EU proposes a 95 year term for copyright in performers rights and sound recordings
Copyright / August 2008

COPYRIGHT All areas The European Commission has adopted two new copyright initiatives. Firstly the Commission is proposing a new Directive “to align the copyright term for performers with that applicable to authors, in this way bridging the income gap that performers face toward the end of their lives”. Secondly, the Commission proposes to fully harmonise the copyright term that applies to co-written musical compositions. In parallel, the Commission also adopted a Green Paper on Copyright in the Knowledge Economy. The Commission’s press release says “Both of these initiatives comprise a unique mix of social, economic and cultural measures aimed at maintaining Europe as a prime location for cultural creators in the entertainment and knowledge sectors”. Internal Market and Services Commissioner Charlie McCreevy said: “The copyright measures adopted today should underline that we take a holistic approach when it comes to intellectual property. The proposal on term extension has a strong social component and the Green Paper is deeply embedded in the overall societal and knowledge context” adding in relation to sound recordings “I am committed to concentrate all necessary efforts to ensure that performers have a decent income and that there will be a European-based music industry in the years to come. The proposal on term…

Satellite TV case to go to ECJ
Competition , Copyright / August 2008

COPYRIGHT / COMPETITION Television, sport By David Pearce writing for the IP Kat In a judgment of over 45,000 words and 98 pages, handed down this morning in the case of the Football Association Premier League & others v QC Leisure & others [2008] EWHC 1411 (Ch), the Honourable Mr Justice Kitchin has delivered a tentative blow against the rights of satellite broadcasters such as BSkyB to protect their exclusive rights to broadcast football games to subscribers in individual EU countries. The three combined actions involved in this case concerned the use of foreign decoder cards in the UK to access foreign transmissions of live Premier League football matches. The claimants complained that the dealing in and use of such cards in the UK involved an infringement of their rights under s.298 of the CDPA 1988, as amended, and of the copyrights in various artistic and musical works, films and sound recordings embodied in the Premier League match coverage. The defendants argued that the use of copyright law to effectively prevent them from using decoder cards in the UK which had been legitimately bought in other EU states was contrary to EC law. Several Directives were cited, the key one being 98/84/EC, also known…

Competition inquiry delays UK broadcasters’ online platform
Competition / August 2008

COMPETITION Television The combination of BBC, ITV and Channel 4 in the proposed new ‘Kangaroo’ online service which will have more than 10,000 hours of classic TV has led to a referral to the Competition Commission. Rival broadcasters including BSkyB have complained that the launch of Kangaroo would risk ‘skewing the market and the Office of Fair Trading made the referral after not being able to make a judgment on whether or not the new venture would limit consumer alternatives. When the venture was launched last year the head of BBC Worldwide said the development was partially motivated by the need to avoid the mistakes made by the record labels when they allowed Apple to corner the market in online download sales and ITV Chief Sir Michael Grade warns that the delay caused by the referral will allow global rivals to steal a march on domestic broadcasters and that the regulatory framework seems “unable to take the most important interest into account – that of the British viewer” The Guardian July 1 st 2008

Ticketmaster win case against queue jump technology provider
Contract , Copyright , Live Events / August 2008

COPYRIGHT/CONTRACT Live Events Ticketmaster have won a case in the Los Angeles court against a technology company who they claimed had developed software which enabled ticket resellers to circumvent restrictions on their website in order to get priority and repeat access to in-demand tickets where the numbers of tickets offered per sale were limited. The ticketing giant claimed RMG Technologies’ software, sold mainly to ticket brokers and scalpers (touts), infringed their copyrights and interfered with their contractual relations with tour promoters. The court had already issued a temporary injunction stopping the distribution of RMG’s ticket acquiring technology, and last week’s court ruling means they will have to pay Ticketmaster the profits they made from it (about $18K), plus their legal costs. Welcoming the court ruling, Ticketmaster General Counsel Edward Weiss told reporters: “Consumers understand that there often simply are not enough tickets to meet demand, but RMG’s technology was used by some to unfairly cut to the front of the line. Ticketmaster will continue to fight for an equitable ticket distribution process”. Ticketmaster had already secured a preliminary injunction against RMG when U.S. District Court Judge Audrey Collins issued a preliminary order against RMG. The court order stemmed from a…

BPI confirms internet service providers will warn filesharers
Contract , Copyright , Internet / August 2008

CONTRACT/COPYRIGHT Internet Hot on the heels of Virgin promising to contact customers who illegally download films, TV programmes and sound recordings, record label trade body the BPI has confirmed that BT is sending warning letters to customers of its internet service provider packages who the labels believe are acquiring music from illegal sources, telling said customers that uploading or downloading tracks to or from such sources is illegal. It was reported on IT website. Confirming they were now working with both BT and Virgin Media on the warning letter programme, the boss of the BPI, Geoff Taylor, said on Friday: “Establishing partnerships with ISPs is the No 1 issue for the BPI, and we are beginning to form positive working relationships with BT, Virgin Media and most of the other major ISPs”. ISPs had been resistant to taking on a more proactive role, and some still are, but with BT and Virgin Media on board more are now expected to follow. The labels want the ISPs to ultimately cut off persistent copyright infringers. Whether the ISP would do that, or even hand over the contact information of the individual (customer) to allow the labels to take legal action, remains to…

BPI release new revenue statistics
Copyright , Record Labels / August 2008

COPYRIGHT Record labels The BPI has, for the first time, released statistics showing growth in non-traditional revenue streams at the record which now account for 11.4% of UK record companies’ income. The data offers some hope that labels can weather the threat from illegal; downloading as alternative revenues rose 13.8% in 2007 to £121.6 million. A big part of that rise comes from licensing which is an increasingly important revenue source. Revenues from so called 360 degree deals (“multiple-rights revenues”) where labels secure their investment in new talent on more than recording revenues – in particular touring, merchandising and sponsorship revenue were up 16.2% in 2007, though the total amount of such revenues probably weren’t very significant to start with, so actually that increase is probably quite small. Commenting on the stats, BPI boss Geoff Taylor said this: “The core business of record companies is investing in talent, working in partnership with artists to create great music and to help to find it an audience. Selling CDs and digital downloads remains the main way in which we recoup that investment, but increasingly new streams of revenue are coming into the picture. As consumption patterns change, music companies are finding new…

Consultation on copyright exemptions for public performance of music
Copyright / August 2008

COPYRIGHT All Areas A consultation on exemptions to copyright law for certain charitable and not-for-profit organisations was launched today by the UK Intellectual Property Office. The Music Licensing Review consultation will seek views from music rights holders, representative bodies of users and rights holders and users on two exemptions which allow charitable organisations to pay for only one of two licences normally required for playing music. There are three options for amending the exemptions: (a) Recasting the exemptions so that they apply only to smaller charities (b)Introduction of an alternative scheme requiring payment of equitable remuneration for playing music (c) repeal of the exemptions. Ian Fletcher, Chief Executive of the UK-IPO, said “It is important that we carefully consider the use of exemptions within copyright law. We need to ensure we find the correct balance between the fair application of exemptions for the benefit of society and the need to ensure a fair reward to the creators of the music we enjoy in a way which is consistent with European and international law.” The UK-IPO has worked closely with the Office of the Third Sector to ensure the third sector is involved in the consultation. Key areas of the consultation…

McFly DIY – is there now a new way forward?
Copyright / August 2008

COPYRIGHT All areas By Cassandra Williams postgraduate student at the College of Law No one can have missed the constant criticism levelled at record companies and their approach to selling music in the digital age and there is a suggestion that recorded music is now vaguely irrelevant to artists – and should no longer be the main product. Some commentators see recorded music as a marketing tool – for example to promote ticket sales and live concerts, to sell other merchandise, or even to sell drinks, newspapers or burgers According to Bob Stanley from St Etienne the answer is to give downloads away, or to make them cost no more than sending a text. Radiohead famously allowed fans to self price ‘In Ranibows’ but clearly will garner huge revenues from their touring activitoes.. Matador, once home to Cat Power, provides a free download when you buy vinyl copies of its records. With technology allowing music to be produced and distributed cheaply artists no longer need a major label. It is now possible for DIY labels, run out of bedrooms and shacks, to finally challenge the majors. A recent example of the DIY system is the new self-released album from McFly…

European Commissioners look at business practices and consumer rights

COMPETITION / COPYRIGHT Music publishing, record labels The Guardian has reported on a draft decision from the European Commission which, if adopted, would lead to major reforms of Europe’s music collecting societies. According to the report, the draft, which has not yet been signed by EU Competition Commissioner Neelie Kroes, berates the fact that the collecting societies operate as monopolies within their national borders, partitioning the EU market on national lines. It gives the collecting societies 90 days to terminate their agreements and calls on them to cross-license. The draft has been criticised for not going far enough to break down national monopolies. The IPKat notes that, from what little information is available, it seems that the Commission isn’t too worried about the notion of collecting societies, but rather about the way in which they operate territorially. This territoriality is understandable, since copyright has grown up as a system of national rights with a slightly different focus in the different Member States. Here are edited highlights of what NeelieKroes said at the OpenForum European Breakfast seminar,‘Being Open About standards’ : “It is simplistic to assume that because some intellectual property protection is good, that such protection should therefore be…

European Court overrules Court of First instance on annulment of Sony-BMG merger
Competition , Record Labels / August 2008

COMPETITION Record labels Bertelsmann and Sony Corporation of America v Impala C-413/06 P The European Union’s highest court has set aside the Court of First Instances ruling that annulled the European Commission’s approval of a merger between the Sony Music and BMG record labels. The European Court of Justice also ordered that the lower court to reconsider its decision in order to review three of five pleas it had not dealt with. The court said that “since the Court of First Instance examined only two of the five pleas relied on by Impala, the Court of Justice considers that it is not in a position to give a ruling itself on the dispute. It is accordingly referring the case back to the Court of First Instance”. In July 2006, the lower Court of First Instance threw out the Commission decision at the request of Impala, an independent group of music producers. The lower court said the Commission had taken insufficient care in giving its approval. It should have looked more carefully at whether collective market dominance existed in the music industry and could grow after the merger, the court said. There has been no practical effect of a flurry of…

Big Life Music sale cleared
Competition , Music Publishing / August 2008

COMPETITION Music publishing The UK’s Competition Commission has now formally approved Universal Music Publishing Group’s purchase of Big Life Music bringing the publishing of artists such as Snow Patrol, Futureheads and Badly Drawn Boy into the Universal stable.

Loud reggae nights lead to criminal conviction
Licensing , Live Events / August 2008

LICENSING  Live event industry  A Bradford businessman has been given a conditional discharge and ordered to pay costs of £2,291.60 over noise complaints. Nirmal Singh MBE, who owns Marlborough Hall, a former cinema in Carlisle Road, Manningham, was charged with failing to comply with a noise abatement order which Bradford Council served in June 2006 after reggae nights led to complaints from a number of residents that the loud drum beats were making it “impossible” for them to sleep and in one case, left the householder’s floor thumping. Magistrates heard that Singh, 56, had been repeatedly warned about the complaints and that the Council would take action if he did nothing to prevent the noise nuisance continuing. It was accepted that Singh did not promote the reggae nights but as the venue owner had failed to rake action to prevent the nuisance. Singh pleased guilty to three charges. The reggae nights have now been stopped.

New Licensing Act simply extends trouble later into the night
Licensing , Live Events / August 2008

LICENSING Live events The relaxation of the licensing laws has failed to reduce drunken violence while costing taxpayers £100m, a report from the Local Government Association (LGA) says. The survey found that around seven in 10 police authorities, primary care trusts and councils had seen either no change or an increase in alcohol-related disorder. At the same time the cost to council taxpayers have stretched resources, with 86% of health authorities and 94% of councils reporting increased pressure. The findings were based on responses from 51 local authorities, 49 primary care trusts and 20 police forces. Around a third of primary care trusts said they had experienced a rise in alcohol-related incidents. Meanwhile, half of police authorities reported that the 2003 Licensing Act had simply led to alcohol-related disorder occurring later at night than prior to the new rules. The LGA claimed that administering the Act, which involved more than 190,000 pubs, restaurants and clubs being issued with new licences, and monitoring it had cost local authorities more than £100m. Sir Simon Milton, chairman of the LGA, said the new drinks laws had made “no impact whatsoever on reducing the alcohol-related violence that blights town centres” adding that “The vast…

High Court refuses to review Magistrates’ decision to refuse a lapdance licence
Licensing , Live Events / August 2008

LICENSING Live industry A bid to open Durham’s first lap-dancing bar has failed after the High Court refused to overturn the decision of a Magistrates Court which itself overturned a decisionn allowing a licence for the club by the Local Authority. South Tyneside firm Vimac Leisure went to the High Court to overturn the rejection of its controversial application to start a lap-dancing club in the centre of Durham. The company sought the Judicial Review after magistrates overruled the city council’s approval for the controversial planning application following objections from residents. The decision was welcomed by Durham City MP Roberta Blackman-Woods who has led a campaign to make it easier for local authorities to turn down attempts to open lap-dancing clubs. For licensing purposes, she wants them to be treated as “sexual encounter venues” not just pub and club entertainments – a move backed by Government Minister Gerry Sutcliffe. Dr Blackman-Woods said: “This shows what I have always said – that local councils do have the authority and the duty to turn down applications for these clubs where having one would be inappropriate. “Local people put an awful lot of hard work into showing that having a lap-dancing club on…

Select Committee announce Licensing Act inquiry
Licensing , Live Events / August 2008

LICENSING Live events An inquiry into the impact of the Licensing Act 2003 is to be launched by the Select Committee for Culture, Media and Sport. The Committee is seeking views from interested parties on whether the legislation, which allows for 24 hour opening, has had any effect on the levels of public nuisance, the number of night-time offences or perception of public safety. It also wants to establish the impact the act has had on live music, sporting and social clubs, if it has led to financial savings for relevant industries and whether it has reduced bureaucracy for those applying for and administering licences. Details of how to make a submission can be found at

Facebook party forces potential alcohol ban at beach resort
Licensing , Live Events / August 2008

LICENSING Live events It was planned to stop every shop and pub in a seaside resort from selling alcohol after it was targeted as the venue for a “night of mayhem” beach party for 10,000 people organised on the social networking site Facebook. Police officers in Torbay, Devon, say that thousands of revellers were expected to gather at one of five possible beaches for the mass party at the weekend. The event had been advertised on Facebook with organisers hailing it as “the biggest ever beach party” with alcohol, loud music and barbecues. Described as a “night of mayhem” between the 4 th and 6 th July the exact location and time would not be posted until hours beforehand and police, fearing a health and safety risk, were desperate to stop the party taking place. Officers claimed the mass beach party was planned to be held next to one of five beaches – in Torquay, Paignton, Preston, Goodrington or Broadsands and planned to use powers under the Licensing Act 2003 to introduce an emergency blanket ban on the sale of any alcohol in the five areas. Police said as soon as they know the location every retailer and pub in…

Drifters victory over former band members, tour, tour manager and agent
Artists , Trade Mark / August 2008

TRADE MARK Artists The Treadwell family, who have owned the Drifters name since 1953, have succeeded in a High Court action against a group of former band members using the band’s name. The Treadwell family, who have legally controlled the Drifters since 1953, served a writ in December accusing four musicians, their former UK tour manager Philip Luderman and their former agent Mark Lundquist of “passing off” a UK group as the real thing and thus infringing the Drifters’ trademark. The action ended with a settlement but representatives of the band say that the legal victory confirms the ownership of the UK and European trademarks of The Drifters name, as well as removing the ambiguity surrounding the band’s identity. This court order prohibits former Luderman and Lundquist, plus four former employees, from using the Drifters name again and the settlement has been agreed over prior unauthorised use of the name. Tom Frederikse from Clintons solicitors, a regular contributor to this site who represented the Treadwells said “The Drifters’ history is as interesting as it is unique, but there is one theme that’s constant – the name Treadwell. This is a moral victory for the Treadwells and we are delighted that…

Google ordered to hand over YouTube logs in Viacom litigation
Copyright , Internet , Privacy / August 2008

COPYRIGHT / PRIVACY Internet Google has been told to hand over logs of every video ever watched on its YouTube video sharing platform, plus details of the user names and/or IP addresses of the people who have watched them. Google have been told to make the logs available by District Judge Louis L Stanton as part of its ongoing legal fight with MTV owners Viacom. As previously reported, Viacom are suing the video site for copyright infringement, because of the amount of content from its channels available on YouTube without their permission. YouTube have put forward the standard defence – that they do not personally make unlicensed content available, and that they remove any unlicensed content uploaded by punters if and when content owners make them aware of it. YouTube say that under current US copyright laws that policy means they are not guilty of infringement – though that interpretation of the law is so far untested in court, and this case could be the first to do so. Unlike other record companies and broadcasters, Viacom have not seemed interested in doing a licencing deal with YouTube – something that the video site has managed to do when most other…

Mum turns on Prince over YouTube takedown
Copyright , Internet , Record Labels / August 2008

COPYRIGHT Internet, record labels A mother who uploaded a video of her son dancing to a Prince track is taking the artist and his label to court over their efforts to have the video taken off YouTube. Stephanie Lenz of Pennsylvania made a video of her 13-month-old boy dancing to an almost inaudible song, and posted it on YouTube as thousands of parents do world wide. In the background “Let’s go Crazy” is the “barely distinguishable song” in the background – it is by Pirnce and the copyright is owned by Universal Music’s copyright and they issued a “take down notice”. YouTube initially took it down but Lenz fought back and he sent a letter to YouTube, demanding her video be reinstated. They in turn sent a letter to Universal Music, which represents Prince. Eventually YouTube posted the video back up because Universal Music never answered. And that’s where it would have ended, except Lenz decided to file a lawsuit against Universal Music with the legal help of the Electronic Frontier Foundation in San Francisco. A federal judge in San Jose will hear arguments in a lawsuit filed by Lenz. She claims Universal Music misused the takedown notice, are abusing…

US court finds that eBay is not liable for counterfeits sold on it’s site
Trade Mark / August 2008

TRADE MARK All areas A US District Court has decided that the internet auctioneer eBay had not infringed Tiffany’s trade marks in failing to prevent fake Tiffany goods to be sold through its site. According to the New York Times, the court found that it was the responsibility of trade mark owners, and not online retailers, to police the online sites for infringers. The US decision runs counter to the emerging trend it Europe, where eBay has been found to have infringed in both France and Germany. Judge Richard J Sullivan in the Manhatten Federal District Court said “Tiffany has failed to demonstrate that eBay knowingly encouraged others to dilute Tiffany’s trademarks,” in his 66-page decision. “Rather, to the extent that eBay may have possessed general knowledge of infringement and dilution by sellers on its Web site, eBay did not possess knowledge or a reason to know of specific instances of trademark infringement or dilution as required under the law.” See Music Law Updates July 2008 for a report on the position in France – French courts holds eBay liable for sale of counterfeit goods

Court throws out Janet Jackson wardrobe malfunction fine
Media / August 2008

BROADCASTING Television This is a tad embarrassing for the US’s Federal Communications Commission. Their $550,000 fine against broadcaster CBS for broadcasting Janet Jackson’s ‘wardrobe malfunction’ at the 2004 Super Bowl halftime show when she performed with Justin Timberlake has been ruled to have been made “arbitrarily and capriciously” by a three judge panel of the 3 rd US Circuit Court of Appeals. The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, “Gonna have you naked by the end of this song,” as he reached for Jackson’s bustier and then saw fleeting nudity. The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so “pervasive as to amount to ‘shock treatment’ for the audience.” “Like any agency, the FCC may change its policies without judicial second-guessing,” the court said. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure

FBI Interview Guns n Roses blogger
Copyright , Internet , Record Labels / August 2008

COPYRIGHT Internet, record labels The blogger who allegedly leaked nine tracks from the long awaited album from Guns ‘n’ Roses ‘Chinese Democracy’, has reportedly been interviewed by the Federal Bureau of Investigation in the US. According to reports Kevin Skwerl was visited by two FBI agents yesterday and questioned about his source of the files, which were taken down almost as soon as they were posted after GNR issued a cease and desist order. But the take down was too late to stop some file swappers getting their hands on the tracks and digital files are already in circulation Skwerl is a former Universal Music employee and Guns N Roses were signed to Universal’s Geffen label. Speaking about the whole episode to Rolling Stone magazine, Skwerl stressed that GNR weren’t threatening when they got in touch to request the removal of the tracks off his website, and he adds that he’s hopeful he will avoid any further legal action regarding the leak – civil or criminal. He told the magazine: “A really cool guy from the GNR camp that was a middle man between someone who was very angry and me. He was trying to reach out and see if I’d…

Mosley beats the World! Max Mosley wins record damages in privacy case
Artists , Privacy / August 2008

PRIVACY Newpaper publishing, Artists Mosley beats the World! Max Mosley wins record damages in privacy case: Mosley v News Group Newspapers Ltd (2008) EWHC 1777 (QB) From the IPKat Max Mosely, President of the Fédération Internationale de l’Automobile (FIA) since 1993 and a trustee of its charitable arm, the FIA Foundation, objected to the publication of an article in the News of the World newspaper. This article, headed ‘F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS’, was billed as an exclusive and ran under the subheading “Son of Hitler loving fascist in sex shame”. The article in question concerned an event, described as a party by Mosley and as an orgy by the newspaper. The text was accompanied by images taken from clandestine video footage and a concealed camera at the event itself. A sequel, published the following month under the banner “EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS”, was mainly a purported interview with one of the women who participated in the event, who had filmed it with a camera supplied by the newspaper and concealed in her brassiere. Mosley alleged breach of his of privacy under Article 8 of the European Convention on…

High Court awards £22,000 for victim of Facebook slur
Defamation , Internet , Privacy / August 2008

DEFAMATION / PRIVACY Internet A fake Facebook site set up about businessman Mathew Firsht has resulted in an award of £22,000 in damages against instigator Grant Raphael, an estranged friend of Mr Firsht. Using real details about Mr Firsht Mt Raphael then put in false details about his sexual orientation and political beliefs ending with a company profile with was titled ‘Has Mathhew Firsht lied to you too?”. The High Court damages break down at £15,000 for libel against Mr Firsht, £2,000 for invasion of his privacy and £5,000 for libel against his company, Applause Store Productions.