Court of Appeal takes a robust view of abusive libel actions: Jameel v Dow Jones
Artists , Defamation , Internet / March 2005
UK

DEFAMATION Artists, Radio and Television, Internet ARTICLE: Jonathan Coad, Solicitor England’s libel laws make London a favorite destination for foreign claimants. But actions do not always succeed and the Court of Appeal have thrown out a claim brought by a Saudi businessman against the US published Wall Street Journal online on the grounds that practically no-one in England had read the offending article – only five people had clicked on the link. This action arose from an article which was posted by the defendant in the United States via a subscriber service to the Wall St Journal. The claimant sued on the basis that the material bore the defamatory meaning that he provided financial support to Al Osama Bin Laden and Al Qaeda. It was assumed for the purposes of the appeal that only five UK subscribers had accessed the posting. It was asserted by the defendant that of those five two did not know Mr Jameel, and that the other three were his solicitor, a director of an associated company and a consultant to Mr Jameel’s group of companies. In its judgment, the Court of Appeal affirmed the presumption of damage on the part of someone defamed without the…

Website disclaimer fails to protect infringement but liability for chat room activities may be limited
Artists , Defamation , Internet / March 2005
UK

DEFAMATION Artists, Internet -ARTICLE: Newsgroup Newspapers Ltd v Douglass Consultancy Services Ltd (2005) – Tom Frederikse, solicitor A website that relied on an informal disclaimer, appealing to copyright holders to forgive its obvious copyright infringement, has been forced to withdraw the infringing pictures. On 15 October 2004, News Group (owners of The Sun and News of the World) obtained an interim injunction to prohibit publication of its pictures by the offending site. The website referred to as “robscelebs” (controlled by Douglass) provides access to photographs of celebrities – many taken from other publications and posted on the site. The site apparently offers over 100,000 photos and, as the court noted, the most popular images are those in which “the subject of the picture is exposing the most flesh”. In January 2004, News Group complained that photographs in which it owned the copyright or which were under an exclusive licence appeared on the website. The infringements were easily proved as many of the images bore the banner of The Sun or the logo of “page3.com”. Douglass had earlier admitted that News Group did own the rights to certain photos posted within the site and had offered an undertaking to remove those images. The site,…

Fugitive granted right to give evidence via a video link: Polanski v Conde Nast
Artists , Defamation / March 2005
France
UK
USA

DEFAMATION Artists ARTICLE: Jonathan Coad, Solicitor This decision of the House of Lords handed down on 10 February overturned the decision of the Court of Appeal refusing the film director Roman Polanski leave to give evidence at the trial of his libel action via video link. The Court of Appeal had in turn overturned the decision of Mr Justice Eady granting the application. The decisions of the various Law Lords show clearly the legal and moral dilemma which is reflected in the 3 to 2 majority by which the House of Lords overturned the Court of Appeal judgment. Roman Polanski had pleaded guilty to unlawful sexual intercourse with a 13 year old girl in 1977. He fled the United States in 1978 and since then he has resided in France from which he cannot be extradited as he is a French citizen. If he were to come to this country he would be liable to be extradited under the terms of the extradition treaty with the United States. In 2002 Mr Polanski began proceedings against the publishers of Vanity Fair over allegations that on the way to attending the burial of his wife (Sharon Tate), who had been viciously murdered,…

McLibel case ends in victory for campaigning duo. Steel & Morris v United Kingdom Times Law Reports 16 February 2005 ECHR Application no 6841/01
Artists , Defamation / March 2005
UK

DEFAMATION Artists McDonalds have finally lost one of the longest running sagas in UK defamation history to Helen Steel and David Morris, two anti-McDonalds Greenpeace activists when the European Court of Human Rights ruled that the pair did not get a fair trial and the UK Government was wrong not to award the pair legal aid to fight their case in breach of Article 6 of theEuropean Convention on Human Rights. The two activists were found liable for libeling the U.S. fast food chain McDonald’s after the longest court case in English legal history did not get a fair trial, the European Court of Human Rights ruled on Tuesday. Steel and Morris produced a 1984 pamphlet which accused McDonald’s of starving the Third World, destroying rainforests and selling unhealthy food, were also deprived of their freedom of expression by their 1997 conviction, it said. The Strasbourg-based court ordered Britain to pay Steel E20,000 and Morris E15,000 for non-pecuniary damages and E47,311 costs and expenses and offer them a retrial. The United Kingdom has three months to appeal the decision. In its ruling, the court said the denial of state legal aid to the defendants, a part-time barmaid or unemployed single person and…

Article: The Digital Dilemma: How Do We Pay The Piper?
Articles / March 2005

Click here to download this article as a PDF file (.pdf) by Ben Challis Music Industry Lawyer March, 2005   In this article summarising recent developments in digital downloading and Internet copyright, the author argues that in the digital future it will not be ‘who pays the piper’ that matters, but ‘how the piper is paid’.   TRADE associations representing record labels, films companies, software manufacturers and music publishers have for some time been making noisy protests about Internet copyright theft.  As copyright owners seek to protect their intellectual property rights (and maintain profit margins), there have been numerous legal actions worldwide against peer-2-peer file swappers, uploaders, downloaders, file swapping software providers and Internet service providers.  But is the current model of ‘paid for’ legal downloads the true business model that copyright owners want – or even need?  Moves are now afoot to develop new systems to protect intellectual property, but these systems may have long-lasting ramifications for civil liberties and personal privacy. There are, at last, a reasonable range of music files available for legal downloading – with Apple’s i-Tunes online music store leading the way. However, the more one looks at legal downloading, the more one sees this as possibly a…

Massive haul of blank CDs in Mexico
Copyright , Record Labels / February 2005
Mexico

COPYRIGHT Record Labels Almost 16 million blank CD-Recordable discs – a worldwide record – have been seized in raids in Mexico. The bulk of the discs are believed to have been destined for the country’s piracy-ridden markets. The raids mark recent stepped-up enforcement efforts by the Mexican authorities to try and stem the overwhelming pirate music trade in the country. Customs agents, with the support of federal investigation agents initially seized ten million blank CD-Rs in raids on two warehouse facilities in the municipalities of Morales and Tacubaya within metropolitan Mexico City. The raids followed eight months of intensive investigation. At the same time, customs authorities, assisted by federal fiscal agents, stopped and appropriated two shipments containing 5.8 million additional blank CD-Rs at the ports of Ciudad Juarez and Manzanillo. The shipments were apparently entering the country without proper documentation. Mexican authorities have said that all the seized products were either owned by or imported by a company which is a major supplier of blank CD-Rs to markets notorious for being centres of piracy such as Tepito in Mexico City. The seizures indicate the increasing enforcement actions by the Mexican authorities to try and stem the pirate trade which has…

Tokyo District Court orders a suspension of service and awards damages in leading Japanese case on file swapping on the Internet
Copyright , Internet , Record Labels / February 2005
Japan

COPYRIGHT Internet, Record Labels The Tokyo District Court has handed down its judgment against MMO Japan Ltd ordering the company to suspend transmission of digital music files. MMO administer a file exchange service called File Rogue which allows exchange of music files free of charge on the Internet. In addition, the court ordered that MMO Japan Ltd and its representative (and co-defendant) Michihito Matsuda pay compensation by way of damages for losses resulting from the copyright infringements. JASRAC (Japanese Society for Rights of Authors, Composers and Publishers) had filed a suit in February 2002 demanding suspension of music file transmission and compensation by way of damages. The Tokyo District Court made an interim ruling on 29 January 2003 acknowledging copyright infringement by the two defendants and also their joint responsibility. Today’s ruling, together with the interim ruling, sets the boundaries for proper usage of copyrighted works in Japan as it clearly affirms copyright infringement resulting from use of File Rogue and as it also acknowledges both an order of suspension of service and compensation for damages as appropriate remedies in a situation where distribution of copyrighted works uses the Internet. The damages were based on the “Tariffs for Use of Musical Works”…

Microsoft ordered to open up windows
Competition / February 2005
EU

COMPETITION Technology Computer giant Microsoft has been ordered to pay a million fine (497 million euros) to the European Commission for anti-competitive activities and abuse of market dominance. This is the biggest fine ever in Europe for a competition case. The company had appealed to the European Court of First Instance in Brussels but the ECJ upheld the European Commission’s ruling in March 2004 that the firm had abused a virtual monopoly. In addition, Microsoft must now make Windows available to consumers without its Media Player software bundled in as part of the package. The European Commission’s aim is to give Media Player’s competitors such as Apple’s Quicktime and RealNetwork a level playing field. The company must also hand over confidential coding information from the Window’s operating system to rivals. Microsoft may still appeal to the full European Court of Justice. The Court of First Instance rejected a suspension of payment of the fine until such appeal. See: www.eubusiness.com/afp/041222193914.qgqu0dis

House Judiciary committee reviews use of band names
Artists , Trade Mark / February 2005
USA

TRADEMARK Artists The United States House Judiciary Committee has reviewed legislation that would prohibit groups from using the name of a well-known band, unless the group has one of the band’s original members. Representative Dwight Wrangham (R-Bismarck) is sponsoring the bill. It says performers may do “tribute” concerts, but only if advertising makes it clear that the group doesn’t have any original members. Evidence before the Committee included the example of ‘the Platters’ where a number of groups bill themselves as The Platters, a doo-wop act that had a number of hits in the 1950s and 1960s. Several of the groups have little or no connection to The Platters, which were inducted into the Rock and Roll Hall of Fame in 1990. The Committee further heard that many group names are owned by someone who was never in the group. That person may sell the rights to the name to other performers. The Committee heard that “There has been a lot of misinformation, and this is an attempt to correct that,” he said. Representative Andrew Maragos (R-Minot) said the bill wouldn’t affect such groups. “If they have the legal right to use the name ‘The Platters,’ then they are not…

Demonstrations by some members of the Sikh community close the theatric presentation of Behzti and raise issues of free speech
Artists , Censorship / February 2005
UK

CENSORSHIP & DISCRIMINATION Artists, Theatre, Live Concerts, Film, Television A desire to stamp out religious, sexual and other hatred often clashes with the desire to retain a right of free speech for all members of a community. In our December 2004 Law Updates we briefly covered the story of Jamaican reggae star Sizzla Kalomji being barred from the UK by the then Home Secretary as police investigated claims that his lyrics were homophobic and anti-white. Of course the counter argument is that Sizzla Kalomi is an artist who should have the right to free expression (which is now provided for in the Human Rights Act 1998 and the European Convention for Human Rights). In a widely reported story, violent demonstrations by members of the Sikh community have caused the temporary closure of the play Behzti at the Birmingham Repertory Theatre. The play included scenes of sexual abuse and murder in a Sikh Temple. Along with the Sizzla case it is quite possible that the play could fall foul of existing laws against stirring up racial hatred. Under the Public Order Act 1986 it is an offence to use threatening, abusive or insulting words or behaviour within the hearing of a person likely to be caused…

Three new tax cases are to be heard by the European Court of Justice
Artists , Taxation / February 2005
EU

TAXATION Artists After a success for the live music industry in the case of the 2003 Arnoud Gerriste in Germany there are now three new tax cases pending before the European Court of Justice (ECJ) regarding the taxation of non-resident artists. The industry has long argued that German withholding tax laws are unfair to non-resident touring and performing artists, particularly where these artists are EC citizens. In all three cases, the German Bundesfinanzhof (Federal Fiscal Court) has raised preliminary questions to the ECJ as to whether German taxation of non-resident artists is in accordance with the EC Treaty. The Geriste case held that Article 49 and 50 of the EC Treaty (previously articles 59 and 60) precluded a national provision which, as a general rule, taxed non-residents on gross income without allowing for the deduction of business expenses whilst allowing residents to deduct such expenses before a tax on net income. The case also held that a fixed rate of 25% was allowable on non-residents provided this would not be a different taxation rate to residents taxed on a progressive scale but on net income. However the decision has only been partially applied by Germany in its legislation while other countries, such as France, Spain, Italy,…

Bridgeport Music Inc & Westbound Records Inc v Dimension Films and No Limit Films (2004)
Artists , Copyright , Record Labels / February 2005
USA

COPYRIGHT Record Labels, Artists It is understood at the time of writing that the US Court of Appeals Sixth Circuit is to review its decision. This three judge panel held that whilst a de-minimis test (substantial use) might apply to the use of a song (the musical and lyrical copyrights) the use of any part of a sound recording without permission would be an infringement of copyright. The original appeal judgment can be found at: http://fsnews.findlaw.com/cases/6th/04a0297p.html

Civil rights era icon Rosa Parks and Jerry Garcia’s estate fight to protect their names
Artists , Trade Mark / February 2005
USA

TRADE MARK Artists Rosa Parks, who famously refused to give up her seat on a bus for a white man in Montgomery, Alabama in 1955 is close to reaching a settlement with hip-hop duo Outkast over the use of her name. Mrs Parks was arrested for the act and her action prompted a 381 day boycott of the city’s buses by the black population. The dispute relates to a 1998 song Rosa Parks released by Outkast which makes little reference to the Mrs Parks save for the lyric ‘Aha, hush the fuss, everybody move to the back of the bus’. However the title, lyric and reference to sex in the song prompted lawyers for Mrs Parks to bring an action in 1999 against Outkast for failing to secure permission to use Mrs Park’s name and false advertising. Outkast claimed the right to freedom of speech under the First Amendment to the US Constitution and the case was dismissed in the District Court. The case was reinstated in the superior court along with a second claim against stores which sold the album was due to go ahead in the summer but both parties agreed to settlement talks with a mediator. In…

Delhi hotels charged with violating music copyright
Copyright , Record Labels / February 2005
India

COPYRIGHT Record Labels The Delhi High Court has restrained 14 hotels and pubs in Delhi from playing music for which Phonographic Performance Ltd (PPL) holds the copyright. PPL is the collection society formed by more than 100 audio firms including the global majors Universal, Warners, EMI Virgin and Sony BMG. The dispute revolves around whether or not special licences are needed from PPL. PPL issues two types of licences – the annual licence required for playing background music, and secondly the event licence which is needed for special events such as fashion shows, film awards, Christmas or New Year celebrations. The controversy is over how an ‘event’ is defined. The fee for a single event can sometimes be almost equal to the cost of an annual licence for the hotel and the hotels claim that many events where PPL are asking for special licences are nothing more than normal nights in a restaurant or room. The cost of event licences are based on factors such as the type of event, number of guests and duration: the Federation of Hotels and Restaurant Association contend that the annual fee includes the fee for the event also. The matter will be heard in…

Pepsi claim that new film’s title infringes their advertising slogan
India

COPYRIGHT/TRADE MARK Record Labels, Artists, Music Publishers Pepsi has brought an action in the Delhi High Court against the makers of the film ‘Dil Maange More’ alleging that the film title is an infringement of copyright, as it closely resembles Pepsi’s previous ad tagline, ‘Yeh Dil Maange More’. The film include a sequence by actor Actor Shahid Kapoor crooning ‘ Dil Maange More’ . The Delhi High Court has issued notices to the producer, director, music distributor and owner of the website promoting the film, `Dil Maange More’. Pepsi has alleged that the film title is an infringement of the copyright, as Pepsi had earlier used the phrase, ‘Yeh Dil Maange More’ as the tagline for all its advertising. The film’s producer Nikhil Panchamiva has said that Pepsi are too late in serving the notice as the film has been released and the promos for the film have been on air since November 1. In its application, Pepsi also appealed for an order restraining the defendants from using the film title for overseas audio and video distribution. However, the film has been released overseas through Mumbai-based distributor Neptune and producers claim that the notice will have no impact on the…

US court quashes subpoenas to produce personal details of file sharers
Copyright , Record Labels / February 2005
USA

COPYRIGHT Record Labels Just as Justice Konrad von Finckenstein turned down a Canadian Recording Industry Association (CRIA) request that would have forced five Canadian ISPs to hand over the names of 29 people the CRIA alleged were distributing hundreds if not thousands of music copyright files to millions of others, the Recording Industry Association of America (RIAA) have failed in an effort to force ISP Charter Communications Inc. to turn over the names and addresses of Internet subscribers suspected of illegally sharing copyrighted music after a U.S. appeals court ruled against them. “A three-judge panel of the U.S. 8th Circuit Court of Appeals in St. Louis quashed subpoenas issued in 2003 by a federal judge. The appeals court said the Digital Millennium Copyright Act doesn’t allow the RIAA to subpoena Charter for user information because the files at issue aren’t stored in the company’s computers. U.S. Circuit Judge Diana Murphy issued a dissenting opinion in which she said the other two judges defined the copyright act too narrowly: She argues that ‘to interpret the statute in the way Charter urges, and the court adopts, is to block copyright holders from obtaining effective protection against infringement through conduit service providers’. See: http://p2pnet.net/story/3463 Law Updates…

Court of Appeal rule on unlawful discrimination: Ross v Ryan Air & Stanstead Airport (2004)
Health & Safety , Live Events / February 2005
UK

HEALTH & SAFETY/DISCRIMINATION Live Events Industry The Court of Appeal held that the policy of the Disability Discrimination Act 1995 was to provide disabled persons with access to services as close as it was reasonably possible to get to the standard normally offered to the able bodied. Here the Court ruled that Ryanair had discriminated against the appellant, Mr Ross, who suffers from cerebral palsy and arthritis, contrary to part III of the Act. Ryanair insisted on charging for the use of a wheelchair to get from check in to the aircraft each time the service was used. Ryanair accepted that Mr Ross had been the victim of unlawful discrimination but contended that Stanstead Airport should also be liable. Mr Ross appealed on those grounds and the Court found that the Airport could not escape liability and was guilty of unlawful discrimination contrary to section 19(1)(b) of the 1995 Act. Source: Times Law Reports 11 January 2005

German court find promoter liable for damaged hearing
Health & Safety , Live Events / February 2005
Germany

HEALTH & SAFETY Live Events Industry Leading German concert promoter Marek Lieberberg Konzertagentur (MLK) has been ordered to pay four thousand Euros (E4,000, approx 00) to a woman who claimed her hearing was damaged at a Bon Jovi concert four years ago. The company must also pay medical expenses and loss of income. The Court said that MLK had failed to take sufficient precautions to limit the volume of the outdoor concert in 2000. The injured woman said she was standing 2.5 metres from a speaker and now suffered from tinnitus. This case contrasts to an earlier US ruling which held that a promoter could not be liable for the alleged damaged hearing of a plaintiff lawyer who should have realised that loud music was played at rock concerts. In a separate report, the UK’s Royal National Institute for the Deaf (RNID) and Trades Union Council, have said that over 500,000 bar and club workers in the UK are at risk from loud music played at their places of work. The report, ‘Noise Overload’, states that the noise in some nightclubs is comparable to being next to an aircraft taking off and that not enough is being done to protect…

South Korean find no ISP liability for infringing use
Copyright , Internet , Record Labels / February 2005
South Korea

COPYRIGHT Record Labels, Internet The Seoul Central District Court (Appellate) has ruled that the two brothers – Yang Jung-hwan and Il-hwan – behind the South Korean P2P Soribada cannot be held responsible for any copyright violations by the service’s users. The P2P launched in 2000, attracting up to 8M users. The brothers were indicted the following year on charges of contributory infringement of copyrights. The free service closed in 2001 but quickly re-launched as a paid service. South Korea was listed as a ‘priority watch’ country by the US last year following growing concerns over lax piracy enforcement. The Music Industry Association of Korea may appeal the decision. The court accepted that those who use the service are infringing copyrights. But in a separate ruling on the same day, the Seoul High Court said Soribada helped site users infringe on copyright and ordered it to shut down its file-sharing software and its three computer servers, upholding a lower court’s decision. Eleven record companies had filed charges against the P2P music exchange website. See: http://english.chosun.com/w21data/html/news/200501/200501120032.html

IFPI Digital Music Report 2005
EU
USA

COPYRIGHT Record Labels, Artists, Music Publishers Music on the internet and mobile phones is moving into the mainstream of consumer life, with legal download sites spreading internationally, more users buying songs in digital format and record companies achieving their first significant revenues from online sales. These are the conclusions of the IFPI Digital Music Report 2005, a comprehensive review of the music industry’s digital strategies and of the fast-emerging market for online and mobile music distribution. The report is published by the IFPI. Music fans downloaded well over 200 million tracks in 2004 in the US and Europe – up from about 20 million in 2003. This helped bring record companies their first year of significant revenues from digital sales, running into several hundred million dollars. Analyst Jupiter estimates that the digital music market was worth US$330 million in 2004, and is expecting it to double in value in 2005. The supply of music available digitally is proliferating. The number of online sites where consumers can buy music legally has now hit more than 230, up from 50 a year ago, with record companies licensing the bulk of their active catalogue for download, totalling over one million songs – more than…

Bertlesmann settle first claim over actions resulting from its financial support of Napster’s file sharing service
Copyright , Record Labels / February 2005
USA

COPYRIGHT Record Labels Bertelsmann has agreed to pay about $50,000 to settle accusations from Bridgeport Music that it had contributed to copyright infringement by lending millions of dollars to Napster in 2000 and 2001. The settlement, which covers the small label’s legal fees, is the first sign of a break in a battle that has taken shape amid the fallout from the collapse of Napster. Napster was forced to file for bankruptcy protection Bridgeport is the smallest of the music companies pursuing copyright-infringement claims, and Bertelsmann may still face a protracted battle with the industry’s bigger and wealthier players including the EMI Group and the Universal Music Group. Bertelsmann owns 50 percent of the newly merged music giant Sony BMG Music Entertainment. The companies contend that Bertelsmann, which lent Napster about $85 million to develop a new service that would compensate labels and songwriters, in essence controlled the online company and should be held responsible for the theft of songs. Bertelsmann’s lawyers say the company did not hold an equity stake or seats on Napster’s board, and lacked the sort of control needed to be found liable. The federal judge overseeing the case recently denied Bertelsmann’s motion to dismiss the…

RIAA secure first convictions
Copyright , Record Labels / February 2005
USA

COPYRIGHT Record Labels Two men have pleaded guilty to copyright-infringement for distributing music, software and movies over the Internet in the first U.S. convictions for piracy over “peer to peer” networks, the Justice Department has said. William Trowbridge, 50, of Johnson City, New York, and Michael Chicoine, 47, of San Antonio, face up to five years in prison and a fine of $250,000 in the criminal convictions stemming from an August raid, the department said late on Tuesday. Trowbridge and Chicoine operated hubs in a file-sharing network that required members to share between one gigabyte and 100 gigabytes of material, the equivalent of 250,000 songs Attorney General John Ashcroft said when the raid was announced. investigators downloaded material worth $25,000 from the two hubs. Sentencing is set for 29 April in the U.S. District Court for the District of Columbia. See: www.reuters.com/newsArticle.jhtml?type=topNews&storyID=7371590

Court of Appeal hold no taxation without residence Agassi v Robinson (Inspector of Taxes) (2004)
Artists , Taxation / January 2005
UK

TAXATION Artists, Sponsorship The Court of Appeal has held that income tax was not chargeable on a proportion of Andre Aggasi’s sponsorship payments made by a non-resident company to the sportsman’s own company which had no UK tax presence. In overturning the decision of Lightman J the Court of Appeal applied the decision of the House of Lords in Clark v Oceanic Contractors Inc (1983) 2AC 130 that there was a general presumption in UK law that a taxing statute did not have an extra territorial effect. The Court of Appeal acknowledged that Mr Agassi visited the UK each year to play tennis tournaments and that his company received payments from sponsors which derived in part from his playing at those tournaments. The Court held that whilst at first look two sections of the Income and Corporation Taxes Act 1988 might apply to Mr Agassi in fact neither did. Section 18 which imposed a charge irrespective of the recipients residence but could not apply as the payments were made not to the recipient but his company. Sections 555 and 556 of the Act (when taken together with the Regulation 7(2) of the Income Tax (Entertainers and Sportsmen) Regulations 1987) provided that any activity, however transient, would…

BPI say piracy suits justified
Copyright , Record Labels / January 2005
UK

COPYRIGHT Record Labels Quickly following on from EMI’s positive results for 2003-2004 which showed album sales of 237 million to the end of September 2004 and a positive fourth quarter for both traditional and online sales Peter Jamieson, chair of the British Phonographic Industry has said that legal actions taken against unauthorised fileshares was justified and had been ‘vindicated’. EMI’s figures for album sales showed increased growth and the combined sale of CD singles and download singles through legal sites such as Napster, iTunes and SonyConnect showed a 9% increase in sales. 26 pirates had law suits issued against them in the UK as part of a Europe wide initiative by the IFPI. The BPI indicated that from 2005 download single sales would feature in the UK singles charts and that mobile ringtone sales were also being considered. About 1.75 million singles were purchased in the fourth quarter to September 04 compared with 7.3 million physical singles. The BPI said that download sales were running at up to a quarter of a million units per week. Sources: The Times 27 November 2004, and the official BPI website – www.bpi.co.uk

UK Film Council asks for new measures to fight film piracy
UK

COPYRIGHT Film, Television, Record Labels, Music Publishers The UK Film Council has asked for a register of car boot sales and market traders in an effort to stop pirate copies of new films entering the UK market, even before theatrical release in the UK. The Film Council have identified camcorder recording in cinemas as an ongoing problem but also point out that films are leaked from post-production houses and copied from critics review copies. The British Academy of Film and Television Arts (BAFTA) has substantially reduced the number of DVDs its voting members receive from film distributors for their Orange Film Awards in an effort to reduce the number of source DVDs in circulation. The Film Council have asked that market and car boot traders dealing in DVDs should have to register with Trading Standards 21 days before any sales are made. They have also asked that camcorder filming in cinemas becomes a criminal offence. The Federation of Copyright Theft (FACT) seized 314,000 illegal videos and DVDs in 2001, 607,000 in 2002 and nearly two million infringing copies in 2003. The Motion Picture Association of America estimate that 36 million illegal DVDs were sold in Britain in 2003 compared with…

The Wall school choir seek royalties
Artists , Copyright , Performer's Rights / January 2005
UK

COPYRIGHT & PERFORMERS’ RIGHTS Artists The original choir members who featured on Pink Floyd’s The Wall are looking to receive royalty payments for their performances. The children who were at the Islington Green School in 1979 took time out of lessons to record the contribution at Britannia Row with the help of their music teacher. Through the website www.friendsreunited.com a number of original choir members have got together and have asked PAMRA, the Performing Artists Media Rights Association, to collect royalties on their behalf. The Wall album has sold 12 million copies worldwide. At the time the children’s school received a payment of 00. Not all of the choir members have yet been confirmed or identified and it appears that no paperwork exists from the session.

New York Judge waxes lyrical
Artists / January 2005
USA

ARTISTS All Areas New York judge delivered a fairly unusual summary of his decision in a case of medical malpractice using lyrics to make his point. The case involves Dr Gil Lederman who is accused of forcing George Harrison to autograph a guitar on his deathbed. Dr Lederman had applied for a change of trail venue claiming he could not get a fair trial in Staten Island. Judge Robert Gigante agreed saying “Something in the folk he treats …. attracts bad press like no other …. he’s in our jurisdiction now … he gets Beatles autographs somehow ….” adding (with apologies to George Harrison) “If this case I were to keep, The Defendant would surely weep”. The case will be moved to Albany. Source: The Times 26 November 2004

Mark Morrison barred from releasing his own album
Copyright , Record Labels / January 2005
UK

COPYRIGHT Record Labels Mark Morrison latest comeback attempt has stalled after his new record label obtained an injunction blocking a release with any other label. The label, 2Wikid, owned by Everton footballer Kevin Campbell, claims to have invested hundreds of thousands of pounds funding the recording of the album, and has obtained a court order prohibiting Morrison, Mona Records Limited or distribution form Jet Star Phonographics from releasing the album or any of its tracks. Source: The Guardian 13 December 2004

George Galloway wins battle against Telegraph over ‘Saddam’ libel
Artists , Defamation / January 2005
UK

DEFAMATION Artists ARTICLE by Jonathan Coad  Judgment had been handed down by Mr Justice Eady in the bitterly fought battle between George Galloway MP and The Telegraph over allegations published in April 2003 that he had received money from Saddam Hussein’s regime, which Mr Galloway had always denied. From a legal perspective the important part of the case was how it was defended by The Telegraph in order to avoid being found liable to pay damages to Mr Galloway for the allegations, and the reasons why the judge upheld the claim. The allegations published in The Telegraph were undoubtedly seriously defamatory of Mr Galloway. According to the judge they conveyed to “reasonable and fair minded readers” that: (i) Mr Galloway had been in the pay of Saddam Hussein, secretly receiving around ,000 a year. (ii) Mr Galloway diverted monies from the Oil-for-Food programme, thereby depriving the Iraqi people (whose interests he had claimed to represent) of food and medicines. (iii) He probably used the Mariam Appeal as a front for personal enrichments. (iv) His actions were tantamount to treason. Significantly, it was no part of The Telegraph’s defence to claim that any of these allegations were true, or even that…

Twenty Eight Arrested in Scottish Raids
Copyright , Record Labels / January 2005
UK

COPYRIGHT Record Labels, Film, Technology Central Scotland Police have completed their most successful anti-piracy raid in Scottish history. In a five-day operation officers from the Computer Crime Unit of Central Scotland Police, working with investigators from the UK record industry’s trade association The BPI (British Phonographic Industry) and FACT (Federation Against Copyright Theft) seized in excess of million worth of counterfeits – making 28 arrests in the process. The operation, codenamed Vendura, began several months ago when officers from the Central Scottish Police Computer Crime Unit, with assistance from anti-piracy officers from the BPI, began gathering intelligence at the local Scottish markets where the counterfeit trade is rife. Officers made their first move with dawn raids on houses in Tullibody, Falkirk, Grangemouth and Alloa. Police made a number of arrests at the scene as thousands of counterfeit CDs, DVDs and computer software and games were seized – complete with duplication equipment capable of creating hundreds of discs per day. Police then headed for Falkirk Market, a known hotspot for counterfeit goods, and arrested seven individuals, two of whom who investigators suspect to be “big players” in a targeted raid on their stalls as the market opened. The Sunday market in…

Japanese crack down on piracy
Copyright , Record Labels / January 2005
Japan

COPYRIGHT Record Labels, Film A Japanese man has received a suspended three year jail sentence for distributing films over the internet. Yoshihiro Inoue, 42, was found guilty of violating copyright law Tuesday in Kyoto District Court, a court official said on condition of anonymity. Kyodo News quoted presiding judge Yasuhide Narazaki as saying Inoue disregarded the efforts of copyright-holders, and his crime was a serious offense against the protection of intellectual property. Inoue was arrested in November last year on suspicion he placed Hollywood movies on the Internet to allow swapping of video files. In a separate action Isamu Kaneko, who developed the free file-sharing software called Winny, is on trial in the same court. His verdict date has not been set. Kaneko, an instructor at the prestigious University of Tokyo, was arrested in May on charges of violating copyright laws. He was also accused of helping Inoue disseminate material on the Internet with Winny. Kaneko is the first file-sharing software developer arrested in Japan. His defence team says there are no laws against developing file-sharing software and say that arresting someone for designing software is a serious threat to personal liberty. They added that the action is making software…

I-tunes faces European inquiry over pricing
Copyright , Record Labels / January 2005
EU

COPYRIGHT Record Labels Apple will face a European Commission inquiry over the price United Kingdom downloaders have to pay for using the service. Typically a UK download costs 79p but a mainland European download E99, or 68p at present exchange rates. Consumers can only download in a country where they hold a relevant bank account registered. Apple holds around 70% of the global download market although now faces growing competition from services such as Sonyconnect, Mycokemusic, HMV and now in the UK superstore Tesco. See: www.guardian.co.uk/arts/netmusic

Indies challenge SONY-BMG Merger
Competition , Record Labels / January 2005
EU

COMPETITION Record Labels IMPALA, which represents Europe’s independent labels, has mounted a legal challenge to the BMG-Sony merger by launching a claim in the European Court of Justice (court of First Instance) in Luxembourg saying that the merger could have legal, cultural and political and economic implications and that the European Commission, which passed the merger, made mistakes when considering the merger and the implications it will have on the market in sound recordings.

Navataire v Easyjet (2004)
UK

COPYRIGHT Computer Software, Music Publishing, Trade Mark by Tom Frederikse A software designer has failed in his attempt to protect certain aspects of his computer program when the High Court ruled that there is no copyright in the user interface (the visual front-end) of an application. In a complex 111-page judgment of 30 July 2004 (only published in December so that the confidential information could be censored), Navataire, the software designer, lost on most claims but won some others. Navataire had supplied a software system for tickletless airline booking to easyJet, but easyJet subsequently hired their own software developer, Bulletproof Technologies Inc, to deliberately design a new system with the same “look” as, and to achieve the same results as, Navataire’s program. While admitting that none of the underlying software in the new system copied the old one and that Bulletproof had no access to the source code and did not “decompile” the old system, Navataire nevertheless claimed that their copyright was infringed by something called “non-textual copying” of the work as a whole, or of the various “modules” of the system. Put more simply, it was alleged that easyJet had copied the plot of the story without taking the…

Jury orders booking agent and artist lawyer to pay damages of $1.6 million
Contract , Live Events / January 2005
USA

CONTRACT Live Music Industry In an unusual decision a US jury has awarded a damages of US$1.6 million to promoters of a cancelled Rod Stewart tour and ordered the return of a $780,000 deposit held by Mr Stewart as compensation. The Los Angeles jury found in favour of concert promoters in Peru, Argentina (including the Vina del Mar Festival) and for Oklahoma based promoters PM Group. The damages order was made against Rod Stewart’s lawyer and his then booking agency, ICM. The dispute related to a 9 date tour of South America planned for February 2002. The deposit was against a total $2.1 million fee which was cancelled in February. The tour was cancelled after disputes regarding the contract which the claimants have said contained new terms and was negotiated by Mr Stewart’s lawyers rather than ICM. New provisions included new costs for the promoters including the provision of hotels, airfares and frieght costs. However it was ICM who held the tour deposit and cancelled the dates when the balance of the outstanding tour fee and executed contract were not forthcoming. The decision will be appealed. Source : Audience Magazine, December 2004, Issue 58

Canadian MP3 Player levy ruled illegal
Canada

COPYRIGHT Record Labels, Music Publishers, Technology Consumers may soon be paying less for MP3 players after the Federal Court of Appeal ruled that special copyright levies applied to digital music players are not legal. A 71-page decision by Mr. Justice Marc Noël found that although the Copyright Board of Canada was seeking to protect music writers and performers from the “harm” caused by digital copying of music when it imposed the MP3 levies last December and that such a levy might be desirable, the Board did not have the legislative authority to do so. Canada’s Copyright Act gives the federal board the authority to apply levies on blank media such as compact discs and audio cassettes. But the wording of the act has not kept up with the new technology of MP3 players. In 2004 MP3 sales are expected to generate $5-million of the $25- to $30-million in levies collected for musicians. The levies range from as little as $2 to as much as $25 per device. The biggest charge is paid by consumers of the iPods, which have among the largest capacity to store music. In Canada, the $400 price tag for an iPod includes a $25 copyright levy….

New PRS-MCPS downloads policy
Copyright , Internet , Record Labels / January 2005
UK

COPYRIGHT Internet, Record Labels The PRS-MCPS Alliance have agreed a new distribution policy for download services. Under the new policy, data will be collected in electronic format which will then be matched to the Alliance’s new PRS processing system, hopefully indetifying almost all works registered with those downloaded electronically. The licence revenue collected by the Alliance will then be distributed over works successfully matched on a quarterly basis commencing December 2004. The Alliance commission will be 12%. The Alliance will maintain the current allocation of the online share split with ‘download’ royalties – from the paid for download of tracks as a ‘sale’ – being allocated 75% to MCPS and 25% to PRS (as the mechanical right predominates) whilst being allocated 25% to MCPS and 75% to PRS for webcasting services and streaming (as this is treated in a like manner to performance or broadcast income). Revenue is allocated 50:50 between the two collection societies for other online revenue sources. Source: M Business December 2004, Issue 14, p 27 and see : www.mcps-prs-alliance.co.uk