APRIL & MAY 2008

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COPYRIGHT - FAIRFIELD ARTIST LOSES SPONGEBOB CASE, NICKELODEON PLEASED (14 May, 2008 - The Associated Press) A Fairfield artist who claims he created the original inspiration for the popular "SpongeBob" cartoon character on children's television lost a copyright lawsuit before a federal judge in San Francisco today. U.S. District Susan Illston issued a summary judgment dismissing artist Troy Walker's copyright infringement claim against Nickelodeon Studios Inc., Paramount Studios Inc., Viacom International Inc. and Stephen Hillenburg. Illston wrote that Walker hadn't proved that a comic strip he drew in 1991, entitled "Mr. Bob Spongee, The Unemployed Sponge," was the basis of the popular Nickelodeon animated show called "SpongeBob SquarePants." The show first aired in 1999. Illston said that Hillenburg, the creator and producer of the SpongeBob show, had created a sea sponge character named "Bob the Sponge" in 1989, two years before Walker drew his comic strip. She also said that Walker hadn't proved Hillenburg ever saw his comic strip and that while both characters were humanized sponges, their features, clothing and story lines were different. "In sum, the court holds that the similarities between the two characters are limited to the stock elements used to humanize a sponge, and that the dissimilarities are so significant that, as a matter of law, defendants are entitled to summary judgment," Illston wrote. Walker, 41, said he plans to appeal. "What happened today was a tragedy. The legal system definitely let us down today. SpongeBob is based on my work that I created years before," Walker said. Nickelodeon spokeswoman Marianne Romano said, "We're very pleased with the outcome of the case." Romano said SpongeBob SquarePants is one of the most popular series in children's television history and the show's Saturday morning airing is currently the top-rated program among children between the ages of 2 and 11. Walker's 1991 comic strip consisted of four black-and-white panels. In 1992, he pasted copies of the strip on 1,000 novelty sponges and sold the sponges at Bay Area shopping centers, street fairs, roadside stops and flea markets. He copyrighted the strip in 2003. Hillenburg, an artist and marine biologist, said in court papers that he created a character called "Bob the Sponge" for an educational comic book while working as an instructor and staff artist at the Orange County Marine Institute in 1989. He said he began developing that character into "SpongeBob" in 1994 while working on another animated show for Viacom. The SpongeBob television character lives in a pineapple at the bottom of the sea, works as a restaurant cook, has two buck teeth and a pickle-shaped nose and wears a shirt, tie and pants, Illston noted. Walker's unemployed Bob Spongee lives above ground in a house, has a dot nose and a line for a mouth and is not wearing clothes. Illston turned down Viacom's bid to require Walker to pay the defense attorney fees. She said, "The court finds that this case was brought in good faith."

SIX THINGS ABOUT FACTOR
The Foundation Assisting Canadian Talent On Recordings is a private non-profit organization that administers contributions from sponsoring Canadian radio broadcasters as well as two components of the Department of Canadian Heritage's Canada Music Fund programs.
1. FACTOR was founded in 1982 by the Canadian Independent Record Production Assn. (CIRPA), the Canadian Music Publishers Assn. (CMPA), and by three major Canadian broadcasting companies-CHUM Limited, Moffat Communications Limited, and Rogers Radio Broadcasting Limited.
2. Widely credited with the idea of launching FACTOR is Attic Records' co-founder Tom Williams. Williams told broadcasters it'd be to their benefit to help improve the quality of Canadian recordings by providing production loans and grants.Recalls Williams "CHUM had just given $30,000 to a big band festival. At the same time, [CHUM PD] Bob Wood was complaining there weren't enough Canadian records for CHUM to live up to its CanCon commitment. I tied those two things together. I told him, 'If you have to spend this money anyway, why don't you do something to help Canadian recordings?' Then I met with Jim Sward at Rogers, and with Chuck McCoy and Jim McLaughlin and Moffat Radio, and got their commitments."
3. To start with FACTOR's sole mandate was to help produce Canadian recordings suitable for radio airplay and retail sales. It started with a single program-- lending money through a jury process for production of recordings.
4. In 1985, in order increase its production fund, and support a wider variety of musical genres, FACTOR merged with the Canadian Talent Library Trust, operated by Standard Broadcasting.
5. FACTOR's role grew significantly in 1986 when the Department of Communications began its Sound Recording Development Program. Under SRDP, the DOC committed itself to invest $25 million over a five year period. SRDP was made permanent in 1991, and the program, now known as the Canada Music Fund Council (CMFC) provides funding to the development of the sound recording industry in Canada; 60% to the English-language industry, represented by FACTOR, and 40% to the French-language industry, represented by MusicAction6. In its 25 years, FACTOR has administered over $112 million in funding to assist in the development of the Canadian artists, and the independent music industry in Canada. In 2006-2007, it provided in excess of $14 million to support the sector.

ORIGIN OF THE JUNOS
The origin of Canada's annual Juno Awards was a 4-by-9-inch ballot that appeared in the Dec. 7, 1964, issue of the Canadian music trade publication RPM Weekly. It asked the periodical's subscribers "to help RPM pick our year-end notable Canadian artists and industry figures" for a poll called the RPM Gold Leaf Awards.Topping the poll were Terry Black, named as top male singer; Shirley Matthews as top female singer; and Ottawa's Esquires named the top group of the year. Also named were the late Gary Buck as top country male singer; and Vancouver's Pat Hervey as top female country singer. The awards were the brainchild of RPM Weekly publisher Walt Grealis, a former record company executive, and Toronto record producer Stan Klees who was also the publication's special projects director. The results were published later that month. The RPM Gold Leaf Awards went on to become an annual feature of the magazine. But there was no formal ceremony or even actual awards to be presented to winners The first RPM Gold Leaf Awards to be held in public were presented to the winners of the December 1969 poll at a reception in Toronto at the St. Lawrence Hall in February 1970. It was Klees who designed the 18-inch metronome-shaped trophy made of solid walnut.The first presenter was George Offer, president of Apex Records who introduced the Top Female Country Singer Award winner Diane Leigh. As the band played her current hit, "I'm A One-Man Woman," Leigh needed a few moments to regain her composure after coming onstage. The federal government's Canadian content regulations led to a name change for the RPM Gold Leaf Awards. RPM Weekly held a contest in May, 1970 to name the trophies. The winning entry suggested that they be named the "Juneau" to honour then CRTC chairman Pierre Juneau. The name, however, was shortened to "Juno" At the first Juno Awards ceremony in Feb. 1971, Juneau was presented with an award that named him the "Music Industry Man of the Year." Newcomer Anne Murray was named top female singer; Gordon Lightfoot was named top male singer; and the Guess Who walked away with the top group honours. LEBLANC NEWSLETTER ISSUE #17 (APRIL 10, 2008)

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This blog is available and distributed for free by the offices of Mark Vinet and Wadem Publishing. Information contained herein should not be relied upon or considered as legal advice. This blog may be forwarded, downloaded or reproduced in whole in any print or electronic format for non-commercial purposes provided that its author is acknowledged and that you cc: mark@markvinet.com © ™ Mark Vinet & Wadem Publishing

FEBRUARY & MARCH 2008

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Michel Gendron, head of Vega Musique in Montreal passed away March 1, 2008 of a heart attack. He was 49. Vega Musique (Sylvain Cossette & Andrée Watters) is a co-venture of Gendron, Canadian producer Bob Ezrin abd Universal Music Canada. Gendron previously was VP and co-owner of Les Disques Tox (les B.B., Mitsou, Marie-Chantal Toupin) now headed by his brother Pierre.

COPYRIGHT REFORM STUCK ON HOLD -- After continual missteps by Canada's federal government, the Industry Department's proposed copyright bill, which has been on the House Order Paper since Dec. 7, is now on indefinite hold.A bill has been ready for tabling, but it was reportedly put on indefinite hold at a Priorities and Planning Cabinet Committee meeting just prior to the Feb. 18 sitting break of the House of Commons. No doubt Industry Minister Jim Prentice was nervous about tabling the legislation in advance of a potential spring election. Now the bill is not likely to be introduced by the minority Conservatives so long as a confidence vote in Parliament could force an election. There's little question that a noisy lobby campaign for a "balanced approach" to copyright is one of the reasons for the delay.A group called the Business Coalition for Balanced Copyright, which formed last month, has released a position paper calling for a "balanced approach for a strong Canadian copyright regime." The coalition includes such media heavy-hitters as the Canadian Association of Broadcasters, the Canadian Association of Internet Providers, the Retail Council of Canada, Yahoo! Canada, Google, Rogers Communications Inc., and Telus, among others.Also causing a stir is blogger Michael Geist, Canada research chair in internet and e-commerce law at the University of Ottawa, who launched a Facebook protest group for "fair copyright" in Canada. The site now has over 40,000 members.Meanwhile, The Songwriters Association of Canada (SAC) is demanding an amendment to the Copyright Act that would establish a new right, called the Right to Equitable Remunerations for Music File Sharing. It would boost Canadians' internet bills by $5 in exchange for the ability to download as many music files as they choose.

CONTEST: THE CRTC WANTS YOU TO DEFINE "AN EMERGING ARTIST" -- The extent to which commercial radio stations in Canada expose the music of emerging Canadian artists has been a hot topic of discussion for over a decade, most extensively during the two most recent reviews of the Canadian Radio-television and Telecommunications Commission (CRTC) Commercial Radio Policy. In 2006, as a result of its commercial radio policy review, the federal regulator announced that radio licensees would now be asked to make specific commitments to provide airplay for and to promote emerging Canadian artists. However, the Commission declined to define "an emerging Canadian artist." As well, no timeline was set for the introduction of the category.However, the CRTC had concluded that Canada's commercial radio broadcasters should make commitments to broadcast selections by emerging Canadian artists and to promote such artists in their applications for new licenses, license renewals and transfers of ownership or control of radio stations. The Commission might then decide to impose these as conditions of license following the public process.In their 2007 report on overhauling the regulatory framework for Canadian broadcasting services, Laurence Dunbar and Christian Leblanc, two leading broadcasting lawyers, characterized the Commission's expectation that broadcasters provide more support to emerging Canadian artists as "a commendable and appropriate way to strengthen Canadian musical culture."The Canadian Association of Broadcasters, however, characterized the recommendations by Dunbar and Leblanc in its 337-page report as an assault on the foundation of Canadian broadcasting.However, the CRTC is now calling for comments on the definition of emerging Canadian artists on commercial radio. The deadline for filing written comments is Apr. 25, 2008. The Commission then invites intervenors to file replies to any of the comments submitted in the first stage of the process. Parties will have until May 10, 2008 to do so. To assist intervenors, the Commission has published the research report "Emerging Canadian Artists on Commercial Radio" which details the broadcasting of the music of emerging artists according to nine definitions of the term that are based on current music industry charts. The report is available on the Commission's web site at www.crtc.gc.ca.For the study, the CRTC obtained play lists from 20 French-language and 85 English-language stations containing the music broadcast during the week of April 15-21 2007 from 6 a.m. to midnight. These were supplemented by play list information supplied by Mediabase and BDS Radio Canada. The study found that week only 2.5% of songs played met the CRTC's criteria for the morning peak period, with 3.9% being played during afternoon peaks.Quel surprise, eh? But isn't commercial radio about playing hit songs? Whereas CRTC's broadcasting regulations are primarily intended to boost Canadian culture?As many of us know, the emerging artist tag practically fits any Canadian musician you can name-even those with chart successes. Just ask their bank manager. THE LEBLANC NEWSLETTER, ISSUE #15 (MARCH 3, 2008)

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This blog is available and distributed for free by the offices of Mark Vinet and Wadem Publishing. Information contained herein should not be relied upon or considered as legal advice. This blog may be forwarded, downloaded or reproduced in whole in any print or electronic format for non-commercial purposes provided that its author is acknowledged and that you cc: mark@markvinet.com
© ™ Mark Vinet & Wadem Publishing

JANUARY 2008

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MUSIC -- ESTABLISHING PAYMENT FOR MUSIC ON RADIO By Sundeep Chauhan and Paul Taylor In Canada, the Neighbouring Rights Collective of Canada (“NRCC”) was created in 1997 to administer the rights of performers and producers of sound recordings to be paid equitable remuneration. The NRCC represents performers and producers of sound recordings through its five member collectives representing a large majority of the Canadian record industry and thousands of Canadian and foreign performers. NRCC’s performer member collectives are: (i) the American Federation of Musicians of the United States and Canada (“AFM”); (ii) the ACTRA Performers’ Rights Society (“ACTRA PRS”); and (iii) La Société de gestion collective de l’Union des artistes (“ArtistI”). NRCC’s producer member collectives are: (i) the Audio Video Licensing Agency (“AVLA”); and (ii) La Société de gestion collective des droits des producteurs de phonogrammes et vidéogrammes du Québec (“SOPROQ”). Source: THE COPYRIGHT & MEDIA LAW newsletter Volume 2007, Issue 4.

English Writing from the Heart of French Canada
SUBMISSION CALL for 2008 literary titles by English-language Quebec authors.
The Quebec Writers’ Federation (QWF) and Association of English-language Publishers of Quebec (AELAQ), with the participation of the English-language Arts Network (ELAN),
will be kicking off a national campaign in 2008 to promote Quebec minority language writers.

We are looking for a mix of young and established authors with books coming out next year to reflect the remarkable literary work being created in English-language Quebec. Our promotional efforts will focus on an attempt to increase coverage at Canadian literary festivals and in the national media and to offer publishers additional support. A special jury will select a representative mix of books most suitable for this project. Please note that self-published titles are not eligible. If you are a Quebec author with an English-language book of poetry, fiction or literary non-fiction coming out in the Spring or Fall of 2008 – or the publisher of such a book by a Quebec author – email us the following info:
Author
Title
One-line description of the book
Publication date
Publisher contact info. (publicist’s email and telephone)

Please send to: Maria Francesca LoDico francescaqwf@videotron.ca

DEADLINE: Monday, January 14, 2008

The Montreal Review of Books (mRb) is looking for your new publications for our fall/winter issue, which will be on the streets after April 18. Fiction, non-fiction, poetry, criticism, comics, children’s books, etc – we’re interested in all kinds of books.

To have your Spring 2008 titles considered for review, please send eligible books or galleys to the following address:
Montreal Review of Books
c/o Association of English-language Publishers of Quebec
1200 Atwater, Suite 3, Westmount, Quebec, H3Z 1X4

Criteria for eligibility:

To be eligible for review, books must be either:
Written in English by a Quebec author; or
Published in English by a Quebec-based publisher; or
Translated into English by a Quebec translator (with priority given to translations of books by Quebec authors);or
Have a Quebec illustrator

Deadline: To be eligible for the mRb’s spring 2008 issue, books or galleys must be received no later than February15, 2008.

For more information, please contact Margaret at (514) 932-5633 or aelaq@bellnet.ca.

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This blog is available and distributed for free by the offices of Mark Vinet and Wadem Publishing. Information contained herein should not be relied upon or considered as legal advice. This blog may be forwarded, downloaded or reproduced in whole in any print or electronic format for non-commercial purposes provided that its author is acknowledged and that you cc: mark@markvinet.com © ™ Mark Vinet & Wadem Publishing

DECEMBER 2007

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English Writing from the Heart of French Canada - SUBMISSION CALL for 2008 literary titles by English-language Quebec authors -- The Quebec Writers’ Federation (QWF) and Association of English-language Publishers of Quebec (AELAQ), with the participation of the English-language Arts Network (ELAN),
will be kicking off a national campaign in 2008 to promote Quebec minority language writers.
We are looking for a mix of young and established authors with books coming out next year to reflect the remarkable literary work being created in English-language Quebec. Our promotional efforts will focus on an attempt to increase coverage at Canadian literary festivals and in the national media and to offer publishers additional support. A special jury will select a representative mix of books most suitable for this project. Please note that self-published titles are not eligible. If you are a Quebec author with an English-language book of poetry, fiction or literary non-fiction coming out in the Spring or Fall of 2008 – or the publisher of such a book by a Quebec author – email us the following info:
Author
Title
One-line description of the book
Publication date
Publisher
Publisher contact info. (publicist’s email and telephone)
Please send to: Maria Francesca LoDico francescaqwf@videotron.ca
DEADLINE: Monday, January 14, 2008

MUSIC - Canadian COPYRIGHT REFORM -- New copyright reform legislation in Canada, which had been expected to arrive in the House of Commons on Dec. 11, has been delayed.Last week, Stephen Harper's Conservatives filed a notice indicating the bill would be introduced this week. That doesn't appear to be happening."A bill will not be tabled in the House until such time as myself and the minister of Canadian Heritage, Status of Women and Official Languages are satisfied," Industry Minister Jim Prentice said in the House of Commons on Dec. 10.A spokesperson for the Minister's office has since said there had been no date set for tabling the new copyright bill which the Conservatives had indicated in their Throne Speech in October would be introduced this session.Parliament will take a break until January after its Dec. 14th session.A storm of intense negative Internet-based activity, including blogs and a Facebook campaign overseen by Michael Geist, a professor of law at the University of Ottawa, may have sidelined the bill after putting Prentice and the minority Conservatives in the hot seat. Geist first posted a YouTube video that lists 30 ways in which people could protest the legislation, and he also set up a Facebook group on Dec. 1 which now has more than 14,000 members opposing the legislation.A small but vocal crowd of 50 confronted Prentice about the bill in his Calgary constituency office on Dec. 8.All of this, along with thousands of emails and letters protesting the bill, apparently led Prentice to order revisions of several sections of the legislation.Critics are fearful that the new legislation will mirror the U.S. Digital Millennium Copyright Act, and contain controversial anti-circumvention legislation (dealing with the use of technology that blocks users from gaining access to information without paying for it, and imposing stiff penalties on those breaking through the barriers).Critics also contend that there will likely be no flexible fair dealing in the copying of digital materials, making illegal such acts as television time shifting, file-sharing of music and video files, and copying files to DVDs or MP3 players.At his Calgary constituency office, Prentice defended the Conservative's bill saying it would bring Canada up to date with the World Intellectual Property Organization (WIPO) agreements the Canadian government signed in 1997, and will bring Canada in line with its international obligations. Canada signed the WIPO agreements but has not yet implemented or ratified them, which has provoked criticism from its trading partners, he said.Phase II revisions to Canada's Copyright Act in 1996, known as Bill C-32, which augmented 1988 revisions, did not address Canada's obligations under WIPO's agreementsIn 1997, Minister of Canadian Heritage Sheila Copps and Minister of Industry John Manley announced that the Liberal government was committed to signing and ratifying the two WIPO treaties.The two treaties-the Performances and Phonogram Treaty and the Copyright Treaty-deal with copyright protection in the digital age and with intellectual property protection for performers and phonogram producers.The Liberal government under Paul Martin tried to pass its own copyright reform bill, C-60, in 2005 but it was derailed when the party was brought down in 2005 in a non-confidence vote.The same fate could now befall the Conservative's copyright reform bill if an early election is called or forced.
MUSIC -- Norris-Whitney Communications has released the 704-page directory "Music Directory Canada, Ninth Edition." It features over 60 categories as well as artist contacts, award winners, and Canadian chart toppers. (Source THE LEBLANC NEWSLETTER, ISSUE #11 DEC. 12, 2007)

TV - Nielsen offers protection to copyright holders -- Nielsen is expected to introduce a digital watermarking service to protect copyrighted video content from being pirated online. While other companies have ventured into video copyright protection, Nielsen has a leg up on potential rivals because it is responsible for encoding almost all network TV programs as part of its ratings service. Source SmartBrief 06dec2007

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This blog is available and distributed for free by the offices of Mark Vinet and Wadem Publishing. Information contained herein should not be relied upon or considered as legal advice. This blog may be forwarded, downloaded or reproduced in whole in any print or electronic format for non-commercial purposes provided that its author is acknowledged and that you cc: mark@markvinet.com © ™ Mark Vinet & Wadem Publishing

NOVEMBER 2007

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MUSIC WORLD FLAMES OUT - For the 648 employees of the 72-store Music World music chain in Canada, it will be a bleak Christmas. They face potential layoffs following the holiday retail sell-off period. Music World's parent company Pindoff Record Sales was bought on Nov. 12 by shareholders Kai Voigt, Stephen Granovsky and Lawrence Pollack. Two days later, it received creditors' court protection under Consumer and Corporate Affairs Canada. As president, Voigt has appointed Gary Stern as CFO, and Nick Phillips as COO.The retailer owed Pindoff Record Sales more than $30 million before the parent was acquired by the new owners, according to documents filed with Ontario Superior Court of Justice. The new owners now owe former owner Kroum T. Pindoff, a secured creditor, more than $20 million.In 2006, Music World lost $9.2-million on sales of $80.6-million, according to court filings. in 2005, it lost $3.2-million on sales of $96.1-million.The new owners basically financed their acquisition with a $12-million advance from the liquidators that they hired to sell the merchandise. As of Nov. 12, the liquidators are overseeing sell-off of inventory at the stores valued at about $21 million. The liquidators' objective is to recoup its $12 million plus make a profit on the inventory. That means in-store bargains as stock is liquidated and as suppliers worry about 8% of the Canadian music marketplace slipping away.Pindoff Record Sales continues to own a CD and DVD wholesaling division, as well as 60% of Montreal-based DEP Distribution Exclusive Quebec, a key distributor of French-language product in Quebec. The filing states that the most likely scenario for Music World is an orderly wind-down of business. The filing further states there is a "possibility" the new owners might try to operate a scaled-down Music World, Several suppliers, in fact, have been informed that under a reorganization, as many as 50 locations could continue to operate. However, many of Music World's mall leases, sources say, are due to expire within 2008-2009 with no automatic rights of lease renewal. That means these lease renewals will solely be the discretion of a handful of landlords who oversee malls. If they have to take back Music World's stores in their weaker malls, it is unlikely they will let Music World keep stores in their better malls. In order to operate a new Music World model, the new owners need to hold onto the better performing stores in the better malls. That will be a challenge.Kroum Pindoff and wife Eva founded Pindoff Record Sales in 1960, initially selling albums to convenience store owners from the backseat of their car. In 1962, the first Pindoff Record Sales warehouse opened and the company attained such rack accounts as The Hudson's Bay Company, and Sears. By 1970, Music World had been launched. At its peak in the mid-80s, the chain had 110 outlets. Canada media quite wrongly proclaimed that Music World's bankruptcy is the latest retail casualty of competition from music downloading, online file-swapping, and big-box stores. Those may be factors but Music World's previous owner should take much of the blame. If Music World had invested and evolved, if it had branched out into other entertainment product lines, and if it had not lost such key staff as executive VP Robert Smith, and GM/VP Terry Stevens in recent years, it would probably not be bankrupt today. In the end, the Pindoffs cash out with the sale to new owners; the new owners cash out by attaining the bulk of their purchase price funded by selling inventory to liquidator, and possibly being able to sidestep staff liability by filing for bankruptcy as well as reducing or dropping their retail business; and the Music World employees face getting screwed. In 1995, Pindoff Record Sales was named as one of Canada's 50 Best Managed Private Companies by The Financial Post.

CANADIAN MLA SIGNED -- Several years of negotiations between the Canadian Recording Industry Assn. (CRIA), and the Canadian Musical Reproduction Rights Agency (CMRRA), the music licensing agency that represents the vast majority of music publishers doing business in Canada, has resulted in the signing of a new six year Mechanical Licensing Agreement (MLA) on Nov. 8.The new MLA runs from 2007-2012. The rate for 2007-09 is $0.081 per track, where the running time of the recording is five minutes or less, plus $0.0162 for each additional minute or partial minute of running time. For 2010-2012, the rates are $0.083 and $0.0166, respectively. The rates under the last agreement, at its conclusion, were $0.077 and $0.0154, respectively.As well, CRIA and the CMMRA have agreed to work together in a transition to an all electronic environment. That effectively means the end of paper filings for mechanical licenses in Canada.

DOWNLOADING SPURS CD SALES? NOT BLOODY LIKELY -- A Statistics Canada report, released Oct. 31, indicates that the recording, and music publishing industries in Canada turned a healthy profit in 2005. The StatsCan study found that each of the three major segments of Canada's music industry (record production, music publishing, and recording studios) posted a profit in 2005. Total revenues reached $942 million with record production accounting for 80%. Yet, according to StatsCan, sales of recordings declined 3% to $575 million between 2003 and 2005. Gains were made, it indicated, by companies streamlining and restructuring global operations, and developing new distribution channels geared toward the digital market.Considering the continual job cuts at recording companies, the consolidation of manufacturing and distribution by all multinationals, and the ongoing loss of music sales, Canada's music industry is hardly as robust as the StatsCan figures indicate.Meanwhile, a report "The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music" commissioned by Industry Canada, and released Oct. 30th, concludes that file-sharing doesn't lead to reduced CD sales. In fact, it says, it may even lead to an increase in sales among those who download a lot. The study, by Birgitte Andersen and Marion Frenz of the Department of Management at the University of London in England, and Decima Research, surveyed over 2,000 Canadians on their music downloading and purchasing habits. The study claims that P2P file sharing does not put downward pressure on purchasing music, but tends to increase music purchasing. The Canadian Recording Industry Assn. (CRIA) has long argued that file sharing has been the main culprit of dwindling sales within the music industry.While it is a stretch to assume that file sharing is responsible for the entire decline in record sales since 1999, and that without file sharing there would have been an increase in sales, the Industry Canada study doesn't address why there is a decline in sales in a period in which file sharing has significantly grown What's wrong with music industry? Poor quality of music. No new major acts. Lack of development of new artists. Bad business deals. And, yes Virginia, downloading and P2P file-sharing. Ask your kid.

ADISQ SEEKS CANADIAN CONTENT REQUIREMENTS -- Canadian music industry players continue to worry about web-based music services, as well as telecommunications-based music services, being exempt from statutory domestic music quotas.In 1999, the Canadian Radio-television and Telecommunication Commission (CRTC) decided it would not regulate the Internet. However, the federal regulator is now studying the issue and plans to hold public hearings about the Internet at the end of 2008.In an interview with Montreal newspaper La Presse on Oct. 24, Michel Arpin, the CRTC's VP of broadcasting said "The door is not closed on regulating [the Internet]." He added, "In 1999, there was nothing to regulate."However, when CRTC Chair Konrad von Finckenstein delivered the keynote speech at the Canadian Assn. of Broadcasters (CAB) conference on Nov. 5, he indicated that the CRTC has no interest in regulating the Internet, but is instead interested in only broadcasting on the Internet.Arpin's comments came two days after Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ), representing Quebec's recording industry, and 18 cultural unions and associations criticized the CRTC's handling of social and cultural matters. They called on Heritage Minister Josée Verner to put pressure on the CRTC to enforce the cultural and social objectives of the Canadian Broadcasting Act more rigorously. They also called on the federal regulator to be more involved in the Internet.Today, digital music services are offering multiple business models-including paid individual downloads, subscriptions and streaming radio-alongside mobile telephone music-related services from Bell Canada, Rogers Wireless and Telus.in most cases, these operators import content from U.S.-based services, and there is no shelf space guaranteed for Canadians.ADISQ, in particular, wants rules that bring CanCon requirements to the Internet. It would like the CRTC to require ISPs to prioritize Canadian content, noting that if ISP can prioritize content for commercial purposes then they can be required to do something similar to advance Canadian culture. In 1998, the performing rights organization Society of Composers, Authors and Music Publishers of Canada (SOCAN) made submissions to the CRTC for Internet and telecommunications-based services to be regulated like existing broadcasters. However, the CRTC declined to do so. in 1999, the CRTC announced a regulatory exemption for all new media. Several times since, SOCAN has asked for a ruling that mobile telephone services be treated like other broadcasters. But a review has yet to take place. There are those who contend that these new services present a significantly different environment from the existing broadcasting system. They suggest that the advent of such new media calls for changes in government policy as well as phasing out quota-based mechanisms. Source: THE LEBLANC NEWSLETTER, ISSUE#8 (Nov. 12 2007).

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This blog is available and distributed for free by the offices of Mark Vinet and Wadem Publishing. Information contained herein should not be relied upon or considered as legal advice. This blog may be forwarded, downloaded or reproduced in whole in any print or electronic format for non-commercial purposes provided that its author is acknowledged and that you cc: mark@markvinet.com © ™ Mark Vinet & Wadem Publishing

OCTOBER 2007

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TV - Annual Gemini Awards

MUSIC - Copyright Board's decision Online Tariffs - There were so many misleading articles by the media and bloggers last week regarding Canada's Copyright Board's decision on Oct. 18 to set license fees for the use of on-line music services for the years 1996-2006.The Copyright Board released a portion of its decision governing MP3 music files and online services that offer music on demand. It did not release a decision on Internet radio broadcasts or the use of music on a personal or business website, yet.Within hours of the decision, it was widely reported on the Internet (followed in the media) that the tariffs given to the Society of Composers, Authors and Music Publishers of Canada (SOCAN) are a tax intended to compensate artists (nope) for the loss of revenue from downloading (nope). That it follows similar levies "that add 21 cents to the price of every blank CD sold in Canada." (nope)There was also the suggestion that publishers and composers would be "double-dipping" in the Internet revenue stream. (nope again).Typical of the coverage was Vito Pilieci in the Ottawa Citizen reporting that, "The Copyright Board of Canada has approved new taxes on MP3 music files-- at least for those that are downloaded legally."Perhaps, Canada's media and music fans (well, at least bloggers) should better understand the dynamics of today's music industry. They seem not to be aware that there are separate components battling against each others' interests. Nor do they seem to grasp the concept that an entity should get paid in relation to the value they offer.After being so media-bashed, SOCAN--as well as most other Canadian music industry associations--should consider recalibrating its PR to better combat such inaccurate assessments in the future. The clock to control the spin on these stories starts on-line minutes after a decision is announced. The Board's decision followed public hearings in Hull, Quebec in April. Tariff 22 was first proposed and filed by SOCAN in 1996, and was again filed for each of the years 1997 to 2006. A hearing took place in 1998 that determined certain legal and jurisdictions issues. Certain aspects of the Board's decision were subsequently reviewed by the Federal Court of Appeal and the Supreme Court of Canada, resulting in a decision in 2004.Under last week's decision, online music service providers will pay SOCAN license fees of: a.. Permanent downloads: 3.4% of the amounts paid by the consumer with a minimum fee of 1.7¢ per file in a bundle and 2.3¢ per file in all other cases; b.. Limited downloads: 6.3% of the amounts paid by subscribers with a minimum fee of 60.9¢ per month, per subscriber, if portable downloads are allowed and 39.9¢ if not; c.. On-demand stream: 7.6% of the amounts paid by subscribers with a minimum fee of 48.1¢ per month, per subscriber.The Board also determined that the online service industry would benefit from a phase-in discount. A 10% discount will be applied to the rates for the duration of the tariff. The decision is retroactive to the launch of the digital services and will set the rate for the next few years until future copyright hearings are held."On behalf of our songwriter and music publisher members, we are encouraged by the Board's decision," says Paul Spurgeon, SOCAN's VP Legal Services & General Counsel. "While the rates are not exactly what we'd hoped for, they provide an excellent foundation for the management of performing rights royalties for online music use as the industry evolves in the future."With 80,000 members, SOCAN is a Toronto-based copyright collective that administers the performing rights of its members-composers, lyricists, songwriters and their publishers-and those of affiliated international societies by licensing the use of their music in Canada. SOCAN represents the founders of today's music industry. The folks who sold sheet music to performers (and got directly paid) and who later negotiated rights of their music to be played in public, on radio and TV, and on recordings. This SOCAN license amounts to about three cents on a 99-cent track. Record labels command the biggest slice of the Internet music revenue, at 50-60 per cent on many deals, while E-commerce costs (collected by credit card companies) may run between 10 and 20 per cent of the sale price, depending on the number of tracks purchased in a transaction.Fierce skirmishes have raged in recent years between the publishing and recording sectors over revenue of music downloads, ringtones (another appeal is underway this week), and over the licensing of recorded music. The Canadian Record Industry Association, primarily representing major label interests, had in fact argued for a much lower rate for SOCAN, approx. 0.1%, in order to put the overall royalty rate in line with such other territories as the U.K. (8%), Japan (7.7%) and the U.S. (9.1%), as well as the royalty rate applicable on physical product in Canada.In March, 2007 the Copyright Board announced its ruling on a proposed tariff by CMMRA/SODRAC Inc. (CSI) for the reproduction right use of music on the Internet. The Board ruled that with permanent downloads, 7.9% of the price of a song will go back to copyright holders. For downloads that require a subscription, and for on-demand streaming music, rates were set at 5.9% and 4.6% of the cost of a month's subscription, respectively. Significantly, the Board made it clear that the on-line services must deal directly with to CSI for licensing their repertoire.CSI--incorporated in 2002--is a joint venture of the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) in Montreal, and The Canadian Musical Reproduction Rights Agency Ltd. (CMRRA) in Toronto. It claims to represent 1.1 million musical works from around the world.With SOCAN's tariff in place, digital distribution services in Canada-including Apple's iTunes Music Store, Yahoo Music, Bell Canada's Puretracks, U.S.-based Napster and Quebec's Archambault must now pay the combined amount collected by SOCAN and CSI.The Board also significantly concluded that offering music previews constitutes fair dealing under Canadian copyright law as it can be characterized as copying for the purpose of research. It noted that listening to an excerpt of a work is consumer research into whether they might like to purchase the song, concluding that:"Generally speaking, users who listen to previews are entitled to avail themselves of section 29 of the Act, as are those who allow them to verify that they have or will purchase the track or album that they want or to permit them to view and sample what is available online."On the issue of whether there can be liability when servers are located outside of Canada, the Board avoided reviewing what the Supreme Court of Canada has ruled but indicated that that there could be such a liability where there is a real and substantial connection. In the Speech from the Throne delivered October 16, the Canadian government indicated its intent to address copyright in the coming session of Parliament. Under a section of the speech titled "Providing Effective Economic Leadership for a Prosperous Future," the Speech stated that: "Our government will improve the protection of cultural and intellectual property rights in Canada, including copyright reform." Source: LEBLANC NEWSLETTER ISSUE #7 (OCT. 22 2007)

MUSIC - CANADIAN ABORIGINAL AWARDS -- With five nominations each, country singer/songwriters Donny Parenteau and Shane Yellowbird lead the list of nominees for the Ninth Annual Canadian Aboriginal Music Awards being held Nov. 30 at the Rogers Centre in Toronto.Parenteau's "What It Takes" CD picked up nominations for top country album and top album. As well, he is nominated in producer and songwriter categories. His song "Father Time" is nominated for top single. Yellowbird's album "Life is Calling My Name" received nods for top country album and top album. As well, his single "Pick Up Truck" is nominated in single and video categories. As well, he is nominated for top male singer. A full list of nominees is available at: http://www.canab.com/ (source: THE LEBLANC NEWSLETTER ISSUE #6 , Oct 11 2007)

MUSIC - Bands Rushing To Ditch Labels And Embrace Free; Are The Floodgates Opening? - From the tipping-point dept 10oct2007 -- We've only been predicting that music would eventually go free for about a dozen years, but it feels like we may be nearing a tipping point among musicians recognizing this simple truth as well, kicked off by last week's Radiohead announcement. Suddenly, similar announcements seem to be coming fast and furious. Apparently both Oasis and Jamiroquai are interested in following Radiohead's lead and the Charlatan's (managed by a member of Oasis) is already doing the same. On top of that, Trent Reznor proudly announced today that Nine Inch Nails is now free from its record label contract. Will.i.am, from the band The Black Eyed Peas, announced "the new distributor is your niece" in discussing how he plans to promote his new solo album. There are two key things to note in all of this. First, all these bands feel the need to ditch big record labels to do this (and, no, that doesn't mean that small bands without recording contracts can't succeed this way too). This is a sad state of affairs for the record labels -- because there still should be a place for them in helping to promote and market a band, even if they're giving away the music for free. It's just that they're not venture capitalists any more and bands don't need help in distributing content -- two businesses the record labels insist they're in. What's really sad here is how clueless the record labels remain to this reality. In a Reuters article about the Radiohead move, a record industry insider mistakenly claims that this trend is going to hurt the music business because bands will rush out singles instead of albums. Apparently that insider only read the first half of the details of what Radiohead is doing (as well as what others are doing). They're doing exactly the opposite. They've put together a whole "discbox" with lots of extras to make it more compelling to buy. Will.i.am specifically made his latest album a "cohesive story" to encourage people to buy the whole album. Reznor purposely tried to make his CD as cool as possible (it changes colors when you play it in a CD player) to encourage people to buy it -- even as he tells people at concerts to download his songs. That brings up the second key point. For all the whining about "free" music, the complainers keep missing the fact that free is only a part of the business model. This seems to be the thing that people get most confused about when we discuss business models around free music. They get stuck on free and assume that if something's free, there's no way to make money. But, all of these bands are showing exactly the opposite is true. The Times Online has a story incorrectly headlined "The day the music industry died" discussing these exact changes, but as you read the details, the music industry is doing just fine -- it's just the folks in the recording industry who are in trouble. Musicians are raking in record revenue from concerts -- and the artists are realizing that the free music only helps generate more interest in those concerts. Listen to Alan McGee from Oasis and the Charlatans, saying that giving away the music for free was a can't miss proposition: "We increase our fan base, we sell more merchandise, more fans talk about the band and we get more advertising and more films (soundtracks). More people will get into the the Charlatans and will probably pay the money to see the show. I presume it will double the gig traffic, maybe even treble it." In other words, more bands are recognizing exactly what a bunch of folks knew was inevitable at least a decade ago. Unshackle the music, give it away free, and use it to make a lot of other stuff a lot more valuable, and there's plenty of money to be made. The only sad part in all of this is that the record labels have been not just blind to the idea -- they've actively tried to discredit anyone who pointed it out to them.

MUSIC & COPYRIGHT - RIAA Awarded $222,000 from First Individual Copyright Infringment Trial - DULUTH, Minnesota 05oct2007 -- Jammie Thomas, a single mother of two from Brainerd, Minn., was found liable of copyright infringement by the RIAA. The twelve jurors said she must pay US$ 9,250 each for the 24 songs she downloaded - a total of $222,000, according to Wired's Threat Level.Though the RIAA thinks it's sending a strong message by handing out lawsuits, online measuring service BigChampagne says P2P users unlawfully trading goods has tripled since the RIAA first began targeting individuals in 2003 - up from 3.8 million to 9 million. Around 70 percent of those trade digital music. Wired has posted the 24 songs Thomas was sent to court over, calling them the Internet Trial of the Century's Playlist of the Century, which includes hits such as Guns n' Roses' "November Rain" and "Pour Some Sugar on Me" by Def Leppard.
RIAA Jury Finds Minnesota Woman Liable for Piracy, Awards $222,000 - AP 05oct2007 - Jammie Thomas, a single mother of two, was found liable Thursday for copyright infringement in the nation's first file-sharing case to go before a jury. Twelve jurors here said the Minnesota woman must pay $9,250 for each of 24 shared songs that were the subject of the lawsuit, amounting to $222,000 in penalties. They could have dinged her for up to $3.6 million in damages, or awarded as little as $18,000. She was found liable for infringing songs from bands such as Journey, Green Day, Aerosmith and others. After the verdict was read, Thomas and her attorney left the courthouse without comment. The jurors also declined to talk to reporters. The verdict, coming after two days of testimony and about five hours of deliberations, was a mixed victory for the RIAA, which has brought more than 20,000 lawsuits in the last four years as part of its zero-tolerance policy against pirating. The outcome is likely to embolden the RIAA, which began targeting individuals in lawsuits after concluding the legal system could not keep pace with the ever growing number of file-sharing sites and services. "This is what can happen if you don't settle," RIAA attorney Richard Gabriel told reporters outside the courthouse. "I think we have sent a message we are willing to go to trial." Still, it's unlikely the RIAA's courtroom victory will translate into a financial windfall or stop piracy, which the industry claims costs it billions in lost sales. Despite the thousands of lawsuits -- the majority of them settling while others have been dismissed or are pending -- the RIAA's litigation war on internet piracy has neither dented illegal, peer-to-peer file sharing or put much fear in the hearts of music swappers. According to BigChampagne, an online measuring service, the number of peer-to-peer users unlawfully trading goods has nearly tripled since 2003, when the RIAA began legal onslaught targeting individuals. At the time, BigChampagne says, there were about 3.8 million file sharers trading over the internet at a given moment. Now, the group has measured a record 9 million users trading at the same time. Roughly 70 percent of trading involves digital music, according to BigChampagne. The case, however, did set legal precedents favoring the industry. In proving liability, the industry did not have to demonstrate that the defendant's computer had a file-sharing program installed at the time that they inspected her hard drive. And the RIAA did not have to show that the defendant was at the keyboard when RIAA investigators accessed Thomas' share folder. Also, the judge in the case ruled that jurors may find copyright infringement liability against somebody solely for sharing files on the internet. The RIAA did not have to prove that others downloaded the files. That was a big bone of contention that U.S. District Judge Michael Davis settled in favor of the industry. Thomas, 30, maintained that she was not the Kazaa user "Tereastarr," whose files were detected by RIAA's investigators. Her attorney speculated to jurors that she could have been the victim of a spoof, cracker, zombie, drone and other attacks. The jury found her liable after receiving evidence her internet protocol address and cable modem identifier were used to share some 1,700 files. The hard drive linked to Kazaa on Feb. 21, 2005 -- the evening in question -- did not become evidence in the case. According to testimony, Thomas replaced her hard drive weeks after RIAA investigators accessed her share file and discovered 1,702 files. The industry sued on just 24 of those files.

MUSIC - Canada at the CMJ Music Marathon October 16 - 20 - Various New York City venues Web: http://www.cmj.com/ The annual CMJ Music Marathon once again takes over New York`s club scene for five days of heightened energy and heart-stopping music from a huge international line-up of artists.So far, participating Canadian bands include Chromeo, Crystal Castles, Dragonette, Holy F*ck, Les Breastfeeders, We Are Wolves, The Most Serene Republic, and more to be announced. Keep an eye on http://www.cmj.com/ for further line-up announcements, as well as relevant dates, times, and venues.

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SEPTEMBER 2007

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TRADEMARK - Who deserves the "iON" trademark? - CTAM 17sep2007 -- Broadcaster Ion Media Networks, formerly Paxson Communications, and a small media firm named Positive Ions are fighting over the "iON" trademark, which Ion Media wants to use in connection with the distribution of cable services. The two parties are scheduled to square off in federal court in Los Angeles in November.

COPYRIGHT - HBO hopes to crack down on piracy - CTAM 13sep2007 -- HBO has started using a system that inserts an invisible bar code into each frame of a video in order to track the source of shows that appear on the Internet before they've been shown on TV. The system, called Shield Forensic, inserts a unique ID into each copy of shows delivered to reviewers.

RADIO - CANADIAN AM RADIO MAY BE AFFECTED BY US SIGNALS -- As of Sept. 14, those American AM radio broadcasters that have implemented HD Radio will be allowed to transmit their digital signals at night as well as in the daytime. Canadian AM stations operating on frequencies that are first and second-adjacent to powerful US stations may experience increased levels of skywave interference after dark as a result of this recent FCC decision. On conventional AM receivers, this digital interference may be heard as a "rushing" or "hissing" sound, superimposed on the desired analog station's audio. source: THE LEBLANC NEWSLETTER Issue #2 (10sept2007)

TRADEMARK - Lulu sues Hulu AP 08sep07-- An Internet publishing company named Lulu has filed a federal lawsuit against the soon-to-launch Web joint venture between NBC Universal and News Corp. called Hulu. Lulu accuses Hulu of trademark infringement, deceptive trade practices and cyber piracy.

COPYRIGHT BOARD OF CANADA SUPPORTS IPOD LEVY - The Canadian Copyright Board released a decision supporting the Canadian Private Copyright Collective?s proposed private copying tariff on MP3 players and removable memory storage cards. See: http://www.cb-cda.gc.ca/decisions/c19072007-b.pdf.

VIDEO GAMES - ONTARIO COURT RULES IN VIDEO GAME DISPUTE - An Ontario (Canada) court has allowed Research in Motion to seek a declaration that two of its games do not infringe Atari?s copyright in Breakout and Asteroids. Atari had previously launched an action claiming that two games available on the Blackberry infringe copyright in two of Atari?s games. The order has been granted even though there is no provision for declaratory relief in the Copyright Act.

BOOKS - HARRY POTTER PUBLISHER SUES LEAKERS AND SPOILERS - Scholastic, the U.S. publisher of the Harry Potter series, is taking legal action against a book distributor, an online retailer, and several peer-to-peer sites, over the unauthorized early release of copies of and information from Harry Potter and the Deathly Hallows.

TV - NBC reaches Amazon TV deal after iTunes break 05sep2007 Reuters -- NBC Universal has reached a deal for online retailer Amazon.com Inc to sell television show downloads, it said on Tuesday, just days after the media company pulled the plug on a contract with Apple Inc'siTunes. Amazon will sell NBC shows such as "The Office," "Heroes" and "30 Rock" through its Unbox digital video download service, the companies said in a statement. Individual episodes will cost $1.99 on Amazon, the same as they had on iTunes. NBC Universal, a unit of General Electric Co., announced on Friday that it would not renew its contract with iTunes, becoming the second major media company, along with Vivendi's Universal Music Group, to challenge Apple's dominance in digital entertainment. Apple last week said NBC Universal had sought to more than double the wholesale rate for each show, which Apple said would have forced its iTunes online store to raise its price to $4.99 per TV show episode from $1.99. NBC Universal, which had been the No. 1 supplier of digital video to iTunes, disputed Apple's claim and said its focus was on more flexibility and the ability to package shows together. NBC and Amazon said they would offer a variety of packages for the shows, including a discount of up to 30 percent when customers buy a full season's worth of shows. New shows will be available the day after they air on television, the companies said. "We're excited to be working with a partner that understands the wholesale and retail relationship and will work with us on creative packaging of content," said Jean-Briac Perrette, president, NBC Universal Digital Distribution. Earlier this summer, Vivendi's Universal Music Group declined to sign a long-term deal with Apple's iTunes, leaving open the possibility for exclusive deals with other services, a source told Reuters in July. Vivendi also owns a minority stake in NBC Universal.

FILM - Academy sues to buy Oscars given to Canadian Mary Pickford AP 03sep07 -- The organization that hands out the Oscars is suing to halt the sale of three Academy Awards, two given to Toronto-born film star Mary Pickford and one to her husband. The Motion Picture Academy of Arts & Sciences says it has filed a lawsuit against three people who inherited the Oscars, claiming the right to purchase the gold statuettes for $10 US each. "If the public believes that any multimillionaire can buy an Oscar, then it becomes cheapened," David W. Quinto, the academy's attorney, said Friday. "It becomes an article of commerce rather than a very prestigious award." Quinto said Pickford was a founder of the academy and helped approve the Oscar design. "From the academy's point of view it's just unthinkable that Mary Pickford … would ever consent to do anything that would ever cheapen it in the eyes of the public," he said. Pickford won one trophy in 1930 for best actress and garnered an honourary Oscar in 1975 as a tribute to her.


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This blog is available and distributed for free by the offices of Mark Vinet and Wadem Publishing. Information contained herein should not be relied upon or considered as legal advice. This blog may be forwarded, downloaded or reproduced in whole in any print or electronic format for non-commercial purposes provided that its author is acknowledged and that you cc: mark@markvinet.com
© ™ Mark Vinet & Wadem Publishing