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European IP Bulletin, Issue 10, March - Copyright
Copyright
BBC News reported on 26 February that record label EMI asked DJ Danger Mouse and record stores to stop selling the Grey Album, which uses unauthorised samples of the Beatles’ legendary White Album.
The Grey Album was created by using the full vocal content of Jay-Z’s Black Album recorded over new beats and production made using the Beatles White Albums as the sole source material. According to DJ Danger Mouse, “all the music on the Grey Album can be traced back to the White Album and its musical content via sampling. Every kick, snare and chord is taken from the Beatles White Album and is in their original recording somewhere”.
The Grey Album, which was originally issued as a limited-edition promotional album, was turned into an internet must-have hit by file traders.
DJ Danger Mouse, whose real name is Brian Burton, said he never intended to break copyright laws. He said he considered the album as a small underground “art project/experiment” and that all he wanted to do was prove “such radical things can really work”.
EMI has served “cease and desist” orders to DJ Danger Mouse, select record stores and eBay retailers selling the remix asking them to stop distributing the Album.
However, DJ Danger Mouse, who is complying with the order, said that he was happy for fans to copy and distribute promotional copies that had already been pressed.
More than 400 web sites ignored legal threats and made the Grey Album available for free downloading as a virtual protest against the music industry, which they thought stifled creativity and tried to manipulate the public’s access to music.
The Grey Album incident raises once more the question whether the music industry will be able to keep on controlling and suppressing artists sampling and using copyright protected works in the era of digital distribution.
3. Moral Rights: Anya v Wu
On 25 February 2003, Lewison J delivered an extempore judgment in Anya v Wu [2004] Ch.D.
The claimant was a materials scientist and brought a case in person against other materials scientists for infringement of his moral right of attribution under s.77 of the UK’s Copyright, Designs and Patents Act 1988. Section 77 confers on the authors of literary and other works the right to be identified whenever their works are published commercially. Under English law this right has to be asserted prior to the alleged infringement (s.78) and is sometimes called the right of ‘paternity’.
The claimant’s case appeared to be that papers published by the defendants drew on his previously published work without proper acknowledgement. Copyright in his earlier papers had been assigned to the publishers, but that of itself would not be fatal to his claim for infringement of his moral right. Moral rights are not assignable and so remain with the author even after assignment of copyrights and related economic rights.
The claimant’s case was fatally flawed. Although the moral right of attribution attaches not only to the whole of a work, but any substantial part (s. 89(1)), it attaches to the work - the expression of ideas – rather than the underlying ideas themselves. In some cases the English courts have been prepared to find that ideas or algorithms, sufficiently developed, may form a substantial part of a copyright work, as for example in Ibcos Computers v Barclays Mercantile Highland Finance [1994] FSR 275. But the claimant does not appear to have alleged that the defendants’ papers reproduced a substantial part of his own papers. Furthermore, he acknowledged that he was not an author of the defendants’ papers; in consequence he had no direct right to be identified as one.
The defendants applied to strike out the particulars of claim as having no prospect of success and Lewison J did so.
This case shows that whilst respect for the moral right of attribution can usually be achieved by observing citation etiquette, the converse is not necessarily true. The moral right of ‘paternity’ is concerned with attribution of authorship and cannot ensure that credit for influential ideas is always given. The claimant, as a litigant in person, does not seem to have appreciated this.
Although the courts and opponents are often generous in assisting litigants in person, the power to strike out a hopeless case operates in the interests of all concerned.
4. Database Rights: Royal Mail v i-CD Publishing
On 13 February 2004, Honourable Lloyd J delivered his judgment in the case of Royal Mail v i-CD Publishing [2004] Ch.D. The case considered the issues arising from the need to balance the commercial interests of a copyright holder and the public interest to be advanced through the use of copyrighted database; and how far this balance affects the interpretation of the terms of a copyright licence.
The dispute was in relation to the use of the Postcode Address File (PAF), which Royal Mail has a statutory duty to maintain pursuant to Postal Services Act 2000 (Act), and to license it on reasonable terms to anyone under s116 of the Act. The PAF is a database containing about 27 million postal address records and 1.7 million postcodes. I-CD Publishing developed “UK Info”, a directory on CD-ROM primarily sourced from the electoral rolls consisting of names, address and telephone numbers of UK residents and businesses. The product was marketed as “PAF validated”, a process of cross-checking postal codes and addresses of recorded entries against the PAF, for conveying its accuracy to potential customers. Royal Mail sued i-CD contending that i-CD’s PAF validation using its database was without a license, and hence results in copyright and database rights infringement. i-CD counter argued that PAF validation was carried out by third parties who held a valid license for this purpose.
The High Court had to interpret the end-user license term which permits the use of PAF to modify ‘existing mailing list databases’ as a preliminary issue. Royal Mail submitted that only a database primarily compiled for mailing purposes would fall under the licensing agreement, and a list created for subsequent processing is not an ‘existing mailing list’. The Court rejected this argument and upheld the contention of i-CD that a ‘mailing list database’ means a database which includes all the names and addresses, and to construe the term otherwise would make the license totally unworkable. This interpretation achieves a balance between the commercial interests of the copyright holder, and the public interest in using the correct post codes and updated mailing lists for increasing postal efficiency and reducing the costs of postal services.
This case has highlighted the principle of achieving a balance between the private interest of a copyright holder and the public interest that can be achieved using the database which is subject matter of the license, while interpreting a copyright license. However, the Court did not provide clear-cut guidelines as to in which situation this principle shall be used. The mere requirement that a provision is un-workable doesn’t seem to be a strong test for applying this principle for interpreting the terms of a copyright license.
5. Equitable Remuneration defined: SENA v NOS
On 6 February 2004 the ECJ delivered its judgment in the case of SENA v NOS, ECJ Case C-245/00.
This case relates to the interpretation of Article 8(2) of Community Directive 92/100/EEC (Directive) on rental and lending rights, and on certain rights related to copyright in the field of Intellectual Property. Article 8(2) of the Directive recognises the right of equitable remuneration of performer and producers, and provides that a member state may lay down the conditions as to the sharing of this remuneration between them and the broadcaster when no agreement is concluded to this effect.
The dispute arose over the meaning of the term “equitable remuneration” as used in Netherlands legislation incorporating the Directive, in the context of the quantum of payments to be made by NOS (Netherlands Broadcasting Association) to performing artists and producers through SENA (Association for exploitation of related rights). The Netherlands court referred the following three questions to ECJ for a preliminary ruling: first, whether the term “equitable remuneration” used in Article 8(2) of the Directive must be given a community meaning? Secondly, what criteria shall be taken into consideration for determining the amount of equitable remuneration? Thirdly, if the answer to the first question is negative, does it imply that the member states are entirely free to lay down the criteria for determining equitable remuneration, or is it subject to some limitations and, if so, what are those limitations?
ECJ answered the first question in affirmative, and laid down the following principles of law in relation to the concept of “equitable remuneration” as mentioned in Article 8(2) of Directive:
- The concept of “equitable remuneration” must be interpreted uniformly in all member states, and applied by each member state in its own territory in a way to maintain the uniformity of this concept.
- A model may be developed for calculating what constitutes an “equitable remuneration” for performing artists and phonogram producers, provided that such model strikes a proper balance between their interests and the interests of third parties involved in broadcasting of phonograms; and that such a model shall not be in contravention of any community principle.
- This model can incorporate both variable and fixed factors such as: the number of hours of programmes broadcasted; the viewing and listening densities achieved by the broadcaster; the tariffs fixed by agreement for performance rights for musical works; the tariffs applied by public broadcasters in adjacent member states; and the amounts paid by commercial stations.
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