Lee & Thompson LLP is one of the UK’s leading media and entertainment law firms. Our music department represents a wide variety of musical talent, from new acts to world famous bands, underground producers to international DJs, up-and-coming songwriters to high-profile composers and producers. The firm also acts for a variety of companies operating in the music industry including record labels, publishing companies, management companies, merchandisers, advertising agencies and production companies.

We are looking to employ a music solicitor with between 1 and 3 years’ PQE but with at least 2 years experience either working in a music law firm or in-house at a record label or music publisher. The successful candidate will join the music department and assist the partners with all aspects of their work, advising on the full range of contractual issues which arise in the music industry.

Please note that we will not be accepting applications made via recruitment agencies.

Please send your CV to jobourn@leeandthompson.com

Closing date: 12 May 2012
Location: London
Contact name: Jo Bourn
Email: jobourn@leeandthompson.com
Website: www.leeandthompson.com

 Mr Justice Arnold ruled that both users and operators of the peer-to-peer file sharing website, The Pirate Bay (“TPB”), had infringed the claimant record companies’ copyrights under section 17 of the Copyright, Designs and Patents Act 1988 (“CDPA”) by copying their sound recordings on a large scale. The Court also ruled that the Pirate Bay had breached the Claimant record companies’ right of communication to the public under section 20 CDPA.

Background

The Pirate Bay is a Swedish file sharing website which allows users to share electronic files, including multimedia, computer games and software, via BitTorrent. Its key feature is that it enables an individual to download files quickly by allowing people downloading the file to upload parts of it at the same time. In December 2011 TPB had over 30 million registered users worldwide.

Several record companies, the BPI (British Recorded Music Industry Limited) and PPL (Phonographic Performance Limited) applied to the High Court for an order for internet service providers (ISPs) to block access to TPB. The application was issued pursuant to section 97A CDPA which provides that an injunction may be obtained against an ISP that has “actual knowledge” of another person using their service to infringe copyright.

While the grant of the injunction remains to be determined the court considered two preliminary issues:

Whether on the evidence before the court 1) users and 2) operators of TPB infringed the Claimants’ copyright in the UK.

The Claimants argued that TPB users infringed their copyrights in the UK by -

a) Copying sound recordings, in breach of section 17 CDPA and;

b) Communicating sound recordings to the public, in breach of section 20 CDPA.

They further argued that TPB operators infringed copyright on the basis that they

a)  Had committed the tort of authorising infringements by the UK users and;

b) Were jointly liable for the infringements by the UK users.

A further issue arose as to whether it was appropriate for the court to decide the preliminary issues in the absence of the operators of TPB, since they had not appeared, been joined as parties or been served with the claim.

The Decision

As stated above, the Judge held that both users and operators of TPB infringed the copyrights of the Claimants in the UK under the European Union’s Copyright Directive and the CDPA.

Infringement by copying

When a user of TPB website selects a torrent file in order to obtain a copy of some content and then downloads these sound recording content files and proceeds to copy theses content files onto their own computer, this constitutes copyright infringement if the content itself comprises a copyrighted sound recording.

It was not therefore difficult for the court to conclude that the users are copying copyrighted content. The Judge held that “UK users of TPB who have accounts with the Defendants have infringed and are continuing to infringe, the Claimants’ copyrights by copying the Claimants’ sound recordings on a large scale”.

Infringement by communication to the public

In deciding whether the recordings had been communicated to the public, it was necessary to decide (i) whether the recordings had been communicated by electronic transmission and (ii) whether the recordings had been communicated to a ‘new public’, as in a  public which had not been taken into account by the right holders when authorising the distribution of the recordings.

The Judge found that the concept of communication must be construed broadly in following with the judgment of the CJEU in Football Association v QC Leisure & Ors. [2008] EWHC 1411 (Ch).

The Court determined that the Defendants had made the recordings available by electronic transmission in such a way that members of the public could access the recordings from a place and time chosen by them within the meaning of section 20(2)(b) CDPA. Further, since copies of the sound recordings had been made available to users who had not purchased them from an authorised source, the recordings had been communicated to a ‘new public’.

Authorisation

The Judge considered the law as set out by Kitchin J in Twentieth Century Fox Film Corporation & Anor. v Newzbin [2010] EWHC 608 (CH). He concluded that the operators of TPB authorise infringements of copyright by its users and that the operators go far beyond merely enabling or assisting users.

Joint Tortfeasance

The mere assistance or facilitation of a primary infringement would not have been sufficient to prove the existence of joint tortfeasance. The joint tortfeasor had to have involved himself in the tort so as to make it his own. That would be the case if he had induced, incited of persuaded the primary infringer to engage in the infringing act, or if there was a common design or concerted action or agreement on a common action to secure doing the infringing act.

On the evidence, the Court determined that the operators of TPB had induced, incited or persuaded the users of TPB to commit infringements of copyright, and they and the users had acted pursuant to a common design to infringe. It was also relevant that the operators had profited by their activities. The operators were therefore jointly liable for the infringements committed by the users.

Non – Addition of Owners

In relation to the issue of non-addition of owners of TPB as parties to the claim the Court determined that it was established law that that there was no jurisdictional requirement to join them. The Court further considered that the case law in both the UK and other member States of the European Union supported the view that it was not necessary to serve or join the third party in similar actions. The Court also opined that the owners of TPB had proved very difficult to locate following their departure from the Swedish jurisdiction (which they had left after being convicted of criminal offences for aiding and abetting copyright infringement in the Swedish Courts in 2009). As such, there was no reason to believe that the English courts would have any more success in locating them than the Swedish Courts had done, and it would be impracticable or at least disproportionate, to join them as parties. Even if proceedings could be validly served there was no reason to believe that the owners would defend or make representations to the Court.

Continued Trial

Whether the Court sees fit to grant an injunction against all of the Defendants under Section 97A CDPA will now be dealt with at a hearing in June later in the year.

The decision in the Dramatico case confirms that rights holders seeking site-blocking injunctions against intermediaries such as ISP’s neither need to serve proceedings upon the operators or users of the infringing website in question nor do they need to join them to the proceedings.

This decision follows several high profile cases over the past 18 months concerning what, if any, responsibility ISP’s should bear when their end users carry out infringing acts online. Post Dramatico it is increasingly clear that ISP’s will no longer be able to avoid being held responsible for copyright infringement by its users and must actually take a more active role in its prevention.

Mike Brookes, the partner at Lee & Thompson LLP who headed up the five strong legal team advising the Church family said:

“This case was different from most of the others brought by those who were hacked. Firstly, the News of the World trespassed into the lives of an entire family. James and Maria are not remotely in the public eye. They are no more and no less than proud parents with an exceptionally talented daughter.

Secondly, much of what the News of the World did to Charlotte took place when she was still a minor. The evidence that the litigation uncovered shows that the paper targeted Charlotte from at least 2002, when she was just 16 years old.

Next, it represented one of the highest settlements for any of those who brought claims. The £600,000 that the Churches were paid covered all of the legal fees that NGN forced them to incur leaving a further £300,000 in damages for the family. Charlotte is using her share of the damages to continue her fight against NGN and NewsCorp, and is also now working closely with the police in their criminal investigation, having already given evidence to the Leveson Inquiry.

Finally, the family continued their fight longer than anyone else, all the way to the steps of the Court, to uncover as much of the wrongdoing as they could. Even as late as the final days before settlement, new evidence was emerging of just how far, and just how low, the News of the World had sunk in their desire to sell copy. Charlotte and her parents were only persuaded not to continue their case to trial when they realised that nothing more could be achieved from the litigation, and NGN were in danger of turning the focus of the case away from their own unlawful hacking activities and back onto the private lives of Charlotte’s parents, and her mother in particular.”

The full text of the statement read out by Mike Brookes on behalf of Charlotte Church and her parents appears below:

Solicitor for the Claimant

1. My Lord I represent the Claimants in this action, and my learned friend, Michael Silverleaf QC, represents the First Defendant.

2. The Claimants are a family. The daughter is the well-known professional singer Charlotte Church, who has been in the public eye from the age of 11 when her singing career began. Maria Church and James Church are also Claimants. They are not well known or famous. They are Charlotte’s parents.

3. The First Defendant, NGN, was the publisher of The News of the World which, as we know, was closed in July 2011. The Second Defendant, Glenn Mulcaire, was a private investigator who worked for NGN.

4. Charlotte’s talents as a professional singer have brought with them the usual trappings of public attention. These have been exacerbated in Charlotte’s case given that she had to learn to deal with them from a very young age. The tabloid press have had a particular interest in her. The News of the World was no exception.

5. Through these proceedings, a flavour of what Charlotte has been subjected to has finally been revealed, and now admitted by NGN. The News of the World targeted Charlotte and her voicemail messages repeatedly, and in doing so unlawfully obtained her private medical information and details of her personal relationships with her family and friends. Even her first teenage boyfriend. They then ran stories about Charlotte using this information. It began in 2002 when Charlotte was just 16 years old and continued for many years.

6. Charlotte was also regularly harassed and even placed under surveillance by the News of the World and those paid by them. They followed the every move of a teenage girl. We will never of course now know the full extent of what they did, because as we are aware, much of the data is now destroyed.

7. Charlotte’s parents, Maria and James are not in the public eye. They too, however, have not escaped the unwanted attentions of the News of the World. As these proceedings have revealed, their own privacy has been violated on a number of occasions. The motivation for this intrusion into the lives of two essentially private and ordinary individuals was to make money.

8. The couple’s voicemail messages were also targeted. James’s voicemail was hacked. They were also harassed by the News of the World and were put under surveillance. People working for the News of the World were paid to watch their every move. Maria in particular is a vulnerable person, with a complex medical history. The News of the World found out about this and published private details of her hospital treatment. At her lowest moment, the News of the World issued her with an ultimatum and coerced her into giving them an in depth interview about her self harming and attempted suicide. She felt she had no choice but to give the interview and was deeply traumatised by the publication of the story in the News of the World.

9. My Lord this is the real story. The one that the News of the World never ran. It is only due to the courage and determination of Maria, James and Charlotte that I am able to stand before you today to confirm these events, and tell you that finally, the News of the World have accepted responsibility for the way they have treated my clients.

10. They are apologising. That much goes without saying. They have also agreed, amongst other things, to pay the Church family £600,000 in damages and legal costs. The Churches would of course have much preferred to have been left alone by the News of the World, and never have had this happen to them. They hope, however, perhaps naively, that this can at least now draw a line under these sorts of practices, and allow the family to move on.

Counsel for the First Defendant

11. My Lord, on behalf of NGN, I accept everything Mr Brookes has said. I am here today to offer my clients’ sincere apologies to the Church family for the way they have been treated. NGN acknowledges that they should never have had to endure what they have suffered, and that NGN are liable for the damage that they have caused.

For further information please contact Mike Brookes at mikebrookes@leeandthompson.com

The advantage of a Regulation as opposed to a Directive would be to reduce room for contradictory interpretations in different Member States, thereby avoiding confusion. The EDPS says it will also “reduce the importance of determining the law applicable to processing operations within the EU, which is one of the most controversial aspects of the present system”. The principles of establishment and equipment currently regulate which Member State’s law applies to the processing of personal data. These principles would undoubtedly benefit from further clarification as part of the revision of the general data protection framework.

In addition to further harmonisation, the EDPS identified various major driving forces in the review of the European data protection framework. The views of the EDPS were largely mirrored by lawyers speaking on the subject at Midem in Cannes at the weekend. The rights of individuals will be strengthened by introducing mandatory data breach notification and the new right to be forgotten. The responsibility of data controllers will be reinforced by introducing the principles of accountability and ‘privacy by design’. Data protection authorities will be granted stronger enforcement powers. Ensuring the new data protection framework is ‘technologically neutral’ hopes to create legal certainly for a longer period.

What does this mean in practice?

You should be aware of the following, more specific, changes brought about by the draft Regulation which may have an impact on your business.

The right to be forgotten states that the data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, where certain grounds apply, including where the data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; and where the data subject withdraws consent on which the processing is based (Article 17).

The right to data portability states that the data subject shall have the right, where personal data are processed by electronic means and in a structured and commonly used format, to obtain from the controller a copy of data undergoing processing in an electronic and structured format which is commonly used and allows for further use by the data subject (Article 18).

In the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 24 hours after having become aware of it, notify the personal data breach to the supervisory authority (Article 31).

Organisations must take privacy initiatives meaning that a company is not free to introduce new processing until the data controller or the data processor acting on the controller’s behalf carries out a data protection impact assessment of the envisaged processing operations (Article 33).

A Data Protection Officer must be appointed for private companies of more than 250 employees (Article 35).

For more information please see http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf.

1. “Shame”, the second film from director Steve McQueen (“Hunger”). The script was written by Steve McQueen and Abi Morgan and stars Michael Fassbender and Carey Mulligan. It was shot in New York and was produced by Iain Canning and Emile Sherman (producers of “The King’s Speech”). The film is released by Momentum Pictures.

2. “Coriolanus”, the directorial debut for Ralph Fiennes. The script was written by Oscar winning writer John Logan and stars Ralph Fiennes, Gerard Butler, Vanessa Redgrave and Brian Cox. It was shot in Serbia and was produced by Colin Vaines (“My Week with Marilyn”), Julia Taylor-Stanley (“The Tempest”) and Gaby Tana (“The Duchess”). The film is released by Lions Gate UK.

3. “W.E.”, the story of Wallis and Edward with a contemporary storyline co-written and directed by Madonna. It stars Andrea Riseborough (as Wallis Simpson) and Abbie Cornish. The film was principally shot in London with shoots in New York and France and was produced by Kris Thykier (“The Debt”, “Harry Brown”). The film is released by StudioCanal.

Christos said “We are delighted to have worked closely with the producers and the production on three such diverse films over the last year. Each has had its own unique challenges when putting the package together to close the financing, production and distribution elements and it has been a pleasure to be part of their realisation”.

Sky stated: “We have received a court order requiring us to block access to this illegal website, which we did on 13th December 2011… As and when clear and legally robust evidence of copyright theft is presented, we will take appropriate action in respect to site blocking, which will include complying with court orders”.

In July the High Court ordered BT to prevent its customers accessing Newzbin2. In October, following further court hearings involving the ISP and the Motion Picture Association (MPA), the court ordered BT to use its ‘Cleanfeed’ filtering technology to “block or attempt to block” its customers’ access to Newzbin2.

TalkTalk and Virgin have said that they would only act if ordered to do so by a court. Neither TalkTalk nor Virgin has subsequently received court orders and so they have not followed Sky in preventing access to Newzbin2.

A Virgin Media spokesperson states: “As a responsible ISP, we will comply with any court order addressed to us but strongly believe such deterrents need to be accompanied by compelling legal alternatives, such as our agreement with Spotify, which give consumers access to content at the right price.”

TalkTalk states: “We are not in principle against blocking provided a court decides. We have received no such order.”

“Our mid-term report can be summed up by the schoolteacher’s favourite clichés “could do better” and “must try harder.” Many people running websites will still be thinking that implementing the law is an impossible task. But they now need to get to work. Over the last few months we’ve been speaking to and working with businesses and organisations that are getting on with it and setting the standard. My message to others is – if they can do it, why can’t you?”

Although people want a prescriptive checklist detailing exactly what they need to do to comply, the ICO believes that those actually running websites are better placed to know what will work in their specific case. Updated guidance for UK website owners sets out specific practical examples of what enforcement may entail. Key points set out in the amended cookies advice include more detail on what is meant by consent. The advice says ‘consent must involve some form of communication where an individual knowingly indicates their acceptance.’ The guidance explains that cookies used for online shopping baskets and ones that help keep user data safe are likely to be exempt from complying with the rules. However, cookies used for most other purposes including analytical, first and third party advertising, and ones that recognise when a user has returned to a website, will need to comply.

Achieving compliance in relation to third party cookies is one of the most challenging areas. The ICO is working with other European data protection authorities and the industry to assist in addressing the complexities and finding the right answers.

As before, if you would like any advice on this issue please contact jocelynwhinney@leeandthompson.com