ON SAMPLING AND SPIDERS

1 "Where there's a hit, there's a writ"

The IPKat has been sent news from The Independent that pop stars will soon be required to credit the musicians they sample. Artists such as Fatboy Slim, who have become famous for taking samples from other recordings, will have a "moral duty" to credit the original artists before they can use their work in songs. Sampling - the use of short extracts of other works mixed into a contemporary song - has caused legal disputes over whether it infringes copyright. The anger of many of those being sampled has often changed to gratitude as a new generation appreciates their work for the first time, but some samples have led to court disputes.

According to The Independent, regulations were published yesterday by the Patent Office which give all performers a moral right to their work, bringing them in line with authors -- who have held similar moral rights since 1988. The regulations, which apparently come into force in the new year, give performers the right to be identified as the performer on any records where their work has been sampled. They will also be given a right to object to any modification made to their performances that are "prejudicial to the performer's reputation". It is thought that most samples do indeed distort the extracts taken from the originals.

Says the IPKat, the explanatory note to the Regulations reads:

"The right to be identified must be asserted in an instrument in writing signed by or on behalf of the performer and then any person is bound by the assertion once it has been brought to their notice. It applies to the whole or any significant part of a performance".

This requirement was incomprehensible and indefensible when it was introduced for authors and artists in the Copyright, Designs and Patents Act 1988 and it remains just as incomprehensible and unjustifiable for performers now. Why cannot this stupid, unnecessary, unproductive and illogical formality be scrapped NOW?


2 Cross-border injunctions

IPKat friend Piter de Weerd has sent him news (courtesy of the recent De Brauw Blackstone Westbroek IP newsletter) of a recent Dutch patent court decision that may offer a provisional cross-border solution for patent owners who see their rights infringed in a multitude of countries. In this case Diamed claimed that five defendants, located respectively in Sweden, Italy, Spain, Germany and the Netherlands, infringed its patent. The defendants counterclaimed for invalidity. The Hague District Court stayed the proceedings pending the ECJ's keenly-awaited ruling in Case C-4/03GAT v LuK but nonetheless considered itself competent to grant cross-border relief on the basis that it only had to assess the likelihood that a foreign judge would uphold the invalidity defence (the same would be true in summary proceedings).

As for the foreign defendants, the court considered itself competent to rule on the injunction claim, but not so far as it would have cross-border effect. Furthermore the The Hague court indicated that it would base its competence in cross-border cases on the so-called "spider in the web" theory and declined to stay the proceedings until the ECJ ruled on questions that were referred to it, considering it unlikely that the ECJ would take a narrower view than its own. The Hague District Court is a specialised patent court. This is its second recent judgment to confirm explicitly the possibility of cross-border injunctions in summary proceedings in the Netherlands.

The IPKat remains surprised that, so many years after the prospect of cross-border infringement was first recognised, there remain so many uncertainties in national courts as to (i) what relief is actually available and (ii) when that relief should be granted.