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