Composer contracts - it's not fair?

This morning a group called the European Composer and Songwriter Alliance launched a campaign against "coercive practices in the commissioning of music for the audiovisual and media production sector" - apparently a formal competition complaint has been filed in Brussels that composers were "frequently forced to assign the copyrights to their music to a publishing company owned by the production company or broadcaster as a pre-condition prior to being given a commission" and often on terms "far less fair than what could be secured in a truly free and open market"

It is easy to understand why composers might cry "it is not fair" that people are only willing to buy their work on specific terms, but there is a big distance between "it is not fair" and "it is not legal". The press release (which has been reported by Reuters and others) only lists a number of very large broadcasters and producers as offenders - not surprising as those are the sorts of names that mean that ECSA will get press coverage - but if I am a small start-up TV producer and I enter into an agreement on specific terms, it is hard to see how I am not operating in a truly free and open market - and the question is therefore how big production companies need to be in order for there no longer to be a truly free and open market ... after all, there are a very large number of production companies out there and an even larger number of composers.

Answers on a postcard please.

2 million oppose ACTA

Having been referred to the ECJ (see previous blog), ACTA is again in the news after digital campaign organisation Avaaz handed the European Parliament a petition with the names of well over two million people who have backed an online call for a rethink of the Anti-Counterfeiting Trade Agreement. ACTA has already been signed by a majority of EU member states but not by the EU itself nor some five member states including The Netherlands and Germany.

However, the Treaty has already been denounced by the French MEP, Kader Arif, the rapporteur for ACTA, who was charged with compiling background information on the Treaty and who resigned his position saying "I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement", while the European Parliament's current President, Martin Schulz, said he didn't think ACTA was "good in its current form". Now the Scottish MEP who will oversee the treaty's passage through the European legislature, David Martin, has also said he is concerned that ambiguities in the agreement could have negative consequences telling reporters "I have no interest in criminalising individual consumers. I think you have to distinguish between the consumer and the producer of illegal content. I have no interest in the teenager sitting in his room deciding to download a piece of music for free because he finds there's an internet service, that there's a site providing that music for free".

The chair of the EP's petitions committee, Erminia Mazzoniis, was quoted saying: "The ratification procedure of ACTA in the European Parliament has only just started. It will need to be examined carefully, taking into consideration all concerns, through a reasoned assessment of the facts and trying to combine the freedom of the Internet on the one hand and the fight against counterfeiting on the other. The follow-up of the petition will be decided in the coming weeks by the members of the committee on petitions."

http://the1709blog.blogspot.com/2012/01/signed-sealed-delivered-your-mine.html

Right royalty row brings out a fighting Kenny

Legendary record label boss Morris Levy allegedly once told one of his acts “if you want royalties, go to Buckingham Palace” but it seems artistes are no longer prepared to accept this mantra and Toto and country & western star Kenny Rogers are the latest in a long line of heritage acts bringing claims against their record labels, challenging the way in which their royalties have been accounted for, and in some cases alleging appalling underpayment of royalties, often over many many years.

A number of claims, beginning with a law suit brought in 2006 by the Allman Brothers, Cheap Trick and others against Sony, revolved around the way in which record labels had calculated their digital royalties. In court papers filed in the United States District Court Southern District of New York a comparison of calculations was set out based on the sale of 1000 downloads at 0.70c per unit – giving a total income of $700: Sony BMG thought the appropriate payment would be a royalty payment on 85% of all downloads sold after deducting mechanical royalties to the songwriters, a container charge of 20% and an royalty reducer for new technology of a further 50%. This gave a total royalty payment of $45.05. The Allman brothers felt they should be paid one half of the income from 100% of all units sold, less just the mechanical royalty payable to songwriters. This gave a royalty due of by Sony BMG to the Allman Brothers of $315.50. Some difference! Other artistes including Chuck D, Sister Sledge, Whitesnake, the estate of Rick James and Rob Zombie have recently brought similar actions against major labels.

Whilst digital royalties have captured the headlines recently, numerous artistes have taken their record labels to court to get royalty payments. In 2002, a Los Angeles court approved a $4.75 million settlement in a class-action suit brought by the late singer Peggy Lee. Before her death, Peggy Lee led the suit against Decca Records, accusing the record label of using questionable accounting practices to cheat artists out of their royalties for more than four decades. Other members of the class, most of whom are now dead, include the estates Louis Armstrong, Billie Holiday, Patsy Cline, Ella Fitzgerald, Bill Haley, Mary Martin, and Pearl Bailey, in total more than 300 artists, all of whom recorded for Decca Records before January 1, 1962 and now Toto have now launched a new action against Sony.

Amongst the claims made against EMI's Capitol Records by Kenny Rogers in his 2012 lawsuit was that the label diverted substantial sums of his royalty income to a ‘suspense’ account, that he received no royalties on records sold through record clubs, that 100% of the costs of promotional videos were allocated against Roger’s videos (rather than the 50% agreed), that $50,000 was deducted as unexplained ‘expenses’, that whilst he suffered international tax deductions he never received the benefit of tax credits Capitol received on the same income, and that Rogers never received any share of performance royalties from his sound recordings (so called “PPL” income). Whilst public performance of sound recordings in the USA does not generate a royalty from terrestrial radio, satellite and internet radio does produce income and globally where radio plays do produce revenue, the income generated from Roger’s recordings must be enormous, Rogers also claims that the record label never accounted to him for one cent of the substantial damages won by the labels against services such as Kazaa, Napster. Audiogalaxy and Grokster.

Even the Beatles have had to take legal action to get paid, and in 1979 they also sued Capitol, charging breach of contract and fraud. The Beatles claimed they were not paid all the royalties due for records sold in the United States. The suit accused Capitol of a "pervasive practice of lining their own pockets at the expense of [the Beatles] through improper and fraudulent accounting practices" and subsequently, for withholding royalties on as many as nineteen million records. The case was dismissed, but the Beatles appealed, and the New York State Supreme Court upheld the appeal in 1988.

And it’s not just heritage acts: rapper Ras Kass (real name John Austin) filed a suit against Priority Records, Capitol Record and EMI Music claiming breach of contract, unfair competition, restraint of trade and other abuses, and Eminen's producers FBT Productions successfully won a case on appeal against Universal Music Group’s Aftermath Records, with FBT’s auditor saying the amount owed may run into millions of dollars (although one website suggested that UMG might charge their legal costs for their failed legal defence against FBT's account!).

The Future of Music Coalition estimates the majors may have to hand over $2 billion in extra royalties to heritage acts if they lose ongoing cases. The Dixie Chicks put it more simply in their claim against Sony– “systematic thievery”. If it were that, I doubt $2 billion would scratch the surface.

The results of FBT Productions’ audit in the ‘Eminen’ case can be found here http://www.hollywoodreporter.com/thr-esq/eminem-royalty-lawsuit-aftermath-records-fbt-productions-293881 and the case reference is F.B.T. Productions, LLC, et al. v. Aftermath Records, et al. 621 F.3d 958

And more on Kenny Roger’s claim against Capitol Records can be found here http://digitalmusicnews.com/permalink/2012/120219rogers and here http://digitalmusicnews.com/uploads/9e/10/9e10378440391c98359fa86752250637/kennyrogersvcapitolrecords.pdf: Kenneth Ray Rogers P/K.A Kenny Rogers v Capitol Records LLC f/k/a Capitol Records, Inc., a division of EMI Music North America LLC Case 3:12-cv-00180 filed on the 13th February 2012, US District Court Middle district of Tennessee, Nashville

And more on the claim brought by the Allman Brothers, Cheap Trick and others against Sony, including the very interesting comparison of royalty rates calculated by Sony and recalculated by the artistes here http://www.caplanross.com/sony_bmg_music.pdf?renderforprint=1 : Gregg Allman et all v Sony BMG Music Entertainment (2006) Case Civ No 1:06-cv-03252-GBD , US District Court Southern District of New York

And see Clover, C (2003) Accounting Accountability: Should Record Labels Have a Fiduciary Duty to Report Accurate Royalties to Recording Artists: Loyola Marymount University and Loyola Law School. Los Angeles).

EU refers ACTA to the ECJ (enough acronyms already)

The European Commission has issued a press release confirming that it is referring the ACTA Agreement, previously signed by most but not all member states (see here) to the European Court of Justice with Trade Commissioner Karel De Gucht saying

“We are planning to ask Europe’s highest court to assess whether ACTA is incompatible -- in any way -- with the EU's fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property”

De Gucht explains that by “within the EU institutional process, the European Commission has already passed ACTA to national governments for ratification. The Council has adopted ACTA unanimously in December and authorised Member States to sign it. The Commission has also passed on ACTA to the European Parliament for debate and a future” but adds “That said, I believe the European Commission has a responsibility to provide our parliamentary representatives and the public at large with the most detailed and accurate information … so, a referral will allow for Europe’s top court to independently clarify the legality of this agreement” commenting that the Commissioner understand the tensions in the “Europe-wide debate on ACTA, the freedom of the internet and the importance of protecting Europe’s Intellectual Property for our economies” and that De Gucht shares “people’s concern for these fundamental freedoms. I welcome that people have voiced their concerns so actively – especially over the freedom of the internet. And I also understand that there is uncertainty on what ACTA will really mean for these key issues at the end of the day”


http://trade.ec.europa.eu/doclib/press/index.cfm?id=778

Protectionist? Moi?

Those following the progress of the Trans Pacific Partnership Agreement (also referred to in previous posts) and its impact upon international copyright dealings will be interested to read John Mitchell's fascinating piece on the TPP's possible impact on US price competition for certain copyright works offered for sale in the USA.

US readers will know that their s 109 begins......(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

In Mitchell's post entitled "Trans Pacific Partnership Proposes Copyright Suppression of Price Competition" we see that the February 10th drafting states:

Section 4.2 provides:

“Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the importation into that Party’s territory of copies of the work, performance, or phonogram made without authorization, or made outside that Party’s territory with the authorization of the author, performer, or producer of the phonogram. [FN 11]“

“FN 11: With respect to copies of works and phonograms that have been placed on the market by the relevant right holder, the obligations described in Article [4.2] apply only to books, journals, sheet music, sound recordings, computer programs, and audio and visual works (i.e., categories of products in which the value of the copyrighted material represents substantially all of the value of the product). Notwithstanding the foregoing, each Party may provide the protection described in Article [4.2] to a broader range of goods.”

Mitchell argues that if the draft wording remains as it currently stands Congress will be obliged to amend s 109 of the US Act to apply to copies made in the US and authorised by the US copyright holder - the effect being that retailers would be required to secure from the US copyright owner a licence to sell products embodying copyright works even if those products were lawfully made abroad and imported into the USA!

Re-Digi anyone?

Of Silvio, rappers and plagiarism

Silvio's songs may please many  --

but also upset somebody  ...

New judicial troubles at the horizon for former Italian PM and media tycoon Silvio Berlusconi? 

As the readers of this Blog will be well aware, in the past few years Berlusconi has been involved in several trials before various Italian courts.  Now there are also rumours of an imminent lawsuit being brought against him by Italian rapper J.Ax, former member of rap duo Articolo 31 and brother of singer Grido from Gemelli Diversi.



After resigning as PM in November last, Berlusconi has been busy - inter alia - re-organising his (political) party PDL (Popolo della Libertà) in view of this spring's local administrative elections, due to be held in several Italian regions.  To bring some fresh air and hope to his supporters, yesterday Berlusconi announced the release of a new official anthem for his party.

J.Ax seems not so keen 

on being plagiarised

This anthem is to be entitled Gente di Libertà ("People of Freedom") and contains such lines: "Noi siamo il Popolo della Libertà, gente che spera, che lotta e che crede nel sogno della libertà" ("We are the People of Freedom, people who hope, fight and believe in the dream of freedom"). The anthem has not been played yet but has made J.Ax furious. 



Yesterday night the rapper argued via Twitter ("Domani denuncio Berlusconi. Buonanotte. Incredibile c..." - "Tomorrow I am suing Berlusconi. Goodnight. Unbelievable f...k") that Gente di Libertà has plagiarised the lines of Articolo 31's 2002 song Gente Che Spera ("People Who Hope"), whose refrain contains the words "gente che spera" repeated several times.

Let's wait and see what J.Ax eventually decides to do. Will Silvio be among the "people who hope" not to be sued?

Hadopi enters first round of the "third strike" phase

Hadopi, the French authority responsible for the protection of content owner’s rights on the Internet, has revealed that it has now sent its first batch of files of Internet users suspected of illegally downloading films and music protected by copyright law to the French public prosecutor’s office. The public prosecutor’s office must now decide whether or not to instigate legal proceedings against the repeat offenders as the final part of the French ‘Three strikes’ or graduated response programme. All of those accused will already have had a warning email and if they continued to infringe, a further letter sent by registered post and email. Punishment includes a fine of EUR1,500 (USD1,971) and the initial suspension of the individual’s Internet account for a period of up to a month. All decisions are made by a court.

At the end of December, 822,014 Internet users had been sent a first warning, 68,343 had received the "second strike", the registered letter, and 165 repeat offenders had been placed under investigation. In January 2011 research showed that despite the new law, 49% of French internet users continued to illegally download music and films.

http://www.tax-news.com/news/Frances_Hadopi_Submits_First_Case_Load_For_Prosecution____54049.html

Pirate Bay "a stronger case" of infringement than Newzbin

Dramatico Entertainment Ltd & others v British Sky Broadcasting Ltd & others [2012] EWHC 268 (Ch) (20 February 2012) is today's big British copyright news. Mr Justice Arnold, sitting in the Chancery Division, England and Wales, gave judgment. This blogger hasn't yet had a chance to read the details, but this is how Music Week saw the ruling:

"The UK record industry has today claimed a major victory in its fight against the Pirate Bay - with the High Court recognising that the site's owners and users are operating illegally.

Claimants represented by the BPI - including Dramatico, EMI, Polydor, Rough Trade and Warner - argued that the UK's leading six Internet Service Providers should block the filesharing site. Defendants including BT, TalkTalk, Sky and Virgin Media did not attend the hearing and were not represented.

In a written [84 paragraph] judgment handed down earlier today, Mr Justice Arnold ruled that "both users and the operators of TPB infringe the copyrights of the Claimants (and those they represent) in the UK". He added [in paragraph 81]: 

"In my judgment, the operators of TPB do authorise its users' infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting. On any view, they 'sanction, approve and countenance' the infringements of copyright committed by its users. But in my view they also purport to grant users the right to do the acts complained of. It is no defence that they openly defy the rights of the copyright owners. I would add that I consider the present case to be indistinguishable from 20C Fox v Newzbin [here] in this respect. If anything, it is a stronger case". ...

A further hearing is now set for in June to decide which ISPs should block the site, and how".

Red Bus and "Fix it" seminars

Queuing up for the
Red Bus seminar

This coming Tuesday's "Red Bus" copyright seminar is full to bursting point -- and we have a number of people on the reserve list, wondering whether they will be the happy beneficiaries of a late cancellation. If for any reason you find that you can't attend, do please email me here and let me know. Also, to confirm details, may I remind you that the seminar is hosted at the London office of Olswang LLP and runs from 5.30pm to 7.00pm, but you can register at any time from 5.00pm onwards. See you there!

************************************************************

The 1709 Blog's "How to Fix Copyright" breakfast seminar on Tuesday 3 April, hosted in the London office of Bird & Bird, is nearly full -- and there's a special treat for those who attend.  The publishers of William Patry's book, How to Fix Copyright, are providing copies for purchase at the knock-down price of just £11.  There are still a few spaces available. Email here, quoting the subject line "Fixit", to register.

More seminar news: Global Copyright Thinkers

Baker & McKenzie has organised a series of lectures around the world which it has dubbed the Global Copyright Thinker series. A number of high-profile speakers have agreed to take up the challenge to talk about "The Future of Copyright" and, while the London event on 27 February (starring Sir Robin Jacob) has already sold out, there are still a few places left in Brussels, New York, Hong Kong and Sydney:

Brussels: 29 February (Conrad Hotel)
- Maria Martin-Prat, Copyright Head of Unit, Internal Market DG
- Ted Shapiro, Motion Picture Association
- Peter Leathem, PPL
- Kaisa Olkkonen, Nokia
- Krzyzstof Kuik, Media Head of Unit, Competition Directorate-General
- Sophie Scrive, European Newspaper Publishers’ Association

Hong Kong: 5 March (B&M Hong Kong)
- The Honourable Mr. Justice Rogers, former VP of the HK Court of Appeals

New York: 6 March (Harvard Club)
- William Patry, Senior Copyright Counsel, Google

In addition, events in Sydney (14 March) and Warsaw (29 March) are also scheduled -- details to be confirmed.

If you are interested in attending and of the events, please email Cristina Akot at cristina.akot@bakermckenzie.com

Google COULD face record industry competition lawsuit

TorrentFreak reports that the recording industry is considering filing a lawsuit against Google for allegedly abusing its dominant market position to distort the market for online music saying "Industry groups including IFPI and the RIAA want Google to degrade links to 'pirate' websites in its search results" and that "IFPI has obtained a 'highly confidential and preliminary legal opinion' to see if they can force Google to step up its anti-piracy efforts though a lawsuit" - with the IFPI saying “Google continues to fail to prioritize legal music sites over illegal sites in search results, claiming that its algorithm for search results is based on the relevance of sites to consumers" explaining “With a view to addressing this failure, IFPI obtained a highly confidential and preliminary legal opinion in July 2011 on the possibility of bringing a competition law [antitrust] complaint against Google for abuse of its dominant position, given the distortion of the market for legitimate online music that is likely to result from Google’s prioritizing of illegal sites.” So it seems whether the legal action will actually be launched is a matter of whether or not Google will come to the table and meets the recoding industry's demands - which seem to be to very much mirror those that would have been implemented had the SOPA and PIPA legislation been passed into US law. That said, it is hard not to have some sympathy with the record industry's position - one website notes that "searching 'Adele download' on Google returns only two legitimate links with the rest being links to The Pirate Bay, filestube and other free MP3 sites".

But with the demise of SOPA, interesting timing eh?! And with Sony Music about to buy EMI's music publishing division and Universal Music Group planning to acquire EMI's recorded music division (giving UMG an estimated 38% plus market share in recorded music Worldwide) I am not quite sure competition law is something the music industry would want to highlight at the moment .......

More at Torrentfreak here

Spanish Courts ignore Sinde principle

Another Spanish court has found another internet service free from liability for the actions of its users, holding that Cinetube, which redirects web-users to film files online (the majority of which are unlicensed), free from liability for copyright infringement. Spanish courts have generally not been willing to hold such websites liable, especially if they are not run for profit. The landmark precedent in Spanish law involves the P2P file sharing service Sharemula, again held free from liability, although that case was distinguished in another more recent Spanish case where the operator of a file-sharing links service who profited from ad sales and SMS services was found liable.

However, Spain is on the brink of a major change with the proposed implementation of the “Sinde” law and whilst the legislation is currently subject to a challenge in the country’s Supreme Court, Cinetube is known to be high up on the target list of the content industries, who hope the new web-blocking law (if and when implemented) will overrule past precedents and enable them to force ISPs to block access to websites that link to illegal content.

http://www.billboard.biz/bbbiz/industry/legal-and-management/spanish-court-dismisses-case-against-major-1006189552.story

Filtering is not for social networks, says the CJEU

Today the Court of Justice of the European Union published its long-awaited judgment in Case C-360/10 SABAM v Netlog (notice of the referral to the CJEU was reported in this Blog here).

Imposing certain filtering systems for information
circulating over the Internet may not be very handy, 
argues the CJEU 

As our readers will remember, the facts of the case were not dissimilar from those in Scarlet (with the difference that Netlog is a social network, while Scarlet is an internet service provider which provides its customers with access to the internet without offering other services such as downloading or file sharing).

As reported in the Court’s press release, SABAM is a management company which represents authors, composers and publishers of musical works. On that basis, it is responsible for, inter alia, authorising the use by third parties of copyright-protected works of those authors, composers and publishers.

SABAM claimed that Netlog’s social network (where every person who registers acquires a personal profile which the user can complete himself and which becomes available globally) also offers all users the opportunity to make use, by means of their profile, of the musical and audio-visual works in SABAM’s repertoire, making those works available to the public in such a way that other users of that network can have access to them without SABAM’s consent and without Netlog paying it any fee.

Following unsuccessful attempts to conclude an agreement aimed at obtaining payment of a fee by Netlog for the use of the SABAM repertoire, in 2009 SABAM had Netlog summoned before the President of the rechtbank van eerste aanleg te Brussel (Court of First Instance, Brussels) in injunction proceedings. SABAM sought, inter alia, to obtain an order that Netlog cease unlawfully making available musical or audio-visual works from SABAM’s repertoire. In response to this, Netlog submitted that granting SABAM’s injunction would have been tantamount to imposing on Netlog a general obligation to monitor. This would have been contrary to Article 21(1) of the Law of 11 March 2003 on certain legal aspects of information society services, which transposes Article 15(1) of the Ecommerce Directive into Belgian law. In addition, Netlog claimed that the granting of such an injunction could have resulted in the imposition of an order introducing, for all its customers, in abstracto and as a preventative measure, at its own cost and for an unlimited period, a system for filtering most of the information which is stored on its servers in order to identify on its servers electronic files containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights, and subsequently blocking the exchange of such files.

The Court of First Instance decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

"Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950], permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that “[the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”, to order a hosting service provider to introduce, for all its customers, in abstracto and as a preventive measure, at its own cost and for an unlimited period, a system for filtering most of the information which is stored on its servers in order to identify on its servers electronic files containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights, and subsequently to block the exchange of such files?"

Today the Court provided its response and, in compliance with its earlier ruling in Scarlet, held that the owner of an online social network cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work.

After having stated that Netlog is a hosting service provider as per Article 14 of the E-Commerce Directive, the Court found to be common ground that implementation of a filtering system would require the hosting service provider to identify, within all of the files stored on its servers by all its service users, the files which are likely to contain works in respect of which holders of IP rights claim to hold rights. Next, the hosting service provider would have to determine which of those files are being stored and made available to the public unlawfully, and, lastly, it would have to prevent files that it considers to be unlawful from being made available. Such preventive monitoring would therefore require active observation of the files stored by users with the owner of the social network. Accordingly, the filtering system would require that owner to carry out general monitoring of the information stored on its servers, something which is prohibited by Article 15(1) of the E-Commerce Directive. 

Though the protection of the right to intellectual property is enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union, says the Court, there is nothing whatsoever in the wording of that proviso or in the Court’s case law to suggest that that right is inviolable and must for that reason be absolutely protected. Indeed, pursuant to the Court's judgment in Case C‑275/06  Promusicae, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights. More specifically, in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures. Accordingly, in circumstances such as those in the main proceedings, national authorities and courts must, in particular, strike a fair balance between the protection of the intellectual property right enjoyed by copyright holders and that of the freedom to conduct a business enjoyed by operators such as hosting service providers pursuant to Article 16 of the Charter.

As such, the injunction requiring the installation of the contested filtering system involves monitoring all or most of the information stored by the hosting service provider concerned, in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also works that have not yet been created at the time when the system is introduced.  Accordingly, such an injunction would result in a serious infringement of the freedom of the hosting service provider to conduct its business since it would require that hosting service provider to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly. 

In those circumstances, such an injunction is to be regarded as not respecting the requirement that a fair balance be struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as hosting service providers. Moreover, the effects of that injunction would not be limited to the hosting service provider, as the contested filtering system may also infringe the fundamental rights of that hosting service provider’s service users, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively. Indeed, the injunction requiring installation of the contested filtering system would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network by its users. The information connected with those profiles is protected personal data because, in principle, it allows those users to be identified. Moreover, that injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. In addition, in some Member States certain works fall within the public domain or may be posted online free of charge by the authors concerned.

Jolly times for Facebook and similar
operations in the EU ... but will it last?

The ruling is not surprising, given the approach taken by the Court in Scarlet. However, readers of this Blog may be interested in discussing the implications of such an interpretation of intermediaries' obligations in light of the recent signature by the EU of ACTA. In particular, one may wonder how it is possible to reconcile CJEU's recent jurisprudence on ISPs with ACTA's provisions, in particular Article 12(1)(a), according to which "Each Party shall provide that its judicial authorities have the authority to order prompt and effective provisional measures ... against a party or, where appropriate, a third party over whom the relevant judicial authority exercises jurisdiction, to prevent an infringement of any intellectual property right from occurring, and in particular, to prevent goods that involve the infringement of an intellectual property right from entering into the channels of commerce".

Some Thoughts on the Right of Communication to the Public on the Internet

Along with the right of reproduction, the right of public performance (or communication to the public) is one of the two fundamental rights enjoyed by a copyright holder under French law. Determining when this right has been infringed is therefore of obvious interest.

Looking at the case-law, a first distinction can be drawn between cases involving a lawful initial communication to the public where the issue is whether there has been an unauthorized further communication and those where the initial communication is clearly unlawful and the issue is whether there has been further communication. In these latter cases, the courts are not averse to finding that there has in fact been unathorized further communication based on facts that might not normally in and of themselves constitute communication to the public (e.g., providing links to pirate sites).

As regards the former cases (lawful initial communication), the issue is usually determined by reference to the "new public" test, i.e., does the relevant act communicate the work to a new public not taken into consideration by the rightsholder when he authorized the initial communication? (see also CJEU 4 October 2011 : http://curia.europa.eu/juris/document/document.jsf?text=&docid=110361&pageIndex=0&doclang=EN&mode=doc&dir=&occ=first&part=1&cid=162798)

When applied to the internet (and, more specifically the World Wide Web), the question is not an easy one to answer. Given the international, open nature of the Web (subject of course to paywalls), the decision to post or stream a work online is, generally speaking, one to (potentially) communicate it to everyone with an internet connection and a browser.

A recent ruling by the Paris Court of Appeals (30 November 2011) provides an interesting case in point. The case involved typosquatting whereby the defendant took advantage of the fact that people sometimes mistype the domain name they intend to type to create a system whereby certain misspellings led to a "transit" site (which generated advertising revenue for the defendant) before leading to the actual site the person obviously intended to visit. One of the grounds raised in the action (along with infringement of domain name rights, trade name rights and trademark rights) was infringement of the right of communication to the public of the work (the website). The Court sided with the plaintiff, agreeing that the defendant had communicated the site to a new public. The Court held:

"... by automatically re-directing certain websurfers towards Trokers site by parasitically exploiting addresses that it had purposefully altered [...] Web Vision communicated this site to the public by an unauthorized means and thus engaged in an act of exploitation of this site that is distinct from that initially desired by its owner, which constitutes unlawful communication to the public within the meaning of Section L.122-4 of the Intellectual Property Code."


This finding seems to strain credulity inasmuch as it is obvious that someone who mistyped the domain name really did intend to visit the site he eventually did visit and the publisher of this site surely intended to communicate the site to such person.

The typosquatting decision can be read here (in French):http://www.legalis.net/spip.php?page=jurisprudence-decision&id_article=3332

For another approach see the M6 Replay decision here:http://www.legalis.net/spip.php?page=jurisprudence-decision&id_article=3152

Will SOCA rue another Oink?

RnBXclusive.com , the British music blog that posted, amongst other things, alleged links to unlicensed music files, has been shut down by the Serious Organised Crime Agency. The website currently hosts a SOCA statement that says the UK government agency has taken control of the domain, and that the individuals behind the website have been "arrested for fraud". The SOCA statement also notes: "The majority of music files that were available via this site were stolen from the artists. If you have downloaded music using this website you may have committed a criminal offence which carries a maximum penalty of up to ten years imprisonment and an unlimited fine under UK law". The UK authorities’ previous criminal action against a similar website, Oink, was unsuccessful.

The SOCA ‘takeover’ is quite bizarre actually. I would never have thought a UK court would imprison someone for 10 years for illegally downloading and when I went online to check the site today (after it was closed) and my own IP address was noted, dated and timed and the site states that “SOCA has the capability to monitor and investigate you, and can inform your internet service provider of these infringements” which is rather odd as I have never illegally downloaded anything – even more odd as the message goes on to say “You may be liable for prosecution and the fact that you have received this message does not preclude you from prosecution. As a result of illegal downloads young, emerging artists may have had their careers damaged. If you have illegally downloaded music you will have damaged the future of the music industry."
There is also a message “Visit pro-music.org for a list of legal music sites on the web”.

You can risk it yourself at http://www.rnbxclusive.com/

Meltwater: Copyright Tribunal ruling -- now for the other side of the coin

While I was digesting the media release on behalf of the Newspaper Licensing Agency (NLA) for an earlier post here, Meltwater Group and the PRCA (Public Relations Consultants Association) issued their own, quite upbeat release too. It reads, in relevant part:

"Today’s Copyright Tribunal ruling makes it clear that the UK’s copyright law is on a head-on collision with the average Internet user. Everyday acts such as searching for news and sharing it at work now require a license from the Newspaper Licensing Association (NLA). In a win for business, Meltwater Group and the PRCA (Public Relations Consultants Association) were able to convince the Copyright Tribunal to slash the NLA’s proposed license fees by 90 per cent. Sadly today’s verdict is only a partial victory for the UK Internet community. Going forward, it is clear that UK clients of online news monitoring services will need a license agreement with the NLA and pay copyright fees. This is also the case for commercial UK clients of any news monitoring vendor including Google News. During the proceedings, the NLA stated that it has been mandated by its owners and intends to pursue licensing of UK business users of Google News.

These UK court rulings make millions of UK citizens lawbreakers. According to the courts, sending an email to a work colleague with a news headline, browsing a free news service or sending a Tweet with news at work requires a licence from the publishers, without such licence they infringe copyright. UK copyright law needs an overhaul to make it compatible with the Internet. Without such modernization, millions of people will unintentionally break the law every day.

Today’s decision in the Copyright Tribunal is part of an on-going series of cases where Meltwater and the PRCA challenged the NLA on its high fees for reading freely available news. In the ruling, the Copyright Tribunal agreed with Meltwater and the PRCA's contention that the NLA's proposed licensing scheme was not reasonable and required amendment. Nine points were challenged by Meltwater and the Tribunal agreed with Meltwater on seven of them. By fighting this licensing scheme, the PRCA and Meltwater were successful in reducing the fees for all businesses totalling more than £100 million over the next three years. The savings for Meltwater clients alone are more than £24 million in the same period.

“The ability to browse the Internet without fear of infringing copyright has always been a fundamental Internet principle. Society is not served by these rulings in UK and it seems that this interpretation of the law fundamentally clashes with how millions of people use the Internet every day,” says Jorn Lyseggen, CEO of Meltwater. “Meltwater is a strong believer in copyright and a strong supporter of a sustainable, independent press. However, the UK needs a copyright law that allow its citizens to use the Internet without fear of unintentional infringement.”

Meltwater and the PRCA continue to advocate for a modern copyright law for the UK. Notwithstanding the Tribunal's decision, Meltwater and the PRCA are appealing aspects of the Court of Appeal's decision on web browsing to the UK Supreme Court scheduled for February 2013. Also encouraging are several recent decisions of the European Union Court of Justice that are consistent with Meltwater and the PRCA’s position. In addition to attention from the judiciary, Vince Cable, UK Business Secretary, recommended in August that the UK government should change these out-of-date copyright laws based on the recommendations of the Hargreaves Report: Digital Opportunity – A Review of Intellectual Property and Growth. The UK Intellectual Property Office estimated that changes to the law will bring £7.9 billion to the UK economy. With copyright rules that are friendly to both publishers and businesses, the UK economy will create a new layer of services that help publishers make more money and increase UK tax revenues. ...

Importantly, the ruling is unique to the UK and only impacts people reading and sharing news in that country. As recognised by the Copyright Tribunal, copyright is governed by national law and users of media monitoring services outside UK are not subject to NLA licensing fees today.

Meltwater and the PRCA have stood alone in challenging the NLA’s licensing scheme both in the courts, and in the Copyright Tribunal, on behalf of PR agencies, in-house PR teams and all other business users of the Internet. If unchallenged, the NLA’s scheme would have increased costs not only for Meltwater customers but also for all users of commercial media monitoring services, many of whom are PRCA members ...".

I have just heard from my blogging colleague Asim Singh that Associated Press is commencing proceedings against Meltwater in the United States -- so I think we can assume that this conflict has gone global.

Meltwater: US Proceedings

Following up on Jeremy's post, readers may be interested to learn that the AP has issued the following press release:

"AP Press Release
AP files lawsuit against Meltwater NewsSubscriber-only service uses unlicensed AP content to compete against AP
NEW YORK – The Associated Press today filed suit against Meltwater News for copyright infringement and “hot news” misappropriation. Using unlicensed verbatim AP content, Meltwater delivers a service to paying customers that competes directly with AP and its customers, the suit claims.
The suit was filed Tuesday, Feb. 14, in the U.S. District Court for the Southern District, in Manhattan, by the law firm Davis Wright Tremaine, representing AP.
As a subscriber‑only service, Meltwater distributes “Meltwater News,” which styles itself as a modern-day electronic clipping service with a guarantee of “no copyright fees.” Meltwater delivers to its paying customers substantial verbatim excerpts from AP stories and other published news stories based on keywords selected by its customers. As AP’s complaint alleges, Meltwater also offers its customers the ability to store these excerpts, as well as full-text articles, in a customer archive housed on Meltwater’s server and facilitates the incorporation of AP articles into customer newsletters to be further distributed.
“Meltwater News is a parasitic distribution service that competes directly with traditional news sources without paying license fees to cover the costs of creating those stories,” said Tom Curley, president and CEO of The Associated Press. “It has a significant negative impact on the ability of AP to continue providing the high-quality news reports on which the public relies.”
Meltwater is a directly competing news service for many AP subscribers, including government agencies that use the AP wire to monitor the news. AP bears all of the extensive costs associated with creating its content, while Meltwater bears only the minimal costs of electronic distribution – thus permitting it to undercut AP with lower subscription rates through its infringing activities.
The UK Court of Appeal and a Norway court have already issued decisions holding that the content delivered by Meltwater requires a license under those countries’ governing copyright laws. But, in contrast to many other news outlets and news aggregators that deliver AP news reports to the public (including Yahoo News, Google News and AOL, which all have licenses for AP content), Meltwater does not. It refuses to license the content that it delivers to its customers.
“Meltwater free-rides on AP’s significant investments in gathering and reporting news,” said Laura Malone, AP acting general counsel. “In short, Meltwater earns substantial fees for redistributing premium news content, while bearing none of the costs associated with creating that content.”
AP’s lawsuit is not a general attack on news aggregators, stressed Malone. Nor does AP in any way seek to restrict linking or challenge the right to provide headlines and links to AP articles.
“Meltwater is not a typical news aggregator,” said Malone. Most notably, Meltwater is a closed system sold only to subscribers for a fee, and not a means of expanding public access.
Further, the complaint alleges that Meltwater provides lengthier and more systematic excerpts from AP stories than most news aggregators, particularly with regard to AP breaking news articles. Meltwater retains a vast archive of AP articles dating back to at least 2007, many of which are no longer publicly available on the Internet. Meltwater actively facilitates the storage of those and other articles in customer archives on the Meltwater system.
The publication of fast and accurate worldwide news coverage requires a substantial financial commitment. AP has bureaus in more than 100 countries and is the only news organization with reporters in every U.S. statehouse. AP journalists gain an intimate knowledge of their beats and sources, greatly enhancing the value of their reporting, the suit says.

About The APThe Associated Press is the essential global news network, delivering fast, unbiased news from every corner of the world to all media platforms and formats. Founded in 1846, AP today is the largest and most trusted source of independent news and information. On any given day, more than half the world's population sees news from AP. On the net: www.ap.org
For more information, contact:
Paul ColfordDirector, AP Media Relations212-621-1720"

Meltwater: Copyright Tribunal ruling out today

The 1709 Blog has received this afternoon two items of interest to those who have been following the Meltwater saga (see eg earlier posts here and here).  The first is a link to the interim decision of the United Kingdom's Copyright Tribunal, which was released today.  The second is an unsurprisingly upbeat media release from law firm Berwin Leighton Paisner LLP, which had the good fortune to be instructed by the winning party, the Newspaper Licensing Agency (the NLA). According to the media release,

"In response to the Copyright Tribunal’s interim decision in the case of Meltwater Holding v the Newspaper Licensing Agency, David Pugh, Managing Director of the Newspaper Licensing Agency, said:

“We welcome today’s decision which follows two court cases [Chancery Division here; Court of Appeal here] confirming the legality of licensing [it's not licensing per se that is at stake -- that has never been in question. Rather, it's one specific situation in which the NLA maintained that a licence was necessary]. We are pleased that the Copyright Tribunal has upheld the principle and structure of our online licensing scheme, and confirmed that Meltwater is subject to the same requirements as Media Monitoring Organisations.  

The judgment provides a measured, equitable regime that will ensure stability for both publishers and end-users alike: our customers will benefit from a transparent licensing structure and newspapers can be sure of a fair reward for their content.  

We think that all concerned will welcome the certainty that the Tribunal has provided, and we look forward to working with the newspapers, MMOs and our customers to implement the licence as quickly and as smoothly as possible”

Simon Clark, Head of Intellectual Property at Berwin Leighton Paisner, who led the team representing the NLA and the newspapers, added: "This is an interim decision - the parties now have two months in which to try to agree a few outstanding issues, after which the Tribunal will issue its final decision setting out the exact wording of the two online licences".

Today's ruling, which runs to over 260 paragraphs plus appendices, will take a while to digest. Meanwhile, the dispute is still to receive the benefit of an analysis from the Supreme Court.  Nor -- and this may be a possibility given that the courts in Slovakia have approached a similar dispute in a very different way -- has there been a reference to the Court of Justice of the European Union.

Luksan and French Law and Practice

The recent ruling by the CJEU in Luksan raises questions as to the conformity of French legislative provisions governing author-producer and performer-producer relationships in the context of movies and other audiovisual works.

The Court held:

"European Union law must be interpreted as allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of rights to exploit the cinematographic work such as those at issue in the main proceedings (satellite broadcasting right, reproduction right and any other right of communication to the public through the making available to the public), provided that such a presumption is not an irrebuttable one precluding the principal director of that work from agreeing otherwise."

Under Section L.113-7 of the Intellectual Property Code, the presumed co-authors of an audiovisual work are the director, screenwriter (as well as writer of the the treatment and dialogue), composer of music created especially for the work (as well as the author of the underlying work in the case of adaptation). Pursuant to Section L.132-24 of the Intellectual Prperty Code, the production agreement between the producer of an audiovisual work and a co-author thereof (director, screenwriter) creates a rebuttable presumption of an assignment of rights of exploitation in favour of the producer. (The musical composer's rights are excluded as they are dealt with through SACEM.)

On its face, the preumption is rebuttable and would hence seem to be in conformity with Luksan principles. In practice, the imbalance in negotiating power between the parties is such that the presumption is never actually rebutted. Would this fact be enough to disqualify the French statutory provision? Probably not.

More problematic is the case of performers (actors). Section L.212-4 of the Intelelctual Property Code provides for an irrebuttable presumption of assignment of exploitation rights in the audiovisual work in favour of the producer. Assuming the Luksan pinciples apply beyond the narrow case of the principal director (not an unreasonable assumption) to the case of performers and their related rights, this statutory provision is incompatible with EU law.

What is to be done about EU copyright law?

Over on the IPKat, Jeremy reports (via guest blogger Magali Delhaye) that the European Commission has announced that it will be taking a look at ‘take down’ procedures within the different countries of the EU which variously operate under the The E-Commerce Directive, which sets up the liability regime of Intermediary Service Providers depending on the different types of activities provided - i.e. acting as a mere conduit, catching or hosting, and provides the basis for a “notice and action” procedure but does not establish one as such. Each country has therefore acted upon its own criteria in that matter. As a result, while the internet is ubiquitous, Europe is fragmented in terms of procedures and remedies to block or remove illegal content. The Commission will review the IP Enforcement Directive in parallel to this initiative.

The adoption process for this initiative will be keenly watched since it will surely trigger passionate debates between rightholders, ISPs and civil society who have differing and often opposing views, especially with regard to the following aspects of a notice and action procedure:

• requirements for the notice,
• the possibility to submit a counter-notice by the alleged infringer,
• the timeframe for blocking or taking down the unlawful content,
• liability for providing wrongful notices or for taking down or blocking legal content,
• the role of the intermediary as a “private judge” and
• the efficiency of a notice and take down procedure (see Commission Staff Working Paper “Online services, including e-commerce, in the Single Market” accompanying the Communication)".

It will be interesting to see what comes back, although I somewhat glibly predict it may well involve the advantages of ‘pan-European harmonisation’ as a dominant theme!

Elsewhere, and at the other end of the digital battleground, The Pirate Bay co-founder Peter Sunde has been pouring his heart out to Wired.com in a fairly predictable complaint against his criminal conviction by a Swedish court and sentence of 8 months imprisonment, and the fact that whilst the internet and consumers adapt to new and improved technology, the entertainment industries "refuse to evolve" saying “instead of looking at evolution as something inevitable, the industry has made it their business to refuse and/or sue change, by any necessary means". But more interestingly Sunde argues that the Supreme Court in Sweden has “squandered a golden opportunity to define how to interpret the European Union directives for digital information” adding (after a lengthy rant against the unfairness of his prosecution) that “the problem here is that we're allowing this dying industry to dictate the terms of our democracy. We allow them to dictate new laws (ACTA, SOPA, PIPA, IPRED, IPRED2, TPP, TRIPS, to name a few recent ones) that forbid evolution. If you don't give up before you're sued, they corrupt the legal system” and ending with this statement repeated from when Sunde was refused his appeal : "Today I urge everyone to make sure that the entertainment industry does not profit from them anymore. Stop seeing their movies. Stop listening to their music. Make sure that you find alternative ways to culture. Spread and participate in culture. Remix, reuse, use, abuse. Make sure no one controls your mind. Create new systems and technology that circumvent the corruption. Start a religion. Start your own nation, or buy one. Buy a bus. Crush it to pieces. The internet is being controlled by a corrupt industry. We need to stop it.”

Source: www.wired.com

Dutch aim to de-clog European copyright law

A Dutch professor and member of a Government committee on copyright has said that it wants to relax copyright laws that stop internet users and others using protected material to make ‘creative remixes’. Bernt Hugenholtz of the Dutch state committee on copyright law said “We all love YouTube" adding "Many of the videos we find there are creative remixes of material protected under copyright. They're mostly for laughs or political commentary, or they're simply absurd. If we applied the law today strictly, we would not be allowed to do these things". Hugenholtz went on to say "We all agree that it's good for creativity, good for laughs, and no one gets hurt. Copyright holders are not harmed, so it makes a lot of sense to allow this. But in Europe, where we do not have open norms like the fair use doctrine in the United States, we can't do these things without infringing the law."

Hugenholtz, copyright law professor at the University of Amsterdam, who reportedly says European copyright law is outdated because the exceptions it allows for the use of protected content do not take new technology into account, discussed his views with representatives of European governments, the entertainment industry, internet entrepreneurs, legal experts, EU representatives, journalists and librarians who were gathered in The Hague for the "Towards Flexible Copyright" conference organised by the Dutch government.

At the conference, Deputy Justice Minister Fred Teeven said he is exploring "a more flexible system of copyright exceptions that would also work in a European contex”.

http://www.rnw.nl/english/article/loosen-copyright-law-says-dutch-government

Image: freefoto.com

ACTA and Sinde in the news

Against a backdrop of Europe wide protests against the Anti-Counterfeiting Trade Agreement (ACTA), the treaty that aims to harmonise some key elements of intellectual property law around the world, comes news that some EU signatories, including the Czech Republic, are now re-considering their position. Whilst a number of EU countries including Germany have so far not signed the Treaty, the British government remained committed to ACTA with IP Minister Baroness Judith Wilcox telling reporters: "It was important for the UK to be a signatory of ACTA as it will set an international standard for tackling large-scale infringements of [intellectual property rights], through the creation of common enforcement standards and more effective international cooperation. During the negotiations, we continually pushed for greater transparency as we believed that this would have led to a better understanding of the agreement by the public".

We also have news that Spain’s law Sinde - the country's new website blocking law - will be challenged in the country's Supreme Court, who have agreed to hear an appeal from the Association Of Web Users who claim the law is unconstitutional, saying that only a court should be able to force a alleged infringing website offline. The Spanish Supreme Court confirmed it will consider the AOWU's claim, and have stayed moves by the Spanish government to implement the practical aspects of rolling out the new Sind regime pending their hearing.

More on Sinde here and more on ACTA here

Protecting rights of film directors: the ECJ rules

Last week the Court of Justice of the European Union gave a ruling in Case C-277/10, Martin Luksan v Petrus van der Let.  This was prompted by a reference for a preliminary reference from Austria.  In short, the court has affirmed that EU law requires Member States to ensure that their national law gives the principal director of a cinematographic work the initial ownership of the right to exploit it commercially, along with the initial entitlement to the right to fair compensation in respect of private copying.

Member States can establish a legal presumption that such exploitation rights will be automatically transferred to the producer of the film, so long as the parties are able to opt out of this transfer by agreement.  The right to fair compensation, however, cannot be the subject of an automatic presumption of transfer to the producer -- whether such a presumption is rebuttable or not.

The active part of the Court's ruling runs as follows:

"1. Articles 1 and 2 of Council Directive 93/83 ... on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, and Articles 2 and 3 of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society in conjunction with Articles 2 and 3 of Directive 2006/115 ... on rental right and lending right and on certain rights related to copyright in the field of intellectual property and with Article 2 of Directive 2006/116 ... on the term of protection of copyright and certain related rights, must be interpreted as meaning that rights to exploit a cinematographic work such as those at issue in the main proceedings (reproduction right, satellite broadcasting right and any other right of communication to the public through the making available to the public) vest by operation of law, directly and originally, in the principal director. Consequently, those provisions must be interpreted as precluding national legislation which allocates those exploitation rights by operation of law exclusively to the producer of the work in question.

2. European Union law must be interpreted as allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of rights to exploit the cinematographic work such as those at issue in the main proceedings (satellite broadcasting right, reproduction right and any other right of communication to the public through the making available to the public), provided that such a presumption is not an irrebuttable one precluding the principal director of that work from agreeing otherwise.

3. European Union law must be interpreted as meaning that, in his capacity as author of a cinematographic work, the principal director thereof must be entitled, by operation of law, directly and originally, to the right to the fair compensation provided for in Article 5(2)(b) of Directive 2001/29 under the ‘private copying’ exception.

4. European Union law must be interpreted as not allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of the right to fair compensation vesting in the principal director of that work, whether that presumption is couched in irrebuttable terms or may be departed from".

This ruling marks what some will see as a further drift of harmonised European Union law away from its initial basis in the operation of rights in the marketplace and into the territory of the allocation of rights as between creators and entrepreneurs.

Butler not willing to serve Greek yoghurt

Copyright lawyers busy 
while trying to settle the case

The middle finger which guest singer M.I.A. flashed during the performance of Madonna's new single Give me all your luvin at last week's Super Bowl will probably not be the only scandal surrounding the event, as allegations of copyright infringement have also come into play.

The Super Bowl -- which was shown on NBC this year -- is routinely viewed by more than 100 million people and is probably going to be the biggest TV event of the year. 

A new advertisement for US food giant Dannon's Oikos Greek yoghurt, which debuted last Sunday and was aired during the third quarter of the game, allegedly contains a very similar riff to that at the start of 2003 hit and ARIA Award-winning Zebra by Australian band John Butler Trio.

The ad features US TV star John Stamos and is intended to be a little bit sexy and a little bit playful. Dannon's commercial cost $50,000 to make and the prime-time Super Bowl spot cost the company $3 million, according to ABC.

Due to become an expensive yoghurt?

So far, Dannon's spokesman in New York told The Australian that the company was not able to say whether the music had been based on the John Butler Trio song. This is because the ad was created with the help of a crowd-sourcing advertising site which allowed advertising professionals to submit ideas, from which Dannon then chose. In any case, Dannon has apologised for any anxiety caused to the John Butler Trio and promised to further investigate this matter.

As reported by the Herald Sun, when it comes to advertising, copyright infringements usually arise when independent musicians are hired to write soundtracks for commercials. As explained by IP lawyer Nicholas Pullen, "[t]he advertiser ends up having to pay out because the independent muso has either inadvertently or actually tried to mimic that tune".

In this case the actual sum Dannon may end up to pay promises to be fairly high, due to the actual exposure which Dannon's advertisement has so far enjoyed.