German Court confirms prison sentence for Landser singer
Artists , Criminal Law / April 2005

CRIMINAL LAW Artists Germany’s Supreme Court has ruled that neo-Nazi rock group Landser spread racial hatred and was a criminal organization, upholding the first such judgment in the country against a music group. The court also upheld the three year and four month prison sentence against lead singer Michael Regener. A Berlin court had ruled in December 2003 that Regener, 39, had formed a criminal organization, incited racial hatred and spread Nazi propaganda in a case that set a legal precedent by bring a collective action against a group of musicians. The Supreme Court ruling upheld the lower court’s judgment, saying the group had acted together to produce and distribute right-wing, racist material. Two other group members had received suspended sentences of 21 and 22 months at the trial which lasted six months. Landser is an old German name that means soldier. Source: http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=7872969

German court clears ISPs of liability for infringing uses by third parties

COPYRIGHT Record Labels, Internet, Music Publishers, Film & Television The Higher Regional Court of Frankfurt has ruled that an Internet Service Provider (ISP) is not obliged to reveal the name and address of an Internet user who offers downloads of music files on the Internet even though this service violating the copyrights or other rights of third parties The Court overturned a lower court order to have the name of an Internet user who operated a music server via a German provider made known to a music firm (reference no.: 11 U 51/04). The Court noted that the ISP only supplies technical access to the Internet and does not generally have any obligation to inspect the data being sent through its network. Rather, providers are only obligated to block access when they learn of illegal content. Providers do not, however, have to provide information about their customers because the providers have not themselves violated copyrights or aided and abetted. The court noted that whist there is a legal right to obtain information about a person violating copyright by making or disseminating physical copies of copyright works (eg pirate CDS and DVDs) the provisions in the Product Piracy Act only concern the manufacture…

German court find promoter liable for damaged hearing
Health & Safety , Live Events / February 2005

HEALTH & SAFETY Live Events Industry Leading German concert promoter Marek Lieberberg Konzertagentur (MLK) has been ordered to pay four thousand Euros (E4,000, approx 00) to a woman who claimed her hearing was damaged at a Bon Jovi concert four years ago. The company must also pay medical expenses and loss of income. The Court said that MLK had failed to take sufficient precautions to limit the volume of the outdoor concert in 2000. The injured woman said she was standing 2.5 metres from a speaker and now suffered from tinnitus. This case contrasts to an earlier US ruling which held that a promoter could not be liable for the alleged damaged hearing of a plaintiff lawyer who should have realised that loud music was played at rock concerts. In a separate report, the UK’s Royal National Institute for the Deaf (RNID) and Trades Union Council, have said that over 500,000 bar and club workers in the UK are at risk from loud music played at their places of work. The report, ‘Noise Overload’, states that the noise in some nightclubs is comparable to being next to an aircraft taking off and that not enough is being done to protect…

German Clash Over Levy On Copying Devices

COPYRIGHT Record Labels, Music Publishers, Technology, Internet A long-running feud in Germany over imposing a levy on computers and printers has returned to the headlines after a government minister suggested extending the levy to all devices capable of duplicating copyright-protected material. In a weekend interview with the Süddeutsche newspaper, German Justice Minister Brigitte Zypries said the government may broaden its copyright law to include a levy on all devices capable of copying and not just copy machines, scanners and CD burners. Currently, Germany imposes a levy only on devices specifically designed for copying, according to Zypries; in the future, she said, all devices that can be used to copy copyright-protected material should be subject to a fee, with the amount determined by usage. Germany is one of several European countries that for decades has been collecting special copyright fees on the sale of analogue copying devices such as blank audio and video cassettes, and more recently, digital CD players. The fees are intended to compensate rights holders for lost royalties from private copying of music, images and movies: attempts by the German rights society, VG Wort, to extend the same levy to computers and printers have met strong resistance by…

IFPI Announces A Wave of International Legal Actions Against File Swappers

COPYRIGHT Record Labels, Artists, Music Publishers IFPI and the recording industry associations in Denmark, Germany, Italy and Canada have announced the first wave of international lawsuits charging individuals with illegally file-sharing copyrighted music. A total of 247 alleged illegal file-sharers face legal action in a move that steps up the record industry’s international campaign against online copyright theft. Further waves of lawsuits against major offenders will be launched in different countries in the coming months. The legal actions charge the individuals with illegally making available hundreds of music tracks for copying, transmission and distribution via file-sharing services. However the move comes against a backdrop of criticisms in the United States where the Recording Industry Association of America has already used similar tactics. Critics point out that the European legal download market is still hampered by a lack of available rights and that the use of lawsuits is heavy handed. However the IFPI argue that More than 600,000 consumers in Europe alone are now accessing a large catalogue of 300,000 tracks that are available from 50 legal online sites. Jay Berman, Chairman and CEO of IFPI. said: “Today’s announcement should come as no surprise. Over the past year the record industry…

RIAA Bring Additional Legal Actions in the US Against Alleged File Swappers as French and German Sales of CDs Decline
Copyright , Internet , Record Labels / March 2004

COPYRIGHT Record Labels, Internet The RIAA (Recording Industry Association of America) has filed a further 532 lawsuits against alleged music pirates. Since losing the appeal in their action against Verizon (see Law Updates February 2004) the RIAA now have to file ‘John Doe’ suits in the US identifying their alleged downloader by their Internet Protocol address. Once a “John Doe” suit has been filed, the plaintiffs (RIAA member labels) can subpoena the information necessary to identify the defendant by name. The RIAA – Verizon (2003) case resulted in a decision by the federal appeals court that the information subpoena process allowed by the Digital Millennium Copyright Act (DMCA) cannot be used in infringement cases involving peer-to-peer networks. In the UK, the BPI (British Phonographic Industry) have said that they would also now consider taking legal action against the ‘worst offending’ internet file swappers. Meanwhile, facing their first annual sales decline in recent memory, officials from France, the world’s fourth largest music market, said that they would also fight back with lawsuits. French music industry trade body SNEP reported that recorded music sales fell 14.6% in revenues in 2003 to just under 2.1 billion euros – blaming the growth in file-sharing…

Zeta Jones and Douglas Win Limited Damages
Artists , Consumers , Image Rights , Privacy / December 2003

PRIVACY, IMAGE RIGHTS, COMMERCIAL CONFIDENCE Artists The photographs snatched by papparatzi at Catherine Zeta-Jones and Michael Douglas’ wedding have cost Hello! Magazine more than £1 million in damages. In the High Court, Mr Justice Lindsay awarded a total of £14,600 damages to the couple and also awarded OK! Magazine £1,033,156 in damages for commercial damage to its exclusive coverage of the New York wedding in November 2000. See Law Updates May 2003 COMMENT : The judgement in this case sees only limited damages awarded to the couple : a nominal £50 to each of the claimants for data protection infringements and £3,750 each for the ‘distress’. The substantial award of damages is to OK magazine who lost their right to exclusive pictures from the celebrity wedding and Mr Justice Lindsey accepted that the magazine had lost substantial sales. To take this further, this ‘commercial confidence’ must be based on the licence of certain rights Catherine Zeta Jones and Michael Douglas has – and it is suggested that this is not only to the ‘event’ itself, the wedding, but to their own image. Most recently F1 driver Eddie Irving won a case against TalkRadio after they used the driver’s image in an…

Germany considers new copyright reform

COPYRIGHT Internet, Record Labels, Artists, Music Publishing The German Minister of Justice Brigitte Zypries has announced the “second basket” of reform for copyright laws for Germany. Zypries said she wanted to see the remaining provisions of the EU Directive of Copyright in the Digital Age enacted into law by next summer (see the position in the UK below). In particular the new laws will prohibit the right to make private copies made from digital sources. German commentators have remarked that this provision is similar to that of the US Digital Millenium Copyright Act and have pointed out that such a provision would be unacceptable; Copyright owners who protect their content by encyryption would be relieved from the obligation to offer access for privileged users such as libraries, schools or disabled persons and commentators add that basic constitutional freedoms would be undermined. Eva-Maria Michel, Legal Counsel of the WDR Public Broadcasting Station has said that the provisions would be a violation of the constitutional liberties of the media. Michel warned that the copyright reform focuses too much on combating piracy and thereby destroy basic privileges in the copyright field. The movie and music industries have, by contrast, lobbied to remove the right to…

DVD pioneers consider Warners suit
Internet , Patents , Record Labels / November 2003

PATENT LAW Record Labels, Internet The inventors of the world’s first combined compact disc and DVD are considering legal action against Warner Music, one of the largest record groups, amid allegations of breach of contract and patent abuse. The Dierks Group, the privately-owned German music and technology group that pioneered the double-sided CD and DVD, has warned Warner that it has patents and contract rights over combined music and video discs after the US group signalled plans to manufacture so-called dual discs. Warner Music, a subsidiary of Time Warner, is planning to launch dual discs in the US next year in a potential tie-up with Sony Music, part of the Japanese consumer electronics and entertainment giant. Dieter Dierks who patented the combined disc technology under the name DVD Plus, has written to Warner Music claiming it has licenses over production of such discs and royalty agreements that promise a share of future profits arising from sales by the US group. See: www.cdfreaks.com/news2.php?ID=8078

SOLOISTS CAN PROVIDE VAT FREE SERVICES IN GERMANY
Artists , Live Events , Taxation / May 2003

TAXATION Live Concert Industry, Artists The ECJ (European Court of Justice) held on appeal that the meaning of ‘cultural bodies’ in the context of the supply of cultural services in the concert industry could extend to individual performers who would not need to charge VAT for their services. This case arose out of an appeal from the Federal Court of Justice in Germany (Bundesgerichtshof) by a German promoter against a criminal conviction for failing to account for VAT in respect of soloists engaged by him for a concert tour. The commercial nature of the activities did not preclude the services and their providers from being exempt from VAT in Germany. Reference: Criminal proceedings against Hoffman ECJ Case C-144/00

NAPSTER: BMG FACES LAWSUIT

COPYRIGHT Record Labels, Music Publishers The parent company of ‘major’ record label BMG are the latest recipient of a lawsuit in the Napster saga. The German media giant Bertelsmann has received a $17 billion lawsuit from a group of songwriters, composers and music publishers alleging that by funding the file swapping service BMG had been involved in the widespread infringement of copyrighted music works and had deprived the claimants of millions of dollars of revenues. Bertlesmann invested in Napster in the hope of turning Napster into a subscription service. Bertlesmann argue that their investment is only a loan and deny any legal liability. Ironically Bertlesmann owns a major publishing catalogue through BMG which would benefit from any successful action. See www.newsvote.bbc.co.uk

USE OF SIMILAR MARKS
Trade Mark / February 2003

TRADE MARKS Merchandising Davidoff et Cie SA -v- Gofkid Ltd (2003) European Court of Justice C292/00 (2003) This case concerned an action by Davidoff who distributed luxury cosmetics, clothing, tobacco, leather and other goods under the trade mark Davidoff which is registered in Germany and other countries. The defendants owned the markDurfee – registered in Germany later than the Davidoff mark. The marks had the same script and the same distinctive styling of the letter D and ff. At first instance the claim was refused as it was held that there was no risk of confusion between the marks. The ECJ held that despite there being no risk of confusion between the marks, Articles 4(4)(a) and 5(2) of the EEC trade mark Directive 89/104 provided specific protection for the first registered mark against a later mark which was identical with or similar to the first registered mark and which was intended to be used or was being used on goods or services similar or identical to the first registered mark. (The Times, 22 January 2003).