The World Intellectual Property day (26th April) has come and gone. Nigeria been a prominent member of the World Intellectual Property Organization (WIPO) took part in this annual event which was themed “Innovation-Linking the World”. In the words of the Nigerian Attorney General of the Federation (AGF) “Innovation provides solutions to identified problems but also creates new problems. While it is true that the law may never be able to catch up with or pre-empt all the hazards of technology, experience has shown that the solution is in constant review of the law to meet emerging challenges.”
If the truth be told this statement coming from the AGF will form the background of today’s piece. Musical works as we all know is borne out of creativity, one of the main challenges facing creativity in this age of “Innovation” is the issue of (digital) piracy. This problem of piracy has become so rampant in developing nations like Nigeria (maybe because of its lucrative nature). It goes without saying that losses to the rights holders are enormous. To curb this menace, the intellectual property system devised two approaches that may be needed in international markets to protect the rights in musical works.
Technological Protection Measures (TPMs): According to Lessig (1999, p.49) code can, and increasingly will, displace law as the primary defence of intellectual property law in cyber space. The legal foundation for TPMs often referred to as digital rights management (DRM) can be traced to s.11 of the WIPO Copyright Treaty (WCT)and s. 18 of the WIPO Performances and Phonograms Treaty (WPPT), (both referred to as the WIPO internet treaty) which provides for what is now known as the “anti-circumvention provision”.
This provision has the effect of penalizing the circumvention of any effective technological measures put in place by rights holders (of musical works) to restrict the unlawful and unauthorized acts use in protecting musical content and to provide legal remedies against the commercial dealings which are capable of anti-circumvention. At its core, DRM technologies allow musical rights holders to define a set of rules attached to their work in digital format that control consumer access, use and manipulation of the musical work.
This technology is in response to challenges presented by the current state of our digital technologies where musical works can be reproduced identically and distributed across computer networks without compensation to the rights holders. DRM technologies has come under attack in recent times as having the effect of restricting “fair use”, granted under our copyright laws, since its primary objective is to prohibit the copy and access of musical works. According to Stefik (1999, p.96) “One of the concerns raised about [DRM] systems is that they might block consumers’ access to works they are entitled to use on a fair use basis. Because a consumer could not extract a portion of a digital work on a [DRM] system, he or she would not have the opportunity to create the work that would occasion the fair-use defence”
Interoperability has been another challenge facing the deployment of DRM technologies, as in the case of musical content from iTunes platform been restricted to play only on Apple’s iPod (complaint) devices. The inability of Apple’s DRM solution to interoperate across multiple platforms has presented consumer protection and competition/anti-trust challenges.
The consumers Ombudsman in Norway has ruled that the songs encoded with Apples’s FairPlay technology cannot be played on any other music device other than the iPod which is in contravention of Norway’s Laws. To remedy the problem of interoperability, the open source model has been suggested as this model will guarantee interoperability across a myriad of platforms.
Legal Enforcement Measures (LEMs): Another way of dealing with piracy in musical works is through legal remedies provided under copyright and trademark laws as pirated works constitute infringement under both laws.
An important legal tool for dealing with the infringement of IP is the “Anton Piller” order. This is a court order that provides the right to search premises and seize evidence without prior warning. This order is very useful in preventing the destruction of goods or articles in possession of the defendant and which the plaintiff claims infringes his copyright, trademark or patent. The order is named after the case of Anto Piller KG v Manufacturing Processess Limited [1976] Ch 55. To succeed on an Anton Piller application, the plaintiff/applicant must show (to the court) that the property is in the defendant’s possession, that the defendant is likely to destroy it (if he were put on notice of the application for the order) and that the damage occasioned by this infringement is very serious to the applicant.
The path to follow
Whichever path, rights holders may decide to follow, it is heart-warming to know that both measures of enforcing rights in musical works complement each other. The downside may be that in TPMs, fair-use and consumer protection issues may arise while in LEMs, swift processes for customs/border seizures of pirated musical works may suffice, while it may be more difficult to successfully prosecute those involved in criminal piracy, civil remedies may also not be sufficient as it is often a slow path and the amount of monetary compensation may not be enough.
Whatever the case may be, let’s keep celebrating and rewarding creativity. It is important that rights holders maximize the benefits from their works. In this vein, I will agree with the Nigerian pidgin English adage that says “No work, no pay”!
PS: Do you know about the tale of two dogs, I mean Lucky and Flo (two Labrador retrievers) trained by the Motion Picture Association of America (MPAA) in sniffing out pirated media. On their second test run in Malaysia, a bounty was placed on their head by the Malaysian piracy cartel. I guess it’s a dog eat dog world.
Thursday, April 29, 2010
Saturday, April 17, 2010
Feeling groovy – Music therapy
The effect of music on the human spirit has been known for centuries. Its power to heal afflictions of mind and body, however, are only now becoming clearer. Journalist Jo Bowman reports that the commercial possibilities of new styles of music therapy raise complex IP issues.
It does not take an expert in either music or the mind to recommend a hot bath and some Pachelbel to help cure a mild case of stress. But a growing body of research being done around the world suggests there is a far stronger link than was previously thought between mental and physical health, and music.
Music therapy that encourages patients to express themselves by joining in and playing musical instruments has had well-documented success with people suffering from dementia, adults and children with learning difficulties, and in palliative care.
But the notion that simply listening to certain kinds of music can also have a significant effect not only on mood but on medically verifiable health is one that is generating increasing interest. There are those who suggest that in the treatment of some kinds of illness, a dose of the right music avoids the need for drug treatment altogether.
The power to heal is also the power to make money, and therapists, musicians and technicians succeeding in this field are not leaving the complex subject of intellectual property (IP) rights to chance.
Twice a day, after meals
Ms. Vera Brandes, a respected Austrian music producer, composer and academic, describes herself as the first “musical pharmacologist.” The company she co-founded, Sanoson, plans to launch a prescription-only course of music therapy she believes is so powerful in the treatment of disorders such as depression, that doctors may see it as a real alternative to drugs. The treatment will be available initially in Austria but later in other European countries and in the U.S. Patients will be given specially produced listening devices and a headset programmed with selected pieces of music. Their prescription tells them when to listen, and how often.
Director of the research program in music and medicine at the Paracelsus Private Medical University in Salzburg, Ms. Brandes says the music prescribed was composed by her and her team and is based on research on the neurological effects of different musical stimuli. The fact that patients tend to like the therapy makes them more likely to stick with it, she says – unlike psychotherapy, which has a high drop-out rate. “It does involve time,” she says. “Patients have to have at least half an hour a day when they can do this and nothing else, so it’s more time-consuming than taking a pill, but not more time-consuming than seeing a psychiatrist.”
Listening therapy is also at the heart of the launch in the U.S. this year of an Internet-based service by music research company Sourcetone. Director of marketing Luis Araten-Castilla says the company has been studying the effects of music on the mind for five years, working with scientists at Harvard Medical School.
The web service – currently available only in the U.S., although the company has global aspirations – allows users to listen to streamed music of their choice, rather like having their own iTunes playlist. None of the music is specially composed or recorded but, unlike a regular playlist based on album or artist, users choose the emotion they want to feel – calm, for instance – and can combine that with certain genres of music – so calm, plus jazz or hip-hop – and a playlist is created for them. “The music we play has a deep emotive quality and is selected for the kind of mood-altering experience we want to deliver,” says Mr. Araten-Castilla. He says such targeted listening can benefit those suffering from anxiety, depression, high blood pressure and memory loss.
Tuning in
In the Internet age, IP rights relating to music can be a contentious issue. Add to that specific ways of using or creating musical works – and special listening devices – and it becomes even more complicated.
Even using music that is no longer copyrighted is not without potential headaches. Professor Ruth Soetendorp, joint director of the Centre for Intellectual Property Policy & Management at Bournemouth University in the U.K., explains that using Beethoven’s Fifth in music therapy won’t infringe on the composer’s copyright, “but if it’s the Berlin Philharmonic’s recording from last year, you need permission for that.”
In sessions where patients change an existing musical work in some way, permission needs to have been granted by the copyright holder of that music. If it is Mozart, you are in the clear as it is no longer copyright protected. If it is Oasis, you need to ask first or risk breaching copyright.
Creating original pieces of music for therapeutic listening gets around the copyright issue, provided the composers commissioned to write the music assign copyright to the therapy company involved or agree to license the use of the music.
At Sanoson, Ms. Brandes and her team are going beyond copyright protection for the pieces of music they are inviting doctors to prescribe – they are seeking patents in the U.S. and Europe to protect the service they are offering.
“Listening to music to help people with depression is not new … but the whole model is completely new – how it’s presented, and all the elements that are included,” Ms. Brandes says. The patent applications, she says, cover the music, the therapy – called Music-Focused Auditory Therapy – and the listening device itself, which has a memory function allowing doctors to check whether patients are taking their musical medicine as prescribed. The device, which is rented to patients rather than sold, has other qualities not available in commercial music players, says Ms. Brandes, with a broader frequency range and different sound quality.
Fair play
Prof. Soetendorp says protecting new forms of music therapy raises issues that apply to other forms of therapy and personal services. “You can’t patent a method of treatment,” she says. “You can’t patent ideas, and you can’t patent therapies. If you invent a wooden stick that could be used in a course of Swedish massage to give a deeper, more effective massage, that would be patentable. The notion of Swedish massage in itself is not patentable.” Not in Europe at any rate, though the laws on patents in the U.S. are far more flexible, even if only enforceable in the U.S.
The name of a type of therapy could, however, be protected by a trademark. Prof. Soetendorp says the creator of music that achieves a particular effect would be wise to ensure copyright on the music is widely documented, thus allowing the brand of the organization creating or delivering it – that could be protected by a trademark – to be promoted.
As a user of existing music rather than creator of its own, Sourcetone faces a different range of IP issues, not unlike those affecting online radio stations. The company pays royalties to artists whose music it uses, as do radio stations. Users listen to the music free of charge, and the site is supported by advertising. Mr. Araten-Castilla says royalty payments for online streaming are much higher – as much as double – per play in the U.S. than for terrestrial radio stations playing the same piece of music.
Unlike some popular web radio services that are fully interactive, Sourcetone’s streaming is designed with built-in copyright safeguards so that listeners cannot record the tracks and cannot rewind or select a specific track, click and play. What they can do is skip forward if they do not like a particular piece of music. While the music itself is not Sourcetone’s to protect, the software used to select and deliver the music – called Music Classification System Technology or MCST – is, and is patented. MCST, which takes into account rankings of how the music makes listeners feel, also analyzes features of music such as rhythm, the number of beats per minute and harmonies, to reach an “understanding” of the effect music may have on people.
The complexity of dealing with recording artists’ copyright in multiple countries, as well as the task of protecting their own IP, is hampering Sourcetone’s global rollout, Mr. Araten-Castilla says. The company is therefore looking at working with local partners in other markets to help it expand beyond the U.S.
Name that song
Meanwhile, in the U.K., where music therapy focuses primarily on encouraging patients to participate in creating music, there is a completely different set of IP rights to consider. The first, unique to the U.K. though soon to be introduced in Austria, is the legal restriction on who can be described as a “music therapist.” That title is protected by the Health Professions Council, whose minimum standards for registered practitioners cover the level of patient care provided and the standard of training and education required. Improper use of the title music therapist – or titles such as physiotherapist, dietician, art psychotherapist and radiographer – can attract a fine of up to £5,000.
“Music therapists in the U.K. have never said ‘we own music,’ but what we have been successful at is helping music to be used positively, safely and successfully in contexts where people can be very vulnerable, for instance if patients are non-verbal,” says Mr. Stephen Sandford, Chair of the Association of Professional Music Therapists U.K. “There are different schools you can train in to be a music therapist, but the registration means that no matter what the flavor of the therapy is, you know that your therapist will meet recognized standards of proficiency which will protect the public.”
The law covers only the term music therapist, however, and not “music therapy” – a point tested when U.K. station Radio 4 launched a comedy show called “Music Therapy” which it was deemed did not break the rules and was allowed to continue.
Sounds like a business plan
In the case of patients taking part in creating music, it is always possible that a session will originate a musical masterpiece with commercial potential. If that work is guided by a music therapist and involves a room full of patients, who, then, would own what?
Mr. Sandford says that in the British National Health Service (NHS), music therapy usually focuses on musical improvisation by patient and therapist, and can include composition and song writing techniques. Musical works created during therapy are treated as part of a patient’s medical records, which patients have the right to access. And, as in the case of saleable works created during art therapy, patients have the right to make money from their music.
Prof. Soetendorp says that, generally, copyright ownership lies with whoever creates and contributes to a piece of music. If a therapist leads a session but without actually making the music that goes on to become a chart-topper, they would not get a share of the royalties. “[Being an] inspiration is not really part of creation,” she says. “You get this issue in universities where researchers are working on things that perhaps lead to a patent. What’s the input of the professor; is there a joint patent?”
If a patient and instructor produce a work of music together then it is protected by a joint copyright if they have both had input, says Prof. Soetendorp. The law does not assign copyright to each contributor according to how much they have put into it. So, even if one does 90 percent of the work, the copyright is split down the middle. If the music was created by 10 people in a group therapy session and they all make a contribution, the copyright is split equally among them. Unless, that is, patients assigned copyright to the therapist or to their company, which then becomes a question of medical ethics rather than IP.
Culled from WIPO Magazine 5/2009
PS
“I'll be your prescription
Come and take a dose of me
Once you get a dose of me
You'll think that I'm your medicine”
The above lines form part of the chorus from the song “Medicine” performed by American Rap Artiste Plies and R& B singer Keri Hilson. The question then becomes is music now therapeutic or therapy is now musical? If you ask me, I would say its good music though.
It does not take an expert in either music or the mind to recommend a hot bath and some Pachelbel to help cure a mild case of stress. But a growing body of research being done around the world suggests there is a far stronger link than was previously thought between mental and physical health, and music.
Music therapy that encourages patients to express themselves by joining in and playing musical instruments has had well-documented success with people suffering from dementia, adults and children with learning difficulties, and in palliative care.
But the notion that simply listening to certain kinds of music can also have a significant effect not only on mood but on medically verifiable health is one that is generating increasing interest. There are those who suggest that in the treatment of some kinds of illness, a dose of the right music avoids the need for drug treatment altogether.
The power to heal is also the power to make money, and therapists, musicians and technicians succeeding in this field are not leaving the complex subject of intellectual property (IP) rights to chance.
Twice a day, after meals
Ms. Vera Brandes, a respected Austrian music producer, composer and academic, describes herself as the first “musical pharmacologist.” The company she co-founded, Sanoson, plans to launch a prescription-only course of music therapy she believes is so powerful in the treatment of disorders such as depression, that doctors may see it as a real alternative to drugs. The treatment will be available initially in Austria but later in other European countries and in the U.S. Patients will be given specially produced listening devices and a headset programmed with selected pieces of music. Their prescription tells them when to listen, and how often.
Director of the research program in music and medicine at the Paracelsus Private Medical University in Salzburg, Ms. Brandes says the music prescribed was composed by her and her team and is based on research on the neurological effects of different musical stimuli. The fact that patients tend to like the therapy makes them more likely to stick with it, she says – unlike psychotherapy, which has a high drop-out rate. “It does involve time,” she says. “Patients have to have at least half an hour a day when they can do this and nothing else, so it’s more time-consuming than taking a pill, but not more time-consuming than seeing a psychiatrist.”
Listening therapy is also at the heart of the launch in the U.S. this year of an Internet-based service by music research company Sourcetone. Director of marketing Luis Araten-Castilla says the company has been studying the effects of music on the mind for five years, working with scientists at Harvard Medical School.
The web service – currently available only in the U.S., although the company has global aspirations – allows users to listen to streamed music of their choice, rather like having their own iTunes playlist. None of the music is specially composed or recorded but, unlike a regular playlist based on album or artist, users choose the emotion they want to feel – calm, for instance – and can combine that with certain genres of music – so calm, plus jazz or hip-hop – and a playlist is created for them. “The music we play has a deep emotive quality and is selected for the kind of mood-altering experience we want to deliver,” says Mr. Araten-Castilla. He says such targeted listening can benefit those suffering from anxiety, depression, high blood pressure and memory loss.
Tuning in
In the Internet age, IP rights relating to music can be a contentious issue. Add to that specific ways of using or creating musical works – and special listening devices – and it becomes even more complicated.
Even using music that is no longer copyrighted is not without potential headaches. Professor Ruth Soetendorp, joint director of the Centre for Intellectual Property Policy & Management at Bournemouth University in the U.K., explains that using Beethoven’s Fifth in music therapy won’t infringe on the composer’s copyright, “but if it’s the Berlin Philharmonic’s recording from last year, you need permission for that.”
In sessions where patients change an existing musical work in some way, permission needs to have been granted by the copyright holder of that music. If it is Mozart, you are in the clear as it is no longer copyright protected. If it is Oasis, you need to ask first or risk breaching copyright.
Creating original pieces of music for therapeutic listening gets around the copyright issue, provided the composers commissioned to write the music assign copyright to the therapy company involved or agree to license the use of the music.
At Sanoson, Ms. Brandes and her team are going beyond copyright protection for the pieces of music they are inviting doctors to prescribe – they are seeking patents in the U.S. and Europe to protect the service they are offering.
“Listening to music to help people with depression is not new … but the whole model is completely new – how it’s presented, and all the elements that are included,” Ms. Brandes says. The patent applications, she says, cover the music, the therapy – called Music-Focused Auditory Therapy – and the listening device itself, which has a memory function allowing doctors to check whether patients are taking their musical medicine as prescribed. The device, which is rented to patients rather than sold, has other qualities not available in commercial music players, says Ms. Brandes, with a broader frequency range and different sound quality.
Fair play
Prof. Soetendorp says protecting new forms of music therapy raises issues that apply to other forms of therapy and personal services. “You can’t patent a method of treatment,” she says. “You can’t patent ideas, and you can’t patent therapies. If you invent a wooden stick that could be used in a course of Swedish massage to give a deeper, more effective massage, that would be patentable. The notion of Swedish massage in itself is not patentable.” Not in Europe at any rate, though the laws on patents in the U.S. are far more flexible, even if only enforceable in the U.S.
The name of a type of therapy could, however, be protected by a trademark. Prof. Soetendorp says the creator of music that achieves a particular effect would be wise to ensure copyright on the music is widely documented, thus allowing the brand of the organization creating or delivering it – that could be protected by a trademark – to be promoted.
As a user of existing music rather than creator of its own, Sourcetone faces a different range of IP issues, not unlike those affecting online radio stations. The company pays royalties to artists whose music it uses, as do radio stations. Users listen to the music free of charge, and the site is supported by advertising. Mr. Araten-Castilla says royalty payments for online streaming are much higher – as much as double – per play in the U.S. than for terrestrial radio stations playing the same piece of music.
Unlike some popular web radio services that are fully interactive, Sourcetone’s streaming is designed with built-in copyright safeguards so that listeners cannot record the tracks and cannot rewind or select a specific track, click and play. What they can do is skip forward if they do not like a particular piece of music. While the music itself is not Sourcetone’s to protect, the software used to select and deliver the music – called Music Classification System Technology or MCST – is, and is patented. MCST, which takes into account rankings of how the music makes listeners feel, also analyzes features of music such as rhythm, the number of beats per minute and harmonies, to reach an “understanding” of the effect music may have on people.
The complexity of dealing with recording artists’ copyright in multiple countries, as well as the task of protecting their own IP, is hampering Sourcetone’s global rollout, Mr. Araten-Castilla says. The company is therefore looking at working with local partners in other markets to help it expand beyond the U.S.
Name that song
Meanwhile, in the U.K., where music therapy focuses primarily on encouraging patients to participate in creating music, there is a completely different set of IP rights to consider. The first, unique to the U.K. though soon to be introduced in Austria, is the legal restriction on who can be described as a “music therapist.” That title is protected by the Health Professions Council, whose minimum standards for registered practitioners cover the level of patient care provided and the standard of training and education required. Improper use of the title music therapist – or titles such as physiotherapist, dietician, art psychotherapist and radiographer – can attract a fine of up to £5,000.
“Music therapists in the U.K. have never said ‘we own music,’ but what we have been successful at is helping music to be used positively, safely and successfully in contexts where people can be very vulnerable, for instance if patients are non-verbal,” says Mr. Stephen Sandford, Chair of the Association of Professional Music Therapists U.K. “There are different schools you can train in to be a music therapist, but the registration means that no matter what the flavor of the therapy is, you know that your therapist will meet recognized standards of proficiency which will protect the public.”
The law covers only the term music therapist, however, and not “music therapy” – a point tested when U.K. station Radio 4 launched a comedy show called “Music Therapy” which it was deemed did not break the rules and was allowed to continue.
Sounds like a business plan
In the case of patients taking part in creating music, it is always possible that a session will originate a musical masterpiece with commercial potential. If that work is guided by a music therapist and involves a room full of patients, who, then, would own what?
Mr. Sandford says that in the British National Health Service (NHS), music therapy usually focuses on musical improvisation by patient and therapist, and can include composition and song writing techniques. Musical works created during therapy are treated as part of a patient’s medical records, which patients have the right to access. And, as in the case of saleable works created during art therapy, patients have the right to make money from their music.
Prof. Soetendorp says that, generally, copyright ownership lies with whoever creates and contributes to a piece of music. If a therapist leads a session but without actually making the music that goes on to become a chart-topper, they would not get a share of the royalties. “[Being an] inspiration is not really part of creation,” she says. “You get this issue in universities where researchers are working on things that perhaps lead to a patent. What’s the input of the professor; is there a joint patent?”
If a patient and instructor produce a work of music together then it is protected by a joint copyright if they have both had input, says Prof. Soetendorp. The law does not assign copyright to each contributor according to how much they have put into it. So, even if one does 90 percent of the work, the copyright is split down the middle. If the music was created by 10 people in a group therapy session and they all make a contribution, the copyright is split equally among them. Unless, that is, patients assigned copyright to the therapist or to their company, which then becomes a question of medical ethics rather than IP.
Culled from WIPO Magazine 5/2009
PS
“I'll be your prescription
Come and take a dose of me
Once you get a dose of me
You'll think that I'm your medicine”
The above lines form part of the chorus from the song “Medicine” performed by American Rap Artiste Plies and R& B singer Keri Hilson. The question then becomes is music now therapeutic or therapy is now musical? If you ask me, I would say its good music though.
Friday, April 9, 2010
THE EMPIRE STRIKES BACK THRICE: MUSIC FILE SHARING, THE DIGITAL ECONOMY BILL AND THE NEW JEDI KNIGHTS OF THE OLD INTERNET
Today, I beg to transcend beyond the realms of Nigeria, into the far far away empire of the United Kingdom (UK) where the Digital Economy Bill has recently been given the force of law. This Bill was borne out of the Digital Britain Report which set out the Government’s ambition to secure UK’s position as one of the world’s leading digital knowledge economies. This report included over 80 recommendations, and the Digital Economy Bill delivers on those that require primary legislation.
Amongst other issues, the Bill is an attempt to tackle copyright infringement through music file-sharing. The Bill proposes the notorious “three strikes and you’re out” policy for individuals suspected of engaging in illegal music file sharing, this requires ISPs to temporarily disconnect the internet connection of such individuals after repeat warnings. The Bill also requires that ISPs disclose personal information of subscribers who are suspected of engaging in this illegal music file sharing. Failure of the ISPs to comply with this requirement will be met with the payment of a fine.
This new role of ISPs as “Jedi Knights” of the internet has come under serious criticism from various quarters. For me, I just have 2 main issues with these proposals:-
• In instances where subscribers use music file sharing technology on their networks, ISPs merely act as conduits pursuant to article 12 of the electronic commerce directive (eCD, which is the EU Directive regulating the liabilities of ISP). The proposed legislation in requiring ISPs to take action against an alleged unlawful file sharer would be offending Art. 15 of the eCD which provides a “no obligation to monitor” content. The main idea for enacting the “No general obligation” created under this provision was the concern that the effect of Arts 12-14 of the eCD (which deals with specific instances such as conduit, caching and hosting where ISPs would be exempt from liability) would be seriously weakened if ISPs were required to monitor content on their platforms. Also, the effectiveness of technical controls employed in the disconnection of music file shares is also called into question when the serious infringers would resort to encryption devices in order to evade detection within an anonymous file sharing environment thus making it difficult to identify them.
• Copyright versus Privacy Right: Does copyright overshadow all other rights in UK legal other? This question becomes relevant when taking into consideration the requirement that ISPs disclose personal information concerning users of music file sharing technologies on their networks in order to prosecute copyright infringement claims. Art. 5 (1) of EU’s electronic privacy directive provides:
Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation…
This provision reinforces the protection of the confidentiality of communications from interception or even disclosure to any party. This guarantee given to the protection of personal data has also been upheld by the European Court of Justice in the context of civil proceedings for the enforcement of copyright in the case of Promusicae v. Telefónica de España SAU, the question before the court was whether the EC Directives require member states impose obligations to disclose personal data in order to protect copyright works. The court held inter alia:
In the light of all the foregoing, the answer to the national court’s question must be that Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings…
This pronouncement coming from the ECJ no doubts put paid to the protection of the personal information of users of electronic communications services.
Me thinks that rather for the UK government to legislate on the illegality of music file sharing, its use should have been converted to a revenue generating business model where all the parties involved benefit. For the owners of the musical works, they are duly compensated and for the music file sharers (like me), we would be enjoying unfettered access to our favorite songs. Whether the authorities in UK or the music industry likes it or not, music file sharing is here to stay.
For music file sharers in the UK, it seems that (as Master Yoda of Star Wars will likely say too) “file sharing is the path to disconnection”. Music file-sharing leads illegal downloading and uploading, illegal downloading and uploading leads to copyright infringement. Copyright infringement leads to disconnection.
PS: Last Saturday in Lagos, the New Nigerian singing band, Jukebox, was declared winner of the 2010 edition of Nigerian music talent hunt show, Star Quest. The six-man band, made up of Eghosa Frank (drummer), Joshua Itietie (lead guitar), Agunpopo Josephine Olamide (vocalist), Wilson Emeka (vocalist), Epanty Gregory (keyboardist) and Asindi Sam (bass guitar) beat the last bands standing to grab the N7.5 recording contract, brand new band bus, N3.6M cash prize and a home in Lagos. Jukebox earned a total of 19873 votes while the other two bands Sapphire Blue and Ace Vibes got 15480 and 11719 respectively. The band now goes on to join D‘ Accord (2006), D‘ Jewels, (2007), Diamonds (2008), and The Pulse (2009) in the Star Quest ‘hall’ of fame.
Amongst other issues, the Bill is an attempt to tackle copyright infringement through music file-sharing. The Bill proposes the notorious “three strikes and you’re out” policy for individuals suspected of engaging in illegal music file sharing, this requires ISPs to temporarily disconnect the internet connection of such individuals after repeat warnings. The Bill also requires that ISPs disclose personal information of subscribers who are suspected of engaging in this illegal music file sharing. Failure of the ISPs to comply with this requirement will be met with the payment of a fine.
This new role of ISPs as “Jedi Knights” of the internet has come under serious criticism from various quarters. For me, I just have 2 main issues with these proposals:-
• In instances where subscribers use music file sharing technology on their networks, ISPs merely act as conduits pursuant to article 12 of the electronic commerce directive (eCD, which is the EU Directive regulating the liabilities of ISP). The proposed legislation in requiring ISPs to take action against an alleged unlawful file sharer would be offending Art. 15 of the eCD which provides a “no obligation to monitor” content. The main idea for enacting the “No general obligation” created under this provision was the concern that the effect of Arts 12-14 of the eCD (which deals with specific instances such as conduit, caching and hosting where ISPs would be exempt from liability) would be seriously weakened if ISPs were required to monitor content on their platforms. Also, the effectiveness of technical controls employed in the disconnection of music file shares is also called into question when the serious infringers would resort to encryption devices in order to evade detection within an anonymous file sharing environment thus making it difficult to identify them.
• Copyright versus Privacy Right: Does copyright overshadow all other rights in UK legal other? This question becomes relevant when taking into consideration the requirement that ISPs disclose personal information concerning users of music file sharing technologies on their networks in order to prosecute copyright infringement claims. Art. 5 (1) of EU’s electronic privacy directive provides:
Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation…
This provision reinforces the protection of the confidentiality of communications from interception or even disclosure to any party. This guarantee given to the protection of personal data has also been upheld by the European Court of Justice in the context of civil proceedings for the enforcement of copyright in the case of Promusicae v. Telefónica de España SAU, the question before the court was whether the EC Directives require member states impose obligations to disclose personal data in order to protect copyright works. The court held inter alia:
In the light of all the foregoing, the answer to the national court’s question must be that Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings…
This pronouncement coming from the ECJ no doubts put paid to the protection of the personal information of users of electronic communications services.
Me thinks that rather for the UK government to legislate on the illegality of music file sharing, its use should have been converted to a revenue generating business model where all the parties involved benefit. For the owners of the musical works, they are duly compensated and for the music file sharers (like me), we would be enjoying unfettered access to our favorite songs. Whether the authorities in UK or the music industry likes it or not, music file sharing is here to stay.
For music file sharers in the UK, it seems that (as Master Yoda of Star Wars will likely say too) “file sharing is the path to disconnection”. Music file-sharing leads illegal downloading and uploading, illegal downloading and uploading leads to copyright infringement. Copyright infringement leads to disconnection.
PS: Last Saturday in Lagos, the New Nigerian singing band, Jukebox, was declared winner of the 2010 edition of Nigerian music talent hunt show, Star Quest. The six-man band, made up of Eghosa Frank (drummer), Joshua Itietie (lead guitar), Agunpopo Josephine Olamide (vocalist), Wilson Emeka (vocalist), Epanty Gregory (keyboardist) and Asindi Sam (bass guitar) beat the last bands standing to grab the N7.5 recording contract, brand new band bus, N3.6M cash prize and a home in Lagos. Jukebox earned a total of 19873 votes while the other two bands Sapphire Blue and Ace Vibes got 15480 and 11719 respectively. The band now goes on to join D‘ Accord (2006), D‘ Jewels, (2007), Diamonds (2008), and The Pulse (2009) in the Star Quest ‘hall’ of fame.
Thursday, April 8, 2010
Nigerian WebRadio= Internet Radio Stations, Music Webcasts and the Nigerian Copyright Act
I love music, more importantly I love Nigerian Music. That’s how I found myself on www.nigerianwebradio.com the website for Nigerian WebRadio. For those of you who don’t know, Nigerian WebRadio, it is owned and operated by Virgo Visions Media, Inc. based in Houston, Texas, U.S.A.
Amongst the many obvious taglines from this website is “100% Nigerian music, 24/7” which stands out. Well this statement is quite explanatory as I found out sooner (than later).
The efforts of the management of this Internet Radio Station is really commendable in “creating a radio station broadcasting to the Nigerian Diaspora”
My main concern here is the copyright issues that must have been attended to by the owners before setting up this venture.
As “Musical works” are eligible for protection under section 3(1) of the Nigerian Copyright Act (Ch. 69, LFN 1990). A right earned by virtue of this eligibility with respect to musical works is pursuant to section 5(1)vii which states:
Broadcast or communicate the works to the public by a local speaker or any other similar device
The import of this statutorily provision is that only owners (or licensees) of original musical works are legally authorized to “communicate the work to the public” or broadcast it by means of any device.
In essence, this means that Nigerian WebRadio must have expended a considerable amount of effort in securing from the original owners of the musical works (as unfortunately, there is yet to be a collective management organization licensed to operate by the Nigerian Copyright Commission ) the rights to broadcast these musical works.
Since, Virgo Visions Media is located in the United States of America (USA), this must have been one hell of an effort.
Me continues to think whether the same method of royalty for music streaming in the USA applies in Nigeria. In the USA model, both the blanket license obtained from the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Incorporated (BMI) not only covers the public performance rights to the underlying music composition-the song itself-over-the air-broadcast. For internet broadcast, there is an additional royalty paid to the company called “SoundExchange”. This royalty is supposed to compensate the performers featured in a recorded piece of musical work.
Whether it is the same model that applies in Nigeria is a question for another day as the Copyright Commission (NCC) is yet to give authorization to any Collective Management Organization (CMO).
If Nigerian WebRadio is working without recourse to the necessary authorization from Nigeria, it would be only for a short while as the NCC will soon release the name(s) of authorized CMOs in Nigeria.
Whatever the case maybe, I continue to commend the efforts of Nigeria WebRadio as I am currently listening to “Darey” in “Dance with me ft. Kunzo and Don P”. More powers goes to the elbows of Virgo Visions Media.
PS: Nigerian twin act, “psquare” won the KORA awards for 2010 in Ouagadougou, Burkina Faso. Along with this award came a million USD, remind me next time to start taking a music lesson
Amongst the many obvious taglines from this website is “100% Nigerian music, 24/7” which stands out. Well this statement is quite explanatory as I found out sooner (than later).
The efforts of the management of this Internet Radio Station is really commendable in “creating a radio station broadcasting to the Nigerian Diaspora”
My main concern here is the copyright issues that must have been attended to by the owners before setting up this venture.
As “Musical works” are eligible for protection under section 3(1) of the Nigerian Copyright Act (Ch. 69, LFN 1990). A right earned by virtue of this eligibility with respect to musical works is pursuant to section 5(1)vii which states:
Broadcast or communicate the works to the public by a local speaker or any other similar device
The import of this statutorily provision is that only owners (or licensees) of original musical works are legally authorized to “communicate the work to the public” or broadcast it by means of any device.
In essence, this means that Nigerian WebRadio must have expended a considerable amount of effort in securing from the original owners of the musical works (as unfortunately, there is yet to be a collective management organization licensed to operate by the Nigerian Copyright Commission ) the rights to broadcast these musical works.
Since, Virgo Visions Media is located in the United States of America (USA), this must have been one hell of an effort.
Me continues to think whether the same method of royalty for music streaming in the USA applies in Nigeria. In the USA model, both the blanket license obtained from the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Incorporated (BMI) not only covers the public performance rights to the underlying music composition-the song itself-over-the air-broadcast. For internet broadcast, there is an additional royalty paid to the company called “SoundExchange”. This royalty is supposed to compensate the performers featured in a recorded piece of musical work.
Whether it is the same model that applies in Nigeria is a question for another day as the Copyright Commission (NCC) is yet to give authorization to any Collective Management Organization (CMO).
If Nigerian WebRadio is working without recourse to the necessary authorization from Nigeria, it would be only for a short while as the NCC will soon release the name(s) of authorized CMOs in Nigeria.
Whatever the case maybe, I continue to commend the efforts of Nigeria WebRadio as I am currently listening to “Darey” in “Dance with me ft. Kunzo and Don P”. More powers goes to the elbows of Virgo Visions Media.
PS: Nigerian twin act, “psquare” won the KORA awards for 2010 in Ouagadougou, Burkina Faso. Along with this award came a million USD, remind me next time to start taking a music lesson
Tuesday, April 6, 2010
JAMENDO: SIMPLY A “CREATIVE COMMONS” IDEA
My visit yesterday to the online music platform “Jamendo” educated me on the prospects and benefits of licensing musical works under the Creative Commons (CC) License.
As musical works are protected under National Copyright Laws, licensing these works under the CC license allows owners of musical works to communicate to the using public which rights they wish to retain/reserve and which right they wish to waive (whether it be the right to copy or reproduce, the right to distribute, the right to adapt or create derivative works or the right to communicate to the public or share). The whole idea behind the CC model is to create a flexible system of copyright rules that minimizes the effect of an already existing regime of restrictive copyright protection.
The CC model provides a platform enabling a digitally creative (music) culture by facilitating the remixing and reusing of original creative works. This model strives to attain 3 goals: - (1) simplifying the process for creators to share their creations, (2) creating licenses that would be legally valid and enforceable in a law court and (3) using the internet as an avenue where creative people could easily access and share their works.
Though a quick search on the Jamendo platform turned up no results for Nigerian Artistes or Nigerian Album, there are 32,000 albums available, all the music is free to download and licensed under one of the 6 CC licenses:- (1) Attrition, which lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation., (2) Attrition Share Alike, which lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms, (3) Attrition No Derivatives, which allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you , (4) Attrition Non Commercial, This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms, (5) Attrition Non-Commercial Share Alike, this license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms and (6) Attribution Non-Commercial No Derivatives, often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.
These licenses in effect authorizes the downloading, copying and sharing, as well as the modification and commercial use of the (musical) works licensed under the CC model.
A common motivation for artists licensing under this model was illustrated in a 2006 survey carried out by openbusiness.cc of some artistes in the UK on their perception of copyright, creativity and the CC model. Majority of the responses indicated a negative attitude towards the current copyright regime with some citing that CC licenses are “practical tools for remixing and adaptation”, and CC licenses are rooted in a “desire to exploit network effects” and “better market creative works”.
With the proliferation of new communications technologies especially the internet, me thinks that the Jamendo business model not only encourages (re)creativity but grants to an artiste additional exposure hence promoting both his music and career on a global scale.
Another offering from the Jamendo stable is the “Jamendo PRO”, this unique service licenses a repertoire of musical works at a minimal price to individuals and business for a variety of purposes. With this particular service acting as an online clearing portal where musical rights are cleared, the current role of Collective Management Organizations seems to be rendered redundant.
In all the Jamendo model seems to be the ideal option for artiste seeking worldwide recognition as this could lead to more performance engagements (generally musicians make the most of their income from performances). For musical works licensed under the CC on Jamendo’s platform, this builds on our digital culture by encouraging the sharing of creative ideas/works and the further creation of derivative works in the music arena. This no doubt contributes to our current music literature.
In the words of CC founder, Lawrence Lessing:
"Digital technologies, tied to the Internet, could produce a vastly more competitive and vibrant market for building and cultivating culture; that market could include a much wider and more diverse range of creators; those creators could produce and distribute a much more vibrant range of creativity; and depending upon a few important factors, those creators could earn more on average from this system than creators do today—all so long as the [creators] of our day don’t use the law to protect themselves against this competition"
PS: Did you know that British R & B artiste Jay Sean licensed the song “Tonight” with Jamendo under the Attribution Non-Commercial No Derivatives license, translated, it means that you are only allowed to download but not to modify the original work, if you’re interested in remixing original musical works, visit Jamglue which contains a repertoire of some songs (including those from Nigerian artistes) licensed under CC’s Attrition but beware, some of the songs may not have been authorised by the original author!
As musical works are protected under National Copyright Laws, licensing these works under the CC license allows owners of musical works to communicate to the using public which rights they wish to retain/reserve and which right they wish to waive (whether it be the right to copy or reproduce, the right to distribute, the right to adapt or create derivative works or the right to communicate to the public or share). The whole idea behind the CC model is to create a flexible system of copyright rules that minimizes the effect of an already existing regime of restrictive copyright protection.
The CC model provides a platform enabling a digitally creative (music) culture by facilitating the remixing and reusing of original creative works. This model strives to attain 3 goals: - (1) simplifying the process for creators to share their creations, (2) creating licenses that would be legally valid and enforceable in a law court and (3) using the internet as an avenue where creative people could easily access and share their works.
Though a quick search on the Jamendo platform turned up no results for Nigerian Artistes or Nigerian Album, there are 32,000 albums available, all the music is free to download and licensed under one of the 6 CC licenses:- (1) Attrition, which lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation., (2) Attrition Share Alike, which lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms, (3) Attrition No Derivatives, which allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you , (4) Attrition Non Commercial, This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms, (5) Attrition Non-Commercial Share Alike, this license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms and (6) Attribution Non-Commercial No Derivatives, often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.
These licenses in effect authorizes the downloading, copying and sharing, as well as the modification and commercial use of the (musical) works licensed under the CC model.
A common motivation for artists licensing under this model was illustrated in a 2006 survey carried out by openbusiness.cc of some artistes in the UK on their perception of copyright, creativity and the CC model. Majority of the responses indicated a negative attitude towards the current copyright regime with some citing that CC licenses are “practical tools for remixing and adaptation”, and CC licenses are rooted in a “desire to exploit network effects” and “better market creative works”.
With the proliferation of new communications technologies especially the internet, me thinks that the Jamendo business model not only encourages (re)creativity but grants to an artiste additional exposure hence promoting both his music and career on a global scale.
Another offering from the Jamendo stable is the “Jamendo PRO”, this unique service licenses a repertoire of musical works at a minimal price to individuals and business for a variety of purposes. With this particular service acting as an online clearing portal where musical rights are cleared, the current role of Collective Management Organizations seems to be rendered redundant.
In all the Jamendo model seems to be the ideal option for artiste seeking worldwide recognition as this could lead to more performance engagements (generally musicians make the most of their income from performances). For musical works licensed under the CC on Jamendo’s platform, this builds on our digital culture by encouraging the sharing of creative ideas/works and the further creation of derivative works in the music arena. This no doubt contributes to our current music literature.
In the words of CC founder, Lawrence Lessing:
"Digital technologies, tied to the Internet, could produce a vastly more competitive and vibrant market for building and cultivating culture; that market could include a much wider and more diverse range of creators; those creators could produce and distribute a much more vibrant range of creativity; and depending upon a few important factors, those creators could earn more on average from this system than creators do today—all so long as the [creators] of our day don’t use the law to protect themselves against this competition"
PS: Did you know that British R & B artiste Jay Sean licensed the song “Tonight” with Jamendo under the Attribution Non-Commercial No Derivatives license, translated, it means that you are only allowed to download but not to modify the original work, if you’re interested in remixing original musical works, visit Jamglue which contains a repertoire of some songs (including those from Nigerian artistes) licensed under CC’s Attrition but beware, some of the songs may not have been authorised by the original author!
Friday, April 2, 2010
MAGA NO NEED PAY: NOW, (CYBER)CRIME HAS A NEW ENEMY, AND JUSTICE HAS A NEW VOICE
Listening to the song “Maga no need pay” performed by a group of young Nigerian artistes, I realized the endemic nature of cybercrime in the Nigerian society. The song’s underlying theme is to discourage cybercrime especially internet scams among young Nigerians.
Recently, Nigeria has acquired an (un)popular global reputation as home for scam artistes popularly known in Nigeria as “419” (named after section 419 of the Nigerian Criminal Code dealing with obtaining money under false pretences: - Advance Fee Fraud).
So notorious was this that Microsoft Digital Crimes Unit, Microsoft Nigeria, Microsoft Internet Safety, Security and Privacy Initiative of Nigeria, the Economic and Financial Crimes Commission (Nigeria anti-cybercrime agency) teamed up with young artistes on an all out campaign against the scourge of cybercrime.
The result: - “Maga no need pay”, literally translated the title means scam suckers don’t have to pay on the scam, this is the underlying aim of any scam, to get the sucker to part with his money.
Well, the fight against cybercrime just got creative in Nigeria
See the video via this link
PS: Did you know that Puerto-Rican Pop singer Ricky Martin has “come out of the closet”, in his words “I am proud to say that I am a fortunate homosexual man. I am very blessed to be who I am, these years in silence and reflection made me stronger and reminded me that acceptance has to come from within and that this kind of truth gives me the power to conquer emotions I didn’t even know existed.” I guess that must have been a load off his shoulder. I have got to look out for his upcoming tour, I’m his #1 fan.
Recently, Nigeria has acquired an (un)popular global reputation as home for scam artistes popularly known in Nigeria as “419” (named after section 419 of the Nigerian Criminal Code dealing with obtaining money under false pretences: - Advance Fee Fraud).
So notorious was this that Microsoft Digital Crimes Unit, Microsoft Nigeria, Microsoft Internet Safety, Security and Privacy Initiative of Nigeria, the Economic and Financial Crimes Commission (Nigeria anti-cybercrime agency) teamed up with young artistes on an all out campaign against the scourge of cybercrime.
The result: - “Maga no need pay”, literally translated the title means scam suckers don’t have to pay on the scam, this is the underlying aim of any scam, to get the sucker to part with his money.
Well, the fight against cybercrime just got creative in Nigeria
See the video via this link
PS: Did you know that Puerto-Rican Pop singer Ricky Martin has “come out of the closet”, in his words “I am proud to say that I am a fortunate homosexual man. I am very blessed to be who I am, these years in silence and reflection made me stronger and reminded me that acceptance has to come from within and that this kind of truth gives me the power to conquer emotions I didn’t even know existed.” I guess that must have been a load off his shoulder. I have got to look out for his upcoming tour, I’m his #1 fan.
Wednesday, March 31, 2010
HEY CYBERSQUATTER, THAT’S THE NAME OF MY FAVOURITE ARTISTE!
Have you ever tried googling the name of your favourite artiste, after getting about a thousand hits on google, you click on a domain name similar to the name you googled. Wham, you enter the website only to discover that it has nothing to do with the “googled” name. In the website is a picture of a cat and information to the effect that the website (together with its domain name) is up for sale. You begin to wonder the nature of the commercial interest in selling and or buying a domain name bearing the name of a celebrated artiste.
Welcome to the world of cybersquatting. Cybersquatting is the bad name registration of trademarked names (and in some cases names in which a common law trademark right exist) as domain names (a domain name is the alphanumeric address of a website on the internet such as 9ja artiste name.com) by third party cybersquatters who do not possess rights in such names. Not only is cyberquatting limited to trademarked marked names but also to names belonging to celebrities and popular artistes. The intention of cybersquatters is usually to sell the domain names back to the owners (mostly at an exorbitant price). This practise of cybersquatting has increased the tension between the owners of trademarked names and the domain name registrants who register these names, it has also presented our traditional judicial process with myriads of problems since the courts in most cases are territorially based while the internet where the domain names are registered is global in nature.
Now consider this “cyberthetical” scenario, a cybersquatter located in the US registers as a domain name www.Tu-Face.com (the name of a popular recording artiste in Nigeria) with a domain registrar (not to be confused with domain name registrant, domain name registrars are business entities which accept and process domain name registrations) in Israel. The question then becomes how can Tu-Face legally proceed against the cybersquatter.
The obvious answer to this question would be in a court of law, but the nature of the issue presents serious jurisdictional challenges for the Nigerian courts, further more and taking into consideration the expensive and slow pace of litigating and the problems associated with enforcing the court decision, one begins to wonder if the cybersquatter will ultimately win having “played a fast one” and hence will “reap from where he did not sow”.
Enter the Internet Corporation for Assigned Names and Numbers (ICANN, a body established to coordinate the Domain Name System), in August 24th, 1999, ICANN adopted the Uniform Domain Name Dispute Resolution Policy (UDRP) applicable in most generic top-level domains (gTLDs). This policy enables trademark owners to resolve the bad faith registrations of their trademarks without recourse to the national courts.
To succeed on a claim against the cyberquatter under the UDRP procedure, the aggrieved party must establish pursuant to paragraph 4(a):
i. That the domain name is identical or confusingly similar to a trademark (or service mark) in which he has rights
ii. That the cybersquatter has no right or legitimate interest in respect of the domain name
iii. That the domain name has been registered and is being used in bad faith by the cybersquatter
Paragraph 4(b) UDRP provides a non-exhaustive illustration of evidence of bad faith registrations while paragraph 4(c) of the UDRP identifies non-exhaustive circumstances which would demonstrate rights or legitimates in the domain name for the purpose set forth under 4(a)(ii).
Pursuant to paragraph 4(i), the remedies available to a complainant shall be limited to the cancellation of the domain name or the transfer of the domain name to the aggrieved party.
In March 2000, Oscar Award winning American Actress Julia Roberts commenced UDRP proceedings against Boyd a cybersquattter who had registered the domain www.juliaroberts.com and had subsequently offered it for sale on eBay. The UDRP panel ordered that the domain name be returned back to her since Julia Roberts had a common law trademark right in her (dare I say celebrated) name and further, that Boyd had no legitimate rights or interest in the name and had registered and used the name in bad faith.
A key advantage of the UDRP procedure is the mandatory implementation of the decisions as domain name registrars are mandated to take the necessary steps to enforce any UDRP decisions, subject to the losing party’s right to file court proceedings and suspend the implementation of the decision under paragraph 4(k) of the UDRP.
It is obvious here that the UDRP has come to complement our legal system, the UDRP quickly resolves domain name disputes as an alternative to litigating the “old fashioned” way. As at the time of blogging these are the names of approved providers for UDRP: Asian Domain Name Dispute Resolution centre (ADNDRC), National Arbitration Forum (NAF) and World Intellectual Property Organization (WIPO).
My best advice for cybersquatters is that “the long arm of UDRP will definitely catch up with you”.
PS: Do you know that Reverse Domain Hijacking (also known as reverse cybersquatting), occurs where a trademark owner attempts to secure a domain name by making false cybersquatting claims against a domain name’s rightful owner.[1] This often intimidates domain name owners into transferring ownership of their domain names to trademark owners to avoid legal action, particularly when the domain names belong to smaller organizations or individuals.
Welcome to the world of cybersquatting. Cybersquatting is the bad name registration of trademarked names (and in some cases names in which a common law trademark right exist) as domain names (a domain name is the alphanumeric address of a website on the internet such as 9ja artiste name.com) by third party cybersquatters who do not possess rights in such names. Not only is cyberquatting limited to trademarked marked names but also to names belonging to celebrities and popular artistes. The intention of cybersquatters is usually to sell the domain names back to the owners (mostly at an exorbitant price). This practise of cybersquatting has increased the tension between the owners of trademarked names and the domain name registrants who register these names, it has also presented our traditional judicial process with myriads of problems since the courts in most cases are territorially based while the internet where the domain names are registered is global in nature.
Now consider this “cyberthetical” scenario, a cybersquatter located in the US registers as a domain name www.Tu-Face.com (the name of a popular recording artiste in Nigeria) with a domain registrar (not to be confused with domain name registrant, domain name registrars are business entities which accept and process domain name registrations) in Israel. The question then becomes how can Tu-Face legally proceed against the cybersquatter.
The obvious answer to this question would be in a court of law, but the nature of the issue presents serious jurisdictional challenges for the Nigerian courts, further more and taking into consideration the expensive and slow pace of litigating and the problems associated with enforcing the court decision, one begins to wonder if the cybersquatter will ultimately win having “played a fast one” and hence will “reap from where he did not sow”.
Enter the Internet Corporation for Assigned Names and Numbers (ICANN, a body established to coordinate the Domain Name System), in August 24th, 1999, ICANN adopted the Uniform Domain Name Dispute Resolution Policy (UDRP) applicable in most generic top-level domains (gTLDs). This policy enables trademark owners to resolve the bad faith registrations of their trademarks without recourse to the national courts.
To succeed on a claim against the cyberquatter under the UDRP procedure, the aggrieved party must establish pursuant to paragraph 4(a):
i. That the domain name is identical or confusingly similar to a trademark (or service mark) in which he has rights
ii. That the cybersquatter has no right or legitimate interest in respect of the domain name
iii. That the domain name has been registered and is being used in bad faith by the cybersquatter
Paragraph 4(b) UDRP provides a non-exhaustive illustration of evidence of bad faith registrations while paragraph 4(c) of the UDRP identifies non-exhaustive circumstances which would demonstrate rights or legitimates in the domain name for the purpose set forth under 4(a)(ii).
Pursuant to paragraph 4(i), the remedies available to a complainant shall be limited to the cancellation of the domain name or the transfer of the domain name to the aggrieved party.
In March 2000, Oscar Award winning American Actress Julia Roberts commenced UDRP proceedings against Boyd a cybersquattter who had registered the domain www.juliaroberts.com and had subsequently offered it for sale on eBay. The UDRP panel ordered that the domain name be returned back to her since Julia Roberts had a common law trademark right in her (dare I say celebrated) name and further, that Boyd had no legitimate rights or interest in the name and had registered and used the name in bad faith.
A key advantage of the UDRP procedure is the mandatory implementation of the decisions as domain name registrars are mandated to take the necessary steps to enforce any UDRP decisions, subject to the losing party’s right to file court proceedings and suspend the implementation of the decision under paragraph 4(k) of the UDRP.
It is obvious here that the UDRP has come to complement our legal system, the UDRP quickly resolves domain name disputes as an alternative to litigating the “old fashioned” way. As at the time of blogging these are the names of approved providers for UDRP: Asian Domain Name Dispute Resolution centre (ADNDRC), National Arbitration Forum (NAF) and World Intellectual Property Organization (WIPO).
My best advice for cybersquatters is that “the long arm of UDRP will definitely catch up with you”.
PS: Do you know that Reverse Domain Hijacking (also known as reverse cybersquatting), occurs where a trademark owner attempts to secure a domain name by making false cybersquatting claims against a domain name’s rightful owner.[1] This often intimidates domain name owners into transferring ownership of their domain names to trademark owners to avoid legal action, particularly when the domain names belong to smaller organizations or individuals.
Friday, March 26, 2010
MUSIC ON DEMAND: THE INTERNET REDEFINING THE FACE OF MUSIC DISTRIBUTION IN NIGERIA
Today I downloaded my own copy of Nigerian rap artiste Eldee’s latest album “Is it your money?” from Apple’s digital distribution platform iTunes store, at the time of going to press (or more appropriately going to blog) track no. 3 “big boy” featuring American rap artiste Yung Joc was in full auto blast, my head nodding and head phone cords keep dangling around my workstation.
Sometime back while I was on exchange at the Strathclyde University in Glasgow and in serious need of some Naija (for Nigerian) music. I sent my brother via email, a long list (longer than my arms actually) of my favourite albums, 10 days later, a package from DHL arrived at my flat on 82b Candleriggs street. I couldn’t help thinking the amount it must have cost my brother in granting my request. Ordinarily each album would not have cost me anything more than $1.10
Much love goes to Tim Berners-Lee for inventing the internet, now wherever I’m at, so long as I have access to the internet, I can digitally download my favourite music (most times for a price though).
The internet has created new business models and has created opportunities for recording labels and artistes in the distribution of their music. With the rapidly expanding internet infrastructure and broad band access in Nigeria, music downloads seems to have found its way as an alternative channel for the distribution of music allowing consumers to bypass the traditional model (CD sales). Coupled with this is the rising numbers of music stores that legally sell digital singles and albums such as iTunes store, Tune Tribe, eMusic, Amazon MP3 and many others.
While the first digital download was offered in 2001 by Music net and Press play, it was 2003 that saw the rise in digital music download. According to International Federation of the Phonographic Industry (IFPI) in 2005, the market for digital music expanded between 2003 and 2004 with copyright collectives receiving revenues for these downloads for the first time.
As beautiful and interesting as this innovative model of distributing music may seem, it still poses serious regulatory and policy challenges for the Nigerian government.
1. Broad band regulatory framework
In other to enjoy offerings form online music stores, there has to be a robust framework for broad band access. Despite the heavy investment currently been expended in the Nigerian Telecoms/IT industry, internet penetration still leaves much to be desired. According to statistics from the International Telecommunications Union (ITU) only 7.4% of Nigeria’s 149,229,090 (please don’t quote me on this census figure!) had access to the internet in 2009. Though the Universal Service Regulations enacted in 2007 aims to provide access or a reasonable access to internet service, there is nothing on ground (especially in the rural areas) to show for it. Though I am optimistic (like we always are) that the benefits of the regulations would be reaped in the nearest future.
2. Protection of the Copyright in Digital Music
According to American Professor of Law, Lessig (1999), “the fear is that cyberspace will become a place where copyright can be defeated”. On this ground, it becomes necessary for the Nigerian government to address this issue of digital piracy by enacting the appropriate law(s). WIPO’s Copyright Treaty (WCT) and its counterpart the Performances and Phonographs Treaty (WPPT) both of 1996 addresses these copyright challenges the internet has brought along with it, though these treaties are yet to enter in force in Nigeria.
It is instructive to note that the illegality of music download was made manifest in the Napster case of US and Pirate Bay case of Sweden.
3. Interoperability and Digital Rights Management (DRM)
Interoperability is the ability of different programs to exchange information and mutually use the information being exchanged. It then becomes necessary for the development of an acceptable and uniform standard of the content being distributed as this would enable its operability across different platforms. Open source comes to mind here, this should be the same for DRM which is also used to enable access to the digital content upon the payment of the requisite price. DRM solutions have also created privacy and fair use challenges for the consumers. These issues need to be properly addressed by the Nigerian government.
As Nigerian consumers begin to trend towards digital music, it becomes necessary for the government and relevant stakeholders to carry out comprehensive studies that will satisfy the needs of the government, consumers and the record labels/artistes. After all, it’s in the interest of creativity as Albert Einstein said that “Technological change is like an axe in the hands of a pathological criminal”
PS: Do you know that the Digital Economy Bill currently been considered in the UK requires ISPs to make available to music owners information concerning chronic online pirates? Now talk about enjoying some internet privacy!
Sometime back while I was on exchange at the Strathclyde University in Glasgow and in serious need of some Naija (for Nigerian) music. I sent my brother via email, a long list (longer than my arms actually) of my favourite albums, 10 days later, a package from DHL arrived at my flat on 82b Candleriggs street. I couldn’t help thinking the amount it must have cost my brother in granting my request. Ordinarily each album would not have cost me anything more than $1.10
Much love goes to Tim Berners-Lee for inventing the internet, now wherever I’m at, so long as I have access to the internet, I can digitally download my favourite music (most times for a price though).
The internet has created new business models and has created opportunities for recording labels and artistes in the distribution of their music. With the rapidly expanding internet infrastructure and broad band access in Nigeria, music downloads seems to have found its way as an alternative channel for the distribution of music allowing consumers to bypass the traditional model (CD sales). Coupled with this is the rising numbers of music stores that legally sell digital singles and albums such as iTunes store, Tune Tribe, eMusic, Amazon MP3 and many others.
While the first digital download was offered in 2001 by Music net and Press play, it was 2003 that saw the rise in digital music download. According to International Federation of the Phonographic Industry (IFPI) in 2005, the market for digital music expanded between 2003 and 2004 with copyright collectives receiving revenues for these downloads for the first time.
As beautiful and interesting as this innovative model of distributing music may seem, it still poses serious regulatory and policy challenges for the Nigerian government.
1. Broad band regulatory framework
In other to enjoy offerings form online music stores, there has to be a robust framework for broad band access. Despite the heavy investment currently been expended in the Nigerian Telecoms/IT industry, internet penetration still leaves much to be desired. According to statistics from the International Telecommunications Union (ITU) only 7.4% of Nigeria’s 149,229,090 (please don’t quote me on this census figure!) had access to the internet in 2009. Though the Universal Service Regulations enacted in 2007 aims to provide access or a reasonable access to internet service, there is nothing on ground (especially in the rural areas) to show for it. Though I am optimistic (like we always are) that the benefits of the regulations would be reaped in the nearest future.
2. Protection of the Copyright in Digital Music
According to American Professor of Law, Lessig (1999), “the fear is that cyberspace will become a place where copyright can be defeated”. On this ground, it becomes necessary for the Nigerian government to address this issue of digital piracy by enacting the appropriate law(s). WIPO’s Copyright Treaty (WCT) and its counterpart the Performances and Phonographs Treaty (WPPT) both of 1996 addresses these copyright challenges the internet has brought along with it, though these treaties are yet to enter in force in Nigeria.
It is instructive to note that the illegality of music download was made manifest in the Napster case of US and Pirate Bay case of Sweden.
3. Interoperability and Digital Rights Management (DRM)
Interoperability is the ability of different programs to exchange information and mutually use the information being exchanged. It then becomes necessary for the development of an acceptable and uniform standard of the content being distributed as this would enable its operability across different platforms. Open source comes to mind here, this should be the same for DRM which is also used to enable access to the digital content upon the payment of the requisite price. DRM solutions have also created privacy and fair use challenges for the consumers. These issues need to be properly addressed by the Nigerian government.
As Nigerian consumers begin to trend towards digital music, it becomes necessary for the government and relevant stakeholders to carry out comprehensive studies that will satisfy the needs of the government, consumers and the record labels/artistes. After all, it’s in the interest of creativity as Albert Einstein said that “Technological change is like an axe in the hands of a pathological criminal”
PS: Do you know that the Digital Economy Bill currently been considered in the UK requires ISPs to make available to music owners information concerning chronic online pirates? Now talk about enjoying some internet privacy!
Thursday, March 25, 2010
THE FINE ART OF DISSING: HOW NOT TO PUSH YOUR LUCK
Grab your gl..ks when you see 2pac,
Call the cops when you see 2pac, uh,
Who shot me but your pu..ks didn’t finish,
Now you ‘bout to feel the wrath of a menace,
n..gga I hit ‘em up
This chorus is from the 1996 song “Hit ‘Em Up” by the late 2pac featuring his outlawz. This song was particularly directed at the late Notorious B.I.G and Sean “Puffy” Combs (now known as P.Diddy or simply Diddy).
Fast-forward to Nigeria 2008 and hear:
baba dat baba, you not a father,
you got intellect myopia,
so when I dis [emphasis mine] a baba,
it’s not Ethiopia.
This lyrics form a part of a song titled “Talking to you” performed by popular Nigerian rap artiste Modenine and featuring another Nigerian R&B crooner Banky W. This song is believed by many Nigerians to be a diss song directed at fellow Nigerian rap artiste Rugged man (Ruggedy baba).
According to Urban dictionary, “diss is a shortened version of disrespect”. A diss song or tract primarily intends to attack or express a negative opinion at another person or (most commonly another artiste). This particular style of singing has found its way into the new age hip-hop genre and is constantly contributing to the hip-hop rivalry tension.
While many recording artiste may not be aware, a diss song if not done within the limits of the law, may actually incur liability for the disser for the Nigerian tort of Defamation.
Defamation is the tort or civil wrong of publishing a false and derogatory statement against another person without lawful justification. This publication tends to:
I. Injure his reputation in the opinion of right thinking members of his community; or
II. Expose him to hatred, contempt or ridicule; or
III. To cause other persons to shun or avoid him; or
IV. To discredit him in his office, trade or profession; or
V. To injure his financial credit
Basically there are two types of defamations and a diss song is implicated in both types.
I. Libel is defamation by means of writing, print or some other permanent form. The lyrics contained in a diss song are considered to be in writing and hence would come within the meaning of libel if it meets the criteria for defamation.
II. Slander is defamation by way of spoken words (or in this case by singing). A defamatory diss song would also come under the meaning of slander since they are in fact addressed to the ear, while libel is addressed to the eye.
For the disser to become responsible for the tort of defamation, the aggrieved party must prove in the court that the (i) words in the diss song were in fact defamatory, (ii) that the word referred to him, (iii) that the words were published, that is communicated to at least one other person other than the aggrieved. For the disser the defences to enable him escape liability for defamatorily dissing are:
I. Truth: This is an absolute defence to a claim by the aggrieved only where the words complained of are in fact true in substance.
II. Fair comment which arises from our fundamental freedom of expression. In order to succeed on this defence, the disser must be able to establish that the words in the diss song referred to a matter of public interest (the meaning of this varies according to individual cases), the diss song must have represented an opinion and not an assertion of fact truly stated, that the words or comments from the diss song must have been honestly made and not borne as a result of malice.
All said, Nigerian artistes intending to engage in the fine art of dissing, always remember the limits of the law or you will be pushing your luck too far.
PS: Did you know that in 2007, American rap artiste 50 cent declared that if fellow American rapper Kanye West out sold him in the first week, he would retire from the rap scene, Kanye eventually did out sell him with 957,000 copies to his 691,000. Last time I checked 50 cent is still making music, his last album released in 2009 was titled “Before I self destruct”. I hear the working title of his album due to be released this year is “Black Magic”.
Call the cops when you see 2pac, uh,
Who shot me but your pu..ks didn’t finish,
Now you ‘bout to feel the wrath of a menace,
n..gga I hit ‘em up
This chorus is from the 1996 song “Hit ‘Em Up” by the late 2pac featuring his outlawz. This song was particularly directed at the late Notorious B.I.G and Sean “Puffy” Combs (now known as P.Diddy or simply Diddy).
Fast-forward to Nigeria 2008 and hear:
baba dat baba, you not a father,
you got intellect myopia,
so when I dis [emphasis mine] a baba,
it’s not Ethiopia.
This lyrics form a part of a song titled “Talking to you” performed by popular Nigerian rap artiste Modenine and featuring another Nigerian R&B crooner Banky W. This song is believed by many Nigerians to be a diss song directed at fellow Nigerian rap artiste Rugged man (Ruggedy baba).
According to Urban dictionary, “diss is a shortened version of disrespect”. A diss song or tract primarily intends to attack or express a negative opinion at another person or (most commonly another artiste). This particular style of singing has found its way into the new age hip-hop genre and is constantly contributing to the hip-hop rivalry tension.
While many recording artiste may not be aware, a diss song if not done within the limits of the law, may actually incur liability for the disser for the Nigerian tort of Defamation.
Defamation is the tort or civil wrong of publishing a false and derogatory statement against another person without lawful justification. This publication tends to:
I. Injure his reputation in the opinion of right thinking members of his community; or
II. Expose him to hatred, contempt or ridicule; or
III. To cause other persons to shun or avoid him; or
IV. To discredit him in his office, trade or profession; or
V. To injure his financial credit
Basically there are two types of defamations and a diss song is implicated in both types.
I. Libel is defamation by means of writing, print or some other permanent form. The lyrics contained in a diss song are considered to be in writing and hence would come within the meaning of libel if it meets the criteria for defamation.
II. Slander is defamation by way of spoken words (or in this case by singing). A defamatory diss song would also come under the meaning of slander since they are in fact addressed to the ear, while libel is addressed to the eye.
For the disser to become responsible for the tort of defamation, the aggrieved party must prove in the court that the (i) words in the diss song were in fact defamatory, (ii) that the word referred to him, (iii) that the words were published, that is communicated to at least one other person other than the aggrieved. For the disser the defences to enable him escape liability for defamatorily dissing are:
I. Truth: This is an absolute defence to a claim by the aggrieved only where the words complained of are in fact true in substance.
II. Fair comment which arises from our fundamental freedom of expression. In order to succeed on this defence, the disser must be able to establish that the words in the diss song referred to a matter of public interest (the meaning of this varies according to individual cases), the diss song must have represented an opinion and not an assertion of fact truly stated, that the words or comments from the diss song must have been honestly made and not borne as a result of malice.
All said, Nigerian artistes intending to engage in the fine art of dissing, always remember the limits of the law or you will be pushing your luck too far.
PS: Did you know that in 2007, American rap artiste 50 cent declared that if fellow American rapper Kanye West out sold him in the first week, he would retire from the rap scene, Kanye eventually did out sell him with 957,000 copies to his 691,000. Last time I checked 50 cent is still making music, his last album released in 2009 was titled “Before I self destruct”. I hear the working title of his album due to be released this year is “Black Magic”.
Wednesday, March 24, 2010
REMIXING CREATIVITY: MUSIC SAMPLING AND THE NIGERIAN COPYRIGHT ACT
I once heard a popular Nigerian recording artiste perform a song titled the name of a popular suburb in Lagos, I couldn’t help but notice that the background beats had been lifted from an earlier song in the 2007 album of a Barbadian R&B singer titled “Good Girl Gone Bad”.
The current state of our musical culture has encouraged and facilitated (music) sampling; sampling is the incorporation of a piece of recorded music (“a sample”) into a new recording. This process offers infinite possibilities for remixing the original work and “looping” which is a technique whereby a single sample is repeated continuously over an extended period of time. At other times, the sample may be of vocals and or lyrics of the original musical recording. Sampling of pre-existing musical recordings usually offers the sampling artiste (and or music producers) with significant cost benefits as the need for engaging the services of musicians for the live performances is drastically reduced.
As musical recordings are protected under the Nigerian Copyright Act of Nigeria (Cap. 68, LFN 1990) In particular section 1 of this Act grants protection to both “musical works” and “sound recordings”, so sampling artistes run the risk of committing copyright infringement by breaching the exclusive rights granted under this Act to the “first author” of the original music recording. With respect to musical works, the rights contemplated are enumerated under Section 5 (1) (a); while the rights potentially implicated in sound recordings have also been listed in Section 6 of this Act.
The legal test (usually applied in Common Law jurisdictions of both the UK and US) for determining whether the use of a sample infringes the copyright in a work begins with the question of whether the sample constitutes a substantial part of the original music recording. A double pronged question arises from this inquiry and must be answered consecutively and affirmatively before a legal claim founded on music sampling is bound to succeed in a law court. The first question asks the question whether the original work is actually protected under the Copyright Act and the second question concludes by asking whether the sample constitute a substantial part of the original work.
Traditionally, common law courts have looked at a number of factors in determining whether a substantial lifting has occurred. Among the factors are whether an ordinary lay listener would find a substantial similarity between the pre-existing recording and the new work, the intention of the sampling artiste and whether or not the two parties are in competition. Though as clear cut as these factors may seem, this test is usually far from clear cut and straight forward and the question of whether copyright infringement has occurred by virtue of sampling will depend very much on the facts and merits of each individual case.
In the English case of BBC v Precord Ltd (SRIS C/89/91 11 November 1991 Chancery Division), the court injuncted the defendants from releasing a recording which had sampled 63 words from the plaintiff’s unedited version of its recording. According to the court, BBC had a property right in the sound recording and was entitled to protection unless special circumstances are shown. This decision was also reinforced by a latter decision where the court held in Produce Records Limited v BMG Entertainment International UK and Ireland Limited (1999) that sampling sound recordings without the necessary clearance was prima-facie infringement. This case arose out of the decision of the plaintiff Produce Records to enforce their right in a song titled “Higher and Higher” which was produced by them and which a seven-and-half-second section had been incorporated in the song “Macarena” produced by the defendant BMG.
Irrespective of sampling and the risk of committing copyright infringement, the Copyright Act also provides some sort of safe haven for sampling artistes, as the limits of the exclusive rights granted by this Act is curtailed by the doctrine of fair dealing/fair practice specified under the second schedule of this Act. This doctrine allows someone (including a sampling artiste and music producers) to use a work in a reasonable manner without the need to seek the permission of the owner. The conditions necessitating this fair dealing have been specified under the second schedule of the Act. In particular (a) provides:
the doing of any of the acts mentioned in the said section 5 by way of fair dealing [emphasis mine] for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgment of the title of the work and its authorship, except where the work is incidentally included in a broadcast;
(b) also provides:
doing of any of the aforesaid acts by way of parody, pastiche, or caricature
Hence, it means if any of these conditions is met as specified under these provisions then the sampled music would definitely come within the ambit of the protection offered under the fair dealing/fair use doctrine.
In a US case, a New York Federal court upheld this doctrine by dismissing a claim instituted against American Rap artistes Ghostface Killar, Raekwon (both of the Wu-Tang clan fame) and the Alchemist for copyright infringement. The plaintiffs in this case had accused the rappers of infringement in the song “What a wonderful world”. The rappers successfully argued that while the song’s lyrics where adapted from this song, they were protected as fair use under the US Copyright Act. According to the court, the lyrics were clearly a parody, intended to criticize and ridicule the cheerful perspective of the original song.
Despite the existence of the substantial use test and the fair dealing/fair use defense, the best way for sampling artistes to avoid litigation and liability under the Act is to obtain clearance from the original owner of the musical recording or the relevant collective management organization.
Victoroff (1996) is of the opinion that sampling is:
At its best sampling benefits society by creating a valuable new contribution to modern music literature. At its worst, sampling is vandalization and stealing...
I find it so so difficult to arrive at a divergent view, now it seems my case is well rested.
PS: Has anyone heard the theme song for the 2010 World cup in South- Africa. The Nigerian version contains “sampled” portions of the original song performed by Somalian Artiste K’aan. Nigeria’s Banky W and M.I’s vocal performance was awesome.
The current state of our musical culture has encouraged and facilitated (music) sampling; sampling is the incorporation of a piece of recorded music (“a sample”) into a new recording. This process offers infinite possibilities for remixing the original work and “looping” which is a technique whereby a single sample is repeated continuously over an extended period of time. At other times, the sample may be of vocals and or lyrics of the original musical recording. Sampling of pre-existing musical recordings usually offers the sampling artiste (and or music producers) with significant cost benefits as the need for engaging the services of musicians for the live performances is drastically reduced.
As musical recordings are protected under the Nigerian Copyright Act of Nigeria (Cap. 68, LFN 1990) In particular section 1 of this Act grants protection to both “musical works” and “sound recordings”, so sampling artistes run the risk of committing copyright infringement by breaching the exclusive rights granted under this Act to the “first author” of the original music recording. With respect to musical works, the rights contemplated are enumerated under Section 5 (1) (a); while the rights potentially implicated in sound recordings have also been listed in Section 6 of this Act.
The legal test (usually applied in Common Law jurisdictions of both the UK and US) for determining whether the use of a sample infringes the copyright in a work begins with the question of whether the sample constitutes a substantial part of the original music recording. A double pronged question arises from this inquiry and must be answered consecutively and affirmatively before a legal claim founded on music sampling is bound to succeed in a law court. The first question asks the question whether the original work is actually protected under the Copyright Act and the second question concludes by asking whether the sample constitute a substantial part of the original work.
Traditionally, common law courts have looked at a number of factors in determining whether a substantial lifting has occurred. Among the factors are whether an ordinary lay listener would find a substantial similarity between the pre-existing recording and the new work, the intention of the sampling artiste and whether or not the two parties are in competition. Though as clear cut as these factors may seem, this test is usually far from clear cut and straight forward and the question of whether copyright infringement has occurred by virtue of sampling will depend very much on the facts and merits of each individual case.
In the English case of BBC v Precord Ltd (SRIS C/89/91 11 November 1991 Chancery Division), the court injuncted the defendants from releasing a recording which had sampled 63 words from the plaintiff’s unedited version of its recording. According to the court, BBC had a property right in the sound recording and was entitled to protection unless special circumstances are shown. This decision was also reinforced by a latter decision where the court held in Produce Records Limited v BMG Entertainment International UK and Ireland Limited (1999) that sampling sound recordings without the necessary clearance was prima-facie infringement. This case arose out of the decision of the plaintiff Produce Records to enforce their right in a song titled “Higher and Higher” which was produced by them and which a seven-and-half-second section had been incorporated in the song “Macarena” produced by the defendant BMG.
Irrespective of sampling and the risk of committing copyright infringement, the Copyright Act also provides some sort of safe haven for sampling artistes, as the limits of the exclusive rights granted by this Act is curtailed by the doctrine of fair dealing/fair practice specified under the second schedule of this Act. This doctrine allows someone (including a sampling artiste and music producers) to use a work in a reasonable manner without the need to seek the permission of the owner. The conditions necessitating this fair dealing have been specified under the second schedule of the Act. In particular (a) provides:
the doing of any of the acts mentioned in the said section 5 by way of fair dealing [emphasis mine] for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgment of the title of the work and its authorship, except where the work is incidentally included in a broadcast;
(b) also provides:
doing of any of the aforesaid acts by way of parody, pastiche, or caricature
Hence, it means if any of these conditions is met as specified under these provisions then the sampled music would definitely come within the ambit of the protection offered under the fair dealing/fair use doctrine.
In a US case, a New York Federal court upheld this doctrine by dismissing a claim instituted against American Rap artistes Ghostface Killar, Raekwon (both of the Wu-Tang clan fame) and the Alchemist for copyright infringement. The plaintiffs in this case had accused the rappers of infringement in the song “What a wonderful world”. The rappers successfully argued that while the song’s lyrics where adapted from this song, they were protected as fair use under the US Copyright Act. According to the court, the lyrics were clearly a parody, intended to criticize and ridicule the cheerful perspective of the original song.
Despite the existence of the substantial use test and the fair dealing/fair use defense, the best way for sampling artistes to avoid litigation and liability under the Act is to obtain clearance from the original owner of the musical recording or the relevant collective management organization.
Victoroff (1996) is of the opinion that sampling is:
At its best sampling benefits society by creating a valuable new contribution to modern music literature. At its worst, sampling is vandalization and stealing...
I find it so so difficult to arrive at a divergent view, now it seems my case is well rested.
PS: Has anyone heard the theme song for the 2010 World cup in South- Africa. The Nigerian version contains “sampled” portions of the original song performed by Somalian Artiste K’aan. Nigeria’s Banky W and M.I’s vocal performance was awesome.
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