Live Nation face US class action
Consumers / October 2018

CONSUMER   Following on from the CBC and Toronto Star’s investigation into the activities of Live Nation’s Ticketmaster division in the secondary ticketing market, a class action has been filed in the US alleging a breach of consumer laws. After publication of the story, Ticketmaster issued a statement to CBC News saying it was “categorically untrue that Ticketmaster has any program in place to enable resellers to acquire large volumes of tickets.” It also said it had already begun an internal review of professional reseller accounts and employee practices before the CBC News story came out. Ticketmaster recently announced that was closing it’s secondary ticketing business in Europe, shutting down the Seatwave and Get Me In platforms. This did not extend to the USA and Canada. Ticketmaster President Jared Smith was forced onto the back foot following the expose, but continues to  defend his company’s involvement in both primary and secondary ticketing, insisting that Ticketmaster’s ticket inventory management platform, TradeDesk, had been misrepresented and he stated in blog post: “Let me be absolutely clear and definitive that Ticketmaster does not have, and has never had, any program or product that helps professional resellers gain an advantage to buy tickets ahead of…

Good news for snappers – an update on Photo Authorisation Agreement for Taylor Swift’s latest ‘Reputation’ stadium tour
Contract / October 2018

CONTRACT   Three years ago in June-July 2015, Taylor Swift was the subject of a controversial boycott by newspapers in Ireland and Canada as a result of the Concert Photo Authorization Form for The 1989 World Tour, [1] which photographers were required to sign prior to taking photographs at concert venues.  Photographers and publishers objected to Clause 2 which limited photographs taken to one-time use only. Clause 5 was particularly offensive as it was an express consent to the confiscation of/destruction of camera equipment and the ensuing likelihood of bodily injury; including an indemnity against liability for any loss or injury suffered by the photographer.  The issues were freedom of the press to publish, criminal damage to property and agreement to bodily injury.   Following discussions between Ms Swift’s representatives and the National Press Photographers’ Association representing fourteen professional photographers’ bodies including the Associated Press and the American Society of Media Photographers, the agreement was re-named ‘Photo Authorization Guidelines’ and re-worded to address the concerns. [2]  In Clause 2, the previous restriction on one-time use was lifted but limited to the reviewing publication only, and an express ban on the use of photographs for commercial purposes which met the artist’s…

Ticketmaster faces Canadian action against over hidden price hikes
Competition , Consumers , Live Events / February 2018

CONSUMER / COMPETITION Live events sector   Live Nation’s Ticketmaster is facing legal action from Canada’s Competition Bureau, which has announced that it is taking action against the entertainment giant for allegedly misleading consumers on the pricing for sports and other ticketed events after an investigation found that advertised prices were deceptive because consumers would be forced to pay additional fees which are added later in the purchasing process, which is referred to as “drip pricing.” An investigation found that Ticketmaster’s fees often inflated the prices of a ticket by more than 20 percent, although in some instances this went up to 65 percent of the price consumers pay. The Competition Bureau has requested the Competition Tribunal put an end to the deceptive marketing practices and subject the Live Nation-owned company to a financial penalty. Commissioner of Competition John Pecman said in a statement: “In July, we called on ticket vendors to review their marketing practices. Today, we are filing an application with the [Competition] Tribunal to stop Ticketmaster from making deceptive claims to consumers” adding “Together, these actions send a strong signal to online retailers: consumers must have confidence that advertised prices are the ones they will pay.”  In response, Ticketmaster issued a…

Radiohead stage death trial collapses
Health & Safety , Live Events / October 2017

HEALTH & SAFETY Live events sector   “No doubt, this decision will be incomprehensible to Mr Johnson’s family, who can justifiably complain that justice has not been done”. Judge Ann Nelson   The criminal case and trial against the organisers of Radiohead’s 2012 concert in Toronto where British drum technician Scott Johnson was killed and three others injured when a scaffolding structure collapsed at Downsview Park in June 16th 2012 has ended because of delays in the trial itself, primarily as the original judge hearing the case received a promotion. In July 2017 Justice Shaun Nakatsuru, said that his appointment to the Ontario Superior Court meant he no longer had jurisdiction over the case. Nakatsuru said he came to the decision with “great regret” saying “My appointment was unexpected and without notice. I know that the defendants have waited a long time for the final resolution of this case. So has the public” and “There are many compelling reasons why it would be in the best interests of justice for me to finish this. But I cannot.” The show was promoted by Live Nation, and LNE and its Ontario subsidiary were subsequently charged under the Canadian province’s Occupational Health And Safety Act….

Arcade under Fire
Contract , Live Events / August 2017

CONTRACT Live events sector   The Canadian indie rock group, Arcade Fire, has come under fire for requesting attendees to its Everything Now release show at Brooklyn’s Grand Prospect Hall to wear ‘hip and trendy’ clothes. Apple has plans to live-stream the event on Apple Music and it has been reported that they were the ones to send the notice to ticket holders.   The notice that was emailed to the ticket holders for the intimate gig asked that they refrain from wearing “shorts, large logos, flip flops, tank tops, crop tops, baseball hats, solid white or red clothing,” the notice went on to say “We reserve the right to deny entry to anyone dressed inappropriately.”   The notice did not stop there, ticket holders were asked to make the show a “phone-free experience”. The notice explained that “all phones and smart watches will be secured in Yondr pouches that will be unlocked at the end of the show”.   Now this is Music Law Updates, so naturally the question arises as to the legal standing of the notice. Disclaimer: for the purposes of this article I will pretend that the Arcade Fire gig is to be held in England, and therefore English law…

The Canadian Supreme Court brings music to the ears of the music industry
Copyright , Internet / August 2017

COPYRIGHT Internet, digital   The Canadian Supreme Court has brought music to the ears of the music industry, although it’s not a music case!  It’s no secret, Google regularly links to content that is an infringement of copyright. It is also no secret that Google de-lists specific web pages that link through to copyright infringing content, but does not actually de-list the whole website.  Now the Supreme Court has ruled that the internet giant Can be forced to remove results worldwide, although the decision criticised by civil liberties groups who argue the judgment sets a precedent for censorship on the internet. The landmark ruling from Canada’s Supreme Court, which will undoubtedly have a major impact in the music industry, comes in the case of Google v Equustek. The music industry has been complaining, for some time that whilst Google does remove individual web pages, it will not remove the whole website. And indeed it’s always a game of ‘whack a mole’ – as soon the infringing content is removed, it then just pops up again. And it should be noted, safe harbour obligations provide that Google should de-list the web page, but there is no obligation to de-list the whole website….

Radiohead stage collapse trial to be re-set

HEALTH & SAFETY Live events sector   A new trial has been set for the defendants charged after the stage collapse at an outdoor Radiohead concert in Toronto five years ago, which killed British drum technician Scott Johnson, then aged 33.   Johnson was killed and three others were injured after scaffolding collapsed. The show was promoted by Live Nation and the live music giant was subsequently charged under Ontario’s Occupational Health And Safety Act. Optex Staging & Services Inc was also charged over four alleged breaches of health and safety laws, while an engineer working on the show, Dominic Cugliari, faced a single charge. The case had progressed progressed for some forty days,  and closing arguments were expected but a mistrial was declared after the presiding judge, Justice Shaun Nakatsuru, said that his recent appointment to the Ontario Superior Court meant he no longer had jurisdiction over the case. Nakatsuru said he came to the decision with “great regret” saying “My appointment was unexpected and without notice. I know that the defendants have waited a long time for the final resolution of this case. So has the public” and “There are many compelling reasons why it would be in the best interests of…

New lawsuits over Jefferson Starship name, the Hotel California name and …. a cat
Artists , Trade Mark / June 2017

TRADE MARK Artistes     A founding member of Jefferson Starship has filed a legal action in a move designed to prevent the current version of the legendary band from using the name Jefferson Starship. The band evolved out of the group Jefferson Airplane in 1974 and also produced the ‘spin off’ band Starship (itself a name change after a legal dispute). Craig Chaquico,  who was member of the Jefferson Starship line-up, and subsequently played with Starship, has brougt the action: The Jefferson Starship name was retired in the mid-1980s after a little legal battle between members. In the 1990s, Paul Kantner, a founder member of both Jefferson Airplane and Jefferson Starship and the first member of Jefferson Airplane to use the Jefferson Starship name, began to use the Jefferson Starship name again. Chaquico, who had also played on  three of Kantner and Grace Slick’s solo albums, now says that he gave permission for Kantner’s later use of the band’s Jefferson Starship brand, but his agreement and consent was for Kantner personally and again came after litigation and arbitration in 1993 (Kantner died in 2016), and that previous inter-band agreeements and settlements mean the current band members do not have his permission to continue using the name,…

Ontario opens public consultation on ticket touting bots, but Virginia wants a free market
Consumers , Live Events / April 2017

CONSUMER Live events sector   Ontario has launched a public consultation on plans to introduce new laws banning the use of ticket tout bots. The Canadian province’s Attorney General Yasir Naqvi had announced the intention to introduce new legislation last October and moves to outlaw the use of such software were reinforced after tickets for Canadian rock band The Tragically Hip’s farewell tour quickly found their way to secondary sites at massive mark-ups, on the news that frontman Gord Downie had been diagnosed with terminal brain cancer. Ontarians with a view on secondary ticketing matters can fill out the consultation survey. And in advance of the UK’s move to regulate secondary ticketing and ban the use of bots to harvest tickets, the FanFair Alliance welcomed Prime Minister Theresa May’s “heartening” intervention on the secondary ticketing market. May was responding to Conservative MP Nigel Adams, who is leading the bid to make illegal the misuse of bot technology by ticket touts. “Does the Prime Minister agree that, when tickets to a teenage cancer charity gig by Ed Sheeran are being resold on the Viagogo ticket website for more than £1,000, with none of that money going to the charity… it is unfair…

Canadian ticket agency fined for additional fees
Consumers , Live Events / December 2016

CONSUMER Live events sector   Canadian promoter and ticket agency Evenko has been fined C$10,056 for misleadingly pricing concert tickets after Quebec’s Office of Consumer Protection (L’Office de la protection du consommateur, OPC) took action against L’Aréna des Canadiens, Inc., trading as Evenko OPC found the company failed to offer a free delivery method for tickets to shows by Charles Aznavour and Enrique Iglesias at the 21,000 capacity Centre Bell in Montreal in 2014. The OPC noted that in Quebec “it is prohibited for any merchant, manufacturer or advertiser to charge a higher price than that advertised.” According to OPC, Evenko charged $5 to email the tickets or $7 to have them posted, and offered no option for picking up tickets (for free) at the box office. In Quebec the OPC say “Traders are compelled to provide an ‘all-inclusive’ price” for tickets, “which includes all fees except taxes. For example, in the case of a concert ticket, the price must include the service charge and [any other] fees related to the delivery of the ticket.” In September the district court of Bremen, Germany, ruled that charging fees on print-at-home tickets is unlawful. In New York Live Nation/Ticketmaster is facing a claim from plaintiff…

Radiohead fatality case can progress despite slow pace
Health & Safety , Live Events / November 2016

HEALTH & SAFETY Live events sector   Live Nation Canada’s moves to have charges it faces over the death of a drum technician before a Radiohead concert four years ago dismissed because of “unreasonable delay” in the case have failed. Scott Johnson, 33, from Doncaster, South Yorkshire, was killed when the stage collapsed in Downsview Park, Toronto, Ontario, Canada, on June 16, 2012.  Live Nation Canada, Live Nation Ontario and Optex Staging and Services each face four charges under the Canadian Occupational Health and Safety Act.  Engineer Dominic Cugliari faces one charge of endangering a worker by negligence. All have pleaded not guilty and the trial had begun last year after charges were brought in June 2013. The trial is not due to conclude until January 2017   According to the Toronto Star, the trial judge Justice Shaun Nakatsuru has agreed that the long period of time so far taken up by the case was acceptable because of the complexity of the evidence needed to determine “The issue of how the stage collapsed, and who is responsible for that” saying this was “complex”.   The trial is scheduled to resume on December 5th. The maximum fine against a corporation, if convicted, is $500,000…

IsoHunt founder finally settles with the Canadian content industries
Copyright , Internet , Music Publishing / August 2016

COPYRIGHT Internet, film, recorded music   One of Canada’s longest-running copyright infringement lawsuits has ended with a judge in Vancouver announcing a $65 million settlement in the IsoHunt case that dates back to 2008. According to various reports, Gary Fung, founder of isoHunt Web Technologies Inc, which was found to have infringed music and film companies’ copyrights in both Canada and the USA , shared music files via isoHunt, a network of BitTorrent file sharing sites.  In the US, a federal district court found isoHunt liable for copyright infringement against the Motion Picture Association of America for sharing illegally downloaded movies. In 2010, more than 20 Canadian and international music companies sued isoHunt and Fung for “massive copyright infringement. In 2013, the US federal court of appeals upheld the 2009 ruling, isoHunt and Fung entered into an agreement to stop all international operations and agreed to a $110 million settlement. The British Columbia Supreme Court has now ruled against isoHunt and Fung, ordering him to pay $55 million CAD in damages for copyright infringement and an additional $10 million (CAD) for punitive damages, and ordering Fung to agree to never again be involved in a service that provides stolen or pirated…

SFX settle class action
Contract , Live Events / February 2016

CONTRACT Live events sector   SFX Entertainment has settled one of the two outstanding lawsuits against it. Last August, Paolo Moreno, who claimed he was behind the original idea for SFX, filed a class action lawsuit against the firm’s CEO Robert Sillerman alleging fraud and breach of contract. Moreno, along with two other men, claimed Sillerman had cut him out of the business once it began to take off. Documents obtained by Mixmag, show the class action lawsuit has now been dismissed. The EDM promoter still faces a separate lawsuit seeking compensation for allegedly misleading investors in Sillerman’s bid to take the company private. The lawsuit refers to the acquisition proposal as a “sham process” designed to make the firm attractive to a third-party purchaser and maintain the share price before it was caught by its liquidity problems. SFX recently secured $20 million in new financing, later revealed to have come from Canadian private equity firm Catalyst Capital Group. SFX stock slid 12.01% to $0.10 yesterday valuing the company at least than $10 million. http://www.musicweek.com/news/read/sfx-settles-class-action-lawsuit/063940

Radiohead stage collapse death hearing begins
Health & Safety , Live Events / December 2015

HEALTH AND SAFETY Live events sector     The hearing into the death of Radiohead’s drum technician, 33 year old Scott Johnson, who was killed when the stage collapsed before a concert three years ago, has begun in Canada. Three other crew members were injured in the incident, which took place in Toronto’s Downsview Park on June 16, 2012, reports Exclaim. Live Nation Canada, Live Nation Ontario and Optex Staging and Services each face four charges under Canada’s Occupational Health and Safety Act, while an engineer, Domenic Cugliari, faces one charge of endangering a worker by negligence. All have pleaded not guilty.  The concert, which was due to have been the final show on Radiohead’s 2012 North American tour, was cancelled following the tragedy.

Deadmau5 looks to trap ‘unauthorised’ remixes
Artists , Copyright , Moral Rights , Trade Mark / November 2015

COPYRIGHT / TRADE MARK / MORAL RIGHTS Artist, recorded music     Deadmau5 has launched a legal action in Ontario, Canada, against his former business associates over allegations that her company has released remixes of his early work without the required prior written permissions. The Hollywood Reporter says that  a decade ago DeadMau5 (Joel Zimmerman) had worked with Canadian label Play Records at the beginning of his career. Initially he created remixes for the company, and later signed publishing and management agreements with the firm and its co-founder Melleny Brown (also known as Melleny Melody or Melleefresh). After relocating to London in 2007, Zimmerman switched his management contract, and negotiated the ending of his contracts with Brown. That deal saw Zimmerman pay a sum of money to Play Records, and he also assigned ownership of some of his early songs and recordings to the company. However, that deal seemingly provided that any future remixes of those tracks could not be released without his “prior written consent”. Zimmerman now claims that Play has released new remixes of his early work without his OK, and has plans for more releases, breaching his contact rights, as well as infringing his trademarks and moral…

Sony. Universal and CMRRA face Competition Tribunal hearing in Canada
Competition / October 2015

COMPETITION (ANTI-TRUST) Recorded music     A Canadian firm which had been releasing low cost CDs of public domain recordings by the Beatles, the Beach Boys and the Rolling Stones, amongst others, is accusing two major record labels of using their clout and their combination of both recording and music copyrights to circumvent provisions of Canadian copyright law that had put some recordings by the Fab Four and others into the public domain. The term of copyright protection for sound recordings for Canada was extended from 50 years to 70 years this year. The extension was not applied retrospectively, so gives the extended term of protection to recordings from 1965 onwards. Now record label Stargrove has filed a 408 page complaint with the Canadian Competition Tribunal claiming market interference by the vertically integrated music giants, Universal and Sony, who have blocked releases of public domain sound recordings: It is alleged their publishing arms (for Sony this is Sony/ATV) instructed the local music collection society Canadian Musical Reproduction Rights Agency (CMRRA) to refuse mechanical licences for the compositions included in the recordings. The complaint says the refusal of licences means that rights holders are denying Stargrove mechanical licences on the usual trade…

AFM takes Sony to court over musician’s film royalties
Artists , Copyright , Music Publishing / August 2015

COPYRIGHT Artistes, music publishing, Film & TV   The American Federation of Musicians of the United States and Canada (AFM) has filed a lawsuit against Sony Music Entertainment for ‘repeatedly violating its collective bargaining agreement’ – the Sound Recording Labor Agreement – in an action is brought under section 301 of the Labor Management Relations Act. Among the alleged contract violations cited in the suit is recording work on Michael Jackson’s This Is It, a 2009 film documenting Jackson rehearsing and preparing for the series of live concerts shortly before his death. The law suit states that Sony called musicians for a recording session claiming it was for a “record” when the actual purpose was to lay down a film score for This Is It. The Sound Recording Labor Agreement (which Sony has signed up to) prohibits recording film scores. Musicians have been unable to collect residuals for the movie soundtrack. AFM International President Ray Hair said the AFM Motion Picture Agreement should have been used. The suit also charges Sony with refusing to make new use payments on a number of other projects including Pitbull’s 2012 version of Michael Jackson’s “Bad” and sampling of Jackson songs like “Billie Jean” and “Man in the Mirror”…

Evolve finds new insurer to meet drugs challenge
Licensing , Live Events / August 2015

LICENSING Live events sector     The Evolve Festival in Antigonish, Nova Scotia has been saved after its drug harm reduction policy involving free drug test kits led to the near cancellation of  the event. According to CBC News, Evolve recently became the first festival in the territory to announce the presence of drug-testing – organisers said they expected drugs to be present, and that they wanted to make users safer by making them aware of what they were taking. Anyone concerned about whatever they are taking could hand a small sample to festival officials, who would then use a two-part litmus test to test for MDMA, speed, and LSD. Unfortunately the drugs testing plan prompted the event’s underwriters who provided liability insurance to pull out, leaving festival producer Jonas Colter in a tough spot – no insurance – no event: The difficulty was put t rest when a new underwriter was found who would provide cover. Consequence of Sound make the point: “In other words, in order to ensure that ticket buyers actually had an event to attend, Evolve considered canceling plans to protect them from dangerous substances”. http://consequenceofsound.net/2015/07/evolve-festival-nearly-forced-to-cancel-for-offering-drug-testing-kits-to-attendees/

Sound recording copyright term extends to 70 years in Canada
Copyright / July 2015

COPYRIGHT All areas     The sound recording copyright term in Canada is now 70 years, mirroring the term in Europe. Recordings previously had 50 years of copyright protection in Canada, but legislators have now followed the lead of the European Union in extending the term of protection to 70 years from release, despite opposition from various quarters, with some critics arguing that copyright terms are, in the main, already too long and shouldn’t get any longer. Welcoming the development, Graham Henderson, President of Music Canada, said yesterday: “In extending the term of copyright in recorded music, Prime Minister Harper and the government of Canada have demonstrated a real understanding of music’s importance to the Canadian economy. Thank you. We are thrilled to see Canada brought in line with the international standard of 70 years”.   https://www.billboard.com/articles/business/6612571/canada-offically-extends-copyright-term-to-70-years

Mouse wars: Deadmau5 and Disney settle trademark dispute
Trade Mark / July 2015

TRADE MARK All areas   Canadian DJ Joel Zimmerman, aka Deadmau5, and Disney have “amicably resolved their dispute” over the producer’s attempt to trademark his mouse head logo in the U.S. Disney lodged its opposition to Zimmerman’s trademark application with concerns over the similarity to its own ‘Micky Mouse’ logo saying it was “nearly identical in appearance, connotation and overall commercial impression to Disney’s Mouse Ears” and would confuse people. The producer and his legal team pointed out that he had been using the logo, based on his on-stage headgear, for almost a decade without issue, had registered Trade Marks in over 30 other countries,  and subsequently launched lawsuit against Disney, after finding Disney had put a clip from one of its TV shows featuring his music on YouTube (the music had been licensed for TV broadcast but not for subsequent online use.  Negotiations have now resulted in an amicable settlement. Exact details have not been revealed yet, but Disney will apparently remove its opposition of the application. http://www.bbc.co.uk/newsbeat/article/33235330/deadmau5-settles-trademark-dispute-with-disney-over-mouse-head-logo

It’s clearly time for coalitions and comment – as copyright reform looms on both sides of the Atlantic
Copyright / June 2015

COPYRIGHT All areas     Along with the U.S., Japan, Canada and Australia (amongst many others), the European Union is currently looking to reform its copyright laws and in January 2014 launched a public consultation. And there is MUCH to ralk about and many stakeholders want to have their say. In the USA, Torrentfreak recently exposed what they say is the MPAA’s true position on “fair use” which was that it was “extremely controversial,” and the MPAA didn’t want it included in various trade agreements such as the Trans Pacific Partnership Agreement. Fair use in the USA – but not elsewhere then. Now fair use fans in the U.S. have formed a new coalition, Re:Create, to advocate for “balanced” copyright laws, which means ones that do not “encroach” on creativity and speech by being overly protective of those copyrights. Coalition members include the Consumer Electronics Association, the Computer & Communications Industry Association and the American Library Association and other members of the group include the Association of Research Libraries, Center for Democracy & Technology, Electronic Frontier Foundation, Media Democracy Fund, New America’s Open Technology Institute, Public Knowledge, and the R Street Institute. Sherwin Siy, VP of legal affairs at Public Knowledge said “We and the other…

Canada’s new ‘notice’ system pushes down piracy
Copyright , Internet / June 2015

COPYRIGHT All areas, online     Canada’s new “notice-and-notice” system to combat unauthorized downloading has led to a ‘massive drop’ in illegal downloading in Canada. New data from CEG TEK International shows that piracy of copyrighted material has plummeted in Canada since copyright holders started sending letters to accused infringers under the new law. CEG TEK, which describes itself as a “copyright monetization firm” (and is described by its critics as a copyright troll!) says piracy rates have dropped by 69.6 per cent on Bell’s internet network; by 54 per cent on Telus’ network; and by 52.1 per cent on Shaw’s network. There was less impact among Rogers internet subscribers, with piracy down by 14.9 per cent, and among TekSavvy users (down 38.3 per cent). The Copyright Modernization Act compels internet service providers to forward letters from copyright holders to subscribers who are allegedly involved in piracy. The law caps the maximum amount a copyright holder can sue for at $5,000 for non-commercial infringement. http://www.huffingtonpost.ca/2015/05/21/online-piracy-canada-ceg-tek_n_7372626.html

YouTube’s monopolistic behaviour back in the news again
Competition , Internet / February 2015

COMPETITION Internet   Self releasing musician Zoe Keating has reignited the debate around YouTube’s Music Key negotiating tactics. In a detailed blog post about her current quandary over YouTube, as the market-leading video platform ploughs on with its Music Key adventure. CMU Daily reports that It seems that the new subscription streaming, having placated the indie labels, is now offering terms to self released artistes – which seem to be “join in with Music Key or say goodbye to YouTube entirely”.   Outlining the new YouTube deal as it was explained to her, Keating wrote: All of my catalogue must be included in both the free and premium music service. Even if I don’t deliver all my music, because I’m a music partner, anything that a third party uploads with my info in the description will be automatically included in the music service too. All songs will be set to “montetise”, meaning there will be ads on them. I will be required to release new music on YouTube at the same time I release it anywhere else. So no more releasing to my core fans first on Bandcamp and then on iTunes. All my catalogue must be uploaded at high…

Music creator group calls a ‘fair trade’ in music streaming

COPYRIGHT Internet, recorded music, music publishing, artistes   A new report launched by the International Council Of Creators Of Music, or CIAM, has called for a more equal distribution of streaming royalties between the respective music rights owners – overhauling of the streaming royalty system which is increasingly seen as favouring record labels above music publishers, songwriters and artistes. CIAM is a global body that sets out to “protect the rights and assert the cultural aspirations of music creators”, while its report also has the backing of CISAC, the global grouping of music publishing collecting societies, as well as Music Creators North America and Canadian collecting society SOCAN. The report was written by Professor Pierre-E Lalonde, and it says: “The split in revenues between the different sets of rights holders is imbalanced. A combination of regulatory constraints, market imbalances and situations where major record labels negotiate with digital services for all categories of rights holders, has led to a significant disparity between the revenues paid to record labels and to creators”. He goes on: “In the business of streaming, the split of monies from streaming platforms is geared more favourably towards record labels and performers vs songwriters and music publishers”,…

Live Nation charged over fatal stage collapse

HEALTH AND SAFETY Live events sector   CMU Daily reported that the Ministry Of Labour in Ontario is pursuing charges against three companies and one individual in relation to the stage collapse that occurred ahead of a Radiohead show in Toronto last June which resulted in the tragic death of Radiohead drum tech Scott Johnson. Mr Johnson was killed after a scaffolding structure collapsed onto the open-air stage before any audience members had been admitted. The show was promoted by Live Nation, and the company and its Ontario subsidiary both face four charges under the Canadian province’s Occupational Health and Safety Act. Optex Staging & Services Inc has also been charged over four alleged breaches of health and safety laws, while engineer Dominic Cugliari faces one charge. Live Nation has already denied the charges, telling Billboard: “We wholeheartedly disagree with the charges brought against us by the Ministry Of Labour. We absolutely maintain that Live Nation and our employees did everything possible to ensure the safety of anyone who was on or near the stage involved in the tragic incident that led to the unfortunate death of Mr Scott Johnson” adding “We will vigorously defend ourselves and we are confident…

Taylor Swift faces legal call for advance paid on cancelled show
Artists , Contract , Live Events / March 2013

CONTRACT Artists, live events   Taylor Swift is being sued over a $2.5 million advance she was paid for a Canadian festival appearance that never took place.  Swift was due to headline the Capital Hoedown in Ottawa in the summer of 2012, but it was cancelled by organisers. The legal action was instigated by the event’s ticketing company who were forced to pay out $1.8 million in refunds. A spokesman for the singer pointed out that she had no direct agreement with the ticketing firm: I would imagine that if cancelled for no good reason, Swifts own contract (or contract rider) would be the determining document here – and that would be with the promoter – and this would no doubt cover what would happen to any deposit in the event of cancellation. http://www.ctvnews.ca/entertainment/taylor-swift-sued-over-cancelled-ottawa-concert-tmz-1.1160933

Supreme Court finds fair dealing for music review use Canada as part of five big copyright decisions
Copyright / August 2012

COPYRIGHT All areas ARTICLE LINK:  Consumers and educators emerged victorious in five significant Supreme Court of Canada rulings that have modernised Canadian copyright law. The five cases touched on tariffs set by the Copyright Board governing music downloading, photocopying textbooks, videogames and movie and TV soundtracks. All cases pitted the societies that collect fees on behalf of creators against the distributors or users of the copyrighted materials. University of Ottawa law professor Michael Geist told the Toronto Star “I think it’s definitely pro-consumer,” adding “It’s also a pro-business decision as the court has recognized that innovation that is so crucial for the Canadian economy relies on flexibility in copyright.” In the first case The SCC unanimously held that music previews used by services such as Apple’s iTunes to allow customers to hear music before they buy constitute fair dealing under the Copyright Act. The SCC applied its fair dealing test set out in CCH Canadian Ltd. v. Law Society of Upper Canada (known as the “law library photocopy case”).  The rationale behind the fair dealing analysis is to determine if the proper balance has been achieved between the protection of the exclusive rights of authors and copyright owners vs. public access…

Canadian music industry comments on C-11 copyright reforms
Copyright / April 2012

COPYRIGHT All areas ITBusiness.ca reports that internet service providers, social sites and satirists appear to be in the cross hairs of the Canadian Independent Music Association, the national trade organization that represents English-language Canadian companies in the music, sound recording and music-related industries. The site reports that CIMA have now made their representations to the federal legislative committee on “Bill C-11” – the copyright revision bill –  and are seeking a series of amendments that would extend the proposed law’s power saying “While Bill C- 11 does makes in-roads to modernize the [Canadian] Copyright Act  in regards to Canada’s obligations under international treaties, CIMA believes that some provisions of the bill will lead to significant problems for copyright owners in their efforts to protect their rights, determine the use of their works and to enjoy reasonable compensation for their intellectual property”.  Among CIMA’s proposed changes are:   Changes in the wording of Section 18 of Bill C-11. This touches on the so-called “enabler provision” of the bill which currently, the law requires that a site be found to be “designed primarily” to enable copyright infringement to be considered engaged in violation of copyright laws. CIMA wants the phrase “designed primarily” cut…

News from the digital sphere
Copyright , Internet / April 2012

COPYRIGHT Internet There are now a plethora of online services offering legal ways to listen to music, but I was interested to see the announcement that new music service Turntable.fm has reached a deal with all four of the major record labels (EMI, Sony-BMG, Universal and Warners) allowing it to “to leave the legal gray zone it had been operating in and expand into international markets.”  One of the reasons I was interested is because Turntable offers a ‘twist’ on the usual music services, its  not a streaming service like Pandora or Spotify,  but really is a social platform,  allowing users to create an online ‘room’ in which they can the programme and ‘DJ’ for other users – so the DJ actively picks his or her own music Seth Goldstein, the company’s chairman, told his audiuence at the South by South West convention in Austin, Texas, “Basically this means we’re legitimate,” Mr. Goldstein said. “There are no eggshells, no wondering whether or not what we’re doing is viable as it relates to rights holders.” The company already had agreements with the main two US music publisher ad songwriter collection societies, ASCAP and BMI Mr. Goldstein said Turntable’s audience had started…

Canadian Supreme Court to look at all things copyright
Copyright / January 2012

COPYRIGHT All areas The Supreme Court of Canada has been considering five separate intellectual property disputes in one go. Good times which prompted a gathering of rights owners, music collection societies (SOCAN and CSI the performing rights and mechanical rights respectively, and representatives from digital, telcom, ISPs and gaming industries who arrived in Ottawa to present their respective sides of the argument. One of the most interesting of all the debates is the one related to iTunes previews, the thirty second clips consumers can stream in order to decide whether they want to buy a song (or more likely to confirm it’s really the song they think it is) which content owners, including SOCAN, argue is a performance attracting a royalty. In their way is a Canadian case called Bell v SOCAN as its been argued that those clips constitute private research on the part of the consumer, and should therefore be covered by so called ‘fair use’ rights – or, to be technically correct, for copyright systems with their origins in English law, ‘fair dealing’. The Canadian Recording Industry Association, SOCAN and CSI each presented arguments as to why fair dealing should not apply in the case of preview…

Canada moves to modernise its copyright laws
Copyright / November 2011

COPYRIGHT All areas Canada’s federal government has reintroduced copyright legislation into the House of Commons in an attempt to modernise the country’s law, last updated in 1997.  The former Liberal government introduced proposed legislation in 2005 and the Conservatives made two attempts during their minority governments in 2008 and 2010, but none passed, the last one having run out of parliamentary time. The new bill is an attempt by the Canadian Government make the Country’s copyright laws fit for purpose in the digital age.  Bill C-11, the Copyright Modernization Act, is an exact copy of legislation tabled by the Conservatives in 2010, Bill C-32, which died when the last Canadian Parliament was dissolved. The legislation the aims to strike a fair balance between the rights of consumers to use products they buy and those of copyright-holders who are entitled to due compensation for their creations. The law would legalize everyday consumer practices that are currently prohibited, such as using a personal video recorder to record a TV show for later viewing, or copying music from a purchased CD to an iPod. It would further allow educators, artists and satirists to break copyright under limited circumstances if the use is fair and not…

Forecast iffy for music cloud services in Canada
Copyright , Internet / July 2011

COPYRIGHT Internet ARTICLE LINK: Michael Geist’s take on the legality of Amazon’s and Google unlicensed digital cloud music services under Canadian law at http://www.thestar.com/business/article/1006529–geist-forecast-iffy-for-music-cloud-services-in-canada?bn=1

The Vase against IsoHunt by Jeff Gray
Copyright , Internet / April 2011

COPYRIGHT Internet ARTICLE LINK On its cluttered home page, Vancouver-based isoHunt.com doesn’t exactly look like a mortal threat to the multibillion-dollar movie and recording industries. One of its small number of rotating ads offers communication with “Busty Russians,” just a click away. But in fact, this is one of the Web’s most-used search engines for BitTorrent, or “peer-to-peer” files, which people use to find free digital copies of movies and music. More on legal actions against IsoHunt in the USA – where in 2009, a California judge sided with Columbia Pictures and other Hollywood studios in a lawsuit against the site, saying isoHunt violated U.S. copyright laws – and in Canada where the site is locked in a court battle with the Canadian Recording Industry Association (CRIA) and major record labels, which are demanding it be shut down. http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/the-case-against-isohunt/article1925928/

Updates on copyright law
Copyright / March 2011

COPYRIGHT All areas A new survey in the US commissioned by NBC Universal shows that 23.8% of global Internet traffic involves “digital theft,” with the BitTorrent file-sharing protocol accounting for 11.4% of this figure. Brand and trademark monitoring firm Envisional’s analysis of the top 10,000 peer-to-peer swarms found that 99.24% of non-pornographic material being traded was copyrighted material. It also found that “infringing cyberlocker sites” accounted for 5.1% of global Internet traffic, while “infringing video streaming sites” made up 1.4% of global traffic. Nearly 100,000 North Americans have been sued for suspected copyright infringement on file-sharing networks over the past twelve months according to details of a study published by TorrentFreak. Again the majority are alleged to have utilised BitTorrent, although some users of eDonkey were also targeted. Chinese officials say they have arrested 4,000 people in relation to 2,000 separate cases of intellectual property infringement since last November. Gao Feng, Deputy Director of China’s Ministry Of Public Security’s Economic Crimes Investigation Bureau confirmed that the Chinese government had stepped up its efforts to fight commercial piracy operations. The USA estimates that US IP industries alone lose $3.5 billion a year to Chinese piracy. It also appears that Google has responded pressure from…

Canadian court extends fair dealing to consumer ‘research’
Copyright , Internet / June 2010

COPYRIGHT Internet In an interesting decision, Canada’s Federal Court of Appeal has ruled that no royalty is payable for the use of thirty-second or less clips which are used by consumers to ‘preview’ potential purchases on digital music services. The court was hearing an appeal by the songwriter’s collection society SOCAN from the Copyright Board of Canada which had applied the ‘fair dealing’ doctrine to preview clips – it seems by extending the exception for ‘research’ on the basis that these clips were used by consumers to research music that they might then want to buy. SOCAN had argued that research-based fair dealing exception only applied to proper academic or scientific research, the traditional interpretation of that provision. The Board disagreed and said research did include circumstances when a “consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it”. The Federal Court affirmed the Copyright Board’s interpretation, saying: The legislator chose not to add restrictive qualifiers to the word “research” in section 29. It could have specified that the research be “scientific”, “economic”, “cultural”, etc. Instead it opted not to qualify…

Oasis stage invader sentenced to house arrest
Artists , Criminal Law / May 2010

CRIMINAL Artists The man who attacked Oasis guitarist Noel Gallagher on stage in Canada has been sentenced to 12 months’ house arrest. Gallagher suffered three broken ribs after Daniel Sullivan pushed him from behind during a show at the 2008 Virgin Music Festival in Toronto. The band later had to cancel concerts in Paris and New York. Sullivan, 48, had pleaded guilty to assault causing bodily harm. He said he was drunk and couldn’t remember how he got backstage at the concert. His sentence means he will be able to continue working. During the trial, Gallagher said in a statement that he felt like he’d been “hit by a bus” immediately after the attack. “I ended up in a heap on the floor,” he wrote. “I had no idea what had happened.” http://news.bbc.co.uk/1/hi/entertainment/8635811.stm

Digital Economy Bill: Lib Dems scupper Clause 17, but come up with a new idea
Copyright , Internet / April 2010

COPYRIGHT Internet In the UK controversial Clause 17 of the Digital Economy Bill which was designed to allow ministers, rather than Parliament, the right to introduce new copyright rules has been dropped following a last minute move by the Liberal Democrats to amend the proposed legislation in the House of Lords. Liberal Democrat Lords Razzall and Clement-Jones proposed an amendment which could see UK Internet Service Providers forced to block web sites with a high proportion of copyright-infringing content with the key passage in the amendment saying: “The High Court shall have power to grant an injunction against an [internet] service provider, requiring it to prevent access to online locations specified in the order of the Court.” A further statement in the amendment says that this would apply when a substantial proportion of the content accessible at or via each specified online location infringes copyright. The amendment (120A) was then re-amended to include provisions to make anyone applying for an injunction responsible for both parties costs should the application fail, an obligation on content owners to warn ISPs and any alleged infringing site of the action, an appeals procedure and a need to provide evidence to the court of allegedly infringed…

Live Nation and Ticketmaster merger given green light by US and Canadian regulators
Competition , Live Events / February 2010

COMPETITION Live events industry Live Nation and Ticketmaster Entertainment have announced that they have reached agreements with the U.S. Department of Justice (DOJ) and with the Canadian Commissioner of Competition, clearing the way for the merger of the companies.  The company will be renamed Live Nation Entertainment, Inc. and will combine Live Nation’s concert promotions expertise with Ticketmaster’s ticketing and artist management businesses. Under the terms of the proposed final judgment filed today in U.S. District Court for the District of Columbia, the companies have agreed to divest Ticketmaster’s self-ticketing subsidiary, Paciolan, to Comcast-Spectacor and to license the Ticketmaster Host technology to Anschutz Entertainment Group, Inc. (“AEG”), as well as to other terms that protect competitive conditions in ticketing and promotions. Seventeen State Attorney Generals also participated in the matter and have joined in the U.S. consent decree. The parties’ consent agreement with the Canadian Commissioner of Competition is on substantially equivalent terms. Michael Rapino, CEO of Live Nation, said, “This is a good and exciting day for the music business, and we are close to finalizing the creation of a new company that will seek to transform the way artists distribute their content and fans can access that content.  The Department of…

Canadian record industry faces piracy claim

COPYRIGHT Music Publishing, record labels The major labels in Canada are facing an unprecedented legal action for infringement of copyright – yes, you read that correctly: “The infringed party in this particular case consists of, among others, Chet Baker, a leading jazz musician in the 1950s, who played various instruments and died in 1988. His legacy is maintained by his estate, which owns the copyright on 50 of his works. The infringing party has already admitted the infringing behaviour, meaning they owe at least 50 million USD. Now, here’s the real shocker: the infringing party is none other than… The Canadian music industry: Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada – the four main members of the Canadian Recording Industry Association.” The case revolves around apparent uncompensated use of musical compositions on compilation albums. You can read the article in full at: http://www.osnews.com/story/22590/Canadian_Recording_Industry_Faces_Massive_Infringment_Claims  and see http://www.mediacastermagazine.com/issues/ISArticle.asp?aid=1000350453

US puts Canada on the naughty step
Copyright / June 2009

COPYRIGHT All areas The US has added Canada to a list of its top twelve of countries which persistently fail to protect intellectual property rights alongside China, Russia, Algeria, Argentina, Chile, India, Indonesia, Israel, Pakistan, Thailand and Venezuela  While there has been much criticism in the past from the US and elsewhere regarding Canada’s copyright laws, and their failure to take on physical bootleggers as well as the ever growing population of online pirates, it is the first time the Americans have put their Northern neighbours on their “priority watch list” of IP abusers. The report from the US Trade Representative that revealed Canada had been added to the watch list noted: “We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement relevant World Intellectual Property Organisation treaties [which Canada signed up to over a decade ago but never incorporated into its copyright laws]. The United States also continues to urge Canada to improve its IP enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the volume of infringing products transshipped and transiting through Canada”. Read more on ‘At…

Canada looks at the legality of torrent sites
Copyright , Internet / April 2009

COPYRIGHT Internet As the Swedish courts consider the Pirate Bay case a judge in British Columbia has refused to rule in favour of a major BitTorrent tracker without a full trial to consider the legalities of what the service does after the owner of one of the most popular Torrent indexing services, isoHunt, which provides links to over 1.5 million BitTorrent sources of content, much of it unlicensed, went to court himself to ask for a ruling that his operation did not contravene the country’s copyright laws. Such a ruling would, of course, stop the record companies from taking action against him, and would presumably help him raise investment and sell advertising. The defence raised in Sweden was that a BitTorrent site hosts no illegal content itself, only potentially linking to illegal (and legal) content. The British Columbia Supreme Court Judge Victor Curtis has not ruled that Fung is acting illegally, but refused to provide the declaration the Torrent man requested, saying a full trial would be required to assess the legal status of isoHunt. Judge Curtis also raised some concerns regarding the service, comparing isoHunt to a gun seller saying that Fung, like a gun dealer, isn’t liable whenever…

The Music Industry’s digital reversal on copyright
Copyright / February 2009

COPYRIGHT All Areas ARTICLE LINK: by Michael Geist writing in the Ottawa Citizen For much of the past decade, the industry has relied on three pillars to combat peer-to-peer file sharing – lawsuits, digital locks, and legislation. In Canada (and elsewhere) this has recently and radically changed: Michael Geist comes to the conclusion that it is innovation, not intervention from governments and courts that will ultimately determine the digital winners and losers and the full article can be found online here: http://www.canada.com/topics/technology/story.html?id=1172744

Copyright; locks, levies, lawsuits or licensing?
Copyright / September 2008

COPYRIGHT All Areas ARTICLE LINK: By Rusell McOrmond This is an interesting four piece blog looking at ‘locks, levies, lawsuits and licensing’ – the different ways in which copyrights can be protected and legally used. http://blogs.itworldcanada.com/insights/2008/07/28/part-4-licensing/

Canada launches new copyright bill
Copyright / July 2008

COPYRIGHT All areas Canada , currently out of favour with its North American neighbours over its failure to implement what US considers to be acceptable copyright legislation, now has a new bill on that very matter. Industry Minister Jim Prentice is set to table a bill that will allow users to be fined up to $500 for each “personal use download” that they partake in through peer-to-peer file-sharing. The bill will also make it illegal to unlock cellphones, copy music-protected CDs to iPods, and copy time-shifted TV shows to PVRs. http://www.exclaim.ca/articles/generalarticlesynopsfullart.aspx?csid1=122&csid2=844&fid1=31719 http://network.nationalpost.com/np/blogs/fullcomment/archive/2008/06/05/peter-shawn-taylor-on-canadian-copyright-pirates-past-and-present.aspx New provisions against anti circumnavigation – see New legislation to crackdown on digital copyright infringement athttp://www.canada.com/topics/news/national/story.html?id=20467975-e1cc-4064-aceb-63796da84b48 and see http://www.thestar.com/comment/article/442594 http://www.canada.com/ottawacitizen/news/bustech/story.html?id=ab0d606b-2371-444b-bba0-2172d45ac6b6

Canadian labels – we get absolutely zero credit for not suing fans
Copyright , Record Labels / February 2008

COPYRIGHT Record labels ARTICLE LINK –  Here Graham Henderson from the Canadian Recording Industry Association (CRIA) industry explains why it wants copyright reform and this article also looks at the calls for copyright reform from the Creators’ Copyright Coalition (CCC) which represents 16 trade groups for actors, writers, filmmakers, and songwriters. http://arstechnica.com/news.ars/post/20080122-canadian-labels-we-get-absolutely-zero-credit-for-not-suing-fans.html

Canadian Court Overturns ‘iPod Tax’ in Apple Canada Inc. and Canadian Private Collective, A-369-07. Federal Court of Appeal ( Ottawa).
Copyright , Internet / February 2008

COPYRIGHT Internet, technology The levy system in Canada is once more in the news after a proposed tax on digital recorders and storage devices, such as Apple Inc.’s iPod media player, was held to be is illegal by the federal court of appeal overturning a Copyright Board ruling that set a tariff that would have increased unit prices as much as C$75 (£35) on devices capable of storing more than 30 gigabytes of memory, the target of the highest level of the tax. The tariff would have raised the cost of an 80-gigabyte iPod by 29 percent to C$335. The court ruled that the Board “has no legal authority to certify a tariff on digital audio recorders or on the memory permanently embedded in digital audio recorders,’ and ordered the copyright board to reconsider the case.  The fees, ranging from C$5 for digital devices capable of storing less than 1 gigabyte of information to the C$75 maximum were proposed to compensate the recording industry for music that was copied. The levy would have created an exception to copyright law, allowing Canadians to copy their music files freely to hard drives and portable storage devices like iPods. Apple, Microsoft and other…

Canadian study says that illegal downloading promotes music sales
Copyright , Internet , Record Labels / December 2007

COPYRIGHT Internet, record labels We have a feeling that this might blow up into a big story. Almost all of the justifications for the legal actions taken by record labels and their trade associations – The British Phonographic Industry (BPI), The International Federation of Phonographic Industries (IFPI), the Recording Industry Association of America (RIAA) and their Canadian counterpart (CRIA) – has been that there is a direct negative correlation between illegal downloading and the use of peer-2-peer file swapping sites and the slump in CD sales. But now an independent report sponsored by Industry Canada and undertaken by Birgitte Andersen and Marion Frenz of the University of London ( Birkbeck College) and Decima Research seems to suggest that illegal downloading actually lead to an increase in music purchases. The survey, of 2000 Canadians on their music downloading and purchasing practices  seems to suggest that illegal downloading actually leads to an increase in music purchases and that there is a positive correlation between peer-to-peer downloading and CD purchasing – although Canadian music sales are down 45% since 1999. A recently leaked report from CapGemini for the Value Recognition Strategy (MCPS, AIM International Managers Forum, British Music Rights etc) in October 2007 suggested…

Canadian Copyright Board rule on download royalties
Copyright , Internet / November 2007

COPYRIGHT Internet Canada’s Copyright Board has ruled on what publishing royalties should be paid to the Society Of Composers, Authors And Music Publishers (Socan) on download sales made between 1996 and 2006, bringing to an end a decade long dispute between the recording and publishing sectors. Socan had been pushing for a higher rate than physical royalties, at one point 25%, though during the Copyright Board hearing they gave clear indications they would settle for a royalty much lower than that, though not as low as the 3.4% awarded by the Board this week. But the record labels were looking for something much less than even the 3.4% that was awarded. They already pay a 7.9% royalty to mechanical rights body the Canadian Musical Reproduction Rights Agency, and were hoping to keep the total publishing royalty – ie the amount paid to CMRRA and Socan – within the 8% figure, to keep the royalty inline with that due elsewhere (Japan is 7.7%, UK 8% and US 9.1%). The Board ruling means they will have to pay a total publishing royalty of 11.3%. The Board now needs to consider the royalty rates for this year, which have not been set pending…

European copyright law used to threaten Canadian public domain site
Music Publishing / November 2007

COPYRIGHT Music Publishing ARTICLE LINK A number of article have appeared commenting on the closure of the International Music Score Library Project which appeared to be a site hosting ‘public domain’ music scores – public domain works in Canada anyway. http://arstechnica.com/news.ars/post/20071022-european-copyright-law-used-to-threaten-canadian-public-domain-site.html http://yro.slashdot.org/article.pl?sid=07/10/21/0559220 and see a summary at http://www.p2pnet.net/story/13749 including comment from two leading Canadian lawyers Professor Michael Geist and Howard Knopf.