Digital Freedom Campaign launches to fierce copyright industry opposition
USA

COPYRIGHT Record labels, music publishers, film, television The Consumer Electronics Association and a coalition of trade groups and nonprofit groups including Public Knowledge and Media Access Project have launched a new public relations campaign to warn the public against restrictions on digital technologies. Dubbed the Digital Freedom Campaign (www.digitalfreedom.org) the group aims to target legislative proposals and legal efforts by Hollywood studios, record labels and other content providers which they say would place unfair restrictions or impose excessive fees on digital technologies. But both the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have hit back and the RIAA said “Our position is basic: artists, songwriters, music publishers, musicians and record labels deserve to be paid when our music is downloaded and enjoyed by fans,” the ad states. “We ask that you recognize our right to make a fair return on the music we produce – our innovation.” Meanwhile, the MPAA highlighted the damage the entertainment industry suffers from DVD, illegal downloading and other piracy. However the new group said that digital music players like Apple’s iPod, the social-network and video-sharing Web sites MySpace and YouTube, and other digital technologies have brought “creative democracy”…

The Legal Smack Down On Music Sampling: Is The Age Of Hip Hop Over?
Artists , Copyright , Record Labels / December 2006
UK
USA

COPYRIGHT Artists, record labels ARTICLE LINK: By Marina Whelan Sedgwick Detert Moran & Arnold LLP Using the recent case of Bridgeport Music v. Dimension Films (2005) the legalities of the ‘borrowing’ of sound recording samples are explained. http://www.mondaq.com/article.asp?articleid=43602&email_access=on See also the ARTICLE on this site ‘The song remains the same’ by Ben Challis analysing the legality of sampling in both the US and the UK, the Bridgeport case and the recent Newport vDiamond (2003)decision and the defences of ‘fair use’ and ‘fair dealing’. And also see this ARTICLE LINK http://www.slate.com/id/2153961/ “The shady one man company that’sdestroying hip-hop” which looks at the activities of the same Bridgeport Music who have been very active in protecting their copyrights, in particular the works of funk-master George Clinton – which have been repeatedly sampled. Bridgeport recently took on Jay-Z alleging unauthorized samples in his work. There seems to be a growing feeling that recent court decisions on sampling (particularly in the USA) have perhaps now shifted the balance of power so far in favour of copyright owners that music creators, especially hip hop, are starting to suffer unfairly.

Publisher’s plagiarism claim against 50 Cent fails
Copyright , Music Publishing / December 2006
USA

COPYRIGHT Music Publishing A copyright case which claimed 50 Cent’s ‘In Da Club’ copied from 2 Live Crew’s ‘Its Your Birthday’, written by Luther Campbell, has been dismissed by a US judge. Judge Paul Huck ruled that the line of Campbell’s song (“Go Shelia, it’s your birthday”) was a “common, unoriginal and non copyrightable element of the song” which was not entitled to protection. Judge Huckle found that were no similarities between ‘In Da Club’ and ‘It’s Your Birthday’. He added that no reasonable jury would infer otherwise and said that no one would get the two songs confused. The original lawsuit was filed in January on behalf of Lil’ Joe Wein Music, the company that holds the copyright to ‘It’s Your Birthday’. http://www.nme.com/news/50-cent/24903

A case of look-alikes and smell-alikes: L’Oreal v Bellure (2006)
Artists , Live Events , Trade Mark / December 2006
UK

TRADE MARK Live event industry, artists ARTICLE LINK – Article by Lindsey Wrenn, Lee Curtis and Rebecca Tilbury, Pinsent Masons On the 4th October 2006, the English High Court handed down a judgment which appears to make it easier for trade mark owners to prevent so-called look-alike products by holding that ‘look-alike’ products can infringe a trade mark. Here the packaging of a rival perfume was not identical to L’Oreal’s trade mark so a claim under S10(1) of the Trade Marks Act 1994 could not be brought. The court also held that whilst the packaging was similar to L’Oreal’s and was for the same nature of goods, the defendant had not produced packaging that was confusingly similar to the claimants so a claim failed under section 10(2) of the TMA failed. However, the court found that section 10(3) DID apply in that a person infringes a registered trade mark if he uses in the course of trade in relation to goods and services a sign which (a) is identical with or similar to the trade mark,… where the trade mark has a reputation in the United Kingdom and the use of the sign being without due cause, takes unfair advantage of, or is detrimental to, the distinctive…

Buffet fights online merchandisers
Artists , Trade Mark / December 2006
USA

TRADE MARK Artists Country Singer Jimmy Buffett has filed law suit asking a U.S. federal judge to stop a Web site operator from infringing Buffett’s trademarks. The lawsuit filed in U.S. District Court in Galveston, Texas, accused Robert Akard of operating a Web site, underonehut.com, which sells Buffett-trademarked items without permission. Buffett, one of the biggest selling artists in the world, won a previous court order in Nevada, but it “wasn’t comprehensive enough” and Akard has since surfaced in New York, Florida and Texas, Buffet’s lawyer alleges. Buffett complains that Akard advertises as “Jimmy Buffett’s Online Store for Merchandise,” and sells T-shirts, music CDs and other items that Buffett sells himself. Buffett is asking a judge to order Akard to stop using the singer’s name and likeness, account for his profits, turn infringing goods over to Buffett and pay unspecified damages. http://www.billboard.biz/bb/biz/newsroom/legal_management/article_display.jsp?vnu_content_id=1003381582

Kazaa settles with US music publishing industry
Copyright , Internet , Music Publishing / December 2006
USA

COPYRIGHT  Internet, music publishing  Having already finalised a $115 million settlement with record labels, the firm behind file-sharing network Kazaa has now settled a case with music publishers in the US, according to the wonderful out-law.com site. Sharman Networks, the company behind Kazaa, is the latest file-sharing software company to reach a settlement with the music industry. The NMPA said that it had pursued a class action law suit against Kazaa for infringement of the copyright of its music publisher members who own and represent the rights to songs and lyrics on behalf of songwriters and composers. The US National Music Publishers’ Association (NMPA) said that it had informed the US District Court that it would not be pursuing its action because Sharman Networks had agreed to pay an undisclosed “substantial sum” to settle the dispute. The landmark case of MGM v Grokster established a liability for companies that operate peer-to-peer (P2P) file-sharing networks for users infringements in illegally downloading and swapping files. Supreme Court Justice H Soutar  held that Grokster’s “unlawful objective is unmistakable” and that “We hold that one who distributes a device with the object of promoting its use to infringe copyright … is liable for the resulting acts…

Spanish Court finds private downloading legal
Copyright , Internet , Record Labels / December 2006
Spain

COPYRIGHT  Record industry, internet  In a judgment which will dismay the record industry, a Spanish judge has held that downloading for personal non-commercial use is not a criminal offence. Judge Paz Aldecoa of ruled that under Spanish law a person who downloads music for personal use can not be punished or branded a criminal. He called it “a practised behaviour where the aim is not to gain wealth but to obtain private copies”. The Judge, in Penal Court No3 in Santander, held that that article 31 of the Intellectual Property Law in Spain established the right of the public to obtain copies of music without permission of the author, provided they were for private use and no profit was made. The Spanish recording industry federation Promusicae says it will appeal against the decision. The state prosecutor’s office and two music distribution associations had sought a two year sentence against the man, who downloaded songs and then allegedly offered them on a CD through e-mail and chat rooms. However, there was no direct proof he made money from selling the CDs. The Spanish Justice Minister Juan Fernando Lopez Aguilar says Spain is drafting a new law to abolish the existing right to private copies of…

Australian copyright law limps into the digital age
Copyright , Internet , Record Labels / December 2006
Australia

COPYRIGHT  Recording industry, internet  ARTICLE LINK –  By Nathan Cecil, Norton White A useful article explaining the much criticized provisions of Australia’s new Copyright Amendment (Exceptions, Enforcement and Other Measures) Bill http://www.mondaq.com/article.asp?articleid=43670&email_access=on The bill has caused quite a storm in Australia – with the Government and record labels being openly mocked. Seehttp://radar.smh.com.au/archives/2006/11/copyright_out_o.html and see http://australianit.news.com.au/articles/0,7204,20792269%5E15306,00.html

IFPI Knocked by Chinese decision
Copyright , Internet , Record Labels / December 2006
China

COPYRIGHT Internet, record labels Following on from a Spanish Court’s decision that private downloading for personal use wasn’t illegal, The Chinese Internet search leader Baidu.com has been cleared of helping users to download music illegally in a case brought by the International Federation of the Phonographic Industry on behalf of some of the world’s largest music companies. The IFPI which estimates that about 85 percent of all music consumed in China is pirated, said it would appeal against the ruling by the No. 1 Intermediate Court of Beijing and was confident it would be overturned. I am amazed by this inexplicable judgment that is totally out of step with Chinese law,” IFPI chairman John Kennedy said in a statement.  The decision seems to have been made on the basis that Baidu merely links to infringing third party sites and hosts no infringing material itself. Its links do not differentiate between legal sites and infringing sites. http://www.shanghaidaily.com/art/2006/11/20/297569/Music_giants_lose_online_copyright_fight.htmand http://www.theregister.co.uk/2006/11/21/baidu_wins_music_downloading_ruling/

New rules for illegal downloading in Germany
Copyright , Internet , Record Labels / December 2006
Germany

COPYRIGHT Internet, record labels In Germany, Justice Minister Brigitte Zypries has introduced draft legislation limiting fines for private downloading to a cap of 50 euros ($64) per case in Germany. Zypries said that ”the limitation for the first warning letter from a lawyer ensures that we don’t exaggerate in punishing copyright breaches”.  The maximum applies only to those who download without intending to resell it.  To fine the downloaders, the music industry has been using a provision of German law that allows lawyers to force wrongdoers to write apologies, and then to pay the law firm’s entire bill.  In future, the law firms would only be able to charge members of the public 50 euros per incident for this service. Zypries also said that the darft legislation would also increase powers to prevent product piracy, enabling German customs agents to rapidly destroy counterfeit goods that imitate famous brands.

No deal – so Universal take on MySpace
Copyright , Internet , Record Labels / December 2006
USA

COPYRIGHT Internet, record labels Universal Music Group may have reached an agreement with YouTube, Google and now Microsoft’s Zunes about legal content use but has now filed a lawsuit against popular social networking site MySpace for infringing copyrights of thousands of its artists’ works. Universal , owned by Vivendi, filed the suit at the US District Court Central District ofCalifornia,Western Division. The lawsuit accuses MySpace, owned by News Corp, itself of course a champion of copyright laws (!) of allowing users to upload videos illegally and taking part in the infringement by re-formatting the videos to be played back or sent to others saying MySpace “encourages, facilitates and participates in the unauthorized reproduction, adaptation, distribution and public performance. The action points in particular to features of MySpace that enable users to store copies of videos on their profile pages, and to access copyright material without permission. The suit comes at a time when Universal’s talks with MySpace had broken down and with a leak of Jay-Z’s album onto MySpace . However (and remarkably a t the same time!) MySpace unveiled an enhanced copyright protection tool to make it easier for content owners to remove unauthorized material. MySpace described Universal’s action…

IFPI responds to European piracy rulings
Copyright , Record Labels / December 2006
Finland
Sweden

COPYRIGHT Record labels Despite the bad news in Spain and China, The International Federation of The Phonographic Industry has welcomed a ruling in Finland that will see a man who sold pirated karaoke records over the internet face a suspended custodial sentence and significant fine. The Swedish man who sold the pirated material has been given a 30 day suspended prison sentence by the Finnish courts for copyright offences. He will also have to pay 70,000 euros in compensation, damages and expenses to the rights holders. Although based in Sweden, the man sold the pirated material via a website and magazine adverts in Finland, and was caught via an operation led by Finnish authorities with the support of the Swedish police. www.ifpi.org

Will safety law kill clubs? Seattle club owners fear sprinkler rule is one business cost too many
Health & Safety , Live Events / December 2006
USA

HEALTH & SAFETY Live Event Industry ARTICLE LINK: By Gene Stout at Seattle pi .con. In the wake of the Great White disaster in Rhode Island, nightclub owners in over 30 Seattle venues are scrambling to meet new fire requirements in time for a 1st December deadline. With costs ranging from US $15,000 to US$50,000 for each venue, many of the owners are questioning the sense of the new requirement and a number say they will close under the combined burdern of new Mayorial regulations, fire requirements and a smoking ban. http://seattlepi.nwsource.com/local/291018_sprinklers03.html

The UK’s new Licensing Act rings in the changes
Health & Safety , Licensing , Live Events / December 2006
UK

HEALTH & SAFETY / LICENSING Live event industry As the merits of the Licensing Act 2003 become more apparent, members of a town band are furious after being told they couldn’t play Jingle Bells in their Christmas shows unless they paid for a licence – because the song has no religious content. Callington Town Band in Cornwall, a registered charity, is having to fork out £21 for each of seven temporary licences to cover their Christmas programme after Caradon District Council’s licensing department told the band it would fall foul of the Act which came in to force this April, if it played anything other than religion based carols during its seven Christmas concerts. The council said a temporary entertainment notice (TEN) was needed every time entertainment was provided in venues without public licences. That means festive favourites like Jingle Bells, White Christmas and Rudolph the Red Nose Reindeer need a licence whereas Christmas carols which are considered religious music do not. In London, Lambeth Council has revoked the premises licence of a Brixton nightclub where police discovered two loaded handguns and drugs during a raid earlier this month. The council’s licensing sub-committee took the decision to revoke the licence for the J-Bar in Stockwell Road, Brixton,…

The rules for patents for computer software examined in Aerotel v Telco (2006)
Internet , Patents / December 2006
UK

PATENTS Internet By Tom Frederikse, Solicitor, Clintons The Court of Appeal has provided a welcome clarification on the extent to which a computer programme (software) is protectable by UK Patent Law: none (*except where the computer program has a “technical effect”). In two appeals heard together, Aerotel Ltd v Telco Holdings Ltd and Re: Macrossan [2006] EWCA Civ 1371, Telco was sued for patent infringement and counter-claimed for revocation of Aerotel’s patent, whilst Mr Macrossan had appealed against his patent application having been refused for “unpatentable” subject-matter. The appeal from Mr Macrossan was dismissed, the appeal from Aerotel was allowed and the Court took this opportunity to examine the patentability of software and business methods. Under UK and EU law, “computer programs” and methods for “doing business” or “performing mental acts” cannot not protected by a patent, but the question of what a computer program or a business method actually is has long been uncertain. The main problem in this area is so many inventions and gadgets use software as a element that the line is vague between what is and is not a “computer program”. The Court likened it to an elephant: “you know it when you see it but you can’t describe it in…

Vivendi’s purchase of BMG Music clears first regulatory hurdle
Competition , Music Publishing / December 2006
USA

COMPETITION Music publishing The Federal Trade Commission and the US Justice Department have both given the green light for Vivendi Universal to acquire BMG Music Publishing FiveEight magazine reported. The acquisition now needs the approval of the European Union’s regulators who are due to make their decision by the 8th December. Independent label trade association IMPALA is rounding up its independent label members to oppose the tie up. With the Sony BMG merger under scrutiny following the European Court Of First Instance’s ruling on the flaws in the EC’s approval of that merger, IMPALA clearly believes there is a strong chance that the EC may block the Vivendi/BMG Music Publishing marriage. The E1.6B deal would create the single biggest publishing entity in the world. Based on 2005 figures, a combined BMG Music Publishing and Universal Music Publishing would control 25.7% of the market, far ahead of EMI Music Publishing’s 16.7% and Warner/Chappell’s 15.1%. http://www.billboard.biz/bb/biz/newsroom/legal_management/article_display.jsp?vnu_content_id=1003382106 

Sports agents are ‘less essential’ than Artist Managers Proform v Proactive
Artists , Contract / December 2006
UK

CONTRACT Artists ARTICLE  Tom Frederikse, solicitor, Clintons The High Court has confirmed its quite different view of sports agency contracts from those of musicians’ and artists’ agencies. The former agent of Wayne Rooney, Proform Sports Management Limited, lost its claim of unlawful contract interference against the footballer’s new agents, Proactive Sports Management Limited, in a judgment published yesterday. Proform entered into an exclusive management and agency agreement with Rooney in 2000 (when he was 15 years old) for a term of two years. He did not take legal advice, though his father also signed the contract. The contract covered all “functions in respect of personal representation on behalf of his work as a professional football player” as well as all “contract negotiations and transfers”. Within two years, Rooney left Proform to join Proactive, who Proform claimed had induced Rooney to breach his contract by leaving. Proactive claimed that the contract did not cover “marketing and image rights” and more importantly, in any event, was voidable by Rooney for being a contract with a minor. The court accepted that a contract with a minor is not enforceable against him unless it is a contract for “necessaries” but it was unclear whether this…

The courts must decide who actually wrote A Whiter Shade of Pale
Artists , Copyright , Music Publishing / December 2006
UK

COPYRIGHT  Artists, music publishing  A Whiter Shade Of Pale, The Procul Harum hit which has generated £6 million in British radio, club and jukebox plays and was named the most-played record of the past 70 years in 2004, is to become the centre of a million-pound royalties dispute to be heard at the High Court in London. Released in 1967, the song became a global smash, selling 10 million copies. It is still used in advertisements and regularly features in “greatest song of all time” polls. The song has always been credited to Gary Brooker, Procol Harum’s frontman, and lyricist Keith Reid. Now almost 40 years on, Matthew Fisher, the band’s classically trained organist and now a computer programer, claims that the song’s signature winding melody line was his work. The dispute is more complicated because all sides agree that Johann Sebastian Bach originally inspired the song’s mournful melody.  Brooker first wrote the song as a straight R&B tune, based on Bach’s Airfrom the Orchestral Suite No 3 in D (or Air on a G String), which he had heard on a Hamlet cigar advertisement, and the composer’s Cantata No 140, known as Sleepers Awake. With Bob Dylan’s records then popularising the Hammond organ sound, the band called on Fisher…

New survey says public ‘support’ extending the copyright term in sound recordings
Copyright , Record Labels / December 2006
UK

COPYRIGHT Record labels Research commissioned by the BPI seems to show majority support among British consumers for an extension in the recording copyright in Britain – although answers given always depend on the question asked! The BPI is currently lobbying the UK government to extend the term of UK sound recording copyright from the current 50 years to match the equivalent copyright in the US which runs for 95 years. In a survey undertaken by YouGov on behalf of the BPI, 62% of those surveyed agreed that UK recording copyrights should be brought inline with the US. Only 20% opposed the proposal, with 18% undecided. The BPI argue that a copyright extension is vital to support the unique cultural asset of the UK music industry, to drive re-investment in the creative economy, to end the discrimination of protection afforded to other cultural industries, to benefit consumers through increased availability of music at no extra cost and to boost UK’s international competitiveness in the global knowledge economy. Commenting on the YouGov poll, BPI chief Peter Jamieson told reporters this weekend: “We are hugely encouraged that the majority of British consumers agree with us that UK musicians should receive as much copyright protection as their…

BPI welcome successes against CD and DVD pirates
Artists , Copyright , Record Labels , Trade Mark / December 2006
UK

TRADE MARK /COPYRIGHT  Mechandising, record labels, artists  The BPI has welcomed two success stories in the ongoing battle against counterfeit CD and DVD piracy in the UK. The BPI successfully prosecuted James Cowan, his wife Ann Cowan and Andrew Wood, all from County Durham, after a routine anti-piracy operation unveiled a sophisticated bootleg CD enterprise. The three defendants made pirate of copies of CDs and DVDs at a property above a video rental store, and are thought to have made £10,000s a week by selling the pirated material at markets, pubs and industrial units all over the North East. James Cowan was last week found guilty on counts of conspiracy to defraud, tax evasion and benefit fraud. Ann Cowan was found guilty of defrauding the music and film industries, benefit fraud and attempting to pervert the course of justice. Wood, who was allegedly in charge of the pirating operation, had earlier pleaded guilty to counts of conspiracy to defraud and tax evasion. CMU Daily reported that all three will be sentenced in the New Year. The BPI also welcomed the seizure of over 200,000 Bollywood CDs and DVDs following a raid in West London last week. With a value of…

The End User: When it comes to digital hardware, copyright levies are a taxing debate
Copyright , Record Labels / December 2006
EU

COPYRIGHT  Record labels, film, television, technology  ARTICLE LINK  By Victoria Shannon, International Herald Tribune A useful summary of the pros and cons of levies on hardware such as photocopiers, technology such as CD Burners and CDR discs etc: These are widely used in Europe (but not the UK) to compensate copyright owners – extra charges on hardware to make up for the ease of copying. http://www.iht.com/articles/2006/11/22/business/ptend23.php

New exceptions to DCMA anti-circumvention rules
Copyright / December 2006
USA

COPYRIGHT  All areas The US Library of Congress has approved six exceptions to the rules against decryption of technological protection measures in the Digital Millennium Copyright Act. These include (a) allowing users of mobile phones to break software which locks their handsets in with a particular network (b) allowing academics to break locks on DVDs to obtain film snippets which will be used for teaching compilations and (c) allowing blind people use special software to read copy-protected electronic books. The changes do not include the now much debated ‘personal use’ exception which would allow consumers to legally de-encrypt security protection on their own CDs so contents to be copied on to personal MP3 players. The new exceptions will expire after three years. http://www.usatoday.com/tech/news/2006-11-23-copyright-digital_x.htm?POE=TECISVA

60s pop star wins libel settlement
Artists , Defamation , Music Publishing / December 2006
UK

DEFAMATION Artists, publishers Sixties pop star Frederick Gladstone, professionally known as Tony Rocco, has won a High Court settlement against author Jake Arnott and Publishers Hodder & Stoughton for libel. Were had performed under the stage name “Tony Rocco” since 1962 when he had had a hit single, Stalemate. Arnott (born 1961) wrote a novel, Johnny Come Home, which featured a character called “Tony Rocco” who was said to be a popular music manager famous for having had a hit single in the 1960s. The fictional Rocco was depicted as a sordid, predatory pederast who lusted after teenage boys. Arnott and the publisher have both apologised for the distress and embarrassment caused to Were and openly acknowledged that Gladstone was and is nothing like the fictional Rocco: The defendants confirmed that the character of Tony Rocco in the novel was not intended to depict Were or refer to him in any way. They undertook not to repeat the allegations and said they would attempt to recall all copies of the novel distributed so far. They also agreed to change the name of the character for all and any future reprints of the novel and to pay Were a substantial sum by way of damages,…

Does Top Of The Pops need a licence?
Health & Safety , Live Events / November 2006
UK

HEALTH & SAFETY Live event industry The iconic BBC chart show, Top of the Pops, may be breaking the provisions of the Licensing Act 2003 law by hosting live music without a licence. Officials at Hammersmith & Fulham Council said it depended on whether the recordings at BBC Television Centre were interpreted as public or private events. The BBC maintained that the recording of live performances before a limited, invited studio audience has always been treated by the BBC and the council as constituting a live event not requiring a live performance licence. However the BBC accepted that if a different approach was now needed the BBC will apply for the appropriate licence.” It is understood that the council’s attention was reportedly drawn to the programme after it staged an open-air concert at TV Centre in London on Saturday featuring US rock band the Red Hot Chili Peppers. http://news.bbc.co.uk/1/hi/entertainment/4927542.stm

Limewire files countersuit against major labels alleging anti-trust violations
USA

COPYRIGHT / COMPETITION Record labels, internet Peer-2-peer software developer LimeWire has filed a counterclaim to the action brought by Warner Bros. Records, Virgin Records America, Sony BMG Music Entertainment and other music labels. The counterclaim filed in U.S. District Court in New York alleges that the record companies have engaged in unfair business practices to scare away its users. The record companies allege that Limewire’s technology provides a means for copyright infringement by illegal peer-2-peer fileswapping and downloading. In its countersuit Lime Wire alleges that the major record labels launched their own digital-distribution to “destroy any online music distribution service they did not own or control, or force such services to do business with them on exclusive and/or other anticompetitive terms”. This is not the first time this allegation has been made and the major labels are facing a class action in the USA alleging that the labels first forays into digital retailing were nothing more than blocking devices to shut other companies out of the digital market. Lime Wire’s suit also argues that the record companies combined and conspired to restrain trading in the market for online distribution of recorded music and, as a result, violated sections of the…

House Panel Tackles Piracy
Copyright , Internet / November 2006
USA

COPYRIGHT Internet ARTICLE LINK:  This article by by Elia Powers details how The Motion Picture Association of America estimated the US film industry lost $6.1 billion to piracy in 2005 and puts the blame for a large chunk of that at the feet of students – who use college provided high speed broadband connections to illegally download films. For an interesting read on the measures some Universities and higher education institutions in the United States are taking to deal with peer-2-peer file swapping and downloading (particularly music and films) see http://www.insidehighered.com/news/2006/09/27/piracy

Streamcast found liable for copyright infringement in the USA
Copyright , Internet / November 2006
USA

COPYRIGHT Internet ARTICLE LINK: After the Supreme Courts decision in MGM v Grokster, the liability of the various software companies was sent back to the lower courts to decide – using the tests set up by the Supreme Court who held that “ one who distributes a device with the object of promoting its use to infringe copyright … is liable for the resulting acts of infringement by third parties ”. Streamcast Inc, the creators of the Morpheus P2P file-sharing software, have now been found guilty by a federal judge of encouraging millions of users to exchange songs illegally. The company faces potential damages of $150,000 per track shared: http://www.latimes.com/business/la-fi-morpheus28sep28,1,1852347.story?coll=la-headlines-business / http://www.billboard.biz/bb/biz/index.jsp

British Library voices concerns over copyright law
Copyright , Record Labels / November 2006
UK

COPYRIGHT Record labels The British Library has voiced concerns that UK copyright law prevents the Library retaining archive copies of recorded music and other sound recordings. In a statement the Library said ‘currently the law does not permit copying of sound and film items for preservation … without the right to make copies, the UK is losing a large part of its recorded culture.’ ‘Many original audio and film formats we hold are becoming increasingly more fragile and the statement added that such formats could ‘face irretrievable decay.’ Sections 37 – 45 of the CopyrightDesigns & Patents Act 1988 currently provides that “ the librarian of a prescribed library may, if the prescribed conditions are complied with, make and supply from a published edition a copy of part of a literary, dramatic or musical work [i.e. not sound recordings] … without infringing any copyright in the work, in any illustrations accompanying the work or in the typographical arrangement”. S61 provides that folk songs may be recorded for archive purposes without infringing the copyright in the music or lyrics. Words in italics added. The British Library are asking for are a number of revisions to UK copyrights law: Existing limitations and exceptions to copyright law should…

ASMEC Forum highlights problems in online licensing
Copyright , Internet / November 2006
UK

COPYRIGHT Internet A forum put together by ASMEC, the Association of Streaming Media Companies, has highlighted how the Collection Societies are struggling to keep up with the demands of the new media companies as they present new and varied business models which use music in a variety of ways. Presentations form both Phonographic Performance Limited (PPL) and the MCPS-PRS Alliance set out current business models and licences available to online companies. The PPL’s licences are based on a approximate payment of 0.05p per track streamed for the sound recording right (but does not include the download right which is retained by labels). The MCPS-PRS Joint Online Scheme (JOL) allows the user to use music in return for a payment of 8% plus VAT of gross revenues (subject to a minimum payment of £500 plus VAT per annum. The MCPS-PRS Alliance also had a (LOEL) Limited Online Exploitation Licence for services generating less than £4,250 in revenue per annum based on a flat fee between £50 and £400. Both of these licences cover full track downloads, clips, on demand streaming and webcasting. The presentations met with some criticisms from the Forum audience – particularly questioning why PPL online licence rates were…

New royalty models for online services
UK

COPYRIGHT Internet, music publishers, record labels INTERVIEW LINK – Lawyer Gregor Pryor discusses why it is not always easy for collection societies and rights owners to keep up with the wide range of new business models being presented to them by companies who want to legally exploit their copyrights. This interview was published by CMU Music Network as part of Music Tank’s ‘Think Tank’ series prior to the ASMEC Forum referred to above. http://www.cmumusicnetwork.co.uk/interviews/copyright01.html see also A new licensed P2P service by Prof Michael Geist at http://www.p2pnet.net/story/10126

Plagiarism case against Beyonce fails
Copyright , Music Publishing / November 2006
USA

COPYRIGHT Music Publishing A US judge has dismissed a copyright infringement lawsuit against Beyonce Knowles filed last year by singer songwriter Jennifer Armour. Armour claimed that Beyonce’s 2003 hit ‘Baby Boy’ included lyrics from her song ‘Got A Little Bit Of Love For You’. Armour said that the Destiny’s Child singer had had access to her song because her former manager had provided a copy of it to executives at Beyonce’s record label, Columbia. Key people at Atlantic Records, who represented Sean Paul, Knowles’ collaborator on the track, had also been sent a copy. This type of claim is why more and more record labels, music publishers and management companies are refusing to accept unsolicited demos and tracks – returning them unopened to songwriters and artists. However, whether or not Knowles had ever heard Armour’s track was not, in the end, relevant because the court undertook a ‘side-by-side’ comparison of the two songs – the basic test in any copyright infringement case of this kind – and from that they ruled that the songs were “substantially dissimilar”, leading to Armour’s case being dismissed. Source CMU Daily / http://news.bbc.co.uk/1/hi/entertainment/5401632.stm

IFPI continue actions against file swappers
Copyright , Internet , Record Labels / November 2006
Argentina
Austria
Brazil
Denmark
Finland
France
Germany
Hong Kong
Iceland
India
Ireland
Italy
Mexico
Netherlands
Poland
Portugal
Singapore

COPYRIGHT Record labels, internet Legal actions against thousands of music file-sharers across the world have been announced as the recording industry stepped up its campaign to deter copyright theft and promote legitimate use of music on the internet. Over 8,000 new cases in 17 countries are being announced today, including the first ever cases against illegal file-sharing in the two biggest markets of South America and in Eastern Europe.   A total of more than 13,000 legal actions have now been taken outside the United States. Legal actions are being extended to Brazil, where more than one billion music tracks were illegally downloaded last year and a country where record company revenues have nearly halved since 2000. Mexico and Poland are also seeing actions for the first time – while a further 14 countries are launching fresh actions against illegal file-sharing.  Over 2,300 of people have already paid the price for illegally file-sharing copyrighted material, with average legal settlements of €2,420.   Many of those on the receiving end of legal action are parents whose children have been illegally file-sharing.  They are finding that in many countries they are liable for any activities third parties undertake using their internet connection.  In…

Google snaps up Youtube for $1.65 billion
Copyright , Internet / November 2006
USA

COPYRIGHT Internet As Video-sharing Web site YouTube Inc announced that it had struck content deals with Universal Music Group, Sony BMG Music Entertainment and CBS, Google announced, after several days of rumours, that it would buy YouTube for $1.65 billion. Google say the two companies will, for the time being at least, continue to operate independently – but Google also added that it had also directly dealt with Sony BMG and Warner Music for Google music video content. Vivendi’s Universal Music Group said on Monday it had agreed to give YouTube viewers access to thousands of music videos. The company said it and its artists will be compensated not just for the official videos, but also for user-generated content that incorporates Universal’s music. Universal Music Group said it will also use technology to filter out copyrighted content not authorized to appear on the YouTube site. Sony BMG has it will make video content available on YouTube – and will also let YouTube users include some catalogue songs in their own amateur video uploads. Warner Music had already said it had an agreement with the site. Sony BMG said it will share advertising revenue with YouTube for all music videos that…

United States v Google? As it buys YouTube, does Google now have market dominance?
Competition , Internet / November 2006
USA

COMPETITION Internet ARTICLE LINK  An interesting blog by David Berlind looking at anti-trust issues in the US and pointing out that the question of Google’s ‘market dominance’ is by no means as simple as it might look – and challenges the idea of a ‘Googleopoly’ whilst making some challenging comments on Apple’s iTunes business model. http://blogs.zdnet.com/BTL/?p=3771

Sony and BMG to appeal the annulment of their merger by the European Court
Competition , Record Labels / November 2006
EU

COMPETITION Record labels Sony and Bertelsmann have appealed against an annulment of their joint venture that created the world’s number two music company. In July, the Court of First Instance annulled the European Commission’s decision to approve the venture (see our August Music Law Updates. German media group Bertelsmann said in a statement it and Sony had filed the appeal because “the EU Commission’s 2004 decision to clear the Sony BMG recorded music joint venture was correctly decided on both the law and the facts”. The appeal process is likely to take about a year. Meanwhile the European Commission will concurrently undertake a renewed review of Sony and Bertelsmann’s original merger proposals (annulment issued by the Court Of First Instance simply overturned the original approval on procedural grounds, it did not actually state whether the merger itself was, in fact, anti-competitive – that is for the Commission to decide anew). Bertelsmann said “parties will be providing current market data and other information requested by the Commission in the next few weeks”. As European officials closely monitor the music industry, it appears that Vivendi is going to restructure the way it buys BMG Music Publishing from Bertlesmann after EC officials expressed…

CBS makes peace with Spitzer
Competition / November 2006
USA

COMPETITION Broadcasting US radio major CBS has become the first broadcasting corporation to settle with New York Attorney General Eliot Spitzer in his long running payola investigations where record labels have paid to have their records played on the radio – ‘pay for play’. All f the majors have agreed to pay fines and revamp internal rules as a result of their own settlements with Spitzer has since turned his attention to the radio groups.CBS have pledged to introduce more stringent rules regarding the relationships their station managers have with record labels and their promoters, as well as paying $2 million in fines. CBS runs approximately 180 radio stations across the US

US Copyright Office agitates publishers over statutory licences for ringtones
USA

COPYRIGHT / COMPETITION Record labels, music publishers The US Copyright Office has ruled that ringtones qualify as digital phonorecord deliveries and as a result they fall under compulsory license provisions. Under section 115 of the USCopyright Act, the Copyright Royalty Board can now determine royalty rates for these tones. This means that labels can offer ringtone operators the mater rights and the publishing rights as a single package and labels will be able to avoid lengthy licensing negotiations with publishers. Whilst the Recording Industry Association of America welcomed the news, the National Music Publishers’ Association was quick to attack the Copyright Office’s decision. It argues that this “represents an unprecedented broadening of the compulsory licence for musical works” and could damage songwriters and copyright owners who were previously able to negotiate licences in the free market but are now subject to government regulation. http://www.billboard.biz/bb/biz/newsroom/legal_management/article_display.jsp?vnu_content_id=1003255346

Court Rules Google’s use of trademarks as keywords is non-infringing
Internet , Trade Mark / November 2006
USA

TRADEMARK Internet A federal judge in New York has just ruled that Google’s practice of selling trademarks as keywords that trigger links to particular Web sites other than those of the trademark holders does not constitute infringement because Google does not actually “use” the trademarks within the meaning of the law. This ruling was entered on September 28 by Norman Mordue, the Chief Judge of the United States District Court for the Northern District of New York in the case Rescuecom Corporation v. Google, Inc. Judge Mordue granted a motion by Google and dismissed Rescuecom’s complaint which alleged trademark infringement with respect to Google’s selling of the trademark “Rescuecom” to Rescuecom’s competitors as a keyword that triggers the appearance to the competitors Web sites among the search results of Internet users when they enter “Rescuecom” in the Google Internet search engine. Written by Eric Sinrod of Duane Morris LLP. For more information please see Findlaw.com

Public house fined for unlicensed door staff
Health & Safety , Live Events / November 2006
UK

HEALTH & SAFETY Live event industry A Pontypridd licensee has been fined £250 and ordered to pay £761 in costs at the Pontypridd Magistrates Court for using unlicensed doorstaff supplied by a security company. Terri Jenkins, who runs the Angharads public house, was taken to court by Rhondda Cynon Taff County Borough Council after licensing officers found the unlicensed staff working at the pub in July 2005. The staff had been supplied by a security company but under the Licensing Act 2003, licensees commit an offence if fail to prevent unlicensed doorstaff being deployed by a third party to their premises. Rhondda Cynon Taff County Borough Council told the court that Jenkins had not shown due diligence and had failed to ensure that the door supervisors supplied were SIA (Security Industry Authority) licensed. http://www.morningadvertiser.co.uk/news_detail.aspx?articleid=22602

FKP Scorpio Konzertproduction Gmbh v Finanzamt Hamburg-Eimsbüttel ECJ C290-04
Artists , Live Events , Taxation / November 2006
EU
Germany
Netherlands
USA

TAXATION Artists, Live Music Industry In May 2006 Advocate General Leger expressed his opinion in the case of FKP Scorpio Konzertproduktion. Scorpio, a German concert promoter, contracted with a Dutch tour promoter in 1993 for performances by American and European artists in Germany. Scorpio did not pay any German withholding tax and the tax authorities raised a massive tax assessments because of breach of of the German Einkommensteuergesetz (Income Tax Law). The Bundesfinanzhofraised four questions to the ECJ: (1) is it correct that non-residents fall under a withholding tax, and residents not; (2) does the withholding tax at source need to be reduced because of the expenses of the non-residents, because residents only pay tax on their net income after the deduction of expenses;(3) can an exemption provided for in a tax treaty be used without the explicit approval of the domestic tax authority; (4) do the answers to these questions also apply to artists and sportsmen living outside the EU? The Scorpio case attacks the artist tax system more explicitly than theGerritse case and the German tax authorities have already allowed organisers of performances to postpone the payment of the withholding tax for non-resident artists AG Leger opined that neither the procedure of deducting tax…

Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften ECJ C386-04
Live Events , Taxation / November 2006
EU
Germany
Italy

TAXATION Live Event Industry This case concerns an Italian non-commercial foundation which provides education for classical music students. The institution is exempt from the Italian l’imposta sul reddito delle persone giuridiche (Corporation Tax) and comparable German institutions would be exempt from the German Körperschaftssteuergesetz (Corporation Tax Law). The Centro di Musicologia Walter Stauffer had rental income in Germany which was taxed under a of the German KStG but could not make use of the exemption for cultural institutions, because it was not based in Germany. The German Bundesfinanzhofhas raised the question to the ECJ, whether this exclusion for non-resident institutions is correct under the EC Treaty as an Italian institution would suffer tax on income whereas as comparable German institution would not. The European Court of Justice (Third Chamber A. Rosas, President of the Chamber, J. Malenovský, S. von Bahr, A. Borg Barthet and U. Lõhmus (Rapporteur), Judges) decided that the fact that the tax exemption for rental income applies only to charitable foundations that are resident in Germany places charitable foundations resident in other Member States at a disadvantage and may constitute an obstacle to the free movement on capital. Thus in principle the legislation constitutes a prohibited restriction on the free movement of capital. Accordingly, the ECJ decided…

Centro Equestro de Leziria Grande Lda ECJ C345-04
Live Events , Taxation / November 2006
Germany
Portugal

TAXATION Live Event Industry The case of Centro Equestro de Leziria Grande Lda concerns German Einkommensteuergesetz (Income Tax Law) and the very strict application of tax refunds for non-resident artists. The German tax authorities have created theVereinfachtes Erstattungsverfahren (Simplified Tax Refund Procedure), but only expenses that are directly connected with the performances are taken into account and these expenses need to be more than 50% of the earnings. Applications are only considered when the original invoices are attached. The procedures are somewhat complex and not widely used. The Portugese company Centro Equestro de Leziria Grande wanted to make use of the procedure because it had paid 29% withholding tax on the fees for its 11 horse shows in 1996 in Germany and had calculated post-tour that the total expenses (both direct and indirect) had been higher than the gross earnings. One of the horses had died during the German tour, giving an additional depreciation for the book value of the animal. The German Bundesamt für Finanzen (Tax Office) rejected the application for a full tax refund because the indirect expenses were not accepted. The Bundesfinanzhof raised the question to the ECJ, whether this strict procedure is correct under the EC Treaty, because German resident artists and sportsmen are taxed…

US tightens up on non-resident taxation
Artists , Live Events , Taxation / November 2006
USA

TAXATION Arists, Live Music Industry Audience (issue 80, October 2006) reports that the US Internal Revenue Service may ask bands to withhold thirty percent of tax on tour personnel as well as on their own artist earnings. This comes at a time when venues and promoters are being told they may be held liable for taxation if a non-resident artist has not filed a Central Withholding Agreement (CWA). The IRS has published a new guidance, Non-resident alien US income and payroll tax responsibilitieswhich now provides for a direct responsibility to withhold 30% of tax on tour personnel. Whether or not this offends international bi-lateral tax treaties may have to be tested in the US courts but the IRS maintain that without a CWA tour personnel may have a US tax liability and the withholding tax is in place to collect this. Tour personnel could then apply for a tax refund under the US system utilizing relevant double taxation treaties. Audience (issue 80, October 2006)

UK opera house wins major tax victory
Live Events , Taxation / November 2006
UK

TAXATION Live Music Industry Despite having a Government that professes to support the creative industries in the UK, the Treasury doesn’t seem to have read the script – and have been up to their necks in somewhat over zealous taxation activities. The Court of Appeal has now found that UK Customs & Revenue were completely wrong to strip the Gloucestershire based Longborough Festival Opera of its cultural purposes exemption – from VAT on ticket sales. Why were the Revenue so adamant that the Opera Company should be stripped of its exemption? Well – because it was because founding trustee, Martin Graham , unilaterally agreed to underwrite any losses from staging Wagner’s Ring Cycle in 2002 and 2003. This, according to the Revenue, meant that the Company was no longer run ‘voluntarily’ . To benefit from the exemption the orchestra needed to be managed and administered on a voluntary basis by persons who had no direct or indirect financial interest in its activities. The Revenue said that Mr Graham did have a financial interest – even though he was only prepared to cover losses – and didn’t want a share of any profits. The Court, thankfully, said that the Revenue were wrong. The Times 7th October 2006. 

Bournemouth Symphony Orchestra v Revenue and Customs Commissioners (2006) EWCA Civ 1281
Live Events , Taxation / November 2006
UK

TAXATION Live event industry However, it wasn’t all doom and gloom for the Revenue – in another case they managed to get the Court of Appeal to agree that the Bournemouth Symphony Orchestra should be stripped of its cultural exemption for VAT on ticket sales – because a salaried MD sat on the board of trustees – an a wholly negative and unsatisfactory decision for the cultural and creative industries and indeed the live music industry in the UK. The Court held that as the affairs of orchestra were managed by a managing director who was paid a salary to administer the affairs of the Orchestra and was a member of the Board of Directors: this meant that the orchestra’s business was not managed and administered on a voluntary basis for the purposes of Note 2 to items 1 and 2 inGroup 13 of Schedule 9 to the Value Added Tax Act 1994. Lloyd LJ said that managing director’s remuneration and participation in decision making process of the orchestra made it impossible to say that the management and administration of the orchestra was conducted on an essentially voluntary basis. The Independent 19 October 2006.  

Dutch taxation of nonresident artists & athletes to end
Artists , Live Events , Taxation / November 2006
Netherlands

TAXATION Artists, live industry ARTICLE: by Dick Molenaar, All Arts Tax Advisors The Dutch government has decided to abolish the taxation of non-resident artistes and sportsmen per 1 January 2007. This radical change attracts special attention, because the Netherlands has the right to levy a source tax from non-resident artistes and sportsmen under 74 of its 78 bilateral tax treaties, in which it follows Art. 17 of the OECD Model closely. But the government believes that the tax revenue from this special group of taxpayers is too low and the administrative burden is too high to justify a source taxation. The Netherlands prefers that only the residence country levies tax from their international performing artistes and sportsmen. This is an important deviation from the recommendation by the OECD in Art. 17 of the Model Treaty, in which the primary taxing right has been allocated to the country of performance. Earlier change in 2001 In 2001 the Netherlands already changed its taxation from non-resident artistes and sportsmen by allowing the deduction of expenses prior to performances and accepting normal income tax returns after the year. The Netherlands did not want to follow the recommendation of § 10 of the Commentary on…

Macca applies for trade mark
Artists , Trade Mark / November 2006
UK

TRADE MARK Artists Former Beatle Paul McCartney – known to Sun readers as Macca – has applied to register the surname McCartney for use on goods as wide-ranging as pantihose, waistcoats and vegetarian food. The application was made by his company, MPL Communications, and specifies such disparate items as bath robes, articles of fancy dress, overalls, sports clothing and swimwear. The application also covers meat and poultry, products of which the vegetarian celebrity strongly disapproves. A spokesman for McCartney said the inclusion of meat products was purely defensive. “It would give him protection against his name being used on products he does not approve of” he said. Thanks to our friends at the IPKatfor this (see link details in the next update).

Rooney gets back domain name
Artists , Trade Mark / November 2006
UK

TRADE MARK Artists England and Manchester United football star Wayne Rooney’s has been successful in his bid to have the waynerooney.com domain name transferred to him. The registrant claimed that he obtained the domain name in 2002, after seeing the then sixteen-year old Rooney playing for Everton, being convinced of his potential, and then being motivated to obtain the domain name to set up a fan site which never eventuated. The Administrative Panel of the WIPO Mediation and Arbitration Centre ordered that the mark be transferred. The domain name was found to be identical or confusingly similar to a trade mark, even though Wayne Rooney only registered his trade mark after the domain name was registered, since trade marks registered after domain names can result in a finding of identical or confusing similarity under the UDRP (though it’s harder to find bad faith where the domain name predates the trade mark). The registrant’s supposed desire to set up a fan site did not give him a legitimate interest because this intention was not particularly believable. The panellist in particular highlights that the registrant had no programming experience at the time of registration and did nothing subsequently in order to acquire such skills….

Jameel – a victory for responsible journalism
Defamation , Internet / November 2006
UK

DEFAMATION Television, radio, magazines, internet ARTICLE :  by Catherine Fehler, solicitor, Michael Simkins LLP On 11 October 2006 the House of Lords, in a landmark ruling, unanimously overturned the decision of the High Court and Court of Appeal and allowed the defence of the Wall Street Journal Europe; effectively upholding the public interest defence in libel actions.  The decision represents an affirmation of the House of Lords’ decision in Reynolds v. Times NewspapersLimited in 2001 which was hailed as a victory for freedom of speech and investigative journalism, however until now had not provided a clear public interest protection from claims in libel. The offending article was published in the Wall Street Journal Europe and claimed that the Saudi Arabian authorities were monitoring bank accounts of prominent Saudis for evidence of supporting terrorism, knowingly or not, at the behest of the US Government. The article included the Abdul Latif Jameel Group as being on the list of monitored accounts.  The main company in that group,  and it’s president Mohammed Jameel,  sued for libel. The lower courts had allowed Jameel’s claim to succeed, taking a narrow interpretation of the Reynolds privilege defence.  But the Lords held that the Nicholls list in the Reynolds case,…

MPA goes after fan guitar sites
Copyright , Internet , Music Publishing / October 2006
EU
UK
USA

COPYRIGHT Music Publishing, internet In January 2006 we asked whether the Music Publishers Association (MPA) was wise to target unauthorized online lyric and music score sites after the Association, which represents US sheet music companies, launched its campaign with MPA president Lauren Keiser saying he wanted site owners to be fined and jailed. Mr Keiser cited the Xerox machine as the first enemy of sheet music and now identifies the internet as a new major enemy. Now the MPA is after guitar fan websites which they say infringe songwriters’ copyrights. These give so called ‘tab’ instructions which stands for guitarist tablature which show guitarists where to put their fingers to play a chord and primarily are used by people playing at home. Traditionally tab notations and sequences of chords have been found in books and – understandably – book publishers and authors have been upset when their publications have been copied wholesale onto the internet. But Pinsent Mason’s excellent Out-Law site reports that the MPA and the National Music Publishers’ Association (NMPA) have shut down several websites or forced them to remove all tabs using threats of copyright law suits. The sites are typically fan-run and not significant profit-making enterprises and many…