EFF Pushes Digital Television Revolution
Copyright / September 2004

COPYRIGHT Broadcast The Electronic Frontier Foundation is stepping up its campaign against the new technology regulations from the Federal Communications Commission which will outlaw a set of technologies in less than a years time and police the way people record and view digital television broadcasts. Aimed at preventing illegal copying, The EFF suggests that the FCC’s “broadcast flag” could actually prevent a number of activities that are perfectly legal under copyright law – such as recording a clip of a Fox News program and redistributing it with commentary for the purposes of criticising the company’s reporting. EFF is fighting back with the Digital Television Liberation Project – an initiative to help people make their own broadcast flag-resistant personal video recorders (PVRs) from off-the-shelf parts. EFF has created such a PVR and demonstrated the machine at the Defcon 12 conference in Las Vegas, Nevada in late July. “We want to keep the right to time- and space-shift that the VCR has given us. We want to keep the fair use rights that let us excerpt clips from press conferences or make our own ‘Daily Show’ from the evening news,” says EFF Staff Attorney Wendy Seltzer.”That’s why we’re encouraging people to buy…

JibJab Files Suit to Defend Fair Use Rights
Copyright , Music Publishing / September 2004

COPYRIGHT Music Publishing In early July, the two brothers behind the animation shop JibJab released a short flash animation featuring cartoon versions of President Bush and Senator John Kerry slinging insults at each other to the tune of Woody Guthrie’s “This Land Is Your Land”. The short, called “This Land” has been very popular but the copyright holder to the music composition, Ludlow Music, Inc., has threatened JibJab and its upstream website hosting providers with copyright litigation. Jibjab have argued that their use of “This Land is Your Land” should qualify as a fair use under copyright law: The animation house used only a few lines of Guthrie’s lyrics and the short is also a parody, commenting not only on the 2004 elections, but also on Woody Guthrie’s famous song. JibJab has asked the Electronic Frontiers Foundation to help to protect its fair use and free speech rights and the EFF have filed a lawsuit on JibJab’s behalf, asking a federal court in San Francisco to declare that the use of the composition is perfectly legal. Ludlow were previously successful in a copyright action against Robbie Williams after Williams used near identical lyrics from a Guthrie song in Williams’ song“Jesus In A Camper Van”. However the…

Retired Police Officer Held Massive Database of Music Files for Swapping. R v Manton
Copyright , Music Publishing / September 2004

COPYRIGHT Music Publishing After British Phonographic Industry (BPI) investigators spotted a website selling CDs by mail order, Trading Standards Officers seized two computers, a stack of 1,262 disks and details of emails from Howard Manton – alleged evidence of the illegal internet-based music business the retired policeman was running from his home. The 45-year-old ran a website which offered copied albums for sale. His online catalogue featured 37,650 songs – some of which had been recorded live and had not been released by the record companies. Among his collection were counterfeits of tracks by Robbie Williams, Oasis, Queen and Pink Floyd. The music was downloaded in mp3 format onto disks, which each contained up to eight albums. They also included artwork from the front and back cover of the genuine CD. Manton, admitted 14 charges including copyright and trade mark infringement. He told Nottingham magistrates that he made from the venture but had ploughed this back into his music collection. He also claimed that he had contacted trading standards prior to setting up the site and had been told that it was not illegal. The Magistrates Court sent the case to Nottingham Crown Court for sentence – they ordered a…

Megadeth Members Serve Lawsuits On Each Other
Artists , Copyright / September 2004

COPYRIGHT Artists The founding members of 1980s metal band Megadeth have exchanged lawsuits after bassist David Ellefson filed an action on July 12 2004 in U.S. District Court for the Southern District of New York alleging that co-founding guitarist David Mustaine breached their long-running partnership agreement. He claims Mr Mustaine wrongfully took the lion’s share of the band’s income (estimated at more than $200 million since 1984) for himself and cut Ellefson out of the band’s music publishing and merchandise revenues. The bassist is seeking at least $18.5 million in damages. Mr Mustaine’s counterclaim, filed July 29 in California Superior Court in L.A., alleges that Mr Ellefson executed a settlement agreement in which he gave up his 20% interest in Megadeth. Mr Mustaine maintains that the settlement, which Ellefson alleges was signed under pressure (duress) and ultimately withdrawn, released Mr Mustaine from all claims and his suit seeks damages to be determined. Source : Billboard See : http://msnbc.msn.com/id/5627419/

BPI Welcomes Government Crackdown On IP Theft

COPYRIGHT Reord Labels, Music Publishers, Broadcasting, Internet, Artists The UK recorded music industry’s association the BPI (British Phonographic Industry) today welcomed the Patent Office’s increasing commitment to fighting the escalating problem of intellectual property (IP) theft – piracy and counterfeiting – in unveiling the UK’s first IP crime strategy. Music piracy generates over million annually for counterfeiters, and this figure grew by 13% in 2003- six times the growth in legitimate CD sales. Intellectual property crime cheats consumers, costs jobs and helps fund organised crime. Piracy and counterfeiting, including DVDs, perfumes, clothing and alcohol, costs the UK economy billions of pounds and undermines the success of many of the UK’s best companies. The national strategy, developed by the Patent Office and launched by Industry Minister, Jacqui Smith MP, brings together brand owners, police, trading standards and customs to: – increase the sharing of intelligence between different agencies; – improve training for those working at the front-line; – better co-ordinate the agencies involved in the fight against intellectual property crime; and – monitor progress and success by publishing an annual national enforcement report The Industry Minister, said “Pirates and bootleggers cheat consumers and place a drain on our economy We cannot…

US Antitrust Settlement ‘Censored’ By State Lawyers
Artists , Censorship , Competition , Record Labels / September 2004

COMPETITION LAW/CENSORSHIP Record Labels, Artists In 2002 US District Judge D Brock Hornby sitting in the federal court approved the settlement of a lawsuit filed on behalf of millions of record club members who alleged they had been overcharged in a price-fixing conspiracy. The sum of US $143 million was agreed by the five major record companies (Sony, BMG, EMI, Universal and Warners) and three large music retailers in settlement of the anti-trust claims – the claims were that they had been conspiring to set minimum prices for music CDs in the United States. Under that settlement, 3.5 million people received cheques for $12.60 and libraries and schools across the country will due to get $75.7 million worth of music CDs. The lawsuit was signed by the attorney generals of 43 states and territories. However, all is not well with the settlement. In Kansas City, Missouri the Attorney General Phil Kline has withheld 1,600 of the state’s allotted 51,000 discs, because they are contrary to his “concept of decency”. He will not allow any albums that “promote violence or illegal activity” to go into public libraries or schools. The 25 offending artists include Outkast, Notorious B.I.G., Rage Against The Machine,…

US: Ninth Circuit Declares Grokster, Morpheus Not Liable for Infringement

COPYRIGHT Record Labels, Internet, Music Publishers The Ninth Circuit Court of Appeals made a crucial decision in support of technology innovators by declaring that distributors of the peer-to-peer software Grokster and Morpheus cannot be held liable for the infringing activities of their users. The Electronic Frontier Foundation argued on behalf of Streamcast, the creators of the Morpheus software, in a case that pitted dozens of entertainment conglomerates against two small software companies. The Ninth Circuit decision is based in part on the fact that P2P networks have significant non-infringing uses, and that they can help artists earn money. The ruling is similar to the Supreme Court’s decision in the 1984 Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR. “Today’s ruling will ultimately be viewed as a victory for copyright owners. As the court recognized today, the entertainment industry has been fighting new technologies for a century, only to learn again and again that these new technologies create new markets and opportunities,” said EFF Senior Intellectual Property Attorney Fred von Lohmann. “There is no reason to think that file sharing will be any different.” The court’s decision was unanimous. It is…

Music Linked Cigarette Sponsorship Challenged in Maryland, US
Artists , Business / August 2004

SPONSORSHIP Artists, Sponsorship, Merchandising The Attorney General of Maryland has filed a lawsuit against the maker of Kool cigarettes, charging that the company is illegally targeting young people with a marketing campaign built around hip-hop music.The suit announced by Attorney General J. Joseph Curran asked that the marketing campaign organisers, Brown & Williamson, be fined at least $5.3 million and prohibited from continuing with its Kool Mixx 2004 promotional campaign in Maryland. Brown & Williamson defended the campaign saying that it celebrated hip-hop music and the art form of the mixers, and the DJs, who mix music. Contests are held in bars where alcohol is sold and young people are not admitted. The suit was filed in the Baltimore Circuit Court. Maryland is the second state to file suit against the Kool Mixx campaign. The New York attorney general got a preliminary order last month from that state’s Supreme Court, halting use of the Web site and a live audio webcast of DJ contests along with the recall of special cigarette packs and brand merchandise. See : http://www.bradenton.com/mld/bradenton/business/9058942.htm

Copyright Subsists in an ‘Edition’ Version of a Work Even Where No Significant Changes are Made to the Melody

COPYRIGHT Record Labels, Music Publishers Hyperion Records plans to appeal against a High Court ruling that the company must pay copyright fees for use of a 300-year-old piece of music in one of its recordings. The decision could have serious repercussions throughout the world of classical music. The suit against Hyperion was brought by Dr Lionel Sawkins, a musicologist who spent a year preparing an edition of pieces by Michel-Richard de Lalande (1657-1726), court composer to Louis XIV and Louis XV. Sawkins claimed that, since his work had been used by Hyperion to make its CD “Music for the Sun King”, he was entitled to royalties on the recording. Hyperion pointed out that Dr Sawkins had received a hire fee for us for the use of his editions so was being paid. Under the Copyright Designs & Patents Act 1988 (as amended) copyright normally expires 70 years after the composer’s death, but Patten J ruled that Sawkins’s work had been significant enough for him to claim royalties: “I am not persuaded,” said Mr Justice Patten, “that one can reject a claim to copyright in a new music work simply because the editorial composer has made no significant changes to the notes.”…

German Clash Over Levy On Copying Devices

COPYRIGHT Record Labels, Music Publishers, Technology, Internet A long-running feud in Germany over imposing a levy on computers and printers has returned to the headlines after a government minister suggested extending the levy to all devices capable of duplicating copyright-protected material. In a weekend interview with the Süddeutsche newspaper, German Justice Minister Brigitte Zypries said the government may broaden its copyright law to include a levy on all devices capable of copying and not just copy machines, scanners and CD burners. Currently, Germany imposes a levy only on devices specifically designed for copying, according to Zypries; in the future, she said, all devices that can be used to copy copyright-protected material should be subject to a fee, with the amount determined by usage. Germany is one of several European countries that for decades has been collecting special copyright fees on the sale of analogue copying devices such as blank audio and video cassettes, and more recently, digital CD players. The fees are intended to compensate rights holders for lost royalties from private copying of music, images and movies: attempts by the German rights society, VG Wort, to extend the same levy to computers and printers have met strong resistance by…

Dutch Supreme Court Confirms Format Rights Decision: Castaway v Endemol
Copyright / August 2004

COPYRIGHT Television The titanic battle over ownership of the Big Brother format appears finally to have been resolved by the Dutch Supreme Court after a legal battle lasting well over three years. On 16 April the Supreme Court of the Hague rejected the appeal by Castaway Television Productions Ltd and Planet 24 Productions Ltd against the decision of the Dutch Court of Appeal which in turn confirmed the decision of the Dutch Court of first instance. The trial judge had ruled that the format of Big Brother is not an infringing copy of the Survivor format. The “Survive” format on which the action was based was the same format which Castaway sought to protect in the Celebrity action (see our early warning of August 2003). It was originally produced under the name Expedition Robinson in the summer of 1997 in Sweden, and then subsequently in other European countries. At around the same time Endemol Productions was developing a format, which eventually became Big Brother, that was broadcast in the autumn of 1999. Castaway Television asserted that the Survive format is a copyright work by virtue of its unique combination of 12 elements. It also claimed that Big Brother is an…

Beenie Man Show Cancelled Over Homophobic Lyrics
Health & Safety , Live Events / August 2004

HEALTH & SAFETY Live Event Industry A London concert by Jamaican dancehall star Beenie Man was cancelled after complaints it might provoke violence towards gay men. Police spoke to Beenie Man after a complaint that some of his songs contain “lyrics that are an incitement to homophobic murder and violence”. The performer, real name Anthony Davis, was due to appear at the Ocean club in Hackney in East London which cancelled the show on the grounds of concerns for public safety after talks with police officers. The performer was not arrested or spoken to under caution and it is reported that the police did not ask for the concert to be cancelled. Beenie Man was among Mobo-nominated performers included in a dossier presented to Scotland Yard’s Race and Violent Crime Taskforce by gay rights campaigners last September. Refunds have been offered to those with tickets for the show. See : http://news.bbc.co.uk/1/hi/england/london/3838975.stm

Princess Caroline Wins Historic Court Battle
Artists , Privacy / August 2004

PRIVACY Artists Princess Caroline of Monaco has won an appeal in the European Court of Human Rights in Strasbourg which overturns the German Constitutional Court’s decision that as a contemporary pubic figure she had to tolerate pictures taken of her in public. The ECHR held that the publication of pictures of her horse riding, skiing, with her husband and sitting in a café had violated the princess’ right to privacy, in breach of the European Convention on Human Rights (Article 8). “Every person, however well-known, must be able to enjoy a legitimate hope for the protection of… their private life,” the court said. “The court considered that the general public did not have a legitimate interest in knowing Caroline von Hannover’s whereabouts or how she behaved generally in her private life.” German law already gave some protection to celebrities; in 1998 a German court ordered Bunte magazine to pay the Princess £20,000 for violating her privacy by publishing snatched pictures of her when she was ill – taken by a Paparazzi trespassing on the Princess’s property. Germany has three months to file an appeal. See : http://news.bbc.co.uk/1/hi/world/europe/3838945.stm http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/06/25/wcaro25.xml&sSheet=/news/2004/06/25/ixnewstop.html http://www.dw-world.de/english/0,3367,1430_A_1026243_1_A,00.html ARTICLE By Jonathan Coad, Solicitor VON HANNOVER v GERMANY: WATERLOO FOR THE…

“Creative Commons” Adopted in the Netherlands

COPYRIGHT Record Labels, Music Publishers, Television, radio, Film, Internet The Netherlands has become the third European nation to adopt a ‘Creative Commons’ approach to copyright. This is a simpler way of handling copyrights on the Internet already adopted in Finland and Germany . The brainchild of Professor Lawrence Lessig from California’s Stanford University, and others, Creative Commons (CC) was originally launched as an American initiative 18 months ago. CC’s objective is to stimulate the distribution of electronic material, like literature, photographs, music, films and scientific works, over the Internet without breaching copyright laws, and creating, in the process, a large public domain – a ‘creative commons’ – for artists and scientists to share and work in. Unlike the present, ‘all rights reserved’ copyright system, CC adopts a simpler, ‘some rights reserved’ attitude. Its licences come in 12 flavours of varying application and coverage, stipulating exactly where (for non-commercial purposes, for example) and how (mentioning the information source is mandatory) a licensed work can be used. The Duch version of CC will conform to Dutch copyright law and allow owners to stipulate how and where free use can be made without affecting ownership. See : http://www.dmeurope.com/default.asp?ArticleID=2124

Artist Wins Right To Use Barbie Dolls
Artists , Copyright , Trade Mark / August 2004

COPYRIGHT & TRADEMARK Merchandising, Artists Artist Tom Forsythe from Utah has fought off an action by Mattel who attempted to prevent the artist from using Barbie Dolls in his work. Mr Forsythe photographed undressed dolls positioned with kitchen equipment to comment on the subservience of women. He argued that the dolls produced a gender oppressive value in girls. In 1999 Mattel launched an action against Forsythe claiming copyright and trade mark infringement arguing that the artist was using their brand to sell and/or promote products without Mattel’s permission. They demanded destruction of any photographs and negatives. Judge Ronald Lew in the Los Angeles Federal District Court threw out the claim as groundless awarding costs of $1.8 million against Mattel and warned Mattel against intimidatory tactics. See : The Times 29 June 2004

EFF Fears the Inducing Infringement of Copyright Act Will Stifle Innovative Technology

COPYRIGHT Record Labels, Music Publishers, Film, Television, Internet The Electronic Frontiers Foundation have pointed out that Senator Orrin Hatch’s new Inducing Infringement of Copyright Act (S.2560, Induce Act) would make it a crime to aid, abet, or induce copyright infringement. The EFF say that Senator Hatch “wants us all to think that the Induce Act is no big deal and that it only targets ‘the bad guys’ while leaving ‘the good guys’ alone. He says that it doesn’t change the law; it just clarifies it. He’s wrong.”. The EFF comment that under the Supreme Court’s ruling in Sony Corp. v. Universal City Studios, Inc. (the Betamax VCR case), devices like the iPod and CD burners are “100% legal” not because they aren’t sometimes used for infringement, but because they also have legitimate uses. The Court in Sony called these “substantial non-infringing uses.” The EFF have suggested that the Inducing Infringement of Copyright Act might “kill the iPod” and to dramatise how the Induce Act might harm technology innovators and consumers. The EFF have posted a mock complaint on their website which is a lawsuit that could be brought against Apple, accusing the corporation of selling its popular iPod music player to induce people to…

The Supreme Court of Canada Rules That All Internet Transmissions Into Canada Are Covered By Canadian Law

COPYRIGHT Internet, Music Publishers, Record Labels The Supreme Court of Canada today confirmed that internet transmissions into the country from outside are covered by domestic Canadian copyright law, regardless of the origin of the transmission. The ruling arises from a court case in Canada, in which the international and Canadian Recording Industry organisations, IFPI and CRIA, and other rights holders organisations sought to confirm that communications which travel across Canada’s border, and are received in the country, should be subject to Canadian copyright law. The intervention took place following an appeal by Canadian Internet companies against a tariff by the Society of Canadian Composers, Authors and Music Publishers (SOCAN), a performing rights society. The Supreme Court confirmed the industry’s understanding of the law, ensuring that rights holders are protected under the Canadian Copyright Act against unauthorised transmissions in Canada, regardless of where they originate. Source www.ifpi.org However, Canadian Supreme Court has also ruled that ISPs are not subject to royalty fees. Canada’s high court ruled that the creation of a cache copy by Internet providers is part of their business to provide access to users, who have an expectation of freedom and privacy , and should not mean the providers have…

US Court Rules That Internet Service Providers Are Not Liable For Passive Storage of Infringing
Copyright , Internet / August 2004

COPYRIGHT Internet The US Court of Appeals for the Fourth Circuit has ruled that an Internet Service Provider (ISP) does not copy material in direct contravention of the US Copyright Act when it passively stores material at the direction of its users. The plaintiffs were providers of commercial real estate information. Some of the plaintiffs’ copyright protected photographs appeared on web sites affiliated with the defendant ISP, Loopnet Inc, which operated a web site allowing subscribers, generally real estate brokers, to post real estate listings, including photos. Loopnet’s terms and conditions of use prohibited the posting of photographs “without authorisation”. Any subscriber posting a photograph was required to warrant that the subscriber had “all necessary rights and authorizations” from the copyright owner. When a submitted photograph was transferred to the defendant’s system for review, a Loopnet employee would then briefly examine the photo to ensure that it depicted commercial real estate and that there was no obvious evidence to suggest that copyright in the photo belonged to a third party. If the photo failed to meet either criteria, it would be deleted by the examining employee. The Court found that Loopnet’s conduct was not “copying” under the Act because Loopnet lacked the…

Scottish CD Pirate Jailed R v Reid (2004)

COPYRIGHT Record Labels, Music Publishers A man who boasted on TV he “could not care less” that his business was illegal has been jailed for five months for selling pirate CDs and computer games. Stephen Reid’s illicit trading deprived the music and computer industries of more than £1million in lost revenue. Glasgow Sheriff Court heard police and trading standards officers then swooped on the 51-year-old’s premises. Sheriff William Holligan told him he had shown “a flagrant breach of legislation” after he pleaded guilty to three infringements of copyright. The Sheriff added: “A custodial sentence is unavoidable for such offences.” Reid had previous convictions for selling counterfeit videos. His sale of counterfeit music, computer games and software was particularly targeted at students at nearby Glasgow University. In February, breakfast show GMTV carried out an investigation into piracy in which they visited Reid. The court was shown a foul-mouthed interview with him in which he threatened cameramen and reporter Lyn Faulds-Wood. Police and trading standards officers then carried out surveillance on Reid and made “test purchases” before raiding the premises and seizing 6349 CDs believed to contain pirate material. See : http://www.eveningtimes.co.uk/hi/news/5028130.html

UK Bootleg Pirate Jailed For Three and a Half Years R v Purseglove (2004)

COPYRIGHT Record Labels, Music Publishers, Performers A British judge has jailed music bootlegger for three and a half years. Mark Purseglove, 33, is estimated to be one of the biggest bootleggers in world, amassing a £6.6 (US$12.5) million fortune in 11 years of music piracy. Purseglove sold his bootlegs around Europe, in Japan and across the world via an international network of wholesale dealers. He had also used internet auction sites such as eBay, falsely advertising the discs as rare items, charging as much as US$240 per CD. He was arrested in June 2002 after protracted investigations by anti-piracy teams from IFPI and BPI, the bodies representing the international and UK recording industry. Purseglove has now lost all of his assets including two homes in Chelsea in London, a home in Brighton and his Aston Martin sports car (under the Proceeds of Crime legislation). He was jailed and ordered to forfeit all of his assets after being sentenced to three and a half years imprisonment on charges of Conspiracy to Defraud the UK recorded music industry. The confiscation order, amounting to £1.8 million (US$3. 4 million), is a British record for music piracy. Delivering the sentence, Judge Timothy Pontius made…

Hong Kong Court Jails Pirates For Six and a Half Years
Hong Kong

COPYRIGHT Record Labels, Music Publishers A Hong Kong court has passed jail sentences of six and a half years on two former directors of a Hong Kong-based company found guilty of involvement in a massive disc piracy operation. Tsoi Chung-wang (also known as Tsoi Kei-lung and Tsoi Tung-kei), and his wife, Ng Yee-nei (also known as Ng Kam-fung and Ng Yuk-yan Lili), both former directors of the Hong Kong based company Golden Science Technology Limited, were charged by Hong Kong’s Independent Commission Against Corruption (ICAC) for counterfeiting HK$300 million worth of copyrighted optical discs. The pair were found guilty yesterday by the Court of First Instance in Hong Kong of one count of conspiracy to defraud. The charge stated that Tsoi and Ng had conspired with other persons to defraud copyright owners in relation to the illegal copying, manufacture and distribution of sound recordings, films, games, and computer software between June 1997 and April 1998. The discs were believed to be destined for the People’s Republic of China. The investigation into the activities of the Golden Science Technology companies followed what remains to this day the biggest-ever single anti-piracy seizure – 19 million discs in Hong Kong in 1998. The…

4,700 Pirated Compact Discs, Cassette Tapes, and DVDs Crushed in Jamaica
Copyright , Record Labels , Trade Mark / August 2004

TRADEMARK & COPYRIGHT Record Labels Jamaica has begun to clamp down on hard copy piracy in the country and the Jamaican Minister of Commerce, Science and Technology Phillip Paulwell and a small gathering of music industry personnel witnessed the symbolic destruction of the pirated. The Minister added “Beware, the law is going to get you, leave people’s intellectual property rights alone, go and do your own. I’m glad to be a part of this exercise as we publicly demonstrate that the country is serious about pirating of people’s creative work. The government is grateful,” he added, “to the Jamaica Intellectual Property Office – under my ministry – and also to the police for the role that they are now playing to prevent person’s works from being pirated.” The CDs, DVDs and cassettes, valued at $1.5 million, were seized by the Intellectual Property Division of the Organised Crime Investigation Division of the constabulary, which has been working with the Jamaica Intellectual Property Office (JIPO) to clamp down on breaches of the Copyright and Trademarks Act. More than 15 persons were prosecuted in connection with the seizures. JIPO said 22 people have been prosecuted for breaching the Copyright and Trademarks Act since…

Scottish Ticket Counterfeiter Spared Jail
Live Events , Trade Mark / August 2004

TRADEMARK Live Event Industry A Scottish judge has told a man that he undersold fake tickets for Celtic’s Uefa Cup game in Seville last year. Sentencing Alan Cloughley to community service, Sheriff Deirdre MacNeill QC said the forged tickets were of a convincingly high standard but she remarked that Cloughley, who sold each ticket for £5, could have got more than ten times that amount. The 23-year-old economics graduate was caught by police at his Glasgow home just days before the game. Glasgow Sheriff Court heard that Cloughley produced and sold hundreds of fake tickets for Celtic’s Uefa Cup Final clash with FC Porto. He appeared for sentence on Friday having earlier admitted two breaches of the Trade Marks Act. Sheriff MacNeill said it had been a “sophisticated and well planned operation” but the court heard that people who bought tickets from Cloughley were aware that they were fakes. Sheriff MacNeill said the seriousness of the offence warranted a prison sentence, but she was prepared to order him to do 260 hours of community service. Acting on a tip-off, police raided Cloughley’s home and seized 291 tickets and £300 in cash. He claimed he bought a legitimate ticket and copied…

Article: “Format Fortunes: Is there Legal Recognition for the Television Format Right?”
Articles / August 2004

Click here to download this article as a PDF file (.pdf) by Ben Challis (Music Industry Lawyer and Senior Lecturer in Law, Buckinghamshire Chilterns University College), and by Jonathan Coad (Specialist in Music and Media Law with the Simkins Partnership, London) High Wycombe and London, England, UK August, 2004  Most people who are involved in exploitation, global licensing and merchandising of television programmes know the value of a television format – whether it be Who Wants To Be a Millionaire?, Big Brother, Wheel of Fortune, Pop Idol, or Family Fortunes. Licensing formats – where the creator of a format licenses a broadcaster or production company in another territory with the right to produce a version of that format – is a massive global industry worth tens of millions of dollars. However, there is also a huge ‘copycat’ industry, with rival ‘versions’ of these formats being developed by other broadcasters and producers. The recent question troubling both the industry and the courts has been whether or not television formats enjoy any legal protection themselves, and whether copycats can be stopped.   IN UK law, the starting point when looking at the licence of format rights is the 1989 case of Green v Broadcasting Corporation of New Zealand where presenter Hughie Green lost a Privy Council decision when he…

Copyright Infringements in Chinese Ringtones
Copyright , Record Labels / July 2004

COPYRIGHT Record Labels, Telecommunications The Music Copyright Society of China has filed a copyright infringement lawsuit against the local handset manufacturer, Capitel accusing the company of using copyrighted music for ringtones without permission of the copyright holders. Last June, the MCSC says that it discovered three Capitel cell phones (C6088\C6088A\C6288) were using ringtones based on “Liang Zhu” or “Butterfly Lovers,” two well-known pieces of Chinese music. According to the MCSC, Chen Gang and He Zhanhao, the co-composers of “Butterfly Lovers,” who are also members of the MCSC, never authorized Capitel to use the song. MCSC claims that Capitel violated the music copyright for the two songs, as well as infringing on the composers’ intellectual property rights (IPR). “The court has accepted the case, and MCSC is now negotiating with Capitel for a justified compensation,” Ma Jichao, Director of the MCSC’s Licensing Department, told Interfax in an interview. The music copyright society of China (MCSC) was established on 17 December 1992, and was initiated by the Chinese musicians’ association and the national copyright administration of China. The MCSC has become the only officially recognised collective administration of music copyright in China. See : http://www.cellular-news.com/story/11184.shtml

Belle & Sebastian Reach Pre-release Agreement with Carlin Music Over Use of ‘Shadow’s melody’
Copyright , Music Publishing / July 2004

COPYRIGHT Music Publishing Scottish band Belle & Sebastian have agreed to pay out a fifth of any royalties they earn from their new single to Cliff Richard’s backing band The Shadows. Belle & Sebastian’s new double A sided single “Your Cover’s Blown/ Wrapped Up In Books” was released on June 21 in the United Kingdom. The band had, pre-release, voluntarily confirmed that the melody to “Wrapped Up In Books” was similar to the Cliff and the Shadows 1966 hit “In The Country” written by Sir Cliff Richard’s ex-backing band, the Shadows. Belle & Sebastian were shocked when friends said the new single was a ‘dead ringer’ for the 1960s hit and the band, perhaps wisely, contacted Carlin Music and offered to share the royalties with an agreed 20% going to the members of the Shadows to share. See : http://www.eveningtimes.co.uk/print/news/5026913.shtml COMMENT :Copying someone else’s copyright work is a copyright infringement and remedies for proven infringement include injunctive relief and damages. When looking at a similar melody, copyright infringement will only come into play where there is direct copying of a ‘substantial’ part of a song (“substantial use”). In the USA, the copying would have to produce a new work which was…

UK Court of Appeal Limits Liability for Independent Contractors

HEALTH & SAFETY Live Concert Industry Payling v Naylor t/a Mainstream In a welcome judgement, the Court of Appeal have limited the liability of venue owners, promoters and nightclub’s to ensure that their contractors have public liability insurance. In Payling v Naylor (Times Law Reports, 2 June 2004) the Court held that whilst there was a duty on a club owner to take reasonable steps to ensure that any contractor engaged security services was competent, there was no free-standing duty, except in exceptional circumstances th ensure that the contractor had public liability insurance. In the earlier decision of Bottomley v Secretary & Members of Todmorden Cricket Club (Law Updates November 2003) the court had held that there was a duty on a venue owner who allowed dangerous practices on his land (pyrotechnics) to ensure that a subcontractor was had public liability insurance. The Court of Appeal in this case could understand that the lack of public liability insurance might be a relevant factor in assessing the competence of a contractor; However and overturning a judgement by Judge Murphy QC, the Court felt that as the security firm were licensed, accredited and approved under a scheme operated by the local authority and the police. The…

Sony Staff Spared Anti Social Behaviour Orders

HEALTH & SAFETY Record Labels, Live Music Industry Camden Council in London is taking on music industry bosses over flyposting and the Council are aiming to bring Anti Social Behaviour Orders (ASBO) against music industry bosses, claiming they have received more than a thousand complaints about the posters which are placed across the borough. Camden is one of the main focus points for alternative music in London, and is famous for its live music venues like The Barfly, Electric Ballroom and Underworld. The Council has targeted two of the majors, Sony and BMG. Sony Music chiefs have escaped Anti Social Behaviour Orders (ASBO) after promising not to commission any more illegal fly posting and the actions against Catherine Davies and Jo Headland have been withdrawn at Highbury Corner Magistrates’ Court. However, BMG executives have not responded and now face the likelihood of court action and penalties if found guilty. The executives will be facing summons on the basis that flyposting has been defined as causing “harassment, alarm or distress” and so can be actioned under the Public Order Act 1986. Both Sony and BMG denied being involved in illegal flyposting. The sanctions ultimately extend to the possibility of a five-year prison sentences. Camden…

Disability Discrimination Act to Extend to Venues and Club Premises

HEALTH & SAFETY Live Event Industry The UK’s Disability Discrimination Act 1995 requires service providers to make ‘reasonable adjustments’ so that disabled patrons can use their premises. From 1 October 2004 this provision will be extended to the physical structure of buildings. Operators now must consider how physical barriers to disabled patrons can be removed or how alternative arrangements can be made. The Disability Rights Commission has said that it will back access cases after October although with 8 million disabled people in the UK with a huge spending power one would hope that venues would be proactive in making improvements. There are no tax breaks for structural improvements although there are for moveable items such as ramps and providing toilets for disabled persons is zero-rated for VAT. See : http://www.timesonline.co.uk/law and http://www.musictank.co.uk/attitude.htm

Court of Appeal Ruling on the Offer of Amends Defence: Milne v Express Newspapers

DEFAMATION Televison, Radio, Publishing, Internet ARTICLE: by Jonathan Coad, solicitor Section 4 of the Defamation Act 1996 introduced the Offer of Amends defence as a quick and easy complete defence available to defendants who sought an early settlement of libel proceedings against them. If the defence is accepted, a judge then assesses the damages if a figure cannot be agreed. As Lord Justice May observed in the Court of Appeal: “It is to be expected that most sensible claimants will accept unqualified offers to make amends. The main purpose of the statutory provisions is plain. It is to encourage the sensible compromise of defamation proceedings without the need of an expensive jury trial.” Section 4(3) does however limit the scope of the defence: “There is no such defence if the person by whom the offer was made knew or had reason to believe that the statement complained of – a) referred to the aggrieved party or was likely to be understood as referring to him, and b) was both false and defamatory of that party; but it shall be presumed until the contrary is shown that he did not know and had no reason to believe that was the case.” The key…

Washington Post Appeals Canadian Jurisdiction in Internet Libel Action
Defamation , Internet / July 2004

DEFAMATION Internet The Washington Post is to appeal the decision of The Ontario Superior Court of Justice to allow the plaintiff, Cheickh Bangoura, to pursue his claim arising from alleged defamatory statements published on the internet by the newspaper. The claims centered on Mr Bangoura’s behaviour in 1997 when he was based in Kenya and employed by the UN drugs control programme. The allegations centered on claims of sexual harassment, financial improprieties and nepotism. The primary issue in this case was whether the Court had jurisdiction over a foreign publisher of allegedly libellous statements concerning an international civil servant with residency status in Canada, where the medium of main distribution of the statements was the Internet. There were just seven paid subscribers to the Washington Post in Ontario area but the article featured in the Washington Post was freely available on the internet after 14 days. The Court found that the broad reach of the Internet and the renown of the newspaper itself were factors in demonstrating the multi-state nature of the action. Justice Pitt held that the defendant “should reasonably have foreseen that the story would follow the plaintiff wherever he resided.” The Court was also attracted by the…

Lawyers Costs Capped in Contingency Fee Cases Musa King v Telegraph Group Limited (2004)

DEFAMATION Artists, Internet, Radio, Television, Publishing COMMENT : Costs in libel cases in the United Kingdom are notoriously high for both sides. One of the reasons for the development of a ‘contingency fee’ basis of litigation – where the solicitor acting on that basis only gets paid if his or her client wins – was to make the system fairer to individuals who wanted to sue the press but were put off by prohibitively high costs. However in a recent case the Court of Appeal has decided to cap the amount law firms can charge when representing litigants on a contingency basis. Lord Justice Brooke criticised one firm for the ‘extravagant manner’ in which it had handled a claim against the Sunday Telegraph. The judge held that in a case where one party (one presumes the claimant) was using solicitors acting on a contingency fee basis then the judge would set the maximum level of fees in advance. See : http://www.courtservice.gov.uk/View.do?id=2518   ARTICLE: Musa King v Telegraph Group Ltd by Jonathan Coad, Solicitor The Musa King case against The Telegraph has featured in the law reports for a number of reasons to date, and has become a pitched battle between those bringing conditional fee arrangement…

IFPI Announces Positive Results After First Wave of European Legal Actions
Copyright , Record Labels / July 2004

COPYRIGHT Record Labels The recording industry has announced the first positive results from its international deterrence campaign against illegal file-sharing and warned that a new wave of litigation will take place in new countries within months. The results show that legal awareness among the European public has increased and the number of pirate files on the internet has fallen steadily. Meanwhile, the number of legal sites where consumers can buy music has risen to over 100 globally – five times the number of one year ago. Legal cases have been concluded in Denmark and Germany, with 17 Danish individuals agreeing to pay compensation averaging several thousand euros. A 23 year old German file-sharer is to pay compensation of 8,000 euros: He had 6,000 MP3 files on his computer and 70 CDs containing further files In Italy, 30 individuals have been charged with copyright infringement. The IFPI has confirmed plans to extend the litigation internationally. A further 24 legal actions are being announced today against individuals in Denmark. Other countries such as France, Sweden and the UK have already launched high-profile warning campaigns that they will prosecute file-sharers if necessary. Seven out of ten people in France, UK, Denmark and Germany…

Joint Authors: Brighton & Dubbeljoint v Jones
Copyright , Music Publishing / July 2004

COPYRIGHT Music Publishing, Television This case (like the Belle & Sebastian article above) looks at joint authorship. Here, Pamela Brighton (‘PB’), the director of the original (1996) production of the play “Stones in His Pockets”, claimed to be its author jointly with Marie Jones (‘MJ’), the accredited author both of that play and of its later (1999) incarnation, which was a huge success in the West End and elsewhere. The position was complicated, as MJ’s original version of the play was itself based in part on an earlier script drafted by PB. The Copyright Designs & Patents Act 1998 defines a work of joint authorship as “a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author(s) [section 10(1)]. MJ had been widely accredited as sole author without previous objection from PB so it was for PB to establish the joint authorship. In a judgement handed down on 18 May Mr Justice Park set out three considerations suggested by case law as being relevant to the question of joint authorship: 1. The contribution of a joint author has to be ‘significant’, although not necessarily…

Endemol Wins Copyright Protection for Big Brother in Brazil
Copyright / July 2004

 COPYRIGHT Television The international trade in format rights is now worth $1billion annually, but formats remain a species of intellectual property which has scarcely hit the radar of most jurisdictions around the world. The Dutch Court of Appeal recently found a television format to be a copyright work, although a claim of breach of copyright based on that format failed. However, a successful claim for breach of copyright has now been made in Brazil based on the Big Brother format. Endemol (which owns the format) entered into negotiations with TV SBT of Brazil in the course of which Endemol provided extensive information on the Big Brother format. TV SBT chose not to acquire a license for the format and produced “Casa Dos Artistas” (the Artist’s House), which the Brazilian Court described as a “rude copy”. Endemol and its Brazilian licensee for the Big Brother format (TV Globo) sued TV SBT seeking an injunction and damages. The defendants claimed that a reality show is no more than an idea, citing the lack of scripts. They claimed that the format bible was “in reality a simple manual that describes methods and procedures…; the idea of locking up people inside places and observing…

Source Magazine Ordered to Pay Eminen’s Costs After Breaching Court Order

COPYRIGHT Music Publishing, Record Labels In February 2004 we reported that a US judge had allowed magazine the Source to publish limited extracts (eight lines) and twenty seconds of sound recordings from two of Eminen’s early tracks which were allegedly racist. This was under the ‘fair use’ (fair dealing’ in the UK) doctrine where copyrighted works can be used for criticism and review. Hip-hop magazine The Source has now been held in contempt of court and ordered to pay Eminem’s legal fees for violating that court order by publishing the entire lyrics of the two songs. US District Judge Gerard Lynch ruled the magazine violated a court ruling from last year, which prohibited it from reprinting the lyrics or putting the full recordings on its website. Judge Lynch denied Shady Records’ request that the magazine be fined thousands of dollars for violating the court order barring it from printing the full lyrics of the songs, saying they had now been removed from the site. But he has now ordered the magazine to pay the legal fees of Eminem and his label, Shady Records. He also dismissed a counter-suit filed by The Source against Shady Records in which the magazine claimed…

Japan Legislates Against the Import of Domestic
Copyright , Record Labels / July 2004

COPYRIGHT Record Labels Japan’s upper house has approved a bill to ban import of Japanese music CDs made in other Asian countries. The law, which is set to take effect from January 1, 2005 is designed to protect domestic music industry from impact of cheap CDs made offshore. Importing such product will be infringement of copyright. The revised Copyright Law will also make it possible for copyright holders to charge copyright fees on books and magazines rented at rental-book shops (as is already the case with music CDs). This has been a recent growth industry in Japan. Alongside the new act of infringement, criminal penalties for copyright infringement are stiffened under the revised law, with higher maximum fines and prison terms. See : http://news.xinhuanet.com/english/2004-06/03/content_1506656.htm

Movie Studios Continue to Fight Against De-Encryption Technology
Copyright / July 2004

COPYRIGHT Film, Television Twentieth Century Fox Film Corp. and Paramount Pictures Corp have filed a lawsuit in New York against online retailer TechnologyOne who have been offering the now illegal software developed by 321 Studios. Other retailers voluntarily halted sales of the software after federal judges in New York and California ordered 321 to stop making and marketing it. The studios long have insisted that DVD-copying products violate the 1998 Digital Millennium Copyright Act, which bars circumvention of anti-piracy measures used to protect DVDs and other devices. The latest lawsuit, announced Friday by the Motion Picture Association of America Inc., was filed in the U.S. District Court for New York’s southern district, where a judge in March barred 321 from marketing the software with DVD circumvention content. In court and before Congress, 321 has argued its products merely guarantee consumers fair use of the movies they’ve bought, including backing up expensive copies of children’s movies in case the originals get scratched. See : http://news.designtechnica.com/article4049.html See Law Updates February 2003 EFF defends the right to own smart card technology and the article Don’t Shoot The Messenger by Ben Challis at :http://www.musicjournal.org/03dontshootthemessenger.html

DirecTV Agrees to Modify Legal Campaign
Copyright / July 2004

COPYRIGHT Television, Radio After discussions with Electronic Frontiers Foundation (EFF) and Stanford’s Center for Internet and Society (CIS) Cyberlaw Clinic, satellite television giant DirecTV has agreed to modify its nationwide campaign against signal piracy in order to reduce threats and lawsuits against innocent users of smart card technology. Chief among these changes is a promise to no longer sue or threaten to sue people merely for possessing smart card devices. ver the past few years, DirecTV has orchestrated a nationwide legal campaign against hundreds of thousands of individuals, claiming that they were illegally intercepting its satellite TV signal. The company began its crusade by raiding smart crd device distributors to obtain their customer lists, then sent over 170,000 demand letters to customers and eventually filed more than 24,000 federal lawsuits against them. Because irecTV made little effort to distinguish legal uses of smart card technology from illegal ones, EFF and the CIS Cyberlaw Clinic received hundreds of calls and emails from panicked device purchasers. In August 2003, EFF and CIS created the DirecTV Defense website to provide innocent users and their lawyers with the information necessary to defend themselves. The organizations also began a series of discussions with DirecTV about…

Eminen Wins Back Domain Name
Artists , Trade Mark / June 2004

TRADE MARK Artists Eminem has won a cybersquatting case against a British company who used his name without permission.Eminemmobile.com, which sells ringtones and picture messages, has been ordered to hand the domain name back to the star within ten days. The site featured a disclaimer stating it is unofficial and not connected to Eminem but the ruling made by the United Nation’s World Intellectual Property Organisation (WIPO) found that Tim McIntosh and Visitair, which runs the site, had no legitimate rights to the domain name. It must transfer back to the rapper within the ten day period unless the company decides to appeal against the ruling. Eminem is the first rap star to use WIPO in settling a dispute over a domain name. Other singers, including Robbie Williams, Madonna and Celine Dion have used the organisation in the past to settle similar disputes. It is the second legal battle Eminem has been involved in this year, as he pursues a claim against Apple Computer for alleging the company used his hit single Lose Yourself in a TV advert without permission. See : http://news.bbc.co.uk/1/hi/entertainment/music/3653089.stm ‘Abusive Registration’ under the Nominet UK Dispute Resolution Policy In March 2004 Google Inc won an action brought…

EMI Files Lawsuit Against Electronic Arts

COPYRIGHT Music Publishing, Artists EMI Group Plc, one of the world’s largest music companies, has filed a federal lawsuit against Electronic Arts Inc., the world’s largest video game publisher, over claims of copyright infringement in EA’s highly successful sports games. The suit, filed in federal court in New York on Wednesday, says a number of EA’s recent sports titles, like “Madden NFL 2004“, “Tiger Woods PGA Tour 2004” and “MVP Baseball 2004” use songs that “embody copyrighted musical compositions that EMI owns, co-owns, administers or otherwise controls.” EA and other publishers have increasingly made music an important part of their games, debuting new songs by both up-and-coming and established artists in their games before the artist’s CD is released. Some have established divisions dedicated to producing and acquiring music for their titles. “This entire lawsuit is related to a single song that samples lyrics from another song,” Electronic Arts said in a statement. “Our use of that song was licensed directly from the artist. We have agreements for every song used in our games.” EMI claimed in the suit that EA sought licenses throughout 2003 from EMI for the use of certain songs for its sport games, but then released…

European Community Trade Mark Registration
Artists , Trade Mark / June 2004

TRADE MARK Artists, Merchandising Compass Publishing BV v Compass Logistics Ltd (2004) This case involved two companies with the same name, the claimant being the pan-European business consultancy Compass Publishing BV (“CP”) and the defendant the UK based Compass Logistics Ltd (“CL”) who offered management consultancy services. CL had been trading since 1995 using the name “Compass” and “Compass Logistics”. The claimants had secured a Community Trade Mark in 1996 for the word ‘Compass’ in a class including business and management consultancy. The Claimant filed three claims for infringement of its trademark. The defendant argued that the Community Trade Mark should be held invalid as by the date of the registration they, CL, had acquired a valuable and protectable goodwill in respect of the mark “Compass Logistics” and that they could have brought an action against CP using the law of passing off. The defendant argued that the mark should be declared invalid to the extent that it covered any field of business consultancy, particularly relating to logistics, where the use of “Compass” would cause confusion with “Compass Logistics”. The defendants argued that they had already built up goodwill in their name before the claimant’s registration of the mark Article 8(4) of EC…

New Trade Mark Act in Czech Republic
Czech Republic

TRADE MARK Record Labels, Music Publishers, Artists, Merchandising, Live Event Industry, Television, Internet As of April 1st 2004 a new Trademark Act (No.441/2003) will come into force in the Czech Republic. Although the structure of the Act has been considerably amended, there are only limited substantive changes in the law. However there are completely new are provisions concerning Community Trademarks, which will be automatically extended to the Czech Republic with the date of its accession to the European Union (these provisions will come into force as of May 1st 2004). The most important amendments are detailed in an article by Almut Rohnstock and a link is provided below. The definition of trademarks (Art.1) has been slightly amended, now including the possibility of colour trademarks; Art.2 now regulates which trademarks are able to claim protection in the Czech Republic, including CTMs and well-known trademarks according to Art.6 of the Paris Convention. Community Trademarks with seniority may also claim older rights (Art.3). Grounds for refusal ex officio (Art.4) as well as grounds for opposition (Art.7) and nullity (Art.32) newly include applications filed in bad faith. The provisions concerning oppositions and nullity (Art.7 and 32) based on known trademarks have been reformulated and expanded; the…

Distribution Agreements
Contract , Record Labels / June 2004

CONTRACT LAW Record Labels ARTICLE: by Sarah Waddington The problems surrounding 3MV’s insolvency have brought to a head the sometimes thorny issue of ownership of stock. These problems should prompt every independent label to look at their own distribution agreement. A number of independent record companies distributed by 3MV may rue the day they did not pay more attention to the clause in their distribution agreement which governs when ownership of stock – records – passes from them to the distributor. Ownership of stock is one of the provisions in standard distribution agreements which need to be reviewed very carefully. The Sale of Goods Act 1979 allows contracting parties to agree the time at which ownership of goods will pass. In the absence of an express provision, ownership of goods passes when they are delivered. A number of 3MV’s distribution contracts expressly provide for ownership of records to pass on their delivery to 3MV and, in some circumstances, on manufacture. From that date those records are assets of 3MV. This is not in a record company’s interest – ownership of these records should be retained by the record company until payment for them is received. If ownership of records is…

World Piracy News
South Africa

COPYRIGHT Record Labels, Music Publishers, Internet Dutch police and the criminal anti-piracy enforcement team of the FIOD-ECD have completed an investigation into organised criminal groups resulting in the seizure of 17,000 pirate CDs and DVDs and the arrest of six people. Over sixty police offers carried out simultaneous raids on different addresses including a CD/DVD plant. A representative of the Indian Music Association was present because over 15,000 of the pirate DVDs seized were in hindi. Other DVDs included pirated copies of Finding Nemo and Lord of The Rings. Greek figures show that over 1.1 million CDs, CDRs and MCs were seized in 2003 under raids organised by the IFPI (an increase of 46.38% on 2002). In addition police sized a further 521,345 units in other raids. In 2003 1,941 individuals were prosecuted in Greece for music piracy offences. In the Ukraine a joint investigation between law enforcement agencies and the IFPI led to a major raid on a illegal warehouse. 210,000 CD and DVD inlays were seized along with more than 26,000 units. The IFPI say that almost all of the pirated material found in the Ukraine, Poland and other eastern European countries originate in Russia and are then ‘packaged’ locally across the eastern block. As Lithuania joins the…

Naomi Campbell triumphs in privacy battle: Campbell v Mirror Group Newspapers (2004)
Artists , Privacy / June 2004

PRIVACY Arists Model Naomi Campbell has won her privacy battle against the UK’s Daily Mirror after the newspaper reported her attendance at a Narcotics Anonymous meeting in 2001. The House of Lords re-instated the High Court’s award of £3,500. The Newspaper is left with legal costs estimated at £1 million. Editor of the Daily Mirror, Piers Morgan, was reported as saying “this is a good day for lying, drug abusing prima donnas”. By a majority of three to two, the House of Lords has reversed the decision of the Court of Appeal and reinstated the judgement of Mr Justice Morland in the High Court (see our early warning of March 2002) that the Mirror had breached the provisions of the Data Protection Act 1998 and her right to confidentiality in her treatment for narcotics addiction. The Courts held that the details of Campbell’s treatment (therapy) were medical records and therefore by their very nature confidential and private. Reference: See the article by Martin Soames, The Guardian (Media p10), May 10th 2004 COMMENT : Naomi Campbell’s argument was that she had and should be allowed to have therapy for drug addiction in private. Campbell’s original claim was threefold (1) a claim for…

Apple Fights Open Source Software in India
Copyright , Internet , Record Labels / June 2004

COPYRIGHT Record Labels, Internet In an intermittent war between the open-source community and the proprietary software industry, Apple Computers has slammed a legal notice on Sarovar.org for hosting a software tool called Playfair. Sarovar.org, a Thiruvananthapuram based Indian portal dedicated to the open source software community, had hosted Playfair, a tool that enables free download of music files from Apple’s properitary online music store, iTunes. iTunes contains around 500,000 music files and offers users the facility to download music by paying 99 cents per song. The downloaded music can be played only on iPods, again a proprietary Apple hardware that permits the playback of such music. However, PlayFair, written by a US programmer, enables a user to play the songs from Apple’s iTunes on any operating system. Playfair was first hosted by a US-based website called Sour-ceForge but Apple invoked the DMCA (Digital Millenium Copyrights Act) against PlayFair and asked SourceForge to remove the tool from its site. The tool was almost immediately relocated to Sarovar.org. On April 19, 2004, Sarovar.org received a legal notice from the Indian attorneys of Apple, citing provisions of the (Indian) Copyright Act and the (Indian) Information Technology Act by which they attempted to demonstrate…

EU Commission to Investigate ‘One Stop’ Licensing Schemes in Europe

COMPETITION/COPYRIGHT Record Labels, Music Publishers The European Commission has announced that it has warned 16 EU collection societies that an agreement between them to create a “one-stop shop” music licence may be in breach of EU competition rules. The agreement, known as the Santiago Agreement, was signed in October 2000 by five organisations – including the UK’s Performing Right Society (PRS) and Broadcast Music Inc (BMI) from the US. The Santiago Agreement is designed to tackle the problems that traditional copyright licensing schemes have faced in light of the growth of new technologies and Internet use, in particular the impossibility of limiting digital services by the notion of territoriality; once uploaded to the Internet, copyrighted music is accessible from almost anywhere in the world so the concept of ‘German’ or ‘British’ rights is inapplicable. The traditional licensing framework requires a commercial user wishing to offer such music to obtain a copyright license from every single relevant national society. The Santiago Agreement sought to adapt the traditional framework to the online world by allowing each of the participating societies to grant “one-stop shop” copyright licences which included the music repertoires of all member societies and which were valid in all their…

European Commission Seeks to Regulate Collection Societies

COMPETITION/COPYRIGHT Record Labels, Music Publishers The European Commission has launched consultations with a view to regulate collection societies which manage the marketing of copyrighted products such as CDs and DVDs. Collection societies act as trustees for rights holders, but the way they function may vary considerably within the EU and is an obstacle for businesses, the Commission said. This view is supported by the European ICT industry association (EICTA) which says many collection societies are actually slowing down businesses that distribute content online because they have to negotiate with one or more collecting societies in each country to obtain the rights to use content in that territory. EICTA is advocating official recognition and large-scale adoption of Digital Rights Management (DRM) systems. DRMs are used to protect and secure payments of online material such as music. They are based on direct licensing agreements which means that collecting houses could end up being bypassed because the products’ copyright would be managed directly by software. But the Commission paper says that those technologies have not yet been developed to a satisfactory level. It states that “a necessary pre-condition for their development is their interoperability and acceptance by all stakeholders, including consumers”. The EICTA…

Rapper Ras Kass Launches Action Against Priority Records, Capitol and EMI

CONTRACT Record Labels, Artists, Music Publishers Rapper Ras Kass (real name John Austin) has filed suit against Priority Records, Capitol Records, EMI Music and two Priority executives, claiming breach of contract, unfair competition, restraint of trade and other abuses. The suit, filed in California Superior Court in Los Angeles, seeks a rescission of the musician’s contract, and compensatory and punitive damages to be determined. According to the suit, in 1995, Austin, who was then a 22-year-old Patchwerk Records artist, signed a contract with Priority requiring delivery of one album, with an option for five more albums. The action claims that Priority failed to market and promote the albums “Soul on Ice” (1996) and “Rassassination” (1998). It also alleges that two Priority executives maliciously interfered with Austin’s career. The suit further alleges that the releases of Austin’s third and fourth albums were sabotaged, and that Priority interfered with a proposed group project for Sony that would have featured Austin, Xzibit and Saafir. According to the suit, owing to “fraudulent accounting practices,” Austin has received only $100,000 during the nine years of his contractual agreement, an average of approximately $11,000 per year. The 32-page filing broadly excoriates standard record-industry practices, and calls…