Ministry of Sound lawsuit against Spotify may have implications for playlist makers

Ministry of Sound, the well-known dance music brand, launch UK copyright infringement proceedings against the music-streaming service Spotify on the grounds that it has refused to take down users’ playlists that copy many of Ministry’s compilation albums.

What happens when a compiler of well-known dance songs sues the most popular alternative to music piracy for copyright infringement? The High Court will ultimately decide the outcome, but there appears to be a growing sense of ill will towards the Ministry of Sound (MoS) which raised an action against Spotify for copyright infringement this week. Although MoS has granted Spotify a license to use the songs, MoS has launched a compliant that Spotify has refused to take down user’s playlists and remove users that mimic MoS’s compilations. In order to prove that there is a right in IP over the playlists, MoS will have to prove that there was an “intellectual creation” in the way it compiled its songs as defined by section 3A of the Copyright, Designs, and Patents Act 1988, namely:“[A] ‘database’ means a collection of independent works, data or other materials which –(a) are arranged in a systematic or methodical way; and(b) are individually accessible by electronic or other means”.It is important to note that Ministry of Sound does not offer its compilation albums on Spotify. It claims that users are compiling the songs from other sources and then naming the playlist as “Ministry of Sound”. This is because MoS chief executive Lohan Presencer believes that Spotify has a “business model does not recognise that our products have any material value. It doesn't consider them worth licensing. Which would be entirely its prerogative had our paths not crossed”.Because MoS only compiles the songs that other artists have agreed to license to Spotify, it feels the value is in the way that it compiles the songs, rather than the song itself. Prima facie, this is going to be an interesting dispute for IP commentators to watch. The law regulating the use of databases ( a compilation is a form of database) is a confusing and difficult area of copyright law. Take for example Recital 19 of the EU Directive on Databases. It states: "Whereas, as a rule, the compilation of several recordings of musical performances on a CD does not come within the scope of this Directive, both because, as a compilation, it does not meet the conditions for copyright protection and because it does not represent a substantial enough investment to be eligible under the sui generis right."

It's the way we compile our beats

In other words, one wouldn't be able to claim that a typical CD would be protected by the database directive. Other cases involving compilations have involved large collections of laboured indexing. For example, in Ray v Classic FM, the complainer had compiled and indexed over 50,000 items of classical music and had categorised them over a five year period. However, Classic FM conceded there was a copyright in the database, and the database was compiled over time, and before the database directive was transposed into UK law. In the Direktmedia case, which featured the compilation of "the 1,100 most important poems in German literature between 1730 and 1900”. The author of the list succeeded in Germany in a claim for copyright infringement. However, playlists are a little different as they are most certainly "databases". What has to be decided by the court is whether “creative effort” is found in something other than the music. If MoS can successful argue that the playlist was a creation which exhibited a contribution that exhibits the use of “formative freedom”, then their claim may be successful. The unique nature of compiling dance music will no doubt be at the heart of MoS’s legal argument – the beats per minute; the key of each track, the sound and feel, and the act of compiling will likely be used to make the case that a compilation is worthy of copyright protection. The High Court may, however, may take a step back and contemplate the implications of their ruling. Arguably, a list of music matching criteria would not be protected by copyright, because it is likely going to be collected in a random way. However, “mix tape” of love songs, carefully selected to generate the right kind of ambiance for a night of romance might be. The High court might not be in the mood for extending copyright protection to star-crossed lovers who put to together a “get-in-the-mood” playlist on Spotify. It all depends on how convincing MoS’s evidence is presented for creative freedom.

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