To those who have ever created an awesome Ministry-esque playlist on Spotify – you may have just got them into trouble. In September this year, Ministry of Sound, famous for their dance music compilations (think “Addicted to Bass”, “Sessions”, “Chillout Sessions” and the now-ironically named “On the Download”), have sued Spotify for copyright infringement in the UK High Court.

Spotify is a music streaming service that allows users to create their own playlists. Approximately 24 million Spotify users have created over 1 billion playlists since Spotify’s inception in 2008 – and this has been made even more possible by Spotify’s “Browse” feature, launched about a month ago, which directs users towards playlists they might like.

Ministry of Sound has released hundreds of compilations over the last ten years. According to the CEO, Ministry of Sound’s compilations business has had “double and triple-digit growth year on year”. (There must be huge money to be made off doof-doofers…)

Ministry of Sound claims that Spotify refused to delete users’ playlists that copy their compilation albums (some of which include the words “Ministry of Sound” in their titles) following numerous requests since last year for them to do so. Ministry of Sound wants an injunction requiring Spotify to remove the playlists, a permanent block against other playlists which copy Ministry of Sound compilations, and damages and costs.

The question is, is there copyright in choosing and arranging songs onto a compilation album? Spotify has the right to stream the music – so the question to be answered by the High Court turns on a narrow point – is there intellectual property to be protected in putting a playlist or compilation of songs together? Ministry of Sound’s CEO thinks so, and was quoted in The Guardian as saying: “What we do is a lot more than putting playlists together: a lot of research goes into creating our compilation albums, and the intellectual property involved in that. It’s not appropriate for someone to just cut and paste them.”

Copyright in compilations have long been protected in copyright law, particularly when it is plain there is judgment and skill involved in selection and arrangement. However, this area of law becomes contentious where the work comprises ‘data’ coupled with limited skill (prosaic TV guides and phone directories come to mind). Interestingly, the European Union has what is called a “database right” (see the European Union’s Directive 96/9/EC on the Legal Protection of Databases), which is an exclusive “sui generis” right for database producers, even if the database is not actually innovative or original.

In Australia (and in other countries such as the USA) there is no such database right. The Australian High Court has made it clear that creation of a work by the author, (that is, a human author), as a result of independent intellectual effort is required for copyright protection (see IceTV[1] and Telstra[2]).

In the UK, a party claiming copyright must prove that “some labour, skill, judgment or ingenuity has been brought to bear on the compilation”, which is a question of fact and degree in each case (see Football League v Littlewoods Pools[3]). A recent decision of the UK Court of Appeal in Football Dataco v Sportradar GmbH[4], found that compiling the “Football Live” database “may sometimes involve some skill… but it is not creative skill” and therefore not protected by copyright. The database contained real time or “live” sports data about football matches in progress in the English and Scottish football leagues. The data was uploaded by sports information processors according to what the sports experts told them during the match (apparently at a substantial cost!).

The case against Spotify may therefore see a return to good old fashioned skill and judgment in creating a compilation. Copyright has been found to subsist in the skilful selection of information for inclusion in printer compatibility charts (Tonnex[5]), and a weekly list of recently published books that required considerable labour and research (Whitaker v Publishers’ Circular[6]).

We think that Ministry of Sound might argue that their copyright lies in the artistry of their compilations, that is, the skill of conducting musical and rhythmic analysis that takes listeners on a journey through the album. This creativity is arguably a skill that is capable of protection by copyright – as long as it isn’t some kind of DJ software that, for example, selects songs based on consumer preferences or particular beats. Ministry of Sound will have to identify the author or creator and show that they exercised the requisite degree of skill, judgment and labour in putting the compilations together.

Stay tuned for what the UK High Court says when it examines the creative process by which the compilation of music is put together and delivers judgment!