Performers Rights
I have recently noticed a number of clips from the X Factor appearing on some SNS sites, and thought about Performers Rights and why we see very cases appearing before the courts. There was the well-publicised You Tube blocking of videos and the dispute involving You Tube and Viacom.
This topic will feature in my new course next year. Here are some useful links to relevant readings:
1. Introduction
2. Caselaw
Performing Right Society, Limited v. Mitchell and Booker (Palais de Danse), Limited [1924] 1 KB 762
King’s Bench Division KBD Mccardie J. 1924 Jan. 28, 29; Feb. 6.
Experience Hendrix LLC v Purple Haze Records Ltd & Another [2005] EWHC 249 (Ch)
Rickless v United Artists Corp [1988] Q.B. 40 (‘Peter Sellers case’)
RCA v Pollard [1983] Ch. 135.
EC Rental and Lending Rights Directive and the EC Information Society Directive 2001/29
Copyright and Related Rights Regulations 1996 (SI 1996/2967)
Copyright Designs Patents Act 1988 Section 182CA of the CDPA (inserted by the Copyright and Related Rights Regulations 2003, which implements the Information Society Directive 2001/29.
General Links:
RIAA site
EU Information Society web page
Jurisdiction: Ainsworth v. Lucasfilm [2009] EWCA Civ. 1328
The Court of Appeal has handed an important judgment in Ainsworth v. Lucasfilm [2009] EWCA Civ. 1328. The Court of Appeal refused to assume jurisdiction in respect of a dispute relating to the breach of US copyright law.
Key Facts: [para 4-10 Jacob LJ]
These are set out by the Judge at [26-84]. Most of the detail no longer matters so we confine ourselves to the essentials.
In the course of making the first Star Wars film a number of works were created. They include some paintings and drawings by a Mr McQuarrie showing scenes including stormtroopers in their helmets and armour and a clay model of a stormtrooper helmet made by a Mr Pemberton. Mr Ainsworth was asked to produce a final version in plastic based on the model and McQuarrie works and did so, incorporating his own improvements. In doing so he used what can fairly be called “sculpting” techniques. We say a little more about the detail of what happened when we come to Mr Ainsworth’s cross-claim. So far as UK law is concerned it is accepted that the two-dimensional works produced (e.g. the scene paintings) are copyright works. Whether the models for the helmet are in themselves copyright works depends on whether they are “sculptures” within the meaning of s.4 of the Copyright Designs and Patents Act 1988. Mr Ainsworth has admittedly made and sold copies of the helmet and armour. The appeal has concentrated on the stormtrooper helmet, there being no separate point about the armour or helmets made for other characters. He accepts that he has reproduced the paintings but says he has a defence to an infringement claim under ss.51 or 52 of the 1988 Act.
As far as the position under US law is concerned, it is now accepted that US law regards what Mr Ainsworth did as an infringement of various US copyrights. Lucasfilm claims that the English court should itself enforce US copyright law against Mr Ainsworth.
Lucasfilm has obtained a default judgment for trade mark and copyright infringement in California against him in the sum of US$20m. That sum sounds strange to English ears given that he only sold about $US14,500 worth. No less than $10m of the $20m is “compensatory damages” by US law. Lucasfilm claims that the English court should recognise and enforce the judgment to the extent of the $10m. “compensatory” element. Perhaps not wanting to seem oppressive, it only seeks to enforce its US judgment to that extent that if it cannot succeed on its claim to enforce its US copyrights directly in the English courts.
Mr Ainsworth claims that if the work he did in producing the helmet amounts to the creation of a work of sculpture, he is the owner of the copyright in it.
Although there are a mass of other works relied upon by Lucasfilm (e.g. as to the design of parts of the armour) this case turns on the helmets – as was effectively agreed by the parties. If Mr Ainsworth has infringed copyrights relating to these he loses, if not, not. It is not necessary to go into the detail of other works relied on or referred to in the evidence.
Forum on the Economic Value of IP
There have been quite a lot of discussion about the UK moving towards a 3 strikes rule. Before we get to the “rights” and “wrongs” of this move, it may be worth keeping an eye on parallel regulatory discussions involving the SABIP and the Intellectual Property Office. A Forum was convened, consisting of a broad spectrum of stakeholders and policymakers
We are working to engage interested parties in the process of structuring a programme of research. To learn more about our plans over the next year, please see our stakeholder engagement plan
(275Kb).
An interim report
Documents
- Agenda of the forum and list of participants
(535Kb) - Panellists’ biographies (213Kb)
- The use and value of IP rights (260Kb)
Prof. Bronwyn Hall - Challenges affecting the use and enforcement of IP rights (232Kb)
Prof. Dietmar Harhoff - The IPR system and its role in innovation and economic performance (286Kb)
Prof Josh Lerner
Google’s rumored Music service launch today
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Hitwise Intelligence – Heather Dougherty – North America
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October 28, 2009
Google is expected to launch their music service this afternoon, so we decided to look at some of Google’s history with the Music category. Of course we all know that the majority of people start with Google for search – last month, 71% of all searches took place on Google. Out of the top 1000 search terms that took place on Google last week, 6% were music-related (includes bands, music services and content). Last week, Google sent 1.48% of their total visits to the Music category and of those visits, 95% of the downstream traffic to Music websites were returning visitors (that had visited Google in the past 30 days).
Google was the top referral website to the Music category accounting for nearly 30% of the total traffic to the category last week, 5x more than 2nd ranked Yahoo! Search and 6.3x more than MySpace.
Last week, 15% of the clicks from the search term portfolio of Music that includes the names of over 900 band & artist names resulted in a visit to a Google property, especially YouTube, among the Top 10 websites to receive traffic.
Now we can just wait and see what Google Music will look like and what overall impact the service will have on the category.
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Live Blogging: Is Grokster Ruling Just?
Fair – what have we subscribed to in our democratic society, with reference to Copyright Law?
Intermediaries have a responsibility:
In the UK we have a provision: section 16 Copyright Designs and Patents Act 1988.
Liability is based on “authorisation”
There needs to be some level of culpability.
In the Australian Kazaa case the respondents were held liable for authorising copyright infringement – “Join the Revolution”!:
” (i) despite the fact that the Kazaa website contains warnings against the sharing of copyright files, and an end user licence agreement under which users are made to agree not to infringe copyright, it has long been obvious that those measures are ineffective to prevent, or even substantially to curtail, copyright infringements by users. The respondents have long known that the Kazaa system is widely used for the sharing of copyright files;
(ii) there are technical measures (keyword filtering and gold file flood filtering) that would enable the respondents to curtail – although probably not totally to prevent – the sharing of copyright files. The respondents have not taken any action to implement those measures. It would be against their financial interest to do so. It is in the respondents’ financial interest to maximise, not to minimise, music file-sharing. Advertising provides the bulk of the revenue earned by the Kazaa system, which revenue is shared between Sharman Networks and Altnet.
(iii) far from taking steps that are likely effectively to curtail copyright file-sharing, Sharman Networks and Altnet have included on the Kazaa website exhortations to users to increase their file-sharing and a webpage headed ‘Join the Revolution’ that criticises record companies for opposing peer-to-peer file-sharing. They also sponsored a ‘Kazaa Revolution’ campaign attacking the record companies. The revolutionary material does not expressly advocate the sharing of copyright files. However, to a young audience, and it seems that Kazaa users are predominantly young people, the effect of this webpage would be to encourage visitors to think it ‘cool’ to defy the record companies by ignoring copyright constraints.
A question arose as to the form of relief that might be made against the six respondents that I hold to have authorised infringement of the applicants’ copyright. The applicants are entitled to declarations as to past violations of their rights and the threat of future violations. They are also entitled to an order restraining future violations. However, I have had to bear in mind the possibility that, even with the best will in the world, the respondents probably cannot totally prevent copyright infringement by users. I am anxious not to make an order which the respondents are not able to obey, except at the unacceptable cost of preventing the sharing even of files which do not infringe the applicants’ copyright. There needs to be an opportunity for the relevant respondents to modify the Kazaa system in a targeted way, so as to protect the applicants’ copyright interests (as far as possible) but without unnecessarily intruding on others’ freedom of speech and communication. The evidence about keyword filtering and gold file flood filtering, indicates how this might be done. It should be provided that the injunctive order will be satisfied if the respondents take either of these steps. The steps, in my judgment, are available to the respondents and likely significantly, though perhaps not totally, to protect the applicants’ copyrights.”
Reflection Time on Grokster
Have a second look at the following information on the two cases:
Sharman
Have a quick look at the ruling here.
Go here.
What do you think? How did they get hold of your Internet Protocol address?
Who are these guys? Isabella Barwinska?
Copyright law is relevant here too.
Familiarise yourself with some of the background set out here and the Supreme Court ruling and attempt Question 2 of your Seminar. You do not need the Post-ruling, briefs and testimonies. Remember: Academic Honesty. Always attribute sources by placing quotation marks or a footnote.
The US case of Sony Corporation of America v. Universal City Studios. Compare this ruling with the HL ruling in Amstrad (the twin deck recorder case)
Now consider this site.
Why do you think this site is not the BPI hit list?
Also in the FAQ:
What countries is Spotify available in?
“Spotify is currently available in Sweden, Norway, Finland, the UK, France and Spain. We hope to launch in more countries in the future.”
What can you not do on this site that could be done on Grokster?
3 Strikes Rule and Dear Lord M
Most of you were not keen that the Government/ISP should be able to disconnect users who have been found to have engaged in illegal file sharing on more than 2 occasions.
Dear Lord Mandelson,
Please don’t rush through rules that will allow the government to cut off our internet connection.
The government stated in June this was an ineffective way to tackle filesharing, it’s a worrying threat to our freedom of expression and it breaches our fundamental human rights.
Well – what do you make of this:
“Intellectual Property Rights: Commission comes forward with practical, non-legislative measures to combat counterfeiting and piracy”
You can read the full press release here.
Why are some people not entirely pleased?
More on the IFPI here.
Did I say that I would send you a link about petitioning Lord M? Here is the link.
Apple squares off against Eminem in court – Technology – NZ Herald News
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Apple squares off against Eminem in court – Technology – NZ Herald News
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An attorney for Apple has defended the company’s use of Eminem’s songs on iTunes in court, as a trial got under way to determine who had the right to offer digital downloads of the rapper’s music.
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At the lecture today we talked about the "justifications" for intellectual property and also considered the range of rights and works protected by the Copyright, Designs and Patents Act 1988
Consider section 1 of the CDPA and think about how the author/owner of the copyright can determine the manner in which the rights can be exploited:
a. which works are the subject of the litigation?;
b. who is the author/owner?;
What were the rights given to Aftermath Records?
Did the rights of the copyright owner extend to various media? ITunes?
Apple lawyer Glenn Pomerantz said it’s a case of "common sense."
"Nowhere does it say only compact discs. Nowhere does it say … not digital downloads," he told US District Judge Anna Diggs Taylor.
One of the clips of the music used by iTunes without authorisation, it appears was this.
Feel free to post your comments on this blog or we can discuss this case in class/lecture.
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