1709 Blog: for all the copyright community

Wednesday, 23 April 2014

The CopyKat - on World Book and Copyright Day

Tom Lehrer in 1960
A fascinating post on TechDirt on the refreshing attitude to copyright from Tom Lehrer,  the American singer-songwriter, satirist, pianist, and mathematician, best known for the pithy, humorous songs he recorded in the 1950s and 1960s. In particular the article looks at what would happen to fan sites after he died. Tom's position on copyright after his death? "Well, I don’t need to make money after I’m dead" and on being asked if he would establish a foundation or charity or something similar before he died to look after his legacy he replied "No, I won’t. They’re mostly rip-offs." He's the man! However, and as one comment says,  the problem for the fan sites is that Tom won't be in control of his copyright after he dies ........

MegaUpload boss Kim Dotcom has secured an important victory in New Zealand with news that personal assets seized by the New Zealand authorities when Dotcom's home was raided amidst the US-led action against MegaUpload in 2012 could be returned to him within the next two weeks. The Auckland High Court has decided not to extend an order to allow police to retain the items. IF no appeal is lodged, Dotcom will be be entitled to the return of personal property, several cars and around $10 million in cash early next month. Dotcom tweeted yesterday: "Breaking News: High Court ruling just now. Mona and I are getting our New Zealand assets back, unless the Crown appeals. The NZ asset ruling is HUGE. We've just filed a case in Hong Kong against unlawful seizure of MegaUpload. The US case is falling apart! Our assets were seized for 800 days and still I was able to fight back even with my hands tied behind my back. Imagine what I can do now!" Dotcom is still facing extradition proceedings to send him to the US to face criminal charges resulting from his previous MegaUpload activities.

South Korea, China, Russia and Mongolia have held four-way talks on copyright law and intellectual property, strengthening their cooperation on patents, trade secrets and trademarks. The workshop saw policymakers and academics from the four nations discuss progress on copyright protection in each country and ways to improve bilateral and multilateral cooperation. The workshop was jointly organized by the Ministry of Culture, Sports and Tourism (MCST), the World Intellectual Property Organization (WIPO) and the Korea Copyrights Commission. 

The major record labels are now suing Pandora for exploiting sound recordings made prior to Feb. 15, 1972. Last September, a similar lawsuit was filed against Sirius XM. The RIAA (Recording Industry Association of America) explains that the claim arises as sound recordings didn't begin falling under federal copyright protection until 1972 and therefore the streaming service might not be able to rely upon blanket licences from SoundExchange, the performance rights organization that collects digital and satellite royalties on the behalf of sound recording copyright owners. The record labels are testing this belief, now asserting New York state misappropriation claims over older music being streaming on Pandora saying "Pandora's refusal to pay Plaintiffs for its use of [Pre-72] recordings is fundamentally unfair" and the companies say in their complaint "Pandora's conduct also is unfair to the recording artists and musicians whose performances are embodied in Pre-72 Recordings, but who do not get paid for Pandora's exploitation of Pre-72 Recordings."

Back to New Zealand: Radio New Zealand tells is that the Ngati Toa tribe is to campaign for copyright legislation to cover its tribal haka, Ka Mate. The Government has already created a law to ensure commercial users credit the composer, Te Rauparaha. But Ngati Toa chair Taku Parai said his tribe has been pushing for stronger legislation. He said negotiators attempted to secure a copyright law as part of a Treaty settlement - and will try again in five years time. Photo: Maori warriors perform a Haka by
Erin A. Kirk-Cuomo.

And finally it seems April 23rd is World Book and Copyright Day. 23 April is a symbolic date for world literature. It is on this date in 1616 that Cervantes, Shakespeare and Inca Garcilaso de la Vega all died. It is also the date of birth or death of other prominent authors, such as Maurice Druon, Haldor K.Laxness, Vladimir Nabokov, Josep Pla and Manuel Mej√≠a Vallejo. The day celebrates the contribution of books and authors to our global culture and the connection between copyright and books. World Book and Copyright Day 2014 theme is "History and Stories".


Wednesday, 16 April 2014

The CopyKat - hoping to find a new public

It seems that 84% of all the content Spanish internet users consumed in 2013 was - well - illegal. The statistics come from a new report from a coalition of music, film, publishing and gaming firms who will no doubt be looking for the Spanish government to further step up its anti-piracy efforts. With that in mind, the Reports says that 28% of surveyed Spanish web users admitted to illegally downloading music on a regular basis, while over 40% access films illegally. Spain’s Ministry Of Culture played down Report saying their report was just a “rough opinion study commissioned by interested parties”.


In Saudi Arabia Arab News reports that the Ministry of Culture and Information has closed down 72 shops in Riyadh for copyrights violations of video games, movies and selling unlicensed software, local media reported. Ali Al-Bishi, head of the Copyrights Department in the ministry said that inspection teams had discovered instances of violation of copyrights and sent orders to close down 72 shops  periods ranging from seven to sixty days. The process authorizes a copyright violations committee to impose fines ranging from a minimum of SR7,000 (£1,115) to a maximum of SR50,000 (£8,000). Decisions can also include compensation for infringement, permanently closing down store and 'naming and shaming'. 


Out in the field:  a new public?
Gizmodo tell us that "the US Copyright Office recently proposed a seemingly small addition to copyright law that bears some huge implications. It wants to enable copyright holders to protect unauthorised versions of their work from hyperlinks. You read that right: It could soon be illegal simply to link to certain content." That set their comments section on fire with one saying "Aren't hyperlinks the entire point of the internet?" whilst another mooted the Congress would see sense despite the lobbying efforts of the MPAA and the RIAA on behalf of the film and recorded music sectors adding "Hyperlinks are just a means of directing someone to a work. There is no copying and no supply of a copy. Before the Internet, you could tell someone where to go to find an infringing book or album or painting and the mere act of telling them wouldn't be copyright infringement. Hyperlinks do exactly that, albeit more efficiently". Readers will remember the recent Court of Justice of the European Union decision in  Svennson that held that the provision on a website of clickable links to works protected by copyright and  freely accessible on the ‘original’ website, constitutes an act of “communication to the public” as meant in article 3(1) of the Copyright Directive BUT to infringe, the communication must be directed at a “new public,” meaning a public that was not taken into account by the copyright owners when they authorized the initial communication to the public - so when providing hyperlinks to freely accessible (digital) works on a website, no permission from the copyright owners is required.


Party in a park - another new public?
I was pondering how an analogy to Svensson might be applied to that thorny issue of Sky TV's lucrative live transmissions of Premiership football in the United Kingdom  - and any possible ramifications on the decision in the Karen Murphy case which also went all the way to the CJEU andthen back to the Hugh Court and Court of Appeal, and  which found that Ms Murpy could use a Greek Nova decoder card herself to watch live football - but it's debatable if this can extend to public showings in her public house. Now then, is that because this is a communication to a 'new public' ?

Back in October 2011 I mused thus: Copyright MIGHT protect the FAPL though - for the protected elements of any programme: I am not convinced Karen Murphy is safe to show the NOVA feed in public as the ECJ said that this is communicating the public and a pub screening would be an unlawful, profit-making communication to the public of copyright works it would not have been taken into account or considered by the authors of the protected works. She can own the decoder and buy the NOVA service for her private use. 


One public is behind this goal
But where are we now? The Premiership (FAPL) make their content available in the UK via Sky as well as making it available live via other broadcasters elsewhere in the EU, and the content is therefor available to all Europeans. So who might a new audience (a new public) be? And why should Karen Murphy's customers be included (or excluded)? Remember the CJEU said this when applying competition law "A system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity on a Member State basis and which prohibits television viewers from watching the broadcasts with a decoder card in other Member States is contrary to EU law": Surely the public FAPL must had in mind is the whole of Europe. Now, unlike the material and content in Svennson, Sky's transmissions are protected by technology - as are most (all?) of the other European broadcasters carrying live Premiership football, and so decoders and decoder cards are needed: but does this matter? Ms Murphy did have a 'paid for' decoder card for her pub in Portsmouth - just one from Nova in Greece - not Sky in the UK: So, surely (and please DO shoot me down) it's arguable that the FAPL must accept that by allowing the signal to go out live anywhere in the EU, pan-European stylee, means that neither the Sky Audience nor the Nova audience can then be a 'new public' - because they are one public. One public, which comprises all (football loving) Europeans (with decoders).  With at least 100 British pubs using foriegn decoders to show live Premiership football  facing actions by FAPL, it's still an important question - and this blogger wonders where this one will go. And let's not forget Eleonora's very relevant December 2012 post on the Court of Appeal's musings in particular on the S72(1) defence on the IPKat - it's well worth a re-read and can be found here as is the paper on Communicating to the Public by Enrico Bonadio and Mauro Santo.

Back in January four people in the USA were charged in connection with pirate apps developed for Android devices. Now all four of these defendants have pleaded guilty to charges of conspiracy to commit criminal copyright infringement.


And finally, Google has called for content licensing in the European Union to be simplified: In its submission to the European Commission's public consultation on the review of copyright rules Google says: "We believe the [European] Commission should consider appropriate means of ensuring that rights that cover a single act of exploitation are licensed together" Google said in the response to the Commission's review of the EU copyright framework; "The lack of a single license for a single act of exploitation is an historical remnant, an attempt to use approaches to licensing analog products for digital ones" and has said that it is wrong that businesses should have to pay separate royalties to cover each of the "multiple rights" protected by copyright when making single use of that material - singling out digital music licensing and the role of collection societies for particular criticism saying music licensing was outdated and "structured by right holders as if a digital act of exploitation is a mixture of pressing a compact disc implicating the mechanical reproduction right and broadcasting implicating the performing rights/communication to the public right" and "In territories where different collecting societies administer each right, each society wants to be paid for the same activity by claiming that separate rights are implicated, including rights that have no independent economic value" adding "A collecting society in charge of managing the right of making available might claim royalties for the act of simply loading files to a server connected to the internet, even if no one ever accesses those files."  More on Out-law here.

Friday, 11 April 2014

External competence to negotiate copyright protection treaties: who can do it for the EU?

Case C‑114/12 European Commission v Council of the European Union nearly escaped this blogger's attention completely, since there was no obvious giveaway in the title of this case to suggest that it had anything to do with copyright. The C-word however appears no fewer than 38 times in Advocate General Sharpston's Opinion. So what's it all about? As AG Sharpston explains:
"A dispute has arisen between the European Commission and the Council of the European Union about the competence to negotiate a Convention of the Council of Europe on the protection of the rights of broadcasting organisations.  On 19 December 2011, the Council and the Representatives of the Member States (meeting in the Council as representatives of their respective governments) authorised the Commission to participate in the negotiations for the Convention as regards matters falling within the European Union’s competence and instructed the Presidency to negotiate on behalf of the Member States as regards matters falling within the latter’s competence.

The Commission seeks annulment of the Decision on the ground that it fails to respect the European Union’s exclusive external competence in the area of protection of rights of broadcasting organisations. Furthermore, the Commission submits that the Decision should be annulled because it was adopted in violation of the applicable procedural rules and the principle of sincere cooperation".
In short, the AG agreed that the Decision should be annulled, for the following reasons:
* it violated both Article 218(2) TFEU, according to which it is for the Council alone to authorise the opening of negotiations concerning an international agreement and to adopt negotiating directives,

* it also violated Article 13(2) TEU, in that the Council cannot have recourse to alternative procedures and may not unilaterally derogate from the procedure in Article 218(2) TFEU by including the Member States, acting collectively in the Council, in its decision-making process.

* by adopting the Decision by common agreement, the Council violated Article 218(8) TFEU, because the Decision had to be adopted by qualified majority, this also being the general rule stated in Article 16(3) TEU.
There will be more to come, so watch this space.

Thursday, 10 April 2014

Private copying of unlawful reproductions: CJEU says "no!"

This morning the Court of Justice of the European Union gave judgment in Case C-435/12 ACI Adam BV and Others v Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie vergoeding. The judgment is so far available in just five official languages of the European Union, none of which this blogger can handle, so he reproduces the Curia press release for your edification here:
"The amount of the levy payable for making private copies of a protected work may not take unlawful reproductions into account 
The fact that no applicable technological measure to combat the making of unlawful private copies exists is not capable of calling that finding into question

The Copyright Directive [ie Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society] permits Member States to lay down an exception to the exclusive reproduction right of holders of copyright and related rights so that private copies may be made (the private copying exception). It also provides that Member States which decide to introduce such an exception into their national law are required to provide for the payment of ‘fair compensation’ to copyright holders in order to compensate them adequately for the use of their protected works or other subject-matter.

ACI Adam and Others are importers and/or manufacturers of blank data media such as CDs and CD-Rs. Under Netherlands law, those companies are required to pay a private copying levy to a foundation, Stichting de Thuiskopie. The amount of that levy is determined by another foundation, ‘SONT’.

ACI Adam and Others take the view that, when determining the amount of the levy, SONT should not have taken into account the harm which may be suffered by copyright holders as a result of copies made from unlawful sources.

Against that background, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to seek a preliminary ruling from the Court of Justice.

In its judgment delivered today, the Court points out that if Member States were free to adopt legislation permitting, inter alia, reproductions for private use to be made from an unlawful source, the result of that would clearly be detrimental to the proper functioning of the internal market [not sure about this: the whole point of copies for private use is, or at any rate was, the fact that each such copy had no impact on the market at all. If this is so, then it's difficult to see how consideration of the liability of an individual for making a private copy of an unauthorised, rather than a lawful, work would affect the functioning of any market, anywhere. Can someone please explain?].

Similarly, the objective of proper support for the dissemination of culture may not be achieved by sacrificing strict protection of copyright or by tolerating illegal forms of distribution of counterfeited or pirated works [but the toleration of the making by an individual of a copy for private purposes is not to be equated with the making or distribution of counterfeit or pirate works by commercial infringers].

Consequently, the Court holds that national legislation which makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources cannot be tolerated.

First, to accept that such private reproductions may be made from an unlawful source would encourage the circulation of counterfeited or pirated works, which would inevitably reduce the volume of sales or of lawful transactions relating to the protected works and would consequently have an adverse effect on normal exploitation of those works [Why? The person making money from distributing and selling fakes doesn't isn't going to be more enriched, is he, when someone makes a private copy of "his" work than when it's made of the legimate copyright owner's?]. Secondly, the application of such national legislation may unreasonably prejudice copyright holders.

Furthermore, the Court states that it is for the Member State which has authorised the making of private copies to ensure the proper application thereof and to restrict acts which are not authorised by the rightholders.

National legislation which does not distinguish between lawful and unlawful private reproductions is not capable of ensuring a proper application of the private copying exception. The fact that no applicable technological measure exists to combat the making of unlawful private copies is not capable of calling that finding into question.

Furthermore, the levy system must ensure that a fair balance is maintained between the rights and interests of authors (as the recipients of the fair compensation) and those of users of protected subject-matter.

A private copying levy system, which does not, as regards the calculation of the fair compensation payable to its recipients, distinguish between the lawful or unlawful nature of the source from which a private reproduction has been made, does not respect that fair balance.

Under such a system, the harm caused, and therefore the amount of the fair compensation payable to the recipients, is calculated, according to the Court, on the basis of the criterion of the harm caused to authors both by private reproductions which are made from a lawful source and by reproductions made from an unlawful source. The sum thus calculated is then, ultimately, passed on in the price paid by users of protected subject-matter at the time when equipment, devices and media which make it possible to create private copies are made available to them.

Thus, all users are indirectly penalised since they necessarily contribute towards the compensation payable for the harm caused by private reproductions made from an unlawful source. Users consequently find themselves required to bear an additional, non-negligible cost in order to be able to make private copies".
There seems to be an awful lot of assertion here; this blogger looks forward to reading the full judgment in order to find out how much of it is based on anything more substantial.

Eleonora has posted a "breaking news" item on the IPKat blog here, but promises more to come once she has digested the ruling in full. We await her further thoughts with excitement.

Wednesday, 9 April 2014

Wednesday's CopyKat is an off-to-court Kat: how apealing

Variety reports that MGM and James Bond producers Danjaq have filed a copyright infringement suit against NBC Universal claiming that the studio’s planned “Section 6″ feature film is a rip off of the lucrative 007 franchise. The law suit, filed in U.S. District Court in Los Angeles, also names screenwriter Aaron Berg and says. “This lawsuit concerns a motion picture project, in active development, featuring a daring, tuxedo-clad British secret agent, employed by ‘His Majesty’s Secret Service,’ with a ‘license to kill,’ and a 00 (double-O) secret agent number on a mission to save England from the diabolical plot of a megalomanical villain”. I have to say that does sound familiar ......  mind you, it would also sound quite like the plots of the Johhny English films too. The suit goes on to say that the the project, which is planned to be directed by Joe Cornish and starring Jack O’Connell “misappropriates from the James Bond works far beyond the signature aspects of James Bond,” and that it copies “in detail nearly every aspect of the characters, plots dialogue, themes. setting, mood and other key elements of the copyrighted James Bond literary works and motion pictures.”  In 1995 a federal court in Los Angeles ruled in favour of MGM in its contention that a Honda commercial violated its copyrights with a commercial that evoked Bond, even though that name was not used. Injunctive relief is sought. 

The American Cable Association (ACA) has become the the latest trade body to come out in support of the legitimacy of the Internet TV streaming service Aereo in the upcoming appeal in the US Supreme CourtThe ACA – which represents some 850 smaller and medium-sized, independent cable companies – has filed an amicus brief urging the Court to uphold the legality of Aereo’s technology as safely fitting within the tradition of maintaining the public’s ability to access freely available local broadcast TV signals, and reject the copyright claims from broadcast companies to "protect business models and erect pay walls".  That said, the US Copyright Office general counsel Jacqueline C Charlesworth, speaking at the American Bar Association’s Intellectual Property Law Conference in Washington, told delegates that the legal basis for Aereo’s antenna-based online television streaming service was“fundamentally incorrect”. According to Law360, Charlesworth said the “very important case” had implications far beyond the particular business model, that really goes to on-demand or interactive streaming services in general. “Taken to its logical extreme … it would threaten a lot of existing systems where content owners are receiving royalties”. With the apparent variety of opposing opinions already highlighted in the US judiciary, surely it is time to revisit Cablevision?  


Not a work of art ......
The Gujarat High Court has dismissed a criminal complaint alleging copyright infringement against a shop owner, Hasmukh Panchal, who dealt in duplicate parts of Hyundai cars. The Court held saying that automobile parts cannot be treated as works of art for which Copyright Act can be invoked. Whist Charges under sections 63 and 65 can be used for works including to painting, sculpture, drawing, and photographs and on works of literature, its not for car parts. 

Filmakerz.org, one of the websites that was targeted by the recent wide-ranging web block order against 45 websites linking to infringing material issued by the Public Prosecutor of Rome to ISPs - has won appeal before the Court Of Appeals in Rome. Appeal judges ordered the blockade against the video sharing site be lifted on the basis that the whole site blockade was too wide and resulted in legitimate content on the Filmakerz.org platform being blocked too. The appeals court also said that web-block injunctions should only be issued against sites which are clearly profiting from the infringement they commit or enable.

And Singapore is looking to introduce blocking orders against websites which blatantly infringe copyright in proposed changes to the Copyright Act - in a move to give rights holders more effective measures to act against sites which host pirated content. A public consultation on the proposed new laws is underway till 21 April. The Media Convergence Review Panel's 2012 recommended a multi-pronged approach to address online piracy, comprising (a) public education, (b) the promotion of legitimate digital content services, and (c) the adoption of appropriate regulatory measures. 


More from PIPCU. The City of London's  Police Intelligent Crime Property Unit, who are targeting one of the most torrented, streamed and illegally downloaded TV series of all time, Game of Thrones: just one episode in series 3  racked up 4,280,000 illegal downloadsAs well as creating an "Infringing Website" list, officers are trying to replace advertising banners on illegal sites with a tailored message. Rights holders identified a total of 61 websites that provided unauthorised access to the show during its first episode of the new series. In response, PIPCU has sent deterrent notices to those domains, giving the sites the chance to remove the content. If a domain does not act in time, it seems PIPCU will contact advertisers and demand that all revenue to the infringing site be shut down.

A group of film studios including Twentieth Century Fox Film Corp., Disney Enterprises Inc., Paramount Pictures Corp., Universal City Studios Productions, Columbia Pictures Industries Inc. and Warner Bros. Entertainment Inc have filed a lawsuit in the U.S. District Court in Virginia against MegaUpload boss Kim Dotcom, Vester Limited, the majority shareholder of Megaupload Limited, Mathias Ortmann, the site's chief technical officer, and Bram van der Kolk, who oversaw programming. The suit alleged that the defendants encouraged and profited from copyright infringement of movies and television shows before they were indicted on federal criminal charges and Megaupload was shut down.



An interesting article in the Moscow Times from Elena Trusova (Goltsblat BLP, the Russian practice of Berwin Leighton Paisner) looking at how the new Russian "Anti-piracy law" is being used against Internet sites hosting illegal audiovisual works: there seem to have been more than a hundred applications against dozens of sites - the majority from Russian content owners rather than foreign firms, and the courts "frequently use quite a general wording to describe the measures applied to the defendant, such as: "desist from creating technical conditions allowing hosting, distribution and other use of a motion picture on a certain website". Elena explains that "This approach provides some freedom of action for both the plaintiff and Roskomnadzor, in charge of enforcing the ruling during the enforcement stage. In particular, on the basis of this wording, it is quite possible not only to block access to an individual link or separate page of web-site but also to the information source as a whole, if, for instance, all its contents are used for publishing illegal content or links thereto." You can click through to the article here . 

And finally a quick review of some interesting updates

The Prenda Law 'trolling' case: the appeal by three of the attorneys who were associated with Prenda, Steele Hansmeier PLLC and Alpha Law  goes from bad to worse as the oral hearing begins. More here .

Malibu Media: an adult film company also accused of trolling, has said that it will settle cases based on the outcome of a lie detector test. Documents filed in the Northern District of Illinois Federal Court say  "Malibu will dismiss its claims against any Defendant who agrees to and passes a polygraph administered by a licensed examiner of the Defendant's choosing". Malibu have “filed 268 cases within the Northern District of Illinois". More here


U.S. District Judge Henry Edward Autrey has awarded Warner Bros. $2.57 million for violations of their  copyrights in The Wizard of Oz, Gone with the Wind and the Tom and Jerry cartoon series by a number of 'collectibles' dealers who repeatedly infringed their copyrights - and submitted financial figures to the court which the judge clearly thought were unreliable at best. Judge Autrey said "This court finds statutory damages of $10,000.00 per infringement to be reasonable, considering: the factual history of this case, including defendants' failure to provide accurate records in order for plaintiffs to determine the profits made for the infringements; defendants' undisputed continued infringement after the initiation of this suit; the need for specific deterrence of the defendants' further copyright violations; the need for general deterrence for others who may consider engaging in copyright violations; and comparative awards of statutory damages by other federal district courts confronted with similar violations".More here.  


Monday, 7 April 2014

UK government tightens up on collecting societies

According to a media release from the Department for Business, Innovation & Skills, the UK government has been doing some tweaking of its laws governing the activities of copyright collecting societies. States the media release, in relevant part: 
GOVERNMENT ENSURES MINIMUM STANDARDS FOR ALL COLLECTING SOCIETIES 
New regulations for collecting societies will offer greater clarity for people using copyright works in their business. 
Pubs, bars and shops that require a licence to play music or schools who photocopy copyright material will find to find their legal rights easier to understand as changes to the law came into force on 6 April 2014. 
Last year UK collecting societies collected a total of £1 billion in licence fees for their members. Following discussions with Government, many collecting societies have already put in place their own Codes of Practice which set out minimum standards of transparency and behaviour, as well as establishing a formal complaints procedure. 
The new law includes powers that will make sure all collecting societies comply with these minimum standards. 
Intellectual Property Minister, Lord Younger, said:
"Any efforts that support self-regulation should be welcomed. I am pleased to see the progress that collecting societies have made in agreeing minimum standards and setting their own Codes of Practice. The additional backstop power that has come into force today is there to make sure those standards are met and to give businesses the certainty and clarity they need."
Kevin Fitzgerald, Chair of the British Copyright Council (BCC) Working Group on Principle of Good Practice said:
“I warmly welcome the announcement that the Government’s regulations on Codes of Practice for collecting societies have now become law. I am sure that the positive and collaborative approach taken by the industry has helped to bring about this smooth conclusion to the legislative process. The minimum standards already adopted by collecting societies, and now underpinned by law, are an important step that will strengthen our industry. Good governance is good news for collecting societies and for the economy as a whole.”
Alexander Jackman, Head of Policy at the Forum of Private Business (FPB), commented:
“The Forum of Private Business is delighted that the regulations on Codes of Practice for collecting societies have been approved by Parliament. FPB members regularly interact with collecting societies for their licensing requirements and it is reassuring to know that there are minimum standards in place, and to have clarity around what we can expect."
The Government has published legal guidance on the new regulations for collecting societies and licensees.
The relevant legal detail can be found in the Copyright (Regulation of Relevant Licensing Bodies) Regulations 2014 (2014 No.898) -- part of a wider package of UK copyright reforms that seek to make a clearer and more accessible copyright framework for users and rights-holders. 

Somehow a law that orders collecting societies to sort things out for themselves sounds like a strange way of going about things, but there is some logic in it: each society is presumed to know its own rights, members, users and operating milieu better than any legislator does. Let's see how well it works.

Subject-matter categorisation under EU law: poll results

There are voting decisions
that are more difficult than others to make
Following the 4th GRUR Int / JIPLP Joint Seminar on the different notions of copyright-protectable works across the European Union (EU) which was held in Munich almost a month ago, this blog launched a poll asking its readers whether closed subject-matter systems [as is the case under UK law where, to claim copyright protection a work must - among other things - fall within one of the eight categories indicated by the Copyright Designs and Patents Act 1988] are no longer acceptable under EU law.

This blogger was and still is [more than ever] under the impression that the response should be in the sense that closed systems are no longer compatible with EU law. 

This follows especially from the decisions of the Court of Justice of the European Union (CJEU) in Case C-5/08 Infopaq [here], Case C-393/09 BSA [here], Joined Cases C-403/08 and C-429/08 FAPL [here], and Case C-145/10 Painer [here]

At the national level, also super-learned Mr Justice Arnold said [in his 2013 decision in SAS v WPL, at para 27] that:

"In the light of a number of recent judgments of the CJEU, it may be arguable that it is not a fatal objection to a claim that copyright subsists in a particular work that the work is not one of the kinds of work listed in section 1(1)(a) of the Copyright, Designs and Patents 1988 and defined elsewhere in that Act."

It seems, however, that 1709 Blog readers do not agree with this conclusion. 

The 1709 Blog poll attracted 56 votes [thanks so much to all those who cast their precious vote!], and the results were as follows: 
  • 23 people (41%) thought that the CJEU has not yet been asked to rule on national systems of subject-matter categorisation; 
  • 22 people (39%) believed that the answer should be in the sense that we are now required to protect anything that is a 'work' if it displays sufficient originality;
  • Finally, 11 voters (19%) held the opinion that it all depends on whether the CJEU wants to have a particular work (eg a graphic user interface) protected by copyright.

Friday, 4 April 2014

The CopyKat + Inspiration = Happiness

Education was mentioned quite a few times at the IPKat's inspirational Online Copyright + Enforcement = Happiness seminar at Bristows this week, and now it seems much-loved animated character Postman Pat is to play a role in inspiring younger film fans to choose official content. Today, April 4th, pro-copyright consumer education body the Industry Trust for IP Awareness and Lionsgate UK  launches an exclusive Postman Pat: The Movie trailer in cinemas nationwide, adding to the vast catalogue of movie trailers that form the industry’s successful ‘Moments Worth Paying For’ campaign,  and includes bespoke footage of Postman Pat and his sidekick Jess - another feline friend - signposting fans to FindAnyFilm.com for guaranteed real movie experiences, whilst also thanking them for supporting those who worked behind the scenes by buying their cinema ticket.

The Nova Scotia government has reached a settlement in a copyright and moral rights case involving the Bluenose II with the family of the famous schooner's original designer. The dispute arose in 2012 after the Roue family launched a lawsuit against the provincial government alleging that it infringed on their copyright and moral rights by using William J. Roue's drawings in the Bluenose II restoration. Under the terms of the agreement announced Friday, the government would pay the Roue family $300,000, including legal fees, and neither the province nor the family would acknowledge or admit liability.

Also mentioned at the IPKat seminar, so admirably organised by Jeremy and Eleonora, was the news that the City Of London Police's Intellectual Property Crime Unit has announced a new campaign calling on advertisers and brands to cut off the revenue streams of websites providing access to unlicensed content.


And another topic focussed on at the IPKat seminar, where Google's Simon Morrison was a speaker, were DMCA take downs: And somewhat conveniently, YouTube's ContentID system of auto takedowns is in the spotlight - after footage of a live stream of the US House of Representatives' Appropriations Committee, having a budget hearing on the judiciary, was taken down with an apparent copyright claim from Spanish language broadcasters Telemundo and Univision. Surely some mistake .........

And more on YouTube; The Recording Industry Association Of America has secured a subpoena from a federal court in California ordering YouTube to reveal the IP address, email and any other contact info available about a user who uploaded two new unreleased Chris Brown tracks to the video platform earlier this year.


Russian social networking company vKontakte, Russia's equivalent of Facebook with over 100 million active users,
is facing copyright litigation from all three major music groups. Sony, Universal and Warner have all filed separate legal proceedings in the Saint Petersburg & Leningradsky Region Arbitration Court, with Russian music industry trade group NFMI and global recorded music industry body the IFPI both backing the action. The record labels want vKontakte to remove infringing works from its website and are asking the court to require that the website implement measures such as audio-fingerprinting to prevent unauthorized uploads of the labels’ songs. The IFPI confirmed that the labels are also seeking just over 50 million roubles (US$1.4 million) in damages, it added. The site lets copyright holders request the blocking or removal of infringing content, but it is a time consuming process and can also require that they obtain a court order before it complies with their request, making this process “heavily weighted towards the individual who uploaded the infringing material,” IFPI said. On its site, vKontakte states: “The Site Administration has no right to undertake the roles of law enforcement or judicial authorities and objectively cannot evaluate if particular Content on the Site is legal or illegal. If a dispute arises, the applicant is advised to seek help from law enforcement authorities and the court of law".  In May 2012, the Saint Petersburg appeals court upheld an earlier ruling by the Commercial Court of Saint Petersburg that found vKontakte liable for copyright infringement.

On May 7th, The City University Law School host a seminar by Dr Benjamin Farrand looking at why are some lobbyists looking to seek reform to copyright law more successful than others in having their preferred policy outcomes taken into account?. Its between 1pm and 3pm and the title is "Networks of power in digital copyright law and policy". Dr Farrand is Lecturer in Intellectual Property Law and Policy at the University of Strathclyde. His research predominantly focuses on the interaction between political processes and intellectual property law, with particular interest in principles of networked governance, technology regulation and human enhancement technologies: So this from City: "Success in 'lobbying' for changes in copyright law is the result of complex network relationships, perceptions of industry expertise, and the comparatively low political importance of copyright reform to European citizens. By presenting a number of case studies, including the implementation of the Information Society Directive in 2001, the Enforcement Directive in 2004 and the Term Extension Directive in 2011, Dr Benjamin Farrand will argue that an active entertainment industry has been more able to influence legislation than academics or user rights organisations due to a combination of expert knowledge and low media attention. However, the entertainment industry is less able to influence the development of copyright law when media attention and political salience are high, as in the case of the European Parliament rejection of the Anti-Counterfeiting Trade Agreement." More here

Pat and that cat
Back to the IPKat seminar: apart from being streamed live, recordings of all of the talks on the day along with each speaker's powerpoints will be available very soon. No session is more than 20 minutes long (well done to the speakers to sticking to time - always appreciated) so keep an eye on the IPKat for details.  

Giancarlo Bettini, the owner of Slysoft, a company that offers DVD-ripping tools, has been fined $30,000 for six offences that violated Antigua’s copyright law in an action brought by major Hollywood studios and their technology partners. It was made more complicated by the 2013 WTO ruling that exempted Antigua and Barbuda from US copyrights, to allow the island state to recoup the damages the US owed from an earlier ruling that invalidated the United States’ total prohibition on cross-border online gambling services. Here the litigants (AACSLA) used anti-circumvention provisions in Antigua's Copyright Act of 2003, which resulted in criminal convictions on six counts. The Copyright Act makes it an offence to manufacture "any device or means specifically designed or adopted to circumvent any device or means intended to prevent or restrict reproduction of work, a phonogram or a broadcaster to impair the quality of copies made.”

And finally, a  a scandal involving Peru's collection society, the Peruvian Association of Authors and Composers (APDAYC), has prompted no less thirteen bills before the legislature, seeking to change different parts of Legislative Decree 822, which governs copyright law of Peru. Some of these bills propose changing specific rules on how collecting societies operate (stemming from the allegations made in recent months against the APDAYC) but there are also proposals for even deeper reforms. Some proposals include new exceptions and limitations for domestic purposes, non-profit activities, libraries, small businesses and religious activities. More on TechDirt here.