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.
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