PROTECTION IN JORDAN EXTENDED TO INTERNET MATERIAL
Copyright , Internet / August 2003

COPYRIGHT Internet Jordan brought its copyright laws up to date by extending protection to the Internet, but proper enforcement remains the next hurdle, businessmen said on Wednesday. Jordan has implemented “100 per cent” of its commitments to various international bodies by extending copyright protections to material on the Internet, Minister of Industry and Trade Salah Bashir said. The change to copyright laws also toughens penalties against those who violate them, for example, by pirating music or computer software, said Tawfiq Tabbaa, a member of the Jordanian Intellectual Property Association. Tabbaa said the laws protecting intellectual property adopted since 1999 are working, noting that software piracy has dropped from 87% in 1999 to 64% this year. Tabbaa said work is going to “increase judicial capacity” when it comes to the often highly technical arguments made in cases over who has the legal claim to a certain idea. He said the government is looking at working with international experts ‘to help judges feel more a part of the changing laws that they will have to start applying in their courtrooms’. Source: The Jordan Times See http://www.menafn.com/qn_news_story_s.asp?StoryId=22321

FOOTBALL EMBLEMS ARE COPYRIGHT

COPYRIGHT Artists, Record Labels Football Association Premier League Ltd and others -v- Panini UK Ltd The Court of Appeal has held that the badges and crests of individual English football clubs were the artistic works of the clubs and were entitled to copyright protection. The unlicensed inclusion of these badges, crests and emblems on the stickers of Panini’s Football 2003 Sticker Collection was not an ‘incidental inclusion’ in an artistic work within the meaning of section 3(1) of the Copyright Designs and Patents Act 1988 and therefore an injunction was granted to restrain the defendant distributing those stickers and albums. Lord Justice Chadwick held that where an artistic work in which copyright subsisted appeared in a photograph – because it was part of the setting in which the photographer found his subject, then it could be properly said to be an integral part of the photograph. But to qualify as an exception to infringement, the inclusion of the work must be incidental and on the facts of the case, clearly the inclusion of the badges, crests and emblems was not incidental as it was the basic object of the defendant’s production of stickers and albums. Source: The Times, Law Report, 17 July 2003 See http://www.timesonline.co.uk/legalarchive…

ELECTRONIC FRONTIER FOUNDATION LAUNCH CAMPAIGN TO CHANGE US COPYRIGHT LAW

COPYRIGHT Record Labels, Music Publishers, Internet, Artists The Electronic Frontier Foundation (EFF) today launched a “Let the Music Play” campaign urging the more than 60 million U.S. citizens who use file-sharing software to demand changes in copyright law to get artists paid and make file-sharing legal. The EFF Let the Music Play campaign counters the Recording Industry Association of America’s (RIAA) announcement that it will file thousands of lawsuits against individuals who use file-sharing software like Kazaa, Grokster, and Morpheus. “Copyright law is out of step with the views of the American public and the reality of music distribution online,” said EFF Executive Director Shari Steele. “Rather than trying to sue people into submission, we need to find a better alternative that gets artists paid while making file sharing legal.” EFF’s Let the Music Play campaign provides alternatives to the RIAA’s litigation barrage, details EFF’s efforts to defend peer-to-peer file sharing, and makes it easy for individuals to write members of Congress. EFF will also place advertisements about the Right to Share campaign in magazines such as Spin, Blender, Computer Gaming World, and PC Gamer. “Today, more U.S. citizens use file-sharing software than voted for President Bush,” said EFF Senior…

SOUTH KOREAN COURT EXPLORES ONLINE INFRINGEMENTS
Copyright , Internet / August 2003

COPYRIGHT Internet Bugs Music, Koreas biggest online music service provider, has taken the upper hand in the initial stage of what is expected to be a long legal battle with prosecutors who are trying to draw a clear line on the copyright dispute between Internet music providers and the music industry. The Seoul District Court yesterday turned down a prosecution request for an arrest warrant for Park Sung-hoon, who heads the music provider. The Court said that as `his residence is fixed and there is no concern he will destroy evidence’ no warrant would be granted. Park was charged with copyright infringements as his online company provided music streaming services to more than 14 million members. Prosecuters will continue to investigate Bugs to determine future charges of copyright infringement. The lawsuit, which would serve as the conclusion of ongoing disputes surrounding Koreas online music service providers, was first brought up by a joint plaintiff of 25 local music labels and five distributors of foreign labels in February asking the court to shut down the online music site on charges of infringement of reproduction rights. Bugs Music has admitted that they are partly at fault. However, they are arguing that their…

GLOBAL SALES OF ILLEGAL CDs TOP 1 BILLION UNITS

COPYRIGHT Record Labels, Music Publishers, Artists, Internet A report published by the International Federation of the Phonographic Industry (IFPI) shows that the illegal music market is now worth $4.6bn (£2.8bn) globally. It believes two out of every five CDs or cassettes sold are illegal. The IFPI said much of this money is going to support organised criminal gangs, dispelling the myth that it is a “victimless crime”. Jay Berman, chairman of the IFPI, said: “This is a major, major commercial activity, involving huge amounts of pirated CDs. The IFPI’s top 10 priority countries where labels want a crackdown on piracy are Brazil, China, Mexico, Paraguay, Poland, Russia, Spain, Spain, Taiwan, Thailand and Ukraine. The IFPI also pointed out that when factoring in unlicensed downloads then “only one in three music products in the UK is authorised.” Despite the increase in the amount of CDs illegally produced and sold around the world, up 14% on 2001, there has also been a rise in the amount of CDs and recording equipment seized. The number of discs seized on their way for public sale was more than 50 million, a four-fold rise on the previous year. The IFPI is concerned in two main…

AUSTRALIAN RECORD INDUSTRY SECURES ORDER TO ALLOW ACCESS TO UNIVERSITY COMPUTERS
Copyright , Internet , Record Labels / August 2003

COPYRIGHT Internet, Record Labels Three of Australia’s largest Universities today lost the battle to block the music industry from gaining access to their computer infrastructure, with the Federal Court ordering them to allow the industry’s experts to gain access. Federal Court Justice Brian Tamberlin ordered the Universities of Sydney, Melbourne and Tasmania to allow the music industry access to the infrastructure to seek information regarding alleged breaches of copyright, such as file-sharing, by University staff or students. The music industry had been seeking access to information on the Universities’ network it claims contains evidence of copyright infringement, but the Universities refused, citing privacy concerns. Justice Tamberlin previously stated he would order the Universities to hand over the relevant information but had allowed time for both parties to provide arguments appealing the decision. This story is from: http://www.zdnet.com.au/newstech/security/story/0,2000048600,20276375,00.htm COMMENT : This Australian case follows on from the Recording Industry Association of America’s successful action against Verizon. There, the US Courts granted the RIAA access to the cable provider’s subscriber details so that the RIAA could identify those who infringed copyright on the internet. In both cases the right to privacy was held to be inferior to the right of copyright owners to seek…

US COURT DIMISSES COPYRIGHT INFRINGEMENT CASE

COPYRIGHT Artists, Record Labels, Music Publishers A federal judge has dismissed a copyright infringement lawsuit against Britney Spears, her record label (Zomba/Jive) and BMG Music Publishing, saying two Philadelphia songwriters failed to prove the pop singer copied the melody of one of their songs. U.S. District Judge Berle M. Schiller ruled last week that Michael Cottrill and Lawrence Wnukowski couldn’t provide enough evidence to prove Spears had access to their song titled, “What You See Is What You Get,” when she recorded, “What U See (Is What U Get).” Cottrill and Wnukowski said they gave one of Spears’ representatives a copyrighted version of their tune in late 1999 after being asked to submit songs for consideration for the singer’s upcoming album. But Schiller, citing defence testimony, said the melody of Spears’ song was completed by the beginning of November 1999, before Spears and her representatives “would have had access to a copyrighted version of plaintiffs’ song.” The Judge went on to say that there weren’t enough similarities between the two songs to prove copyright infringement. The four men credited with writing Spears’ song, released on her best-selling second album, “Oops! … I Did it Again,” testified that they hadn’t heard…

VERIZON HAND OVER SUBSCRIBER DETAILS

COPYRIGHT Record Labels, Music Publishers, Internet Having failed to persuade the appeals court of its case, US ISP Verizon has handed over the names of four of its customers to the Recording Industry Association of America (RIAA) – marking a significant victory for the RIAA and a shift in the way that the US courts deal with the conflict between copyright infringements on the internet and customer privacy on the internet. The decision will undoubtedly have an impact on net users around the world. The RIAA first contacted Verizon last year after finding files being shared through the Kazaa peer-to-peer network from computers with IP addresses on Verizon’s network. The RIAA had no way to find who the users behind those computers were, so used a provision of the Digital Millennium Copyright Act to issue a court-authorised subpoena to the ISP, asking for the subscriber names. Verizon refused, arguing that they were just a communications channel and had nothing to do with the potentially copyright-infringing behaviour of their customers. For comment in this area see: ‘Copyright holders like record labels have too much power over what people do with songs’ argues technology analyst Bill Thompson. See: http://news.bbc.co.uk/1/hi/technology/2968216.stm

RIAA FACE SETBACK IN LATEST ACTION AGAINST P2P FACILITATORS

COPYRIGHT Record Labels, Music Publishers, Internet In a blow to record labels, music publishers and film producers, a Federal judge in Los Angeles on Friday denied the Recording Industry Association of America’s (RIAA) motion for summary judgement in its copyright-infringement suit against peer-to-peer file-swapping services Morpheus and Grokster. The RIAA along with the National Music Publishers’ Association and the Motion Picture Association of America, filed the suit in 2001. Judge Stephen Wilson broke with the recent series of victories for the entertainment industries’ trade association recently and ruled that the P2P service providers are not liable because they are capable of non-infringing use. He compared the case to landmark litigation brought by movie studios in 1984 against Sony Corporation over the sale of Betamax videocassette recorders which of course could be used to (legitimately) play pre-recorded copies of films but could also be used to copy programmes from the television. Judge Wilson held that “The sale of copy equipment … does not constitute contributory infringement if the product is capable of substantial non-infringing uses,” Wilson wrote. Grokster and StreamCast Networks, firms that distribute the file-sharing programs Grokster and Morpheus, were not guilty of copyright infringement just because some users swap…

US COURT HAMMERS MAJORS’ ACCOUNTING PRACTICES
Artists , Copyright , Record Labels / June 2003

COPYRIGHT Record Labels, Artists On April 22 2003, the U.S. District Court based in Los Angeles, dealt a blow to BMG and Sony, deciding that record clubs owned by the two majors had to face a court action scheduled for January 2004. The court found that the record clubs failed to pay for mechanical licenses on the premium records given away (roughly 6-8 cents per song, per copy sold). Songwriters’ lawyers estimate that the record clubs failed to account for approximately $100 million dollars a year. The following comment is from respected industry author – Moses Avalon, in his latest e-newsletter Moses Supposes. His site can be found at www.mosesavalon.com. It is an interesting attack on what might be seen as the hypocritical attitude of the labels in pursuing P2P file sharers and yet at the same time maintaining archaic and unfair accounting and trade practices. The Recording Artists’ Coalition have made similar comments (see Law Updates March 2003 and www.recordingartistscoalition.com). “All this makes you wonder why the RIAA (which is funded by companies who own both major publishing houses and record clubs) scream bloody hell over KazaA and Napster, and yet ignore this? Could it be to distract us from the fact…

MICHAEL JACKSON LAUNCHES ACTION AGAINST MOTOWN
Artists , Copyright , Record Labels / June 2003

COPYRIGHT Artists, Record Labels Michael Jackson is suing his former label Motown Records and its parent company Universal Music Group. Jackson claims that Motown, the label he signed with in 1969, breached a contract dated January 1980 that required the label to pay him royalties for certain pre-1976 recordings made by Jackson as a solo artist and the Jackson 5. In exchange for those royalties, Michael Jackson had agreed to waive his rights to other pre-1976 recordings. The 1980 contract was actually a settlement agreement stemming from lawsuits filed in 1975 and 1976 by the members of the Jackson 5 against Motown over accounting and contractual obligations. Jackson is now seeking complete and accurate accounting from Motown with full payment of all royalties due. Jackson is also asking the court to rescind the 1980 agreement and the underlying contract allowing Jackson to regain ownership and title to his master recordings and compositions. For more details see http://www.rollingstone.com/news/newsarticle.asp?nid=18038

CALIFORNIA SENATE TO CONSIDER DRAFT LAW TO OBLIGE RECORD LABELS TO CALCULATE ROYALTIES

COPYRIGHT Record Labels, Artists, Music Publishers A Bill designed to provide Californian recording artists with accurate accounting has won approval from the Senate Judiciary Committee. The Bill (SB1034) introduced by Senator Kevin Murray (D) would make it a “fiduciary duty” for labels to accurately calculate royalty earnings owed to artists. Music industry officials oppose the Bill, saying it would impede labels from developing new business models in the face of surging piracy. RIAA (Recording Industry Association of America) President Cary Sherman testified Tuesday that the bill “would distort the intensely negotiated, arms-length contractual relationship between an artist and recording label by imposing a fiduciary duty only on one party.” However, Committee members countered that only one party, the record company, holds the financial information to calculate royalties. The Recording Artists’ Coalition have repeatedly claimed that recording contracts are outmoded and complex, lack clarity in royalty calculations and contain numerous unjustifiable royalty reduction and discount provisions. See http://www.billboard.com/bb/daily/article_display.jsp?vnu_content_id=1883484

UGANDAN MUSIC PIRACY PROMPTS NEW COPYRIGHT SANCTIONS
Artists , Copyright , Record Labels / June 2003

COPYRIGHT Record Labels, Artists Widescale CD and cassette piracy in Uganda have prompted the Uganda Performing Right Society (UPRS) to push for legislation to criminalise piracy. UPRS estimate that over ten million units are copied and sold in Uganda annually depriving copyright owners of substantial royalty payments. Source:http://allafrica.com/stories/200304240277.html 

BELGIUM TO INTRODUCE TAX ON REWRITABLE CDs

COPYRIGHT Record Labels, Music Publishing The Belgian Ministry of Economy has announced that a 12 eurocent per hour tax will be levied on blank rewritable CDs to compensate composers, copyright holders and performers for copies made for personal use and to counterbalance the likely lower income paid to copyright owners from reduced music CD sales. Meanwhile, in a different approach to music piracy, Italy has announced tough new laws against those illegally buying and selling pirated music on street stalls. For the first time, buyers of pirated CDs will face a fine of up to 154 euros for each illegal CD brought. Sanctions against vendors have been increased and vendors face fines and imprisonment for up to three years. See http://www.expatica.com/belgium.asp?pad=88,89,&item_id=30857

BRITISH SINGER MISS KIER ALLEGES THAT HER CHARACTER RIGHTS ARE BEING USED WITHOUT CONSENT
Artists , Copyright , Trade Mark / June 2003

COPYRIGHT, TRADEMARK Artists, Merchandising The flamboyant British singer Lady Miss Kier believes a video game has stolen her image including her pink ponytailed hair, short skirt and knee-high boots and signature cry of “Ooh La La.” Miss Keir, who found fame with Deee-Lite, filed the suit in the Los Angeles Superior Court this week against the U.S. arm of video game publisher Sega, alleging the 2000 game “Space Channel 5” used her likeness for the ‘Ulala’ character without her permission and that the name of the character is based on Keir’s own signature ‘Oh La La’. Keir alleges that Sega approached her for permission but still used her image even after she declined to grant a licence to Sega . See http://www.forbes.com/technology/newswire/2003/04/30/rtr957273.html

RIAA -V- STUDENTS

COPYRIGHT Record Labels, Music Publishing, Internet Four US students have agreed to pay damages after the RIAA (Recording Industry Association of America) issued proceedings for providing illegal peer-2-peer downloading sites for profit. Daniel Peng, Joseph Nievelt, Jesse Jordan and Aaron Sherman also agreed not to illegally distribute copyrighted music, although they did not admit to any wrongdoing (see Law Updates May 2003 RIAA Launches Pre-emptive Strike Against Student Downloading). The four students will pay between $12,000 (ÿ£7,500) and $17,500 (ÿ£11,000) each to the RIAA. The RIAA hope that the action will prompt universities to shut down similar downloading services which are facilitated by university high speed broadband and cable services which are available to students. Source www.riaa.com

VERIZON MOTION TO QUASH FAILS

COPYRIGHT Record Labels, Music Publishers, Internet In an update on the case between the RIAA and Verizon (see Law Updates March 2003), Judge Bates of the U.S. District Court for the District of Columbia, has denied Verizon’s motion to quash a subpoena requiring it to identify a subscriber who was suspected of illegally sharing music online on the 24th April. The RIAA (Recording Industry Association of America) had served the subpoena on Verizon under the provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”). Under the DMCA, a copyright holder can request a subpoena by asserting that a violation has occurred. Verizon put forward constitutional challenges, arguing that the Courts construction of the provisions of the DMCA does not provide sufficient safeguards to protect Internet users’ rights of expression and association under the First Amendment Rights of Internet users, and violates Article III of the Constitution. Both of these arguments were rejected by the Court. See www.riaa.com and www.dww.com/newsletter/ For the full decision see (pdf file) : http://www.dcd.uscourts.gov/03-ms-0040.pdf

BARBARA TAYLOR BRADFORD BRINGS ACTION IN INDIAN SUPREME COURT
Copyright / June 2003

COPYRIGHT Television, Radio The author Barbara Taylor Bradford has won an injuction in the Indian Supreme Court to prevent transmission of a 260-episode Bollywood serial ‘inspired’ by her best selling novel A Woman Of Substance. The novel tells of the heroine’s rise from an impoverished servant to become head of a business empire and the Bollywood serial Karishma – the Miracles Of Destiny charts a similar story. Both stories begin with the heroine recounting her adventures in old age. Taylor Bradford won an injunction at first instance in the Calcutta High Court, although this was overturned on appeal. However on the 12th May the injunction was confirmed in the Supreme Court – although broadcaster Saraha TV broadcast the first episode risking an action for contempt of court. (source: The Times, May 14th 2003). COMMENT : This case could have interesting ramifications in the debate on the protection of format rights. UK copyright law does not protect ideas, only the expression of ideas. It is sometimes very difficult to draw the line between what is an idea and what is the expression of an idea. In the English case of Rees -v- Melville (1911), it was held that the plot or storyline to a play could be protected but…

COURT PROVIDES NEW WEAPON IN THE AUDIT ARSENAL

COPYRIGHT Record Labels, Music Publishers, Merchandising CARLTON FILM DISTRIBUTORS -v- VCI & VDC As a result of a High Court decision last month companies pursuing royalty audit claims have acquired a new procedural weapon. It has now been established that in appropriate cases the court will order pressing plants to disclose their manufacturing records to an audit claimant prior to the commencement of any court proceedings. One of the most contentious areas in royalty audits is access to manufacturing records so audit claimants can compare numbers of units accounted with numbers of units actually manufactured. Companies being audited often will not, and sometimes cannot, provide manufacturing records. This leaves audit claimants in a difficult position. Should they pursue claims where they have reasonable suspicions but no hard evidence that all units manufactured have not been properly accounted? It is possible to obtain disclosure of documents from the potential defendant prior to commencing court action. But what if that company says it has no manufacturing records? This was the dilemma facing the claimant in Carlton Film Distributors -v- VCI and VDC. Carlton had entered into a licence agreement with VCI for the manufacture by VCI of videos. The licence agreement contained…

RIAA LAUNCHES PRE-EMPTIVE STRIKE AGAINST STUDENT DOWNLOADING

COPYRIGHT Internet, Record Labels The RIAA (Recording Industry Association of America) has issued lawsuits against four students in the United States to prevent the illegal downloading of music files. Two of the students are from Rensselaer Polytechnic Institute, one from Princeton and one from Michigan Technological University. The Record Industry’s previous tactic (e.g. in the UK) had been to send university and employers formal notices detailing their approach to the illegal downloading of music in educational institutions and the workplace (see Law Updates April 2003 BPI Targets Universities Over Illegal Downloads). These actions are against students who set up sites where sound recordings could be searched and then facilitated downloading and the lawsuits claim that one of the sites could distribute over 1 million MP3 files. See: http://www.wired.com/news/digiwood/0,1412,58351,00.html

SUPREME COURT OF CANADA TO REVIEW THE POSITION OF INTERNET SERVICE PROVIDERS (ISPs)
Copyright , Internet / May 2003

COPYRIGHT Internet The Supreme Court of Canada is to review the position of Internet Services Providers who facilitate the transmission of music on the internet. The case in question, known as the ‘Tariff 22 case’ began in 1995 when the Society of Composers, Authors and Publishers of Music in Canada (SOCAN) filed an application with the Copyright Board of Canada for the creation of a new royalty to cover music on the Internet. SOCAN argued that all parties involved in an Internet transmission – from the poster to the Internet service provider to the recipient – are liable for the communication and thus all bear some responsibility to pay an appropriate licence or royalty fee. Canadian Internet service providers (ISPs) led the opposition to the SOCAN proposal arguing that as mere intermediaries (much like phone companies) who should not be held liable for the content transmitted over their equipment. In 1999 the Copyright Board ruled that music transmitted over the Internet qualified as a public performance under the Copyright Act and therefore could be subject to a royalty. It also determined that ISPs could rely on a provision that exempts intermediaries from liability where they function strictly in an intermediary…

DAMAGES AWARDED IN EASYINTERNETCAFE LITIGATION

COPYRIGHT Internet, Record Labels Easyinternetcafes have agreed to pay costs and damages totalling £210,000 to the British record industry as a result of the High Court judgement awarded against the internet café chain in January 2003 as a result of the chain’s activities in illegally downloading music and burning CDs for customers (see Law Updates February 2003). See http://media.guardian.co.uk/newmedia/story/0,7496,933184,00.html

US MERCHANDISER TO BRING COUNTERCLAIM ACTION AGAINST BRITNEY
Copyright / April 2003

COPYRIGHT Merchandising SKECHERS USA Inc. the US footwear manufacturer has announced that the Company will file a counterclaim lawsuit against singer Britney Spears and her companies, Britney Brands Inc. and Britney Touring Inc. for fraud and breach of contract. The suit, in the Federal court in Los Angeles, also includes allegations of unjust enrichment and negligent misrepresentation, and seeks rescission of all agreements between Skechers and Ms. Spears, return of all advances paid, costs, and compensatory and punitive damages in excess of ten million dollars. Skechers signed an exclusive three year worldwide licensing deal with Britney for a line of Britney branded roller skates known as Britney 4 Wheelers and accompanying apparel and skating accessories The suit alleges that the singer breached her obligations to Skechers under a merchandise license agreement by unreasonably delaying and failing to approve manufacturers, product designs and product advertising for Britney 4 Wheelers roller skates and apparel. See www.mtv.com/news/articles/1459660/2100301/story.jhtml

STIFF PENALTIES HANDED DOWN TO UK MUSIC PIRATES
Artists , Copyright , Record Labels / April 2003

COPYRIGHT Record Labels, Artists His Honour Judge Lowen, sitting in the Isleworth Crown Court on 12th March 2003, sentenced Yogesh Raizada to 3 years imprisonment and record fines of ,000 under a Confiscation Order. Raizada was charged and found guilty on eleven counts under the Trade Marks Act 1994 and a further two counts under the Video Recordings Act. The Court heard that Raizada had been subject to a number of raids carried out by the Police and Trading Standards Officer which resulted in the seizure of thousands of pirated music CDs, DVDs and video cassettes between 2000 and 2001. In a separate case, David Stanley was sentenced to 4 years and 5 months imprisonment at Maidstone Crown Court having been charged with conspiracy to defraud and attempting to pervert the course of justice. The Court heard that Stanley was ringleader of a gang which copied and sold illegal music product and computer software, primarily at computer fairs across the UK. At one fair in May 2001, CDs with a street value of ,000 were seized. Sentencing Stanley, His Honour Judge Croft said that “the loss to the industry was massive and incalcuable” and that Stanley had been in effect…

GLOBAL CLAMPDOWN ON PIRACY

COPYRIGHT Record Labels, Music Publishers The PRS/MCPS Alliance have announced a number of global successes in combating the sale of illegal music product. In ITALY collection society SIAE joined with the police in a series of high profile raids across the country targeting 454 premises and resulting in charges brought against 137 people with 78,000 CDs, 5,000 DVDs and 6,000 VHS cassettes confiscated along with 17 sets of mastering equipment. In RUSSIA a number of government agencies have joined forces with the trade mark protection agency and various intellectual property organisations to tackle counterfeiters. Russia has one of Europe’s highest piracy levels with well over half of all music product sold being illegal copies. In THAILAND the British Government has formally asked the Thai Government to clampdown on illegal copies of music product flooding onto the world market. Thailand is the third largest exporter of illegal music product after China and Taiwan. See Mbusiness7 (PRS/MCPS magazine Spring 2003)

US INTERNET ASSOCIATION SUPPORTS VERIZON
Copyright , Internet / April 2003

COPYRIGHT Internet The US Internet Industry Association (USIIA) has announced that it will support the efforts of Verizon to overturn a recent ruling by the Washington DC District Court in the case of RIAA v Verizon. The ruling was based on a narrow and erroneous reading of a single provision of the Digital Millennium Copyright Act,” says David P. McClure, president of the USIIA. “In reality, this ruling will cause great harm to the Internet community, and will place ISPs in jeopardy of violating contracts, subscriber agreements and local and federal privacy laws if they are forced to comply. It was never the intent of the Congress that copyright holders should have the right to invade the personal privacy and security of American consumers on the basis of allegations, and without due process under the law,” says McClure. “Internet service providers and their subscribers have the right to be secure in their persons, houses, papers and effects, including on the Internet. USIIA endorses and will support efforts by Verizon and other parties to stay and overturn this ruling.” Source: US Internet Industry Association

BPI TARGET UNIVERSITIES OVER ILLEGAL DOWNLOADS
Copyright , Internet , Record Labels / April 2003

COPYRIGHT Internet, Record Labels The BPI (British Phonographic Industry) has today (March 27th) sent out a letter to every University in the United Kingdom warning them that they face criminal sanctions if they collude in the illegal downloading of music files. This action follows similar actions by record company associations in Australia and the USA, the latter resulting in in the US Navy Acadamy warning nearly 100 students about downloading music files illegally. See www.timesonline.co.uk/student University News and Views. COMMENT : The BPI’s action follows on from similar actions by the RIAA and other industry associations, targeting internet service providers (ISPs), telecommunication companies and cable companies. The leading case at the moment is the ‘Verizon’ case currently in the appeal courts in the USA (see Law Updates March 2003). The UK courts held in the BPI’s case against easyinternetcafes Ltd that providing and facilitating the downloading of illegally copied files was actionable and the first instance decision in the Verizon case and the decisions in the RIAA’s cases against Napster and Aimster clearly supports this position. However, the Verizon appeal will certainly be of interest and the Dutch decision in Buma/Stemra -v- KaZaA (see Law Updates December 2002) means that this issue…

WILL THE VICTORY FOR THE RIAA IN ITS CASE AGAINST VERIZON OPEN THE FLOODGATES FOR LEGAL ACTIONS AGAINST CABLE COMPANIES AND ISPs?

COPYRIGHT Record Labels, Music Publishers, Internet The legal battle between the Recording Industry Association of America (RIAA) and Verizon Communications over the pursuit of alleged internet music pirates could have a major impact on cable operators, telecom companies and internet service providers. If the RIAA wins the case, record labels and music publishers wielding broad federal subpoena power could force operators to divulge the names of high-speed data subscribers each time one is suspected of breaking a copyright. RIAA also want operators with high-speed data operations to pay copyright use fees into a new industry-wide ISP pool. The RIAA has proposed that the fund should compensate music companies for the copyright violations which they can’t track down. The case places the right to fair remuneration for use of copyright in direct conflict with individuals right to privacy, and further, would put an obligation on ISPs to take responsibility for subscribers unauthorised copyright infringements. The cable industry is carefully watching the case. The case also highlights the conflicts within major media conglomerates – AOL Time Warner owns two major ISPs, cable channels and of course a major record label and major music publishing house. The legal action arose when Verizon refused…

ROD STEWART FACES “MAGGIE MAY” ACTION FROM MANDOLIN PLAYER

COPYRIGHT Record Labels, Music Publishers A folk musician says he is to take legal action against Rod Stewart over his contribution to the 1970s hit song “Maggie May”. Ray Jackson, a member of folk/rock band Lindisfarne, says he was paid just in 1971 for his contribution of a distinctive mandolin section in the recording. Mr Jackson believes he may have lost at least because he was not credited for the track’s distinctive “hook”. Mr Jackson is basing his claim on the Court of Appeal ruling that held that session musician Bobby Valentino should be recognised for his part in writing the distinctive violin riff on the Bluebells’ 1983 hit and subsequent 1993 number one hit “Young At Heart”. Stewart’s defence is that Jackson was engaged on a ‘work for hire’ basis and that all and any copyright which might have subsisted in the mandolin recording was assigned to Stewart absolutely and the was ‘full and final settlement’ for his services and any contribution. It is accepted that Mr Jackson had played on the song but not that he had any part in writing it. Stewart’s argument is that the recording and song were from the inception of their creation “the…

CD PIRACY IN SOUTH AMERICA ESCALATES

COPYRIGHT Record Labels, Music Publishers CD pirates and street vendors in Ecuador are decimating the legitimate music industry as copied CDs featuring tropical salsa, hard rock and even Christmas carols are retailing for just $1 each – a price even the citizens of this poverty-stricken nation can afford (the minimum wage is just $138 a month). More worryingly for record labels and music publishers is the statistic that pirates sold an estimated 13 million compact discs in 2002 – compared to just 650,000 sold legitimately. The pirates are now exporting copied CDs, and pirate CDs made in Ecuador have been found in Peru and Columbia. Ecuador is a prime spot for all types of pirated goods. Weak police intervention compounds the problem. As the pirating industry grows, local shops suffer. Just 80 record stores are still in business in Ecuador, compared with 300 shops four years ago. Even with the US dollar adopted as currency, two of the ‘big five’ majors (BMG and EMI) have left Ecuador after they were unable to compete with counterfeiters. Sony Music Entertainment and Universal still operate in Ecuador. See www.mercurynews.com

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

AOL LAUNCHES SUBSCRIPTION INTERNET SERVICE
Copyright , Record Labels / March 2003

COPYRIGHT Record Labels AOL’s 27 million subscribers will be offered legitimate access to record company catalogues from $3.95 (0) per month. Subscribers will be given access to the 250,000 strong recording catalogue of download service MusicNet, one of the music industry’s answers to the hugely popular but unauthorised sites like Aimster, KazaA and Morpheus. The New York Times has welcomed the move as the strongest attempt yet to beat unauthorised downloading of music. The music industry has blamed internet piracy for contributing to a slump in CD sales, with sales dropping 9% in the US in 2002. But legal sites from the industry have so far struggled to persuade fans to use legitimate (paid for) services – MusicNet has 500,000 subscribers, compared with 100 million users of the free song-swapping services. The basic AOL $3.95 deal will give users 20 streamed songs and 20 downloads per month. Fans can sign up for more access for up to $17.95 (40) per month, which buys unlimited streams and downloads, and the ability to burn – or copy – 10 songs to blank CDs per month. AOL Director of Music Evan Harrison said “A music subscription service is not going to make sense…

“INTELLECTUAL PROPERTY IS THEFT. IDEAS ARE FOR SHARING”
Copyright , Internet / March 2003

COPYRIGHT Internet Columnist John Naughton used this headline in his February 09 column in the UK’s Sunday Observer newspaper advancing the argument that in the USA industry associations such as the RIAA (Recording Industries Association of America) and the MPAA (Motion Picture Association of America) have used politics and clever rhetoric to develop the concept of ‘intellectual property’ and to portray internet file swopping as ‘theft’ of this property. Naughton says that, in his view, the industry associations’ aim is to ‘signify the moral equivalent between sharing a track from a CD with a friend and stealing your neighbour’s goods and handing them round’. Naughton goes on to point out that the new draft EU copyright directive (see Law Updates, February 2003) will impose criminal sanctions on large scale (e.g., for profit) piracy but not on individual file sharing and copying. See www.briefhistory.com/footnotes. The industry campaigning continues and the RIAA and MPAA have just published a brochure warning companies of the risk of internet piracy and work place related copyright infringement. See www.zdnet.com.au. COMMENT:Most legal systems recognise that granting ownership of copyright and other intellectual property rights provides economic stimuli for those who create, invent and design for a living and provides protection against…

OWNER OF SAMPLED SONG WINS COURT INJUNCTION

COPYRIGHT Record Labels, Music Publishing, Artists Indian composer Bappi Lahiri has won a court injunction halting the sale of Dr. Dre protéguth Hurts’ debut album and single based on claims that the hit song, “Addictive,” sampled more than four minutes of one of his compositions, without credit. A federal judge in Los Angeles ruled that “Addictive” must be removed from shelves unless the composer Bappi Lahiri’s name is added to the credits. Lahiri filed suit against Dre, his Aftermath Records label, and parent company Interscope/Universal Music Group, citing uncredited use of the Hindi song “Thoda Resham Lagta Hai,” composed by Lahiri for the 1987 Indian film “Jhoothi.” Lahiri is seeking compensatory damages in excess of $1 million as a result of the failure to give credit and the loss of his ability to properly promote his music in the United States. The figure represents a combination of the profits Lahiri’s attorneys said the sales of Truth Hurts’ music has reaped for Universal along with the losses suffered by their client. The album has sold in excess of 300,000 units. Universal had the choice of pulling all product from the shelves or affixing a sticker with Lahiri’s credit on copies of…

DOORS DRUMMER TAKES ACTION AGAINST NEW ‘DOORS’
Artists , Copyright , Trade Mark / March 2003

TRADE MARK, COPYRIGHT Artists, Merchandising A reunion concert featuring two original members of the Doors has prompted a law suit from original drummer John Densmore in the Los Angeles Superior Court for breach of contract and unfair competition. Original keyboardist Ray Manzarek and guitarist Robby Krieger have teamed up with vocalist Ian Astbury (formerly of the Cult) and Stuart Copeland, drummer with the Police, to play a concert in Los Angeles. Densmore claims that the band’s name is owned as a partnership by the three living members and the late Jim Morrison’s wife, Pamela Courson and that each partner has a right of veto over use of the name. He claims that the ‘new’ Doors are misusing the band’s name and logo and will confuse the general public. Recent cases in the UK involving the use of original band names have included Sweet and Bucks Fizz. Seewww.news24.com/News24/Backpage COMMENT : This area of law has recently been explored in the UK by the High Court in the case of Byford -v- Oliver and Dawson (2003). This case involved the use of the name ‘Saxon’ by Biff Byford, the original singer with the British heavy metal band. Byford had been a band member since its formation in the late 1970s….

JAPANESE COURT ORDER ENSURES THAT CLIENTS OF ONLINE KARAOKE SUPPLIES MUST PAY ROYALTIES

COPYRIGHT Music Publishing, Internet The Daily Yomiuri Online reports that the Osaka District Court have ordered an online karaoke machine leasing firm in Osaka to take necessary measures to prevent its customers, who have not paid copyright fees for music to the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC), from using music delivered online. The Court’s ruling held that Hit One had been assisting its customers to infringe copyrights. The verdict is a precedent for a number of forthcoming lawsuits of a similar nature in Japan and means that music distributors who do not take an active role in violating the law can, and will, be asked to take remedial measures to prevent infringements by users. According to the Daily Yomiuri Online, Hit One leased karaoke machines and distributed music online to bars and restaurants in the Osaka and Hyogo prefectures. About 97 percent of the songs distributed by the firm were reportedly controlled by JASRAC. However, Hit One knowingly delivered music to a number of its customers who had not paid copyright royalties to JASRAC. Presiding judge Kazuo Komatsu said in his ruling, “The firm was responsible for confirming that its customers already closed a deal…

COURT GRANTS MUSIC INDUSTRY SECOND MAJOR VICTORY IN AIMSTER CASE

COPYRIGHT Record Labels, Music Publishing, Internet In a major victory in the fight against the unauthorised uploading and downloading of music and other copyrighted works, a U.S. District Court Judge granted an all-encompassing preliminary injunction against the file swapping site Aimster (Madster). The Court’s decision follows its ruling on September 4th granting the record companies’ request for a preliminary injunction. In that prior ruling, the Court described the Aimster system as “a service whose very raison d’etre appears to be the facilitation of and contribution to copyright infringement on a massive scale.” After issuing that opinion, the Court asked for proposals from the parties for the language of the Injunction. The record companies and music publishers submitted a proposal that the Defendants opposed; however, the Defendants did not submit their own proposal, arguing that it was impossible to filter out infringing recordings. The Court adopted the record companies’ and music publishers’ proposed Injunction in full, outlining the roadmap by which Aimster must act immediately to halt the massive copyright infringement it facilitates. U.S. District Court Judge Marvin Aspen of the Northern District of Illinois ordered that Aimster implement filtering technologies now available so that it does not directly, indirectly, contributorily,…

EU UNVEILS NEW ANTI-PIRACY LAWS

COPYRIGHT Record Labels, Music Publishing The European Union Justice & Home Affairs Commissioner Antonio Vitorino unveiled a tough new draft anti-piracy code on Thursday January 30th designed to standardise the approach to piracy throughout the European Community. The new legislation would direct all member states to treat large scale piracy and counterfeiting as a criminal offence as well as a civil offence meaning that offenders would be liable for damages, fines and possible imprisonment. Rights owners could sue for damages and ancillary remedies such as accounts for profits and destruction orders whilst the authorities could shut down infringing companies and seize assets. The legislation would work alongside revised border controls allowing for the seizure of counterfeit and pirate goods. www.reuters.com

JAPANESE COURT RULING FOLLOWS USA APPROACH AS PEER TO PEER FILE SWOPPING SERVICE IS SHUT DOWN

COPYRIGHT Record Labels, Music Publishing, Internet The Tokyo District Court, in an interim ruling on Wednesday January 29th 2003, decided that the online music file-sharing service provided by MMO Japan Ltd has violated copyright law, thus supporting the Japanese music industry’s stance. The decision follows the Court’s April 2002 injunction, which prohibited Tokyo-based MMO’s Internet file-swapping service in an action brought by the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) and 19 record labels. Damages have yet to be assessed. This ruling, the first such suit filed in Japan, follows on from actions brought in the US against Napster, Aimster and KazaA. The service, which was provided by MMO Japan, automatically sent files over the Internet enabling online users to swap music and other files stored on their hard drives. The presiding Judge Toshiaki Iimura held that MMO had financially benefited and was responsible for the service. www.japantoday.com Also see “NEW ACTIONS IN CYBERSPACE” – DECEMBER 2002 LAW UPDATES

UK INTERNET CAFÉ DOWNLOADS INFRINGE MUSIC COPYRIGHT

COPYRIGHT Record Labels, Music Publishing, Internet Sony Music Entertainment (UK) Ltd. & Others -v- Easyinternetcafe Ltd. (2003) Mr Justice Smith held that Easy-internetcafes were guilty of copyright infringement by allowing customers to download music and burn CDs at their chain of internet cafes. Investigators for the BPI (British Phonographic Industry) found that hundreds of tracks had been downloaded in the cafes. Users paid £2.50 (approx US $4) for the download and a further £2.50 to buy each CDR. Mr Stellios Haji-Ionannou, owner of the chain of internet cafes, said that he will appeal the High Court decision and that the music industry was itself guilty of ‘extortion’ for overcharging for CDs and that ‘copying music over the internet is no different to videotaping a programme to watch later’. In the UK ‘time shifting’ by copying TV programmes onto a VHS is legal (under the Copyright Designs & Patents Act 1988) for personal use but copying records and films otherwise unavailable is a copyright infringement. In the US case of RIAA -v- Napster (US, 2000) the so called ‘VCR defense’ failed to protect Napster against claims from the Recording Industry Association of America which shut the service down. Damages in the Easy-internet case have yet to be determined. [See…

RAID ON SCOTTISH COUNTERFEITERS REVEALS A MAJOR OPERATION

COPYRIGHT INFRINGEMENT Record Labels, Music Publishing A man and a woman are being questioned after a raid on their Airdrie home in North Lanarkshire uncovered what is believed to be the biggest CD counterfeiting operation ever found in Scotland. Thousands of illegally copied CDs, DVDs and videos were discovered in the raid along with nineteen CD writers, 11 DVD writers and 15 video recorders. This MCPS-led raid (along with Strathclyde Police and Trading Standards officers) was designed to get to the root of the counterfeit problem in Scotland. It follows recent raids by other anti-piracy units that have focused on removing product from the market stalls themselves. Nick Kounoupias of the MCPS Anti-Piracy Unit said: “Getting to the source of significant counterfeiting operations like this one is the real key to stopping the proliferation of counterfeit product. You can strip a market of illegal goods but within a few days, the illegal product is back.” The two who were questioned could then face charges under theCopyright, Designs & Patents Act (1988), the Trade Marks Act (1994) and the Trade Descriptions Act (1968). The maximum penalty for counterfeiting and trade marks offences in the UK is ten years imprisonment. Late in 2002 Norwich Crown…

INTERNET RADIO SERVICE RESTRICTED
Copyright , Internet / February 2003

COPYRIGHT Radio, Internet Yahoo have agreed to a settlement with Sony Music Entertainment as part of a lawsuit filed by the US recording industry against the web portal’s online music subsidiary, Launch Media. The lawsuit, filed in May 2001 by the Recording Industry Association of America (RIAA), alleged that Launch violated copyright laws by giving its web radio listeners too much control over their song choices – allowing users to ‘programme’ their own station with tracks of their own selection which means that at the very least users can create ‘virtual albums’. Yahoo will make a onetime payment to Sony for its past use, and the portal will enter into a nonexclusive license to broadcast Sony’s songs on its LaunchCast radio service. The financial terms of the settlement were not disclosed (seewww.cnet.com). This case again shows the recording industry’s determination to force new media to either pay for the use of copyright material itself or make sure users and subscribers pay for copying or ‘downloading’ music.

US SUPREME COURT UPHOLDS COPYRIGHT EXTENSION

COPYRIGHT  TV, Film, Artists and Composers, Record Labels, Music Publishing, Internet Eldred -v- Ashcroft (2003) In this case, the US Supreme Court finally confirmed the provisions of the US Copyright Extension Act 1998. This Act, known as the ‘Sonny Bono’ Act after the late recording artist and congressman, extends US copyright protection to life of author plus 70 years (up from 50 years) and 95 years (up from 75 years) for works owned by corporations. The Act, passed after lobbying from Walt Disney and other media corporations (worried about older works falling into the public domain) returns certain works to copyright and gives extended protection to other works. It could be argued it is the end of public domain as hundreds of thousands of works which would have become freely available are now protected by copyright laws. (John Naughton, The Networker, Observer Newspaper 19/01/03). See : www.observer.co.uk/business See : www.briefhistory.com/footnotes

CAN A TELEVISION FORMAT BE OWNED?
Copyright / January 2003

COPYRIGHT TV, Film CBS -v- ABC (2003) US District Court NY, Judge Loretta Preska The protection of the format to television formats has become a complicated area for programme makers and lawyers. The leading UK case of Green -v Broadcasting Corporation of New Zealand (1984) held that there was no copyright in an idea and that on the facts of that case the format rights to the programme Opportunity Knocks were not protected under copyright law. This case reaffirms that principle. CBS claimed that the programme I’m A Celebrity Get Me Out of Herewas a copy of their programme Survivor and sought injunctive relief against ABC to prevent the programme going to air. ABC successfully argued that their show was an original format and that injunctive relief was not an appropriate remedy. Despite the judgement it is clear that the global television industry does licence format rights – indeed both the programmes in this dispute were themselves formats licensed from third parties. (Duncan Lamont, The Guardian Media, 20/01/03) See : www.aftrs.edu.au/studwork/essays/legalprot.html This opinion is from Johnathan Coad a solicitor at the Simkins Partnership. The last format rights dispute to go to trial was some 15 years ago, when Hughie Green sued the New Zealand Broadcasting Corporation over his huge hit programme, “Opportunity Knocks”. Despite the…

NEW SOURCES OF INCOME FOR SONGWRITERS
Artists , Copyright , Music Publishing / January 2003

COPYRIGHT Music Publishing, Artists and Composers A recent study by the Informa Media Group shows that downloading mobile phone rings is a fast growing and lucrative business. Informa found that in 2002 songwriter’s collection societies collected in excess of £44 million for composers and publishers and that the global income from mobile tone rings was in excess of US$1 billion. See www.cnet.com for further information.

NEW ACTIONS IN CYBERSPACE

COPYRIGHT Record Labels, Music Publishing, Internet Following on from the Recording Industry Association of America’s successful action against Napster (RIAA -v- Napster, Judge Marilyn Patel, July 2000) where a preliminary injunction was granted Effectively shutting Napster down, further cases have now reached the courts. In April 2001 Aimster applied to the US District Court requesting that it declare that its service was legal. A number of organisations including the RIAA reacted by filing lawsuits against Aimster alleging contributory and vicarious copyright infringements. The District Court agreed that Aimster had clear knowledge of the infringements taking place using its service and that Aimster materially contributed to these infringements, could supervise them if Aimster wanted and Aimster financially benefitted from the (infringements) on its service. A preliminary injunction was granted. A decision of the activities of KaZaA in the USA is expected soon. BUT in a Dutch decision, the activities of KaZaA were held NOT to infringe copyright in an action between KaZaA BV and the Dutch collection societies BUMA/STEMRA. The Court held that as KaZaA BV could not prevent the exchange of copyright material between its users the service itself was not unlawful although the acts carried out by some users were certainly…

NEW COUNTRIES SIGN UP TO INTERNATIONAL TREATIES PROTECTING INTELLECUAL PROPERTY RIGHTS

COPYRIGHT Record Labels, Music Publishing, Artists and Composers The World Intellectual Property Organisation (WIPO) has announced that the total number of contracting states for the Berne Convention (which sets out and defines minimum standards of protection for economic and moral rights for authors of literary and artistic works) is now 149 nations and that the total number of contracting states to the Geneva Convention (protecting phonographic copyrights) has reached 69. Email: Publicinf@wipo.int for further information.