Article: THE SONG REMAINS THE SAME
Articles / December 2003

Click here to download this article as a PDF file (.pdf) “The Song Remains the Same: A Review of the Legalities of Music Sampling” by Ben Challis December, 2003 Sampling copyrighted music and lyrics – without permission – remains a common activity in the area of music creation. In this article, Ben Challis explains the extent to which this practice is legal. Relevant case law examples from the UK and USA are identified for consideration. Sampling can be simply defined as the incorporation of pre-existing recordings into a new recording. It can be extended to include the incorporation of part or the whole of a ‘tune’ (a melody) and/or lyrics into another work. Copyright subsists in sound recordings, and in the music and lyrics to a song, pursuant to section 1(1) of the Copyright Designs and Patents Act 1988 (CDPA). The CDPA provides in section 16(1) that the owner of a work has a number of acts restricted to him or her, which are to: Copy the work Issue copies of the work or lend or rent copies of the work to the public Perform, show or play the work in public Broadcast the work or include it in a cable programme; and:…

Chinese Rights Owners Seek Payment For Mobile Telephone Use
China
South Korea

COPYRIGHT Record Labels, Music Publishers, Telecommunications The Music Copyright Society of China is seeking US$1.4 million, from China’s second biggest mobile phone operator, TCL Mobile Communication and its distributor, Beijing Digital Electronic Communication Technology, for installing 107 copyrighted Chinese tunes on 12 TCL models. TCL has offered to pay only about a quarter of the damages. A court ruling is pending after a hearing last week in Beijing. China, which is plagued by pirated CDs and DVDs which are on sale on street corners shortly after first release has vowed to crack down on copycats and strengthen intellectual property protection after the country joined the World Trade Organization two years ago. Chinese copyright laws do not specify how much cellphone makers should pay when they include copyright material. “Butterfly Lovers Concerto,” based on a Chinese tragic love story, and “Full Moon of the Fifteenth,” are among the most popular among Chinese cellphone users. China overtook the United States as the world’s biggest cellular market last year. With 244 million users at the end of August. The Chinese copyright owners have demanded 1.4 U.S. cents, for every tune installed on a phone and the dispute is really about how much TCL…

Australian Internet Service Provider Faces Claim For Copyright Infringement
Australia

COPYRIGHT Record Labels, Music Publishers, Internet The Australian music industry has listed an internet service provider (ISP) as a respondent in a court case involving alleged music piracy. E-Talk Communications, trading as Comcen Internet Services, has been served with a law suit in Federal Court (Justice Brian Tamberlin) charged with making money from the provision of copyright-infringing music files. This is the first time the music industry has accused an ISP of being directly involved in piracy by allowing its infrastructure to be used for file-trading activities according to Music Industry Piracy Investigations (MIPI), who led the industry’s investigation. The tactic marks the escalation in the simmering battle between the music industry and the ISPs over how much responsibility the latter should take for any copyright infringing behaviour of their subscribers. The charge is the result of an 11-month investigation into the web site MP3s4Free.net. The registrant of the domain name, Australian Stephen Cooper, was also charged. The MIPI claimed that the website was highly organised and allowed and assisted users to find and download music files. The site received 7 million unique visits in the previous 12 months and MIPI claim that E-Talk economically benefited by hosting the website….

Actress Awarded Damages of £38,000 For Libel
Artists , Defamation / December 2003
UK

DEFAMATION Artists Actress Dame Diana Rigg has accepted the sum of £38,000 for libel and breach of privacy in a High Court action against the London Evening Standard and the Daily Mail. The newspapers had both published articles which said that the actress, famous for her inconic role as Emma Peel in The Avengers, was an ’embittered woman’, ‘lived in France’, was ‘critical of British men’ and had ‘retired’. None of these statements were true and Dame Diana had been upset by the way she had been portrayed and worried that the articles might harm her chance of securing work as an actress. Dame Diana has had a hugely successful television, film and theatrical career in the UK and worldwide. Under UK law a defamatory statement is one which brings the plaintiff into ‘hatred, ridicule or contempt’ or one which ‘lowers the plaintiff in the estimation of right thinking members of society’. Defamation in a permanent form is called libel. In the 1997 case of Burchill -v- Berkoff actor Stephen Berkoff won a libel action after being labelled ‘hideously ugly’ by writer Julie Burchill. £30,000 was awarded for defamation and £8,000 for breach of privacy. Dame Diana will also receive costs and an apology. Part of the settlement…

French Mayor Questions Whether Novel Is a Work of Fiction
Artists , Defamation / December 2003
France

DEFAMATION Artists Jean-Michel Couve, mayor of Saint-Tropez, is bringing a legal action against a fellow local resident and political rival, Christian Millau, claiming that he can recognise himself in Mr Millau’s novel ‘A Campaign In The Sun’. The main character in the novel, Max Farini, is re-elected mayor of a Cote D’Azur town after a hard fought local election, and is corrupt and turns a blind eye to planning regulations. Mr Couve won his last election against an opponent whose campaign was masterminded by Mr Millau by just 11 votes. But Mr Millau has been ordered to take down his 1989 residence which was built without planning regulations. The Mayor’s lawyer pointed out that other authors in France had been convicted of defamation after having ‘described reality too accurately’ in works of fiction. The defence have suggested that in admitting he recognises himself, the mayor is admitting to all of the alleged behaviour in Mr Millau’s novel. See: http://www.guardian.co.uk/france

British Comedian Faces Damages Claim For Show Cancellation
Artists , Contract , Live Events / December 2003
UK

CONTRACTS Artists, Live Concert Industry The British comedian Jim Davidson faces a claim of £35,000 after he cancelled a show at Plymouth Pavilions. The comedian backed out of the show after audience members in wheelchairs refused to move from the front row of the theatre before the show began. The venue refunded 1,700 audience members with the cost of their tickets (£17.50 and £19.50) and the cost of programmes bought. However, Mr Davidson justified his actions because his show involves him ‘taking the micky’ out of the front row of any show and in the circumstances he did not want to appear to be insulting the front row which was wholly made up of disabled patrons. It appears that Mr Davidson did not want to compromise his show or be seen to insult disabled patrons. Source: The Times 22 October 2003

Van Morrison Ordered To Pay Damages For Cancelled Contract
Artists , Contract , Live Events / December 2003
UK

CONTRACTS Artists, Live Concert Industry English pub landlord Gary Marlow has been awarded approximately £40,000 in damages after Van Morrison cancelled a concert at the Crown Hotel public House in 2002. The singer, and his production company Exile, claimed that the contract had been breached by Marlow publicly advertising the event – but the court thought otherwise. The damages included the return of a £20,000 deposit. However, the damages fell far short of what Mr Marlow had asked for – he claimed the failed concert severely damaged the business of his pub and wanted damages of £400,000 for the long term damages to his business. This was not accepted in the High Court and Mr Marlow faces a substantial legal bill – it is also thought he may have turned down an offer of more than £40,000 from the singer to pursue the claim. A review of the judgement by Richard Taylor and Emma Stoker can be seen at:http://www.simkins.com/ebulletins/archive/default.aspx and see: http://www.ilmc.com

“Doublemint” Cannot Be Registered As a Trademark
Artists , Trade Mark / December 2003
EU

TRADE MARK Artists, Merchandising European Court of Justice C-191/01 The European Court of Justice has upheld the decision of the EU’s Office of Harmonisation of the Internal Market that the brand name ‘double mint’ could not be registered as a trade mark as it was not a mere brand name but a description of a product. Such descriptive words and phrases cannot be registered as they are to be kept free for use for everyone else. A wordmark with several different descriptive meanings is not registrable. Wrigley, who manufacture the chewing gum had won on appeal at the European Court of Fist Instance who accepted that the use of the two words together deprived the phrase of any descriptive function but the ECJ overturned this decision saying that the name is one which other chewing gum manufacturers might legitimately want to use. ECJ C-191/01 23 October 2003 See: http://www.ip-firm.de/index.htm

The GHETTOPOLY Version of Monopoly Leads To a Legal Action
Copyright , Trade Mark / December 2003
USA

COPYRIGHT, TRADE MARK Merchandising Whilst the game of Monopoly may be economically out of date (houses in London cost more than a few hundred pounds now) but the makers of board game are to take legal action against spoof version Ghettopoly, which satirises hip-hop culture. The game, based on the traditional family board game, became an instant hit when it went on sale in the US and Europe earlier this year. However, Hasbro, which makes Monopoly, is claiming copyright violation and trademark rights against Ghettopoly. The game sees players get rich through buying stolen properties. In place of the Monopoly top hat, little car and dog players, Ghettopoly players use machine gun, marijuana leaf and basketball icons. According to Ghettopoly creator David Chang, the game also sees “playas” competing with each other by “pimpin’ hoes, building crack houses and getting car jacked”. And instead of Monopoly’s Mayfair or Park Lane, Ghettopoly’s properties include Northside Liquor, The Pawn Shop, Ling Ling’s Massage Parlour or Tyron’s Gun Shop. Apart from copyright and trademark issues, the game has caused outrage in the States. A number of retailers of the game in the US and Europe have decided to stop selling it. The original…

Adidas-Salomon AG v Fitnessworld Trading Ltd
Trade Mark / December 2003
EU

TRADE MARK Merchandising European Court of Justice case C-408/01 This case upheld the decision of the case of Davidoff et Cie SA v Gofkid Ltd (C292/00) and the European Court held that article 5(2) of Directive 89/104/EEC could be used by owners of registered marks to prevent use in relation to services which were both similar to the use of the mark by the registered owner and in relation to goods and services which were not similar. Here Adidas, who have a mark registered at the Benelux Trade Mark Office, wished to use EC trademark law to protect their mark: the mark is three parallel stripes of equal width running on the side and down the length clothing. The stripes are always of a contrasting colour to the base colour of the clothing. The defendant marketed fitness clothing with a similar double stripe motiff. The ECJ held that a member state must offer protection in cases of use by third parties of a later mark or sign which was identical or similar both in relation to goods and services which were not similar, and for goods and services which were covered by the mark’s registration or use. As for the similarities of…

Protecting Existing Marks
Artists , Trade Mark / December 2003
UK
USA

TRADE MARK Artists, Merchandising In the United Kingdom, the Ministry of Defence has filed an application at the UK Patents Office to register the RAF’s red, white and blue ‘target’ or roundel as a trade mark. Registration will include use in clothing. A number of fashion companies have opposed the registration saying that the roundel entered the public domain in the 60s when the ‘mods’ started using the same red, white and blue roundel as a symbol. The owner of the Lambretta clothing company pointed out that the target device had been used since and is closely associated with the style of dress worn by mods, with the band The Who and with the film Quadrophenia which starred Sting and Phil Daniels. The RAF (Royal Air Force) still use the roundel on their military aircraft. In the United States, Native American tribes are seeking to protect their tribal names from commercial exploitation. The tribes point to uses such as the Cherokee Jeep and names for sports teams such as the ‘Redskins’. The tribes have persuaded the US Patent & Trademark Office to created a database of official Native American insignia and logos with the aim of preventing the use of such for…

Responsibility For Security
Health & Safety , Live Events / December 2003
UK

HEALTH & SAFETY LAW Live Concert Industry There would be a presumption that the employer of a security guard who deliberately assaulted a member of the public attending a event would be responsible for the security guard’s actions unless it was clear that the guard’s actions were wholly unrelated to his activities as a security guard – for example, if the guard knew the person assaulted and the act was a personal vendetta against that person. In Mattis -v- Pollock (t/a) Flamingos Nightclub (The Times Law Report 16 July 2003) the Court of Appeal held that a club doorman who stabbed a person in the vicinity of the club in revenge for an earlier violent attack on him in the club was acting in the course of his employment and so the club owner was vicariously liable for the doorman’s actions. The doorman was involved in a fight inside the club. The knifing happened after the doorman had gone home to get a knife and then attacked the victim some 100 metres away from the club. The victim was seriously injured. The doorman was convicted in a criminal court for grievous bodily harm (GBH) and sentenced to 8 years in prison. This civil action…

Ghostface Killah Wins Copyright Infringement Case
USA

COPYRIGHT Music Publishing, Record Labels A New York federal court has upheld the “fair use” doctrine by dismissing a lawsuit against Sony Music Entertainment and rappers Ghostface Killah, Raekwon and the Alchemist for copyright infringement. The plaintiff, Abilene Music, accused the rappers and Sony, which released the album, of infringing its copyright in the well known song “What a Wonderful World.” The infraction allegedly occurred when the trio made slang references to marijuana in a rap that began with a variation on the first three lines of the song popularized by Louis Armstrong (news). The defendants successfully argued that while the song’s lyrics were adapted from “What a Wonderful World,” they were protected as fair use under the Copyright Act. In granting a summary judgement for Sony and the rappers, Judge Gerard Lynch said the rap was clearly a parody, intended to criticise and ridicule the cheerful perspective of the original song. The judge also noted that the rap made key changes to the lyrics and to the overall effect of the lines, and it was not an imitation of the original. The Judge held that whereas the original first three lines of ‘Wonderful World’ describe the beauty of nature,…

Sampling Newton -v- Diamond and Others (2003)
USA

COPYRIGHT Music Publishing, Record Labels, Artists In 1992 the Beastie Boys got a license from ECM Records to sample a copyrighted sound recording from James W. Newton Jr.’s flute composition, Choir. The group sampled and used a six-second, three-note sequence and looped it throughout its song “Pass the Mic,” featured on the Capitol album “Check Your Head.” In 2000, Newton who also composed the work, sued the Beastie Boys, alleging that the remix infringed the “heart” of his flute composition, and that the band should have obtained a license from him as the composer of the underlying work in addition to obtaining a sample to use the recording. The US Appeals Court, affirming the court of first instance’s decision, held that there was no infringement because the use of the sample was minimal and there were no substantial similarities between the two works or that the average person would recognise the appropriation. COMMENT : The band clearly felt that they had obtained the relevant appropriate licence: They had gone to the owner of a recording they wished to sample and licensed this. As they had only used three ‘unidentifiable’ notes in sequence they believed (rightly it seems) that they hadn’t used the…

Microsoft To Settle Class Actions, Record Labels Face Scrutiny
Competition , Record Labels / December 2003
USA

COMPETITION Computer Software, Telecommunications, Record Labels Microsoft has agreed to settle class action lawsuits from a number of US states which alleged that the software giant abused its dominant market position. Microsoft are handing out discounts worth approximately USD $200 million to consumers and schools in several US states including Kansas, North Dakota, South Dakota and Tennessee. The Times(29/10/03) estimate that Microsoft has paid out more than $1.5 billion over the last ten years in anti-trust and competition payments. Microsoft is now facing further actions from the US Government and state justice departments who have raised concerns the world’s largest software maker is trying to use its dominant Windows operating system to influence where customers buy their music online. If action is brought, it will be the first test of Microsoft’s unique and federal Court approved anti-trust settlement. The Justice Department and 19 state attorneys general have formally complained to a federal judge about a design feature of Windows that compels consumers who buy music online to use only Microsoft’s Internet Explorer browser and steers them to a web site operated by the company. Microsoft is also now facing competition investigations from the European Commission. In another anti-trust action, the five…

Judgement For Damages In Holly Valance Management Dispute
Artists , Contract / December 2003
Australia

CONTRACTS Artists Holly Valance’s Australian ex-manager, Scott Michaelson, has been awarded AU$350,000 (approx £160,000) in damages after the singer wrongly terminated his management contract. Justice Clifford Einstein found that the artist had breached the contract and awarded the damages for loss of earnings and management commission. Ms Valance will also have to pay costs. Mr Michaelson’s damages were limited to Holly Valance’s first album and he will not receive commissions from her yet to be released second album. See: http://www.theage.com.au/articles/2003/11/06/1068013328625.html

Zeta Jones and Douglas Win Limited Damages
Artists , Consumers , Image Rights , Privacy / December 2003
Germany
UK

PRIVACY, IMAGE RIGHTS, COMMERCIAL CONFIDENCE Artists The photographs snatched by papparatzi at Catherine Zeta-Jones and Michael Douglas’ wedding have cost Hello! Magazine more than £1 million in damages. In the High Court, Mr Justice Lindsay awarded a total of £14,600 damages to the couple and also awarded OK! Magazine £1,033,156 in damages for commercial damage to its exclusive coverage of the New York wedding in November 2000. See Law Updates May 2003 COMMENT : The judgement in this case sees only limited damages awarded to the couple : a nominal £50 to each of the claimants for data protection infringements and £3,750 each for the ‘distress’. The substantial award of damages is to OK magazine who lost their right to exclusive pictures from the celebrity wedding and Mr Justice Lindsey accepted that the magazine had lost substantial sales. To take this further, this ‘commercial confidence’ must be based on the licence of certain rights Catherine Zeta Jones and Michael Douglas has – and it is suggested that this is not only to the ‘event’ itself, the wedding, but to their own image. Most recently F1 driver Eddie Irving won a case against TalkRadio after they used the driver’s image in an…

Massive Piracy Raid in Italy
Copyright , Record Labels / December 2003
Italy

COPYRIGHT Record Labels Police in Italy have dismantled a major organised ring involved in the mass duplication of music, movies and software. The raids, in the Naples area, struck a blow against organised CD-R and DVD burning and distribution in the country. The raids followed months of investigation, and involved 50 of Italy’s Fiscal Police who located and seized six undercover burning laboratories in the suburbs of Naples on October 24. The raids netted 496 CD and DVD burners, including 200 CD burners found at one location. Over 60,000 burned CDs and DVDs ready for distribution throughout Italy were also found. They included the latest film and music titles, such as Tomb Raiders II and The Best of R.E.M. The value of related equipment, including computers, burned CDs and DVDs and blank discs is estimated at hundreds of thousands of Euros. Nine people have been charged with criminal copyright law infringement. The BSA (Business Software Alliance), FAPAV (the Italian branch of the Motion Picture Association) and FPM (Italian Record Industry and the IFPI) assisted in the raids. See: http://www.ifpi.org

US Copyright Office Review
USA

COPYRIGHT Record Labels, Music Publishers, Computer Technology, Internet, Telecommunications The U.S. Copyright Office has rejected dozens of requests to relax a 1998 federal copyright law, including proposals to allow people to play DVDs bought in other countries and to copy DVD bonus materials for non-commercial use. This week’s ruling concludes a review conducted every three years on whether the legal use of some copyright materials has been hurt by the Digital Millennium Copyright Act, which bans the bypassing of copy protection on digital music, movies and other works. More than 50 requests for exemptions were made but the Copyright Office granted only two new exemptions. One permits access to electronic books by software for the blind and to computer programs and video games distributed in formats now obsolete.

R v Clark (2003) Re-broadcasting Foreign Television Signals
Copyright / December 2003
UK

COPYRIGHT Televison, Radio Pubs and clubs which illegally screen live football matches from the English Premiership league in England face prosecution as the Federation Against Copyright Theft (FACT) which acts for Premier League, which owns the copyright to the matches, takes action against infringers. Live football is banned in the UK on Saturday afternoons to promote match attendance and income from TV rights. In R v White, Hertfordshire bar manager William Clark was found guilty of copyright infringement and fined £500 and £720 costs. The maximum fine in a magistrates court is £5,000 for this offence. Foreign signals (which of course can be legally transmitted in the countries to which they are licensed) but which can be downlinked in the UK include Canal + in Holland and Poland and Sport TV in Portugal. All show live Premiership matches, although without English commentary. The Evening Standard, 4 November 2003

Federal Communications Commission (FCC) Back The ‘Broadcast Flag’
Copyright / December 2003
USA

COPYRIGHT Film, Television The US FCC has approved plans to embed a digital marker or flag in all digital television programmes in order to prevent their illegal distribution over the Internet as broadband develops. Broadcasters and film makers are particularly concerned that illegal copies will reach foreign markets in a digital form before foreign broadcasters have had a chance to legally broadcast there. In the UK, a number of foreign series such as Friends are often months, if not years, behind first transmission in the US. But the Electronic Frontier Foundation (EFF) have voiced serious concerns about the broadcast flag and its impact on the manufacturing of digital televisions and DVD recorders as well as on the personal liberty of consumers – “The FCC today has taken a step that will shape the future of television,” said EFF Senior Intellectual Property Attorney Fred von Lohmann. “Sadly, this represents a step in the wrong direction, a step that will undermine innovation, fair use, and competition.” The EFF’s pre-ruling ‘action alert newsletter’ commented: Hollywood is at it again, trying to control the design of new digital technologies. If the motion picture studios have their way, the Federal Communications Commission (FCC) will force manufacturers to include…

India’s State Broadcaster To Take Action As Cricket Footage Is Illegally Broadcast On Rival Channels
Copyright / December 2003
India

COPYRIGHT Film, Television Indian state broadcaster, Prasar Bharti, is planning to take legal action against a number of privately owned news and sports channels which are re-transmitting cricket footage which is owned and licenced to Prasar Bharti’s national Doordarshan channel. Under Indian national custom and practice, other channels can air up to 30 seconds from rival broadcaster’s footage for news and review purposes provided that dues acknowledgement is given to the copyright owner. Using more than 30 seconds is a copyright infringement. See: http://timesofindia.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=270364

Piracy News From Around The World
Malaysia
UK
USA

COPYRIGHT Record Labels, Music Publishing, Internet A recent report published by NPD in the US shows that the threat of legal action against individuals who download copyrighted songs and swap files has led to a reduction in the number of infringements. The number of US households acquiring digital music via p2p file-sharing services declined by 11% from August to September and the total number of music files downloaded decreased 9%, says the company. However, the report also shows that the public image of record labels has suffered badly. In Malaysia, the record industry has resorted to ‘digital watermarking’ preview CDs sent to journalists after numerous album titles were found on the Internet before release but after review copies had been sent to the press. The watermarking is a series of invisible and unique digital codes embedded onto the CD which allows investigators to trace the source of the download. However, and in contrast to the problems reported by the record industry, US collection society Broadcast Music Incorporated (BMI) which represents music publishers and artists such as Britney Spears, Sheryl Crow, Pink and Eminen has announced increased annual revenues for last year, pre record industry actions. The performing right organisation distributed…

Will Smart CDs provide an answer to file swapping?
Copyright , Record Labels / November 2003
EU
USA

COPYRIGHT Record Labels Recording companies are looking at a new generation of smart CDs that promise to stifle music fans’ ability to use file-swapping networks while still allowing them some freedom to make copies and share music. BMG Entertainment’s new album by hip-hop singer Anthony Hamilton will be the first commercial release to use a technology that restricts copying but lets buyers play protected CDs on computers and burn copies onto blank CDs. Fans can even send a limited number of copies to friends over the Internet. BMG is using the new copy-protection advancements by embedding Comin’ From Where I’m From with MediaMax CD-3 technology from Phoenix-based SunnComm Technologies Inc. With MediaMax CD-3, each song is written onto the CD twice, once in a format readable by standard CD players and the other as a Windows media file playable on a computer. BMG has set up the CD so fans can burn each track three times per computer. Songs can also be e-mailed to a limited number of people, who can then listen to the song up to 10 times each. SunnComm says that most people, unless they are hackers or truly determined, won’t be able to circumvent the limits, including one…

Does the Recording Industry need a new model to exploit copyright?
Artists , Copyright , Internet , Record Labels / November 2003
USA

COPYRIGHT Record Labels, Internet, Artists, Film & Television I remember the first VHS tape I ever brought in 1985. The cassette cost £29.99, a lot in 1985, and far more than I would pay for a film on video or even DVD now. This was at the time of the 1984 Sony Betamax case and the film industry was still coming to terms with the ramifications of the US Supreme Court’s split decision that the Betamax machine was legal. But unlike the current situation with legal actions being filed around the world by the recording industry against the likes of Napster, Verizon, KazaA and even individuals who download files, the film industry made efforts to widen the consumption of their ‘product’ – films – through television, video rental, pay-per-view, sell-thru video and video on demand. Could this approach perhaps have been a useful lesson or basic blueprint for the recording industry? The film industry seems historically to have adapted to changes in consumer habits alongside and embraced changes in technology – cinemas were improved, multiplexes built, new price structures launched and the film companies adapted to and explored the new media. This Law Update it written just two months after…

Germany considers new copyright reform
Germany

COPYRIGHT Internet, Record Labels, Artists, Music Publishing The German Minister of Justice Brigitte Zypries has announced the “second basket” of reform for copyright laws for Germany. Zypries said she wanted to see the remaining provisions of the EU Directive of Copyright in the Digital Age enacted into law by next summer (see the position in the UK below). In particular the new laws will prohibit the right to make private copies made from digital sources. German commentators have remarked that this provision is similar to that of the US Digital Millenium Copyright Act and have pointed out that such a provision would be unacceptable; Copyright owners who protect their content by encyryption would be relieved from the obligation to offer access for privileged users such as libraries, schools or disabled persons and commentators add that basic constitutional freedoms would be undermined. Eva-Maria Michel, Legal Counsel of the WDR Public Broadcasting Station has said that the provisions would be a violation of the constitutional liberties of the media. Michel warned that the copyright reform focuses too much on combating piracy and thereby destroy basic privileges in the copyright field. The movie and music industries have, by contrast, lobbied to remove the right to…

Nintendo develops low cost ‘piracy proof’ console for China
Copyright , Internet , Record Labels / November 2003
China

COPYRIGHT Record Labels, Internet Nintendo has revealed plans to market a cheaper version of its Game Cube console in China, with a flash memory card instead of the optical disc reader found on models sold in other countries. Game Cube software is normally stored on proprietary 1.5GB optical discs. Optical discs, such as DVDs and music CDs, are routinely counterfeited in China. Chinese users will have to take the Game Cube card to a shop and pay for the download of new games. The data cannot be extracted or cloned from one card to other cards, nor can a card for one console be used on other consoles. Nintendo hopes that the modified Game Cube overcomes to two obstacles holding back console makers from the potentially lucrative China market – the spending power of the consumer and rampant software piracy. The game device – dubbed iQue Player – is said to be capable of playing both SNES (Super Nintendo Entertainment System) and Nintendo 64 titles, and will sell for 498 yuan (US$60), including the memory card, according to games web site Total Video Games. It will be sold from mid-October in Shanghai, Guangzhou and Chengdu in an effort to enable…

Taiwan copyright law revisions ‘a step backwards’
Taiwan

COPYRIGHT Record Labels, Music Publishers, Artists, Film, Television The Taiwan Anti-piracy Coalition have said that the country’s revised copyright laws are a step backwards in the fight against piracy. The Coalition said the removal of minimum penalties on some intellectual property offences was a major concern. The Legislative Yuan passed the revised Copyright Law in June 2003 after making a total of 53 changes to a draft originally proposed by the Executive Yuan. According to the Coalition, these changes have seriously weakened copyright protection, especially regarding penalties for copyright violators, since the law now defines a copyright violation as making more than five copies of a product or selling copies that are worth more than NT$30,000 on the street. This means that persons who make fewer than five copies or less than NT$30,000 will not be regarded as criminals. In addition, the Coalition argue that the removal of the minimum six-month prison penalty would make people less worried about infringing copyright. The Coalition said the lack of adequate intellectual property protection will have serious consequences for industry and the future of the nation’s economy. See: http://www.taipeitimes.com/News/biz/archives/2003/09/17/2003068192

Ghana to introduce new copyright legislation
Ghana

COPYRIGHT Record Labels, Music Publishers, Internet The current Copyright Bill before Ghana Parliament will provide for the creation of a Copyright Tribunal which would have substantially increased penalties available against those who infringe the rights of authors and composers in Ghana. Professor George Hagan, Chairman of the National Commission on Culture, said the Bill met the minimum requirement of the World Intellectual Property Organisations (WIPO) Internet Treaties. At a four day conference, over 30 executives from African intellectual property organisations looked at the problems of piracy on a pan-African level as well as the negative affect of piracy of Western copyrights on African culture. “African culture faces the real risk of being adulterated under the guise of foreign influences, whilst the advanced world are progressively adopting measures to protect and promote their cultural heritage,” Prof. Hagan said. Ghana, through the active collaboration of the WIPO, International Federation of Reproduction Rights Organisation (IFRRO) and the Reproduction Rights Organisation of Norway has now succeeded in establishing a Reprographic Rights Organisation. The Conference was convened under the auspices of the Copyright Society of Ghana in collaboration with the International Confederation of Societies of Authors and Composers (CISAC) and the WIPO. See: http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=44752

Japanese authors to win lending right
Copyright , Music Publishing / November 2003
Japan

COPYRIGHT Publishing The Japanese Cultural Affairs Agency intends to require major book-lenders to pay copyright royalties to novelists, cartoonists and other holders of copyrights. The plan is part of an effort to address growing concerns that an increase in the number of major chains entering the book-lending business could violate cartoonists and authors’ copyrights. For years, shops renting out books, magazines and other publications have been exempted from the law governing payment of copyright royalties. The Agency plans to submit a bill to revise the Copyright Law to the next ordinary session of the Japanese Diet. Under the proposed bill, major book-lenders will be obliged to pay royalties to copyright holders, such as novelists and cartoonists, starting in 2005 at the earliest. Copyright holders have the right to restrict the lending of copyrighted material under existing Copyright Law. With videos of Japanese movies, video rental shop operators buy the videos for three to four times the market price to cover the cost of copyright royalties paid to film companies and scriptwriters. In the case of music compact discs, composers, performers and music production companies have the right to lend out the copyrighted material on the CDs. According to the Agency,…

Sentencing for online film piracy
Copyright , Internet , Record Labels / November 2003
USA

COPYRIGHT Film & Television, Internet, Record Labels A New Jersey man who pleaded guilty to illegally copying and posting a digital version of summer action movie “The Hulk” on the Internet received a three-year probation, was fined us $2,000 and was ordered to serve six months confinement in his home. He also must pay $5,000 in restitution to Universal, the company that produced and distributed the movie. Kerry Gonzalez pleaded guilty to one count of copyright infringement. He admitted to receiving an unfinished copy of the movie from a friend who in turn sourced the ‘work print’ from a third party who worked for an advertising agency. No one from the ad agency has been charged. The FBI traced the Internet copy back to Gonzalez through an encoded “security tag” on the print. The Motion Picture Association of America already puts the number of films pirated off the Internet at 400,000 to 600,000 a day, and no one has calculated what that costs the industry. Jack Valenti, the president of the MPPA, went before Congress in March to warn that “America’s crown jewels – its intellectual property – are being looted”. See: http://www.philly.com/mld/inquirer/2003/09/27/news/local/6873888.htm

Sentencing for the online sale of pirated CDs
Copyright , Internet , Record Labels / November 2003
USA

COPYRIGHT Record Labels, Internet New Yorker Alan Davis was sentenced to six months in jail after being convicted of using the Internet to sell hundreds of CDs that were loaded with unauthorised copies of songs. Davis, 42, of Brooklyn, was also ordered to pay $3,329.50 (£2,000 approx). Judge Walton in the US District Court of Washington DC also sentenced Davis to one year of supervised parole, to be served upon his release from jail, and barred him from using a computer for one year. Davis had admitted using his site, EmpireRecords.com, to market more than 100 different CDs and cassette tapes featuring compilations of copyrighted materials from various musical artists. He was caught after an FBI agent ordered 200 CDs and had them shipped from New York to Washington. The Web site has since been shut down. See: http://news.zdnet.co.uk/business/legal/0,39020651,39117063,00.htm

Suspended prison sentence for contempt of court for repeat copyright infringer: PPL v Tierney
UK

COPYRIGHT Record Labels, Music Publishers, Live Concert Regular ‘users’ of music who either refuse to pay licence fees at all or who do so only under threat of legal proceedings are the bane of music collecting societies. The threat of legal proceedings does not always dissuade a repeat infringer. Furthermore, some infringers are prepared to ignore court orders or undertakings which they have given to the court. In this case the defendant Mr Tierney, the proprietor of an establishment in Guildford, breached a court order by failing to pay licence fees to Phonographic Performance Ltd in relation to certain sound recordings played at his establishment. He had also failed to comply with undertakings given to the court on a number of occasions. Failure to comply with a court order is a contempt of court which is punishable by a fine or an order for committal to prison. PPL applied for an order to commit Mr Tierney for contempt of court in respect of his failure to comply with the court order. It had reportedly made seven previous applications of this nature against Mr Tierney. PPL succeeded in its application. Mr Tierney had been warned of the consequences of further breaches…

Assertion of character rights in UK advertisement
Artists , Image Rights / November 2003
UK

CHARACTER (IMAGE) RIGHTS Artists It seems that one of the UK most successful advertisements ever will feature in a High Court action. The advert features two ‘twin’ runners with wild hair and handlebar moustaches in 70s style striped singlets and cut-away shorts running across the country promoting the new directory enquiries number 118118 owned by US firm The Number. 118118 has captured 50% of the directory market from British Telecommunications. The runners have sparked of huge popular support and widespread ‘cult’ appreciation. But David Bedford, the British 10,000 world record holder in 1973, claims the runners are based on his image. Mr Bedford’s solicitors have written to The Number claiming the advertising is based on Mr Bedford’s image, in particular his 1973 image, which featured wild hair, moustache, striped singlet and cut away shorts. The Number have rejected the claim as ‘ridiculous’ and claim the 118118 runner image is an ‘aggregate’ on 70’s runners and that most runners of that era sported wild hair and facial hair. They say that the only runner actually looked at was a friend of Mr Bedford’s from the 70s, Steve Prefontaine who died in a car crash in 1975. Mr Bedford, 53, is the…

Ex-manager wins case against Holly Valance
Artists , Contract / November 2003
Australia

CONTRACTS Artists Holly Valance’s ex-manager, sacked by the star when her pop career began to take off, has won his action against the star in an Australian court. The Court held that Vallance had unfairly terminated the contract of Scott Michaelson in January 2002. Lawyers for Valance claimed Michaelson – like Valance, a former Neighbours actor – had been ill-equipped to manage the star’s burgeoning music career. Michaelson is seeking £160,000 in lost income, a 20% cut of sales of Valance’s second album and exemplary damages. The Court will now assess damages. Valance first found fame in Neighbours. She released her first album, Footprints, in October last year. See: http://news.bbc.co.uk/1/hi/entertainment/showbiz/3161392.stm

EU Copyright Directive will finally be implemented in UK law
EU

COPYRIGHT Artists, Record Labels, Music Publishers, Internet, Film, Television Legislation implementing the European Copyright Directive has finally been laid before the UK Parliament. Among other things, it extends the UK’s copyright laws to deal with digital piracy, albeit ten months behind the EU’s deadline. The Copyright and Related Rights Regulations 2003 will amend the Copyright Designs and Patents Act of 1988 and will come into force on 31st October. The Copyright Directive, passed in 2001, was the EU’s attempt to update copyright protection to the digital age. It is also the means by which the European Union and its Member States will implement two 1996 World Intellectual Property Organisation (WIPO) Treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The new Regulations are available at: http://www.legislation.hmso.gov.uk/si/si2003/20032498.htm

Limp Bizkit sued by irate fans
Artists , Contract / November 2003
USA

CONTRACTS Artists Limp Bizkit are being sued by 172 rock fans who attended July’s infamous Chicago show, which ended after only 17 minutes when the band were booed off stage. A lawsuit was submitted yesterday to District Court in Illinois. The band were supporting Metallica on the Summer Sanitarium tour, at Chigaco’s Hawthorne Racetrack. The suit alleges that the plaintiffs were expecting a ninety minute show but the band’s front man, Fred Durst, fired-off a tirade against the city and the audience, before challenging the entire crowd to a fight. The breach-of-contract suit has been filed by Michael Young, the lawyer acting on behalf of the 172 aggrieved concertgoers, who are seeking a $25 refund from the July 26 show opening the door to up to 40,000 re-payment claims. See: www.dotmusic.com

Microsoft, OD2 and Tiscali face patent action
Internet , Patents / November 2003
EU
USA

PATENT LAW Internet Microsoft MSN Music Club, Tiscali Music Club and Peter Gabriel’s OnDemand Distribution (OD2) are facing a patent infringement lawsuit in a German court over their on-demand music services. New York-based E-Data filed the lawsuit last Tuesday in the German court of Mannheim, seeking an injunction against the German subsidiaries of Microsoft, Tiscali and OD2 to defend its European patent EP0195 098B-1. The patent covers the downloading and recording of information, such as music, films and text from a computer onto a tangible object such as a CD or a sheet of paper. The patent also covers nine other European Union countries (the UK, Austria, France, Switzerland, the Netherlands, Italy, Luxembourg, Belgium and Sweden. The original patent was granted in the US in 1985 to Charles Freeny for his “system for reproducing information in material objects at a point of sale location”. Both the MSN Music Club and the Tiscali Music Club use OD2’s music catalogue of over 200,000 recordings. Because E-Data’s US patent has expired, Apple’s popular digital music store, iTunes, is not subject to any action but E-Data’s lawyers have written to Apple to alert them to potential patent problems should iTunes be launched in Europe…

European directive on patents for computer software
Internet , Patents / November 2003
EU

PATENT LAW Telecommunications, Internet The European Parliament (September 24th 2003) has passed a resolution for a proposed directive to harmonize rules on software-related patents in its member states titled Directive on the Patentability of Computer-Implemented Inventions. Its aim is to provide clear guidance on what software-related subject matter may be patentable. Under the proposed Directive, in order for a computer-implemented invention to be patentable, it must make a technical contribution to the state of the art. An invention will not make a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. The invention may only be claimed in the patent as a product or a technical production process using hardware under the control of software. See: http://www3.europarl.eu.int/omk/omnsapir.so/calendar?APP=PDF&TYPE=PV2&FILE=p0030924EN.pdf&LANGUE=EN

DVD pioneers consider Warners suit
Internet , Patents , Record Labels / November 2003
Germany
Japan
USA

PATENT LAW Record Labels, Internet The inventors of the world’s first combined compact disc and DVD are considering legal action against Warner Music, one of the largest record groups, amid allegations of breach of contract and patent abuse. The Dierks Group, the privately-owned German music and technology group that pioneered the double-sided CD and DVD, has warned Warner that it has patents and contract rights over combined music and video discs after the US group signalled plans to manufacture so-called dual discs. Warner Music, a subsidiary of Time Warner, is planning to launch dual discs in the US next year in a potential tie-up with Sony Music, part of the Japanese consumer electronics and entertainment giant. Dieter Dierks who patented the combined disc technology under the name DVD Plus, has written to Warner Music claiming it has licenses over production of such discs and royalty agreements that promise a share of future profits arising from sales by the US group. See: www.cdfreaks.com/news2.php?ID=8078

Granada and Carlton Free to merge
Competition / November 2003
UK

COMPETITION LAW Television In a move which surprised many industry commentators, ITV giants Granada and Carlton are to merge to form a single ITV in England and Wales. The companies were given outline permission by the Trade and Industry Secretary, Patricia Hewitt, with only limited restrictions. The Competition Commission had advised the minister that the merger would not breach competition laws provided there are conditions attached to the way advertising is sold. At one point it seemed likely that the merged group would not be able to sell its own advertising as the new entity would control 52% of all UK television advertising as the new entity would control 52% of all UK television advertising (worth more than £3 billion). The Competition Commission have recommended a series of rules to prevent market abuse. As well as restrictions on advertising sales, the merged ITV group must agree to a package of safeguards to protect the protect the remaining three independent channel 3 broadcasters – The Scottish Media Group (Scotland), Ulster (Northern Ireland) and Channel TV (Channel Islands). In response ITV’s main commercial rivals in the UK (Channel 4, Five, BSkyB and Flextech’s ‘UK’ channels) are considering a joint advertising sales house….

Nokia hit by piracy of handset games
Copyright , Internet , Record Labels / November 2003
EU

COPYRIGHT Record Labels, Telecommunications, Internet The secret codes protecting games which can be played on Nokia’s combined telephone/games platform N-gage have already been cracked and the games can be downloaded from the internet and can be played on other games consoles. The software for the games had already been licensed to a number of companies including Samsung and Siemens. Source: www.timesonline.co.uk/business

Insurance Bottomley -v- Secretary & Members of Todmorden Cricket Club and Others
Live Events / November 2003
UK

EVENT SAFETY LAW Live Concert Industry A seemingly uninteresting case involving a cricket club could have important ramificatons for the live event industry in the UK. In the Court of Appeal decision a small cricket club which engaged an independent contractor to put on a pyrotechnics (fireworks) display at the ground was held to owe a duty to ensure that the contractor had adequate public liability insurance. It made no difference that the contractors were paid a fee. Lord Justice Brookes said there might be many occasions when an occupier could be liable in negligence in respect of activities permitted or encouraged on his land. Here, the club allowed a dangerous event to take place on its land with no written safety plan and no insurance and the occupier could not show that they had taken reasonable care to select a competent contractor. The club was therefore liable in damages for injuries sustained by the claimant who had been employed by the contractor to help with the event. If the occupier of the premises could show that they had taken reasonable care to select a competent and safe contractor then they would normally escape liability. In those circumstances an injured…

Criminal Proceedings Against Lindqvist ECJ C101/01
Artists , Data Protection , Internet , Privacy / November 2003
Sweden

DATA PROTECTION AND PRIVACY Internet, Artists This case arose out of a simple set of facts. A religious instructor for the Swedish Church, Bodil Lindqvist, posted up webpages on her home computer which were aimed to help parishioners prepare for their confirmation. The administrator of the Swedish Church’s website provided a link from their website to the defendant’s webpages at her request. The webpages contained information about colleagues of the defendant with first names and in some instances full names, address and telephone numbers. The defendant also remarked that one colleague was on half time work because of medical reasons – she had injured her foot. The web pages were mildly humerous but the defendant had not asked for permission from any of the parties featured. She also had failed to notify the Datainspektionen, the relevant Swedish supervisory authority, of her activities. The Defendant was charged with (i) processing personal data by automatic means with notification to the relevant authority (ii) processing sensitive personal data without authorisation and (iii) transferring the data to a third party [via the internet].The Gota Hovratt (Court of Appeal, Gota) referred the case to the European Court of Justice for clarification of EC Directive 95/46/EC….

Article: THE COPYRIGHT & RELATED RIGHTS REGULATIONS 2003
Articles / November 2003

Click here to download this article as a PDF file (.pdf) By Jonathan Cornthwaite, Solicitor Wedlake Bell © 2003 Wedlake Bell   The Copyright and Related Rights Regulations 2003 (SI 2003 No. 2498)(“the Regulations“) came into force on 31 October 2003. The Regulations implement in the UK the EU’s Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (“the Directive“) which entered into force on 22 June 2001. The aim of the Directive is to harmonise across the EU the basic rights relevant to uses of copyright material in the light of technological developments in the information society and e-commerce. The rights in question are those of originators of copyright material to control reproduction and communication to the public by electronic transmission of their works, including by way of digital broadcasting and on-demand services (i.e. services whereby works are accessed by the public at a time and place individually chosen by them). The UK has implemented the provisions of the Directive by an amendment to the Copyright, Designs and Patents Act 1988 (as amended)(“the Act“). The Copyright Directorate (part of the Patent Office) considers that current UK law provides a sound basis to meet the challenges of new…

MPAA BRINGS ACTION AGAINST PRODUCER OF DVD COPYING SOFTWARE
Copyright , Internet , Record Labels / October 2003
UK
USA

COPYRIGHT Record Labels, Internet, Film & Television In a case reminiscent of the 1984 ‘Sony Betamax’ case, the Motion Picture Association of America has launched an action in the High Court of England & Wales against 321 Studios which produces software which allows the copying of DVDs by consumers. The MPAA has already filed an action in the US (December 2002) seeking to prohibit the sale of 321 Studios’ software titles DVD X Copy and DVD Copy Plus. It also wants any profits from sales as recovery of damages. 321 Studios says it has sold a total of 150,000 copies of the two software titles. 321 Studios insists that its software does not violate the Digital Millennium Copyright Act in the US which outlaws providing information or tools to circumvent copy-control technology. At the same time, the movie studios are using the Digital Millenium Copyright Act against a software package produced by Tritton Technologies. The studios have filed a suit in a Manhattan court to block the sale of “DVD CopyWare” that allows DVD owners to backup their DVD collection to DVD-R media. Also named in the suit are three website hosts selling the software. Paramount and Twentieth Century Fox…

LIABILITY FOR EMPLOYEE’S COPYRIGHT INFRINGEMENT
Copyright , Internet / October 2003
USA

COPYRIGHT Internet Lowry’s Reports Inc v Legg Mason Inc et al In this case, two related financial services companies were found to be vicariously liable for copyright infringement as a result of the acts of an employee. The employee re-distributed e-mail newsletters containing a daily stock market analysis originating from the plaintiff, Lowry’s Reports Inc, by posting these on Legg Mason’s intranet which was available to all brokers and by e-mailing copies of the newsletter to other Legg Mason employees. The Lowry newsletter contains up to date stock market information and valuable predictive data calculated using confidential algorithms. Lowry’s require subscribers, who are limited to individuals and cannot be corporations or organisations, not to make unauthorised copies nor to disseminate the newsletters or their content. An existing Legg Mason policy prohibited copying of such copyrighted materials by employees. The US District Court in Maryland ruled that the activities of the defendant’s employee infringed the plaintiff’s copyright. The defendant was found to be vicariously liable for copyright infringement because it had (a) the right and ability to supervise the infringing activities and (b) it has an obvious and direct financial interest in exploitation of the copyrighted material. The fact that the employee’s actions…

AUSTRALIAN TRIO FACE CRIMINAL SANCTIONS FOR ONLINE MUSIC PIRACY
Copyright , Internet , Record Labels / October 2003
Australia

COPYRIGHT Internet, Record Labels Three Australian men face jail after pleading guilty last week to infringing copyright in what the Australian recording industry believes is the world’s first criminal prosecution for online music piracy. Until now, legal actions against music websites such as Napster, KaZaA and Aimster have relied on civil law (see Law Updates above). The three defendants, all twenty years of age or under, last week pleaded guilty to infringing the copyright of music giants Universal Music, Sony, Warner, BMG , EMI and Festival Mushroom Records. Police arrested the defendants in April after raiding their homes in Sydney following a joint investigation with Music Industry Piracy Investigations (MIPI), a record industry-funded watchdog. They face up to five years’ jail and $60,500 in fines for illegally distributing up to $60 million worth of music on a website called “MP3 WMA land”. In the UK, the Copyright Designs & Patents Act 1988 and Trade Mark Act 1994 both provide for civil and criminal sanctions. Jail sentences can extend to five years in the Crown Court with unlimited fines (see September 2003 Law Updates and April 2003 Law Updates for examples). Whilst traditional piracy such as bootlegging and distributing illegally copied CDs has resulted in…

MOBILE PHONE RINGTONE PIRACY BOOMS IN ASIA
Australia
Singapore

COPYRIGHT Record Labels, Music Publishers, Internet, Telecommunications The phenomenal growth of Asia’s mobile phone market has spawned widespread ringtone download piracy. Copyright owners are battling to claim royalties in Asia – a region which has long been problematical with widespread traditional forms of music piracy, such as the organised distribution of counterfeit and bootleg CDs and cassettes. The International Confederation of Societies of Authors and Composers have said that the problem is prevelant in most South-East Asia territories. Whilst territories such as Japan, Korea, Singapore and Malaysia have systems in place to govern ringtone copyright, and owners are compensated for use, ringtone downloads in countries like Thailand and Phillipines are almost entirely unlicensed with little legal revenue. The ringtone market is now big business (see Law Updates September 2003). In Japan, music publisher collection society JASRAC receives multi-million dollar royalties from ringtone operators. In Singapore, one of the biggest cellular phone markets in Asia (with an ownership rate of 80 per cent) ringtones cost about $S2 ($1.79) on average in the legitimate market. Whilst a number of favourite downloads are mainstream western artists such as Norah Jones and Britney Spears, Asian composers are also being hurt because local hits are…

EFF FIGHTS BACK AS DirecTV SENDS OUT FIRST WARNINGS TO SMARTCARD OWNERS
Copyright , Internet / October 2003
USA

COPYRIGHT Television, Internet The following comment is from the Electronic Frontiers Foundation newsletter of the 16th August 2003, Vol 16 No 21: Satellite TV giant DirecTV has sent ominous letters to an estimated 100,000 individuals, accusing them of purchasing “pirate access devices” and threatening to haul them into court for stealing television channels. The letters tell the unlucky recipients that the prospect of an expensive legal battle will go away if they pay up, usually to the tune of $3,500. Yet, in too many cases, the targets of the letters never intercepted DTV’s signal; they’re only guilty of owning smart card technology. This dragnet is catching innocent security professionals, hobbyists, and entrepreneurs. Without proof of a violation of law, DTV’s unsubstantiated threats to sue are an abuse of the legal system. As if that’s not bad enough, DirecTV has filed over 9,000 lawsuits against purchasers of smartcard technology, employing an army of lawyers to squeeze even more costly settlements out of individuals nationwide. Ask your Members of Congress to initiate an investigation into DirecTV’s misuse of the law and blatant disregard for the public’s right to use technology. See: www.eff.org The DirecTV Defense website sponsored by EFF and Stanford Law School’s Center…