Cory Doctorow makes some good points on the use and abuse of copyright law, in response to some pretty churlish criticism recently directed his way. I particularly liked this:
… I don’t care if you want to attempt to stop people from copying your work over the internet, or if you plan on building a business around this idea. I mean, it sounds daft to me, but I’ve been surprised before.
But here’s what I do care about. I care if your plan involves using “digital rights management” technologies that prohibit people from opening up and improving their own property; if your plan requires that online services censor their user submissions; if your plan involves disconnecting whole families from the internet because they are accused of infringement; if your plan involves bulk surveillance of the internet to catch infringers, if your plan requires extraordinarily complex legislation to be shoved through parliament without democratic debate; if your plan prohibits me from keeping online videos of my personal life private because you won’t be able to catch infringers if you can’t spy on every video.
The use of trade marks as non-primary branding is increasingly a feature of consumer product marketing and it will be of reassurance to companies engaged in such marketing to note Macken J’s observation that she does ‘not consider there is anything in law which prevents an ingredient from being part and parcel of the marketing or promotion of the product of which it is an essential component’.
The second in my irregular series of lesser known crimes, like the first, relates to unlawfully claiming ownership of an intellectual property right.
Section 141 of the Copyright and Related Rights Act 2000 provides:
A person who, for financial gain, makes a claim to enjoy a right under this Part [ie. copyright] which is, and which he or she knows or has reason to believe is, false, shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.
The penalties are far more serious that those applicable to the trade mark offence. It was introduced to the legislation as an amendment proposed by the then Labour Senator Brendan Ryan, who proposed a maximum penalty of £10 million. He saw it as a necessary counterbalance to the “draconian powers” afforded to copyright owners in the legislation.
[T]here is nothing to suggest that a person who, maliciously and for monetary gain, abuses those powers would pay a penalty other than through the civil courts – even that is patchy and requires clarification … if such a scale of unprecedented powers is to be granted, there must be a balanced penalty for abuse of those powers.
Section 141 is the type of offence companies like YouTube are talking about when they say in their copyright notice:
Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation of copyright infringement by using this process. Don’t make false claims!
However, the process they refer to is their own notice-and-takedown procedure and the adverse legal consequences under section 141 require that the claim is made for financial gain. I expect that section 141 was envisaged as addressing false claims for damages. While I’m not aware of any prosecutions under section 141, it is conceivable that someone could gain from having someone’s videos removed from YouTube (eg. if the complainant ran a paid site featuring the same video under licence).
Do you use the ® symbol and, if so, do you know what it means? If you don’t, you might be committing an offence.
I have written before about the different legal structures under which a business may be run. The only reference to trade mark law in that post was to point out that a registered business name is not, of itself, a trade mark.
The Trade Marks Act 1996 defines a trade mark as “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.” This is an example of legalese.
The Patents Office, which handles the registration of marks, offers a more helpful definition:
A trade mark is the means by which a business identifies its goods or services and distinguishes them from the goods and services supplied by other businesses.
You might identify your business using a company or registered business name and therefore use it as a trade mark. However, it is not a registered trade mark. A registered trade mark provides a monopoly on the use of trade mark: it stops others from using it. Of course, there are limitations to that monopoly and not all marks can be registered. See here for a good FAQ on registered trade marks.
Whatever about the detail of trade mark law, the ™ and ® symbols are familiar to us all. But what do they mean?
Using the ™ symbol indicates that you are using a name or logo as a trade mark. It does not offer specific protection. However, you might take an action for passing off (which is like suing on the basis of an unregistered trade mark) and will obviously require evidence of using the mark as a trade mark. Use accompanied by the ™ sign may assist.
Using the ® symbol indicates that the name or logo is registered as a trade mark.
The difference is not merely technical. Section 94 of the Trade Marks Act 1996 provides that it is an offence to falsely represent that a mark is registered. The fine was originally a maximum of £1,000 with a further fine of up to £100 per day for a continuing offence.
The recent Fines Act 2010, which has been signed into law by the President but has not yet been commenced by the Minister for Justice and Law Reform, will increase these fines. If my reading of the Act is correct, a section 94 offence will become a Class C offence and therefore carry a maximum fine of €2,500, with the daily fine for continuing offences becoming a Class E offence with a fine of up to €500 per day.
Adrian Weckler has published a copy of the intended notification to be issued by eircom to its customers when accused of unlawful filesharing by the Irish recording industry (represented by IRMA). It is, as warning letters go, extremely polite.
I mentioned last month that this “three strikes” system agreed between IRMA and eircom was approved by the High Court (for data protection purposes) on the basis that IRMA would not know “that the infringer is a particular person living in a particular place in Ireland”. In fact, Charleton J. said that all IRMA will “know is that a particular IP address has been involved in the downloading.” However, it appears that DtecNet, who will collect IP addresses for IRMA, has the capability to collect more information than just IP addresses. Whether such capabilites are to be used as part of the IRMA/eircom system is not known.
My suspicions were raised by eircom’s statement on their website that IRMA will send notifications to eircom “containing among other things the IP addresses of individuals”. Such suspicions could be unfounded; for example, IRMA might be sending eircom a list of shared files along with the IP addresses and that information might not be personal data.
However, the template letter reproduced by Adrian says:
Some of the details of the notification supplied by IRMA are set out below …
Is it not strange that eircom repeatedly notes that IRMA will be supplying them with more details than are apparently necessary for the purposes of the three strikes system.
The graduated response system to tackle unlawful filesharing online, agreed as part of an out-of-court settlement between the Irish recording industry and eircom, was approved by the Irish High Court last month. Mr. Justice Charleton’s judgment concluded that the “parties can … lawfully proceed to implement the settlement”, though his judgment relates only to the specific question of compatibility with the Data Protection Acts 1988 and 2003.
Strike 1 to the record industry
eircom has now implemented the graduated response system on a pilot basis and details are available on its website. The FAQs say that IRMA will supply eircom with IP addresses which eircom will match to its customers, who will then receive warnings about alleged unlawful downloading. If warnings are ignored, service may be suspended for 7 days and the customer will not be charged for those 7 days of lost service. On a subsequent alleged infringement, service will be withdrawn for 12 months. If a customer disputes an allegation that their service has been used for unlawful downloading, they can appeal to the eircom, who “will consider all customer appeals on a case by case basis.”
The concerns about graduated response primarily arise out of disconnection on the basis of complaint, rather than court order, and that the sanction affects an entire household, rather than the individual alleged infringer. The latter point has gathered steam as the internet has taken on utility status. IRMA’s attitude to this is clear:
The European Parliament has been talking about internet access as a basic human right. It absolutely is not.
Dick Doyle, IRMA Director General
eircom emphasises that customer data will not be shared by eircom with any other party.
Under no circumstances will eircom be handing over customer details to any third party.
It is also stated that eircom won’t monitor network usage and that “[t]here are strict privacy laws that prohibit eircom from monitoring the online activities of individual customers.” Monitoring will be done by DtecNet on behalf of IRMA.
IRMA will send eircom notifications containing among other things the IP addresses of individuals they have detected as engaging in illegal file sharing in breach of copyright.
One wonders what those “other things” might be. Charleton J. said:
Neither DtecNet, or any similar service of detection, nor any of the plaintiffs whose copyright material is being infringed would ever know through this process that the infringer is a particular person living in a particular place in Ireland. What they do know is that a particular IP address has been involved in the downloading.
DtecNet’s solutions will automatically secure evidence against the infringer(s) and generate Cease & Desist letters that can be sent to the infringer(s) asking for immediate removal of the content.
This is a capability of their systems, not a detail of the IRMA/eircom agreement. But nevertheless, it appears that IRMA may be capable of gathering more than just IP addresses of alleged infringers. eircom might not share customer data with any other party, but it is not clear what data will be shared with it.
Today is National Famine Commemoration Day, which marks the Great Famine in Ireland. It is more a day of sombre reflection than celebration, but forms the hook on which I hang this: my first time hosting Blawg Review.
The ever-dedicated Blawg Review editor marked the day with a visit to Toronto's Ireland Park
The Great Famine looms large in Irish history. It remains an issue, evidenced by the report in today’s Irish Times that there were “raised eyebrows at the absence of any representative from the British embassy” at a commemoration ceremony. Recently, controversy also erupted over plans to hold an auction of Famine artefacts. The collection to be auctioned appears to have survived thanks to the document retention policies of Irish lawyers.
The collection was held by Stewart and Kincaid, a Dublin law firm that acted on behalf of landlords in the 1840s. Thousands of letters were sent to the law firm by rent collectors and sub-landlords explaining why their tenants had not paid, and by clergymen asking for compassion to be shown to starving parishioners. The documents were stored at another Dublin law firm until a decade ago when it is said they decided to throw them out as they were not relevant to the business.
The auction takes place tomorrow and while there are demands that the Irish government purchase the collection, the State’s current financial position suggests the papers might be more likely to cross the Atlantic.
Silver screen law
While Hollywood has occasionally concerned itself with the bellicose aspects of Irish history, there has been little dramatisation of the Great Famine. There is, however, Death or Canada, a docudrama which aims to tell “the compelling tale of how in 1847, the British Colony of Canada gave refuge to tens of thousands of Irish famine victims, who in turn were responsible for the building of North America as we know it today.” I missed it when it was broadcast on RTÉ but, having viewed the website, the IP lawyer in me can’t help but wonder if the logo used constitutes a State emblem and, if so, whether government consent was sought for its use.
On the topic of intellectual property and the movies, it seems that Iron Man 2 is “the most expensive movie ever made about an intellectual property dispute.” Maxwell Kennerly argues that the armoured suit at issue is not patented, but rather the subject of a trade secret. Unfortunately, I can’t read either post as I have yet to see the film and don’t want to prejudge the dispute.
Constitutional moments
Here in Ireland, there currently appears great interest (at least in media circles) in new constitutions and Second Republics. The debated deficiencies in the Irish constitution make an interesting contrast with that of the UK, which is thought to have worked well in producing a government from the “hung parliament” that the British electorate returned.
Fiona de Londrasargues that calls for a new Irish constitution are misguided and that, really, what we need is greater awareness of the 1937 Constitution, along with amendments to it.
Instead of ushering in a ‘new republic’ or ‘renewed republic’ by means of a new Constitution, we ought, I [say], to try to re-imagine our relationship with the State and to become more deeply engaged with the Constitution that we have.
undercurrents of 1930s fascism, or at any rate the Mediterranean version of it as found in Salazar’s Portugal with state-sponsored corporatism; the particular ethos of the Roman Catholic church at the time (which was anything but progressive or liberal); the kind of rural idyll for what de Valera called a ‘frugal society’; and a view of women that saw them as homemakers subservient to the male population.
The UK doesn’t have a written constitution, but constitutional and rights-related issues are equally topical in that jurisdiction since the Conservative/Liberal Democrat government announced its coalition agreement. Charon QC says that the British “system of law and justice is creaking, underfunded, under developed and is not really meeting the needs of all in society”, but that the new coalition government has not got off to a bad start, with their programme for government including many law reform elements, such as a “freedom bill”. Henry Porter is more forthright:
One of the great pleasures of last week was hearing Jack Straw speaking on the Today programme in that patient, reasonable way of the true autocrat, and suddenly realising that I never have to pay attention to him again. Nor for a very long time will I have to listen to Mandelson, Campbell, Clarke, Smith, Reid, Falconer, Blunkett, Woolas or Blears: they’re history and the New Labour project to extend state control into so many areas of our lives is incontestably over.
The coalition results from what they refer to as a “hung parliament” in the UK. This is the default arrangement in Irish politics, where coalitions are an established and often unfortunate part of governance. Now that the UK is flirting with European-style coalition government, it might alsoconsider the introduction of a written constitution.
Of course, written constitutions do not necessarily result in fewer troubles: the unresolved issues of blasphemy and abortion in the Irish Constitution receive attention from Eoin O’Dell and Brook Elliott-Buettner, respectively.
Quis custodiet?
The Guardian has launched a new legal section including an already-excellent selection of blog posts from its Guardian Legal Network. It has devoted a good deal of attention to a big US story combining law and politics: President Obama’s nominee for a vacant Supreme Court seat. It is unfortunate that the sexuality of the nominee is an issue but, more so, it is quite bizarre that a photograph of the young Elena Kagan appears to have sparked such speculation.
The face that launched a thousand blawg posts
The incident, which has shades of The Contender, highlights to Irish eyes the level of scrutiny, professional and political, which surrounds judicial appointments in the US. The highly politicised appointment process may be alien to Irish lawyers, but there is something impressive about the fanatical examination of a nominee’s record on particular legal issues.
Our judicial appointments system is superficially independent but remains political and although the process is far less politicised than in the US, it is still “shrouded in mystery“. Edward McGarr discusses one of the long-running issues in the Irish judiciary: the lack of independent oversight. It seems a judicial council might finally be on the way, but:
What complaints will it receive? Possibly not all it should.
Though I don’t hold such lofty aspirations as a seat on the Irish Supreme Court, I am glad to know that, should the opportunity ever present itself, my humble undergraduate results are unlikely to be pored over by the blawggers at the Wall Street Journal, of whom Jess Bravin informs us that Kagan got her worst grade, a B- in torts.
She did marginally better in Criminal Law, with a B, and managed a B+ in Administrative Law. For the rest, it was all A or A-, except for passing ungraded courses in Accounting and Copyright.
A tenuous Irish theme got me the job of hosting this Blawg Review, so, given my Limerick location, I can hardly miss the opportunity to throw in another such theme by reproducing Madeleine Begun Kane‘s Kagan limerick.
Obama’s What???
“Obama’s Katrina,” they say.
“Obama’s H. Miers,” they pray.
To the wingnuts give thanks
For reminding the ranks
Of the many ways Bush went astray.
The future is … ?
The rather terrifying way in which we may be sleepwalking into a potential dystopian future was highlighted by two issues covered in blawgs this week: Facebook’s privacy practices and the rise of “personal genomics”.
the Net is an astonishing achievement with the potential, only partly but tantalizingly realized to date, to become a true milestone in the history of human communication and a possibly unstoppable force for the spread of liberty and freedom around the globe.
He says that the internet is “under siege” and that work must be done to keep it open. He differs, however, with Kouchner as to what the threats to the internet are. It is clear that, like Google, Facebook now intends to become “the internet” for many of its users and as ever, the threat may come from governments and large corporations rather than extremist groups.
The manner in which it changes privacy policies and settings has come under fire and the EU’s Article 29 Working Group (Brussels-speak for the European group of privacy regulators) says that these changes are unacceptable. However, Benn Parrargues that protecting privacy is up to users, not Facebook; though he does agree that the changes should have been better communicated. He is surprised that the media has “pile[d] up” on Facebook over the privacy issue, but surely such pressure merely reflects the fact that the site has gained such critical mass that, like Google, it has become the establishment and must expect such critiques.
(By the way, like everything these days, the Irish National Famine Memorial Day has a Facebook page.)
Google’s CEO, Eric Schmidt, famously said:
If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.
Which sounds suspiciously like the “innocent have nothing to fear” defence, excellently filleted by Eoin O’Dell.
Businesses scared of the internet might be tempted to shut down access to social media sites like Facebook, but David Donoghue gives some advice to them about adopting a realistic social media policy. This may be of interest to Irish journalists, who recently underwent a period of public introspection when the unconfirmed death of one of the country’s most popular radio presenters became the subject of twitgossip (twossip?). The controversy resulted in plans to introduce a social media policy in the country’s largest broadcaster.
While the online sphere is increasingly regulated by private enterprise, it is refreshing to see this creative workers’ rights protest, staged in the lobby of a hotel, proceed without being shut down or silenced by the hotel’s management (though one expects they were taken by surprise by this all-singing-all-dancing troupe of protestors) (from Waging Nonviolence).
21st Century privacy concerns won’t be online-only: Dan Vorhaus outlines recent developments in direct-to-consumer genetic testing and asks whether regulation is on the way. He says that the debate has long existed as to whether “individuals are capable of handling their own genetic information” and concludes:
Tests once predominantly available only to early adopters capable of seeking them out online will now begin to appear on the shelves of thousands of neighborhood drugstores nationwide. To a greater degree than ever before, genetic testing will soon be available to mainstream America (and subject to the impulse buy). And that, for better or for worse, may be all that it takes to convince some regulators that the time for action is finally at hand.
As with Facebook, there is a gap between theory and reality, between policy and consumer action. These products, whether they be Facebook’s instant personalisation service or chemist shop genetic tests, are flooding the market. Thought as to how they should be regulated struggles to keep up. Meanwhile, Ted Hennessydiscusses the scarily-titled Genetic Information Non-Discrimination Act 2008 in the context of employment law. On this side of the pond, we similarly regulate the use of genetic data, but have tucked such regulation away in less exciting secondary legislation.
Of course, genetic discrimination is merely a veiled, sophisticated form of old-fashioned discrimination, in relation to which Bill Egnormakes some very good points as he notes the difference between immigrants of colour in the US and Irish illegals, who might pass below the radar.
It is the obvious problem with uneven enforcement that makes this law so pernicious. Who does an immigrant look like?
Such double standards are not unknown in Ireland, where Eastern European and non-European immigrants are called “non nationals”, but English, French, American and German residents are referred to by their nationality. And here, of course, Irish immigrants in the US are known as “undocumented“.
Still undocumented?
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
The nature of a registered business name (RBN) is a common source of confusion and misunderstanding. A frequent misconception is that an RBN is a form of trade mark: it is not. Having an RBN is a simple compliance requirement and does not offer any protection in the name registered.
By an individual (as a sole trader). An individual running a business is personally and fully liable if sued. Sole traders do not have to register with the Companies Registration Office (CRO) and are governed by the general law, rather than any specific regulatory law.
By a partnership. The individual members of the partnership are jointly and severally liable if sued. Most partnerships do not register with the CRO. They are governed by the Partnership Act 1890. When sued, the defendant is listed with the individual partners named individually along with the partnership name (eg. Joe Bloggs v. Jane Bloggs, Jack Bloggs and Joanne Bloggs, practising under the name and style of Bloggs & Partners Solicitors).
By a limited company. There are various types of limited company and additional incorporation options have been proposed. Unlike a sole trader or partnership, a limited company is a legal person in its own right, distinct from its shareholders. The liability of shareholders is limited in accordance with the share structure of the company. The Companies Acts regulate the operation of limited companies.
Using a business name
Whatever of the above structures one uses to carry on business, an RBN will often be necessary. Where a name is used in the course of business that is not true name of the business, the Registration of Business Names Act 1963 requires that the name is registered with the CRO.
The following are common examples of when registration is required:
Jane Bloggs runs a corner shop. If she calls the shop Bloggs’ Stores, she must register that as an RBN. She will then be Jane Bloggs trading as (t/a) Bloggs’ Stores.
Joe Bloggs runs a construction company, Joe Bloggs Construction Limited. If the company trades as Bloggs’ Builders it must register that name. The company will then be Joe Bloggs Construction Limited t/a Bloggs’ Builders. A company cannot trade as another company – eg. Joe Bloggs Construction Limited t/a Bloggs Limited.
Why must you register?
The system of business name registration allows other people to find out who runs the business. This is not a problem if a business is run under a person’s own name or under a company name, which can be searched against in the CRO. But if an assumed name is used, how is a customer or supplier to know what legal entity is behind the business? The question often arises as follows: who do I sue?
The requirements of the Registration of Business Names Act 1963 are often not observed and, it would seem, enforcement is not a priority. The equivalent legislation in the UK was repealed in 1982 and business name registrations are no longer possible there.
What a business name is not
A form of company. You might register a business name with the CRO, but this is not incorporation. The registration merely puts on public record that the registrant carries on business using the registered name.
A trade mark. A registered business name is not a form of intellectual property and it offers no exclusive right to use the name registered. It is not a trade mark, registered or otherwise. In fact, duplicate entries are often found in the register of business names. By contrast, a particular trade mark can only be registered once.
Letting people know
If a business uses a registered business name, all business letters, circulars and catalogues on or in which the business name appears must contain the following information in legible form:
in the case of an individual, his/her present name, any former names, and his/her nationality, if not Irish; and
in the case of a partnership, the present name and any former names, and the nationality, if not Irish, of all the partners in the firm.
An additional set of disclosure rules apply to Irish-registered companies, whose letters, notices, publications, order forms and websites must contain specific information.
IMRO’s licensing methods has been a hot topicrecently due to its demand that Irish music bloggers pay licence fees to play music on their sites. While non-profit bloggers are understandably disappointed to learn that they may have to pay €150-€300 annually to host music, even if the musicians have provided them with the music, such a licensing scheme does not threaten to destroy the native music scene, as some have suggested.
Workarounds are possible and Nialler9, along with many comments, have pointed to the possibility of simply linking to the relevant songs if they are hosted elsewhere. One such possible host is YouTube, which reached a licence agreement with IMRO/MCPSI this year. Little detail of that licensing deal is available on IMRO’s website and no information appears to be available on YouTube’s website. So I began to wonder: does the IMRO/YouTube licence cover synchronisation rights?
Copyright can be carved up a number of ways and a copyright owner can licence or assign different parts or uses of their works. For example, on joining IMRO, a musician assigns his/her performing rights to IMRO. This means that IMRO collects royalties for that right on behalf of the musician and the musician no longer has any performing rights in the music covered by IMRO. Therefore, if an IMRO member sets up a blog and streams his/her own music on that blog, (s)he will still need an IMRO licence to do so.
Synchronisation rights are the part of copyright that cover the use of work in conjunction with other media. A common example is advertising: when you use a backing track in a television ad, you need a synchronisation right licence because you are synchronising the music with film footage. In everyday language people might refer to seeking permission or clearance to use the music – what is being sought is a synchronisation licence.
If you made an ad for a once-off broadcast at an event, such as on big screens at a music festival, you (or the festival organisers) would need:
a synchronisation right licence to make the ad;
an IMRO/MCPSI licence; and
a PPI licence.
MCPSI (effectively a limb of IMRO) can provide synchronisation licences for some music but this must be checked on a song-by-song basis and some songs must be licensed directly from the musician. Generally, the more successful the artist, the more likely a licence is required directly from them (and the more expensive that licence will be).
It would appear that the IMRO/YouTube deal covers the playing of music on YouTube in the same way a music festival might get an IMRO licence. That does not mean, to take my example above, that the synchronisation of music in an ad is necessarily covered. Some music on YouTube is uploaded by the record company or artist responsible along with the music video that accompanies it and therefore no new synchronisation occurs. However, a huge amount of YouTube videos involve new synchronisation: whether involving the use of music as a backing track to a home movie or where a user has created their own music video to accompany a song.
I asked IMRO if these uses are covered by the licence agreed with YouTube and a definitive answer was not available. However, it appears that:
The IMRO/YouTube deal allows the use of music with third-party video if the musician has assigned their synchronisation rights to MCPSI or a foreign equivalent which has a co-operation agreement in place with MCPSI.
If the musician has retained their synchronisation rights, individual permission must be sought where music is to be used in conjunction with third-party video.
This means that, despite the IMRO/YouTube licence, certain musicians might still be able to have videos taken down or the sound removed from them.
If this summary of the position is correct, full rights clearance of a video uploaded to YouTube requires a song-by-song check with MCPSI to see if that song is covered by the IMRO/YouTube deal.
"The collective licensing revenue streams, they are a-changin'."
Controversy broke out this week when Nialler9, an influential Irish music blogger, publicised IMRO’s demand that music bloggers pay for a Online Exploitation Licence. [Update: a group of Irish music bloggers met with IMRO on 6 May 2010 to discuss their concerns. Read about the meeting here.]
Like many blogs, most Irish music blogs are run at no, or very little, profit. Comments on the mainpostsaboutthe issue generally share a sense of outrage and a belief that IMRO’s demands will damage new Irish music.
Incredulity is also expressed that the bands involved generally provide the music to the bloggers in the hope that it will be promoted online. The Guardian sums up the issue as follows:
If IMRO goes ahead with its plan, targeting music blogs around the world, there will soon be legions of frustrated bloggers. And it will be much worse if other regional publishers follow suit. While the organisations’ hearts may be in the right place – looking to buoy a flagging industry – we just hope they are going about it the right way. Will forcing the closure amateur music blogs make songwriters richer? Or precisely the reverse?
Collective licensing is a somewhat complicated area but it is reasonably certain that, whatever enforcement steps IMRO might or might not take against individual bloggers that refuse to buy a licence, it is highly unlikely that any agreement will be reached to exclude blogs from the licensing regime. [Update: However, it appears from the meeting between music bloggers and IMRO, mentioned above, that a new form of non-commercial licence might be considered.]
Collective copyright licensing
Individual collection of royalties from music users by music owners is extremely impractical. Therefore, a system of collective licensing has been established where by a licensing society can be set up, with rights to grant licences to play music on behalf of a class of copyright owners. The Copyright and Related Rights Act 2000 provides that music can be played in public or broadcast if the appropriate fees have been paid to the relevant licensing society.
The most well-known such society in Ireland is IMRO, which collectively licenses the performance rights of copyright musical material (ie. the part of a musician’s copyright relating to the public performance of their work). It collects over €30 million in royalties annually, which are distributed to its members.
Comments on the blog posts already mentioned point to the fact that the musicians involved authorise the use of their music on a particular music blog. Nialler9 refers to his understanding of the situation, prior to hearing from IMRO.
Like many I thought that MP3s which were cleared by bands and labels for promo were provided as is – gratis and without any attachments or additional requirements other than to promote the band and song. Y’know, the same way an entire music blogosphere and a digital PR industry has been allowed to grow up over the course of the last 10 years thinking the same.
However, musicians can only licence the rights which they retain. If they have joined IMRO, they have entered into an agreement with the organisation. The first substantive clause (clause 2) of that agreement provides that the musician is assigning (ie. transferring) all their performing rights to IMRO.
Accordingly, IMRO members cannot grant a blogger a licence to the performing right in their music because they no longer own that right.
Controversy
The collective licensing system has not been uncontroversial. Similar arguments to those now raised by music bloggers were aired over a decade ago by independent retailers and coffee shop owners who felt that they should not have to pay an IMRO licence fee to promote new and local musicians in their premises.
One might wonder why IMRO has begun to target bloggers now; the answer probably lies in the comment quoted above from the Guardian. As music use changes, collecting societies are tracking new and increasing sources of revenue from such use.
In 2004, the European Commission warned sixteen collecting bodies that an agreement between them was potentially in breach of competition law on the basis that it proposed to carve up online music licensing on a national basis. The Commission published a recommendation in 2005 which said that the industry should be free to set up EU-wide collecting societies or to allow national societies to licence on an EU-wide basis.
Disputes
In Ireland, the Controller of Patents, Designs and Trade Marks deals with disputes regarding royalty rates charged by collecting societies.
[A]nyone who considers that they have unreasonably been refused a licence by a collecting society or considers the terms of an offered licence to be unreasonable may refer the matter to the Controller.
The terms of an offered licence include the proposed royalties or licence fees.
IMRO is not a one-stop shop
So: permission from a musician does not necessarily extend to a licence to use music online; neither does an IMRO licence give a full licence to use the music.
This is a common misunderstanding. Different venues and uses may require a combination of licences from IMRO/MCPSI, PPI, the record label responsible for the recording and/or the songwriter. For certain commercial uses of specific pieces of music, a licence from all of these parties might be required. Therefore, it is important to check with IMRO or a professional adviser as to what licences are necessary.
