Saturday, 18 August 2018

Is Google the ultimate Puppet Master?

There is a fascinating article on the TRICHORDIST website that looks at who has been paying and who has been driving the resistance to amendments and reform of EU Copyright law (in particular Article 13 of the draft Copyright Directive). Vast resources had been pumped into a campaign to 'save the internet' from the greed of the bully boys and girls in charge of film companies, record labels, publishers and other content owners. But what is the truth and who is behind 'OpenMedia' - an organisation that on surface seems to be all about keeping the internet  open? 

Julia Reda, the German Pirate Party MEP may have been the public face of resistance to reform - But who was behind these campaigns? Well have a read and see what you make of this ...... But (SPOILER ALERT) the conclusion reached by author Volker Rieck is this: "Ultimately, US companies from the Internet economy financed significant parts of a campaign in Europe to influence EU legislation. What looked like grassrootes movement from the outside was in fact a classic form of astroturfing – designed to create the appearance of a popular movement....... "

There is more - much more in

Anatomy of a Political Hack

and more in the Times here

Wednesday, 15 August 2018

THE COPYKAT reaches out to a new public

Howzat! (C) 2018 Ben Challis
There has been plenty of recent comment on the decision by the CJEU in C‑161/17 Land Nordrhein-Westfalen v Dirk Renckhoff where the court found that users who publish content which is already available on the internet would  still need the further consent from the rights owner in question saying “The posting on a website of a photograph that was freely accessible on another website with the consent of the author requires a new authorization by that author”. We have already posted Eleonora's analysis of of CJEU's thought provoking decision and this blogger, a very keen sports photographer, is rather pleased with the CJEU's reasoning which he feels has some resonance - but the decision has stirred up widespread criticism. To me the fact remains when I post a photo om my sports photography Facebook page - for example the one to the left on this very blog - it's targeted to a specific audience for a specific reason - and I would not want to see my photo re-used on a third party website without my consent - being pointed at a 'new' audience whether that's free or perhaps supported by advertising. I certainly would want the right of further consent  should that image used for a different purpose such as in advertising.  And the case is being seen as a pro-copyright with Reuter's headlining with "EU's top court backs copyright holder in landmark ruling" - not least as the Court went against the Opinion of Advocate General Campos Sanchéz-Bordona. More here and others may have different opinions to this CopyKat's thoughts above. 

Techdirt have posted a fascinating insight into the somewhat complex set of cases involving a woman named Shirley Johnson, who posted videos to YouTube that were critical of the New Destiny Christian Centers and Paula White Ministries. This in turn resulted in a lawsuit from Ms Paula White et al for copyright infringement. So far so good. But things did not go smoothly for Ms White. Her case seemed to ignore the fairly obvious defence of fair use - and indeed as time progressed the case was dismissed, and then Johnson counter sued for "malicious prosecution" and she also filed DMCA s512(f) abuse claim. That claim is ongoing by techdirt now reports that  the court awarding Johnson $12,500 against White for the "emotional harm" from the 'bogus' copyright claim. Remembering it was Paula White Ministries (et al) who started this battle, the court was fairly scathing of how White treated the litigation as time went on, saying that Paula White Ministries "have exhibited a patent disregard for the Court’s discovery orders and processes" and "maintained that they did not have to comply with discovery, demonstrating a preordained belief that they were above this process" and  "The Court now finds that the interests of justice require default judgment as the only effective remedy" awarding very limited costs to Johnson (who represented herself) and awarding  $12,500 for emotional harms, although this was limited because Johnson seemingly did not seek medical treatment for the harm.

Another expensive (with hindsight) mistake seems to have been Ludlow Music's efforts to protect the 'copyright' in the iconic US song ‘We Shall Overcome’. Ludlow have now been handed a legal costs bill of $352,000 after conceding earlier this year that the work was public domain in America. The case was settled in January and Ludlow declared that both the melody and lyrics of ‘We Shall Overcome’ are “hereafter dedicated to the public domain”. Now Judge Denise Cote has said that Ludlow should cover the other side’s legal fees - despite the fact that Ludlow’s defence wasn’t “objectively unreasonable” CMU says that the Judge awarded legal costs to reward the Plaintiffs for enabling public access to “an American treasure”. The judge stated: “The degree to which plaintiffs succeeded in this litigation, and the inestimable benefit they have conferred on the public through doing so, renders this the type of lawsuit that should be encouraged in order to promote the purposes of the Copyright Act”.

More from the USA: The Music Modernization Act, which quickly passed the House unanimously in April, and the through the Senate Judiciary Committee, looked in some trouble after an objection by collection society SESAC (formerly known as Society of European Stage Authors and Composers) and the Harry Fox Agency which administers licenses that would be affected by the operations of a new blanket licensing collective in the legislation. Owners Blackstone persuaded Senator Rafael E. “Ted” Cruz (R-Texas) to halt the bill’s progress in the full Senate and things looked tricky until a compromise clarified that the new organization only will administer a particular kind of license, and will have exclusive purview only over blanket licenses - and according to industry sources the Harry Fox and other organisations will still be able to control individually negotiated licenses. before the compromise both the Nashville Songwriters Assn. International and the Songwriters of North America had encouraged their members to speak out against SESAC’s effort to get changes made to the bill, but now the NSAI have said “Reaching consensus within the music industry, on what may be the most important songwriter legislation in history, is a win for American songwriters and the broader music community. We are pleased to have put our differences behind us and support this bill in unanimous harmony. The Nashville Songwriters Association International has been a friend and fan of SESAC’s for decades and that is how our relationship will immediately resume”.

He may have passed but he is still in the news: A takedown notice of the iconic 2016 fan singalong video of 'Purple Rain' that was shot just hours after the singer’s death, has now been withdrawn and the video has been reinstated. After Prince’s death in thousands of fans congregated in the streets of Minneapolis to mourn and one of the most iconic moments from that night involved a video of those fans singing “Purple Rain” together. The video, shot by the Star Tribune’s Aaron Lavinsky, quickly went viral with his video tweet receiving over 14,000 retweets and 17,000 likes. Universal Music then filed a DCMA takedown of the video but after a social media storm at the end of July with Lavinsky saying  on Twitter "This is very disturbing: Universal Music filed a DCMA takedown on a video I shot of thousands of Prince fans singing Purple Rain the night of his death. This was clearly fair use and UMPG and Twitter are in the wrong"  UM have relented and the video is back online prompting a tweet from Lavisky saying "Update: Prince faithful can rejoice -- UMPG has retracted their DCMA takedown of my video and it has reappeared in the original tweet. PURPLE RAIN, PURPLE RAIN!".

THE BBC has halted its action against a pro-independence blogger following a row over alleged YouTube copyright infringements. The UK's public broadcaster had denied political bias after Stuart Campbell, who runs Wings Over Scotland, claimed his channel was closed without warning after the BBC complained about 13 videos that had been uploaded to it and that his use was 'fair dealing'.  Now the channel has been reinstated by YouTube and the BBC has said it will review its actions.

Techdirt is celebrating after it discovered the Finnish Bar Association is reprimanding Finnish law firm Hedman Partners for seemingly violating copyright law by sending out 'settlement letters' to supposed copyright infringers in what techdirt opine is a classic trolling exercise. Hedman lawyer Joni Hatanmaa seems less concerned saying the firm's actions on behalf of its clients against suspected infringers will continue: "cases against infringers will continue. Plenty are still underway and the project continues to expand."

And finally The BBC reports that a US court has ruled that the plot of Oscar-winning fantasy film The Shape of Water was not copied from a 1969 play. Judge Percy Anderson has now dismissed the legal action that claimed Guillermo del Toro's film copied the story of Let Me Hear You Whisper by Paul Zindel. The late playwright's son sued del Toro, the Fox Searchlight studio and others in February and Zindel v. Fox Searchlight Pictures, Inc. et al, case number 2:18-cv-01435, filed in the United States District Court Central District of California, claimed the two works were "in many ways identical". In his ruling  the judge said they only shared "a basic premise". Del Toro's film, which won four Academy Awards in March including best picture, told of a mute cleaner who falls in love with an amphibious creature. David Zindel's suit claimed the film bore a number of similarities to his father's play, in which a cleaning lady goes to work in a laboratory where experiments are carried out on dolphins. Judge Anderson accepted that the plots were similar but ruled that the central concept was "too general to be protected".

Copyright’s Conceptual Cabin Fever

Readers of this blog may remember that artist Cady Noland filed a copyright infringement suit last year, claiming that, by reconstructing one of her wooden sculptures which had been damaged, a museum had thus infringed her copyright by reproducing her work and had also violated her moral rights, as provided to her by the Visual Artists Rights Act and Section 14.03 of the New York Arts & Cultural Affairs Law.
Cady Noland had created in 1990 her “Log Cabin Blank With Screw Eyes and Cafe Door” (the Work), made out of wooden logs. It represents the façade of a log cabin, with one open door and two windows, and “[t]wo U.S. flags are an integral part of the sculpture,” according to the July 2017 complaint. The work was created to be displayed outdoors, and after years exposed to the sun and cold of Berlin, the wood used to create the Work had rotted. 
Cady Nolan asserted in the 2017 complaint that she "has continuously owned the copyright to the Work.  An application for registration of the copyright to Log Cabin together with the required fee and deposit material was transmitted to the Copyright Office in proper form and registration was refused.  Plaintiff has complied with the requirements for registration of Log Cabin as provided in 17 U.S.C.  § 411(a), and in accordance with said section will be serving notice and a copy of this Complaint on the Register of Copyrights” (my emphasis).
Indeed, the artist had filed an application to register the Work as a sculpture in July 2017, but this was denied the same month, because the work “lacks the authorship necessary to support a copyright claims” and because it “is a useful article… that … does not contain any non-useful design element that could be copyrighted and registered.
The following month, Noland requested the Review Board to reconsider this decision and to register her work. This time, the Copyright Office considered the work to be a sculpture and not a useful article (indeed, what exactly is the use of a single log wall?), but refused to register it anyway, as it did “not contain a sufficient amount of creativity either elementally or as a whole to warrant registration.
In December 2017, Noland requested the Review Board of the United States Copyright Office (the Board) to reconsider the Registration Program's refusal to register her work a second and final time, claiming that the work was original enough to be protected by copyright, and arguing she had made creative choices in order for the work to embody her idea to “construct the front of a house… to showcase the failed promise of the American dream” and that “the selection, arrangement, and combination of elements present in [the] work clearly meet the threshold of creativity required for a work to obtain copyright protection.
On May 25, 2018, the Board affirmed the Copyright Registration Program’s denial to register Cady Nolan’s Log Cabin.
Defendant in the copyright infringement suit filed a motion to dismiss last April and this month Nolan filed an opposition to the motion. Plaintiff in a copyright infringement suit must prove ownership of a valid copyright, and thus the Board denial of copyright registration is likely to influence the outcome of the current lawsuit.
Why is Log Cabin not original enough to be protected by copyright?
A work needs to be original to be protected by copyright. The Copyright Act does not define what is “originality,” but the Supreme Court defined it in Feist as “mean[ing] only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” The Board quoted Feist, and also Section 906.1 of the Compendium on “uncopyrightable material,” which explains that “[t]he Copyright Act does not protect common geometric shapes, either in two-dimensional or three-dimensional form.” Such shapes must be combined “in a distinct manner indicating ingenuity” (Atari Games Corp at 883). Indeed, while geometric shapes cannot be protected by copyright, their creative arrangement, if original, can be protected.
The Board analyzed Noland’s Work and found that it “does not contain a sufficient amount of original and creative artistic or graphic authorship to sustain a claim in copyright. The Work is a simple representation of a standard log cabin façade with joinery; thus any authorship is de minimis and does not support registration. “
Nolan had argued that, while some of its elements are found in architectural work, it is a sculpture. The Board recognized that argument, and agreed that the work is a sculpture. It added, however, that the Work “is a simple expression of rote designs and representations of a log cabin; the fact that it is not functional or useful is irrelevant to that analysis” and concluded that “[t]he Work thus is a standard representation of a log cabin façade, which does not meet the minimum degree of creativity required for copyright protection.
Conceptual art and copyright
Copyright and conceptual art have a somewhat difficult relationship and rooted in the necessity to prove their originality and fixation in a tangible medium of expression.
Wildflower Work is such conceptual work of art which has been denied copyright protection. It was a flower garden designed by Chapman Kelley and planted in the eighties in Chicago’s Grant Park In Kelley v. Chicago Park District, the Seventh Circuit found that Wildflower Work was original enough to be protected by copyright, but could not be protected because it “lack[ed] the kind of authorship and stable fixation normally required to support copyright.”
The Seventh Circuit explained that:
recognizing copyright in Wildflower Works presses too hard on these basic principles. We fully accept that the artistic community might classify Kelley's garden as a work of postmodern conceptual art. We acknowledge as well that copyright's prerequisites of authorship and fixation are broadly defined. But the law must have some limits; not all conceptual art may be copyrighted.”… A garden's constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden — the colors, shapes, textures, and scents of the plants — originates in nature, not in the mind of the gardener.”
The district court in Kelley had found the work to be uncopyrightable for lack of originality because its design used simple elliptical shapes. However, the Seventh Circuit found this argument to be “misplaced,” explaining that “an author's expressive combination or arrangement of otherwise noncopyrightable elements (like geometric shapes) may satisfy the originality requirement.” 
In our case, the Board cited Satava v. Lowry, a Ninth Circuit case  which explained that “a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”
Cady Nolan is not yet out of the woods (sorry).
Image is courtesy of Flickr user Thomas Hawk under a CC BY-NC 2.0 license.

Tuesday, 14 August 2018

CJEU rules that unauthorized re-posting of protected content may be an infringement

First posted by Eleonora on the IPKat on 7th August 2018

The Cordoba photo at issue in Renckhoff
Today the Court of Justice of the European Union (CJEU) issued its last copyright judgment [but also - incredibly - the first copyright judgment of 2018] before the summer break. 

In Renckhoff, C-161/17 it ruled - contrary to the Opinionof Advocate General Campos Sanchéz-Bordona [here and here; ALAI thought it was very bad, and criticized it here] - that in a situation like the one at issue the unauthorized re-posting of a copyright work would be an act of communication to the public within Article 3(1) of the InfoSoc Directive.


As readers might remember, this case had a fairly odd factual background. The national 
proceedings relate in fact to copyright litigation that a photographer has brought in Germany
against a school over the use, by one of the pupils, of copyright-protected material without 

More specifically, one of the pupils found an image of the city of Cordoba online 
and used it for an assignment for her Spanish class, providing acknowledgment 
of the website from which she had downloaded the photograph (though not of the 
photographer, because the website where the photograph appeared did not provide any). 

Upon finishing her work, she and her teacher uploaded it on the school's
website, but the photographer came forward claiming infringement of his copyright in
the photograph, and that he had just granted a licence to use to the image to the website 
from which the pupil had downloaded it.

Litigation has gone all the way up the German Federal Court of Justice, which 
decided to stay the proceedings and refer this question to the CJEU:

Does the inclusion of a work — which is freely accessible to all internet users on a 
third-party website with the consent of the copyright holder — on a person’s own 
publicly accessible website constitute a making available of that work to the public 
within the meaning of Article 3(1) of [Directive 2001/29] if the work is first 
copied onto a server and is uploaded from there to that person’s own website?

The CJEU response

Today the Court answered in the affirmative, noting that:
  1. The reposting of protected content freely available with the rightholder's consent on a third-party website is a new act of communication to the public (I'd also add that it is also an act of reproduction, and in fact this has been already established in the national proceedings) and no analogy with linking to lawful and freely accessible content in a Svensson sense may be drawn. Here the point is not - as it was, instead, in Svensson whether there is a communication to a new public, because there is a new communication to the public tout court.
  2. Holding otherwise would mean that a copyright owner would lose any control over their work once this has been made available online the first time. This would basically amount to an undue exhaustion of the right of communication to the public, contrary to Article 3(3) of the InfoSoc Directive, and would also be in breach of the principle according to which economic rights are preventive in nature (in a Souliersense)
  3. The fact that a work has been initially published online and made available with no restrictions is irrelevant: holding otherwise would be akin to imposing formalities to the enjoyment and exercise of copyright, and this would go against the prohibition in Article 5(2) of the Berne Convention.
If that was ever possible, 
now school may become even more stressful
The Court also recalled that copyright
protection in a photograph only arises when 
the photograph is its author's own 
intellectual creation, in the sense that it 
results from the making of free and 
creative choices and carries the author's 
personal touch, in the sense clarified 
in Painer. Readers will remember that 
the AG doubted that the one at issue 
would be a copyright-protected 
photograph. However, Article 6 of the 
Term Directive leaves EU Member States free to protect sub-original photos.


Overall, the judgment is good news for copyright owners, in that it gives them reassurance 
that the control over their works is not reduced over the internet. 

The ruling is also interesting in relation to the practice of certain websites (including newspapers) 
that directly host third-party video content in respect of which they neither own the rights nor 
do they have a licence, in lieu of displaying such videos by means of embedded links. While 
the latter might be lawful (depending on whether the requirements set in Svensson and
 GS Media are fulfilled), the former might pave the way to a finding of liability. This 
may be something that we knew already, but that now the CJEU has confirmed.

Monday, 13 August 2018

Adeokin Records v Music Copyright Society of Nigeria: No CMO licence required for an exclusive licensee of copyright to enforce its licence

News from the collective rights management world, this time from Nigeria!

1709 Blog friend and fellow blogger Chijioke Okorie explains what happened in the recent decision of the Nigerian Supreme Court in Adeokin Records v Music Copyright Society of Nigeria [Chijioke is happy to provide a copy of the judgment upon request].

Here’s what Chijioke writes:

Last month the Nigerian Supreme Court delivered its judgment in the case of Adeokin Records & another v Musical Copyright Society of Nigeria Limited (MCSN) SC/336/2008, holding that MCSN had the capacity (locus standi) to institute the suit as owner, assignee and exclusive licensee of copyright. The outcome of this case was rooted within two main grounds. First of all, because it was an issue of locus standi, the court rightly held that only the statement of claim may be considered and extraneous documents outside the statement of claim cannot be considered. Given the fact that Adeokin Records did not challenge MCSN’s averment in its statement of claim that it was “owner, assignee and exclusive licensee of copyright”, the court took the issue as established.

The second ground for the decision of the Supreme Court was that at the time the suit was instituted, the provisions of section 17 of the Nigerian Copyright Act which mandated “pseudo” collecting societies to obtain a collecting society licence from the Nigerian Copyright Commission (NCC) had not been promulgated and so was not in effect and/or applicable to the suit. Section 17 refers to entities involved in the business of negotiating and granting licences, distributing royalties or having more than 50 members who are copyright owners.

Readers would recall that until April 2017 when the NCC issued MCSN with a collecting society licence, MCSN had resorted to describing itself as an “owner, assignee and exclusive licensee of copyright” and has been suing in that capacity. See here.


With this decision, it appears that a description in the Statement of Claim as an exclusive licensee of copyright will confer locus standi on a party that would otherwise have required a collecting society licence. However, it is to be noted that the issue of locus standi is an issue of jurisdiction, which may be raised at any time in court proceedings. So, it might turn out at the end of the day that an exclusive licensee may escape the collecting society licence hurdle at the beginning of the suit but would find itself challenged during trial when evidence is led as to the nature of its business. More importantly MCSN, having been issued licence to operate as a collecting society, will no longer need to continue describing itself as an exclusive licensee of copyright in order to sue for copyright infringement. It would only be a new and intending collecting society that may apply such description in suing for copyright infringement.

Nevertheless, it is to be noted that the Copyright Act restricts the discretion of the NCC in issuing collecting society licences. By virtue of section 39(3) of the Copyright Act, the NCC may not issue licence to another collecting society for any class of copyright owners if it is satisfied that the existing collecting society adequately protects the interest of that class of copyright owners. Following the issuance of collecting society licence to MCSN, COSON had instituted Suit nos. FHC/L/CS/1259/2017 against MCSN, the NCC and the Attorney-General of the Federation contending that because COSON’s operating licence covered musical works and sound recording, MCSN should not have been issued licence for the same rights. The Federal High Court dismissed the suit holding that NCC’s issuance of licence to MCSN did not violate the provisions of the Copyright Act.

There is also the issue of impending revocation of COSON licence in view of its refusal to comply with NCC’s directive. See here. A few days ago, the Music Publishers Association of Nigeria (MPAN) urged the NCC to reconsider the suspension of COSON’s licence as it has prevented copyright owners from earning royalties for the use of their works. If COSON’s licence is revoked, the music industry will be left with one collecting society until COSON gets its act together or NCC issues licence to another entity. Would existing associations such as MPAN, which has many copyright owners as members yet give COSON a run for its money?