Federal Court of Canada Dismisses the CRIA’s Motion For Disclosure in its File-Sharing Suit and Upholds the Legality of Music File Downloading in Canada

COPYRIGHT Record Labels, Internet, Music Publishers, Artists The Federal Court of Canada has dismissed the Canadian Recording Industry Association’s (CRIA) motion to compel several Internet Service Providers (ISPs) to disclose the names of customers who traded music on the Internet. In dismissing CRIA’s motion, the Court came to three key conclusions: (1) The CRIA did not make out a prima facie case of copyright infringement; (2) The CRIA did not establish that the ISPs are the only practical source for the identity of the P2P file swapper; and (3) CRIA did not establish that the public interest for disclosure outweighs the privacy interests of the ISP customers. With respect to copyright, Mr Justice Konrad von Finckenstein stated that copying a song for personal use does not amount to infringement. Individuals in Canada are free to copy music from CDs or tapes or download tunes from the Internet and save them on their own computers. This is provided for in Canadian Law where a levy system operates on some hardware, blank tapes and CDRs. The Court went further and held that copying files and saving them in shared directories on a peer-to-peer (P2P) network (such as Kazaa) is not copyright infringement. Referring to…

Lacoste Loses Trademark Action Against Crocodile International
Trade Mark / May 2004

TRADE MARK Merchandise Lacoste has lost its trademark suit against rival Crocodile International over the use of the crocodile logo in China. The emblem became symbolic of the Lacoste brand but Singapore based Crocodile International claimed it was first to dream up the design, registering the emblem in 1951. Lacoste, a French based company was ordered to stop using the logo and to pay one dollar in compensation. The Shanghai court started the hearings last December. The dispute had been ongoing for over four decades. The logos only differ materially in the direction they face – one to the left and one to the right. The crocodile design is slightly different. Lacoste says tennis legend Rene Lacoste registered the logo in France in 1933; then in China in 1980. But Singapore businessman Tan Hiantsin says his logo was designed in 1947 with the English word “crocodile” and registered in Singapore in 1951. He disputed Lacoste’s claim to have registered Chinese rights before the late 1990s. The case centred on Lacoste’s moves to register the trademark under its brands of cosmetics products in 1995. A key point in the argument was Mr Tan’s nationality. He’s a Chinese-born Malaysian and he claimed…

Oxford University Denied Exclusive Use of ‘Oxford Blue’
Trade Mark / May 2004

TRADE MARK Merchandise Oxford University has been denied exclusive use of the ‘Oxford Blue‘ mark after the Registrar of Trademarks ruled that HS Tank & Sons from Birmingham were entitled to produce a line of clothing with the same name. The company had been producing jackets and other garments using the mark since 1985. Oxford University have never trade marked the name. The Registrar held that whilst the University owned the reputation in the name Oxford Blue they enjoyed no goodwill which could stop HS Tank from exploiting the name. The Times, 7 April 2004 at page 5

High Court Dismisses Format Rights Claim: Miles v ITV Network (2004)
Copyright / May 2004

COPYRIGHT Television The case law on formats and television programmes still only amounts to a handful of decisions. The recently reported case of Miles v ITV Network Limited gives a further indication as to how such issues will be dealt with. It concerned a dispute over the rights to an ITV programme, Dream Street. The claimant, James Miles, appealed the decision of a Master who dismissed the claim on the ground that it had no hope of succeeding. That decision has been affirmed by Mr Justice Laddie. Miles alleged that in 1998 he supplied the ITV Network with promotional material for his cartoon, Trusty and Friends. The main character was a traffic light, and the ancillary characters were “traffic furniture” such as bollards and cones. The later ITV programme (Dream Street) had a recovery truck as its main character and, as Miles conceded, the look and feel of the two programmes were very different. Miles argued that there was sufficient inference of copying for the matter to go to trial because of similarities between the characters in the two programmes, and the fact that they both featured traffic equipment. The creator of Dream Street, however, produced evidence that designs for his programme had…

IFPI Announces A Wave of International Legal Actions Against File Swappers

COPYRIGHT Record Labels, Artists, Music Publishers IFPI and the recording industry associations in Denmark, Germany, Italy and Canada have announced the first wave of international lawsuits charging individuals with illegally file-sharing copyrighted music. A total of 247 alleged illegal file-sharers face legal action in a move that steps up the record industry’s international campaign against online copyright theft. Further waves of lawsuits against major offenders will be launched in different countries in the coming months. The legal actions charge the individuals with illegally making available hundreds of music tracks for copying, transmission and distribution via file-sharing services. However the move comes against a backdrop of criticisms in the United States where the Recording Industry Association of America has already used similar tactics. Critics point out that the European legal download market is still hampered by a lack of available rights and that the use of lawsuits is heavy handed. However the IFPI argue that More than 600,000 consumers in Europe alone are now accessing a large catalogue of 300,000 tracks that are available from 50 legal online sites. Jay Berman, Chairman and CEO of IFPI. said: “Today’s announcement should come as no surprise. Over the past year the record industry…

PPL Successful in Action Against Show Organiser in India

COPYRIGHT Record Labels, Television, Radio, Live Event Industry The organisers of the Mega Model Man Hunt, Gladrags Media Limited, have been ordered by the the Bombay High to pay Rs 46,000 to Phonographic Performance Ltd (PPL) as copyright fees. PPL approached the court when Gladrags refused to pay copyright fees for its event in April 2004 at the Mahalakshmi Race Course. PPL is the Indian society that collects copyright fees on behalf of the music companies including BMG Cresendo, Magnasound, Virgin Records, Venus, Saregama and others. The 1957 Copyright Act in India specifies that any public performance of Indian or international music has to obtain a public performance licence, or will invite criminal action. In India, PPL is the sole authority to administer the broadcasting, telecasting and public performance rights on behalf of the music industry. Advocate Rohini Vakil for PPL, said, “Despite sending out notices requesting them to pay up, they ignored it. Last year, too, they had gone ahead and held performances with taped music without paying copyright fees” Vakil explained that PPL has varying tariffs depending on category, and Gladrags had been asked to pay up under the hotel category for playing pre-recorded music at performances. See : http://ww1.mid-day.com/news/city/2004/april/80000.htm For…

The New Zealand Court of Appeal Formulates a Law of Privacy
Artists , Privacy / May 2004
New Zealand

PRIVACY Artists Michael Hosking v Pacific Magazines By a majority of three to two, the New Zealand Court of Appeal has approved the development of a law of privacy in a jurisdiction which is closer than any other to that of the UK. Since the judgement was only handed down on 25 March 2004, it is too early to say whether the approach adopted by the Court of Appeal in New Zealand will be followed in this country. However, if an appeal is made it will be to the Privy Council, who are members of the House of Lords. On the facts, the New Zealand Court of Appeal had no difficulty in finding that there was no breach of privacy. The claimant was a New Zealand television personality whose two baby children were photographed in the street. All five judges rejected the claimant’s appeal, but three went on to indicate the direction which they considered that the New Zealand law should take. Two of the judges observed that a “privacy” jurisdiction had been developed via the well established action of breach of confidence. They observed that there are now two distinct versions of this tort. One is the traditional situation…

Data Protection Act Guidelines – a Practical Summary By Sarah G Staines, solicitor

DATA PROTECTION AND PRIVACY Retail, Merchandising, Internet, Artists ARTICLE:  The Data Protection Act 1998 (the “Act”) is unusual in English law in that it gives considerable discretion to the person (or company) controlling and handling information which identifies living individuals. There are eight Data Protection Principles in the Act which oblige “best practice” when businesses are collecting, using or keeping computer (or other regulated paper system) stored information, which identifies living individuals. The Act uses obtuse definitions such as “data subject”, “personal data” and “data controller”. The supervisory authority enforcing the Data Protection Act – the Information Commissioner’s Office (ICO) encourages business owners to “embrace the spirit of the legislation” and recommends a practical and pragmatic approach to the Act; but only provides guidance which it admits is intended for lawyers and not for Directors or Managers of SME’s. One thing is clear – paying lip service to the Act is not an option; even if your business is “notified” to the Information Commissioner as a controller of personal information, unless you are complying with the Act your actions could lead to civil and/or criminal prosecution. What is Personal Data? The starting point is to decide whether the information is protected by the Act. In…

The Effect of the Offer of Amends Procedure on Damages Awards
Artists , Defamation / May 2004

DEFAMATION Artists Jimmy Nail v Harper Collins and News Group Newspapers (2004) The Offer of Amends procedure was introduced into the law of libel by section 3 of the 1996 Defamation Act. It was intended to provide a means to the media and other defendants of avoiding the uncertainty of jury awards. After a slow start, the regime is increasingly being used, although the media is watching it closely to see whether it will have the desired effect of providing a quick and inexpensive exit route from what might otherwise be expensive litigation. In 1998 Harper Collins published a biography of Jimmy Nail entitled Nailed which contained a series of defamatory allegations against him. For various reasons Jimmy Nail decided neither to issue proceedings nor even complain about the book at the time of publication. In May 2002 the News of the World published an article entitled “Auf Weidersen Jimmy’s Secret Bondage Orgies”. The content of the article can be guessed from the title. The News of the World article was to a large extent based on the contents of the book. Jimmy Nail then issued proceedings concerning both publications. In both actions an Offer of Amends was made and accepted….

UK Licensing Act 2003
Licensing , Live Events / May 2004

LICENSING Live Event Industry The UK Licensing Act 2003 received Royal Assent on 10th July 2003 but is not expected to come into full effect until 2005. The main points are that pubs, bars, restaurants, hotels and concert venues will be covered by a new ‘Premises Licence’ which will cover the sale of alcohol and any or all of the seven ‘regulated entertainments’ including performance of live music, performance of dance and the playing of recorded music. A one-off fee of between £100-£500 will be paid the applicable local authority and their will be an annual inspection fee to the local authority of £50-£100. Licence applications must be submitted to the local authority 28 days in advance and must include a plan of the premises, details of licensable activities and times of licensable activities. The following is taken from the Department of Culture Media & Sport’s website under the heading Regulated Entertainment. Under the new licensing regime, the concept of a separate public entertainment licence will disappear. Under the new regime only a single authorisation will be needed to supply alcohol, provide regulated entertainment, such as a performance of live music, or provide late night refreshment or any combination of these activities. Six…

Korean Government Sets Up Novel Solution to Phone Download Licence
Copyright , Record Labels / May 2004
South Korea

COPYRIGHT Record Labels, Telecommunications The dispute between MP3 phone handset makers and the music industry in Korea has been settled when LG Electronics agreed to a government-mediated proposal. The Korean Ministry of Information and Communication reported that LG accepted the arrangement of allowing its customers to download and listen to free music files on the MP3 phones for three days. As a result, MP3 phone holders will be able to download any music files from their PCs and play them without charge. The files are programmed to stop working after the agreed time span. In two months, mobile carriers will be required to provide music services for their customers, although at a low-quality sound less than 70 Kbps (FM radio level) in a move to stop downloading but provide music content. Initially the local music industry voiced strong opposition to the new phone features, and refused to co-operate with MP3 handset owners, preventing them from legally listening to music files. In an effort to iron out the difference, the government stepped in and masterminded the three-day free play suggestion for the two-month grace period, which was accepted by Samsung earlier this week. LG argued that the time span should be…