Bourne and others v Davis (trading as Brandon Davis Publishing)
UK

COPYRIGHT / PERFORMERS RIGHTS / CONTRACT Artists This case involves the successful pop musician James Bourne, most latterly of Son of Dork and previously with Bustedin a contest with a certain Brandon Davis who tried to release some early recordings featuring Bourne. Between December 2000 and October 2001 Bourne and three other musicians wrote and performed songs together. While developing songs and compositions they recorded a set of nine songs in a hotel room in London. Later, the four stopped performing together. Bourne then became involved in Busted, and concluded a recording contract with the second claimant. By that contract Bourne assigned all his rights, including his performer’s rights (section 180 of the Copyright, Designs and Patents Act 1988) for recordings made before the date of the contract. Busted then had a bust-up and stopped playing together and Bourne joined a new group, Son of Dork. At this juncture Bourne signed yet another contract, this time with the third claimant (an affiliate of the second claimant), which also took an assignment of his performer’s rights for performances occurring before the date of that contract. However Davis made a compact disk comprising an album of the nine tracks performed by the original group of four…

Statutory objections to proposed new festival
UK

HEALTH & SAFETY / LICENSING Live Event Industry Plans for a major music festival in Waveney near Lowestoft in the UK could be scuppered after objections by the police, fire service and environmental health officers. The Organisers behind Eastern Haze 2006, due to be held at the 500 acre Somerleyton Hall estate near Lowestoft, have asked Waveney District Council for a time-limited premises licence to run the festival from Friday July 21 to Sunday July 23. The bill so far announced features Hawkwind and Dreadzone along with several local bands. Other planned attractions include a holistic area for therapies and readings and lots of activities for children including theatre shows, street theatre, puppetry and jewellery-making workshops. But letters to Waveney’s licensing officer from Suffolk police, the county’s fire service and the council’s own environmental health team, say they cannot support the application. The police state that they want to register objections on two grounds: The state that they have assessed the planned traffic management scheme and have “concerns over entry and exit routes due to the narrowness of the proposed routes and the potential for accidents and blockages, particularly in the event of an evacuation procedure from the venue”. The police…

Europe and US to fight global battle against counterfeit goods
Copyright , Patents , Trade Mark / July 2006
EU
USA

COPYRIGHT / PATENTS / TRADE MARK All areas European and US creative industries have welcomed a new joint EU and US strategy launched by US Commerce Secretary Carlos Gutierrez, EU Trade Commissioner Peter Mandelson and EU Industry Commissioner Gunter Verheugen in Vienna aimed at fighting the soaring global trade in counterfeit and pirate goods. The US President George W. Bush and Commission President José Manuel Barroso will endorse the strategy at the EU-US Summit in Vienna. The industries from many sectors stressed the enormity of the counterfeiting and piracy problem, estimated to be worth 360 billion euros a year: In 2005 film piracy in China was calculated at $2.7 billion and in the US at $3 billion. Music piracy in the UK alone was valued at £414 million last year and in China $400 million – china has a 90% piracy rate.  Overall it is estimated that 5 – 7 % of the global economy is based on counterfeit and pirated goods which can endanger consumer safety, erodes the competitiveness of legitimate businesses, fund crime and undermine the livelihood of workers in innovative and creative industries. The IFPI add that the “June 20th announcement of a joint EU-US strategy and…

Seal must pay £1 million to ex-manager
UK

CONTRACT Artists Seal ( Henry Olusegun Adeola Samuel) has been ordered to pay his former manager about £1 million of the money made from his early hits in a High Court action. The singer songwriter had argued said that he did not owe a penny in commission to John Wadlow, the manager he once regarded as a father figure and who gave the singer studio time when he was a struggling unknown. However, at a hearing at the High Court yesterday, Mr Justice Gray ruled that Wadlow was entitled to payment under a settlement agreement signed by the two men in 1995. Mr Justice Gray held that this agreement, signed to terminate formally their working relationship, gave Wadlow the right to the unpaid commission. The settlement replaced earlier agreements and Wadlow agreed to termination and agreement which would have otherwise provided substantial future earnings as Seal’s manager. The effect of the settlement agreement was that Mr Wadlow has a continuing entitlement to commission in respect of Seals first and second albums Seal and Seal II, both of which reached number one in the UK album charts. The judge rejected s counterclaim argued by Seal that even if he did owe money to his former…

Skype faces patent threat
Patents / July 2006
USA

PATENTS Telecommunications The Skype system for making free telephone calls over the internet is being threatened in a new patent suit from Net2phone. The Skype service, which is growing at a rate of 150,000 new subscribers each day, is facing a lawsuit in the USA saying the Skype has violated Net2phone’s VoIP (voice over internet protocol) patents. Skype is now owned by eBay. The Observer 11 June 2006.

Canadian artists and independent labels lament actions of major labels
Copyright , Record Labels / June 2006
Canada

COPYRIGHT Record labels As digital music behemoth Ted Cohen delivered the gospel at a Nokia convention in Hong Kong in May saying that “The consumer is now the center of the industry and it is the music companies that have to adapt to consumer needs”, m ajor international music artists based in Canada have banded together to form a group aimed, among other things, at protesting the recording industry’s practice of targeting fans with lawsuits. With Sum 41, Barenaked Ladies, Avril Lavigne and Sarah McLachlan as members, the new Canadian Music Creators Coalition says that ‘ suing our fans is destructive and hypocritical’ and that the majorlabels have been “suing our fans against our will’ and that “laws enabling these suits cannot be justified in our names”. The Coalition goes further by saying that they “oppose any copyright reforms that would make it easier for record companies to do this” adding that the government should repeal provisions of the Copyright Act that allow labels to unfairly punish fans who share music for non-commercial purposes with statutory damages of US$500 to $20,000 per song’. The Group are also concerned about DRM saying that d igital locks ‘are risky and counterproductive’ which post the…

EFF warn about new restrictions in ‘PERFORM’ Act
Copyright , Internet / June 2006
USA

COPYRIGHT Radio, television, internet The Electronic Frontiers Foundation (EFF) reports that Senators Feinstein (D) and Graham (R) have introduced S. 2644, dubbed the PEFFORM Act, that is aimed at punishing satellite radio for offering its subscribers devices capable of recording off the air. However the EFF point out that ]buried in the bill is a provision that would effectively require music webcasters to use DRM-laden streaming formats, rather than the MP3 streaming Today, webcasters that want to transmit major label music are entitled to do so under a statutory license (administered by SoundExchange) set out in section 114(d) of the Copyright Act. So long as they follow the rules and pay a royalty, webcasters can play whatever music they like, using whatever streaming format they like. Under the current law, webcasters are forbidden from helping their listeners record the webcasts, and are required to use DRM only if the format includes DRM. The new law would make the use of DRM technology obligatory for all webcasters. http://www.eff.org/deeplinks/archives/004587.php See also the Billboard article by Susan Butler, Licensing Battle over Convergence, at: http://billboardradiomonitor.com/radiomonitor/news/business/leg_reg/article_display.jsp?vnu_content_id=1002463027 And see the story about the RIAA’s action against radio station Xm:  http://www.latimes.com/technology/la-ed-xm20may20,1,2909987.story?coll=la-headlines-technology&ctrack=1&cset=true

SonyBMG challenged over digital artist royalty rates
USA

CONTRACT Record labels, artists, internet Members of the Allman Brothers Band and Cheap Trick have filed a class action lawsuit alleging that Sony BMG has underpaid artists for digital music transactions. At issue in the action, filed April 27 in U.S. District Court in New York by Labaton Sucharow & Rudoff and Probstein & Weiner, is whether the label’s deal with online services for downloads is a license or a sale. Sony BMG labels consider that their deals with the services are for sales of records rather than licenses for the recordings. But the suit alleges that Sony BMG is violating contractual obligations to share 50% of the net licensing revenue from digital music transactions with artists. The two bands claim that from 99-cent downloads, they receive only about 4.5 cents, rather than the 30 cents per track they believe they are owed. For years, artists have complained that royalties are further cut; many contracts permit a 50% reduction in royalties for music sold through a new technology, as well as a packaging deduction. Many artists say these clauses only made sense in the physical world, when music migrated to CDs from cassettes. The suit concerns royalties received for master…

New Podcast licence unveiled by MCPS-PRS Alliance
UK

COPYRIGHT Internet, music publishing, record labels ARTICLE By Tom Frederikse, Solicitor, Clintons A new licence for “podcasting” has been launched by the MCPS-PRS Alliance. The scheme is intended to help legitimise the use of musical compositions in podcasts, which, until last week, had to be cleared in each instance by the relevant publisher. The licence has only just been made available (though it may be backdated to 1 January 2006) and this version can run only until 31 March 2007. The licence covers use of Alliance-controlled works in a “podcast” (defined as a digital programme offered “on-demand” in which individual musical tracks cannot be extracted from the podcast as a whole) and fills one of the existing holes in the Joint Online Licence. The licence itself extends to 48 pages and is notable for the many provisions explaining exactly what it is not. Among the exclusions, it does not cover music used in connection with advertising, public performance, karaoke, or any graphic or physical copies such as CDs. It does not even cover podcasts unless each track within the podcast has the first and last 10 seconds obscured (with speech or a station ID), the music amounts to less than 80% of the…

Underage drinkers to target Fife pubs
UK

HEALTH & SAFETY / LICENSING Live Event Industry ARTICLE LINK:  Scotland is in the enviable position of rolling out their new licensing laws (and implementing their SIA door supervisor programme) with the benefit of hindsight – by learning from the mistakes made in England and Wales’s from the rushed and ill thought out Government and regulatory approaches. See details of the Licensing ( Scotland) Act 2005 by Angela Frewin in the Caterer http://www.caterersearch.com/Articles/2006/05/02/306513/Underage+drinkers+to+target+Fife+pubs+in+sting+operations.htm For more details on Scotland’s new licensing laws see:  http://www.thepublican.com/cgi-bin/item.cgi?id=20646&d=32&h=24&f=23&dateformat=%25o%20%25B%20%25Y

Publicans fear that the Scottish Executive wants unhealthy bar food banned
UK

HEALTH AND SAFETY / LICENSING Live event industry Whilst Scotland can learns from the Licensing Act mistakes in England, the downside is that Scottish legislators have even more time to dream up new restrictions and rules – the dreaded initiatives that are seizing up so much of life – in education – in health – in the legal system – and now in entertainment. If it was April 1 st I am sure I would have thought the following was a joke – but its not. The Scotsman reports that ‘Advisers’ to the Scottish Executive have come up with a new way of promoting healthy eating using the new licensing powers – by banning ‘unhealthy’ food such as pies and chips food in licensed premises – meaning customers only have a ‘healthy’ option. So is it goodbye to personal choice, fun and rock n roll and hello to smoke free, noise limited, salad bar nanny state gigs, festivals and venues in the future? Who will rid us of these turbulent advisors!!! See http://www.theherald.co.uk/politics/61444.htmlhttp://news.scotsman.com/health.cfm?id=674232006

New licence granted in saturation zone
UK

HEALTH & SAFETY / LICENSING Live Event Industry The Publican reports that a bar chain is celebrating a landmark victory over a council after it was granted a licence for a new venue in a town’s saturation zone. Cannock-based operator Bar Sport has been give the green light by Loughborough magistrates to open a new bar in the town after winning an appeal overturning the local authority decision who felt that the new pub in an already ‘saturated zone’ would promote crime and disorder. Bar Sport argued that they would provide food and a dedicated customer taxi service. But please note the May 2006 Law Updates Archive for the recent High Court decision in R (J D Wetherspoon) v Guildford Borough Council upholding the prima facie legality of saturation zones (although blanket policies banning, for example, late night opening, are not legal). http://www.thepublican.com/cgi-bin/item.cgi?id=20665&d=32&h=24&f=23&dateformat=%25o%20%25B%20%25Y

Mean Fiddler not liable for cost of police presence at Leeds Festival
UK

HEALTH & SAFETY / LICENSING Live Event Industry Reading Festival Limited v West Yorkshire Police Authority [2006] EWCA Civ 524 The Mean Fiddler Group (owner of Reading Festival Limited) has won a Court of Appeal battle over who pays to police major events. They had been ordered to pay West Yorkshire Police nearly £300,000 for its services at the Leeds Festival in 2003. But The Court of Appeal said that “special police services” had not been requested in 2003 and could not be recovered from the promoter. Lord Justice Scott Baker said the ruling had implications for major events and any large gatherings of the public. He said the court was being asked to decide on the dividing line between services the police must provide as part of its public duty and special services provided at the request of promoters, for which promoters must pay. Lord Justice Scott Baker said: “There is a strong argument that where promoters put on a function such as a music festival or sporting event which is attended by large numbers of the public, the police should be able to recover the additional cost they are put to for policing the event and the local…

New booklet explaining the Licensing Act 2003 published
UK

HEALTH & SAFETY / LICENSING Live event industry Licensing experts Poppleston Allen has launched the latest edition of The Licensed Trade Guide. The booklet provides a run down on the details of the new Licensing Act. It covers areas such as the role of the licensing authority, licensing objectives and licensing policy, whilst also explaining the decision process behind the granting of a licence. Seehttp://www.pactltd.co.uk/ .

Sampling ‘settlement’ does not preclude ongoing claim
Artists , Copyright , Record Labels / June 2006
USA

COPYRIGHT Record labels, artists A US federal judge has issued a ruling in favor of 1970’s British soul group Cymande, in a sampling lawsuit against the Fugees and Sony Music. The lawsuit, which was filed by group members Steve Scipio and Patrick Patterson in March, claims the Fugees illegally sampled the song “Dove” on their 1996 album T he Score. The basis of the claim is not vabout the fact of infringement – this seems to be accepted and in 1998, the two parties attempted to negotiate a settlement agreement. Cymande accepted a payment of $400,000. However, according to the lawsuit, members of Cymande denied that the $400,000 payment was for (full and final?) settlement whereas Sony claim that Cynmande “entered into a settlement” and that members of Cymande “ratified the 1998 settlement by accepting the several hundred thousand dollars of Defendants’ payments”. The 6th U.S. Circuit Court of Appeals ruled that the payments did not amount to “ratification of an unsigned agreement to settle an infringement dispute.” The Court held that “the Proposed Agreement was never ratified and that Plaintiffs should not be equitably stopped from pursuing their infringement claims”. However the $400,000 payment must be repaid or subtracted from…

CD Manufacturer liable for piracy from master disc
Copyright , Record Labels / June 2006

COPYRIGHT Record labels A firm that manufactured a master disc used to produce more than 100,000 pirate copies has been ordered to pay US$250,000 in damages to the recording industry. Planet Optical Disc Ltd, a mastering firm based in the United Arab Emirates (UAE) was ordered to pay the damages after a court decided it was liable for the production of all the compact discs originating from the master copy.  The Dubai Court of First Instance heard the master disc was used to produce 111,000 counterfeit compact discs featuring compilation of songs from a range of artists. The case had been brought by record companies including Universal International Music, Interscope Records, Zomba Records, BMG Middle East, Sony Music Entertainment, WEA International and EMI Records. They will share the damages granted by the Dubai court.www.ifpi.org

Australian Government to allow legal copying of consumer’s own collections of music whilst in the UK NCC lobbies for same right
Copyright , Internet , Record Labels / June 2006
Australia

COPYRIGHT Internet, record labels Music fans will be able to legally record their CD collections onto iPods and MP3 players under a raft of proposed changes to Australian Federal Laws. Taping TV and radio programs and using copyright material for parody or satire will also be legalised as part of the reforms. The Australian Government plans to introduce new enforcement measures to combat piracy. The changes are part of a major overhaul of copyright laws announced by Attorney-General Philip Ruddock in response to millions of Australians who effectively break the law every time they reproduce copyright material for personal use. The key changes relate to the recording of copyright material from CDs, audio tapes or vinyl records onto an MP3 player or home computer. Under existing laws, people copying material risked being sued by the copyright owner. The changes include: The legalisation of ‘time-shifting’ of TV and radio broadcasts; The legalisation of ‘format shifting’ e.g. music on CDs to MP3 players. This exemption isn’t limited to musical works, and would cover books and magazines too; New defences allowing schools, universities, libraries and other cultural institutions to use copyright material for non-commercial purposes; Provisions to allow the disabled access to copyright…

Marley bass player loses claim
Jamaica
UK
USA

COPYRIGHT / CONTRACT Record labels, artists Marley bass player loses claim : Aston Barrett v Universal-Island records and Others [2006] EWHC 1009 (Ch) Aston Barrett, the bass player for Bob Marley and the Wailers, has lost a £60 million ($113.6 million) lawsuit over royalties and songwriting credits against Island Records and the Marley family. Barrett testified that he and his brother Carlton Barrett, a drummer for the reggae band who was murdered in 1985, did not receive the money they were due following Marley’s death from cancer in 1981. But Mr. Justice Lewison dismissed the suit on May 15 in a ruling at London’s High Court. Barrett will be liable for court costs. The Barrett brothers played on numerous Marley albums, including “Natty Dread,” “Rastaman Vibration” and ” Babylon by Bus”. They joined the band after Peter Tosh and Bunny Livingstone left – the Barrets had already achieved major success with their own band The Upsetters. The law suit claimed royalties owed under a 1974 contract with Island Records together with Aston Barret’s claims for songwriting royalties on songs he co-wrote with Marley. Whilst the band originally shared equally it was alleged that a new agreement was made in 1976 whereby Marley would take 50% of record…

Apple Computers survive assault from The Beatle’s Apple Corps
Contract , Internet , Trade Mark / June 2006
UK

TRADE MARK / CONTRACT The internet, technology, all areas Apple Computers survive assault from The Beatle’s Apple Corps: Apple Corps Limited v Apple Computer, Inc. (2006) EWHC 996 (Ch) Apple Corps has lost its High Court action in the United Kingdom to prevent Apple Computers using the mark (name) Apple in connection with it’s iTunes online music store. Mr Justice Mann held that the ongoing use by the computer company has not broken a 1991 deal aimed at ensuring there would not be two ‘Apples’ in the music industry. The first agreement between the parties was in 1981 concerned the use and registration of the word “Apple” and various apple logos. Mann J said “I do not need to set out the detailed terms of that [1981] agreement. In general terms, Computer was allowed to use its marks in relation to computer goods and services, but not use them in relation to computer equipment specifically adapted for use in the recording or reproduction of music, or in relation to operational services relating to music. It was also prevented from using its marks in relation to apparatus specifically designed and intended for synthesising music unless certain restrictions were met. Corps could use its…

Music Publishers file class action against online services
USA

COPYRIGHT Music publishing, internet 16 online music services including Apple, iTunes AOL Music, Sony Connect, RealNetworks and Napster are facing new legal actions. A number of music publishers including Euro Tec Publishing, Bruce Caplin, Prestoons Music have filed the action in the District Court of Los Angeles. Customarily licences are available so that publishers cannot refuse to license previously recorded and released songs, but it is argued that the online music services did not comply with the requisite formalities.

The Sony Rootkit Story
Copyright , Record Labels / June 2006
USA

COPYRIGHT Record labels, technology ARTICLE LINK – the Sony Rootkit story : Wade Roush asks how the world’s second-largest record label, Sony BMG, became one of the world’s largest distributors of malware in TR (Technology Review). http://www.technologyreview.com/read_article.aspx?id=16812&ch=biztech A Federal judge has now approved the settlement in the case. District court judge Naomi Reice Buchwald granted final approval for a settlement ordering that consumers will receive new malware and vulnerability-free CDs, a patch to remove the offending XCP or MediaMax code, and Sony will be dishing out free downloads. http://www.theregister.co.uk/2006/05/23/sony_rootkit_settlement/

Agassi: Game, set and match to the Revenue by Euan Lawson, solicitor
Artists , Taxation / June 2006
UK
USA

TAXATION Artists ARTICLE André Agassi lost his long-running legal battle with the Revenue yesterday.  By a 4 to 1 majority, the House of Lords overturned the earlier Court of Appeal decision and ruled against Agassi in his contention that he had no personal liability to UK income tax in respect of certain endorsement income relating to appearances at tennis tournaments (including Wimbledon) in the UK. Agassi, who is neither resident nor domiciled in the UK, traded through a personal services company, Agassi Enterprises Inc., a company controlled by himself and incorporated in the USA.  It received endorsement payments from Nike Inc. and Head Sports AG (neither of which had a tax presence in the UK). Agassi had argued that, even though a portion of the endorsement payments could be directly connected with his performance at tennis tournaments in the UK, he had no tax liability because the relevant legislation provided that his liability to tax was contingent on the payers being subject to a UK withholding obligation.  Since the payers had no tax presence in the UK, they could have no withholding obligation because of the so-called “territoriality principle” which states that, unless the contrary is either expressly stated or…

3500 file swappers targeted in Germany
Copyright , Internet , Record Labels / June 2006
Germany

COPYRIGHT Record labels, internet The biggest single action against illegal file-sharing internationally has taken place in Germany today as 3,500 illegal music file-sharers faced criminal prosecution for uploading large amounts of copyrighted material on peer-to-peer networks. Investigators identified individual illegal music file-sharers who were using the eDonkey network to offer up to 8,000 copyright infringing music files on the internet.  Each of the individuals now faces both criminal prosecution and claims for compensation for their actions under civil law.  They are likely to face damage claims of up to several thousand euros for distributing music on file-sharing networks according to the IFPI. Police searched 130 premises to gather evidence in the investigations, which have been running for several months. The actions were coordinated by the Public Prosecution Service of Cologne and the Police Authority of Bergheim. In Germany, legal physical sales of music have fallen by a third in five years, while more than 400 million music files were downloaded illegally in 2005 alone and the German recording industry has taken high-profile actions against file-sharers since early 2004.  They are part of an international campaign that has seen more than 7,000 legal proceedings brought against uploaders in the last three…

Does Top Of The Pops need a licence?
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

Da Vinci Code did not copy earlier work
Copyright / May 2006
UK

COPYRIGHT Publishing, television, film Da Vinci Code did not copy earlier work: Baigent & Leigh v Random House Group Limited EWHC 719 (Ch) Random House, publisher of Dan Brown’s best-selling novel ‘The Da Vinci Code’, was cleared at the High Court in London on Friday 8 th April 2006 of infringing copyright after two rival authors had claimed their ideas had been stolen. The court held that Brown did not copy from an earlier work with similar story lines when writing his best selling book. The Claimants, authors Michael Baigent and Richard Leigh wrote ‘ The Holy Blood and The Holy Grail’ (HBHG) some twenty years earlier. The ruling also removes any doubt surrounding the release of film based on The Da Vinci Code film which is due in cinemas next month. Mr Justice Peter Smith said the concept that their book had a ‘central theme’ was “artificial” and had been created solely for the purposes of the legal action. This identified 15 key points which the claimants say Brown had copied and the Judge held that “accordingly there is no copyright infringement either by textual copying or non-textual copying of a substantial part of HBHG by means of copying the central themes”. He said…

New Hungarian copyright model is food for thought
Hungary

COPYRIGHT Internet, record labels, music publishing Hungary’s National Association for Consumer Protection (NACPH), a not for profit, politically independent non governmental organization (NGO) in Hungary has published an agreement with Hungary’s Socoiety Artisjus Hungarian Bureau for the Protection of Authors’ Rights (ARTISJUS) the Hungarian association of composers, lyricists and music publishers. As P2PNet report “it’s refreshing to come across an agreement between artists and music lovers in which strenuous efforts appear to have been made by both sides to be fair and reasonable”. Amongst other things, the accord states that “ If commercial exploiters of music restrict the playing or use of musical recordings via technological measures, it should only take place by means accepted by consumers as well. This is the only way to communicate music to the widest possible public which is a primary interest of authors and that “consumers are to be protected when they copy music for their private needs, even if they use an illegal source in good faith. Private copying is fair and not contrary to the general requirements of copyright exceptions as long as it does not exceed the extent needed for one’s own enjoyment of works and that of the family or close friends,…

Dutch Court enforce creative commons licence Curry v Audax Publishing BV
Copyright / May 2006
Netherlands

COPYRIGHT All areas LJN: AV4204, Rechtbank Amsterdam, 334492 / KG 06-176 SR A Dutch court has decided that the use of photographs went against the stated terms of a creative commons licence which they were made available under could result in a claim in Dutch law. The Dutch magazine, Weekend, used photographs taken from the photographer’s Flickr public website . The photographs were published under a Creative Commons licence which did not permit commercial re-use: There was a link to this licence on the webpage. The photographer, Adam Curry, sued Weekend’s publishers, Audax, for copyright infringement in the Netherlands. Audax argued that it was misled by the flickr notice ‘this photo is public’; that the link to the CC licence was not obvious; and that the magazine had acted in good faith. Audax also claimed that (even if they were liable) no damage could have occured as the photos were freely available to the public on the Flickr site. The Court rejected Audax’s defence, holding that the effect of the link to the Creative Commons licence was that the limitations in that licence applied and the photographs were not in the public domain. The Court awarded damages of €1000. From an article by Jonathan Mitchell QC on the…

Confusion Reigns in Conflicting Keyword Internet Search Cases
Internet , Trade Mark / May 2006
USA

TRADE MARK Internet The US District Court for the Southern District of New York has dismissed trade-mark infringement allegations made by Merck & Co Inc (Merck) against several Canadian online pharmacies.  The pharmacies purchased “Zocor”, the name of Merck’s cholesterol reduction drug, as a keyword to trigger the display of links to the online pharmacies’ web sites on search result web pages. The Court held that: “The ‘Zocor’ mark is ‘used’ only in the sense that a computer user’s search of the keyword ‘Zocor’ will trigger the display of sponsored links to defendants’ Web sites,” and found that: “This internal use of the mark ‘Zocor’ as a key word to trigger the display of sponsored links is not use of the mark in a trademark sense.” Allegations of trade-mark dilution and false advertising against the online pharmacies were not dismissed and will be considered at a later date. The Court’s decision contradicts a recent ruling in the District Court for the District of Minnesota (Edina Realty Inc v TheMLSonline.com) which held that a purchase from a search engine of keywords which were variations of Edina Realty’s business name to trigger advertisements by a competitor was a “use in commerce” and,…

The Rise of Clip Culture
Copyright , Internet / May 2006
Canada
EU
Japan
UK
USA

COPYRIGHT Television, internet ARTICLE LINK – By Professor Michael Geist. Michael holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached at mgeist@uottawa.ca The popularity of the websites that allow people to share short video snippets is leading to the rise of a clip culture, writes internet law professor Michael Geist. But services such as YouTube, which streams 15 million videos each day, face the anger of copyright owners when clips from existing TV programmes – which of course include music promo videos and clips from concerts – are put up in the site. http://news.bbc.co.uk/1/hi/technology/4825140.stm

The All Ages Dance Ordinance “Initially Hailed – The City Dance Law Doesn’t Mean Much These Days”
USA

HEALTH AND SAFETY Live Event Industry ARTICLE LINK –  By Sharon Pian Chan in the Seattle Times An interesting tale of well meant but useless regulation, based on permits for venues meant to promote safer clubs. Seattle officials boasted four years ago they had found a way to protect their youth from sexual predators, alcohol and drugs at dance parties. The All-Ages Dance Ordinance would require anyone who holds a dance admitting kids younger than 18 to apply for a City permit, undergo a criminal background check and hire a certain number of security guards. It transpires that the permits are rarely applied for and breaches are even more rarely enforced: even a city funded teen venue doesn’t hold a permit! http://seattletimes.nwsource.com/html/localnews/2002916280_raves07m.html

Illegal doormen and late night takeaways targeted in UK
UK

HEALTH & SAFETY / LICENSING Live event industry An operation inspecting nightclub and pub door bouncers across South Wale s found 31 working without a licence. More than 600 door supervisors were spoken to in a check of 223 licensed premises on Saturday 25th March according to a report from the BBC. Police and the Security Industry Authority (SIA) acted after concerns raised by the public. Pubs and clubs in Cardiff, Barry, Merthyr, Pontypridd, Bridgend, Neath, Port Talbot and Swansea were all visited at the same time. By law, door supervisors must obtain an SIA licence. Those without one are committing a criminal offence, which carries fines of up to £5,000 or six months prison sentence. And local authorities have begun to use provisions of the Licensing Act 2003 to close down fast food outlets which are magnets for late night trouble. The Warwick Pizza and Kebab shop in Carlisle, Cumbria, was refused a post 2am licence to serve hot food. Police said that the area around the takewaway were ‘without a doubt’ the city’s worst area for alcohol related violent crime. 48 incidents were reported last year to November 24th. And in Blackpool the Funny Boyz takeaway has been closed at a specially convened meeting…

Punch Taverns has drops plans for a judicial review against Leeds City Council
UK

HEALTH & SAFETY / LICENSING Live event industry Punch has dropped claims that the conditions placed on four of its pubs in the city, which included the fitting of a fire alarm in one premises and a requirement to carry out safety checks at another, were unlawful under the Licensing Act have failed. The High Court upheld the magistrate’s appellate decision of September 7 2005 itself upholding the Local Authority’s position that the conditions on the licence were not “unnecessary or disproportionate” (The Publican, September 19). Punch had been pressing for a judicial review of the case in London’s High Court, but last week pulled out, saying it was “better to try and work with Leeds Licensing Authority outside of the courts”.

JD Wetherspoon loses appeal over Guildford pub
UK

HEALTH & SAFETY / LICENSING Live event industry JD Wetherspoon loses appeal over Guildford pub: Regina (J D Wetherspoon Plc) v Guildford Bourough Council The Times 14 April 2006 Pub chain owner JD Wetherspoon has lost its High Court challenge against Guildford Borough Council. The company wanted the high court to overturn a decision by the local authority that effectively blocked its Lloyds No 1 pub gaining a three-hour extension. Guildford Council blocked the extension after claiming in contravened its cumulative impact policy. Wetherspoons had insisted the policy should apply only to new premises – the Rodboro Buildings venue was converted from an existing JDWetherspoon pub (and coincidently is next door to the Academy for Contemporary Music where the Editor of Music Law Updates has taught!). Lawyers for Wetherspoon argued that the Guildford licensing authority’s refusal to grant its application was undermining the new licensing regime. Sir Richard Beckett, QC, for the pub chain, claimed that the council was effectively enforcing the old 11pm closing time by the back door and said that the council’s policy was contrary to the 2003 Licensing Act. He argued that the authority had adopted a “cumulative impact policy” for Bridge Street because of the…

Select Committee and Better Regulation Commission both damn DCMS role in new licensing regime
UK

HEALTH & SAFETY / LICENSING Live event industry A new Select Committee report damns the Department of Culture Media and Sport’s poor management of the introduction of the new Licensing Act 2003 and warns that this must not be repeated when the UK’s new gambling regime is introduced. The cross-party select committee said that pub landlords, councils and residents were put under “unnecessary stress because of late guidance, inconsistent advice and unclear information from the department”. Committee chair Phyllis Starkey said that the “dilatory” approach of Culture Secretary Teresa Jowell’s department was “completely unacceptable” and concluded it “failed to administer the transition period effectively”. The responsible minister is James Purnell MP. Shadow Secretary of State for Culture, Media and Sport, Hugo Swire MP, added this: “Clearly the Government’s handling of the new licensing laws has been a shambles, and it is local authorities, village halls and community centres who are left to deal with the mess and the bill. Ultimately, council taxpayers will be left paying for the Government’s mistakes. At times, the Department has seemed gripped by inertia and has refused to see the scale of the chaos before them. Most worrying is the admission that some licence applications…

Police bid to defy CPS advice over absent licence-holders
UK

HEALTH & SAFETY / LICENSING Live event industry South Yorkshire Police are hoping to prosecute a Barnsley licensee for going on holiday and leaving a person in charge who did not hold a personal licence to sell alcohol – despite advice from the Crown Prosecution Service (CPS) that “no offence had taken place”. The Publican reports that the police policy is against guidance from the Department for Culture Media & Sport (DCMS) and LACORS, the local authority co-ordinating body. The case revolves around Tracy Elrington, who was forced to return from a holiday in Spain after her pub, the Mount in Barnsley, was the subject of a closure order because there was no one with a personal licence was present to sell alcohol at the premises.There is some confusion over whether the holder of the premises licence, who must authorise the sale of alcohol, need be present. This is coupled with the fact that closure orders are available to the police where there is disorder, or an imminent risk of disorder, breaking out. So the problem with the Police’s view is that the move to prosecute is a difficult one to justify: Admittedly there seems to be a lack of clarity in the…

Edinburgh Fringe venues fear closure as cost of licences soar
UK

HEALTH & SAFETY / LICENSING Live Event Industry Fringe venues might be forced to shut down because of “crippling” increases in their licences introduced by Edinburgh City Council. Organisers at Fringe venues believe the move will jeopardise the very existence of the Festival, discouraging artists from performing in Edinburgh. The amended licensing law will affect not only performing and outdoor Fringe venues, but also a wide range of businesses across the city, as varied as riding schools, sex shops, zoos, indoor sports or late-hours catering. For small venues of fewer than 200 seats, the fee for a temporary performance licence has jumped to £440 from £127 in 2005. The fees will increase to £620 next year and will then jump to £800 in 2008. Larger venues of more than 1,000 seats will pay £1,320 this year, compared with £295 in 2005, while in 2008 they are expected to pay as much as £2,400. Edinburgh City Council said the authority had been operating at a deficit of £177,000 and had to recover the losses. The Council has pointed out that that following the Civic Government (Scotland) Act, which came into force in 1998, licensing schemes had to operate on a cost-recovery basis The Scotsmanwww.Scotsman.com 8…

Bombay court lifts ban on bar dancing
UK

HEALTH & SAFETY / LICENSING Live event industry The High Court of Bombay has recently lifted a ban on dancing in bars which had put 75,000 bar dancers out of work, had hundreds more arrested and lost the bar owners substantial amounts of money after income dropped in the aftermath of the Maharashtra State Governement’s decision. Over 700 bars in Bombay and 600 in the state were forbidden to have women dancing to Bollywood hits as entertainment for mostly male customers. The Government can appeal the decision to the Supreme Court in India. The High Court ruled the band discriminated against the dancers. The Times 13 April 2006

Massive Police raid threatens the Fridge’s future
UK

HEALTH & SAFETY / LICENSING Live event industry A massive raid by the Metropolitan Police has meant that the Fridge Nightclub may be forced to close its doors. The Met wants to make the owners of the Fridge club, in Brixton Hill, reapply for their licence. A police spokeswoman said officers intended to apply for the review of the club’s premises licence under section 51 of the Licensing Act 2003. The move follows a two-month undercover operation by the Met’s clubs and vice unit targeting dealers working in the club. Intelligence received led to 200 officers storming the club’s Polysexual night at 11pm on Saturday 22nd April. Eleven arrests were made and three men will appear at Horseferry Road Magistrates’ Court charged with supplying class-A drugs. the Licensing Act 2003 introduced additional powers for local authorities and the police and gave local people a chance to have their say Anyone living or trading within the vicinity of a newly licensed premises can apply for a review of the licence if they can show that public safety is at risk or it is causing an increase in crime and disorder or public nuisance . http://society.guardian.co.uk/drugsandalcohol/story/0,,1755314,00.html

Testing times for new clout on licensing
UK

HEALTH & SAFETY Live event industry ARTICLE LINK By Cllr Jonathan Myerson A fascinating ‘insiders’ view by a Labour councillor of a licensing decision at Local Authority level (in the London Borough of Lambeth where the Fridge is located, see above) on whether or not to permanently close a venue with violence and drug problems. http://politics.guardian.co.uk/localgovernment/comment/0,,1761572,00.html#article_continue

Canadian court happy to enforce US copyright infringement judgement
Copyright , Internet / May 2006
Canada
USA

COPYRIGHT Internet ARTICLE LINK By Kenneth A Dekker Citing the internet’s unique potential “to cause harm anywhere and everywhere”, Madam Justice Lax of Ontario’s Superior Court of Justice enforced a New York District Court judgment earlier this month against the operators of Ontario-based websites that facilitated the illegal copying and downloading of movies. As the New York court had properly taken jurisdiction and the defendants could establish none of the very limited defences to enforcement, such as a denial of procedural natural justice, fraud or public policy reasons, the judgment was enforced. http://www.mondaq.com/news.asp?e=1&a=39148

Artist re-sale bill introduced in Australia
Copyright / May 2006
Australia

COPYRIGHT Fine art ARTICLE LINK By Orana Swan and Justin Fung The Artist’s Resale Rights Bill 2006 (Cth) is expected to be introduced soon into Parliament. The Bill seeks to grant artists a share of the resale price each time their work is resold. Resale royalties seek to reward artists as the value of their work increases, which usually occurs after the initial sale by the artist http://www.mondaq.com/news.asp?e=1&a=39054 For the UK position see the article application of artist re-sale rights by Emma Stoker, solicitor ( Artist’s Resale Right Regulations 2006 ) in www.musiclawupates.com April 2006 archive.

Apple vs Apple By By Nancy B. Adams, MacNewsWorld
USA

CONTRACT / TRADE MARK Internet, record labels ARTICLE LINK  A neat update on the current litigation over the Apple mark which is primarily centered on the agreement between Apple Computers and the Beatle’s Apple Corp in 1991 where the computer firm said it wouldn’t use the Apple mark in connection with the distribution of music …. “It’s an interesting contract interpretation question, since today’s understanding of what is content versus services seems not to have been the understanding at the time the language was agreed upon” http://www.macnewsworld.com/story/K8HE5jy5zmMirn/Logo-Lawsuit-Could-Get-Sticky-for-Apple.xhtml see also http://makeashorterlink.com/?U1892450D and see the article Apple SuesApple Again by Katherine McGinnis in E-Tips Volume 4 No 21 www.dww.com

Extend the term: Royalty Rights for Musicians
Copyright , Record Labels / May 2006
UK

COPYRIGHT Record labels ARTICLE LINK;  A useful synopsis with a slightly misleading headline – its royalty rights for labels at the moment! http://news.bbc.co.uk/1/hi/entertainment/4918214.stm See also the article by Ben Challis on this topic ‘Extending The Term’ in the ARTICLES section on this website

The economics of piracy
UK

COPYRIGHT Record labels, music publishing, internet ARTICLE LINK –  Adam Singer , CEO of the MCPS-PRS Alliance makes some sensible comments about the economics of piracy – and Adam points out that in the main issue is about pricing – with a clever lesson from history – “In 1784, William Pitt the Younger had the same problem with tea smuggling. The duties were high and there was much rhetoric about a moral duty to pay. Pitt tackled this by reducing the import duty on tea from 119% to 12.5%. The smuggling of tea ended overnight, revenues from duties rose, and he neatly illustrated that smuggling (or piracy) was more to do with economics than morality” http://www.mcps-prs-alliance.co.uk/link/main.asp?pid=4787&sid=834

Apple face new patent claim
Internet , Patents / May 2006
USA

PATENTS Internet More fun for Apple (computers)! Added to the trade mark claim from Apple Corp, M&C Tech report that Burst.com Inc. has filed a counterclaim against the computer company alleging that Apple’s iTunes Music Store, iTunes software, iPods, and Apple QuickTime applications for infringing on four of Burst`s 10 U.S. patents. The Santa Rosa based developer of fast streaming media technologies filed the counterclaim in the San Francisco Federal District Court in response to a suit filed by Apple back in January of this year. Apple sought a declaration that Burst`s patents are invalid and Apple does not infringe on them; Burst’s counterclaim appears to be and either/and/or: Either Apple pay royalty fees for the infringing products and/or an injunction against further infringement. Burst won a settlement in a similar dispute with Microsoft in March 2005 with the PC giant paying Burst $60 million for a non-exclusive license for Burst’s patents. In Burst’s new April 17th filing to the federal district court, it alleges that Apple has infringed on its patents 4,963,995; 5,995,705; 5,057,932 and 5,164,839 that were filed from 1990 to 1992, claiming Apple’s success is crucial on the audio and video-on-demand media delivery solutions. The patents include specific apparatus or methods developed by Burst on…

France shows law-makers how not to intervene in technology issues
Copyright , Patents / May 2006
France

PATENTS, COPYRIGHT Technology ARTICLE LINK: by Professor Michael Geist . In our second link to articles by Professor Michael Geist, here Professor Giest examines the recent legislative moves in France to ensure there is interoperability between digital products – in effect Apple will have to open up its technology and software to allow competitors make compatible devices: Because of this iTunes have threatened to pull out of the French market because of a law promoting ‘state sponsored piracy’. Geist argues that the “intersection between law and technology is particularly challenging when legislators seek to regulate or tinker with technology. Businesses may fear overregulation and a global rush to match the French parliament’s recent foray into mandated compatibility, but a sound policy designed to protect competition and consumer rights is in everyone’s best interests” http://www.canada.com/ottawacitizen/news/technology/story.html?id=27936de8-dcea-4503-91ae-9d5858bffd85

Fort Lauderdale pirate station shut down
Media / May 2006
USA

MEDIA Radio Agents with the Florida Department of Law Enforcement have shut down a Fort Lauderdale based creole / carribbean music broadcaster Sak Pase Compas – the seventh pirate station the FDLE has dismantled in a year. Junior K. Pierre (41) of Fort Lauderdale, and Willem Michel (32) of Lauderhill, were arrested and charged with operating an unlicensed radio station. Officers seized the station’s radio equipment, including a transmitter, mixing board, CD’s and microphones, she said. Pirate stations are frowned upon as they (a) block and/or interfere with licensed stations (b) could block emergency / public safety messages and (c) interfere with other broadcasts. The Miami Herald reports that the FDLE recently confiscated pirate radio equipment in after airline pilots complained it interrupted their transmissions. Florida anti-piracy law went into effect last summer, making interfering with signals from licensed public or commercial stations, or broadcasting without a license a third-degree felony. The Fort Lauderdale case began in March with a complaint from the Federal Communications Commission that was forwarded to FDLE. The FCC regulates radio stations in the United States and is currently investigating ‘payola’ claims against four of the USA biggest radio groups. http://cbs4.com/topstories/local_story_111164222.html

EU to propose new piracy laws
Copyright , Record Labels / May 2006
EU

COPYRIGHT Film, television, record labels The European Commission is to recommend common European sanctions against counterfeiting and piracy of goods, including custody provisions of at least four years in prison and fines between E100,000 and (£70,000) and E300,000 (£210,000). Other possible measures are the confiscation or destruction of the objects, and a permanent or temporary ban on offenders from engaging in commercial activities. The seizure of counterfeited goods at the borders of the European Union increased by 1,000 percent between 1998 and 2004, with 103 million counterfeited and pirated items seized in 2004, Commission figures show. The EU says that different penalties in the 25 EU countries make it difficult to combat counterfeiting and piracy effectively. The draft legislation deals only with sanctions for infringements as physical product and does not cover the downloading of music via the Internet for private use.http://today.reuters.co.uk/news/newsArticle.aspx?type=internetNews&storyID=2006-04-25T164059Z_01_L25506524_RTRIDST_0_OUKIN-UK-EU-PIRACY.XML

Is the EMI/Universal ‘Napster’ litigation about to backfire on the majors?
USA

COMPETITION / COPYRIGHT Record labels US district judge Marilyn Hall Patel has ordered Universal and EMI to hand over privileged documents relating to a federal government antitrust probe into the major record labels failed online services Pressplay and MusicNet. That investigation started in 2001 and was abandoned in 2003. At the heart of this demand for new documents is the question of whether or not EMI and Universal colluded on Pressplay and MusicNet in such as a way as to ‘discourage digital downloading’ – thereby protecting their CD business. The original claim in this case stems from the ongoing 2003 proceedings resulting from Bertelsmann’s investment in the original ‘illegal’ Napster. EMI and Universal took legal action against the Bertelsmann investment, arguing that the investment kept the original Napster running for longer than it could have done on its own thereby exacerbating online copyright infringements. However the requirement by Judge Patel is rather interesting – looking beyond the core issue in the case (the illegality of Napster’s services) and rather looking at the legality of the plaintiff’s business activities in as much as they are relevant to the case. It is not the first time the idea that the majors actively…

The ‘unintended consequences’ of the DCMA
USA

COMPETITION/COPYRIGHT Internet, record labels, film, television ARTICLE LINK: By Timothy B Lee Pointing out that the modern PC industry wouldn’t exist without ‘reverse engineering’ and multi platform compatibility (Microsoft’s dominance accepted!) this article explores the unintended consequences of the US’s Digital Millennium Copyright Act. Congress passed the Digital Millennium Copyright Act (DMCA) which includes a clause prohibiting the “circumvention” of digital rights management schemes. It is a federal crime to transfer a protected DVD to your iPod for example. Congress hoped to deter piracy. But the practical effect has been rather different. The DMCA gives incumbents a powerful weapon against competitors seeking to build products that are compatible with their own. If they refuse to license their copy protection schemes to competitors, any compatible device a competitor might build is likely to be ruled a “circumvention device” under the DMCA, even if it’s never used for piracy. That allows the platform creator to effectively control who may create devices for that platform. http://www.heartland.org/Article.cfm?artId=18902