Where next for EU copyright law revisions?
Copyright , Internet / March 2012
EU

COPYRIGHT Internet The IPKat reports that the European Commission has announced that it will be taking a look at ‘take down’ procedures within the different countries of the EU which variously operate under the E-Commerce Directive which sets up the liability regime of Intermediary Service Providers depending on the different types of activities provided — i.e. acting as a mere conduit, catching or hosting, and provides the basis for a “notice and action” procedure but does not establish one as such. Each country has therefore acted upon its own criteria in that matter. As a result, while the internet is ubiquitous, Europe is fragmented in terms of procedures and remedies to block or remove illegal content. The Commission will review the IP Enforcement Directive in parallel to this initiative. The adoption process for this initiative will be keenly watched since it will surely trigger passionate debates between rightholders, ISPs and civil society who have differing and often opposing views, especially with regard to the following aspects of a notice and action procedure: requirements for the notice, the possibility to submit a counter-notice by the alleged infringer, the timeframe for blocking or taking down the unlawful content, liability for providing wrongful notices…

ACTA runs into belated European opposition
Copyright , Internet / March 2012
EU

COPRIGHT Internet   Having been referred to the ECJ, ACTA is in the news after digital campaign organisation Avaaz handed the European Parliament a petition with the names of over two million people who have backed an online call for a rethink of the Anti-Counterfeiting Trade Agreement. ACTA has already been signed by a majority of EU member states but not by the EU itself nor some five member states including The Netherlands and Germany. The Treaty has already been denounced by the French MEP, Kader Arif, the rapporteur for ATCTA who was charged with compiling background information on the Treaty and who resigned his position saying “I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement”, while the European Parliament’s current President, Martin Schulz, said he didn’t think ACTA was “good in its current form”. Now the Scottish MEP who will oversee the treaty’s passage through the European legislature, David Martin, has also said he is concerned that ambiguities in the agreement could have negative consequences telling reporters “I have no interest in criminalising individual consumers. I think you have to distinguish between the consumer and the producer of…

Entertainment lawyers lunch, Ek talks big on streaming, Branca adds to the fun, student gets the cheers!
Copyright , Internet / March 2012
EU
Sweden
UK
USA

COPYRIGHT Internet, Technology Is streaming really the future of the music industry? Will it be the saviour of record labels? I doubt it very much myself, but is a dang good approach if you are Daniel Ek, boss of Spotify. Now less than seven months after launching his digital music service in the US, Ek found himself rubbing elbows with the “upper echelon” of record industry executives who have descended on Los Angeles for this Sunday’s Grammy Awards and the 28-year-old Swedish entrepreneur addressed a ballroom full of entertainment attorneys  telling them all about the brave new world of digital music and boldly predicting  that revenue from streaming services such as Spotify will in two years return as much revenue to the industry as iTunes does today. Since launching its service in 2008, the Stockholm-based company says it has has remunerated more than $200 million, roughly 70% of its revenue, to labels and publishers. It has also grown into a valuable company with a tie in to Facebook (and making Ek a darn sight more money than the music industry – and artistes!) “The value of music is not $15 billion,” an estimate of annual music sales, Ek told his audience at the Grammy…

Now Warners face digital royalty claim
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Japan
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CONTRACT / COPYRIGHT Artistes, record labels With Sony and Universal already facing claims over the way royalties are calculated (with actions from artistes including The Allman Brothers, Cheap Trick, Rob Zombie, Whitesnake, Chuck D and the Estate of Rick James) and the successful action already won by FBT Productions against UMG (in the ‘Eminen’ case) which set a precedent that royalties for iTunes-style downloads should not be treated the same as selling CD singles or albums and should attract a higher payment – usually a share of the profits from licensing revenues  – rather than a ‘per unit’ royalty based on dealer price, Warners are now facing an action from Sister Sledge and singer  Ronee Blakely whose lawsuit claims: “Rather than paying its recording artists and producers the percentage of net receipts it received – and continues to receive – from digital content providers for ‘licenses’, Warner wrongfully treats each digital download as a ‘sale’ of a physical phonorecord … which are governed by much lower royalty provisions than ‘licenses’ in Warner’s standard recording agreements”. Universal continues to insist the ruling in the FBT case is only relevant to the wording of that exact contract, and does not set a…

Warners to fight EMI sale to Universal
Competition , Record Labels / March 2012
EU
UK
USA

COMPETITION Record labels On his final day as Chairman of the Warner Music Group, Edgar Bronfman Jr has confirmed the World’s  third biggest music rights company would join with the independent sector fight ‘tooth and nail’ against the proposed merger of the EMI record companies with the market leader Universal Music Group. Saying that allowing Universal to take ownership of the EMI record companies “would create what I call a super-major that would control not only the future of recorded music but the future of all digital media”. According to the Wall Street Journal, he continued: “I think it’s dangerous, I think it’s problematic and I think it’s got to be stopped. It does strike me as hubris, particularly for Universal to think it’s going to be easy to buy EMI, and frankly to think they can buy EMI at all”. The position was subsequently confirmed by Warner Music’s CEO Stephen Cooper. Competition regulators in the EU. USA and elsewhere will be noting this with interest! And indie labels trade body IMPALA has repeated its opposition to the planned merger after Universal formally submitted its bid proposals to the European competition regulators. IMPALA’s Executive Chair Helen Smith said: “The clock…

EU and US approve Google’s Motorola acquisition
Competition , Internet / March 2012
EU
USA

COMPETITION Internet, Technology The European Commission has approved Google’s $12.5 billion acquisition of Illinois-based handset-maker Motorola Mobility. The deal, first announced in August, will give Google the hardware to go along with its popular Android smartphone operating system. In its ruling, the competition (antitrust) regulator said the acquisition “would not significantly modify the market situation in respect of operating systems and patents for these devices.” The U.S. Department of Justice simultaneously announced it has closed its investigation of this acquisition in the USA. http://www.bbc.co.uk/news/technology-17021933

Big Brother IS watching you
Internet , Privacy / March 2012
EU
UK
USA

PRIVACY Internet, Technology Apple has moved to quell a growing storm over privacy saying that it would ban apps for the iPhone or iPad that collected personal data from users without their prior approval. The move follows revelations that services were collecting personal data including contact email addresses, contract telephone numbers. Path, a social networking app apologised after a researcher discovered it had uploaded his iPhone contacts to its servers. Other offending services included Twitter, Facebook, Foursquare and Yelp.  Twitter said it would make it more clear it collected the contact data and stored it for up to 18 months. Facebook said that when it collected data it made this quite clear. But Google has been accused of bypassing Apple’s privacy settings on Apple devices to track internet browsing habits, implementing new codes to override privacy settings on iPhones and iPads. Google has now disabled to code and said no personal information was collected. Remember, these firms are in control of the future of the internet. Frightening!  (The Times, February 17th 2012, p8).

Music Business Tunes for Next Copyright Fight
Copyright , Record Labels / February 2012
China
EU
Japan
South Korea
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COPYRIGHT Record labels                                        ARTICLE LINK:  A useful update on the recorded music sector’s current position on piracy and its presumed wish list for legislative and other change http://www.pcworld.com/article/248915/music_business_tunes_for_next_copyright_fight.html

IFPI Digital Music Reports says its growth – but is it good news?
Copyright , Internet , Record Labels / February 2012
China
EU
Japan
USA

COPYRIGHT Record labels, internet   The IFPI’s Digital Music Report 2012 has just been published and headline figures from the record industry’s global trade body show Major international music services which include streaming services like Spotify are now in 58 countries, up from 23 in January 2011 Digital music revenues are up 8 per cent to US$5.2 billion The IFPI say that anti-piracy action has made an impact in France, New Zealand with the US to follow in 2012 but the IFPI says that piracy and the ‘legal environment’ remain a problem The IFPI say that consumers are benefitting from a widening choice of services for experiencing digital music. In 2011, subscription services expanded and linked with new partners to reach new audiences. Meanwhile cloud technology is helping transform the way fans manage and store their music. Global revenues to record companies grew by an estimated 8 per cent to US$5.2 billion in 2011 – a faster rate than 2010 – with strong consumer demand for both single track downloads (up 11 per cent by volume), digital albums (up 24 per cent by volume) and fast-expanding subscription services. The number of users paying to subscribe to a music service leapt…

Content owners play “keepy uppie” in technology races
Copyright , Internet / February 2012
EU
USA

COPYRIGHT Internet, Technology The music, film and television industries’ recent successes in fighting illegal file sharing by promoting both legislative change and winning court decisions such as Newzbin2 and the recent Dutch Courts decision to block access to The Pirate Bay are all well and good for content owners, but in the fast moving world of the internet things don’t stay still for long and news now reaches the 1709 Bog that The Pirate Bay will start linking by default to ‘magnet’ rather than BiTorrent downloads in what only can be seen of as a move to avoid detection. Whilst BitTorrent links will still be available (being the currently preferred option for downloaders, both legal and illegal), they will be a secondary option for the time being. The magnet system makes user and file identification even harder and it is expected that The Pirate Bay will now phase out traditional BitTorrent file-sharing.  And controversial US streaming platform Grooveshark, no stranger to this blog and currently facing legal actions from all four major record labels, has just launched a new HTML5 app making it easier for music fans to access the service on their smartphones. Grooveshark had already launched apps for…

Ryan Giggs’ case provokes new questions about ‘super injunctions’
Artists , Privacy / January 2012
EU
UK

PRIVACY Artistes, broadcasters, press The Ryan Giggs privacy case has ended up as a bit of a disaster for Giggs himself, a married father of two, his reputation in tatters, and hasn’t done much for the High Court’s seeming approval of so called privacy ‘super injunctions’ for celebrities – well, that’s according to those very same august organs of the press barred from initially reporting the story –  until Gigg’s name was leaked onto the internet, ‘tweeted’ 75000 times, published by the Sunday Herald in Scotland and his name mentioned in Parliament by John Hemming MP. Mr Justice Eady, who granted the order, had rejected a second application by News Group Newspapers to discharge a privacy injunction relating to Giggs, on the basis that to continue it would be “futile”, given recent widespread publicity about his identity saying “It has never been suggested, of course, that there is any legitimate public interest, in the traditional sense, in publishing this information” adding “The court’s duty remains to try and protect the claimant, and particularly his family, from intrusion and harassment so long as it can.” Giggs has now been forced to admit that some allegations about his former lover Imogen Thomas…

Indies look at EMI sale implications
EU

COMPETITION Recorded music Pan-European indie label trade body IMPALA has announced it will formally oppose any attempt by Sony to buy the EMI music publishing company and/or Universal to buy the EMI record labels . Vivendi-owned Universal and the Sony Corp’s combined music assets – including wholly owned Sony Music and publishing JV Sony/ATV – are the two biggest music companies in the world, and IMPALA argues that the move would be detrimental to the music industry as a whole. Interestingly IMPALA seems less resistant to a Warners takeover, saying here that ‘remedies’ could solve any competition issues. The trade body has confirmed that it has asked the European Commission to investigate “all possible options to intervene” should Sony or Universal be successful in bidding for a sizable slice of the EMI business. IMPALA’s Executive Chair Helen Smith said “We have always said our position is no mergers without remedies and we know from 2007 that it is possible to find a solution which is far-reaching enough. Our problem with Universal, however, is that we believe it is simply too big already to be allowed to gain more power and we have the same concerns over Sony buying EMI publishing….

Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM); Belgian Entertainment Association Video ASBL (BEA Video), Belgian Entertainment Association Music ASBL (BEA Music) and Internet Service Provider Association ASBL (ISPA) intervening
Copyright , Internet / December 2011
EU

COPYRIGHT Internet “EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files.  “Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information”  Read more on the IPKat here  http://ipkitten.blogspot.com/2011/11/study-in-scarlet-todays-court-of.html  where Jeremy says “This blogger suspects that SABAM and other agencies will not shrink from seeking injunctive relief which requires filtering until they have first noted how carefully and narrowly the active part of the judgment has been drawn, how many invitations it appears to make in order to accommodate those who seek to modify their enforcement demands, and how the fate of the enforcement action may be contrasted with the approach taken in the British courts in Newzbin 2”  and the 1709 Blog here  http://the1709blog.blogspot.com/2011/11/will-copyright-owners-see-red-over.html Will it effect the decision of the High Court in London in Newzbin2? Maybe!…

Independent labels licence YouTube
Copyright , Internet / November 2011
EU

COPYRIGHT Internet The European independent record label’s music agency Merlin has anounced announced a global deal that will license repertoire from hundreds of labels to the YouTube service, effective immediately. The agreement covers thousands of acts, including Yeasayer, Antony and the Johnsons (pictured), Aphex Twin, Prodigy and Grizzly Bear. Among the independent labels involved in this deal are Earache, Secretly Canadian, Ninja Tune, Cooking Vinyl, Warp, Phonofile, Pschent, Morr Music, !K7 and Inertia. The agreement generates revenues to Merlin’s member labels whenever their official releases, or user-generated videos featuring their repertoire, are played via the YouTube service. Merlin has existing deals with a number of digital services including Rdio, Spotify, MySpace Music, Catch Media, Simfy, and Music Unlimited powered by Qriocity.

Murphy wins in battle to screen Greek TV, as EU competition law “trumps” copyright law
Competition , Copyright , Licensing / November 2011
EU

COPYRIGHT / COMPETITION Broadcasting, licensing Pub landlady Karen Murphy has succeeded in her European court battle against the Premier League over the use of a Greek TV decoder to screen Live Premiership football matches in the UK.  This update is taken from information contained in a press release from the Court of Justice of the European Union (No 102/11, Luxembourg, 4th October 2011). The Court of Justice held in a preliminary ruling that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend (live football matches) football stadiums. So far as concerns the possibility of justifying that restriction in light of the objective of protecting intellectual property rights, the Court observes that the Football Association Premier League (FAPL) cannot claim copyright in the Premier League matches themselves, as those sporting events cannot be considered to be an author’s own intellectual  creation and, therefore, to be  ‘works’ for the  purposes of copyright in the European Union. The Court also held that even if national law…

Private Copying and Fair Compensation: An empirical study of copyright levies in Europe
Copyright / November 2011
EU

COPYRIGHT All areas ARTICLE LINK By Professor Martin Kretschmer, Centre for Intellectual Property Policy & Management, Bournemouth University Professor Kretschmer has produced a report on the legal basis, rationale and economic effects of copyright levies as part of his ESRC Fellowship at the UK Intellectual Property Office. The research “Private Copying and Fair Compensation: An empirical study of copyright levies in Europe” reports a large amount of new empirical data, including three product level studies of printer/scanners, portable music/video/game devices, and tablet computers. The relationship between VAT, levy tariffs and retail prices is analysed for 20 countries. Following the Information Society Directive of 2001 (introducing the concept of “fair compensation” for private copying into EU Law), total collection from levies on copying media and equipment in the EU tripled, from about €170m to more than €500m per annum. Levy schemes exist now in 22 out of 27 Member States (with only the UK, Ireland, Malta, Cyprus and Luxembourg remaining outside). Professor Kretschmer says that despite their wide adoption, levy systems are little understood, both in respect of their rationale and their economic consequences. Tariffs are increasingly contested in court, leading to a large gap between claimed and collected revenues. The European Commission has…

File Sharing, Copyright and Freedom of Expression
Copyright , Internet / November 2011
EU
UK

COPYRIGHT Internet ARTICLE LINK By Dr Enrico Bonadio, City Law School, City University London The article explores the relationship between copyright and freedom of speech in the Internet environment. After highlighting the constitutional dimension of these conflicting rights, the phenomenon of file sharing and the role of Internet Service Providers (ISPs), the author analyzes the debate surrounding a particular sanction used in certain jurisdictions to punish unauthorized on line sharing of copyrighted material, i.e. the disconnection of Internet access. The increasingly important role played by private agreements between copyright holders and ISPs is also highlighted. A set of proposals aiming at identifying possible areas of freedom for unauthorized file sharers are then analyzed. In particular, the author believes that file sharing technologies may boost the exchange of information, opinions and ideas amongst Internet users and foster a number of values underpinning the very protection of free speech. It is for this reason – the author argues – that copyright rules might be relaxed when it comes to file sharing technologies, e.g. by transforming copyright from a “proprietary” to a “compensation” right. European Intellectual Property Review, Vol. 33, No. 10, 2011 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1808939

Pirate Party makes European policy progress
Copyright / November 2011
EU

COPYRIGHT All areas The Pirate Party’s “rise” in Europe – having had two Swedish MEPs elected in 2009 and more recently having gained a substantial number of seats in the Berlin state parliament after polling 8.5% of the votes – has mostly been written off as a niche occurrence with the party having no realistic hope of making a change. But now it seems like the Greens/European Free Alliance, the 5th largest coalition of political groups in the European Parliament, has adopted the Pirate Party’s policies on copyright. The coalition, which has seen the most gains in recent elections on the continent, will now support copyright policies which include a reduction in the basic term of rights protection to five years, extendable to 20 years on registration, a new right to format shift, a ban on new blank media levies and a new right to share files. Counterfeiting and “profiting directly from other people’s work without paying them” will remain illegal. The party’s UK manifesto also contains provisions for individual privacy and free speech. The UK’s Pirate Party leader Loz Kaye told The Inquirer: “With the recent election victory in Berlin and now the Green EU Block adopting key Pirate…

Facebook Music – is this really the future of music?
Copyright , Internet / October 2011
EU
USA

COPYRIGHT Internet OK, this isn’t strictly about copyright – its about the launch of the new Facebook Music service – which seemed to leave most cyberworld commentators somewhat under-awed. But I wonder if they (and the music industry) are missing the point. Its great to have a internet behemoth like Facebook promoting legal music platforms (isn’t it ?) – but – isn’t the real value of music being missed again? Facebook’s new music service seems to be all about data collection – with the music services (or the ‘copyright’ element) just the bait to get users to share information with Facebook. One of cyberworld’s commentators, Gizmodo, tells us that Facebook has failed “To Let Fans Share Music Across Platforms”. But of course Facebook has never (as yet) claimed to be a content provider itself. Instead, head honcho Mark Zuckerberg wants Facebook Music to be the “connective tissue” needed by music fans and the music industry alike, so that people would be able to share music with each other without friction – and without breaking the law. How will it do this? Well  Facebook will let you see what your friends are listening to in a real-time “Ticker” feed that appears…

EU agrees to term extension for sound recordings
Copyright , Record Labels / October 2011
EU

COPYRIGHT Record labels After a longish silence in Europe, the idea of copyright term extension for sound recordings was suddenly well and truly back on the agenda in Europe and the extension of the copyright term for sound recordings from 50 years 70 years was agreed by the EU on the 12th September, following an earlier meeting of the European Union’s Committee of Permanent Representatives. The European record industry has been lobbying for some time for the sound recording copyright term to be extended, noting the difference between European and US copyright terms (the US has a potential 95 year term for sound recordings), and difference with the term enjoyed by music publishers and songwriters  – the copyright term in the melody and lyrics of a song is life of author plus 70 years. Andrew Gower’s 2006 Report on IP was seemingly unconvinced by the arguments put forward by the record labels but the last (Labour) Government seemed to support term extension, mainly based on pleas to protect the pensions of ‘aging session musicians’ – and Cliff Richard. The matter moved to Europe with mixed results and whilst both the European Commission and European Parliament backed an extension, in 2009…

WIPO announce breakthrough on Performers’ rights
Artists , Performer's Rights / July 2011
EU
USA

PERFORMERS RIGHTS Artistes “WIPO’s top copyright negotiating body will recommend to the September session of the General Assembly to resume a Diplomatic Conference on the Protection of Audiovisual Performances after agreement on the last outstanding issue relating to the transfer of rights. The convening of a diplomatic conference signals entry into the final phase of treaty negotiations, with the objective of concluding a treaty that would shore up the rights of performers in their audiovisual performances More at http://the1709blog.blogspot.com/2011/06/performers-to-get-new-instrument-but.html

Norwegian Government suggests new laws on digital piracy, and the European Commission wants change too!
Copyright , Internet / June 2011
EU
Norway

COPYRIGHT Internet, all areas Norway has proposed amendments to its copyright law to make it easier for content owners to tackle online piracy, though the Norwegian government has shied away from a “three-strikes” system, focusing on making it easier for content owners to get orders against individual filesharers and to get injunctions to order ISPs to block copyright infringing websites. Norway will relax data protection rules to allow actions to proceed against individuals and will simplify the process by which rights owners can force ISPs to reveal the name and contacts of suspected file-sharers based on the IP address they are using. Secondly there will be a new proposed injunction system which will make it easier for the content industries to get websites guilty of copyright infringement. Spain also decided to go the speedy injunction route instead of establishing some sort of three-strikes process that targets actual individual file-sharers. In America the U.S. Department of Justice and Department of Homeland Security’s Immigration and Customs Enforcement (ICE) has seized another eight domains of websites it alleges are engaged in offering unauthorized copyright or counterfeit goods. In November 2010 over 70 domains were seized, and a number of similar seizures that have…

Where does the music industry go post Limewire?
Copyright , Internet / June 2011
Australia
EU
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COPYRIGHT Internet, all areas I’ve been pondering over the weekend who the real winners and losers in the LimeWire saga were – and where the recorded music industry goes from here – and for that matter where film companies and other content owners go from here. Despite a court victory for the record labels, and an agreed settlement,  I just can’t find any real winners, but I can find lots of losers, including (of course) LimeWire which has been shuttered and forced to pay over $105 million. What we had was a widely popular internet service that was admittedly used by many to download illegal content – but LimeWire’s own figure showed that 30% of consumers used the service to find new music – and another 25% were “morally persuadable”  – in that they could have been encouraged to pay for content. In a “can pay, won’t pay” era, not a bad market at all – and that’s gone. So a potential business has been lost, the consumer has lost out – and consumers have been lost too. The recorded music sector is still in a steep decline, and the unpalatable truth is that those who used LimeWire for illegal…

EU Copyright appointment causes controversy
Copyright / May 2011
EU

COPYRIGHT All areas There has been a fair amount of controversy about the appointment of Maria Martin-Prat as the European Union’s new point person on copyright policy because Martin-Prat spent years directing global legal policy for the International Federation of Phonographic Industries (IFPI) the global recording industry’s London-based trade group as Deputy General Counsel, Director of Legal Policy and Regulatory Affairs. Two MEPs are questioning Martin-Prat’s appointment. Liberal Dutch MEP Marietje Schaake and Swedish Pirate Party MEP Christian Engström (no surprise with regards to the latter!)  have written to the European Commission, asking, “Does the Commission not see any problems in recruiting top civil servants from special interest organisations, especially when being put in charge of dossiers directly related to their former employers? If not, why not adding “Does the Commission feel that such an appointment would help to build confidence with the European Parliament and the general public that the Commission can be trusted to handle copyright-related issues in a fair and balanced manner?” The Commission should offer its own response in the next few weeks. http://arstechnica.com/tech-policy/news/2011/04/top-music-industry-lawyer-now-eu-copyright-chief.ars

Advocate General backs protection for ISPs
Copyright , Internet / May 2011
EU

COPYRIGHT Internet In a case between ISP Scarlet and Belgian music collection society SABAM, the ECJ’s Advocate General Pedro Cruz Villalón has given the opinion that “The installation of the filtering and blocking system is a restriction on the right to privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter”. The case, originally in court back in 2007, resulted in Scarlet being ordered by the country’s courts to filter out copyright infringing content being shared by its customers. ISPs in the UK have long cited European legislation as justification as to why they can’t more proactively police copyright infringement.  Villalón did add that the Charter (of Fundamental Rights) does allow for the rights and freedoms of European internet users to be restricted by national law, but said that such restrictions must be ingrained in the legal systems of individual member states, and should be “accessible, clear and predictable”. That was not the case in the Scarlet judgment, he concluded meaning that the French law Hadopi and the UK’s own Digital Economy Act are not necessarily in breach of the ruling. CMU Daily  www.thecmuwebsite.com  18 April 2010

Credit card companies work with police and IFPI to cut off pirates
Copyright , Internet / April 2011
EU
UK

COPYRIGHT Internet Credit card companies including MasterCard and Visa are working with the City of London Police and the recorded music sector to extend cooperation in tackling illegal online services selling unlicensed music worldwide. Under the arrangement IFPI can secure action by police against websites that infringe its members’ rights.  Details of 24 copyright infringing music services have been handed over to the police to date and IFPI’s anti-piracy investigators supply the City of London Police’s Economic Crime Directorate with evidence of illegal downloads made from an infringing site.  Once the police have verified the evidence, they notify MasterCard and Visa who require the acquiring bank providing the retailer with payment services to produce evidence of appropriate licenses to sell music or cease providing those services to the retailer. To make sure the new system works effectively in practice, MasterCard has committed to deal with requests involving law enforcement expeditiously.  Frances Moore, Chief Executive of IFPI, said: “It is extremely positive for the recorded music industry that the world’s largest payment systems are taking steps to prevent their services being abused by illegal websites that infringe the rights of artists, songwriters and producers. Intermediaries, such as MasterCard and Visa, can play a key…

The legal implications of using cloud technology
Copyright , Internet / April 2011
EU
USA

COPYRIGHT Internet ARTICLE: The legal implications of using cloud technology; what happens when two or more people create and collaborate an ‘original work’ solely on the cloud? by Lucilla Green (a Law graduate who is currently working as an Independent Legal Advisor,lucillagreen444@gmail.com) What is Cloud Technology? Cloud Technology is made up of applications and storage space which are solely web-based and not stored on the computers hard-drive.  Instead, everything is stored online.  It allows consumers to create data and store it away on the service providers’ hard-drive where it can be accessed anywhere at anytime from any computer or mobile phone with an Internet connection.  I think its a fantastic piece of technology and facilitates the way that we do work as it allows multiple users to work on one document at the same time without the need to be in the same room together, or the same country.  I myself am an avid fan of Cloud Technology and use Google Docs more than Microsoft Word to do all my work as I no longer need to carry sheets of paper, USB sticks, or even email myself work, I can just save it and access it from any computer at anytime.  In…

Updates on copyright law
Copyright / March 2011
Canada
China
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Russia
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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…

EU Commissioner calls for one-stop digital licensing
EU

COPYRIGHT Music publishing, record labels Neelie Kroes, the EU’s Commissioner, has called on content owners of Europe to construct a “simple, consumer-friendly legal framework” for making digital content available across the Union. Speaking at an event in London alongside the bosses of Amazon and BT, and the government’s culture minister Ed Vaizey, Kroes said that the traditional content industries had not developed their licensing models fast enough to cope with the new demands of internet services.  She told the event: “Digitisation has fundamentally changed content industries, but licensing models simply have not kept up with this. National licensing can create a series of Berlin cultural walls. The price, both in pounds and frustration, is all too real, as creators are stifled and consumers are left empty-handed. It is time for this dysfunction to end. We need a simple, consumer-friendly legal framework for making digital content available across borders in the EU”.

Murphy v MPS
Competition , Copyright / March 2011
EU
UK

COPYRIGHT / COMPETITION Broadcasting, content owners Murphy v MPS – The Advocate General’s opinion might have serious ramifications for the pan-European TV market and territorial licensing deals within the European Community One of the most interesting copyright vs competition law cases has finally reached the European Court. Its one we have been watching and waiting for!  In Murphy v MPS, a pub landlady, Karen Murphy was convicted of copyright infringement for using a Greek ‘Nova TV’ decoder to play English Premier League football matches live in her pub. Sky owns the right to screen EPL matches in the UK but the Premier League sell the rights to other broadcasters in Europe such as Nova in Greece. Unsurprisingly it was a lot cheaper to subscribe to the Greek service and unsurprisingly Sky decided to take action against her and she was convicted in the Magistrates Court and this was upheld in the Crown Court. This was then appealed to the High Court who referred it to the ECJ. The Advocate General has now decided that (and in a ‘nutshell’) copyright is trumped by completion law ….. so it was LEGAL for Ms Murphy to purchase her football from Greece … well it is a…

Apple apps deal sparks prompts thoughts of anti-trust lawsuits
Competition / March 2011
EU
USA

COMPETITION Online Apple’s announcement that it would take a 30% commission for all sales of content made through its apps subscription system has prompted talk of anti-trust law suits from online operators such as Rhapsody. Any subscription-based app made available via Apple’s store will have to offer customers the option to pay for their subscriptions via the Apple platform at the same price as if they chose to have a direct billing relationship with the service provider.  It would be a brave content owner who walked away from Apple’s iPad and  iPhone customers ….. although if enough did it might be the start of something very interesting if Google’s Android system and the new Microsoft/Nokia conglomerate started to pick up annoyed content owners – and it seems a few might – Google has announced a payment system that allows newspaper publishers t charge readers ti access online content –and Google will take just 10% of these micropayments. In the UK Associated newspapers have signed up as have Spain’s El Pais and in Germany Tomorrow Focus and Stern.de are both on board. According to various reports, officials at the US Department Of Justice have approached both affected content providers and Apple to discuss…

Post Meltwater musings
Copyright / January 2011
EU
UK

COPYRIGHT All areas The ramifications of Mrs Justice Proudman’s decision in the Meltwater continue to niggle away in my mind and I noticed that the London Metro’s headline yesterday (pub: Associated Newspapers) was “Anarchy in the UK”, the title of the infamous sound recording and song, written by Messrs Paul Cook, Steve Jones, John Lydon and Glen Matlock in 1976 which formed the A side of the Sex Pistol’s debut vinyl release in the UK. Now IF copyright can subsist in a headline and a headline can be an independent literary work ……. and Meltwater tells us it can, then what if that headline itself is copied – here from a song title? Surely the logical conclusion is that the owners of the ‘title’ of song should have the right to protect their work in turn, independently of the lyrics of that the song …… if it is worth copying, isn’t it worth protecting? I also noticed the news that 60 artists including Mr Hudson, Guillemots, UNKLE, The Big Pink, The Kooks, Enter Shikari, Coldcut, Orbital, Heaven 17, Jon McClure, Suggs, Gallows and Pendulum have recorded two versions if John Cage’s famous ‘silent’ composition, ‘4’33″‘, as part of the Cage Against The Machine project. Billy…

Police co-ordinate file-share raids across 14 European countries
Copyright , Internet / October 2010
EU

COPYRIGHT Internet The web was buzzing with news after police in 14 European countries launched a coordinated series of raids on suspected file-sharing network operations on Tuesday 7th September. Reports said that Belgian authorities spearheaded the investigation that led to the raids, although a substantial part of the police activity took place in Sweden, including a raid on Sweden’s PRQ in Solna, the new web host of whistleblower site WikiLeaks. Other raid included sites in Stockholm, Malmo,  Eskilstuna and on Umea University’s campus. TorrentFreak reports that other raids took place in The Netherlands, Belgium, Norway, Germany, Italy. Great Britain, Czech Republic and Hungary. The believed target of the raids is the file-sharing “Warez Scene” or the “Scene”. a loosely-affiliated group thought to be behind many  leaks of copyrighted material to the Internet and described as “, the network of individuals and servers at the top of the so-called ‘Piracy Pyramid’ “. In Sweden it is reported that four people are being questioned on suspicion of breaching copyright law. Servers and computers have also been seized. PRQ’s Mikaelo Viberg spoke to reporters and said that armed with IP addresses,  police officers turned up at PRQ’s premises “At 9:00 this morning, five…

Zappanale win on appeal, Ozzy settles with Tony
Artists , Live Events , Trade Mark / August 2010
EU
Germany
USA

TRADE MARK Artists, live events industry Frank Zappa’s family have lost a trade mark case on appeal in Germany where the Oberlandesgericht Düsseldorf has ruled against the Zappa Family Trust (20 U 48/09) in a trade mark infringement action against a group of Zappa fans. The Trust, which owned the ZAPPA Community trade mark, objected to the annual “Zappanale“, a meeting of Zappa fans which involved many uses of the Zappa name and image. However it appears that the Trust had used the word “Zappa” only as part of the “official” Zappa website www.zappa.com, which operated from the US. According to the court, reversing the decision of the Landgericht, this was not genuine use of the trade mark in the EU under Article 15(1) of the Community Trade Mark Regulation. The court added that the use of a mark in a domain name may be sufficient to constitute genuine use in principle, but that here the public would consider the use of the word Zappa as a general descriptive reference, not as a reference to the trade mark owner In other trade mark news, Ozzy Osbourne has reportedly reached a settlement with Tony Iommi over who owns the name Black Sabbath. Iommi, Black…

Whilst the UK shows a small improvement, new figures show a slump in global record sales
EU
Japan
UK
USA

COPYRIGHT Record Labels, Music Publishing Global recorded music sales fell 7.2% in 2009, led by significant falls in the world’s two biggest markets, the US and Japan. According to the IFPI’s Recording Industry In Numbers 2010 report global recorded music trade revenues totalled $17.0bn (£11.1bn) in 2009, with physical sales down 12.7%. Digital revenue rose 9.2% in 2009 to $4.3bn (£2.8bn). Digital channels now account for about 25.3% of all music sales. Performance rights revenues from recorded music also rose, up 7.6% to $0.8bn (£0.5bn). However, globally the results were very mixed: US sales fell 10.7% to $4.6bn (£3.0bn), while sales in Japan plunged 10.8% to $4.0bn (£2.6bn). Excluding these two markets, recorded music sales fell just 3.2% in 2009. Mirroring the UK figures from the BPI, IFPI figures indicate that music sales in the UK rose 1.9% to £1.0bn last year. Other music markets that experienced an increase in trade value were Australia (up 4.3%); Brazil (up 0.5%); South Korea (up 10.4%), Sweden (up 11.9%), India (up 2.0%) and Mexico (up 0.2%). The IFPI says that the increases in South Korea and Sweden are particularly significant, as these two countries have put in place legislation to fight online piracy. Another country that…

ECJ reference on dental surgery music could set important precedent
EU

COPYRIGHT Collection societies, record labels, music publishers The Corte di Appello di Torino has made a reference to the European Court of Justice by in Case C-135/10 SCF Consorzio Fonografici v Marco Del Corso. Here the questions, involving copyright, arepossibly of great interest to collection societies across Europe, not least in the Uk where the PRS have adopted an fairly aggressive approach to contacting businesses to ask for payment for the use of music. “1. Are the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations …, the TRIPs Agreement … and the WIPO … Treaty on Performances and Phonograms … directly applicable within the Community legal order? 2. Are the abovementioned sources of uniform international law also directly effective within the context of private-law relationships? 3. Do the concepts of ‘communication to the public’ contained in the abovementioned treaty-law texts mirror the Community concepts contained in Directives 92/100 [on rental and lending rights] and 2001/29 [on the Information Society] and, if not, which source should take precedence? 4. Does the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their…

EC promises copyright and data protection reforms
Copyright / June 2010
EU

COPYRIGHT All areas The European Commission will strengthen legal protections for personal data, reform copyright law and ensure that device and software makers embrace open standards, it said when outlining its new digital policies. The Commission has published its Digital Agenda, the series of aims which will guide its legislating and policy formation activities in the next 10 years. “We must put the interests of Europe’s citizens and businesses at the forefront of the digital revolution and so maximise the potential of Information and Communications Technologies (ICTs) to advance job creation, sustainability and social inclusion”, said Commission vice president for the digital agenda Neelie Kroes. “The ambitious strategy set out today shows clearly where we need to focus our efforts in the years to come. To fully realise the potential of Europe’s digital future we need the full commitment of Member States, the ICT sector and other vital economic players.” The Commission’s priorities include changing copyright law to make cross-border trade in digital goods and services more widespread, it said. The Commission’s plan also includes a proposal to strengthen data protection law to cultivate trust in online services. www.out-law.com

BASCA query Spotify royalties
EU
UK

COPYRIGHT Internet, music publishing BASCA, the association that represents songwriters, composers and authors, has hit out at Spotify saying that the payments for copyright uses generated by the streaming on demand service are “tiny” and called for the company to be more transparent about the nature of its business. Last year it was claimed that over a five month period there were over one million plays of Lady Gaga’s hit Poker Face – the most downloaded song in the British chart history, and one of the most successful songs of the 21st century to date – but this earned the songwriters just $167 from Spotify. BASCA CEO Patrick Rackow told the BBC: “At the moment, the amounts of money that are actually being received are tiny. That might be because there is no money there. But there is no clear trail that can be established so that the songwriter can trace back what they ought to have got. These things are behind a blanket of secrecy, and that is extremely worrying and Rackow added “The danger is that these deals all become so secret that the mist that descends creates uncertainty, creates fear. That allied to the fact that the…

EU launch consultation on the creative industries
Legislation / May 2010
EU

LEGISLATION All areas The European Commission is launching a public consultation on the future of “cultural and creative industries”. The Green Paper “Unlocking the potential of cultural and creative industries” is open to individual citizens and organisations and in particular national, regional or local authorities, the European institutions and associations from the cultural and creative industries. The period for consultation Is from 27th April to 30th July 2010 and the objective is to gather views on various issues impacting the cultural and creative industries in Europe, from business environment to the need to open up a common European space for culture, from capacity building to skills development and promotion of European creators on the world stage. The responses to the consultation will inform the Commission and help it ensure that EU programmes and policies involving cultural and creative industries are “fit for purpose”. http://ec.europa.eu/culture/our-policy-development/doc2577_en.htm

Australian court holds ‘safe harbour’ for ISPs
Copyright , Internet / March 2010
Australia
EU
USA

COPYRIGHT Internet, all areas Australia’s Federal Court has ruled that Internet Service Providers cannot be held liable for copyright infringements committed by their subscribers, dealing a blow to content owners in a closely-watched lawsuit against Australian Internet Service Provider iiNet. Justice Dennis Conroy found that whilst it was shown that iiNet had knowledge that its customers were committing copyright infringement, this knowledge did not equate to “authorizing” the activities ruling “While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users”. The case was brought by AFACT (the Australian Federation Against Copyright Theft) on behalf of a consortium of film and TV companies and centred on the ISP’s liability for illegal file-sharing committed by its customers. AFACT had asked for damages and wanted iiNet to be forced to disconnect any customers it knew were illegally sharing music online. The ISP had refused to forward file-sharing warning notices to its subscribers on behalf of the studios, saying they violated privacy provisions in Australian law. Instead, iiNet had taken to forwarding the…

Tenenbaum appeals, Bono appeals …… who should pay for what in the digital age … if anyone should pay at all?
Copyright , Internet , Record Labels / February 2010
EU
USA

COPYRIGHT Internet, record labels Joel Tenenbaum, who was ordered to pay $675,000 for illegally downloading 30 sound recordings after his jury trial in the USA, is to ask for a re-trial. Among other claims, lawyers for Tenenbaum say that the verdict was unconstitutionally excessive –  the argument being that a penalty of $22,500 a song is “obviously unreasonable” – although it is (of course) well within statutory limits. Tenebaum’s lawyer, Charles Nesson, the Harvard academic, is using an argument from the ninety year old Supreme Court decision in St. Louis, I.M. & Sou. Ry. Co. v. Williams, 251 U.S. 63 (1919) to support the appeal. The US Copyright Act allows penalties ranging from $750 to $150,000 per infringement at the jury’s discretion. Indeed the jury’s decision in the Tenenbaum case is not without precedent: in the USA’s first major file sharing claim, single mum Jammie Thomas-Rasset was ordered by a Minnesota court to pay $1.92 million for file sharing 24 songs. But remarkably, the Thomas-Rasset’s jury damages have been reduced – by 97%, with US District Judge Michael Davis calling the jury’s penalty “monstrous and shocking” and reducing the $1.92 million to $2,250 per song, or about $54,000 saying “The need…

Are they finally getting it right?
Copyright , Internet / February 2010
EU
USA

COPYRIGHT Internet ARTICLE:  By Cassandra Williams, post-graduate student at the College of Law The Government, Record Companies and the Music Industry as a whole have often been accused of not moving with the times, being unable to monetise the digital age and of attacking fans and music lovers for infringement rather than the system, if events of the last month are anything to go by it looks as though they may be, finally, getting on the right track. The Government has backtracked on Clause 17 of its Digital Economy Bill, a move some have branded a distraction, in order to sidetrack opponents from the controversial issue of “three strikes”,  This Clause would give the Secretary Of State responsible for intellectual property the power to introduce new copyright rules without consulting parliament, an entirely undemocratic right. The uproar over this particular clause has diverted many away from the introduction of a three-strikes anti-piracy programme that could result in persistent illegal file-sharers having their net connections suspended, a move that was struck by France’s highest constitutional authority who ruled that Internet access is a fundamental human right and thereby killed the three-strikes provision (Torrent freak). In a move mirroring the Spanish legislators the…

EU Ratifies WIPO Copyright Treaty
Copyright / January 2010
EU

COPYRIGHT All areas The European Union and its Member States have ratified the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, the so-called “Internet” Treaties. These Treaties were concluded to make the world’s copyright laws ‘fit for the internet’. See http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1916&format=HTML&aged=0&language=EN&guiLanguage=en

Will new music streaming business models survive the dawn of the digital age?
Copyright , Internet , Record Labels / November 2009
EU
UK
USA

COPYRIGHT Internet, record labels The word on everyone’s lips in the music industry (this month) is ‘Spotify’ – and it’s ‘all you can eat’ business model for providing unlimited music streams to music fans either for free – if fans are prepared to put up with advertising – or for £9.99 per month as a premium service. As Spotify, launched by Swedish internet entrepreneur Daniel Ek, reached its first birthday, attention turned to figures released by Ek about the success of the service and his self declared problems in getting what he considers workable deals with the record labels who control the rights to sound recordings and music publishers (and their collection societies) who control the rights to songs. Many media commentators are saying that the service will soon be out of business unless they can get more people to pay for music – with commentators arguing that the adverting funded model will not work and Spotify needs to rapidly increase the number of its two million UK users who pay the subscription – currently it is thought only about 10% pay and indeed Ek, writing on the company’s blog to mark the first anniversary this week, said “Spotify has…

Icebergs in the Stream – Always the Danger Lurking Beneath
Copyright , Internet / November 2009
EU
USA

COPYRIGHT Internet ARTICLE:  By Cassandra Williams, post graduate law student at the College of Law  As anyone who has kept up with the news knows, downloading illegal content is allegedly killing off the music and film industries. That said, downloading may just be the tip of the iceberg and   streaming could be the real danger lurking beneath to music, film and television companies. Why risk the possibility of huge fines, being cut off from the internet and court action when all content a user needs can be easily accessed via streaming? Youtube may have started the revolution in terms of streaming content, but the mantle has been picked up by sites that actually stream entire television series and films as well as the latest singles and back catalogue of most artists.  Of course most of these sites streaming the content are breaking the law in the same way that a TV channel that broadcasts a programme without the correct clearances would be liable for copyright infringement.  However the viewers of the TV channel at home who happened to tune into the channel will not be held liable for watching an illegal stream. Why, well as an ‘end user’ the consumer…

France approves Loi Hadopi – and Europe drops opposition to three strikes
Copyright , Internet / November 2009
EU
France

COPYRIGHT Internet France will send out it’s first warnings to digital pirates early next year after passing its much debated ‘three strikes’ legislation allowing for Internet access to be cut for those who illegally download movies and music. The French Constitutional Court passed the law at the end of October to the joy of President Nicolas Sarkozy.  Culture Minister Frederic Mitterrand said the members of a watchdog to oversee application of the digital clampdown would be named in November and the first warnings would go out “from the start of 2010”. The law sets up an agency that will send out an email warning to people found to be illegally downloading films or music. A written warning is sent if a second offence is registered in six months and after a third, a judge will be able to order a one-year Internet rights suspension or a fine. At the same time, efforts in the European Parliament designed to hinder the three-strikes system have been dropped. CMU Daily reports that moves to amend new Europe-wide telecom rules so that disconnecting the net access of persistent file-sharers would be illegal. has been dropped, seemingly in response to pressure from those European governments…

Google win’s the first battle of the AdWords
Internet , Trade Mark / October 2009
EU

TRADE MARK Internet Google has won an important first victory it it’s battle sell ‘AdWords’ in it’s search engines. Adwords are basically brand names, often registered trade marks, which Google sells to competitors of those brands so their own product would be highlighted when a search is made of the advert – for example if a user entered ‘Rolex’ into the search engine, a competitor watch maker may have purchased the Adword and their own luxury watch would be featured alongside Internet search results for Rolex. Louis Vuitton and others have been fighting such advertising after makers of imitation products “piggybacked on those brands in online searches to attract customers”. Now the Advocate General Poiares Maduro, in his opinion to the European Court of Justice, suggests that Google has not committed a trade mark infringement by allowing advertisers to select, in AdWords, keywords corresponding to trade marks. He highlights that the use of the trade marks is limited to the selection of keywords which is internal to AdWords and concerns only Google and the advertisers. When selecting keywords, there is thus no product or service sold to the general public. Such a use cannot therefore be considered as being a…