives were then in a position to assign or deal with those rights. Peer sought a declaration that the recent agreements it had entered into with the heirs of the composers constituted an effective assignment of those final twenty-five years of copyright protection under English law.
The case was immensely complex and expensive. It involved a number of QCs and junior counsel addressing the court on issues of UK copyright and succession upon death. The issues, though ostensibly concerned just with UK copyright, also involved investigation of Spanish law (on which Cuban law was based) and New York legal principles. This is because the original agreements entered into in the 1930s and 1940s applied Cuban, New York or Mexican law. The English judge was accordingly assisted by eminent Cuban and Spanish jurists.
The hearing took thirty days spanning a period of eighteen months of which three days were spent by Mr Justice Lindsay hearing evidence in Cuba. Peer had initiated these proceedings in 2000 and preliminary issues of law had been resolved by decisions of other High Court judges and a Court of Appeal determination in 2003. The declaration sought by Peer was opposed by Editora Musical De Cuba ("EMC") which the court described as an emanation of the Cuban State.
The meat of the judgment involved a consideration of the law on restraint of trade (and its nearest Spanish equivalent, the law on "Dolus" which involves "insidious machinations" in the words of the Spanish Civil Code 1888) and the law relating to UK succession involving the distinction between beneficiaries and administrators of an estate.
The judge concluded that there were just too many barriers in the way of Peer's claim for him to grant a declaration in very broad terms. These impediments included, in no particular order, the following:
The judgment did vindicate certain arguments and positions adopted by Peer. These included:
The case has generated political exchanges not often voiced in copyright matters. Ralph Peer (the founder of Peer) has been painted by his legal representatives as a "connoisseur of Cuban music" whilst EMC's representatives have characterised him as a quasi monopolist "who drove impecunious composers to accept ... terms, sometimes misleading but always ... unconscionably ferocious in Peer's favour ... presented to them on a take it or leave it basis".
Although the outcome was that the declaration sought by Peer was not granted, the judge did not find Ralph Peer or Peer to have acted in a 'quasi monopolistic' or 'unconscionably ferocious' or 'misleading' way. In some press reports such a spin seems to have been maintained without support from the densely packed and, in parts, highly technical 45 page judgment.
So why all the fuss? One's first assumption might be that these thirteen songs must comprise most of the songs on the Buena Vista Social Club album that sold many millions. However, that is not the case: none of the composers credited on that album composed any of the 13 songs which were the subject of the action. Indeed, it is interesting to note that no publisher is credited on a recently acquired copy of that album.
In fact these 13 songs only generated a modest level of royalties withheld by MCPS in relation to their UK exploitation. Why then would a commercial organisation like Peer throw so much energy and resources at seeking the declaration? The opposition of EMC is perhaps easier to understand in view of the anti-imperialist rhetoric employed by Castro's Cuba after the Americans were thrown out following the Revolution in 1959. Soon after, Peer had to close down its operation in Havana and then, under very strict US legislation, US individuals and corporations were forbidden from paying royalties or having commercial relationships with Cuban nationals based in Cuba. The key to why this declaration was sought probably lies in the fact that Peer claims rights in over 600 songs written by Cuban nationals. The judge took the view that any declaration under English law might be used by Peer both as a shield and possibly a sword in relation to claims in any other jurisdictions in which Peer's rights were threatened. If a broad declaration were granted, Peer would be able to point to the neutrality of the English courts and possibly use the declaration internationally. The judge was at pains to emphasise that any declaration given by the English courts would have very limited application and would only cover copyright within the UK.
So if Peer's aim was to secure a broad declaration of its rights which it could then wield in support of its 600 or so copyrights of Cuban origin, the judgment will have been a major disappointment. But, the judge did not castigate Peer in the terms that have been reported in some quarters and that provides at least some small crumbs of comfort.
This Bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. © 2006 Swan Turton http://www.swanturton.co.uk/ebulletins/archive/peerpressure.aspx
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IMAGE RIGHTS
Artists
ARTICLE – The Right Image
A new article on image /personality rights by Ben Challis will be published on Music Law Updates (under Articles) at the end of January 2007. In this article Ben examines current developments in the law in the United Kingdom which could be used to support the concept of a coherent ‘image right’ for celebrities. But Ben asks whether it is time for legislation to govern an area of such of obvious economic importance with s stand alone ‘image right’.
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© 2007, Ben Challis