PRS for Music and GEMA announce record results

The UK's Performing Right Society (PRS) has announced it paid out more than half a billion pounds sterling in royalties to songwriters, composers and publishers ib 2016, in its strongest performance to date. The organisation, which represents the rights of over 125,500 music creators in the UK and two million worldwide, paid out £527.6m to its members last year, up 11.1% (£52.5m) on 2015.

It was also able to deliver more money to more creators than ever before, with 33% more members receiving a payment compared to 2015. The number of unique musical works and songs earning money also rose by 45% to 4.2 million. In turn, revenues collected by PRS increased by 10.1% (£57.2m) in 2016 to £621.5m.

Of the music licensing company’s four main revenue streams, international income generated from members’ music played abroad saw significant growth, with £233.7m received from equivalent societies overseas. This represents an increase of 5% (£11.2m) year-on-year. Revenue from music played via online platforms saw the largest uplift at 89.9% (£38.1m) to £80.5m, while public performance income grew 4.6% to £183.2m and broadcast revenues were stable at £124.1m(a decrease of 0.1% on 2015).

In 2016, over 4.3 trillion uses of music were reported to the organisation from across the globe. This figure was just 126 billion in 2012, with growth illustrating the remarkable explosion in streaming and the success and popularity of PRS members’ repertoire internationally.

Germany's GEMA also concluded its 2016 financial year on a positive note: For the first time, the collective management organisation for music rights reported collections of more than a billion Euros (EUR 1,024.4m) on behalf of its 70,000 members and the rights owners represented by GEMA across the World.

One of the factors contributing to this positive earnings development was the settlement with YouTube. The fees, determined as part of a new licence agreement, entered into November 2016, were retroactively incorporated into the annual accounts for the period 2009-2016. Intensive growth in the usage of streaming services also had a positive effect on the income - albeit download exploitation declined: A total of EUR 81.6m was yielded in terms of online music usage - resulting in a doubling of figures compared to the previous year (2015: EUR 40.4m). In addition,  the agreement by the Zentralstelle für private Vervielfältigungsrechte (Central Collection Agency for private copying rights, ZPÜ) with the associations of the hardware industry for smartphone and tablet products had a positive effect due to the fact that a share of the resulting income is allocated to GEMA: Its income from remuneration claims substantially increased to EUR 97.9m (previous year: EUR 16.3m).

Stable growth of further collection areas have also played their part: Turnover trends from Regional Offices (EUR 370.1m, previous year EUR 365.5m), Radio and TV (EUR 286.2m, previous year 280.6m) as well as International Royalty Income (EUR 73.5m, previous year EUR 71.3m) more than equalised the slight decline in Sound Recordings (EUR 104.9m, previous year: EUR 110.3m).

The increase in GEMA's income increase also coincided with a reduction of the total cost rate to 15.4 % (2015: 16.3%) and the operating cost rate of 12.6% (2015: 13.2%), 

More here and here 

THE COPYKAT

This CopyKat from David Liao

US Copyright Office – further update

As previously covered on The 1709 Blog here, there was an unprecedented removal of Maria Pallante from her position at the US Copyright Office last October with some speculation that her policy position had been the cause of this. Further information recently revealed indicates however that the US Copyright Office may have been grossly mismanaged during Pallante’s time, with one such example being a failed electronic licencing program which exceeded its budget of $1.1 million by over $10 million.  In addition, there are also allegations a fake budget item to the tune of $25m appeared in the initial FY18 appropriations request, which would account for roughly a third of the Copyright Office’s budget. This information has been brought to light specifically in relation to a bill introduced in Congress March this year (which would, amongst other things, allow the President appoint the next Register of Copyright as opposed to the Librarian of Congress) and more generally a call for modernisation of the Copyright Office and reallocation of power between the government branches.  More details here.

Big Bang Producers can sleep soundly to Soft Kitty

Fans of the hit show “The Big Bang Theory” will be familiar with the catchy song “Soft Kitty” (video clip here for those unfamiliar or wanting a refresher). What may be less well-known is that in December 2015 a lawsuit was filed in relation to this song by Ellen Newlin Chase and Margaret Chase Perry, the daughters of Edith Newlin who wrote the original lyrics to the song in the 1930s as a poem.

As background, this poem had been published in the Songs for the Nursery School book by one of the defendants The Willis Music Group (“Willis Music”) in 1937 with Newlin’s permission, and also registered then as a musical composition with the US Copyright Office. Willis Music subsequently renewed this copyright registration in 1964 and the plaintiffs alleged this would have renewed Newlin’s rights to the lyrics. If so, the licence provided by Willis Music to the other defendant’s (including Warner Bros. Entertainment) would have required Newlin’s permission and therefore use of this song in the show infringed her copyright. 

Despite noting that section 24 of the 1909 Copyright Act is “hardly a model of clarity”, the Southern District Court of New York recently dismissed the claim, holding that Newlin and assigned the copyright to Willis Music (meaning the licence was valid) and that the distinction made by the plaintiff’s between common law copyright and other copyrights was a distinction without a difference. For more details, see here for the memorandum and order. 

Collection societies and blockchain

The three largest member-owned collection societies (the American Society for Composers, Authors and Publishers (ASCAP), the Society of Authors, Composers and Publishers of Music (SACEM), and PRS for Music) are working with IBM and Hyperledger Fabric to create a new system to confirm copyright ownership information and conflicts using blockchain technology. The goal of the project is to “prototype how the music industry could create and adopt a shared, decentralised database of musical work metadata with real-time update and tracking capabilities” and, if successful, will hopefully address long-standing issues in the music industry and provide benefits to music creators worldwide. See here for more details. 

ITV loses Copyright Tribunal appeal

UK national broadcaster ITV has lost its appeal to the  High Court appeal against the 2016 Copyright Tribunal ruling that set rates for the current (2014-2017) period with PRS for Music, the collection society which represents composers, lyricists and music publishers in the United Kingdom. The Tribunal agreed that PRS could increase the tariff beyond the 2013 fee payment of £23 million per annum to a new base rate of £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). On appeal the High Court told ITV that the Tribunal  "had not made an error of law in reaching its decision".

Commenting on the decision, PRS Commercial Director Paul Clements said: "In June 2016, the copyright tribunal decided a dispute over the terms of ITV's broadcast licence in PRS For Music's favour. The tribunal decision set down clear and compelling reasons for an increase in the licence fee, reflecting the right value for our members' music". "While ITV chose to appeal this decision, I am pleased that the High Court has now rejected their arguments and upheld the original tribunal decision" adding "This result is very real evidence of our commitment to secure the right value for our members' work".

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/532234/ct12714.pdf

http://www.musicweek.com/publishing/read/high-court-rejects-itv-appeal-over-prs-for-music-tribunal-win/067598

http://www.musiclawupdates.com/?p=6496

The CopyKat

U.S. Internet provider Windstream is asking a New York federal court to shield the company from broad piracy accusations. The ISP filed a complaint against BMG and Rightscorp after it was accused of direct and contributory copyright infringement. The lawsuit follows on the heels of a similar complaint by fellow Internet provider RCN, which also seeks legal clarity in the wake of several conflicting decisions on whether or not Internet provider can be held liable for subscribers who share pirated file - but clearly prompted by the decision of a Virginia federal jury - in a case brought by BMG Rights Management against Cox Communications - who answered in the affirmative. 

PRS for Music has won the Copyright Tribunal reference brought against it by ‎ITV in July 2014 - a final hearing took place for two weeks in November 2015. The decision concerns, amongst other things, the annual sum ITV must pay to PRS for Music to use musical works in its programmes and broadcasts. In August 2015, PRS wrote to its members to announce it would be temporarily increasing the admin fees it charges on royalties collected from TV companies in order to fund the legal costs of the Copyright Tribunal hearing. The Tribunal decided that the base royalty (beginning in 2010) would be some £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). Michael Simkins LLP (now Simkins), who acted for the PRS, said the Tribunal's decision "is the most significant decision relating to such rights for almost 20 years, since the 1997 BSkyB case."

PRS for Music has also written to its members saying that from the end of June the BBC will need to seek prior approval from publishers for use of North American repertoire. Why? well it seems the BBC’s blanket licence with PRS for Music and a number of BBC Worldwide’s MCPS licences are due to expire on 30 June 2016 and whilst negotiations with the BBC to agree new licences continues, and the PRS have agreed that the existing licences will be extended for a 6 month period from 1 July 2016 to 31 December 2016, as a condition of extending BBC Worldwide’s TV Programme Sales licence, the MCPS Board has asked that the BBC seek prior approval from publishers for uses of North American repertoire in programmes which are sold into the US and Canada on a trial basis, although if approved any licence will be at MCPS rates. See more on use rates here and existing approvals here. 

New copyright legislation has come into effect in Cayman to provide greater legal protection for Cayman’s musicians, visual artists and others in the creative fields, and is the first step in modernising intellectual property legislation. Commerce Minister Wayne Panton said government had plans to present more bills in September to update existing trade mark legislation for local registration and design rights. 

Asparagus - yes - and copyright: A New Zealand company, Oraka Technologies has been awarded $4.1 million in damages in a copyright case involving an automatic asparagus grading machine. Tired of grading asparagus by hand, Oraka Technologies owner Michael Schwarz developed the first automatic asparagus sorter, known as the Oraka Grader, in the early 1980s and asked Napier Tool & Die to prepare drawings for a cup that transported the asparagus for the Oraka Grader, and Napier began manufacturing it for Oraka Technologies. But a rival company Geostel Vision used Napier to manufacture their own cup assembly that was alleged to be substantially copy of Oraka's design and in 2013 the Court of Appeal found that Geostel and Napier Tool & Die copied part of the machine. 

And staying "down under", Australia’s Full Federal Court has confirmed digital data streams are not protected by the Copyright Act. The court upheld Justice Annabelle Bennett’s December 2014 ruling that held that copyright did not subsist in digitally streamed broadcasts. The case is actually a taxation case (Commissioner of Taxation v Seven Network Limited), which revolved around whether payments made to the International Olympic Committee for broadcasting rights by Seven were royalties and therefore taxable. The court found that “a cinematograph film in which copyright subsisted under the Copyright Act is not made until the first copy is made” and that there was no way for the broadcast to be reproduced without an external receiving device. More on IPPro here and the judgment can be found here. Seven Network Limited v Commissioner of Taxation [2014] FCA 1411, 

PRS for Music and Soundcloud settle - war is over - for now

PRS for Music has written to its membership informing them that it has settled the recently launched legal action against the online music platform, which is widely used by PRS members. The licence covers the use of PRS for Music repertoire from SoundCloud’s launch, and extends to. cover SoundCloud in its plans to introduce subscription and advertising supported platforms across Europe in 2016.  Robert Ashcroft, Chief Executive of PRS for Music said: “On behalf of our members, I am pleased that we have been able to reach a settlement with SoundCloud without extended legal proceedings. This ends over five years of discussions on the licensing requirements for the platform, resulting in a licence under which our members are fairly rewarded for the use of their music." adding "The safe harbours in current legislation still present ambiguity, and obstruct the efficient licensing of online services, but our agreement with SoundCloud is a step in the right direction towards a more level playing field for the online marketplace." The letter from Karen Buse, Executive Director, Membership and International, reads:  I wrote to you earlier this year to explain our action against the online music streaming service SoundCloud. After five years of unsuccessful licensing negotiations, we believed that we had no alternative but to start legal proceedings against them. However, we have since, through intense discussion and negotiation, managed to reach an agreement. The agreement covers the use of repertoire controlled by PRS for Music since the service launched and is an important step in our quest to achieve a level playing field in the licensing of online services so that songwriters, composers and their music publishers can be paid properly for the use of their music online. We believe this agreement to be the best outcome because it sets us on the path towards receiving proper reporting from SoundCloud of their use of your repertoire, enables royalties to be paid and also avoids the cost of legal proceedings. Receiving enough accurate data on music uploaded to the platform remains a challenge but SoundCloud have committed to working with us to improve the quality of their reporting over time. We are conscious of the value that many of you derive from using SoundCloud and are pleased to have reached this landmark agreement. Whilst it is only one step along the road to a fully functioning online market, it is an important one. I would like to thank SoundCloud for breaking with the past and agreeing to work with us; a move which we feel is in not only your, but all rightsholders’, interests. We expect you have questions about what this means for you. To help answer these, we’ve put together some frequently asked questions which can be viewed here.

Yours sincerely,  Karen Buse Executive Director, Membership and International PRS for Music

The CopyKat

A Czech man called Jakub F has struck a novel dea to avoid penalties for copyright infringement. Admitting “I had to start this site, because I spent eight years spreading pirated software and got caught”, he now has a website set up to promote a YouTube video in which he apologises for his behaviour. If the video reaches 200k views, he will pay only a faction of a hefty damages bill, after he was found guilty of copyright infringement. TorrentFreak reports that he struck the deal with rightsholders including Microsoft, HBO, Sony Music and Twentieth Century Fox to produce and promote his anti-piracy mea culpa on YouTube. He has reached 141K views. Whatever happens, he has a three year prison sentence suspended for three years from the district Court in Litoměřice. The damages were set at CZK 5.7 million (£148k).

The UK's Competition and Markets Authority is launching a review of undertakings given by the Performing Right Society (PRS) following a competition investigation in 1995/6.  The decision to review the undertakings follows a Competition and Markets Authority (CMA) consultation in July, which sought views on whether to carry out reviews of 13 sets of market and monopoly remedies that had been put in place by the CMA’s predecessors prior to 2005. The CMA expects to launch further work following this consultation in the coming months. This consultation formed part of its commitment, set out in its 2015/16 annual plan, to commence a systematic review of existing merger, market and monopoly remedies. The CMA has decided there are grounds to review the PRS undertakings. This is due to internal changes made by the PRS; legislative changes including the forthcoming implementation of a new EU Directive covering collective rights management; and wider changes in the music industry including the growth of online and digital music including downloads and streaming.The PRS gave undertakings in 1997 allowing its members to administer their own live performing rights, as well as making other commitments over its corporate governance and the provision of information to the Office of Fair Trading (now the CMA).  More here.


Yunghi Kim, the award winning photojournalist and 20 year long member of Contact Press Images, is  donating $10,000 to create ten one-time grants for US photographers of $1,000 with money that she has received “from fees recovered from unauthorized use of my work”. The Awards will be made to promote copyrght registration - with Kim saying "I am doing this to emphasize that, YES it makes a difference if you copyright register your work and everyone should make a practice of it in your workflow. Think of it as digital teeth brushing." More here.

London fashion label Kokon to Zai (KTZ) has been accused of copying a garment designed in 1922 by Aua, one of the last Shaman of the Canadian Inuit. His great-granddaughter Salome Awa spotted the sweatshirt online and says she was “shocked” by its resemblance to the one created by her ancestor to protect him from drowning. You can see both of the designs in better resolution on the Evening Standard here. Earlier this year KTZ were accused by fashion designer Bethany Yellowtail of copying her dress which featured a design from her great, great grandmother, a Native American. Ms Awa said a legal action is pending. The Standard reports that KTZ issued a statement saying: “Over the last 20 years KTZ has always been inspired by and paid homage to indigenous cultures and tribes" and “It’s part of KTZ’s DNA to take inspiration from all indigenous cultures around the world and celebrate multiculturalism as a form of art. Our appreciation isn’t the same as appropriation”. KTZ say they have already removed the item from sale online, and will remove the items from stores.” Edward Sheriff Curtis's extraordinary images of Native American tribespeople from the early 1900s can be found on Mashable here.

And finally - the CopyKat must bid a very fond (but slightly sad) farewell to Jeremy Phillips - our blogmeister, our mentor and a beacon of common sense; teacher, academic, writer, editor, blogger extraordinaire, consultant, and our friend. He will be so missed. And so, with lasting admiration and respect Jeremy - can we just say we are wishing you a fabulous retirement - but we hope to see you soon! 

The CopyKat: splattering times

TorrentFreak tells us that Google processed an astounding 16.68 million takedown notices in just one week in August, unsurprisingly the highest number ever seen in a seven day period. To compare - this contrasts with  just 158,000 takedown requests in a week in Aughust 2011. By November 2012 this had grown to 2.2 million in a week. The takedown notices are usually issued under the US Digital Millennium Copyright Act complaints against the Google search engine, requesting that links to copyright infringing material be removed from its database so that they no longer appear when users search for certain key words - with music takedowns being a significant chunk of this.

On the matter of safe harbours,  PRS's Head Of Legal, Policy & Public Affairs, Frances Lowe, told the Westminster Media Forum that a lack of clarity over what services could and should be protected by (US and) EU 'safe harbour' provisions disadvantaged both rights owners and propery licensed platforms: "The UK's songwriters and composers play a significant role in the UK economy and its exports", she said. "And the EU is their most important market. And their current priority is securing fair income from the use of their music across the online ecosystem, so that careers can be sustained". "Songwriters are currently being squeezed", she added, before targeting in particular the "user-upload platforms that are unlicensed or under-licensed" because they claim they are protected by safe harbours. This means they pay nothing or less for the songs they use, "despite the fact that without those songs they would not be able to raise capital, or pay their shareholders, or make a profit". The PRS recently lauched litigation against music streaming platform SoundCloud and Lowe said "Online services built on user-upload platforms which make content available to the public should not be able to plead safe harbour".

T


The BBC says its planning to launch a ‘New Music Discovery Service’ streaming service which will take on the likes of Apple Music, Tidal and Spotifywhich would make the 50,000 tracks broadcast by the BBC every month available to stream for a limited period. This digital platform will go one better than the ‘BBC Playlister’ initiative launched in 2013, which allowed listeners and viewers to transfer playlists of radio DJs’ shows to Spotify and other services. What those currently reviewing the BBC and the Licence Fee on behalf of the UK Government as part of charter renewal will make of a fully-fledged online music streaming service, owned and hosted by the Beeb, remains to be seen - but the BBC justify the move as an 'enhancement' to current services saying "Through this digital music offer, we would reinvent our role as a trusted guide, in partnership with our audience and with the UK music industry" addding "Together, the BBC and its audiences would curate music in new ways, enabling the discovery of more of all the music we play across the schedules of our many radio stations and TV channels" and  the service would also be "fully open and integrated with other digital providers", with users "able to transfer playlists between digital music products, and access them after BBC availability has expired through third-party providers". The BBC is already facing vocal criticism for unfairly squezing local news providers and "completely crowding out national newspapers" , as well as producing highly commercial programming like Strictly Come Dancing, Great British Bake Off and Top Gear to take on the likes of ITV in unnecessary prime time battles. The BBC's spend on its online operations as well as BBC3 and BBC4 are thought to be at risk. However, MBW reports that all three major labels are some way off licensing the new service– and have expressed early concerns about permitting a completely free music streaming service to use their catalogue.   Comment here. 


The Australian federal government has been urged on to stop the process of implementing an ISP copyright code.  The Internet users rights group Electronic Frontiers Australia has confirmed it wants the process to be halted, with its call coming in the wake of the introduction of new anti-piracy website blocking laws. The EFA said today that while it does not condone copyright infringement, international experience shows that copyright notice schemes are of “marginal value at best in addressing online copyright infringement" and puts the blame for infringement on a lack of legitionate services delivering what consumers want. EFA Executive Officer Jon Lawrence said the process should not continue until the government has conducted a “detailed cost-benefit analysis to ensure that it is not an unnecessary additional regulatory burden that will further harm competition in the sector and result in higher connectivity charges for Australians.” More here and here.


Billboard reports that Russian police have opened a probe into the collecting society RAO, which allegedly embezzled 500 million roubles ($7.4 million at the current exchange rate). The probe is centered on allegations that RAO, Russia's sole state-accredited collection society for authors’ rights royalties, embezzled some of the royalty fees it had collected by buying real estate and later transferring it to a shell company. According to reports, between 2007 and 2011, RAO purchased four buildings in central Moscow, which later changed hands several times, ending up in the possession of several other companies and individuals. The investigation comes at a time when the Russian government is controversially pushing RAO to merge with two other state-accredited collecting societies, VOIS (which deals with neighbouring rights) and RSP (which collects a one-percent tax on imports of electronic devices that can be used for copying content).

Where copyright leads .... others follow. The number of private prosecutions, once lonely road walked by copyright owners and not many others, is on the rise in the UK - with an estimated 300-500 private prosecutions last year - with the least three years seeing a 30+% rise year on year. The BPI, Sky TV, the Federation Against Copyright Theft and the Premier League have used private prosecutions as a useful tool against  alleged infringers - often succeeding even where the Police and the CPS have shown little interest. Now private prosecutions have been used in cases involving traffic offences, fraud and even domestic violence - the families of two women who were killed in the Glasgow bin lorry tragedy are threatening to bring a private prosecution against the driver of the lorry.

And finally - can you copyright an ink splatter? Well it seems Getty Images thinks you can: The Register reports that "Venerable hacker publication 2600 is fighting off what looks like an early candidate for the most egregious copyright infringement accusation of 2015". It seems that 2600 used an ink-splatter effect in 2012 and now group called Trunk Archive – ultimately owned by Getty Images – claims the image is theirs and the use was spotted by their crawler bots - and the use is infringing - with 2600 saying "We thought it was a joke for almost an entire day until one of us figured out that they were actually claiming our use of a small bit of ink splatter that was on one of their images was actionable". The ink splatter is in the bottom right section of the 2600 publication. In a twist, BoingBoing say that the ink spaltt isn't even Getty's - tracing the source of the ink splotches to a Finnish artist. More here.


Getty are also facing flak after demanding nearly $1,000 for one year's use of an image of a penguin that is actually part of a 'semi-popular' internet meme, better known as the Socially Awkward Penguin from a German Blog. Itb seems the issue is that the penguin itself could have been plucked from a photograph taken by George Mobley for National Geographic - although its now just a simplified cartoon penguin. Getty justified its actions to the DailyDot saying “Getty Images has an immense responsibility to the 200,000+ artists we work with to ensure that their work is properly licensed when used by commercial entities. Bear in mind that many artists themselves are small businesses, and are entitled to be paid for their work.” and pointing to the image embed tool that it launched last year.

PRS for Music begins legal action against SoundCloud

PRS for Music has written to it's members saying it is beginning legal action against online music streaming platform SoundCloud after "five years of unsuccessful negotiations". The PRS says:

"SoundCloud actively promotes and shares music. Launched in 2008, the service now has more than 175m unique listeners per month. Unfortunately, the organisation continues to deny it needs a PRS for Music licence for its existing service available in the UK and Europe, meaning it is not remunerating our members when their music is streamed by the SoundCloud platform.". The PRS letter goes on to say: "We have asked SoundCloud numerous times to recognise their responsibilities to take a licence to stop the infringement of our members’ copyrights but so far our requests have not been met. Therefore we now have no choice but to pursue the issue through the courts."

The letter explains that whilst SoundCloud has taken down some of PRS repertoire,  a recent list of some 4,500 musical works which the PRS say were being made available on the service and which they were asking SoundCloud to licence  or remove resulted in this: "SoundCloud decided to respond to our claim by informing us that it had removed 250 posts. Unfortunately, we have no visibility or clarity on SoundCloud’s approach to removing works, so it is not currently clear why these particular posts have been selected by them given the wider issue of infringement that is occurring. Ultimately, it is SoundCloud’s decision as to whether it starts paying for the ongoing use of our members’ music or stops using these works entirely."
   
The letter from Karen Buse, Executive Director, Membership and International at PRS for Music, ends by saying "We remain hopeful that this matter can be resolved without the need for extended litigation. Members will appreciate that this is now a legal matter and our ability to communicate around it is therefore limited by the legal process. However, we will try to share information and updates whenever we can."

SoundCloud has issued its own statement responding to the letter saying: “It is regrettable that PRS appears to be following this course of action in the midst of an active commercial negotiation with SoundCloud. We believe this approach does not serve the best interests of any of the parties involved, in particular the members of the PRS, many of whom are active users of our platform and who rely on it to share their work and communicate with their fanbase.”


“SoundCloud is a platform by creators, for creators. No one in the world is doing more to enable creators to build and connect with their audience while protecting the rights of creators, including PRS members. We are working hard to create a platform where all creators can be paid for their work, and already have deals in place with thousands of copyright owners, including record labels, publishers and independent artists.”

SoundCloud's content is currently uploaded by creators, marketing companies, record labels and even music publishers - and  whilst the PRS letter notes "When a writer or publisher becomes a member of the Performing Right Society, they assign certain rights to their works over for us to administer, so it’s our job to ensure we collect and distribute royalties due to them" this move certainly may irritate some of the PRS's own membership who see a real value in SoundCloud. A court case would almost certainly look at the European take on 'safe harbours' and how SoundCloud's take down policies would fit with that - but going forwards, and if SoundCloud is going to adapt to a streaming model more akin to Spotify, its hard to see why it would want a war with the PRS at this juncture.

The letter can be found here - an interesting analysis on MusicAlly here, and more comment and thoughts on Music Business Worldwide here - not least on the position of Warners Music Group and Universal Music here - presumed equity holders in SoundCloud - but through their publishing divisions - members of PRS for Music as well. 

The CopyKat - courtesy of the red, white and blue

Photographer Art Dragulis  probably thought he had an open and shut case when he found out the Kappa Map Group had been using one of his shots of rural Maryland on the front cover of a street atlas of Montgomery. Except .... maybe he had forgotten  that when he uploaded the shot to the photo sharing site Flickr he did so under a Creative Commons licence  which allowed commercial use of the photo in exchange for attribution; Plaintiff alleges that defendant infringed his copyright in the photograph because it “copied Plaintiff’s work and made derivatives of the work without Plaintiff’s authorization in violation of 17 U.S.C. § 501.” Id. ¶ 22. But plaintiff uploaded the photograph to a public photo-sharing website, where he did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation. TechDirt says "The final opinion notes that Dragulis seems upset with what happened but can't really blame anyone but himself for the outcome."

As the CopyKat noted in an earlier posting in relation to the use of copyright laws in 'revenge porn' cases, the hacked extramarital dating service Ashley Madison is trying to prevent dissemination of its stolen database and other information by sending DCMA copyright takedown notices to social networks and file-sharing sites. It's only been partially successful so far - not least as there are 33m user records posted online - a huge volume. Some takedowns have worked - but some have not,  because platforms such as Twitter have resisted some DCMA claims. Joseph Cox, a writer for technology site Motherboard, reported that a copyright takedown notice was filed for three of his tweets, each of which contained screenshots of information contained within the Ashley Madison breach: One takedown was implemented But the company disagreed with Ashley Madison over the infringing nature of the other two tweet.

Mayor Butts

A federal judge in Los Angeles has told the city of Inglewood  that it can't try to silence a critic of Mayor James T. Butts Jr.(left) by asserting copyrights over the official videos of City Council meetings. U.S. District Judge Michael W. Fitzgerald's decision made it clear that the the state legislature has severely limited the ability of local governments and other public entities to copyright the materials they create - and - even if Inglewood could copyright the videos, the use by local resident Joseph Teixeira criticising the Mayor would be covered by fair use. Image of Mayor Butts by Melanie McDade. 

The Attorney Registration and Disciplinary Commission (ARDC) of Illinois, USA, has filed a complaint against John Steele, one of two lawyers believed to be the masterminds behind the Prenda Law 'copyright-trolling' scheme. In the seven count complaint, ARDC asks for a panel hearing and a disciplinary recommendation, which will be transmitted to the Illinois Supreme Court. That court has the power to suspend and disbar attorneys. More on ArtsTechnica here.

The former owner of a major file haring site, one Rocky P. Ouprasith, has said he was not the operator of a new version - not least as he was busy being investigated fir piracy, finally pleading guilty to one count of copyright infringement. Ouprasith's attorney Bobby Howlett Jr. told reporters that his client - who was behind  RockDizMusic.com and RockDizFile.com - was not behind RockDizMusic.tv saying: “I can assure you my client is not still doing what brought him in front of the judge”.  The Recording Industry Association of America, a trade organization that represents the recording industry, said RockDizFile emerged in 2013 as the “second largest online file sharing site” specialising in pirated music. Press comments say Ouprasith should expect a prison sentence.

And finally - two non U.S. updates - but both from the UK so still some red, white and blue in there somewhere! Firstly, PRS for Music confirms it has agreed a new two year multi-territory European licensing deal with music streaming and subscription service, Spotify. Continuing the ongoing relationship between the pair, the recent deal allows the music streaming and subscription service to continue to offer its users a vast bundle of repertoire in the UK and Ireland (including repertoire from over 100 affiliated societies from around the globe), plus PRS for Music’s and Eire based IMRO’s direct members’ repertoire across Europe. The repertoire PRS for Music licenses to Spotify across Europe further includes musical works represented by a growing number of IMPEL publishers. IMPEL currently represents the rights of 40 leading independent publishers, a number that is anticipated to grow further before the end of the year.

And lastly, the City Of London Police's IP Crime Unit – (PIPCU) – has to date requested that domain name registrars suspend 317 pirate sites, according to Torrentfreak, which confirmed the numbers from a UK Freedom of Information request. In addition to targeting domain registrars, PIPCU also told Torrentfreak that it had sent warning letters directly to the operators of 377 piracy websites, all of which had been referred to the policing unit by entertainment industry trade groups. How successful either of these initiatives are remains to be seen. Image from www.123rf.com 


Courtesy of the Red, White & Blue (Toby Keith): "Oh, justice will be served and the battle will rage / This big dog will fight when you rattle his cage / And you'll be sorry that you messed with the U.S. of A. / 'Cause we'll put a boot in your ass, it's the American way."

Temporary increase in PRS TV admin rates to cover Copyright Tribunal reference by ITV

UK collection society PRS for Music have written to members explaining an increase in administration rates for TV collections to cover the expected cost of a Copyright Tribunal referral by ITV, one of the UK's leading broadcasters and home to X-Factor, Coronation Street, Midsomer Murders and UEFA Cup football. Rates range from 12.5% for BBC collections to 16% for Channel 5, MTV and other satellite and cable channels. A peak hour's one minute play on BBC1 would currently generate £90.35 for the rights holder, whereas on Channel 5 it would generate £11.95.  The letter reads:
                             
"After careful consideration by the Executive Board, it has been agreed that there will be a temporary rise to our TV admin rates by an additional one percent for one year. This will be implemented to cover the expected costs associated with defending the recent Copyright Tribunal reference brought against PRS by the broadcaster ITV.
                             
Following prolonged negotiations, ITV referred the new deal (covering broadcasts from 1 January 2015), to the Copyright Tribunal. This was due to disagreements over the details of our licence renewal. We feel it is vital that we fully participate and vigorously defend this referral to secure a fair return for the use of our members’ work. Copyright Tribunals are costly but it’s important to protect and champion your work and ensure you are fairly remunerated whenever it is used.
                             
The Executive Board has therefore approved a proposal for a one percent increase in our TV admin rates for a period of one year, this being the fairest way of covering the expected costs in defending this referral. While the tribunal will only rule on the ITV licence, it is an important decision for all members whose music is played on TV, meaning we are sharing the cost across all our TV revenues.
                             
The increase is expected to take effect from October 2015. 

Box office receipts and the PRS tariff: consultation period extended

Another media release that slipped this blogger's attention when it arrived is a joint statement by PRS for Music and the Concert Promoters’ Association, headed "PRS for Music to extend consultation on Tariff LP". The release concerned

" ... an extension on the consultation period for Tariff LP which is applied to ticketed live popular music events such as concerts and festivals. Originally Monday, 8 June 2015, the deadline for responses is now 30 September 2015.

The extension has been granted following the Concert Promoters’ Association’s (CPA) stated interest in conducting its own research in response to PRS for Music’s consultation documentation which was announced on April 13. The extension will allow the CPA and other industry groups to respond comprehensively to the consultation. PRS for Music welcomes the industry-wide commitment to engaging in this process. The CPA represents 45 members and 14 associate members that are active promoters of live music concerts, concert tours, events and festivals.

The extension is also supported by the following industry bodies in the live sector: Association of Independent Festivals, Association of Festival Organisers, British Association of Concert Halls, Music Venues Trust, National Arenas Association, National Open Air Events Association, Society of London Theatre/UK Theatre, Night Time Industry Association and The Event Services Association/Event Industry Forum.

The aim of the consultation is to conduct a comprehensive review across the live music industry to ensure that PRS for Music operates an appropriate tariff for its customers and members.

This tariff is applied to ticketed live popular music events such as concerts and festivals performing songs composed by PRS for Music songwriters and composers. The tariff was originally set in 1988 and works out at 3% of gross box office receipts per event. A separate tariff, Tariff LC, which applies to live classical music concerts, is not within the scope of this consultation.

Further details can be accessed from the PRS website here.

The CopyKat

In China the Sword Campaign - an annual nationwide special enforcement crackdown on online piracy and copyright infringement - will begin this month. The campaign is jointly operated by the National Copyright Administration of China (NCAC), Ministry of Industry and Information Technology (MIIT), Ministry of Public Security (MPS) and Cyberspace Administration of China (CAC). The campaign will focus on music, film and TV, online literature and mobile applications. More here (in Chinese).

And also in China, the IPO/UKTI IP newsletter tells us that  the State Administration of Press and Publications, Radio, Film, and Television (SAPPRFT) has published for public consultation a set of draft Measures for the Administration of the Distribution of Audiovisual Programs over the Internet and other Information Networks. Following earlier requirements for SAPPRFT supervision of overseas content, the draft Measures describe the application process and eligibility criteria for service providers to show audiovisual content on the Internet and mobile platforms. The deadline for comments on the draft Measures is June 30. More here (also in Chinese).

The European Commission has given the all clear for European collecting societies PRS, STIM and GEMA - which represent publishers and songwriters in, respectively, the UK, Sweden and Germany - to form a central hub to license and process royalties from multi-territory digital services.

PRS For Music CEO Robert Ashcroft: "This is a very significant day for online music licensing as our new joint venture is uniquely positioned to deal with the rapidly transforming online music market. What this clearance means is that we are now able to work even more effectively on behalf of songwriters, composers and their music publishers, while at the same time helping to develop the Digital Single Market across Europe" whilst STIM CEO Karsten Dyhrberg Nielsen said: "Today's competition clearance announcement is testament to the incredible work that has gone into the design of this new offering, which will provide a seamless service for both music rights holders and pan-European digital service providers. It's the result of years of productive collaboration between STIM, GEMA and PRS For Music to deliver a solution that will help the digital market grow". 

A federal appeals court has revived a copyright infringement lawsuit against Justin Bieber and Usher, marking the latest in a string of high-profile decisions attempting to clarify the nebulous difference between inspiration and copyright violation in the music industry. A three-judge panel of the 4th Circuit of the U.S. Court of Appeals unanimously ruled that there is sufficient reason to allow a jury to consider whether "Somebody to Love," a 2010 chart-topper from usher and Bieber, bears too much resemblance to an earlier song of the same name recorded by two Virginia musicians, Devin Copeland and Mareio Overton. "After listening to the Copeland song and the Bieber and Usher songs as wholes, we conclude that their choruses are similar enough and also significant enough that a reasonable jury could find the songs intrinsically similar," Judge Pamela Harris wrote for the court.

In London the High Court has ruled against the UK Government in a Judicial Review brought by the British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music.  These three bodies challenged the Government’s decision to introduce a private copying exception into UK copyright law, arguing that it was unlawful because it failed to provide fair compensation to rightholders.  UK Music's press release goes on to say "BASCA, MU and UK Music had welcomed a change to UK law which enabled consumers to copy their legally-acquired music for personal and private use. However, ahead of the introduction of the private copying exception, they consistently alerted Government to the fact that in such circumstances significant harm is caused to rightholders and European law requires fair compensation to be paid.  The High Court agreed with the music industry and found that Government’s decision not to provide fair compensation was based on wholly inadequate evidence – and that Government’s decision was therefore unlawful."  Commenting on the outcome of the case, Jo Dipple, CEO UK Music emphasised the value of the music industry to the British economy and said: “The High Court agreed with us that Government acted unlawfully.  It is vitally important that fairness for songwriters, composers and performers is written into the law.  My members’ music defines this country.  It is only right that Government gives us the standard of legislation our music deserves. We want to work with Government so this can be achieved.” You can access the judgment here.   BASCA v Secretary of State for Innovation and Skills [2015] EWHC 1723 (Admin) and more from Eleonora on the IPKat here