Ongoing Management Commission gets Seal of Approval : Wadlow v Samuel
UK

CONTRACT Artists ARTICLE  By Charlie Anderson, Solicitor, Clintons  The Court of Appeal this week upheld the 2006 judgment in the case of John Wadlow v Henry Olusegun Adeola Samuel (pka Seal). The recording artist failed to persuade the Court of Appeal that a 1995 agreement ending his relationship with Mr Wadlow, his former manager, was procured by undue influence. The Court of Appeal dismissed the appeal on 28 February 2007 and confirmed the validity of   the contract for Mr Wadlow, who was represented by Clintons solicitors. Mr Wadlow discovered Seal in the 1980s and invited him to record some songs at Beethoven Street Recording Studios, which he then ran. In 1988 Seal signed a publishing deal with Mr Wadlow’s publishing company and in 1990 the pair signed a management agreement that provided perpetual post-term management commission to Mr Wadlow on the albums recorded during the life of the contract. In 1995, after the release of two highly successful albums, and as Seal’s career was increasingly based in the US, they amicably parted company and drew up a “settlement agreement” which terminated the management agreement. Under the settlement agreement Mr Wadlow made several valuable concessions, including the return to Seal of the publishing rights…

The top 10 ways copyright law can ruin your transaction
Copyright / April 2007
USA

COPYRIGHT All areas ARTICLE LINK By Robert S Gerber & Edwin Komen , Sheppard, Mullin, Richter & Hampton US Copyright law is full of exceptions and qualifiers, and many clients and lawyers have only broad understandings of the way copyright law works to protect the original expression of ideas. Copyright litigators see many deals go sideways because of client or attorney misunderstandings about copyright law. This is Mr Gerber and Mr Komen’s top ten! http://www.sddt.com/News/article.cfm?SourceCode=20070228cre

EC to investigate Sony-BMG merger
Competition , Record Labels / April 2007
EU

COMPETITION Record labels The European Commission has announced it is launching a new more detailed investigation into the 2004 merger of Sony and BMG’s record label operations which means competition regulators will now not rule on whether the merged enterprise, SonyBMG, can continue to operate in its current form until July 4th 2007 (now extended by two weeks). The EC is also considering the potential tie up of BMG Music and Universal Music. The EC had been forced to reconsider their approval of the SonyBMG merger after the European Courts of Justice annulled the approval last year. The annulment came after a case brought by independent label trade association IMPALA: IMPALA members have asked the EC to look at specific concerns about their reduced market access including the collective dominance of the majors and co-ordination of  competitive behaviour in retail, radio and television, press and other media, as well as in the vital on-line market. The independents also asked  the Commission to address other vital issues such as cultural diversity (which MEPs also recently highlighted as above), the  role of creativity and small business in the Lisbon strategy, vertical integration, links with sister publishing companies, unfair leveraging of repertoire and…

US radio stations settle with FCC in payola scandal
Competition , Record Labels / April 2007
USA

COMPETITION LAW Record labels Following from New York Attorney General Eliot Spitzer’s successful pursuit of the for major record labels in the US on payola charges, four major US broadcasters (Entercom, Clear Channel, CBS and Citadel) have been fined $12.5M by the Federal Communications Commission, bringing to an end the most recent probe into payola in the US media. The stations have also agreed to up their airplay commitment (of around 4,000 hours) to local and independent acts. While the broadcasters have admitted no wrongdoing, the deal is still subject to final FCC approval. A new set of regulations will also be put in place that will mean closer scrutiny of broadcasters’ dealing with record labels, a limit – as well as greater transparency – on the ‘gifts’ they can receive from labels, as well as the introduction of a “payola hotline” for radio employees to report abuses of the system (Five Eight magazine). The deal appears to close an embarrassing chapter for the music and radio industries. Mr. Spitzer’s inquiry disclosed how payloa payments had become widespread as label executives pressed to obtain exposure for stars. In some cases, label executives offered payoffs directly; in others, they hired middlemen…

IFPI to sue Yahoo! China
Copyright , Internet , Record Labels / April 2007
China

COPYRIGHT Record labels, internet The Asia branch of the International Federation of the Phonographic Industry has confirmed it is suing Yahoo! China for copyright infringement based on the search engine’s practice of providing links to unlicensed music download site. IFPI’s Asia Regional Director Leong May-Seey has confirmed that Beijing’s Intermediate Court has accepted the case, being brought against the web firm by eleven music companies, including all of the majors. It is worth noting that the IFPI is taking the action against Yahoo! China despite ultimately losing a similar previously reported case against China’s leading search engine Baidu last year. While the Chinese courts initially ordered Baidu to pay compensation to EMI for its MP3 search service which provided links to illegal sources of music, an appeal hearing in November overruled that decision ruling that Baidu could not be held liable for any copyright violation because it did not, itself, host any of the unlicensed content, it merely linked to the illegal sites. www.ifpi.org

Viacom launches infringement lawsuit against YouTube
Copyright , Internet / April 2007
USA

COPYRIGHT  Internet Media giant Viacom (parent company of MTV, Nickleodeon and Paramount) is seeking $1B in compensation against YouTube, claiming that 160,000 unauthorised clips have been uploaded and watched over 1.5B times on the video-sharing service. It is also seeking an injunction to prevent YouTube users from illegally uploading any more of its content. Viacom has alleged that YouTube has failed to implement sufficient filtering safeguards and that negotiations were “unproductive”. The legal battle is now moving up a gear as Viacom accuses YouTube of increasing  user traffic and upping ad revenues as a result of the use “unlicensed content [which] is clearly illegal and is in obvious conflict with copyright laws”. YouTube is now owned by Google which brought the user generated platform for $1.65 billion in 2006. It is not the first time YouTube have faced the threat of egal action. Major record labels such as warners and Universal threatened action but eventually entered into commercial relationships with the platform. It is expected that Youtube will use the ‘safe harbour’ provisions Digital Millennium Copyright Act (DMCA) of 1998 as a primary defence against Viacom’s claims although clearly the decision of the Supreme Court in MGM v Grokster will be an important factor here. http://www.nzherald.co.nz/section/story.cfm?c_id=5&objectid=10428914

Who owns the live music of days gone by?
Copyright , Internet / April 2007
USA

COPYRIGHT Television, internet Article Link: By Robert Levine, New York Times This interesting US article looks at the complex issue of ownership of archive TV recordings – especially where these now have a substantial value when incorporated into new formats such as DVD, downloads, Video on Demand, content for mobiles and internet streams: the article touches on the ongoing litigation over internet service ‘Wolfgangs’ Vault’ which is exploiting master tapes previously held in the private archive of legendary US promoter Bill Graham. Also see the item on Tom Jones above. http://www.nytimes.com/2007/03/12/technology/12video.html?ex=1331352000&en=21492fdaa6dfceef&ei=5088&partner=rssnyt&emc=rss

Jones sues over the release of 1981 TV soundtracks as CDs
Artists , Copyright , Record Labels / April 2007
UK
USA

COPYRIGHT Artists, record labels Tom Jones has begun legal proceedings against a Californian company called C/F International who, he claims, is illegally distributing sound recordings he made as part of a TV show in 1981. Jones and his company, Tom Jones Enterprises, is seeking to stop the licensing firm from distributing rights to sound recordings from the 24 episode Tom Jones Show. The legal papers apparently allege that (a) any licences granted related to TV use only – rather than use of the audio tracks in sound recording devices such as CDs and (b) have in all events terminated because of breach of contract. Also see the article link on TV archive in this months update. http://www.cmumusicnetwork.co.uk/

Music streaming rates rise in the US
Copyright , Internet , Record Labels / April 2007
USA

COPYRIGHT  Internet, radio, labels The United States Copyright Royalty Board has made public its increased royalty rates for sound recordings due to artists and labels for tracks used on streaming radio services. The monies will be administered by the collection agency Sound Exchange. Small Internet broadcasters will no longer be eligible for discounted fees (previously 12% of revenues). The new rate of 0.08 cents per track/per play will be retrospective to 2006 and will increase steadily, effectively doubling by 2010 to 0.019 cents. Streaming media companies and online radio stations also have to pay music publishing royalties. Small stations state they will either have to cut back on the music they play or risk going out of business. The Copyright Royalty Board was set up in 2004 to determine royalty rates for webcasters. Some 72M people in the US listen to online radio in the US each month – far ahead of the 14M satellite radio subscribers currently. There are also concerns that a rates rise will also negatively affect satellite broadcasters. They have a different royalty payment system in place with labels currently, but this too is up for renegotiation. http://www.latimes.com/business/la-fi radio7mar07,1,6444381.story?track=rss&ctrack=1&cset=true For the actual rates see http://www.dailytech.com/article.aspx?newsid=6361&red=y And seehttp://www.betanews.com/article/Record_Industry_Proposes_Huge_Streaming_Royalty_Fees/1173216492 However,…

Court of Appeal confirms the decision of Kitchen J in Nova Productions Ltd v Mazooma Games Ltd; Nova Productions Ltd v Bell Fruit Games Ltd[2007] EWCA Civ 219
Copyright / April 2007
EU

COPYRIGHT Video games, television This action revolves around claims by Nova that the defendants copied elements of arcade games it had designed, made and sold. Nova did not accuse any of the defendants of copying the software code of ‘Pocket Money’, but said the defendants infringed their copyright by copying their game’s screen appearance (the ‘outputs’). When asked to identify each particular similarity relied upon and to say how it was the result of an infringing act, Nova served a schedule of similarities and marked up screen shots to identify the relevant features. Kitchin J dismissed all Nova’s claims on the basis that there had been no reproduction of any of its work: * There was no substantial taking of any artistic skill and effort, program code or program architecture and the mere fact that there were similarities in the game’s outputs did not raise an implication that there were similarities in the software. * What had been taken was a combination of a limited number of general ideas that were reflected in the output of the program, but those ideas did not form a substantial part of Nova’s computer program itself. * The visual appearance and the rules of…

Court of Appeal dismisses appeal in Baigent & Leigh v Random House Group Limited[ 2007] EWCA Civ 247
Copyright / April 2007
UK

COPYRIGHT All areas The Claimants in this case were two of the three authors of a book published in 1982, The HolyBlood and the Holy Grail(HBHG). The Defendant is the publisher in the UK of a book written by Dan Brown, the Da Vinci Code (DVC), first published in 2003. The Claimants’ contention is that, in writing DVC, Mr Brown infringed their copyright by copying a substantial part of HBHG in the course of writing six chapters of DVC. The case came to trial over 11 days in February and March 2006 before Mr Justice Peter Smith. In his judgment, delivered on 7 April 2006, he dismissed the claim . The Court of Appeal have upheld that decision although the leading judgment of Lord Justice Lloyd was somewhat critical of the trial judge in places. The case reinforces the position in English law that copyright does not subsist in ideas; it protects the expression of ideas, not the ideas themselves. No clear principle is or could be laid down in the case law in order to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side. Where the material copied is…

CDWow! loses parallel importing case
Copyright , Record Labels / April 2007
UK

COPYRIGHT Record labels ARTICLE LINK:  A group of record labels has won its High Court case against online music retailer CD WOW!, which was found to have infringed copyright and been in contempt of court over an earlier order . This from the excellent Out-law site at http://www.out-law.com/page-7891 

Italian Court imposes heavy sentences for organised piracy
Copyright , Record Labels / April 2007
Italy

COPYRIGHT Record labels The Court of Appeal in Naples has imposed heavy jail sentences on members of an organised gang involved in major music piracy. Members of the gang were arrested in 1999 after an investigation carried out by the district anti-mafia attorney, the police and with the assistance of FPM, the Italian music industry’s anti-piracy unit. The head of the organisation, ‘A.C.’, was known as ‘The Emperor’ because of his market share in the pirate music business in Naples during the 1990s. ‘A.C.’ was found guilty and sentenced to three years and six months in jail for conspiracy to violate the copyright law. Seven other members of the gang faced prison sentences of between one year and six months and three years. The judge ordered gang members pay compensation and damages to the plaintiffs which will be agreed in a separate civil claim. http://top40-charts.com/news.php?nid=31296 

MPS v Murphy : The Greek Nova TV signal is held to be a UK broadcast – so a publican IS guilty of infringement by showing English football without paying Sky
Copyright / April 2007
UK

COPYRIGHT Television In the March 2007 Law Updates we reported on the case of MPS v Murphy as well as the case of FACT v Gannon. Murphy has now been heard on appeal with the Crown Court finding her guilty under s297(1) of the Copyright Designs & Patents Act 1988. Karen Murphy, of the Red, White and Blue public house in Southsea will face fines and costs of around £12,000. Murphy was found guilty in January of showing Premiership games via Greek satellite channel Nova at her pub. Murphy had been acquitted of the same offence once before because District Judge Arnold found she had not acted dishonestly – because she did not know she was breaking the law. Murphy continued to show the games and was prosecuted again and was found guilty on her second appearance by the same judge. Upholding District Judge Arnold’s decision, HH Judge Iain Pearson told Murphy today that he felt she knew what she was doing was illegal and she was “hiding” behind the legal advice of her solicitor. Judge Pearson, who sat with two lay justices, said: “In our view Murphy hid behind the legal advice as a convenient shield with which to hide her dishonesty .”…

New powers for Trading Standards in copyright infringement
Copyright / April 2007
UK

COPYRIGHT All areas At the moment, only the police have the power to enforce offences under the Copyright Designs and Patents Act 1988. Trading Standards will, as from 6 April 2007, also have powers to enforce copyright offences, including the power to make test purchases and to enter premises to inspect and seize goods or documents. The Criminal Justice and Public Order Act 1994 (Commencement No 14 Order 2007 C27 will now allow Trading Standards Officers to deal with copyright infringements under the CDPA. The powers and duties are under sections 107A and 198A of the CDPA. The Government has promised additional funding for Trading Standards Officers . Seewww.patent.gov.uk/cjpo1994.pdf

London Olympic Act 2006
Media / April 2007
UK

MEDIA All areas ARTICLE LINK  In this article Lee Fisher looks at the (somewhat draconian) measures set out in the London Olympic Act to protect official sponsors and prevent ambush marketing. http://www.mondaq.com/article.asp?articleid=42738&email_access=on

DCMA Architect lambasts music moguls
Copyright , Internet , Record Labels / April 2007
UK

COPYRIGHT Record labels, internet ARTICLE LINK: John Leyden, The Register Bruce Lehman, key architect of the controversial Digital Millennium Copyright Act (DMCA), has admitted that copyright protection law is failing. The Clinton-era Assistant Secretary of Commerce and Commissioner of Patents and Trademarks put most of the blame for the DMCA’s shortcomings on the recording industry. Read more here: http://www.theregister.co.uk/2007/03/26/dmca_pants/

Its no knickers – Dame Kiri wins cancellation case
Contract , Live Events / April 2007
Australia

CONTRACT Live event industry Opera star Dame Kiri Te Kanawa has won a court case in Australia after she cancelled a 2005 tour because she feared that she would be bombarded with underwear – as the planned co-headliner with Aussie veteran John (‘the Voice’) Farnham. Dame Kiri had seen a DVD of his shows where he caught underwear thrown by fans. Promoter Leading Edge had sued for A$2m (£815,000), claiming it had lost money on publicity costs and ticket sales but New South Wales Supreme Court Judge Patricia Bergin rejected the claim ruling that while there were emails in which venues, fees and air tickets for the proposed concerts were discussed, no firm commitment was made and no contract was finalized. Leading Edge said it had spent more than A$380,000 (£155,000) on preparations for the concerts, only to find that Dame Kiri’s agent former, Mr Grace, knew the singer was wavering on the performances but had failed to pass on the information. However Judge Bergin ordered Mattane, the company that employed Dame Kiri, to pay Leading Edge A$128,063 (£52,000) for costs incurred as the company had not been entirely honest in its dealings with Leading Edge. Comment: This type of case…

Apple Computers and Apple Corp end two decades of litigation
Trade Mark / March 2007
UK

TRADE MARK  All areas Apple Inc will now take full control of the Apple brand and license certain trademarks back to the Beatles’ record company Apple Corps for the Beatle’s companies continued use. The dispute dates back to 1980, when the late George Harrison noticed an advert for Apple computers in a magazine. In 1976 Apple Computer’s founder Steve Jobs had adopted a white apple on a black background – with a small bite taken out – as the fledgling company’s logo. Whilst now multicoloured this was very similar to Apple Corp’s own logo which was a ‘plump green Granny Smith’ apple. Harrison felt there was potential for trademark conflict between Job’s mark and Apple Corp trade mark. Apple Corp had been set up by The Beatles in 1968 to manage their business affairs from recording, merchandising and books. The legal battle over the trademark (both the name and the logo) will now end with the added carrot that Beatles’ tracks may now be finally available for legal download – and they are likely to be very popular! The sides reached a settlement in 1981 allowing Apple Computer to use the name as long as it stuck to computers, while The Beatles’…

Tom Waits reaches settlement over German car
Artists , Image Rights / March 2007
Germany

IMAGE RIGHTS Artists Tom Waits has reached a settlement regarding his dispute with German car maker Opel and their advertising agency McCann Erickson. Waits claimed that the car firm had deliberately used a sound-alike on one of their TV ads to imply he had participated in the marketing campaign. The singer sought an injunction to stop the ads and at least $300,000 in damages. The exact nature of the out of court settlement is not know, though Waits has pledged to donate the money he will receive to charity. Confirming they had reached an agreement with the singer, McCann Erickson said yesterday: “We respect Mr Waits, and deeply regret any embarrassment this may have caused”. The settlement comes almost exactly one year after Waits won a similar court case in Spain where Volkswagen had also used a sound a like in a TV ad. Waits, famously critical of artists who take the advertising dollar off big business, said after yesterday’s settlement was announced: “I’m glad to be out of the car sales business once and for all”.

EMI signs as streaming deal with AOL, Warners ties up with Last.FM , Viacom takes on YouTube and JASRAC are still not best pleased!
Copyright , Internet , Record Labels / March 2007
France
Germany
Japan
UK

COPYRIGHT Internet, record labels EMI Music has signed an advertising-supported music video streaming agreement with leading digital content provider AOL Europe. The agreement, covering the UK, French and German markets, enables consumers to stream music videos free-of-charge via the AOL portal. All forthcoming new releases will be available for music fans to stream, as well as music videos from EMI Music’s extensive back catalogue. EMI Music will also benefit from additional exposure for EMI’s artists via promotional activity such as “Artist of the Month” and “Breakers.” Exclusive “AOL Sessions” are also planned, with all recordings to be made available for AOL users to stream. Consumers will have access to music videos from EMI Music artists, including Coldplay, Corinne Bailey Rae, Norah Jones and Lily Allen, as well as Camille, Diam’s and Raphael from France, and Wir Sind Helden and La Fee from Germany. AOL is a global Web services company and a majority-owned subsidiary of Time Warner Inc. And Warner Music has entered into a streaming license with Last.fm covering the US and Europe. This is Last.fm’s first content deal with a major. In the February issue of Five Eight there will be an interview with Martin Stiksel, co-founder of…

Jobs calls for an end to DRM
Copyright , Internet , Record Labels / March 2007
Canada
USA

COPYRIGHT Internet, record labels Set against a background of a record industry in turmoil and increasing consumer annoyance with and regulator disapproval of DRM and a lack of interoperability in downloads (in particular Apple’s own platform restricting DRM) Apple boss Steve Jobs has called on the major record companies to start selling digital music without copy-protection DRM or adopt the Apple Fairplay software. Jobs published an open letter on the Apple website at www.apple.com saying that labels could (1) do nothing (b) adopt Fairlplay DRM or (c) sell without DRM saying that only the third option would stimulate the market and benefit consumers. The RIAA seemed to respond by thanking Jobs for the offer of free Fairplay DRM! In Canada digital music store Puretracks has lifted controversial copy restrictions from part of its catalogue Wednesday, adding its weight to a growing number of industry players that appear increasingly open to unfettered file-sharing. Puretracks will offer 50,000 unrestricted digital files in an MP3 format that can be burned, e-mailed or copied to computers, portable music players and cellphones, said company president Alistair Mitchell. All the tracks come from smaller labels but they include indie giants known for favouring loose controls over music – Nettwerk, whose…

Russian Court rules that music download sites are illegal
Copyright , Internet , Record Labels / March 2007
Russia

COPYRIGHT Internet, record labels A Russian court has fined a company whose Web sites let users download songs for 15 U.S. cents following a lawsuit brought by Gala Records, a Russian subsidiary of EMI. The Moscow Arbitration Court ruled last week in favor of Gala Records, which sued Web sites http://www.delit.ru and http://www.delit.net for illegally selling soundtracks and music albums online without the consent of copyright owners. The court also fined the sites’ parent company, Delit, 60,000 rubles (US$2,300; €1,750). Gala Record heralded the new ruling as a clear indication that “that one cannot distribute someone else’s property on the Internet.” Gala Records produces albums for several well-known Russian pop artists, including Dima Bilan, who came second in last year’s Eurovision song contest. http://www.iht.com/articles/ap/2007/02/14/business/EU-TEC-Russia-Downloading-Music.php

Google’s use of news excepts ruled illegal in Belgium
Copyright , Internet / March 2007
Belgium

COPYRIGHT Internet A Court in Belgium has ordered the search company Google to stop showing excerpts of articles from French and German language Belgian newspapers on Google News and Google’s websearch site for Belgium. This decision affirms an earlier ruling by the same court against the company, while halving the daily fine Google faces for non-compliance. Google failed to persuade the court that full-text caching plus excerpt-only reproduction could constitute fair use or that the burden lies with copyright owners to exercise an ‘opt-out’ option. Google intends to appeal. The Company argues that they company always complies with requests from copyright owners to remove infringing material and indeed that they only use ‘snippets’ of news. According to a spokesman for the company “ If people want to read the entire story they have to click through to the web publisher’s site where the information resides. We believe search engines are of real benefit to publishers because they drive valuable traffic to their websites”. From the ever wonderful IPKat http://ipkitten.blogspot.com/2007/02/google-to-appeal-belgian-copyright.html See also Google v Perfect 10 (Google image search can infringe) and Google v Field (Googlecashes are fair use)both US court decisions: both Law Updates March 2006. In Australia a federal judge held that Google could be…

BPI take further action against CD Wow
Copyright , Record Labels / March 2007
UK

COPYRIGHT Record labels The BPI, representing the British recorded music industry, has said that it is pursuing an order for contempt of court against one of the UK’s biggest internet music retailers, CD Wow. The trade association is seeking fines, damages and costs in the High Court against the company. The case relates to undertakings CD Wow made in January 2004 to the High Court that it would cease illegally importing CDs and music DVDs into the UK from south-east Asia (a practice known as parallel importing). On February 19 counsel of CD Wow shareholder Philip Robinson confirmed that Mr Robinson accepted that CD WOW was in breach of its undertakings to the Court and that Robinson bore some responsibility for failing to comply with the Court undertakings.  Counsel for Robinson apologised on his behalf and confirmed that he had agreed to pay £50,000 to the music industry for costs incurred by the industry in bringing the case against him. The CD WOW company has also now accepted that it has breached the undertakings that is gave to the Court but argues that it should not have to pay a fine, damages or costs.  The case against CD WOW therefore continues….

West Coast copyright owners lost $5.2 billion in 2005 to piracy
Copyright , Record Labels / March 2007
USA

COPYRIGHT Film, record labels A new study conducted by the Los Angeles Economic Development Corporation (LAEDC) says that global piracy and counterfeiting has cost Los Angeles-area companies $5.2 billion and the city at least $483 million in tax revenues in 2005. The report points to losses in local revenues, jobs, wages and taxes due to piracy citing the entertainment industries as the biggest victims. http://www.fmqb.com/Article.asp?id=353659

Domain Name Disputes – The Battle Is Joined
Internet , Trade Mark / March 2007
USA

TRADE MARK Internet ARTICLE LINK  There was a time when it seemed that powerful trademark holders generally prevailed when they sought the transfer of Internet domain names that contained their trademarks. However, recent decisions show that domain name registrants have a fighting chance. This does not mean that trademark holders will not succeed when they seek the transfer of domain names that incorporate their marks – far from it. Yet, recent arbitration results stand for the proposition that domain registrants can try to fight off trademark holders when they can show legitimate uses for their domain names and lack of bad faith. This article is a useful overview of recent ICANN arbitration panel decisions by Eric Sinrod, looking at the marks ‘www.wargames.com’ and ‘www.pig.com’ http://news.com.com/Big+names+may+not+prevail+in+domain+disputes/2010-1030_3-6160795.html?tag=nefd.top

Does Sky have an enforceable a monopoly on live premiership football in the UK?
Copyright , Internet / March 2007
UK

COPYRIGHT Television, internet ARTICLE FACT v Gannon, MPS v Murphy By Ben Challis, barrister Whilst supping a pint and watching England’s abysmal performance against Spain the other day, my lovely pub landlady asked me to look at a letter she had received from Sky TV. Now this pub is a properly licensed Sky pub but the letter referred to the broadcasting of premiership football – which is played out in ‘non-Sky’ pubs using foreign subscription services. These non-UK services legally acquire the rights to show the Premiership matches in say Greece and Poland by satellite broadcast but the signals can be ‘re-captured’ back in the UK as satellite footprints tend to be pan-European in their very nature, unfettered by national borders. The economics of this are important: BSkyB and Setanta Sports are reportedly paying £1.7 billion to hold the exclusive rights to screen live matches to the English Premiership in Britain for the next three years. Broadcasters in 208 other countries have recently doubled their payments to secure English premiership rights to a combined £625 million (The Observer, 12/02/07). To recoup their investment Sky charges consumers to subscribe to Sky and of course charges pubs and clubs a fee to publicly…

Apple fails to have US anti-trust suit dismissed and Sony lose interoperability case in France
Competition / February 2007
USA

COMPETITION Technology A US court has denied moves by Apple to dismiss a lawsuit that is being pursued against the computer company alleging that their much reported restrictive business model is anti-competitive. The federal lawsuit, launched last July by a consumer, Melanie Tucker, claims that Apple created an “illegal monopoly” by refusing to make their digital music player or codec interoperable with those of their competitors, so that the only source of DRM music for an iPod is iTunes, and the only portable players that play music bought from iTunes is the iPod. The computer giant had hoped to get the lawsuit dismissed without its digital music business strategy being analysed in court, but judges say the case against Apple deserves proper consideration and so the litigation will now get a full hearing, out of court settlement pending. Given the wider and growing concerns of Apple’s restrictive approach which have already caused the company problems in France and various Scandanavian countries, case should prove interesting. At the same time a French court has ruled that Sony is misleading buyers of its music downloads and digital music players, a reflection of growing discontent among consumers – the case was brought by…

Norway rules that Apple DRM is illegal
Competition , Record Labels / February 2007
Denmark
Finland
France
Germany
Netherlands
Norway
Sweden

COMPETITION Labels, technology As France, Germany and Finland join the growing list of countries looking at iTune’s DRM and lack inter-operability which include Sweden and Denmark, the Norwegian Ombudsman rules the software illegal and the Dutch Consumer Protection Agency joins the protest against Apple in the Netherlands.   http://www.theregister.co.uk/2007/01/24/apple_drm_illegal_in_norway/ http://www.canada.com/topics/technology/news/gizmos/story.html?id=bdd7e7d2-1639-46a5-bb71-f9830c61b608&k=878

CASE LINK: HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776
Artists , Privacy / February 2007
UK

PRIVACY Artists  CASE LINK: HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776 The Prince of Wales’ successful action in preventing the contents of his journals being circulated. Here the protection of an agreed contractual term preventing an ex-employee circulating the journals was held to be of importance by the Court of Appeal adding an new element to the tension between the article 8 (right of privacy) and article 10 (freedom of expression) in the Human Rights Act 1998. http://www.lawreports.co.uk/WLRD/2006/CACIV/dec1.3.htm

Has Podcasting come of legal age?
Copyright , Internet / February 2007
UK
USA

COPYRIGHT Radio, internet  Hot on the news that SonyBMG has reached an agreement with San Fransisco based Rock River to allow for a series of promotional prodcasts for corporate clients comes news that the commercial radio sector in the UK is close to securing a blanket licence for including music in podcasts from UK recording rights body Phonographic Performance Limited (PPL). The deal will mean radio stations will be able to include music from any of PPL’s member labels in their podcasts for an annual licence fee. However the licence on offer will only allow radio stations to include thirty second clips of songs seriously limiting the podcasts to little more  which than ‘glorified promotional material’ for either the programme, the station or the tracks featured. The Rock River licence apparently allows clients such as Ford and Chrysler to pay Sony a flat fee for the right to use music in podcasts regardless of the number of tracks downloaded by end users. However the UK news is interesting in that PPL, who are responsible for licencing perfomance rights to sound recordings, has not previously been mandated to licence radio stations for onwards podcasting as podcasting was not seen as a ‘broadcast’ or performance. PPL now now…

Dutch Court orders ISP to hand over site owner’s identity
Copyright , Internet / February 2007
Netherlands

COPYRIGHT Internet The Dutch courts have traditionally been keen to protect privacy – even of suspected file-sharers and even the names of people behind websites accused of copyright violation. But the content owner lobby scored a victory last week when ISP KPN was ordered to tell anti-piracy body BREIN the names of the people behind Dutchtorrent.org, which offered sign up subscribers access to a whole range of illegal content sources. The owners of that site have managed to remain anonymous, but their server is linked to the net via KPN. The ISP had so far refused to close down the site or to reveal the identity of Dutchtorrent.org’s owners, preventing BREIN from taking legal action against them. The latest court ruling means KPN will now have to hand over those owners’ contact details, so direct litigation against the site can begin. The ruling also means KPN will have to close down the site – although by the time the ruling was made the site was already down “due to technical problems”. However, an announcement from the site promised it would return “as soon as the brainstorm is over”, so the courts have ruled KPN must act to block access to…

French labels join majors in suing AllofMP3.com
Copyright , Internet , Record Labels / February 2007
France

COPYRIGHT Internet, record labels The French Civil Society of record Producers has filed a lawsuit against two Russian Web sites accused by record companies of illegally selling pirated music. The lawsuit has been filed in the French courts against X-Media Ltd. and Mediaservices, the operators of allofmp3.com and mp3sugar.com. Both sites sell entire albums for as little as US$1 (€0.77), but record companies say that they do so without permission. Moscow-based Mediaservices, which owns allofmp3.com, maintains that it pays 15 percent royalties to Russian Coollection Societies on the sales in compliance with Russian law. The French suit follows similar moves by U.S., Danish, British record companies. Warner Bros. Records, Capitol Records, UMG Recordings and Arista Records are among a group that filed a suit in New York last month, demanding unspecified damages from Mediaservices. http://www.iht.com/articles/ap/2007/01/12/business/EU-FIN-France-Russia-Downloads-Lawsuit.php

EMI drop Chinese appeal and agree to work with Baidu
Copyright , Internet , Record Labels / February 2007
China

COPYRIGHT Internet, record labels EMI Group, which lost a copyright infringement lawsuit against Baidu.com at first instance when a Chinese court held that simply by linking to infringing sites Baidu was not committing any offence, has now said that it will drop its appeal and work with the Chinese Internet search site to win advertising by offering free online samples of its music. Baidu will sell online advertisements for a section of its Web site featuring streaming samples of EMI’s Chinese-language music. EMI and Baidu will share the ad revenue, they said, without providing details. Baidu has triple the market share of its closest rival, Google, in its home market although that market being home to rampant piracy. http://www.iht.com/articles/2007/01/16/bloomberg/sxbaidu.php

ECHR says TM applications are “property”
Artists , Trade Mark / February 2007
EU

TRADE MARK Artists ARTICLE LINK:  In an important decision ( Anheuser-Busch v Portugal) the European Court of Human Rights have held that trade marks are a possession and therefore qualify for the purposes of the right to peaceful enjoyment of property (Article 1, Protocol 1, European Convention on Human Rights) saying the Court takes due note of the bundle of financial rights and interests that arise upon an application for the registration of a trade mark. It agrees with the Chamber that such applications may give rise to a variety of legal transactions, such as a sale or licence agreement for consideration, and possess – or are capable of possessing – a substantial financial value. See the IPKat athttp://ipkitten.blogspot.com/2007/01/echr-says-tm-applications-are-property.html

PERFORM Act reintroduced in US to implement widespread DRM broadcast obligations
Copyright / February 2007
USA

COPYRIGHT All areas In a move welcomed by the Recording Industry Association of America, U.S. senators have reintroduced legislation that would require some digital and streaming Internet radio stations to use digital-rights management (DRM) technology if they acquire licenses through U.S. government-mandated copyright plans. According to opponents, the legislation would jeopardize TiVo-like audio recording devices, such as the Inno from XM Radio, as well as businesses like Live365 and ShoutCast, which stream radio over the Internet using the open MP3 format. The Perform Act, which died in Congress last year, was reintroduced Jan. 11 by Senators. Dianne Feinstein, Lindsey Graham, Joseph Biden, and Lamar Alexander. It requires satellite, cable TV, and Internet broadcasters to pay “fair market value” for digital music performances. It also requires “the use of readily available and cost-effective technology to prevent music theft,” according to a press release from Senator Feinstien. The law would apply to stations that license music from the government program created by Section 114 of the U.S Copyright Act. http://www.informationweek.com/news/showArticle.jhtml?articleID=196901261 Copyright law and the assault on innovation ( on the Liberty Papers blog)http://www.thelibertypapers.org/2007/01/16/copyright-law-and-the-assault-on-innovation/  Also in the US District Judge Deborah A Batts has ruled that the music industry is free to go ahead…

Victory Records expand Hawthorne Heights litigation
Artists , Contract , Record Labels / February 2007
USA

CONTRACT Artists, record labels Independent rock label Victory Records has extended its Hawthorne Heights litigation by now suing the record company established by frontman JT Woodruff called Carbon Copy Media. The US band fell out with Victory Records, the label they were signed to, last year, and sued the record company and its boss Tony Brummel for breach of contract, seemingly in a bid to release themselves from their contractual commitments to the independent. The band subsequently signed a new recording deal with EMI’s Virgin Records division. But a court ruled back in September that the band remained bound by its exclusive recording contract with Victory, in theory barring them from entering into their new deal with EMI. Band members have pledged to appeal that ruling but Victory have begun legal proceedings against EMI, claiming EMI persuaded band members to launch the original breach of contract lawsuit in a bid to free them from their Victory commitments . The new litigation against Carbon Copy Media follows on from a distribution deal between Victory and Carbon Copy with Victory distributing releases from bands Ellison and Signal Home, and Woodruff’s pre-Hawthorne H eights band A Day In The Life. Victory claim they spent more than $200,000…

IFPI Digital Music Report 2007 published
Copyright , Internet , Record Labels / February 2007
EU
Japan
UK
USA

COPYRIGHT Record labels, internet Record labels have sold an estimated US$2 billion worth of music online or through mobile phones in 2006 (trade revenues), almost doubling the market in the last year according to latest figures form the International federation of Phonographic Industries. Digital sales now account for around 10% of the music market as record companies experiment and innovate with an array of business models and digital music products, involving hundreds of licensing partners. Among new developments in 2006, the number of songs available online doubled to four million, thousands of albums were released across many digital formats and platforms, classical music saw a “digital dividend” and advertising-funded services became a revenue stream for record companies. However, despite this success, digital music has not yet achieved the “holy grail” of compensating for the decline in CD sales. Meanwhile, digital piracy and the “devaluation of music content” (IFPI wording) are a “real threat to the emerging digital music business”. IFPI Research suggests legal actions against large-scale P2P uploaders – some 10,000 of which were announced in 18 countries in 2006 – have helped contain piracy, reducing the proportion of internet users frequently file-sharing in key European markets. The IFPI say…

New guidelines on licensing live music published
Licensing , Live Events / February 2007
UK

LICENSING Live event industry Local authorities will have to take into account the volume at which a band plays and whether or not a venue advertises them as the main attraction when deciding if live entertainment needs to be licensed, according to new guidelines. The Department for Culture Media and Sport has published draft guidance to help local authorities interpret the Licensing Act, including an expanded section on how to determine whether music is “incidental” and therefore not licensable under the law. Pubs and clubs could run into trouble if authorities decide that live music is the “main reason for people attending the premises” and if it “predominates over other activities”. http://www.thestage.co.uk/news/newsstory.php/15703/new-guidelines-for-live-music-licences

The Competition Commission’s final report into the London venue market is published
Competition , Live Events / February 2007
UK

COMPETITION Live event industry The UK Competition Commission’s report into the proposed Hamsard 2786 Ltd / Academy Music Holdings Ltd deal has now been published. The Competition Commission has formally decided that the proposed acquisition of a controlling interest in Academy Music Holdings Limited (Academy) by Hamsard 2786 Limited (Hamsard) would lead to a substantial lessening of competition in relation to certain live music venues in London, resulting, in particular, in rentals at the venues concerned being higher than would otherwise be the case. If the acquisition of the controlling interest is to proceed, the merging companies will first be required to sell one of either the Brixton Academy or the Hammersmith Apollo and one of either the Shepherd’s Bush Empire or the Forum. These venues represent the closest alternatives to each other in London for artists, agents and promoters of popular live music events and would come under common ownership following the acquisition. Hamsard will not be permitted to acquire a controlling interest in Academy until there is a binding sale/purchase commitment for the venues in question. The sale will need to be approved by the Commission so that it is made to a suitable purchaser(s) and is likely to include venue management and booking teams, contracts with…

Entercom settles with Spitzer
Competition , Record Labels / February 2007
USA

COMPETITION Broadcasting, record labels Radio broadcast group Entercom has reached a settlement with the New York Attorney General. Eliot Spitzer over payola charges. Spitzer targeted the US media conglomerate after reaching a settlement with all four major record companies for. Entercom had denied any wrong doing, claiming their business relationships with music companies were within US broadcasting regulations. The Company says that it only settled to avoid fighting a lengthy and costly lawsuit. In a statement the company said: “In the interests of the company, our employees and our shareholders, we have chosen to resolve this matter immediately and without extensive and costly litigation. The court did not find any liability, nor are we admitting liability with this settlement. Rather, we are taking the opportunity to put the investigation behind us and move forward.” As part of the deal the radio firm will pay a $4.25 million fine, of which $3.5 million will go to music education programmes. Entercom also pledged to introduce internal measures to ensure any practices considered as payola by the New York Attorney General’s office could no longer take place. Entercom is the second radio firm to settle with Spitzer over the issue of payola after…

Italian Court rules that P2P is not a crime if not for profit
Copyright , Internet , Record Labels / February 2007
Italy

COPYRIGHT Record labels, internet Italy ’s courts have ruled that peer-2-peer file swapping can only be a crime if undertaken for profit. Italy’s senior criminal court heard an appeal from two former students of Turin Polytechnic Institute, both prolific file swappers, who ran a P2P network for a short time in the mid 90s. After authorities closed down their P2P operation a lower Italian court found them guilty of the crime of ‘illegal duplication’, passing a one year jail sentence. But that conviction has been overturned on the grounds that file sharing of copyright content can only be considered a crime according to current Italian law if the people doing the sharing are profiting from the activity, which the defendants in the current case did not. It should be noted that this is a criminal case and potentially has no direct relevance to any civil suit brought against the defendants. http://www.iht.com/articles/2007/01/22/business/pirate.php

Court Holds That ISPs Are Not Liable For Objectionable User Content, Even When Criminal Laws Are Violated
Defamation , Internet / February 2007
USA

DEFAMATION Internet ARTICLE LINK By Eric Sinrod Attorney Internet Service Providers (ISPs) naturally are concerned about circumstances under which they potentially could be liable for content posted by users. ISPs can breath a sigh of relief after a recent decision by a Texas federal judge who just dismissed an ISP as a defendant in the case of Doe v. Bates, even though the offending conduct at issue was alleged to be in violation of criminal law. http://practice.findlaw.com/tooltalk-012207.html

The Gower’s Review on intellectual property
Copyright / January 2007
UK

COPYRIGHT All areas Link to the Gower’s Review Report on Intellectual Property which was published on the 6th December on the HMT website . http://www.hm-treasury.gov.uk/pre_budget_report/prebud_pbr06/other_docs/prebud_pbr06_odgowers.cfm Statement by the IFPI’s Chairman John Kennedy in response to the leaked news that Gower’s says “don’t extend the term” “If the Gowers Review has indeed decided not to recommend the equalisation of the Copyright Term then that is a big disappointment but not a complete surprise to the music industry.  There have been rumours for a time – founded or unfounded – that Mr Gowers did not think it appropriate. However, this report is only a recommendation, and it is the government which will make the final decision. At the end of the day, it will be an interesting test of how future Labour governments will conduct business. The UK music industry has thrived over the years, producing great talent, paying taxes, generating employment and maximising overseas revenues. The music industry is facing tremendous challenges but even now the UK music industry punches above its weight on the international stage. I have often asked on behalf of the UK music industry shouldn’t we have a government that each day when it comes to work, asks…

New Zealand copyright bill reaches parliament
Copyright / January 2007
New Zealand

COPYRIGHT All areas New Zealand’s Copyright (New Technologies and Performers’ Rights) Amendment Bill which is awaiting its first reading in Parliament, puts a maximum penalty of a $150,000 fine and five years in prison for anyone caught selling devices or publishing information which could be used to circumvent technology used to protect digital copyright. The current Copyright Act bans this but has no criminal penalties. However the new bill is not without critics and Colin Jackson, president of non-profit society InternetNZ, calls the anti-circumvention clauses a “toxic provision” and warns they could be used to “suppress all kinds of legitimate valuable work and speech”. The Copyright Amendment Bill also stops people from removing information from files, such as terms and conditions of use or who owns the copyright. The Bill does allows people to crack digital rights for personal use, and libraries, archives and educational institutions can also crack codes provided this is to correct software errors, make software interoperable or to do encryption research. The bill would allow format shifting – converting CDs to MP3s, for example and consumers would be able to make one copy of a song they own for personal use for each device they own – although…

Hamsard 2786 Ltd / Academy Music Holdings Ltd
Competition , Live Events / January 2007
UK

COMPETITION Live event industry The Competition Commission (CC) has provisionally decided that the proposed acquisition of a controlling interest in Academy Music Holdings Limited (Academy) by Hamsard 2786 Limited (Hamsard) would lead to a loss of competition in relation to certain live music venues in London. Hamsard is jointly controlled by Live Nation (Music) UK Ltd (Live Nation) and Gaiety Investments Ltd. Through its ownership of Mean Fiddler Music Group Ltd, Hamsard operates live music venues in London, including the Astoriaand the Forum. It also has a management contract for the Wembley Arena. Academy owns the Shepherd’s Bush Empire (SBE), and the Brixton Academy as well as a number of other venues in London and elsewhere. Live Nation owns the Hammersmith Apollo, and a number of theatres in London. It also owns venues (mostly theatres) in 20 other cities in the UK. The Competition Commission Inquiry Group has concluded that the acquisition is expected to result in a substantial lessening of competition. Inquiry Group Chairman, Diana Guy , said: The extent to which different live music venues provide alternatives for artists, agents and promoters depends on a number of factors, including capacity, ambience and the type of events generally held…

EC to investigate Universal – BMG music publishing tie up
Competition , Record Labels / January 2007
EU

COMPETITION Record labels Perhaps unsurprisingly in light of the comments by the European Court of Justice when they annulled the European Commission’s approval of the Sony-BMG record label merger, the European Commission has extended its investigation into Universal’s $2.2bn (£1.12bn) acquisition of BMG’s music publishing business by up to 90 working days (to April 27th 2007). The combined Universal Music / BMG Music would have an appoximate 22% of the music publishing market. Both BMG and Universal Music currently have 11% market shares, behind EMI Music’s 20% share and Warner’s 15% share but ahread of and Sony Music (7%). The regulator wants more time to consider whether the deal will undermine competition. The inquiry could last up to five months. In a statement Universal said that “although we understand why, in the current environment, the European Commission has sought more time for its review, we believe, as we have always done, that the merger will be approved” adding that Universal were looking “forward to working with the Commission over the next few months to complete the process.  The original Sony-BMG ECJ review was due to a law suit from the European trade association IMPALA which represents independent labels and IMPALA has promised to battle the Universal…