Oscar and the poor cousins of the music industry

Posted on February 25, 2008 | Filed Under digital content, copyright

oscar-band1.jpgFollowing last night’s Oscars Ceremony, where the Austrian-German co-production “The Counterfeiters” won the best foreign-language film category, the Commission emphasizes its role in “yet another triumph for European Cinema“. The film, like many others (e.g. “La Vie en Rose”, “Persepolis”, and “The Diving Bell and the Butterfly”) was co-funded by the EU’s MEDIA programme, which in its current phase (2007-2011) will support the European audiovisual sector with € 755 million.

Supporting European filmmakers however is not the Commission’s only hobbyhorse. In a recent press release commissioner Charlie McCreevy opted for a prolongation of the copyright of performing artists from 50 to 95 years, granting them airplay royalties for a lifetime. To support and fill the pension gap of featured artists and session musicians or “the poor cousins of the music industry” as McCreevy calls them, however, might not necessarily be the Commission’s only motive.

“To extend the term of protection for sound recordings to 95 years” would be a big deal for the music industry, as the copyright for sound recording comprises the performers’ rights as well as of those who organise and finance the recording - the record companies. In addition, the musician who records a song or album will often sign an agreement with his record company transfering all copyright in the recordings in exchange for royalties to bundle the rights and thereby facilitating licensing.

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author: gregor | Permalink | | Print This Article | 1 Comment

“To enforce these rights so forcibly withheld”*: IP adresses for IP rights?

Posted on February 25, 2008 | Filed Under communication technologies

Does the “enforcement directive” (Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights) permit the disclosure of personal traffic data (dynamic IP addresses) to private third parties for the purpose of civil proceedings for alleged infringements of exclusive rights protected by copyright?

As noted in this earlier post, the Austrian Supreme Court of Justice has requested a preliminary ruling of the European Court of Justice on this issue that goes beyond the issues addressed in the Promusicae-Case (see here). The request has now been put on the Website of the ECJ, Case C-557/07 LSG, so you can finally read the officially translated English language version of the questions put to the ECJ.

 *Shakespeare, King John, Act I, Scene 1.
Depending on the outcome of the court proceedings, a good Shakespearan advice for the copyright-industry - taken from Timon of Athens (Act V, Scene 4) - might be: “Thou rather shalt enforce it with thy smile”

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author: hans peter | Permalink | | Print This Article | 1 Comment

Ofcom spectrum auction: not enough to pay the board

Posted on February 22, 2008 | Filed Under spectrum policy

It’s good to know: people are still worth a lot more than spectrum - at least at Ofcom. The results of Ofcom’s fourth spectrum auction were published today, detailing the licence fees paid for spectrum in frequency bands from 10 GHz to 40 GHz. Compared to the pay of Ofcom’s top officials, these fees are peanuts:

The highest fee, paid by T-Mobile for 2 x 80 MHz in the 10 GHz band, 2 x 252 MHz in the 32 GHz band and 2 x 250 MHz in 40 GHz band, was - in total - £321,000. This is not even one year’s pay for Ed Richards, CEO of Ofcom. In fact, all the licence fees paid at this auction (£1,434,630) wouldn’t be enough to pay the top five people at Ofcom for a full year (remuneration of Ofcom officials taken from the “public sector rich list 2007” of the UK TaxPayers’ Alliance; the list gives the figures for the fiscal year 2006/2007 and thus includes also former officials like Stephen Carter and Kip Meek).

But further auctions are in preparation …

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Advice from the Commission: Need help? Call a non-existent number

Posted on February 21, 2008 | Filed Under communication technologies

The issue of “harmonised numbers for harmonised services of social value”, one of Commissioner Reding’s pet projects, has been addressed in this blog before (here and here). As expected, these 116-numbers have (so far) not been a raging success. And now the Commission takes a further step in its PR-cynicism: a “fact sheet” with the title:

Need help? Call a 116 number! 

The only problem: there is no 116-number currently in operation in Europe (at least not if the small print on the Commission’s fact sheet can be trusted): The “fact sheet” informs us that the first 116 number (116000 - a hotline for missing children) has now been assigned in 4 (four!) member states (and there are further 7 member states where the number could be assigned).

So if you follow the Commission’s advice and call a 116 number, you will - at this time - definitely not get any help. If the fact sheet were commercial communication, it might well be called misleading advertising.

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author: hans peter | Permalink | | Print This Article | 2 Comments

“And may, for aught thou know’st, affected be”*: ECJ-judgment C-426/05 Tele2

Posted on February 21, 2008 | Filed Under communication technologies

Article 4 of the Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (Framework Directive) requires “effective mechanisms under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved.”

But who is affected by a decision to impose (or not to impose) specific regulatory obligations under the market analysis procedure as laid down in article 16 of the Framework Directive? Just the undertaking on which such “remedies” are imposed, as the Austrian Telecommunications Act implied? 

In today’s judgment in the Case C-426/05 Tele2, the European Court of Justice followed the advocate general’s opinion that there may be other undertakings (and users) also affected by an NRA’s decision in the market analysis procedure. Here are the answers of the ECJ (and I refrain from further comment, as I am on the bench in the main proceedings at the requesting court):

“1. The terms user ‘affected’ or undertaking ‘affected’ for the purposes of Article 4(1) of Directive 2002/21/EC […]  and the term party ‘affected’ within the meaning of Article 16(3) of that directive must be interpreted as being applicable not only to an undertaking (formerly) having significant power on the relevant market which is subject to a decision of a national regulatory authority taken in the context of a market analysis procedure referred to in Article 16 of that directive and which is the addressee of that decision, but also to users and undertakings in competition with such an undertaking which are not themselves addressees of that decision but the rights of which are adversely affected by it.
2. A provision of national law which, in the context of non-adversarial market analysis proceedings, grants party status only to undertakings (formerly) having significant power on the relevant market and in respect of which specific regulatory obligations are imposed, amended or withdrawn is not, in principle, contrary to Article 4 of Directive 2002/21. However, it is for the national court to ensure that national procedural law guarantees the safeguarding of the rights which users and undertakings in competition with an undertaking (formerly) having significant power on the relevant market derive from the Community legal order in a manner which is not less favourable than that in which comparable domestic rights are safeguarded and which does not prejudice the effectiveness of the legal protection of those users and undertakings guaranteed in Article 4 of Directive 2002/21.”

* Shakespeare, Titus Andronicus, Act II, Scene 1

PS (Update): also today, the ECJ issued its judgment in the case C-296/06 Telecom Italia. It doesn’t really merit a posting of its own, as it is basically of historic value (and has quite substantial financial implications for Italy, as the fee in question added up to 386 million Euros). The legal issue in question seemed very clear from the beginning (no surprises, as I have already mentionend on the advocate general’s opinion this case).  

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author: hans peter | Permalink | | Print This Article | 1 Comment

“So are they all, all honourable men”, squandering the airwaves

Posted on February 12, 2008 | Filed Under spectrum policy

“The squandering of our airwaves is no less important than the lavish waste of any precious natural resource.” Some 47 years ago Newton N. Minow, then the newly appointed Chairman of the FCC, held his famous “Vast Wasteland”-speech, which is still required reading (or listening - both text and mp3 are accessible here)  for anyone having an interest in broadcasting regulation and spectrum policy.

There a very different viewpoints on some of the content of the speech; Wikipedia sums it up nicely in its NPOV-approach here: “While some applauded his ‘vast wasteland’ assault on commercial television as a welcome criticism of excessive violence and frivolity, others criticized it as an elitist, snobbish attack on programming that many viewers enjoyed and as government interference with private enterprise.”  

But the speech certainly is a remarkable piece of rhetoric, and Minow has to be credited with anticipating and promoting technological, spectrum-related developments - terrestrial UHF- and especially satellite broadcasting - that did have a major impact on the the industry. And I am particularly fond of Minow’s introduction to his speech, addressing a meeting of the National Association of Broadcasters with words that seem to echo the words quoted in the title of this post (from the speech of Marcus Antonius, in Shakespeare’s Julius Caesar), Minow said: “I want you to know that you have my admiration and my respect. Yours is a most honorable profession.”

But why am I writing about a speech that was held ages ago? Because Newton N. Minow is still active these days, and once again trying to keep the “public airwaves” from beeing squandered - this time by getting some of the proceeds from the spectrum auctions for investments in education. Interviewed by his daughter Mary Minow on her  LibraryLawBlog, he tells about a problem he encountered - a problem that is not specific to the US:

“Newton Minow: We wanted to take part of the money available from public auctions of the airwaves which total over $20 billion, and put it into education.
Mary Minow: But the bill doesn’t mention taking funds from the auctions of airwaves.
Newton Minow: No. Apparently Congress had already spent the money before it was received.”

The project for a “National Center for Learning Science and Technology” is still continuing, but it will have to get the money from somewhere else.

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“But in these cases we still have judgment here”*: pending cases at the ECJ

Posted on February 2, 2008 | Filed Under communication technologies

As Commissioner Reding “strongly welcomes” one ECJ-decision (reported here), remains very silent on the other (reported here), and announces a new round of infringement proceedings, we from the contentandcarrier-service department bring to you: an update of interesting cases in telecommunications and broadcasting currently pending at the European Court of Justice. So here they are - in the order of their appearence (last updated 8 July 2008; cases closed are rendered in italics):

Pending at the Court of First Instance:

* Shakespeare, Macbeth Act I, Scene 7

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