Sony BMG, iTouch suit highlights mobile music definitions dilemna

Stephen Whitford — Judgment in the appeal of the Sony BMG vs iTouch case sitting before the Advertising Standards Authority of South Africa (ASASA) is due shortly after the ASASA heard arguments by Sony BMG and iTouch at the beginning of February.

The ASA ruled in favour of Sony BMG last November saying that iTouch’s use of the word truetone in an advert which sold covertones/sound alikes was misleading. However, in the November ruling, the ASASA did not uphold Sony’s complaint that iTouch rode on Sony BMG’s advertising goodwill of the promotion of its artists. As a result, both Sony BMG and iTouch appealed the decision.

In his presentation, Nhlanhla Sibisi, Sony BMG Legal & Business Affairs director, appealed to the ASASA to uphold its decision that the use of the word truetone in iTouch’s advertising was misleading when the ringtones being sold were not ringtones from using the original artist’s songs, but rather covers of those songs.

He also asked the ASASA to apply the same principles to all Sony BMG artists.

Greg Brophy, iTouch MD, claimed that users, who have been downloading ringtones since 1995 and have seen the progression from monophonic ringtones to truetones, understand the terminology. He made a further claim that that when users purchase what iTouch calls a truetone, they are in fact purchasing a ringtone performed by a band doing a cover of an original artist’s song and not a ringtone from the original artists song itself.

Brophy said that iTouch had sold 243 975 true tones/covertones in December and January and said that not one of the users had complained either to them or the cellular networks in South Africa.

He further claimed that the reason Sony BMG is targeting iTouch is because, “we [iTouch] are the biggest supplier of ringtones [in South Africa] and if Sony BMG wants to make a point, we [iTouch] would be the company to target.?

Sibisi countered Brophy’s claim that a truetone is equivalent to a covertone, while realtone refers to a ringtone using an original artist’s version of the song, by producing a advert from a sister company of iTouch in Australia, which states in the disclaimer that the word realtone in fact refers to covertones.

Exactmobile has called on South Africa to follow the international initiative by the Mobile Entertainment Forum to standardise the definition of the term “realtone’ (and truetone) to resolve the problem of consumer confusion caused by purchasing sound-alikes.

Davin Mole, Exactmobile CEO, says the MEF in January adopted a recommendation by the European Digital Services Provider DX3 Technologies (DX3) to define a realtone as ‘a ringtone that is licensed by the rights holder, produced from an original recording, with the performer clearly identified in its marketing material’.

The MEF is also reviewing standardised branding for cover versions in order to provide a clear distinction between the two for consumers.

Sound-alikes have created a real problem locally and internationally for consumers because they create confusion in the market with consumers being led to believe that they are buying the original song when they are, in fact, purchasing a cover of the song, he says.

Locally, Mole says only Vodafone Live uses the word realtone, while the generally accepted term for a ringtone taken from a song by the original artist, is truetone.

This has been highlighted further by the complaint sitting before the ASASA, Mole says.

“The confusion creates a problem for companies like ourselves who only sell truetones from the original artists – we don’t sell sound-alikes. The consumer becomes confused and dissatisfied when they purchase sound-alikes thinking it is the original, which only damages the reputation of the industry,? he says.

Mole argues that South Africa needs some kind of standardisation process like the MEF is lobbying for overseas. Or at least have a decision made by WASPA and the cellular networks as to what terminology should be used and how sound-alikes should be advertised, he says.

The MEF initiative is widely supported by the major record labels and has been created to provide clear guidance for consumers, allowing them to instantly identify what they are purchasing.

At the same time, the standard will provide a framework for international providers to chart sales and set up an enforcement structure to protect artists, record labels and those companies that have legitimately bought the rights to distribute licensed content, Mole says.

According to Mintel research, ringtones are believed to make up at least one third of the mobile download market, estimated to be worth a total of £740m at the end of 2005.

The move internationally towards an industry standard definition comes at a time when the numbers of digital downloads across all platforms are soaring. “The International Federation of the Phonographic Industry (IFPI) has reported that the number of digital music downloads tripled in the first half of 2005. The IFPI went on to say that while hard-copy format sales (£7.1billion) outweighed download sales (£451million) in the period, more tracks are now downloaded than are sold as hard-copy singles and as many are downloaded by mobile phones as via the Internet.

Written on behalf of Exactmobile by: Stephen Whitford.

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