In a case brought by Capitol Records against digital re-seller ReDigi, U.S. District Judge Richard Sullivan in Manhattan has ruled that the  ’first sale’ doctrine does not apply to digital goods, in a decision which might also come as a blow to comes to other online retailers such as Amazon and Apple who have been developing platforms to re-sell used digital goods such as books, music, videos and apps.

Judge Sullivan said “The novel question presented in this action is whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine. The court determines that it cannot”.  The reason, the judge ruled, is because copying, or an illegal “reproduction” of a music file, must take place, despite ReDigi’s claims to the contrary.

Judge Sullivan added “Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the internet, the court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act. The judge agreed with the Capitol’s claims that the service was guilty of direct, contributory, and vicarious infringement of Capitol’s reproduction rights, and said ReDigi had no fair-use defense to the infringement as the service was not “capable of substantial non infringing use”s.

ReDigi said its customers had a right to upload their legally purchased MP3 tracks onto ReDigi’s cloud. ReDigi said that customers could ‘migrate’ their used files to ReDigi’s service and claimed no copy of the file was made. ReDigi also said that their technology meant that the original uploaded file that was sold could no longer be accessed by the seller. The judge did not agree and was of the opinion that ReDigi’s technology cannot stop customers from file sharing or copying iTunes music purchases before they had uploaded them to the service, and ruled against the digital start up.

ReDigi, which claims to be ”the world’s first, real legal alternative to expensive online music retailers and to illegal file sharing” issued a statement saying it was “disappointed” with Judge Sullivan’s ruling, but pointed out that the ruling only pertains to the earlier version of ReDigi’s service, dubbed “ReDigi 1.0.”  explaining that the new 2.0 version is based on different, patent-pending technology, adding “ReDigi will continue to keep its ReDigi 2.0 service running and will appeal the ReDigi 1.0 decision, while supporting the fundamental rights of lawful digital consumers”.

Capitol is expected to seek both damages and an injunction to force ReDigi to cease operating its resale website.

http://www.wired.com/threatlevel/2013/04/reselling-digital-goods/

http://the1709blog.blogspot.co.uk/2011/10/rumble-in-digital-jungle.html

A New York judge has thrown out a lawsuit that targeted Warner Music over the 2009 Muse album ‘The Resistance’ in a case brought by American songwriter Charles Bollfrass who claimed that the last three tracks on that album, a trilogy under the title of ‘Exogenesis’, were copied from a concept he had devised in 2005 for a rock opera of the same name. Bollfrass had said he had contacted Muse but the band called the claims “complete nonsense”, and denied having previous knowledge of Bollfrass or his 2005 project. The court ruled that the ‘plot’ was too abstract to constitute any sort of infringement of the songwriter’s rock opera screenplay, even if the band had been previously exposed to the claimant’s work.

http://www.the1709blog.blogspot.co.uk/2013/04/more-of-same-plot-thickens_1.html

UK collection society PRS for Music have announced a record £641.8m collected for songwriter, composer and music publisher members in 2012, equating to a 1.7% rise on 2011. A focus on efficiency resulted in a £3.6m reduction in overall costs, equivalent to 4.6%, meaning a total of £571.9m was paid to members (up 2.6% on 2011).

Royalties from online and digital services topped £51m for the first time, up 32.2% on 2011. Royalties from online services now provide a larger income stream for music creators than radio, live or the pub sector, but perhaps unsurprisingly, royalties collected from live music fell by 14.2% to £19.3m as fewer live events occurred in 2012. Collections from CD sales were also down, but overall PRS’s ‘recorded media’ income was slightly up.

International revenue, which has seen considerable growth in the last decade, was down 4% in 2012, a result, in part, of exchange rate losses. However, this income stream is still the biggest single revenue generator for PRS members, bringing in £180.1 million.

http://www.billboard.com/biz/articles/news/digital-and-mobile/1555902/prs-for-music-uk-collection-society-reports-17-rise-in
2011 figures here: http://www.prsformusic.com/SiteCollectionDocuments/PressPacks/March%202012%20-%20Financial%20results%20briefing%20paper.pdf

The International Federation of the Phonographic Industry (IFPI) has published its annual Recording Industry In Numbers report for 2013. The global recorded music industry saw its revenues increase very slightly by 0.2% in 2012, the first increase since 1999. Growth in digital revenues, including those from the rapidly expanding subscription and streaming service domain, coupled with boosted income from a number of emerging markets, combined to help compensate for the continued decline in physical product sales. Digital now accounts for 35% of the wider record industry’s global trade revenues, and of this paid for downloads account for around 80% – although in Europe subscription and streaming are now bringing in a third of digital income. Digital generated $5.6 billion in 2012, up 8% on 2011. Physical products bring in 57% of the money worldwide and CD sales topped $9.4 billion with 833 million CDs sold, down from 910 million in 2011 and 2.4 billion sold in 2000.The remaining income is from other licensing-based revenue streams, chiefly performance (PPL) rights, which now account for 6% of income overall. Sync licensing saw modest growth in 2012.

Brazil, India and Mexico have all seen market growth since 2008 (of 24%, 42% and 17% respectively). The US, Japan, Germany, UK and France remain the biggest markets overall.

Vinyl remains a growth area: only 3 million albums were sold in 2006, and although still relatively small, sales topped $177 million in 2012, the highest figure since 1997. But the cassette tape is approaching extinction with sales down to just 2 million units, down from 5 million in 2011.

Commenting on the Report, IFPI boss Frances Moore said “This is a must-read publication for anyone following the global music industry. It is packed with the latest data and analysis, broken down by formats, revenue streams, regions and countries. Recording Industry in Numbers also reveals the sheer diversity of the modern music business. Notable highlights in this year’s edition are the increasing role of subscription services and the growing importance of emerging markets in driving the industry’s recovery”.

http://www.ifpi.org/content/library/dmr2013.pdf

Rapper Kanye West is facing a copyright infringement lawsuit for sampling lyrics for hit ‘Gold Digger’. According to AllHipHop.com West is being sued by David Pryor’s children Trena Steward and Lorenzo Pryor for lyrics the rapper used on his 2005 hit, which they say was taken from the their father’s 1974 song ‘Bumpin’ Bus Stop’, which he performed with Thunder & Lightening. Steward and Pryor are reportedly seeking $150 million in damages per infringement, as they own the copyright for the song.  They also claim the rapper used their father’s voice to echo ‘get down’ during West’s  “get down girl, go ‘head, get down”  lyric.  The court documents name West along with Roc-A-Fella Records, Island Records / Def Jam Music Group, Bad Boy Records, Stones Throw Records, Bomb Hip-Hop Records, Autumn Games, Activision and Caroline Distribution. as defendants. and claims that the defendants “systematically and wilfully refused to clear samples of the plaintiffs’ original, copyrighted work in order to gain a commercial profit and to avoid paying and crediting the author.”

You can hear Bumpin’ Bus Stop here

http://www.nydailynews.com/entertainment/music-arts/west-sued-gold-digger-sample-article-1.1311652

http://www.thenewage.co.za/90948-1020-53-Kanye_West_sued_for_copyright_infringement

Singer will.i.am has been accused of using Arty and Mat Zo’s song “Rebound” for his own track with Chris Brown titled “Let’s Go” and now the The Black Eyed Peas stalwart has seemingly admitted at least to a degree of influence saying “Arty is a dope producer so I wrote this song to “Rebound” this last year,” in an interview with KISS FM, admitting that he used the song in question as the foundation for “Let’s Go” saying “I got in touch with Arty and showed it to him, did a different version to it ’cause I asked him [to] make it newer ’cause I don’t just wanna take your song and rap over it,” he said. “But in a year’s time, time’s gone by [and] we preferred writing over and using the [original] Rebound. Reviews say that ‘Let’s Go’ features the new vocals by Chris Brown, but the instrumental side uses Arty and Zo’s original almost in its entirety. Will.i.am was somewhat vague in the interview saying “Something happened and the clearance” but Arty insisted that “there is no official licence agreement, signed contract or anything else between me, Mat Zo, [their label] Anjunabeats and [Will.i.am's label] Interscope”.

Arty had previously claimed no one from Interscope (will.i.am’s label) had contacted Anjunabeats (the imprint that released “Rebound“). Posts on Twitter and Facebook indicated that Arty, Mat Zo and Anjunabeats head Jono Grant first heard of “Rebound” being used when “Let’s Go” hit YouTube.

Will.i.am also faced an action for N-Dubz singer Tulisa who sued sued over the use of sampled lyrics in the Britney Spears collaboration “Scream and Shout.” Will had admitted to using her song, recorded as “I Don’t Give A F—k”.

And interesting slide show on alleged ‘lifted’ music and lyrics (including Radiohead’s “Creep”, Led Zepplin’s “Whole Lotta Love” and The Beach Boys “Surfin USA”)  can be found on the Huffington Post

http://www.huffingtonpost.com/2013/04/23/william-lets-go-copyright-arty-mat-zo_n_3138250.html and more on will.i.am and samples here http://www.whosampled.com/artist/Will.i.am/

A Florida man has been sentenced to 23 months in prison for conspiracy to commit criminal copyright infringement. Javier Ferrer pleaded guilty in November and was sentenced this month in the District Court in Norfolk. Prosecutors say Ferrer was part of a conspiracy to become the premier group to release copies of new movies on the Internet that were showing in theatres. Court records say the group used receivers and recording devices to secretly capture audio sound tracks of movies playing in cinemas. The group then synchronized the audio files with video files suitable for distribution over the Internet. Four others pleaded guilty in the case and were given sentences ranging from 23 to 60 months.

http://www.wptv.com/dpp/news/state/javier-ferrer-florida-man-sentenced-for-copyright-infringement

SoundCloud’s copyright policy has been met with complaints as almost 2,500 premium registered teir displeasure that their activities are being limited by StormCloud policies on mashups, mixes and more. A petition is requesting the streaming site reverts to “a real promotion tool” and “not a website just to have fancy audio players.” The campaign is being headed up by French DJ/producer Stephan Hedfors, who said: “Soundcloud was a great promotion tool for musicians. Unfortunately, with their new copyright policy, even original content can be flagged as copyrighted content, removed from their website and account from the artists can be closed” adding “Bootlegs, mashups are not allowed anymore, despite the facts that people who make them don’t earn money from them and that some of the biggest artists support them.” Soundcloud have responded saying that they are “striving to resolve any conflicts that have arisen from legitimate rights holders getting caught up in any takedown requests.” Acknowledging some user’s frustration, a spokesperson told Music Week: “At SoundCloud we use a well-established and market leading third party content ID system to help identify and block known copyright works from appearing on our platform. Unfortunately, this sometimes has the unwanted consequence of blocking a sound uploaded by a legitimate rights holder. Our content ID system relies on rules set by rights holders, and will only block or remove a sound automatically if the rights holder, usually (in the case of music) a record label or distributor, has requested this when delivering their content into the content ID system.  If a creator has permission to post his/her own content and their sound gets blocked, we have a clear and effective process to deal with this quickly and efficiently.”

http://www.musicweek.com/news/read/over-2-000-premium-soundcloud-users-demand-copyright-policy-change/054301

A dispute between the German DJ fraternity and Germany’s music publishing rights collecting society GEMA resulted in two protests outside the rights organisation’s offices in Dortmund and Munichin Aprilk, the latter also supported by the German Pirate Party. The DJs are protesting a recently announced new licence that GEMA has introduced which means that DJs who play their sets off laptops or similar devices must pay a royalty into the collecting organisation, seemingly to cover the ‘mechanical copy’ said DJs are making of any songs they rip from CD or transfer from another device to the computer they perform with. While in Germany such copies are exempt from royalty payments if for personal use, the minute said copied songs are played in public that exemption does not apply, says the rights body. The cost will be 13 cents for each copied track, although bulk track options are also available. Billboard calculated that an average DJ with, say, 15,000 tracks on his or her laptop would face an annual licence fee of 1500 euros. The DJs have also pointed out that GEMA already receives royalties from club promoters for the performing rights that exist in the songs DJs play, and that any mechanical rights should be bundled into those licences saying that the new levy is “double taxation”.

http://www.thecmuwebsite.com/article/german-djs-in-dispute-with-gema/

Although the news of Cavalcade Records Ltd (trading as Minder Records Ltd) succeeding in its copyright infringement action against HHO Multimedia Ltd is no longer hot news, the case — which is not available on the BAILII database but can be found on Music Week, is not without interest. The claim, adjudicated in the Patents County Court by Judge Colin Birss QC, related to an early Rod Stewart recording, The Blues.

HHO was shown to have made Minder’s recording available to a third party partner, Cleopatra Records Inc, which subsequently sold recordings to the public, both as part of physical packages and digitally. The court granted a permanent injunction against HHO and also awarded Minder damages and costs (the latter being estimated at a little over £40,000).

According to a note on this decision on the Lawtel subscription-only service, the damages were not merely compensatory but also additional (= punitive) because,

“although the defendant had not received a significant benefit in licensing a music track, it was a fragrant and deliberate infringement and it had demonstrated a reckless attitude”.

The parties were actually some way apart on the question of quantum. Minder’s claim that it was entitled to up to £14,000 was described as “inflated”, while HHO’s contention that Minder should receive no more than a few hundred pounds was “clearly wrong”. The judge eventually settled for a sum of £3,500 for compensatory damages. As for additional damages, it was plain that HHO had a reckless attitude towards its infringement and “could not have cared less”. A further £3,500 in damages was therefore awarded on this basis.

From the award winning Jeremy Philips, writing on the 1709 Blog http://www.the1709blog.blogspot.co.uk/2013/04/damages-and-more-damages-but-they-still.html and see  http://www.musicweek.com/news/read/minder-wins-injunction-ruling-in-rod-stewart-copyright-case/054158

In a case involving the controversial website Grooveshark, a New York state appeals court has held that the safe harbor defence found in the Digital Millennium Copyright Act does not apply to pre-1972 recordings. a panel of five judges in the New York State Supreme Court of Appeals found in favor of Universal Music Group (UMG) in its copyright suit against Grooveshark, reversing a lower state court decision favoring Escape Media Group Inc., the operators of Grooveshark.

UMG Recording, Inc. had sued Grooveshark, an internet-based music streaming service, for copyright infringement, accusing it of uploading around 100,000 recordings without authorisation. Grooveshark conceded that it could not ensure that each work uploaded to its servers was a non-infringing work however, it claimed that it operated on the basis that it was shielded from infringement claims by the safe harbor provisions of the DCMA.

Many of the recordings uploaded by Grooveshark were made before 15 February 1972 which is significant as, when the US Copyright Act was amended in 1971 to include sound recordings, Congress expressly extended federal copyright protection only to recordings “fixed” on 15 February 15 1972 or after. UMG claimed that by permitting the pre-1972 recordings to be shared on Grooveshark, the defendant infringed UMG’s common law copyright in those works, and that the DMCA should not apply to those recordings.

Grooveshark responded that the pre-1972 recordings sat within the safe harbor of section 512(c) of the DMCA, but UMG argued that the DMCA could not apply to the pre-1972 recordings because that would conflict with s.301(c) of the Copyright Act that nothing in the Act would “annul” or “limit” the common-law copyright protections attendant to any sound recordings fixed before 15 February 1972

The appeals court found that the safe harbor provisions do not apply to recordings made before 1972, as this was when Congress first recognized a federal copyright for sound recordings.

This flies in the face of previous decisions: last year, the Manhattan Supreme Court relied on the 2011 federal ruling in Capitol Records v. MP3tunes, to find “no indication in the text of the DMCA that Congress intended to limit the reach of the safe harbors provided by the statute to just post-1972 recordings.”

This was reversed on Tuesday, when the appeals court said:

“It is clear to us that the DMCA, if interpreted in the manner favored by defendant, would directly violate section 301(c) of the Copyright Act.” Therefore without language expressly reconciling the two provisions, the court must presume that Congress did not intend the DMCA to extend to all recordings.”

From Iona Harding writing on the 1709 Blog

Court decision here: UMG Recording, Inc. v. Escape Media Group, Inc. et al, http://www.leagle.com/xmlresult.aspx?page=1&xmldoc=In%20NYCO%2020130423328.xml&docbase=CsLwAr3-2007-Curr&SizeDisp=7

Last month the Register of Copyrights Maria Pallante called for copyright reform and the adoption of “The Next Great Copyright Act” to address issues around licensing, digital first sale, and exceptions

and limitations, including enhancing clarity. During her testimony to the House Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary, Pallante explained “The law is showing the strain of its age and requires your attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated” and that the US needed  “the next great copyright act”  which Pallante said  is needed as consumers are increasingly “accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.”

It’s not just one issue – digitization is the main driver, but there are other reforms that have been suggested: clarifying the scope of exclusive rights; revising exceptions and limitations for libraries and archives; addressing orphan works; accommodating people who have disabilities when they access content; providing guidance to educational institutions; exempting incidental copies in appropriate instances; updating enforcement provisions; providing guidance on statutory damages; reviewing the DMCA; assisting with small copyright claims; reforming the music marketplace; updating the framework for cable and satellite transmissions; encouraging new licensing regimes; and improving the systems of copyright registration in the USA. The Hargreaves review of copyright in the UK provided a similar if not identical list of issues that needed to be addressed – and progress has already been made on the creation of a “copyright hub” and a Digital Copyright Exchange to promote digital licensing. The UK Government has said that it will support the reform of IP laws ,and highlighted the need to progress this, saying in particular that: copyright exceptions covering limited private copying should be introduced to realise growth opportunities; The  introduction of an exception to copyright for search and analysis techniques known as ‘text and data mining’ needs to be introduced;  Copyright exceptions to allow parody should also be introduced; the Government would support  introduction of an exception to copyright for search and analysis techniques known as ‘text and data mining’ and would support establishing licensing and clearance procedures for orphan works.

Now the US House Judiciary Committee Chairman Bob Goodlatte has announced that the Judiciary Committee will conduct a comprehensive review of US copyright law over the coming months.

During a speech delivered during the World IP Day celebration at the Library of Congress, Goodlatte made the following remarks:

“Technology continues to rapidly advance. [...] Our Founding Fathers could never have imagined a day in which citizens would be able to immediately access the knowledge and news of the world on their smartphones as they walk down the street.

When I was first elected to Congress in 1993, only 2.5 percent of Americans had Internet access and less than ¼ of one percent of the world population did.  Then, we spoke about the very few who had Internet access. Today, we speak about the few who do not. Technological development has increased at an exponential rate. [...]

There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners.  Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate [by the way, have you seen the Digital Public Library of America project?]. There are concerns about statutory license and damage mechanisms.

Federal judges are forced to make decisions using laws that are difficult to apply today [speaking of (lack of) digital first sale, in it’s ReDigi decision the US District Court for the Southern District of New York itself pointed out that "the first sale doctrine was enacted in a world where the ease and speed of data transfer could not have been imagined ... It is left to Congress, and not this Court, to deem them outmoded."].

Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.

So it is my belief that a wide review of our nation’s copyright laws and related enforcement mechanisms is timely. I am announcing today that the House Judiciary Committee will hold a comprehensive series of hearings on U.S. copyright law in the months ahead. The goal of these hearings will be to determine whether the laws are still working in the digital age. [...]. There is much work to be done”.

Commentators in countries big and small are entering the debate: In Barbados, Kevin A. Hunte, Deputy Registrar at the Corporate Affairs and Intellectual Property Office, delivered a lecture on “Copyright and the Internet” at the National Library that all digital work tends to have similar characteristics saying

“The fact that all works in digital form have uniform characteristics makes it very difficult to protect the copyright subsisting in such works. Digitisation and networking fundamentally alter the traditional conventions for using existing material which is subject to copyright. Works in this new digitised form can be copied, distributed, transmitted, manipulated, edited and stored with ease. It is very important to note that the reproduction right of the copyright holder of an artistic work also applies in the digital environment, in particular to the use of works in digital form.”

adding that digitisation had added another layer of complexity:

“Traditionally, copyright works are classified into different categories – for example, literary works, artistic works, computer programmes, and so on. In each category, works are afforded certain exclusive rights – in the case of literary works, for example, the right to publish, to make reproductions or adaptations, and so on. Digitisation of information – reducing information to binary bits of 0s and 1s, and the development of common technology standards for text, sound and video, such as html, MP3 and MPEG, enable digital content to be shared – almost instantaneously – by millions of users.”

Therefore, digitisation creates a number of issues that must be taken into consideration when addressing copyright infringement, he said.

“Accordingly, the digitisation of works has the following consequences: the creation of a homogeneous medium of storing and transmitting works; the merging of previously distinct classes of work into multimedia products; difficulty in classifying multimedia products; difficulty in determining exclusive rights for each category of work when, say, a previously distinct musical work, a computer programme and a literary work are combined in a multimedia work; and alteration of traditional use of copyright works by the process of digitisation and networking.”

Digital and the internet are the great new disruptive general purpose technologies that have an enormous momentum for change and a myriad of uses – many of which challenge existing business models – but will undoubtedly create new ones – even beyond what can be imagined now. The likes of Amazon, Google and YouTube, Apple, Twitter and Facebook already dwarf many of the traditional industries they may soon replace – but they themselves face challenges from the next generation of new digital start ups and may soon find themselves relying on the very legislation that they have challenged themselves. The tension between traditional business models and new models here to stay, perhaps againt the backdrop of an ever increasing rate of change – with strong advocates on both sides of the divide and a growing call from consumers for clarity – as well as ever increasing demands for new ways to access data, content, friends and ideas.

Finally, former US President Bill Clinton urged a need for creative thinking about copyright and content distribution, saying that copyright needed “ to give people an appropriate return on their ideas and development of them, and presentation of it, in film and music and in other areas, and the need to give it as quickly as possible to the world.” Clinton’s speech came at the Creativity Conference, a half-day meeting hosted by three content owners, the Motion Picture Association of America, Microsoft, and Time Magazine, where participants included House Majority Leader Eric Cantor and HBO CEO Richard Plepler  who discussed issues in the creative economy ranging from federal research and development investment to copyright. Harvey Weinstein, co-chairman of the Weinstein Company made his position clear saying “So I think a very good business plan [is] here, use somebody else’s content for free, deliver it, don’t pay them anything, and build a $500 billion silicon valley company, and then have cool slogans like ‘We just want to help the world” appearing to refer to YouTube and its parent company Google. “They’re stealing. That’s what they’re doing. My artists, they can’t be artists if they’re hungry. The starving artist, trust me, that’s a myth. When you’re starving you’re starving. It’s hard to be creative in that situation.”

Clinton, by contrast, sought to establish a different framework in his remarks, suggesting that the conflict in creating copyright policy was not between who should be allowed to profit from the creation of individual work, from music to pharmaceutical development, but between balancing the interests of content finding a wide audience and making it sustainable to develop. “We have to keep struggling to find the right balance between creativity, broadly and quickly shared, and as widely understood as possible, and making it reasonably profitable for people to be creatives” Clinton argued.

Let the re-balancing begin!

www.the1709blog.blogspot.com

http://thinkprogress.org/alyssa/2013/04/26/1930001/former-president-clinton-calls-for-copyright-flexibility-crowdfunding-and-creative-sustainability/?mobile=nc

http://www.barbadosadvocate.com/newsitem.asp?more=business&NewsID=30291

http://www.guardian.co.uk/commentisfree/2013/apr/28/get-creative-arts-funding-hutton

New regulations have come effect last weekend that will stop UK companies from including anything but ‘cost of sale’ in payment surcharges which may have a major impact on the ticketing business where a variety of additional costs are often added the cost of tickets including credit card booking fees, delivery, ‘transaction’ and ‘booking’ fees . The Regulations ban traders from charging consumers more than the cost borne to them for accepting a given means of payment.

The Consumer Protection (Payment Surcharges) Regulations which stem from EU legislation were passed by the UK parliament last year and brought into effect on the 6 April  say that where credit card fees are added to purchases, a seller can’t use that extra charge to increase profit margin, ie the fee must only cover costs directly linked to the credit card transaction.

The Department for Business, Innovation and Skills has issued guidelines to try to define “costs directly linked to the credit card transaction. Fees charged to a seller by a credit card provider can be included, and according to the guidelines so can any costs directly related to fulfilment  – IT costs, risk management and anti-fraud efforts. More general administration costs would not be allowed to be included though as, says the guidelines, these are general business requirements that should be covered by the price of the original product.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/175298/13-719-guidance-on-the-consumer-protection-payment-surcharges-regulations-2012.pdf

The Hives have been ordered to pay fellow Swedish band The Cardigans 18.5 million kroner (about £1.8 million), after a legal battle resulting from dubious financial management practices at the Malmö-based Tambourine Studios. According to local media reports, the Lund District Court heard that it was standard practice at Tambourine Studios to move money between the accounts of artists it represented to provide cheap cash flow. This was how 18.5 million kroner belonging to The Cardigans ended up in The Hives’ account. The Hives argued that they were never told by Tambourine that some of the money transferred into their band account was, in essence, a loan from other artists, in particular The Cardigans, and in a blog post ahead of the court hearing the band stated “there are no loan agreements, no signed documents, no agreements on interest rates”. The judge hearing the case agreed that the transfers made by Tambourine “shouldn’t be viewed as a loan”, given the lack of any formal agreements to that effect, but nevertheless the money that belonged to The Cardigans should be returned to them. The case is reportedly one of a number involving Tambourine Studios (“the greatest music studio in the western hemisphere”) currently working its way through the courts.

http://www.billboard.com/articles/news/1558352/swedish-court-orders-the-hives-pay-the-cardigans-28m

One of The Pirate Bay founders, Gottfrid Svartholmn Warg has been charged with aggravated fraud, attempted aggravated fraud, and being an accomplice to attempted aggravated fraud, over allegations he was involved in the hacking of computer systems of various Swedish state agencies, as well as making an illegal online money transfer. Svartholm, was extradited from Cambodia last year and incarcerated on return to his home country. He had previously failed to attend appeal hearings in relation to his Pirate Bay conviction, so that his one year prison sentence stemming from that charge stood.

http://www.digitalspy.co.uk/tech/news/a473820/pirate-bay-founder-gottfrid-svartholm-warg-charged-with-hacking-fraud.html

Former Girls Aloud member Sarah Harding has been banned from driving for six months after admitting to failing to stop for police when she was spotted talking on her phone while driving in central London. Harding was arrested and taken to Holborn Police Station to be charged with using her phone while driving and failing to stop for police. She appeared at Highbury Corner Magistrates’ Court to face the charges where District Judge Nina Tempia disqualified her and ordered Harding to pay a fine of £500, plus a £20 ‘victim surcharge’ and £85 court costs. Her lawyer, Nick Freeman, argued that his client had “suffered more than a normal person because of the media attention her arrest had attracted”. District Judge Tenpia disagreed. She gave Ms Harding credit for pleading guilty straight away to the charge and said her charity work was admirable, but said she was a “normal person” and should be treated as such. After the hearing Harding was repentant saying “Too many people use their mobile phone whilst driving and think it’s acceptable. It is not. Every year people die or are seriously injured because they were distracted making that ‘oh so important call’. Mobile phones are a convenient tool for modern life but they must be used safely. I made a mistake by using my phone whilst driving, but I was lucky. I accept the court’s penalty but it could have been a lot worse. I have learned my lesson”. Harding has subsequently tweeted an image from the London underground – safe and smiling!

http://www.bbc.co.uk/newsbeat/22168412

Sheikh Zayed Theatre, New Academic Building, 54 Lincoln’s Inn Fields, London WC2A 3LJ

The London School of Economics and Political Science .With the music industry contributing £3.8bn to the local economy, and  with the UK is one of only the three net exporters of music in the world, this is a timely debate. As the nature of music consumption reaches a critical point, a panel of experts on both sides of the argument will face each other to discuss the industry’s future.

For this event, LSE have teamed up with PRS for Music: The speakers include: Robert Ashcroft Chief Executive, PRS for Music; Amelia Andersdotter, member of the Pirate Party in the European Parliament,; Ludovic Hunter-Tilney, music critic; Financial Times;  Gary Kemp, musician, actor, author and songwriter for Spandau Ballet and Dr Luke McDonagh, fellow in the Department of Law at LSE. Chaired by Professor Andrew Murray.

This event is free and open to all , with no ticket required. Entry is on a first come, first served basis. For any queries email events@lse.ac.uk  or call 020 7955 6043.

http://www2.lse.ac.uk/publicEvents/events/2013/05/20130509t1830vSZT.aspx

A conference with a difference, Live Music Exchange, London gathers together leading academics with live music practitioners to exchange ideas about how to encourage and sustain a vibrant live music ecology within the constantly shifting relationships between state and commercial investors, and small scale and corporate interests and conference themes include models of live music promotion and revenue streams for live music.

Keynote Speaker: ‘Live Music in an age of Austerity – some current trends’ by Dave Laing, University of East Anglia / CREATe programme, British Library: other highlights include Paul Latham (Live Nation / Creative and Cultural Skills) in conversation with Professor Simon Frith (University of Edinburgh / Mercury Prize), Professor Toby Miller (City University) on music and the environment and Professor Simon Frith on models of promotion.  Panellists confirmed so far include: Penny King (Arts Council, England), Will Page (Spotify), Bryn Ormrod (Barbican Centre), Chris Hodgkins (Jazz Services), Ian Hogarth (Songkick), Lucy Woods (Eat Your Own Ears), Dave Gaydon (The Roundhouse), Jeff Thompson (Un-Convention / Off-Axis Network)

You can register here http://bit.ly/MusicExchange

Or please get in touch with contact@livemusicexchange.org  for further details see  http://livemusicexchange.org/events/live-music-exchange-events/live-music-exchange-london-programme/

The ‘Harlem Shake’ internet phenomenon has prompted two separate artists to come forward, each claiming ownership of one of the two phrases that appear in the now much used and much reversioned Baauer track.

With the track now earning substantial sums from YouTube plays, not to mention more conventional download monies on the back of the ‘Harlem Shake’ video craze, retired reggaeton artist Hector Delgado has come forward to claim ownership of the repeated “con los terroristas” line that appears in the track, while Philadelphia rapper Jayson Musson says he is behind the “do the Harlem Shake” moment.

Musson, who originally said “do the Harlem Shake” in a 2001 track called ‘Miller Time’, released by the group Plastic Little, says he has been in “friendly talks” with Diplo-led label Mad Decent, which released ‘Harlem Shake’, about getting a cut of income now that the track is bringing in substantial royalties.

Having apparently called Baauer, real name Harry Rodrigues, to thank him for “doing something useful with our annoying music”, Musson said that “Mad Decent have been more than cooperative during this”.

Delgado, now a preacher, who was previously also known as Hector “El Bambino” and Héctor “El Father”, is being represented trough his former label, Universal-owned Machete Music, which is being more hard line in its legal talks with Mad Decent, although Delgado himself did tell the Times “it’s almost like they came on my land and built a house”. Delgado’s former manager, Javier Gomez, who first noticed the use of the “con los terroristas” line in the latest YouTube phenomenon, added: “[Delgado will] get what he deserves. We can turn around and stop that song. That’s a clear breaking of intellectual property right”.

Elsewhere, Wu Tang Clan man RZA, real name Robert Diggs, has launched legal proceedings against a company called JVC Kenwood Holdings in relation to allegations made against the Kanye West track ‘Dark Fantasy’, which Diggs produced. It seems that a JVC Kenwood subsidiary Teichiku Entertainment has accused West and RZA of sampling a track it owns called ‘Gincyo Watadori’, performed by Japanese actress and singer Meiko Kaji, and is in the process of suing West’s label Island Def Jam for damages. While that litigation is pending, Universal’s IDJ is seemingly withholding $50,000 in royalties from RZA, so to cover itself for any future payout to Teichiku Entertainment.

The producer, who denies the illegal sampling claim, is clearly unimpressed and is now taking Teichiku to court in a bid to have the allegations dismissed (so that IDJ can pay him his unpaid royalties):

RZA’s legal representaive, Howard King, said “We see dozens of baseless copyright infringement claims against our clients every year. Rather than engaging in costly and fruitless dialogue trying to convince claimants and their contingency lawyers that our clients do not succumb to extortion and settle ridiculous claims, we have decided to commence declaratory relief actions to squash some of these claims and, perhaps, recover our costs of defending same. The RZA complaint is the second one of these we have filed this month, with more to come”. On the specifics of this dispute, he continued: “RZA did not use Teichiku’s piano run [as it claims], and it sounds different from the one in ‘Dark Fantasy’. In fact, it would have been technologically impossible to sample the piano run without the rest of the music in ‘Gincyo Watadori’ and the piano run in ‘Gincyo’ is so simple that the least talented person in the studio could have replayed it had anyone wished to do so“.

And R&B BRIT winning star Frank Ocean has been hit with a copyright lawsuit over his track “Lost”. Songwriter Micah Otano claims he teamed up with producer Malay and wrote a tune called Daylight, but never received credit for his work when it was allegedly renamed and included on the Grammy winner’s debut studio album, Channel Orange. Otano has filed legal papers at the U.S. District Court in California seeking undisclosed damages and back royalties, according to AllHipHop.com.

http://thedrop.fm/baauer-harlem-shake-copyright-infringement/

http://www.turnto23.com/entertainment/celebrity/frank-ocean-hit-with-copyright-lawsuit_96123615

Media regulator OfCom has published a report based on research into digital content consumption and piracy by Kantar Media, in which 5500 people were surveyed about how they consumed content online between the start of August and end of October last year.

According to the poll, 5% of those surveyed admitted to exclusively accessing content via unlicensed platforms, while 16% admitted to accessing at least one piece of content from an illegal source. 10% of those surveyed admitted to accessing at least some music from non-legit platforms.

Of the pirates surveyed, over a third said they were still using P2P networks to access unlicensed content, while 10% were raiding unlocked digital lockers to find free stuff. In terms of motivation, half admitted the fact illegal content was free was a key factor, while convenience and speed were also noted by nearly half, with 26% claiming they used illegal services as a ‘try before I buy’ facility.

In terms of turning those pesky pirates into consumers of digital content, nearly a third said cheaper legal services might appeal, while a quarter cited confusion over what is legit and not legit, and a similar number claimed that some of the content they wanted just wasn’t available via licensed platforms.

Less good news for supporters of the adoption of  ‘three strikes’ provisions in the UK, less than a fifth reckoned a threatening letter from their internet service provider would affect their online content habits. Next year is rhe planned start of the long-awaited three-strikes system outlined in the UK’s 2010 Digital Economy Act.

CMU daily 12 March 2013 http://www.thecmuwebsite.com/ and previous Ofcom research here http://www.theregister.co.uk/2011/12/21/ofcom_piracy_research/ and here http://www.out-law.com/en/articles/2012/november/fewer-than-a-quarter-of-infringers-would-be-put-off-by-internet-access-suspension-threat-ofcom-report-says/

A new report, the “State of the Music Licensing Industry: 2013” provides evidence that shows an increasingly problematic music licensing landscape for recording artists, labels and publishers and highlights that whilst the music licensing industry continues to grow as a multi-billion dollar segment of the global music industry, there remains some unhealthy practices, most notably the prolific practice of retitling. Retitling is where a music licensing company re-registers a song under a different title with a performing rights organization (PRO), allowing for the royalties to be separately tracked when that song is licensed for a specific third party use. This allows the music licensing company to control and earn a significant share of the royalties collected. The report states that 40% of music licensing companies retitle works for a share in royalties garnered from “sync” placements. “The practice of retitling is considered unhealthy for artists and for the music licensing industry. It can be very problematic, as one piece of music with many titles is confusing and can lead to multiple parties claiming ownership of the same work and ultimately artists not receiving royalties owed, if at all” said Winston Giles, CEO and founder of the newly set up Music Licensing Directory which produced the report. He runs the company with his brother Adrian.

Although the report concludes that  the practice of retitling may soon come to an end as “digital fingerprinting” provides more effective and accurate data Giles adds  “Some royalty collection societies have begun the implementation of digital fingerprinting, however there remains no industry standard and the adaption away from archaic cue sheets to the new technology has been very slow” adding “There are suggestions from within the industry from companies like Tunesat, who claim that up to 80% of songs are not reported properly. When you consider that in the USA the collection societies collect over 2 Billion dollars annually – there is potentially a lot of money owed to artists going missing.”

Currently the The International Standard Recording Code (ISRC), defined by ISO 3901, is an international standard code for uniquely identifying sound recordings and music video recordings. The IFPI is the registration authority for this standard and in the UK PPL (Phonographic Performance Limited) issues ISRCs which can be permanently encoded into a product as its digital fingerprint.  But the key is of course an accurate database so royalties from digital uses flow back to the rightful owners, writers and performers : There needs to be a proactive element in any registration system, allowing for bona fide registrations for both the sound recording and title as well as full details of ownership – as well as active policing to prevent ‘re-registrations’ under different titles. Hopefully in the future, digital watermarks will prevent this practice.

View the full report: http://www.musiclicensingdirectory.com/state-of-the-music-licensing-industry-2013. There are only limited contact details (email) on the press release from which the above Update is drawn from, and whilst we were not able to log in, nothing apparent on the company’s website, which surprised us.

Also see  http://www.ifpi.org/content/section_resources/isrc.html

A short clip of Ed Sullivan’s TV show, used in “Jersey Boys” the smash hit musical about the Four Seasons, has been held to be “the very definition of fair use” by a US court in what some will feel is a very liberal interpretation of the doctrine. The 9th Circuit Appeals Court has ruled that a 7-second video which Ed Sullivan’s introduction of Frankie Valli & the Four Seasons on the night of January 2nd, 1966, in an episode of his eponymous variety TV show, was not an infringement of copyright.

Dodger Productions and Dodger Theatricals used the clip in the “Jersey Boys” to show how the US band thrived in a pop music scene dominated by the “British Invasion”. SOFA Entertainment, which owns the rights to “The Ed Sullivan Show” thought otherwise and sued Dodger for copyright infringement – after the company’s founder, Andrew Solt, attended a performance in Los Angeles. At first instance District Judge Dolly Gee granted Dodger summary judgment based on the doctrine of  fair use, and awarded $155,000 in attorneys’ fees.

The federal appeals court has now unanimously affirmed the decision after hearing oral arguments last month. It found that the clip had been properly transformed into a “biographical anchor” and to ”mark an important moment in the band’s career. According to Judge Stephen Trott for the three-judge panel: “At that point in rock and roll history, many American bands were pushed into obscurity by the weight of the ‘British Invasion’ which was kicked off by the Beatles’ performance on The Ed Sullivan Show. The Four Seasons, however, thrived. Being selected by Ed Sullivan to perform on his show was evidence of the band’s enduring prominence in American music. By using it as a biographical anchor, Dodger put the clip to its own transformative ends. SOFA failed to show Dodger used the clip to “capitalize” on Sullivan’s distinctive style of introducing pop acts, which SOFA considers the “central and most beloved” part of the show.”

It is Sullivan’s charismatic personality that SOFA seeks to protect” Judge Trott wrote - “Charisma, however, is not copyrightable”  adding “In the end, we are left with the following conclusion ….. Dodger’s use of the clip did not harm SOFA’s copyright in ‘The Ed Sullivan Show,’ and society’s enjoyment of Dodger’s creative endeavor is enhanced with its inclusion. This case is a good example of why the ‘fair use’ doctrine exists.”

http://www.entlawdigest.com/2013/03/12/2217.htm

Two of the founders of the Pirate Bay have failed in what I presume is their final appeal against their convictions for copyright infringement in the Swedish criminal courts, with the European Court of Human Rights finding that Sweden had rightly convicted the pair.

Fredrik Neij and Peter Sunde were sentenced to one year imprisonment by the Stockholm District Court in April 2009 for crimes against the Copyright Act. Together with two other defendants they were also found liable for damages of approximately K30 million (US$4.3 million). Their prison sentences were reduced in November 2010 by the Svea Court of Appeal, but the joint damages were increased by that court to K46 million (US6.8 million). The Swedish Supreme Court denied them an appeal hearing in February 2012.

Neij and Sunde complained that their convictions infringed their freedom of expression under Article 10 of the European Convention in Human Rights and that as their website facilitated the exchange of information, they could not be held liable for their user’s infringing acts. The ECHR had to balance Article 10 – the freedom of expression (even if such included material that infringed copyright) with the legitimate interests of copyright owners. The Court held that sharing, or allowing others to share, files of this kind on the Internet, even copyright-protected material and for profit-making purposes, was covered by the right to ‘receive and impart information’ under Article 10.  However, the Court considered that the domestic courts had “rightly balanced the competing interests at stake and that the necessity to protect copyright rightly prevailed over the rights of the applicants to receive and impart information when the applicants were convicted”: Since the shared material was protected under the Swedish Copyright Act, the ECHR held that the interference with the freedom of expression by the Swedish authorities had been prescribed by law.

In particular the court looked at the nature of the information shared and said “In this connection, the Court would also underline that the width of the margin of appreciation afforded to States varies depending on a number of factors, among which the type of information at issue is of particular importance. In the present case, although protected by Article 10, the safeguards afforded to the distributed material in respect of which the applicants were convicted cannot reach the same level as that afforded to political expression and debate. It follows that the nature of the information at hand, and the balancing interest mentioned above, both are such as to afford the State a wide margin of appreciation which, when accumulated as in the present case, makes the margin of appreciation particularly wide”.   In addition the Court held that considering that Neij and Sunde “had not removed the copyright-protected material from their website despite having been requested to do so, the prison sentence and award of damages could not be regarded as disproportionate”. And that “Therefore, the interference with the right to freedom of expression had been “necessary in a democratic society”.

The seven judge court unanimously rejected the application as “manifestly ill-founded”.

Neij continues to evade Swedish justice, living in Laos. Sunde lives in Berlin. The third defendant, Gottfrid Warg was deported from Cambodia on visa irregularities and is currently in custody in Sweden. The fourth defendant, millionaire Carl Lundstrom, has made a relatively small ($35,000) payment towards the damages owed, and served his four month sentence under house arrest in Sweden.
http://arstechnica.com/tech-policy/2013/03/european-court-of-human-rights-unanimously-rejects-pirate-bay-appeal/

http://en.wikipedia.org/wiki/The_Pirate_Bay_trial

Along with the OfCom report on research into digital content consumption also referred to in this Month’s Updates, new research by two European Commission researchers finds that “digital music piracy should not be viewed as a growing concern for copyright holders in the digital era” and that the results “indicate that new music consumption channels such as online streaming positively affect copyrights owners.” The results fly in the face of a recent report that said  the closure of online platform MegaUpload almost certainly directly led to a decrease in online film piracy and an increase in legal digital sales of movies. Brett Danaher and Michael D. Smith, professors at Wellesley College and Carnegie Mellon University (CMU) said that “the closing of a major online piracy site can increase digital media sales, and by extension we provide evidence that Internet movie piracy displaces digital film sales.”

The two authors of the new report , Luis Aguiar and Bertin Martens, from the EU’s Information Society Unit, now say “Although there is trespassing of private property rights (copyrights), there is unlikely to be much harm done on digital music revenues” adding “This result, however, must be interpreted in the context of a still evolving music industry. It is in particular important to note that music consumption in physical format has until recently accounted for the lion’s share of total music revenues. If piracy leads to substantial sales displacement of music in physical format, then its effect on the overall music industry revenues may well still be negative.

The authors highlight the differences in the five countries investigated commenting: “The most striking differences appear when looking at the determinants of download. Compared to Germany, Spain show 230% more clicks on illegal downloading websites. Italy presents an important difference of 134% while the UK and France have 43% and 35% more clicks respectively. France stands out when it comes to streaming, with 150% more clicks than Germany. Spaniards have 20% more clicks than the Germans, while Italians have 25% less. The UK presents a small difference with Germany in terms of streaming, with only 9% more clicks

The authors also suggest that the lack of a legal alternative for a given piece of content may have a lot to do with whether or not its pirated. The authors also note that while music revenues have fallen steadily since 1999, last month the International Federation of the Phonographic Industry (IFPI) reported its 2012 global recorded music revenue is up for the first time in 14 years. It rose 0.3% during 2011, to reach $16.5 billion.

The pair conclude: “After using several approaches to deal with the endogeneity of downloading and streaming, our results show no evidence of sales displacement (emphasis added) Overall, our different estimates show relatively stable, positive, and low elasticities of legal purchases with respect to both illegal downloading and legal streaming” adding “All of these results suggest that the vast majority of the music that is consumed illegally by the individuals in our sample would not have been legally purchased if illegal downloading websites were not available to them.

In response, IFPI boss Frances Moore said “The study contains significant flaws and is therefore misleading in its conclusions about the impact of piracy. In particular, it uses a methodology that does not accurately measure digital music purchases and, very importantly, it omits from its assessment the impact of piracy on subscription and streaming services. Most research confirms a very different picture, which is that piracy overall has a negative impact on the legitimate music business”.

BPI Chairman and former EMI UK chief Tony Wadsworth told the Radiodays Europe conference in Berlin that he is very optimistic about the future of the music business. Predicting that the UK recorded music industry will pass the 50/50 point in terms of digital versus physical revenues this year, Wadsworth pointed to the growth of the mobile and in-car internet as providing even bigger digital opportunities for music services, and their music right owning partners, and the start of a new sustainable period of growth.

http://arstechnica.com/business/2013/03/new-research-music-piracy-should-not-be-a-concern-for-copyright-holders/   and for MegaUpload research see  http://arstechnica.com/tech-policy/2013/03/researchers-movie-studios-made-more-after-megaupload-was-shut-down/

US Register of Copyrights Maria Pallante has said that copyright law is showing the strain of its age and requires the attention of Congress commenting “a central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.”

Pallante has proposed that the US government shorten copyright terms saying “You may want to consider alleviating some of the pressure and gridlock brought about by the long copyright term for example, by reverting works to the public domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office” – although Pallante is still suggesting that copyright owners be allowed the current life-plus-seventy term if they ask for it. Bit she argues that the purpose of copyright law is to stimulate the production of new creative works, and it’s not at all clear that your average performer or artist is behaving any differently because they’re granted so many decades of exclusive rights.

http://arstechnica.com/tech-policy/2013/03/head-of-us-copyright-office-wants-to-shorten-terms-just-barely/

Rapper Bow Wow has been ordered to pay out $80,000 in damages to French porn star Celine ‘Katsuni’ Tran after he used footage of her dancing in a music video without permission. Tran appeared as a dancer in a video for French band Electronic Conspiracy, but Bow Wow then used some of that footage for the pop promo for his track ‘Drank In My Cup’ last year. Recognising that Bow Wow and his label Universal may have sought permission from whoever filmed the original footage, Tran sued for publicity right violations, rather than copyright infringement. In the end, though, that distinction didn’t matter because Bow Wow failed to respond to the lawsuit, so the judge overseeing the case automatically ruled in Tran’s favour, ordering the rapper to pay damages and legal fees totalling $79,346.07.

Posting on Facebook  Bow Wow said: “Yo! That dumb ass pornstar chick who ever she is ain’t getting a dime from us! We ain’t make no video. That video was mashed up by somebody on YouTube and I reposted cuz it was dope. People mash up artist videos all the time online. Everybody looking for a hustle. Then they [try to] say ‘Drank In My Cup’ is my song. That ain’t my song, you dumb broad! Get a life. I don’t play dem games. Niggas work too hard to give away free money”.

http://www.tmz.com/2013/03/18/bow-wow-celine-tran-porn-star-music-video-lawsuit/

Rapper Dr. Dre and the company he co-founded, Beats Electronics, LLC, are on the offensive at the US Trademark Trial and Appeal Board challenging a multitude of third-party applications for marks which consist of or contain the word “Beat”. The company owns a number of trademark registrations for use of its various BEATS marks on headphones, speakers, headsets, and other related electronic products and has applications pending for future use on clothing and other items. The WSH law blog reports that the targets of this campaign are mix of smaller, little-known companies as well as big players such as Sony.

The company claims a “likelihood of confusion” between its alleged rights in its various BEATS marks and the various “BEAT” marks applied for by third parties.  Sony, for example, has applied to register the mark “BEATS” for computer games, toy figures, and online gaming services, none of which are incorporated in any of the registrations or applications owned by Beats Electronic

It also claims for “dilution” of its rights by the proposed uses of these various marks. The goods and which are the subject of some of the opposed applications include clothing, software, electronic greeting cards, music production services, audio and video recordings, digital music, CDs, DVDs, electronic greeting cards, and the like. For a dilution claim to succeed it is not necessary to prove competition, likely confusion, or any overlap in the goods and services between the parties issue. However, in order for a dilution claim to succeed, the proponent must own a “famous” and” distinctive” mark: the BEATS trademark has only been in use for a little under five years on headphones and for less time than that on other of the products it sells. Whether the company can prove that in this short period of time its  ”BEATS” mark has become famous enough to successfully assert a claim for dilution remains to be seen.

http://www.mondaq.com/unitedstates/x/226798/Trademark/Are+Dr+Dres+Claims+Of+Likelihood+Of+Confusion+And+Dilution+Enough+To+Beat+His+Opponents&email_access=on

AEG’s deal to take over the running of Wembley Arena has been referred to the Competition Commission after an initial investigation by the Office of Fair Trading. Late last year AEG won the rights to manage the Wembley Arena venue, previously held by Live Nation, but concerns were raised because AEG also operates London’s other arena venue at The O2 complex, as well as the Hammersmith Apollo, one of the bigger theatre venues for the music and comedy industries, and often would control a major ‘stepping stone’ for acts, particularly comedy acts, moving from club venues to theatres and then on to their arenas for the first time. AEG also now control concerts in London’s Hyde Park. The OFT confirmed it was referring AEG’s Wembley contract to the Competition Commission on Friday “due to concerns the merger may substantially reduce competition in the live entertainment venue sector”. A previous referral, when a Live Nation headed consortium brought out the Academy Group resulting in all five of London’s mid-sized rock venues under one company’s control (The Forum, Shepherds Bush Empire, Brixton Academy, Hammersmith Apollo and the now defunct Astoria), led to the disposal of two venues to satisfy Commission concerns.

http://www.guardian.co.uk/media/2013/mar/22/aeg-wembley-arena-competition-commission

http://www.musiclawupdates.com/?p=2613

http://www.competition-commission.org.uk/media-centre/latest-news/2013/Mar/cc-to-investigate-aeg-wembley-arena-deal

A Kiss fan is suing Live Nation after being allegedly injured by debris discharged by a cannon during a show by the flamboyant rockers at the Verizon Wireless Amphitheater in St Louis, Missouri in August last year. It seems that the claimant, William Mueller Jr, was already receiving treatment for brain cancer at the time of the show and his claim says that he was injured after the on-stage cannon “exploded and with great force launched a metal ratchet tie-down strap” that hit the claimant, who was standing by his allotted seat at the time. Noting that Mueller was already in a “weakened and vulnerable condition” because of his illness, the lawsuit says: “[The] defendants owed to [the] plaintiff the duty to exercise the highest degree of care for his safety. [The] defendants’ actions, conduct, or omissions were negligent, negligent per se, or both and were not those of a reasonably prudent person”. The defendants in the action are Live Nation, and the members of Kiss are not (currently) listed as defendants.

http://www.courthousenews.com/2013/03/20/55886.htm

The Office of Fair Trading is to formally investigate plans to award AEG the management contract at the Wembley Arena, particularly in light of its continued management of the O2 Arena, and competition issues raised by its recent award to stage concerts in London’s Hyde Park and its purchase of the Hammersmith Apollo in the capital. A deal to manage Wembley Areana would put the company in control of London’s two main arena venues, as well as the Apollo, often the ‘stepping stone venue’ for bands and comedians looking to move from theatres to arenas.

The OFT investigation will look at whether the proposed Wembley deal will lead to a “substantial lessening of competition” within London’s live music market. If the OFT decides there are legitimate concerns, it could refer the AEG/Wembley deal to the Competition Commission. AEG’s main rival Live Nation’s growth in London caused concerns at the OFT back in 2007 when it acquired a slice of the Academy Music Group, the Competition Commission decided that the proposed acquisition of a controlling interest in Academy Music Holdings Limited (Academy) by Hamsard 2786 Limited (Hamsard) would lead to a substantial lessening of competition in relation to certain live music venues in London, resulting, in particular, in rentals at the venues concerned being higher than would otherwise be the case and forced the live music firm to sell the Hammersmith Apollo and London Forum (both to MAMA) in order to get approval for their AMG deal so that Live Nation  could still retain ownership of the Shepherds Bush Empire and the Brixton Academy. Live Nation’s indirect ownership of the Astoria was discounted, as that venue then faced closure because of rail developments.

Commenting on the new concerns about AEG’s dominance in London, one live industry source told The Guardian: “If AEG have control of the management of the two biggest venues there is of course the issue that they could look to impose ticket price increases, and exert more control over the artists and types of events”.

See The Competition Commission’s final report into the London venue market is published http://www.musiclawupdates.com/?p=2613 and see Will MAMA sale herald a new competition query? http://www.musiclawupdates.com/?p=4774

The Competition Commission (CC) has provisionally found that the completed acquisition by Global Radio Holdings Limited (Global) of Real and Smooth Limited (formerly GMG Radio Holdings Limited) could lead to higher prices for advertisers in seven areas of the UK.

In a summary of its provisional findings, the CC has found that in many areas where Global and Real & Smooth stations currently overlap and compete, advertisers buying airtime on a campaign-by-campaign basis, directly or through smaller agencies (non-contracted advertising) could face higher costs for both advertising and sponsorship and promotion activity.

The CC has, however, provisionally concluded that advertisers using media agencies to buy airtime on a contracted basis and national sponsorship and promotion would not be significantly adversely affected.

The CC has provisionally identified seven areas where advertisers could lose out from a loss of competition: the East Midlands; Cardiff; North Wales; Greater Manchester; the North-East; the South and West of Yorkshire; and Central Scotland. The CC estimates non-contracted airtime revenue in the seven areas to be around £50 million. The CC did not find that advertisers would be adversely affected in London and the West Midlands.

Simon Polito, Chairman of the Global/GMG Radio inquiry and CC Deputy Chairman, said: ‘The advertisers most likely to lose out from this deal are those who do not use national media agencies, and so includes smaller and medium-sized companies. These advertisers rely on the presence of competing commercial stations in order to negotiate a good deal. ‘Whilst in many cases advertisers do have alternatives through other media, radio is often an integral part of a wider media campaign and there remain campaigns for which radio advertising is important.

‘We will now look at ways in which we can preserve competition and look after the interests of advertisers in these areas.’ Global operates the Heart, Capital, LBC, Classic FM, Gold and Xfm radio brands across the UK, while GMG Radio operates stations under the Real, Real XS and Smooth brands.

The CC has also published a Notice of Possible Remedies which sets out ways the loss of competition in the seven areas identified might be addressed. These include Global selling the whole of the acquired business, the whole business apart from those stations in London and the West Midlands or selling individual stations in the affected areas. The full provisional findings report will be published on 15 February. All published documents and other information relating to the inquiry can be found here. The CC would like to hear from all interested parties in writing about the provisional findings by 5pm on 6 March 2013 and the Notice of Possible Remedies by 5pm on 27 February 2013. To submit evidence, please email Global-GMG@cc.gsi.gov.uk

http://www.competition-commission.org.uk/media-centre/latest-news/2013/Feb/cc-provisional-decision-on-radio-merger

Back in May last year we reported that the Ray Charles Foundation was taking legal action against a number of the late soul star’s children, claiming that they have reneged on an agreement reached with their father before he died in 2004 regarding his estate, by attempting to reclaim ownership of the copyright in some of the songs he wrote by using US copyright law provisions that say that works may be reclaimed after 35 years (for works written after the law was passed, longer for works that already existed). The Foundation had said that prior to his death, all of the soul singer’s children agreed to forego any future claims to their father’s estate in return for becoming beneficiaries of a $500,000 trust. The remainder of Charles’s estate, including future income from his copyrights, was left to the Foundation, which supports research and education programmes for the hearing impaired, as well as youth education initiatives. The Foundation says that the children have no right to try and reclaim control of the copyrights in their father’s songs.

The Foundation’s lawsuit also claim Charles entered into a new deal with his publisher in 1980 involving a number of works, which used up his ‘one time claim back’ option anyway under US law and that all other works the Charles’s children are trying to reclaim ownership of were written on a ‘work for hire’ basis for his publisher meaning therefore the publishing company (not the songwriter) is legally the author, and thus the claim back right does not apply (the same argument the major record companies are planning to argue that the 35 year claim back rule is not relevant when it comes to artistes reclaiming sound recordings). If owned by publishers the royalties would still flow to the Foundation

Well – the end result was a win for Charles’s children although the Ray Charles Foundation has pledged to appeal the ruling. The court dismissed the charity’s claims that the family attempting to take ownership of Charles’ copyright broke the agreement reached between the singer and his children before his death in 2004 and the Charles’s children successfully argued that if that if the songs were indeed ‘work for hire, then only Warner/Chappell could try to block their termination notice, not the Foundation.

The charity’s President Valerie Ervin told reporters: “The very clear and unmistakable intention of both Ray Charles and all his children [when making a 2002 agreement] was that, in exchange for a substantial payment, the children were not to raise any claims against their father’s estate. The children who filed these termination notices violated the sacred promise they made. They took their father’s money and now come back for more”. She added: “The law is very unsettled in these matters and we intend to seek resolution through the courts. Meanwhile, The Foundation will continue its substantial charitable works as intended by Mr Charles. Ray Charles never let anything stand in the way of his work and The Foundation continues with his legacy”.

http://www.billboard.com/biz/articles/news/legal-and-management/1535910/court-rules-for-ray-charles-children-in-copyright

The one question I always get asked by young entrepreneurs setting out to create legitimate digital offerings in the digital music space is where do they go to get licences to use music, and make payments? Well, there is no easy answer. In 2012 Daniel Ek, the creator of Spotify, pointed out that the European Union alone had 27 different  music collection societies for songs – and a similar number for sound recordings as well as the the four major labels dealing directly  for digital rights: Ek said the service’s U.S. debut was then still a few months off as Spotify worked through a maze of licensing issues with publishers, labels and collection societies, saying that to create a new above-board music platform in America under current copyright law required big reserves of money, lawyers and perseverance. And that’s just America! At the time Johanna Shelton, senior policy counsel for Google Inc said “The Internet is a simple distribution platform … [but] we’ve made things unnecessarily complex,” noting that calls for a music rights organisation, a one-stop shop to deal with all licensing issues, had gone unheeded. But we all now know that in default of legitimate services ……. piracy fills the void -  and then no-one gets paid.

Martin Mills, the much respected boss of independent Beggars group whose labels include XL, 4AD and Rough Trade and home to Adele, The National, The Prodigy, Sigur Ros, Jack White and Vampire Weekend amongst others, recently admitted that rights owners – especially the bigger ones – had made various mistakes in the way they licence online content services in the last fifteen years, and that the music rights industry still needed to work harder on developing better cross-territory licences. That said, Mills told anaudience at the MIDEM convention “I don’t believe that the present day music industry is a reluctant licensor” adding “we do not need to have control of our rights taken away from us, to be forced to licence that in which we have invested at uneconomic prices, to simply allow huge tech firms to make even huger profits. Yes, music companies needed tech companies just like tech companies need content, but “as someone who invests in music – and when I looked at the numbers a few years ago we had written off £25 million in unrecouped advances to artists over the years – it makes me fume when politicians cosy up to the big techs at our cost and spout philosophically about the needs of the modern world, about us being dinosaurs, and about music’s irresistible urge to be liberated and free”.

European digital commissioner Neelie Kroes has been a staunch advocate on opening up digital licensing and said last year “Too many barriers still block the free flow of online services and entertainment across national borders [in Europe]. The Digital Agenda will update EU Single Market rules for the digital era” saying her aims were to boost the music download business, establish a single area for online payments, and further protect EU consumers in cyberspace. Kroes called on content owners of Europe to construct a “simple, consumer-friendly legal framework” for making digital content available across the Union saying the traditional content industries had not developed their licensing models fast enough to cope with the new demands of internet services saying “Digitisation has fundamentally changed content industries, but licensing models simply have not kept up with this. National licensing can create a series of Berlin cultural walls. The price, both in pounds and frustration, is all too real, as creators are stifled and consumers are left empty-handed. It is time for this dysfunction to end. We need a simple, consumer-friendly legal framework for making digital content available across borders in the EU”.

Mills took issue with some of Kroes’ comments, saying “All in life needs balance and vision, and the likes of Neelie Kroes miss that point. When businesses make money out of music, music rights owners must have the right to a fair share of that income”. Noting also that the music industry pumps a lot more into the tax system than many of the tech giants putting pressure on rights owners, Mills concluded: “I’m incensed about the discrimination and the lack of understanding with which those like us who spend their lives creating art that brings people joy, can get treated by those in power. I very much hope that we can all be a part of changing that, because unless we do, the ladder we climbed will not be there for those who follow us”.

I have recently blogged on the ongoing progress to establish a Global Repertoire Database for music (Global Repertoire Database Tunes Up): In Europe SACEM (France), SGAE (Spain) and SIAE (Italy) have joined forces to create ‘Armonia’, the first pan-European hub for licensing of online services, gathering together more than 5.5m works (the rights of which are managed by the three collecting societies), and addresses online exploitation and/or mobile uses over a territory of 35 countries. Other commercial developments include the collaboration between the PRS (UK) and STIM (Sweden) with a jointly-owned commercial service centre for back room operations; Publisher  EMI has joined up with GEMA (Germany) and PRS and formed a ‘one-stop shop’ for the licensing of online rights  and the UK is in the process of working out how a Copyright Hub – the Digital Copyright Exchange – might work – the place where any copyright owner can choose to register works, the associated rights to those works, permitted uses and licences granted and the place for potential licensees to go for easy to use, transparent, low transaction cost copyright licensing – streamlining copyright licensing and facilitating the licensing of copyrights on a ‘one stop shop’ basis with a registry of copyright data and copyright owners, and potentially with licensing mechanisms.

But conversely comes the news that Universal Music Publishing has confirmed its intention to withdraw it’s digital rights from US performance rights organisations ASCAP and BMI. CEO Zach Horowitz confirmed the planned move in a statement to Billboard, citing an inability from both societies to achieve market rates with digital services; the move will follow Sony/ATV/EMI’s lead, and will allow UMPG do direct deals with streaming services, with Horowitz saying “In order to ensure that our songwriters are fairly compensated, we believe the best approach is for us to negotiate directly with these services”. Recently Sony/ATV (now controlling the EMI catalogue) struck a direct deal with Pandora which seems to  secure the Sony publisher a bigger cut of the royalties available for song rights from the streaming company. Billboard sources also report that BMG Chrysalis has also negotiated the option to do the same but is yet to decide if it will use a direct strategy, a a move away from blanket licence deals negotiated by the collecting societies.

So, if the bigger rights owners, who generally have more to gain from direct deals, move away from collective licensing, where does that leave the concept of a ‘one stop shop’?  If a new digital music business has to go to all of the major publishers in the USA or elsewhere – and all of the major record labels – that means even more ‘stops’ than when Ek was trying to set up Spotify. And surely this must be a huge deterrent to legitimate business models? That said, one can see the attraction to the big rights owners to go it alone – higher royalty payments and upfront advances  or even shareholdings, and also labels, publishers, songwriters and artists can retain vetoes over certain tracks and have a more hands on approach to licensing.  And indeed, whilst it may be only ‘one’ company out of many that need to be cleared – that label or publisher may be able to offer global licence – a near must in most digital business plans.

And the whole issue is complicated further by the fact that no-one seems quite sure how advances from (or shareholdings in) digital operators are treated.  For example how the major labels and Merlin, on behalf of the indeopdnent labels, account for their 18% shareholding in Spotify (valued at anything between $1 and $4 billion)  to their recording artistes? How do Sony and UMG account for the value of their majority shareholding in premium video service Vevo to their artistes. An important question if you are a recording artiste (or songwriter)!

But we clearly have two way tension (at least): Universal’s move reveals the wish of content owners to manage their own digital rights – possibly on a global scale – but this should be balanced against the clear advantage of collective licensing and the fact without global one stop licensing the music industry runs the risk of promoting piracy through over complicating the legitimate market. Do we really want to exclude innovative  but cash-strapped start-ups who could be blocked from the market? Do we want to marginalise smaller rights owners – who are further down the food chain from the major music publishers and recorded music groups? But as Martin Mills rightly says it seems equally wrong to force rights owners to “licence that in which we have invested at uneconomic prices, to simply allow huge tech firms to make even huger profits”.

http://www.billboard.com/biz/articles/news/1533683/martin-mills-call-to-action-his-billboard-midem-speech-in-full

http://the1709blog.blogspot.co.uk/2012/11/hoopers-vision-unfolds.html

http://www.xlrecordings.com/news

http://www.musicweek.com/news/read/universal-music-publishing-to-leave-ascap-bmi/053431

The BBC is taking new Welsh language music collection society Eos to the Copyright Tribunal in a row about BBC radio royalties which began back in 2007 when the Welsh songwriters and music publishers were still members of PRS for Music. A three-way discussion between the BBC, PRS and the affected Welsh language music creators ensued and continued for a quite few years without resolution, until eventually over 300 Welsh-language creators and rights owners left the PRS and set up their own collecting society, Eos. There remains a ‘significant gap’ between what the musicians and publishers want, and what the BBC is prepared to pay, and currently BBC Welsh language programming is denied the use of the 30,000 songs is Eos’s database – previously core to BBC Welsh services – making it hard for the national broadcaster to meet Welsh language targets – and of course Welsh music isn’t being played on the BBC radio in Wales, meaning Eos songwriters and publishers are not getting paid.

Eos claimed they were being short-changed and the group has accused the BBC of conducting “sham” negotiations. The director of BBC Cymru Wales, Rhodri Talfan Davies, says the corporation is not trying to threaten Welsh language musicians in the dispute over royalties and the BBC now wants the Copyright Tribunal to resolve it’s row with Eos, and has even offered to contribute to the group’s legal costs to “ensure that Eos is able to put its arguments to the independent copyright tribunal which is the established legal process to resolve commercial disputes of this nature in a fair and binding manner”.

Eos chief executive, Dafydd Roberts, said the latest development was “disappointing” saying “We’ve taken legal advice …. so we’ll be considering our position in terms of a Copyright Tribunal. But what’s disappointing is that whilst we thought we were negotiating with the BBC on various terms, in fact all they were doing was preparing ground for the Copyright Tribunal”. Roberts said that Eos will consider allowing BBC Radio Cymru to play its members’ music pending any decision and it emerged that this was indeed the situation as negotiations continued, albeit with the Tribunal hearing looming on the horizon.

http://www.bbc.co.uk/news/uk-wales-21351113

The owner of a New Zealand karaoke business has been jailed for four months for offering and selling substantial numbers of karaoke tracks – which had been created from scratch by the owners of Auckland-based Sundown Karaoke, which creates karaoke recordings, burns them to disks and sells them around the world, paying on royalties to the appropriate songwriters. Desmond Robert Adams, 40, also known as Heremia Adams, appeared in the Rotorua District Court  having already  pleaded guilty  to a charge under the Copyright Act 1994 of making for sale an object that was an infringing copy of a copyright work. He was sentenced to four months in prison and ordered to pay reparation of $784.

Adams was the owner/operator of 1st Choice Karaoke, which provides karaoke and DJ equipment and services throughout New Zealand. According to the police Summary of Facts, in March 2011 Adams advertised karaoke and DJ equipment, and access to 37,000 karaoke songs, on auction website Sella. The complainants contacted him, and Adams sent them a list of songs, telling them he had sold the library to more than 50 clients worldwide. The complainants made a $200 deposit and one member of staff travelled to Rotorua. She met with a team from TVNZ’s Close Up programme, who fitted her with a covert camera and microphone to complete the sale. She paid Adams another $584, and was given two external hard drives which held an impressive the 37,000 songs. When random samples were examined by the police they found a number of songs were the copyright property of the complainants.

Judge Jocelyn Munro said there had been few convictions of this type under the Copyright Act. She said there had to be serious consequences for those that breached commercial copyright in order to deter others saying “This is all too common and all too easy in this internet age” adding “For many in recording and entertainment, their livelihoods depend on what they produce.” in their victim impact statement, the complainants estimated they had lost in excess of $1.5 million in sales because of Adams and that his actions had reduced their income to next to nothing, destroying their business. Judge Munro noted that with more than 50 sales admitted, the offending had clearly taken place over time saying “This is a large commercial operation you have embarked on. For that reason nothing less than a term of imprisonment is adequate [to provide] deterrence.”

http://www.rotoruadailypost.co.nz/news/jailed-for-selling-music-on-internet/1767526/

German lawmakers approved legislation on Friday that grants publishers the right to charge search engines and other online aggregators for reproducing their content but continues to allow the free use of text in links and brief summaries.

In it’s original form, the law was seen as a clear attempt to force big Internet companies like Google to share some of the billions of euros they earn from the sale of advertising placed alongside the news that Google links to. But a last-minute change, proposed last week by the Free Democratic Party, the junior partner in the German government, allowed for the use of “individual words or the smallest excerpts of text” free, meaning that only those companies who reproduce full texts for commercial use will be required to compensate the news publishers. Google welcomed the fact that only a weakened version had passed but made clear its opposition to any form of legislation and the Financial Time headline perhaps says it all – ‘Google wins Germany copyright battle’.

http://www.nytimes.com/2013/03/02/technology/german-copyright-law-targets-google-links.html?_r=0

The BPI won three more web-block injunctions, this time against Fenopy, H33t and Kickass Torrents. Mr Justice Arnold said that The UK’s six main internet service providers – Sky, BT, Everything Everywhere, TalkTalk, O2 and Virgin Media – will have to block their customers from accessing these file-sharing sites. BPI boss Geoff Taylor said “blocking illegal sites helps ensure that the legal digital market can grow and labels can continue to sign and develop new talent”, but the Open Rights Group said widespread web-blocking would “encourage new forms of distributed infringement” and that “the BPI should be mindful that their tactics may have the opposite effect to their intention, by legitimising and promoting resistance

http://www.the1709blog.blogspot.co.uk/2013/02/more-on-blocking-injunctions.html

Eliana Pretorian, a soprano who has regularly performed at Glyndeborne and Sadlers Wells, said an agreement made when she was just 17 had “derailed” her personal and professional life, leaving her fearing she could be jailed. Now, years after she became embroiled in legal disputes to overturn the deal, a judge has ruled a case against her was “doomed to failure”, with an application to commit her to jail “wholly without merit”.

UK-based Pretorian appeared at the Royal Courts of Justice after Romanian businessman Ion Vasile applied for her committal to prison for alleged contempt of court for failing to provide him with financial details of her earnings, The case has its origins in a deal said to have been struck between Miss Pretorian’s father and Mr Vasile in 1999, which the businessman claimed entitled him to a share of her future earnings as a singer in return for financing her music studies. As she was 17, Miss Pretorian’s father is said to have agreed on her behalf to pay Mr Vasile 35 per cent of her professional income – ‘earned in such ten years as he might choose’ – in return for a $6,900 (£4,400) contribution to the cost of her musical training. Vasile was said to be a friend of her fathers at the time.

Interestingly, Independent Opera explain her education thus: “Eliana Pretorian was born in Romania and after studying choreography and universal languages, she received a singing scholarship to the National Academy of Music in Bucharest. In 2001 she was awarded a full scholarship to the RCM in London kindly supported by the Sacher Trust, The Wall Trust and Mr. and Mrs. Hayes Scholarship Award. After graduating with First Class Honors she went on to study at the National Opera Studio”.

Now aged 31 and pregnant, Miss Pretorian tried to have the agreement overturned but the Romanian courts rejected her case in February 2009 and ordered her to pay Mr Vasile his legal costs.

But Judge Richard Seymour QC threw out the case, ruling that it was ‘doomed to failure’. He said Miss Pretorian had not breached any undertaking to fully disclose her earnings and that she could not be punished ‘for failing to do something she was not obliged to do’. By mid-December last year, Miss Pretorian had done all that was required of her, he said. Judge Seymour added: ‘What was unexplained was why, that having happened, the decision was taken – by or on behalf of Mr Vasile – to pursue the application for committal’ saying ‘It is manifest that the application to commit is wholly without merit.’

He ordered Mr Vasile, who was not in court, to pay £6,525 in legal costs. Outside court, mother-of-one Miss Pretorian said she felt the deal was ‘immoral to the root’. She claimed she had gained little from it and achieved success through her own efforts. Her barrister, Paul Stadden, attacked the deal as ‘usurious’ It had overshadowed her ever since, even after she won a prestigious scholarship to study at the Royal College of Music, she said.  She added: ‘It nearly destroyed my life. It was never a question of him discovering me or his money being vital to my career.’

http://www.telegraph.co.uk/news/uknews/9862610/Opera-singers-life-destroyed-by-childhood-deal.html  and http://www.independentopera.com/artistsupport/pretorian.html

Taylor Swift is being sued over a $2.5 million advance she was paid for a Canadian festival appearance that never took place.  Swift was due to headline the Capital Hoedown in Ottawa in the summer of 2012, but it was cancelled by organisers. The legal action was instigated by the event’s ticketing company who were forced to pay out $1.8 million in refunds. A spokesman for the singer pointed out that she had no direct agreement with the ticketing firm: I would imagine that if cancelled for no good reason, Swifts own contract (or contract rider) would be the determining document here – and that would be with the promoter – and this would no doubt cover what would happen to any deposit in the event of cancellation.

http://www.ctvnews.ca/entertainment/taylor-swift-sued-over-cancelled-ottawa-concert-tmz-1.1160933

The owner of the Kiss nightclub in southern Brazil where 238 people died in a fire has said he wishes he had never been born, and has deflected blame to architects, safety inspectors and “the whole country”. His lawyer,  Jader Marques, said his client, Elissandro Spohr (28), “regretted having ever been born” because of his grief over the fire, but still blamed Sunday’s tragedy on “a succession of errors made by the whole country.” Spohr and co-owner Mauro Hoffman had been arrested, along with  Gurizada Fandangueira member Marcelo Santos, who was arrested at the wake of band member Danilo Jacques who died in the fire.

As the toll of those injured continued to grow as some 22 of those who escaped returned to hospital with respiratory complications, police investigating the blaze have confirmed it is likely to have started when the band Gurizada Fandangueira lit an allegedly cheap outdoor flare, which ignited soundproofing foam on the ceiling. That initial error was compounded by the near-total lack of emergency infrastructure such as a fire alarms or sprinkler systems. It also seems that the club also had only one working door, one or more faulty and sub-standard fire extinguishers and has not been inspected in the last twelve months.  A number of details are disputed by the local Fire Department.

Marques denied reports that the club was overcrowded, insisting there were only 600 to 700 people in the club at any one time – below the 700 capacity. One performer told media that the space was packed with an estimated 1,200 to 1,300 people and local Police have given the same estimate but Marques insisted that any higher tallies of people at the club that night were due to club-goers cycling in and out

As Brazil looks forward to hosting the 2014 FIFA World Cup and the 2016 Olympics, lawmakers in the lower house in Brasilia have already begun working on a proposal that would require federal safety minimum standards across Brazil rather than state regulations.  Brazilian President Dilma Rousseff, who met with the bereaved relatives, has called for a stricter safety rules across the country. The newspaper O Globo reported that the mayor’s office in Santa Maria has ordered all nightclubs closed for 30 days while inspections are carried out and The BBC reported that mayors from at least eight major Brazilian cities, including seven of the 12 World Cup host cities, have thus far announced new measures aimed at preventing similar tragedies.

http://www.independent.co.uk/news/world/americas/brazil-nightclub-owner-says-he-wishes-he-had-never-been-born-as-he-blames-fire-that-killed-235-on-inspectors-8473724.html

Bogdan Ivanišević, Head of IP Practice Group at BDK legal in Serbia brings us news of a recent Challenge to the recoded music collection society in Serbia, O.F.P.S by one of Serbia’s biggest live events, the Exit Festival.

Bogdan explains that back in May 2012, The Serbian Commercial Appellate Court denied a request by the Organization of Phonogram Producers of Serbia (O.F.P.S.) to collect royalties for communication to the public of Italian sound recordings in a Belgrade restaurant. A few months later, the same court issued a decision in an ongoing case that might again be the cause of a headache to the collecting society and this time much larger financial stakes are involved because the party opposing O.F.P.S. is the well known “Exit” Festival in Serbia.

The annual Exit music festival in Novi Sad was first staged in 2000 at the picturesque Petrovaradin fortress on the banks of the Danube, and the festival is now well known internationally and attracts tens of thousands of fans from all parts of Europe. O.F.P.S. claimed that “Exit” owed it almost 350,000 Euros of unpaid royalties for the use of Serbian and foreign sound recordings during the two festivals held in 2007 and 2008. The list of celebrities who have played live at the “Exit” festival includes Pet Shop Boys, Morrissey, Billy Idol, The Cult, Guns N’ Roses, Franz Ferdinand, Stereo MC’s, Iggy Pop, Massive Attack, Beastie Boys, Snoop Dogg, The Prodigy, Moby, Patti Smith, Chemical Brothers, and numerous others. The Petrovaradin fortress, at which the festival is held, only adds to the appeal. Little wonder then that huge crowds gather every summer to enjoy the music, the sights, and the company of fans with whom they feel culturally close.

In March 2001, the Commercial Court in Novi Sad granted one half of the requested sum to O.F.P.S., but on 20 September 2012 the Commercial Appellate Court annulled the verdict and ordered a retrial. Similar to the previous case (see http://www.bdklegal.com/code/navigate.php?Id=283&bid=90 ) where the Commercial Appellate Court ruled that O.F.P.S. had no valid claim to royalties for communication to the public of Italian sound recordings in a Belgrade restaurant. O.F.P.S. did not provide any evidence that it had entered into an agreement with a corresponding collecting society in Italy, by virtue of which it could collect royalties.

The Commercial Appellate Court again demanded that O.F.P.S. should prove it had standing to sue – or otherwise they would lose the case.

O.F.P.S. sought to collect royalties from “Exit” for the use of recorded music before concerts, during breaks, and after concerts, as well as royalties for the use of recorded music played (communicated to the public) at the various stages independent of any concerts. For O.F.P.S. to lawfully act on behalf of the foreign producers of phonograms and collect royalties for them, it has to prove that in the relevant period (2007 and 2008) it had concluded appropriate agreements with the relevant foreign collecting societies.

The court of Novi Sad inferred the existence of such agreements from the grant on 12 April 2005 of a general authorization for O.F.P.S. to operate. The Serbian Intellectual Property Bureau (IP Bureau), which issued the authorization, referred, in the April 2005 decision, to a report submitted by the O.F.P.S. as part of the application, listing bilateral agreements which the organization had concluded up to that date. As the court in Novi Sad read it, with the decision in April 2005 the IP Bureau renewed the authorization to O.F.P.S. first granted in 2002.

The Commercial Appellate Court differently interpreted the general authorization granted by the IP Bureau in April 2005. The appellate body concluded that in 2005 O.F.P.S. applied for issuance – afresh – of a general authorization, rather than for a renewal of the earlier authorization. Here, the wording of the Commercial Appellate Court’s decision becomes fuzzy (as, unfortunately, it often is in decisions issued by courts in Serbia), but a plausible reading of what the court says is that any prior agreements between O.F.P.S.and foreign collecting societies cannot be deemed to have carried into the new authorization granted by the IP Bureau. In the court’s words:

The fact that after the first authorization from 2002, another authorization was issued does not mean that what occurred was a renewal in relation to which the fulfillment of the condition concerning agreements with foreign organizations is to be assessed. Therefore, with respect to the period of validity of the first authorization the plaintiff has to prove that it has standing to sue for compensation for the use of phonograms the rights of which are held by foreign persons, because the statutory presumption [that an organization for the collective management of copyright or related rights is authorized to act on behalf of the rights’ holders] does not apply vis-à-vis foreign rights’ holders.

What is not in doubt is that the Commercial Appellate Court does not consider it proved that O.F.P.S. was authorized in 2007 and 2008 to collect royalties on behalf of foreign producers of phonograms. The renewal of O.F.P.S.’ general authorization to operate, from April 2005, is not proof. In a closing paragraph, the court instructed the Commercial Court in Novi Sad to establish in the retrial which phonograms were used at the “Exit” festivals in 2007 and 2008, whether those were domestic or foreign phonograms, and whether the plaintiff was authorized to claim legal protection on behalf of the foreign rights’ holders.

It remains to be seen whether O.F.P.S. will be able to provide the requested agreements with the relevant foreign collecting societies as evidence. If that proves impossible, O.F.P.S. will be left only with the statutory presumption of the authorization to act on behalf of Serbian producers of phonograms. Here, O.F.P.S. may run into another difficulty. The first-instance court said in the quashed judgment that “drawing an expert report on the share of the use of phonograms in comparison to the rest of the festival program would be almost impossible, i.e. unreasonably burdensome, having in mind that the festivals in 2007 and 2008 lasted four days each, with tens of thousands of different songs performed at different stages”. The task of establishing which portion of the phonograms communicated to the public in 2007 and 2008 was produced domestically would be, if anything, even more daunting.

Bogdan Ivanišević

BDK legal, Belgrade    http://www.bdklegal.com/code/navigate.php?Id=2

Headed up by EMI, The US recorded music  industry has filed court papers asking for a summary judgement in their favour regarding a long-running copyright dispute with video website Vimeo. The action, which dates back to 2009, what put on hold pending the outcome of Viacom’s lawsuit against YouTube, which tested the ‘safe harbour’ defence available to websites under the US’s Digital Millennium Copyright Act.

Websites like Vimeo and YouTube, which allow users to directly upload content, argue that as they operate takedown systems, removing unlicensed content if made aware of infringement by copyright owners, they have the protection of the ‘safe harbour’ defence against infringement actions.  As ever, it’s a balancing act, and many content owners argue that safe harbour favours website operators and services such as YouTube, and that many websites don’t do enough – and could do a lot more – to remove infringing material from their sites – or even block it ever being loaded up in the first place – and that a system based on “ takedowns” is not enough in the developing digital age.

At first instance US District Judge Louis L Stanton granted summary judgement to YouTube and held that YouTube would only be obliged to take down clearly defined individual infringing items, rather than undertake any consistent action to remove “clones” of the deleted material as they re-appear.

The Second Circuit Court of Appeals vacated the order granting summary judgement because they held that, a  reasonable jury could find that YouTube did have actual knowledge or awareness of specific infringing activity on its website.  In support of this ruling, the Appeals Court cited various evidence from Viacom that arguably showed that YouTube had reason to know that a fair percentage of the content uploaded on the site contained unauthorized copyright material.  The Court further remanded back to the District Court the task of determining whether any of this evidence may show that YouTube had knowledge of or awareness of infringements which corresponded with the YouTube clips subject to the present action – all of which could be quite the evidential task.  The Court also remanded the question of wilful blindness back to the District Court and indirectly demanded an explicit fact-finding exercise to be undertaken.

Unlike YouTube, Vimeo is primarily a site designed for film makers so they can upload and publicly exhibit their films. Seemingly the site has no ambition to host music based material and has no licensing deals with the major music companies. More recently Vimeo has pointed aspiring film makers towards low cost music licensing operations to source music for their productions, to avoid takedown notices from record labels and music publishers – but this is clearly not sufficient for the record labels. Let battle commence!

http://ipkitten.blogspot.co.uk/2012/04/happy-easter-from-amerikat-i-appeals.html and

http://the1709blog.blogspot.co.uk/2012/04/viacom-v-google-next-installment.html

Germany’s music collection society GEMA has said that negotiations with YouTube have broken down, and that the society wants to haul the internet video platform before the arbitration board at the German Patent and Trademark Office. GEMA said that it is appealing to the Board over the alleged unlicensed use of 1,000 music tracks from it’s catalogue, and is calling on the Board to decide independently whether its demand for €1.6 million compensation is appropriate. In addition, GEMA is demanding that YouTube take down the on-screen notice blocking music videos in Germany which blames GEMA for the impasse . In November last year, Harald Heker, the head of GEMA,  accused YouTube of deliberately misleading German users of the web service with the notice.

The last agreement between GEMA and Youtube expired in March 2009. In a statement GEMA said  ”Up till January 2013, despite efforts on both sides, no agreement could be found on the question of the service’s copyright responsibility for the content put online, nor on the amount of remuneration,” adding that on behalf of its music publisher and songwriter members “Therefore GEMA is now taking the first measures to secure appropriate compensation for the copyright holders.”

The Local/bk http://www.thelocal.de/sci-tech/20130111-47273.html#.UPCCtHczSK

Two independent labels have released versions of the Beatles’ track ‘Love Me Do‘ and it’s B side ‘PS I Love You‘ which officially fell out of copyright on 31 December 2012 (after fifty years) against the backdrop of the sound recording copyright term being extended in Europe to a term of seventy years.

The term extension was agreed at a European level after a change of heart by the UK government and extensive lobbying by the recorded music industry. For the UK record industry, there was an real urgency, as it’s catalogue of mid-1960s recordings, including key Beatles and Rolling Stones releases, were approaching the end of their 50 year term. The extension, which was dubbed the Cliff Richard extension because an increasing number of the Peter Pan of Pop’s recordings would enter the public domain, was also helped by stories of ageing session musicians who might still earn royalties from the 1960s hits they were involved in, thanks to a rule that says any recording artists involved in a recording are due a cut of public performance royalties via collecting society PPL, despite past recording agreements with the record labels who released and usually owned the recordings and often pay disgracefully low royalties to artistes.

The European term extension now has to be incorporated into UK law and this is set to be done by November this year – and the UK’s Intellectual Property Office has begun that work with a consultation on copyright, although clearly the principle of the extension itself is no longer up for debate. CMU Daily reports that in particular, there is a planned ‘use it or lose it’ provision which was extensively lobbied for by the Music Managers Forum amongst others on behalf of their clients – recording artistes – that will mean that labels must ensure that recordings 50 year old and over are available for consumption and purchase, otherwise a featured artist will be able to claim control of the copyright. Quite what ‘making available’ means, and how featured artists will go about claiming control, is still to be worked out, but Iona’s blog last week gave us a clue when it highlighted Sony’s actions in releasing a number of Bob Dylan tracks as a four-disk compilation of Bob Dylan songs, which was released last month to enable Sony (and therefore Dylan?) to cash in on the songs on Dylan’s 1962 debut LP, which would otherwise have entered the public domain in Europe on 1 January 2013. Just 100 copies of the CD ‘The Copyright Extension Collection, Vol 1′ were released to selected record shops,

Input on all of this is being welcomed by the IPO until the 4th March this year. EU provisions mean that the extension to 70 years must be in place by November.  However, those recordings released in 1962 which went into public domain at the end of last month will not benefit from any retrospective application of the change – and that includes the original recording of ‘Love Me Do‘ and ‘PS I Love You‘.

CMU Daily reports that Digital Remasterings have included ‘Love Me Do’ on a compilation of very early Beatles recordings, mainly live recordings from their time working at Hamburg’s Star Club and Pristine Classical, which specialises in releasing remastered versions of out-of-copyright classical recordings, has issued its own remaster of ‘Love Me Do‘.

http://www.the1709blog.blogspot.co.uk/2013/01/ipo-consultation-on-directive-201177.html

And see Extending The Term  http://www.musiclawupdates.com/?p=174  and the CMU Daily website here http://www.thecmuwebsite.com/article/mmf-and-fac-speak-up-for-featured-artists-in-copyright-extension-consultation/

The Music Producers Guild’s Mastering Group has achieved a significant breakthrough for all recording artists and other copyright owners by working with the European Broadcasting Union (EBU) to create  an industry standard for embedding ISRCs which uniquely indentify sound recordings into digital music files.

It is hoped that the adoption of this standard will simplify the reporting of the use of tracks by broadcasters, and the distribution of broadcast royalties. The system would also ensure that ISRCs are carried through the digital aggregation process, and could power a global database containing credit information associated with a track, hopefully overcoming a digital music gripe particularly important to the producer and sound engineer community, shoddy crediting (which, arguably, is a violation of a creator’s moral rights in some copyright systems).

The MPG is planning a launch presentation to outline its new standard, and is calling on labels, rights administrators, artists and managers, broadcasters and industry trade groups to get behind the initiative.

http://broadcastengineering.com/music-producers-guild-helps-define-new-industry-standard

Beggars Banquet chief Martin Mills has spoken out against politicians who pay lip service to the creatuve industries. Using a speech at MIDEM to attack the “predatory behaviour” of the majors, and expressing concerns at Sony/ATV/EMI’s recent decision to licence Pandora in the US directly rather than via the collective licensing system Mills went on to say the tell his audience: “I want to address the lack of support that governments, politicians and bureaucrats worldwide show to the creative industries”.

He added: “Many [in governmental and political circles] pay lip service to the value and importance of the creative economy, but most fail to match that with their actions. Creative industries are built upon strong and defendable intellectual property rights, and without that they will inevitably wither and fail. It is impossible to make the investments to produce new creative goods without the security that ownership of them is protected. Yet governments are seduced daily by elements of the new technology industry into diluting and compromising that security”.

Admitting that rights owners – especially the bigger ones – have made various mistakes in the way they licence online content services in the last fifteen years, and that the music rights industry still needed to work harder on developing better cross-territory licences, he continued: “I don’t believe that the present day music industry is a reluctant licensor”.

And, he added, “we do not need to have control of our rights taken away from us, to be forced to licence that in which we have invested at uneconomic prices, to simply allow huge tech firms to make even huger profits”. Yes, music companies needed tech companies just like tech companies need content, but “as someone who invests in music – and when I looked at the numbers a few years ago we had written off £25 million in unrecouped advances to artists over the years – it makes me fume when politicians cosy up to the big techs at our cost and spout philosophically about the needs of the modern world, about us being dinosaurs, and about music’s irresistible urge to be liberated and free”.

“All in life needs balance and vision, and the likes of [European digital commissioner] Neelie Kroos miss that point. When businesses make money out of music, music rights owners must have the right to a fair share of that income”. Noting also that the music industry pumps a lot more into the tax system than many of the tech giants putting pressure on rights owners, Mills concluded: “I’m incensed about the discrimination and the lack of understanding with which those like us who spend their lives creating art that brings people joy, can get treated by those in power. I very much hope that we can all be a part of changing that, because unless we do, the ladder we climbed will not be there for those who follow us”.

Elsewhere at MIDEM yesterday, U2 manager Paul McGuinness, who last year used his Cannes contribution to hit out at Google for failing to stop infringing content from appearing high up in its web searches, returned to that topic once more. According to Music Ally, he told the industry shindig: “I don’t want to engage in Google-bashing, but there is a sense of unease across Europe, across the world, about Google. Google have been making encouraging noises about restricting illegal sites or directions to illegal sites for acquiring music. The noises are very encouraging, but I’d like to see some action. It’s as simple as that”.

Read Mills full speech on the Billboard website, and Music Ally’s full report on McGuinness’s comments here.

Two men accused of hacking into Sony Music’s servers and stealing unreleased music by a number of high profile artists, including Michael Jackson and Beyoncé, have been found guilty. They were each sentenced to a six month suspended prison sentence and 100 hours of community service according to a report in the Guardian. James Marks (27) and James McCormick (26) were arrested in March last year and initially denied the various copyright and computer misuse charges laid upon them, their lawyer saying at the time that they were just massive fans of Michael Jackson who had got carried away. When the case came to court, both pleaded guilty.

Neelie Kroes, the EU Commissioner for the Digital Agenda, has said that she wants to see more companies report when they have been a victim of a cyber attack  and that more transparency is needed to improve cyber security and enable co-operation to strengthen it, adding that many stay silent as it perceived bad PR to admit to an attack. The CEO of BT, Ian Livingston, ranked hscking as in the top three risks to any company.  New EU measures on cyber security are expected soon.

http://www.guardian.co.uk/music/2013/jan/14/hackers-michael-jackson-songs-avoid-jail

A student and a church volunteer have been jailed for carrying out cyber attacks with the hacking group Anonymous, including one online assault that cost the payments giant PayPal at least £3.5m. The attacks targeted anti-piracy and financial companies between August 2010 and January 2011. Christopher Weatherhead, a Northampton University student, was sentenced to 18 months in prison on Thursday for his part in distributed denial of service (DDoS) attacks on PayPal, Visa and Mastercard in December 2010.

Judge Testar also sentenced Ashley Rhodes, 28, to seven months in prison for his part in the activities of the self-styled “hacktivist” group. Rhodes, a church volunteer from Camberwell, south London, sighed and leant his head on the back wall of the dock as his jail term was read out at Southwark crown court. A third man, Peter Gibson, 24, was given a suspended six-month prison sentence for his part in the Anonymous attacks. The sentencing of a fourth man, Jake Burchall, 18, was adjourned.

The Ministry of Sound estimated the cost of the attack on its sites as £9,000, while the International Federation of the Phonographic Industry’s costs were more than £20,000 and the British Phonographic Industry’s more than £4,000. Gibson suggested attacking the website of singer Lily Allen as a possible target to Rhodes at one point. He agreed with the idea, but the attack never went ahead

In a separate matter, Sony Computer Entertainment Europe has been fined £250,000 ($396,100) following a “serious breach” of the UK’s Data Protection Act. UK authorities said a hack in April 2011 “could have been prevented”. The Information Commissioner’s Office (ICO) criticised the entertainment giant for not having up-to-date security software. Sony told the BBC it “strongly disagreed” with the ruling and planned to appeal.

http://www.guardian.co.uk/technology/2013/jan/24/anonymous-hackers-jailed-cyber-attacks

http://www.bbc.co.uk/news/technology-21160818

Efforts by the Irish record industry to force internet service providers in the country to block access to The Pirate Bay have reached the Commercial Court in Dublin. The Irish Recorded Music Association has launched proceedings against net firms UPC, Imagine, Vodafone, Digiweb and Hutchison 3G seeking a web-block injunction forcing the named ISPs to stop their customers from accessing the controversial file-sharing websites.

In the UK, the BPI has threatened to pursue legal action against five members of the national executive of the Pirate Party and its head of IT over the proxy link it operates providing easy access to The Pirate Bay. The BPI wrote to Pirate Party Leader Loz Kaye last month asking that he stop operating the TPB proxy.  After an initial refusal, the record label trade body is preparing to issue proceedings. The move promoted the Pirate Party to disable the proxy. The Pirate Party have also pulled their legal battle fundraiser campaign.

http://torrentfreak.com/pirate-party-shuts-down-pirate-bay-proxy-after-legal-threats-121219/