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European IP Bulletin, Issue 17, November - Copyright
Copyright
3. First Victory in Unprecedent Legal Battle Against Music Files Uploaders in the UK
On 14 October 2004, the British Phonographic Industry Limited (BPI) won the first round in a legal battle against music file-swappers.
BPI, the recording industry trade association which represents the majority of UK record companies, has been granted a court order requiring internet service providers (ISPs) to disclose to it, within 14 days, the names and addresses of music files uploaders
The case was brought in the English High Court by BPI against 28 users of peer-to-peer networks such as Kazaa, BearShare and WinMX for alleged illegal uploading, making thousands of music files in these networks available to share with other users. BPI sought damages for copyright infringement and injunctions to prevent these users from continuing to upload music files onto peer-to-peer networks.
The action followed announcement of the beginning of a litigation programme against the major uploaders of music files of BPI’s members onto peer-to-peer networks. The litigation programme was adopted after a public awareness campaign informing UK internet users of the illegal activity behind peer-to-peer networks and a warning campaign involving the dispatch of thousands of instant messages to the principal uploaders advising them to stop uploading material if they did not want to face legal action.
This litigation programme, which has just begun in the UK, is one part of an ongoing international campaign that started in the USA in 2003 and is now being extended to 6 European countries: Austria, Germany, Denmark, Italy, France and UK. The campaign is being coordinated on an international level by the International Federation of the Phonographic Industry (IFPI), and will continue with new actions against major uploaders in these European countries and other countries that may join the initiative. BPI has already announced that it will persevere with legal actions against file sharers, and that these actions will become a commonplace.
The order granted by the court represents an important step in the fight against illegal file-sharing. It helps to clarify the strategic role of ISPs in the identification of peer-to-peer users and demonstrates the courts’ position regarding illegal uploading. This case is also demonstrative of the legal strategies that the European music industry has begun to adopt in order to reduce illegal dissemination of music files in file-sharing networks, clearly indicating that it will actually prosecute major uploaders. The controversy raised in similar legal actions taken by the Recording Industry Association of America (RIAA) in the USA, which has already sued almost 6,000 peer-to-peer network users, and the legal debates it carries within, has arrived in the UK. The problems arising from the need to balance the user’s privacy against copyright protection will once more come under scrutiny.
4.. Moscow Court Dismisses Copyright Lawsuit Filed by Authors Opposing Free Online Library
In October 2004, the Meschansky court in Moscow rejected a copyright suit filed by The KM Online company and other authors against various free online libraries including lib.ru and lib.nexter.ru.
The main issue in this case was the provision and dissemination of copyright protected works through free online libraries without the authority of the copyright owners, and the liability of the service providers especially in the case of direct copyright infringement by the free online library. The plaintiffs filed the suit based on the protection of their rights against unauthorised use of their protected works online. The legal provisions on fair use and electronic publishing were important in determining the matter. However, the court determined the issue by reference to the liability of the defendants who were found to be hosts to the free online services and, thus, could not be held liable for the content provided by lib.nexter.ru.
This case sets a precedent based on the limited liability of the service provider with regard to the content offered by third parties. The service providers in most cases know who their clients are and should thus be able to help in identifying those who use the services to provide infringing material on the net. While other jurisdictions are moving towards policing the internet using the service providers, Russia is giving them free hand and limiting their liability. They actually have the capacity to act as ‘virtual goal keepers’ and if they have any knowledge of the contents and if the contents are infringing on other peoples copyright, it is argued that they should be held liable if they continue hosting the unauthorised users.
5. “Who Wants to Be a Millionaire” – Vulnerable to Plagiarism?
On 21 October 2004, the High Court delivered its judgment in Celador Productions Ltd v Melville [2004] EWHC 2362 (Ch).
Celador Productions Limited, producers of the “Who Wants To Be A Millionaire” television show, applied for summary judgment to dismiss the claims of three individuals, namely Alan Melville, Timothy Leavey Boone and John William Baccini, that the creation of the format and showing of “Who Wants To Be A Millionaire” infringed copyright in works created by them and involved misuse of confidential information.
The three claims, albeit factually different, were evaluated with reference to (i) the test applied under CPR Rule 24.2; and (ii) the evidence as to the creation and evolution of “Who Wants To Be A Millionaire”.
Of the first two defendants, Mr Melville claimed that the television show copied certain features of the format of a game called “Millionaires’ Row” devised by him in April 1995, whilst Mr Baccini’s claim was founded on the format of a 1982 board game entitled “Millionaire”, a 1990 television show entitled “BT Lottery” and a subsequent television format derived from them, all devised by him.
Sir Andrew Moritt V-C dismissed Celador’s claims for summary judgment in relation to the first two applications, finding that “the state of the evidence and the nature of the issues are compelling reasons why the case should be disposed of at a trial”. In relation to Mr Melville’s case, he said that he “was unable to conclude that Mr Melville has no real prospect of success in his defence to the claim of Celador or on his own counterclaim”. In relation to Mr Baccini’s case, he concluded that “the credibility and honesty of Mr Baccini must be assessed on all the evidence after both disclosure and cross-examination”.
However, the third claimant, Mr Boone, was unsuccessful in arguing that “Who Wants To Be A Millionaire” infringed the copyright in another television format for a game entitled “HELP!” devised by him and another, Mr Bull. Sir Andrew Moritt V-C made an order for summary judgment against Mr Boone on the grounds that (a) his claim constituted an abuse of the process and was thus “liable to be struck out on that ground” and (b) any similarities among the shows formats were mainly elements of style or technique and not substantial.
Currently, English law does not protect television programme formats per se, although such formats may comprise, and therefore be protected as, confidential information. However, copyright may subsist in aspects of the format , and, with this ruling, the court has permitted this to be tested at trial.
6. S.A. EMI Music France v Association CLCV
On 30 September 2004, the Court of Appeal of Versailles delivered its judgment in S.A. EMI Music France v Association CLCV, which confirmed an earlier judgment of the Court of Nanterre, in finding that EMI Music France (EMI), had to inform consumers, by means of labelling, that there could be limitations to their ability to listen to CDs or make copies of them.
In this case, the Association CLCV, a consumer watchdog, brought proceedings against EMI Music France, asking the court to declare the inscription on each CD that: “This CD contains a technical protection device that limits the possibility to copy it” (the ‘inscription’), as deceptive on the grounds that it omitted to inform buyers there were also possible restrictions to their ability to listen to the CD on certain legitimate playback systems. The proceedings followed a complaint by a consumer who could not listen to the CD in his car’s CD player. The Court decided that the inscription did not properly inform consumers of all the restrictions of use and that it was deceptive not to inform consumers of these restrictions. It therefore held that EMI had to insert a clear warning onto the back of its CDs.
The Court reasoned that, as a professional in the field of the audio recording and publication, EMI had to verify the proper working and compatibility of the CD on which it had placed a technical protection device. Therefore, EMI had to make sure that the technical protection device would not affect the capacity of the consumers to listen to the CD on any legitimate playback systems, or at least inform consumers of the presence of a technical protection device on the CD and of the risks that they may not be able to listen to the CD on certain legitimate playback systems.
As a consequence the Court found that since EMI only informed consumers that the product was protected by a technical protection device, and did not warn them about possible use restrictions, EMI had neglected its duty of information and had deceived the consumers by failing to provide information.
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