National Consumer Council asks for fair play in EC copyright legislation
Copyright , Internet , Record Labels / November 2005

COPYRIGHT Record Labels, Internet The National Consumer Council (NCC) has warned that ‘heavy-handed’ European Commission plans to enforce intellectual property rights on music and other creative content overstep the mark. Consumers, says the NCC, are being treated like organised criminal gangs (who, they accept, should be pursued). Consumers already face the prospect of legal action for sharing music files. The NCC report that in the UK sixty internet users have settled legal claims against them by the British Phonographic Industry, each paying up to £6,500 in compensation. The NCC has lobbied that any new laws must strike a balance between right holders’ interests in getting a fair return and the public and consumer interests of fair access and use, and the encouragement of innovation. NCC is concerned that new European IP laws are being planned before there has been a chance to assess the impact of the existing law. The existing (2004) Directive on the Enforcement of Intellectual Property Rights is barely a year old and is not yet implemented in the UK. See: and and see the BPI’s (somewhat predictable) response at : Also see also the blog by David Berlind looking at the problems and unfairness of DRM software…

Privacy v Piracy
Copyright , Internet , Privacy , Record Labels / November 2005

COPYRIGHT/PRIVACY Record Labels, Internet ARTICLE: by Mark Watts & Myles Jelf of Bristows, Solicitors An interesting article on which investigates some of the concerns online users have where their basic privacy rights are being eroded away by the state, software companies and internet service providers amongst others but in the context of rampant software and music piracy: “the distribution of intellectual property content such as books, films, and music is increasingly electronic and new technology, such as Digital Rights Management (DRM), is becoming more popular amongst copyright owners, enabling the monitoring of private ‘consumption’ of their content. Also, the possibility of significant IP infringing acts taking place at home is increasing, through the popularity of Peer-to-Peer (P2P) file-sharing networks. Now, more than ever before, both sets of rights need to be considered together. Are they heading for a collision?” Please read this article online : See also the EFF articles on the ‘warden’ software which can read all of a user’s computer files (including every process on a gamer’s computer, any URLS open and his and his/her email address books) to ‘prevent cheating’ by users of the hugely popular online game World of Warcraft (all gamers who sign up must allow…

EFF criticises plan for restrictive new cell technology
Copyright , Internet , Privacy / November 2005

COPYRIGHT/PRIVACY Telecoms, Internet Having just returned from the In The City Conference, the importance of mobile cell phones in the music and entertainment industries as well as the IT and telecoms industries cannot be underestimated. This is why they will now become the new ‘battleground’ between companies seeking to achieve dominance in the new market and also between consumers who wish to have choice and retain privacy and companies who wish to maximise commercial growth and ‘lock in’ customers to preferred applications, software and pricing plans. The Electronic Frontiers Foundation has criticized a plan for restrictive new cell technology put forward by the Trusted Computing Group (TCG), an industry consortium developing controversial computer security specifications. TCG has released a wish list of applications of TCG technology to cell phone security. Unfortunately the EFF says, much of this “security” aims to help cell phone carriers cement their control over their customers …TCG is proudly offering to help cell phone carriers lock down your phone,” said EFF Staff Technologist Seth Schoen. “The proposals described today aim to help your cell phone company decide who can publish software or media for your phone, whether you can load your own documents, and even whether…

EFF warns against new digital television restrictions
Copyright , Record Labels / November 2005

COPYRIGHT Record Labels The Electronic Frontiers Foundation has filed comments with the Department of Culture, Media, and Sport (DCMS) in the British House of Commons about plans for digital television broadcasting in Europe. In the comments, EFF expressed concern that switching off analog broadcasts could result in new digital television standards that unduly restrict the public and manufacturers. The Digital Video Broadcasting Project (DVB) – a group that creates standards for digital television in Europe, Australia, and much of Asia – has proposed a complex system for restricting digital broadcast programming after reception, analogous to the disastrous broadcast flag proposal in the United States. This system, called “Content Protection Copy Management” (CPCM), has been under discussion since 2003. The CPCM restrictions include an “authorized domain” governing the number of devices that can use content and a myriad of broadcast flags that will restrict usage, recording, and storage. They also specify compliance rules for all manufacturers. As with the US broadcast flag proposal, these compliance rules would result in a ban on the use of free and open source software in connection with digital TV reception and usage. “The DVB broadcast flag is much more sweeping than the one they tried…

Australian High Court rules that modifying chip is not illegal Stevens v Sony
Copyright , Internet / November 2005

COPYRIGHT Games, Technology, Television, Radio, Internet ARTICLE: by Campbell Thompson and Genevieve Wilkinson of Freehills  In a set-back for copyright owners, the High Court of Australia (6th October) has ruled that the sale of ‘mod chips’ by Mr Stevens for use with Australian Playstation consoles did not breach the anti-circumvention provisions of the Act even though it meant that Mr Stevens could now play games brought abroad – genuine games albeit purchased perhaps more cheaply than domestic games. Link at :

Canadian Courts give out mixed messages as the Ontario Court of Appeal
Defamation , Internet / November 2005

DEFAMATION TV and Radio, Internet, Newspapers Jurisdiction issues: Overturns Jurisdiction Decision in Washington Post Case but BC Court finds it has jurisdiction in an action against New York Post Taken from a summary by Michael Erdle in E-Tips: E-Tips is a publication of Deeth Williams Wall and edited by Richard Potter QC. The Ontario Court of Appeal has overturned a controversial lower court decision which had held that it did have jurisdiction in a lawsuit against the Washington Post brought by a United Nations official. The appellate court held that the claimant had no substantial connection with Ontario – so the court had no jurisdiction. The Washington Post published articles in January 1997 about a, Cheickh Bangoura who was employed by the United Nations in Africa. The articles related to Mr Bangoura’s conduct in a prior posting with the United Nations. Bangoura moved to Ontario some time before the action was commenced, more than six years after the publication of the articles. There were only seven subscribers to the Washington Post in Ontario when the articles were published. Although the articles were available through the newspaper’s online archive, there was no evidence that anyone in Ontario other than Bangoura’s lawyer had accessed them. The trial…

Is a new Universal Data Protection Law possible?
Internet , Privacy / November 2005

PRIVACY Internet Earlier this month, Privacy Commissioners from forty countries met in Switzerland for the 27th International Conference of Data Protection and Privacy Commissioners (ICDPPC). The Commissioners adopted a declaration in which they agreed to collaborate with governments and international organizations for the development of a universal convention for the protection of personal data. The various universal data protective principles the Commissioners agreed to promote are set out in the declaration and in its written declaration, the ICDPPC appealed to the United Nations to prepare a legal binding instrument identifying the rights of data protection and privacy as enforceable human rights. To review a copy of the two resolutions and declaration, see: From a summary by Lenni Carreiro in E-Tips: E-Tips is a publication of Deeth Williams Wall and edited by Richard Potter QC. To review past issues of the E-TIPS® newsletter, visit:

IFPI say that booming global online demand offsets a small decline in CD sales
Copyright , Internet , Record Labels / November 2005

COPYRIGHT Record Labels, Internet, Telecomms The IFPI have released figures showing that booming demand for music on the internet and mobile phones nearly offset the decline in physical formats as recorded music sales fell 1.9% to a retail value of $US 13.2 billion in the first half of 2005, compared to $US 13.4 billion in the same period of 2004. The IFPI has estimated the retail value of the digital music market in order to be consistent with its reporting of physical sales, and to allow year-on-year comparisons. On that basis, digital music sales in the period amounted to approximately $US 790 million, up from $US 220 million in the first half of 2004. This is the equivalent of 6% of total record industry sales, almost triple what it was. On a trade basis, excluding the retail margin, digital sales in the first half of 2005 totalled $US 440 million. This includes sales from a-la-carte download stores, music subscription stores and from mobile music services such as downloads and ‘ringtunes’. The figure does not include revenues from monophonic and polyphonic ringtones. The surge in digital music sales is being driven by the growing uptake of broadband, increasing penetration of 3G…

Israel clamps down on P2P sites
Copyright , Internet , Record Labels / November 2005

COPYRIGHT Record Labels, Internet Israel’s rampant culture of internet copyright infringement is the bane of global trade bodies but Israel has now clamped down on file swappers. Israel has been a haven for early adapters of modern technology and has one of the highest internet use rates in the world – but has little in the way of legal controls againt online piracy and peer-2-peer file swapping. But now the Haifa District Court has ruled against music file-sharing websites including Shift, Lala, Lionetwork, and Subcenter. The lawsuit was filed by 27 music recording companies, including Hed Arzi Ltd., Helicon Ltd., and NMC Music Ltd. The IFPI presented the NIS 500,000 claim. The petitioners claimed that the sites were violating their copyright. The sites’ operators were ordered to pay an interim sum of NIS 500,000 until damages to the petitioners are assessed. The lawsuit follows the US Supreme Court’s decision at the end of June that on-line file-sharing services Grokster and Streamcast could be held liable for copyright infringement if they encouraged Internet users to illegally copy movies and music from each others’ computers. The long-awaited ruling was seen as a key test of copyright law in the digital era. Source…

ITC Keynote address by Ralph Simon highlights role of mobiles
Copyright , Internet , Record Labels / November 2005

TECHNOLOGY Record Labels, Telecomms, Internet In The City conference keynote speaker Ralph Simon is a music industry veteran and famously the man who founded Zomba and sold it at the right time! He is still involved in the music industry and gave the speech to introduce delegates to the wonders of ‘mobilised A&R’ and asked the question ‘R U Connected’. Ralph pointed out that labels in particular shouldn’t be asking the question ‘should we mobilise’ but that they just should mobilise – from the song upwards through artists to singles and albums. Ralph pointed out that even they way music is traditionally sold – CD albums and singles – will change – perhaps to ‘clusters’ of songs released by an act every 3 to 4 months. The mobile industry itself is worth some $548 billion annually (Deloitte & Touche) with 2.4 billion users worldwide. The UK has a 84% use (almost one phone per person) and even China, a developing country with 1.24 billion people now has a 27% penetration. Ralph’s short term vision is that mobiles will become mobile social computers, adopted primarily by the 14 – 28 year old demograph. They will provide television programmes, radio (although most…

China regulates for a sanitised web
Internet , Regulation / November 2005

REGULATION Internet The Chinese State Council Information Bureau and Ministry of Industry and Information have issued new restrictions on Chinese websites. All Chinese websites are now prevented from putting out news that: – violates the basic principles of the Chinese constitution – endangers national security, leaks national secrets, seeks to overthrow the government or endangers the unification of the country – destroys the country’s reputation and benefits – arouses national feelings of hatred, racism, and endangers racial unification – violates national policies on religion, promotes the propaganda of sects and superstition – diffuses rumours, endangers public order and creates social uncertainty – diffuses information that is pornographic, violent, terrorist or linked to gambling – libels or harms people’s reputation, violates people’s legal rights – includes illegal information bounded by law and administrative rules. Websites also have to conform with the following provisions: – It is forbidden to encourage illegal gatherings, strikes, etc to create public disorder – It is forbidden to organise activities under illegal social associations or organisations Websites that break these new rules will be shut down and those running them will have to pay a fine that could reach 30,000 yuans (3,000 euros). See:

Eminen looks to ban ringtones

COPYRIGHT Record Labels, Music Publishing, Telecomms Eminem’s publishing companies have filed a lawsuit yesterday in an effort to stop his songs from being used as cell phone ring tones. The suit, filed in U.S. District Court in Detroit by Michigan based Eight Mile Style and Martin Affiliated seeks a court order to prohibit five companies from selling Eminem song ring tones on the Internet. Lawyers for the rapper, whose real name is Marshall Mathers III, said they also plan to sue karaoke companies that sell Eminem songs without getting the proper licenses. The companies named in the suit are Colorado-based Cellus USA, Georgia-based FanMobile, New York-based, New Jersey-based MyPhoneFiles and New Jersey-based MatrixM LLC. Source :

ICANN approves more top level domain names
Artists , Record Labels , Trade Mark / November 2005

TRADE MARK Telecomms, Artists, Record Labels, Film, Television ICANN (Internet Corporation of Assigned Names and Numbers) has approved the designation of three new generic Top Level Domain Names (TLDs)- mobi, .travel, and .jobs.- and is reviewing six more TLDs. Applications for domain names in the .jobs and .travel TLDs are now being accepted. ICANN has approved the .mobi TLD, and details regarding the beginning of registration will soon be available. In addition, ICANN has also preliminarily approved the launch of four more TLDs, .cat, .tel, and .xxx and has entered into commercial and technical negotiations with the sponsors of these TLDs. Finally, ICANN is reviewing the applications for .asia and .mail TLDs. See :

Who Owns Barbie – Copyright Owners and Artists disagree

IMAGE RIGHTS, COPYRIGHT FAIR USE Artists, Record Labels, Film, Television, Internet ARTICLE:  John Petrick in An interesting article from the USA on the use of cartoon and other fictional characters in modern art. Is it parody – does it fall under the ‘fair use’ provisions of US law or even under the right to free speech? Or is the use of characters such as Batman & Robin, Micky Mouse and Barbie in any context without permission an infringement of the owner’s intellectual property rights? “In 1994 2 Live Crew were sued for its rewritten version of Roy Orbison’s classic song “Pretty Woman.” The case ultimately went to the U.S. Supreme Court, which found the song was “fair use” in that it was a parody. It’s a seminal case for artists and their lawyers, in that it’s the first to make such distinctions. Also in favor of artists’ rights was a more recent case in which Mattel sued Utah photographer Tom Forsythe for copyright infringement after he created a series of images titled “Food Chain Barbie.” The collection showed Barbie dolls posing in every kind of kitchen appliance from blenders to toaster ovens. Mattel didn’t care what he was trying to…

Manchester United’s manager fails to protect his own name on posters
Artists , Trade Mark / November 2005

TRADE MARK Artists, Merchandising Sir Alex Ferguson, manager of the iconic and world famous Manchester United Football Club has claimed that his human rights have been abused after the United Kingdom’s Trade Mark registry (Patents Office) refused an application to trade mark his name for posters because he is ‘too famous’. The adjudicator, Charles Hamilton, found that when consumer purchased a poster featuring Ferguson’s name they would not think that this was an ‘endorsement’ by the manager. The test is whether or not a consumer buying the poster thought that ‘Alex Ferguson’ referred to the person featured on the poster OR to the person who made the poster. If it only applies to the former then no protection will be granted as this is just descriptive. This is has led to the position that non famous sports, entertainment and music stars can trade mark their (distinctive) names before they are famous but once a name passes into the public’s consciousness it is far more difficult to secure a registration especially for items such as posters where a name would not be seen as a ‘badge of origin’, merely a name on that poster which may or may not be endorsed by the…

BBC paid $375,000 for domain name
Artists , Internet , Trade Mark / November 2005

TRADE MARK Television, Artists, Internet The British Broadcasting Corporation (BBC) have finally admitted that they paid US $375,000 to Boston Business Computing to secure the top level domain (TLD) in the late nineties. As the US firm had a legitimate claim to the acronym ‘BBC’ there was no question of bad faith or trade mark infringement and it is difficult to see how any legal challenge (usually by way of a WIPO domain name claim) would have resulted in the British Broadcasting Corporation securing the domain name. The domain is still not used fully by the BBC and just directs users to the website which is the main UK URL for the BBC. The .com domain may be used in the future for an international portal for the BBC’s website. The Times, 9 October 2005

Ownership of domain names used for criticism and review
Internet , Trade Mark / November 2005

TRADE MARK Internet “In a victory for free speech advocates and operators of so called internet gripe sites” the U.S. Court of Appeals for the Fourth Circuit reversed a summary judgment ordering domain name registrant Christopher Lamparello to cease using the name “” and to transfer it to the controversial televangelist and political commentator Jerry Falwell. In its decision, the Fourth Circuit rejected Falwell’s trademark infringement and cybersquatting claims because there was no likelihood of confusion between Falwell’s web site and trademarks and Lamparello’s use of the domain name “” to criticize Falwell’s views on homosexuality. Lamparello v. Falwell, Case No. 04-2011, 2005 U.S. App. LEXIS 18156 (4th Cir. Aug. 24, 2005) (Motz, J.)” For a link to this article by James Griffith go to :

Abusive contract terms struck down by French court in AOL Standard Form Contract
Contract , Internet / November 2005

CONTRACT Internet, general In a judgment released September 15, a three-judge panel of the Versailles Court of Appeal has unanimously dismissed an appeal by SNC AOL France (AOL) from a lower court decision handed down in 2004 in favour of a French consumer protection body, Union Fédérale des Consommateurs “Que Choisir” (UFC), relating to AOL’s online subscriber contract in France (AOL Contract). In the case, UFC v AOL France, many different clauses in the standard form contract were at issue, including such fundamental provisions, for example, as those relating to AOL disclaimers of liability (including liability for content information originating from third parties and liability for failure to provide the online service contracted for) and AOL’s rights of termination (including the right of AOL to terminate the contract unilaterally). Several of the clauses in the AOL Contract were found to be abusive and unenforceable because they were contrary to French local law or, in some cases, contrary to EU-wide laws such as the Unfair Terms in Consumer Contract Directive of 1993. Under the latter legislation, courts have the power to decline to enforce provisions in consumer contracts that are seen to demonstrate a “significant imbalance” of bargaining power between the parties. For…

Adult website lawsuit against Google Image Search could have important ramifications for fair dealing and fair use
Copyright , Internet / November 2005

COPYRIGHT Internet The Electronic Frontiers Foundation has filed a brief in support of Google Image Search, arguing that a federal district court should reject a request for a preliminary injunction that could shut the service down. In its lawsuit, adult entertainment website Perfect 10 claims that Google violates its copyrights by making and delivering thumbnail images of its photos as Internet search results. In its friend-of-the-court brief, EFF shows that these copies are a well-established fair use of digital images, and they help people find and use the works for informational and educational endeavors. “Google Image Search helps millions of people locate and learn about information on the web every day,” said Jason Schultz, EFF staff attorney. “We’re concerned that the public will lose out if Perfect 10 succeeds in shutting it down.” Perfect 10 argues that a preliminary injunction is justified because Google is violating its right to reproduce, distribute, and display its copyrighted work. But there is a long tradition in fair use that certain kinds of copies are socially useful, even without permission of the author. Courts have held that copies are a legal intermediate step to making non-infringing uses of the copyrighted work – for example…

US talent guilds want a fair cut of i-Tunes download revenues
Copyright , Internet / November 2005

COPYRIGHT Internet, Mobiles, Television The presidents of unions representing Hollywood writers and actors have joined together to ensure that their members get a fair shares of revenues coming from the new download revenue stream. This follows the announcement that ABC shows such as “Lost” could be downloaded for portable viewing on Apple’s video i-Pod. ABC became the first network to allow viewers to download episodes of their shows the day after they air. Other networks are expected to follow. The development was news to the presidents of the Writers Guild of America, West, and the president of the American Federation of Television and Radio Artists. The two called their counterparts at the Screen Actors Guild (SAG), Directors Guild of America and the Writers Guild of America, East. The Unions have not yet contacted ABC (owned by the Walt Disney Corporation) to discuss how much of the $1.99 fee per episode should go to writers, actors and directors. The unions already have agreements that cover the reuse of their work on the Internet and in “pay per view” models. They also have newer deals covering work produced for the Internet.

“How Bowie’s moonage daydreams came true”
Copyright , Internet , Record Labels / November 2005

COPYRIGHT Internet, Record Labels, Radio, Television ARTICLE by John Naughton (the Observer Sunday October 16, 2005) An interesting article by John Naughton on the future of ‘paid for’ music. Synopsis: Rock star David Bowie wrote a thoughtful piece in the New York Times in June 2002 about the future of music. ‘The absolute transformation of everything we ever thought about music will take place within 10 years,’ he wrote, ‘and nothing is going to be able to stop it. I see absolutely no point in pretending that it’s not going to happen. I’m fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing. Music, itself, is going to become like running water or electricity…’ For a link go to :,,1592964,00.html See also the article by Ben Challis on digital distribution and online business models at :

UK Teenager convicted for ‘race hate’ T-shirt
Criminal Law / November 2005

CRIMINAL Merchandising Wearing a Cradle of Filth T-shirt emblazoned with the slogan ‘Jesus is a c**t‘ has left a UK teenager with an 80 hour community penalty (unpaid work). The 19 year old teenager, Adam Shepherd, also has to pay £40.00 costs at Weymouth Magistrates Court. Shepherd’s girlfriend was wearing the T-shirt when this was reported by a member of the public. When approached by the police the two teenagers swapped shirts but Shepherd then refused to take of the offending T-shirt. The teenager was convicted under new UK race hate laws. In the punk era Stiff Records had product banned for being offensive (‘if it aint Stiff it aint worth a F**k‘ being one memorable T-shirt slogan) and even the Sex Pistols’ ‘Never Mind The B**locks‘ album was removed from many shop windows after a visit from the local police. (news)

One stop licensing scheme for online rights in Europe
Copyright , Internet , Music Publishing / November 2005

COPYRIGHT Internet, Music Publishing The European Communities Internal Market and Services Commissioner: Charlie McCreevy has said that online music service in Europe such as Apple’s i-Tunes will be able to acquire a single licence to use songs from one of the European Collection Societies. Currently use requires the consent of dozens of license holders from each country where the service wants to operate ‹ from record labels or their collections societies for the use of the sound recording and from music publishing royalty collection societies (such as the MCPS and PRS) or music publishers for the use of the song. In some instances consent will be needed from the artists themselves. The resulting lengthy negotiations have pushed back the launch of services such as i-Tunes and Napster and some popular U.S. music services such as Yahoo have yet to appear in Europe in part due to the complexity of the rights situation. The new move is hoped to make the launch of new online services in Europe easier and hopefully will facilitate better artist and songwriter payments. MCPS-PRS eM Magazine October 2005 See Law Updates August 2005 European Commission proposes Europe wide music licensing for online use

US payola scandal rumbles on
Competition , Record Labels / November 2005

COMPETITION Radio, Record Labels TSR Records has filed a lawsuit in Los Angeles against Sony BMG, accusing the company of bribing radio programmers in order to unfairly dominate radio playlists. This new case comes just three months after Sony BMG agreed to pay $10M in settlement after the Eliot Spitzer-led investigation into payola in the US radio sector. TSR alleges it was “systematically excluded” from a number of playlists and this affected its business prospects. Sony disciplined a number of executives and Clear Channel sacked two programming executives and disciplined a number of others following internal payola investigations. See: and,1,7448152.story?coll=la-headlines-business And see Law Updates September 2005 SONY BMG settle payola claim

Campbell v Mirror Group Newspapers (No2)
Defamation , Internet / November 2005

DEFAMATION Newspapers, Television, Radio, Internet In this case the House of Lords held that where a successful claimant in a libel action against a newspaper had entered into a conditional fee arrangement (CFA) which included a percentage uplift as a success fee, the newspaper’s liability in costs to pay that success fee was not incompatible with its right to freedom of expression (under the Human Rights Actand Article 10 of the European Convention of Human Rights) even though the claimant (in this case Naomi Campbell) might have had sufficient resources to fund their litigation without resorting to a CFA. The House of Lords refused the application of Mirror Group Newspapers for a ruling that the uplifted percentage of the fees charged by Schillings to their client, Ms Campbell be disallowed. In total MGN faced legal costs, including their own, totaling £1,086,295. The House of Lords held that since Access to Justice Act 1999 the uplift of success fee element can be included in a claim for costs against the losing party. The deliberate purpose of the 1999 Act was to impose the cost of all CFA litigation on the unsuccessful party, in this case MGN. The Times Law Reports 21 October 2005 See Law…