What do the European Commission’s moves on copyright really mean for the music industry?
Copyright / October 2016

COPYRIGHT All areas   In the context of its Digital Single Market Strategy, the EU Commission is currently engaged in a discussion of whether the liability principles and rules contained in the E-Commerce Directive should be amended – and the focus of commentators has shifted to how hosting providers have been increasingly using ‘safe harbour immunity’ in Article 14 – an alleged abuse which has led to a distortion of the online marketplace, and the resulting ‘value gap’ suggested by some right holders. A proposal has been recently advanced in France advocating the removal – at a European Union level – of the safe harbour protection for hosting providers that give access to copyright works,  to enable the effective enforcement of copyright and related rights in the digital environment, particularly on platforms that disseminate protected content. In particular, the French document considers that the Court of Justice of the European Union (CJEU) has erred in its interpretation and application of relevant principles of online intermediary liability. Statewatch has now leaked a draft version of the Commission Staff Working Document – Impact Assessment on the modernisation of EU copyright rules and this appears to suggest some of the areas where changes might made: In relation…

PRS for Music Chief Executive responds to EU copyright reform plans
Copyright / October 2016

COPYRIGHT All sectors   The European Commission has now published their Digital Single Market copyright reform proposals, including a Directive of the European Parliament and Council on copyright in the Digital Single Market’.   The proposed Directive, alongside the ‘Regulation of the European Parliament and Council laying down rules on the exercise of copyright and related rights applicable to certain online transmission of broadcasting organisations and the retransmission of television and radio programmes’, represent the European Commission’s efforts to modernise the copyright framework in order to further realise the European Digital Single Market. These – among other things – include proposals for a new directive on copyright in the Digital Single Market and a regulation on certain online transmissions of broadcasting organisations and retransmissions. Both instruments, if adopted in their current form, will have a deep impact on the EU copyright framework, particularly with regard to online uses of copyright works, responsibilities of hosting providers, users’ freedoms, and authors’ contracts.   In announcing the publications President Junker (who had earlier given his annual state of the union address to MEPs in Strasbourg) said: “Artists and creators are our [Europe’s] crown jewels” going on to say “I want journalists, publishers and authors to be paid fairly for…

GEMA: EU Copyright Modernisation: First steps towards a fair and balanced relationship between authors and online platforms
Copyright / October 2016

COPYRIGHT All areas   As we know, the EU Commission has presented its plans for a modernisation of copyright. GEMA have now responded, and this is their take on how things are developing: “The position of authors should be reinforced with a focus on improving how they assert their rights vis-a-vis online platforms. In addition, access to creative contents in the online sector should be improved by a simplified rights clearance in Europe. GEMA considers the Commission’s efforts as an important first step in order to establish fair conditions for creative content on the digital common market.” GEMA CEO Dr Harald Heker says: “With its proposal for a copyright review, the EU Commission is sending an important signal that the value transfer of creatives towards platform operators in Europe can no longer be tolerated. For fair conditions regarding digital usage of creative content, there must be no ambiguity left that platforms such as YouTube are actively involved in making content protected by copyright publicly available. Legal safeguards have to be established so that these platforms can no longer hide behind privileged positions regarding the liability for host providers, which are intended for purely passive service providers.” Internet platforms generate substantial…

200+ Artists Support the “Blurred Lines” Appeal
Copyright , Music Publishing / October 2016

COPYRIGHT Music publishing   Some 212 musicians have attached their names to a brief supporting Pharrell, Robin Thicke and TI’s appeal in the “Blurred Lines” copyright case, including Earth Wind & Fire, R Kelly, John Oates, Linkin Park, Fall Out Boy’s Patrick Stump, film composer Hans Zimmer, Tears for Fears’ Curt Smith, Juicy J, the Go-Go’s, Frank Ocean collaborator Malay, Jennifer Hudson, Train’s Patrick Monahan, the production duo Stargate, Aloe Blacc, Jean Baptiste and Kiesza. The amicus brief echoes the concerns many artists and commentators have voiced since a Los Angeles jury determined that “Blurred Lines” plagiarised Marvin Gaye’s 1977 hit “Got to Give It Up” – that the songs were not actually similar (even if the sound recording ‘vibe’ was and “Blurred Lines” and “Got to Give It Up” have completely different melodies and song structures, and do not share any lyrics or “a sequence of even two chords played in the same order and for the same duration.” The brief reads: “The verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works ” and “All music shares inspiration from prior musical works, especially within a particular musical genre. By eliminating any…

Authors against music piracy: German sentences online service Uploaded to pay damages
Copyright , Music Publishing / October 2016

COPYRIGHT Music Publishing   German collective management rights organisation GEMA has won its case in the Regional Court Munich against file-sharing host Uploaded. The decision confirms that file-sharing hosts are liable to pay damages if they do not prevent the upload and distribution of copyright-protected contents. The Regional Court in Munich ruled  (10 August 2016) that online services whose business models are based on large scale copyright infringements are liable to pay damages. “The Regional Court has decided in the interest of our members. Their ruling confirms that file-sharing hosts play a significant role in the proliferation of music piracy” said  Dr Tobias Holzmüller, GEMA’s General Counsel, welcoming the decision. “Online service providers have previously only been obliged to remove contents infringing copyright from their platforms. By pronouncing the liability to pay damages for file-share host Uploaded, composers, lyricists and music publishers at least get a small compensation for the rights infringements of their works that have been committed on a massive scale.” File-share hosts such as Uploaded provide their customers with storage space so they can upload files. They create links to the uploaded files which are then disseminated as publicly accessible collections of links. The regional court Munich classifies Uploaded as a service which constitutes a specific…

Shea promoter’s estate brings action against new Beatles film
Copyright , Live Events / October 2016

COPYRIGHT Film & TV, live events sector   The estate of Sid Bernstein, who promoted the Beatles’ famed August 1965 concert at Shea Stadium in New York, is taking legal action against two of the bands’ companies, Apple Corps and Subafilms, for alleged copyright infringement over use of footage from the concert in upcoming documentary film Eight Days a Week: The Touring Years – directed by Ron Howard. The film has been produced in cooperation with both surviving Beatles Paul McCartney and Ringo Strarr, and the widows of George Harrison (Olivia) and John Lennon (Yoko Ono) and includes 30 minutes of remastered footage from Shea Stadium. It is understood that the the copyright in the film later acquired by Apple Corps, founded by The Beatles in 1968, and film-distribution outfit Subafilms. Sid Bernstein Presents has challenged that ownership of the copyright and in turn claims ownership of the concert footage, parts of which have appeared previously in the Ed Sullivan-produced film The Beatles at Shea Stadium and in the Anthology documentary series.  Billboard reports that the claim proposes several solutions, including having Sid Bernstein Presents named sole author, or joint author (with The Beatles) as well as a declaration that previous use of the footage is…

APA take on Gersh over ‘poaching’ of agent
Competition , Contract , Live Events / October 2016

CONTRACT / COMPETITION Live events sector   Two US booking agencies are battling it out in the Superior Court of Los Angeles over the alleged poaching of Beverly Hills-based agent Garrett Smith.  The Agency for the Performing Arts (APA), whose clients includes Paul Oakenfold, 50 Cent, The Proclaimers and Scorpions, is seeking damages for interference with contractual relations, interference with prospective economic advantage and unfair competition from the Gersh Agency, of which Smith is now an employee, despite being under contract with APA until September 2017. APA is also suing Smith himself for breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, breach of the duty of loyalty and unfair competition.   The APA complaint alleges that Gersh “hired Smith despite being specifically advised by plaintiff [APA] that plaintiff was entitled to Smith’s exclusive services for the duration of the employment agreement” and “Defendant knew of the economic relationship between plaintiff and Smith, and intended to disrupt and interfere with that relationship”   http://www.iq-mag.net/2016/09/us-agencies-war-poaching-claims-garrett-smith/#.V9J3TZgrKM9

Court uphold fractional licence in BMI case
Competition , Music Publishing / October 2016

COMPETITION Music publishing     In a win for Broadcast Music Inc (BMI), a federal judge has thrown out a recent determination by the U.S. Department of Justice (DoJ) that performance rights organisations cannot undertake so-called fractional licensing. Not only had the DoJ had refused alter the 70 year old anti-trust ‘consent decrees’ that both ASCAP and BMI operate under, the DoJ insisted that the societies had to introduce 100% licensing, which allows one party to license a whole song even without that licensor owning 100% of the copyright. BMI decided to pursue the litigation to reverse the DoJ’s decision. BMI was seeking a declaratory judgement that the consent decree did not require 100% licensing or what is called “full-work” licensing. In a six-page ruling, U.S. District Judge Louis Stanton in Manhattan rejected the DOJ’s consent decree determination who said: “The consent decree neither bars fractional licensing nor requires full-work licensing” adding  “If a fractionally licensed composition is disqualified from inclusion in BMI’ s repertory, it is not for violation of any provision of the consent decree”   A separate consent decree governs ASCAP (the American Society of Composers, Authors and Publishers) and this is administered by rate court Judge Denise Cote of the United…

Russian Government looks to take over collection societies

COMPETITION Music publishing, recorded music   The Russian government is reportedly considering taking over some or all of the collective licensing regime in the country. The move comes in the wake of accusations of fraud  which have seen RAO General Director Sergei Fedotov arrested and jailed. There has been disagreement within the collecting society’s membership, with a group of members calling for a new  General Director to be appointed and a radical overhaul of the organisation’s constitution. According to Russian business newspaper Vedomosti, the Ministry Of Economic Development is considering the possibility of taking direct control of RAO. The RAO Authors’ Council, which is the main governing body of the society, continues to back Fedotov and responded angrily to the members seeking a radical overhaul. Producer and composer Igor Matvienko, newly elected as President of the Authors’ Council last month, had been critical of RAO but now opposes moves to overthrow Fedotov and the current management.   whilst there have been some dark mutterings in Europe from songwriters and self composing performers about the activities of CMOs, including Buma-Stemra and GEMA, who have been offering established concert promoters ‘discounts’ or ‘kickbacks’  on published public performance tariffs – and indeed in Spain the…

SFX faces two decisions in the bankruptcy court
Competition , Contract , Internet , Live Events / October 2016

CONTRACT / COMPETITION Live events sector, online   A US bankruptcy judge has allowed Viagogo to proceed with a legal action against SFX Entertainment. modifying the “automatic stay” applied to SFX. Under Chapter 11 of the United States Bankruptcy Code, creditors are usually barred from collecting debts from the debtor. and allowing the secondary ticketing platform to “assert and prosecute any and all counterclaims” against SFX. Having reviewed the request, Judge Mary F Walrath determined “sufficient cause exists to approve the motion”.  Viagogo is seeking “in excess” of US$1.6 million from SFX, which went into administration on 1 February, for allegedly failing to adhere to the terms if a five-year, $75m sponsorship agreement signed by the two companies in 2014. The deal granted Viagogo exclusive ticket resale rights some 50 SFX-promoted events and SFX agreed to “deliver exclusive marketing and ticketing rights with respect to a number of designated ‘major’ SFX events.   In other SFX news, an Italian EDM record label is requesting a probe into how third parties might be artificially influencing SFX’s digital music charts. Art & Music Recording (AMR) has requested the Delaware judge overseeing SFX’s Chapter 11 bankruptcy case order the company to reveal what it knows about…

Print at home’ ticket fees ruled illegal in Germany
Consumers , Live Events / October 2016

CONSUMER Live events sector   A German court has delivered a preliminary ruling that fees for ‘print at home’ tickets should not be allowed, in a case brought against ticketing firm CTS Eventim by consumer rights group Verbraucherzentrale NRW. In their press release, Verbraucherzentrale NRW said that the ruling, could pave the way for similar action against other ticketing agencies which charge similar fees. The court said that if a fee was charged, then the provider was contractually bound to send out actual tickets. CTS Eventim charged customers a €2.50 fee for printing tickets at home through their “print @ home” and “ticketdirect” options. The decision is not (as yet) legally binding, The district court of Bermen found that services charges on self-printed tickets, better known here as print-at-home tickets, are “inadmissible,” or unzulässig in German and that CTS Eventim cannot charge such fees to their customers. The court ruled that the company can only charge ticket fees on “postage costs.” CTS Eventim has told IQ that it intends to appeal the ruling, which has yet to be reatifed by the higher court. http://www.completemusicupdate.com/article/german-court-rules-print-at-home-ticket-fees-illegal/

London nightclub Fabric to close permanently after licence revoked
Licensing , Live Events / October 2016

LICENSING Live events sector   One of Britain’s best known nightclubs, Fabric, has been forced to close permanently after its licence was revoked following the drug-related deaths of two people. After deliberation that lasted into the early hours of Wednesday morning, the local council decided that searches by security staff at the London venue had been “inadequate and in breach of the licence”. “People entering the club were inadequately searched,” Islington Borough Council’s decision read adding that covert police operations suggested people were openly buying and taking illegal drugs on the premises and that staff should have been aware of this: “Staff intervention and security was grossly inadequate in light of the overwhelming evidence that it was abundantly obvious that patrons in the club were on drugs and manifesting symptoms showing that they were” …. This included sweating, glazed red eyes and staring into space, and people asking for help.” The Metropolitan Police had asked the council to shut down the 2,500-capacity nightclub after the deaths of two teenagers in the space of nine weeks. One died after collapsing outside the club in August, while another died in late June. In documents provided to the council, superintendent Stuart Ryan wrote: “If the…

Is Hackney using underhand methods to close down the night-time industries?
Licensing , Live Events / October 2016

LICENSING / PRIVACY Live events sector     Thousands of clubbers have had their names shared secretly with the Metropolitan Police. The 200-capacity Studio Spaces was granted an alcohol licence by Hackney Council in January 2014, on the condition that director Yuval Hen supply the Metropolitan police and the council with a list of everyone attending events of 40 people or more 48 hours in advance. The Hackney Gazette reports that Hen initially complied, but later became aware that he was the only licensee in the area having to hand over names. He has since relaunched the venue as a ‘co-working space’. Hen told IQ magazine “The conditions killed us. We got lots of cancellations from people saying, ‘We don’t want to give you the guest list.’ It’s a nightmare – we can’t run a business like that with only 40 people allowed inside.” Hackney Council tells the Islington Gazette that the ruling was made to ensure the venue didn’t exceed its 24 permitted events of over 40 people. Nappter Tandy, who runs promoter Turf Series, has put on shows at Studio Spaces and says he was unaware guestlists were being sent to police saying “It’s extremely disappointing councils like Hackney…

Sydney’s ‘lock out’ laws take a knock
Licensing , Live Events / October 2016

LICENSING Live events sector   The Supreme Court of New South Wales has ruled that Sydney venues are exempt from New South Wales’s controversial ‘lock-out laws’ which were introduced by the New South Wales (NSW) government in 2014 and require that music venues, nightclubs, bars and hotels lock their doors at 1.30am and not serve drinks past 3.00 in a bid to curb alcohol-related violence. The legislation has been attacked by a number of prominent Australians as illogical and damaging to the music industry. This case was brought by the owners of the Smoking Panda bar who persuaded the Court that  the New South Wales Justice Department lacked the authority to subject to the city to the 1.30 curfew. The bar now joins tourist areas and hotels which are already exempt from the lock-outs, The Smoking Panda’s exemption was cancelled after an investigation found some bar patrons were not hotel guests.   In addition to live music venues, Supreme Court judge Natalie Adams also ruled that strip clubs should be exempt, stating the laws are “not a proper exercise of the regulation-making power conferred upon the governor [of New South Wales]”. Lock-out laws continue to apply to other establishments. The…

Sydney’s late night industry not impressed by independent review
Licensing , Live Events / October 2016

LICENSING Live events sector     The independent report into Sydney’s controversial ‘Lock Out’ laws by former High Court judge Ian Callinan has recommended a two-year trial in which the 1.30am lockout and 3am last drinks measures are relaxed for live entertainment venues. Easing those restrictions by half-an-hour could help restore the vibrancy and lost employment opportunities in the precincts affected by the laws Callinan said in his report. The previous O’Farrell government introduced the laws in 2014, following a series of fatal one-punch attacks and other violence.   NSW state premier Mike Baird said he was pleased the review had confirmed the laws had reduced alcohol-related violence in the CBD and Kings Cross area. He said the government would consult with Mr Callinan and the industry to clarify a clear definition of live entertainment venues, including whether it should include recorded music or DJs. Opponents of the lockout laws had hoped the Report would prove their claim that the measures passed by the New South Wales government in 2014 had pretty much killed Sydney’s nightlife. The laws were originally passed in an effort to end alcohol-fuelled violence in Sydney’s key nightlife areas, such as Kings Cross. Callinan acknowledged the adverse effect the…

Techno’s beating heart is a place of high culture in German law
Live Events / October 2016

PLANNING Live events sector   While British institutions of power seem to work towards suppressing the country’s nightlife, German authorities are taking the opposite approach. According to German publication Der Spiegel, Berghain has won a legal case that defines its activity as “high culture” – with the Brandenburg court ruling that Berghain, the 1,600-capacity Berlin nightclub widely regarded as the world capital of techno, is a place of cultural significance and thus entitled to be tax as a site of high culture. The court battle stemmed from Berghain being threatened by greater taxation. German law taxes institutions classed as ‘entertainment’ at a rate of 19 per cent, while institutions seen as sites of ‘high culture’ are taxed at seven per cent. Tax officials argued that Berghain is “ruled by entertainment, not by culture” since it’s a place where people dance, have fun and take drugs, while the nightspot countered that as a site of musical performances it should be afforded the same standing as classical music halls. In the past Berghain (pictured) would pay tax of 7% on its earnings – the same rate as museums, theatre and concert venues. The German fiscal court in Cottbus ruled in favour of Berghain,…

Mayor to implement ‘agent of change’ principle in London Plan
Live Events / October 2016

PLANNING Live events sector   London Mayor Sadiq Khan has said he plans to introduce the ‘agent of change’ principle into the next London Plan to protect London’s cultural heritage and vibrant night life from the actions of developers building residential homes near existing cultural venues. The move comes after more than 25,000 people signed a petition to save Mayfair’s historic Curzon cinema from being shut down over a soundproofing dispute. Developers 38 Curzon Ltd, who are converting office space above the cinema into luxury flats, have complained of noise from films shown velow. Reports say the developers want the 82-year-old cinema to foot the £500,000 bill for soundproofing work. But the the Curzon said it cannot afford and that as the building is a listed building iut would “never obtain approval for as the auditorium and surrounding walls” The deadlock has resulted in a court “action for forfeiture”, meaning the cinema faces surrendering its lease and vacating the building. Khan told the London Evening Standard: “I intend to protect venues like the Curzon Mayfair by introducing an ‘Agent of Change’ rule into the next London Plan. That would mean developers building flats near existing venues will need to ensure that residents are not…

Love Parade litigation re-commenced
Health & Safety , Live Events / October 2016

HEALTH & SAFETY Live events sector     Three people injured at the tragic  2010 Love Parade have commenced new civil proceedings in Germany against those involved in organising the tragic 2010 festival. There have been over unsuccessful 30 civil cases brought against festival promoter Lopavent, the city of Duisburg and the state of North Rhine-Westphalia since 2010. In April this year a court that no one would stand trial over the disaster, which left 21 dead and over 500 were injured. The disaster on the 24th July 2010 was the result of  a crush in a tunnel that served as the sole entrance to Love Parade. Over a million people attended the dance music festival, which was held at a former goods yard in Duisburg, with a capacity of around 250,000. The event was permanently cancelled by organisers. German public broadcaster WDR reports that one woman, who suffered concussion, is seeking €73,000 in damages, with two more seeking between €34,000 and €56,000 each. Lawyer Bärbel Schönhof who is representing the first woman, a 51-year-old from Duisburg, says despite the failure of earlier lawsuits she is confident of a victory, “because I am of the view that [the] irresponsible behaviour of…

Live Nation faces claims from injured fans
Health & Safety , Live Events / October 2016

HEALTH & SAFETY Live events sector   Fourteen fans and three workers are suing promoter Live Nation and performers Snoop Dogg and Wiz Khalifa over injuries sustained after a fence collapsed at a concert. A total of 42 people were injured in the incident at the BB&T Pavilion amphitheatre in New Jersey on August 5. The lawsuit provides a list of injuries which included six concussions, one fractured vertebrae, a fractured collarbone, two head wounds closed with staples, broken bones in the wrist and foot, and numerous lacerations, contusions and recurring head and neck pain. Attorney Robert J. Mongeluzzi said on behalf of the victims he represents: “Our clients, and many others who attended the concert, were seriously injured because of the negligent conduct of the defendants who failed miserably in their duty to protect the audience and workers from harm”. Another attorney acting for victims, Steven G. Wigrizer,  said: “Every plaintiff has asked us to do all we can to help prevent a re-occurrence through the litigation. Pure luck – not thoughtful planning by Live Nation or anyone else – is the only reason nobody died in that terrifying incident.”. The claimants allege that there was “a clearly hazardous stage configuration within…

Australian Greens prompt review of drug laws
Licensing , Live Events / October 2016

LICENSING Live events sector   The Green Party in Australia has prompted a rewiew of  drug laws after successfully passing a motion through the Senate calling for the introduction of pill testing and an end to the use of sniffer dogs at music festivals.  The motion passed without objection from either major party, and calls for an number of harm reduction measures, including “needle and syringe programs”, “supervised injecting rooms” and “pill testing”. “We know that [dogs] frighten people into taking their drugs in one hit and are contributing to overdoses rather than preventing them,” Greens leader Richard Di Natalie wrote in The Guardian earlier this year, adding that “a government’s responsibility is to keep our young people safe.” Comment in Austrlia says that any meaningful change will require the cooperation of the state governments – but that this remains unlikely. NSW Premier Mike Baird has previously dismissed the concept of pill testing as “ridiculous”, while Tasmanian Police Minister Rene Hidding called it “quality assurance for drug pushers” – despite the fact that Tasmania’s police association came out in support of just such a proposal.   http://junkee.com/senate-passed-motion-calling-pill-testing-removal-festival-sniffer-dogs/84381   https://www.theguardian.com/commentisfree/2016/mar/02/richard-di-natale-we-need-to-reclaim-our-courage-and-vision-on-drugs-policy