The Gower’s Review on intellectual property
Copyright / January 2007

COPYRIGHT All areas Link to the Gower’s Review Report on Intellectual Property which was published on the 6th December on the HMT website . Statement by the IFPI’s Chairman John Kennedy in response to the leaked news that Gower’s says “don’t extend the term” “If the Gowers Review has indeed decided not to recommend the equalisation of the Copyright Term then that is a big disappointment but not a complete surprise to the music industry.  There have been rumours for a time – founded or unfounded – that Mr Gowers did not think it appropriate. However, this report is only a recommendation, and it is the government which will make the final decision. At the end of the day, it will be an interesting test of how future Labour governments will conduct business. The UK music industry has thrived over the years, producing great talent, paying taxes, generating employment and maximising overseas revenues. The music industry is facing tremendous challenges but even now the UK music industry punches above its weight on the international stage. I have often asked on behalf of the UK music industry shouldn’t we have a government that each day when it comes to work, asks…

New Zealand copyright bill reaches parliament
Copyright / January 2007

COPYRIGHT All areas New Zealand’s Copyright (New Technologies and Performers’ Rights) Amendment Bill which is awaiting its first reading in Parliament, puts a maximum penalty of a $150,000 fine and five years in prison for anyone caught selling devices or publishing information which could be used to circumvent technology used to protect digital copyright. The current Copyright Act bans this but has no criminal penalties. However the new bill is not without critics and Colin Jackson, president of non-profit society InternetNZ, calls the anti-circumvention clauses a “toxic provision” and warns they could be used to “suppress all kinds of legitimate valuable work and speech”. The Copyright Amendment Bill also stops people from removing information from files, such as terms and conditions of use or who owns the copyright. The Bill does allows people to crack digital rights for personal use, and libraries, archives and educational institutions can also crack codes provided this is to correct software errors, make software interoperable or to do encryption research. The bill would allow format shifting – converting CDs to MP3s, for example and consumers would be able to make one copy of a song they own for personal use for each device they own – although…

Hamsard 2786 Ltd / Academy Music Holdings Ltd
Competition , Live Events / January 2007

COMPETITION Live event industry The Competition Commission (CC) has provisionally decided that the proposed acquisition of a controlling interest in Academy Music Holdings Limited (Academy) by Hamsard 2786 Limited (Hamsard) would lead to a loss of competition in relation to certain live music venues in London. Hamsard is jointly controlled by Live Nation (Music) UK Ltd (Live Nation) and Gaiety Investments Ltd. Through its ownership of Mean Fiddler Music Group Ltd, Hamsard operates live music venues in London, including the Astoriaand the Forum. It also has a management contract for the Wembley Arena. Academy owns the Shepherd’s Bush Empire (SBE), and the Brixton Academy as well as a number of other venues in London and elsewhere. Live Nation owns the Hammersmith Apollo, and a number of theatres in London. It also owns venues (mostly theatres) in 20 other cities in the UK. The Competition Commission Inquiry Group has concluded that the acquisition is expected to result in a substantial lessening of competition. Inquiry Group Chairman, Diana Guy , said: The extent to which different live music venues provide alternatives for artists, agents and promoters depends on a number of factors, including capacity, ambience and the type of events generally held…

EC to investigate Universal – BMG music publishing tie up
Competition , Record Labels / January 2007

COMPETITION Record labels Perhaps unsurprisingly in light of the comments by the European Court of Justice when they annulled the European Commission’s approval of the Sony-BMG record label merger, the European Commission has extended its investigation into Universal’s $2.2bn (£1.12bn) acquisition of BMG’s music publishing business by up to 90 working days (to April 27th 2007). The combined Universal Music / BMG Music would have an appoximate 22% of the music publishing market. Both BMG and Universal Music currently have 11% market shares, behind EMI Music’s 20% share and Warner’s 15% share but ahread of and Sony Music (7%). The regulator wants more time to consider whether the deal will undermine competition. The inquiry could last up to five months. In a statement Universal said that “although we understand why, in the current environment, the European Commission has sought more time for its review, we believe, as we have always done, that the merger will be approved” adding that Universal were looking “forward to working with the Commission over the next few months to complete the process.  The original Sony-BMG ECJ review was due to a law suit from the European trade association IMPALA which represents independent labels and IMPALA has promised to battle the Universal…

EMI and UMG settle on Napster
Competition , Internet , Record Labels / January 2007

COMPETITION Record labels, internet EMI Music and the Universal Music Group announced yesterday that they have reached a conditional settlement with investment firm Hummer Winblad over its $13 million investment in the late nineties in the original Napster. The settlement is conditional on trial Judge Marilyn Patel revoking her order against the record labels to produce certain documents which Humer Winblad had originally said would show that the label’s original moves to develop their own download websites were anti-competitive. Hummer Winblad had always defended to label’s claim saying that their funding was to develop a new legitimate Napster but clearly the Supreme Court judgment in MGM v Grokster would have been worrying the investment firm. Less obvious is why the labels wanted to settle unless the documents ordered to be produced by Judge Patel (using criminal law exceptions to privilege) really are that damning. There have long been suggestions that the record label’s Musicnet and PressPlay opetrations were set up to prevent the development of a competitive digital market (although with iTune’s dominance this clearly failed): Limewire recently used the allegation as a defence to actions by the RIAA. MGM v Grokster see Law Updates August 2006 04-480 27th June 2005 Limewire see…

US mechanical rights agency withdraws streaming licence from Musicnet – but do they actually need it?
Copyright , Internet , Music Publishing / January 2007

COPYRIGHT Internet, music publishing Billboard has reported that the Harry Fox Agency, the US’s largest mechanical rights agency, has told digital music service provider MusicNet that it is withdrawing its proposed licence for ‘interactive streams’ because of a potential industry-wide dispute as to what kinds of licence are required on such services. The story highlights the legal arguments about what type of distribution (of content) a stream is – is it a ‘sale’ or a rental’ to the user – so administered as a mechanical right (eg by HFA in the US or the MCPS in the UK) or is it a ‘broadcast’ or transmission, in effect a perfoming right. The same confusion appears to apply to video on demand where the exact nature of the service is, in legal theory, an equally grey area. HFA have been renegotiating their licence agreement with MusicNet ever since the digital music company was acquired by investment firm Baker Capital in April 2005, at which point HFA claimed MusicNet’s existing licence, which was based on a 2001 agreement between the royalties agency and the Recording Industry Association of America (MusicNet was originally co-owned by three of the major record companies), was no longer…

China impose tight rules for digital music distribution
Internet , Media / January 2007

MEDIA Internet, broadcasting The Chinese government is set to impose new laws on digital music. The new measures will mean that all music products and music service operators will be required to obtain a central license from the Ministry of Culture. “ The “Guidelines on the Development and Management of Network Music” have the stated purpose of preventing problems, such as poor quality, pirated uploads and downloads, and content that “offends” ethnic groups or “affects social stability”. They will also ban the creation of ‘network entertainment firms’ funded by foreign investors and will see the government increase control over blogs and social networking sites. Whilst the new laws will primarily govern piracy in the internet and mobile space, they are also likely to have severe consequences for foreign companies looking to capitalise on the growth of digital music, especially in the mobile space.

China needs to develop mechanisms to collect broadcast royalties
Copyright / January 2007

COPYRIGHT Broadcasting Chinese radio and TV stations are expected to pay royalties on the music they broadcast from next year, when a set of fee collection methods and standards will be officially promulgated. The “methods and standards” are being drawn up by the Office of Legislative Affairs of the State Council according to a statement from the National Copyright Administration, who refused to be named. In 2001, the Chinese government amended its copyright law, requiring radio and TV stations to pay fees to copyright holders for playing their recordings unless they have reached other agreements on fees. However, specific methods and standards are yet to be set out and the Music Copyright Society of China had raised a motion to the legislative National People’s Congress (NPC) urging the process be pushed forward.

Liability for links site for operator and ISP host upheld in Australia
Copyright , Internet / January 2007

COPYRIGHT Internet A Federal Judge has said Google could be in breach of Australia’s Copyright Act because of its web links to unauthorised copies of copyright material. The statement that Google’s position was ‘untested’ by Justice Catherine Branson came as a full bench of the Federal Court upheld a finding that Australian website operator Stephen Cooper was liable for “authorising copyright infringement” on his (now defunct) Cooper had argued that his website which provided links to illegal download sites and services was analogous to that run by Google and was therefore lawful. Cooper had noted Google’s victory in a US court case this year against pornography publisher Perfect 10, in which Google’s linking to copyright material was said to be legal “fair use”. In a further legal development, the full bench of the Federal Court also found that the internet service provider that hosted the website was liable for authorising copyright infringement. The internet service provider, E-Talk Communications, did not operate the website, but Justice Branson noted that (a) E-Talk was aware of the copyright problems arising from the website and (b ) E-Talk took no steps to prevent copyright infringements from arising. Justice Branson noted, “Rather than withdrawing…

US Web site providers can take a deep breath!
Copyright , Defamation , Internet / January 2007

COPYRIGHT / DEFAMATION Internet ARTICLE LINK – The California Supreme Court has ruled that ISP’s are not legally responsible for content posted by third parties on their sites ( Barrett v Rosenthal ). Article by E J Sinrod at

PPL victory over unlicensed pub
Copyright , Live Events / January 2007

COPYRIGHT Live event industry A Burnley publican has been banned from playing music and ordered to pay costs of £1,500 after failing to take out a licence with Phonographic Performance Limited (PPL) to play recorded music. Pub clubs and venues which pay recorded music need both the usual PRS licence (for playing ‘songs’) and the PPL licence for the sound recordings they use. Plane Treet Hotel Proprietor Neil Cook, who was not present or represented in court, was warned by Mr Justice Briggs that he faced a fined of up to £10,000 if he played any music before bringing his licence up to date

Two home wins for Wayne Rooney
Artists , Trade Mark / January 2007

TRADE MARK / DOMAIN NAMES Artists ARTICLE LINK: By Sally Dunston, Bristows Two recent decisions by WIPO and Nominet on the domain names are reviewed and compared. See November Law Updates for more.

Knievel takes exception to Kanyevel
Artists , Image Rights , Trade Mark / January 2007

TRADE MARK /IMAGE RIGHTS Artists Motorcycle stuntman Evel Knievel is suing Kayne West for trade mark infringement over the latter’s “Evel Kanyevel” character who is featured in the ‘Touch The Sky’ promo video. West’s character is dressed in a jumpsuit similar to that which Knievel is famous for wearing recreates a stunt similar to one performed by Knievel in the 70s. Knievel, who has trade marks over his name and image, argues that the video is “directly counter to Evel Knievel’s long-established public persona, utterly inconsistent with his toy products and appeal to children, and harms the reputation of the Evel Knievel trademark and the Evel Knievel costume.” You cans see what our friends at the IPKat say And see

The Last Emperor’s image rights cannot be owned
Artists , Image Rights , Trade Mark / January 2007

TRADE MARK / IMAGE RIGHTS Artists The brother of the last Emperor of China, Aisin Giorro Pu yi, has lost a claim to protect his late brother’s image rights. Jin Youhzi (originally Aisin Giorro Pu Ren, now aged 88) filed the suit in Bejing saying that an official exhibition in the Forbidden City on his brothers life who ruled China from boyhood till his forced abdication in 1911 “violated the image rights of the deceased and hurt Pu Yi’s survivors”. The exhibition was in the former imperial palace of the Ming and Qing dynasties. Jin’s case which asked for the exhibition’s closure, the payment of legal costs and apologies by organizers to be printed in five national newspapers was first rejected on July 14 by the Beijing Dongcheng District People’s Court before the appeal went to Beijing No. 2 Intermediate People’s Court. The appellate court found against the claimant saying that Pu Yi was a public figure whose life was closely connected with China’s history and these rights were in the public domain.

As a ‘famous sportsman’ has his right to privacy upheld, the Court of Appeal confirm a right of privacy in Niema Ash v Loreena McKennitt and Prince Charles keeps his journals private
Artists , Privacy / January 2007

PRIVACY Artists Both these cases involved Mr Justice Eady and in the first case, simply known as CC v AB, he had to decide whether or not to allow injunctive relief to prevent a certain ‘AB’ spilling the beans about sportsman CC’s adulterous affair with AB’s wife (N). Once AB knew about the fling he decided to go public both for revenge on and of course to get some money. CC sued for interim injunctive relief to stop AB spilling the beans on the basis that any such communication would either be a breach of confidence or harassment under the Protection from Harassment Act 1997 (AB had allegedly made a number of calls to CC and this matter was not resisted). The article 8 right to privacy under the Human Rights Act 1998 was also argued (against the context of the Article 10 rights to a freedom of expression). AB argued that an adulterer (ie CC) could never prevent the release of information about an adulterous affair. Eady J did not agree with this final point and said that there could be no blanket rule that an adulterer could never restrain the publication of matters relating to his adulterous relationship and even an…

Fisher wins 40% of future earnings from ‘A Whiter Shade of Pale’
Copyright , Music Publishing / January 2007

COPYRIGHT Music publishing Matthew Fisher, a founding member of 1960s rock group Procol Harum, has won a High Court battle over who wrote their hit song A Whiter Shade of Pale. For almost 40 years, the music in the song has been credited to lead singer Gary Brooker and the words to lyricist Keith Reid. Mr Justice Blackburne decided that the keyboard player, who played the distinctive organ melody on the 1967 recording, made “a distinctive and significant contribution to the overall composition” and this was “quite obviously, the product of skill and labour on the part of the person who created it”. Mr Justice Blackburne ruled Fisher was entitled to 40% of the musical copyright (or 20% of the whole copyright). He shares the musical copyright with Gary Broooker who said that the decision had ‘shattered’ his faith in British justice. However Fisher’s claim for back royalties of up to £1m was rejected and his claim was backdated to May 2005 (when the claim was brought). Both parties face substantial costs bill. Brooker was granted leave to appeal.

Majors to take action against
Copyright , Internet / January 2007

COPYRIGHT Internet Not unsurprisingly Universal, EMI, Warners and SonyBMG have taken legal action against rogue Russian download site They have filed a copyright infringement suit in New York against Mediaservices and which seeks more than $1 trillion in damages. The labels have accused the Russian download site of being a “notorious online black market” and a “poster child” for Internet music piracy. is thought to be the world’s highest-volume online seller of unlicensed music, with 5.5M subscribers and an annual revenue of $30M. The US has already made its closure a condition for negotiations with Russia on joining the World Trade Agreement. claims to pay royalties to Roms, but the music industry argues that it has “no rights… whatsoever” to collect royalties. Both Visa and MasterCard have previously stopped all card payments to the site:

Judge refuses to bow to peer pressure Peer v Editoria Musical de Cuba

COPYRIGHT Music Publishing ARTICLE: By Julian Turton & Stuart Barry, Swan Turton One of the world’s leading independent music publishers, Peer Music (“Peer”), has tried and failed to persuade the English court to declare that it is the owner of the entire UK copyrights in thirteen songs composed by six Cuban composers, all of whom are dead. Peer claimed its rights under original agreements entered into in the 1930s and 1940s with the composers and then under subsequent agreements entered into principally in the late 1990s and early 2000s with their heirs. All of these songs were subject to reversion under the 1911 Copyright Act which provided that rights for the final 25 years of copyright protection reverted to a “composer’s legal personal representatives“. These representatives were then in a position to assign or deal with those rights. Peer sought a declaration that the recent agreements it had entered into with the heirs of the composers constituted an effective assignment of those final twenty-five years of copyright protection under English law. The case was immensely complex and expensive. It involved a number of QCs and junior counsel addressing the court on issues of UK copyright and succession upon death. The…

The Right Image
Artists , Image Rights / January 2007

IMAGE RIGHTS Artists ARTICLE –  A new article on image /personality rights by Ben Challis will be published on Music Law Updates (under Articles) at the end of January 2007. In this article Ben examines current developments in the law in the United Kingdom which could be used to support the concept of a coherent ‘image right’ for celebrities. But Ben asks whether it is time for legislation to govern an area of such of obvious economic importance with s stand alone ‘image right’.

Articles / January 2007

Click here to download this article as a PDF file (.pdf) Does the UK need a stand alone image right for the new millennium? by Ben Challis, Barrister-at-law In this article Ben Challis examines current developments in the United Kingdom which could be used to support the concept of a coherent stand alone ‘image right’ for celebrities. But Ben asks whether it is time for legislation to govern an area of such of obvious economic importance. —————————————————- Celebrity ‘image’, ‘publicity’ or ‘personality’ rights are big business in the advertising and endorsement industries with stars as such as David Beckham and Kate Moss generating millions of pounds in revenue from the exploitation of their name, likeness and image. Until recently it would have been more than fair to say that “there are no image rights in English law, unlike the position in several other countries” but a number of recent court decisions have meant that this position needs to be re-examined. In jurisdictions where image rights do subsist, the development of the law usually follows one (or both) of two paths. The first is the development of an actionable right to privacy (or a ‘dignitarian’ right) and the second is the development…