Performers Rights

Posted in copyright, Teaching by coda on December 18, 2009

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:

Performing Rights Society



RIAA site

EU Information Society web page

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Jurisdiction: Ainsworth v. Lucasfilm [2009] EWCA Civ. 1328

Posted in copyright by coda on December 18, 2009

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.

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Forum on the Economic Value of IP

Posted in copyright, Piracy, social media, technology, web 2.0 by coda on October 29, 2009

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 PDF document(275Kb).

An interim report PDF document(2.55Mb) of the Forum proceedings is now available. A proposed research agenda and plan for delivery will be launched in the autumn.


Update: Digital Economy Bill Implementation

Google’s rumored Music service launch today

Posted in copyright, social media, technology by coda on October 29, 2009
  • tags: music

    • 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 Downstream.png

      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.

      Music Upstream.png

      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.

      Music port Downstream.png

      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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The UK government has been laying out some of the ways it intends to pursue persistent net pirates.

Posted in copyright, Piracy, social media, technology, web 2.0 by coda on October 29, 2009

The Business Secretary said that new laws in isolation would not be enough to tackle the problem, which costs the creative industries millions of pounds each
He called on ISPs and the creative industries to work with Government to ensure a package is put in place which balances education, enforcement and new
business models to discourage unlawful downloading.
Speaking today at the C&binet creative industries conference, Lord Mandelson confirmed proposals set out in the recent consultation on unlawful file-sharing
would form the basis of measures in the Digital Economy Bill.
The Government expects that warning notifications, followed up with targeted legal action by rights holders, should be the only enforcement action required to
significantly reduce the level of unlawful file-sharing. However the Government would have reserve powers to issue an order requiring ISPs to invoke technica
measures. Account suspension will be an option available to apply at the last resort for the most serious infringers.
Highlighting the scale of the problem, Lord Mandelson referred to the music industry’s assessment that said only one in every 20 tracks downloaded in the UK
downloaded lawfully.  
Lord Mandelson said:
“It’s clear that whilst unlawful file-sharing excites a strong response from all sides, it is not a victimless act. It is a genuine threat to our creative industries.  
“The creative sector has faced challenges to protected formats before. But the threat faced today from online infringement, particularly unlawful file-sharing, i
different scale altogether. We cannot sit back and do nothing.  
“We will put in place a fair, thorough process, involving clear warnings to people suspected of unlawful file-sharing, with technical measures such as account
suspension only used as a very last resort.  
“Only persistent rule breakers would be affected – and there would be an independent, clear and easy appeals process to ensure that the correct infringer is
He added that educating consumers in the value of intellectual property rights would help to bring about changes in behaviour – alongside innovation and ne
business models enabling consumers to download content at competitive prices.  
Lord Mandelson said:
“A ‘legislate and enforce’ approach to beating piracy can only ever be part of the solution. The best long-term solution has to be a market in which those who
music and film, for example, can find a deal that makes acting unlawfully an unnecessary risk.”
In other areas, Lord Mandelson said there was a case for copyright laws to be modernised to reflect reasonable consumer behaviour which did not damage t
sustainability of the creative industries.
This would mean that, for example, someone who has bought a CD would be able to copy it to their iPod or share it with family members without acting
unlawfully.  Such activity is not lawful under the current framework. 
He announced © The Way Ahead – the outcome of a review of copyright in the UK with recommendations to simplify complicated copyright laws across Europ
and beyond, allowing for greater access and increased freedoms.
The review was led by David Lammy, Minister of State for Higher Education and Intellectual Property. 
David Lammy said:
“I want people to have the freedom to enjoy music, books and film in creative ways, without fear of breaking the law.
“This is not an excuse to infringe copyright through unlawful file-sharing, but is about being able to do more with legally obtained content, such as remixing m
and mashing-up content to create grime and hip-hop tracks.
“I don’t want to see a regime based on arbitrary rules, but a system that recognises how consumers behave at a time when we rely increasingly on technology
our everyday lives.”

Interesting Comment:

Dear Lord Mandelson

Your simplistic and frankly bewildering view of the Internet not withstanding.. Before you make yourself and the government judge, jury and executioner in this matter please consider the following:

1)What actually constitutes “copyrighted infringed material”. Without this defined in the context of non-commerial content sharing you cannot hope to find legal argument to infringe on peoples rights in this way.

2)Are you suggesting that the way that traffic is monitored on the internet will be changed? ISP’s monitor traffic levels, and on the whole do not monitor what data is being channeled. What implications on personal privacy will this have? If I’m sharing copyrighted and NON copyrighted material at the same time will my rights to privacy be protected or will it be open season for content providers for all of my internet habits?

3) How do you intend to suspend internet access without trail? Will there be legal avenues that allow people to present evidence to a judge? and what happened to concept on innocent until proven guilty?

4) What will be the legal standard for identifying copyrighted material being shared? will you be going on file name alone, or will ofcomm be downloading the files and watching them to prove their copyrighted status? and why release any details to content providers when you have clearly taken upon yourself to police this matter on their behalf? Aren’t you just opening up UK citizens to American lead law suits that can bankrupt people over long the term? Don’t you want people to support these plans and see them as balanced? Protect your citizens and create a law that regulated this in the spirit of BRITISH law.

and finally….please please please do not deamonised the words “file sharing” or “P2P”. These are legal and useful technologies that are used around the world for all manner of things, be specific and treat your public with the respect it deserves.

Answer 1 or 2 of these questions to a satisfactory level and I will buy a CD in your honour, maybe even one of those £14.99 ones. Answer them all and I might just stop file sharing! Nah, only kidding about that last one! You see the larger battle here the one of ideas between young and old, cultural differences and not legal ones.

By RM on 2009 10 28

I think you’re a little out of touch Peter… Nothing will stop people sharing media online, simple as that.

Instead of suspending the end user how about targeting websites, blogs and web hosts who blatantly breach copyright laws. One only has to visit Twitter and type ‘free download’ for a list of users and usually a link to a blog/website will be displayed. How about shutting those pages down? Will that be too much like hard work?

I download live recordings of different bands I like. Will this mean I will get cut off, even if the recordings are not officially released?. If the artist/record company do not release such a performance no one is losing any payment and I will always buy a physical release (prefably on vinyl) of the artist.

If the record companies embraced the internet early on instead of sticking their heads in the sand hoping it will go away, your rather deluded speeches wouldn’t be necessary. Get a grip chap!

Full transcript here.
See the BBC report here
The Way Ahead can be found here

See the Digital Britain Report
Q&A here

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National Center for Technology and Dispute Resolution : PeaceTones – Using ODR to create sustainable income

Posted in copyright, social media, technology by coda on October 28, 2009
  • tags: ODR, Peacetones

    • Peace Tones is a global initiative that brings opportunity to musicians in developing nations and hope to their local communities. We help local artists to publish and disseminate their music in the developed world and send 90% of all revenues directly back to the musicians. Musicians agree to spend a percentage of the funds locally on development, schools, infrastructure and commerce.

      We are operating in nearly a dozen countries, with two Peace Tones albums now published and available for purchase at iTunes and Through your generosity we can continue to release new albums from promising and talented musicians in the developing world. Best of all, unlike virtually any other music publishing opportunity, Peace Tones musicians keep nearly all the revenues generated from their music.

      ODR is necessary to support the economic rights being created by these musicians in the online setting. Economic rights and ODR go together.

      Your donation to Peace Tones directly impacts the lives of people and communities in regions where economic opportunity is severely limited. You also help spread the promise of economic growth and the alleviation of poverty. If you enjoy listening to the music of the world and want to experience some of the freshest new sounds on the planet, please visit and support us.

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Live Blogging: Is Grokster Ruling Just?

Posted in copyright by coda on October 14, 2009

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

Posted in copyright by coda on October 6, 2009

Have a second look at the following information on the two cases:

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

Posted in copyright, Piracy by coda on September 29, 2009

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

Posted in copyright by coda on September 29, 2009

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.