European Commissioner calls for debate on format shifting
Copyright / July 2008

COPYRIGHT All areas Most consumers are under the misapprehension that they can make a private copy of a CD and put that onto a cassette, hard drive of their computer or other format – or make a back up copy of computer software – and this is perfectly legal. Well under UK law it most certainly is not – which is perhaps why The Gowers’ Report into IP law in the UK called for this area of copyright law to be revisited and indeed called for the legalising of private copying without compensation for copyright owners. The European Union Copyright Directive allows an exception for consumer private copying on condition that the right holder receives ‘fair compensation’ and many European countries achieve this by way of a levy on either blank discs or tapes or on copying technology. In all events supporters of the format shifting exception say that as there’s no harm to rights holders from the format shift, any compensation should be “zero”. But that is not currently accepted by some parts of the music, software and computer games industries. The Music Business Group, the umbrella group of trade bodies representing music managers, songwriters, publishers and performers responded…

Belgian newspapers bring second action against Google
Copyright , Internet / July 2008

COPYRIGHT Internet Codiepresse, the copyright collecting society for Belgian newspapers, has announced that they are suing Google for publishing and storing their content in the main Google search engine and its news aggregator, claiming damages of between 32.8 million Euros (£25.9 million) and 49.2 million Euros (£38.8 million). The organisation said that the losses were calculated by a professor at the University Libre de Bruxelles, based on articles stored by Google since the 13th April 2001 and Google News since it launched in Belgium in 2006. Copiepresse have already successfully sued Google once. In 2006 a Belgian court ruled in favour of a claim to have content removed from and Google News. Following that ruling, Google said: “It is important to remember that both Google Web Search and Google News only ever show a few snippets of text. If people want to read the entire story they have to click through to the web publisher’s site where the information resides. We believe search engines are of real benefit to publishers because they drive valuable traffic to their websites”. Here Google tried to put copyright owners on the backfoot saying “If publishers do not want their websites to appear in…

French courts holds eBay liable for sale of counterfeit goods
Internet , Trade Mark / July 2008

TRADE MARK Internet Two court decisions in France have left eBay reeling and the online commercial community nervous of further actions. Firstly a French court ruled that eBay must pay Hermes 20,000 euros for allowing counterfeit Hermes bags on its site. The court found that “By selling Hermes bags and branded accessories on the site, and by failing to act within their powers to prevent reprehensible use of the site… [both eBay and the seller] committed acts of counterfeiting and imitation of French brand names … to the detriment of Hermes international.” The court ordered that eBay must also publish the ruling on its homepage. Counsel for Hermes argued that eBay was more than a mere passive intermediary, instead: “eBay is an active player in the transaction because not only does it offer a number of services to improve the sale, but when it does not work well enough or fast enough, they intervene with the client…They are perfectly informed of the transactions since they take a percentage cut.” The IPKat adds that that it isn’t sure about the ruling adding that it “doubts whether someone at eBay really has knowledge of every transaction that is taking place” and that “forcing someone to…

Canada launches new copyright bill
Copyright / July 2008

COPYRIGHT All areas Canada , currently out of favour with its North American neighbours over its failure to implement what US considers to be acceptable copyright legislation, now has a new bill on that very matter. Industry Minister Jim Prentice is set to table a bill that will allow users to be fined up to $500 for each “personal use download” that they partake in through peer-to-peer file-sharing. The bill will also make it illegal to unlock cellphones, copy music-protected CDs to iPods, and copy time-shifted TV shows to PVRs. New provisions against anti circumnavigation – see New legislation to crackdown on digital copyright infringement at and see

“Fair Use” of Unlicensed Film Music: Premise Media v Lennon
Copyright / July 2008

COPYRIGHT Film & television By Tom Frederikse, solicitor, Clintons An unauthorised use of the song “Imagine” in a recent feature film has been approved by a US court as “Fair Use”. InPremise Media Corp LP (et al) v Yoko Ono Lennon (et al) [2008] No 08 Civ. 3813 (dated 2 June 2008), the US District Court of Southern New York denied the Lennon family’s request for an injunction to stop use of the song in a US film produced by Premise Media. The film, “EXPELLED: No Intelligence Allowed” which concerns the theory of “intelligent design” (aka creationism) plays a short excerpt of the well-known John Lennon track “Imagine” over “Cold War-era images of marching soldiers” and an “image of Stalin”. The film features several other well-known songs and the filmmakers obtained permission to include all tracks, other than “Imagine”. Yoko Ono and Lennon’s children, together with EMI Blackwood Music Inc, sought an injunction to stop distribution of the film and to recall existing copies. The filmmakers defended the copyright infringement allegation by claiming their placement of the song in the film was “Fair Use”, which the Court supported in refusing to grant the injunction. The US “Fair Use” defence is similar…

Culture Secretary open to “extending the term”
Copyright , Record Labels / July 2008

COPYRIGHT  Record labels  UK Culture Secretary Andy Burnham has said he would keep an “open mind” when it came to the copyright term for sound recordings, currently protected for 50 years in the UK and Europe, when speaking at the Annual General Meeting of UK recording royalty collecting society PPL. The record label’s campaign to extend the term has had produced a mixed reaction from Government. The UK government’s Gowers Review of intellectual property laws recommended that the copyright term for recorded music stay at the current 50 years, despite calls from across the record industry to increase it – either by bring it closer to the 95 years awarded to recordings in the US or to run parallel with the rights of composers and songwriters whose works are protected for their life plus 70 years. But EU Commissioner Charlie McCreevy has been more supportive of proposals for a term extension and Burnham said that he would “take a close look at McCreevy’s details when they are revealed later in the summer. I understand the issues and will engage constructively in the process and join in the debate with my European counterparts”. During a Q&A session that Burnham added that…

Virgin warns internet users to respect copyright
Copyright , Internet , Record Labels / July 2008

COPYRIGHT Internet, record labels Virgin Media will send letters to thousands of its own customers in households where music is either being downloaded or illegally shared as part of a joint approach to online piracy with the British Phonographic Industry (BPI). The BPI ultimately wants internet companies to implement a “three strikes and out” rule to warn and ultimately disconnect the estimated 6.5 million customers whose accounts are used for regular criminal activity (a procedure already in the process of being introduced in France). This news prompted a response from journalist Bill Thompson on the BBC website, calling continued attempts by traditional content owners to curb online piracy a “doomed enterprise as the growth of a fast internet coupled with the ability to make perfect copies of digital content means that all of the assumptions that underpin film studios, TV broadcasters and record companies have been stripped away, leaving them flailing around, threatening and suing the people who should be their best customers and hoping to persuade politicians to pass new laws to give them special privileges online. He did, however, acknowledge that the situation was changing saying “As more licensed download services become available, many offering songs without usage…

UK collection society extends remit to commissioned music
Copyright / July 2008

COPYRIGHT Film, TV PPL, the London based collection society that that licences recorded music on behalf of over 6,750 UK and international record companies and over 47,000 performers around the world has said that it will extend its remit to commissioned film and TV music. PPL collects over £100 million in domestic and global broadcast/new media revenues and public performance income which is then distributed and paid to record company and performer members. PPL has now advised The producers Alliance for Cinema and TV (Pact) that they are also able to act on behalf of the owners of music that has been commissioned for e.g. television or film productions.  Such music must exist in a recorded form, but it does not have to be issued as a commercial release – indeed, the sound master can constitute a sound recording. This means that television and film producers who have commissioned music and who own the copyright in the sound master should consider registering the music with PPL.  This will enable PPL to licence others to use the recording and to pay royalties to the owner when the recording is used. For more information contact

China sets up karaoke copyright collection system
Copyright / July 2008

COPYRIGHT All areas China ’s Audio and Video Copyright Collective Management Association has finally been set up in Beijing after a gestation period of 10 years to implement China’s “Copyright Collective Management Rule”. The association will manage audio- and video-related issues as well as assuming the duty of collecting karaoke copyright fees, previously discharged by the China Audio and Video Association. The new organisation will have power to take civil, administrative and even criminal measures against copyright infringers. However, this month also saw the news that BeeGee Robin Gibb, President of CISAC, the worldwide consortium of trade associations that represent songwriters and other creators, has called on the Chinese government to end all the copyright violations in China. Using the upcoming Olympics as a reason for focusing attention on the creative industries in the country, Gibb says that it’s not only the country’s mass pirated CD market that is a problem, questioning why Chinese broadcasters still do not pay royalties for music they use. Speaking at the CISAC General Assembly in Rome, the Bee Gee said: “How is it and how can it be that in China, the most populated country in the world and the organiser of the 2008…

London DJ arrested over leaked albums
Copyright , Record Labels / July 2008

COPYRIGHT Record labels The international recording industry today welcomed the arrest by UK police of a man suspected of selling a over 150 pre-release albums on eBay, weeks before their official release. The man, a DJ and music reviewer based in London, was arrested on suspicion of theft and money laundering.  The case centres on the alleged sale of pre-release copies of albums by artists including Foals, Delays, Grand National and Kelly Rowland and it is believed that he used his position to obtain promotional copies of albums from record companies which he then sold on. If charges are brought, it is thought this would be the first ever prosecution involving the sale of pre-release music in the UK.

US first sale doctrine does apply to promo copies
Copyright , Record Labels / July 2008

COPYRIGHT Record labels Music giant Universal Music Group has lost its court battle to stop an eBay trader from reselling promotional CDs he had bought from second hand stores after a US court found in favour of Troy Augusto who makes money by snapping up rare albums circulated as promotional copied by Universal and selling them on the online auction site. Universal accused Augusto of copyright infringement, saying that promotional copies were not authorised for sale to the public. Specialist music shops often sell promo albums or review copies that record labels send out to journalists and radio stations before the regular editions go on sale. Record companies have long maintained that they continue to own these items and can ask for them back at any time. They can be recognised by markings such as “For promotional use only” or “Not for resale”, visible on the record or CD artwork and sometimes on the disc label itself. US District Court Judge S James Otero dismissed the case and said that Mr Augusto was protected by the “first sale” doctrine in copyright law. This says that once a copyright owner gives away a copy of a CD, DVD or book, the recipient is entitled…

The Continuing Vitality of Music Performance Rights Organizations
Copyright / July 2008

COPYRIGHT All areas LINK Paper:  Presented by University of California, Berkeley Law Professor Robert P.Merges. In the document, Professor Merges warns that proposals to change the existing music IP rights system could stunt creativity in the United States and around the world. Merges warns that the more radical proposals would eviscerate or eliminate performing rights organizations, which could weaken all of the gains songwriters have made over the past century. A copy of Merges’ paper will be available online by Monday, June 16, at: and

Doyle and McPhail lose boy band Busted battle

CONTRACT Artists, music publishing Ki McPhail and Owen Doyle, who claimed claimed that they had been forced to sign away royalty rights worth £10 million (E12.4 million) after “threats” and “undue pressure” when they were sacked from the band in 2001 have lost their claim in the High Court in London. The pair claimed that they were owed the money for songs they had co-written with James Bourne and Matt Willis when the group formed earlier that year including the massive Year 3000 and That’s What I Go To School For. Mr Justice Morgan dismissed all their claims and criticised the evidence they gave in court saying of McPhail “If he did believe the evidence he gave to the court, it can only be because he has indulged in very extensive self-serving reconstruction in the period between the relevant events and the time of the trial and has now convinced himself that his reconstructed version of events really happened” adding that Doyle was “not a reliable witness” who “manifested a high degree of confusion and a failure to grasp the detail in relation to many of the significant events.” McPhail and Doyle then issued a statement that they were “disappointed” with the High Court ruling, but that they…

Hawthorne Heights agree to Victory album
Artists , Contract , Record Labels / July 2008

CONTRACT Artists, record labels US emo band Hawthorne Heights have agreed to drop their previously reported 2006 lawsuit against Victory Records and will release their new studio album through the US independent. Hawthorne Heights had sued Victory for breach of contract, copyright and trademark infringement, fraud and abuse. The label countersued claiming the band were simply trying to get out of their record deal so they could sign to EMI’s Virgin Records and subsequently sued Virgin, too, claiming that the major had paid the band an advance while they were still under contract and helped them to fight their legal battle.Tragedy struck last year when guitarist and vocalist Casey Calvert died suddenly of accidental ‘combined drug intoxication’ while the band were on tour. In a final chapter, last week, Victory Records announced that they will release Hawthorne Heights’ third studio album ‘Fragile Future’ on 5 August. Hawthorne Heights’ Drummer Eron Bucciarelli said “We now regret having begun the lawsuit we filed in 2006. We should not have listened to those, who, for whatever reasons, were then advising us to pursue this strategy. We are sorry for having put Victory Records and Tony Brummel through this ordeal, and regret any negative…

Crue sue manager number two
Artists , Contract / July 2008

CONTRACT Artists Motley Crue have issued legal proceedings against their former manager Burt Stein, and his companies B Entertainment and Gold Mountain Entertainment, alleging that he cost the band large sums of money by putting his own interests, and/or the interests of a specific band member who he also managed on an individual basis, ahead of the general interests of the group. The lawsuit, filed in the LA Superior Court on Wednesday is seeking both damages from Stein, and also court backing to their claim that Stein’s activities put him in breach of contract, thus rendering the manager/band agreement void and removing any obligations for the Crue to pay a cut of their income to him. This is seemingly a separate action to the dispute between the band and another former co-manager Carl Stubner, who was accused of damaging the band’s career and reputation, in the main by prioritising the career of Tommy Lee, who he had a separate individual management relationship with. The band and Stubner settled that dispute last month. Also from CMU Daily.

Atlantic and the Stone Temple Pilots go to court
Artists , Contract , Record Labels / July 2008

CONTRACT Artists, record labels Atlantic Records has issued legal proceedings in the US District Court in Manhattan against two members of Stone Temple Pilots accusing them of trying to prematurely end their recording contract with the Warner Music Group label. The suit against lead singer Scott Weiland and drummer Eric Kretz says the pair have threatened to stop performing under their contract and have indicated they would like to end the agreement unless Atlantic makes significant changes. The record company said in the suit it wants the group to record a seventh album and deliver up to two more if Atlantic decides to option these. The group, whose momentum was often curtailed by Weiland’s drug problems, had fallen apart shortly after a 2002 tour. In late 2003, the other two members of the group, guitarist Dean DeLeo and bassist Robert DeLeo, were released by Atlantic from their recording contract as they said they wanted to pursue separate careers. Atlantic said in the lawsuit that the group, Weiland, Kretz and a returned DeLeos were now touring successfully and had indicated its intention to record together again. The record company said its contract with Stone Temple Pilots was written under New York…

Licensing concerns expressed at public meeting
Licensing , Live Events / July 2008

LICENSING Live events The impact of temporary alcohol licences (Temporary Event Notices) for one-off events on policing are to be debated at a public meeting in Lewes, Sussex. The Sussex Police Authority – the body that holds the police’s purse strings – is expected to agree to lobby the government to make improvements to the system by which small scale events for less than 500 people (including staff and performers) gain temporary licences. In a joint report Chief Constable Martin Richards and authority Chief Executive John Godfrey said the events that don’t need permission under the Licensing Act 2003 can cause policing problems and considerable use of resources. Only the police can object to the grant of the licence but they are only given 48 hours (not working hours) to comment on the plans which they say often falls over the weekend when licensing officers may be involved on operations and unable to assess the impact of each individual application. If the police do object then a hearing must be held at least 24 hours before the event unless agreement can be reached. The officers are recommending that the authority press the government to make improvements to the system to…

Change of use allowed despite noise concerns
Licensing , Live Events / July 2008

LICENSING / PLANNING Live events and venues From The change of use of a former cinema in Cheltenham into ground-floor restaurants with a 1400 ncapacity nightclub above has been allowed after an inspector found that it would not harm residents’ living conditions, public order or highway and pedestrian safety. The council’s main concerns focused on the impact arising from people, some likely to be under the influence of alcohol, arriving at or leaving the club well into the early hours. However, the inspector noted that there were very few residential properties in the street and its immediate vicinity other than flats above ground-floor commercial uses. In her view, this gave some separation from noise and disturbance in the street below. She also held that some late-night noise and disturbance was to be expected in this central location. While recognising that a nightclub of the size proposed would almost certainly have some negative impact as a result of noise, disturbance and antisocial behaviour, she remarked that national and local policy directs such uses to town centre locations. The inspector observed that the appellant’s projections for arrivals and departures at the club reflected the more gradual dispersal pattern that has emerged since…

British ONiK users arrested for illegal downloading
Copyright , Internet / July 2008

COPYRIGHT Internet By Cassandra Williams, postgraduate student, The College of Law In 2007 British and Dutch police shut down ‘ONiK’, the member’s only BitTorrent tracker site. OiNK was championed by many filesharers as the internet’s most complete music source (of illegal music). ONiK focused on high quality files and featured trackers for pre-release material, which of course drew it special attention from record industry’s anti-piracy investigators. As a result a, flat on Teesside and several properties in Amsterdam were raided as part of the Interpol investigation – and there was a widely-publicised raid at the Middlesbrough home of OiNKs adminstrator, 24-year old IT worker Alan Ellis. Ellis remains on police bail for the charge of conspiracy to defraud and infringement of copyright law. His bail has been repeatedly extended, with the next deadline set for 1st July. According to the IFPI (the international organisation representing the major record labels), t he UK-run site leaked 60 major pre-release albums in that year alone. The site’s servers, which were based in Amsterdam, were also seized in a series of raids in October 2007. Now OiNK users who have allegedly uploaded material are being targeted by the police in Cleveland who have confirmed that…