Music and IP conference report: 2

Florian: what is he doing
with his right hand?

Opening the second morning session, Florian Koempel (UK Music) spoke on the topic "Copyright Societies and Organisations", explaining how the collective groupings within the music industry relate to composers, consumers, performers and businesses.  He resisted the temptation to present an historical survey and focused on their impact on the real world, a world in which some 90% of their members earn less than £15,000 a year.  Being the "piggy in the middle", collective organisations get the blame when anything goes wrong, which is why they are the subject of an EU Directive, to be published next year, on the regulation of their activities.  Will this Directive address only management issues such as transparency, or will it touch on sensitive substantive issues such as private copying and the collection of levies for it? And will it contain competition law-related provisions too?

Most of the work done by collecting societies
is "backroom work", says Florian

Florian explained to a rapt audience all about the CISAC case before the European Court of Justice, on whether the granting of national licences by collective societies in place of single market one-stop-shop licences that many prospective licensees need constitutes an artificial partitioning of the single market. Florian also observed that there is not yet a global repertoire database -- though collective societies have been discussing how this might be achieved. Since most of the work done by collecting societies is "backroom work", often involving the same repertoire, good mechanisms for granting licences and distributing revenue to rights owners are advantageous for all, as the societies recognised.

Convergence and internet use are also very much on the collecting societies' agendas, as are a number of matters which are currently the subject of litigation before the European Court of Justice -- so there is plenty for the Hargreaves Review in the UK to consider.

For those who aren't so
keen on new music ...

What else do the societies do? Florian reminded participants that they support their members' rights in litigation, which is particularly helpful where the party they are litigating against is someone like Google -- not a comfortable prospect for a small litigant.  They also go into more pubs than Florian can manage individually.  Then there's the cultural function, promoting new music, as well as providing all sorts of useful advice for their members on a variety of issues.

Barrister Christina Michalos (5 RB) then treated us to a review of copyright-related cases in recent times, both in the UK and in Ireland.  After a show of hands, which revealed that practically everyone except Florian was busily engaged in downloading materials from the internet, Christina observed that much of the Irish economic crisis was directly caused by the damage inflicted on copyright owners through the massive scale of unpaid-for downloading of music by a legion of Irish computer users. The Irish High Court decision in EMI v UPC was explained, this being a review of data-gathering procedures for identifying P2P file-sharers and their (lack of) compatibility with data protection and privacy laws.  In any event the Irish law made no provision for blocking or diverting file-sharing activities; legislation would be needed before the courts could go any further. In this context Christina referred to Logistep AP, a decision of the Swiss Supreme Court which affirmed that even the public interest in the enforcement of copyright laws does not justify the violation of data protection laws, as well as the Logistep AP trial in Germany and Scarlet v SABAM, which is now before the Court of Justice of the European Union (judgment is expected in autumn 2011).

A Whiter Shade
of Pail

Fisher v Brooker (the "Whiter Shade of Pale" case) then came under Christina's scrutiny.  The 38-year late claim for royalties ended up in the House of Lords, which reinstated the trial judge's decision to allow the royalties claim even though the composer would not be entitled to an injunction.  The decision is notable for its review of the principles of laches, which does not apply where the defendant is not damaged by a delay in bringing proceedings.

Other cases covered were the recent decision in Crosstown Music v Rive Droite (which affirmed that a reverter clause in an assignment gives copyright back to the composer even if the assignee purports to sell it on to a third party), Experience Hendrix v Times Newspapers (contrasting different bases for the assessment of conjectural damage) and Far Out v Unilever and others (was the claimant entitled to an account of profits on the sale of Marmite where an advertisement used a licensed tune but an unauthorised sound recording?).