Friday, 22 February 2019


After our very last post, more on dance steps! Former "Fresh Prince of Bel-Air" star Alfonso Ribeiro has been involved in a lawsuit with Take-Two Interactive, publisher of the video game "NBA 2K," and the publisher of "Fortnite" over avatars in the games being able to do the dance that his character popularised on the hugely popular '90s sitcom ' the 'Carlton Dance'. But now that action has taken a knock back as details of a letter from Saskia Florence at the US Copyright Office to Ribeiro's attorney, David Hecht surfaced as part of federal court documents in California. In the correspondence, Florence wrote that the moves are "a simple dance routine." adding "as such, it is not registrable as a choreographic work".  

The EU Commission has removed a rather odd blog post that attacked internet campaigners, admitting its language was not appropriate and that it could be interpreted as offensive. The post was positioned as a response to the various battles around the EU's planned copyright directive, which introduces a series of reforms, and pointed to the aggressive and polarising lobbying from the tech sector. The post was titled ‘The Copyright Directive: How the mob was told to save the dragon and slay the knight’ and the controversial text included the opinion (that seems related to Brexit) that “We know from recent elections and referendums that simple memorable slogans – however untrue or unobtainable – can go a long way to winning over hearts, minds and voters. Never let the truth get in the way of a catchy slogan”. The post went further in its criticism of the tech sectors efforts to  mislead the public by employing dubious campaigning tactics saying  “It appears as if the largest search and video platforms in the world are afraid of regulation – despite having overwhelming dominance on the internet. Furthermore, there is ample evidence that ‘big technology’ has even ‘created’ grassroots campaigns against the copyright directive in order to make it look and sound as if the EU is acting against the ‘will of the people'”. A statement in place of the post now reads: “This article published by the Commission services was intended to reply to concerns, but also to misinterpretations that often surround the copyright directive proposal. We acknowledge that its language and title were not appropriate and we apologise for the fact that it has been seen as offending”. In related news, representatives of European Union governments have endorsed the compromise reached with the EU Parliament on the overhaul of the bloc's copyright rules, the Romanian presidency of the EU said in a statement on Twitter.

And with that  final draft of the European Copyright Directive now being considered, a number of organisations representing independent record labels and music publishers, songwriters and their collecting societies published a letter calling on the EU Council and European Parliament to vote through the copyright reforms. Independent label's group IMPALA and the Independent Music Publishers International Forum led the call for support for the Directive to now be adopted along with support from the European Composer And Songwriter Alliance, and collecting society groups CISAC and GESAC, with the letter saying "We, the undersigned organisations, representing authors, composers, writers, journalists, photographers and others working in all artistic fields, news agencies, book, press and music publishers, audiovisual and independent music producers, call on the Council Of The European Union and the European Parliament to adopt the Directive On Copyright In The Digital Single Market".

Perhaps in preparation for EU reforms,YouTube has announced changes to it's 'strikes' system as it applies to content flagged for violating the company’s Community Guidelines. Starting February 25th, the first time a creator’s content is flagged, they will get a one-time warning and their flagged content will be removed. Prior to this change, there was no warning, and a first strike would result in a 90-day freeze on live streaming. A second strike would result in a two-week freeze on video uploads.  A YouTube spokesperson told Gizmodo that the strike policies for Community Guidelines and copyright are entirely separate, and that YouTube employees don’t get directly involved copyright disputes. The spokesperson said that if YouTube receives a DMCA takedown notice, they must legally comply with that request and remove the content. Community Guidelines violations—like harmful, hateful, violent content, and spam—are reviewed and decided upon by members of the YouTube team, according to the spokesperson.

The Copyright Royalty Board in the US has published the new mechanical royalty rates that will apply for the use of music in America. The new rates were first published a year ago and include a top line 44% increase in the revenue share rate being paid by the streaming services, which will rise from 10.5% to 15.1%. After a further period of consultation with submissions from both music owners and music users a ‘final determination’ has now followed - although participating parties still have one more chance to appeal. Benjamin Semel who represents the National Music Publishers Association commented: “The final determination that became effective today is even stronger than the initial determination, as the judges clarified an important definition during the rehearing motion phase, providing additional protection against streaming services using product bundling to exclude revenues from the royalty pool”. NMPA President & CEO David Israelite said that digital music companies would ‘declare war on songwriters’ should they appeal the 44% streaming royalty rise decided by the Copyright Royalty Board adding  “Apple has announced it will not appeal. The others won’t say. We will know soon whether some digital companies want to be partners or want to attack the songwriters who make their businesses possible. Stay Tuned.”

US Radio lobbyists and a bipartisan coalition of lawmakers in Washington DC are backing the Local Radio Freedom Act, which would limit the royalties radio stations have to pay for the use of recordings. Similar bills failed in 2017 and 2015 and of course the rapidly passed Music Modernization Act did much to update the law on music use in the USA. Now 124 congress members and five senators have signed on as initial co-sponsors. The bills argue that radio stations "provide free publicity and promotion to the recording industry and performers," so they should not be obliged to pay "any new performance fee, tax, royalty, or other charge." If such fees were imposed, the bill's proponents argue, it would cause "severe economic hardship." Or perhaps just reduce profits for broadcasters.

And finally, in Trinidad & Tobago, Police have arrested seven people in Port of Spain for copyright infringement..The seven vendors were targeted during an exercise which saw officers of the Port of Spain Division, the Municipal Police, and officials from Awesome Copyright interview CD vendors in Independence Square and Charlotte Street. Various CDs and sound equipment were seized with the arrests made pursuant tof Section 41 of the Trinidad and Tobago Copyright Act. The offence carries a jail term of up to ten years and/or a fine of up to $250,000.

Monday, 18 February 2019

Copyrighting a dance step? Between a Hard (Milly) Rock and a Copyright Office

We wrote last year about several copyright infringement suits filed against Epic Games, the marker of the Fortnite game, by individuals who became associated with a particular dance move, whether it be their sole claim to fame or not (see here and here).

One of these plaintiffs is rapper Terence Ferguson, aka 2 Milly, who is at the origin of the Milly Rock dance. Dare we say he created it and that the dance is protected by copyright? More on this later. In any case, you can find a tutorial here.

2 Milly claims that the “Swipe It “dance, an “emote” which in 2018 appeared in season 5 of the game, infringes his copyright. Such emotes, as explained by Defendant, “are movements that an avatar performs to express emotions in the game.”

Epic Games attorneys have now moved to dismiss the case (HT Eriq Gardner for posting the memo online). They claim, in support of the motion that Plaintiff failed to state a claim. They also moved to strike the case under the California anti-SLAPP statute, claiming that the copyright infringement suit was filed to discourage Defendant’s speech in connection with a public issue.  Video games are speech, and Defendant cites the U.S. Supreme Court 2011 Brown v. Entertainment Merchants Ass'n case, which found video games to be protected by the Fist Amendment. 

 “No one can own a dance step”

One of defendant’s arguments is that “no one can own a dance step” and that “Plaintiff’s claims is based on his assertion that he has a monopoly on a side step with accompanying swinging arm movement that is then repeated on the other side.

Plaintiff claims his work is protected by copyright. Defendant claims they are mere steps, which are not protectable:

“[c]opyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy.”

This argument differentiates the steps from the choreography. The first are the building blocks of the second. Indeed, they are many steps in dance, and they are used by many different dancers. For instance, Michael Jackson did not create the moonwalk, but he performed it so well that he is associated with it.

Choreography is protected by copyright in the U.S., but this is fairly recent, as the 1909 Act did not protect it. Defendant cites paragraph 805.1 of the Compendium of U.S. Copyright Office Practices, which explains that a choreographic work is “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” and which points out that Congress did not intend to protect “simple dance routine.

Are the two works substantiality similar?

Defendant describes the 2 Milly dance step as being:

“a side step to the right while swinging the left arm horizontally across the chest to the right, and then reversing the same movement on the other side

Defendant describes the Fortnite’s “Swipe It” as:

consist[ing] of (1) varying arm movements, sometimes using a straight, horizontal arc across the chest, and other times starting below the hips and then traveling in a diagonal arc across the body, up to the shoulder, while pivoting side to side on the balls and heels of the feet, (2) a wind up of the right arm before swiping, and (3) a rolling motion of the hands and forearms between swipes.”

As you can see, “Swipe It” requires many more words and must thus be more complex and thus different from the simple “Milly Rock” step, right?

To determine substantial similarity, courts in the Ninth Circuit use an extrinsic similarity two-part test, where plaintiff must show that the works are substantially similar under both the extrinsic test and the intrinsic test. The extrinsic test is an analysis of the similarities of the two works’ expressive elements, after the courts have filtered out the elements which are not protected by copyright, such as material in the public domain. The intrinsic test analyzes whether an ordinary reasonable person would think that the two works are substantially similar in “total concept and feel.” Defendant claims that the extrinsic test is not satisfied and that thus the case must be dismissed.

Is the right of publicity claim preempted by the Copyright Act?

Defendant is also arguing that Plaintiff’s right of publicity claim is preempted by the Copyright Act and should thus be dismissed, citing Maloney v. T3Media,  where the Ninth Circuit affirmed dismissal of a right of publicity claim is proper if such use  is not “independent of the display, reproduction, and distribution of the copyrighted material.” It remains to be seen if this is the case here as well.

Copyright Office refuses to register the Milly Rock Dance

Meanwhile, the Copyright Office has refused to register the Milly Rock dance, writing that “[c]horeographic works are typically performed by skilled dancers for an audience. By contrast, social dances, such as ballroom dances, line dances, and similar movements are not created by professional dancers. They are instead intended to be performed by the general public for their own enjoyment.”

By doing so, the Copyright Office seems to place dance in a somewhat lower echelon than painting and illustrative art. Indeed, the Supreme Court explained in 1903 in Bleinstein v. Donaldson Lithographing Co. that “persons trained only to the law” should not “constitute themselves final judges of the worth of pictorial illustrations.” Terpsichore is one of the muses, after all, and there is not even a muse for pictorial art…

Thursday, 14 February 2019

BREAKING: Agreement on DSM Directive reached in trilogue

Over on the IPKat, Eleonora reports that at last, after several weeks, several discussions, and after France and Germany achieved a compromise on some key provisions in the draft Directive on copyright in the Digital Single Market an agreement has been reached between the European Parliament and Council negotiators on the content of this new piece of legislation.

The text is not yet available, but according to a press release from the European Parliament:

Tech giants to share revenue with artists and journalists: The deal aims at enhancing rights holders’ chances, notably musicians, performers and script authors, as well as news publishers, to negotiate better remuneration deals for the use of their works featured on internet platforms.

Locking in freedom of expression: Sharing snippets of news articles will not engage the rights of the media house which produced the shared article. The deal however also contains provisions to avoid news aggregators abusing this allowance. The ‘snippet’ can therefore continue to appear in a Google News newsfeeds, for example, or when an article is shared on Facebook, provided it is “very short”. Uploading protected works for purposes of quotation, criticism, review, caricature, parody or pastiche has been protected, ensuring that memes and Gifs will continue to be available and shareable on online platforms.

Many online platforms will not be affected: The text also specifies that uploading works to online encyclopaedias in a non-commercial way, such as Wikipedia, or open source software platforms, such as GitHub, will automatically be excluded. Start-up platforms will be subject to lighter obligations than more established ones.

Stronger negotiating rights for authors and performers: Authors and performers will be able to claim additional remuneration from the distributor exploiting their rights when the remuneration originally agreed is disproportionately low compared to the benefits derived by the distributor.

How this directive changes the status quo: Currently, internet companies have little incentive to sign fair licensing agreements with rights holders, because they are not considered liable for the content that their users upload. They are only obliged to remove infringing content when a rights holder asks them to do so. However, this is cumbersome for rights holders and does not guarantee them a fair revenue. Making internet companies liable will enhance rights holders’ chances (notably musicians, performers and script authors, as well as news publishers and journalists) to secure fair licensing agreements, thereby obtaining fairer remuneration for the use of their works exploited digitally.

Next steps: The deal must now be approved by Council representatives and the EP plenary.

Dr. Harald Heker, CEO of German music collection society GEMA, said:  “We welcome the agreement reached today between the EU institutions regarding copyright. Thanks to the Directive, online platforms will finally have to pay authors a fair remuneration for the usage of their works" adding "The draft of the Directive that we now have in front of us imposes a higher level of responsibility onto the online platforms and strengthens the position of creators as well as internet users at the same time.

Andrus Ansip European Commission Vice-President for the Digital Single Market wrote in a tweet that the outcome is a “major achievement for Europe”

Wednesday, 13 February 2019

Rights owners call for a halt to EU Copyright reforms - but the creative sector disagrees

Rights holders from across the European Union, including the recorded music sector, music publishing, television and sport have called for a halt to the planned reforms to copyright laws saying that recent revisions to the draft legislation mean that  "regrettably under these circumstances we would rather have no directive at all rather than a bad directive".  But this view ha been challenged by the actual creators of music who are taking a very different view to the corporate owners of copyrights - they still see big benefits from the Copyright Directive.

The planned legislation was first approved by the European Parliament in September 2018 but has undergone numerous revisions and amendments since then and latest draft text makes what rights holders regard as significant concessions to tech companies. The revisions came as compromises - but  after continuous lobbying from the tech sector, in particular Google and YouTube. Last month music rights organisations admitted that the recently proposed versions of the Copyright Directive “[do] not meet the original objective of Article 13” – namely “correct[ing] the distortion of the digital market place caused by User Upload Content (UUC) services”. Record label trade organisations IMPALA and IFPI were specifically opposed to the latest draft text of the copyright directive, as proposed by the European Council.

The most recent amendments are the result of a compromise between France and Germany.

Under the agreement, Article 13 applies to all for-profit online sharing platforms, compelling services to take “effective and proportionate” action to combat the sharing of copyrighted works. The amendment would still oblige all services to install upload filters, but would except those fitting all three following criteria:

- The service has been publicly available within the EU for fewer than three years

- The service has an annual turnover below €10 million

- The service has fewer than five million unique monthly visitors

In response to the 'corporate' rights owners new move, a number of UK organisations representing artists, songwriters and managers have urged EU decision makers to continue working on the Directive. The Council Of Music Makers - that brings together BASCA, FAC, MMF, MPG and the MU - called on negotiators "to proceed with the copyright directive", adding that "we speak with one voice with all the creator-led organisations across Europe and around the world in supporting the copyright directive".

Really? Maybe the record labels (in particular) have begun to take note of  Articles 14 through to Article 16 which will seek to provide artists and songwriters with more transparency, a contract adjustment mechanism and a dispute resolution system and ever - dare we say - equitable remuneration. And a business might not want to support that.  Hmmmmm! So more money from YouTube - that's all good - but passing some of that  on to recording artistes and songwriters - not so good!

Well the message in the open letter from the 'business' side reads as follows:

We are writing as a group of rightsholders representing the music, audio-visual, broadcasting and sports industries, regarding the direction of travel for the Directive on Copyright in the Digital Single Market.

The key aims of the original draft Directive were to create a level playing field in the online Digital Single Market and strengthen the ability of European rightsholders to create and invest in new and diverse content across Europe.

Despite our constant commitment in the last two years to finding a viable solution, and having proposed many positive alternatives, the text – as currently drafted and on the table – no longer meets these objectives, not only in respect of any one article, but as a whole. As rightsholders we are not able to support it or the impact it will have on the European creative sector.

We appreciate the efforts made by several parties to attempt to achieve a good compromise in the long negotiations of recent months. Nevertheless, the outcome of these negotiations in several of the Council discussions has been to produce a text which contains elements which fundamentally go against copyright principles enshrined in EU and international copyright law.

Far from levelling the playing field, the proposed approach would cause serious harm by not only failing to meet its objectives, but actually risking leaving European producers, distributors and creators worse off.

Regrettably, under these conditions we would rather have no Directive at all than a bad Directive. We therefore call on negotiators to not proceed on the basis of the latest proposals from the Council.

Yours sincerely, the undersigned.

ACT – Association of Commercial Television in Europe*
AKTV – Czech Association of Commercial Television
DFL – German Football League
ICMP – The Global Voice of Music Publishing
IFPI – Representing the Recording Industry Worldwide
IMPALA – Independent Music Companies Association
La Liga – The Spanish Football League
Mediapro – Independent Production Company
The Premier League – The English Football League
Związek Pracodawców Prywatnych Mediów – Polish Union of Private Media Employers, Lewiatan

A different approach can be found in the open letter from GESAC, primarily representing music creators - songwriters and author's collection societies -  in the areas of musical, audiovisual, visual arts, and literary and dramatic works. This is the first time the 'music industry' has split - and moved away from one unified voice - although IMPALA qualified it's support in later communications. The 'creatives' say this: 

As the negotiations on the copyright directive enter their final and very critical stage, GESAC, which represents more than one million creators from all sectors through its 32 members from across the EU and EEA, would like to express its strong support for this directive which is essential for the future of creators.

The directive as a whole - and in particular the provisions in article thirteen - creates the long sought after level playing field for creative content in the online market.

It also addresses the major unfairness caused by the enormous 'transfer of value' that favours free-riding tech giants, while it also incentivises European creation, innovation, and investment. The current text is a compromise that goes into the right direction, although further improvements still need to be achieved. You will find enclosed GESAC's priorities and suggestions on the text in this respect.

Without this directive, creators will be entirely deprived of any means to get a fair remuneration in the online environment: the market will be entirely driven by the commercial interests of free-riding tech giants. This would be a fundamental failure for European policy-making and the functioning of our democracy, as it can only be interpreted as an endorsement of the unfair and manipulative practices of tech giants that refuse any rules or oversight.

It is now time to adopt a mandate at [the EU Council meeting] on February 8th and an agreement on the directive in trilogue early next week to send the right message to European citizens: the EU delivers for its people and its values!

We trust your thorough political judgment and sense of fairness will prevail to finalise the last step of this process and remain at your disposal for any complementary clarifications.

the open letter from CMM, the UK's Council of Music Makers, says this:

The UK Council Of Music Makers - comprising BASCA, FAC, MMF, MPG and the MU - call on negotiators to proceed with the copyright directive.

We are the voice of UK songwriters, music producers, performing artists, musicians and music managers. We speak on behalf of thousands of makers of the music this 'industry' represents. We speak with one voice with all the creator-led organisations across Europe and around the world in supporting the copyright directive.

While the current text could be improved and still includes some problematic provisions, it is a compromise. At every step of this process the creative community has sought compromise and been open to dialogue.

Most creators and artists in the UK struggle to make a living from music. Without this directive, creators will be entirely deprived of any means to get a fair remuneration in the online environment: the market will be entirely driven by the commercial interests of free-riding tech giants. This would be a fundamental failure for European policy-making and the functioning of our democracy, as it can only be interpreted as an endorsement of the unfair and manipulative practices of some tech giants that refuse any responsibility.

We make the music that people want to listen to and buy. It is our intellectual property and our rights and we need the copyright directive to put in place reasonable and fair safeguards.

It is hugely disappointing to see the music labels and publishers disregard the interests of their creators and artists in this way. They are trying to overturn years of collaborative work at the eleventh hour by killing the copyright directive. Like YouTube, they have lobbied negotiators hard without consulting or informing the creative community. Heavy-handed tactics of heavyweight businesses.

It is sad to see labels and publishers turn on their creators and artists in this way. They are trying to halt the directive not only because of the latest wording of article thirteen but because they want to avoid the improvements to transparency and fairness that articles fourteen to sixteen bring. We are saddened that the short-term commercial interests of these companies can be put before modernisation of copyright legislation that will benefit the whole industry.

The labels and publishers have shown an unsettling disrespect for the talent that they have the privilege of representing, raising serious questions about their suitability to be the custodians of copyright. We have worked in tandem with UK Music and colleagues across the industry to find compromise and solutions that enable legislation to pass. This directive will affect future generations of creators and performers whose interests need protecting beyond the interests of current models.

We have been engaged and willing to negotiate, and we remain engaged and progressing in good faith, with both tech and industry. We have not given up on this important legislation.

We call on UK government and UK Music to support the adoption of the copyright directive.

Akshat will be updating in future CopyKat posts!

Wednesday, 30 January 2019

New Zealand Copyright Act under review

The 1709 Blog is delighted to host the following contribution by 1709 Blog friend Ken Moon (AJ Park Law, Auckland) concerning the ongoing review of the New Zealand Copyright Act. 

Here’s what Ken writes:


The New Zealand Copyright Act 1994 is now under review. The review got underway in earnest with the November release of a 126-page Issues Paper by the Ministry of Business, Innovation & Employment (MBIE). This review is of the whole of the Act, although internet issues are pre-eminent.

The MBIE Issues Paper identifies potential issues upon which it seeks submissions from interested parties. MBIE appreciates that the Act may already adequately address some issues it has identified and is happy to receive submissions arguing for no change.

Adherence to international copyright treaties
Over the years, New Zealand has not been good at amending its copyright legislation to ratify international copyright treaties or conventions. However, as is noted in the Issues Paper, under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), New Zealand is obliged to make amendments to incorporate many of the provisions in the IP Chapter of the TPP and this process is already underway. Some of these require implementation of terms of the 1996 WIPO Performers and Phonograms Treaty (WPPT) which addressed internet issues, particularly for performers who had previously been side-lined. However, there are other provisions of the WPPT which will need to be addressed in the comprehensive review, such as performer remuneration for broadcasts and communications of their recordings.

Some of the Identified Issues
Fair use and exceptions to copyright infringement
Currently, the Act ensures certain listed non-commercial activities are not infringements of copyright, including those categorised as ‘fair dealing’. The Act also makes specific exceptions for the education industry and libraries. This is the traditional British approach.

But should a broader US fair use defence be adopted in place of fair dealing? Naturally social media advocates favour this. However, fair use is somewhat subjective and reduces the certainty of legal opinions on what is infringement and what is not.

As to the adequacy of the existing statutory exceptions to infringement, it is time to look at whether the reproduction of parts of a work for the purposes of satire should be excepted. Also, should exceptions for public playing of works and format-shifting be more extensive? On the other hand, is the current exception for reproducing artistic works on public display, such as sculptures, unnecessarily broad. An example being applying an image of a sculpture to t-shirts without obtaining a licence from the sculptor and paying royalties.

Internet-related issues
  • Should a website link to infringing content stored on another website constitute copyright infringement as under EU law? 
  • MBIE questions whether content streaming should be treated the same as broadcasting under the existing right to communicate. But many will argue that the particular transmission technology is irrelevant from a creator’s point of view. 
  • New Zealand is the only country that has ‘communication works’ specified as a work in which copyright subsists. This makes broadcasts and internet streams to the public copyright works in themselves, in addition to any copyright in the content. Thus, retransmission may constitute infringement. This was the most far-sighted of all the 2008 ‘internet amendments’ made to the Act. However, MBIE believes this is problematic because it is hard to know who might constitute the ‘public’. Strangely, MBIE does not see this as a problem with the communication right. 
  • User-generated content on social media platforms, even if it is supposedly merely ‘inspired’ by existing content, can amount to copyright infringement if it reproduces a substantial part of that content. Should this be the case or should there be exceptions? 
  • Currently, section 43A of the Act provides an exemption from infringement for transient reproduction of a work if it is an integral part of the technological process for communicating the work. This has application to streaming technology, but has been interpreted by a New Zealand court in a more restrictive manner than has been the case in the UK. Clarification seems called for even if all that is done is inserting a definition of ‘transient’. 
Software-related issues
  • The Act does not allow for a copyright owner to renounce their copyright. Some software developers (and users) have wished for this instead of retaining copyright and adopting licensing schemes of the open source or creative commons types. Should renunciation of copyright be provided for? 
  • The Act currently already provides specific exceptions to infringement for computer programs such as: 
    • decompilation of a program in order to write an interoperable program 
    • copying or adapting a program to allow for continued use and for correcting errors 
    • studying the functioning of the program to determine the ideas that underlie it while loading, displaying, running, transmitting, or storing the program. 
These were radical enough when introduced in the 2008 amendments, but MBIE is asking if there should be further exceptions to program infringement.

Enforcement of copyright
  • MBIE asks whether a voluntary register be made available, as in Canada, to simplify identification of copyright owners. But it is questionable whether there have been injustices in past New Zealand copyright cases to justify the costs of running such a register of ownership. 
  • Currently legal action for copyright infringement can only be taken by copyright owners or their exclusive licensees. Should non-exclusive licensees be able to sue?
  • Should the Act provide a remedy for groundless threats of copyright infringement as is the case for patents? 
Relationship between copyright and registered design protection
In New Zealand the Copyright Act protects three-dimensional copying of functional products via the copyright which subsists in the design drawings of the product – as used to be the case under UK law. MBIE raises the old question of whether the potential overlap between copyright protection for product design and protection by the Designs Act should be permitted. The fear of New Zealand protection providing greater protection for foreign designers compared to what New Zealand designers may receive in some other countries emerges. Of course, New Zealand designers are accorded unregistered design rights in European Union countries, even if not in the USA.

Due date for submissions to be made
Submissions on the Issues Paper can be made to MBIE until 5.00pm on 5 April 2019. An online portal can be used for this. Submissions will be published, although confidentiality can be claimed for some content.”

Monday, 28 January 2019


The planned and now revised and re-revised EU copyright law reforms have been repeatedly criticised for bringing in new laws that will 'break' the internet due to provisions that Google in particular finds very worrying. But they are just one voice (albeit one very noisy and well funded voice) clamouring for the proposals to be watered down or ditched altogether. As reported by The Verge, Google has released an image showing the implication of the directive on its search engine. The image clearly shows how its “news segment” will look like. It involves an empty description area wherein the 'transformative' usage by Google of short snippets of news in its search web page would disappear. The screenshot showed that if a user in the EU searches “latest news”, Google would merely be able to provide links to the web sites which display such news, without any short summaries, stories, headlines, pictures or videos. This has been claimed to have a majorly adverse impact on the way Google perceives its users to use its platform. Why so? Well Article 11 of the Copyright Directive gives publishers the right to demand paid licences for using snippets of their stories, which definitely defeats the transformative use claim by Google.  Google has claimed this will lead to two choices: Either paying for licenses - or no snippets at all. This would thus mean a massive change in the whole way Google is used and is expected to be used as a platform for the dissemination of information and Google says that surely this is definitely a regressive path.  Google has further reportedly threatened to pull its operations out of the EU if the “link tax” (Article 11) provisions are passed. Another development came from the January 18th meeting when 11 countries (including Germany, Belgium, the Netherlands and Finland) voted against the reforms, concerned about the now near infamous Article 13 and the aforementioned Article 11. A direct implication of this was then the cancellation of the approval meeting which was scheduled to take place on the 21st of January. Another major opponent of this approval was Italy which didn’t seem to be very impressed with the strict copyright proposals. It's STILL all to play for!

But of course its not all one way PR traffic: 95 Leading European filmmakers including Alejandro Amenabar, Marco Bellochio, Cristian Mungiu, Pawel Pawlikowski, Alan Parker, Betrand Tavernier and Susanna White, have signed and sent an open letter calling on the European Union (EU) to honour a key part of the pending  Directive - Article 14 - which  calls for “fair and proportionate” payment for work throughout its commercial life. And CMU Daily reports that the global music industry has said proposed Article 13 compromises are a backwards step: An open letter says: “After years of hard work, the Copyright Directive is at a very critical point. The proposed text circulated ... falls below the standard of the three texts produced by the three European institutions and would not be an acceptable outcome of the negotiations” adding “The European Union cannot miss this unique opportunity to achieve one of the key objectives of the European Commission proposal, which was to correct the distortion of the digital market place caused by user-upload content services. Therefore, the undersigned call on negotiators to urgently make substantial changes to the 13 Jan proposal by the Romanian Presidency in order to get the directive back on the right track” with signatories including music industry organisations IAO, ICMP, IFPI, IMPALA and IMPF with support from the film, media, broadcast and book sectors.

Canadian Prime Minister Justin Trudeau's appointment of a former law professor as Minister of Justice and Attorney General has raised some eyebrows, not least as the appointee, David Lametti, once wrote in a paper that file sharing “is not necessarily theft, piracy or even wrong.” Lametti, is a founding member of McGill University’s Centre for Intellectual Property Policy (CIPP), where he served as director from 2009 to 2012 and although Music Canada and SOCAN provided only careful statements about Lametti’s appointment, some creators and music executives are concerned about the potential effect on the current Canadian copyright reform process, now in its final stages. In Lametti’s 2011 paper, The Virtuous P(eer): Reflections On The Ethics Of File Sharing, he wrote that his “strong ethical intuition is that one should never put up a digital barrier or fence around music, whatever the law might allow.” He also argues that “current normative structures ought to be adapted to reflect this more profound understanding of the impulse to share music.”

The Delhi High Court has restrained a website from putting on  copies of The Times of India and The Economic Times on its pages. In an interim direction, Justice Manmohan barred the website and instructed the registrar GoDaddy to to lock the ownership of the domain name The law suit seeks a for permanent injunction for trademark infringement, copyright infringement and unfair competition.

Lucasfilm and Disney have lifted the copyright claim that they recently placed on Star Wars Theory’s Darth Vader 'Fan Film'. In fact the claim was driven by Disney as Star Wars Theory had released his Darth Vader Fan Film (which as of now, has been viewed over 7.2 million times on Youtube)_ with the permission of Lucasfilm who gave him their blessing as long as the film was made it without crowd funding and the video was un-monetized.  But then Disney and music publisher Warner Chappell claimed that a rendition of the Imperial March score infringed copyright and seemed to be seeking to have the entire film taken offline. It seems pressure by Lucasfilm led to a change of heart by Disney, and the film stays up

In Hong Kong, a Harry Potter-themed cafe is being sued for copyright infringement by film studio Warner Bros. The 9 ¾ Cafe in Mong Kok, which opened in 2017, is covered in paraphernalia from the hit books and movie franchise The Hollywood giant says the cafe’s owners are infringing on its copyright, even though the cafe does not claim any relation to the franchise. The South China Morning Post says the claim demands an unspecified sum of damages, a removal order plus multiple injunctions.

It seems that Google is looking for a final resolution in its ongoing legal battle with Oracle, with  Google asking the Supreme Court to make the final call in the dispute. The company has announced it has filed a petition with the Court, asking the USA's most senior court to determine the boundaries of copyright law in code.

My thanks to our intern Akshat Agrawal for his assistance with this update 

Friday, 25 January 2019

Unmasking 'La casa de papel'?

TV series 'Money heist' by Atresmedia 

Gala-Salvador Dalì Foundation, which manages the estate of the Spanish artist, recently challenged the use of a mask having Dali’s features during the famous Spanish TV series “La casa de papel” (“Money Heist” in English), distributed by Netflix all over the world.  

This TV series, which is now one of the most successful non-English speaking series in the history of the platform, describes the heist of eight robbers assaulting the Spanish National Currency Factory to print their own money, approximately EUR 2,4 billion. The robbers in the series make the assault using a mask which became one of the most iconic elements of the TV series, together with the red overalls that the robbers and the hostages wear. This mask has the same appearance, curling moustache and eyes of Salvador Dali.

This use of artist's image was questioned by Gala-Salvador Dali Foundation, the private institution created by the surrealist painter in 1983 with the purpose of promoting, fostering, protecting and defending the artistic legacy and Salvador Dali’s image. The Foundation requested the producers of the series, Atresmedia and Vancouvermedia, to reemdy to the unauthorized use of the painter’s image, which would infringe Dali’s image rights.

For their part, the series producers claimed that the mask was just a caricature of Dali’s image and, as such, did not require any authorization. 

The alleged caricatural use of Dali’s image could be challenged in different jurisdictions where the TV series is distributed and where caricatures may be treated very differently. In Europe, for example, Art. 5.3 (k) of Information Society Directive 2001/29/EC gives Member States the option to provide for exceptions or limitations to economic rights “for the purpose of caricature, parody or pastiche”, without giving any specific definition of these terms, leaving ground to several interpretations. Possible court decisions in Europe could then have different outcomes.   

Anyway, newspaper reported that the Foundation and the TV producers are coming to an agreement concerning the past and future use of the challenged mask in 'La casa de papel'.

Wednesday, 23 January 2019

The 1709 Blog welcomes new intern Akshat Agrawal

Akshat Agrawal
Every now and then The 1709 Blog team gets a refresh! 

We are delighted to announce that for the next 6 months we will be joined by a new intern, Akshat Agrawal (Jindal Global Law School, India).

Here's Akshat's profile and experience in his own words.
I am Akshat Agrawal and I am currently pursuing my undergraduate BA LLB degree from Jindal Global Law School, India. I am in my penultimate year.
I was a part of the team that represented Jindal at the Oxford IP moot 2018, and am the coach for the team representing in 2019. 
My core research interests lie in substantive copyright law and the core concepts which drive the threshold of copyrightability. Most of my research has been with respect to copyrightability of unconventional works, and the interface of tech and copyright (AI!!)
I am a huge advocate of author's rights, specifically singers mainly because of being from a musical background and the ground level issues we face. 
P.S. My artist name is 'raagasforsolace'. Check my music out. 
More about me on LinkedIn here.