“Safe Harbor” Protects UGC Website: IO Group v Veoh Networks
Copyright , Internet / November 2008
USA

COPYRIGHT Internet By Tom Frederiks, solicitor, Clitons New details have emerged regarding steps user-generated content (“UGC”) sites must take to qualify for “ Safe Harbor” protection under US law. In IO Group, Inc ) v Veoh Networks Inc [2008] No C06-03926 HRL (filed 27 August 2008), the US District Court of Northern California denied IO’s request for summary judgment and granted Veoh’s request for summary judgment by confirming that Veoh (a video site much like YouTube) had established its entitlement to “Safe Harbor” defence against the alleged copyright infringement. IO, a US adult entertainment site and production company, had sued Veoh in copyright infringement for a number of IO’s videos that appeared on the site without authorisation in 2006. The films had been uploaded and viewed by users of Veoh and Veoh sought immunity under the “ Safe Harbor” defence under the Digital Millennium Copyright Act – a US version of Europe’s “Mere Conduit” defences for UGC sites. Under the “Safe Harbor” scheme, a site is effectively immunised from liability in relation to offending material stored “at the direction of a user” provided: (1) it has no actual knowledge of the material; (2) it is not aware of any circumstances from which infringement would be apparent; (3) it…

MCPS-PRS to challenge EC competition ruling
Competition , Copyright , Music Publishing / November 2008
EU
UK

COMPETITION / COPYRIGHT Music publishing UK music royalty collection society the MCPS-PRS Alliance is challenging a European Commission (EC) competition law decision limiting the control such organisations have over copyright use agreements. In July, the EC ruled that the current exclusivity deals the single-country societies had were effectively domestic monopolies in violation of Article 81 of the European Commission Treaty and Article 53 of the EEA Agreement saying The European Commission has adopted an antitrust decision prohibiting 24 European collecting societies from restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory. However, the decision allows collecting societies to maintain their current system of bi-lateral agreements and to keep their right to set levels of royalty payments due within their domestic territory. The prohibited practices consist of clauses in the reciprocal representation agreements concluded by members of CISAC (the “International Confederation of Societies of Authors and Composers”) as well as other concerted practices between those collecting societies. The practices infringe rules on restrictive business practices (Article 81 of the EC Treaty and Article 53 of the EEA Agreement). The Commission decision requires the collecting societies to end these infringements by modifying their…

Warners Brothers fail to enchant India’s High Court over Hari Puttar
Trade Mark / November 2008
India

TRADE MARK Film, television Hari Puttar hit cinemas last month in India and the producers of the film also walked into the High Court after Warner Brothers accused the makers that they ‘unfairly sought to confuse consumers and benefit from the well-known and well-loved Harry Potter brand. Justice Reva Khetrapal disagreed with the US film giant concluding that the film going public were smart enough to make up their own minds between the ‘Comedy of Terrors’ that is Hari Puttra and the seven series Harry Potter books about the boy wizard saying that as the Harry Potter books catered for an educated person ‘such a person must be taken to be astute enough between a Harry Potter film and another titled Hari Puttar. In fact it seems Warners should have saved their money as the film has gad dreadful reviews in India and the ‘Home Alone’ plot has left the few paying customers who have gone to see the film disappointed. The Observer 28 th September 2008 http://news.bbc.co.uk/1/hi/world/south_asia/7628948.stm

New lobby group for featured artists
Artists , Copyright , Record Labels / November 2008
UK

COPYRIGHT Artists, record labels Hot on the heels of British Music Rights’new UK Music initiative, over sixty artists have signed up to (another) new music industry body – this time the Featured Artists’ Coalition launched at theOctoberIn The City conference in Manchester. ´Featured artists´ signed up to the new body include Radiohead, Robbie Williams, Iron Maiden, The Verve, Kaiser Chiefs, David Gilmour, Billy Bragg, Klaxons and Kate Nash. The body will lobby primarily on copyright issues, which will see it joining with the rest of the recorded music community in demanding an extension of the recorded copyright, but also taking on the record companies in a bid to increase the rights and controls artists have over their recordings, and to secure artists a cut of any upfront payments labels receive in deals that are done based on the value of their recording catalogues (eg the upfront payments – in cash or equity – labels often receive from new download services in a bid to secure their involvement). The Coalition will also advocate the ‘use it or lose it’ philosophy, whereby artists who find their labels are unwilling or unable to make their music commercially available could regain control of the recordings, so they…

Absolutely fabtastic – new Virgin Radio name sails into rocky water
Trade Mark / November 2008
India
UK

TRADE MARK Broadcasting In June the Times of India Group brought Virgin Radio from SMG for £53.2 million and had to rebrand the rock radio station in India because they compete with Richard Branson’s Virgin Group in that country and as Branson still holds the rights to the name Virgin Radio in the UK, The Times Of India’s rebranded their new UK radio company as Absolute Radio (as part of its new management company, Absolute Radio International). But V&S (Vin & Spirit) the proprietor of Absolut (the trade mark of Swedish vodka) was less than impressed and has commenced proceedings against the rebranded Virgin Radio, Absolute Radio. As well as the vodka trade mark V&S owns the Absolut TRacks music project, and claims Virgin Radio is infringing its trade mark and passing its services off as those of V&S. A spokeswoman for V&S stated, “The reason for this is that we consider there is a risk of confusion. We have a well known brand and there is an obvious risk of confusion between Absolut vodka and Absolute Radio. We have filed a complaint and now we go into the legal process.” http://www.guardian.co.uk/media/2008/oct/10/commercialradio-radio

Big ruck down under
Copyright , Music Publishing / November 2008
Australia

COPYRIGHT Music Publishing Australian music publishing firm Larrikin Music has lodged a statement of claim against the iconic 80’s hit ‘Down Under’ recorded by Aussie tunesmiths Men At Work alleging that the international song carries an unlicensed sample from a well known Australian children’s nursery rhyme, “Kookaburra,” which it represents. Larrikin claim that the flute riff in Men At Work’s hit is lifted from the earlier song, written in the 1930s by Marion Sinclair, a music teacher and a long time supporter of the Girl Guide movement which has embraced the song as a anthem. The proceedings were instigated when the similarities were raised during a September 2007 episode of the local ABC TV quiz show “Spicks and Specks.” During the show, the question was posed, “What children’s song is contained in the song ‘Down Under?’” The answer, according to the program, was “Kookaburra.” Larrikin is seeking compensation from the “Down Under” songwriters, Colin Hay and Ron Strykert, plus Sony BMG Music Entertainment, Sony DADC Australia, EMI Songs Australia and EMI Music Publishing and are claiming part ownership of the music telling billboard.biz “obviously, we’ve had nothing to do with the lyrics of the song – we’d say that’s 50%…

Loner worker says collection society is taking the PRS
Copyright , Music Publishing / November 2008
UK

COPYRIGHT Music publishing A garage owner who works on his own is furious after the PRS informed him that he has to pay for a music licence if he wants to listen to the radio at work. Paul Wilson, whose garage is on an industrial estate near Ilkeston Road, Nottingham, received a call from the Performing Rights Society (PRS) in May. The PRS said he needed a £150 licence if he wanted to listen to the radio at work as it was a public performance although a PRS spokesman has now said he would review Mr Wilson’s “lone worker” situation. The garage owner was initially asked in a phone call from the PRS whether he had a licence and then received a follow-up letter and then Mr Wilson said “they told me if I did listen to a radio, I would be committing an offence and they were likely to send officers round to check so since then I’ve not put on the radio”. Adrian Crooks from the PRS said: “PRS exists to look after songwriters and composers. In UK law if you’ve written a song, it’s your property and you decide who can use it in business environments” adding…

Two Japanese men arrested for alleged mobile piracy
Copyright , Internet / November 2008
Japan

COPYRIGHT Internet / Technology Two Hyogo Prefecture men have been arrested on suspicion of breaching copyright by enabling mobile phone users to obtain free downloads of songs, police said. Keishi Fujimoto, 28, unemployed, of Himeji, and Takashi Matsuoka, 53, a company worker of Kawanishi, were arrested on suspicion of violating Japan’s Copyright Law. It is the first arrest made under the law in connection with an Internet site offering downloads of entire songs. The Kyoto prefectural police will seek to clarify the details of how the site, one of the largest-scale illegal music download sites in the nation, operated. Operated and managed by Fujimoto, the site–named Dai 3 Sekai–has more than 1 million members, and is popular among middle and high school students. According to the police, Fujimoto made it possible for an unspecified number of people in May and June to download three songs for free via the site, including “Hope or Pain,” a popular song by pop singer Ayumi Hamasaki. In October 2006, Fujimoto also offered “Jonetsu Tairiku with Komatsu Ryota,” an instrumental piece composed by violinist Taro Hakase, for download, with Matsuoka acting as his accomplice. Fujimoto told the police that he opened the site to profit…

Jammie Thomas file swapping decision back in the news
Copyright , Internet , Record Labels / November 2008
USA

COPYRIGHT Internet, record labels From The CMU Daily Jammie Thomas, whose legal team successfully argued that the RIAA had failed to prove that anyone actually did share the music Thomas had made available, and therefore actual infringement had not been proven has proved to be an inspiration in another peer-2-peer file swapping case against a Whitney Harper. She actually admitted to making 37 songs available via Kazaa in court earlier this year, though added as a defence that at the time she was unaware that doing so was illegal. Ignorance of the law isn’t usually a good defence, but the judge in that case, Xavier Rodriguez, expressed sympathy for the defendant and proposed a more lenient damages package of $200 per track. The RIAA weren’t impressed, though subsequently decided to accept the proposed $7400 settlement. Except, now her lawyer is pushing for a full trail in the case, presumably because he knows the US trade body doesn’t have any evidence the files Harper put into her Kazaa sharing folder were ever actually downloaded and, given the Thomas precedent, his client could get away with paying no damages. The RIAA continue to fight the technicality defence used in the Thomas case…

MU joins criticism of Licensing Act
Licensing , Live Events / November 2008
UK

LICENSING Live music From an article by Lalayn Baluch in the Stage The Musicians’ Union has become the latest organisation to criticise the impact of the Licensing Act 2003 on live entertainment in the UK, accusing it of greatly increasing bureaucracy “for very little benefit”. In the MU’s submission to the Culture, Media and Sport Select Committee’s licensing regime inquiry, the musicians’ trade body argues that the legislation has failed to increase the number of live music events around the country and has deterred small venues from hosting gigs. The trade body is now calling on the government to implement “tangible benefits” for venues which do schedule events – such as tax breaks for those that host more than 50 gigs every year – to create a clearer definition of incidental music and simplify the licensing application process. Meanwhile, the union’s report also mounts pressure on the government to introduce an exemption from the legislation for small venues. The MU’s submission states that the inclusion of regulated entertainment in the licensing act is unnecessary and reveals that according to the majority of police chiefs around the country, live music has no effect on the levels of crime and disorder. It also criticises the…