"Touchstone: A basalt or slate rock used for assaying precious metals. Before accurate analysis was possible gold and silver was struck against the touchstone to test for quality against a known standard."

Hotel Entertainment

December 5th, 2011

The Irish High Court is asking the Court of Justice for a preliminary ruling on whether Hotel operators have to pay a fee for playing copyright music in guest bedrooms. The Irish music collection society is asking the Irish State to amend a law which exempts hotels from having to pay copyright licence fees for this purpose. The interim ruling did not go in favour of continuing the exemption and said that the hotel operator is also a “user” of the copyright music and must, in addition to the radio station operator pay the requisite charge. The question must now go to the ECJ to answer and confirm whether the playing of Radio to hotel guests is “private use” and exempt or not.

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Eminem Unambiguous

September 10th, 2010

As part of Eminems recording arrangements a contract was entered into between Aftermath (a record label) and FBT Productions.  That agreement stated that Aftermath would pay FBT a 12-20% royalty on “records sold” and 50% for “masters licensed …. to others for their manufacture and sale of records or for any other uses”.  Aftermath then did a deal with iTunes but only paid FBT at the lower rate on the basis of “records sold”.  FBT sued seeking an order that the arrangement with iTunes was a master licence for “other uses”. At first hearing the court decided that the lower royalty level was due saying the agreement was “ambiguous”.  On appeal the court has said that the agreement was “unambiguous” and the higher royalty should apply.  The sums involved could be substantial.

The question is “Is that the right interpretation?”   On the face of it an iTunes download is not a “record sold” and Aftermath would have had to licence iTunes a “master” to reproduce the original song(s).  But they would have also had to supply a “master” and licence their CD manufacturer to create the CD’s.  Is the role played by iTunes any different from that played by the CD manufacturer in these circumstances?

The underlying issue is that many manufacturing and distribution agreements do not take full account of the ownership and licensing of intellectual property, (whether that be in songs or widgets) nor do many of them address the issue of technical developments and future technology.  I am sure that Eminem can afford very high quality legal advice but that has not helped his production company here as they have ended up embroiled in lengthy and costly litigation on the back of a poorly worded agreement.  It may seem tedious and costly to settle a legal document before any monies have been paid in royalties but the risk of losing your potential income from an invention,  design or song copyright is worth the effort.

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May 4th, 2010

The Intellectual Property Office have issued the following warnings:

Some companies and individuals are sending out unsolicited invitations to applicants and owners of UK trade marks and patents inviting them to apply for entry in various (sometimes official sounding) publications and “registers” in return for payment of a fee.  These are often in the form of invoices.  These are not official registers and are not connected to the IPO.

Other companies are offering (for a fee) to file Community Trade Marks based on the existing UK mark or application.  Often that offer and the quoted fee does not include “hidden” costs and fees or exceeds what would be quoted on the open market in the UK for such work.

If you receive a letter or invoice you are not sure about either check it carefully or send it to us to check it out for you free of charge.

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When does perpetual not mean forever?

March 19th, 2010

Apparently when it means “of indefinite duration, but subject to any contractual provisions governing termination” according to Mr Justice Sales in a High Court Chancery Division decision last week.  The parties to a software licence varied the agreement to make it “perpetual” but did not refer to the termination provisions (and did not say whether they still applied or not) so the Judge looked at the entire agreement and came to the conclusion that if they had wanted to exclude the original termination provisions they would have said so expressly.  So do you need to look at all your software licences and other intellectual property grants to find out what the expression of that term means in the context of your contracts?  Er, well, yes.  Each contract will be interpreted against the nuances of its own drafting.  Perpetual is not a term of art and its legal meaning might not be the one you can view in your dictionary.

The case is also a good example of contract variations being examined at a much later date and sloppy drafting coming back to haunt the parties.  It is often the case, where the parties fail to state the precedence of conflicting clauses or vary the contract but don’t delete the entire original clause by the variation, that changes or conflicts can give an entirely different complexion to the arrangement.

Before you take the step to vary or terminate a contractual arrangement relating to software or intellectual property of any nature then it would be wise to consult your specialit IT/IP lawyer to ensure that any changes are made in your favour.  If you want to know more about this specific case BMS Computer Solutions Ltd v AB Agri Ltd [2010] EWHC 464 (Ch) and how it could affect your business give us a ring on 07787 283749 or contact us by email sarah@touchstonels.com.

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Cloud Computing

February 12th, 2010

With the largescale uptake of computer services (be that data centres or more generally the supply of on-line data transaction and management services) the most common questions I get asked relate to data security and recovery of data. 

Most data centres offer high levels of encryption and multi-layer locationing of data (splitting your data into smaller packets to store in different locations thereby giving the hacker less chance of obtaining threads of information) together with multi-duplication of data in different physical locations, so avoiding risks of fire or other physical destruction.  Do ask the supplier whether duplication is within the same facility or within a ten mile radius of the original.   Ensure that you understand how your data is given a security barrier both during the transmission to the data centre and after it arrives there.

As for recovery of data either during or after the end of the arrangement do you have any method for checking the content of the data recovered against the known uplift?  Do you have to demand return of your data at the end of the relationship and if so is there a time limit?  How are data back-ups made and how easy would it be to bring about a total recovery if there was an energy supply failure at the data centre?

Ask the questions and ensure that your terms of supply cover all these points to have peace of mind.  Make sure you are comfortable that the contract terms reflect the promises that have been made.

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