Media Brief - October 2009

Welcome to the October 2009 edition of Media Brief, the bi-monthly, media-related newsletter from Field Fisher Waterhouse. We hope you enjoy it. Please feel free to contact us if you would like to discuss in greWelcome to the October 2009 edition of Media Brief, the bi-monthly, media-related newsletter from Field Fisher Waterhouse. We hope you enjoy it. Please feel free to contact us if you would like to discuss in greater detail any of the issues raised, or indeed any other issues.    

In this issue:

House of Lords makes "A Whiter Shade of Pale" judgment

Copyright Tribunal decision on music video royalties

Government revises its proposals to combat illegal file-sharing

ECJ ruling on exceptions to the Copyright Directive

Google – defamation and keyword cases

Updated Code of Practice

House of Lords makes "A Whiter Shade of Pale" judgment

The House of Lords has ruled on the copyright ownership claim brought by the former Procol Harum member, Matthew Fisher, in relation to the band's famous hit A Whiter Shade of Pale (Fisher v Brooker [2009] UKHL 41). The case was issued in 2005 by Mr Fisher who claimed that he was entitled to joint ownership of the musical copyright in A Whiter Shade of Pale on the ground that he wrote the distinctive organ solo in the opening bars of the song in 1967. The House of Lords concluded that delay – a 38 year delay in this case – does not prevent a person from asserting his ownership in a copyright work in England, although it may prevent him from obtaining certain relief such as an injunction or a claim for past royalties. The music industry may now be concerned that Mr Fisher's success in this case may encourage other musicians to issue their own copyright ownership claims.

Copyright Tribunal decision on music video royalties

The Copyright Tribunal has made its first decision on the royalty rate payable for broadcasting music videos. The case involved a dispute between the collecting society Video Performance Limited (VPL) and the broadcaster CSC Media Group Limited (CSC) over the level of royalties CSC should pay for the broadcast of music videos on its seven music channels. The Copyright Tribunal decided that the 20% rate sought by VPL was too high and reduced the payment to 12.5% of CSC's gross revenue (subject to deductions for advertising and other costs) to reflect, amongst other things, the promotional effect of music videos and the decline in advertising on music video channels due to increased internet usage.

Read more >

Government revises its proposals to combat illegal file-sharing

As reported in the August 2009 edition of Media Brief, on 16 June 2009 the government launched a consultation on legislation to address illicit P2P file-sharing proposing a two stage process of notification, followed by technical measures (such as slowing down connection speed of infringers) if required. Subsequently the government issued a Statement on 25 August 2009 announcing some new ideas to be considered as part of the consultation. Now the government proposes to speed up the time taken to implement technical measures and is also considering adding account suspension to the list of technical measures that could be used as a last resort against the most flagrant copyright pirates. These new proposals have divided opinions. The consultation period ended on 29 September 2009 (extended in the Statement from 15 September 2009) and the government expects to issue its response in December 2009.

ECJ ruling on exceptions to the Copyright Directive

The European Court of Justice has issued a ruling (Infopaq International A/S v Danske Dagblades Forening (Case 5/08)) that is relevant to internet access providers, as well as online content aggregation businesses, which clarifies an exception to copyright infringement for certain "transient" or "incidental" copying. The main points arising from this judgment are that:

reproduction of an eleven-word extract from a newspaper article is capable of constituting copying if those words are the expression of the intellectual creation of their author.
printing out an extract of eleven words during a data capture process does not fulfil the condition of being transient in nature as required to fall within the exception to copyright infringement. Therefore, that process cannot be carried out without the consent of the relevant rightholders.

Read more >

Google – defamation and keyword cases

There have been two high-profile cases against Google recently; one concerned allegations of defamation, and the other trade mark infringement issues arising from the use of keywords in Google's AdWords service.

In Metropolitan International Schools v (1) Designtechnica Corporation (2) Google UK Limited (3) Google Inc [2009] EWHC 1765 (QB) the English High Court ruled that Google was not liable for defamatory words which appeared in its search results. In order to become liable, a search engine must have known, authorised or acquiesced in the publication of the defamatory statement. This means that once a search engine is given notice of the existence of defamatory material, it should take reasonable steps to prevent access to that material.

The Advocate General of the European Court of Justice ("ECJ") handed down an Opinion on 22 September 2009 on the legality of keyword advertising (which is where advertisers select keywords which are then used to produce sponsored results listings). Louis Vuitton and other French businesses complained that the use of keywords incorporating their trade marks infringed their rights. The Advocate General believes that Google's use of keywords does not infringe, but he stressed that his Opinion was restricted to the use of keywords, and did not impact on whether the advertisements or websites to which they are linked might infringe. The Advocate General's Opinion is not binding on the ECJ, but is a good indication of the final ruling which the ECJ will make in a few months' time.

Read more on the defamation case >

Read more about the keyword case >

Updated Code of Practice

The Alliance for the Protection of Copyright (APC) has published a newly updated Code of Practice aimed at protecting and giving confidence to those involved in the submission of proposals for film, television and radio. The revised code sets out the obligations of those both submitting and receiving proposals with a view to encouraging the free flow of ideas and ensuring that written proposals are treated in a fair and transparent manner. The revised code includes guidance on online and interactive content and outlines dispute procedures for those who feel their copyright may have been infringed.