Calls for a new look at the DMCA safe harbor protection as music companies head back to court in battle against MP3tunes

Talking to rights holders in the run up to the CISAC World Creators Summit in Washington, it seems that few agree that any country has the right balance between certain technology companies’ use of music and the abuse of copyright. Google has been on the receiving end of several legal actions by a number of rights holders that have claimed its online video service YouTube has either not acted quickly enough to remove content when asked, or is using content that it has no license for. Ever-troubling for rights holders is the fact that it is their responsibility to check whether music is being used correctly and not the responsibility of the digital-music service.

Has the music industry forgiven Justin Timberlake for his MySpace links and accusations of artist exploitation?

Depending on where a musician sits in the music industry value chain, a top-10 list of what’s most important to an unsigned artist will differ greatly to one compiled by a million-album seller. Scratching a living out of music is something tens of thousands of musicians do every day. Although the Internet has opened up the promotion and distribution of music to anyone with a computer, it has also made selling music a lot more difficult as almost every single release in a digital-music store is available for free somewhere online.

A short history of the music industry: different formats, familiar names but the same old problems

In the past 20 years or so, all sectors of the music industry have been through massive change. Format transitions, company consolidation and greater scrutiny of copyright and licensing have changed the industry beyond all recognition. But have the changes made for industry improvements, and more important, have the main players learned from their mistakes? The recent discovery of the first issues of Music & Copyright has allowed for a unique look at just how much certain things have changed, and how much they haven’t.

The newsletter’s 20-year anniversary came and went in September, but thanks to a long-standing subscriber, copies of the first 24 issues published have been found and make for interesting reading. Despite containing names that have either long since left the music industry or been swallowed up as part of industry consolidation, the headlines for a number of news stories resonate closely with happenings today.

Is the BBC report on the effectiveness of the Pirate Bay block missing the point?

Earlier this week the BBC reported the drop in file sharing following the court-ordered block of the Pirate Bay (TPB) was short-lived (link to article). The BBC said it had been shown data by an unnamed major UK ISP which confirmed that P2P activity on the ISP’s network had returned to just below normal one week after the block was put in place. Should we all be surprised by this? Of course not. Stopping Internet users in the UK from accessing TPB won’t stop them file sharing. What will stop them file sharing is if ISPs blocked access to all file sharing services. Interestingly enough, most ISPs’ customer-use policies make it clear that the Internet service provided should not be used to infringe copyright. In fact, the usage policy usually forms part of a contract, and therefore any breach of this contract should result in the customer’s account being terminated. Such a scenario never happens.

Artists and composers swim against the tide in the battle of rights

Last month the European Composer & Songwriter Alliance (ECSA) held a press conference at the Silken Berlaymont Hotel in Brussels to brief news reporters about a stance it was taking against European broadcasters on behalf of music composers. ECSA accused Europe’s leading broadcasters of forcing composers to give up their rights in return for TV commissions. Big names in broadcasting, such as RTL, ITV, BskyB, TF1, ZDF and Rai, were all accused of operating a system called coercive commissioning – in return for awarding a composer with a commission, the composer must assign all rights in the music to the broadcaster or TV production company. Put simply, no rights, no commission.

Why the case against ReDigi should go to a full trial for the good of the music industry

Earlier this month, US District Judge Richard Sullivan ruled against EMI’s Capitol Records’ request for a preliminary injunction against the digital-music reseller ReDigi. Capitol had wanted the service closed down but Judge Sullivan denied the record company’s demand and insisted that the service should stay online and the case go to trial. The judge’s action has been widely reported as a victory for ReDigi and to some extent it is. Not every day can a start-up company say it has fended off one of the world’s biggest record companies. But in the longer term, having the case go to a full trial can only be a good thing for the music industry. Should Judge Sullivan have ruled without a trial that ReDigi was infringing copyright then the issue of legality would rumble on and proponents of digital resale would simply claim they have been trodden on by a big corporation wanting to protect its business.

Consolidation in the music publishing sector is set to shake up Pan-European licensing

The European Commission (EC) is planning to publish draft legislation proposals early next year that will include new rules for the cross-border licensing of digital music. For several years representatives of the EC have expressed a mixture of mild irritation and outright annoyance over the licensing process for digital-music services in Europe. The number of such services has grown rapidly in the region, but several service providers continue to bemoan the time-consuming process involved in securing rights to operate in several countries. New business models specializing in digital-music delivery have brought change to collection societies, but according to some service providers, rights remain fragmented, and some providers have questioned whether the major publishers’ Pan-European initiatives have simply added a new layer of fragmentation and complexity to the licensing process, with Europe’s largest collection societies the only ones seeing any benefit.

Are blue-chip companies unknowingly supporting pirate music sites?

Pirate-music sites offering free music downloads are being indirectly funded by a wide range of blue-chip companies. A survey conducted by Music & Copyright in the UK has found that all of the companies whose advertising appeared on a selection of pirate sites were unaware of the ads’ presence. Should these companies know where their ads are going?

Brands and artists: the delicate balancing act between rights and obligations

Artist endorsements of products and services, as well as company sponsorships of tours and festivals, have been a part of the music industry for many years, and examples of successful alliances between brands and artists are numerous. Although ensuring that all interests are served without limiting artists’ creativity can be a complex process, achieving the right balance between rights and obligations can be beneficial for all concerned. We asked Ailish McKenna, a solicitor with Bray & Krais Solicitors for her take on what restrictions brands can reasonably impose on artists.

The word “partnership” can be used to describe a whole range of relationships in varying settings. In the area of brand endorsements, the word is commonly used to define the nature of the relationship between the brand and the artist chosen to endorse certain goods and services under that brand. Both parties entering into a media partnership have their own interests to serve. The hope and the intention is of course that a mutually beneficial and fruitful alliance will unfold.

Question – is now the right time for the European Commission to legislate on Pan-European digital music licensing?

The issue of Pan-European licensing and how best it can be achieved is a hot topic. Earlier this week, in an interview with the UK trade magazine Music Week, Pandora founder Tim Westergren said that a centralized licensing structure was needed for the service to return to Europe. Westergren is not alone in his criticism of the licensing in Europe as plenty of other digital music services have bemoaned the complexity of the licensing structure in the region. But is the situation as bad as they all claim? The big music publishers have all set up “hubs” to streamline the licensing process and the Pan-Nordic mechanical-rights-collection society Nordisk Copyright Bureau has shown that multiterritory licensing can be achieved without legislation from Europe.

With this in mind, Music & Copyright would like your opinion on the issue. Please answer the below question and by all means add any comments. The results of the poll will be published in the next issue on July 13.

Music & Copyright is published by Informa Telecoms & Media.