Dance-music record label, Ministry of Sound (“MoS”), recently initiated proceedings in the High Court against Spotify, a music streaming service that allows users to create their own playlists.
- Well, MoS claims that Spotify has refused to delete user generated playlists, created by some of its 24 million users, which replicate their compilation albums. MoS is seeking an injunction requiring Spotify to remove the playlists, a permanent block against other future playlists imitating its compilations, damages and costs.
MoS claims that it has been asking Spotify to remove the playlists, some of which include “Ministry of Sound” in their titles, since 2012. Whilst other streaming services have complied with MoS’s request, Spotify has resisted.
But what about other compilation albums… aren’t these being replicated by Spotify too?
MoS’s position varies with that of other notable compilation brands such as, “NOW That’s What I Call Music”. This is because, quite simply, in most cases MoS does not own the rights to the songs themselves.
NOW, which is jointly owned by two major record labels, Universal and Sony, launched an app within Spotify’s desktop software earlier this year for access to its NOW albums. Unsurprisingly, Universal and Sony own the rights to a significant proportion of tracks on the NOW compilation albums. This means that, as record labels, they receive royalties each time their tracks are played.
In contrast, MoS is not entitled to receive any royalties for such streams. The cornerstone of its record label business is the skill and effort it employs in compiling albums which signify its brand and what its fans want to buy.
So does copyright exist in the compilation of song titles?
MoS seem to think so.
While MoS have licensed the vast majority of tracks on their compilation albums from other record labels, this case is likely to hinge on whether the actual order of songs from an album can be protected due to the selection and arrangement involved in creating a compilation album. The UK’s test of whether sufficient “skill, labour and judgement” have been applied.
As odd as this may sound, MoS’s most likely argument is that Spotify is infringing the database copyright in allowing their albums to be replicated. Section 3(a) of the Copyright, Designs and Patents Act 1988 provides copyright protection for databases, widely defined under EU copyright law to include any collection of independent copyright works which are individually accessible and systematically or methodically arranged.
But what about recent case law?
Recent CJEU judgments have found that there is a requirement for an author of such databases to have exercised a “creative ability in an original manner by making free and creative choices.”
In the recent UK case of Football Dataco and others v YAHOO! UK Ltd and others, Football Dataco organised football matches in England and Scotland and produced fixture lists detailing scores, penalties and player substitutions which were available to their online customers via the web. YAHOO! used these fixture lists to compile data for its own databases. Football Dataco claimed the use of this data by YAHOO! without a licence breached their rights by infringing copyright. The ECJ found that compiling football fixture lists and other data are not protected by copyright if the compilation is not the author’s own intellectual creation even if the compilation itself required significant labour and skill.
Whether MoS’s compilations attract protection is likely therefore to hinge on whether the Court finds that there is sufficient creative skill in conducting musical analysis in order to present the order of songs in a unique way. However, there are clear opposing arguments, not only from recent case law but also supported by Recital 19 of the EU Database Directive, which provides that “as a rule, the compilation of several recordings of musical performances on a CD does not come within the scope of this Directive… because, as a compilation, it does not meet the conditions for copyright protection…”
MoS’s attempt to protect its existing business model of compilation sales will be watched with interest by businesses involved in creating compilations as it has important ramifications for the feasibility of such business models in the age of digital content sharing services.
A hearing date hasn’t yet been set, but other streaming services should be on alert. If MoS is successful, other businesses may seek to follow suit.