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…