German Collection society cannot licence ‘Grand Right’ in scenes from Disney musicals
Copyright , Live Events , Music Publishing / September 2008

COPYRIGHT Live events industry, music publishing File no.: I ZR 204/05 A German concert promoter, Ulrich Gerhartz (Stimmen der Welt Musikmanagement und Veranstalungs Gmbh) , who staged a show which contained excepts from a number of Disney musicals has been held liable for copyright infringement. The “The Federal Court of Justice (Bundesgerichtshof, BGH) decided that the performance of the various indentifiable pieces from different musicals could be considered as a “dramatic performance” under German Copyright Law (Urheberrechtsgesetz). The claimant, Disney Enterprises Inc., owns of the exclusive right of use and performance of the musicals “Beauty and the Beast”, “The Hunchback of Notre Dame”, “Lion King” and “Aida”. Disney sued a German concert promoter who had staged several shows under the title “The Musical Starlights of Sir Andrew Lloyd Webber and the Disney Musical Productions”. Both the Regional Court and the Appeal Court in Frankfurt decided in favour of Disney. The Federal Court of Justice has now dismissed the final appeal of the concert promoter. Under German law an author or other copyright owner must assign the performance rights of a work of music to GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte), the German performing right organisation. As in the…

India’s PPL cannot litigate in respect of unauthorised performances
Copyright , Music Publishing / September 2008

COPYRIGHT Music Publishing, collection societies Phonographic Performance Limited v Hotel Gold Regency and others (MANU/DE/0942/2008) From our friends at Spicy IP and the IPKat In a landmark decision, Phonographic Performance Limited v Hotel Gold Regency and others , the Delhi High Court has held that copyright societies such as PPL, representing the interest of the music companies, cannot initiate copyright infringement actions to protect the interest of their members against unauthorized public performances of sound recordings in India. The Court found that the Indian copyright statute only permits a copyright owner or its exclusive licensee to initiate an action for infringement. Since PPL is neither the copyright owner or the exclusive licensee of the sound recording of its member companies, it is debarred from initiating such actions against unauthorized communication of the sound recordings to the public through a radio broadcast or a telecast or any other public performance. Clearly this decision will create enormous difficulties for the copyright society PPL and its member music companies in enforcing their copyrights and can have a deep impact in the collection of royalties for public performances of sound recordings. Music companies have granted authorisations to PPL to administer their right of communication to the public…

Copyright; locks, levies, lawsuits or licensing?
Copyright / September 2008

COPYRIGHT All Areas ARTICLE LINK: By Rusell McOrmond This is an interesting four piece blog looking at ‘locks, levies, lawsuits and licensing’ – the different ways in which copyrights can be protected and legally used.

Collection societies break ranks on pan-Eurpean licensing
Copyright , Internet , Music Publishing / September 2008

COPYRIGHT  Music publising, internet  In a classic example of the concepts of territoriality in licensing pitted against the free market within the European Commuity the IPKat brings news of a dramatic development in the Netherlands where a Dutch has issued a preliminary injunction prohibiting Dutch collection society BUMA from granting any further licences for the online sale of the repertoire of works administered by the UK’s Performing Rights Society in so far as those licences extend beyond the territory of the Netherlands. BUMA had previously granted a licence for the territory of the entire European Community to PRS maintained that the reciprocal agreements between collecting societies did not grant BUMA any royalty-collecting rights beyond the Dutch territory. In its defence, BUMA attempted to rely on the Commission’s recent decision in CISAC where the European Commission ordered 24 European copyright collecting societies to stop restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory, while still letting them keep (i) their current system of bilateral agreements and (ii) their right to set levels of royalty payments due within their domestic territory. BUMA argued that any territorial restriction in its reciprocal representation agreements is null and…

Australian customs to search for illegal music on iPods
Copyright , Internet / September 2008

COPYRIGHT Internet, technology If it was April 1st we might have thought this was a clever joke. It isn’t and the following is just a depressing story. In what could prove to be an administrative nightmare, it has been revealed that the Australian government (amongst others) is considering conducting searches of MP3 players as they pass through airports, in order to check for illegally-obtained music. The proposal, which suggests “criminal sanctions for infringement on a commercial sale” was discovered when an Australian Federal Government discussion paper was leaked to the press. CMU Daily reported that the office of Australian Foreign Minister Stephen Smith confirmed that they were part of negotiations for the international agreement but that they had not agreed or signed up to any aspect of it.

MediaSat take on YouTube
Copyright , Internet / September 2008

COPYRIGHT Internet Silvio Berlusoni’s MediaSat has said it will sue YouTube and parent company Google for illegal use of its copyrights. MediaSat’s own analysis showed that there were 4,643 unauthorised videos and clips owned by the Italian media conglomerate on YouTube, equivalent to more than 325 hours of television transmission. Mediasat has said it is seeking E500 million (£383 million) in damages. In the USA, film, TV and broadcast giant Viacom have brought a similar action. Support grows for blanket music licensing

New US bill to clamp down on campus piracy
Copyright , Internet / September 2008

COPYRIGHT Internet The US Congress has passed a law to help curb piracy on college campuses. The Higher Education Opportunity Act, passed Wednesday by the House and Thursday by the Senate, promotes education, legal alternatives, and improved monitoring of campus networks. signed into law by President George W. Bush, the bipartisan bill would require publicly funded universities and colleges to teach students and employees about illegal downloading, distribution of copyrighted materials, and related campus policies. The bill also requires universities and colleges to create plans to prevent piracy by using technology and to present legal alternatives. The bill would provide grants to support those efforts. David Israelite, president and CEO of National Music Publishers Association called the bill “an enormous step forward in addressing the problem of illegal downloading on campus networks.” He said the bill recognizes that the best way to address the problem is through cooperation among universities, technology, and legal content providers. The Motion Picture Association of America claims peer-2-peer Internet piracy costs its member studios $3.8 billion a year, with losses from Internet piracy surpassing $2.3 billion. The Recording Industry Association of America cites an Institute for Policy Innovation study that concludes global music piracy causes…

2006 Fifa trademarks cancelled for lack of distinctive character
Trade Mark / September 2008

TRADE MARK All areas 2006 Fifa trademarks cancelled for lack of distinctive character: OHIM Cases R 1466/2005-1, R 1467/2005-1, R 1468/2005-1, R 1469/2005-1 and R 1470/2005-1. All The Board of Appeal of the OHIM has allowed appeals brought by Ferrero oHG mbH against the refusal of the Cancellation Division to cancel marks belonging to the Fédération Internationale de Football Association (Fifa). The five marks in dispute have now dated and are of little commercial value as the event in question, the 2006 football World Cup, has passed. However the case sets an important precedent. The marks are: WORLD CUP 2006 (referring to the football world cup); GERMANY 2006 (the event taking place in Germany); WM 2006 (WM is Weltmeisterschaft, “World Cup” or World Championship” in German); WORLD CUP GERMANY; WORLD CUP 2006 GERMANY. The grounds upon which the registrations were challenged were that the signs in question were descriptive and lacked distinctive character.

Girl talk album prompts music sampling debate

COPYRIGHT Record labels, music publishers ARTICLE LINK:  If you have heard of the new Girls Talk album you may or may not be aware than none of the 300 or so eclectic music samples appears to have been cleared with copyright owners. Will fair use be enough to protect the artist and his label?

Online insults were slander not libel Smith v ADVFN & Others [2008] All ER (D) 335
Defamation , Internet / September 2008

DEFAMATION Internet Eady J has handed down a judgment in the case of warring bloggers although in light of the small number of members of the public exposed to the “mere vulgar abuse” to a fairly dim view of why the case was brought at all, staying proceedings. The High Court case was brought by Nigel Smith, also known by his online avatar “Anomalus”. Acting as the coordinator of an action group to recover shareholders investments from an alleged fraud, Smith had himself lambasted an individual known as “Wiganer” as a fraudster on the ADVFN Board and alleged that various others were falsely claiming compensation for the fraudulent losses. These allegations prompted comments from other shareholders and contributors to the discussion board in support of those who had been “threatened and bullied” by Smith. Smith requiring ADVFN to disclose the IP addresses of those concerned and the of the legal proceedings triggered more (allegedly) defamatory comment against Smith who – unemployed and thus unfettered by the requirement to pay court issue fees – issued 37 sets of proceedings! Of comments made on a discussion board, Eady J observed that they were (a) read by relatively few people, who share an…

US federal court enforces copyright in open source software Jacobsen v Katzer 2008-1001
Copyright / September 2008

COPYRIGHT All areas The US Court of Appeals for the Federal Circuit has held that an open source copyright ‘Artistic Licence” can be enforced under copyright law, rather than merely under contract law. The case involved. The dispute was between the developers of the Java Model Railroad Interface (JMRI), and Kamind, a company that used portions of DecoderPro to develop a competing product. The product at issue was DecoderPro, an open source project released on SourceForge under an open source artistic license, for interfacing with model railroad control chips. Kamind used a number of DecoderPro files in developing its product, Decoder Commander. However, Kamind did not comply with the Artistic License in a number of respects, including attribution to the original authors, the original owner’s copyright notices, tracked changes or availability of the underlying standard version. The lower court denied relief, saying that the artistic license merely imposed ‘contractual’ promises, and that a violation did not constitute copyright infringement (any contract-based relief would probably have been meaningless). However the Federal Circuit found that the Artistic License is legally enforceable, that its terms constituted ‘conditions’ for reliance on the license, and consequently that a violation of those conditions would put the…

McCain fried? Campaigning senator upsets Paris and Jackson

COPYRIGHT / IMAGE RIGHTS Music publishing, record labels, artists First US presidential candidate Senator John McCain liked Barak Obama’s cultural appeal to Paris Hilton, and Hilton hit back with a rather amusing and somewhat damaging video which mocked the ‘white haired dude’ and rather put McCain on the back foot. Now Jackson Browne’s management have taken action over the use of one of his iconic songs, “Running On Empty” in one of the Senator’s ads. When Browne’s management began receiving emails from people who wondered why the legendary singer and songwriter – an Obama supporter who doesn’t allow his songs to be used in advertisements of any kind – would allow “Running on Empty” to play in a John McCain campaign commercial – they decided to investigate. It turns out Jackson never granted permission for any such use and according to a lawsuit in US District Court in Los Angeles, the Ohio and National Republican Parties and McCain himself are responsible for two illegal actions by infringing Browne’s copyright and creating the false impression that Browne had endorsed John McCain. Browne’s lawyer Larry Iser said “When you’re a senator, or you’re elected president, you take an oath to preserve, protect,…

Atlantic v Andersen draws to a sorry close for the RIAA
Copyright , Internet , Record Labels / September 2008

COPYRIGHT Record labels, internet The RIAA’s much criticised pursuit of an disabled Oregon woman in Atlantic v Andersen has finally drawn to a close and the RIAA must pay Ms Anderson $107, 951 representing the amount of her attorneys fee judgment plus interest. But as some commentators have pointed out, the sum does not compensate Ms. Andersen for the other damages she’s sustained, and that’s where the case may switch around as Tanya Andersen does the hunting, as she pursues the record companies for malicious prosecution. Should be interesting.

UK IPO calls for comments on penalties for Copyright Infringement
Copyright / September 2008

COPYRIGHT All Areas (Closing date: 31 October 2008) Currently the maximum fine that Magistrates’ Courts can award for online copyright infringement is £5,000. To reflect the commercial damage that large scale copyright infringement causes, the UK-IPO is consulting on increasing the level of fine handed down by a Magistrates’ Court to a maximum of £50,000. This consultation takes forward Gowers Review recommendation 36, which recommended matching penalties for online and physical copyright infringement by increasing sanctions for online infringements. Further to this in February this year “Creative Britain: New Talents for the New Economy” was published by the Departments for Culture, Media and Sports (DCMS), Business, Enterprise and Regulatory Reform (BERR), and Innovation, Universities and Skills (DIUS). It included a commitment to consult on increasing the fines available in the Magistrates’ Court from the current £5,000 limit to a maximum of £50,000 for online copyright infringement. Scotland does not have Magistrates’ Courts; therefore the consultation considers introducing maximum levels of fines for Scottish summary courts that deal with equivalent cases in Scotland. Magistrates Court currently do have extended powers to levy fines in certain specific instances including fines of up £50,000 under the Environmental Protection Act 1990 and up to…

First filesharing judgment for UK gamer as gaming industry gets tough
Copyright , Internet / September 2008

COPYRIGHT  Internet, games industry  A woman has been ordered to pay more than £16,000 in a landmark ruling after a crackdown on gamers who illegally share computer games and films over the internet. Isabella Barwinska is the first defendant to pay damages after being taken to court in the UK by computer game manufacturers seeking to protect their copyright. In a decision of the Patents County Court in London she must pay damages of £6,086.56 and costs of £10,000 to Topware Interactive which owns the computer game Dream Pinball 3D. It is understood that she did not file share for commercial profit or gain – but took files to share with friends and was given 28 days to settle the judgment. Last night Topware Interactive’s London lawyers Davenport Lyons revealed that they had launched civil proceedings against 100 people – who are all suspected of illegally uploading copyrighted works – on behalf of Topware Interactive. The latest case comes after earlier this year the Central London County Court ruled against four people who were found to have infringed copyright by illegally sharing games on the internet. The games industry has also announced that would serve notices on 25,000 people across the UK requiring each…

US games pirate fined
Copyright , Internet / September 2008

COPYRIGHT Internet, games industry A Florida man has been sentenced to 15 months in prison and ordered to pay $415,900 in restitution after selling video games systems preloaded with up to 75 illegally copied video games. Kifah Maswadi, 24, was sentenced in the US District Court for East Virginia for one count of criminal copyright infringement. The court heard that Maswadi had sold Power Player handheld games consoles pre-loaded with mostly illegal copies of Nintendo games and made profits of $390,000. Maswadi was also sentenced to three years of supervised release after his prison term and 50 hours of community work educating others on the risks of criminal copyright infringement.;548719918;fp;4;fpid;802453;pf;1

RIAA close down Muxtape
Copyright , Internet / September 2008

COPYRIGHT Internet Despite online mixtape service Muxtape claiming earlier this week that their site was just temporarily closed while they were sorting out a problem the site now appears closed. In a statement, the Recording industry Association of America (RIIAA) said: “For the past several months, we have communicated our legal concerns with the site and repeatedly tried to work with them to have illegal content taken down. Muxtape was hosting copies of copyrighted sound recordings without authorization from the copyright owners. Making these recordings available for streaming playback also requires authorization from the copyright owners. Muxtape has not obtained authorization from our member companies to host or stream copies of their sound recordings”. CMU Daily 22 August 2008

Prince v Dancing Baby – First round to Mother in the YouTube case
Copyright , Internet / September 2008

COPYRIGHT Internet Stephanie Lenz, a mother who posted a clip of her baby dancing Prince’s song, ‘Let’s Go Crazy’ has won the first stage of her battle against Universal Music. Ms Lenz’s clip was removed from YouTube after the site received a takedown notice under the Digital Millennium Copyright Act from Universal, the holder of the copyright in the song. The clip was reinstated after a month, but Lenz sued under the DMCA, pointing to the requirement therein that copyright owners can only demand the taking down of a work if they have “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” Universal argued that copyright holders, in making this assessment, did not need to take into account whether the use made by the subject of the notice was fair use, since fair use is a defence, rather than a legal right. Not so, according to Judge Jeremy Fogel, who states: “Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to…

Pirate Bay to fight Italian ban
Copyright , Internet / September 2008

COPYRIGHT Internet The BitTorrent tracking website The Pirate Bay has decided to fight the Italian government’s recent move to have it blocked in Italy by all ISPs in the country. The site has filed an appeal against the decree, which was passed by an Italian court earlier this month alongside advice to consumers on how to use technological means to sidestep the ban. The Pirate Bay’s lawyers Giovanni Battista Gallus and Francesco Micozzi told TorrentFreak: “The decree can be defined as ‘original’ or ‘creative’ at best. Even the judge who issued the decree states that no infringing material is hosted on The Pirate Bay, which provides just a tracker search engine. The judge tries to ‘create’ a sort of contributory infringement accusation against The Pirate Bay. We will bring all our arguments before the Tribunal, and we are confident of the Tribunal’s decision”. CMU Daily 22 August 2008

Police Licensing Act objections force Moonfest cancellation
Health & Safety , Licensing , Live Events / September 2008

LICENSING / HEALTH & SAFETY Live event industry For the first time in the UK the police have used Section 160 (orders to close premises in an area experiencing disorder) of the Licensing Act 2003 to get a live festival performance stopped. Wiltshire Constabulary applied to the Magistrates to ban a festival appearance by Pete Doherty and his band Babyshambles on the grounds that there could be public disorder and applied to have the whole of the Friday of the Moonfest festival be scrapped due to crowd control issues. A Closure Order may be made by a Magistrates’ Court on application by the Police where the Court is of the opinion that closure is necessary in the interests of public safety because of order or likely disorder on the premises, or in the vicinity and relate to, the premises and/or an order is necessary to ensure no public nuisance is or is likely to be caused by noise coming from the premises. North Wiltshire Magistrates agreed to the police application to cancel the show on the Friday. The Police made no application for Saturday and Sunday which featured The Australian Pink Floyd, Ozric Tentacles, Zenyth, Curiosity Killed the Cat, Shakatak, Heaven 17,…

Police investigate cheeky buttock act in Keswick
Licensing , Live Events / September 2008

LICENSING Live event industry Two street entertainers could face prosecution after the mayor of Keswick accused them of going “beyond public decency” with their act in the Lake District town’s Market Square. Police acted following complaints from councillor Roger Purkiss. The two men, who are from Bristol and who say they are circus trained begin their act in trousers and T-shirts and perform an acrobatic act that ends up with them wearing just thongs and socks, putting lighted torches down their thongs and as a finale sticking lit sparklers between their buttocks and doing hand stands. Their 20-minute act attracted over 100 spectators earlier this week, some of them children, and stunts included blowing up a rubber glove on their heads then bursting it with a torch. Cllr Purkiss claims the act is disgraceful behaviour and very distasteful – it perhaps wouldn’t be out of place in an adult nightclub but not on the streets of the town in frnt of families wit children …. and not what a Lakeland tourist town is all about’. A police spokesman told the Lake District Herald that a decision on whether they were to be charged with a public order offence would be…

Use of Doors name needs all band members to agree – dead or alive
Artists , Contract , Trade Mark / September 2008

TRADE MARK/CONTRACT Artists The Calilfornia Supreme Court has decided that two surviving members of the 70s group, The Doors, Raymond Manzarek And Robert Krieger, who wanted to continue to perform under that name and then under the name Doors of the 21 st Century can use neither name. The original band featured John Densmore, Ray Manzarek, Jim Morrison and Robert Krieger but after the Manzarek/Krieger tour grossed $8 million and used photographs of the original Doors in publicity Densmore and the family of Jim Morrison and his estate joined forces to prevent the use of the name. In reports, Densmore states he is simply fulfilling the wishes of Jim Morrison, having refused other lucrative offers for commercials and other use. The IPKAt reports that this is possible due to a “veto power” common in music contracts of the 1960s which requires all members of The Doors to be unanimous in any business agreements. As a result, each band member has a vote and the Morrison estate the fourth. Densmore and the families claimed that if the pair continued to use the name, The Doors of the 21st Century, it would compromise the band’s legacy. The Los Angeles Superior Court agreed…

EFF urges US Copyright Office to fix digital music mess – but carefully
Copyright , Internet , Music Publishing / September 2008

COPYRIGHT Internet, music publishing The EFF has joined with other public interest and consumer groups in urging the US Copyright Office to clarify the process for licensing digital music services, but to steer clear of larger digital copyright controversies. The comments were filed in a rulemaking involving the Section 115 compulsory license for “digital phonorecord deliveries” (DPDs) that has been dragging on since 2001 (read the July 16, 2008 “noriced of proposed rulemaking” for a summary of the tortured history of the proceeding). Fred Von Lohmann writes that the current logjam boils down to music publishers against everyone else. Every music recording involves two copyrights: one for the sound recording (i.e., the “master”), which is usually controlled by a record label, and one for the musical work (i.e., the “composition”), which is usually controlled by a music publisher. Different music services need different sorts of licenses (and those that simply host materials uploaded by users or simply distribute software may need no licence at all), and it has been notoriously complicated to figure out who to contact for the relevant licenses. The licensing of sound recordings has been getting easier, not least because the four major labels cover so much of the…