Does Top Of The Pops need a licence?

HEALTH & SAFETY Live event industry The iconic BBC chart show, Top of the Pops, may be breaking the provisions of the Licensing Act 2003 law by hosting live music without a licence. Officials at Hammersmith & Fulham Council said it depended on whether the recordings at BBC Television Centre were interpreted as public or private events. The BBC maintained that the recording of live performances before a limited, invited studio audience has always been treated by the BBC and the council as constituting a live event not requiring a live performance licence. However the BBC accepted that if a different approach was now needed the BBC will apply for the appropriate licence.” It is understood that the council’s attention was reportedly drawn to the programme after it staged an open-air concert at TV Centre in London on Saturday featuring US rock band the Red Hot Chili Peppers.

Da Vinci Code did not copy earlier work
Copyright / May 2006

COPYRIGHT Publishing, television, film Da Vinci Code did not copy earlier work: Baigent & Leigh v Random House Group Limited EWHC 719 (Ch) Random House, publisher of Dan Brown’s best-selling novel ‘The Da Vinci Code’, was cleared at the High Court in London on Friday 8 th April 2006 of infringing copyright after two rival authors had claimed their ideas had been stolen. The court held that Brown did not copy from an earlier work with similar story lines when writing his best selling book. The Claimants, authors Michael Baigent and Richard Leigh wrote ‘ The Holy Blood and The Holy Grail’ (HBHG) some twenty years earlier. The ruling also removes any doubt surrounding the release of film based on The Da Vinci Code film which is due in cinemas next month. Mr Justice Peter Smith said the concept that their book had a ‘central theme’ was “artificial” and had been created solely for the purposes of the legal action. This identified 15 key points which the claimants say Brown had copied and the Judge held that “accordingly there is no copyright infringement either by textual copying or non-textual copying of a substantial part of HBHG by means of copying the central themes”. He said…

New Hungarian copyright model is food for thought

COPYRIGHT Internet, record labels, music publishing Hungary’s National Association for Consumer Protection (NACPH), a not for profit, politically independent non governmental organization (NGO) in Hungary has published an agreement with Hungary’s Socoiety Artisjus Hungarian Bureau for the Protection of Authors’ Rights (ARTISJUS) the Hungarian association of composers, lyricists and music publishers. As P2PNet report “it’s refreshing to come across an agreement between artists and music lovers in which strenuous efforts appear to have been made by both sides to be fair and reasonable”. Amongst other things, the accord states that “ If commercial exploiters of music restrict the playing or use of musical recordings via technological measures, it should only take place by means accepted by consumers as well. This is the only way to communicate music to the widest possible public which is a primary interest of authors and that “consumers are to be protected when they copy music for their private needs, even if they use an illegal source in good faith. Private copying is fair and not contrary to the general requirements of copyright exceptions as long as it does not exceed the extent needed for one’s own enjoyment of works and that of the family or close friends,…

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

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…

Confusion Reigns in Conflicting Keyword Internet Search Cases
Internet , Trade Mark / May 2006

TRADE MARK Internet The US District Court for the Southern District of New York has dismissed trade-mark infringement allegations made by Merck & Co Inc (Merck) against several Canadian online pharmacies.  The pharmacies purchased “Zocor”, the name of Merck’s cholesterol reduction drug, as a keyword to trigger the display of links to the online pharmacies’ web sites on search result web pages. The Court held that: “The ‘Zocor’ mark is ‘used’ only in the sense that a computer user’s search of the keyword ‘Zocor’ will trigger the display of sponsored links to defendants’ Web sites,” and found that: “This internal use of the mark ‘Zocor’ as a key word to trigger the display of sponsored links is not use of the mark in a trademark sense.” Allegations of trade-mark dilution and false advertising against the online pharmacies were not dismissed and will be considered at a later date. The Court’s decision contradicts a recent ruling in the District Court for the District of Minnesota (Edina Realty Inc v which held that a purchase from a search engine of keywords which were variations of Edina Realty’s business name to trigger advertisements by a competitor was a “use in commerce” and,…

The Rise of Clip Culture
Copyright , Internet / May 2006

COPYRIGHT Television, internet ARTICLE LINK – By Professor Michael Geist. Michael holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached at The popularity of the websites that allow people to share short video snippets is leading to the rise of a clip culture, writes internet law professor Michael Geist. But services such as YouTube, which streams 15 million videos each day, face the anger of copyright owners when clips from existing TV programmes – which of course include music promo videos and clips from concerts – are put up in the site.

The All Ages Dance Ordinance “Initially Hailed – The City Dance Law Doesn’t Mean Much These Days”

HEALTH AND SAFETY Live Event Industry ARTICLE LINK –  By Sharon Pian Chan in the Seattle Times An interesting tale of well meant but useless regulation, based on permits for venues meant to promote safer clubs. Seattle officials boasted four years ago they had found a way to protect their youth from sexual predators, alcohol and drugs at dance parties. The All-Ages Dance Ordinance would require anyone who holds a dance admitting kids younger than 18 to apply for a City permit, undergo a criminal background check and hire a certain number of security guards. It transpires that the permits are rarely applied for and breaches are even more rarely enforced: even a city funded teen venue doesn’t hold a permit!

Illegal doormen and late night takeaways targeted in UK

HEALTH & SAFETY / LICENSING Live event industry An operation inspecting nightclub and pub door bouncers across South Wale s found 31 working without a licence. More than 600 door supervisors were spoken to in a check of 223 licensed premises on Saturday 25th March according to a report from the BBC. Police and the Security Industry Authority (SIA) acted after concerns raised by the public. Pubs and clubs in Cardiff, Barry, Merthyr, Pontypridd, Bridgend, Neath, Port Talbot and Swansea were all visited at the same time. By law, door supervisors must obtain an SIA licence. Those without one are committing a criminal offence, which carries fines of up to £5,000 or six months prison sentence. And local authorities have begun to use provisions of the Licensing Act 2003 to close down fast food outlets which are magnets for late night trouble. The Warwick Pizza and Kebab shop in Carlisle, Cumbria, was refused a post 2am licence to serve hot food. Police said that the area around the takewaway were ‘without a doubt’ the city’s worst area for alcohol related violent crime. 48 incidents were reported last year to November 24th. And in Blackpool the Funny Boyz takeaway has been closed at a specially convened meeting…

Punch Taverns has drops plans for a judicial review against Leeds City Council

HEALTH & SAFETY / LICENSING Live event industry Punch has dropped claims that the conditions placed on four of its pubs in the city, which included the fitting of a fire alarm in one premises and a requirement to carry out safety checks at another, were unlawful under the Licensing Act have failed. The High Court upheld the magistrate’s appellate decision of September 7 2005 itself upholding the Local Authority’s position that the conditions on the licence were not “unnecessary or disproportionate” (The Publican, September 19). Punch had been pressing for a judicial review of the case in London’s High Court, but last week pulled out, saying it was “better to try and work with Leeds Licensing Authority outside of the courts”.

JD Wetherspoon loses appeal over Guildford pub

HEALTH & SAFETY / LICENSING Live event industry JD Wetherspoon loses appeal over Guildford pub: Regina (J D Wetherspoon Plc) v Guildford Bourough Council The Times 14 April 2006 Pub chain owner JD Wetherspoon has lost its High Court challenge against Guildford Borough Council. The company wanted the high court to overturn a decision by the local authority that effectively blocked its Lloyds No 1 pub gaining a three-hour extension. Guildford Council blocked the extension after claiming in contravened its cumulative impact policy. Wetherspoons had insisted the policy should apply only to new premises – the Rodboro Buildings venue was converted from an existing JDWetherspoon pub (and coincidently is next door to the Academy for Contemporary Music where the Editor of Music Law Updates has taught!). Lawyers for Wetherspoon argued that the Guildford licensing authority’s refusal to grant its application was undermining the new licensing regime. Sir Richard Beckett, QC, for the pub chain, claimed that the council was effectively enforcing the old 11pm closing time by the back door and said that the council’s policy was contrary to the 2003 Licensing Act. He argued that the authority had adopted a “cumulative impact policy” for Bridge Street because of the…

Select Committee and Better Regulation Commission both damn DCMS role in new licensing regime

HEALTH & SAFETY / LICENSING Live event industry A new Select Committee report damns the Department of Culture Media and Sport’s poor management of the introduction of the new Licensing Act 2003 and warns that this must not be repeated when the UK’s new gambling regime is introduced. The cross-party select committee said that pub landlords, councils and residents were put under “unnecessary stress because of late guidance, inconsistent advice and unclear information from the department”. Committee chair Phyllis Starkey said that the “dilatory” approach of Culture Secretary Teresa Jowell’s department was “completely unacceptable” and concluded it “failed to administer the transition period effectively”. The responsible minister is James Purnell MP. Shadow Secretary of State for Culture, Media and Sport, Hugo Swire MP, added this: “Clearly the Government’s handling of the new licensing laws has been a shambles, and it is local authorities, village halls and community centres who are left to deal with the mess and the bill. Ultimately, council taxpayers will be left paying for the Government’s mistakes. At times, the Department has seemed gripped by inertia and has refused to see the scale of the chaos before them. Most worrying is the admission that some licence applications…

Police bid to defy CPS advice over absent licence-holders

HEALTH & SAFETY / LICENSING Live event industry South Yorkshire Police are hoping to prosecute a Barnsley licensee for going on holiday and leaving a person in charge who did not hold a personal licence to sell alcohol – despite advice from the Crown Prosecution Service (CPS) that “no offence had taken place”. The Publican reports that the police policy is against guidance from the Department for Culture Media & Sport (DCMS) and LACORS, the local authority co-ordinating body. The case revolves around Tracy Elrington, who was forced to return from a holiday in Spain after her pub, the Mount in Barnsley, was the subject of a closure order because there was no one with a personal licence was present to sell alcohol at the premises.There is some confusion over whether the holder of the premises licence, who must authorise the sale of alcohol, need be present. This is coupled with the fact that closure orders are available to the police where there is disorder, or an imminent risk of disorder, breaking out. So the problem with the Police’s view is that the move to prosecute is a difficult one to justify: Admittedly there seems to be a lack of clarity in the…

Edinburgh Fringe venues fear closure as cost of licences soar

HEALTH & SAFETY / LICENSING Live Event Industry Fringe venues might be forced to shut down because of “crippling” increases in their licences introduced by Edinburgh City Council. Organisers at Fringe venues believe the move will jeopardise the very existence of the Festival, discouraging artists from performing in Edinburgh. The amended licensing law will affect not only performing and outdoor Fringe venues, but also a wide range of businesses across the city, as varied as riding schools, sex shops, zoos, indoor sports or late-hours catering. For small venues of fewer than 200 seats, the fee for a temporary performance licence has jumped to £440 from £127 in 2005. The fees will increase to £620 next year and will then jump to £800 in 2008. Larger venues of more than 1,000 seats will pay £1,320 this year, compared with £295 in 2005, while in 2008 they are expected to pay as much as £2,400. Edinburgh City Council said the authority had been operating at a deficit of £177,000 and had to recover the losses. The Council has pointed out that that following the Civic Government (Scotland) Act, which came into force in 1998, licensing schemes had to operate on a cost-recovery basis The 8…

Bombay court lifts ban on bar dancing

HEALTH & SAFETY / LICENSING Live event industry The High Court of Bombay has recently lifted a ban on dancing in bars which had put 75,000 bar dancers out of work, had hundreds more arrested and lost the bar owners substantial amounts of money after income dropped in the aftermath of the Maharashtra State Governement’s decision. Over 700 bars in Bombay and 600 in the state were forbidden to have women dancing to Bollywood hits as entertainment for mostly male customers. The Government can appeal the decision to the Supreme Court in India. The High Court ruled the band discriminated against the dancers. The Times 13 April 2006

Massive Police raid threatens the Fridge’s future

HEALTH & SAFETY / LICENSING Live event industry A massive raid by the Metropolitan Police has meant that the Fridge Nightclub may be forced to close its doors. The Met wants to make the owners of the Fridge club, in Brixton Hill, reapply for their licence. A police spokeswoman said officers intended to apply for the review of the club’s premises licence under section 51 of the Licensing Act 2003. The move follows a two-month undercover operation by the Met’s clubs and vice unit targeting dealers working in the club. Intelligence received led to 200 officers storming the club’s Polysexual night at 11pm on Saturday 22nd April. Eleven arrests were made and three men will appear at Horseferry Road Magistrates’ Court charged with supplying class-A drugs. the Licensing Act 2003 introduced additional powers for local authorities and the police and gave local people a chance to have their say Anyone living or trading within the vicinity of a newly licensed premises can apply for a review of the licence if they can show that public safety is at risk or it is causing an increase in crime and disorder or public nuisance .,,1755314,00.html

Testing times for new clout on licensing

HEALTH & SAFETY Live event industry ARTICLE LINK By Cllr Jonathan Myerson A fascinating ‘insiders’ view by a Labour councillor of a licensing decision at Local Authority level (in the London Borough of Lambeth where the Fridge is located, see above) on whether or not to permanently close a venue with violence and drug problems.,,1761572,00.html#article_continue

Canadian court happy to enforce US copyright infringement judgement
Copyright , Internet / May 2006

COPYRIGHT Internet ARTICLE LINK By Kenneth A Dekker Citing the internet’s unique potential “to cause harm anywhere and everywhere”, Madam Justice Lax of Ontario’s Superior Court of Justice enforced a New York District Court judgment earlier this month against the operators of Ontario-based websites that facilitated the illegal copying and downloading of movies. As the New York court had properly taken jurisdiction and the defendants could establish none of the very limited defences to enforcement, such as a denial of procedural natural justice, fraud or public policy reasons, the judgment was enforced.

Artist re-sale bill introduced in Australia
Copyright / May 2006

COPYRIGHT Fine art ARTICLE LINK By Orana Swan and Justin Fung The Artist’s Resale Rights Bill 2006 (Cth) is expected to be introduced soon into Parliament. The Bill seeks to grant artists a share of the resale price each time their work is resold. Resale royalties seek to reward artists as the value of their work increases, which usually occurs after the initial sale by the artist For the UK position see the article application of artist re-sale rights by Emma Stoker, solicitor ( Artist’s Resale Right Regulations 2006 ) in April 2006 archive.

Apple vs Apple By By Nancy B. Adams, MacNewsWorld

CONTRACT / TRADE MARK Internet, record labels ARTICLE LINK  A neat update on the current litigation over the Apple mark which is primarily centered on the agreement between Apple Computers and the Beatle’s Apple Corp in 1991 where the computer firm said it wouldn’t use the Apple mark in connection with the distribution of music …. “It’s an interesting contract interpretation question, since today’s understanding of what is content versus services seems not to have been the understanding at the time the language was agreed upon” see also and see the article Apple SuesApple Again by Katherine McGinnis in E-Tips Volume 4 No 21

Extend the term: Royalty Rights for Musicians
Copyright , Record Labels / May 2006

COPYRIGHT Record labels ARTICLE LINK;  A useful synopsis with a slightly misleading headline – its royalty rights for labels at the moment! See also the article by Ben Challis on this topic ‘Extending The Term’ in the ARTICLES section on this website

The economics of piracy

COPYRIGHT Record labels, music publishing, internet ARTICLE LINK –  Adam Singer , CEO of the MCPS-PRS Alliance makes some sensible comments about the economics of piracy – and Adam points out that in the main issue is about pricing – with a clever lesson from history – “In 1784, William Pitt the Younger had the same problem with tea smuggling. The duties were high and there was much rhetoric about a moral duty to pay. Pitt tackled this by reducing the import duty on tea from 119% to 12.5%. The smuggling of tea ended overnight, revenues from duties rose, and he neatly illustrated that smuggling (or piracy) was more to do with economics than morality”

Apple face new patent claim
Internet , Patents / May 2006

PATENTS Internet More fun for Apple (computers)! Added to the trade mark claim from Apple Corp, M&C Tech report that Inc. has filed a counterclaim against the computer company alleging that Apple’s iTunes Music Store, iTunes software, iPods, and Apple QuickTime applications for infringing on four of Burst`s 10 U.S. patents. The Santa Rosa based developer of fast streaming media technologies filed the counterclaim in the San Francisco Federal District Court in response to a suit filed by Apple back in January of this year. Apple sought a declaration that Burst`s patents are invalid and Apple does not infringe on them; Burst’s counterclaim appears to be and either/and/or: Either Apple pay royalty fees for the infringing products and/or an injunction against further infringement. Burst won a settlement in a similar dispute with Microsoft in March 2005 with the PC giant paying Burst $60 million for a non-exclusive license for Burst’s patents. In Burst’s new April 17th filing to the federal district court, it alleges that Apple has infringed on its patents 4,963,995; 5,995,705; 5,057,932 and 5,164,839 that were filed from 1990 to 1992, claiming Apple’s success is crucial on the audio and video-on-demand media delivery solutions. The patents include specific apparatus or methods developed by Burst on…

France shows law-makers how not to intervene in technology issues
Copyright , Patents / May 2006

PATENTS, COPYRIGHT Technology ARTICLE LINK: by Professor Michael Geist . In our second link to articles by Professor Michael Geist, here Professor Giest examines the recent legislative moves in France to ensure there is interoperability between digital products – in effect Apple will have to open up its technology and software to allow competitors make compatible devices: Because of this iTunes have threatened to pull out of the French market because of a law promoting ‘state sponsored piracy’. Geist argues that the “intersection between law and technology is particularly challenging when legislators seek to regulate or tinker with technology. Businesses may fear overregulation and a global rush to match the French parliament’s recent foray into mandated compatibility, but a sound policy designed to protect competition and consumer rights is in everyone’s best interests”

Fort Lauderdale pirate station shut down
Media / May 2006

MEDIA Radio Agents with the Florida Department of Law Enforcement have shut down a Fort Lauderdale based creole / carribbean music broadcaster Sak Pase Compas – the seventh pirate station the FDLE has dismantled in a year. Junior K. Pierre (41) of Fort Lauderdale, and Willem Michel (32) of Lauderhill, were arrested and charged with operating an unlicensed radio station. Officers seized the station’s radio equipment, including a transmitter, mixing board, CD’s and microphones, she said. Pirate stations are frowned upon as they (a) block and/or interfere with licensed stations (b) could block emergency / public safety messages and (c) interfere with other broadcasts. The Miami Herald reports that the FDLE recently confiscated pirate radio equipment in after airline pilots complained it interrupted their transmissions. Florida anti-piracy law went into effect last summer, making interfering with signals from licensed public or commercial stations, or broadcasting without a license a third-degree felony. The Fort Lauderdale case began in March with a complaint from the Federal Communications Commission that was forwarded to FDLE. The FCC regulates radio stations in the United States and is currently investigating ‘payola’ claims against four of the USA biggest radio groups.

EU to propose new piracy laws
Copyright , Record Labels / May 2006

COPYRIGHT Film, television, record labels The European Commission is to recommend common European sanctions against counterfeiting and piracy of goods, including custody provisions of at least four years in prison and fines between E100,000 and (£70,000) and E300,000 (£210,000). Other possible measures are the confiscation or destruction of the objects, and a permanent or temporary ban on offenders from engaging in commercial activities. The seizure of counterfeited goods at the borders of the European Union increased by 1,000 percent between 1998 and 2004, with 103 million counterfeited and pirated items seized in 2004, Commission figures show. The EU says that different penalties in the 25 EU countries make it difficult to combat counterfeiting and piracy effectively. The draft legislation deals only with sanctions for infringements as physical product and does not cover the downloading of music via the Internet for private use.

Is the EMI/Universal ‘Napster’ litigation about to backfire on the majors?

COMPETITION / COPYRIGHT Record labels US district judge Marilyn Hall Patel has ordered Universal and EMI to hand over privileged documents relating to a federal government antitrust probe into the major record labels failed online services Pressplay and MusicNet. That investigation started in 2001 and was abandoned in 2003. At the heart of this demand for new documents is the question of whether or not EMI and Universal colluded on Pressplay and MusicNet in such as a way as to ‘discourage digital downloading’ – thereby protecting their CD business. The original claim in this case stems from the ongoing 2003 proceedings resulting from Bertelsmann’s investment in the original ‘illegal’ Napster. EMI and Universal took legal action against the Bertelsmann investment, arguing that the investment kept the original Napster running for longer than it could have done on its own thereby exacerbating online copyright infringements. However the requirement by Judge Patel is rather interesting – looking beyond the core issue in the case (the illegality of Napster’s services) and rather looking at the legality of the plaintiff’s business activities in as much as they are relevant to the case. It is not the first time the idea that the majors actively…

The ‘unintended consequences’ of the DCMA

COMPETITION/COPYRIGHT Internet, record labels, film, television ARTICLE LINK: By Timothy B Lee Pointing out that the modern PC industry wouldn’t exist without ‘reverse engineering’ and multi platform compatibility (Microsoft’s dominance accepted!) this article explores the unintended consequences of the US’s Digital Millennium Copyright Act. Congress passed the Digital Millennium Copyright Act (DMCA) which includes a clause prohibiting the “circumvention” of digital rights management schemes. It is a federal crime to transfer a protected DVD to your iPod for example. Congress hoped to deter piracy. But the practical effect has been rather different. The DMCA gives incumbents a powerful weapon against competitors seeking to build products that are compatible with their own. If they refuse to license their copy protection schemes to competitors, any compatible device a competitor might build is likely to be ruled a “circumvention device” under the DMCA, even if it’s never used for piracy. That allows the platform creator to effectively control who may create devices for that platform.

Mobile television exempt from federal regulation in Canada
Internet , Media / May 2006

MEDIA Telecommunications, television, internet The Canadian Radio-television and Telecommunications Commission (CRTC) has announced that mobile television broadcasting services operated by Bell Mobility Inc, TELUS Mobility and Rogers Wireless Inc, in conjunction with MobiTV Inc (MobiTV), fall within the Exemption Order for New Media Broadcasting Undertakings (New Media Exemption Order) and are exempt from federal regulation, including content and Canadian ownership rules. All three wireless carriers provide subscribing customers with real-time access to audio-visual content on wireless handsets. The US-based service MobiTV converts video content to a format compatible with mobile browsers and handsets and provides the servers and connections to allow video streams to travel via the Internet. The CRTC found that MobiTV sends the television signals by the Internet to the Internet gateway of the mobile carrier, and they are then routed to an appropriate tower and transmitted wirelessly for the last mile to the user’s handset, where the user connects to the Internet with a web browser to access the television signals. Thus, because they were both “delivered and accessed over the Internet”, the CRTC concluded that the services fell within the New Media Exemption Order From a summary by Nick Wong in E-Tips Volume 4 No 21, a publication…