Recorded music, internet
By Leeza Panayiotou LLB(Hons)
Late in February 2014 a cease-fire was called on the copyright infringement claim between Ministry of Sound (MoS) and Spotify.
To remind readers, in September 2013, MoS issued proceedings against Spotify, alleging that Spotify had infringed MoS’s copyright in their compilation album listings. MoS maintained that their compilation albums constitute an ‘original database’ as they are arranged by a MoS expert team in a systematic and methodical way; affording them protection under section 3A Copyright Designs and Patents Act 1988 (CDPA). In light of this, MoS submitted that Spotify had infringed their copyrighted work by copying and/or communicating to the public their compilation albums via their online music streaming service, as per sections 17 and 20 CDPA.
Spotify, who licence songs from copyright owners to stream to its users – either for free with adverts played intermittently or for a subscription fee without adverts – did have several playlists available that either sited MoS in the title or mirrored the MoS compilations; hence the copying ground. Further, the ‘browse’ section which groups playlists made by other users or Spotify themselves by category or type of music, allows users to easily share the playlists they have made with one another; hence the communicating to the public ground.
The dance record label that expanded from its days as a London night club to a multimedia entertainment business, which now include a radio station and a YouTube TV Channel, sought an injunction requiring MoS playlists and users playlists that sited MoS in their titles to be removed and permanently blocked from Spotify. Furthermore, MoS sought damages and costs of the action from Spotify. However, the individual tracks that made up the MoS compilation albums had been correctly licensed by Spotify from the record labels that owned the copyright to the actual songs themselves.
Consequently, the claim would have hinged on the basis that copyright protection can be awarded to the order of songs on an album.
MoS claimed that the work they put into compiling their albums, which have sold over 50 million copies, amounted to their “own intellection creation”, as per section 3A (2) CDPA, being the result of careful selection, skilful editing and expert mixing; a creative process.
Spotify initially asserted that legislation and common law did not support MoS’s view, and as such refused to remove the MoS playlists when asked by MoS to do so.
Had the claim concluded at trial, Spotify’s argument may have had merit in light of the Court of Appeal decision in late in the Football DataCo case 2012 that stated football fixture lists could not be afforded copyright protection; a similar claim turning on how certain lists were compiled.
Furthermore, Spotify argued that compilation albums are not afforded copyright protection as a database under the Database Directive 96/9/EC. Specifically, recital 19 states that as a general rule, the “compilation of several recordings of musical performances…does not come within the scope of this Directive…as a compilation…does not meet the conditions for copyright protection”.
Nevertheless, the Database Directive also highlights the fact that the authors own original intellectual creativity should be the primary focus in deciding if a database should be awarded copyright protection.
As a result, deciding on a case by case basis in light of its facts, it is possible that MoS may have been able to successfully argue that their compilation albums are a result of their own original intellectual creativity and as such qualify for copyright protection.
The settlement between the parties appears to have resulted in Spotify blocking users from following playlists that copy the listing of MoS compilation albums and removing said playlists from appearing in the streaming services’ ‘search’ and ‘browse’ results all together. It is thought to be the case that users can still create similar playlists to the MoS compilations for their own personal use however.
Despite both parties wielding compelling arguments, the matter was not concluded at trial, leaving the inquisitive among us to wonder which way the axe might have fallen.
Football DataCo Ltd & Others v Yahoo! UK Ltd  EWCA Civ 1696