Campbell v Mirror Group Newspapers (No2)
Defamation , Internet / November 2005
UK

DEFAMATION Newspapers, Television, Radio, Internet In this case the House of Lords held that where a successful claimant in a libel action against a newspaper had entered into a conditional fee arrangement (CFA) which included a percentage uplift as a success fee, the newspaper’s liability in costs to pay that success fee was not incompatible with its right to freedom of expression (under the Human Rights Actand Article 10 of the European Convention of Human Rights) even though the claimant (in this case Naomi Campbell) might have had sufficient resources to fund their litigation without resorting to a CFA. The House of Lords refused the application of Mirror Group Newspapers for a ruling that the uplifted percentage of the fees charged by Schillings to their client, Ms Campbell be disallowed. In total MGN faced legal costs, including their own, totaling £1,086,295. The House of Lords held that since Access to Justice Act 1999 the uplift of success fee element can be included in a claim for costs against the losing party. The deliberate purpose of the 1999 Act was to impose the cost of all CFA litigation on the unsuccessful party, in this case MGN. The Times Law Reports 21 October 2005 See Law…

EFF criticize US labels’ approach to digital radio: EFF article “Don’t Touch That Dial, RIAA!”
Copyright , Internet , Record Labels / October 2005
USA

COPYRIGHT Radio, Record Labels, Internet The EFF have (somewhat tongue in cheek) suggested that the Recording Industry Association of America (RIAA) has seen the future of radio – and would prefer to live in the past. Digital broadcast radio is a standard for transmitting digital stations on existing analog radio bands. Known somewhat misleadingly as “HD radio” (the audio quality is about the same as analog FM), its adoption is giving tech companies a chance to experiment and innovate in the world of consumer radio. TiVo-like functionality could be built into your digital receiver, letting you automatically build playlists and skip across channels based on your personal tastes. Computer-operated radio cards could be enhanced with new features using the standard’s metadata. Tomorrow’s tinkerers could give us new ways to enjoy radio, just as the engineers who brought us VCRs helped transform the way we watch TV. As Mitch Bainwol, chairman of RIAA says, radio has a chance to become active, not passive, entertainment. But when he and the RIAA say that, they don’t say it like it’s a good thing. Last week, with a coalition of copyright holders, the RIAA sent messages to members of Congress requesting that the FCC…

EFF’s new guide to digital music services points to unexplained restrictions with Digital Rights Management Systems
Copyright , Record Labels / October 2005
USA

COPYRIGHT Record Labels “If you buy music from an online music store, you may be getting much less than you thought” – that’s according to the The Electronic Frontiers Foundation. The EFF have just released “The Customer Is Always Wrong – A User’s Guide to DRM in Online Music,” which exposes how today’s digital rights management (DRM) systems can compromise a consumer’s right to lawfully manage his or her music the way she wants. The Guide takes a close look at popular online music services with built-in DRM created by Apple, RealNetworks, and Napster 2.0, as well as Microsoft’s “Plays for Sure” DRM labeling campaign. Although these companies claim their services allow consumers “freedom” and the ability to play music “any way you want it, The EFF suggests that “the reality often does not live up to the marketing hype”. When you download in these formats from online music services, the services don’t trumpet the fact that your music contains hidden restrictions that complicate your life and limit the universe of devices you can use to play your music. The Report points out that CDs purchased 20 years ago not only continue to play in every CD and DVD player,…

Centre for Crowd Safety Management is launched
Health & Safety , Live Events / October 2005
UK

HEALTH & SAFETY Live Event Industry The Centre for Crowd Management and Security Studies has been formally opened by the Rt Hon Bruce George MP on the 6th September. The Centre, part of Buckinghamshire Chilterns University College is headed up by live music industry veteran Mick Upton who received an honorary doctorate from the University College the same day. Keynote speakers at the launch were Iain Hill and Professor Chris Kemp. The legal consultant for the Centre is the Law Updates editor, Ben Challis. The Centre was set up to help promote the creation of a safer concert and security environment. The Centre is also endorsed by the Security Industry Authority (SIA) to offer licensed qualifications in the security industry. The Centre has already worked with the ILMC Safety Focus Group to produce the http://www.safety-rocks.org website and has conducted research at the VE Day event in London’s Trafalgar Square, the Red Hot Chilli Peppers concert in London’s Hyde Park, the Robbie Williams concert at Knebworth, the Eminen concerts at Milton Keynes Bowl, and at the Roskilde Festival. The Centre is now looking at safety barriers in conjunction with Mojo Barriers and Professor Kemp added that the Centre is now looking at scientific…

Korn sign all in deal with EMI
Contract , Record Labels / October 2005
USA

CONTRACTS Record Labels Following the much discussed deal between Robbie Williams and EMI, The LA Times reports that EMI has signed a five-year deal with Korn where the label will have a stake in the band’s additional earnings beyond sales of recorded music. An estimated fifteen million dollar advance has been paid. Similar deals are being done with new acts including A&M/Interscope’s deal with the Pussycat Dolls. My Chemical Romance’s deal with Warners covers both recording rights and merchandise. Under Korn’s new deal, EMI will get more than 25% of the band’s publishing, merchandising and touring revenue as well as profit from the group’s albums The signing of a band as big as Korn is seen as possibly indicative of how recording contracts will change across the industry. Some see this as a way for labels to get a better/quicker return on their investment (as bands will be marketed more aggressively through all media channels). However, others are suggesting that Korn’s recording and touring fortunes are on the slide, making this a curious time to sign a deal such as this with the band. Music executives and artists say that if all-encompassing agreements become common, they could significantly shift the…

UK Home Office exempts football stewards from door supervisor regulations
Licensing , Live Events / October 2005
UK

LICENSING Live Event Industry The Home Office has decided to exempt in-house football stewards from licensing under the Private Security Industry Act 2001 following consultation with the SIA, the Football Licensing Authority and the Department for Culture, Media and Sport. The Private Security Industry Act (PSIA) 2001 allows for specific groups to be exempt for the Act in circumstances where suitable equivalent alternative arrangements apply. The exemption for football stewards is expected to take place from around January 2006. Media enquiries on this subject are being handled by the Home Office Press Office. The Home Office has issued a Regulatory Impact Assessment (RIA) which considers the options for ensuring that football stewards, their supervisors and managers satisfy the requirements of the PSIA 2001 without creating an unnecessary burden on the businesses and individuals affected. It also sets out the Government’s preferred option and explains how the proposed framework will work. See: http://www.the-sia.org.uk

UK judicial review finds local authority policy illegal
Health & Safety , Live Events / October 2005
UK

HEALTH & SAFETY Live Music Industry The pub sector has won a landmark legal case against Canterbury City Council in the UK finding that Canterbury’s Licensing Policy is unlawful. Central to the case was that Canterbury’s Licensing Policy was far too prescriptive, set broad blanket conditions on licensed businesses and misled those applying for licences about what they had to do to be granted a licence – in effect the case was that the Council’s Licensing Policy was in breach of the provisions of the Licensing Act 2003. Mr. Justice Richards stated in his ruling, ‘It is sufficient that my judgment speaks for itself, not just to the council [Canterbury] but also to the other licensing authorities whose policies are under examination’. The case highlighted the problem in the licensed trade where a number of local authorities attempted to use their Licensing Policies to impose what are said to be unnecessary and unlawful conditions and regulatory burdens on pubs. The Judicial Review was a joint action taken on behalf of the pub industry by the British Beer & Pub Association, The Association of Licensed Multiple Retailers and the British Institute of Innkeeping. Government figures now show that 86% of premises…

Australian Court rules that Kazaa file swapping software is illegal
Australia

COPYRIGHT Record Labels, Music Publishers, Internet Australian Court rules that Kazaa file swapping software is illegal: Universal Music of Australia Pty Ltd vs Sharman License Holdings (2005) whilst other P2P companies review strategies in light of the Grokster decision The Federal Court of Australia has ruled that the internet peer-to-peer operator Kazaa is illegal and the IFPI has called on similar networks throughout the world to stop infringing copyright or face the legal consequences. The judgment, coming just ten weeks after the US Supreme Court ruling against the ‘file-sharing’ operator Grokster, concludes the 18-month trial of the best-known international file-swapping service and helps to lay down the law for the new generation of unauthorised peer-to-peer operators. The Court ruled that Kazaa – until recently the world’s biggest single internet piracy operation with 2.4 million users worldwide – is an illegal business that is liable for copyright infringement. The move is part of a global trend clarifying the rules around internet music distribution. A court ruling in Korea last month required the peer-to-peer service Soribada to stop unauthorised file-swapping on its network or shut down. IFPI Chairman and CEO John Kennedy said: “Within the space of ten weeks, three courts in three different…

First criminal ruling against an internet peer-to-peer service in Taiwan
Taiwan

COPYRIGHT Record Labels, Music Publishers, Internet The IFPI, representing the international recording industry, has welcomed the conviction of Taiwan-based internet file-sharing service Kuro, in what is the first criminal conviction of a peer-to-peer (p2p) service in the world. A Taiwan court today convicted Kuro of criminal copyright infringement, imposing a fine of NT$3 million (approx US$90,000) and sentencing the three principals of Kuro, along with a user, to jail terms of up to three years. The judgement follows three other court rulings on file-sharing services – all within the past three months. The IFPI say that all four – the ruling against Kazaa in Australia (see abopve), the unanimous US Supreme Court ruling against Grokster, and the injunction against Soribada in Korea – establish there is no defence for file-sharing services that build their businesses on the back of unauthorised trading of copyrighted material. Lauri Rechardt, IFPI Taiwan has called upon Kuro to stop immediately the unauthorised file-sharing, to either close or make the necessary changes to allow the technology to be used legally. The Chen brothers, who ran the service, have been each sentenced to three years imprisonment; their father, who was president of Kuro, to two years; and…

Major labels seek to outlaw Chinese search engine
Copyright , Internet , Record Labels / October 2005
China

COPYRIGHT Internet, Record Labels China’s leading internet search engine has said that it would appeal a decision by a Beijing court that it should pay compensation to a unit of global music group EMI music, over downloads of pirated pop music offered through its website. The ruling, which also ordered the company to stop providing the services, highlighted the potential legal vulnerability of the popular “MP3” digital music search service offered by Baidu, which enjoyed a hugely successful listing on the Nasdaq last month. The Baidu search engine (commonly refered to as ‘the Chinese Google’) has been sued for making copyright infringement easy via its MP3 search option. Baidu commands 37.4% of China’s search market. German and Australian courts have already held that internet links sites to other illegal download sites are in themselves illegal. The company claims that it is not offering downloads itself: it is merely offering a search option. Baidu’s VP of Marketing, Liang Dong, says: “From the copyright point of view, we think differently than the music companies. Baidu is just a platform for music search”. Source: Five Eight Magazine – http://www.five-eight.net See: http://www.mg.co.za/articlePage.aspx?articleid=251123&area=/breaking_news/breaking_news__business/ For the Australian decision see Law Updates August 2005 and Germany see Law Updates…

BPI issues new proceedings against CDWow!
Copyright , Record Labels / October 2005
UK

COPYRIGHT Record Labels The BPI is to issue legal proceedings against internet music retailer CD Wow for importing illicitly cut-price CDs and DVDs from south east Asia. The BPI says it has evidence that CD Wow has broken court undertakings not to import such material. The BPI originally reached an out of court settlement with CD Wow in January 2004 after similar allegations. The retailer gave undertakings to both the BPI and the High Court that it would only import music legally. The case covers CDs and DVDs (including a cut-price version of the Live Aid DVD which the BPI feels may potentially have deprived the charity of income). Source: http://www.bpi.co.uk

Pirating cable TV in Hong Kong: By Ken Yip
Copyright / October 2005
China

COPYRIGHT Broadcasting ARTICLE: This is a link to a useful article on pirated internet streaming of cable TV programmes via the internet: Synopsis “First it was CD. Then it was DVD. Now, it is cable-TV …… Recently, a couple of specialized computer programs have been developed to allow P2P streaming of cable-TV contents, such as ESPN and Discovery Channel, over the Internet. Anyone can now log on to the internet and watch ESPN without paying a dime to a cable-TV operator or ESPN” See: http://www.mondaq.com/article.asp?articleid=34786&email_access=on

Music and film industries launch new software to fight file sharing
Copyright , Record Labels / October 2005
USA

COPYRIGHT Software, Films, Record Labels The IFPI, in conjunction with Motion Picture Association of America, have launched the Digital File Check software to help individuals and companies prevent their computers from being used to illegally file-share copyrighted works online. The software is free and helps users delete P2P software and also ensure that copyright material is not in their shared folders. In addition, the IFPI is sending a copyright guide to IT managers at large companies to help them ensure their machines and networks are not used for file-sharing. The software is available online for free and will also be issued on CD in Denmark, Finland, Germany, Italy, the Netherlands, Spain, Sweden and the UK. This finally seems to be a positive move from the record labels who have tended to rely on litigation against file-sharers and P2P operators to ‘solve’ the problem of P2P file sharing. The timing of the initiative is also interesting in light of the growing legal pressure on Congress in the US to investigate how effective colleges and universities’ anti-piracy measures have been. See: http://www.ifpi.org/site-content/press/20050922.html and http://www.hollywoodreporter.com/thr/music/brief_display.jsp?vnu_content_id=1001179669

Experience Hendrix LLC files additional suit against Purple Haze Records
UK

COPYRIGHT AND PERFORMERS’ RIGHTS Record Labels, Artists Following its victory over Purple Haze Records earlier this year, Seattle-based Experience Hendrix LLC filed a second suit (on September 12th 2005) to stop the marketing and sales of all unauthorized Jimi Hendrix recordings through the U.K. independent label. In February, the High Court of Justice in London held Purple Haze and proprietor Lawrence Miller liable for infringing the rights of Experience Hendrix in recordings of the Jimi Hendrix Experience’s 1969 Konserthuset performance in Stockholm as these breached the artists performers rights provided for under the Copyright Designs and Patents Act 1988 (as amended in 1996 and as applied retrospectively). See law updates July 2005 and June 2005 Experience Hendrix LLC v Purple Haze Record Ltd and Another

Article: PERFORMERS’ RIGHTS
Articles / October 2005

Click here to download this article as a PDF file (.pdf) by Jamie Barnard Media, Brands and Technology Lawyer, Lewis Silkin Solicitors London, UK October, 2005 Although it took many years to achieve, performers of music have finally been given rights equivalent to those conferred on authors and other copyright owners. Rights of the intellect (avoiding reference to intellectual property for reasons that will become clear) are theoretical until the moment they can be exploited. In other words, a poem rehearsed a thousand times in Shakespeare’s mind would have no more protection in law than a spectacular soliloquy to an empty room. In the days before performances could be captured in acoustic or visual recordings, or indeed broadcast live, rights in a performance could vest in no one but the performer. Without the ability to “fix” a performance, exploitation was impossible without the performer’s consent. However, as soon as a performance could be fixed, it could be exploited by others, and the performer’s autonomy was no longer guaranteed. The synopsis at the head of this essay contains a subtle truth which should be acknowledged before performers’ rights are considered further. In society, rights exist on two levels: philosophically and legally. Whilst we may…

SONY BMG settle payola claim
Competition , Record Labels / September 2005
USA

COMPETITION Record Labels Sony BMG is paying $10M as a settlement following Attorney General Eliot Spitzer’s payola investigations in the US. The money will be paid to non-profit organisations that promote music education. The investigation illustrated that to get Franz Ferdinand played on radio station WKSE, the label paid $4,000 which was used to send radio executives to Miami. It is also said to have disguised ‘payoffs’ such as flat-screen TVs by referring to them as “contest giveaways”. It is expected similar settlements with the other majors will be arrived at soon. Sony BMG responded by firing its promotion executive at Epic and disciplining four other executives at Sony Urban and Epic. Spitzer is now thought to be investigating radio stations in the United States on the similar matters. See: http://www.guardian.co.uk/business/story/0,,1535935,00.html

Use of ‘Doors’ name restricted
Artists , Trade Mark / September 2005
USA

TRADE MARK Artists Original Doors members Ray Manzarek and Robby Kreiger along with ex Cult frontman Ian Astbury have been banned from using the band’s name while touring. This follows legal action brought by original drummer John Densmore and the families of Jim Morrison and Morrison’s then girlfriend in the United States. Keyboard player Manzrek, guitarist Krieger and vocalist Astbury have been touring as the Doors of the 21st Century since 2002. The suit from the parents of late rock star Jim Morrison claimed that by re-forming the band with another singer, Manzarek and Kreiger had “maliciously misappropriated” the name. George and Clara Morrison claimed breach of contract, unfair competition and trademark infringement in a Los Angeles Superior Court lawsuit and sought unspecified damages and to put a stop to the new incarnation of the band. Manzarek and Kreiger were also sued by the parents of Morrison’s late girlfriend, Pamela Courson, who, according to the lawsuit, owns half of the rock icon’s share in the Doors. The Morrison lawsuit alleged that “over the past 37 years the legendary rock band the Doors … has become one of the most distinctive names in contemporary music,” the lawsuit said and that the…

Megadeth singer sues bassist over use of band name in advert
Artists , Trade Mark / September 2005
USA

TRADE MARK Artists In a slightly unsual case Megadeth’s lead singer has accused their ex-bassist of using the heavy metal group’s name without permission. However the use is not as part of a touring band or on an album but as a historical record of the bassist David Ellefson’s membership. Band founder and vocalist David Mustaine claims he and Ellefson had an agreement restricting Mr Ellefson’s use of the group’s name. Mr Mustaine says an advert Mr Ellefson made for musical equipment contravenes this deal. He is seeking unspecified compensatory and punitive damages. In the legal action filed at Los Angeles’ Superior Court, Mr Mustaine stated that Mr Ellefson “shall not use the work or mark ‘Megadeth’ to advertise, market or promote any product or service”. Mr Mustaine claims that an advertisement in Bass Player magazine, which features Mr Ellefson holding a pedal tuner for bass guitars and includes the names of bands he is involved with – including Megadeth – breaks a settlement agreement both parties entered into which prevented Mr Ellefson using the band’s name – even thought the use is not as a direct endorsement. See: http://news.bbc.co.uk/1/hi/entertainment/music/4721497.stm

Trademarks in India
Trade Mark / September 2005
India

TRADEMARKS General This is a link to the article India: Trade Marks: Identity that Demands Protection by Rajkumar Dubey (Dubey & Partners, Advocates) which gives a good descriptive account of trade mark law in India. See: http://www.mondaq.com/about.asp?section_id=5&product_id=9

Ashanti producer wins $630,000 in royalty claim
Artists , Contract / September 2005
USA

CONTRACTS Artists A US judge has ruled that that Ashanti owes $630,000 to her first producer for breach of contract. The singer was not in court when the jury returned its verdict in favor of Genard Parker, who worked with Ashanti in 1996 and 1997 when she was 16. Ashanti testified during the four-day trial that Parker did not live up to the terms of their deal as he helped her create music in a home studio that was so crude she sang in the bathroom. Parker claimed that he was due a royalty on Ashanti’s album after Ashanti’s mother approached him in 1996 and he produced tracks for Ashanti in anticipation of future compensation. Parker and his team claims that Ashanti and her mother broke the contract and owed them “certain benefits and fees” to the tune of $4 million. Parker argued that Ashanti eventually signed with a record company and that he released her from his contract with the understanding that he could produce two songs on her first album. Ashanti, now 24, has sold more than 6 million copies of two albums, including “Ashanti,” her debut, which garnered a Grammy Award in 2003 for best contemporary R&B…

Digital Freedom in the UK
Copyright , Internet / September 2005
UK

COPYRIGHT Internet This is a link to an interesting article by Danny O’Brien on trying to repeat the success of the Electronic Frontiers Foundation in the United Kingdom. See: http://www.guardian.co.uk/online/story/0,,1537039,00.html

Websites and the law in the UK
Copyright , Data Protection , Internet , Trade Mark / September 2005
UK

COPYRIGHT, TRADE MARK, DATA PROTECTION Internet This is a link to a useful article by John Simmons of Collyer-Bristow, solicitors, on managing to stay within the law with a UK website: ‘Keeping Your Website Legal’. See: http://www.mondaq.com/article.asp?articleid=33903&email_access=on

Russia’s largest CD manufacturer signs accord with IFPI
Copyright , Record Labels / September 2005
Russia

COPYRIGHT Record Labels IFPI and the largest optical disc manufacturer in Russia, the Ural Electronic Plant (UEP), have signed an agreement that aims to help the plant produce only legitimate audio and video discs. The cooperation agreement with IFPI, representing the recording industry worldwide, is the first of its type to be signed by a Russian plant. The IFPI hopes that other optical disc manufacturers in Russia will follow suit. Russia has the world’s second biggest pirate market after China and is a mass exporter of pirate discs originating from the country’s manufacturing plants. The agreement sets the rules that will help the UEP to ensure that products manufactured at the plant are legitimate. Under the agreement, the UEP will inform IFPI about the purchase and installation of any new equipment used to manufacture optical discs. Representatives from IFPI will be given access to the plant to obtain samples of its manufactured products. The UEP will also notify IFPI of any orders where doubts are raised as to their legality and both parties undertake to cooperate to determine the nature of such orders. A key part of the agreement is that the UEP will undertake the necessary actions to enable…

Dream Home, The Block and The Complex format disputes in Australia
Copyright / September 2005
UK

COPYRIGHT Television ARTICLE : By Jonathan Coad, Solicitor The trade in television formats has, since its inception over 50 years ago, been an international one. The courts worldwide are increasingly facing the same issue, which is whether the concepts from which programmes – particularly in the reality genre – are made should be permitted the monopoly of copyright protection. A dispute currently being played out in the Australian courts typifies that dilemma. First there was the programme Dream Home created by Ninox Television. Then there was The Block for which Nine Films and Television was responsible along with Nine Network Australia. Then there was The Complex which showed in America by means of a licence granted by the creators of The Block. Nine Network produces and purchases television programmes and supplies them to Nine Films which in turn exploits them by the granting of licences. Ninox makes television programmes in New Zealand for broadcasting there and for sale overseas. In this case, which was heard in Australia last month, Ninox asserts that it and TV New Zealand own copyright in the Dream Home format, and that by producing and screening The Block, Nine Network and Nine Films infringe that copyright. Nine in turn claims that the…

IFPI Publish 12th Recording Industry in Numbers
Copyright , Record Labels / September 2005
Brazil
EU
Hong Kong
Japan
Mexico
Norway
UK
USA

COPYRIGHT Record Labels The International Federation of Phonographic Industries has published its 12th annual Recording Industry in Numbers which includes record company market share figures for 2004, and, for the first time shows global revenues from the collection of performance rights, along with data, statistics and trends in 65 countries’ music markets. Market share: Universal maintains its position as the world’s biggest recording company, with a 25.5% share of the world market. Sony BMG is next with a 21.5% share followed by EMI at 13.4% and Warner at 11.3%. The independent sector holds steady with a 28.4% global share. National and regional market share information is also available. Performance rights revenues: For the first time, IFPI is publishing revenues to the industry from the public performance of music and music videos. This is an increasing revenue source for record companies as the channels for getting music to the consumer expand. Performance rights collections totalled $US493 million in 2004 – up 4.5% on 2003 and up 19% over the past five years. IFPI estimates that potential revenues from the sector could more than double its current value over the next five years. The figures include licensing income from webcasting and simulcasting…

Canadian Supreme Court rule technology levy illegal
Canada

COPYRIGHT Record Labels, Music Publishers, Technology The Supreme Court of Canada has ruled that the Canadian Private Copying Collective cannot apply a levy on digital music players. The $4M collected to date must be paid back to the device manufacturers and importers. The Supreme Court upheld the Federal Court of Appeal’s decision to quash CPCC levy on i-Pods and other MP3 players and other similar digital music devices which was initially approved by the Canadian Copyright Board. The Supreme Court has refused to hear further arguments regarding a levy and confirmed that that the Copyright Board was ultra vires its authority when it applied the private copying levy to digital audio recorders, and that the levy was an unconstitutional tax. The levy was collected on the basis that individuals ordinarily use these devices to make copies of recorded music for personal use. The Canadian Private Copying Collective, a non-profit agency that collects tariffs on behalf of musical artists and record companies, had been pursuing the appeal and has said that it is “disappointed” and that it felt that it was “self-evident that those products are sold for the purpose of copying music” The group argues that since many people use…

Playlouder’s legal file sharing service signs up SonyBMG
Copyright , Internet , Record Labels / September 2005
UK

COPYRIGHT Record Labels, Internet The UK’s first legal online file swapping service has signed up SonyBMG. Playlouder.com has licensed tracks from the major which has a 21.5% market share. The service, which already had agreements with a number of independent labels, offers a legal version of the ever popular but illegal file swapping offered by software such as Grokster and Kazaa. Subscribers will be charged £26 ($48 approx) for a high speed broadband connection with the added attraction of a large music catalogue available for downloading or swapping with others on the service. This allows Playlouder to monetize peer-2-peer file swapping. Because of the nature of the licence authorised users will then be entitled to make copies of the recordings for their own use in other digital players, for example burning by CDs for their car stereo or loading tracks onto their own iPod. In the United Kingdom making ANY copy without the permission of the owner of the copyright is an infringement of copy. The only exception under the Copyright Designs & Patents Act 1988 is making video copies of television programmes for later viewing (so called ‘time shifting). Playlouder will digitally fingerprint all tracks used and swapped so…

Window upgrade policy raises privacy concerns
Internet , Privacy / September 2005
USA

PRIVACY Internet, Technology Microsoft’s new policy of scanning computers for illegal software when they contact the site for upgrades or downloads could have serious privacy issues. Microsoft says that 35% of the software in use worldwide is counterfeit, at a cost to the software industry last year of $1 billion. Users of the estimated 100 million computers worldwide running illegal copies of the operating system will not receive the upgrades and can only receive security patches. However if the purchase of the illegal software was unintentional and the users fills out a piracy report for Microsoft the software company will provide Windows XP to the user. Microsoft also collects data on software being used as well as data on the flow of information between the operating system and other hardware, such as printers. No personally identifiable data will be collected, says Microsoft, and information will remain completely anonymous. For Microsoft’s statement on its data collection see:http://update.microsoft.com/windowsupdate/v6/default.aspx?ln=en-us From an article by Nvall Engfield in E-TIPS. E-TIPS is a publication of Deeth Williams Wall LLP and edited by Richard Potter QC. To review past issues of the E-TIPS newsletter, visit:http://www.dww.com/newsletter/archive.html For comment by the EFF of the Federal Bureau of Investigations use of National…

Podcasters asked to pay royalties by Dutch collection societies
Copyright , Internet / September 2005
Netherlands
UK

COPYRIGHT Internet The BBC have been hailing their free podcasting service as a major success after 1.4 million people downloaded the Beethoven symphonies it made freely available although it is thought that over half were taken up by users in the USA. Writing in the Observer newspaper (31st July) John Naughton explains that “podcasting is the delivery of an enclosed file to a computer where it can be downloaded to an MP3 player”. The technology started to be used in blogs but was recently incorporated into Apple’s i-Tunes software. Podcasting enables anyone to create what are effectively self published radio ‘programmes’. Anyone who wishes to receive the programmes subscribe to feeds using software that checks for and downloads new programmes automatically.to the author’s syndication feed which may of course be for a fee. In Holland Buma/Stemra, the agency that represents the interests of music composers, lyricists and publishers in the Netherlands and collects royalties on their behalf, is asking podcasters for compensation for lost royalties. As a temporary measure until 1 January 2006 (when presumably Buma/Stemra will announce a more definite scheme) the agency is asking professional podcasters to pay a monthly charge of €85, and non-professionals could pay as…

EC propose new offence similar to the MGM v Grokster ‘induce’ to infringe
EU

COPYRIGHT Record Labels, Music Publishers, Internet The European Commission has published a draft directive which includes provisions to criminalise “attempting, aiding or abetting and inciting” acts of copyright infringement. The EU parliament will debate the proposal later this year. If the directive is adopted, software used primarily for illegal file sharing, for example, could potentially make its developers criminally liable in one or more EU member countries. See: http://www.wired.com/news/politics/0,1283,68418,00.html

German Appeal Court upheld principle that links sites can be illegal
Copyright , Internet / September 2005
Germany

COPYRIGHT Internet The Munich Intermediate Court of Appeals has upheld a decision of a lower court that a site providing links to another site providing illegal copying software. Heise online had published a story in January about Slysoft’s anyDVDprogramme. They were taken to court for an alleged breach of Section 95a of the Copyright Act,” which bans, among other things, the manufacture, import, propagation, sale, renting, and advertisement of ‘tools to crack copy-protection mechanisms.’ The plaintiffs felt that merely providing a link to the homepage of a manufacture of copying software itself constituted a breach of this Section. In addition, Heise was accused of having provided ‘instructions on how to crack copy-protection mechanisms’ in the report. Finally, the news report was considered ‘illegal advertising’ for the sale of the software. See: http://p2pnet.net/story/5746 See Law Updates May 2005 for the lower court’s decision in this case. See Law Updates March 2005 German court clears ISPs of liability for infringing uses by third parties and see Law Updates August 2005 Links site found to infringe copyright in Australian judgment.

The UK’s new Licensing Act causes chaos
Licensing , Live Events / September 2005
UK

LICENSING Live Event Industry The UK’s live music scene is under threat as numerous pubs and clubs have failed to re-apply for licences to sell alcohol and provide entertainment according to a new report. Under the Licensing Act 2003, anyone wanting to keep selling alcohol and/or provide entertainment must complete the paperwork by 6 August 2005. The new 21 page application contains details of what entertainment the venue or pub wish to promote and applicants must send in details of their current licence along with plans of premises and other details. Applicants must also state how they will meet the four key licensing objectives: preventing crime and disorder; promoting public safety; preventing public nuisance; preventing harm to children. Research by drinks company Glenfiddich has found that half of all pub, bar and restaurant owners are yet to apply and the report claims that the number of gigs taking place in the UK every day could fall from an average of 4,500 gigs to 2,250, if the venues are forced to close due to a lack of licence. Even the Government’s own figures suggest that 30% of premises (some 60,000 licensees) will miss the deadline. The 6th August deadline has been set…

The sound of silence. Fair dealing and the use of lyrics and music by academics and musicologists
UK

COPYRIGHT Music Publishers, Record Labels, Education ARTICLE:  This is a link to an article which argues that musicologists are being penalised by record companies and music publishers who refuse to allow them permission to transcribe songs from their artists. It’s unfair and it’s got to stop, says Professor Sheila Whiteley, from the University of Salford. The Guardian, Friday August 5, 2005 See: http://education.guardian.co.uk/higher/research/story/0,9865,1542685,00.html For an article debating the issues in using the exception of ‘fair dealing’ when using copyright material without permission (related to film and TV) see ‘Fair Dealing – Or What Connects Princess Di, L. Ron Hubbard and A Clockwork Orange? by Carrollanne Lindley, trademark attorney and partner, Kilburn & Strode, London.

Sentencing R v Zhou: Trader in pirate DVDs faces prison and ASBO order
Copyright , Record Labels / September 2005
UK

COPYRIGHT Film, Television, Record Labels A trader in pirate DVDs has been handed an anti social behaviour order (ASBO) banning him from selling pirate DVDs in London. The ASBO specifically stops Gon Ren Zhou entering Newnham, his main sales area. Stratford magistrates also confiscated 1000 pirate DVDS. Zhouy, who had 15 previous Bail Act offences was jailed for six months. See: Evening Standard 19 August 2005

Google may be liable for use of third party trade marks
Internet , Trade Mark / September 2005
UK

TRADE MARK Internet The US District Court for the Eastern District of Virginia has found that search engine company Google is partially liable for including third party trade-marks in the text of sponsored links as this could cause consumer confusion in violation of US trade mark law. Google sells ‘Sponsored Links’ that appear alongside “organic” search results returned when a user queries Google’s database of indexed web sites for general terms. Justice Leonie Brinkema found that that Google’s practice of allowing trade-marks in the text of third party advertisements that appeared as Sponsored Links caused consumer confusion. Google has since ceased this practice. The Court was careful to limit the potential impact of this decision on Internet business practices, noting that the plaintiff’s business model is a unique one and that the findings are fact-specific and not yet fully resolved. Further, the Court noted that none of the advertisers themselves are party to the action and their potential liability is not an issue before the Court. For a news article, visit: http://news.com.com/2100-1024_3-5835898.html From a summary of the case by Jason Young of Deeth Williams Wall published in E-TIPS® newsletter, Vol 4 No, see:http://www.dww.com/newsletter/archive.html See: http://www.mondaq.com/article.asp?articleid=34366&email_access=on

Canadian court rejects the “Single Publishing Rule” in an internet defamation case: Carter v BC Federation of Foster Parents Association et al (2005)
Defamation , Internet / September 2005
Canada

DEFAMATION Internet The British Columbia Court of Appeal has ruled that the so-called “single publishing rule” often used in the US has no application in Canada. Under the US rule the publication of a libel gives rise to only one cause of action – when the libel is first published – even though there may be later deliveries of the same libel, for example, by way of later sales of a book containing the same libellous statement. The Court noted that both English and Australian courts had rejected the single publishing rule. Although a potential injustice could arise if a plaintiff were allowed to mount a series of lawsuits based on a single article when re-published, the Court of Appeal noted that courts have abuse of process jurisdiction to deal with such situations. From a summary of the case by Richard Potter QC editor of E-Tips. Published in E-TIPS® newsletter, Vol 4 No 4, see: http://www.dww.com/newsletter/archive.html

New MCPS rate for non-music DVDs
Copyright , Music Publishing / September 2005
UK

COPYRIGHT Film, Television, Music Publishing More details are now available on the new MCPS licensing scheme for music used on DVD and VHS products that are not specifically music-related, for example, fitness videos/TV series etc. The Audio-Visual Producers (AVP) scheme has been launched after extensive consultation with the British Video Association. Under the scheme, licensee returns are ‘auto-matched’ against the MCPS database, enabling more efficient payments and backclaims. Source: MCPS-PRS Alliance eM magazine August 2005. See: http://www.mcps-prs-alliance.co.uk/redirect.asp?targetitem=4532&sid=835

Article: “Noise Annoys”
Articles / September 2005

Click here to download this article as a PDF file (.pdf) by Ben Challis, FRSA, LLB, MA(Law), MA Barrister-at-law Music Industry Lawyer Taking for its title a classic punk track by The Buzzcocks, this article summarises a variety of cases around the world where noise nuisance has been ruled upon in law. The implications of such rulings are of crucial importance to artists, promoters, venues owners and managers. IN the days when I still had some hair to spike up, I really used to enjoy going to loud (very loud) rock concerts. I remember coming home from a Ramones concert in the UK in the late seventies totally deaf – and I was still partially deaf at school the next day. As far as I know, my hearing did recover, but noise is a now major issue in the live music industry. Today promoters, venues and artists need to be aware of their legal responsibilities to a number of different people: to the audience, to their workers, and – as importantly – to neighbours who can suffer from noise nuisance. “Noise annoys”, but it can also damage hearing. Failure to comply with the law in respect of noise levels can result in fines, and, in extreme cases, claims for massive…

Supreme Court rules software manufacturers can be liable for user’s infringements
USA

COPYRIGHT Technology, Internet, Record Labels, Music Publishers Supreme Court rules software manufacturers can be liable for user’s infringements MGM v Grokster 04-480 27th June 2005 The US Supreme Court has ruled that software developers violate federal copyright law when they provide individuals with the means to share copyrighted files without authorisation. The court stressed that P2P technology has legitimate uses and added that file-sharing service operators can only be held liable if their intention was to encourage copyright infringement. “We hold that one who distributes a device with the object of promoting its use to infringe copyright … is liable for the resulting acts of infringement by third parties,” Justice David Souter wrote in the decision. “There is no evidence that either company made an effort to filter copyrighted material from users’ downloads or otherwise impede the sharing of copyrighted files.” MGM v. Grokster was brought by 28 of the world’s largest entertainment companies against the makers of the Morpheus, Grokster, and KaZaA filesharing software products in 2001. The entertainment companies hoped to obtain a legal precedent that would hold all technology makers responsible for the infringements committed by the users of their products but MGM and the other entertainment companies lost their case…

EU proposes harmonisation of criminal sanctions for infringements
EU

COPYRIGHT, TRADE MARKS, PATENTS, DESIGN RIGHTS Record Labels, Music Publishers, Film and Television, Internet The European Commission has adopted proposals to form a new directive which will align criminal law in the European Community in relation to the use of criminal sanctions for copyright infringement. The proposals will extend to at least commercial piracy. The directive is aimed at allowing Community wide co-operation in the investigation and prosecution of piracy and counterfeiting. The Commission argues that counterfeiting and piracy are so lucrative, and carry such light penalties relative to other forms of trafficking, that they are attracting investment from criminal organisations. The Commission says the directive is being aimed particularly at organised counterfeiters and faked goods that are dangerous to public health and safety, with minimum prison terms of four years being mandated for these offenses. Individual countries will have the option to impose harsher terms when the directive is translated into national law. See: http://www.theregister.co.uk/2005/07/13/eu_moots_criminal_ip/

BPI and legal download services challenge online publishing royalties
UK

COPYRIGHT Record Labels, Music Publishers, Internet A number of the UK’s leading online music services and the BPI, representing more than 300 UK record labels, are mounting a legal challenge to the licence terms demanded by music publishers and composers for the use of their compositions on the internet and on mobile devices. The seven online services – AOL, Apple iTunes, MusicNet, Napster, RealNetworks, Sony Connect and Yahoo! – are filing references to the Copyright Tribunal, alongside the BPI, challenging the tariff set by the MCPS-PRS Alliance for the use of musical works on the internet and on wireless devices. The MCPS-PRS Alliance is a joint venture between the MCPS and PRS, the collection societies that fix and collect royalties on behalf of music publishers and composers. These filings follow several years of negotiations with the Alliance by the BPI and online music services to try to achieve acceptable terms. Geoff Taylor, BPI General Counsel said: “The licence that the Alliance is trying to impose for online music is unreasonable and unsustainable. It is charging a royalty rate on a download that is double the rate it charges for a song on a CD. It applies this excessive rate to…

China tracks down more pirates
Copyright , Record Labels / August 2005
China

COPYRIGHT Record Labels China has arrested some 2,600 people in an 8-month-old crackdown on product piracy, the government has said, criticizing US complaints that it was failing to stop rampant copying of foreign movies, music and other goods. Authorities have destroyed 63 million compact discs and other counterfeit goods estimated to be worth 860 million yuan ($105 million), said Vice Minister of Commerce Zhang Zhigang, speaking at a nationally televised news conference. Zhang acknowledged that China still faced “quite a few problems,” but he criticized the U.S. for adding Beijing to a list of 14 countries that receive special scrutiny because of widespread violation of copyrights. The US government said in April that product piracy in China had reached “epidemic levels” and has warned that Beijing could face formal complaints in the World Trade Organization, raising the threat of trade sanctions. China is regarded as the world’s biggest source of illegally copied goods, including Hollywood movies, Microsoft Corp. software, Ralph Lauren shirts and Callaway golf clubs. Estimates of potential lost sales to legitimate producers worldwide range from $16 billion to as much as $50 billion a year. Despite repeated crackdowns, counterfeit goods are widely available in Chinese shops. Authorities have…

Wife Swap vs Trading Spouses – Scores Level After First Round
Copyright / August 2005
UK

COPYRIGHT Television ARTICLE: Format rights: by Jonathan Coad, solicitor The format trade is hoping that the battle in the US courts between RDF Media (Wife Swap) and Fox Broadcasting (Trading Spouses) will set a clear precedent telling us what protection will be given in the US to television formats. So far there have only been decisions by courts in Holland (see our early warnings of June and September 2004) and Brazil (see our early warning of June 2004) which have accorded copyright protection to television formats. The most valuable market for format producers is the US and the value of licence fees for formats will inevitably depend on the extent to which US courts will afford copyright protection to original television formats. The difficulties faced by the courts in any country are most acute where the format is in the reality genre. Where there is no script, and the programme merely places individuals in unusual (and non copyrightable) settings, and the resulting footage is merely edited and broadcast, how easy is it to characterise the resulting programme as a copyright work? It is not easily fitted into the statutory framework of copyright, either in the US or in any other jurisdiction….

European Commission proposes Europe wide music licensing for online use
EU

COPYRIGHT Record Labels, Music Publishers, Internet The European Commission has proposed that rules for registering and administering copyrights in Europe need to be changed to simplify procedures and to make it easier for artists to secure copyright registration across the European Community and provide a ‘one stop shop’ for copyright users such as legal download sites. The Commission suggests that it is the complexity and cost of the current system involving numerous collection societies each operating on a country by country basis that is holding back online growth in Europe (and not piracy and illegal file swapping). A EC study found that the cost of licenses to sell tracks in all 25 member states currently tops EUR 19,000. With profit per download standing at approximately EUR 0.10 it would require the sale of over 4.75m tracks to break even. “The gap is very wide; we need to do something about this” said a spokesman for Tilman Lueder, the EU’s commissioner for internal market and services. At the present musicians, record labels and publishers need to register copyrights with collective rights managers (collection societies such as the PRS, GEMA and SACEM). The collective rights managers then license songs to end users…

German court rules that the discoverer of a long lost Vivaldi opera may forbid unauthorized performances
Copyright , Music Publishing / August 2005
Germany

COPYRIGHT Music Publishers In a case reminiscent of Hawkins v Hyperion, the right of two music festivals to perform Vivaldi’s long-lost operaMotezuma is being contested in Germany. A German court has ruled that the Berlin Sing-Akademie, in whose archives the incomplete 18th-century manuscript was found, has the right to authorize and forbid performances of the work. A concert performance of Motezuma took place in June in Rotterdam using an edition prepared by German musicologist Steffen Voss, who discovered the manuscript in 2002, and Italian musicologist and conductor Federico Maria Sardelli, who conducted the world premiere with his Baroque ensemble Modo Antiquo. The Sing-Akademie filed civil lawsuits against Italy’s Opera Barga and Düsseldorf’s Altstadtherbst Kulturfestival, both of which have planned staged versions of the work. The Akademie claims to have published the manuscript on its web site, and says that it is protected by German copyright law, which holds that the finder of a work can own the rights to its performance for 25 years – effectively a form of restricted act in copyright owned by the finder. See: http://www.playbillarts.com/news/article/2437.html

Dutch court rules that privacy overrides copyright investigation
Netherlands

COPYRIGHT Record Labels, Music Publishers, Film and Television, Internet The Dutch rights organisation BREIN has lost a lawsuit filed on behalf 52 media and entertainment companies. BREIN had acquired unique computer identification numbers, so-called IP addresses, of suspected file swappers and had requested the personal details behind these IP addresses from five large internet service providers (UPC, Essent, Tiscali, Wanadoo and KPN). The ISP’s had refused to hand over details arguing only a criminal court could request this. The court ruled that BREIN made a crucial mistake in collecting evidence against the individuals as it could have accessed private data as well as details of copyright infringements when looking at user’s Kazaa activities and this was not permissible under Holland’s privacy laws (which the court suggested were far more robust than US privacy laws). The case in a civil court in the city of Utrecht led to a ruling that whilst the judge was allowed to order the ISPs to submit the personal data, the plaintiffs had not met the necessary conditions to warrant such an order. However, whilst a court in Sweden has also protected internet users privacy (see Law Updates July 2005) it should be noted that an…

Links site found to infringe copyright in Australian judgment
Copyright , Internet , Record Labels / August 2005
Australia

COPYRIGHT Record Labels, Internet An Australian man and his website has been found guilty of copyright infringement by providing links to infringing websites. Stephan Cooper’s Site “MP3sfor3.net” linked to sites which were offering copy written works for free. Federal Justice Brian Tamberlin ruled that although Cooper didn’t host pirated recordings per se, the court found the resident of the state of Queensland breached the law by creating hyperlinks to sites that had infringing sound recordings. This is the first such judgment against hyperlinking in Australia. Tamberlin found against all other respondents in the case, namely Internet service provider Comcen; Comcen employee Chris Takoushis; Comcen parent company E-Talk Communications; and Comcen and E-Talk director Liam Bal. In October 2003, the applicants, record companies, which included Universal Music, Sony, Warner and EMI, alleged that Cooper cooperated with Bal and Takoushis to increase traffic to the ISP and boost advertising revenue. Subsequently, the court was told Cooper was unaware he may have infringed copyright law, while E-Talk and Comcen asserted that it didn’t know of Cooper’s actions. Judge Tamberlin said: “I am satisfied there has been infringement of copyright and ordered costs against the respondents. Music Industry Piracy Investigations (The Australian trade association…

Court of Appeal gives narrow scope to database right
Copyright , Internet , Record Labels / August 2005
UK

COPYRIGHT Record Labels, Internet The Court of Appeal has now given its judgment in British Horseracing Board v William Hill Organisation Ltd, the first substantive case concerning database rights in the UK. The court held that William Hill’s appeal against the High Court’s 2001 decision in favour of the British Horseracing Board (BHB) should be allowed, in light of the ruling of the European Court of Justice (ECJ) on the scope of database rights in this matter under EC Directive 96/9 late last year. The Court of Appeal ruled that William Hill had not infringed BHB’s database rights. It confirmed the distinction drawn by the ECJ between (i) the creation of the contents of a database and (ii) investment in the obtaining, verification and presentation of those contents. It is only this latter investment, which attracts the protection of the database right – so for a database right to subsist there must be (real) investment in the obtaining, verification and presentation of the database – the court will NOT look at the creation of the database itself – which is not doubt an unwelcome decision for database right owners; here the Court has drawn the boundaries of protection afforded to database…

Clearing Music for Film
Copyright / August 2005
USA

COPYRIGHT Film and Television This is a link to an interesting article on clearing master tape recording and music publishing rights for an independent documentary film. Clearing rights can be a complex and expensive area but this interview explains what can be done, legally, with a limited budget and with a lot of effort, persistence and enthusiasm. See: http://blog.stayfreemagazine.org/2005/06/mad_hot_ballroo.html

Sweden updates copyright laws to prohibit illegal downloading
Copyright , Internet , Record Labels / July 2005
Sweden

COPYRIGHT Record Labels, software, Internet Sweden has made it illegal to download copyright material from the Internet and approved measures to discourage people from burning copies of CDs and DVDs. The law, which takes effect July 1, also bans technology and software used to circumvent protections on copyright material, including music, movies and games mirroring similar legislation in the USA. Previously whilst it was prohibited in Sweden to make copyright material available for others to download, downloading itself was legal. The new law also makes it illegal to copy an entire book, including text books, on a copying machine. Sweden does not forbid making a copy of a CD or DVD for personal use but there is a 24% tax on recordable CD and DVD-discs. See: http://www.qlinks.net/quicklinks/copyrigh.htm andhttp://www.theregister.co.uk/2005/06/06/swedish_file_sharers/