Music and IP conference report: 4

The final session of today's Music and IP conference started with a dash of bravado as Rechtsanwaldin Brigitte Lindner (Serle Court) took us on a guided tour of Europe, in search of jurisdictions which had their own versions of the Digital Economy Act.  Finland and Spain were among the countries in which something was (sort of) happening or had (sort of) happened.  The French Loi Hadopi came under Brigitte's careful scrutiny, as did long-suffering Ireland, whose predicament had earlier been noted by Christina Michalos here (and yes, Christina really did say what she said about the connection between unauthorised copyright downloads and the predicament of the Irish economy -- we were all listening!)  Germany was cited as a country in which blocking of access to the internet and the obtaining of information concerning downloaders was likely to face difficulties on account of its strong data protection and civil rights laws. Brigitte warned that, if stakeholder dialogue in Europe did not lead to an acceptable solution, the European Parliament would press for legislation.

This is one of a number of excellent diagrams
you can find on the hadopi website

Turning specifically to the French Loi Hadopi (the high authority for the dissemination of works and the protection of rights on the internet), Brigitte led us through its background and evolution. She then addressed its core: the violation of the duty of care owed by an internet subscriber to avoid using it for the purpose of copyright infringement.  The copyright infringement itself remains to be enforced by the copyright owner in the normal course of things. The law provides for an injunction against anyone who can prevent the perpetration of an infringement; it also establishes a procedure whereby various bodies -- not the copyright owner itself -- can furnish information to Hadopi which, having verified it and having established the identity of the subscriber, will email a warning to him.  The subsequent pursuit of infringers, whether through an administrative procedure leading to an administrative fine or resulting in internet suspension, was then described in excited detail. Hadopi has been up and running since 1 October, unlike the DEA which has not yet kicked in.  In France the state pays for the entire procedure, while under the DEA it is the IP owners who will bear the brunt of the cost.

Excited conference registrants
beseige Ben after his talk

Last to speak was lawyer, academic, 1709 Blogger and Glastonbury Festival legal guru Ben Challis. His talk, "The Glastonbury Tales: the Practicalities of Festival Life and IP". Ben began with some words for the PRS: they announced a review of their consultation on live music licences right in the middle of the summer festival season.  Fortunately the deadline has twice been extended.  The UK's rates (3% of box office receipts) is actually the lowest in Europe -- but it's still twice that of the United States.  Some festivals, particularly those which combine live acts with drama, circus, art and other attractions, want the rate to drop, to reflect the fact that many who attend are not there for the live musical performances. Since the PRS and the festival organisers are so far apart, a reference to the Copyright Tribunal is likely.  Certain unattributed sources question whether the PRS's stance reflects the reality of today's festival scene.

With two sets, Matilda could
enjoy the festival twice as much

Ben then discussed relations between the Glastonbury Festival and the media. There is very wide and varied coverage of the festival with internet, newspaper, magazine, radio and the TV media (particularly numerous tentacles of the BBC). 110 hours of live material goes out, plus content on demand, which requires a good deal of negotiation and attention to detail.

Trade marks are also an important of the festival's protection.  It now has a growing portfolio of registrations, including some acquired following settlements, which feature the word GLASTONBURY.  Brands and other rights are strongly protected, though "We don't want to seem to be litigious", Ben confided.

Music and IP conference report: 3

The music industry:
an exotic form of pond life?

Occupying the post-lunch graveyard slot, but far from grave, was Nick Kounoupias (DMH Stallard), who spoke on the myth and reality of music copyright enforcement litigation.Rather than review online infringement, which fell within the purview of some of the other speakers, Nick spoke of the manner in which the music industry functions as an ecosystem, in which damage to the function of any one part of it has an impact on the entire ecology.  Composers and publishers, for example, are both on the same side regarding copyright in published works, but they're at opposite ends of the same contracts.   While players in the music industry often have strong characters and strong opinions, the fact that they operate within the same ecology gives them a shared understanding of how the system operates and how they benefit from it.  Within this ecosystem there is relatively little litigation. Where litigation does arise, it tends to arise from contractual rather than copyright disputes and is most frequently settled out of court.  Disputes between members of the same organisation may be resolved by its own internal mechanisms, also without recourse to court.

Judge Birss QC: PCC
judge and Copyright
Tribunal supremo

For disputes outside this ecosystem, Nick mentioned in highly positive terms the development of the Patents County Court for England and Wales [on which see the PatLit PCC Pages series] as a cheap and effective forum for litigating IP disputes.  There is also the Copyright Tribunal, sitting in lofty splendour above the hurly-burly of normal judicial activity and ruling on the fairness of royalty rates set by collecting societies. Why get excited about the Copyright Tribunal? Whenever there's a new technology, or a new way of using a technology, the question will arise as to how much users should pay, and rights owners should receive, for the use of copyright-protected content.  The Tribunal has been increasingly helpful and, in the light of recent reforms, should soon be even more so.

Sampling: still not covered
by the CDPA

Turning to the Copyright, Designs and Patents Act 1988 (CDPA), Nick reminded the audience of the various "building blocks" of a civil infringement action.  Copyright can be direct, indirect or by authorisation; it can be of all or a substantial part of a work.  Issues such as sampling and liability for parodies are not specifically addressed. In an era of file-sharing, we are bound to see more actions founded on indirect infringement and authorisation (though the latter is hard to substantiate since the legal test of what constitutes authorisation remains narrow).

Nick finished with some comments on criminal infringement proceedings. The CDPA is full of provisions that place criminal liability on various species of commercial infringement.  Liability of directors of infringing companies is a valuable and powerful weapon.  Public bodies such as Trading Standards, the Crown Prosecution Service and the Customs tend to do most of the prosecuting, but private prosecutions are often brought by representative organisations within the private sector. This can be extremely effective and is also highly unpleasant for the defendant, who may not consider himself to be a thief.  There's also a presumption in favour of full costs being awarded in favour of the successful prosecutor in respect of legal costs, expenses etc.

Tomos Jones (Olswang LLP) took over, tackling last year's politically and legally controversial Digital Economy Act (DEA).  As a telecoms man at heart, Tomos's approach was refreshingly different from that of the typical IP man. He waxed lyrical on the constant expansion of bandwidth capacity and its awesome capacity to deliver content.  Typically, he explained, liberalisation of telecoms regulation and its 'light touch' means that, in principle, any form of regulation is content-agnostic.  The DEA has bucked this trend.

Dirty statutes get the
"wash up" treatment

Before the DEA, how could the law regulate and control unlawful file-sharing?  The common law and copyright between them have remarkable flexibility -- if you can find anyone to sue.  Norwich Pharmacal orders could be sought in order to force a third party to divulge details of individual infringing users. The Gowers Review was as concerned with protection of internet users as with rights protection, but the DEA -- which was rushed through in a little scrutinised "wash up" process -- is very much more oriented to rights protection. The DEA operates through a series of "triggers" listed in the DEA, s.3.  Anyone who allows an internet connection to be used can be subject to its provisions, whether they have used the connection themselves or not.  The DEA has an extremely wide definition of "internet service provider", which can even in theory include home WiFi users who subscribe to BT Fon. Initially, at least, just the seven biggest ISPs, those with more than 400,000 users apiece, are targeted. An initial Norwich Pharmacal application is still needed but, with evidence of an infringing use, the copyright owner can then press on.  The user will receive decreasingly polite and increasingly apocalyptic messages concerning his alleged unlawful use. "Connection-throttling" and other punitive measures may result.

Are the DEA's processes and remedies lawful? ISP TalkTalk's application for judicial review of the DEA has been granted and a decision is expected next year.  Compatibility with European Union database norms, privacy and telecommunications rules, the E-Commerce Directive and the Human Rights Act 1998 are all on the agenda.  Is the disclosure of a internet user's personal information a fair and proportional response to an alleged copyight infringement? It is by no means clear.

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?).

Music and IP conference report: 1

Opening today's Music and Intellectual Property conference in one of London's most elegant follies, the Prudential Building [if it's a folly, it's hardly prudential, says Merpel], Gwilym Harbottle (Hogarth Chambers) gave a masterly overview of the history and scope of copyright in the United Kingdom and the patchwork of entitlements that govern musical works and their recordings. Topically he cited yesterday's award of the perennially controversial Turner Prize to Susan Philipsz for what appears to be a performance of a musical work masquerading as an artistic work.  Gwilym also reviewed the argument as to whether music is effectively a matter of tune or a matter of sound -- an issue at the heart of Sawkins v Hyperion, where the Court of Appeal for England and Wales affirmed that the making of textual emendations to old out-of-copyright manuscripts, including the addition of a bass line, vested in that emendation the status of an original musical work even though it reproduced a melody that was old.

Tackling moral rights, Gwilym reviewed the British commitment (if that's not too strong a word) to the rights of acknowledgement of authorship and of integrity.  The various exceptions to these rights, and the fact that the right to be acknowledged as author -- the paternity right -- must be asserted in accordance with various formalities before it can be exercised, rather reduce these rights' effectiveness. Obvious problems arise with rock groups, which may evolve works between them and where the group' personnel may change over time. What's more, quantifying loss where the paternity right is breached is also a somewhat conjectural exercise. The right to the integrity of a work sparked some speculation in the light of Confetti Records v Warner (the "shizzle my nizzle" case, in which the judge famously declared rap to be a foreign language).

Vanitas, represented  by (among
other things, a musical instrument
and a score)

Musicologist and IP academic Andreas Rahmatian (Glasgow University) then took the podium, giving his insights into the notion of copyright as "property" and the relevance of "property" to music.  Andreas asked how something as immaterial as music, which is over as soon as it is performed, can be regarded as having any sort of permanence. Being ephemeral, it is completely time-bound and quite ineffective a a means of establishing one's immortality.  Without the physical score, music has no form -- and there is in essence no requirement for music's fixation in physical form. It is only through a legal device that music is turned into property, becoming a form of chattel -- the legal device of copyright. The copyright and the fixation remain separate conceptually different; while the fixation embodies it, transmission of the one does not include the other.

Lalande

Andreas approved of the lack of a definition of music in the UK copyright legislation, since its flexibility enables it to move with time, but he cautioned that there is a distinction between "music" and "musical work".  Thus in Sawkins v Hyperion the composer Lalande wrote music, but Sawkins' edition was a musical work -- which is what copyright protects.  The former is where the composer's originality lies and it is that which is given life by its performance, while the latter is recognised as property by virtue of the "sweat of the brow" of the person who puts it together.  Under copyright law, "originality" does not have to be creative though, as the courts have affirmed -- though they sometimes get it wrong, as in Hadley v Kemp in 1999 (the 'Spandau Ballet' case).

Stuffed -- looks authentic
but doesn't respond when called

On the issue of fixation, Andreas observed that the requirement is a creature of the common law, not of civil law jurisdictions where it's just a matter of evidence.  Sound recording is actually a better means of fixation than writing the score down -- the sound is "live" (cf the written score, which Andreas analogised to a stuffed cat -- it looks right but doesn't actually do anything).  What happens, though, is that the fixation which embodies a musical work has its own copyright, even though no extra originality has gone into it over the performance of the music in the first place. So essentially a sound recording is a fungible chattel, an act of "propertisation" which can embrace public domain music as well as copyright-protected work.