Martin Garrix freed from contract with Spinnin Records
Artists , Contract , Music Publishing / October 2017
Netherlands

CONTRACT Recorded music, artists   A Dutch court has sided with EDM producer and superstar Martin Garrix in a legal dispute with his former label and management firm, Spinnin Records and MusicAllstars. Both of the defendants were founded by Eelko Van Kooten.   In August 2015 Garrix said that he was parting company with both of Van Kooten’s businesses and then launched a legal action, accusing his former manager of having provided “false and misleading information” when Garrix, as a teenager, had signed his deals with Van Kooten’s companies.   The producer also alleged that, by signing an artist he managed to his own label in 2012, Van Kooten had a clear conflict of interest, and that he had signed a recording deal that was in Van Koote’s own interests, but that Van Kooten should have been representing the interests of his client  – Garrix. Garrix’s father countersigned the recordng agreement with the then teenager (he is now 21).    In the original lawsuit, Garrix sought to reclaim the sound recording rights that had been assigned to Spinnin Records and 4.35 million Euros in damages.  Spinnin counterclaimed, arguing that Garrix’s unilateral termination of contract had cost the label over 6.4…

Yoko Ono forces a John Lemon re-brand
Artists , Trade Mark / October 2017
Netherlands
UK

TRADE MARK Artists   John Lennon’s widow, Yoko Ono, has pushed  a Polish beverage company into changing the name of its new lemondade drink which had been called “John Lemon”. The singer-artist’s legal team alleged that the product infringed on Ono’s ‘John Lennon’ trademark and his personality rights. With a Dutch action pending, Mr Lemonade Alternative Drinks agreed to change the name to “On Lemon” after Ono wrote to the company and its distributors across Europe, warning that continued infringement could result in substantial damages which were reported as 5000 euros per day that the drink was on sale, and 500 euros for every bottle sold.    Ono’s attorney, Joris Van Manen, told the East London Advertiser that the lemonade sellers “were abusing and misusing the legacy of John Lennon to sell their soda”. In addition the lawyer cited various promotional efforts by the drinks company that also alluded to the one time Beatle.   The legal action referenced a Facebook post by John Lemon Ireland showing a large wall mural of Lennon holding lemons with the brand’s logo underneath. Other advertising depicted a pair of round glasses, closely linked with the famous Beatle, next to the words “Let It Be.”  …

Swedish appellate court allows web blocking
Copyright , Internet / March 2017
EU
Netherlands
Sweden

COPYRIGHT Internet   The Swedish Court Of Appeal has overturned the ruling in the District Court Of Stockholm in 2015 which had dismissed an application that would have forced internet service providers to block The Pirate Bay and other platforms linked to music and other piracy – a move opposed Swedish ISP Bredbandsbolaget   The Patent And Market Court Of Appeal has now ruled in favour of music and movie companies, ordering Bredbandsbolaget to implement web-blocking of both The Pirate Bay and another piracy site called Swefilmer. The court confirmed that their judgement was in part influenced by the web-block injunctions that have been ordered elsewhere in the European Union. Torrentfreak reports that judge Christine Lager said in a statement: “In today’s judgment, the Patent And Market Court held that right holders such as film and music companies can obtain a court order in Sweden against an ISP, which forces the ISP to take measures to prevent copyright infringement committed by others on the internet. The decision is based in EU law and Swedish Law should be interpreted in the light of EU law. Similar injunctions have already been announced, such as in Denmark, Finland, France and the UK, but the verdict today is…

Live music sector puts CMO ‘kickbacks’ into the spotlight
Copyright , Live Events / April 2016
EU
Germany
Netherlands
UK

COPYRIGHT Live events sector     They may not want to be in the spotlight, and the until recently practices of ‘discounts’ or ‘rebates’ offered by European Collective Management Organisations such as Buma-Stemra in Holland and GEMA in Germany to large and established live music promoters and venues were relatively unknown. But 2016 saw the topic rear up as one of the main talking points at this year’s International Live Music Conference (ILMC). The Conference held a packed main conference session dedicted to the topic and with managers for Mark Knopfler and Muse on the Stage along with representatives from two Collection Societies, and many artiste and songwriter representatives expressed their anger at the practice. Back in July 2015 Music Law Updates reported that Dutch collection society Buma’s practice of rewarding the country’s biggest promoters with a kickback for ‘helping’ to collect the levy on live music concerts (which is meant to remunerate songwriters and music publishers for the use of their works) had come under fire after a number of tour accountants for performers who pen their own material could not reconcile deductions made by promoters against revenues received by their songwriter clients from their own collection societies – even after taking…

BUMA kickback scheme spark angry response from managers
Copyright , Live Events / July 2015
Netherlands

COPYRIGHT Live events sector     Dutch collection society BUMA’s recent practice of rewarding the country’s biggest promoters with a kickback for ‘helping’ to collect the levy on live music concerts to reward songwriters and music publishers has come under fire after a number of tour accountants for acts who pen their own material could not reconcile deductions made by promoters against revenues received by their songwriter clients from their own collection societies – even after taking into account usually collection society commissions which are generally accepted. BUMA apparently set up the practice around 1999 after forcing through a rate riise for the use of music to 7% of Box Office net of VAT  – but was offering a 25% kickback of that levy to some promoters and venues in the Netherlands. Two managers, Paul Crockford who manages Mark Knopfler, and Brian Message of ATC who manages Nick Cave & the Bad Seed,  both made arrangements with their artistes’ publishers and UK music collection society PRS for Music to make direct collections from promoters. Message also manages P J Harvey and Radiohead and Crockford also manages Level 42. Whilst many managers are asking for ‘transparency’, the UK’s Music Managers Forum…

Thom says its time to pay: Spotify in the spotlight as acts complain of low royalty rates
Artists , Copyright , Internet , Record Labels / August 2013
EU
Netherlands
UK

COPYRIGHT Internet, artistes, record labels   One of the most important posts I have ever read about how the music industry might function in the future has been published on the CMU Daily website – I say ‘one’ – its actually two posts looking at the Spotify business model – and why its good for tech start ups and their record label partners – and very bad indeed for artists who are currently receiving a (usually) tiny share of revenues from their labels for digital uses – and in the case of two of the three majors, Sony and Universal, the very same labels who co-own Spotify Now Radiohead frontman Thom Yorke and producer Nigel Godrich have taken to the net to formally express displeasure in the all-you-can-eat streaming business model. To prove their point they announced that their respective solo albums, and the long-player from their collaborative venture Atoms For Peace, had all been removed from Europe’s highest profile streaming service. Announcing what he dubbed as a “small meaningless rebellion”, producer Godrich said via a string of tweets: “We’re off of Spotify. Can’t do that no more man. Someone gotta say something. It’s bad for new music. The reason…

MyVidster not liable for copyright infringement
Copyright , Internet / October 2012
Netherlands
UK
USA

COPYRIGHT Internet   In a 7th Circuit Court of Appeals decision given by Justice Richard Posner, myVidster.com has been cleared of copyright infringement. The site, which allows users to engage in “social bookmarking,” which involves internet users sharing hyperlinks to online materials in which they may share a mutual interest in, is primarily a site to exchange links to pornographic material. As Judge Posner noted, there was other material available on the site and a family filter does exclude porn, but the site itself does not infringe copyright. In the District Court the plaintiff, porn company FlavaWorks, was granted an injunction after claiming that 300 of its videos had been linked too. On appeal Judge Posner acknowledged that FlavaWorks was being wronged, and that myVidster may even have encouraged subscribers to circumvent FlavaWorks’ pay wall.  However, the Judge was of the opinion that in order to have copyright infringement, someone has to make a copy.  And nobody at myVidster.com was actually making a copy – it was such facilitating links from those who had illegally uploaded a copy of Flavaworks videos – to those who then illegally downloaded a copy. Nor could the display of the video be considered a…

Red Alert for the Pirates
Copyright , Internet / May 2012
Netherlands

COPYRIGHT Internet It looks like the principles behind SABAM v Netlog and more importantly SABAM v Scarlet might be tested soner rather than later – and the testing might be done by none other than the Pirate Party in the Netherlands who have been taken to task by anti-piracy grup BREIN. The Scarlet decision by the ECJ (on a referral from the courts in Belgium) decided inter alia that the fundamental rights enshrined in EC Directives (2000/31, 2001/29, 2004/48, 95/46 and 2002/58) must be interprested as precluding an injunction made against an internet service provider which requires it to install a system for filtering all electronic communications …. which applies to all customers indiscriminatly. Netlog similarly held that a filtering system that would require the owner to carry out general minitoring of information stored on its servers would be prohibitedby Artivle 15(1) of the E-Commerce Directive. In the Pirate Party case, The Dutch rights group had successfully secured a web-block injunction against the Pirate Bay itself January, on the ground that the Pirate Bay was liable for the copyright infringement many of its users undertook. The injunction named two internet service providers, Ziggo and XS4ALL, and BREIN is now pursuing…

BREIN shutters 30 file sharing sites in Holland
Copyright , Internet / January 2011
Netherlands

COPYRIGHT Internet Nearly 30 websites associated with BitTorrent, Usenet and other file-sharing networks have been shuttered by authorities in The Netherlands, according to TorrentFreak. The closures were made at the behest of the Motion Picture Association of America (MPAA) and Dutch anti-piracy agency BREIN. The 29 sites were all hosted in the U.S., but taken down under Dutch law because they are “directed at the Dutch public” and “unlawful under Dutch law” BREIN director Tim Kuik told TorrentFreak.  “This year we have made over 600 of these sites inaccessible. Some seek refuge in a foreign or hosting provider. These 29 apparently thought that in America they could go undisturbed. That is incorrect,” Kuik said.  “Through cooperation with our foreign colleagues we can make sites in other countries inaccessible.” http://www.dmwmedia.com/news/2010/12/15/report-netherlands-shutters-30-filesharing-sites-mpaa-aid

Dutch courts explain the copyright levy paradox
Copyright , Internet / December 2010
Netherlands

COPYRIGHT Internet Another legend, Jeremy Philips, blogs ( http://the1709blog.blogspot.com/2010/11/copyright-owners-better-off-in-regime.html ) on two recent and equally striking Dutch decisions handed down by the Court of Appeal of The Hague. In the two separate cases, the court ruled that, since downloading from illegal sources for private use was permitted under Dutch law, this was to the copyright owner’s advantage and explained this paradoxical position as follows: “In ACI et al. v Stichting de Thuiskopie the question was how the Dutch private copy levy (the “thuiskopievergoeding”) on blank CDs and DVDs should be calculated. Contrary to the decision of the District Court, the Court of Appeal ruled that downloading from illegal sources is permitted and should therefore be taken into account when determining the level of the levy: that should also compensate for loss of income due to downloading from illegal sources. The Court of Appeal stated that the private copying exemption in the Dutch Copyright Act does not differentiate between copies made from legal or illegal sources. With reference to statements made by the Minister of Justice, the Court argued that the legitimate interest of the right holders is more adequately protected in a regime that allows downloading from illegal sources. In view of the Dutch government’s…

The Pirate Bay and BREIN draw 1-1 in Dutch Courts
Copyright , Internet / August 2010
Netherlands

COPYRIGHT Internet Dutch anti-piracy organisation BREIN have had two results in the Dutch courts this month in their battle against The Pirate Bay.  The first court upheld a previous ruling that The Pirate Bay and its founders are liable for copyright infringement, and that the people running the rogue BitTorrent service should block access to it from anyone accessing the net in The Netherlands. It has been ignored even though the ruling set a fine in motion of $42,300 per day for every day TPB continued to be available in the country. Nearly one year on – and despite the mounting fines and the appeal court upholding the original ruling – TPB continues to be available in the Netherlands. Presumably frustrated with the failure if direct action against TPB, BRIEN brought a separate case to force internet service providers to block access to The Pirate Bay. One ISP, Ziggo, objected to efforts to force them to block TPB arguing that it is not their role to police the net and in separate Dutch court last week judges sided with the ISP on the grounds that TPB MAY have non-infringing uses and therefore it would be inappropriate to block access to…

British ONiK users arrested for illegal downloading
Copyright , Internet / July 2008
Netherlands
UK

COPYRIGHT Internet By Cassandra Williams, postgraduate student, The College of Law In 2007 British and Dutch police shut down ‘ONiK’, the member’s only BitTorrent tracker site. OiNK was championed by many filesharers as the internet’s most complete music source (of illegal music). ONiK focused on high quality files and featured trackers for pre-release material, which of course drew it special attention from record industry’s anti-piracy investigators. As a result a, flat on Teesside and several properties in Amsterdam were raided as part of the Interpol investigation – and there was a widely-publicised raid at the Middlesbrough home of OiNKs adminstrator, 24-year old IT worker Alan Ellis. Ellis remains on police bail for the charge of conspiracy to defraud and infringement of copyright law. His bail has been repeatedly extended, with the next deadline set for 1st July. According to the IFPI (the international organisation representing the major record labels), t he UK-run site leaked 60 major pre-release albums in that year alone. The site’s servers, which were based in Amsterdam, were also seized in a series of raids in October 2007. Now OiNK users who have allegedly uploaded material are being targeted by the police in Cleveland who have confirmed that…

Oink shut down in British and Dutch raids
Copyright , Internet , Record Labels / November 2007
Netherlands
UK

COPYRIGHT Internet, record labels The IFPI report that British and Dutch police have shut down the world’s biggest source of illegal pre-release chart albums and arrested a 24-year old man in an operation coordinated between Middlesbrough and Amsterdam. The raids, which were coordinated by Interpol, follow a two-year investigation by the international and UK music industry bodies IFPI and BPI into the members-only online pirate pre-release club known as OiNK. OiNK specialised in distributing albums leaked on to the internet, often weeks ahead of their official release date.  More than 60 major album releases have been leaked on OiNK so far this year, making it the primary source worldwide for illegal pre-release music. The site, with an estimated membership of 180,000, has been used by many hardcore file-sharers to violate the rights of artists and producers by obtaining copyrighted recordings and making them available on the internet. It is alleged that the site was operated by a 24-year-old man in the Middlesbrough area, who was arrested today. The site’s servers, based in Amsterdam, were seized in a series of raids last week.  OiNK’s operator allegedly made money by setting up a donations account on the site facilitated by PayPal.  Cleveland Police and…

Dutch close DVD pirate plant
Copyright / October 2007
Netherlands

COPYRIGHT Film & TV Officers from the Dutch Fiscal and Economic Police (FIOD-ECD) are dismantling a pirate disc factory after a raid.  The action in the city of Velddriel has led to the seizure of pirate discs and manufacturing equipment, as well as the arrest of the one suspect who was present. The raid followed a complaint by the Dutch anti-piracy group BREIN, who had been alerted to the problem by enforcement officers from IFPI, the body that represents the recording industry worldwide, who had monitored activity at the clandestine plant. Officials seized a DVD press set up to make pirate copies of films including Die Hard 4.0, Ocean’s Thirteen, Evan Almighty and Fantastic Four: The Rise of the Silver Surfer.  The seized press had a capacity to manufacture 900 DVDs per hour.  Forensic examination by IFPI suggests this press comes from a legitimate DVD plant that had previously been declared bankrupt. Officers also discovered discs which formed part of an order for thousands of pirate CDs featuring a compilation of chart music.  Pirate discs from the plant have not been sold through legitimate channels, but by individuals in schools, workplaces, bars or on the street.  BREIN estimates that such organised piracy accounts for…

eDonkey servers taken offline
Copyright , Internet , Record Labels / October 2007
France
Germany
Netherlands

COPYRIGHT Internet, record labels Legal steps by the record industry in France, Germany and the Netherlands have cut off more than one million users of the one of the largest P2P networks – no doubt to the huge annoyance if music fans. Seven servers on eDonkey were shut down this week after court injunctions in Germany. This follows on from similar eDonkey server closures in Netherlands and France. eDonkey is a peer-to-peer file sharing network widely used to swap copyright infringing music files.  The eDonkey network relies on servers for its effective operation and eDonkey servers are run by one or more individuals using software to enable users to find other users connected to the same server that have files the user wants to download. A series of legal actions by national groups of the International Federation of Phonographic Iindustries, representing the recording industry, have forced many eDonkey servers offline, significantly reducing the effectiveness and reach of the network.  In the last few weeks the number of eDonkey users worldwide has been reduced by more than a million, knocking an estimated third of users off the network.  Fresh actions will continue to target the remaining eDonkey servers. The new actions against…

Norway rules that Apple DRM is illegal
Competition , Record Labels / February 2007
Denmark
Finland
France
Germany
Netherlands
Norway
Sweden

COMPETITION Labels, technology As France, Germany and Finland join the growing list of countries looking at iTune’s DRM and lack inter-operability which include Sweden and Denmark, the Norwegian Ombudsman rules the software illegal and the Dutch Consumer Protection Agency joins the protest against Apple in the Netherlands.   http://www.theregister.co.uk/2007/01/24/apple_drm_illegal_in_norway/ http://www.canada.com/topics/technology/news/gizmos/story.html?id=bdd7e7d2-1639-46a5-bb71-f9830c61b608&k=878

Dutch Court orders ISP to hand over site owner’s identity
Copyright , Internet / February 2007
Netherlands

COPYRIGHT Internet The Dutch courts have traditionally been keen to protect privacy – even of suspected file-sharers and even the names of people behind websites accused of copyright violation. But the content owner lobby scored a victory last week when ISP KPN was ordered to tell anti-piracy body BREIN the names of the people behind Dutchtorrent.org, which offered sign up subscribers access to a whole range of illegal content sources. The owners of that site have managed to remain anonymous, but their server is linked to the net via KPN. The ISP had so far refused to close down the site or to reveal the identity of Dutchtorrent.org’s owners, preventing BREIN from taking legal action against them. The latest court ruling means KPN will now have to hand over those owners’ contact details, so direct litigation against the site can begin. The ruling also means KPN will have to close down the site – although by the time the ruling was made the site was already down “due to technical problems”. However, an announcement from the site promised it would return “as soon as the brainstorm is over”, so the courts have ruled KPN must act to block access to…

IFPI continue actions against file swappers
Copyright , Internet , Record Labels / November 2006
Argentina
Austria
Brazil
Denmark
Finland
France
Germany
Hong Kong
Iceland
India
Ireland
Italy
Mexico
Netherlands
Poland
Portugal
Singapore

COPYRIGHT Record labels, internet Legal actions against thousands of music file-sharers across the world have been announced as the recording industry stepped up its campaign to deter copyright theft and promote legitimate use of music on the internet. Over 8,000 new cases in 17 countries are being announced today, including the first ever cases against illegal file-sharing in the two biggest markets of South America and in Eastern Europe.   A total of more than 13,000 legal actions have now been taken outside the United States. Legal actions are being extended to Brazil, where more than one billion music tracks were illegally downloaded last year and a country where record company revenues have nearly halved since 2000. Mexico and Poland are also seeing actions for the first time – while a further 14 countries are launching fresh actions against illegal file-sharing.  Over 2,300 of people have already paid the price for illegally file-sharing copyrighted material, with average legal settlements of €2,420.   Many of those on the receiving end of legal action are parents whose children have been illegally file-sharing.  They are finding that in many countries they are liable for any activities third parties undertake using their internet connection.  In…

FKP Scorpio Konzertproduction Gmbh v Finanzamt Hamburg-Eimsbüttel ECJ C290-04
Artists , Live Events , Taxation / November 2006
EU
Germany
Netherlands
USA

TAXATION Artists, Live Music Industry In May 2006 Advocate General Leger expressed his opinion in the case of FKP Scorpio Konzertproduktion. Scorpio, a German concert promoter, contracted with a Dutch tour promoter in 1993 for performances by American and European artists in Germany. Scorpio did not pay any German withholding tax and the tax authorities raised a massive tax assessments because of breach of of the German Einkommensteuergesetz (Income Tax Law). The Bundesfinanzhofraised four questions to the ECJ: (1) is it correct that non-residents fall under a withholding tax, and residents not; (2) does the withholding tax at source need to be reduced because of the expenses of the non-residents, because residents only pay tax on their net income after the deduction of expenses;(3) can an exemption provided for in a tax treaty be used without the explicit approval of the domestic tax authority; (4) do the answers to these questions also apply to artists and sportsmen living outside the EU? The Scorpio case attacks the artist tax system more explicitly than theGerritse case and the German tax authorities have already allowed organisers of performances to postpone the payment of the withholding tax for non-resident artists AG Leger opined that neither the procedure of deducting tax…

Dutch taxation of nonresident artists & athletes to end
Artists , Live Events , Taxation / November 2006
Netherlands

TAXATION Artists, live industry ARTICLE: by Dick Molenaar, All Arts Tax Advisors The Dutch government has decided to abolish the taxation of non-resident artistes and sportsmen per 1 January 2007. This radical change attracts special attention, because the Netherlands has the right to levy a source tax from non-resident artistes and sportsmen under 74 of its 78 bilateral tax treaties, in which it follows Art. 17 of the OECD Model closely. But the government believes that the tax revenue from this special group of taxpayers is too low and the administrative burden is too high to justify a source taxation. The Netherlands prefers that only the residence country levies tax from their international performing artistes and sportsmen. This is an important deviation from the recommendation by the OECD in Art. 17 of the Model Treaty, in which the primary taxing right has been allocated to the country of performance. Earlier change in 2001 In 2001 the Netherlands already changed its taxation from non-resident artistes and sportsmen by allowing the deduction of expenses prior to performances and accepting normal income tax returns after the year. The Netherlands did not want to follow the recommendation of § 10 of the Commentary on…

Dutch courts hold deeplink search engine illegal
Copyright , Internet , Record Labels / July 2006
Netherlands

COPYRIGHT Internet, record labels The music industry’s global fight against websites offering links to illegal downloads has been boosted by an action against a ’deeplinks’ site in the Netherlands. The ruling against Techno Design “Internet Programming” BV, the operator of www.zoekmp3.nl, clarifies that making available a searchable website of deep links to unlicensed mp3 files for download is illegal in the Netherlands.  The judgement by the Dutch Court of Appeal, in favour of the anti-piracy organisation BREIN, overturns a June 2004 decision of the Haarlem District Court.  Similar websites have been found to be illegal in Australia (mp3s4free.net ) and China (Baidu).  The Dutch Court of Appeal ruled that Techno Design was aware that its mp3 search service referred systematically to infringing files and that it benefited commercially from this without taking into account the interests of content owners. Techno Design has been ordered to stop offering deep links to infringing mp3 files through zoekmp3.nl or any other website, and to pay costs and damages (to be assessed).  Failure to comply with this injunction will lead to fines of E10,000 per day, E1,000 per infringing file. The Court held that Making mp3 files available on the internet is illegal “publication” under…

Dutch Court enforce creative commons licence Curry v Audax Publishing BV
Copyright / May 2006
Netherlands

COPYRIGHT All areas LJN: AV4204, Rechtbank Amsterdam, 334492 / KG 06-176 SR A Dutch court has decided that the use of photographs went against the stated terms of a creative commons licence which they were made available under could result in a claim in Dutch law. The Dutch magazine, Weekend, used photographs taken from the photographer’s Flickr public website . The photographs were published under a Creative Commons licence which did not permit commercial re-use: There was a link to this licence on the webpage. The photographer, Adam Curry, sued Weekend’s publishers, Audax, for copyright infringement in the Netherlands. Audax argued that it was misled by the flickr notice ‘this photo is public’; that the link to the CC licence was not obvious; and that the magazine had acted in good faith. Audax also claimed that (even if they were liable) no damage could have occured as the photos were freely available to the public on the Flickr site. The Court rejected Audax’s defence, holding that the effect of the link to the Creative Commons licence was that the limitations in that licence applied and the photographs were not in the public domain. The Court awarded damages of €1000. From an article by Jonathan Mitchell QC on the…

Podcasters asked to pay royalties by Dutch collection societies
Copyright , Internet / September 2005
Netherlands
UK

COPYRIGHT Internet The BBC have been hailing their free podcasting service as a major success after 1.4 million people downloaded the Beethoven symphonies it made freely available although it is thought that over half were taken up by users in the USA. Writing in the Observer newspaper (31st July) John Naughton explains that “podcasting is the delivery of an enclosed file to a computer where it can be downloaded to an MP3 player”. The technology started to be used in blogs but was recently incorporated into Apple’s i-Tunes software. Podcasting enables anyone to create what are effectively self published radio ‘programmes’. Anyone who wishes to receive the programmes subscribe to feeds using software that checks for and downloads new programmes automatically.to the author’s syndication feed which may of course be for a fee. In Holland Buma/Stemra, the agency that represents the interests of music composers, lyricists and publishers in the Netherlands and collects royalties on their behalf, is asking podcasters for compensation for lost royalties. As a temporary measure until 1 January 2006 (when presumably Buma/Stemra will announce a more definite scheme) the agency is asking professional podcasters to pay a monthly charge of €85, and non-professionals could pay as…

Dutch court rules that privacy overrides copyright investigation
Netherlands

COPYRIGHT Record Labels, Music Publishers, Film and Television, Internet The Dutch rights organisation BREIN has lost a lawsuit filed on behalf 52 media and entertainment companies. BREIN had acquired unique computer identification numbers, so-called IP addresses, of suspected file swappers and had requested the personal details behind these IP addresses from five large internet service providers (UPC, Essent, Tiscali, Wanadoo and KPN). The ISP’s had refused to hand over details arguing only a criminal court could request this. The court ruled that BREIN made a crucial mistake in collecting evidence against the individuals as it could have accessed private data as well as details of copyright infringements when looking at user’s Kazaa activities and this was not permissible under Holland’s privacy laws (which the court suggested were far more robust than US privacy laws). The case in a civil court in the city of Utrecht led to a ruling that whilst the judge was allowed to order the ISPs to submit the personal data, the plaintiffs had not met the necessary conditions to warrant such an order. However, whilst a court in Sweden has also protected internet users privacy (see Law Updates July 2005) it should be noted that an…

Holland to implement iPod Tax
Netherlands

COPYRIGHT Record Labels, Music Publishing, Internet, Technology Holland has passed legislation to implement a point of sale surcharge on any device capable of storing illegally downloaded or “pirated” music. The recently passed Dutch legislation will become law within the next three months, with reports suggesting the levy could be around 3.28 per gigabyte. On Apple’s 60gb iPod that would add over 190 to the price. The levy would be paid to copyright holders, to compensate for profits lost to illegal filesharing. In a recent article (see reference below) Doug D’Arcy, the former head of Chrysalis and BMG, thinks Britain should follow suit. “The illegal digital download market is in danger of crippling the British music industry and unless something is done to address this quickly, it will spell disaster for thousands of artists and independent record labels. Unlike other territories, the UK never implemented a blank tape levy on cassette tapes. One of the most persuasive arguments against this is of course that those who copy legally (and who now download legally) are in effect being penalised as they are paying twice for a copyright. See:http://tech.monstersandcritics.com/news/article_8068.php/Former_music_industry_boss_calls_for_British_%93iPod_tax%94

Dutch Supreme Court Confirms Format Rights Decision: Castaway v Endemol
Copyright / August 2004
Netherlands

COPYRIGHT Television The titanic battle over ownership of the Big Brother format appears finally to have been resolved by the Dutch Supreme Court after a legal battle lasting well over three years. On 16 April the Supreme Court of the Hague rejected the appeal by Castaway Television Productions Ltd and Planet 24 Productions Ltd against the decision of the Dutch Court of Appeal which in turn confirmed the decision of the Dutch Court of first instance. The trial judge had ruled that the format of Big Brother is not an infringing copy of the Survivor format. The “Survive” format on which the action was based was the same format which Castaway sought to protect in the Celebrity action (see our early warning of August 2003). It was originally produced under the name Expedition Robinson in the summer of 1997 in Sweden, and then subsequently in other European countries. At around the same time Endemol Productions was developing a format, which eventually became Big Brother, that was broadcast in the autumn of 1999. Castaway Television asserted that the Survive format is a copyright work by virtue of its unique combination of 12 elements. It also claimed that Big Brother is an…

“Creative Commons” Adopted in the Netherlands
Netherlands

COPYRIGHT Record Labels, Music Publishers, Television, radio, Film, Internet The Netherlands has become the third European nation to adopt a ‘Creative Commons’ approach to copyright. This is a simpler way of handling copyrights on the Internet already adopted in Finland and Germany . The brainchild of Professor Lawrence Lessig from California’s Stanford University, and others, Creative Commons (CC) was originally launched as an American initiative 18 months ago. CC’s objective is to stimulate the distribution of electronic material, like literature, photographs, music, films and scientific works, over the Internet without breaching copyright laws, and creating, in the process, a large public domain – a ‘creative commons’ – for artists and scientists to share and work in. Unlike the present, ‘all rights reserved’ copyright system, CC adopts a simpler, ‘some rights reserved’ attitude. Its licences come in 12 flavours of varying application and coverage, stipulating exactly where (for non-commercial purposes, for example) and how (mentioning the information source is mandatory) a licensed work can be used. The Duch version of CC will conform to Dutch copyright law and allow owners to stipulate how and where free use can be made without affecting ownership. See : http://www.dmeurope.com/default.asp?ArticleID=2124

Endemol Wins Copyright Protection for Big Brother in Brazil
Copyright / July 2004
Netherlands

 COPYRIGHT Television The international trade in format rights is now worth $1billion annually, but formats remain a species of intellectual property which has scarcely hit the radar of most jurisdictions around the world. The Dutch Court of Appeal recently found a television format to be a copyright work, although a claim of breach of copyright based on that format failed. However, a successful claim for breach of copyright has now been made in Brazil based on the Big Brother format. Endemol (which owns the format) entered into negotiations with TV SBT of Brazil in the course of which Endemol provided extensive information on the Big Brother format. TV SBT chose not to acquire a license for the format and produced “Casa Dos Artistas” (the Artist’s House), which the Brazilian Court described as a “rude copy”. Endemol and its Brazilian licensee for the Big Brother format (TV Globo) sued TV SBT seeking an injunction and damages. The defendants claimed that a reality show is no more than an idea, citing the lack of scripts. They claimed that the format bible was “in reality a simple manual that describes methods and procedures…; the idea of locking up people inside places and observing…

World Piracy News
Greece
Lithuania
Malaysia
Netherlands
Nigeria
Russia
South Africa
Thailand
Ukraine

COPYRIGHT Record Labels, Music Publishers, Internet Dutch police and the criminal anti-piracy enforcement team of the FIOD-ECD have completed an investigation into organised criminal groups resulting in the seizure of 17,000 pirate CDs and DVDs and the arrest of six people. Over sixty police offers carried out simultaneous raids on different addresses including a CD/DVD plant. A representative of the Indian Music Association was present because over 15,000 of the pirate DVDs seized were in hindi. Other DVDs included pirated copies of Finding Nemo and Lord of The Rings. Greek figures show that over 1.1 million CDs, CDRs and MCs were seized in 2003 under raids organised by the IFPI (an increase of 46.38% on 2002). In addition police sized a further 521,345 units in other raids. In 2003 1,941 individuals were prosecuted in Greece for music piracy offences. In the Ukraine a joint investigation between law enforcement agencies and the IFPI led to a major raid on a illegal warehouse. 210,000 CD and DVD inlays were seized along with more than 26,000 units. The IFPI say that almost all of the pirated material found in the Ukraine, Poland and other eastern European countries originate in Russia and are then ‘packaged’ locally across the eastern block. As Lithuania joins the…

Dutch Courts Clear Internet Search Engine of Copyright Infringement in Download Facilitation
Copyright , Internet , Record Labels / June 2004
Netherlands

COPYRIGHT Record Labels, Internet A court in the Dutch city of Haarlem has cleared Techno Design, the operator of music search-engine portal, Zoekmp3.nl, of copyright violation. The charge had been brought by BREIN, the Dutch entertainment industry’s anti-piracy association. The Dutch appellate court has already held that Kazaa was not guilty of infringement in a case brought by the Dutch Collection societies, BUMA and STEMRA. Zoekmp3.nl, which appears in the top twenty of the most popular Dutch websites, has access to some 30,000 music links. In its hey-day, Zoekmp3.nl had some 50,000 daily visitors and offered MP3 music files worldwide through an estimated 200,000 web pages. The court ruled that providing links to an MP3 file did not constitute disclosure or publication of contents according to Dutch copyright law. It went on to say that what Techno Design did is not unlawful, largely because providing services or assistance that could subsequently lead to infringement and unlawful trade by third parties is in itself not (yet) unlawful. The verdict means that the portal will not be shutdown and can continue to be used to search for music on the internet, regardless of whether its findings point to music that is legal…

Netherlands Supreme Court Judgement in Kazaa v Buma & Stemra (2003)
Netherlands

COPYRIGHT Record Labels, Music Publishers, Internet The makers of Kazaa, the computer file-sharing program, cannot be held liable for copyright infringement of music or movies swapped with its free software, the Dutch Supreme Court ruled on Friday. The Dutch court of first instance held that as Kazaa could not prevent the exchange of material between users its service was not unlawful although the acts carried out by some users were certainly infringements of copyright (see Law updates December 2002). The Supreme Court’s decision upheld the 2002 ruling which dismissed a suit filed by Buma/Stemra, the Dutch collection societies, They had originally demanded that Kazaa stop offering free downloads from its Web site or face a daily fine of $124,000. Source: The International Federation of Phonographic Industries (IFPI). IFPI COMMENT :The ruling on Kazaa by the Dutch Supreme Court is a flawed judgement, but still leaves no doubt that the vast majority of people who are using file-swapping services like Kazaa are acting illegally – whatever country they are in. Following the decision, the international recording industry has issued a call to Kazaa take three key steps necessary to help deal with the large numbers of unauthorised copies of copyrighted products that…

The Record Industry Suffers Major Setbacks In Three Separate Decisions
Canada
Netherlands
USA

COPYRIGHT Record Labels, Music Publishers, Internet The record and music publishing industries have been jolted by three separate decisions from Canada, The Netherlands and the United States of America, all of which create problems in applying copyright law to the personal use of downloaded music files, and P2P file swapping. Firstly, the Canadian Copyright Board has ruled that the personal dowloading of files from the Internet is not illegal in Canada (although the provision of such a service would remain so). Whilst an unusual decision, Canada does have a system of blank tape, software and hardware levies which consumers pay, and alongside this also has an exemption for the personal use of music (contained in the Canadian Copyright Act). In a separate matter, in a case brought by Canadian collection society SOCAN, the Canadian music and telecommunications industries are also awaiting the appeals court’s decision in the Tariff 22 case regarding the liability of telecom and Internet service providers for music downloading. The Canadian ruling was followed by two separate decisions where courts also ruled against industry bodies. In Amsterdam, the Netherlands Supreme Court rejected a case against Kazaa, the popular file-sharing program – ruling that the company cannot be held liable for the swapping…

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

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