The copyright industry tightens the screws on illegal peer-2-peer file swappers, swapping sites and software that facilitates file swapping

COPYRIGHT Record labels, music publishers, internet Following on from the success of the MGM v Grokster case in the USA (Law Updates August2005) and other successes against peer-2-peer websites offering illegal download files (including cases in Australia, Korea and Taiwan) there have been a rash of recent news stories reinforcing the improving position of record labels, music publishers and film companies – although all still against a background of heavy piracy in illegal downloading and file swapping. iMesh has becomes the first of the ‘illegal’ P2P service to go legal (although UK based already offered a legal swapping service to its subscribers). iMesh’s new software blocks any music with a copyright from being downloaded. The service will charge using the subscription model, charging users $6.95 per month. However the real challenge will be to tempt the 5 million users of the old version that allowed free sharing to pay. In the week preceding the announcement the old version of the software was downloaded over 1.5 million times. In Hong Kong a magistrates court has convicted a man of attempting to distribute film content over the BitTorrent P2P network. Chan Nai-ming, from Hong Kong, received a three (3) month jail sentence after being…

The Royal Society of Arts launches Adelphi Charter
Copyright , Patents , Trade Mark / December 2005

COPYRIGHT, TRADE MARKS, PATENTS All areas The UK-based Royal Society for Arts (Royal Society for the Encouragement of Arts Manufacture, and Commerce – the RSA) has released their Adelphi Charter which outlines how the international community could and should change domestic and international intellectual property laws to better serve the public interest.  In particular, the Adelphi Charter calls for a better balance between rights protection and the public domain, since the RSA suggests that the current schemes overly favour the protection of rights.  The Charter lays out a “public interest” test that governments should have to meet before creating or extending intellectual property rights.  The proposed test includes a presumption against creating new areas of intellectual property protection, extending existing privileges or extending the duration of rights, unless those seeking the change can establish though rigorous analysis and proof that the change will promote basic rights and economic well-being.  The Charter also calls for extensive public consultation regarding changes to intellectual property laws.  The charter recognises that creative effort should be rewarded but at the same time states that the laws breadth, scope and term over the last 30 years has resulted in a modern intellectual property regime which is radically out…

Google’s ambitious plan to ‘publish’ all of the world’s books looks set to stir up the doctrines of ‘fair use’ and ‘fair dealing’
Copyright , Internet / December 2005

COPYRIGHT Internet, publishing Google Inc (Google) has embarked on an ambitious program to collect as much as possible of the world’s book knowledge and make it full-text searchable via the Internet.  This program, called the Google Print program, has two components. First, Google has worked with book publishers to make their titles searchable and easy to purchase online.  Second, Google has taken to scanning, digitizing and making searchable parts or all of the collections of five major universities: Stanford University, Harvard University, Oxford University, the University of Michigan and The New York Public Library, including copyright-protected books from those collections.  It is this second component that has drawn copyright holders’ ire and thus far spawned two lawsuits. Although Google has placed the onus on copyright holders to opt out of the program or face having their works scanned, for protected works it will only make available snippets of text surrounding the keywords searched.  This, Google claims, is “fair use” under the USCopyright Act, and no different than indexing web pages to make them accessible via search engines. On September 20, the Author’s Guild and a number of individual authors filed a class action suit against Google.  On October 19, the…

Canada introduces new copyright legislation

COPYRIGHT Internet, record labels, music publishing, artists, television, radio ARTICLE: By Tony Turco and Alex Matheson, Blake, Cassels & Graydon LLP Synopsis: On June 20, 2005, the Canadian Government introduced a bill which proposes significant amendments to the Copyright Act (Bill C-60) and represents the next step in Canada’s ongoing copyright reform. The amendments focus primarily on the challenges that the Internet and digital technologies pose for copyright law. This article was originally published in Blakes Bulletin on Intellectual Property, October 2005. LINK to

Massive piracy operation in Spain brings results
Copyright , Record Labels / December 2005

COPYRIGHT Record labels Police in Spain have smashed a syndicate believed to be responsible for releasing over one million pirate music and film discs every month into the Spanish market.  In what is the largest operation against music and film piracy ever undertaken in Spain, police arrested 69 individuals on October 26 th all allegedly involved in the illegal production, storage and retail distribution of music and film discs. All of the arrested persons were Chinese nationals. Over 60,000 recorded CD-Rs, almost 50,000 DVD-Rs and over 130,000 inlay cards, as well as over 200 CD drives and four industrial colour copying machines.  Thousands of Euros in cash and 21 counterfeit identity cards – including four stolen passports – were also found in the searches. The group was believed to have been producing over one million CD-Rs and DVD-Rs every month.  The music included both local Spanish artists and well-known international titles.  Some of the films had not yet been legally distributed. On October 27 th as a result of follow-up enquiries, Spanish police raided more premises in the suburbs of Madrid resulting in six more arrests, the seizure of another 50 CD drives and 150,000 discs. Spain , which has one…

Hong Kong – are slogans registerable as trade marks?
Artists , Internet , Trade Mark / December 2005

TRADE MARK Merchandising, artists, internet ARTICLE:  This useful article looks at decisions in Hong Kong where the registrar of trade marks has confirmed that the same test of distinctiveness applies to slogans and other types of mark. The test of distinctiveness is laid down in British Sugar plc v James Robertson & Sons Ltd [1996] PRC 281 and elaborated in Nestle SA’s Trademark Application (Have a Break) [2004] FSR 2. Pursuant to British Sugar the question is whether a mark can be regarded as distinguishing, without first telling the public that it is a trademark. Nestle’s Have a Break adds that the distinctiveness must identify a product as originating from a particular undertaking. Reference to the goods for which registration is sought and the expectations of reasonably well-informed and circumspect consumers are factors to be considered. In Hong Kong noneof ‘Im lovin it’, ‘Your world is myworld’, ‘The Game Des!gners Studio’ and ‘Life made easier’ passed these tests (although the McDonalds slogan, I’m lovin it has been registered in Australia and New Zealand). LINK to

Beatles claim Apple mark continues to infringe
Internet , Record Labels , Trade Mark / December 2005

TRADE MARK Record labels, internet John Lennon’s solo material will be made available for digital downloading before this Christmas – on almost every platform (like HMV and Virgin) save Apple’s iTunes. The Beatle’s Apple Corp remain locked in a trademark battle with the computer company over use of the name ‘Apple’. The band reached an agreement in 1981 with Apple Computers over the use of the trademark – which they claim has been breached by Apple branching out into the music download market – and therefor the music business itself. It is understood that in 1981 the computer company agreed that it would not use the mark in the music business The Times 9 th November 2005

A diary of the Sony-BMG ‘rootkit’ fiasco – how not to introduce Digital Rights Management
Copyright , Internet , Record Labels / December 2005

COPYRIGHT Record labels, internet, technology In early November it became apparent that SonyBMG had launched a new form of copy restriction software embedded into CDs which restricted the purchaser’s end use of the tracks – in effect an anti-piracy measure – or digital rights management system (DRM). So far so good. Except the software sparked of huge protests and it all went horribly wrong for SonyBMG. After the software was discovered the Electronic Frontiers Foundation suggested that the software XCP2 was created ‘drawing from the playbook of spyware companies and virus-writers’. The EFF went on to say that by using a programme called a rootkit a Sony BMG music CD will now “infect [the] user’s computer with a new programme which will be buried within the operating system”. The program will monitor user’s computer activity to prevent piracy by users – for example by making extra copies of their music CDs. There is no “uninstall” feature on this programme (EFF EFFector Vol 18 No 38 4 th November 2005). A couple of days later the EFF said that ‘outrage from computer users and music fans’ has sparked Sony BMG into offering a new programme on its website that will show users…

Beach Boys litigation resumes as Love takes on Wilson
Artists , Trade Mark / December 2005

TRADEMARK Artists Beach Boy Mike Love has filed a law suit against cousin and former Beach Boy Brian Wilson over the latter’s release of the concept album Smile which Wilson released in 2004 and a free CD giveway. The suit alleges the misappropriation of Love’s songs, likeness and the Beach Boys trademark. Smile was first recorded in 1967 but was disowned by Love and the album was, in effect, a Wilson solo project. However album was never completed and Wilson suffered a breakdown and withdrew from public life. Wilson was the Beach Boys main songwriter and although most tracks on Smile are written by Wilson and lyricist Van Dyke Parks, Love co-wrote the classic ‘Good Vibrations’ and maintains a share of the copyright in this. The trade mark issue relates to the band’s name: The remaining band members continued to perform after Wilson’s departure although both Dennis Wilson and Carl Wilson have now died (in 1983 and 1998 respectively). Love has continued to perform as the Beach Boys and has a licence to do so granted by Brother Records Inc which owns the Beach Boys Trademark. Brother itself is equally owned by four original members, Brian Wilson, Alan Jardine, Mike Love and…

Canadian broadcasters to challenge new payments for songwriters and musicians
Artists , Copyright / December 2005

COPYRIGHT Broadcasting, artists A group of Canada’s largest broadcasters is looking to take legal action against the Copyright Board over the issue of royalty payments after new payment structures mean radio stations will have to increase their royalty payments to songwriters and musicians, in some cases, by as much as 30 per cent. These are the first changes for 25 years. Corus Entertainment, which owns radio stations right across the country, says this ruling will cost the network millions of dollars a year and it could lead to layoffs. Corus is joining CHUM and other networks in the fight. They’re asking for a judicial review of the ruling by the Copyright Board of Canada that radio broadcasters that earn more than $1.25 million will be paying a higher rate of 4.4 per cent of their revenues to SOCAN and 2.1 per cent of their revenues to NRCC. The old rate was 3.2 per cent to SOCAN and 1.44 per cent to NRCC (SOCAN is the Society of Composers, Authors and Music Publishers of Canada and NRCC is the Neighbouring Rights Collective of Canada).

Canadian nightclub’s scanning of ID found to violate Alberta’s privacy legislation
Health & Safety , Live Events , Privacy / December 2005

HEALTH & SAFETY, PRIVACY Live Music The Alberta Privacy Commissioner has found that the scanning of patrons’ identification at the door of a nightclub violates the province’s Personal InformationProtection Act (PIPA). The report concluded that purposes for which the personal information was collected were not reasonable, contrary to section 11 of PIPA. The widespread practice of photo-scanning ID in nightclubs was apparently intended to deter violent or criminal behaviour.  However, the Commissioner found that Penny Lane Entertainment, the owner of the nightclub, failed to demonstrate that the collection of this type of personal information would in fact address this issue. The complaint was filed by the author of this summary, Deeth Williams Wall summer student Nyall Engfield. The decision calls for Penny Lane Entertainment to purge the data that has been collected and cease the practice.  Such a decision is not binding, but if Penny Lane Entertainment does not comply with the finding, then an inquiry that could result in a binding order will be launched. Also see: From a Summary by Nyall Engfield in E-TIPS, a publication of Deeth Williams Wall LLC. E-Tips is edited by Richard Potter QC . To review past issues of the E-TIPS ® newsletter, visit:

IFPI say new law ‘threatens anti-piracy activity in Italy
Copyright , Criminal Law , Record Labels / December 2005

COPYRIGHT / CRIMINAL Record labels In a somewhat short sighted and self absorbed press release (11 th November) The International Federation of Phonographic Industries (IFPI) has warned that a new Italian law passed on the 9 th of November ‘threatens music anti-piracy activity in Italy’. The IFPI called on the Italian Senate to reject the law when it comes up for final approval next week. The new bill of law, known as the Ex-Cirielli Law, could end three quarters of all pending criminal anti-piracy trials before they have the chance to be taken to court. This is because the Italian legislature are trying to reduce the time it takes for criminal actions to reach trial in Italy. Many readers (in the UK for example) would be astounded to know that cases can take up to nine (9) years to get to trial in Italy. The bill, approved by the Italian Lower Chamber, will shorten the period after which criminal cases pending trial are automatically dismissed to six years. Unfortunately the change, from seven and a half to six years will affect the majority of all pending criminal cases brought by the music industry. Of 471 cases pending in 2004, 382…

VPL collections top £8.7 million
Copyright , Record Labels / December 2005

COPYRIGHT Record labels Video Performance Ltd (VPL) reports that licence fee income for broadcast and public performance of music videos in the UK is up 9.5% to £8.7M. Broadcast income was £7M and public performance income was over £1M. This covers the financial year ending December 2004. VPL is the collecting society set up by the UK record industry in 1984 to grant licences to users of music videos such as TV broadcasters, television programme makers and video jukebox system suppliers. It is a sister association to Phonographic Performance Limited (PPL) which collectively licences the use of sound recordings. Whoever owns the rights in a music video can become a member – membership is free. VPL currently has approximately 900 members – from the major record companies to the smallest independents – and 50,000 music videos registered with us. The commercial licensing arms of VPL is known as Music Mall.

Monstermob’s mobile services prompt fresh complaints
Competition , Internet / December 2005

COMPETITION Telecomms, technology, internet Mobile giant monstermob is facing a fresh investigation from UK from telephone watchdog Icstis over claims that the company has sent out unsolicited ‘reverse bill chargeable texts’ to users. In effect the user pays for the text at premium rate even if they haven’t asked for the text. Here entrants to a ‘free’ competition are said to have received texts which they had to pay for. Ictis can impose fines on service operators or bar services from operating. Monstermob had previously been investigated by Icstis for a subscription text service which provided ineffective ‘stop codes’. Monstermob were warned but no other action was taken. The Advertising Standards Authority had prevously upheld a number of complaints against ringtone provider Jamster, the firm behind the ‘Crazy Frog’, ‘Sweetie the Chick’ and ‘Nessie The Dragon’ downloads. The ASA noted that Jamster’s style of advertising particularly appealed to children and young people and the adverts for these Jamster downloads did not make it clear that the service was a subscription service. Many young people who complained (often after parents had to foot large bills) thought that the purchase of a single download was a ‘one off’ transaction. Jamster failed in…

IFPI announce new wave of law suits against individual peer-2-peer file swappers
Artists , Copyright / December 2005

COPYRIGHT Artists The IFPI has unveiled the biggest escalation yet in its campaign against illegal internet file-sharing, announcing over 2,100 new legal cases against individuals and extending the actions to five new countries in Europe, Asia and – for the first time – South America. File-sharers in Sweden, Switzerland, Argentina, Hong Kong and Singapore are for the first time at risk of criminal penalties and payment of damages in an international campaign that has already seen thousands of people – the majority of them young men between the ages of 20 and 30 – pay sums of US$3,000 or more for uploading copyrighted music on peer-to-peer networks (p2p). This latest wave of cases, covering actions launched today or brought in recent months, takes the total number of legal actions against uploaders to over 3,800 in 16 countries outside the US.  This is the fourth wave since the international campaign began in March 2004, and it targets users of all the major unauthorised p2p networks, including FastTrack (Kazaa), Gnutella (BearShare), eDonkey, DirectConnect, BitTorrent, WinMX, and SoulSeek. The move comes just one week after the landmark settlement between the p2p service Grokster and the US music industry. It also follows a series…

BPI and MCPS-PRS Alliance dispute will go to the Copyright Tribunal

COPYRIGHT Music publishers, record labels The Copyright Tribunal held a ‘Directions Hearing’ on 9 November which gave the MCPS-PRS Alliance until 2nd December to respond to the BPI-led reference of its Joint Online Licence (JOL). This will set the rate (share / percentage) at which composers are paid for the online sale of their compositions. This was the date originally proposed by the Alliance and the one which the Alliance say their legal teams have been working towards. At the same Hearing, the 3rd October 2006 was set as the earliest date for the full Tribunal Hearing to begin. The Tribunal process freezes the 2005 JOL scheme until either the Tribunal makes a decision or until agreement between the parties is reached. In practice this means the 2005 JOL remains in place for 2006 and until further notice. eM Magazine issue 22 Copyright Tribunal

New licensing schemes in UK
Copyright , Music Publishing / December 2005

COPYRIGHT Music Publishing Karaoke disks licensing has been standardised with all other published dealer price percentage rates for MCPS physical product licensing. The new version of the licensing scheme (to be published imminently) amends the 8p/9p per track per product (for still and moving visuals respectively) to 12% of Published Dealer Price. MCPS believes this move will also stimulate the market by offering a more flexible licensing approach for the benefit of both members and licensees. The MCPS has also introduced a licensing scheme for Universal Media Discs (UMD) used with the latest Sony Portable Playstation (PSP). For audio-only music products, UMD can be licensed under the AP1 (Audio Products) and AP2 schemes (when containing purely audio-only content). The intention is to include audio-visual music UMD product under the DVD1 scheme and discussions with the BPI are being held to this end. Audio-visual non-music UMD products will be included under the new AVP scheme recently agreed with the British Video Association.

Belgium courts look at plagiarism
Copyright , Music Publishing / December 2005

COPYRIGHT Music publishers Salvatore Acquaviva has won a copyright case in Belgium against Madonna. The court upheld his claim that Madonna’s ‘Frozen’ plagarised one of his songs. The BBC report that EMI, Sony and Warner Music have been ordered to withdraw the song from sale in Belgium. Mr Acquaviva’s lawyer Victor-Vincent Dehin said the judge agreed that Madonna’s single used four bars of the song Ma Vie Fout L’camp, which roughly translates as My Life’s Getting Nowhere. In a separate matter Belgium has reported that Belgium’s Court of Appeal is considering a claim regarding Michael Jackson’s hit song “You Are Not Alone”. The claim in the case of Van Pasel v R Kellyand Zomba (2005) is based on the finding of the Belgian collection and rights society that the largest part of the melody of the 1995 song “You Are Not Alone” that R Kelly presented to Michael Jackson is “identical” to the 1993 song “If We Can Start All Over” composed by Belgian brothers Eddy &Danny Van Passel.

Image Rights: new article
Artists , Image Rights , Trade Mark / December 2005

TRADE MARK Artists This is a link to the article Intellectual Property; Protecting image as trade mark by Dr Peter Groves, Solicitor. Bircham Dyson Bell “ There are no image rights in English law, unlike the position in several other countries.  However well-known a person might be, their image is not something that attracts protection of itself.  They cannot stop photographs being taken, or even published. But the law has come to their assistance in small ways, such as the recognition by the courts that falsely claiming the endorsement of a celebrity may amount to passing-off (Edmund Irvine v TalksportLtd[2002] EWHC 367).  Copyright, libel, malicious falsehood and the Trade Descriptions Act 1968 may also be useful. In addition, the Trade Marks Act 1994 tells us that among the various things that can be registered as trade marks are personal names ….. “ Also see Law Updates November 2005 Trademark – Manchester United’s manager fails to protect his own name on posters

Conflicting terms resolved in favour of ‘essential term’
Copyright , Music Publishing / December 2005

COPYRIGHT Music publishing ARTICLE: Conflicting terms resolved in favour of ‘essential term’ Mark Taylor v Rive Droite Music Limited By Tom Frederikse, solicitor, Clintons The court of Appeal have ruled that a song can only be declared finished by a writer and not by a music publisher: Music publisher, Rive Droit Music (RDM) has (mostly) lost its appeal in a dispute with a songwriter, Mark Taylor, which involved fundamental issues of contract and copyright law. In Mark Taylor v Rive Droite Music Limited (published 4 November 2005), Mr Taylor had made 5 separate claims, including that his publishing contract had a 2-year term despite setting out provisions for 3 years’ advances, and that certain unfinished works were not “Compositions” and therefore not subject to the agreement. After a string of hits, Mr Taylor signed a third successive publishing contract with RDM in 1998 which contained a clause stating that the agreement was for a Term of two years (subject, as usual, to the ‘Minimum Commitment’ of 10 Compositions per year). The advance payments clause, however, clearly set out advances payable to the composer for each of three 12-month periods and RDM therefore assumed that it could trigger a third year…

US Senator introduces bill against US ‘payola’ as Warners settle with Spitzer
Competition , Record Labels / December 2005

COMPETITION Radio, record labels Senator Russ Fiengold (Democrat, Wisconsin) has introduced legislation that seeks to close the loopholes on payola-like practices and stop alleged “muscling” practices by broadcast-venue owner companies from forcing performers to play for reduced fees or for free. Senator Feingold has crafted his Radio and Concert Disclosure and Competition Act of 2005 after studying the New York Attorney General Eliot Spitzer’s $10 million settlement in July with Sony BMG Music Entertainment, and realizing there is a need to help artists and also regulate such practices on the radio side to prevent abuse of a dominant position by large conglomerates who control venues as well as radio stations and other media. In The US, Warner Music Group has become the second major label company to settle with New York attorney general Eliot Spitzer’s office in its ongoing payola investigation. WMG is paying out $5 million – which will be donated to nonprofit organisations – and a further $50,000 to cover the cost of the enquiry. Spitzer accused the label of dishing out iPods, $800 gift cards and cash bribes of up to $20,000 to DJs and radio stations. In July, Sony BMG was the first record company to reach settlement,…

Leeds Coroner records a verdict of accidental death in stage dive tragedy
Artists , Health & Safety , Live Events / December 2005

HEALTH AND SAFETY Artists, Live Concert industry The Leeds Coroner, David Hinchcliffe, has recorded a verdict of accidental death after the inquest into the death of Patrick Sherry, 29, frontman of Bad Beat Revue and a married father-of-two. Sherry jumped up to grab a lighting rig during a gig at the Warehouse in Leeds but fell head-first on to the venue’s solid wood floor on the 20th July 2005. His older brother Brendan, 33, who is also in the band, saw the accident. A witness said: “He put the microphone down and crouched before leaping off the stage, which was about a metre high, and trying to grab the rig. I don’t know whether he caught it or not, but his momentum carried him forward. He went upside down and hit the floor head-first. The whole thing lasted about five seconds. It was horrendous.” Patrick, of Silsden, West Yorks, was taken to Leeds General Infirmary where he died the following morning of head injuries–name_page.html

EFF rings alarm bells about new industry led copyright bills in the US
Copyright , Internet / December 2005

COPYRIGHT Television, radio, internet The Electronic Frontiers Foundation (in EFFector Volume 18 No 38, 4 th November 2005) reports that the MPAA and RIAA has presented their plans for the future of digital technology to the House Subcommittee on the Courts, the Internet and Intellectual Property. They gave the House drafts of three bills they would like passed: the Analog Content Protection Act, the HD Radio Content Protection Act, and the Broadcast Flag Authorization Act. l. EFF Analysis: Halloween on the Hill The MPAA’s Analog Bill: The RIAA’s HD Radio Bill: The Broadcast Flag Bill:

Australian courts order Kazaa to filter out copyright works
Copyright , Internet , Record Labels / December 2005

COPYRIGHT Record labels, internet The Australian Federal Court has issued a order forcing Kazaa to filter copyrighted music from its system within ten days or cease its operation. Under the new order, Kazaa has been told to put in place filters that will stop the swapping of a large number of copyrighted songs, ranging from Madonna and the Beatles to more niche and local artists, by a deadline of 5 December.  The final warning comes two months after Kazaa, until recently the world’s biggest internet peer-2-peer file swapping sitre, was ruled in breach of copyright by the Federal Court of Australia. Kazaa’s operators, Sharman Networks, had previously appealed the September judgment. But the judge in Sydney, Justice Murray Wilcox, said that to avoid complete shutdown, Kazaa must now, as a first step, put in place the new keyword filter system by December 5th. The court order comes within weeks of judgments against unauthorised peer-to-peer services in the US, Australia, Korea and Taiwan. The new filter, involving 3000 keyword to be selected by record companies, will apply to all new versions of the Kazaa software from 5 December 2005.  The filter can be updated if necessary on a fortnightly basis to…

Intellectual property theft mooted as pan-European crime

COPYRIGHT Record labels, music publishers, internet, film, broadcasting Intellectual property theft has been advanced as one of the new offences under a proposed pan-European body of criminal offences. The European Commission has insisted that seven core crimes (including counterfeiting the Euro, money laundering, people-trafficking, marine pollution, private sector corruption, credit card and cheque fraud and computer hacking and virus attacks) must become law. IP theft is a ‘proposed’ offence which could become part of the pan-European system some time in the future. The new proposals are not without criticism as many member states (including the UK, Holland and Italy) oppose any involvement of the EU in criminal matters which are seen as domestic issues and pan European legislation is see as a challenge to parliamentary sovereignty an power grabbing by Brussels.The Times 24 November 2005,,2-1779849,00.html