Reposted from Sports, Media and Entertainment Online

By Keitaro Uzawa and Ann Cheung

The Ministry of Economy, Trade and Industry of Japan (“METI“) recently revised the Interpretative Guidelines on Electronic Commerce and Information Property Trading (“Guidelines“), which apply to all online business operations in Japan and clarify how the Civil Code, which governs Japanese commercial contracts, and other relevant laws, such as the Act on Special Provisions to the Civil Code Concerning Electronic Consumer Contracts and Electronic Acceptance Notice (Act No. 95 of 2001) (“Electronic Contract Act“) and the Act on Specified Commercial Transactions (Act No. 57 of 1976), are applied to various legal issues relating to electronic commerce and information property trading.


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Reposted from DLA Piper’s Sports, Media and Entertainment Blog

By Matt Ganas and Sam Churney

As part of a concerted effort to assess the effectiveness of existing methods of licensing music, the US Copyright Office has published a request in the Federal Register for public comment on a number of copyright issues. This request relates to an ongoing congressional review and a potential overhaul of the US Copyright Act, 17 U.S.C. 101, et. seq. (the “Act”),  in view of technological developments that continue to shape music industry practices in the digital age.  According to the Copyright Office, information gathered during the public comment period will be reported to Congress for consideration of possible revisions to the Act.


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By John Wilks and Ruth Hoy

A UK High Court claim filed this week by the Ministry of Sound record label against music streaming site Spotify raises some interesting issues around the originality threshold for copyright works.

The claim, which was reported in the Guardian, alleges that the Ministry’s track listings (each a compilation of tracks by different artists) are copyright works in their own right. The Ministry allege that such copyright is infringed by playlists made available by Spotify which reproduce their compilation track listings.


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By James Stewart

Madonna is the center of attention again regarding alleged misappropriation (remember the “Express Yourself” debate?).  The “Material Girl” is once again en vogue on the copyright docket in the Ninth Circuit.  According to IPLaw360, record label VMG Saloul LLC has sued Madonna, her record label, and a co-composer (collectively, “Madonna”) with whom she worked to compose and produce the smash-hit “Vogue” for copyright infringement.

VMG alleges that Madonna covertly incorporated pieces of their late-seventies disco track “Love Break” into the infamous 1990 hit single “Vogue”.  In an attempt to bypass the Copyright Act’s statute of limitations, VMG argues that it was unable to detect such copying until new technology was developed in 2011.

Madonna quickly denied that any copying took place.  However, most interesting about the Material Girl’s motion is her observation that VMG’s “new technology” argument effectively wipes out any chances of success in this infringement suit.


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Reposted from DLA Piper’s Media Intelligence Bulletin

Editorial Team: Nick FitzpatrickDuncan Calow and Patrick Mitchell

Peter Frampton has filed a lawsuit against Universal Music Group (“Universal Music”) in respect of unpaid music royalties.

Peter Frampton filed a suit on 23 December 2011 against record label Universal Music for half a million pounds worth of unpaid music royalties and unspecified damages, making him the latest artist to make a claim against a record label in respect of digital royalties.


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DLA PIPER IPT ALERT

By Ruth Hoy and Patrick Van Eecke

As was the case in Newzbin 2, a national court, in deciding whether to order an ISP to implement technical measures to deal with copyright infringement on the part of the ISP’s customers, will need to consider whether the proposed measures are proportionate.  In doing so, it will need to strike a fair balance between the protection of intellectual property and that of a freedom to conduct a business enjoyed by ISPs.
On 24 November 2011, the CJEU gave its judgment in a case brought by SABAM, a Belgian collecting society, against Scarlet Extended SA (formerly Tiscali SA).  
In the national court proceedings, SABAM, which represents the interests of copyright owners in musical compositions had brought action to address the problem of P2P file sharing of digital musical files by Scarlet’s customers.  The Court of First Instance in Brussels accepted that the activities on Scarlet’s customers inevitably involved copyright infringement of  works within SABAM’s repertoire, and that it had jurisdiction to order the prevention of such activities.  It appointed an expert to look into the feasibility of certain technical measures which could be implemented by Scarlet.
Following the report of the Court appointed expert, and in accordance with its powers under Article 87(1) of the Belgian Law of 30th June 1994 on Copyright and Rights, as amended by the Law of 10 May 2007, the Belgian court ordered that Scarlet should bring an end to the infringements by making it impossible for its customers to send or receive files containing a musical work in SABAM’s repertoire by means of P2P software, in particular by using Copysense by Audible Magic.
The decision was appealed by Scarlet, who argued that: 
The decision was contrary to EU laws on privacy and freedom of expression; 
The decision was contrary to Article 12 of the E-Commerce Directive (which provides immunity to service providers who assist transmission within a communications network); and 
The decision was contrary to Article 15 of the E-Commerce Directive (which provides that “Member States shall not impose a general obligation on providers to monitor the information that they transmit or store nor a general obligation actively to seek factors or circumstances indicating legal liability”).
In considering the case, the Brussels Cour d-Appel referred two questions to the CJEU, questioning whether it was contrary to EU law to require an ISP to introduce such a wide-ranging injunction.
In its judgment, the CJEU has confirmed that the injunction in the SABAM case went too far and that it would be contrary to EU law for a national court to order such a wide-ranging injunction which was not limited by (i) time; (ii) cost;  (iii) technical effectiveness of the measure proposed; (iv) type of communication, without distinguishing between lawful and unlawful content.  In particular, the Order must not go so far as to actively require ISPs to monitor the data of each of its customers in order to prevent any future infringement of IP rights. 

As was the case in Newzbin 2, a national court, in deciding whether to order an ISP to implement technical measures to deal with copyright infringement on the part of the ISP’s customers, will need to consider whether the proposed measures are proportionate.  In doing so, it will need to strike a fair balance between the protection of intellectual property and that of a freedom to conduct a business enjoyed by ISPs.

On 24 November 2011, the CJEU gave its judgment in a case brought by SABAM, a Belgian collecting society, against Scarlet Extended SA (formerly Tiscali SA).


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Reposted from DLA Piper’s Media & Sport Group Bulletin

Editorial Team: Nick FitzpatrickDuncan Calow and Patrick Mitchell

Ate My Heart Inc v (1) Mind Candy Ltd (2) Moshi Music Ltd (2011) – interim junction granted against online children’s game company and its subsidiary
The High Court has granted an interim injunction preventing the promotion of an animated character known as “Lady Goo Goo” and its associated song due to the risk that the public would confuse it with the music artist Lady Gaga and her associated trademark.
The High Court proceedings were brought by the applicant following the attempted release of “The Moshi Song” by Moshi Music, a new division of the children’s social networking site Moshi Monsters. The song had already been posted on YouTube and Moshi Music planned to release it as a single on iTunes. The online computer game also features an animated cartoon baby known as “Lady Goo Goo” which was arguably a visible representative of Lady Gaga. The applicant argued that there had been infringement of its LADY GAGA trade mark.
The applicant argued that there was a risk that consumers might consider “Lady Goo Goo” to have originated from the same source as, or a source economically linked to, Lady Gaga. This argument was strengthened by the fact that users had published blog comments suggesting they were confused as to whether there was a connection.
The factors relevant for the assessment as to whether or not there was a risk of confusion were as follows:

Ate My Heart Inc v (1) Mind Candy Ltd (2) Moshi Music Ltd (2011) – interim junction granted against online children’s game company and its subsidiary

The High Court has granted an interim injunction preventing the promotion of an animated character known as “Lady Goo Goo” and its associated song due to the risk that the public would confuse it with the music artist Lady Gaga and her associated trademark.


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