US Copyright Office Sets Rates for Webcasting
Copyright , Internet / March 2004
USA

COPYRIGHT Internet The U.S. Copyright Office has published the royalty rates for web music broadcasts, which essentially rubber-stamp a resolution reached last April between online music broadcasters and the Recording Industry Association of America (RIAA). In addition to setting rates for the 2003-2004 license period, the Copyright Office also named SoundExchange, a former RIAA arm spun off as a separate non-profit group in September 2003, as the sole designated agent to collect and distribute royalties from Webcasters and new online subscription services. The recording industry and Webcasters finally agreed on a proposed 0.0762 cents per performance or 1.17 cents per aggregate hour tuned in for free, advertising-supported services. Webcasters had opposed other rates suggested by the RIAA, saying they would put them out of business. The new regulations govern rates and terms for online music subscription services with non-interactive streaming components, Internet radio stations and traditional broadcasters that simulcast signals online. Under the new regulations, all covered services are required to submit a lump sum payment to SoundExchange covering the period from January 1 2003 through to February 29 2004 on or before April 14 2004. Starting from March, services are required to make royalty payments within 45 days after…

First Chinese Action for Unauthorised Public Performance of Sound Recordings
China

COPYRIGHT Record Labels, Music Publishers Proceedings in China’s first-ever lawsuit over copyright infringement for background music allegedly being played for profit-making purposes began in a Beijing court. Chang’an Department Store, a major retail outlet in the capital, has been charged for the infringement by the Music Copyright Society of China. The lawsuit court session started yesterday at the Beijing No 1 Intermediate People’s Court. This case is the first of its kind since the country’s Copyright Law was amended in 2001. In its indictment, the plaintiff is seeking a compensation of 228,100 yuan (US$27,600) for the accused store’s use of background music, whose copyright is managed by the society, without being authorized and paying fees to the society. No judgement was made in the case, and an announcement for the next session is yet to be made public. The Music Copyright Society of China is the country’s only officially recognised organisation for music copyright administration. See : http://www1.chinadaily.com.cn/en/doc/2004-02/05/content_303185.htm

EMI Admits CD Copy Protection Compatibility Problems
Copyright , Record Labels / March 2004
Australia

COPYRIGHT Record Labels EMI’s Australia has admitted that its CD copy protection system has resulted in “compatibility issues” since it began using the technology in November 2002. The confession came in an email sent to an Australian music buyer, Michael Ellerman, The Melbourne Age reported. Ellerman complained when his copy of Massive Attack’s 100th Window album wouldn’t play on his CD player at home or – crucially – his Linux box. It would only play on a Windows PC, he said. EMI’s system is believed to introduce errors in the music encoded as a data on the disc. A regular CD player should have a good enough error correction mechanism – and there are a lot of errors, even on a non-copy protected disc – to generate the sound quality we’ve come to expect from the medium. PC-based CD drives are supposed to balk at these artificially induced errors and refuse to play or RIP the discs. Many portable players also use the error correction mechanism as the basis for their anti-skip systems. So do in-car CD players, which is why copy protected discs are causing such a problems with UK motorists. ‘Borked’ CDs that won’t play on many CD drives, including car players,…

EMI Takes Action Over Sampled “Grey Album”
Artists , Copyright , Record Labels / March 2004
UK

COPYRIGHT Record Labels, Artist Somewhat unsurprisingly EMI Records has said that it will take legal action against DJ Danger Mouse over his limited edition CD ‘The Grey Album’. The producer/DJ found himself behind one of the hottest records of the year by splicing vocals from last year’s ‘The Black Album’ by Jay-Z with beats created from the Beatles seminal ‘The White Album’. But the DJ has been served with a cease and desist order – along with the small number of independent retailers who had stocked the 3,000 copies of the record. The Beatles’ recordings and the Lennon/McCartney compositions are guarded by the copyright owners and clearly the Grey Album consisted of unauthorised sampling of both the recordings and the compositions. EMI Records control the Beatles sound recordings on behalf of Capitol. The Lennon/McCartney publishing catalogue is owned by Sony Music and ATV Publishing. Danger Mouse himself insists that the 3,000 copies were only intended as promotional items. See : http://www.ilmc.com (News)

E-Data Announces Successful Settlement with Microsoft, Tiscali, HMV, and OD2 in Europe
Internet , Patents / March 2004
EU

PATENT LAW Internet The E-Data Corporation has announced a world-wide agreement for past and future royalties has been reached with On Demand Distribution GmbH (OD2), settling the infringement actions against OD2, HMV Group , Tiscali and Microsoft. For infringing upon E-Data’s European patent EP0195098B-1, also known as “the Freeny patent.” This settlement resolves all outstanding litigation with the companies. As part of the agreement, financial terms of the settlement were not disclosed. The Freeny patent covers the downloading and recording of information, such as music, from a computer onto a tangible object, such as CDs, DVDs and MP3 players. The OD2 platform enables Tiscali Music Club customers and HMV customers to download individual music tracks for a fee using Microsoft’s Windows Media Player and Digital Rights Management technology. Bert Brodsky, chairman of E-Data Corporation stated, “We are quite pleased with this settlement as it further reinforces the scope and validity of the Freeny patent in Europe. While the OD2 service is still in the nascent stage, which is reflected in the settlement, the agreement sends an important message to other companies infringing upon our intellectual property. Importantly, OD2’s service in Europe parallels iTunes Music Store, a successful music downloading service developed by Apple in…

Inventor Wins Japan’s Highest Patent Compensation Award after Suing ex-employer Hitachi
Patents / March 2004
Japan

PATENT LAW Technology The Tokyo High Court has ruled that Seiji Yonezawa had not been paid enough for his work on technology that was a forerunner to DVD. The court awarded Mr. Yonezawa 162m yen (£1.32m / $2.08m) for his work on three optical disc technology patents. Hitachi had originally paid Mr Yonezawa 2.3m yen in compensation. Hitachi said it was considering an appeal and believed its rulebook on compensation was in line with other firms. During the mid-1970s Mr. Yonezawa developed optical disc technologies that resulted in three patents. Hitachi paid him 2.3m yen to take over the patents. Mr Yonezawa first took Hitachi to court two years ago and won 34.9m yen in compensation in the Tokyo District Court. Mr. Yonezawa appealed to the High Court and asked for 250m yen. The High Court’s decision did not go that far, but it has awarded him more than 70 times Hitachi’s original payment. See : http://news.bbc.co.uk/2/hi/business/3440855.stm

BPI Wins First Internet-based Parallel Importing Case
Copyright , Internet , Record Labels / March 2004
UK

COPYRIGHT Record Labels, Internet The online retailer CD Wow!, based in Hong Kong, has agreed to stop sourcing CDs from outside the European Economic Area (EEA), in particular from Asia, in a move that will add o its retail price of CDs sold. The BPI (British Phonographic Industry) which had filed a law suit against CD Wow! has now settled its legal action. CD Wow! has been one of the internet’s biggest success stories in the UK with a turnover last year estimated at m ($181.7m). The settlement represents the music industry’s first success in its battle against parallel imports, where genuine CDs are purchased in one country before being sold in another without the copyright owner’s consent via the Internet. Parallel importing used to be a major problem for record labels in Europe, but the European Community’s common market means that goods can flow freely within Europe from one member state to another member state. However, this does not apply to goods purchased outside of the European Community. The BPI is also investigating amazon.com, the world’s largest online retailer, and has issued legal proceedings against play.com, a Jersey-based company, over parallel imports. This decision only affects CD Wow’s business…

Yoga Guru Claims Rights in Yoga Position and Teaching Style
Artists , Copyright , Trade Mark / March 2004
USA

COPYRIGHT AND TRADEMARK Artists Bikram Choudhury, a former weightlifter who devised his own method of teaching and practising yoga is being sued in the San Franscisco Federal Court by a number of his yoga schools over his assertion that he owns copyright and trademark rights in his teachings and a number of postures. They caim there can be no rights to traditional postures and teachings. Mr Choudhury has written to a number of his franchised yoga schools alleging them of violating his intellectual property right by deviating from his strict teachings and employing instructors who were not trained by him. Source: The Guardian, 9 February 2004

RIAA Bring Additional Legal Actions in the US Against Alleged File Swappers as French and German Sales of CDs Decline
Copyright , Internet , Record Labels / March 2004
France
Germany
USA

COPYRIGHT Record Labels, Internet The RIAA (Recording Industry Association of America) has filed a further 532 lawsuits against alleged music pirates. Since losing the appeal in their action against Verizon (see Law Updates February 2004) the RIAA now have to file ‘John Doe’ suits in the US identifying their alleged downloader by their Internet Protocol address. Once a “John Doe” suit has been filed, the plaintiffs (RIAA member labels) can subpoena the information necessary to identify the defendant by name. The RIAA – Verizon (2003) case resulted in a decision by the federal appeals court that the information subpoena process allowed by the Digital Millennium Copyright Act (DMCA) cannot be used in infringement cases involving peer-to-peer networks. In the UK, the BPI (British Phonographic Industry) have said that they would also now consider taking legal action against the ‘worst offending’ internet file swappers. Meanwhile, facing their first annual sales decline in recent memory, officials from France, the world’s fourth largest music market, said that they would also fight back with lawsuits. French music industry trade body SNEP reported that recorded music sales fell 14.6% in revenues in 2003 to just under 2.1 billion euros – blaming the growth in file-sharing…

France Applies Criminal Sanctions to Music Downloader
Copyright , Internet , Record Labels / March 2004
France

COPYRIGHT Record Labels, Internet A French national who sold CDs made from songs he downloaded from the Net has been sentenced to six months in jail and fined EUR 1,000 (). Bruno Dugas, 38, was found guilty of infringing copyright law by setting up a web-based business through which he offered to sell CDs containing mp3s from p2p sites. Proceeds from the fine will go to the SPPF, a French body representing music producers and studios. Dugas was also ordered to publicise the judgement in two newspapers. See : http://p2pnet.net/story/693

Welsh Shop Owner Finally Pays for PPL Licence
Copyright , Record Labels / March 2004
UK

COPYRIGHT Record Labels A music store owner in Wales was issued with legal proceedings by Phonographic Performance Ltd (PPL) who threatened to close down his shop unless he paid for music he had played to customers. Andrew Davies claimed the tunes were in fact a free advert, encouraging people to buy records they heard in his store. PPL said he was playing records by rockers Aerosmith when its undercover team swooped on the shop. But Mr Davies denied his shop, Andy’s Records in Aberystwyth, even stocked records by the American band. However, rather than be shut down and face hefty legal bills, Mr Davies paid to PPL, which allows him to continue to play music by all sorts of rock and pop stars to customers. He said: “Music is played in the shop to sell records and create an atmosphere. It is not fair to give money if the record is not sold”. PPL is a collective administration society with over 3,000 members who are record companies. PPL licences the public performance of recorded music throughout the United Kingdom from clubs, bars and hotels through to dance teachers. PRS licences the public performance of music compositions. See :http://icnorthwales.icnetwork.co.uk/news/regionalnews/content_objectid=13909390_method=full_siteid=50142_headline=-Music-store-boss-pays-up-after-court-threat-name_page.html

FACT Figures Horrify UK Film and Record Industry. In the USA, Studios Take Legal Action on Piracy and the FBI Provide a Seal of Authenticity
Copyright , Internet , Record Labels / March 2004
UK
USA

COPYRIGHT Film, Television, Record Labels, Internet The Federation Against Copyright Theft (FACT) have published figures which show the anti-piracy organisation seized almost 1.8 million pirated DVDs in 2003 in the UK – a rise of 405% on the previous year. ELSPA, the trade organisation which represents games manufacturers says it seized more than 250,000 games, a slight increase on 2003; whilst the BPI announced that more than 8 million fake (counterfeit) CDs were sold illegally in the UK in 2003. In all, the anti-piracy groups estimate that fake goods cost the UK industry more than ten billion pounds in 2003 with an alarming increase in the speed by which fake product reaches the public through downloading and digital copying allowing good quality copies to be produced in very short periods. See the Observer, 18 January 2004. In the USA, Warner Bros and Columbia film studios have reportedly sued an actor and a man arrested for allegedly distributing movie preview tapes over the internet. They have filed complaints in Los Angeles against actor Carmine Caridi – an Oscar voter – and Russell Sprague. The studios claim the men infringed copyrights by copying and distributing copies of the films on VHS and…

Canadian Court Asserts Jurisdiction over the Washington Post in an Internet Libel Action as Defamation Laws in the UK, USA and Australia are Applied to the World Wide Web
Defamation , Internet / March 2004
Canada
USA

DEFAMATION Internet The Ontario Superior Court of Justice will allow a plaintiff to pursue his claim arising from alleged defamatory statements published on the Internet by the defendant continuously since January 1997. 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 distribution of the statements was the Internet. 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 reasoning of a recent Australian case, Dow Jones & Company Inc v Gutnick, [2002] HCA 56, in which the High Court of Australia approved the assertion of jurisdiction where an American corporation published material online that was allegedly defamatory of Mr Gutnick, who was living in Australia (see Law Updates July 2003 and Harrods v Dow Jones). In another Canadian case, Vaquero Energy v Weir, the Alberta Court of Queen’s Bench awarded the Plaintiffs general and…

New York Mets Gain UK Mark Registration
Artists , Record Labels , Trade Mark / March 2004
UK

TRADEMARK Record Labels, Artists The New York Mets baseball team have been allowed to register their “Mets” mark in the United Kingdom in classes which include use for clothing, hats, toys, stationery and magazines. The decision by the UK Registrar for Trademarks was a blow to the Ministry of Defence who opposed the application saying that there was a likelihood of confusion with its own mark for the “Met Office” which is a registered mark for the Meteorological Office. The Trade Mark Act 1994defines a trade mark as any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of another undertaking. The Registrar held that there would be no confusion in the British public between the baseball team’s mark and the national weather forecasting service’s mark. This is the second case the Ministry of Defence have lost in as many months. The MOD applied to register the Royal Air Force’s red, white and blue ‘target’ or roundel as a trade mark. A number of fashion companies successfully opposed the registration saying that the roundel entered the public domain in the 1960s when the ‘mods’ started using the same red, white and blue roundel as…

Microsoft Regrets Action Against mikerowsoft.com
Internet , Trade Mark / March 2004
USA

TRADEMARK Internet Microsoft has admitted it may have made a mistake in threatening Mike Rowe for using his web site, mikerowesoft.com. Rowe, a student from Vancouver, registered mikerowesoft.com to front his part-time Web site design business in August 2003. Three months later he was emailed by Microsoft’s lawyers asking him to transfer the domain name to Microsoft. They offered to pay him a “settlement” of $10 (5), which is the cost of his original registration fee. However, after the case received widespread publicity on the Internet, Microsoft has admitted it may have taken things too far and has promised to treat Rowe fairly and admitted that his website name was a “creative domain name”. However, and on a serious note, Microsoft lawyers were undoubtedly right in taking the matter seriously against a name which could have possible confusion with its own trade marks. See : http://news.zdnet.co.uk/business/legal/0,39020651,39119214,00.htm

The Concept of Image Rights in the UK Develops as David Bedford Benefits from Ofcom Ruling
Artists , Image Rights / March 2004
UK

IMAGE RIGHTS Artists David Bedford, the former 10,000 metre world record holder has benefited from a ruling by the UK media regulator, Ofcom, that his image (long hair, drooping moustache, red socks and striped singlet) were used without his permission by the owners of the 118118 phone director, The Number. The number have invested million in advertising their service which is now the UK’s most popular director of enquiries. Ofcom is not in anyway a court, and this is not a judicial decision, but the regulator found that the high profile adverts featured a caricature of Mr. Bedford. Advertising rules state that no living person may be portrayed, caricatured or referred to in advertisements without their permission. Mr. Bedford now plans to take legal action against The Number for damages of ,000. Aberdeen Amateur Athletics Club whose club kit features a two red striped singlet identical to that used in the advertisement have already reached an out of court settlement with the Number. COMMENT : Ofcom’s decision has re-opened the debate on image rights in the United Kingdom. Even as early asTolley v Fry (1931)[AC 333 HL] a amateur golfer, Tolley, was held to have a cause of action against chocolate manufacturers…

United Kingdom: Trade Mark Registration – v – Trade Mark Use: A Costs/Risk Analysis
UK

TRADEMARK Artists, Record Labels, Internet ARTICLE: By Emma Lambert, Solicitor The best method of protecting your brand against copying and of increasing its value is to register it as a trade mark. Unfortunately registration can be expensive. If you choose not to register your brand it may be protected under UK law by the law of “passing off”. Recent Court cases are a reminder that passing off still has teeth but you cannot afford to be complacent even if you do register your brand as a trade mark. One case in particular, Associated Newspapers Ltd and another v Express Newspapers, carries messages for brand owners. The Problem The Claimant, Associated Newspapers, owns the ‘Daily Mail’, ‘The Mail on Sunday’ and ‘Evening Standard’. The Defendant owns the ‘Daily Express’ and intended to launch a free evening newspaper in London, in competition with the Evening Standard. Various names were considered for the Defendant’s newspaper but each could be shortened to ‘The Mail’. The Claimant argued that use of the proposed names: ‘The Mail’, ‘Evening Mail’ and/or ‘London Evening Mail’ would constitute “passing off” and trade mark infringement of the Claimant’s registered trade marks: The Mail; Daily Mail; andMail on Sunday. The Defendant argued that the Claimant…

Betamax Was a Steppingstone: 1984 Court Ruling Launched a Technological Revolution
Copyright , Internet , Record Labels / March 2004
USA

COPYRIGHT Internet, Record Labels, Technology ARTICLE: By Fred Von Lohmann, Senior Intellectual Property Attorney, Electronic Frontier Foundation (This article is comment on the now milestone decision in the US by the Supreme Court regarding technology which has both infringing and non-infringing uses. This decision is paralleled in the UK in the case of CBS Songs v Amstrad. The EFF’s comment is made at the time of the current US appeal court hearing in the case of the MGM Studios v Grokster).   The MP3 generation may not remember it, but 20 years ago, Hollywood fell just one vote short of winning a ban on the VCR. This month marks the 20th anniversary of the Supreme Court’s 5-4 decision in Sony v Universal City Studios (1984), the case in which two movie studios asked the federal courts to impound all Betamax VCRs as tools of “piracy.” Thankfully, the Supreme Court spurned Hollywood’s arguments, best summarized by Motion Picture Association of America chief Jack Valenti’s famous quote: “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” The court decided that American consumers were not violating copyright laws when…

The Copyright and Related Rights Regulations 2003
UK

COPYRIGHT Record Labels, Music Publishers, Artists, Internet, Film, Television, Technology ARTICLE: By Jonathan Cornthwaite, Solicitor 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 technology to copyright law, and the Regulations…