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…