The British Phonographic Industry (BPI) is the body that represents the UK’s record industry. It hosted its annual industry backslapping event last Tuesday (17 February). The Brit Awards has had its share of controversies over the years, from Jarvis Cocker storming the stage during a Michael Jackson performance to the KLF leaving a dead sheep on stage and peppering the audience with blank machine gun fire. But none of the clean-cut stars appearing at Tuesday’s bash could court controversy to quite the degree that their paymasters have done as they struggle to catch up with the technological innovators who have made music available in ways that the record companies could not imagine.
To stitch the hole in its pocket, the record industry has turned to its lawyers, a move that has not exactly ingratiated it with its customers. Following one recent case, where the BPI successfully stopped website CD WOW! from importing CDs that it had bought in Asia, it received hundreds of abusive emails. Legal adviser Roz Groome shrugs off the critics and the foul language, jesting that their grammar needs some work. Groome may be immune to imaginative insults, but if she starts suing CD-buying customers, as the BPI’s US equivalent has done, she can expect a whole lot more.
Groome assumed her position on the front line against music piracy four years ago, just one year after qualifying at Richards Butler. The move out of private practice came sooner than anticipated, but Groome insists it was a dream job that could not be turned down. However, the dream job has changed. “The digital world has really evolved in the last four years,” says Groome. Some would call it a revolution – and the record industry is struggling to keep up. “We’re at a critical time,” admits Groome.
At Richards Butler, Groome advised the BPI on criminal prosecutions, but her job has evolved to include a whole range of duties and a lot more litigation.
Groome holds positions with three companies that are related to the BPI. She is company secretary of Brit Awards Ltd, the wholly-owned subsidiary of the BPI which runs the awards shows. Her predecessor, Emma Fanning, who is now an independent consultant, does most of the legal work for the Brit Awards and the Classical Brits, but liaises constantly with Groome.
The Brit Trust is a charity run by the BPI. As company secretary of the trust, Groome has had to brush up on charity law. The proceeds of the Brit Awards go to the trust. It has two main charities: the Nordoff Robbins Music Therapy charity and the Brits School, which is a performing arts school based in Croydon, which produced Katie Melua, the new folk sensation sweeping the Radio 2 nation.
The third company, of which Groome is company secretary, is the Official UK Charts Company, which is a joint venture between the BPI and the British Association of Record Dealers, which runs the Top 40. As company secretary and legal adviser, Groome has to look after the database rights and copyrights of the charts.
But the rights that concern the BPI the most are those of its members, the UK music companies. “The music industry’s lifeblood is copyright,” says Groome.
The BPI’s US counterpart, the Recording Industry Association of America (RIAA), has been particularly vigilant with those it claims are infringing copyright. The rise of internet file-sharing software systems such as Napster, and subsequently Kazaa, caused the RIAA to go on a litigation offensive. It eventually managed to close Napster, but troubles pinning down Kazaa have resulted in the RIAA suing individual users of the Kazaa software.
The BPI has not been as fast to follow suit. When Groome started at the BPI, it was lobbying in Europe for the Copyright Directive. “One of the problems was that we weren’t sure whether we had protection until the EC Copyright Directive came in at the end of October last year. We now have strong remedies under those regulations,” says Groome.
Until very recently, UK citizens who wished to download music from the internet had very little opportunity to do it legally. “The Copyright Directive is so important and it was overdue,” insists Groome. “Obviously there’s a nervousness – you don’t want to start selling something if you don’t know if you’re protected. Now I think you’ll see an increase in online activity.”
Now it is illegal file-sharers who are at risk. “Nobody wants to sue individuals, but it’s a carrot and stick. We have the carrot of the online services and there’s the stick of litigation. If people do infringe rights, there will be penalties,” states Groome emphatically.
But that is for later. This year has been dominated by the CD WOW! case. The agreed press release about the settlement reads: “The record industry claimed that CD WOW! was obtaining sound recordings from outside Europe and selling them to UK and Irish consumers. As a result of the settlement, CD WOW! has agreed that it will not sell CDs that have been first placed on the market outside Europe to UK and Irish customers.”
That was fine until CD WOW! sent an email to all its customers stating: “The major UK record companies, through their mouthpiece the BPI, have unfortunately restricted the UK and Irish consumers’ right to enjoy the freedom of the World Wide Web. As from this weekend, any CD ordered for delivery to the UK and Ireland will incur a surcharge as we are only able to deliver CDs manufactured within the EU (more expensive).”
Considering the barrage of abuse already endured from the public, this was not good for the BPI. “It’s not true and it’s very very damaging for them to say that,” says Groome. “We can’t influence what they charge. We don’t care what price it is. We just care that it’s a legitimate product.”
The BPI was forced to go back to court to get an injunction to stop CD WOW! saying this. That injunction stands until 1 March 2004, when all the parties will return to court to argue once again. Wiggin & Co and Richard Spearman QC of 4-5 Gray’s Inn Square assisted Groome with the case. Both also assisted the BPI with last year’s case against EasyInternet Café, which stopped Stelios’s employees from burning CDs for customers who had downloaded songs from the internet.
Wiggins assists the BPI with a number of issues, including property and small-scale corporate work. “Wiggin & Co are much better value than the big City firms,” says Groome.
The BPI also has a long history with Olswang, which helped with the establishment of the BPI. The firm now advises on broad-ranging industry issues such as negotiations with other industry bodies and issues concerning the BPI’s constitution.
Richards Butler has not been so lucky with maintaining its relationship. The firm acted on R and Johnstone, a trademark case that went all the way to the House of Lords, and has also verified the criminal and civil sections of trademark actions. Richards Butler may be instructed on other trademark issues, but nine months ago one of Groome’s closest former colleagues, Mike Northern, quit the firm to launch his own niche practice Mike Northern Legal.
“That’s been excellent for us, because he’s an expert on the criminal side and he’s now a niche firm, so his costs are much lower,” says Groome, who also uses niche employment practice Doyle Clayton. “I really believe in niche practices. You get really good value for money,” Groome concludes. SJ Berwin is the only other sizeable firm that gets a look-in, with partner Tom Usher advising Groome on competition issues.
Groome’s other allies include the BPI’s Anti-Piracy Unit, Trading Standards Institute and the police. With physical piracy (ie CD copying) still a massive problem, and with the discovery of its links with organised crime, Groome will be busy chasing villains for a while yet.
The British Phonographic Industry
|Organisation||The British Phonographic Industry|
|Legal advisor||Roz Groome|
|Reporting to||Director general Andrew Yates|
|Mail law firms||Mike Northern Legal, Olswang and Wiggin & Co|