Will Smart CDs provide an answer to file swapping?
Copyright , Record Labels / November 2003

COPYRIGHT Record Labels Recording companies are looking at a new generation of smart CDs that promise to stifle music fans’ ability to use file-swapping networks while still allowing them some freedom to make copies and share music. BMG Entertainment’s new album by hip-hop singer Anthony Hamilton will be the first commercial release to use a technology that restricts copying but lets buyers play protected CDs on computers and burn copies onto blank CDs. Fans can even send a limited number of copies to friends over the Internet. BMG is using the new copy-protection advancements by embedding Comin’ From Where I’m From with MediaMax CD-3 technology from Phoenix-based SunnComm Technologies Inc. With MediaMax CD-3, each song is written onto the CD twice, once in a format readable by standard CD players and the other as a Windows media file playable on a computer. BMG has set up the CD so fans can burn each track three times per computer. Songs can also be e-mailed to a limited number of people, who can then listen to the song up to 10 times each. SunnComm says that most people, unless they are hackers or truly determined, won’t be able to circumvent the limits, including one…

Does the Recording Industry need a new model to exploit copyright?
Artists , Copyright , Internet , Record Labels / November 2003

COPYRIGHT Record Labels, Internet, Artists, Film & Television I remember the first VHS tape I ever brought in 1985. The cassette cost £29.99, a lot in 1985, and far more than I would pay for a film on video or even DVD now. This was at the time of the 1984 Sony Betamax case and the film industry was still coming to terms with the ramifications of the US Supreme Court’s split decision that the Betamax machine was legal. But unlike the current situation with legal actions being filed around the world by the recording industry against the likes of Napster, Verizon, KazaA and even individuals who download files, the film industry made efforts to widen the consumption of their ‘product’ – films – through television, video rental, pay-per-view, sell-thru video and video on demand. Could this approach perhaps have been a useful lesson or basic blueprint for the recording industry? The film industry seems historically to have adapted to changes in consumer habits alongside and embraced changes in technology – cinemas were improved, multiplexes built, new price structures launched and the film companies adapted to and explored the new media. This Law Update it written just two months after…

Germany considers new copyright reform

COPYRIGHT Internet, Record Labels, Artists, Music Publishing The German Minister of Justice Brigitte Zypries has announced the “second basket” of reform for copyright laws for Germany. Zypries said she wanted to see the remaining provisions of the EU Directive of Copyright in the Digital Age enacted into law by next summer (see the position in the UK below). In particular the new laws will prohibit the right to make private copies made from digital sources. German commentators have remarked that this provision is similar to that of the US Digital Millenium Copyright Act and have pointed out that such a provision would be unacceptable; Copyright owners who protect their content by encyryption would be relieved from the obligation to offer access for privileged users such as libraries, schools or disabled persons and commentators add that basic constitutional freedoms would be undermined. Eva-Maria Michel, Legal Counsel of the WDR Public Broadcasting Station has said that the provisions would be a violation of the constitutional liberties of the media. Michel warned that the copyright reform focuses too much on combating piracy and thereby destroy basic privileges in the copyright field. The movie and music industries have, by contrast, lobbied to remove the right to…

Nintendo develops low cost ‘piracy proof’ console for China
Copyright , Internet , Record Labels / November 2003

COPYRIGHT Record Labels, Internet Nintendo has revealed plans to market a cheaper version of its Game Cube console in China, with a flash memory card instead of the optical disc reader found on models sold in other countries. Game Cube software is normally stored on proprietary 1.5GB optical discs. Optical discs, such as DVDs and music CDs, are routinely counterfeited in China. Chinese users will have to take the Game Cube card to a shop and pay for the download of new games. The data cannot be extracted or cloned from one card to other cards, nor can a card for one console be used on other consoles. Nintendo hopes that the modified Game Cube overcomes to two obstacles holding back console makers from the potentially lucrative China market – the spending power of the consumer and rampant software piracy. The game device – dubbed iQue Player – is said to be capable of playing both SNES (Super Nintendo Entertainment System) and Nintendo 64 titles, and will sell for 498 yuan (US$60), including the memory card, according to games web site Total Video Games. It will be sold from mid-October in Shanghai, Guangzhou and Chengdu in an effort to enable…

Taiwan copyright law revisions ‘a step backwards’

COPYRIGHT Record Labels, Music Publishers, Artists, Film, Television The Taiwan Anti-piracy Coalition have said that the country’s revised copyright laws are a step backwards in the fight against piracy. The Coalition said the removal of minimum penalties on some intellectual property offences was a major concern. The Legislative Yuan passed the revised Copyright Law in June 2003 after making a total of 53 changes to a draft originally proposed by the Executive Yuan. According to the Coalition, these changes have seriously weakened copyright protection, especially regarding penalties for copyright violators, since the law now defines a copyright violation as making more than five copies of a product or selling copies that are worth more than NT$30,000 on the street. This means that persons who make fewer than five copies or less than NT$30,000 will not be regarded as criminals. In addition, the Coalition argue that the removal of the minimum six-month prison penalty would make people less worried about infringing copyright. The Coalition said the lack of adequate intellectual property protection will have serious consequences for industry and the future of the nation’s economy. See: http://www.taipeitimes.com/News/biz/archives/2003/09/17/2003068192

Ghana to introduce new copyright legislation

COPYRIGHT Record Labels, Music Publishers, Internet The current Copyright Bill before Ghana Parliament will provide for the creation of a Copyright Tribunal which would have substantially increased penalties available against those who infringe the rights of authors and composers in Ghana. Professor George Hagan, Chairman of the National Commission on Culture, said the Bill met the minimum requirement of the World Intellectual Property Organisations (WIPO) Internet Treaties. At a four day conference, over 30 executives from African intellectual property organisations looked at the problems of piracy on a pan-African level as well as the negative affect of piracy of Western copyrights on African culture. “African culture faces the real risk of being adulterated under the guise of foreign influences, whilst the advanced world are progressively adopting measures to protect and promote their cultural heritage,” Prof. Hagan said. Ghana, through the active collaboration of the WIPO, International Federation of Reproduction Rights Organisation (IFRRO) and the Reproduction Rights Organisation of Norway has now succeeded in establishing a Reprographic Rights Organisation. The Conference was convened under the auspices of the Copyright Society of Ghana in collaboration with the International Confederation of Societies of Authors and Composers (CISAC) and the WIPO. See: http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=44752

Japanese authors to win lending right
Copyright , Music Publishing / November 2003

COPYRIGHT Publishing The Japanese Cultural Affairs Agency intends to require major book-lenders to pay copyright royalties to novelists, cartoonists and other holders of copyrights. The plan is part of an effort to address growing concerns that an increase in the number of major chains entering the book-lending business could violate cartoonists and authors’ copyrights. For years, shops renting out books, magazines and other publications have been exempted from the law governing payment of copyright royalties. The Agency plans to submit a bill to revise the Copyright Law to the next ordinary session of the Japanese Diet. Under the proposed bill, major book-lenders will be obliged to pay royalties to copyright holders, such as novelists and cartoonists, starting in 2005 at the earliest. Copyright holders have the right to restrict the lending of copyrighted material under existing Copyright Law. With videos of Japanese movies, video rental shop operators buy the videos for three to four times the market price to cover the cost of copyright royalties paid to film companies and scriptwriters. In the case of music compact discs, composers, performers and music production companies have the right to lend out the copyrighted material on the CDs. According to the Agency,…

Sentencing for online film piracy
Copyright , Internet , Record Labels / November 2003

COPYRIGHT Film & Television, Internet, Record Labels A New Jersey man who pleaded guilty to illegally copying and posting a digital version of summer action movie “The Hulk” on the Internet received a three-year probation, was fined us $2,000 and was ordered to serve six months confinement in his home. He also must pay $5,000 in restitution to Universal, the company that produced and distributed the movie. Kerry Gonzalez pleaded guilty to one count of copyright infringement. He admitted to receiving an unfinished copy of the movie from a friend who in turn sourced the ‘work print’ from a third party who worked for an advertising agency. No one from the ad agency has been charged. The FBI traced the Internet copy back to Gonzalez through an encoded “security tag” on the print. The Motion Picture Association of America already puts the number of films pirated off the Internet at 400,000 to 600,000 a day, and no one has calculated what that costs the industry. Jack Valenti, the president of the MPPA, went before Congress in March to warn that “America’s crown jewels – its intellectual property – are being looted”. See: http://www.philly.com/mld/inquirer/2003/09/27/news/local/6873888.htm

Sentencing for the online sale of pirated CDs
Copyright , Internet , Record Labels / November 2003

COPYRIGHT Record Labels, Internet New Yorker Alan Davis was sentenced to six months in jail after being convicted of using the Internet to sell hundreds of CDs that were loaded with unauthorised copies of songs. Davis, 42, of Brooklyn, was also ordered to pay $3,329.50 (£2,000 approx). Judge Walton in the US District Court of Washington DC also sentenced Davis to one year of supervised parole, to be served upon his release from jail, and barred him from using a computer for one year. Davis had admitted using his site, EmpireRecords.com, to market more than 100 different CDs and cassette tapes featuring compilations of copyrighted materials from various musical artists. He was caught after an FBI agent ordered 200 CDs and had them shipped from New York to Washington. The Web site has since been shut down. See: http://news.zdnet.co.uk/business/legal/0,39020651,39117063,00.htm

Suspended prison sentence for contempt of court for repeat copyright infringer: PPL v Tierney

COPYRIGHT Record Labels, Music Publishers, Live Concert Regular ‘users’ of music who either refuse to pay licence fees at all or who do so only under threat of legal proceedings are the bane of music collecting societies. The threat of legal proceedings does not always dissuade a repeat infringer. Furthermore, some infringers are prepared to ignore court orders or undertakings which they have given to the court. In this case the defendant Mr Tierney, the proprietor of an establishment in Guildford, breached a court order by failing to pay licence fees to Phonographic Performance Ltd in relation to certain sound recordings played at his establishment. He had also failed to comply with undertakings given to the court on a number of occasions. Failure to comply with a court order is a contempt of court which is punishable by a fine or an order for committal to prison. PPL applied for an order to commit Mr Tierney for contempt of court in respect of his failure to comply with the court order. It had reportedly made seven previous applications of this nature against Mr Tierney. PPL succeeded in its application. Mr Tierney had been warned of the consequences of further breaches…

Assertion of character rights in UK advertisement
Artists , Image Rights / November 2003

CHARACTER (IMAGE) RIGHTS Artists It seems that one of the UK most successful advertisements ever will feature in a High Court action. The advert features two ‘twin’ runners with wild hair and handlebar moustaches in 70s style striped singlets and cut-away shorts running across the country promoting the new directory enquiries number 118118 owned by US firm The Number. 118118 has captured 50% of the directory market from British Telecommunications. The runners have sparked of huge popular support and widespread ‘cult’ appreciation. But David Bedford, the British 10,000 world record holder in 1973, claims the runners are based on his image. Mr Bedford’s solicitors have written to The Number claiming the advertising is based on Mr Bedford’s image, in particular his 1973 image, which featured wild hair, moustache, striped singlet and cut away shorts. The Number have rejected the claim as ‘ridiculous’ and claim the 118118 runner image is an ‘aggregate’ on 70’s runners and that most runners of that era sported wild hair and facial hair. They say that the only runner actually looked at was a friend of Mr Bedford’s from the 70s, Steve Prefontaine who died in a car crash in 1975. Mr Bedford, 53, is the…

Ex-manager wins case against Holly Valance
Artists , Contract / November 2003

CONTRACTS Artists Holly Valance’s ex-manager, sacked by the star when her pop career began to take off, has won his action against the star in an Australian court. The Court held that Vallance had unfairly terminated the contract of Scott Michaelson in January 2002. Lawyers for Valance claimed Michaelson – like Valance, a former Neighbours actor – had been ill-equipped to manage the star’s burgeoning music career. Michaelson is seeking £160,000 in lost income, a 20% cut of sales of Valance’s second album and exemplary damages. The Court will now assess damages. Valance first found fame in Neighbours. She released her first album, Footprints, in October last year. See: http://news.bbc.co.uk/1/hi/entertainment/showbiz/3161392.stm

EU Copyright Directive will finally be implemented in UK law

COPYRIGHT Artists, Record Labels, Music Publishers, Internet, Film, Television Legislation implementing the European Copyright Directive has finally been laid before the UK Parliament. Among other things, it extends the UK’s copyright laws to deal with digital piracy, albeit ten months behind the EU’s deadline. The Copyright and Related Rights Regulations 2003 will amend the Copyright Designs and Patents Act of 1988 and will come into force on 31st October. The Copyright Directive, passed in 2001, was the EU’s attempt to update copyright protection to the digital age. It is also the means by which the European Union and its Member States will implement two 1996 World Intellectual Property Organisation (WIPO) Treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The new Regulations are available at: http://www.legislation.hmso.gov.uk/si/si2003/20032498.htm

Limp Bizkit sued by irate fans
Artists , Contract / November 2003

CONTRACTS Artists Limp Bizkit are being sued by 172 rock fans who attended July’s infamous Chicago show, which ended after only 17 minutes when the band were booed off stage. A lawsuit was submitted yesterday to District Court in Illinois. The band were supporting Metallica on the Summer Sanitarium tour, at Chigaco’s Hawthorne Racetrack. The suit alleges that the plaintiffs were expecting a ninety minute show but the band’s front man, Fred Durst, fired-off a tirade against the city and the audience, before challenging the entire crowd to a fight. The breach-of-contract suit has been filed by Michael Young, the lawyer acting on behalf of the 172 aggrieved concertgoers, who are seeking a $25 refund from the July 26 show opening the door to up to 40,000 re-payment claims. See: www.dotmusic.com

Microsoft, OD2 and Tiscali face patent action
Internet , Patents / November 2003

PATENT LAW Internet Microsoft MSN Music Club, Tiscali Music Club and Peter Gabriel’s OnDemand Distribution (OD2) are facing a patent infringement lawsuit in a German court over their on-demand music services. New York-based E-Data filed the lawsuit last Tuesday in the German court of Mannheim, seeking an injunction against the German subsidiaries of Microsoft, Tiscali and OD2 to defend its European patent EP0195 098B-1. The patent covers the downloading and recording of information, such as music, films and text from a computer onto a tangible object such as a CD or a sheet of paper. The patent also covers nine other European Union countries (the UK, Austria, France, Switzerland, the Netherlands, Italy, Luxembourg, Belgium and Sweden. The original patent was granted in the US in 1985 to Charles Freeny for his “system for reproducing information in material objects at a point of sale location”. Both the MSN Music Club and the Tiscali Music Club use OD2’s music catalogue of over 200,000 recordings. Because E-Data’s US patent has expired, Apple’s popular digital music store, iTunes, is not subject to any action but E-Data’s lawyers have written to Apple to alert them to potential patent problems should iTunes be launched in Europe…

European directive on patents for computer software
Internet , Patents / November 2003

PATENT LAW Telecommunications, Internet The European Parliament (September 24th 2003) has passed a resolution for a proposed directive to harmonize rules on software-related patents in its member states titled Directive on the Patentability of Computer-Implemented Inventions. Its aim is to provide clear guidance on what software-related subject matter may be patentable. Under the proposed Directive, in order for a computer-implemented invention to be patentable, it must make a technical contribution to the state of the art. An invention will not make a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. The invention may only be claimed in the patent as a product or a technical production process using hardware under the control of software. See: http://www3.europarl.eu.int/omk/omnsapir.so/calendar?APP=PDF&TYPE=PV2&FILE=p0030924EN.pdf&LANGUE=EN

DVD pioneers consider Warners suit
Internet , Patents , Record Labels / November 2003

PATENT LAW Record Labels, Internet The inventors of the world’s first combined compact disc and DVD are considering legal action against Warner Music, one of the largest record groups, amid allegations of breach of contract and patent abuse. The Dierks Group, the privately-owned German music and technology group that pioneered the double-sided CD and DVD, has warned Warner that it has patents and contract rights over combined music and video discs after the US group signalled plans to manufacture so-called dual discs. Warner Music, a subsidiary of Time Warner, is planning to launch dual discs in the US next year in a potential tie-up with Sony Music, part of the Japanese consumer electronics and entertainment giant. Dieter Dierks who patented the combined disc technology under the name DVD Plus, has written to Warner Music claiming it has licenses over production of such discs and royalty agreements that promise a share of future profits arising from sales by the US group. See: www.cdfreaks.com/news2.php?ID=8078

Granada and Carlton Free to merge
Competition / November 2003

COMPETITION LAW Television In a move which surprised many industry commentators, ITV giants Granada and Carlton are to merge to form a single ITV in England and Wales. The companies were given outline permission by the Trade and Industry Secretary, Patricia Hewitt, with only limited restrictions. The Competition Commission had advised the minister that the merger would not breach competition laws provided there are conditions attached to the way advertising is sold. At one point it seemed likely that the merged group would not be able to sell its own advertising as the new entity would control 52% of all UK television advertising as the new entity would control 52% of all UK television advertising (worth more than £3 billion). The Competition Commission have recommended a series of rules to prevent market abuse. As well as restrictions on advertising sales, the merged ITV group must agree to a package of safeguards to protect the protect the remaining three independent channel 3 broadcasters – The Scottish Media Group (Scotland), Ulster (Northern Ireland) and Channel TV (Channel Islands). In response ITV’s main commercial rivals in the UK (Channel 4, Five, BSkyB and Flextech’s ‘UK’ channels) are considering a joint advertising sales house….

Nokia hit by piracy of handset games
Copyright , Internet , Record Labels / November 2003

COPYRIGHT Record Labels, Telecommunications, Internet The secret codes protecting games which can be played on Nokia’s combined telephone/games platform N-gage have already been cracked and the games can be downloaded from the internet and can be played on other games consoles. The software for the games had already been licensed to a number of companies including Samsung and Siemens. Source: www.timesonline.co.uk/business

Insurance Bottomley -v- Secretary & Members of Todmorden Cricket Club and Others
Live Events / November 2003

EVENT SAFETY LAW Live Concert Industry A seemingly uninteresting case involving a cricket club could have important ramificatons for the live event industry in the UK. In the Court of Appeal decision a small cricket club which engaged an independent contractor to put on a pyrotechnics (fireworks) display at the ground was held to owe a duty to ensure that the contractor had adequate public liability insurance. It made no difference that the contractors were paid a fee. Lord Justice Brookes said there might be many occasions when an occupier could be liable in negligence in respect of activities permitted or encouraged on his land. Here, the club allowed a dangerous event to take place on its land with no written safety plan and no insurance and the occupier could not show that they had taken reasonable care to select a competent contractor. The club was therefore liable in damages for injuries sustained by the claimant who had been employed by the contractor to help with the event. If the occupier of the premises could show that they had taken reasonable care to select a competent and safe contractor then they would normally escape liability. In those circumstances an injured…

Criminal Proceedings Against Lindqvist ECJ C101/01
Artists , Data Protection , Internet , Privacy / November 2003

DATA PROTECTION AND PRIVACY Internet, Artists This case arose out of a simple set of facts. A religious instructor for the Swedish Church, Bodil Lindqvist, posted up webpages on her home computer which were aimed to help parishioners prepare for their confirmation. The administrator of the Swedish Church’s website provided a link from their website to the defendant’s webpages at her request. The webpages contained information about colleagues of the defendant with first names and in some instances full names, address and telephone numbers. The defendant also remarked that one colleague was on half time work because of medical reasons – she had injured her foot. The web pages were mildly humerous but the defendant had not asked for permission from any of the parties featured. She also had failed to notify the Datainspektionen, the relevant Swedish supervisory authority, of her activities. The Defendant was charged with (i) processing personal data by automatic means with notification to the relevant authority (ii) processing sensitive personal data without authorisation and (iii) transferring the data to a third party [via the internet].The Gota Hovratt (Court of Appeal, Gota) referred the case to the European Court of Justice for clarification of EC Directive 95/46/EC….

Articles / November 2003

Click here to download this article as a PDF file (.pdf) By Jonathan Cornthwaite, Solicitor Wedlake Bell © 2003 Wedlake Bell   The Copyright and Related Rights Regulations 2003 (SI 2003 No. 2498)(“the Regulations“) came into force on 31 October 2003. The Regulations implement in the UK the EU’s Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (“the Directive“) which entered into force on 22 June 2001. The aim of the Directive is to harmonise across the EU the basic rights relevant to uses of copyright material in the light of technological developments in the information society and e-commerce. The rights in question are those of originators of copyright material to control reproduction and communication to the public by electronic transmission of their works, including by way of digital broadcasting and on-demand services (i.e. services whereby works are accessed by the public at a time and place individually chosen by them). The UK has implemented the provisions of the Directive by an amendment to the Copyright, Designs and Patents Act 1988 (as amended)(“the Act“). The Copyright Directorate (part of the Patent Office) considers that current UK law provides a sound basis to meet the challenges of new…