BGH - Art exhibitions in an online archive

In a decision (I ZR 127/09) of October 2010 the German Bundesgerichtshof had to decide on the legality of the online archiving of reports about art exhibitions under Article 50 German Copyright Act (UrhG). The case was brought by the VG Bild-Kunst (the collecting society image and art) against an online news publisher who had illustrated its reports about art exhibitions with images of the works of arts on display.

Article 50 UrhG stipulates that the for ‘the purposes of reporting about events of the day by broadcasting or through similar technical means, in newspapers, periodicals and other printed matter or by means of other data carriers, which are mainly devoted to current event, as well as in films, the reproduction, distribution or and public communication of works, that can be perceived in the course of the reporting of such events, is justified to the extent as this is necessary for the purposes of this reporting’.

Thus, on the face of it, reports can legally include images of art for as long as the reports are about events of the day and the images are used for the purposes of illustrating the report. The reports about art exhibitions which the Bundesgerichtshof had to assess included the depiction of works of art, which due to their online archiving, could be regarded as permanent rather than current. However, the Bundesgerichtshof decided that reporting on current events under Article 50 UrhG was only permissible for as long as the event could still be regarded as an ‘event of the day’.

The court of appeal (Regional Court of Braunschweig) had decided that a permanent archiving of such reports was within the ambit of Article 50 UrhG and taken the view that the relevant time was when the respective report was added to the archive. If the reports had still been current at the point of being archived, then the reports including the depictions of the works had to be considered as permissible reports about an ‘event of the day’ in the sense of Article 50 UrhG. As such, the court of appeal had concluded that the depictions of works of art had not become illegal just because of the time that had passed. In particular, the court of appeal had found that there was not duty for the press to constantly check its online archives to establish whether the reports were still up-to-date.

On further appeal, the Bundesgerichtshof disagreed with the court of appeal’s view. The Bundesgerichtshof referred to its earlier precedents in the ‘Zeitungsbericht als Tagesereignis’ (I ZR 285/99 - newspaper report as event of the day) and ’TV-Total’ (I ZR 42/05) cases and decided that an event was an 'event of the day' in the sense of Article 50 UrhG for as long as the public regarded the report as reporting of an event of the present. It followed that one had to differentiate between the 1) reproduction and distribution of the reports on the one hand and 2) the question of making them publicly accessible in archives on the other hand.

In the first case, the art exhibition had to be current only at the point of the reproduction and distribution of the reports. However, where the reports were made permanently accessible to the public, they had to remain current for the whole time access was granted. The further Bundesgerichtshof disagreed with the court of appeal and held that checking the archive with a view to it being up to date was not too much to ask of the defedant. The Bundesgerichtshof stressed in this context that the claimant in the proceedings, the VG Bild-Kunst, allowed the press to publish its reports on the art exhibitions on the internet for a period of four weeks before the beginning of an exhibition until four weeks after they exhibtions had ended. In view of the judges a deletion of the reports after this period of time was easily possible and could be expected.

The Bundesgerichtshof further denied the defense under Article 53 (2) No. 2 UrhG which only allows the reproduction of copies for an internal archive or internal use. Furthermore, the court held that the defendant could also not invoke the right of quotation under Article 51 UrhG since reports about art exhibition s did not include any separate finding s about the works in the images had been used as proof. Consequently, the court found that the images of the works of arts were not used for the purposes of quotation.

The decision can be retrieved from the court’s website by clicking here.

Letter from AmeriKat: August Bits 'n Bobs

The AmeriKat will be taking advantage of the quiet August month in litigation to have a break for the next two weeks. Save for a massively important IP event to occur in the meantime, she will be scampering back to her weekly Letter in early September.

A little known fact about the AmeriKat that rarely surfaces during her legal work is that she plays the piano. Since the very elementary phases of her kittenhood she has enjoyed marching her paws up and down the keyboard for hours to Gershwin, Chopin and Beethoven. There was and still is nothing the AmeriKat loves more then grabbing a stack of brand new unseen sheet music and sight-reading pieces for hours. This ability to sight-read anything frustrated her teachers as it inevitably meant the AmeriKat spent less time practising one piece than reading them all, but it was unstoppable guilty pleasure. In the earlier days of the Internet she would try to find sheet music available on-line but there was little there of interest. In the rare instance music was available, the hollow printouts lacked the soul of the thickly bounded music books that the AmeriKat so enjoyed.

Don't steal this sheet! - Apparently things have progressed since the days the AmeriKat tried to find sheet music on-line. Although not breaking news, some food for thought recently came to the AmeriKat's attention via National Public Radio on this issue. NPR recently reported on the issue of sheet music piracy after Tony Award-winning songwriter, Jason Robert Brown, engaged in conversations with members of a peer-2-peer network who were sharing his sheet music. This followed his discovery of around 4,000 individuals offering his sheet music up for the taking. Brown estimates that about one-third of his income comes from the sale of his sheet music and called the discovery of the 4,000 individuals an "epidemic". Brown wrote to 10% of the "epidemic" asking them to stop sharing his music - all of whom reportedly agreed. He published the correspondence on his blog, including the exchange with an individual known as Eleanor who engaged the composer with an economic justification for the file-sharing, i.e., one instance of piracy can result in more exposure for the artist and thus more business.

A Stanford Law School fellow in IP, Alex Feerst, wrote to Brown following the exchange and says that the music publishing industry, like the recording industry, is living in the past:

"The existing copyright law directs a lot of money to the middlemen in this question. In the past, that was appropriate, because printing music, distributing music, pressing CDs - these are expensive, have been done on a large scale and they cost money. Now that the costs have really gone down, because of the Internet, those types of costs need to re-examined. And the best thing that could happen to enrich artists, by passing more along to them, and to empower consumers, to have lower prices and choice over how they want to interact with this art."

NPR reports that in doing so Brown could obtain $3.99 per song instead of the $1.50 he gets now. But Brown told NPR that he liked the support he gets from a large music publisher and ASCAP. Economic justifications for stealing sheet music may be weak, but, says the AmeriKat, what is the economic justification for the support that comes at a cost to an artist of $2.49 per song? Will Brown ever see a return on that money in his lifetime?

Barbie better watch her back, Bratz is back - IPKat readers may have been following the fight between Barbie and Bratz (here and here) where in brief, Barbie sued Bratz for copyright infringement last year and won. The injunction to stop selling the Bratz dolls and to transition the line to Mattel was finally overturned at the end of July. Now last Monday, the owners of Bratz, MGA Entertainment, filed a counterclaim alleging that Mattel conducted an elaborate corporate espionage scheme in which Mattel employees, including general counsel Robert Normile and their attorneys from Quinn Emanuel, engaged in a racketeering conspiracy in order to gain access to MGA's private showrooms to obtain confidential information of Mattel's competitor's plans. (picture, left - Did Barbie's expertise as a Secret Agent come in handy during the alleged espionage?) According to Am Law Litigation Daily, Quinn Emanuel partner Michael Zeller said that MGA's recent claims were "second-rate tactics by desperate lawyers" that "won't survive the pleading stage." To read more about this hilarious new suit, see this article in Corporate Counsel.

PepsiCo stops stealth drinking - Two weeks ago, the world's largest snack-food manufacturer, PepsiCo, sued two Connecticut manufacturers for trade mark infringement for their "camouflage beer can wraps." The wraps, produced by Outrageous Ventures and PrankPlace.com, disguise the alcoholic beverage contained within with their mimicking of PepsiCo's Pepsi and Mountain Dew labels. PepsiCo said that the association of the Pepsi and Mountain Dew marks with illicit alcohol consumption is "abhorrent" and likely to "upset" consumers. Millions of frat-boys disagree...

Material Girl gets sued - According to Hollywood gossip site, TMZ, Madonna and her daughter's "Material Girl" clothing line (picture, right) is allegedly facing trouble and not just from the fashion police. Clothing company, L.A. Triumph, has allegedly file a trade mark infringement law suit against Madonna claiming she misappropriated the "Material Girl" trade mark that they claim to have been using on their clothing line since 1997. Madonna's song "Material Girl" was released in 1985. For more information see this article in CNN.

Harry Potter can't protect you now - Last week Warner Brothers filed an action in Switzerland to stop the trade mark registration and use of "Harry Popper" for condoms. The imagery includes the use of Harry Potter style glasses and a wand being wielded by the prophylactic (click here to see the image). The Harry Popper brand was launched in 2006 and has already been successfully challenged in other jurisdictions including Germany and Austria. For more information see these articles in The Hollywood Reporter and Telegraph.

Oracle sues Google - US software company, Oracle, filed a copyright and patent claim against Google two weeks ago in California alleging that Google's android mobile phone operating system infringe seven of its patents. These patents were acquired by Oracle after it acquired Sun Microsystems this past January. Google says they have yet to be served with the court documents. For more information see this article in Wired.

And now for something different - Courtsey of @Ivoryblossom comes a hilarious little tale of rudimentary trade mark infringement. The AmeriKat would hate to ruin it for you, so asks you to click here.

Japan's fair trade enforcers put the boot into JASRAC

The IPKat's Japanese friend and colleague Kaori Minami has just sent him this little piece of fascinating news from Japan. Writes Kaori:

"The Japan Fair Trade Commission (JFTC) issued a Cease and Desist Order against the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) on 27 February 2009, having found that JASRAC's method of comprehensive collection of royalties from broadcasters was a form of private monopolisation prohibited by the Antimonopoly Act (a brief English translation of the Order is obtainable from the JFTC’s website here)

JASRAC, a Japanese collecting society dealing with musical works, has almost a 100% market share.  It was the only collecting society for musical works until 2001, when a new law was enacted to reduce the requirements for operating a copyright management business in order to enable other collecting societies to enter the market. e-license Inc was the only company to go into this line of business with regard to broadcasting, but it has almost no such business at present.

According to the Order, all broadcasters are under an agreement with JASRAC, which is employing a method of comprehensive collection. By this method, a royalty is calculated by multiplying broadcasting business income by a fixed rate (1.5%). The actual number of musical works used by each broadcaster is not reported or reflected in the calculation. Broadcasters can pay the royalty on an individual use basis, but no broadcaster does so in that it is far more expensive than the comprehensive method. As a result, the total amount of royalty charged to the broadcaster will increase if it uses the musical works managed by other collecting societies and has to pay additional royalties to them. Although e-license managed musical works which were supposed to be popular, broadcasters rarely used them to avoid paying additional royalties.

JASRAC said in a press statement that they could hardly accept the Order. They are going to file an opposition and take every possible measure to against it. They basically say that the Order is wrong as it does not suggest any alternative collecting method, and amendment of the current method is not feasible by itself unless all the broadcasters agree to it. JASRAC also reportedly says that the current comprehensive method is convenient for broadcasters because they can avoid the time and cost of counting the number of broadcast musical works.

It is understandable to some extent that the current method is beneficial to users. JASRAC’s dominance was accepted for over 60 years, so it may not be easy for a competitor to enter into the market. Nevertheless, it would not be healthy to have no competitor in the market, and the Order may contribute to the transparency of the licensing business in Japan".

The IPKat says, we've been so preoccupied with the battle between collecting societies and competition authorities in Europe for so long that we might easily think this is a purely European problem. Manifestly it is not.  Merpel asks, how seriously can arguments based on convenience be raised in an age of white-hot technology in which it should be the simplest thing to have all relevant broadcast material logged, timed and weighed out in order to provide precise user data?

Teach yourself Japanese here

Broadcast yourself here

Is STIM a bully? It all depends ...

Earlier this month the Court of Justice of the European Communities ruled on the criteria for establishing validity under European competition law of an allegedly abusive and discriminatory scheme for the licensing of copyright works by a copyright collecting society. This ruling can be found in Case C‑52/07, Kanal 5 Ltd and TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM), a decision dated 11 December 2008, in response to a reference for a preliminary ruling from the Marknadsdomstolen (the Swedish Market Court) on February 2007.

In short STIM (the Swedish Performing Rights Society) operated three different methods for charging TV channels to use its members' music in television broadcasts:

* Kanal 5 and TV4 (both private commercial channels) were charged a proportion of their revenue derived from advertising and subscriptions, in relation to the amount of time for which STIM's works were transmitted, the charge being made at the end of each year.

* SVT (a public broadcaster) was charged a proportion of an annual hypothetical revenue sum, the charge being fixed at the beginning of each year and without taking into account the actual duration of broadcasts of STIM's works.

* TV channels that had yet to register any significant turnover were charged a minimal amount, taking into account (i) the actual duration of broadcasts of STIM's music and (ii) the number of viewers.

Kanal 5 and TV4 claimed that STIM was abusing its dominant position under Article 82 of the EC Treaty since STIM's fee model was discriminatory and, in their case, led to excessive charges; the companies also argued that there was insufficient linkage between the cost of STIM's licence and their actual revenues.

The Marknadsdomstolen stayed the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Is Article 82 EC to be interpreted as meaning that a practice constitutes abuse of a dominant position where a copyright management organisation which has a de facto monopoly position in a Member State applies to or imposes in respect of commercial television channels a remuneration model for the right to make available music in television broadcasts directed at the general public which involves the remuneration being calculated as a proportion of the television channels’ revenue from such television broadcasts by those channels?

(2) Is Article 82 EC to be interpreted as meaning that a practice constitutes abuse of a dominant position where a copyright management organisation which has a de facto monopoly position in a Member State applies to or imposes in respect of commercial television channels a remuneration model for the right to make available music in television broadcasts directed at the general public which involves the remuneration being calculated as a proportion of the television channels’ revenue from such television broadcasts by those channels, where there is no clear link between the revenue and what the copyright management organisation makes available, that is, authorisation to perform copyright-protected music, as is often the case with, for example, news and sports broadcasts and where revenue increases as a result of development of programme charts, investments in technology and customised solutions?

(3) Is the answer to Question A or B [whatever happened to (1) and (2), the IPKat wonders] affected by the fact that it is possible to identify and quantify both the music performed and viewing?

(4) Is the answer to Question A or B affected by the fact that the remuneration model (revenue model) is not applied in a similar manner in respect of a public service company?’

The Court of Justice has given its answer:

"1. Article 82 EC must be interpreted as meaning that a copyright management organisation with a dominant position on a substantial part of the common market does not abuse that position where, with respect to remuneration paid for the television broadcast of musical works protected by copyright, it applies to commercial television channels a remuneration model according to which the amount of the royalties corresponds partly to the revenue of those channels, provided that that part is proportionate overall to the quantity of musical works protected by copyright actually broadcast or likely to be broadcast, unless another method enables the use of those works and the audience to be identified more precisely without however resulting in a disproportionate increase in the costs incurred for the management of contracts and the supervision of the use of those works.

2. Article 82 EC must be interpreted as meaning that, by calculating the royalties with respect to remuneration paid for the broadcast of musical works protected by copyright in a different manner according to whether the companies concerned are commercial companies or public service undertakings, a copyright management organisation is likely to exploit in an abusive manner its dominant position within the meaning of that article if it applies with respect to those companies dissimilar conditions to equivalent services and if it places them as a result at a competitive disadvantage, unless such a practice may be objectively justified".

In other words, the IPKat says, never mind the principle -- just focus on the detail. Licence revenue based on the licensee's income is not an abuse except where it is, while discriminatory charging is an abuse except where it isn't. The reality is that abusive licensing is determined by looking at (i) proportionality, (ii) the licensor's administrative convenience and (iii) objective justification. Merpel says, there are still some interesting questions for the Swedish court to ponder as to the nature of the market(s) in which TV channels operate. In one sense they all compete with one another for the viewer's attention, while in another they do not (eg a sports channel is hardly substitutable for a diet of soap operas or nature programmes). It will presumably be necessary to assess this issue as a preliminary to determining whether discriminatory licence terms can be justified.

IPKat note on the Advocate General's Opinion -- which is now available in fifteen EU official languages, including Maltese, but not English -- here
See what's on Swedish TV here
All the Swedish TV channels here

Copyright royalties and competition: the AG opines on yet another angle

Available so far in just nine European languages -- none of which is English -- the Opinion of the Advocate General opinion in Case C-52/07 Kanal 5 and TV 4 v STIM makes interesting reading (unless you don't read the right languages, in which case it looks quite menacing on the page). It seems to the IPKat that the copyright/competition law interface is becoming more important by the day, so he's getting very excited about the outcome of this case.

This reference arose out of a dispute between the Swedish music copyright collection society STIM and the Swedish television broadcasters TV 4 and Kanal 5. STM currently sets royalties for the use of its portfolio of works by TV 4 and Kanal 5 as a percentage of income. Separate royalty rates for advertising and subscription income were set by reference to the proportion of airtime devoted to music, using a banded structure. In contrast, for the State-funded broadcaster SVT, which had no advertising or subscription revenues, the music royalty was calculated on the basis of notional advertising income and an estimate of the proportion of airtime which that station devoted to music. As for smaller broadcasters, royalties were based on audience figures and the proportion of airtime devoted to music.

TV 4 and Kanal 5 were not happy about this: after the Swedish competition authority rejected their complaints they took the matter to the relevant Swedish tribunal, which referred four questions to the ECJ concerning the application of Article 82 EC. These questions sought advice on whether particular methods for the calculation of royalties would constitute an abusive exercise of their collective copyrights. In particular, TV 4 and Kanal 5 maintained that the calculation of royalties by STIM's method was abusive because

* that method failed to take account of available information about the actual use made of the copyright licences by the broadcasters: music is typically broadcast at periods of low audience, to which little advertising revenue is attributable. What's more, music is not broadcast very much in the middle of sports programmes which, being very popular, presumably help to drive up subscription income.

* it discriminated between them and the State broadcaster SVT (this submission presumably implies an allegation that there is a relevant form of competition between SVT and the commercial broadcasters).

The UK intervened, arguing that the questions to be determined were whether the charges were sufficiently linked to use and whether public and private broadcasters competed with each other, these both being matters for the Swedish court rather than the ECJ to decide.

According to the Advocate General:

* the law on exploitative abuse (e.g. is a dominant enterprise acting "to reap trading benefits which it would not have reaped if there had been normal and sufficiently effective competition"?) governs the broadcasters' claims concerning the lack of link between use and royalties.

* the levying of a charge in respect of a fixed proportion of turnover without any reference to the amount of music broadcast would be abusive and could not be justified by administrative convenience.

* before a charging method could be found to be abusive due to an alleged lack of link between the royalties and the benefits to the broadcaster of using music, one must first identify an alternative method that might provide a more accurate, and to reject any objective justification of the less accurate method by reference to, for example, administrative costs.

* in general, no conclusion about the abusive character of a charging method can be reached in the abstract.

* a for discriminatory abuse, the ECJ should leave it to the Swedish court to decide (i) whether the difference in calculation methods is actually discriminatory and (ii) whether SVT competes with private broadcasters in a "downstream market for television".

The opinion does not discuss whether competition for audiences without a commercial purpose on the part of SVT would be a relevant form of competition for this purpose.

The IPKat thanks Franck Latrémolière (Reckon), for letting this monolingual moggie know what's going on.

Collecting societies find new way of spending their money

Displaying a previously unrevealed talent for reading legal decisions in Dutch, and with only a tiny bit of help from his friend Kristof Neefs (Laga), the IPKat brings news of a dramatic development in the Netherlands. In essence, a Dutch interim judge in Haarlem has issued a preliminary injunction prohibiting BUMA (a Dutch copyright collecting society) from granting any further licences for the online sale of the repertoire of works administered by the Performing Rights Society (PRS), in so far as those licences extend beyond the territory of the Netherlands. BUMA had previously granted a licence for the territory of the entire European Community to beatport.com.

PRS maintained that the reciprocal agreements between collecting societies did not grant BUMA any royalty-collecting rights beyond the Dutch territory. In its defence, BUMA attempted to rely on the Commission's recent decision in CISAC (see IP Finance post here). BUMA argued that any territorial restriction in its reciprocal representation agreements is null and void, as these restrictions are anticompetitive and infringe Article 81 EC. The judge in the interim proceedings rejected BUMA's argument, stating that even if the territorial restrictions in the agreements are invalid, BUMA still has no right to license the PRS repertoire beyond the territory of the Netherlands.

This is (says Kristof) an interesting ruling in light of the CISAC decision and the Commission's paper on creative content online. The IPKat agrees, though he is a little surprised to see collecting societies breaking rank like this rather than all being on the same side. Yes indeed, says Merpel: when copyright collecting societies litigate against one other, the cost is borne by the rights owners whom they are supposed to benefit.

BUMA goes beyond the European Union here, and also here
Naughty meaning of BUMA here

Indian PPL has no right to enforce copyright

By a strange coincidence, only minutes after posting the piece below about German copyright owners being able to sue for damages for infringement of their dramatic performance rights even though the right to perform the music has been assigned to a collecting society, we have some news from India, from the IPKat's old friend Mustafa Safiyuddin (DSK Legal).

Right: learning the ropes -- training for PPL inspectors enables them to mix with infringing Indian performers without attracting attention

This news is all about -- you probably didn't guess it -- whether collecting societies can enforce right in respect of unauthorised public performances. The Delhi High Court delivered a salient ruling earlier this month in Phonographic Performance Limited v Hotel Gold Regency and others (MANU/DE/0942/2008), on which Mustafa says:

"In a landmark decision, Phonographic Performance Limited v Hotel Gold Regency and others, the Delhi High Court held that copyright societies such as PPL, representing the interest of the music companies, cannot initiate copyright infringement actions to protect the interest of their members against unauthorized public performances of sound recordings. According to the Court, the Indian copyright statute only permits a copyright owner or its exclusive licensee to initiate an action for infringement. Since the copyright society PPL is neither the copyright owner or the exclusive licensee of the sound recording of its member companies, it is debarred from initiating such actions against unauthorized communication of the sound recordings to the public through a radio broadcast or a telecast or any other public performance. This decision will create enormous difficulties for the copyright society PPL and its member music companies in enforcing their copyrights and can have a deep impact in the collection of royalties for public performances of sound recordings.

Music companies such as Saregama have granted authorizations to PPL to administer their right of communication to the public in respect of their sound recordings and to administer such right by the grant of licences and collection of royalties. The music companies’ agreements with PPL also authorize PPL to initiate any actions for the enforcement of their rights for which authorizations were granted to PPL. Nevertheless the Delhi High Court held that PPL merely had the authority to administer the licences and collect royalties from the licensees -- but the statute did not permit PPL to initiate a copyright action. This is in view of the statutory provisions which only authorize a copyright owner or its exclusive licensee to initiate an infringement action and PPL was neither the copyright owner nor an exclusive licensee.

By way of further elucidation, the court held that the authority that a copyright owner gives to a copyright society for the collection of fees relates to the fees in respect of the licences granted by the copyright societies. It is arguable that such an authority to an agent like PPL would include the authority to recover royalties from delinquent licensees by filing a civil suit. However, the situation is entirely different where persons to whom no licence has been granted by the copyright society unauthorisedly uses the copyright work. In such cases where no licences have been granted to such a person, the copyright society would have no authority to file a suit against such persons either for infringement or for recovery of royalties or for damages. The suit, if any, would have to be filed by the copyright owner or its exclusive licensees".

The IPKat feels some sympathy with copyright owners here, who were almost certainly not alert to the problem, or its very simple solution, at the moment at which they entrusted the administration of their rights to the PPL. Doubtless a lot of paperwork and inconvenience will result if PPL is to be vested with the necessary powers. Merpel says, not all is lost -- presumably the copyright owners can still sue in their own names.

See post and comments on Spicy IP here
Cats of India here

UK-IPO response to performers' term extension

The UK IPO appears to have given a rather chilly reception to the European Commission’s proposal to extend performers’ rights to 95 years. A press release quotes the Minister for IP, Baroness Delyth Morgan, as saying:

Because copyright represents a monopoly we need to be very clear that the circumstances justify an extension. We will therefore need to consider these proposals carefully to understand how they would work and what the benefits are likely to be…

She continues by encouraging members of public to contact the IPO with comments on the proposal by the end of August (contact details are in the press release).

The press release goes on to note that the Gowers Review found that an extension of copyright would not be beneficial to either consumers or the industry.

The IPKat agrees. 50 years of protection is hardly derisory. When we alter IP rights, we alter the competitive balance. The balancing exercise is a complex one and knee jerk or populist proposals don’t give the opportunity for this balance to be made adequately. However, the Commission seem to be rather taken with the idea of extending the term.

While the IPKat is on the subject of EU copyright, he neglected to mention last week that the Commission has adopted a decision which prohibits European collecting societies from limiting membership to authors in their particular Member State. Thanks to Maria Mercedes Frabboni for giving him a prod on this. See the IPKat’s comment on the draft of this decision here.

Commission report on collecting societies draft; Intel tomorrow

Collecting societies under threat?

The IPKat has been remiss thus far in failing to report on a draft decision from the European Commission which, if adopted, would lead to major reforms of Europe's music collecting societies. According to the Guardian, the draft, which has not yet been signed by EU Commissioner Neelie Kroes, berates the fact that the collecting societies operate as monopolies within their national borders, partitioning the EU market on national lines. It gives the collecting societies 90 days to terminate their agreements and calls on them to cross-license.

The draft has been criticised for not going far enough to break down national monopolies.

The IPKat notes that, from what little information is available, it seems that the Commission isn't too worried about the notion of collecting societies, but rather about the way in which they operate territorially. This territoriality is understandable, since copyright has grown up as a system of national rights with a slightly different focus in the different Member States.

Tomorrow

Tomorrow the Advocate General will deliver his Opinion in Intel v CPM - a UK reference on dilution. The IPKat will endeavour to bring you the lowdown tomorrow - as long as it isn't only in French.