Sunday, June 15, 2008

Prince/Radiohead and YouTube

I have been reading with interest the recent tug of war and apparent misuse of the US Copyright Act by Prince with respect to his live performance of the Radiohead song Creep. Prince played this song at a concert and an audience member filmed part of the performance and posted it to YouTube. Prince’s label then used the DMCA to have the clip removed but Radiohead, the copyright owners of the song, sought for the clip to be reinstated:

Radiohead's Thom Yorke has reportedly objected to the takedown in a recent interview: "Well, tell him to unblock it. It's our ... song."

Commentators have suggested that Prince’s actions were unlawful because while anti-bootlegging law may have been applicable, the DMCA take down procedure used to have the clip removed was not available as a remedy.

This raises an interesting distinction between Australian and US copyright law as recent amendments in this country would now allow an artist in a similar position as Prince to take action under Part XIA of the Copyright Act 1968 (Cth) with respect to the performance itself.

In Australia protection for performances was introduced in 2007. Among other rights, section 248G establishes the rights of an artist to control the direct and indirect recording of performances, the copying of performances, as well as communicating them to the public.

Section 248PA provides both an indictable and summary offence for the direct recording of a performance without the authority of the performer during the period of protection which is 20 years for a cinematograph work or 50 years for a sound recording, taken from the date the performance was first given.

A person found guilty of an indictable offence could be liable for up to 550 penalty units ($60,500) or five years imprisonment. A corporation found guilty of the same offence is potentially liable for five times this amount. The equivalent summary offence is punishable by 120 penalty units ($13,200) or 2 years imprisonment.

These rights are in addition to moral rights provided to performers in Part IX of the Copyright Act which relate to attribution, false attribution and integrity.

In a scenario such as this an injunction would be available to prevent a clip being communicated to the public against the wishes of the performer, the take down procedures relating to hosts of internet content would also be applicable. Whilst section 248G provides that the provisions relate to performances in Australia, section 248U and 248V see the protection also being offered to international artists when performances take place in Australia.

The division (XIA) of the Australian Copyright Act dealing with the protection of performances became effective when the Australian Government acceded to the WPPT – WIPO Performances and Phonograms Treaty. While the laws had been drafted and placed in the Australian Copyright Act for quite some time they did not become effective until 26 July 2007.

Article 6 of the WPPT requires member countries to protect the economic rights of performers by enabling them to enjoy the exclusive right of authorizing the broadcasting and communication of their performances to the public and the fixation of these performances.

Article 7 provides that performers shall have the exclusive right of reproducing their performances and Article 8 provides for the exclusive right to distribute the original and copies of performances. Moral rights are also afforded under the treaty under Article 5.

It is interesting to place this treaty in a discussion of the purpose of copyright law - namely the need to establish an environment which provides incentives for artists to create. Clearly in this instance the uploading of the Radiohead song was a non commercial use and arguably the clip would have produced greater interest in Prince’s live performances. Therefore suggestions that this clip breached Prince’s economic rights are difficult to sustain.

One report suggests that Prince was filming the live performance himself. Taking this into account it could be argued that seeking to have the clip removed from YouTube was a reasonable request, however, it is unlikely that a short clip such as this would have had a major impact on the sale of any forthcoming DVD.

This situation also serves to illustrate the complexity and expansion of intellectual property law.

Performer’s rights in general have been criticized as being both unnecessary and ineffective. Undoubtedly there were other singers, musicians and dancers performing this song with him. All of these artists would have had to contract away their rights in order to work with Prince.

Furthermore this situation demonstrates the difficulty in complying with the rights of composers, recording artists and performers when each is a different person. Luckily in the USA there are no moral rights – in Australia the situation would be even more complex than this.

Prince’s actions have created poor publicity for him and potentially damaged the goodwill he has developed with his fans. These types of events however do help bands such as Radiohead and others in the open content field by highlighting the potential to abuse DMCA takedown notices.

The general public are learning time and again of the potential for copyright law to impact on free speech. It's all a little bit creepy :-)

Further Reading
TechDirt, Even Lawyers Are Confused About What's Legal Or Not In The Prince/Radiohead Spat (12 June 2008) <> at 13 June 2008

TechDirt, Prince And Radiohead Fight Over YouTube Song (30 May 2008) <> at 4 June 2008

EFF Deeplinks, Prince Issues One Takedown Too Many (2 June 2008) <> at 7 June 2008

ZeroPaid, Prince Removes Radiohead 'Creep' Cover From YouTube (31 May 2008) <> at 5 June 2008

TechDirt, Is Watching An Infringing YouTube Video Copyright Infringement? (16 May 2008) <> at 21 May 208

Billboard, Radiohead To Prince: Unblock 'Creep' YouTube Vids (30 May 2008) <> at 13 June 2008

William van Caenegem, Intellectual Property (2nd ed.) 83- 84

WIPO, WIPO Performances and Phonograms Treaty (WPPT) (20 December 1996) <> at 15 June 2008

Attorney Generals Department, Australia to Join Internet Copyright Treaties (26 April 2007)> at 10 May 2007

Australian Copyright Council, Government announces accession to WIPO Internet treaties (8 May 2007) <> at 10 May 2007

FreedomtoDiffer, Australia to Join Internet Copyright Treaties (26 April 2007) <> at 30 April 2007

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