Door staff ‘liability nightmare’ after Court of Appeal’s decision in Hawley v Luminar
UK

HEALTH & SAFETY / LICENSING Live event industry The Court of Appeal has followed the recent trend in extending vicarious liability for employees in the case of Hawley v Luminar (2006). It now seems that pubs and clubs may be responsible for the actions of door supervisors even if they do not directly employ them. It is already established law that if an employee, acting in the course of their employment, injures another, even if that employee’s actions go well beyond what they are trained or employed for for, their employers may well be held vicariously liable for their acts and will have to meet any consequential award of damages (see Mattis v Pollock t/a Flamingos Nightclub Times Law Report 16th July 2003 and archive Music Law Updates December 2003). In Hawley v Luminar the door supervisor was employed by an outside contractor but the court upheld the original judgment that as he had been seconded to club owner Luminar, Luminar had responsibility for his actions even though his immediate employer had the right to hire and fire and also paid his wages. In reaching this conclusion the court carefully considered who had control – and therefore responsibility for – the doorman’s actions. It…

West and Ludacris wrap up victory in plagiarism trial
Copyright , Music Publishing / July 2006
USA

COPYRIGHT Music publishing Rappers Kanye West and Ludacris have won a copyright infringement case when a jury concluded their 2003 hit ” Stand Up” did not copy Straight Like That by New Jersey musicians IOF. Ten jurors returned the verdict after less than a day of deliberations in the two-week trial in U.S. District Court in Manhattan. Ludacris said he never doubted the jury would agree that the song he and West created did not sound like ” Straight Like That”. IOF’s (It’s Only Family) ” Straight Like That” never made it beyond some air time on college radio after copies of it were released in September 2001. ” Stand Up” was released in the fall of 2003 on Ludacris’ album ” Chicken and Beer” and became a huge hit. At the trial West had told the court that it was not unusual for both songs to use the phrase “like that” and that phrases such as “yo, whats up”, “throw your hands high” and “like that” woud be found in a lot of rap and hip-hop songs. The cliamants lawyer, Mel Sachs, had said that the words “like that” were used more than 50 times in each song. Jeff Billingsley, a plaintiff and owner of…

AllofMP3.com is illegal says music industry
Copyright , Internet , Record Labels / July 2006
Russia

COPYRIGHT Record labels, internet ARTICLE LINK:  A hugely popular seller of music downloads is illegal, according to the music industry, and prosecutions are underway. AllofMP3.com, a Moscow-based service that undercuts iTunes by enormous margins, was accused today of paying nothing to artists. But the website claims everything on the site is licensed by the Russian Multimedia and Internet Society (ROMS) and the Rightholders Federation for Collective Copyright Management of Works Used Interactively (FAIR). Site owner MediaServices says that it pays licence fees “subject to the Law of the Russian Federation.” It adds that it is not responsible for the actions of foreign users – though the site is in the English Language! This article is on the Pinsent Mason’s OutLaw website at http://www.out-law.com/page-6956 Also see http://money.independent.co.uk/personal_finance/invest_save/article754352.ece Would a UK court victory help? See further details on this athttp://www.theregister.co.uk/2006/06/08/allofmp3_lawsuit/ See also the ARTICLE AllofMP3 Running Out of Time? By Eric Bangeman athttp://arstechnica.com/news.ars/post/20060530-6943.html

The end of peer to peer file swapping
Copyright , Internet , Record Labels / July 2006
EU
UK
USA

COPYRIGHT Record labels, internet ARTICLE LINK:  A useful article by Paul Devinsky and Robert H. Rotstein who review the recent MGM v Grokster litigation and analyse the how this decision and the 1984 Sony Betamax case can sit together. http://www.mondaq.com/article.asp?articleid=40126&email_access=on

China begins to clamp down on file swapping
Copyright , Internet , Record Labels / July 2006
China

COPYRIGHT Record labels, internet China has announced a new law banning the uploading and downloading of pirated material over the Internet as well as the production, import and supply of any technology that aids piracy. Under the new regulation, those who infringe copyrights may be fined up to RMB 100,000 and the computer equipment involved may be confiscated. Internet companies will also be required by the government to provide contact information for owners of sites that distribute pirated material. The move is part of China’s efforts to curb rising piracy rates in the country according to Chinaknowledge.com and will put pressure on online companies such as Baidu.com, China’s leading search engine. Baidu has been sued by the major record labels because its search function violated their copyrights by allowing users to find MP3 files on the Internet. The EU Trade Commissioner Peter Mandelson has warned China that the EU expects it to improve its IP enforcement measures, to improve access to the market for European products and to ‘apply rather than circumvent the rules’. Although improvements have been made, the EU argues that China is still not meeting its TRIPs obligations and that if things don’t change, the European market…

Dutch courts hold deeplink search engine illegal
Copyright , Internet , Record Labels / July 2006
Netherlands

COPYRIGHT Internet, record labels The music industry’s global fight against websites offering links to illegal downloads has been boosted by an action against a ’deeplinks’ site in the Netherlands. The ruling against Techno Design “Internet Programming” BV, the operator of www.zoekmp3.nl, clarifies that making available a searchable website of deep links to unlicensed mp3 files for download is illegal in the Netherlands.  The judgement by the Dutch Court of Appeal, in favour of the anti-piracy organisation BREIN, overturns a June 2004 decision of the Haarlem District Court.  Similar websites have been found to be illegal in Australia (mp3s4free.net ) and China (Baidu).  The Dutch Court of Appeal ruled that Techno Design was aware that its mp3 search service referred systematically to infringing files and that it benefited commercially from this without taking into account the interests of content owners. Techno Design has been ordered to stop offering deep links to infringing mp3 files through zoekmp3.nl or any other website, and to pay costs and damages (to be assessed).  Failure to comply with this injunction will lead to fines of E10,000 per day, E1,000 per infringing file. The Court held that Making mp3 files available on the internet is illegal “publication” under…

BPI to tolerate private copying
Copyright , Record Labels / July 2006
UK

COPYRIGHT Record labels Under UK copyright law it is an infringement to make ANY copy of a protected work – even if you are copying your own CDs for your own use – except in strictly defined exceptions (such as fair dealing). The only other exception to this is copying or ‘time shifting’ broadcasts to watch later. However the practice of copying for personal is so widespread (and accepted as ‘legal’ by many music industry professionals) and the British Phonographic Industry (BPI) has now said it won’t pursue consumers who copy music from their CDs to listen to on portable music players. Giving evidence to the House of Commons Select Committee for Culture, Media & Sport inquiry into New Media and the Creative Industries yesterday, the trade body said it didn’t consider copying to different devices a problem as long as it was solely for personal use. The Chairman of the BPI, Peter Jamieson said that “traditionally the recording industry has turned a blind eye to private copying and has used the strength of the law to pursue commercial pirates” and added that “We [the BPI] believe that we now need to make a clear and public distinction between copying…

Live music and internet downloads face anti-trust scrutiny in the USA
USA

COMPETITION / COPYRIGHT Live Event Industry, record labels Clear Channel (Live Nation) has been accused of violating anti-trust laws by impinging on concert competition and pushing up ticket prices in the USA. The class action in Denver comes three months after the US Justice Department probe into similar accusations saw no action being taken against Clear Channel. In a separate action the major labels are being sued by a group of consumers in the US for allegedly fixing the price of digital downloads. According to the suit, the major labels, having failed to delay the online market with their own (failed) joint ventures, are now conspiring to keep the wholesale price of individual tracks at $0.70. It is also claimed that, as a result of this activity, the digital music retailers have squeezed the wholesale price offered to independent labels. The labels are alleged to have inserted anti-competitive clauses into their contracts with online music providers, forcing the providers to pay all the labels the same amount for their songs. http://business.timesonline.co.uk/article/0,,9071-2211881,00.html

APIG announces findings of its public inquiry into Digital Rights Management
UK

COMPETITION / COPYRIGHT Record labels, film & television, technology The United Kingdom’s All Party Parliamentary Internet Group (APIG) has released its report into Digital Rights Management (DRM). The Inquiry received over 90 written submissions from consumers, think-tanks, libraries, print media publishers, the film and music industries and lawyers. An oral evidence session was organised at the House of Commons in February when a cross selection of the respondents were invited to give evidence to APIG officers. Key points of the report were: A recommendation   that   the   Office   of   Fair   Trading   (OFT)   bring   forward appropriate   labelling   regulations   so   that   it   will   become   crystal   clear   to consumers what they will and will not be able to do with digital content that they purchase. A recommendation that OFCOM publish guidance to make it clear that companies distributing Technical Protection Measures systems in the UK would, if they have features such as those in Sony-BMG’s  MediaMax  and  XCP  systems,  run  a  significant  risk  of  being prosecuted for criminal actions. A recommendation that the Department of Trade and Industry investigate the single-market issues that were raised during the Inquiry, with a view to addressing the issue at the European level. A recommendation  that  the  government …

SIRA bill set to shake up royalty systems
USA

COPYRIGHT Internet, record labels, music publishing A US House of Representatives panel has approved a digital copyright bill that critics say could criminalise home-use copying of music and video recording devices like TiVo. The Section 115 Reform Act (SIRA) attempts to overhaul the complex US system of mechanical royalties for rights owners (artists, songwriters, labels, publishers). SIRA proposes establishing a “blanket licensing” system in which those entities would apply for and receive licenses through a one-stop shop. Established by the Copyright Office, that body would act as a representative for music publishing companies with the greatest share of the market. Supporters of the bill argue that such an approach would make it easier for online music services to secure speedier approval for vast libraries of music, opening up the possibility for new market entrants, greater selection and lower prices. In a joint statement, the Recording Industry Association of America, the Digital Media Association and the National Music Publishers Association said they had “much to gain” from the legislation but still hadn’t reached “complete agreement on all aspects” of it. On the other hand the Electronic Frontier Foundation, for its part, encouraged its visitors to call their elected representatives and make their dissatisfaction…

Norway takes a bite out of Apple
Norway

COPYRIGHT / COMPETITION Internet, record labels Norwegian consumers were already up in arms about iTunes’ digital rights management (DRM) system and the lack of interoperability between Apple and other platforms. But then some brave Norwegian souls read the iTune’s end user licence agreement (EULA). The Norwegian Consumer Council called the EULA “grossly unreasonable” pointing out that (amongst other complaints) it required Norwegian consumers to consent to English law while the music store reserves the ability to change the rights to the downloaded music even while disclaiming all liability for possible damage their software may cause. The Norwegian Consumer Ombudsman ruled that certain of Apple’s terms were illegal under Norwegian law and the Company has been given to June 21 st to amend its rules. Consumer Agency officials in Denmark and in Sweden have taken the same line. Apple has also been told in Norway that it must defend its DRM system, Fairplay, which restricts downloaded songs to being played on the consumer’s iPod. To be fair, its not just Apple – most EULA’s are wholly unreasonable and most online users ‘click to consent’ without ever reading the draconian terms they are agreeing to. But Norway has strong consumer protection rules…

French legislators to compromise on iTunes
France

COPYRIGHT / COMPETITION Record labels, internet The French National Assembly’s draft copyright bill which included the demand that companies such as iTunes and Napster share their copy-protection technology has been watered down. Currently tunes purchased at Apple’s iTunes Music Store won’t play on music players sold by Apple rivals. Likewise, an Apple iPod can’t play songs bought on Napster Inc. or other rival music stores. French consumer groups have called the restrictions anti-competitive and anti-consumer. But the compromise, approved by a committee of legislators from both houses, maintains a Senate loophole that could allow Apple and others to sidestep that requirement by striking new deals with record labels and artists. A new regulatory authority will be given the power to resolve disputes by ordering companies to license their exclusive file formats to rivals – but only if the restrictions they impose are “additional to, or independent of, those explicitly decided by the copyright holders.” This means that Apple, Napster and Sony could avoid having to share their protection formats such as FairPlay and ATRAC3 if they obtained permission from the artists whose music they sell. Apple had earlier indicated that it would close its French iTunes store rather than comply…

UK ’s Special Commissioner extends relief for agent’s fees
Artists , Taxation / July 2006
UK

TAXATION Artists In the United Kingdom the Inland Revenue has traditionally allowed tax relief for agents fees up to 17.5% of annual income for actors, musicians, singers, dancersand theatrical performers. But the Revenue argued that relief did not extend to television presenters who did not fall into any of the categories allowed. Channel 4 husband and wife presenters Richard Madeley and Judy Finnegan claimed this was wrong and the Special Commissioner agreed with them as he felt that they were theatrical performers. However the decision has left a rather large grey area over vwho is and who isn’t an entertainer – Chris Tarrant, presenter of Who Wants To be A Millionaire is said to be ‘borderline’ as he merely reads out questions and gives answers – perhaps he is not ‘entertaining enough’ – whereas Anne Robinson, acerbic presenter of the Weakest Link is ‘theatrical’ (and so can claim relief’) as can Jeremy Paxman when presentingUniversity Challenge. However the extent of the relief on the cost of agents for those not named as ‘actors, musicians, singers, dancers and theatrical performers’ in an employed situation (which could include DJs and sportsmen and women) is still unclear. The Times June 10 th 2006

US composers to get tax relief on catalogue sales
Artists , Taxation / July 2006
USA

TAXATION Artists. Composers Starting next year, composers will be able to claim capital-gains treatment when they sell a catalogue of their work. Current tax law treats such a sale as income and therefore liable to ordinary income-tax rates. This brings writers and composers into line with producers who already had the more favoured tax treatment. Originally called the Songwriters Capital Gains Tax Equity Act, later dovetailed into the Tax Reconciliation Act, the bill was passed after unusual lobbying from musicians who would take their guitars to Washington and sing songs to members of Congress and the US Senate. Buyers of catalogues are also now able to write off the song more quickly. The Bill is expected only to cost US $33 million over ten years. Tax on royalty payments remains unchanged by the new Act. http://www.delawareonline.com/apps/pbcs.dll/article?AID=/20060611/BUSINESS04/606110317/-1/NEWS01

Bush signs new decency legislation in the USA
Media / July 2006
USA

MEDIA Television broadcast, radio broadcast President Bush has signed legislation that will cost US broadcasters dearly when raunchy programming exceeds “the bounds of decency. The Federal Communications Commission can now fine a broadcaster up to $325,000 per incident of indecency. Approval of the bill culminates a two-year effort to get tough on sexually explicit material and offensive language on radio and television following Janet Jackson’s 2004 Super Bowl “wardrobe malfunction.” The FCC recently denied a petition of reconsideration from CBS owned stations facing $550,000 in fines over the Jackson incident, in which she briefly revealed a breast during a halftime concert. The agency recently handed down its biggest fine, $3.3 million, against more than 100 CBS affiliates that aired an episode of the series “Without a Trace” that simulated an orgy scene. That fine is now under review. The FCC has received increasing complaints about lewd material over the airwaves, and has responded with fines jumping from $440,000 in 2003 to almost $8 million in 2004. In an age of emailing just a few organized protestors can generate huge numbers of ‘complaints’. In the UK the BBC screening of Jerry Springer – The Opera sparked off a massive email protest to the…

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.