European Commission finally reopens Sony BMG review
Competition , Record Labels / July 2007

COMPETITION LAW Record labels The European Commission has reopened its antitrust probe into the merger of Sony’s recorded music division and Bertelsmann’s recorded music divisions which created Sony BMG – the second largest music company in the world. The commission halted its review of the merger in March after both companies failed to produce crucial documentation on their activity in the European market. “The file is finally complete and the probe has been re-launched,” said a Commission spokesman. A new deadline has been set, with a ruling expected by 10th October. The delay has had significant impact on the industry – whilst the music publishing arms of Universal and BMG have been allowed to merge (after a significant shedding of certain catalogues by BMG including Zomba) the delay is not helpful for Warner Music Group which still looks like it would like to buy EMI – and clearly EMI is up for sale and on the verge of signing itself away to private equity firm Terra Firma. The resurfacing of merger issues could hinder any last-minute bids by Warner for the major.

Swedish file sharer’s fine upheld
Copyright , Internet , Record Labels / July 2007

COPYRIGHT Record labels, internet The Court of Appeal in Sweden has upheld a 20,000 kroner fine imposed on a 45-year-old man from Borås by his local District Court for illegally distributing music on the internet. The Court of Appeal upheld the fine imposed on the man for uploading four copyright-infringing tracks using the DirectConnect file-sharing network. The sentence related to only four songs and the fine imposed of SEK 20,000 (US$2,831) means that it cost the perpetrator SEK 5,000 (US$708) per song. In addition, the injured party has the opportunity to seek damages.

Australia – High Court confirms deep-linking is illegal
Copyright , Internet / July 2007

COPYRIGHT Internet The High Court of Australia today refused to grant leave to hear an appeal by Stephen Cooper, the operator of the website and his Internet Service Provider who had earlier been found guilty of copyright infringement. Mr Cooper’s website was described in an earlier Federal Court decision as a “carefully structured and highly organised site” which included hyperlinks to facilitate the downloading of infringing copies of recorded music. The High Court rejected Mr Cooper’s application stating that it had insufficient prospects of success to warrant a grant of special leave. The refusal reinforces the decision of the trial judge and Full Federal Court who held that Mr Cooper had authorised copyright infringement. The Full Court had also found that the ISP, E-Talk/ Com-Cen, and its director, Liam Bal – labelled the “controlling mind” – had failed to take reasonable steps to prevent copyright infringement and instead had sought to achieve a “commercial advantage” from advertising on Cooper, E-Talk/ Com-Cen and Bal have been ordered to pay the costs of the record companies for both the original proceedings, the appeal and the special leave application in the High Court.

UK politicians see need to ‘extend the term’
Copyright , Record Labels / July 2007

COPYRIGHT Record labels A UK Parliamentary Committee has come out in support of the UKL record label’s position that copyright protection for sound recordings must be extended beyond 50 years to prevent veteran musicians like Cliff Richard and Paul McCartney from losing royalties in later life. The duration of copyright in sound recordings under the Copyright Designs and Patents Act 1988 stands at 50 years. Songwriters (for both music and lyrics) are protected for 75 yeasr from the death of the last surviving author and the BPI have pointed out that the copyright protection for recoridngs in the United States is 95 years from release. In Australia it is 70 years. However the Gowers Review of Intellectual Property, commissioned by Chancellor of the Exchequer Gordon Brown and released in December, rejected calls to extend the protection. Andrew Gowers, who headed the review, said that longer copyright terms would increase the costs for consumers and companies that play music. The parliamentary report argues that Gowers examined the situation from a purely economic point of view and had not considered the moral rights of artists to own and control their intellectual property. The committee called on the government to lobby the European…

UK recorded music industry awarded substantial damages against CD Wow
Copyright , Record Labels / July 2007

COPYRIGHT Record labels The High Court has ruled that that web based ‘Etailer’ CD Wow must pay significant compensation for illegal imports into the UK and the British Phonographic Industry, representing the major record labels, has obtained freezing order over CD Wow’s Hong Kong assets. The Hong Kong based business had been illegally importing CDs and music DVDs into the UK from outside the EEA and the damages, estimated to be £40 million, is the largest damages award ever made in favour of the BPI. BPI General Counsel Roz Groome, who spearheaded the industry’s six-year case said: “CD Wow have consistently broken the law, ignored High Court rulings, and have continued to trade illegally throughout. Clearly the courts have lost patience with this rogue retailer and the message is clear; any company seeking to engage in this type of illegal trade will face the toughest sanctions. The BPI will use this landmark ruling to take firm action against any other retailers that import illegally.” The sum awarded to the record industry represents damages and interest for the infringements of copyright that the retailer has caused since January 2004. This award follows the court’s finding in March 2007 that CD Wow…

US 9 th Circuit reverses the District Court’s decision in Google v Perfect 10
Copyright / July 2007

COPYRIGHT All areas ARTICLE LINK: By Edward F. Maluf and Sheila M. Pierce One of many functions performed by Google’s search engine is the delivery of thumb-nail sized images rather than text in response to a query. Perfect 10, an adult entertainment publisher, sued Google and, Inc. for copyright infringement, alleging that Google retrieved Perfect 10’s copyrighted images and stored and/or displayed them on Google’s server. Perfect 10 objected to Google’s practice because Perfect 10 was exploiting its copyrighted images by selling them for download to mobile phones, where the images appeared in a thumbnail-sized format identical or nearly identical to the version appearing after a search on the Google service. Perfect 10 filed a motion seeking injunctive relief, asking the court to order Google and Amazon to stop displaying thumbnail images of Perfect 10 models in its image search results and to stop users from linking directly to third-party sites that host and serve infringing full-size images. The District Court upheld Perfect 10s claim for copyright infringement because Google stored Perfect 10’s images on its own servers. However the District Court did though it unlikely that Google would be found either contributorily or vicariously liable for any use…

Foley says relax
Artists , Trade Mark / July 2007

TRADE MARK Artists Thatcher’s children will be familiar with the band Frankie Goes to Hollywood. The band had a number of chart hits. The lead singer was Holly Johnson, although the band also had (at various times) four other members. Johnson left to pursue a solo career in 1987, upon which the band ceased performing. However, they reformed, minus Johnson and with a new lead vocalist, for the ‘Bands Reunited’ TV programme in 2003. In April 2004, Johnson applied to register Frankie Goes to Hollywood as a trade mark. The remaining band members opposed the application, citing an earlier right protected by passing off and bad faith. Mr Hearing Officer Foley allowed the opposition on both grounds. The key issue for s.5(4) (passing off) was whether the goodwill gravitated to Johnson alone, as the lead singer, or whether it could be attributed to the band as a whole. It was irrelevant that Johnson had thought of the name, and it was likewise irrelevant that it was somewhat creative. The legal arrangements in force meant that, at the time Johnson left the band, it existed as a partnership at will, meaning that any goodwill attached to the partnership, rather than its individual…

Rockbass not valid trade mark
Artists , Trade Mark / July 2007

TRADE MARK Artists ARTICLE LINK From The IP Kat Advocate General Eleanor Sharpston has rendered her opinion in case C-301/05  Hans-Peter Wilfer , this being an appeal to the European Court of Justice, Luxembourg, from a decision of the Court of First Instance (CFI) involving Wilfer’s application to register Rockbass as a Community trade mark for guitars, technical sound equipment, amplifiers and the like. The application was rejected on the basis that the word was sufficiently descriptive to be incapable of serving as a trade mark; the Board of Appeal and the CFI agree.