Publications
European IP Bulletin, Issue 26, October - Copyright
Copyright
1. Change of Artist Name Does Not Allow Rights Holder of Existing Recordings to Use New Name
The Supreme Court in Finland recently held that assignment of copyright in an artist’s work will only grant rights in the work created under the name the artist was using at the time of assignment. Therefore, though an artist may have previously assigned copyright in certain works, the Court held that if the artist subsequently changes his or her name, the earlier assignee is not entitled to apply the new name to the earlier works.
The facts of the case were as follows: a performing artist and a recording company signed a contract whereby the artist assigned all the rights to her performances recorded during the term of the contract. The contract gave the recording company the right to use the artist’s real name or her defined artist name in connection with those recordings
For the duration of the contract, the Artist, Eija Riitta-Kantola, recorded performances under name ‘Eijariitta’. Upon termination of the contract, she changed her artist name to ‘Eija Kantola’, and subsequently became successful upon winning a singing contest. As the previous recordings were of quite poor quality, she did not want to be connected to her old artist name. The contract with the first company was assigned to another recording company, which re-published the old recordings using her new artist name and referred to her as the winner of the singing contest.
The Supreme Court stated that generally an assignment of copyright has to be interpreted narrowly. However, if an author chooses to use a pseudonym in connection with his works, this must be respected. The Court found that an artist has the right to decide which artist name may be used in connection to her performances and in which form this name is to be used. As the earlier contract had not specifically permitted the use of the new name, and the name was changed on the work without her consent, the re-publishing of the works infringed her moral rights.
2. Belgium and the Netherlands Scrap Their Restrictions on Licensing Music to Online Users
On 17 August 2005, Belgium and the Netherlands announced plans to scrap their restrictions on licensing music to online users.
In accordance with the Statement of Objections issued by the European Commission on 29 April 2004, SABAM and BUMA, the Belgian and Dutch collecting societies that manage music copyrights for authors, proposed ending restrictions in the cross-licensing arrangements for online music that they have with other collecting societies.
The Commission Statement followed growing concerns that such restrictions transpose into the internet world the national monopolies that the societies have traditionally held in the offline world. The Commission considers that the restrictions created by the ‘economic residency clause’, which provides that users can only obtain European Economic Area-wide licences for the online use of music from their national collecting society, may infringe Article 81 of the EC Treaty. This is because the territorial exclusivity afforded to each of the participating collecting societies is not justified by technical reasons and is irreconcilable with the reach of the internet.
SABAM and BUMA have now committed not to be party to any agreement containing an ‘economic residency clause’, similar to that contained in the Santiago Agreement and identified as restrictive in the Statement of Objectives. The Santiago Agreement is designed to tackle the problems that traditional copyright licensing schemes face in light of the growth of new technologies and internet use.
The aims of the SABAM/BUMA commitments are to create a single system governing music rights and to help European online music services compete with those in the United States. The US currently spends around €207m on downloads compared with Europe’s €27.2m.
The EU Commission has now opened a public consultation on this subject. It views the modernisation of the licensing of music for online services as highly important and is hoping that an agreement can be reached with other Member States' national music copyright agencies by the end of October 2005.
3. Liability for Linking to Infringing Material
On 15 July 2005, the District Court in Hamburg granted a temporary injunction in favour of the Motion Picture Association of America against the operator of the website “the-realworld.de” and the Internet service provider ShareProvider.
The case relates to the use of hyperlinks which are electronic elements which create a connection between the content of two different files, or between different portions of a single file. Through the use of direct hyperlinks to files offered via eDonkey’s peer-to-peer network, the operator of “the-realworld.de” provides users with an easy way of finding and downloading the contents of certain files from that network. The contents of the website itself did not include any copyrighted works, however there were many copyrighted works supplied without the consent of the respective right holders among the linked files.
In response to the proliferation of pirated works on peer-to-peer computer networks, websites that contain direct links into these networks have become increasingly popular to confirm the authenticity of files. The music and film industry is now starting to respond to this new threat with cease-and-desist letters and, where necessary, legal action.
In this case, the Motion Picture Association of America, as copyright owner of several of the works contained in the linked files, sought compensation for damages for copyright infringement, and injunctions to remove the links from the website. ShareProvider, the Internet service provider which hosted the website, was also accused of being liable as it did not remove or block the access to the website after a request to do so.
In its decision, the court considered both the website operator and the Internet service provider liable for disseminating infringing material. According to the court, the website operator edited the hyperlinks to allow users to research and download copyright infringing material, thus violating the German Copyright Act (UrhG), while ShareProvider was liable in failing to remove or block access to the website.
Over the last few years, there have been a considerable number of cases addressing linking, framing and search engine issues. One of the main issues discussed in these cases is liability for third parties’ illegal contents. In particular, liability for copyright infringement through the use of direct hyperlinks to music or image files has already been considered by courts in the US, Belgium, Sweden and China.
This case is just one more example of the ongoing international programme against copyright infringement and, more recently, against peer-to-peer networks. In the present case, ShareProvider is now appealing for donations and “the-realworld.de” was forced offline for a period of time. As a result of the legal actions against peer-to-peer networks, the eDonkey operator also announced last September that due to legal pressure he was giving up and preparing to convert eDonkey into an online content retailer operating in a closed peer-to-peer environment.
4. LexisNexis Copyguard: Trust in Technology to Fight Copyright Theft
At the end of this summer, LexisNexis, the market leader in the supply of comprehensive and authoritative legal and business information, announced the launch of a new product intended to provide a solution to counter the problem of intellectual property misappropriation through plagiarism. The development of this solution, called LexisNexis Copyguard, has been realised through the joint efforts of LexisNexis and iParadigms, a leading company in the provision of specialist Web-based products to protect the originality of documents used for either commercial or academic purposes.
With LexisNexis CopyGuard users can compare a document with the content belonging to LexisNexis and delivered through its databases. This amounts to 6.1 billion searchable documents, including deep archives. Copyguard also covers 4 to 5 years of Web pages stored by iParadigms. The technology developed by LexisNexis and iParadigms works on the identification of specific suspect passages. An originality report would be able to show the documents concerned side-by-side for comparison, underlining the matching texts and codifying them with different colours. In this way, the user would know the exact percentage of text originating from elsewhere and on this basis could evaluate the possible presence of copyright infringement.
Whether it is a valuable tool depends on how it copes with substantial reproduction; copying with changes. Further even the alleged base document may not be original. It is a useful tool but does not provide a complete answer in relation to the whole issue of IP misappropriation through plagiarism.
5. Sony Loses Playstation Copyright Case in Australia
The High Court in Australia has ruled that the modifying of Sony PlayStation chips enabling the console to play imported games does not breach copyright law. The ruling ends four years of legal wrangling between Sony and a Sydney-based supplier of modified chips whom Sony sued claiming the chips violated its copyright.
The modified chip retailer, Eddy Stevens, supplied and installed modified chips into PlayStation consoles. These chips allow people to play games purchased legitimately in other countries, as well as running backup copies or bootleg discs. Sony has fought hard in a number of countries to clamp down on modified chips, which can be used to bypass the regional coding system, and are apparently a feature of the company’s ability to pursue differential pricing in different markets. In 2004, the selling of modified chips was ruled illegal in the UK.
Sony had argued that the modified chips were a breach of copyright under Australian laws but its case was rejected at first instance. Sony won on appeal, but the chip retailer appealed the decision and the case went to the High Court. The High Court ruled that while pirating is one thing, playing an otherwise legitimate game using a modified chip is another. Since the chips do not enable the copying of games by players, the modified chips do not breach copyright. This ruling clears the way for Australians to buy games from cheaper markets to play on their Australia machines. The Court also found that Sony’s regional coding did not qualify as a technological protection measure, and said that regional coding restricted competition and consumer rights.
While the decision will cheer up Australian games console players, the effects it will have in other countries is less clear. The selling of modified chips is banned in other countries and both Sony and Microsoft have used the EU Copyright Directive 2001/29/EC, whereby it is illegal to circumvent copy protection systems, to clamp down on modified chips. Although, Sony could decide to abandon regional pricing, it is more likely that it will make a more concerted effort to embed regional coding in the console’s copyright protection mechanism.
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