Copyright reform - the UK Government consults

It's all been surprisingly fast moving in the world of IP in the United Kingdom since Professor Ian Hargreaves published his review of IP and Growth - and now new government copyright proposals are being opened up for consultation until a closing date of the 21st March 2012 and the proposals are "to modernise the copyright system and remove unnecessary barriers to growth". The consultation "seeks relevant evidence on the potential for the proposed measures to improve the contribution of the copyright system to UK economic growth, and to inform decisions on legislative and other actions in these areas. The consultation is aimed at individuals and organisations, including small and medium sized business, which may be impacted by the proposed changes to UK copyright laws." So what's on the table? Well here's a snapshot:

- Creating an exception to allow limited acts of private copying – so making the widespread practice of coping a CD to an MP3 player legal saying “This move will bring copyright law into line with modern technology and the reasonable expectations of consumers.”

- Widening the exception for non-commercial research to allow data mining, enabling researchers to achieve new medical and scientific advances from existing research. Currently researchers cannot use some new computer techniques to read data from journal articles which they have already paid to access without specific permission from the copyright owners of each article.

- Introducing an exception for parody and pastiche, to give comedians and other people the creative freedom to parody someone else’s work without seeking permission from the copyright holder.

- Establishing licensing and clearance procedures for ‘orphan works’ (material with unknown copyright owners). This would open up a range of works that are currently locked away in libraries and museums and unavailable for consumer or research purposes.

- Introducing provision for voluntary extended collective licensing schemes, which would make it simpler to get permission to use copyrighted works and help ensure rights owners are paid. These schemes would allow authorised collecting societies to license on behalf of all rights holders in a sector (except for those who choose to opt out).

- Collection societies are also highlighted with the suggestion that they must self regulate to acceptable standards – or face statutory regulation

- Modernising other exceptions for copyright including those for education, quotation and people with disabilities

- introducing a new prohibition on allowing contractual provisions to override any of the statutory copyright exceptions.

Minister for Intellectual Property Baroness Wilcox said: “The Government is focused on boosting growth and some freeing up of existing copyright legislation can deliver real value to the UK economy without risking our excellent creative industries. We are encouraging businesses to come forward with thoughts and evidence on our proposals to help us achieve this” adding “It is an exciting time for the development of intellectual property in the UK. We have already appointed Richard Hooper to run a feasibility study into a Digital Copyright Exchange and this consultation is the next step to ensure copyright legislation in the UK keeps up to date with emerging technologies and consumer demand.”

There is more – and you can access the Consultation and a the response form here http://www.ipo.gov.uk/pro-policy/consult/consult-live/consult-2011-copyright.htm

Comments on the consultation can be submitted by email to copyrightconsultation@ipo.gov.uk or by post to David Burgess, Copyright Consultation, Intellectual Property Office, 21 Bloomsbury Street, London WC1B 3HF.

Music Law Updates Updated

He is far too modest to mention it, so I'll tell you. Our colleague Ben Challis has re-launched his Music Law Updates with a brand new website which you can check out at www.musiclawupdates.com.  Explains Ben:

"The site now contains music and entertainment industry related legal updates from 2002 to the present day - some 2,000 articles in total - and these have (in the words of our webmaster) been "painstakingly uploaded, categorised and tagged" in order to make it easier than ever to find topics you are looking for. The search functionality has also been vastly improved to help users navigate their way around the content. The site continues to provide information on upcoming conferences, articles, a detailed links database and general advice on music business contracts. In addition, the site has a new mailing list which readers can subscribe to by simply entering their preferred email on the homepage and then, miraculously, once a month, they will receive a list of stories uploaded that month".

In the Land of Blood and ... Copyright

Back in February this year, Croatian journalist James Braddock sued Hollywood actress Angelina Jolie and Others before the U.S. District Court for the Northern District of Illinois. He claimed copyright infringement in his 2007 book The Soul Shattering, seeking also an emergency injunction against the film's release.

The book is a factual account of the tragedies suffered by Bosnian and Herzegovinan women and children during the Bosnian War and was originally published in Croatia. In particular, Mr Braddock claims that a film written and directed by Ms Jolie – In the Land of Blood and Honey –, which is due to be released in the U.S. next 23 December and has already attracted some criticism, amounts to an infringement of his copyright.

Mr Braddock asserts that in a few occasions he was approached by the defendant Mr Eden Sarkic, an executive film producer in the Bosnian region with Scout Film, to discuss the possibility of creating a film from his own book. Mr Braddock also came in touch with Ms Jolie’s Make It Right charity, seeking to establish a partnership to build villages or houses across desolated cities, including Sarajevo and New Orleans.

In 2010, the plaintiff learned that Ms Jolie had been involved in the making of a new film to be set in Bosnia, for which Mr Sarkic appeared to be an executive producer. Scout Film was also actively involved in the production.

According to Mr Braddock, In the Land of Blood and Honey has striking similarities with The Soul Shattering. In particular, he claims that these concern:

• Key plot elements - Both the works illustrate a love story which takes place in war-torn Bosnia and Herzegovina in the early 1990s;
  
• Characters - In both works, the main female character is a Croatian living in Sarajevo, who is captured and imprisoned in a Serbian-held concentration camp located in a village. This, according to the plaintiff, is unusual, since most camps were located in abandoned industrial or agricultural complexes. In addition to this, the main female character is subject to continuous abuse and rape by soldiers and officers in the camp and is forced to become a servant at the camp headquarters, a duty which was apparently assumed by very few of the captives. Also, the book’s and film’s main male character is the deputy camp commander, the son of a high-ranking “Greater Serbian” nationalist and officer of the Yugoslav People Army, who struggles with his own emotions and his military duty. Amidst his struggle, he helps the main female character escape from the camp.
  
• Events, sequences and settings.

This being the background to the case, a couple of days ago, in an interview with the Los Angeles Times, Angelina Jolie said that she has never read Mr Braddock’s book. The actress played down the lawsuit, stating: “It's par for the course. It happens on almost every film". She added: “There are many books and documentaries that I did pull from. It's a combination of many people's stories …  But that particular book I've never seen."
There is no doubt that the case of plots is a very difficult and fascinating one in the realm of copyright. Furthermore, US case law has not been very consistent so far. We’ll see what happens next and to which of the parties the Court’s decision will actually look a jolie one.

Moral rights: a book review

Moral Rights - Principles, Practice and New Technology, by Mira T. Sundara Rajan, is reviewed here by Iona Harding and Emily Sweetland.  Iona and Emily both belong to Baker & McKenzie LLP, where they are Associates in the firm's Intellectual Property Group. Iona and Emily write:

"The initial question posed in this book may well be the same question that many readers of this review are currently asking themselves: why care about moral rights? If that is the case, Mira Rajan has at least succeeded in knowing something about her readers and their level of interest in the subject matter. Her answer is that moral rights are "vital now more than ever as we enter the Digital Age."

This is a theme throughout the book, which begins by addressing the evolution of moral rights both throughout history and throughout the world, as well as the place of moral rights in the international copyright regime. The book then comprehensively discusses moral rights in the information technology, digital music, film, and arts industries, before looking at moral rights and open access and the future of moral rights.

With sometimes highly evocative language, the author walks us through the history of moral rights, comparing the doctrine in France (where a clear distinction is made between economic rights in a work and the author's droit moral) with that in Germany (where a monistic approach discourages the separation of economic and moral rights). She then looks at how the UK came to adopt moral rights, and explains why we rejected the concept when the Statute of Anne was passed, only acknowledging it fully in the Copyright, Designs and Patents Act 1988 (CDPA). Case studies of "younger" jurisdictions such as Canada and Japan provide an interesting counterpoint to the European approach, with the role of honour and reputation in Japanese culture being a driver behind the country's strong protection of moral rights and its unusual stance in allowing corporations to have moral rights in their works. 

To some it may seem that moral rights have become irrelevant in the digital age, where there is more distance than ever between the author and his work. Mira Rajan's view is that the fact that moral rights have become more difficult to enforce in practice does not mean that they are no longer relevant. However, the book reveals that moral rights are fundamentally a cultural phenomenon, a concept which is enormously dependent on the social value attributed to the author of a work and which cannot easily be codified. The practical question of how to legislate for those rights is difficult: there appears to be no clear answer, although the breadth of protection offered throughout the world may be testament to the need for moral rights regulation to provide the flexibility and "delicate nuances" which are needed in the Digital Age and which are not, she argues, sufficiently protected by the copyright regime. 

The impact of technology on moral rights is discussed over the course of a number of chapters covering music, film, visual arts and open access separately. The author explains that moral rights should be protected despite evolving technology and, as the forerunner of commercial digitisation, the music industry should provide a framework of how to apply moral rights to digital works. Fundamentally, although we may need to adapt moral rights to fit with the way the world now works, the principles of integrity, attribution and disclosure should apply equally to digital and analogue works. However, no practical examples are given as to how moral rights could or should be adapted. 

There is one small point that needs attention. The work states, at p.381, that in the UK a producer is the author of the copyright in a film but the director is entitled to moral rights "even though he is not considered an author". For films made on or after 1 July 1994, s.9(2)(ab) of the CDPA however states that the author of a film is its producer and the principal director. Unless the producer and the principle director are the same person, the film is a work of joint authorship (s.10(1A)). Professor Cornish's comments which follow appear to have been made in 1989 so are now out of date.  

The author is undeniably passionate about her subject, meaning that her writing is engaging and convincing. The narrative is rich and is illustrated with examples and stories, making it easy to read and the main themes are repeated in every chapter. Because the book deviates into philosophical and cultural arguments more than is usual in a legal textbook, it is likely to appeal to academics looking for a well researched and thorough analysis of the social and historical context of moral right,s rather than to practitioners looking for a guide to help them advise on the application of moral rights to the evolving digital world".

Moral Rights: Principles, Practice and New Technology is published by Oxford University Press. ISBN13: 9780195390315; ISBN10: 0195390318. Paperback, 572 pages. Price $150. Web page and further details here.

"Que Sera Sera, We sue in the Pee-Cee-Cee"

Hodgson and another v Isaac and another [2011] EWPCC 037 is a fascinating little case which emerged from the Patents County Court, England and Wales, last Monday, courtesy of Judge Colin Birss QC. Hodgson, who was wheelchair-bound as a result of meningitis, wrote and published a autobiography, Flipper's Side, in 2000, with the help of Jarvie. The book, which told of his life as a supporter of Darlington Football Club (the Quakers) and his experiences, included a football chant used by supporters of the club. Sung to the popular 1950s tune of Que Sera Sera, it ran like this:

"When I was just a little boy,
I asked my mamma, 'what should I be?
Should I be Darlo? [an affectionate abbreviation for 'Darlington FC]Should I be Poolie?' [a presumably less than affectionate term for local rivals Hartlepool]Here's what she said to me:
'Wash you mouth out son,
Go get your father's gun,
And shoot the Poolie scum,
shoot the Poolie scum.'" [a surprisingly violent sentiment from supporters of the Quakers ...]

In 2001 Hodgson and Jarvie worked with a film company, Shakabuku, to write a script based on the book but, by 2006, the relationship between them and Shakabuku had broken down.

Isaac, a script writer, owned a company called Notting Hill Movies. In 2006 he became involved with Hodgson, this being part of a project to make a film based on Hodgson's life story, to which end he wrote a script which told of a man who, having been disabled by meningitis, became a supporter of the club. This script, as luck would have it, featured the football chant mentioned above.  Hodgson, Jarvie and Isaac formed a company to promote the script.  Thereafter things began to deteriorate.  After Hodgson sought alterations to the script a dispute broke out, following which Hodgson withdrew Isaac's permission to use an adaptation of the book. Isaac retorted that he didn't need Hodgson's permission anyway, since his script was not an adaptation of the book.  Hodgson and Jarvie then sued Isaac for copyright.

Judge Birss QC had to consider whether the script was indeed an adaptation of the book since the claimants agreed that, if it was only based on conversations with them and not on the book, it wouldn't be an infringement.  Isaac said he'd  written the script after conversations with Hodgson and that he hadn't even read the book.

Judge Birss QC allowed the copyright infringement claim.  In his view, he had to consider whether the elements taken from the book were the expression of the intellectual creation of their author [Infopaq]. Taking both the book and the script as a whole, it was clear that the plot, characters and striking incidents and events were very similar and, if it was possible to quantify the degree of similarity, about half of the dramatic incidents in the script had been derived from the book.  Isaac did have access to the book when writing the script and. given that he had clearly copied part of the Shakabuku script (which he had permission to do at the time), there was no reason why he would not have felt free to base his work on the book itself.

Turning now from the general to the specifics, the judge now considered the chant. Although the claimants made no claim to have composed it, in evidential terms it was something which was included in the book and which, appearing in Isaac's script. had to have come from the book itself. What's more, in addition to the use of the main characters and many of the settings and contexts of the book, Isaac's script used specific and striking incidents from the book and employed the same interpretation of those incidents as Hodgson and Jarvie had given. These details and incidents were a key element in the book and the fact that they were presented as being factual rather than fictional did not make the writing of an autobiography any less the result of an intellectual effort. A substantial part of the book had been copied and that was that.

As a Chelsea supporter, this blogger well remembers, back in the 1960s and again in the 1907s, singing "Que Sera Sera/We're going to Wem-ber-lee".  This use is noted by Wikipedia in its entry under Que Sera Sera. In the 1990s and again in the early 2000s, taking his sons to watch Barnet, he was saddened to hear the same tune put to use in "Shoot the Enfield scum".  Other football rivalries have been commemorated in similar fashion (e.g. Brighton & Hove Albion and Crystal Palace). I have not found any evidence that the composers have sought to prevent this use.

Painer: pain for the press?

On 1 December the Court of Justice delivered its 150-paragraph ruling in Case C-145/10 Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, SPIEGEL-Verlag Rudolf AUGSTEIN GmbH & Co KG and Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG (Opinion of AG Trstenjak noted by the IPKat back in April here).

As our readers may remember, this case was a reference for a preliminary ruling from the Handelsgericht Wien (Austria), in the context of proceedings for copyright infringement brought about by photographer Eva-Marie Painer against some Austrian and German newspaper and magazine publishers.

Ms Painer is a freelance photographer and took several photographs of Natascha Kampusch  designing the background, deciding the position and facial expression, and producing and developing them. Ms Painer sold the photographs which she produced, but without conferring on third parties any rights over them and without consenting to their publication. After Natascha Kampusch was abducted in 1998, the competent security authorities launched a search appeal in which the photographs by Ms Painer were used. Following Natascha’s escape from her abductor in 2006 and prior to her first public appearance, the defendants in the main proceedings published such photographs in newspapers, magazines and websites without, however, indicating the name of the photographer, or indicating a name other than Ms Painer’s as the photographer. They claimed that they had received the contested photographs from a news agency without Ms Painer’s name being mentioned or with a name other than Ms Painer’s name being indicated as the photographer’s. Several of those publications also featured a portrait, created by computer from the contested photographs, which, since there was no recent photograph of the girl until her first public appearance, was a photo-fit of Natascha.

In 2007, Ms Painer sought an order that the defendants in the main proceedings immediately cease the reproduction and/or distribution, without her consent and without indicating her as author, of the contested photographs and the contested photo-fit. The Oberster Gerichtshof held that the defendants in the main proceedings did not need Ms Painer’s consent to publish the contested photo-fit. Despite being the contested photograph which had been used as a template for the contested photo-fit a photographic work protected by copyright, the production and publication of the contested photo-fit was not an adaptation for which the consent of Ms Painer was needed. Anyway, the court decided to stay the proceedings and revert to the Court of Justice, seeking clarification of four questions:

(1) Is Article 6(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [aka Brussels I] to be interpreted as meaning that its application and therefore joint legal proceedings are not precluded where actions brought against several defendants for copyright infringements identical in substance are based on differing national legal grounds the essential elements of which are nevertheless identical in substance – such as applies to all European States in proceedings for a prohibitory injunction, not based on fault, in claims for reasonable remuneration for copyright infringements and in claims in damages for unlawful exploitation?

The Court held that Article 6(1) must be interpreted as not precluding its application solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned. It is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately.

(4) [which the Court deemed it appropriate to address after Question 1] Are Article 1(1) of Directive 2001/29 in conjunction with Article 5(5) thereof and Article 12 of the Berne Convention, particularly in the light of Article 1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 17 of the Charter of Fundamental Rights of the European Union, to be interpreted as meaning that photographic works and/or photographs, particularly portrait photos, are afforded “weaker” copyright protection or no copyright protection at all against adaptations because, in view of their “realistic image”, the degree of formative freedom is too minor?

By referring to the ruling in Infopaq (noted in this Blog here), the Court first recalled that copyright is liable to apply only in relation to a subject-matter, such as a photograph, which is original in the sense that it is its author’s own intellectual creation, i.e. if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices (see, a contrario, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑0000, paragraph 98).

As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’. Consequently, as regards a portrait photograph, the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent.

In view of the foregoing, a portrait photograph can be protected by copyright if – which it is for the national court to determine in each case – such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph.

Coming to the question whether such protection is inferior to that enjoyed by other works, particularly photographic works, the Court observed that nothing in Directive 2001/29 or in any other directive applicable in this field supports the view that the extent of such protection should depend on possible differences in the degree of creative freedom in the production of various categories of works. Therefore, as regards a portrait photograph, the protection conferred by Article 2(a) of Directive 2001/29 cannot be inferior to that enjoyed by other works, including other photographic works.

(3)(a) [which the Court decided to address next] Is Article 5(3)(e) of Directive 2001/29, in the light of Article 5(5) thereof, to be interpreted as meaning that in the interests of criminal justice in the context of public security its application requires a specific, current and express appeal for publication of the image on the part of the security authorities, i.e. that publication of the image must be officially ordered for search purposes, or otherwise an offence is committed?

(b)If the answer to question 3a should be in the negative: are the media permitted to rely on Article 5(3)(e) of [Directive 2001/29] even if, without such a search request being made by the authorities, they should decide, of their own volition, whether images should be published “in the interests of public security”?

(c)If the answer to question 3b should be in the affirmative: is it then sufficient for the media to assert after the event that publication of an image served to trace a person or is it always necessary for there to be a specific appeal to readers to assist in a search in the investigation of an offence, which must be directly linked to the publication of the photograph?

As a preliminary point, the Court observed that the provisions of Directive 2001/29 do not expressly address the circumstances in which the interests of public security can be invoked with a view to the use of a protected work, meaning that, though the Member States which decide to enact such an exception enjoy a broad discretion in that respect, such discretion must comply with the need for legal certainty for authors with regard to the protection of their works and, in any case, is limited by Article 5(5) of the Directive. The Court held that the media, such as, in this case, newspaper publishers, cannot be allowed to confer on themselves the protection of public security. Only States, whose competent authorities are provided with appropriate means and coordinated structures, can be regarded as appropriate and responsible for the fulfillment of that objective of general interest by appropriate measures including, for example, assistance with a search appeal. Such a publisher cannot, therefore, of its own volition, use a work protected by copyright by invoking an objective of public security. However, the Court added that it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. In any case, it should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, second, by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary.

(2)(a) Is Article 5(3)(d) of Directive 2001/29, in the light of Article 5(5) of that directive, to be interpreted as meaning that its application is not precluded where a press report quoting a work or other protected matter is not a literary work protected by copyright?

(b) Is Article 5(3)(d), in the light of Article 5(5) thereof, to be interpreted as meaning that its application is not precluded where the name of the author or performer is not attached to the work or other protected matter quoted?

The Court observed – inter alia - that Article 5(3)(d) of Directive 2001/29 sets out a series of conditions for its application which do not include a requirement that a work or other protected subject-matter must be quoted as part of a literary work protected by copyright. Therefore the proviso must be interpreted as not precluding its application where a press report quoting a work or other protected subject-matter is not a literary work protected by copyright. As a consequence, it must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subject-matter quoted. However if, in applying Article 5(3)(e) of Directive 2001/29, that name was not indicated, that obligation must be regarded as having been fulfilled if the source alone is indicated.

The decision of the Court may lead the readers of this Blog to engage in reflections and comments upon the well-known tendency – at the level of EU judiciary – to tackle the concept of originality as a means to define the scope of protection. This case may also raise observations as to the related issue of copyright limitations …

Music and IP conference report: 4

Opening the final session of "Music and Intellectual Property", Gwilym Harbottle (Hogarth Chambers) spoke about the attempts that have been made to regulate the activities of copyright collecting societies through the UK's Copyright Tribunal. Gwilym tackled two recent cases: Archive Media Publishing Ltd v MCPS, on the small application track (here), and CSC Media Group v VPL (trial decision here; appeal here). Gwilym entranced the room with his account of the different types of reasonableness which a tribunal should be bound to apply under different provisions of the Copyright, Patents and Designs Act 1988, depending whether it is looking at the facts itself or looking at how another tribunal has looked at the facts. A mere blog post could not do justice to the manner of delivery of Gwilym's account of CSC v VPL, which -- improbably, given the somewhat dry nature of the dispute, encrusted with figures, percentages, 'diminished windows', psychic broadcasts and comparables -- will linger long in the memories of those who were privileged to hear it.

The final speaker on the day's programme was Enrico Bonadio (City University Law School), on "Music Copyright and Policy: Too Much, Too Quickly?". This, as readers might suspect, was a review of some of the most recent thoughts of the European Commission with regard to online collective music licensing. The European Commission's proposals for cross-border licensing should fit in with the sentiments of the Hargreaves Review, not least since the UK is a net exporter of music.  Reciprocal representation agreements already enable customers of collecting societies to obtain a more extended repertoire, to overcome territorial restrictions. However, cooperation between collecting societies has attracted the attention of the EU competition authorities, starting with the November 2000 Simulcast Agreement, with the controversial "customer allocation clause" -- which tied customers to approach their own local collecting society rather than shop around between them. The removal of customer allocation clauses was finally removed, following which the Commission accepted the Agreement.

Nowadays, technology has bypassed the formal relationship between national collecting societies, which has become outdated. The internet is now the major means of delivering copyright content, but it is not per se the subject of any Europe-wide licensing schemes. Enrico explained the significance of this in terms of the upstream shift from reciprocal representation agreements to the introduction of greater choice and competition through collecting societies offering better terms to content owners -- who in turn could move from society to society if they wished their works to be on different terms. Also, collecting societies would be encouraged to develop their own niche markets, defined by repertoire (Latin American, classical, jazz etc) or by medium (regular online delivery, ringtones etc). Not all commercial users of licences would welcome fragmentation of repertoire, though -- and would there be a risk of a "race to the bottom" where collecting societies have to offer cheaper licence terms in order to attract custom. Also, small-time rights holders might lose out. The European Parliament has articulated all of these concerns, and there is also anxiety that music production might be impoverished.

New cross-border platforms have been put together, pooling several repertoires -- for example the CELAS initiative, which sought to provide cross-border online licence services for mobile phones.  Currently its scope is quite narrow. Another such initiative is Warner-Chappell's PEDL. These are part of a new, if timid, trend towards pooling of repertoire. Will the Commission encourage this trend? Said Enrico, we still don't know. He then reviewed the dispute between CISAC and the competition authorities, in which a ruling of the General Court is awaited.

Concluding, Enrico turned to the topic of the Global Repertoire Database, its likely structure and content. This would allow users to identify the rights they exploit, the owners or representatives whom they should approach and the data necessary to negotiate licences. Through the introduction of such a scheme, 100 million euros could be saved annually through the reduction of administration costs -- and returned to rights owners.

Music and IP conference report: 3

Lunch over, but plenty
 food for thought

Lunch over, participants returned to face an enthusiastic Nick Kounoupias (DMH Stallard), who had come to sing the praises of the Patents County Court as a forum for copyright litigation -- and if necessary to answer questions on the MediaCAT case. Till the new Patents County Court (PCC) rules kicked in, litigation for small and medium-sized copyright businesses and individuals was simply not financially feasible. While the PCC has existed for some years, litigation in it was often inefficient and could be more expensive than High Court litigation.

Now, in the music industry, most ordinary infringement cases are unlikely to exceed the £500,000 upper limit on the award of damages by the PCC. A small claims track is also being introduced within the PCC, with an upper limit of £5,000 damages -- which may not sound like much but is great for most copyright cases. Incidentally, the PCC is due for a name-change to the Intellectual Property County Court -- which will be much more descriptive and therefore less misleading.  The High Court route remains, of course, and will always be more attractive for those wishing to bring many witnesses or attract more publicity.

More work is done on
paper than orally

The PCC deals with the main registered and unregistered intellectual property rights, as well as with ancillary contractual issues such as who pays royalties, how much they pay, etc.  Nick felt sure that eventually all PRS and PPL infringement cases will be brought there.  More work is done on paper than orally, and the current judge, Judge Colin Birss QC, is happy to decide matters on paper where appropriate. The new rules mandate specific disclosure only and aim for a two-day limit on hearings. Cases started in the High Court will be kicked down to the PCC wherever appropriate. Cost-capping, said Nick, means that there is far less risk involved in litigation by having to pick up the entirety of the other side's costs. His conclusion on the PCC was that it would change the face of intellectual property litigation -- quite literally, since it is housed in the Rolls Building, a beautiful new edifice which houses all forums for intellectual property litigation.