Canada to Implement Internet Treaties with Copyright Act Amendments
Copyright / May 2005
Canada

COPYRIGHT All areas ARTICLE: by Jason Young Last week Canada moved one step closer to dealing with some of the thornier intellectual property issues of the digital era. The proposed amendments to Canada’s Copyright Act chart a “made-in-Canada” course to implementing the WIPO ‘Internet Treaties’, which Canada signed in 1996, turning away from the US and Australian approaches in a number of key areas. First, the proposed bill would adopt a limited anti-circumvention provision for technological protection measures. That is, the circumvention of a technological protection measure applied to copyright material would only be illegal if it was carried out with the objective of infringing copyright. Legitimate access, as authorized by the statute, would not be altered. The proposal further anticipates that circumvention for the purposes of making private copies of sound recordings would not be permitted. Second, the amendments would adopt a new exclusive right of “making available”. The right would allow copyright holders to authorize the availability of their protected works online, thus making it illegal to passively make available music files over a peer-to-peer network, an evidentiary problem which the Federal Court eliminated last year in its decision in BMG Canada v John Doe [2004] 3 FC 241. The amendments will also…

Russian CD plant agrees to pay damages
Copyright , Record Labels / May 2005
Russia

COPYRIGHT Record Labels Russia’s Roff Technologies optical disc plant has agreed a substantial settlement with international recording industry body IFPI and eight member company plaintiffs over the manufacture of counterfeit CDs containing repertoire by major international artists. Settling the case out of court, Roff admitted to having infringed neighbouring rights in the past. The agreement brings to a halt civil court proceedings, which had been brought by IFPI member companies in January 2004. Civil action against CD plants is just one part of the record industry’s strategy in Russia. The industry’s top priority is stronger cooperation from the Russian authorities in the fight against piracy. Specifically, there needs to be effective regulation of the country’s optical disc manufacturing plants; effective investigation and prosecution of pirates by the enforcement agencies; and real deterrent criminal penalties when convicted pirates are sentenced in court. See: http://www.ifpi.org

Dark Side Of The Moon Claim
UK

COPYRIGHT/PERFORMERS’ RIGHTS Artists A female vocalist has won an out-of-court settlement for a piece of music recorded over 30 years ago. Clare Torry was paid £30 to perform on Pink Floyd’s 1973 album Dark Side of the Moon and was given a written credit at the time for her contribution to the track The Great Gig in the Sky. Torry has taken her claim to the High Court where she has won a half-share on copyright ownership on the song performed from Pink Floyd and EMI and a settlement. Ms Torry had employed a special wailing technique, recorded in a series of sessions, which effectively helped compose the track and it is this which would have been her contribution to the copyright. Dark Side of the Moon subsequently stayed in the charts for the next 26 years amassing sales of 36 million copies. The case is not the only dispute for Pink Floyd, after legal action last December from 23 members of the north London school choir who claimed they were due royalties from their performance on the worldwide hit, Another Brick in the Wall previously reported in Law Updates. See: http://www.freelanceuk.com/news/1006.shtml

Linkin Park Trade Mark application for posters refused
Artists , Trade Mark / May 2005
UK

TRADE MARK Artists by Tom Frederikse, Solicitor The band Linkin Park has lost an attempt to register its own name as a trade mark in respect of the sale of posters. An appeal to the Appointed Person was dismissed, the original objections of the Patent Office Examiner (that the mark lacked “distinctive character” and was “descriptive”) being upheld. The American pop group applied for the mark “Linkin Park” for use in marketing of posters of their band and argued that the mark must be distinctive because they had invented the words. However, the Appointed Person cited a 1970 case concerning the word “Tarzan” in which it was held that, by the date of the trade mark application, the word had become well known and had therefore ceased to be an invented word. The band also argued that, because the words were by themselves meaningless, the mark could not be descriptive. The Appointed Person disagreed, stating that the words were no longer meaningless as they had acquired the well-established meaning of denoting the band in the eyes of the average consumer. As the Appointed Person put it, a person asking “Do you have any Linkin Park posters?” is clearly describing a characteristic…

Rosa Parks, OutKast and Sony-BMG settle
USA

TRADE MARK/IMAGE RIGHTS Artists Sony BMG and Rosa Parks, who became a symbol for the U.S. civil rights movement when she refused to yield her seat on a segregated bus in 1955, settled her lawsuit over the use of her name in an OutKast song title. The settlement included an agreement that a tribute CD featuring OutKast would be produced later this year by Sony BMG to honour the 50th anniversary of Parks’ arrest. The parties will also produce a television broadcast tribute to Parks, he said. Parks, 92, had claimed that the song “Rosa Parks” on a 1998 OutKast album amounted to false advertising under U.S. trademark law and intruded on her rights. OutKast and their label countered that the title was constitutionally protected free speech because it was related to the song’s lyric of “everybody move to the back of the bus.” The Supreme Court in December 2003 rejected this argument and upheld a federal appeals court decision that permitted Parks to pursue her lawsuit. See: http://www.nytimes.com/2005/04/15/business/media/15settle.html

No payment for artists yet from RIAA download actions?
Artists , Copyright , Record Labels / April 2005
USA

COPYRIGHT Record Labels, Artists A Daily Texan article shares some startling numbers about the Recording Industry Association of America’s (RIAA) litigation campaign: The RIAA has settled 8,423 suits with an average settlement of $3,000. The Daily Texan works out that this is a total of $25,269,000.00 (twenty five million two hundred and sixty nine thousand dollars) and the newspaper claims that not a penny of which goes to the artists that the RIAA claims to speak for. The United Kingdom’s Times newspaper also ran a front page article (6 March 2005) saying that the British Phonographic Industry had settled a total of 23 civil claims against 23 file downloaders with a total compensation payment of 000.00. Peter Jamieson, chairman of the BPI, commented that unauthorised downloading “effectively steals the livelihood of musicians and record companies. We will not hesitate to protect the rights of our members and the artists they represent”. The BPI has said it will now target file sharers with collections of unauthorized downloaded tracks ranging from a few hundred to “high four figures” although no detail was yet given as to the division of receipts between recording artists and BPI member labels. See: www.eff.org/cgi/tiny?urlID=402 and www.bpi.co.uk COMMENT :The Daily Texan article does…

Cypriot event organisers pay up for music use
Cyprus

COPYRIGHT Live Event Industry, Music Publishing The Nicosia District Court has awarded the Performing Right Society (PRS) 40 in compensation after event organisers arranged four dinner balls with live music without acquiring the requisite licence for publicly performing copyrighted music either mechanically or live. Judge Alecos Panayiotou found in favour of the applicants, awarding them 12 per cent of the revenue raised from ticket sales for the dinner balls. The PRS noted that the organisers could have got away with paying half that amount using a special discount price if they had acquired the licence from PRS before the public performances. The judge noted in his conclusions that the plaintiffs could have sued for more since the defendants had been warned early on about the need to acquire a licence. Source: Cyprus Mail – www.cyprus-mail.com/news/main.php?id=18546&cat_id=1

Debate on the protection of software by patents vs copyright
Copyright , Patents / April 2005
USA

COPYRIGHT & PATENTS Technology “Once upon a time, we intellectual property lawyers got to live peacefully in our ivory towers. Now it seems that intellectual property policy issues have become fraught with partisan rhetoric. Most open-source promoters are against software patents. Most corporate spokesmen side with patents, period, whether they cover software or not. But it is worth looking beyond the rhetoric” Microsoft are busy patenting their software and for a very interesting discussion of the relative merits of protecting software by the monopoly protection of patent law or by the more ‘flexible’ protection of copyright see the very useful article “the Fuzzy Software Patent Debate Rages On” by US Attorney Heather J Meeker at :www.technewsworld.com/story/40676.html

Nigeria enforces copyright laws
Nigeria

COPYRIGHT Record Labels, Music Publishers OVER 100 People are now standing trial before various courts in Nigeria for allegedly engaging in piracy and other unlawful acts that violate the Copyright (Amendment) Decree No. 42 of 1999, the Director General of the Nigerian Copyright Commission (NCC), Professor Adebambo Adewopo announced. Speaking during a meeting with stakeholders in the Music Industry in Enugu, Adewopo also said that the commission had intensified its battle against piracy in the country, adding that prosecution of offenders had been strengthened as part of efforts to sanction perpetrators under the new anti-piracy programmes. Source: http://allafrica.com/stories/200503180883.html

Malaysian authorities crack down on copyright infringement
Malaysia

COPYRIGHT Record Labels, Music Publishers Enforcement officers in Malaysia have raided an entertainment outlet for playing music in public without the consent of Music Authors Copyright Protection Association (MACP) on Thursday. The 43-year-old operator was arrested and would be charged under Section 45 of the Copyright Act which carries a RM50,000 fine or five years’ jail, or both, upon conviction. Authorities also seized two VCD players, an electronic stereo system, an equaliser, an amplifier, a television set, a speaker, a VCD and a catalogue of songs. There were between 40 and 60 people at the outlet during the 3am raid by six ministry enforcement personnel and MACP representatives. The operator had been previously visited and had been issued warning letters last year in a bid to educate him to comply with the copyright law before playing music in public. Usually a venue operator must pay a RM2,500 fee annually to obtain a licence from MACP before playing music in public. Source: http://thestar.com.my/news/story.asp?file=/2005/3/12/nation/10397723&sec=nation

The UK’s Security Industry Authority warns of low levels of applications by door supervisors but also admits to its own delays
Health & Safety , Live Events / April 2005
UK

HEALTH & SAFETY Live Industry The Security Industry Authority has warned that inaction by door supervisors in the South East and London may force pubs and clubs to close if licensees cannot employ enough licensed door staff. Insufficient numbers of the South East’s door staff have applied for their new door supervisor licence. However pubs, clubs and venues have countered the SIA’s press announcement saying that numerous staff have applied for badges but the SIA’s own examiners are far too slow in coming back with results for applicants, slowing the whole process down. From 28 February in the South East region and from 11 April in Greater London it will be a legal requirement for all door staff to hold a new Security Industry Authority (SIA) door supervisor licence. All local authority registration schemes will cease. There has been widespread publicity of the new licensing scheme, and door staff in the South East of England have been able to apply for their new licences since 25 October 2004. The SIA commented that “The South East and London benefit from a vibrant night-time economy and the public deserve a high level of service from door staff when they go out to…

EU Council of Ministers recognises withholding tax problems
Artists , Live Events , Taxation / April 2005
EU

TAXATION Artists, Live Industry The EU Council of Culture Ministers has decided to “solve the obstacles caused by the taxation of mobile artists”. They have included this item as Paragraph 5 of their Work Plan for 2005-2006. Dick Molennar, a Dutch tax advisor with All Arts Tax Advisors commented that “this is an important step forward, because the EU now recognizes officially the issue of taxation of international artists as a problem to be solved. The Dutch Ministry of Culture has been very active during the Dutch presidency of the European Union (July – December 2004) to push this decision through. We hope that the English presidency of the EU (July – December 2005) can develop this subject further.” German Tax expert Dr Harald Grams and Mr Molennar chaired a EU conference in Rotterdam in October 2004, that made the recommendation for the EU Council of Culture Ministers to progress in this manner and both are members of the International Live Music Conference (ILMC) Tax Working Group.

UK Bollywood pirate jailed for 3 years R v Buhecha (2005)
Copyright / April 2005
UK

COPYRIGHT Film & Television Bollywood film distributors claimed a victory in their battle against bootleg DVDs yesterday but said the problem was approaching epidemic levels as millions of counterfeit films flooded into the United Kingdom from Asia. Jayanti Amarishi Buhecha was jailed for three years yesterday after being found guilty of two offences under the Trade Marks Act 1994 at Harrow crown court, north-west London, last month. The British Phonographic Industry, the trade body which compiled much of the evidence that resulted in Buhecha being charged, welcomed the sentence as a sign the courts were taking DVD and CD piracy seriously. It estimated that at least four out of 10 Bollywood DVDs and CDs sold in the UK were counterfeit, well above the average for Hollywood movies and western CDs. Others in the industry put the figure at more than seven in 10. The DVDs imported into the UK by Buhecha were manufactured in Pakistan and Malaysia and sold wholesale to shops in London and the Midlands. He began as a legitimate distributor arranging film screenings in Cambridge and went on to become an authorised distributor for Yash Raj Films, an Asian film company. In 2002 he was suspended by…

Recording industry welcomes police investigation of Allofmp3.com but prosecution stalled
Copyright , Record Labels / April 2005
Russia

COPYRIGHT Record Labels The International Federation of Phonographic Industries (IFPI) has welcomed action by the Russian authorities against a Russian website alleged to be offering digital copies of recorded music for sale illegally.Allofmp3.com and its principals are alleged to be involved in large-scale copyright infringement by offering music for sale without authorisation from rights holders in Russia and internationally. Russia is the worlds 12th largest music market with sales of US326.20 million in 2003 but has a piracy rate of 64%. The Computer Crimes unit of Moscow City Police formally passed the results of its criminal investigation to the Moscow City Prosecutor’s office on February 8. IFPI, on behalf of its members, also submitted a formal complaint to the prosecutor’s office in support of further action on the same date. The prosecutor has thirty days from the date of receiving evidence to decide whether to proceed. However it seems that Moscow prosecutors have declined to press criminal charges against the popular Internet site according to Russian news reports, citing “specifics of Russian copyright law”. Source: http://asia.cnet.com/news/personaltech/0,39037091,39220696,00.htm andhttp://www.ifpi.org

Ghana clamps down on hard copy piracy
Ghana

COPYRIGHT Record Labels, Film & Television, Music Publishing A joint exercise undertaken by Ghana’s National Anti-Piracy Task Force of the Customs, Excise and Preventive Service and the Police led to the arrest of 12 suspects included Nigerians and Ghanaians and the seizure of 7,632 pirated CDS. The operation was undertaken at the CEPS checkpoint at Dadala Junction in the Volta region. The CDs seized included foreign and local music and movies. The local artistes affected were Slim Busterr, Kojo Antwi, Daddy Lumba, Nana Acheampong, Esther Smith, Christina Love and Ama Boahemaa, among others. The suspects will be charged under copyright legislation and in addition those found to possess pornographic material will face additional charges under Section 280 of the Criminal Code of 1960. Source: http://www.ghanaweb.com/GhanaHomePage/entertainment/artikel.php?ID=75757>

Swedish music sales plummet
Copyright , Record Labels / April 2005
Sweden

COPYRIGHT Recording Industry The sale of CDs and music in Sweden has slumped for the third year running. Last year sales declined by a massive 17%. Many industry insiders believe illegal downloads across peer-to-peer (P2P) networks over the internet are responsible. although this contrasts with certain territories and the position that world wide sales have actually begun to pick-up. Mårten Aglander, head of the Swedish division of Universal believes Americans have dealt more decisively with illegal downloading and that the US has the “lawful alternative [Apple’s iTunes] which is working well.” iTunes, which is available in the UK and other parts of Europe, is yet to open in Sweden. But the prevailing view is that it would help the industry if and when it does. Per Sundin, head of Sony BMG in Sweden says the sale of music over the internet in Sweden is improving but there remains much to be done. A new Swedish law which expressly forbids file-sharing of copyright material over the Net is expected to be in place by the summer. An article in Sweden’s The Local pointed out that there already seems to be a declining interest in the music business on the part the Swedish media….

EU to investigate download pricing in Europe
EU

COMPETITION Record Labels, Internet The European commission is to begin an investigation into the pricing of Apple Computer’s digital music service after consumers complained that downloading tracks was more expensive in the UK than other parts of Europe. Officials are investigating whether price differentials on iTunes between the UK and other countries such as France and Germany of up to 20% amount to a breach of EU pricing regulations. The inquiry comes after Which? (formerly the Consumers’ Association) wrote to the Office of Fair Trading last September, asking it to look into iTunes’ pricing across Europe. In the UK, iTunes charges users around 1.20 (83p) a track against 99 cents in France and Germany. The OFT later referred the case to the commission, which yesterday said it would begin an investigation. Source: http://www.guardian.co.uk/uk_news/story/0,,1424769,00.html

Microsoft faces the wrath of the European Commission
Competition / April 2005
EU

COMPETITION Computer Software The European Commission is threatening to fine Microsoft 5% of its global revenue for failing to comply with sanctions imposed last year. Microsoft was fined E497 million ( million) and was ordered to implement EU remedies forthwith – these included allowing competitors access to software protocols so they could compete in the provision of interoperable servers and providing Windows software without the obligation of taking Microsofts MediaPlayer software. Microsoft has already posted details of secret protocols to enable other software manufacturers to produce servers compatible with Microsoft’s Windows operating system but is now disputing the royalty (or licence) fees competitors should pay. The software giant also has chosen the name ‘Windows Reduced Media Edition’ for the new version of soft ”unbundled’ from Microsoft’s MediaPlayer software. This and other names (for what Microsoft call their ‘degraded’ software) have bee rejected by the EU as a serious deterrent to consumers. Microsoft’s total revenues in 2004 were approximately $40 billion. Source: The Guardian 26/02/05 Also see: Microsoft Ordered to Open Up Windows – Law Updates March 2005

European Commission seeks to restrict public services broadcasters’ online and digital services
Competition , Internet / April 2005
EU

COMPETITION Television, Internet, Radio The European Commission is to look at the role played by public service broadcasters in the provision of digital and online services. In particular the EC Competition Directorate, headed by Commissioner Neelie Kroes, will look at whether state funding of online and digital services is unlawful state aid. The commercial sector has complained that the online services provided by German public service broadcasters ARD and ZDF and by the BBC in the United Kingdom results in unfair competition to the commercial sector as it is funded by public money or governments. In an effort to head of confrontation ARD and ZDF are to limit their online services to programme related services. The licence fee funded BBC provide its 24 hour news channel News 24 (against commercial providers such as CNN and Sky) childrens’ channels CBBC and CBeeebies (against commercial providers such as Nickleodeon) and a wide range of highly successful web pages at http://www.bbc.co.uk. The BBC also provides a free to air ‘youth’ and comedy channel, BBC3, and the arts and culture channel BBC4. Whilst the principle of licence fee funded broadcasting is not under threat, recent state funding of web and digital services could be. Action…

Patti LaBelle brings claim for non-payment of appearance fees
Contract , Live Events / April 2005
USA

CONTRACT Live Event Industry Patti Labelle (nee Patricia Edwards) has brought an action through her management company, Pattonium Inc, against an American promoter Kensey Wright and Fifth Degree Entertainment after she was promised $150,000 to perform at the annual football classic between N.C. Central University and N.C. A&T University during the summer of 2003. She alleges that she was told that a portion of the money from the concert would go to scholarships. She also says she was led to believe that travel and hotel expenses for herself, her band and her stage crew would be covered. The suit is for breach of contract, unjust enrichment and fraud and filed in Chesapeake Circuit Court. Wright, through his attorney, Bernard T. Holmes, denies the allegations. Holmes described the event as a charitable concert that lost money but is quoted as saying “Putting on any concert is an undertaking,” he said. “Anything can go wrong at any time.” According to the lawsuit, Labelle arrived at the RBC Center in Raleigh on August 29th 2003, and performed, even after she realized she would not be paid in full, according to the lawsuit to entertain fans. LaBelle was to be paid $75,000 before the…

Elizabeth Jagger wins right to protect intimate moments in a nightclub
Artists , Image Rights , Privacy / April 2005
UK

PRIVACY/IMAGE RIGHTS Artists Elizabeth Jagger was entitled to a “legitimate expectation of privacy” Mr Justice Bell has ruled in the High Court, awarding the model an injunction to prevent images of Jagger and boyfriend Callum best taken from a security camera being published. Three of the pictures had already been published in a Sunday tabloid. The pair had been involved in what The Times described as ‘heavy petting’. Mr Justice Bell said that although the claimant may be guilty of misconduct in the most general sense e was not guilty of moral turpitude to prevent her seeking recourse through the courts. Jagger claimed breach of copyright, her rights to data protection, her rights to respect for her private life under article 8 of the European Convention of Human Rights (Human Rights Act 1998) and at common law. Using wording which stem from the new ‘privacy laws’ resulting from the Human Rights Act, the Judge held that Jagger had a right to privacy and that he could see no public interest in the in further dissemination of the images which would only humiliate the claimant for the “prurient interest of others”. The balance between the article 8 right to privacy and the article…

New US Copyright Legislation: Congress and the Silver Screen
Copyright / April 2005
USA

COPYRIGHT Film & Television The Family Entertainment and Copyright Act of 2005 was passed swiftly with unanimous consent by the US Senate on February 1, 2005 following introduction of the bill on January 25, 2005. The statute is comprised of four parts: The Artists’ Rights and Theft Prevention Act (or the ART Act) will criminalize the use of camcorders to record movies in theatres and the posting of unreleased films and music on the Internet. Anyone using a camcorder in a movie theatre could face a penalty of up to three years in prison. In order to ease the burden of proof, the Copyright Office will allow works to be registered three months before their release. The Family Movie Act will allow consumers to view only certain portions of movies when watching them at home. It legalizes ‘jump and skip’ technologies such as those used by ClearPlay, which allow consumers to bypass material considered objectionable. This helps to clarify copyright protection in light of the Digital Millennium Copyright Act (DMCA), under which this manipulation of a copyrighted work could be considered infringement. The National Film Preservation Act will allow the Library of Congress to continue its motion picture preservation program and will assist libraries, museums, and archives in preserving films, and…

German Court confirms prison sentence for Landser singer
Artists , Criminal Law / April 2005
Germany

CRIMINAL LAW Artists Germany’s Supreme Court has ruled that neo-Nazi rock group Landser spread racial hatred and was a criminal organization, upholding the first such judgment in the country against a music group. The court also upheld the three year and four month prison sentence against lead singer Michael Regener. A Berlin court had ruled in December 2003 that Regener, 39, had formed a criminal organization, incited racial hatred and spread Nazi propaganda in a case that set a legal precedent by bring a collective action against a group of musicians. The Supreme Court ruling upheld the lower court’s judgment, saying the group had acted together to produce and distribute right-wing, racist material. Two other group members had received suspended sentences of 21 and 22 months at the trial which lasted six months. Landser is an old German name that means soldier. Source: http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=7872969

French choir child seek share of film and CD success
Artists , Copyright , Record Labels / April 2005
France

COPYRIGHT Artists, Record Labels Parents of the children who sang the music in the award-winning film Les Choristes say that their offspring have not been paid a centime for their work. Other parents have taken their children out of the Choeur du Collège Saint-Marc in Lyons because they say that the film’s success has made the choir’s touring schedule “infernal”. One parent says his daughter, Lucile 14, is entitled to a cut from the phenomenal success of Les Choristes, including revenue from 8.5 million cinema seats and 1.5 million soundtrack CDs sold in France alone. The low-budget movie, about a choir in a school for delinquent boys in the 1940s is enjoying worldwide box-office success. The leader of the Saint-Marc choir was offered a cut in the profits when his children recorded the original songs for Les Choristes . He chose instead to take a one-off E21,000 (£14,600) fee. The movie’s producers have since given the choir an ex-gratia payment of E121,000 as a share of the royalties from the soundtrack CD. All of this money has been paid into the funds of the choir. Not a penny has been paid to the children. Some parents accept the argument of the film’s producers and the…

French courts accept personal downloading of movies
Copyright , Record Labels / April 2005
France

COPYRIGHT Film & Televison, Record Labels A French appellate court has confirmed that downloading a movie file for personal use is acceptable. A man accused of downloading 500 film and music files has been acquitted by the Montpellier Court of Appeals in the south of France, confirming an earlier ruling by a bankruptcy court in Rodez in October last year. The plaintiff admitted lending CDs made from his copies to friends. But this still fell within the concept of ‘personal use,’ the court ruled. The man’s lawyers argued the CDs had already been bought and paid for before they appeared online. The court said that once the work had been made public it can be copied for personal use. Source: http://www.mp3newswire.net/stories/5002/french.html

Noise fines in New Jersey and Toronto
Health & Safety , Live Events / April 2005
Canada
USA

HEALTH & SAFETY Live Music Industry A New Jersey state appeals court has rejected a bid by the former owner of the Clarksburg Inn to overturn two convictions of violating the township’s anti-noise ordinance, ruling that such terms for noise as “loud,” “unnecessary,” and “unusual” don’t have to be defined by decibel levels. A 2003 trial before Municipal Court Judge Debra Gelson resulted in $1,250 in fines and $60 in court costs for summonses issued to the restaurant by the State Police, which provides police coverage to the township. The decision was upheld on an initial appeal to the Law Division of Monmouth County Superior Court. Roger Weltner, one of three witnesses at the municipal trial, testified that he lives 81 feet from the Clarksburg Inn and endured ongoing disturbances because of loud music. Weltner said he called police three times to complain on the night of Feb. 1, 2003. A three-judge panel of the Appellate Division of Superior Court wrote in its decision last week that attorney Richard J. Simon’s main argument for vacating the convictions that the township ordinance is unconstitutional because its definition of noise is vague was “unpersuasive.” Though 46 New Jersey municipalities regulate noise based…

UK pub’s breach of noise order results in 00 fine
Health & Safety , Live Events / April 2005
UK

HEALTH & SAFETY Live Music Industry Noise from a UK public house which was so loud that a shelf in a nearby home was “clearly vibrating” has resulted in a 00 fine for the licensee. Mid Suffolk District Council area environmental health officers visited a home in Debenham at around 9pm on August 10, 2003, after receiving a complaint about the level of noise from the Cherry Tree pub, where music was being played. There had been previous complaints about noise from the pub and a noise abatement order had been issued in October 2003. The Environmental Health Officer, Eric Foxton, told the court that in his opinion “the level of noise was a nuisance and it was taking away from that family the ability to enjoy their property.” Magistrates decided there had been a breach of a noise abatement notice, and fined licensee Zoe Hearn 00 and ordered her to pay prosecution costs of 48 in her absence after hearing evidence from Mr Foxton and householder John Bridges. Mr Foxton told the court that he set up noise monitoring equipment in Mr Bridges’ garden during an event at the pub in August 2002. Over two five-minute periods he found…

The European Live Music Forum Launches at ILMC
Legislation , Live Events / April 2005
EU

LEGISLATION Live Music Industry The European Live Music Forum (ELMF), first announced at the Noorderslag Seminar in Holland had its foundation meeting in London at the seventeenth International Live Music Conference in London on the 10th March 2005. The ELMF, currently was proposed by eight associations including Europe wide festival association Yourope, The Concert Promoters Association (CPA), the Agents Association, Network Europe and the International Music Managers Forum (IMMF) will try and identify issues, themes and objectives and formulate a constitution over the next few months but will hope to make a preliminary announcement at the ILMC. An invitation has been extended to all national and Europe wide live music, festival and cultural events to be involved with the ELMF. More groups and associations have been invited to join to give the Forum broad based European wide industry support. See: http://www.ilmc.com

Hyperion Records wait for appeal verdict
UK

COPYRIGHT Record Labels, Music Publishers Hyperion Records who lost a copyright action brought by Dr Lionel Sawkins are awaiting the decision of the Court of Appeal in the matter. Mr Justice Patten had held that copyright was owned by Sawkins in the ‘editions’ of a musical works originally written by baroque composer Michel-Richard de Lalande. Hyperion contend that an edition of an existing musical work cannot be an original musical work. COMMENT : This case is a good example of what is, and isn’t, an ‘original work’ and therefore protected by UK copyright law. It is also interesting to see that Mr Justice Patten found that Dr Sawkins had done enough to become an author. But in the well know ‘Spandau Ballet’ case of Hadley v Kemp it was held that contributing to the performance and interpretation at the recording of pop songs would not make the person a co-author of a work. But as Cornish & Llewelyn rightly say, this is a sphere where the dividing line is ”difficult to draw” See Law Updates August 2004 Hadley v Kemp (1999) EMLR 589 Wood v Boosey (1868) LR 3 QB 33 Redwood Music v Chappell (1982) RPC 109 Cornish, WR & Llewlyn (203) Intellectual Property at page 394

IFPI gain extra time to lobby
Copyright , Record Labels / April 2005
EU

COPYRIGHT Record Labels The International Federation of Phonographic Industries (IFPI) and other interested parties in the music industry have been granted extra time to present their case for the extension to the 50 year term for the life of copyright for sound recordings in Europe after the European Commission altered its timetable for reviewing legislation. Recordings by classic rock and roll artists such as Elvis Presley are beginning to fall into the public domain. Already nearly 140 European artists, managers and trade organisations (including the IFPI and BPI) have provided comment to the EC. Source: http://www.ifpi.org

Music composers complain to OFT
Competition / April 2005
UK

COMPETITION Songwriters The British Society of Composers and Songwriters (BACS) has made a formal complaint to the Office of Fair Trading (OFT) about the assignment of music publishing rights in music for films and television programmes. BACS are concerned about the practice of some film and TV companies of demanding an assignment of publishing rights as part of a composer’s engagement to write music for a film or television programme. BACS point out that in some circumstances the commissioning company may take rights but not exploit these, exclude mechanical royalties from any deal and sometimes offer less favourable publishing deals to composers that those they could find with third parties, depriving composers of revenues. BACS has also raised wider competition concerns in that many publishers are excuded from the film and television production market because they have no relationship with film and television companies. The OFT will investigate breaches of the Competition Act 1998, Article 81 of the EC Treaty and whether the case merits reference under the Enterprise Act 2002. Source: PACT Magazine March 2005 UK Government consults on moral rights for performers

UK Government consults on moral rights for performers
Artists , Performer's Rights / April 2005
UK

PERFORMER’S RIGHTS Artists The UK Government is consulting on legislation which would give performers the same moral rights as those owned by authors of literary, musical, dramatic and artistic copyrights under the Copyright, Designs and Patents Act 1988. These include the right to be identified as the author (or here performer) and to object to the derogatory treatment of a work (or here a performance). The new right could have important ramifications for screen credits and the right to object to derogatory treatment of a performance could impact on the producer’s right to edit programmes and performances. The changes result from the UK’s adherence to the WIPO Performances and Phonograms treaty. Source: PACT Magazine March 2005

The Corrs face claim over copyright to ‘Breathless’
Copyright , Music Publishing / April 2005
USA

COPYRIGHT Music Publishing The Corrs, one of Ireland’s most successful music acts, have been accused of stealing their biggest hit from an American songwriter. Jenesee Ricco, a Los Angeles-based musician, is suing Atlantic Records over a claim that the group’s 2000 hit, “Breathless”, was copied from his own track of the same name. He is claiming damages of $50,000 (E37,500). Ricco has filed a case in the Los Angeles Superior Court claiming he wrote his version of Breathless in 1999. He has highlighted his claim on American television, telling the Celebrity Justice show that the track was given to Atlantic Records by “a person I had taking songs around at the time”. He added: “The hope was that someone making an album would record the song. I didn’t know where it was going or who was getting it, I never even heard of this band and then it came out on the radio and nobody had ever contacted me.” The Corrs deny any similarity in either melody or lyrics and that apart from the phrase “leave me breathless” that there is no overlap in the words. They deny that the band members know Ricco, that the band and Mutt Lange…

New ways for pirates to obtain downloads
Copyright , Internet , Record Labels / April 2005
USA

COPYRIGHT Film & Television, Record Labels, Internet A new report from Pew Internet & American Life states that 36M people in the US download music and films (equal to 27% of all Internet users). Half of them, however, also use alternative channels to get music for free. 19% of P2P users (7M people) have copied files illegally from other people’s digital music players while 28% (10M people) get tracks via e-mail and instant messaging. 23% of users have used both routes. This is a new ‘invisible piracy’ that will be impossible for the industry to plug. Even the DRM on digital players (designed to stop copying in this way) is hacked on a regular basis. Interestingly, however, 53% of Internet users believe that the operators of P2Ps should be held responsible for piracy over their networks while only 18% say the file-sharers themselves should be held accountable. Source: http://money.cnn.com/2005/03/23/news/fortune500/grokster/ and FiveEight –http://www.fiveeight.net

ILMC calls for European legislation to govern ticket re-sales
Health & Safety , Live Events / April 2005
EU

HEALTH & SAFETY Live Event Industry European promoters and venues aired their worries about the secondary market in concert tickets at the seventeenth annual International Live Music Conference. Conference speakers highlighted events such as 3A’s Kylie Minogue and Cream concerts and Glastonbury where prices quoted by ticket touts and on auction website Ebay have risen to many multiples of original face values. Most European speakers at the ILMC said that there was nothing to prevent concert ticket re-selling in their territories. In the UK it is only a criminal offence to resell football tickets and the rise of Ebay had led to a rise in re-selling – not just by touts but by members of the public. Most delegates felt that legislative action was the only way forward. The position is different In the USA on a state by state basis where ticket reselling or ‘scalping’ can be prohibited. Ticket broker Chris Lipton has agreed to pay $30,000 to settle a lawsuit brought by the state who alleged that that he scalped tickets to a benefit concert featuring Bruce Springsteen. Under a deal announced Monday by the state Division of Consumer Affairs, $7,500 of the settlement money would go to…

Italian DJ receives massive fine for using pirate music files
Italy

COPYRIGHT Record Labels, Music Publishers, Artists, Internet, Live Concert Industry An Italian DJ has been fined a record E1.4 million for using hundreds of pirate music files in a well-known local nightclub near Rome. The DJ was discovered with more than 2,000 mp3 music files suspected to be illegal downloads and 500 pirated video clips. The fine, set by the Italian Fiscal Police of Rieti (Rome), is the biggest fine to be imposed on an individual in Europe to date for the unlawful copying and use of copyrighted music in the mp3 format (the fine is subject to administrative recourse). The DJ may be subject to further criminal sanctions. The police operation, targeting radio stations and clubs around the region, was led by the Fiscal Police. In addition to the mp3s and music video clips found, a large quantity of audiovisual material and software were also seized. Source: www.ifpi.org

Korean online music operator guilty of violating copyright laws
South Korea

COPYRIGHT Record Labels, Music Publishers, Internet A Seoul criminal court has found the operator of an Internet music site guilty of violating copyright laws. Park Sung-hun, chief executive officer of Bugs Co., the country’s most popular online music site, was given a sentence of 18 months in prison with a three-year suspension, and his company was fined 20 million won (US$19,460). Park distributed tens of thousands of music files on the Internet without permission from (musicians and recording companies). Seoul Central District Court judge Lee Han-sup suspended his prison sentence in light of the fact that Park can potentially solve the dispute with the recording companies that filed the lawsuit. The court said Bugs’ free music service violated “copyright neighboring rights,” the right to distribute copyrighted materials owned by musicians and recording companies to the public. The court ruling was another blow to the online music service industry. In January two developers of the free online music file-sharing site Soribada were ordered to pay 19 million won in compensation to the Korea Music Copyright Association, an umbrella organization of recording companies and musicians. The court blamed the online operators for “overlooking” free file sharing between Internet users. Korean has a…

French court imposes heavy fine for uploading
France

COPYRIGHT Record Labels, Music Publishers, Internet A 28-year-old schoolteacher has been fined €10,200 (approx £7,250) in the biggest legal crackdown to date against file-sharers in France. He was described as one of the biggest serial uploaders in the country, offering an estimated 10,000 tracks for download. The rights holders taking the legal action against him had originally sought €28,400 in compensation. The defendant was ordered by the Tribunal of Pontoise to take out adverts in two newspapers, Liberation and La Parisien detailing the verdict in the case as a deterrent to other uploaders. His Computer was also confiscated. John Kennedy, Chairman and CEO of IFPI said: “We take no pleasure in resorting to lawsuits against illegal file-sharing, but we are encouraged by this French judgement. This sends out a clear message to all those who think they can get away with the illegal mass distribution of music files on a P2P network: you are not immune, you are not anonymous and there are consequences. Music is widely available to buy legitimately online – if you want to avoid the risk of a fine it’s easy, download legally.” Source: http://www.smh.com.au/news/Breaking/Teacher-fined-836410200-for-downloading-music/2005/02/03/1107228807818.html and http://www.nme.com/news/111277.htm andwww.ifpi.org

German court clears ISPs of liability for infringing uses by third parties
Germany

COPYRIGHT Record Labels, Internet, Music Publishers, Film & Television The Higher Regional Court of Frankfurt has ruled that an Internet Service Provider (ISP) is not obliged to reveal the name and address of an Internet user who offers downloads of music files on the Internet even though this service violating the copyrights or other rights of third parties The Court overturned a lower court order to have the name of an Internet user who operated a music server via a German provider made known to a music firm (reference no.: 11 U 51/04). The Court noted that the ISP only supplies technical access to the Internet and does not generally have any obligation to inspect the data being sent through its network. Rather, providers are only obligated to block access when they learn of illegal content. Providers do not, however, have to provide information about their customers because the providers have not themselves violated copyrights or aided and abetted. The court noted that whist there is a legal right to obtain information about a person violating copyright by making or disseminating physical copies of copyright works (eg pirate CDS and DVDs) the provisions in the Product Piracy Act only concern the manufacture…

Major International rights owners urge the US Supreme Court to reverse the Grokster decision
USA

COPYRIGHT Record Labels, Internet, Music Publishers, Film & Television Eight major international trade associations, representing hundreds of thousands of copyright and other rights owners in more than 100 countries outside the United States of America filed a ‘friend of the court’ brief yesterday, urging the U.S. Supreme Court to reverse the court of appeals’ decision in the Grokster file-sharing case. These organisations argue that the lower court’s decision not only affects U.S. rights owners, but also denies international rights owners effective protection in the U.S. against copyright infringement on a ‘massive and unprecedented scale’. The lower courts in MGM, Inc. vs Grokster, Ltd. found that two distributors of peer-to-peer software could not be held liable for users’ copyright infringements. The IFPI argue that this puts the United States in breach of its obligations under international treaties which require enforcement measures that are effective in deterring and preventing piracy. The IFPI argues that unless reversed, the court of appeals decision sets bad precedent not only in the U.S. but elsewhere, and risks making the U.S. a piracy haven from which infringing copies of protected material spill over the border via the internet to hurt rights owners in other countries. The international trade associations…

Norwegian Supreme Court finds link site owner liable for copyright infringements
Norway

COPYRIGHT Record Labels, Music Publishers, Internet In another case which shows how finely balanced the arguments for those who ‘facilitate’ (either knowingly or unknowingly, directly or indirectly) others copyright infringements, The Norwegian Supreme Court has ruled that a student who ran a web site linking to free digital music files is liable for copyright infringement even though third parties provided the infringing material. Frank Allan Bruvik was fined 100,000 kroner (£8,000) for ‘abetting’ an illegal act. Bruvik set up the site, Napster.no (which has no connection with the famous Napster site) in 2001 as part of his computer engineering course. The site, which ran from August to November 2001, linked to MP3 formatted music files, but did not host the files itself. The Norwegian music industry, including the Norwegian subsidiaries of Sony Music and Universal Music, sued the student, alleging that his site breached copyright, and in 2003 Bruvik was fined 100,000 kroner by the district court. On appeal, however, the Appeals Court ruled in favour of the student, arguing that any copyright violations were carried out by those who posted the music, and not by simply linking to the postings. The Supreme Court has now upheld the original ruling,…

Norway proposes new digital legislation
Copyright , Internet , Record Labels / March 2005
Norway

COPYRIGHT Record Labels, Internet The Norwegian government is proposing new copyright legislation that will make attempts to crack copy-protection illegal. On top of this, it will allow copying of CDs and DVDs for personal use (even if this involves cracking the copy protection) as long as they are copied onto the same medium (i.e. a CD copied onto a CD-R). The biggest – and most controversial – issue is, however, the fact that consumers will not be able to copy CDs onto their portable digital players (as this will mean transferal from one medium to a different one). It is argued, on one side, that this is an important update of copyright law and, on the other, that it is a massive restriction on consumers’ digital usage rights. Source: http://www.bizreport.com/news/8668/ Source: Five Eight Magazine – http://www.fiveeight.net

Moves to reform Australian copyright law
Australia

COPYRIGHT Record Labels, Music Publishers There could be a major revision in Australian copyright law, relating specifically to fair use. The Attorney-General is preparing a discussion paper on how copyright law can evolve and one consideration is allowing consumers to transfer music or films from one medium (e.g. a CD) to another (e.g. a portable digital music player) as long as it is for personal use. If passed, a levy could be imposed as a means of compensating rights owners. Australian consumer rights bodies have welcomed this (tentative) legislative step. Source: http://www.zdnet.com.au/news/communications/0,2000061791,39181367,00.htm Source: Five Eight Magazine – http://www.fiveeight.net

Office of Fair Trading reviews ticket pricing
Competition , Live Events / March 2005
UK

COMPETITION Live Event Industry A shake-up in the way concert and theatre tickets are sold was announced yesterday after The Office of Fair Trading said the public are not getting clear information on prices. Even legitimate agents are sometimes charging as much as two-thirds on top of the face value of a ticket according to the OFT research. In future it would like advertisements for events to show the face value of tickets. The OFT uncovered evidence of some ticket sellers breaking the law and employing “potentially unfair” terms and conditions, and mark-ups as high as 600% on some tickets sold over the internet. The watchdog also revealed just how much fees can add to the price of a concert or West End show ticket. A comprehensive mystery shopping exercise, looking at the cost of tickets for everything from West End hit Chicago to a gig by up-and-coming rock band Hope of the States, found that some people using well-known agencies were being asked to pay up to 67% extra to cover booking fees. Among the OFT findings were that some ticket agents were relying on “potentially unfair” terms and conditions buried in the small print, designed to allow them…

ASCAP files actions against bars and restaurants
Copyright , Music Publishing / March 2005
USA

COPYRIGHT Music Publishing The American Society of Composers, Authors and Publishers (ASCAP) has filed 24 separate copyright infringement actions against nightclubs, bars and restaurants in 15 states and the District of Columbia. These establishments have publicly performed the copyrighted musical works of ASCAP’s songwriter, composer and music publisher members without receiving their permission to do so and ASCAP allege that this has resulted in lost income. During 2004, ASCAP achieved a 100% success rate with its copyright infringement litigation, with all concluded cases resulting in either a cash settlement or a judgment in favor of ASCAP members. ASCAP represents over 200,000 member owners who, for the most part, are songwriters and composers who rely heavily on their ASCAP royalties, as well as ASCAP’s enforcement efforts on their behalf. Over 86 cents of every dollar collected is distributed to its members, the music creators. Source: http://www.wlns.com/Global/story.asp?S=2852519

Unauthorised use of model’s photograph results in massive damages against Nestlé
Artists , Image Rights , Trade Mark / March 2005
USA

TRADEMARK/IMAGE RIGHTS Artists In 1986 Russell Christoff (58), now a nursery school teacher but then a male model, sat for a two hour session for Nestlé for which he was paid $250 (about £130). Over fifteen years later in 2002 he discovered that, unbeknown to him, his face had been adorning Nestlé’s ‘Tasters Choice’ for over a decade. Having checked his original contract Mr Christoff found that as a minimum payment he was due $2,000 if his image was used. But this right, coupled with a Californian state law which is designed to protect celebrities image rights, led to a claim for over $8.6 million which eventually resulted in a Jury in the Los Angeles County Superior Court awarding damages of $15.6 million. This was based on a fee payment of $330,000 for use of his image plus 5% of the profits from the Tasters Choice brand. His face had been used on labels in the US, Israel, Japan, Kuwait and South Korea and had even been used as a screen saver. Nestlé will appeal the award. Source: The Times, 2 February 2005

US 5th Circuit Court Of Appeals finds no copying in “Back That Azz Up”
USA

COPYRIGHT Record Labels, Music Publishers, Artists In February 2002, Louisiana rapper DJ Jubilee (Jerome Temple) registered a song entitled “Back That Ass Up” with the U.S. Copyright Office and filed a copyright infringement suit against rapper Juvenile (Terius Gray) in Louisiana’s U.S. District Court on the same day. Juvenille immediately denied the allegations and contended that the two songs featured no true similarities. To win the suit in US law Jubilee had to prove that his song was (a) copyrighted and (b) that Juvenille’s version was “substantially similar” to his recording. According to Judge Carolyn Dineen King’s opinion, both songs were recorded in 1997 with slight differences in the title’s spelling. While Jubilee dubbed his effort, “Back That Ass Up,” Juvenile titled his cut, “Back That Azz Up.” Juvenile’s single turned out to be a big. His 400 Degreez LP sold 4 million copies.Jubilee’s song never took off. Following a 2003 trial, a jury ruled in favor of Juvenile on grounds that Jubilee couldn’t establish significant similarities between the two songs. Jubilee, who still works as a special education teacher, later appealed the verdict to the 5th Circuit Court claiming that the jury should have examined specific sections of both…

Two new decisions on trademarks in colours and shapes: Heidelberger Bauchemie Gmbh (ECJ C-49/02 )
Trade Mark / March 2005
EU

TRADEMARK Merchandising For many years, traders have used colours or combinations of colours to distinguish their goods and services from those of other traders but European Union trade mark registries and courts have struggled to define the circumstances in which colours will be allowed registration as trade marks. The ECJ’s 2003 decision in Libertel answered many of the issues in relation to single colour marks per se, confirming that such marks are registerable in limited circumstances. However the ECJ’s recent decision in Heidelberger Bauchemie GmbH has significantly raised the hurdle for registration of colours per se meaning that many existing registrations may not be valid. In this case German company Heidelberger applied to the German Patent Office for trade mark registration of the colours blue and yellow: the applicant’s corporate colours were used “in every conceivable form, in particular on packaging and labels”. The German Patent Office rejected the application on the grounds of lack of distinctive character. Heidelberger appealed to the Bundespatentgericht, which referred two questions to the ECJ, asking, in short, whether combinations of colours per se are registerable as trade marks, and, if so, in what circumstances. The ECJ started with a three-step test for registerability for combinations of colours: 1….