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…

Television programme format rights – why pay when you can copy free?
Copyright / July 2009
EU
UK
USA

COPYRIGHT Television Television formats such as X-Factor or Britain’s Got Talent are extremely popular with audiences. Over the last decade, the UK has emerged as the world’s major format developer, accounting for between 20-50% of all format hours broadcast annually worldwide. Yet, there is no such thing as a television format right under copyright law. How then could format developers, such as Endemol or Fremantlemedia become multinational companies, licensing their programmes around the globe? For example, “Who wants to be a Millionaire” has been recreated in 108 territories while local versions of Idols have aired (over 129 series) in 42 territories receiving about three billion votes. Researchers from Bournemouth University have studied the exploitation of television formats under an ESRC grant as part of a joint business placement scheme with FremantleMedia, one of the major independent TV producers. The study has created a database of 59 reported format disputes between 1988 (when the issue of TV format rights first surfaced in the landmark legal case ofGreen v Broadcasting Corporation of New Zealand). The researchers then conducted semi-structured interviews with media sellers and buyers at three international television trade fairs (NATPE Las Vegas, DISCOP Budapest and ATF Singapore). The emerging patterns…

The ‘skinny tail’ of music downloading
Copyright , Internet , Record Labels / June 2009
EU
UK
USA

COPYRIGHT Internet, record labels A new report from Will Page, Chief Economist of PRS for Music and Eric Garland, CEO of digital research group Big Champagne hopes to lay to rest the theory of the long tail in copyright when it comes to music consumption – pointing out that whilst it was first thought that the long tail could be applied to the digital music world – where 20% of products would provide 80% of sales and 80% of products provide the remaining 20%, when it comes to music its actually a very very ‘skinny tail’, and that illegal download sites just reflect the popular mainstream. Page and Garland, who outlined their findings at the very civilized Great Escape conference in seaside Brighton on the 14th May, gave some interesting examples of the effect of both legitimate music industry practices and download sites in the digital sphere, pointing out that the Beatles sound recordings, which are not legally available anywhere in the digital realm, consistently top download charts. Using the fact that Lady Gaga’s latest hit Poker Face which topped the UK’s charts was illegally downloaded 388,000 times during one week of the Pirate Bay Trial alone, they said that consumer demands…

New PRS music streaming rates announced
EU
UK

COPYRIGHT Music Publishing, internet PRS for Music has announced the rates for streaming services for its new Online Music Licences which come into effect on 1 July. After a wide-ranging seven month consultation period with key stakeholders, major and independent music publishers and the wider industry, the new rates were approved by the PRS for Musicboard on 20 May. The key changes are: An increase in the headline royalty rate for on demand streaming services from 8% to 10.5% (in exchange for the per stream minimum being reduced from 0.22p to 0.085p) The new Online Music Licences replace the previous Joint Online Licence Because the Joint Online Licence is expiring, current licensees will need to sign to the new licences from 1 July.   The changes to the streaming rates follow the announcement on 1 May that rates for download services and services funded by subscription will remain the same. See www.prsformusic.com and http://the1709blog.blogspot.com/2009/05/on-demand-streaming-royalties-and-ad.html  and http://www.mi2n.com/press.php3?press_nb=120080

EU welcomes SACEM’s pan-European ambition
EU

COMPETITION Music publishing The European Union Competition Commissioner Neelie Kroes has welcomed progress in the music collection society sector on the provision of pan-European licences for digital music after French collecting society SACEM said they are ready to entrust other collecting societies with their repertoire for pan-European licensing, while offering to represent other societies’ repertoire on a non-exclusive basis. European officials have been in conflict with the collecting society community because of the lack of pan-European licences. Officials say that a system whereby providers of digital music services must get a separate licence from each national collecting society is anti-competitive, because the collecting society in each territory effectively has a monopoly, that pan-European licences would make it easier to launch a pan-European digital music service and that such licences would force the societies Europe to compete with each other, thus ending the monopoly concerns.  Commenting on those and other developments, Kroes said “There is a clear willingness expressed by major players in the online distribution of music in Europe to tackle the many barriers which prevent consumers from fully benefiting from the opportunities that the internet provides. I therefore encourage the major players, in particular publishers and collecting societies, to…

Term extension plans stumble and fall – and then rise from the ashes as the European Parliament comes to the rescue
EU
UK

COPYRIGHT  Record labels, artists The British music industry’s attempts to extend the recording copyright from the current 50 years, possibly to as much as 95 years, were dealt a blow at the end of March after the UK pushed for greater clarity in the workings of a ‘session fund’ to ensure musicians (rather than just record labels) benefit form the term extension need to be debated. EU Minister Charlie McCreevy, who put the original extension proposals forward at a European level, included provisions to ensure that musicians benefited from the extension, mainly by increasing the royalties that are automatically paid to artists and session musicians oblivious of contractual arrangements once the initial fifty year term is up (currently in the UK, the only royalties musicians have an automatic right to is a share of broadcast royalties collected by PPL). McCreevy proposed a ‘session fund’ into which a cut of fifty-year plus royalty revenues are paid, which are then distributed to musicians involved in those recordings. The UK’s IP Minister David Lammy has made it clear that it is the musicians who he cares about and the UK Government is adamant that the fund system must be properly set up. A…

EU Legal Committee approves 95 year copyright term for sound recordings
Artists , Copyright , Record Labels / March 2009
EU
UK

COPYRIGHT Record labels, artists The European Parliament’s Legal Affairs Committee has given its backing to the proposal to extend the term in sound recordings to 95 years from the current 50 year term. Despite this, some UK commentators remain lukewarm about the proposal and ministers remain unconvinced. The UK government’s 2006 Gowers Report said there was no case for more than fifty years of copyright on recordings although late last year Culture Secretary Andy Burnham said Britain would support an extension, though to 70 rather than 95 years. Now IP Minister David Lammy has said that debate and compromise would be needed before the EU’s Council Of Ministers could pass copyright extension proposals saying at a recent meeting at the Houses Of Parliament that while he and his colleagues had now accepted the case for extension, “opinions on this vary across Europe – so there needs to be some canny footwork to make this happen”. He repeated that the UK Government will only support an extension to 70 years saying that was sufficient to protect musician and performers saying “While the UK believes that performers should be protected throughout their lifetime, a period of 95 years goes beyond what is…

New IFPI Digital Music Report calls for ISP cooperation to become a reality in 2009
Copyright / February 2009
EU
Japan
UK
USA

COPYRIGHT All areas A new report from the International Federation of Phonographic Industries says that the music industry has transformed its business models, offering consumers an increasing range of new services with leading technology partners.  But the IFPI go on to say that generating value in an environment where 95 per cent of music downloads are illegal and unpaid for is still the biggest challenge for music companies and their commercial partners. The report shows that digital music business internationally saw a sixth year of expansion in 2008, growing by an estimated 25 per cent to US$3.7 billion in trade value.  Digital platforms now account for around 20 per cent of recorded music sales, up from 15 per cent in 2007.  Recorded music is at the forefront of the online and mobile revolution, generating more revenue in percentage terms through digital platforms than the newspaper (4%), magazine (1%) and film industries (4%) combined. At the same time, a new generation of music subscription services, social networking sites and new licensing channels is emerging. These were led in 2008 by services like Nokia Comes With Music, MySpace Music and a raft of partnerships with Internet Service Providers (ISPs), such as TDC…

UK Government moves towards term extension for sound copyrights
Copyright , Record Labels / January 2009
EU
UK

COPYRIGHT Record labels The UK’s Culture Secretary, Andy Burnham, speaking at the UK Music’s Creators Conference at the ICA in London has said he would now support an extension of the term in UK copyright protection for sound recordings from the current 50 years to 70 years. Record labels and some high profile artists have argued that the current term is unfair compared to the life plus seventy years term granted to writers and songwriters, and have been pushing for an extension from fifty to 95 years, which would bring the UK in line with the US. There is a sense of urgency about all this because some of the most profitable records of the rock ‘n’ roll era, including Elvis Presley, are already in the public domain, with early Beatles and Stones recordings are all due to come out of copyright in the next decade. Performers have been broadly supportive of the move but the Music Managers Forum have expressed some concerns, not least as the copyrights are normally owned by the record companies – and cynics argue that most artists don’t see that share until they have ‘recouped’ on the label’s initial investment, and that for many artists…

Should The EU Rethink Copyright Law For The Digital Music Age?
Copyright / December 2008
EU

COPYRIGHT All areas ARTICLE LINK  This article takes an interested look at current issues in copyright and in particular the position of internet service providers in ‘facilitating’ copyright infringement. By William New at http://www.ip-watch.org/weblog/index.php?p=1330

MCPS-PRS to challenge EC competition ruling
Competition , Copyright , Music Publishing / November 2008
EU
UK

COMPETITION / COPYRIGHT Music publishing UK music royalty collection society the MCPS-PRS Alliance is challenging a European Commission (EC) competition law decision limiting the control such organisations have over copyright use agreements. In July, the EC ruled that the current exclusivity deals the single-country societies had were effectively domestic monopolies in violation of Article 81 of the European Commission Treaty and Article 53 of the EEA Agreement saying The European Commission has adopted an antitrust decision prohibiting 24 European collecting societies from restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory. However, the decision allows collecting societies to maintain their current system of bi-lateral agreements and to keep their right to set levels of royalty payments due within their domestic territory. The prohibited practices consist of clauses in the reciprocal representation agreements concluded by members of CISAC (the “International Confederation of Societies of Authors and Composers”) as well as other concerted practices between those collecting societies. The practices infringe rules on restrictive business practices (Article 81 of the EC Treaty and Article 53 of the EEA Agreement). The Commission decision requires the collecting societies to end these infringements by modifying their…

Collection societies break ranks on pan-Eurpean licensing
Copyright , Internet , Music Publishing / September 2008
EU

COPYRIGHT  Music publising, internet  In a classic example of the concepts of territoriality in licensing pitted against the free market within the European Commuity the IPKat brings news of a dramatic development in the Netherlands where a Dutch has issued a preliminary injunction prohibiting Dutch collection society BUMA from granting any further licences for the online sale of the repertoire of works administered by the UK’s Performing Rights Society in so far as those licences extend beyond the territory of the Netherlands. BUMA had previously granted a licence for the territory of the entire European Community to beatport.com. PRS maintained that the reciprocal agreements between collecting societies did not grant BUMA any royalty-collecting rights beyond the Dutch territory. In its defence, BUMA attempted to rely on the Commission’s recent decision in CISAC where the European Commission ordered 24 European copyright collecting societies to stop restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory, while still letting them keep (i) their current system of bilateral agreements and (ii) their right to set levels of royalty payments due within their domestic territory. BUMA argued that any territorial restriction in its reciprocal representation agreements is null and…

2006 Fifa trademarks cancelled for lack of distinctive character
Trade Mark / September 2008
EU

TRADE MARK All areas 2006 Fifa trademarks cancelled for lack of distinctive character: OHIM Cases R 1466/2005-1, R 1467/2005-1, R 1468/2005-1, R 1469/2005-1 and R 1470/2005-1. All The Board of Appeal of the OHIM has allowed appeals brought by Ferrero oHG mbH against the refusal of the Cancellation Division to cancel marks belonging to the Fédération Internationale de Football Association (Fifa). The five marks in dispute have now dated and are of little commercial value as the event in question, the 2006 football World Cup, has passed. However the case sets an important precedent. The marks are: WORLD CUP 2006 (referring to the football world cup); GERMANY 2006 (the event taking place in Germany); WM 2006 (WM is Weltmeisterschaft, “World Cup” or World Championship” in German); WORLD CUP GERMANY; WORLD CUP 2006 GERMANY. The grounds upon which the registrations were challenged were that the signs in question were descriptive and lacked distinctive character. http://oami.europa.eu/search/legaldocs/la/en_BoA_Index.cfm?CFID=2933140&CFTOKEN=92532803

EU proposes a 95 year term for copyright in performers rights and sound recordings
Copyright / August 2008
EU

COPYRIGHT All areas The European Commission has adopted two new copyright initiatives. Firstly the Commission is proposing a new Directive “to align the copyright term for performers with that applicable to authors, in this way bridging the income gap that performers face toward the end of their lives”. Secondly, the Commission proposes to fully harmonise the copyright term that applies to co-written musical compositions. In parallel, the Commission also adopted a Green Paper on Copyright in the Knowledge Economy. The Commission’s press release says “Both of these initiatives comprise a unique mix of social, economic and cultural measures aimed at maintaining Europe as a prime location for cultural creators in the entertainment and knowledge sectors”. Internal Market and Services Commissioner Charlie McCreevy said: “The copyright measures adopted today should underline that we take a holistic approach when it comes to intellectual property. The proposal on term extension has a strong social component and the Green Paper is deeply embedded in the overall societal and knowledge context” adding in relation to sound recordings “I am committed to concentrate all necessary efforts to ensure that performers have a decent income and that there will be a European-based music industry in the years to come. The proposal on term…

Satellite TV case to go to ECJ
Competition , Copyright / August 2008
EU
UK

COPYRIGHT / COMPETITION Television, sport By David Pearce writing for the IP Kat In a judgment of over 45,000 words and 98 pages, handed down this morning in the case of the Football Association Premier League & others v QC Leisure & others [2008] EWHC 1411 (Ch), the Honourable Mr Justice Kitchin has delivered a tentative blow against the rights of satellite broadcasters such as BSkyB to protect their exclusive rights to broadcast football games to subscribers in individual EU countries. The three combined actions involved in this case concerned the use of foreign decoder cards in the UK to access foreign transmissions of live Premier League football matches. The claimants complained that the dealing in and use of such cards in the UK involved an infringement of their rights under s.298 of the CDPA 1988, as amended, and of the copyrights in various artistic and musical works, films and sound recordings embodied in the Premier League match coverage. The defendants argued that the use of copyright law to effectively prevent them from using decoder cards in the UK which had been legitimately bought in other EU states was contrary to EC law. Several Directives were cited, the key one being 98/84/EC, also known…

McFly DIY – is there now a new way forward?
Copyright / August 2008
EU
UK
USA

COPYRIGHT All areas By Cassandra Williams postgraduate student at the College of Law No one can have missed the constant criticism levelled at record companies and their approach to selling music in the digital age and there is a suggestion that recorded music is now vaguely irrelevant to artists – and should no longer be the main product. Some commentators see recorded music as a marketing tool – for example to promote ticket sales and live concerts, to sell other merchandise, or even to sell drinks, newspapers or burgers According to Bob Stanley from St Etienne the answer is to give downloads away, or to make them cost no more than sending a text. Radiohead famously allowed fans to self price ‘In Ranibows’ but clearly will garner huge revenues from their touring activitoes.. Matador, once home to Cat Power, provides a free download when you buy vinyl copies of its records. With technology allowing music to be produced and distributed cheaply artists no longer need a major label. It is now possible for DIY labels, run out of bedrooms and shacks, to finally challenge the majors. A recent example of the DIY system is the new self-released album from McFly…

European Commissioners look at business practices and consumer rights
EU

COMPETITION / COPYRIGHT Music publishing, record labels The Guardian has reported on a draft decision from the European Commission which, if adopted, would lead to major reforms of Europe’s music collecting societies. According to the report, the draft, which has not yet been signed by EU Competition Commissioner Neelie Kroes, berates the fact that the collecting societies operate as monopolies within their national borders, partitioning the EU market on national lines. It gives the collecting societies 90 days to terminate their agreements and calls on them to cross-license. The draft has been criticised for not going far enough to break down national monopolies. The IPKat notes that, from what little information is available, it seems that the Commission isn’t too worried about the notion of collecting societies, but rather about the way in which they operate territorially. This territoriality is understandable, since copyright has grown up as a system of national rights with a slightly different focus in the different Member States. http://ipkitten.blogspot.com/2008_06_01_archive.html http://www.ip-watch.org/weblog/index.php?p=1156 http://www.mcps-prs-alliance.co.uk/monline/news/Pages/EuropeanCommission.aspx Here are edited highlights of what NeelieKroes said at the OpenForum European Breakfast seminar,‘Being Open About standards’ : “It is simplistic to assume that because some intellectual property protection is good, that such protection should therefore be…

European Court overrules Court of First instance on annulment of Sony-BMG merger
Competition , Record Labels / August 2008
EU

COMPETITION Record labels Bertelsmann and Sony Corporation of America v Impala C-413/06 P The European Union’s highest court has set aside the Court of First Instances ruling that annulled the European Commission’s approval of a merger between the Sony Music and BMG record labels. The European Court of Justice also ordered that the lower court to reconsider its decision in order to review three of five pleas it had not dealt with. The court said that “since the Court of First Instance examined only two of the five pleas relied on by Impala, the Court of Justice considers that it is not in a position to give a ruling itself on the dispute. It is accordingly referring the case back to the Court of First Instance”. In July 2006, the lower Court of First Instance threw out the Commission decision at the request of Impala, an independent group of music producers. The lower court said the Commission had taken insufficient care in giving its approval. It should have looked more carefully at whether collective market dominance existed in the music industry and could grow after the merger, the court said. There has been no practical effect of a flurry of…

European Commissioner calls for debate on format shifting
Copyright / July 2008
Belgium
EU

COPYRIGHT All areas Most consumers are under the misapprehension that they can make a private copy of a CD and put that onto a cassette, hard drive of their computer or other format – or make a back up copy of computer software – and this is perfectly legal. Well under UK law it most certainly is not – which is perhaps why The Gowers’ Report into IP law in the UK called for this area of copyright law to be revisited and indeed called for the legalising of private copying without compensation for copyright owners. The European Union Copyright Directive allows an exception for consumer private copying on condition that the right holder receives ‘fair compensation’ and many European countries achieve this by way of a levy on either blank discs or tapes or on copying technology. In all events supporters of the format shifting exception say that as there’s no harm to rights holders from the format shift, any compensation should be “zero”. But that is not currently accepted by some parts of the music, software and computer games industries. The Music Business Group, the umbrella group of trade bodies representing music managers, songwriters, publishers and performers responded…

Warner Music’s Tune of Folly
EU
UK
USA

COPYRIGHT Internet, record labels How will record labels monetise copyright in the future? ARTICLE LINK  C/Net News Editor’s note: Music attorney Chris Castle is all for finding a way to boost the music industry out of its current nosedive. But bundling music charges into ISP bills is not the way to go, he says. http://www.news.com/8301-10784_3-9905661-7.html?tag=nefd.lede   And from the glorious IP Kat an update in this area: It looked like Internet service provider and telecom company Virgin Media was going to become the first UK internet company to crack down on subscribers who download music illegally. While record labels are lobbying for a “three strikes” regime that would see those who collect pirated material disconnected from the internet, Virgin has been working with music trade body BPI on a pilot project which could see “dozens of customers” sent warning letters. This trial will go live within months, with the threat (or “option”) of disconnecting customers who ignore the warnings. The trial is also open to film and television studios. Says the Sunday Telegraph (30/03/08): “This would be the first time a British internet company has publicly moved to share responsibility for curbing piracy. Two years of negotiations between record labels and internet service…

Productores de Música de España (Promusicae) v Telefónica de España C275/06
Copyright , Internet , Record Labels / March 2008
EU

COPYRIGHT Internet, record labels Music and film companies suffered a partial setback in their fight against internet piracy after the European Court of Justice ruled that European countries do not have to compel telecoms companies and other internet service providers to disclose information about customers suspected of illegally sharing music files online, the region’s top court ruled yesterday. However, the Court said member states did need to ensure that a “fair balance” was struck between the privacy rights of individuals and the rights of intellectual property owners – such as music and film producers – seeking to pursue civil legal claims over copyright infringement. But IP rights holders insisted the decision was not discouraging. “The court has provided a welcome reminder that there is a balance in law between the rights to privacy and other fundamental rights,” said Christopher Marcich at the Motion Picture Association and the IFPI, which represents the recording industry, put a positive spin on the decision saying “The judgment means that music rights holders can still take actions to enforce their rights, and it has sent out a clear signal that member states have to get the right balance between privacy and enforcement of IP rights.”…

EU proposes extending the term for sound recordings
EU

COPYRIGHT Record labels, artists, internet Having been knocked back in the UK in the Gowers Report, record labels and artists will be delighted with the news that European Commissioner Charlie McCreevy feels that performing artists should no longer be the ‘poor cousins’ of the music business, and is proposing an increase in the term of copyright for sound recordings from 50 to 95 years across Europe saying “I strongly believe that copyright protection for Europe’s performers represents a moral right to control the use of their work and earn a living from their performances. I have not seen a convincing reason why a composer of music should benefit from a term of copyright which extends to the composer’s life and 70 years beyond, while the performer should only enjoy 50 years, often not even covering his lifetime It is the performer who gives life to the composition and while most of us have no idea who wrote our favourite song – we can usually name the performer“. The proposal is set against the copyright term for music copyright (songs and lyrics are protected for the life of author plus 70 years), the position in the USA (where copyright in sound…

Proposals in UK to make CD copying legal as both UK Government and the EC look to make copyright law ‘fit’ for the digital age as Swedish MPs go even further
Copyright / February 2008
EU
Sweden
UK

COPYRIGHT All areas Copying compact discs on to computers or iPods could become legal for the first time in the UK under government proposals in a move that parts of the music industry has warned could “open the floodgates” to further filesharing. Lord Triesman, minister for intellectual property, will begin a consultation process which will end on March 7 2008. The consultation will look at the viability of legalising such recordings as long as they are for personal use. The Association of Independent Music, the industry group, has warned that the exception could open the floodgates to “uncontrolled and unstoppable” private copying and sharing from person to person. Alison Wenham, chairman and chief executive of the AIM, said that the move could set a dangerous precedent. CDs would largely be redundant in five years, she predicted, but the new legislation would still remain and could be misused. But Geoff Taylor, chief executive of the British Phonographic Industry, another industry group, said he was broadly in favour of the changes because it would clarify the law for consumers. However, Mr Taylor said the government should ensure that the move would not “do harm to” the record industry. The consultation will also…

Apple to harmonise European iTunes pricing
Copyright , Internet / February 2008
EU

COMPETITION Internet Apple has agreed to harmonise its European price structure for iTunes songs which are currently 79p in the UK ($1.55) and 99 cents in the rest of Europe ($1.45) by cutting the price of music downloads in the UK to settle a European Union antitrust case. The European Commission, in its first case involving online music sales, said it’s not a price regulator and won’t set a rate for Apple’s U.K. downloads. “This is an important step towards a pan-European marketplace for music,” Apple Chief Executive Officer Steve Jobs said in an e-mailed statement today. “We hope every major record label will take a pan-European view of pricing.” The Brussels-based commission, the EU’s antitrust regulator, said last April that Apple and the world’s four largest music companies illegally restrict where iTunes users can buy songs by setting higher prices in some countries. The companies could have been fined as much as 10 percent of annual sales for an antitrust violation. http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/01/10/nmusic110.xml

EC says collection society guidelines will remain voluntary
Competition , Music Publishing / January 2008
EU

COMPETITION Music publishing The European Commission has said that it currently has no plans to introduce new legislation that would force an overhaul of the publishing royalty collecting societies across Europe but will continue to evaluate the effect of voluntary guidelines already in place that encourage the royalties sector to offer artists, labels and digital music firms more choice in terms of which societies they work with and in offering pan-European licences. The EC has been encouraging the collecting societies to reform the way they operate, partly because of concerns the way each society traditionally dominates in its home country is anti-competitive on a European level, and also because many argue digital music services can only prosper if there is a one stop shop to licence music across Europe. The logic behind the EC’s recommendations is that collecting societies give up certain monopolies they have essentially enjoyed in their home territories and instead take advantage of the opportunities that come from the pan-European royalty market.

EU not planning to regulate online music markets
Competition , Internet / January 2008
EU

COMPETITION Internet The European Commission is currently not drawing up any binding rules to regulate the online music market, despite repeated calls by the European Parliament. At a meeting with MEPs in the legal affairs committee last month (14 November), the commission said: “The submissions analysed so far show that most stakeholders do not see the need for a framework directive, and prefer market-based solutions to regulatory intervention. Commissioner Joe Borg, standing in for his internal market colleague Charlie McCreevy, said “Our recommendation is not detrimental to cultural diversity” referring to Brussels’ suggestion that the copyright market be left to market forces. The full ARTICLE can be seen at http://euobserver.com/9/25235 On digital consumer rights in Europe see http://www.rte.ie/news/2007/1203/murrayj.html

Just when you thought the Sony-BMG merger debate was all over …
Competition , Record Labels / December 2007
EU

COMPETITION Record labels Having gained approval from the European Commission for the second time, Sony and Bertelsmann AG must be fairly confident that their merger is finally beyond question. But the European independent labels trade body IMPALA is going back to the European Court of Justice and again calling for court’s original Sony BMG merger annulment to be upheld. This annulment of course led to the second EC review. Following a hearing concluded on November 7 th the Advocate General is expected to deliver a non-binding opinion on the appeal on Dec 13th. The case itself will then follow. http://money.cnn.com/news/newsfeeds/articles/newstex/AFX-0013-20805864.htm

Japanese trio fined E70 million for tape price fixing cartel
Competition / December 2007
EU
Japan

COMPETITION TV and video Sony, Fuji and Maxell have been fined a combined total of E70 million by European competition regulators for artificially controlling the European videotape market between 1999 and 2002. The three companies control 85% of the professional tape market and in dawn raids in May 2002 the EC discovered evidence of meetings where prices were set and sensitive information swapped as well as three covertly organised price increases during the period. Sony paid a higher fine than the other two companies after employees refused to provide information and one was discovered to have shredded documents during te investigation. The Times 21 November 2007

Tarzan yell cannot be registered as a trade mark
Trade Mark / December 2007
EU

TRADE MARK All areas The excellent Out-law site reports on a recent European Decision that Tarzan’s distinctive yell cannot be registered as a trade mark because it is almost impossible to represent graphically. Sounds can be registered as trade marks, but the ruling could limit that to sounds that can be written in standard musical notation. http://www.out-law.com/page-8587 . The mark was submitted as a spectrogram – a graphic representation of Tarzan’s yell – the “aaaahh-ah-ah-aaaaaah-ah-ah-ahhh” (or something like that) with a description of the mark in the application as consisting of ‘five distinct phrases namely sustain, followed by ululation, followed by sustain but at a higher frequency followed by ululation followed by sustain at the starting frequency”. But the OHIM (Office for the Harmonisation of the Internal Market, Trade Marks and Designs) was having none of saying the graphic submitted could not be recognised “from the image as filed whether the sound phenomena depicted is a human voice or something else” … “nobody would be able to hum the Tarzan yell from the spectrogram and nobody reads spectograms for entertainment”. A new application has been filed and the OHIM have issued a release saying that although the sonogram was refused registration, a…

Ticketmaster seek to block automated access by secondary retailer
Competition , Live Events / November 2007
EU
UK
USA

COMPETITION Live event industry The furor over the state of the secondary ticket marketing in the is moving to the courts. Ticketmaster is seeking a preliminary injunction to stop RMG Technologies from accessing the Ticketmaster system through automated programmes (a tactic which provides resellers with repeated access to Ticketmaster.com via a proxy server). www.billboard.biz

Pirates board IFPI
Internet , Trade Mark / November 2007
EU
USA

TRADE MARK Internet Pirate Bay, the ongoing thorn in the side of the record and film industries, has launched a new website at …. on no you guessed it, the seemingly vacant www.ifpi.com. The International Federation of Phonographic Industries whose main website is at www.ifpi.org have said they will bring a WIPO (World Intellectual Property Organisation) action to regain the ‘cyber squatted’ domain.

Google missing from copyright pact
Copyright , Internet / November 2007
EU
USA

COPYRIGHT Internet A coalition of nine of the world’s biggest media companies have signed a pact aiming at cracking down on copyright abuse on the internet. The group, which includes Viacom, Microsoft, Disney and Fox have pledged to use filtering technology to stop the use of copyright materials without permission on file sharing sites. But Google, which owns the biggest file sharing website YouTube, is a notable absentee despite the fact that YouTube publicly launched new copyright filtering technology on the site this month. All nine companies have offered each other an amnesty against legal action for copyright abuse provided the new guidelines are adhered to. The Guardian October 19 2007.

Judgment of the Court of First Instance in Case T-201/04
Competition / November 2007
EU
USA

COMPETITION Technology, software Microsoft Corp. v Commission of the European Communities Microsoft have announced that they will not be appealing against the recent CFI decision and European Competition Commissioner Neelie Kroes said in a speech on the 22 nd October “I want to report to you today that Microsoft has finally agreed to comply with its obligations under the 2004 Commission decision, which was upheld last month by the Court of First Instance. The Commissioner went on to confirm that Microsoft would now provide information allowing third party developers of work group server operating systems to develop products that interoperate with the Windows desktop operating system on terms acceptable to the Commission and that Microsoft had slashed patent royalty rates for interoperability information from 5.95% to 0.4% – less than 7% of the royalty originally claimed. The Commissioner also confirmed that there would now be a one of payment for access to secret interoperability information on software developed using licensed information and that Microsoft would make interoperability information available to open source developers and that Microsoft would give legal security to programmers who help to develop open source software and confine its patent disputes to commercial software distributors and end…

Judgment of the Court of First Instance in Case T-201/04
Competition / October 2007
EU
USA

COMPETITION Technology, software Microsoft Corp. v Commission of the European Communities The Court of First Instance has essentially upheld the European Commission’s decision finding that Microsoft had abused its dominant market position although the Court has annulled certain parts of the decision relating to the proposed appointment of a monitoring trustee holding that this has no basis in community law. On 23 March 2004 the European Commission adopted a decision finding that Microsoft had infringed Article 82 of the EC Treaty by abusing its dominant position by engaging in two separate types of conduct. The Commission also imposed a fine of more than EUR 497 million on Microsoft. The first type of conduct found to constitute an abuse consisted in Microsoft’s refusal to supply its competitors with ‘interoperability information’ and to authorise them to use that information to develop and distribute products competing with its own products on the work group server operating system market, between October 1998 and the date of adoption of the decision. By way of remedy, the Commission required Microsoft to disclose the ‘specifications’ of its client/server and server/server communication protocols to any undertaking wishing to develop and distribute work group server operating systems. The second type of…

IFPI hails Court ruling that Belgian ISPs must filter illegal content
Copyright , Internet / August 2007
Belgium
EU

COPYRIGHT Internet A court in Belgium has confirmed that an Internet Service Provider must take responsibility for stopping illegal file-sharing on its network.  The ruling is the first of its kind in Europe and, since it implements EU legislation, it sets an important precedent in the fight against piracy internationally. The judgment is warmly welcomed by the international recording industry, which has been pressing for action by ISPs to curb piracy on their Networks.  The judge said that ISPs have the technical means at their disposal to either block or filter copyright-infringing material on P2P networks and gave the ISP Scarlet (formerly Tiscali) six months to implement such measures.  The judgment pointed in particular to the filtering technology developed by Audible Magic. It also referred to six other possible solutions to block the traffic of unlicensed music, which are highlighted in an experts’ report commissioned by the court. This is the first case in Europe that has examined in detail the technologies that are available to block or filter copyright-infringing traffic on file-sharing networks. The Belgian court was ruling on a case brought by the body representing authors and composers in Belgium, SABAM, against the ISP Tiscali. The IFPI estimates there were some…

Telecom data not available to copyright groups in civil action : Productores de Música de España v Telefónica de España SAU
Copyright , Internet , Record Labels / August 2007
EU
Spain

COPYRIGHT Internet, record labels Juliane Kokott, Advocate General to the European Court of Justice, has provided her opinion that groups representing music copyright owners should not be able to demand that telecommunications companies hand over the details of people they suspect of swapping illegal music downloads. The AG said that while it was necessary for such details to be revealed in criminal prosecutions, EU law does not compel telecom companies to make the same disclosures in civil cases. The opinion aims to help judges come to a final decision when they decide on legal questions put by a Spanish court looking at a complaint made by Spanish music copyright owners against Telefonica, Spain’s largest Internet provider. Promusicae, a non-profit group of music producers, sued Telefonica for not handing over the names and addresses of internet users it believes are illegally swapping music online. The Advocate General agreed with Telefonica’s argument that EU law only allows them to share personal data for criminal prosecutions or matters of public security stating that it compatible with EU law for European countries to exclude communication of personal data in the context of a civil, as distinct from criminal, action. http://business.timesonline.co.uk/tol/business/law/article2098359.ece http://ipkitten.blogspot.com/2007/07/telefnica-gains-edge-in-promusicae.html

European Commission finally reopens Sony BMG review
Competition , Record Labels / July 2007
EU

COMPETITION LAW Record labels The European Commission has reopened its antitrust probe into the merger of Sony’s recorded music division and Bertelsmann’s recorded music divisions which created Sony BMG – the second largest music company in the world. The commission halted its review of the merger in March after both companies failed to produce crucial documentation on their activity in the European market. “The file is finally complete and the probe has been re-launched,” said a Commission spokesman. A new deadline has been set, with a ruling expected by 10th October. The delay has had significant impact on the industry – whilst the music publishing arms of Universal and BMG have been allowed to merge (after a significant shedding of certain catalogues by BMG including Zomba) the delay is not helpful for Warner Music Group which still looks like it would like to buy EMI – and clearly EMI is up for sale and on the verge of signing itself away to private equity firm Terra Firma. The resurfacing of merger issues could hinder any last-minute bids by Warner for the major. www.forbes.com blogs.reuters.com

Rockbass not valid trade mark
Artists , Trade Mark / July 2007
EU

TRADE MARK Artists ARTICLE LINK From The IP Kat Advocate General Eleanor Sharpston has rendered her opinion in case C-301/05  Hans-Peter Wilfer , this being an appeal to the European Court of Justice, Luxembourg, from a decision of the Court of First Instance (CFI) involving Wilfer’s application to register Rockbass as a Community trade mark for guitars, technical sound equipment, amplifiers and the like. The application was rejected on the basis that the word was sufficiently descriptive to be incapable of serving as a trade mark; the Board of Appeal and the CFI agree. http://ipkitten.blogspot.com/2007/06/rockbass-heads-for-further-trouble-in.htm

IFPI announce two new cross border licensing schemes
Copyright , Internet / June 2007
EU

COPYRIGHT Internet, broadcasting Various online music services and broadcasting organisations should find it easier from today to gain licenses to stream music across several territories, thanks to an arrangement put in place between IFPI – which represents the recording industry worldwide – and record company collecting societies. Two new licensing agreements will create the framework for collective licensing of producers’ rights for certain streaming and podcast services across several markets. In practice, the participating collecting societies will be able to license rights in each others’ territories and repertoire for certain internet and mobile streaming services and for the making available of previously broadcast programmes such as streams or podcasts.  Broadcasters and online music services will also continue to be able to approach the record companies directly for a license for these uses. Until now, obtaining cross-border online rights licenses for these services has involved dealing with each territory separately or approaching the right holders directly.  This new framework will offer users the alternative to obtain a license for broad repertoire and for all the participating territories from a single collecting society.  Online music services and broadcasters established within the European Economic Area will be able to approach any European society…

Universal / BMG Music tie up approved by European Regulators as Warners look at EMI
EU

COMPETITION Music publishing, Record labels Vivendi/Universal and BMG Music Publishing have finally had their merger given the green light by the European Commission. The E1.63B merger was approved on the grounds that Rondor UK, Zomba UK, BBC Music and 19 Music were excluded from the merger. Immediately after the announcement, independent labels association Impala was quick to point out that it reserves the right to seek a reversal of the decision, and said it will follow the merger with great interest – no doubt Warners, who are hovering over EMI, will do the same! The ECsaid in a statement “The proposed merger, as initially notified, raised serious doubts as regards adverse effects on competition in the market for music publishing rights for online applications. However, the Commission’s investigation found that these concerns would be removed by the remedies package proposed by the parties concerning the divestiture of a number of publishing catalogues”. In fact EMI Group has agreed to an offer by private equity firm Terra Firma for £2.4B, subject to approval by the firm’s shareholders. The board of directors at EMI intend to recommend unanimously that EMI shareholders should accept the offer. EMI’s shares jumped 10% on the news – the offer vaues…

Trespass – An Ancient Legal Doctrine Gains Traction In Cyberspace
Internet , Media / May 2007
EU
UK
USA

MEDIA LAW Internet ARTICLE LINK By Eric Sinrod Fed up with commercial spammers invading your inbox, unauthorized deep linking to your website, spyware on your PC or finding out that someone is using your server to send out spam – well here Eric Sinrod explains that the ancient legal doctrine of trespass to chattels which establishes liability when one person dispossesses or causes physical harm to the chattel (private property) of another person can be useful in Cyberspace. As Information technology development continues to advance at an astonishing pace, and with the law evolving at a much slower rate, traditional legal theories have had to be dusted off to grapple with Internet disputes and the best example is the application by the courts of the trespass to chattels notion to the new world of the Internet. Cases reviewed include AOL v IMS, AOL v LCGM,Compuserve v. Cyber Promotions Kerrins v. Intermix Media and Ticketmaster v. Tickets.com http://technology.findlaw.com/articles/00006/010761.html See the Article Internet Trespass:  Measuring and Controlling Internet-Distributed Advertiser-Funded Content Music Law Updates April 2006 and a review of Kerrins v Intermix Media Music Law Updates March 2006

MEPs want EU law for online music
EU

COPYRIGHT Internet, music publishing ARTICLE LINK:  The European parliament has criticised its own executive for prioritising competition between collection societies – rather than protecting cultural integrity in member states. Song-writers’ and composers’ rights are currently controlled by Collective Rights Management societies (CRMs) which grant national distribution licences for record labels and online shops and collect royalties of a few cents per download. The artists are most often represented by their national CRM society – some of which date back to the 1850s – and in the other EU countries by virtue of reciprocal bilateral agreements that allow, say, a Spanish society to licence Dutch music in Spain while channeling cash from Spanish royalties back to the Netherlands. But with the EU digital music sector set to become a €3.9 billion a year industry by 2011, the major record labels are pushing Brussels to break-open the rights monopolies system. The European Commission therefore proposed in its recommendation to open up the copyright market to competition allowing those interested in trading music on the web to negotiate with one CRM instead of each individual CRM in the 27 different EU member states. But MEPs are saying that although competition is good, to…

EC to investigate Sony-BMG merger
Competition , Record Labels / April 2007
EU

COMPETITION Record labels The European Commission has announced it is launching a new more detailed investigation into the 2004 merger of Sony and BMG’s record label operations which means competition regulators will now not rule on whether the merged enterprise, SonyBMG, can continue to operate in its current form until July 4th 2007 (now extended by two weeks). The EC is also considering the potential tie up of BMG Music and Universal Music. The EC had been forced to reconsider their approval of the SonyBMG merger after the European Courts of Justice annulled the approval last year. The annulment came after a case brought by independent label trade association IMPALA: IMPALA members have asked the EC to look at specific concerns about their reduced market access including the collective dominance of the majors and co-ordination of  competitive behaviour in retail, radio and television, press and other media, as well as in the vital on-line market. The independents also asked  the Commission to address other vital issues such as cultural diversity (which MEPs also recently highlighted as above), the  role of creativity and small business in the Lisbon strategy, vertical integration, links with sister publishing companies, unfair leveraging of repertoire and…

Court of Appeal confirms the decision of Kitchen J in Nova Productions Ltd v Mazooma Games Ltd; Nova Productions Ltd v Bell Fruit Games Ltd[2007] EWCA Civ 219
Copyright / April 2007
EU

COPYRIGHT Video games, television This action revolves around claims by Nova that the defendants copied elements of arcade games it had designed, made and sold. Nova did not accuse any of the defendants of copying the software code of ‘Pocket Money’, but said the defendants infringed their copyright by copying their game’s screen appearance (the ‘outputs’). When asked to identify each particular similarity relied upon and to say how it was the result of an infringing act, Nova served a schedule of similarities and marked up screen shots to identify the relevant features. Kitchin J dismissed all Nova’s claims on the basis that there had been no reproduction of any of its work: * There was no substantial taking of any artistic skill and effort, program code or program architecture and the mere fact that there were similarities in the game’s outputs did not raise an implication that there were similarities in the software. * What had been taken was a combination of a limited number of general ideas that were reflected in the output of the program, but those ideas did not form a substantial part of Nova’s computer program itself. * The visual appearance and the rules of…

ECHR says TM applications are “property”
Artists , Trade Mark / February 2007
EU

TRADE MARK Artists ARTICLE LINK:  In an important decision ( Anheuser-Busch v Portugal) the European Court of Human Rights have held that trade marks are a possession and therefore qualify for the purposes of the right to peaceful enjoyment of property (Article 1, Protocol 1, European Convention on Human Rights) saying the Court takes due note of the bundle of financial rights and interests that arise upon an application for the registration of a trade mark. It agrees with the Chamber that such applications may give rise to a variety of legal transactions, such as a sale or licence agreement for consideration, and possess – or are capable of possessing – a substantial financial value. See the IPKat athttp://ipkitten.blogspot.com/2007/01/echr-says-tm-applications-are-property.html

IFPI Digital Music Report 2007 published
Copyright , Internet , Record Labels / February 2007
EU
Japan
UK
USA

COPYRIGHT Record labels, internet Record labels have sold an estimated US$2 billion worth of music online or through mobile phones in 2006 (trade revenues), almost doubling the market in the last year according to latest figures form the International federation of Phonographic Industries. Digital sales now account for around 10% of the music market as record companies experiment and innovate with an array of business models and digital music products, involving hundreds of licensing partners. Among new developments in 2006, the number of songs available online doubled to four million, thousands of albums were released across many digital formats and platforms, classical music saw a “digital dividend” and advertising-funded services became a revenue stream for record companies. However, despite this success, digital music has not yet achieved the “holy grail” of compensating for the decline in CD sales. Meanwhile, digital piracy and the “devaluation of music content” (IFPI wording) are a “real threat to the emerging digital music business”. IFPI Research suggests legal actions against large-scale P2P uploaders – some 10,000 of which were announced in 18 countries in 2006 – have helped contain piracy, reducing the proportion of internet users frequently file-sharing in key European markets. The IFPI say…

EC to investigate Universal – BMG music publishing tie up
Competition , Record Labels / January 2007
EU

COMPETITION Record labels Perhaps unsurprisingly in light of the comments by the European Court of Justice when they annulled the European Commission’s approval of the Sony-BMG record label merger, the European Commission has extended its investigation into Universal’s $2.2bn (£1.12bn) acquisition of BMG’s music publishing business by up to 90 working days (to April 27th 2007). The combined Universal Music / BMG Music would have an appoximate 22% of the music publishing market. Both BMG and Universal Music currently have 11% market shares, behind EMI Music’s 20% share and Warner’s 15% share but ahread of and Sony Music (7%). The regulator wants more time to consider whether the deal will undermine competition. The inquiry could last up to five months. In a statement Universal said that “although we understand why, in the current environment, the European Commission has sought more time for its review, we believe, as we have always done, that the merger will be approved” adding that Universal were looking “forward to working with the Commission over the next few months to complete the process.  The original Sony-BMG ECJ review was due to a law suit from the European trade association IMPALA which represents independent labels and IMPALA has promised to battle the Universal…