Copyright

The Intellectual Property Office has published for review new exceptions for private copying, parody, quotation and public administration, following its consultation on reform of copyright law, in the light of the Hargreaves review.

BIS has published commencement timetables for the Enterprise and Regulatory Reform Act 2013, giving expected implementation dates for most of its copyright-related provisions.

The UK Intellectual Property Office has published a factsheet giving details of planned measures for the licensing of orphan works and collective extended licensing, both of which will be permitted under the Enterprise and Regulatory Reform Act 2013.

On 16 May 2013, BIS issued a second call for evidence as part of the government's review of the balance of competences between the UK and the EU.

In Righthaven LLC v. Hoehn, the US Court of Appeals for the Ninth Circuit held that Righhaven lacked standing to sue in two copyright infringement suits because it only owned the bare right to sue for infringement, which is not an exclusive right under the Copyright Act. Additionally, the Ninth Circuit vacated the district court's grant of summary judgment on fair use in one of the suits.

In Cariou v. Prince, the US Court of Appeals for the Second Circuit held that the district court imposed an incorrect legal standard when it concluded that for a secondary work to qualify as a fair use, it must comment on the original artist, the original works or popular culture. The Second Circuit reversed the district court's grant of summary judgment to the plaintiff, and held that as a matter of law 25 of the defendant's works were protected as a fair use and remanded to the district court to determine whether five other works are entitled to a fair use defense.

On 18 April 2013, the European Commission adopted a Report on the functioning of the Memorandum of Understanding on the Sale of Counterfeit Goods via the Internet. This voluntary Memorandum of Understanding was signed by industry on 4 May 2011 and sets out a series of joint principles including effective measures to prevent offers of counterfeit goods from being listed on internet platforms.

On April 18, 2013, in Viacom v. YouTube, the US District Court for the Southern District of New York granted the renewed motion for summary judgment in favor of the defendants, YouTube, Inc and Google, Inc., and held that the Digital Millennium Copyright Act's (DMCA) safe harbor provisions protected the defendant service providers. The case was before the SDNY on remand from the US Court of Appeals for the Second Circuit.

The Intellectual Property Office has published its response to its consultation on implementing Directive 2011/77/EU which amends the Copyright Term Directive (2006/116/EC) and extends the term of copyright for sound recording to 70 years (among other things).

On 12 April 2013, the General Court handed down its rulings in the actions brought by the International Confederation of Societies of Authors and Composers (CISAC) and 21 of its collecting society member associations against a European Commission decision finding that contracts between them infringe Article 101(1) of the TFEU.

This Legal Update provides guidance and drafting tips for takedown notices under the Digital Millennium Copyright Act (DMCA).

In American Broadcasting Cos. v. AEREO, Inc., the US Court of Appeals for the Second Circuit affirmed the denial of the plaintiff television production and broadcasting companies' motion for a preliminary injunction against AEREO, Inc., which was based on their claim that Aereo's transmissions of television programming over its internet playback platform were public performances in violation of the plaintiffs' copyrights. 

A review of e-lending in libraries in England and the government's response to it have been published.

In Luvdarts, LLC v. AT&T Mobility, LLC, the US Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of Luvdarts's complaint under Federal Rules of Civil Procedure Rule 12(b)(6) for failure to state a claim. Luvdarts sued mobile wireless carriers seeking to hold them vicariously or contributorily liable for copyright infringements allegedly committed by users of the carriers' mobile networks.

In Associated Press v. Meltwater US Holdings, Inc., the US District Court for the Southern District of New York granted summary judgment in favor of The Associated Press, holding that the defendant online news clipping company's reports featuring AP news story excerpts sold to subscribers constituted copyright infringement and not permissible fair use.

The Copyright and Performances (Application to Other Countries) Order 2013 (SI 2013/536) has been laid before Parliament. It includes a revised consolidated schedule of the protection afforded to countries by the Copyright, Designs and Patents Act 1988.

In UMG Recordings, Inc. v. Shelter Capital Partners, Inc., the Ninth Circuit Court of Appeals withdrew its December 20, 2011 opinion and filed a superseding opinion, which is largely the same but clarifies the reasoning supporting its decision that the Section 512(c) safe harbor provision of the Digital Millennium Copyright Act (DMCA) applied to Veoh Networks insulating it from copyright liability based on its users' activity.

The US Copyright Office has made a third request for public comment on the topic of adjudicating small copyright claims. The Copyright Office is specifically seeking additional comments on possible alternatives to the current legal system to improve the adjudication of small copyright claims.

The Patents County Court has held that a record company infringed a singer's rights by making copies of her performance and issuing those copies to the public without her consent, contrary to sections 182A and 182B of the Copyright, Designs and Patents Act 1988. (Henderson v All Around the World Recordings Ltd and another [2013] EWPCC 7, 13 February 2013.)

On 4 February 2013, the European Commission launched the "Licences for Europe" initiative which aims to promote copyright licences, as a next step in maintaining traditional copyright in light of new digital technologies.

On 31 January 2013, the EU Mediator, António Vitorino, presented his Recommendations resulting from the mediation process on private copying and reprography levies to Commissioner Barnier. In November 2011, Commissioner Barnier entrusted António Vitorino, former Commissioner for Justice and Home Affairs, with the task of presiding over a stakeholder dialogue on private copying and reprography levies.

The High Court has rejected all but one of the claimant's claims in its copyright infringement action against the defendant's alternative software (and has confirmed its provisional conclusions in its initial judgment), following the ECJ ruling on the protection given to non-textual software. (SAS Institute Inc v World Programming Ltd [2013] EWHC 69 (Ch), 25 January 2013.)

In Agence France Presse v. Morel, the US District Court for the Southern District of New York held that it is copyright infringement for a news agency to remove photographs posted to Twitter and license them to others, rejecting the news agency's argument that Twitter's terms of service permitted this use.

The Intellectual Property Office has issued a consultation on proposals for the implementation of Directive 2011/77/EU which amends Directive 2006/116/EC on the term of copyright and certain related rights.

The Court of Appeal has dismissed an appeal by the Football Association Premier League that various public house owners and licensees had no defence to copyright infringement under section 72(1)(c) of the Copyright, Designs and Patents Act 1988 in relation to films. (Football Association Premier League Ltd and others v QC Leisure and others [2012] EWCA Civ 1708, 20 December 2012.)

On 18 December 2012, the European Commission issued a Communication setting seven new priorities for the Digital Agenda for Europe.

The European Observatory on Infringements of Intellectual Property Rights has published its 2013 work programme online.

The Intellectual Property Office has published a report it commissioned on codes of conduct for collecting societies, which looks at the code adopted in Australia and other European models, in the light of plans to introduce a code in the UK.

On 20 November 2012, the European Parliament plenary session adopted a non-legislative Resolution on the European Commission Report on the implementation and effects of Directive 2001/84/EC (Resale Right Directive). The Resale Right Directive aims to ensure that authors of graphic and plastic works of art share in the economic success of their original works of art and to harmonise the application of the right across the EU.

Ofcom has published the first in a series of statistical reports on online copyright infringement by users in the UK, following a recommendation contained in the Hargreaves review of intellectual property.

The Patents County Court has ruled on the extent to which an agreement assigned copyright in existing, as well as future, works. (Wilkinson v London SHA [2012] EWPCC 48, 14 November 2012.)

The Copyright Licensing Agency has published a code of conduct regulating its dealings with its licensees and other users of copyright.

On 27 October 2012, Directive 2012/28/EU of the European Parliament and of the Council on certain permitted uses of orphan works was published in the Official Journal.

The government has published minimum standards for UK collecting societies designed to underpin the self-regulatory framework.

In Evergreen Safety Council v. RSA Network, the US Court of Appeals for the Ninth Circuit affirmed a district court’s grant of summary judgment dismissing RSA’s copyright infringement claim on grounds of laches. This case is notable for the Ninth Circuit’s holding that RSA's laches barred the availability of prospective injunctive relief.

In Authors Guild, Inc. v. HathiTrust, the US District Court for the Southern District of New York held that the defendant universities' mass digitization of the plaintiff authors' copyrighted works for the HathiTrust Digital Library is a transformative fair use under Section 107 of the Copyright Act.

The Republic of Vanuatu has acceded to the Berne Convention for the Protection of Literary and Artistic Works.

The Scottish Court of Session has ruled that a company director was jointly liable for infringement of copyright in recordings of classical music issued through the defendant company's website. (Naxos Rights International Ltd v Project Management (Borders) Ltd and Salmon [2012] CSOH 158.)

On 4 October 2012, the Employment and Social Policy Council adopted a Directive establishing a legal framework aimed at improving access to and digitisation of orphan works across the EU. It follows an agreement with the European Parliament at first reading.

The Patents County Court has found that certain published changes to a photograph infringed the photographer's moral rights. (Emma Delves-Broughton v House Of Harlot Ltd [2012] EWPCC 29, 18 May 2012.)

The US Copyright Office has made a request for public comment on the topic of resale royalty rights for visual artists. The Copyright Office specifically seeks comments on the means by which visual artists exploit their works under current law and the possible issues when considering a federal resale royalty right in the US.

On 11 September 2012, the European Parliament plenary session adopted an own initiative Resolution on the online distribution of audiovisual works in the EU.

On 13 September 2012, the European Parliament endorsed at first reading an agreement reached on 6 June 2012 with the Council on a proposed Directive on orphan works.

In U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, the US Court of Appeals for the Ninth Circuit joined other circuits in adopting the Restatement (Second) of Agency's three-prong test for determining whether a copyrightable work is created by an employee within the scope of employment, and therefore a work made for hire owned by the employer.

In WPIX, Inc. v. ivi, Inc., the US Court of Appeals for the Second Circuit affirmed the district court's grant of a preliminary injunction for WPIX and other broadcasting company plaintiffs against ivi, Inc.'s streaming television service. The court rejected ivi's defense that its streaming internet television service was a cable system under Section 111 of the Copyright Act.

In Monge v. Maya Magazines, Inc., the US Court of Appeals for the Ninth Circuit held that a Spanish-language gossip magazine's publication of previously unpublished photographs of a secret celebrity wedding was not fair use. In this August 14, 2012 copyright infringement decision, the court held that the publication of the photographs, which provided additional proof of this newsworthy event, was not fair use because, among other reasons, the magazine's use of the photographs was not sufficiently transformative, was for a commercial purpose and substantially harmed the potential market for the photographs.

Anton Vickerman, the former operator of the Surfthechannel website which offered links to infringing copies of TV shows and films posted in jurisdictions where it is difficult to enforce copyright, has been sentenced in the Crown Court to four years in prison for conspiracy to defraud.

In the second phase of the government-commissioned review into a digital copyright exchange following the Hargreaves review of intellectual property, Richard Hooper and Dr Ros Lynch have recommended the creation of a UK-based Copyright Hub.

The Divisional Court has quashed warrants granted to Trading Standards officers relating to sale of foreign decoder cards. (The Queen on behalf of Vuciterni and another v Brent Magistrates' Court and another [2012] EWHC 2140 (Admin), 25 July 2012.)

The Patents County Court has found in favour of a photographer in a case involving the commissioning of photographs for a magazine. (Celebrity Pictures Ltd and another v B Hannah Ltd [2012] EWPCC 32, 19 July 2012.)

In American Broadcasting Cos. v. AEREO, Inc., the US District Court for the Southern District of New York denied the plaintiff television production and broadcasting companies' motion for a preliminary injunction against AEREO, Inc., which was based on their claim that Aereo's transmissions of television programming over its internet playback platform were public performances in violation of the plaintiffs' copyrights. The SDNY relied on the Second Circuit's decision in Cartoon Network LP v. CSC Holdings, Inc. (Cablevision) in ruling that, because Aereo's creation and transmission of single-user-only copies of television programs was not a "public" performance under Sections 101 and 106(4) of the US Copyright Act, the plaintiffs failed to show a likelihood of success on the merits of their copyright infringement claim.

On 11 July 2012, the European Commission adopted a proposal for a Directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the Internal Market.

On July 6, 2012, the Copyright Office filed its final rule for deposit requirements for registration of automated databases that consist predominantly of photographs. Under this new rule, when a registration is made for a database consisting predominantly of photographs, and the copyright claim extends to individual photographs, each of those photographs must be included as part of the deposit accompanying the application.

The government has published a policy statement in the light of its consultation on modernising the copyright system, which indicates its intention to introduce legislation as soon as possible on orphan works, voluntary extended collective licensing and codes of conduct for collecting societies. (Free access.)

Ofcom has issued a consultation on the allocation of costs relating to the copyright infringement notification scheme that is due to come into operation under provisions of the Digital Economy Act 2010.

In Omega S.A. v. Costco Wholesale Corp., the US District Court for the Central District of California awarded Costco $396,844.17 in attorneys' fees after having granted Costco's previous motion for summary judgment based on a copyright misuse defense. 

The Copyright Office issued a statement of policy dated June 18, 2012 to clarify its practices relating to the examination and registration of claims in compilations. The Copyright Office will refuse registration of a compilation unless it falls within at least one of the categories listed in Section 102(a) of the Copyright Act. Specifically excluded are compilations of exercises, including yoga sequences, and simple dance routines.

The government has published a summary of the responses to its consultation on proposals to modernise the copyright system, which was launched following the Hargreaves review of intellectual property.

The government has been given the power under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to remove or amend the caps on fines that magistrates' courts can impose for  criminal offences.

An agreement has been reached between the European Parliament and the European Council on the proposed Directive on orphan works.

In Brownmark Films, LLC v. Comedy Partners, the US Court of Appeals for the Seventh Circuit affirmed the district court order granting Comedy Partners' motion to dismiss Brownmark's copyright infringement suit based on the fair use affirmative defense.  The Seventh Circuit also expressed favor in extending the incorporation-by-reference doctrine to audio-visual works.

The European Commission has issued a consultation paper on the procedures for notifying and acting on illegal content hosted by online intermediaries. Note: On 5 September 2012, the deadline for responding to this consultation was extended until 11 September 2012.

PRS for Music, the body responsible for collecting royalties for the use of musical works, has announced a licensing exemption for the playing of music at certain community events associated with the Queen's Diamond Jubilee 2012.

The High Court has dismissed a claim brought by Carina Trimingham, the partner of politician Chris Huhne, for harassment under the Protection from Harassment Act 1997, infringement of the right to privacy of photographs under the Copyright, Designs and Patents Act 1988, and infringement of the right to respect for private life contrary to the European Convention on Human Rights. (Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 (QB).)

On May 21, 2012, in WNET v. Aereo, Inc., the US District Court for the Southern District of New York granted Aereo's motion for judgment on the pleadings on the plaintiffs' unfair competition claim. The plaintiffs brought the claim as an alternative to its copyright infringement claims, if the district court decides that Aereo's retransmission of broadcast television signals from New York area television stations over the internet to Aereo subcribers involves private performances, rather than public performances protected under the Copyright Act.

In Swatch Group Management Services Ltd. v. Bloomberg L.P., the US District Court for the Southern District of New York determined that the defendant's publication of the plaintiff's recorded earnings conference call was fair use under Section 107 of the Copyright Act.

On May 17, 2012, the Copyright Royalty Judges published proposed rules setting the complusory license rates and terms for mechanical and digital phonorecords under Section 115 of the Copyright Act.

On May 7, 2012, in Scorpio Music S.A. v. Willis, the US District Court for the Southern District of California granted the defendant's motion to dismiss. At issue were several songs by the Village People and whether a joint author who separately transferred his copyright interest may unilaterally terminate that grant under Section 203 of the Copyright Act's termination and recapture provisions.

The European Data Protection Supervisor has warned that measures in the the Anti-Counterfeiting Trade Agreement to enforce intellectual property rights in the digital environment could threaten privacy and data protection if not properly implemented.

The ECJ has given a preliminary ruling on questions referred to it on the legality of a Swedish law that allows intellectual property rights-holders to obtain access, for enforcement purposes, to communications data that has been retained for the purposes of the investigation, detection and prosecution of serious crime under the provisions of the Data Retention Directive. (Bonnier Audio AB and others v Perfect Communication Sweden AB, Case C-461/10, 19 April 2012.) (Free access.)

On April 5, 2012, in Viacom v. YouTube, the US Court of Appeals for the Second Circuit reinstated Viacom's billion dollar copyright infringement litigation against YouTube.  In its decision the court addressed the contours of safe harbor protection for online service providers under the Digital Millenium Copyright Act (DMCA).

The USPTO and National Institute of Standards and Technology (NIST) Manufacturing Extensions Partnership (MEP) announced in a press release the launch of a new web-based IP Awareness Tool designed to help manufacturers, small businesses, entrepreneurs and independent investors evaluate their intellectual property, including copyrights, patents, trademarks and trade secrets.

In the first report of the independent feasibility study commissioned by the government into developing a Digital Copyright Exchange, Richard Hooper has recommended that copyright licensing needs to be made easier and cheaper to use to support the UK's digital economy.

The Transport, Telecommunications and Energy Council, on 22 March 2012, adopted a Regulation on entrusting the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights. The OHIM, which is the trade marks and designs office of the EU, will carry out new tasks aimed at facilitating and supporting the activities of national authorities, the private sector and the EU institutions in the fight against infringements of intellectual property rights.

The Copyright and Performances (Application to Other Countries) Order 2012 (SI 2012/799) has been laid before Parliament. It includes a revised consolidated list of the protection afforded to countries by the Copyright, Designs and Patents Act 1988.

The European Parliament adopted its position at first reading on a proposed Regulation entrusting the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private sector representatives as a European Observatory on Infringements of Intellectual Property Rights.

The ECJ has issued a preliminary ruling on questions referred to it by the Austrian courts relating to first ownership of exploitation rights and the right to fair compensation in cinematographic copyright works. (Martin Luksan v Petrus van der Let, Case C-277/10, 9 February 2012.)

On 3 February 2012, the High Court handed down a judgment, following a ruling from the ECJ on the compatibility with EU law of territorial exclusivity agreements relating to football broadcasting rights (Football Association Premier League Ltd & Ors v QC Leisure & Ors 2012] EWHC 108 (Ch)).

The International Federation of the Phonographic Industry has published its annual digital music report for 2012.

The IPO has issued a call for evidence on the planned small-claims service for intellectual property cases in the Patents County Court.

The Patents County Court has held that the defendants' image infringed the claimant's copyright in its photograph consisting of a red London bus travelling across Westminster Bridge with a monochrome background. (Temple Island Collections Ltd v New English Teas Ltd and another [2012] EWPCC 1, 12 January 2012.)

The Copyright Royalty Board has begun public proceedings to determine the reasonable rates and terms for making ephemeral recordings of sound recordings for later transmission by entities that transmit performances of sound recordings to businesses.

The US Copyright Office has published a report recommending that Congress enact legislation to bring sound recordings made before February 15, 1972 under federal copyright protection.

The Lao People's Democratic Republic has acceded to the Berne Convention for the Protection of Literary and Artistic Works.

The European Commission, on 14 December 2011, published a Report on the implementation and effect of Resale Right Directive 2001/84/EC. It examines, in particular, the impact of the Directive on the internal market and the effect of the introduction of the resale right in those member states that did not apply the right in national law prior to the entry into force of this Directive.

Advocate General Mengozzi has delivered an opinion on the interpretation of Article 3 of the Database Directive (96/9/EC) in relation to football fixture lists. (Football Dataco Ltd and others v YAHOO! UK Ltd and others, Case C-640/10, 15 December 2011.)  

The Intellectual Property Office has published a consultation on proposals to modernise the copyright system, following up on recommendations in the Hargreaves review of intellectual property. (Free access.)

The government has laid before Parliament the Artist’s Resale Right (Amendment) Regulations 2011, which amend the Artist’s Resale Right Regulations 2006.

The Patents County Court has ruled that the defendants' film script, which told the story about the claimant's life, infringed the copyright in the claimant's autobiography. (Paul Hodgson and another v Andrew Isaac and another [2010] EWPCC 37, 5 December 2011.)

The IPO has issued an update on the change of name of the Patents County Court proposed in the Hargreaves review of intellectual property.

The ECJ has ruled on the scope of the right to communicate a copyright work to the public under Article 3(1) of the Copyright Directive (2001/29/EC). (Circul Globus Bucureşti v Uniunea Compozitorilor şi Muzicologilor din România – Asociaţia pentru Drepturi de Autor (UCMR – ADA), Case C-283/10, 24 November 2011.)

The European Commission has published its work programme for 2012. It includes various initiatives scheduled for consideration or adoption in 2012, which are of interest to practitioners in the fields of IP, IT and Communications. (Free access.)

The IP Crime Group has published a supply chain toolkit for businesses to raise awareness of counterfeit goods in the supply chain.

The transcript of a Court of Appeal judgment, in which it reversed its earlier decision, and granted BT and TalkTalk leave to appeal against a High Court decision rejecting their application for judicial review of provisions of the Digital Economy Act 2010, has been published.

The ECJ has ruled that the Satellite Broadcasting Directive (93/83/EEC) requires a satellite package provider to obtain authorisation from the right-holders concerned for its intervention in the transmission by satellite of television programmes. (Airfield NV and another v Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam) and Airfield NV v Agicoa Belgium BVBA, Joined cases C-431/09 and C-432/09, 13 October 2011.)  

The Grand Chamber of the ECJ has ruled on various questions, including whether the Football Association Premier League's prohibition on exclusive licensees in other member states supplying decoder cards enabling viewing of Premier League matches outside the licensed territory infringed competition law; and whether UK national law which made it unlawful to import and sell such foreign decoder cards in the UK restricted freedom to provide services. (Football Association Premier League Ltd and others v QC Leisure and others; Karen Murphy v Media Protection Services Ltd, Joined cases C-403/08 and C-429/08, 4 October 2011.) (Free access.)

The Intellectual Property Office has published a guide for businesses on dealing with infringement of intellectual property rights in the workplace.

The Secretary of State for Culture, Olympics, Media and Sport, Jeremy Hunt, has outlined in a speech the measures that may be included in the forthcoming Communications Act to tackle offensive and unlawful online content and strengthen press regulation.

The European Council has adopted a Directive extending the term of copyright protection on music recordings from 50 to 70 years. (Free access.)

The government has published its 2011 intellectual property crime strategy.

The government has published its response to the review of the UK legislative framework relating to intellectual property, written by Professor Ian Hargreaves, which was published in May 2011. (Free access.)

The European Economic and Social Committee has published an opinion on the protection and enforcement of intellectual property rights in the music sector, focusing on copyright issues and the nature and governance of collecting societies.

The European Commission has published a Green Paper on online distribution of audiovisual works in EU, to serve as a basis for a debate on the opportunities and challenges raised by the changes in the way audiovisual works are produced, marketed and distributed due to digital technology and the internet, and whether and how the regulatory framework needs to be adapted to reflect this.

The Intellectual Property Office has published two reports which show the value of investments made by businesses in products and services that are protected by intellectual property rights.

The Court of Appeal has refused BT and TalkTalk leave to appeal against the High Court's decision in which it rejected their application for judicial review of the provisions of the Digital Economy Act 2010.

The Republic of Tajikistan has acceded to the WIPO Performances and Phonograms Treaty.

On 24 May 2011, the European Commission published a Communication setting out a new strategy for Intellectual Property Rights to stimulate creativity and innovation. The Communication describes the initiatives the European Commission intends to take between now and 2012 in various areas, including patents, trade marks, geographical indications, copyright licensing and digital libraries.

The European Commission has published a draft Regulation concerning customs enforcement of intellectual property rights which, if adopted, will replace Regulation (EC) No 1383/2003.

The government-commissioned review of the UK legislative framework relating to intellectual property, written by Professor Ian Hargreaves, has been published. (Free access.)

Morocco has acceded to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

The Copyright Tribunal has rejected an application brought by Archive Media Publishing Limited regarding the refusal of the MCPS to offer it a licence for copyright material included on DVDs on terms other than pay-as-you-go (PAYG) terms, ruling that it was reasonable to require PAYG terms of a new licensee. (Archive Media Publishing Ltd v MCPS, CT 116/10, 3 May 2011.)

The House of Commons Culture, Media and Sport Committee has suspended its inquiry into the protection of intellectual property rights online.

The government has responded to a consultation on depositing non-print works, including online content, with legal deposit libraries. (Free access.)

On 10 March 2011, the European Commission published a speech by Neelie Kroes, Commission Vice President for the Digital Agenda, on addressing the orphan works challenge.

The British Standards Institution has launched a new British Standard, BS 8538, for the provision of services relating to the commercialisation of intellectual property rights.  

Advocate General Kokott has given an opinion that territorial exclusivity agreements relating to the transmission of English Premier League football matches are contrary to EU law. (Football Association Premier League Ltd and others v QC Leisure and others; Karen Murphy v Media Protection Services Ltd, Joined cases C-403/08 and C-429/08, 3 February 2011.)

The ECJ has considered Italian legislation implementing Article 17 of the Designs Directive (98/71/EC), which provides that designs protected by a design right registered in or in respect of a member state in accordance with the Directive are also eligible for copyright protection from the date the design was created or fixed.

In a speech given on 21 January 2011, the European Commissioner for the Internal Market and Services, Michel Barnier, presented the concrete actions which the European Commission intends to launch with regard to copyright in a digital era.

On 7 January 2011, the European Commission lauched a public public consultation on the implementation and effect of the Resale Right Directive (2001/84/EC).

The EU General Court has ordered the European Commission to pay damages to Systran SA for infringement of copyright and misuse of confidential information in its machine translation software. (Systran SA and another v European Commission, Case T-19/07, 16 December 2010.)

The High Court, in a decision for which the order has just become available, has agreed to an application for judicial review concerning the Digital Economy Act, made by British Telecommunications plc and TalkTalk Telecom Group plc. (R (British Telecommunications plc and another) v Secretary of State for Business Innovation and Skills, 11 November 2010.) (Free access.)

Saint Vincent and the Grenadines has acceded to the WIPO Performances and Phonograms Treaty.

On 18 November 2010, the Education, Cuture, Youth and Sport Council adopted conclusions on the opportunities and challenges for European cinema in the digital era.

On 15 November 2010, participants in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations announced that they had finalized the text of the Agreement.

The European Commission has published its work programme for 2011, which includes various initiatives scheduled for adoption in 2011, or under consideration, which are of interest to IPIT & Communications.

The Intellectual Property Office has launched a consultation on setting a £500,000 limit on the value of claims heard in the Patents County Court (PCC), which has jurisdiction over all intellectual property (IP) rights, as part of a series of amendments intended to reduce the cost of lower-value IP litigation and to more clearly differentiate the PCC from the High Court. (Free access.)

The government has announced the abolition or reform of various non-departmental public bodies, including bodies relevant to IPIT.

The final round of negotiations for the Anti-Counterfeiting Trade Agreement took place on 2 October 2010.

An update on the adoption of a resolution (2009/21789INI) by the European Parliament, on 22 September 2010, on enforcement of IP rights in the internal market.

An update on the signature by a majority of MEPs of a written declaration on the lack of transparent process in the negotiations for the Anti-Counterfeiting Trade Agreement, and various concerns regarding its content.

An update on Nintendo Company Ltd and another v Playables Ltd and another [2010] EWHC 1932 (CH), 28 July 2010, in which the High Court granted Nintendo's application for summary judgment in respect of devices designed to avoid copy-protection measures under sections 296 and 296ZD of the Copyright Designs and Patents Act 1988. (Free access.)

An update on the Copyright Tribunal's decision in Meltwater Holding BV v The Newspaper Licensing Agency Ltd, CT114/09, 10 June 2010, in which it considered whether Henry Carr QC, one of its deputy chairmen, could act as an advocate for the claimant.

An update on the implications of the Queen's Speech for IPIT & Communications subscribers. (Free access.)

An update on Fundacion Gala-Salvador Dali and another v Societe des auteurs dans les arts graphiques et plastiques (ADAGP) and others, Case C-518/08, 15 April 2010, in which the ECJ ruled that Article 6(1) of the EU Directive on the resale right for the benefit of the author of an original work of art (2001/84/EC) did not preclude French law from restricting the benefit of the resale right to the author's heirs, to the exclusion of legatees or other successors in title.

An update on the copyright-related provisions of the Digital Economy Bill that have been passed in the parliamentary "wash-up" procedure.

An update on the European Commission's consultation on the Counterfeit Goods Regulation (1383/2003/EC).

An update on legislation relating to intellectual property and communications taking effect on 1 April 2010, or on the next twice-yearly standard commencement date of 6 April 2010.

An update on the passing, on 15 March 2010, of the third reading of the Digital Economy Bill in the House of Lords, which included debate on the clauses concerning online copyright infringement.

An update on the High Court's decision in SoftLanding Systems, Inc. v KDP Software Ltd and Unicom Systems, Inc. (as a third party) [2010] EWHC 326 (TCC), 26 February 2010, in which the court ruled in favour of the defendant software owner in a complex case brought by its former distributor for breach of contract, and granted the defendant (among other things) an injunction for copyright infringement.

An update on the International Federation of the Phonographic Industry's 2010 annual digital music report.

An update on the publication of Lord Justice Jackson's final report on civil litigation costs and his recommendations in relation to intellectual property and information technology litigation.

An update on Advocate General Sharpston's opinion in Fundació Gala-Salvador Dalí and another v Société des auteurs dans les arts graphiques et plastiques, Case C-518/08, 17 December 2009.

An update on the European Commission's announcement that the EU has ratified the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

An update on new and updated guidance booklets published by the IPO as part of its online IP healthcheck service.

An update on the Digital Economy Bill, published on 20 November 2009.

An update on the publication of the government's response to the Intellectual Property Office's consultation on a number of copyright exemptions that allow charities and not-for-profit organisations to play copyright-protected sound recordings in public without paying a licence fee, which will mean the repeal of such exemptions. 

An update on the Court of Appeal's decision in Scopelight Limited and others v (1) Chief of Police for Northumbria (2) Federation Against Copyright Theft Limited [2009] EWCA Civ 1156, 5 November 2009, concerning whether the police could retain property, originally seized for criminal investigations, in relation to a subsequent private prosecution under the Copyright, Designs and Patents Act 1988.

An update on Phonographic Performance Limited v The British Hospitality Association and others, 18 September 2009, in which the Copyright Tribunal ruled on the royalties payable for public performances of sound recordings as background music in public houses, bars, restaurants and cafes, shops and stores, and offices and factories. NOTE: On 15 October 2009, the Copyright Tribunal made an order, setting out new tariffs and making provision for repayment of royalties overpaid.

An update on the laying before Parliament of a statutory instrument to extend the derogation from the artist's resale right for the works of deceased artists.

An update on the European Commission's Communication on its book digitisation proposals

An update on the European Commission's Communication setting out its book digitisation proposals

An update on the European Commission's adoption of a  communication on copyright in the knowledge economy in which it sets out its proposals for book digitisation and dissemination.

An update on the publication on the PLC IPIT & Communications website of an expanded Overview of Copyright, and related Practice notes on the management and exploitation of copyright, and the overlap between copyright and designs.

An update on the European Commission's launch of a consultation on EU innovation policy following its publication of a Communication reviewing innovation policy.

An update on CSC Media Group Limited v Video Performance Limited, CT/94/05, 7 September 2009, in which the Copyright Tribunal considered for the first time the royalty rates payable for broadcasting music videos.

An update on the new licensing agreement between Google, the owner of YouTube, and PRS for Music.

An update on amendments to Part 63 of the Civil Procedure Rules (Patents and other intellectual property claims), which are due to come into effect on 1 October 2009.

An update on the government's publication of a statement on its proposal for legislation to reduce illegal peer-to-peer file-sharing.

The House of Lords has allowed an appeal against the Court of Appeal's ruling that a claimant's excessive and inexcusable delay barred his claim to a share of copyright in a hit single.

On 14 August 2009, BIS published its plan for implementing the Digital Britain report review.

An update on HMRC's announcement of a change in UK customs procedures for seizing and detaining goods which infringe intellectual property rights, to comply with Article 13 of Council Regulation 1383/2003/EC.

An update on the Intellectual Property Office's publication of its summary of responses to its consultation on a potential digital-rights agency.

An update on the publication of a report entitled Copycats? Digital Consumers in the online age by the Strategic Advisory Board for Intellectual Property Policy.

An update on the new rates for music-streaming services announced by PRS for Music.

An update on the IPO's launch of a website to further encourage consumers and rights-holders to contribute to discussions on the development of future copyright strategy, and the publication of related material.

An update on the launch by PRS for Music of new online music licences to replace the Joint Online Licence.

An update on the European Parliament's adoption, subject to amendments, of the European Commission's proposal to extend the term of protection for sound recordings and amend the Copyright Term Directive (2006/116/EC).

An update on the European Commission's launch of an observatory aimed at tackling counterfeiting and piracy.

An update on Crosstown Music Company LLC v Rive Droite Music Limited and others [2009] EWHC 600 (Ch), 25 March 2009, in which the High Court ruled that a provision in a music publishing agreement operated automatically to transfer copyright back to the composer in the event of a failure by the publisher to remedy a breach.

An update on the publication of the Regulatory Enforcement and Sanctions Act 2008 (Commencement No 2) Order 2009.

An update on the Power of Information Taskforce Report published by the Cabinet Office.

An update on YouTube's announcement that it is blocking UK users' access to official videos from music publishers and independent labels, after failing to reach a new licensing agreement with the Performing Rights Society.

An update on the Intellectual Property Office's announcement of the launch of its online intellectual property healthcheck service.

An update on WIPO's development of expedited arbitration rules for the Association of International Collective Management of Audiovisual Works.

The European Court of Justice has considered when the term of protection for sound recordings provided for in the Copyright Term Directive can apply to foreign works.

An update on the action plan signed by the EU and China to strengthen customs co-operation on protecting intellectual property rights.

An update on the government's publication of the interim Digital Britain Report. The report will be covered in full in next week's PLC IPIT & Communications weekly e-mail.

An update on the Copyright Licensing Agency's announcement that it has launched a new licence for press-cutting agencies.

An update on the Republic of Korea's accession to the WIPO Performances and Phonograms Treaty.

An update on the responses which the Department for Business Enterprise & Regulatory Reform has received to its consultation on illicit file-sharing.

An update on the UK Government's notification to the European Commission that it wishes to extend the existing derogation from the artist's resale right for works of deceased artists for a further two years.

An update on the European Council's call for initiatives on online content and combatting piracy.

An update on a speech by Andy Burnham supporting an extension of the copyright term for sound recordings.

An update on the Intellectual Property Office's new website and logo.

An update on the High Court's decision in In re Phonographic Performance Limited, 21 November 2008, in which Kitchin J considered the Copyright Tribunal's jurisdiction under section 128B of the Copyright, Designs and Patents Act 1988 in relation to licensing schemes for broadcast sound recordings.

An update on the Russian Federation's accession to the WIPO Performances and Phonograms Treaty and the WIPO Copyright Treaty.

The Copyright Licensing Agency (CLA) is to introduce a new type of copying licence designed for UK law firms.

An update on a survey by Entertainment Media Research on current consumer trends in UK music, which shows fewer illegal downloads.

The UK Intellectual Property Office has launched a consultation on copyright infringement penalties.

The government of the People's Republic of China has notified WIPO that it has extended application of the WIPO Copyright Treaty and WIPO Phonograms and Performances Treaty, to which China acceded in June 2007 (see Legal update, China accedes to WIPO Performances and Phonograms Treaty and Copyright Treaty), to the Hong Kong Special Administrative Region (SAR). The treaties will extend to the Hong Kong SAR from 1 October 2008. Source: WIPO press release, 26 September 2008.

The European Parliament has adopted a resolution calling on the European Commission to put forward a legislative initiative to regulate the cross-border online music market. Referring back to the Parliament's 2007 report (see Legal update, European Parliament calls for framework directive on online music) in response to the Commission's earlier recommendation to facilitate the collective cross-border management of copyright and related rights for legitimate online music services (see Legal update, European Commission recommends pan-European copyright licensing), the resolution is critical of the Commission's failure to put forward legislation saying that a climate of uncertainty has been created for rights-holders and broadcasters. The resolution is concerned to protect European cultural diversity and minority cultures which MEPs consider might be threatened by the Commission's decision in CISAC (see Legal update, European Commission finds that CISAC's EEA members have infringed Article 81). Source: European Parliament press release, 25 September 2008.

On 11 September 2008, Advocate General Trstenjak gave an opinion on a reference from the Swedish Market Court (Marknadsdomstolen) asking whether the remuneration model applied by a copyright management organisation for rights to music in television broadcasts breaches Article 82 of the EC Treaty.

The Republic of Trinidad and Tobago acceded to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty on 28 August 2008. Both treaties will enter into force in Trinidad and Tobago on 28 November 2008.Source: WIPO, WCT notification 70 and WPPT notification 72, 28 August 2008.

The Department for Business, Enterprise and Regulatory Reform has issued a consultation on legislative options for addressing illicit peer-to-peer file-sharing.

The UK Intellectual Property Office (IPO) has published a summary of the responses it has received to its consultation paper on how the Gowers Review recommendations on exceptions to copyright might be implemented in the UK (see Legal update, IPO consults on proposed changes to copyright exceptions). According to the summary, user groups were generally in favour of the new or extended exceptions proposed in the consultation. Rights-holders supported some of the proposals, but considered that there should be limits on the extent of the proposed exceptions. The majority of respondents were in favour of the format-shifting exception. However, there was disagreement, among other things, on the types of content that should be covered by this exception. The music and publishing industries were not in favour of extending the private study and research exception, and creators and rights-holders were opposed to the introduction of a parody exception. The IPO has indicated that it will issue a formal response by way of second consultation later this year.Source: IPO announcement, 22 August 2008.

The UK Intellectual Property Office (IPO) has launched a consultation on the penalties for copyright infringement following the recommendation of the Gowers Review that penalties for online and physical copyright infringement should match, and a subsequent report by the Department for Culture, Media and Sport which announced the government's intention to consult on such penalties. The IPO puts forward three options: making no change in the law (and continuing to rely on the Proceeds of Crime Act 2002 to tackle infringement); increasing the fines available in the Magistrates' Court from a maximum of £5,000 to £50,000 for copyright offences; and increasing fines in a similar way for all IP-related offences. The latter option is most likely to appeal to rights-holders, but it leaves the custodial sentences for copyright offences unchanged: the maximum sentence in the Crown Court for those who commit online infringement by communicating a work to the public would still be only two years, compared to ten years for commercially dealing in or distributing infringing goods.

A paper examining the success of Radiohead's experimental release of their album, In Rainbows, via their website on a pay-what-you-want basis, has been published. The paper, written by Will Page, Chief Economist at the MCPS-PRS Alliance and Eric Garland, Chief Executive of BigChampagne Media Measurement (an online media measurement company) considers whether Radiohead's release of the album potentially "for free" succeeded in sending traffic away from illegal download sites to the band's website, by examining the amount of illegal torrent downloads of In Rainbows in the period following the album's October 2007 release. The report found that the amount of illegal downloads of In Rainbows very substantially exceeded the estimated amount of downloads from the band's website. The authors say reasons for this may include that consumers prefer, all other things being equal, to use the download websites they are accustomed to, and because they can remain anonymous on such sites. However, the authors also argue that, in fact, illegal torrent downloads and legal downloads should be seen as complements not competitors because, among other things, the publicity generated both via Radiohead's official website and downloads from illegal sites increased sales of tour tickets and box sets of the album. Source: MCPS-PRS Economic insight, Issue 10, 29 July 2008.

The High Court has upheld the terms of a settlement agreement between former members of a band governing copyright ownership in six songs.

The Regulatory Enforcement and Sanctions Bill received Royal Assent on 23 July 2008. The Regulatory Enforcement and Sanctions Act 2008 is largely identical to the Bill introduced in the House of Lords (see Legal update, Regulatory Enforcement and Sanctions Bill introduced in House of Lords for a detailed report on the Bill). The main substantive change relevant to the intellectual property, information technology and communications sectors concerns the procedure for imposing fixed monetary penalties, one of the new civil sanctions which the Act allows ministers to confer by statutory instrument on certain regulators, including the Information Commissioner and Ofcom. Broadly, the changes mean that instead of imposing a fixed penalty payment notice, a regulator must first serve a "notice of intent" indicating that it intends to impose a penalty (section 40 of the Act). The person notified can then make objections or pay a discharge payment, failing which a final notice may be served. More minor changes include a new provision requiring regulators empowered with civil sanctions under the Act to publish certain information about the sanctions imposed (section 65 of the Act). The Department for Business Enterprise and Regulatory Reform has published guidance on the Act and has indicated on its website that Parts 1, 3 and 4 will commence on 1 October 2008, with Part 2 commencing on 6 April 2009. Source: Regulatory Enforcement and Sanctions Act 2008.

Following the Department for Constitutional Affairs' consultation on case-track limits and the claims process for personal injury claims (see Legal update, DCA consults on raising fast-track limit for IP and other cases), the Ministry of Justice has published a post-consultation report. The consultation covered a number of intellectual property (IP) issues as a result of a recommendation made in the Gowers Review (see Legal update, Gowers Review of Intellectual Property published, General IP). The report records substantial support for an increase in the fast-track limit from £15,000 to £25,000. A number of respondents to the consultation suggested various improvements which could be made to the handling of IP claims. The majority of IP respondents focused on issues relating to the judiciary and a quarter of respondents called for an increase in the use of mediation. The government endorses the use of mediation and intends to follow up on comments that claimants are being deterred from bringing low value IP claims due to high legal costs. In relation to IP claims, the government plans to consult with the judiciary on whether all IP claims should be allocated to the multi-track procedure. Source: Ministry of Justice, Case-track limits and the claims process for personal injury claims, 21 July 2008.

The European Commission found that various clauses concerning membership and territory contained in reciprocal representation contracts between members of the collecting society, CISAC infringed Article 81(1) of the EC Treaty. Broadly, the Commission found that the effect of the provisions was that copyright owners could only become members of their national collecting society, and that collecting societies could only offer licences to commercial users within their own territory, so that users had negotiate with each individual national collecting society rather than being able to obtain a multi-territory licence. The decision will be welcomed by those who routinely need to acquire pan-European licences, such as broadcasters and online music providers. The Commission says that it the decision will also benefit rights-holders, who will now be able to choose which collecting society represents them, since it will encourage collecting societies to improve quality and efficiency.

The European Commission has published a proposal to extend the term of protection for sound recordings from 50 to 95 years. A proposed amendment to the Copyright Term Directive (2006/116/EC) would include a series of measures aimed at ensuring that session musicians benefit from the extended term. The Commission also proposes that the term of protection of a musical composition should expire 70 years after the death of the last surviving author, be it the author of the lyrics or the composer of the music. This proposal has been welcomed by music industry representatives, but will be opposed by others who believe that music should be freely available after the current 50-year term.

The Serious Crime Act 2007 (Appeals under Section 24) Order 2008 (SI 2008/1863) has been published. The Order, which comes into force on 18 August 2008, sets out the procedure for appeals and related matters on costs in relation to serious crime prevention orders made in the Crown Court under Part 1 of the Serious Crime Act 2007. "Serious crime" for these purposes includes various trade mark- and copyright-related offences, as well as offences relating to online security; for more information on the relevant provisions of the Act, see Legal update, Serious Crime Act 2007 receives Royal Assent. Source: Serious Crime Act 2007 (Appeals under Section 24) Order 2008.

The UK Intellectual Property Office has launched a consultation on a number of copyright exemptions that allow charities and not-for-profit organisations to play copyright-protected sound recordings in public without paying a licence fee. The consultation paper seeks views on three alternative options: the repeal of the exemptions; the recasting of the exemptions; and the replacement of the exemptions with a system of equitable remuneration. The first two proposals have converse advantages and disadvantages for rights-holders and users respectively, while the third option might create uncertainty about how agreement would be reached on remuneration levels. It will be interesting to see how stakeholders respond to the consultation and how the government analyses the responses before proceeding with one of the proposals.

The High Court has dismissed an action for copyright and trade mark infringement against Devon County Council (DCC) arising from its use of material in an application for regional funding, and has upheld a counterclaim for invalidation of the claimant's trade mark. The judge found that copyright in a booklet could not have been infringed, as DCC had not copied a substantial part of it, but that DCC had potentially infringed copyright in one of 32 slides. However, infringement had not occurred, because the claimant had made an earlier application for funding with DCC's support and the circumstances were such that he had in any event licensed DCC to use the material. Furthermore, DCC had only used the trade mark DEVONSHIRE FLAVOUR (registered for food and drinks) on documents, which the judge held was not use in the course of trade under the Trade Marks Act 1994. He also held that the trade mark was "hopelessly invalid" under section 3(1)(c) of the Act as there could hardly be a better phrase to describe the excellence of food and drink in Devonshire. This case illustrates the dangers of bringing a trade mark infringement action on the basis of a weak trade mark which can end up being declared invalid.Case: Kenneth Campbell (t/a Hp-c Associates) v Devon County Council, [2008] EWPCC 2, 26 June 2008.

Virgin Media and the BPI (the British record industry's trade association) have announced an "education campaign" to help Virgin Media's broadband customers to download music legally. As part of the campaign, "informative letters" from both Virgin Media and the BPI will be sent to customers whom the BPI have identified as appearing to have used their accounts to distribute music illegally. Both letters will actually be sent by Virgin Media, without the customers' names or addresses being disclosed to the BPI. Virgin Media will also provide information about illegal downloads on its website. Virgin Media is thought to be the first internet service provider (ISP) to warn customers about illegal downloads in this way. The development will be welcomed by UK rights-holders, who have been in talks with ISPs regarding a voluntary scheme for cooperating in taking action on illegal file-sharing. In February 2008, the government threatened to introduce legislation on this issue if voluntary agreement was not reached (see Legal update, DCMS creative industries report includes threat to legislate on ISP action against illegal file-sharers). It will be interesting to see whether this move by Virgin Media is a precursor to any further cooperation with the BPI on illegal file-sharing, and whether any other ISPs become involved in similar campaigns. Source: BPI press release, 6 June 2008.

Both Andrew Gowers in his review of intellectual property and the UK Intellectual Property Office recommend that a private copying exception be introduced in the Copyright, Designs and Patents Act 1988 for format shifting, but do not recommend that rights holders be compensated for the private copies made. Meanwhile, copyright levies are currently a hot topic in Europe.

The Court of Appeal has ruled that a claimant's excessive and inexcusable delay barred his claim to a share of copyright in a hit single.

The Republic of Yemen acceded to the Berne Convention for the Protection of Literary and Artistic Works on 14 April 2008. The instrument of accession states that Yemen will avail itself of the limitations on the right of translation and the right of production under Articles I and II respectively of the Appendix to the Berne Convention. Its membership of the Convention will take effect on 14 July 2008.Source: WIPO Treaty notification, 21 April 2006.

The Music Business Group, a music industry coalition which represents the full range of participants in the music business, and includes the British Phonographic Industry, the MCPS-PRS alliance, Phonographic Performance Limited and other organisations, has submitted its response to the UK Intellectual Property Office's (IPO) consultation on implementing the Gowers Review recommendations on exceptions to copyright (see Legal update, IPO consults on proposed changes to copyright exceptions). The response calls for the licensing of private offline copying in order to create a new revenue stream for rights-holders. Licences would be negotiated between rights-holders and those who manufacture and distribute devices that are substantially used or marketed for making copies of music, such as MP3 players. Source: Music Business Group, Response to UK IPO consultation on copyright exceptions, 8 April 2008.

The Swiss Confederation ratified the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty on 31 March 2008. The treaties will enter into force in Switzerland on 1 July 2008. Source: WCT notification and WPPT notification, 16 April 2008.

The government has laid before Parliament the Copyright and Performances (Application to Other Countries) Order 2008. The Order includes a revised consolidated list of countries which are afforded protection by the Copyright, Designs and Patents Act 1988, and follows the accession of a number of countries to various conventions and treaties.

The Copyright in Sound Recordings and Performers' Rights (Term Extension) Bill (Bill) has had its first reading in the House of Commons. The published text of the Bill, introduced as a presentation Bill by Peter Wishart MP, proposes a 95-year term of protection for sound recordings. The Bill supersedes a previous Bill introduced by Mr Wishart (as a ballot Bill) in the House of Commons in December 2007 (see Legal update, Private Members' Bill to extend copyright term for sound recordings). The chances of success for the Bill should be considered in light of the UK government's rejection of a recommendation in a House of Commons Select Committee report for an extension of the period of copyright protection for sound recordings to 70 years (see Legal update, Government publishes response to Select Committee report on new media and creative industries: copyright and media issues). However, the call for an extension of this copyright term recently received support at EU level when Charlie McCreevy, the EU Commissioner for the Internal Market and Services, announced his intention to propose that the term in the EU be extended to 95 years (see Legal update, EU Internal Market Commissioner proposes 95-year copyright term for sound recordings). The second reading of the Bill is scheduled for 7 March 2008. Source: Copyright in Sound recordings and Perfomers' Rights (Term Extension) Bill, 26 February 2008.

The Court of Appeal has partly upheld an appeal by a claimant against the High Court's decision to dismiss his claim relating to the loss of his franchisees (see Legal update, High Court considers consent defence to trade mark and passing off claims). The Court of Appeal held that the judge in the High Court was entitled, on the basis of the evidence before him, to take the view that the claimant had consented to his supplier selling certain products under the claimant's trade mark directly to the claimant's franchisees when he was unable to do so. However, until the extent of the supplier's infringement of trade marks and breach of the consent agreement were known, the judge in the High Court could not rule on whether the supplier's conduct had caused the loss of the claimant's franchisees, or whether this had been caused by the claimant's financial status and consequent inability to supply them. The Court of Appeal concluded that the claimant should not be prevented from seeking to establish that his loss of business flowed from his supplier's conduct, but that the claimant should not be too encouraged by this decision as it seemed unlikely that the claimant would be able to establish that, if the consent agreement had been adhered to, he would have been able to maintain his business and survive with his network of franchisees intact. Source: Gary Fearns t/a Autopaint International v Anglo-Dutch Paint & Chemical Company Limited & Ors [2008] EWCA Civ 99, 19 Februa

The European Commission has launched a further public consultation on copyright levies, which follows on from its previous consultations in 2004 and 2006. In the consultation, the Commission is not questioning the entitlement of rights-holders to receive compensation for losses due to private copying, but it is looking for a uniform approach among EU member states as to how levies are applied and how to relate the level of levies to the loss suffered by rights-holders. The Commission intends to follow this with a public meeting in June 2008, to see if a common approach can be developed. The UK is one of the few member states that does not currently have a private-copying exception, but in December 2006 the Gowers Review recommended the introduction of a limited private-copying exception for format-shifting, and in January 2008 this was followed up by the UK Intellectual Property Office with a consultation on proposed legislative changes to the copyright exceptions.

The ECJ has held that Community law does not require member states to oblige internet service providers (ISPs) to disclose details of suspected file-sharers to enable a copyright owner to bring civil proceedings. However, it said that Community law required that, when transposing the E-Privacy Directive (2002/58/EC) (which requires protection of personal data but permits exemptions to protect the rights of others) and various directives requiring effective enforcement of intellectual property rights, member states had to interpret them to allow a fair balance between the various fundamental Community rights, including the rights to property, effective judicial protection and protection of personal data. Further, in implementing the relevant national law, national courts had to interpret it in a manner consistent with those directives and in a way which did not conflict with those fundamental rights or principles of Community law, such as the principle of proportionality. The decision will disappoint copyright owners insofar as it means they cannot invariably invoke Community law to require ISPs to disclose information for the purpose of civil enforcement proceedings. However, it does leave open the possibility that national courts may deem such disclosure to be required in appropriate cases, applying the ECJ's guidance as to how national law should be interpreted. Case: Productores de Música de España (Promusicae) v Telefónica de España SAU, 29 January 2008.

The International Federation of the Phonographic Industry (IFPI) has published a report which provides a comprehensive review of the international digital-music market in 2007 and discusses the current challenges faced by the industry. The report shows that although sales of digital music are continuing to escalate, piracy remains a problem, and the IFPI calls on internet service providers in particular to assist in tackling illegal downloading.

In a reference from the German courts, Advocate General Sharpston has delivered an opinion in which she applied a narrow interpretation to Article 4(1) of the Copyright Directive (2001/29/EC), concluding that it did not apply where pieces of copyright-protected furniture were either made available for temporary use by third parties without those third parties having the right to dispose of them, or were displayed in shop windows without the public being able to use or acquire them. The reference was based on the assumption that the items of furniture were not protected either by copyright or design right at the time of their purchase by the German retailer from an Italian manufacturer; indeed, if they had been, it is unlikely that the rights-holder would have sought to rely on the distribution right in the Copyright Directive. Case: Peek & Cloppenburg KG v Cassina SpA, Case C-456/06, 17 January 2008.

The UK Intellectual Property Office has published a consultation paper on proposed changes to copyright exceptions as part of the follow-up to the recommendations made in the Gowers Review of intellectual property. The paper sets out proposed changes to copyright that will introduce a format-shifting exception to allow consumers to copy legitimately purchased content to another format; enable schools and universities to maximise their use of digital technologies and facilitate distance-learning; allow libraries and archives to use technology to preserve valuable material; and provide a new exception for parody. Although the essence of the proposed new exceptions will be welcomed by many, not least because they represent an opportunity to bring copyright law into line with technological advances, the details of the proposals present many challenges for rights-holders and users.

The High Court has dismissed an appeal by a publican against her conviction for screening a broadcast of live UK Premier League football matches which she received from a Greek broadcaster who had the rights to screen such matches in Greece, rather than from BSkyB which held the UK rights from the Premier League. The High Court held that it would be wrong to determine whether a programme included in a broadcasting service was provided from a place in the UK by reference to the Satellite Broadcasting Directive (93/83EEC) and the cases decided under that Directive. Case: Karen Murphy v Media Protection Services Limited, 21 December 2007. NOTE: On 3 February 2011, the Advocate General gave her opinion in this case (see Legal update, Advocate General considers exclusive football satellite broadcasting rights). On 4 October 2011, the ECJ handed down its judgment in this case (see Legal update, ECJ rules foreign decoder cards can be used to view Premier League games in UK). On 24 February 2012, the High Court allowed the publican’s appeal in the light of the ECJ’s ruling (see Legal update, High Court allows publican's appeal following ECJ ruling in foreign decoder cards cases). (See details of PLC IPIT & Communications' policy on annotating case reports.)

The MCPS-PRS Alliance has announced that a new body called the Resale Rights Society (RRS), to be formed by early 2008, will collect a levy from resellers on the online sale of concert tickets. The proceeds of the levy will be split between promoters, booking agents, artists and songwriters. The RRS will also work on introducing a certification mark for ticket resale websites and producing a standard set of terms for the sale of concert tickets, which will contain a provision limiting the onward sale of tickets to RRS-approved resellers only. The move will be welcomed by the live-music industry, which has long complained that it should take a share of the proceeds of ticket resales. Source: MCPS-PRS Alliance press release, 4 December 2007.

Members of the publishing industry, working together with search-engine operators, have created an industry standard known as Automated Content Access Protocol (ACAP), through which content owners can communicate permissions for access and use to online intermediaries. ACAP will be available to publishers from 29 November 2007. The organisations behind the creation of the new standard hope that it will give content owners the confidence to make more content available to users through search engines and other intermediaries.

In a reference from an Italian court, the ECJ has followed the Advocate General's opinion (as fully reported in an earlier Legal update) and ruled that national laws, such as the requirement under Italian law to affix the sign SIAE (belonging to the Italian collecting society for authors and publishers) to CDs containing copyright works, constituted a technical rule which, if not notified to the EC Commission in accordance with the Directive on technical standards and regulations (98/34/EC), could not be invoked against an individual. The ECJ also ruled that a reference under the Rental Rights Directive (92/100/EEC) was inadmissible, as the reference from the referring court did not give sufficient background information to enable the court to make a ruling. Case: Procura della Repubblica presso il Tribunale civile e penale di Forlì v Karl Josef Wilhelm Schwibbert, Case C-20/05, 8 November 2007.

A businessman has been convicted of 26 offences under section 296ZB of the Copyright Designs and Patents Act 1988 (CDPA), arising from the advertising and sale of "modchips" to enable the playing of pirate or counterfeit games on Microsoft Xbox and Nintendo consoles. Section 296ZB of the CDPA provides that a person commits an offence if, among other things, in the course of a business, he sells, advertises for sale or possesses any device or product primarily designed or adapted to enable the circumvention of effective "technological measures" (meaning, broadly, any technology or device designed to protect a copyright work other than a computer program (section 296ZF, CDPA)). Section 296ZB is one of a number of provisions in the CDPA aimed at preventing the circumvention of copy-protection measures. For a more detailed discussion of section 296ZB, and the other anti-circumvention provisions of the CDPA (in particular, sections 296, 296ZA and 296ZD, which provide for civil remedies) see PLC Practice note, Technical measures country questions: UK. Source: Bristol City Council press release, 22 October 2007.

The Copyright Licensing Agency has introduced a new licence for the adult-education sector which will come into effect on 1 November 2007, and is available to all providers of adult and community education and learning. According to the CLA, this is the first licence of its type to include digital uses, such as scanning and retyping of print resources, and use with technologies such as digital whiteboards.Source: CLA press release, 15 October 2007.

The European Commission has adopted a Regulation amending EC Regulation 1891/2004, which implements EC Regulation 1383/2003 on customs action against goods suspected of infringing intellectual property rights (the Customs Regulation) (see Legal update, Changes to regime for customs action against import or export of infringing goods), in order to adapt the application form for action under the Customs Regulation so as to refer to Bulgaria and Romania, which acceded to the EU on 1 January 2007. The Commission has also published updated contact details for the customs departments designated by member states to receive and process applications for action under the Customs Regulation. Source: EU Official Journal, OJ L 261/12 and OJ C 234/8, 6 October 2007.

The High Court has ruled that a company's use of software infringed copyright and was in breach of a limited licence agreement, despite its comparatively minor nature and the fact that it could easily have been avoided.

The Copyright Tribunal has issued an interim decision in the first reference made to it regarding online royalty rates.

The Industry Trust for Intellectual Property Awareness has launched a website as part of its continuing efforts to tackle the problem of film and television copyright theft. The site is designed to raise awareness of the role and value of copyright in protecting the creative industries and those who work in them. The site contains information on copyright, advice for film-makers and news items on legal developments of interest to the film and television industries. It also includes information on forthcoming DVD and film releases. Source: The Industry Trust for Intellectual Property Awareness website.

The High Court has held that section 51 of the Copyright, Designs and Patents Act 1988 did not give a defence to a claim of copyright infringement in the design of a badge where the design comprised the badge's surface decoration, even though the badge was the same shape as the graphic design.

Advocate General Juliane Kokott has given an opinion in which she considers that it is compatible with Community law for member states to exclude operators of electronic communications networks and services from having to make available personal data relating to connection and traffic information in the context of a civil, as distinct from criminal, action. In an opinion that will disappoint rights owners seeking to establish the identity of music file-sharers, the Advocate General has illustrated the importance given by Community law to the protection of personal data. The following report is based on the French-language version of the opinion, as an English translation is not yet available. Case: Productores de Música de España (Promusicae) v Telefónica de España SAU, 18 July 2007.NOTE: On 29 January 2008, the ECJ held that Community law does not require member states to oblige ISPs to disclose details of suspected file-sharers to enable a copyright owner to bring civil proceedings (see Legal update, ECJ considers whether EC law requires ISPs to disclose file-sharers' detail). (Click here for details of PLC IPIT & Communication's policy on annotating case reports.)

The music download site allofMP3.com, based in Moscow, is reported to have been closed by the Russian authorities. This news has been welcomed by the BPI (British Phonographic Industry), which in 2006 obtained leave to serve High Court proceedings on the site (see Legal update, High Court grants BPI leave to serve proceedings on music download site in Russia). The operations of allofMP3.com were seen as threatening Russia's entry to the World Trade Organisation, and the site had come under increasing pressure since Visa and MasterCard stopped processing payments to it in January 2007. The site's owner, the Russian company MediaServices, claims to have set up an alternative site using the domain name mp3sparks.com, but it is not yet clear how that site will operate. Source: BPI press release, 3 July 2007.

The European Commission has published a guide to the rules which determine the applicable law for international intellectual property (IP) licences and an accompanying guide on choice of jurisdiction for disputes arising from such licences. The applicable law guide explains the application of the Rome Convention to international IP licences; highlights the aspects of an IP licence which are not covered by the Rome Convention; and summarises the relevant mandatory rules. The choice of jurisdiction guide contrasts the rules which apply to contracts with and without forum-choice clauses respectively; considers the position of a defendant domiciled in a third state; and explains the rules which permit a court to accept jurisdiction where a party applies for a provisional measure. Source: IPR helpdesk, Applicable law for international IP licences, 28 June 2007 and Jurisdiction in disputes relating to international IP licences, 2 July 2007.

The House of Lords has refused the publisher of The Mail on Sunday leave to appeal against the Court of Appeal's decision in the case concerning the Prince of Wales's diaries. The Court of Appeal had upheld the High Court's decision to award the Prince of Wales summary judgment for breach of confidence and copyright infringement in respect of his Hong Kong journal (see Legal update, Appeal dismissed in Prince of Wales diaries case). In doing so, the court had looked at the way in which the English courts have been developing the law of privacy to protect the rights recognised by Article 8 of the European Convention on Human Rights, and the relationship between Article 8 and Article 10 of the Convention, which provides for the right to freedom of expression. Source: House of Lords, Minutes of proceedings, 12 June 2007.

The OECD (Organisation for Economic Co-operation and Development) has published an executive summary of a detailed study (to be published in July) on the economic global impact of trade in counterfeit and pirated goods. The summary analyses the market for such goods and applies a 17-point checklist for assessing the effect that illicit sales can have on legitimate business. It also sets out what governments and industry are already doing to deal with the problem, and suggests further measures. It includes a special section on the counterfeiting of goods in the audio-visual, automotive, electrical components, food and drink, pharmaceutical and tobacco sectors. Source: OECD executive summary, 4 June 2007.

The Court of Appeal has upheld the decision of the High Court that live performances are protected by performers' rights under the Copyright, Designs and Patents Act 1988 (CDPA) where the performer died before the CDPA came into force. The court held that the definition of performer in the CDPA was not limited to a living performer. The case confirms that rights subsist in live performances by performers who died before the commencement of the CDPA. Case: Experience Hendrix LLC v Purple Haze Records Ltd (1) Lawrence Miller (2) and John Hillman (3), 24 May 2007.

The Department for Constitutional Affairs (DCA) has published a consultation paper on case-track limits and the claims process for personal injury claims. Following one of the key recommendations in the Gowers Review of Intellectual Property (see Legal update, Gowers Review of Intellectual Property published, General IP), the scope of the consultation includes intellectual property (IP) cases, and the DCA recommends that the fast-track limit is raised to £25,000 for IP claims, as for all other types of claim. The paper also seeks views on whether IP claims could be dealt with in a more efficient and cost-effective way, and whether different measures would be appropriate for different kinds of IP, such as patents, which involve questions of technology. The consultation closes on 13 July 2007.Source: DCA consultation paper: Case-track limits and the claims process for personal injury claims, 20 April 2007.

The House of Commons Culture, Media and Sport Select Committee has published a report on issues facing the creative industries as a result of the rise in new media. The report recommends, among other things, that the term of copyright for sound recordings should be increased to 70 years, that the unauthorised copying of films from a cinema screen should be criminalised (together with the distribution of such copies), and that a new legal exemption should be created to permit copying within domestic premises for domestic use. The report's recommendations on communications-related matters are covered separately in the Legal update, Select Committee report on new media and creative industries: broadcasting and communications issues.

The Department for Constitutional Affairs (DCA) has published a substantial consultation paper on the law on damages. It reconsiders earlier recommendations by the Law Commission on aggravated, exemplary and restitutionary damages in the light of recent case law and considers that no legislative change is necessary. However, the DCA recommends that the term "additional damages" in the Copyright, Designs and Patents Act 1988 be replaced with the term "aggravated and restitutionary damages". Following one of the key recommendations in the Gowers Review of Intellectual Property, the consultation also asks for evidence on how the current system of damages is operating in relation to all areas of intellectual property.

The European Parliament has approved the European Commission's proposal for a Directive to harmonise national law in respect of criminal penalties for intellectual property right (IPR) offences (the Directive), but with significant amendments. Among other things, the amendments made by Parliament would remove patents from the scope of the Directive, and would mean that trade mark rights would only come within the scope of the Directive insofar as extending criminal protection to them was not inimical to free market rules and research activities.

The Court of Appeal has held that merely making a computer program which emulated another, without copying the source code or graphics, was legitimate.

The High Court has considered the point at which goods ordered by consumers in the UK are put into circulation in the European Economic Area for the purposes of section 18(2) of the Copyright, Designs and Patents Act 1988.

The remaining provisions of the Government of Wales Act 2006, which include amendments to the Copyright, Designs and Patents Act 1988 (CDPA), will come into force following the Welsh Assembly elections in May 2007. Among other things, the new Welsh Assembly will not be a Crown body, so that copyright works produced by or under it will not be protected by Crown copyright. Instead, an Order in Council under section 165(7) of the CDPA has been laid before Parliament, which provides that such works will be protected by Parliamentary copyright. This will mean that in most cases, the term of protection for such works will be reduced from 125 years to 50 years from the year in which they were created.

A range of legislation relevant to intellectual property, information technology, communications and media has taken effect on the twice-yearly standard commencement dates at the beginning of April 2007. This includes new powers for trading standards officers to take enforcement action in relation to certain copyright infringements, and new offences dealing with mobile phone reprogramming and internet ticket touting.

The Income Tax Act 2007 (ITA 2007) rewrites some of the tax legislation which applies to income tax. Areas affected include the rules relating to withholding tax from interest and royalties (sections 349 to 349E of the Income and Corporation Taxes Act 1988 (ICTA 1988)) and sections 703 to 709 of ICTA 1988 concerning transactions in securities. ITA 2007 comes into force on 6 April 2007. It applies for the tax year 2007-2008 and subsequent tax years.

The European Commission has published an independent study on the implementation of the Copyright Directive (2001/29/EC), which came into force in 2001. The first part of the study analyses how implementation of the Directive has affected online business models in individual EU member states. The second part sets out how each state has implemented the Directive, identifies disparities and problems that are hampering the harmonisation of the internal market in the areas that the Directive covers, and suggests possible solutions.Source: European Commission study, ETD/2005/IM/D1/91, February 2007; Annex to the study; and Executive summary.

The European Parliament has adopted an own-initiative report in response to the European Commission's recommendation on collective cross-border management of copyright and related rights for legitimate online music services (2005/737/EC) (Recommendation) (see Legal update, European Commission recommends pan-European copyright licensing). Among other things, the report criticises the Commission's decision to put forward a non-binding recommendation and calls, instead, for the proposal of a framework directive to deal with the issue. The adoption of the report is of interest, not least since the Commission is currently seeking views on various aspects of the Recommendation, including its non-binding nature (see Legal update, European Commission seeks views on recommendation for online music sector). It will be interesting to see whether the Commission takes Parliament's suggestions on board.Source: European Parliament press release, 13 March 2007.

The European Commission has published a Communication on the digital publishing of scientific information, which examines how access to scientific information (both in the form of publications and research data) can be improved, and how digital scientific information can be preserved. The Communication considers the current position in Europe, including "open-access" publishing, and identifies the legal and other issues involved in any future policy initiatives.

The government has announced that section 107A of the Copyright, Designs and Patents Act 1988 (CDPA) will come into force on 6 April 2007, giving trading-standards authorities important powers in relation to copyright infringements, including powers to make test purchases, enter premises and inspect and seize goods. The enactment of section 107A was one of the recommendations contained in the Gowers Review of Intellectual Property (see Legal update, Gowers Review of Intellectual Property published: Copyright: Recommendation 42). The DTI has also said that it will provide funding for 4,500 extra Trading Standards officers.Source: DTI press release, 8 February 2007.

On 6 February 2007, an official summary was published in the Official Journal (OJ 2007 L32/23) of the European Commission's March 2004 decision finding that Microsoft Corporation had infringed Article 82 of the EC Treaty by leveraging its dominant position in the market for personal computer operating systems into the markets for work group server operating systems and for media players (see Legal update, Commission announces Microsoft infringement decision). The full non-confidential version of the decision is also available on the DG Competition website. The final report of the Hearing Officer and two Opinions of the Advisory Committee have also been published (OJ 2007 C26/2-5). The progress of Microsoft's appeal against this decision and of the penalty payments in relation to non-implementation of remedies can be tracked at Microsoft, Microsoft remedies and Microsoft (penalty payments).

The Business Action to Stop Counterfeiting and Piracy (BASCAP) project, which is run by the International Chamber of Commerce (see Legal update, ICC launches global industry anti-piracy coalition), has published its first annual survey on global counterfeiting and piracy. The survey's respondents (48 multinational companies) rated practical enforcement as the most important element in tackling these issues, above legislation and public education. The UK was ranked (together with Germany) as having the second-best IP protection after the US.Source: ICC press release, 29 January 2007.

The High Court has held that the ex-organist of a band was entitled to a joint share in the musical copyright in the recorded version of the band's successful single.

The Patent Office has informally requested views following a call by WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore for information relating to the protection of traditional knowledge and expressions of folklore (see WIPO site, Traditional Knowledge and Traditional Cultural Expressions (Folklore)). Respondents are invited to complete separate questionnaires dealing with traditional knowledge and expressions of folklore respectively. The folklore questionnaire should be returned by 31 January 2007 to Ceri Witchard at ceri.witchard@patent.gov.uk and the traditional-knowledge questionnaire should be returned by 9 February 2007 to Kathy Matson at kathy.matson@patent.gov.uk. These are short timescales as the Patent Office needs to consider any views expressed in advance of intergovernmental discussions in February.Source: Patent Office IP policy notices, 25 January 2007.

The Music Publishers Association, a non-profit organisation which looks after the interests of all music publishers based or working in the UK, has negotiated a template agreement with the MCPS-PRS Alliance which will enable publishers who sign up to it to license their repertoire collectively to all online and mobile music services in Europe. This approach is in line with the European Commission's recommendation to use collective licensing to manage online rights in musical works.

The European Commission has called for comments on the development of Europe's online music industry in the light of the Commission's recommendation on collective cross-border management of copyright and related rights for legitimate online music services (2005/737/EC) (see Legal update, European Commission recommends pan-European copyright licensing). The Commission has invited comments from interested stakeholders on four main topics: the non-binding nature of the recommendation; the existing and potential arrangements for EU-wide licensing in this sector; the relatively narrow scope of the recommendation; and governance and transparency issues for rights managers. Responses to the 16 questions set out in the paper are required by 1 July 2007.Source: European Commission, Call for comments, 17 January 2007.

The Serious Crime Bill has been laid before Parliament. It introduces a range of provisions aimed at dealing with serious crime, including the introduction of serious crime prevention orders, under which courts can impose conditions and restrictions on persons involved in "serious offences", and the creation of various new offences of enabling or assisting crime. The Bill has some implications for intellectual property, in particular because various criminal offences under the Copyright, Designs and Patents Act 1988 and the Trade Marks Act 1994 are categorised as "serious offences" for the purposes of the Bill.

The text of consolidated Directives on the term of copyright protection (2006/116/EC) and rental and lending right (2006/115/EC) have been published in the EU Official Journal. The Directives are consolidated versions of, respectively, the Directive on the term of copyright protection (93/98/EEC) and the Directive on rental and lending right (92/100/EEC), and subsequent amending Directives. The Directives will come into force on 16 January 2007.Source: EU Official Journal, L 372/12 and L 376/28, 27 December 2006.

Andrew Gowers has published the Gowers Review of Intellectual Property. The Review concludes that the current intellectual property (IP) system in the UK is broadly performing satisfactorily, but that improvements are needed in the areas of enforcement, costs and balanced and flexible rights. The 54 recommendations in the Review include proposals for a consultation on ensuring effective damages awards in IP infringement actions; the introduction of a limited private-copying exception to allow consumers to format-shift legitimately purchased content; and a consultation on the use of cheaper, fast-track litigation in IP cases. The Review favoured the preservation of the status quo in a number of areas, including the copyright term for sound recordings which it recommends should remain at 50 years.

The European Commission has announced that Microsoft Corporation has submitted revised technical documents with a view to meeting the requirements of the Commission's March 2004 decision on infringement under Article 82 of the EC Treaty. This follows the Commission's announcement on 15 November 2006 that it had extended Microsoft's deadline for submitting such information until 23 November 2006 (see Legal update, Commission provides update on Microsoft compliance). The documents will now be reviewed by potential licensees to assess whether they contain the necessary information to allow the development of interoperable work-group server operating system products, and the Monitoring Trustee will also test the information in the documents in order to verify its accuracy. The Commission will decide in due course whether it regards Microsoft as having now complied with its obligations or whether to impose a further penalty payment.Source: European Commission, MEMO/06/445, 23 November 2006.

The High Court has dismissed a music publisher's claim for a declaration of copyright in respect of 13 songs written by Cuban nationals, who had since died. The judge found that the publisher did not own the reversionary interest in the copyright in most of the songs, and that various factors weighed against granting a declaration in respect of the remaining songs. This case shows how the laws of succession in the Copyright Act 1911 can still apply today to assignments made before 1957. It also shows how it is important for claimants to try to tailor any non-monetary relief claimed, amending it where necessary during the proceedings, rather than applying for wide relief which, if granted, could be misleading to others. Case: Peer International Corporation and others v Termidor Music Publishers Ltd and others, 16 November 2006.

The European Commission has published a statement providing an update on compliance by Microsoft Corporation with the Commission's Article 82 infringement decision of March 2004. The Commission reports that it has still not received the complete documentation that it considers necessary to ensure compliance with all remedial obligations. It expects Microsoft to provide the outstanding documentation by 23 November 2006.

The European Commission has published a report by the Institute for Information Law at the University of Amsterdam which examines the current acquis communautaire on copyright and related rights, and also considers various specific issues, including the possible extension of the term of protection for sound recordings and the possible alignment of the term of protection for co-written musical works. The key findings of the 305-page report, which was commissioned by the European Commission, are set out in an executive summary. Among other points considered, the authors of the report are not convinced by the arguments in favour of extending the term of protection for sound recordings.Source: IViR report: The recasting of copyright and related rights for the knowledge economy, November 2006.

The European Court of Justice has held that the principle of Community exhaustion under the Copyright Directive is valid, and that it precludes the inclusion of the principle of international exhaustion in national legislation.

The European Commission has announced that it has accepted binding commitments to resolve competition law concerns regarding an agreement between five major music publishers and a number of European mechanical copyright collecting societies.

Online music service providers and the BPI (the British record industry's trade association) have settled their dispute with the MCPS-PRS Alliance over royalty rates for the online use of musical works, which was due to be heard by the Copyright Tribunal (see Legal update, MCPS and PRS terms for online use of musical works referred to Copyright Tribunal). The parties have agreed a rate of 8% of gross retail revenues for all music downloads (except ringtones) - the Alliance had originally proposed a 12% rate, although this was temporarily reduced to 8%. The Copyright Tribunal proceedings will continue in relation to various other issues which remain unresolved between the parties.Source: BPI press release, 28 September 2006; MCPS-PRS Alliance press release, 28 September 2006.NOTE: The Copyright Tribunal published its interim decision on the unresolved issues on 19 July 2008 (see Legal update, Copyright Tribunal publishes interim decision on dispute regarding online royalty rates). (Click here for details of PLC IPIT & Communication's policy on annotating case reports.)

The Patent Office has launched a consultation on representative actions for the enforcement of intellectual property (IP) rights, following its provisional proposals in the draft regulations implementing the IP Rights Enforcement Directive (2004/48/EC), which were later taken out. The Patent Office has set out four possible options, its preferred option being to provide for representative actions in IP legislation, but to enable a court to dismiss an action if it considers it inappropriate.

The Republic of Serbia has made a declaration stating that it continues the state and legal identity of the state union of Serbia and Montenegro, and as such continues to exercise its rights and honour all its commitments deriving from the WIPO treaties ratified and signed by the state union of Serbia and Montenegro. These include the Paris Convention, the Berne Convention, the Madrid Agreements, the Madrid Protocol, the Hague Agreement, the Lisbon Agreement, the WIPO Copyright Treaty, the WIPO Performance and Phonograms Treaty, and the Patent Co-operation Treaty.Source: WIPO treaty notification, 19 September 2006.

The European Commission has published a ten-point programme aimed at fostering innovation within the EU, for debate at the forthcoming summit of European leaders on 20 October 2006.

The Law Society has published a report commenting on the European Commission's proposed directive on criminal penalties for intellectual property (IP) offences, which was published in April 2006. The report raises concerns about the legal basis for the proposed directive, which followed the ECJ's ruling in Case C-176/03 about the competence of the EC to adopt criminal measures (see Legal update, European Commission adopts proposal for directive on criminal penalties for IPR offences), and about the extension of the criminal law to all IP rights, particularly patents.Source: Law Society, Policy on proposed changes in the law, 1 September 2006.

The BPI (the British record industry's trade association) has published the results of a study carried out by the research company, IPSOS, which show that physical music piracy (the sale of counterfeit CDs) caused lost sales to the British recording industry of around £165 million in 2005, the equivalent of nearly 10% of the UK's legal CD albums market. According to the BPI, this is the first time that a study into the level of counterfeit CD sales in the UK has been carried out.Source: BPI news release, 29 August 2006.

Ghana ratified the WIPO Copyright Treaty on 18 August 2006. The Treaty will enter into force in Ghana on 18 November 2006.Source: WIPO treaty notifications, 30 August 2006.

Following the launch of the European Commission's consultation on online content in the single market (see Legal update, European Commission launches consultation on online content), the Patent Office has announced that it is co-ordinating the government's response to the consultation, and has requested that comments are sent to it by 29 September 2006. The Patent Office recommends that comments should also be sent separately to the European Commission before the Commission's deadline of 13 October 2006.Source: Patent Office informal policy notice, 7 August 2006.

Following successful litigation in the US and Australia (see Legal update, Australian court rules against Kazaa on file-sharing), the record companies Universal Music, Sony BMG, EMI and Warner Music have settled their claim for damages against Sharman Networks, the owners of the Kazaa peer-to-peer network. Sharman has agreed to pay over US$100 million in damages and has made a commitment to run its business legally. This follows on from Sharman's undertaking in November 2005 to filter 3,000 keywords in order to prevent illegal file-sharing (see Legal update, Kazaa gives undertaking to filter keywords).Source: IFPI press release, 27 July 2006.

The Copyright Licensing Agency has published updated versions of its standard higher education licence agreement and the user guidelines relating to it.

The Films Co-Production Agreements (Amendment) Order 2006 (SI 2006/19) came into force on 20 July 2006. The Order amends the list of countries with which the UK has entered into film co-production agreements and which are treated as British films for the purposes of Schedule 1 to the Films Act 1985. These films may be eligible for national incentives. As a result of the Order, the benefiting countries now include South Africa (see Legal update, UK signs film co-production agreement with South Africa) but exclude Italy. Source: OPSI, Films Co-Production Agreements (Amendment) Order 2006 (SI 2006/19), 26 July 2006.

The BPI (British Phonographic Industry) has announced that it has written to the internet service providers, Tiscali and Cable & Wireless, asking them to suspend 59 of their individual subscribers' accounts for unauthorised music file-sharing.

In a dispute following the break-up of the band Busted, the High Court granted summary judgment to one of the former band-members for infringement of his performer's property rights in an early performance of songs, which the defendant had put on a CD. In doing so, the court considered whether such rights could become partnership property.

Following submissions received from film and music content owners, platform vendors, libraries and, business and consumer groups, the All Party Parliamentary Internet Group has published a report on digital rights management.

The BBC and Pact, the organisation which represents independent producers, have concluded the first agreement between a major broadcaster and independent producers dealing with rights to show television programmes over the internet and via mobile phones. The agreement is reflected in the form of amendments to their existing terms of trade agreement, for which Ofcom had imposed a deadline of 31 May 2006.Source: BBC press release, 2 June 2006.

The High Court has dismissed the copyright infringement action brought by the authors of The Holy Blood and The Holy Grail against the publishers of The Da Vinci Code.

The European Commission has invited comments on its intention to accept binding commitments to resolve competition concerns regarding an agreement between music publishers and European mechanical copyright collecting societies on issues relating to the administration of mechanical copyright for the reproduction of sound recordings on physical carriers.

The European Commission has published proposals for codifying the Directive harmonising the term of protection of copyright and certain related rights (93/98/EEC) and the Rental and Lending Right Directive (92/100/EEC). The proposed new Directives consolidate the text of the existing Directives and subsequent amendments without making any substantive changes. This is part of the Commission's ongoing project to codify EC legislation (see Legal update, European Commission progress report on overhaul of legislation).Source: European Commission's proposals, COM/2006/219 and COM/2006/226, 19 and 22 May 2006.

The High Court has dismissed a claim for royalties brought against Universal Island Records by Aston "Family Man" Barrett, the bass-player in Bob Marley's band, the Wailers.

A consortium of 11 companies involved in digital music has incorporated the Digital Data Exchange (DDEX) to develop and encourage the adoption of voluntary standards for improving the current exchange of data between companies. Membership of the DDEX is open to any organisation with an interest in digital media content, such as record companies, music rights collecting societies, broadcasters and digital and mobile service providers. Source: MCPS-PRS Alliance press release, 4 May 2006.

The MCPS-PRS Alliance has entered into a licence, in line with the European Commission's recent recommendation on collective licensing, to provide one-stop clearance for songs to be used by Skype Limited as part of the company's ringtone download and messaging services.

The World Intellectual Property Organisation (WIPO) has published a report on the interplay between digital rights management (DRM) and access to protected works by the visually-impaired and those taking part in distance-learning. The report considers the laws and practices of Australia, the Republic of Korea, Spain, the UK and the US, and examines how DRM could be used to implement limitations and exceptions in the digital environment.Source: WIPO report, 27 April 2006.

The High Court has awarded HRH The Prince of Wales summary judgment for breach of confidence and copyright infringement against the publisher of The Mail on Sunday in respect of his Hong Kong journal.

The Copyright (Gibraltar) Revocation Order 2006 (SI 2006/1039), which was made by Order in Council on 11 April 2006, will revoke the previous extension of the Copyright, Designs and Patents Act 1988 to Gibraltar, once it is brought into force by the Governor of Gibraltar.

The European Commission has published a Decision which sets out the conditions for the re-use of documents held by the Commission or on its behalf.

The Artist's Resale Right Regulations 2006 came into force on 14 February 2006.

The European Commission has sent a letter to Microsoft Corporation setting out its provisional view that Microsoft is still not in compliance with the remedial obligations imposed following the Commission's 2004 Decision in which it found that Microsoft had abused its dominant position, contrary to Article 82 of the EC Treaty.

The MCPS-PRS Alliance has launched a collective-licensing scheme for music podcasting.

The European Commission has published the results of its consultation on a proposed digital library of European books, periodicals and audio-visual works.

The High Court has granted summary judgment in favour of a number of record companies against an individual music file-sharer.

The Artist's Resale Right Regulations 2006 (the Regulations), which introduce a new royalty for artists on the resale of their works, came into force on 14 February 2006. See Legal update, Regulations on artist's resale right laid before Parliament for a summary of the main features of the resale right conferred by the Regulations.Source: GNN, DTI press release, 14 February 2006; Artist's Resale Right Regulations 2006, 20 February 2006.

The Department of Trade and Industry has laid before Parliament regulations to implement Directive 2001/84/EC, which introduces a new royalty for artists on the resale of their works.

The BPI has reported that it has obtained judgment against two individuals who made music files available for download over the internet without permission, although transcripts of the judgments are not yet available.

EMI Music Publishing has announced a collaboration with two major European collecting societies to facilitate the licensing of its online music rights on a pan-European basis.

The MCPS (Mechanical Copyright Protection Society) has launched a new "per-programme rate" for the use of music in television programmes. Under the new system, users will pay a one-off flat fee to include music from the MCPS's extensive library of production music in a particular television programme. The rates are based on multiples of 30 minutes and vary according to whether the television programme is to be broadcast within the UK only, throughout Europe or worldwide.Source: MCPS press release, 19 January 2006.

The Copyright Tribunal has issued a practice direction setting out the procedure that it intends to adopt in considering references made to it by the Secretary of State for Trade and Industry.Source: Copyright Tribunal practice direction, 3 January 2006.

In a case concerning copyright in computer software, the High Court has reviewed its discretion to give declaratory relief and decided against giving it to the claimant, although it found that the defendants had implicitly asserted that their copyright had been infringed by the claimant.NOTE: On 23 January 2007, the Court of Appeal dismissed an appeal against this decision (see Legal update, Court of Appeal dismisses appeal against decision on declaration of non-infringement). (Click here for details of PLC IPIT & Communication's policy on annotating case reports.)

The European Commission has published the first evaluation of whether the EC Database Directive (96/9/EC) has been successful in achieving its goals. The Commission has identified four options for reforming the legal protection of databases to meet the problems it has identified, on which it is seeking the views of interested parties.

19TV, the company which created the talent shows Pop Idol and American Idol, has settled copyright infringement proceedings against the producers of the talent show the X Factor, according to press reports. It had claimed that the defendants had copied the Pop Idol format in the X Factor, and was also suing for breach of contract because the X Factor production team included former 19TV employees who were contractually prevented from working for competitors. The settlement means that the interesting question of the extent to which programme formats are protected by copyright will not be aired before the UK courts (see Legal update, High Court considers rights in "Who wants to be a Millionaire?" format for the most recent consideration of this issue by the English courts). Source:X Factor copyright case settled, BBC News, 30 November 2005.

Grokster Limited has reached a settlement with MGM Inc. and MGM's co-claimants following the US Supreme Court judgment which found Grokster liable for copyright infringement arising from the file-sharing facilitated by software available from its website (see Legal update, US Supreme Court rules against file-sharing services in Grokster case). As part of the settlement, Grokster has stopped operating from its website at www.grokster.com, and has also reportedly agreed to pay US$50 million in damages. Grokster's co-defendant, Streamcast Networks Inc., was not party to the settlement deal.Source: BBC news report, 8 November 2005.

The government has issued a draft Order declaring the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty to be "Community Treaties" for the purpose of the European Communities Act 1972, with a view to bringing both WIPO Treaties into force in the UK on 1 February 2006.

The European Commission has adopted a recommendation to facilitate the collective cross-border management of copyright and related rights for legitimate online music services.

Yahoo! has announced the launch of the Open Content Alliance which will provide a digitisation service to rival Google's controversial Google Print project.

Details have been published of the grounds of an appeal to the CFI brought by Microsoft Corporation challenging the European Commission's decision that Microsoft must make available to third parties, in source code form, software developed by competitors who have received interoperability information from it. In the meantime, the Commission has announced that it has appointed a Monitoring Trustee who will check that Microsoft is complying with the decision.

The Patent Office has published the results of its final public consultation on proposed moral rights for performers.

Microsoft Corporation has filed an appeal with the CFI, challenging the European Commission's position that Microsoft should make available the source code of its communication protocols under an open-source licence. The background to the Commission's proceedings against Microsoft under Article 82 of the EC Treaty is summarised in the Legal update, European Commission considers Microsoft's proposals on infringement decision. Source: BBC News, 8 September 2005.

The Republic of Cyprus acceded to the WIPO Performances and Phonograms Treaty on 2 September 2005. The Treaty will come into force in the Republic of Cyprus on 2 December 2005. Source: WIPO, WPPT Notification No. 56, 2 September 2005.

The Copyright Licensing Agency has extended its standard Higher Education licence agreement to permit educational institutions and their registered students to make digital copies of documents, as well as physical photocopies. The enhanced licences will run for an initial trial period of three years (dating retrospectively from 31 July 2005 and continuing until 31 July 2008) after which they will be subject to review. Source: CLA, Scanning Rights for Higher Education, 16 August 2005.

The BPI has announced that it is lodging formal court proceedings against five indivduals who made songs available for download without permission. It is seeking an injunction, damages and costs against the individuals.

A group of UK online music service providers and the British Phonographic Industry have referred to the Copyright Tribunal the licence terms set by the MCPS-PRS Alliance for the use of musical works on the internet and on wireless devices.

The US Supreme Court has handed down its decision in MGM v Grokster, holding that peer-to-peer software services may be held liable for copyright infringement by the services users.

The European Commission has published a detailed study in which it proposes a new system for the cross-border collective rights management of online music.

A group of UK online music service providers and the BPI have referred to the Copyright Tribunal the licence terms set by the MCPS-PRS Alliance for the use of musical works on the internet and on wireless devices.NOTE: The Copyright Tribunal published its interim decision in relation to this dispute on 19 July 2008 (see Legal update, Copyright Tribunal publishes interim decision on dispute regarding online royalty rates). (Click here for details of PLC IPIT & Communication's policy on annotating case reports.)

The Court of Appeal has held that modern performing editions of musical compositions that were out of copyright were original musical works under the Copyright, Designs and Patents Act 1988.

The Sultanate of Oman acceded to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty on 20 June 2005. Both treaties will enter into force in Oman on 20 September 2005. Source: WIPO, WCT Notification No. 55 and WPPT Notification No. 54, 20 June 2005.

The European Commission has announced plans to market-test Microsoft Corporation's proposals for implementing the Commission's decision that Microsoft has infringed Article 82 of the EC Treaty by leveraging its dominant position in the market for PC operating systems into the markets for work-group server operating systems and media players.

The High Court has dismissed an application by a firm of solicitors for summary judgment against a claimant in libel proceedings arising from copyright infringement allegations made in a letter before action.

Latvia ratified the Geneva Act of the Hague Agreement concerning the International Registration of Industrial Designs on 26 April 2005. The Geneva Act will come into force in Latvia on 26 July 2005. Albania acceded to the WIPO Copyright Treaty on 6 May 2005. The Treaty will come into force in Albania on 6 August 2005. Source: WIPO treaty notifications.

The High Court has considered the defences of fair dealing and incidental inclusion.

The BBC, Channel 4, the British Film Institute and the Open University have launched the Creative Archive Licence, which allows users to access, download and use audio and video archives for non-commercial purposes, provided that they agree to observe the terms of the Licence.

The government has issued a new Order setting out the countries to which the provisions of the Copyright, Designs and Patents Act 1988 extend, when determining whether a work qualifies for copyright protection in the UK.

The High Court has granted the British Phonographic Industry (BPI) an order requiring six UK internet service providers to disclose, within 14 days, the names and addresses of 31 individuals alleged to have uploaded large numbers of music files to peer-to-peer networks. This follows the BPI's recent announcement that it has agreed financial settlements with 23 other individuals it has been targeting for illegally distributing music online (see Legal update, BPI announces settlements with filesharing individuals). Source: BPI press release, 11 March 2005.

The Patent Office has published an unofficial consolidated text of UK legislation on copyright and related rights (including rights in performances, publication right and database right), which incorporates amendments made up to 31 December 2003. The text includes amendments made to the Copyright, Designs and Patents Act 1988 by means of secondary legislation in order to implement EC directives in the field. Source: Patent Office notice, 11 March 2005.

The Patent Office has published a new training CD on IP crime, for use by enforcement agencies and brand owners. It is the outcome of a collaboration between customs officials, lawyers, investigators and brand protection managers, and goes through the process of investigating and prosecuting piracy offences.Source: Patent Office press release, Fighting IP Crime is the "Rights Thing", 4 March 2005.

In finding that performers' rights exist in certain performances given by Jimi Hendrix in Stockholm in 1969, the High Court has provided useful clarification of some of the transitional provisions of the Copyright, Designs and Patents Act 1988.

The Patent Office has launched a consultation on the proposed implementation in the UK of EC Directive 2001/84, which introduces a new royalty for artists on the resale of their works.

The Court of Appeal has confirmed that all worldwide copyright in a logo must be assigned to the manufacturer.

Intellectual property rights symbols such as © ® and appear on everyday products ranging from mobile phones to this copy of PLC but, given that copyright protection is automatic in the UK and trade marks must be registered to be protected under the Trade Marks Act 1994, what purpose do these symbols serve?

The High Court has held that writing original source code to produce a program with the same functionality as an existing program did not infringe the earlier program.

On 17 January 2005 the Union of Comoros acceded to the Berne Convention for the Protection of Literary and Artistic Works. The treaty will enter into force in the Union of Comoros on 17 April 2005. Source: Berne Notification no. 247, Accession by the Union of Comoros, 17 January 2005.

On 22 December 2004, the President of the Court of First Instance dismissed an interim measures application by Microsoft Corporation, by which it sought to suspend the remedies imposed by the European Commission in its decision finding that Microsoft had breached Article 82 of the EC Treaty. The President found that Microsoft had shown that it had a prima facie case. However, Microsoft had not produced sufficient evidence to show that the implementation of the remedies might cause it serious and irreparable damage.

The former Yugolsav Republic of Macedonia acceded to the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty on 20 December 2004. The treaty will enter into force in the former Yugoslav Republic of Macedonia on 20 March 2005. Source: WPPT notification no 46 - Macedonia accedes to Performances and Phonograms Treaty, 20 December 2004.

The Court of Appeal has dismissed an appeal against the High Court's decision that the effect of the transitional provisions in the Copyright Act 1956 is that a living author could, while that Act was in force, validly assign the reversionary interest in the copyright in his works.

The ECJ has ruled that the UK government did not comply fully with the 2001 EC Directive on the harmonisation of certain aspects of copyright and related rights in the information society, as it failed to ensure that it was implemented in Gibraltar by the prescribed date.

The British Academy of Composers and Songwriters has complained to the Office of Fair Trading about an allegedly coercive commissioning practice followed by certain television broadcasters and independent producers.

The Office of Fair Trading has referred to the European Commission a complaint about the different prices charged by Apple's iTunes music download services in different European countries.

WIPO has taken another step towards agreeing an international treaty aimed at the protection of broadcasting organisations.

The Republic of Botswana acceded to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty on 27 October 2004. Both treaties will enter into force in Botswana on 27 January 2005. Sources: WIPO Copyright Treaty Database and WIPO Performances and Phonograms Treaty Database.

According to reports, the names and addresses of the 26 individuals who are to be sued in the UK by certain record companies for copyright infringement, in respect of music file-swapping over the internet, were handed over last week by four UK ISPs, BT Openworld, Wanadoo, Telewest and NTL, in accordance with a High Court order issued earlier in October (see Legal update, ISPs forced to reveal names of illegal file swappers). Although the record companies were able to identify the file sharers by reference to their Internet Protocol addresses, only the ISPs who provide them with internet access could link those addresses to named subscribers. Source: Record labels offer to settle pirate suits, The Times, 1 November 2004.

A speech by Jurgen Mensching, Director of the Information, Communication and Media Unit of DG Competition, on the Microsoft decision has been published by the European Commission.

According to reports, the English High Court has ordered certain UK internet service providers to disclose, within 14 days, the names and addresses of 28 individuals who are suspected of illegal file-sharing on the internet. This follows an announcement by the British Phonographic Industry of the intention of a number of record companies to sue these individuals for breach of UK copyright law in respect of their extensive music file-sharing activities (see Legal update, UK record companies to launch legal actions against file-sharers). Source: BBC News, Music firms win "pirates" ruling, 14 October 2004.

The High Court has held that claims in respect of the UK's failure to implement the Rental Directive related to a continuing breach of statutory duty by the Crown and a new cause of action arose each time damage was suffered as a result of that breach.

The Kingdom of Bhutan has acceded to the Berne Convention for the Protection of Literary and Artistic Works. Its membership of the Convention will take effect on 25 November 2004. Source: WIPO Treaties Database.

The European Commission is consulting on the EC legal framework for copyright and related rights.

The Minister of State for Industry, Jacqui Smith, has launched a national IP crime strategy, developed by the Patent Office, which brings together brand owners, police, trading standards offices and customs authorities in order to increase the sharing of intelligence between different agencies, improve training and monitor progress by publishing an annual national enforcement report.

The Socialist Republic of Vietnam has acceded to the Berne Convention for the Protection of Literary and Artistic Works. Its membership of the Convention will take effect on 26 October 2004. Source: WIPO Treaties Database.

The High Court has held that an editor of classical music may be entitled to copyright protection in respect of his editions, even where they do not include any new notes.

In proceedings brought by Sony against a manufacturer of a chip which Sony alleges circumvents the copy-protection system on Sony's Play-Station 2 consoles and games, the High Court has considered the new provisions of the Copyright, Designs and Patents Act 1988, addressing the circumvention of copy-protection devices, which implement parts of the 2001 EC Copyright Directive.

The European Commission has reported on the meeting of the High Level Group on Digital Rights Management held on 5 July 2004. The final report of the meeting, released on 8 July 2004, reflects a consensus on basic principles and recommendations for future actions in respect of Digital Rights Management (DRM) issues. A consultation process on the contents of the report has now been launched.

The High Court has considered a number of issues, including questions of contractual interpretation and copyright infringement, arising from a dispute between a producer/songwriter and a music publishing and recording company.NOTE: The Court of Appeal ruled on this case on 4 November 2005 (see Legal update, Court of Appeal interprets contractual issues in music contract). Click here for details of PLC IPIT & Communication's policy on annotating case reports.)

The High Court has held that the skill and labour invested by a musicologist in producing new performing editions of the scores of existing musical compositions was sufficient for him to acquire copyright in them.NOTE: On 19 May 2005, this decision was upheld on appeal (see Legal update, Court of Appeal confirms findings of copyright in new scores of baroque music). (Click here for details of PLC IPIT & Communication's policy on annotating case reports.)

The High Court has held that dealers in an infringing product had committed secondary copyright infringement, despite the lack of direct evidence of copying and of knowledge by the dealers that the copies were infringing.

The Mechanical Copyright Protection Society (MCPS) and the Performing Rights Society (PRS) have signed a Joint Online Licence with Apple iTunes, under which Apple iTunes will have the right to use their global repertoire for the UK in its online music service.

On 1 July 2004, several changes will be made to the system which enables holders of intellectual property rights to request national customs authorities to take action in relation to goods which they suspect infringe their rights, including the extension of the system to cover plant variety rights, designations of origin and geographical indications.

The Court of Appeal has held that copyright in a computer program arising out of university research and subsequently developed in conjunction with a third party belonged to the university.

In a decision considering a range of copyright issues, the High Court has held that while contributions made by a theatrical director to the script of a play during the initial rehearsals were important and valuable, they were not of a nature such as to make her a joint author of the script for copyright purposes.

The European Commission has announced that it has issued a statement of objections to 16 national collecting societies in relation to agreements for the collective licensing of music copyrights for online use.

On 27 April 2004, Commission Regulation (EC) No 772/2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements was published in the Official Journal. The new Regulation, which applies to licences of copyright in software and design rights, as well as to patent and know-how licences, will exempt such agreements from the application of Article 81(1) where the parties' market shares fall below certain thresholds, provided that the licences do not contain certain "black listed" hard-core competition restrictions, such as price restrictions (see Legal update, New Regulation on technology transfer agreements adopted). The new Regulation, which is accompanied by detailed Guidelines, will come into force on 1 May 2004. Sources: Commission Regulation (EC) No 772/2004, 27 April 2004 (OJ 2004 L123/11), Technology Transfer Guidelines, 27 April 2004 (OJ 2004 C101/2).

The European Commission has published a Communication in which it states that it intends to propose legislation dealing with the collective management and good governance of collecting societies.

On 7 April 2004, the European Commission announced that it has adopted the new block exemption Regulation and accompanying guidelines in relation to the application of Article 81 EC Treaty to technology transfer agreements.

The International Federation of the Phonographic Industry (IFPI) has announced legal action by recording industry associations in Denmark, Germany, Italy and Canada against nearly 250 alleged file-sharers in those countries.

On 24 March 2004, the European Commission announced that it has decided that Microsoft Corporation has infringed Article 82 EC Treaty by leveraging its dominant position in the market for personal computer (PC) operating systems into the markets for work group server operating systems and for media players. The Commission has imposed a fine of EUR497 million and ordered Microsoft to disclose interface information and to offer a version of its Windows operating system without Windows Media Player.

The High Court has held that the artistic copyright in an original drawing may be copied indirectly by a defendant who has access to and copies a drawing and/or a three dimensional representation of that work which is based on the claimant's original work but in which the claimant has no copyright. However, on the facts the defendant had not copied the claimant's work but had created a design independently albeit inspired by the commercial success of the intervening work.

The High Court has held that beneficial title to the copyright in a logo which had been designed by a freelance designer belonged to the company that had commissioned the work.

The European Commission has published on its website comments received in response to the public consultation on the review of the technology transfer block exemption. On 25 September 2003, the Commission published for consultation a draft Regulation and guidelines (see Commission issues draft Regulation on technology transfer agreements). The Commission received over 75 responses from national competition authorities, bar associations, law firms and industry.

The Performing Right Society has reached agreement with the Association of British Concert Promoters on a tariff for concert performances of copyright classical music.

The Copyright Licensing Agency has issued a short guidance document on changes to copyright law brought about by the Copyright and Related Rights Regulations 2003 (SI 2498/2003), which came into force on 31 October 2003.