1709 Blog: for all the copyright community

Wednesday, 1 April 2015

The London Manifesto: time for reform?

"“Fair copyright for all across Europe” rallying call from libraries, archives and charities" is the title of a media release that went live the moment this blogpost did, at one minute past midnight on 1 April. Issued by the Chartered Institute of Library & Information Professionals (CILIP), it reads as follows:
In a bid for fair copyright laws that will benefit citizens and researchers across Europe organisations including the Wellcome Trust, the National Library of Scotland, the National Library of Wales, the Chartered Institute of Library & Information Professionals, Royal Museums Greenwich and the Open Rights Group have called for much needed reforms.

The London Manifesto calls for fair copyright for libraries and archives across Europe. The manifesto outlines needed reforms that will better support research, innovation and growth and will help create a digital single market. It focuses on the important role of libraries and archives.

The reforms would bolster the rights of disabled people by supporting equal access to knowledge. They would mean that libraries can acquire and lend commercially available digital materials and, with archives, can continue to underpin knowledgeable societies in the digital age. The reforms would allow libraries and archives to better support research through modern text and data mining techniques. They would also create a more manageable system of harmonised copyright laws across EU member states.

Non standardised copyright laws across Europe are failing to support the vision of a digital single market because they currently prevent fair access and use of digital content. This means that researchers and citizens in one country can be subject to a completely different copyright regime than in another country. For example this creates significant problems for researchers who are working collaboratively across Europe. ... .”

Organisations will be able to show their support for fair copyright across Europe by signing in support of the London Manifesto at www.cilip.org.uk/londonmanifesto
The media release also featured supportive quotes from Naomi Korn (Chair of the Libraries & Archives Copyright Alliance) and Martyn Wade (CILIP Chair).

The full text of the London Manifesto reads like this:
Fair Copyright Reform for Libraries and Archives in Europe

Fair copyright across Europe is essential. Without it we will fail to adequately support research, innovation and growth, and hinder the ambition for a digital single market. With it we will better foster knowledge across borders, meet the needs of disabled people and take full advantage of the digital age. We are calling for fair copyright that is fit for purpose and will benefit every European citizen.

We are advocating:

Harmonised exceptions: Harmonisation and uniform application of copyright exceptions across all EU member states so that they apply regardless of media or technology.

Open norm: The addition of a new “open norm”, an open-ended exception subject to the three-step test, to avoid the current situation where European creativity and research cannot immediately benefit from technological innovations because copyright legislation is slow to catch up.

Right to lend: An automatic “right to lend” for libraries, to include the right to lend all digital media, including transferring digital files for a limited period.

Right to acquire: A right at reasonable cost for libraries and archives to purchase or obtain a licence to use any work in copyright that has been made commercially available.

Right to mine: An automatic right to perform computer analysis of copyright works for libraries, archives or their users whenever they have lawful access to the content. This recognises that the right to read includes the right to mine.

Right for disabled people: Individuals with any cognitive and/or physical disabilities are entitled to the same access to knowledge as anyone else. In any country they must be allowed to make copies, or have made copies for them, in any format necessary if their disability is impeding access. The EU and its member states should speedily ratify the WIPO Marrakesh Treaty 2013, in particular to permit the transfer of accessible format copies between countries.

Right to enjoy statutory exceptions: Prohibition of contractual terms and/or technological protection measures (TPMs) that override any statutory copyright exceptions.

Right to cross-border uses: The right for libraries and archives to share resources and make available, communicate, transmit and distribute content and supply copies made under a copyright exception across borders.

Mass digitisation: An automatic right for libraries, archives and museums to mass digitise their commercially unavailable research collections, and give online access across the whole of the EU without liability to compensate rightholders.

Standardised terms of protection for copyright: Swift and complete harmonisation of copyright durations across all member states.
The List of Manifesto signatories at launch on 1 April 2015 is pretty impressive:
Archives and Records Association (UK and Ireland)
ARLIS UK & Ireland
Association of Dutch Public Libraries
Centrum Cyfrowev Chartered Institute of Library and Information Professionals
City University London
CLAUD - Promoting Accessible Libraries
Copyright for Creativity (C4C)
Electronic Information for Libraries (EIFL)
Estonian Academy of Music and Theatre
European Bureau of Library, Information and Documentation Associations
FOBID Netherlands Library Forum
German Library Association
Libraries and Archives Copyright Alliance
London Metropolitan University
Museums IP Network
National Library of Scotland
National Library of Wales
Open Rights Group
Julia Reda, MEP
Research Libraries UK (RLUK)
Royal Museums Greenwich
Share the Vision
Society of College, National and University Libraries
Swansea University Information Services and Systems
University of the Arts London
University of Leeds
University of Manchester Library
University of Sussex Library
Wellcome Trust
Some of these demands are long overdue and there is no credible objection to them. Harmonised exceptions, standardised copyright terms within the single EU market and ratification of the Marrakesh Treaty are obvious examples. Others will be more controversial. For example, the "right to enjoy statutory exceptions" calls for "prohibition of contractual terms and/or technological protection measures (TPMs) that override any statutory copyright exceptions" -- but it's not clear to this blogger how it at all this affects materials held by libraries, museums and archives and which are out of copyright, but which are not made accessible or are made accessible on restrictive terms such as a prohibition on making a copy or taking a photograph. It would seem anomalous if greater access was granted to works that were still in copyright than to works that had fallen into the public domain.

Readers' thoughts and comments are welcomed.

Monday, 30 March 2015

WhoIsHostingThis.com is reaching out ... to you

Melissa from WhoIsHostingThis.com has written to us to say that she wants to reach out and share a resource that "specifically helps students to understand copyright and the Digital Millenium Copyright Act" -- so if you are inclined towards the United States version of copyright (and that's something we can't escape for long) you might want to investigate Melissa's links.

One is described as the "Ultimate Guide to Copyright for Students" (here)
The other is billed as the "Ultimate DMCA Guide for Students" (here)

WhoIsHostingThis.com is described by Wikipedia as
"a commercial website providing a web hosting search tool and also reviews and thematic comparisons of hosting providers who pay to have their services advertised. It was launched in 2007 by Stan Schroeder and Gordan Orlic and it was acquired in 2008 by London-based Quality Nonsense Ltd, with a subsequent redesign and addition of new features".
Readers are invited to inspect these links and form their own conclusions. Whether you like the text or not, it's hugely more readable than most copyright statute law.

Saturday, 28 March 2015

The CopyKat - Caymans, C-More, Catchups and Costs

I imagine Sky TV will be breathing a partial sigh of relief - as over on the IPKat Eleonora has a very interesting update from the CJEU in Case C-279/13 C More Entertainment headlined with CJEU says that live broadcasts are not communication to the public within InfoSoc Directive but Member States can protect them and where the court has decided that "[The Information Society] [D]irective provides that broadcasting organizations may prohibit the provision to the public fixations of their broadcasts, so that everyone can access them from a place and at a time chosen individually."  the Court note[d] that, with regard to the nature and extent of the protection which Member States may recognize broadcasting organizations, the Directive does not harmonize any differences between national laws, so it does not preclude more protective provisions. Other relevant decisions are the Svensson case (C‑466/12), where the European Court ruled on (mere) hyperlinking holding that, while a link is an act of making available, where a work is already accessible on the open internet, then that act of making available does not require the consent of rightsholders because it is not a new public, and Bestwater where the CEU found that the framing of a work (or other protected material) which is freely available on a publicly accessible website is allowed, unless it is directed at a different audience than originally intended or is communicated (to the same audience or not) by using different technical means.

The Cayman Islands Minister of Commerce Wayne Panton has announced that the island's legislation will be updated to reflect current UK copyright laws. The minister explained the aim is to offer stronger intellectual property protection that is in line with Britain. As of now, Cayman Islands copyright laws date back to the UK Copyright Act of 1956. Whilst the UK repealed that Act in 1988, the Cayman Islands law remained the same. In a release sent this week government officials said the UK had extended its current copyright Act to the Cayman Islands. The Act has been extended by the Copyright (Cayman Islands) Order 2015, which was passed by the UK Privy Council on 19th March. The new set of copyright laws will replace the UK’s 1956 Act in the Cayman Islands and in its place will be the extensions of the UK’s 1988 Copyright Act. The Cayman Islands are a British Overseas Territory in the western Caribbean Sea. The territory comprises the three islands of Grand Cayman, Cayman Brac and Little Cayman, located south of Cuba and northwest of Jamaica

A New York judge has thrown out the 2012 lawsuit from TufAmerica accusing the Beastie Boys of sampling 1980s funk trio Trouble Funk without permission on 1989’s Paul’s Boutiqueaccording to TimeThe judge ruled that TufAmerica, didn’t have the exclusive rights to the two samples in question. After Trouble Funk’s deal with Island Records was terminated, TufAmerica agreed in 1999 to administer copyrights for only two of Trouble Funk’s members; an agreement with the third member was reached in 2012, but the judge ruled that those documents don’t justify TufAmerica’s copyright claim saying "Putting aside the issue of whether the 2012 agreement and 1999 agreements can be read together, the 2012 agreement conveys nothing more than the bare right to sue" and adding "It has long been the rule that [w]here ... an agreement transfers nothing more than the bare right to sue ... [it] cannot be the basis for standing under the Copyright Act".

Image from wikileaks
WikiLeaks has released  the "Investment Chapter" from the secret negotiations of the TPP (Trans-Pacific Partnership) agreement. The document adds to the previous WikiLeaks publications of the chapters for Intellectual Property Rights (November 2013) and the Environment (January 2014). Current TPP negotiation member states are the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei. The TPP is the largest economic treaty in history, including countries that represent more than 40 per cent of the world´s GDP. Julian Assange, WikiLeaks editor said: "The TPP has developed in secret an unaccountable supranational court for multinationals to sue states. This system is a challenge to parliamentary and judicial sovereignty. Similar tribunals have already been shown to chill the adoption of sane environmental protection, public health and public transport policies." .

And another update on the IPKat - this time on the ITV v TVCatchup case ( [2015] EWCA Civ 204) and another referral to the CJEU by the  Court of Appeal (Lady Justice Arden and Lords Justice Kitchin and Underhill), dismissing TVC's appeal, and sending the case back to Luxembourg for a further preliminary ruling of the CJEU, this time on the "difficult question as to the scope of Article 9 of Directive 2001/29 and whether it permits the retention by a Member State of a provision such as s.73 of the CDPA which, in the particular circumstances set out in that section, affords a defence both to an allegation of infringement of copyright in a broadcast and of the copyright in any work included in the broadcast arising from the streaming of public service broadcasts to members of the public where that streaming takes place by wire (a) via the internet (but not including transmission by mobile devices via any mobile telephone network) and/or (b) to users situated in the original broadcast area. ...  I am satisfied that a ruling on this question is necessary for this court to give judgment" (Kitchin LJ). 

The Haiti earthquake aftermath  by Daniel Morel
And finally, following on from our recent blog on the award of $5.6 million in legal fees and costs against Perfect 10, photographer Daniel Morel has failed in an attempt to be awarded legal costs, despite being awarded $1.2 million by a jury in 2013 after his photos from the Haiti earthquake were widely distributed by news agencies Agence France-Presse (AFP)  and Getty after he put them on Twitter: On costs, US District Judge Alison Nathan said "Morel fought a fair fight and won," but added that "Academics and practitioners are... coming to terms with the implications of social media and traditional copyright law" and that the case  was a "close case on the merits" and involved "novel legal issues," so awarding attorneys' fees wouldn't be appropriate in this case. The Judge also noted that AFP and Getty made a $2 million settlement offer to Morel on the eve of trial, substantially more than the $1.2 million Morel could have received. The defendants made a "good-faith attempt at settlement," and that also disinclined the judge to award attorneys' fees. Morel's lawyer had billed him for $1.1 million, but , and noting "opaque and imprecise" billing methods, the Judge ordered that Barbara Hoffman could only receive a $164,580 payment according to Arstechnica.

Friday, 27 March 2015


U.S. District Judge George King of the Central District of California is set to decide whether Los Angeles-based music publisher  Warner/Chappell Music has unlawfully been collecting licensing fees for the copyright to “Happy Birthday to You.” The case was brought in 2013 by two New York music producers, a California musician and a film producer who had each paid between $455 and $3,000 in licensing fees to Warner/Chappell Music, the music-publishing arm of Warner Music Group Corp., to perform the song. A Warner/Chappell representative said it sometimes charges major motion pictures between five and six figures to license the most recognizable song in the English language.  The publisher claims that the copyright derives from a 1924 songbook (lyrics) and 1935 piano arrangement (the melody). At that time in America lyrical and musical works enjoyed 95 years of copyright protection from publication (and registration), meaning the music will stay in copyright until 2030.  Under European provisions, the copyright expires 70 years after the death of the longer-living sister, which is the end of next year.

The class action, filed on behalf of anyone who was forced to pay similar fees starting on June 18, 2009, sought a declaratory relief and the return of “millions of dollars of unlawful licensing fees.” The claimant, led by Good Morning To You Productions, argue that it has "irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to 'Happy Birthday,' if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to 'Happy Birthday,' those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935." Robert Brauneis, co-director of the Intellectual Property Law Program at The George Washington University Law School, cast doubt in a 2009 law review article that “Happy Birthday to You” was copyrightable.
In the current case, both sides agree that sisters Mildred and Patty Hill composed and wrote the melody to the song “Happy Birthday to You”. The original melody for "Happy Birthday to You" was composed in by school teacher Mildred Hill in St. Louisville, Kentucky. The song was part of the composition for a song then called called "Good Morning to All," with lyrics by her sister Patty Hill and written in 1889 or 1890. The sisters later sold the copyright to the Clayton F. Summy Company in return for a sheet music royalty, who published a songbook called “Song Stories for the Kindergarten.”  Warner bases its claim of ownership on two copyright registrations in 1935 by that company which it claims included the now familiar “text,” or lyrics, to “Happy Birthday to You.” Warner/Chappell acquired Summy’s successor, Birch Tree Ltd., in 1988.

The Plaintiffs allege those copyrights were for piano arrangements and that “Happy Birthday to You” by then had reached widespread popularity, putting it in the public domain and say 
“Our argument has been all along that the copyright in 1935 only covered that particular piano arrangement,” and “There’s no evidence they [Warner/Chappell] ever acquired rights to the song "Happy Birthday to You" from anyone before 1935 when they registered the copyright.”
If Judge King declines to rule in favour of either the plaintiffs or the music publisher, the case could still go to trial.
And another but different Happy Birthday case in Turkey, where the Court of Appeal has had to decide if using the song "Happy Birthday" in a film - with Turkish lyrics - could be deemed the use of a musical work that involved novelty. Now the CopyKat professes to have scant knowledge of Turkish law - and any input and comment from the 1709 readers would be most appreciated (although we have added a handy link to some FAQs at the end of this blog). Anyway it seems the plaintiff in the case had brought an action before the trial court asserting that he had written a song called "Happy Birthday" ("Mutlu Yıllar" in Turkish), and that all financial rights in this musical work had been transferred to a second plaintiff by agreement in 2005. Both plaintiffs asserted that the defendants – the director and producer of the film Alone (Issız Adam) – had used the song unlawfully in a new film without permission, without indicating the lyricist of the musical work, and had paid no royalties. The plaintiffs demanded "material and moral damages".

The defendants claimed that the plaintiff was not the lyricist of the song, and that registration at the Musical Work Owners' Society did not give the plaintiff ownership rights and further, the defendants argued that the song which they had used in the movie Alone could not be characterised as a musical work.

As the plaintiff could not prove that he had obtained the permission of the lyricist of the original song and the person who had translated the lyrics from English into Turkish (and as the date of translation was not clear), the Court of First Instance dismissed the case. The plaintiff appealed. The Court of Appeal stated that "this song has been anonymously used by society for at least 60 years and the Turkish version of the song is not the original musical work." The Court of Appeal reviewed the case and decided that the song's original lyrics and melody belonged to a foreign party, and that using the song "Happy Birthday" with Turkish lyrics involved no novelty and therefore could not be considered a musical work within the scope of Article 1/B of the Code of Intellectual Property Rights. As a result, the Court of Appeal rejected the appeal. More on Turkish copyright laws here.

USA The National Law Journal and more on CBS News here 

Turkey http://www.internationallawoffice.com/newsletters/detail.aspx?g=139de4a9-68fd-48ec-bd04-b6956dd80dfc / Decision of the 11th Civil Chamber of the Court of Appeals, 2013/8293 E, 2014/13652 K.

Thursday, 26 March 2015

A Perfect Fail - and a $5.6 million bill

Perfect 10, the adult magazine and now online company, which had previously litigated against the likes of Google &  Amazon, CCBill, Megaupload and Visa amongst many others, and which is often tarred with the 'copyright troll'' moniker, has suffered a bit of a set back in its litigation quest after a U.S. judge ordered the company to pay $5.6 million in legal fees and costs (Perfect 10 v. Giganews). Judge Andre Birotte Jr's judgment is a educational read on just why the Company faced such substantial fees and costs, and perhaps the background is a good place to start for this explantion: The judge noted that the action has involved more than 30 noticed motions, including a motion for change of venue, two motions to dismiss, three Daubert expert witness motions eight motions for summary judgment, and multiple discovery and sanctions motions. The docket in this action includes nearly 700 entries and exceeded 38,000 pages.

The Judge confirmed the award of fees and costs, not least as the almost complete success enjoyed by the defendant "weighs heavily in support of an award of attorneys’ fees under the Copyright Act. On each of Perfect 10’s three theories of copyright infringement, Defendants won unqualified victories: Livewire defeated Perfect 10’s claims of secondary infringement at the pleading stage without leave to amend, and Defendants won on each of Perfect 10’s remaining claims on summary judgment. This sort of complete victory on the merits is significant" . Including a very interesting review of the nature of 'frivolous' claims,  the judge puts out what might be seen as an interesting warning to other 'trolls': "All of the evidence before the Court demonstrates that Perfect 10 is in the business of litigation, not protecting its copyrights or “stimulat[ing] artistic creativity for the general public good.” Fogerty I, 510 U.S. at 527." 

Noting that Perfect 10 seemed to be run as a tax loss entity, the judge also noted "The evidence before the Court also demonstrates Perfect 10 continued that pattern in this litigation, which, as the Court previously noted, has been inconsistent with that of a plaintiff interested in actually protecting its copyrights from unauthorized use." He finally went on to consider the last 'Fogerty' factor, considerations of compensation and deterrence, of which which the judge said "weighs in favor of an award of attorneys’ fees under section 505. This aspect of the Fogerty analysis recognizes that “[d]eterring nonmeritorious lawsuits against defendants seen as having ‘deep pockets’ and compensating parties that must defend themselves against meritless claims are both audible ends”.

Judge Birotte ended this section of his judgment with this "In light of Perfect 10’s well-documented improper motive in bringing suit (see section III.A.1.c, above), the Court has little concern that an award of attorneys’ fees in this action will discourage “starving artists” from protecting their copyrights. If anything, it will discourage serial litigants from bringing unmeritorious suits and then unnecessarily driving up litigation costs in order to drive a settlement. Such a result is entirely consistent with the purpose of the Copyright Act, and this factor weighs in favor of an award of attorneys’ fees."

The judge also took time to comment on what he clearly regarded as another spurious argument from Perfect 10's - that it shouldn't have to pay legal fees because it is was in effect insolvent and heavily in debt. The court noted that Perfect 10 has been making this same exact claim for years in almost every case it had brought, and that president and CEO Norman Zada seemingly ran the business as a tax write off, making it somewhat unbelievable as a defence to meeting costs: As TechDirt notesPerfect 10 admits that it has likely “never been solvent” in more than 15 years of operation.... Indeed, Perfect 10 has repeatedly reported that it was on the verge of bankruptcy. See, e.g., Perfect 10, Inc. v. Google, ... (noting Perfect 10’s argument the same year this action was filed that Perfect 10 was “very close to bankruptcy”). That is, despite the fact that Perfect 10’s primary business is copyright litigation: "Perfect 10 effectively argues that it could never be subject to any attorneys’ fee award under the Copyright Act because it is perpetually in debt and on the verge of bankruptcy. The Court is not persuaded, particularly where, as here, the evidence suggests Perfect 10’s impecunity is intentional."

Perfect 10 is an online adult website - and formerly a monthly and then quarterly men's magazine - that features high resolution topless or nude photographs of 'all natural' women who have not had cosmetic surgery. 


Wednesday, 25 March 2015

Lost Lucille results in copyright claim

BB King at Glastonbury 2011 - with 'Lucille' (Denis O'Regan)
When Eric Dahl purchased a Gibson guitar at a Las Vegas pawnshop in 2009, little did he think it would lead to a copyright battle with Toyota Motor Sales USA Inc. Having paid nearly $2,200 for the B.B. King Lucille model, Dahl then discovered it was the original “Prototype 1” ES-355 model that  the guitar company had presented to the blues legend on his 80th birthday in 2005. King had performed with the guitar until the summer of 2009, when it was stolen from his home. The Las Vegas Review-Journal tells us that In November 2009, Dahl went to King’s office in Las Vegas to return the guitar. To show his appreciation, King autographed another Gibson Lucille and gave it to Dahl during the meeting. All great so far!

Dahl then wrote about his experiences in three chapters of his 2013 book “B.B. King’s Lucille and the Loves Before Her.”  and it's this story that is now at the centre of a copyright infringement case filed by Dahl, alleging that  car manufacturer Toyota created a television advertisement that “presented an adapted visual interpretation of the story" along with co-defendants advertising agency Saachi & Saachi and video production company Smuggler Inc. The defendants have countered that Dahl’s book “is not substantially similar” to their 30-second advert for the 2015 Toyota Camry, which features a young woman who purchases a storage locker and finds a guitar labelled “Lucille” inside. The woman tracks down the previous owner, B.B. King, who autographs it and gives it back to her: The defence argued "Copyright does not protect facts, ideas, systems, methods of operation, and/or any expression that is not original to the author” and “The concept of a musician who loses a musical instrument which is later found and returned is not unique to plaintiff nor can he claim copyright protection over all such stories”  and “Nor does the fact that the musician in both stories is Mr. King change that result.”

Denying a motion to dismiss by the defence, U.S. District Judge James Mahan in the federal court in Las Vegas, Nevada, has now allowed the case to go to trial, saying "Defendants misapply this rule of law to plaintiff's complaint. Although general themes and ideas are not copyrightable, parallels to more specific elements of a particular expression are protected," and concluded that Dahl’s complaint “adequately alleges similarities between the plot, characters, and sequence of events, among other factors, of the two works.”


Sunday, 22 March 2015

The CopyKat - prowling

In the wake of the jury’s verdict in the "Blurred Lines case", Marvin Gaye’s children have filed a new motion to list three record labels and rapper TI as responsible parties in the case – and thus also hold them accountable for the already decided copyright infringement by Robin Thicke and Pharrell Williams. Gaye’s three children Nona, Frankie, and Marvin III, have also written and published an open letter, clarifying their motivations behind taking the copyright case to court on their father’s behalf. In the original trial, the jury exonerated TI and the recorded music labels and distributors Universal Music, Interscope Records and Williams’s Star Trak Entertainment of infringement. A second motions seeks to halt the sale and reproduction of Blurred Lines until both parties reach an agreement on how the Gayes “may share in the copyright and all future proceeds of Blurred Lines, as is their right”. More here.

Rapper and producer RZA says there should be a limit on how much an artist can recover if their songs are sampled without consent. Speaking at SXSW, the Wu-Tang Clan co-founder said that while artists who inspire should be paid, there should be a limit to how much they can demand, especially if the money isn't actually going to the artist: “Art is something that’s made to inspire the future," he said during his stay in Austin, according to the Daily Beast. "If you utilize somebody’s artistic expression blatantly, to [the point] where it’s an identifiable thing, then there should be some sort of compensation to the person who inspires you.” Arguing the sampling itself is creative and an art form, the Shaolin producer, known for crafting unexpected beats from esoteric samples, called for a 50% cap for retroactive payments of sampled material saying "There should be a cut off. Fifty percent is the most” commenting "The Greeks could come sue everybody because one generation teaches the other” and “When you hear an A chord to the D to the E, there are over one million songs with that same progression. And each one of their songs is identified as their own. The point being that art will continue to inspire the next generation, and we will find duplication” before going on to reveal "“I’ve been in situations where I’ve sampled something and the original copyright holder took 90 percent .... That means they ignored all the programming, drumming, keyboard playing I played on top of it, they ignored every lyric, every hook, everything that we built to make it a song. And we wound up selling more copies than the sample[d] version—but yet they took 90 percent of the song.”

And Grammy winner John Legend is also concerned that the Blurred Lines verdict could set a worying precedent for artists creating music inspired by others. The Grammy winner told the Associated Press he understands why people say Pharrell Williams and Robin Thicke's 2013 hit sounds like Marvin Gaye's Got To Give It Up from 1977, adding: 'I said that when I first heard it, too.' But he said he doesn't agree with the jury that determined the performers actually copied elements of Marvin's work but said  "There's a lot of music out there, and there's a lot of things that feel like other things that are influenced by other things" adding "And you don't want to get into that thing where all of us are suing each other all the time because this and that song feels like another song.'"

More copyright, more "Quality Works"? Not quite but maybe, says a study of Italian opera before 1900. As Italy had a wide variety of copyright law provisions until  the late 1860s when Italy itself was finally unified, Stanford economists Petra Moser and Michela Giorcelli compared the varying degrees of copyright protection to the output of operas, compiling a database of more than 2,598 Italian operas written between 1770 and 1900 - and then looked at the longevity of each opera right up to how many recordings of any opera were available in 2014 on Amazon. Vox explains "Copyright laws seem to have created significantly more operas that also had staying power and were of higher quality" and details:  "States with copyrights ended up producing 2.68 additional operas per year, a 121 percent increase over states without copyrights. Historically popular operas (as measured by the 1978 publication, the Annales of Opera 1597-1940) grew by 47 percent, and durable operas [those available on Amazon in 2014] grew by 80 percent.”

Is copyright a human right? Well, the United Nations Special Rapporteur in the field of cultural rights, Farida Shaheed, has presented the first of two consecutive studies, “Copyright Policy and the Right to Science and Culture,” at the 28th Session of the Human Rights Council in Geneva. Shaheed addressed copyright law and policy issues, examining how they may run counter to human rights. The second part of her report will be submitted to the UN General Assembly later this year addressing the connection between the right to science and culture and patent policy. More by Pauline Lee on the excellent Washington College of Law website here.

And finally, The Verge tells us that after pressure from campaigners, SpaceX has published a first batch of more than 100 photos on Flickr under a Creative Commons license. The decision gives the public the ability to download and remix the images freely (as long as they're attributed properly) and has been welcomed as a success for both space fans and copyright advocates. Unlike images of space published by NASA, SpaceX's photos do have some rights reserved, meaning they can't be used for commercial purposes. SpaceX "designs, manufactures and launches advanced rockets and spacecraft. The company was founded in 2002 to revolutionize space technology, with the ultimate goal of enabling people to live on other planets."

Friday, 20 March 2015

Fox News Files Motion for Interlocutory Appeal in 9/11 Photo Fair Use Case

Readers of this blog may remember  that Judge Edgardo Ramos from the Southern District of New York (SDNY) denied on February 10, 2015 Fox News Network’s motion for summary judgment in a copyright infringement suit filed by the copyright holder of an iconic 9/11 photograph. Fox News had unsuccessfully moved for summary judgment, claiming fair use. 

Fox News (Defendant) has now filed on March 19 a motion to certify the February 10, 2015 opinion and order for immediate appeal, under 28 U.S.C. § 1292(b), which gives a district judge the power to certify  an order of interlocutory appeal , if he believes that “such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Under Second Circuit case law, cited by Defendant, a question of law is controlling if the certified order would terminate the action, or could significantly affect the conduct of the action, or if the issue has precedential value for a large number of cases.

Fox News is arguing that the February 10, 2015 order is presenting the controlling question of law of whether...

For fair use purposes, whether a secondary user may transform a visual work by placing that work in a new context and for a new purpose, without substantial physical alterations.”

Fox News calls this area of law “murky” and further notes that “guidance is sorely needed” as “the use of visual works on social media… is widespread.”

Transformative Qualities of Social Media

Fox is asking the Second Circuit to recognize a “context-sensitive test” for transformative use, and claims that social media is “transformative by design.” It  argues that “transformative qualities of social media are not taken into account when considering a fair use defense” and that the “use’s particular context” should be taken into account in fair use cases. Such finding would have “massive implications for the millions of Americans who use social media on a regular basis.” Fox News also claims that not considering the use of protected works on social media to be fair "would effectively proscribe a wide swath of ongoing online speech. The public has a strong interest in having these fundamental free-speech concerns addressed at the earliest possible juncture. ”

Defendant further  argues that it had used Plaintiff’s photo “in an inherently transformative context: on social media.” As social media is not one-way to communication, but rather, a way to share ideas, expression on social media “is thus inherently intertwined with comments and criticism,” two of the purposes expressively mentioned by Section 107 of the Copyright Act.  

While this argument alone appears overbroad, as agreeing with it would allow for almost any use of copyrighted work on social media, Fox narrows the argument further along in its memorandum when arguing that interlocutory review is warranted because the order “implicate[d] fundamental free-speech questions,” as its and others’ speech may be chilled “from using copyrighted content on social media to discuss issues of public concern.”

Difference of Opinion Over Appropriate Standard for Transformation of Visual Works

Defendant also argues that certification is warranted because the fair use jurisprudence of the Second Circuit is divided.  While cases such as Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., and Bill Graham Archives v. Dorling Kindersley Ltd. held that a use can be transformative even if the copyrighted work has not been altered, the Second  Circuit placed great weight on transformative use in Cariou v Prince.  Defendant also cited the Second Circuit Authors Guild, Inc. v. Hathitrust case, where the court asserted that “[a]dded value or utility is not the test: a transformative work is one that serves a new and different function from the original work and is not a substitute for it” (at 96).

Transformative Content or Transformative Purpose?

Fox News is arguing that Judge Ramos relied on Cariou, which conflicts with Bill Graham.  It cites a blog post written by Professor Rebecca Tushnet , where she noted that, in Cariou, “the court, despite speaking of purpose, seemed to require transformation of content, contrary to the aims of much appropriation art” and also wrote that “Fox’s purpose… [of use]  was an issue of fact, not indisputably different as the publisher’s was in Bill Graham Archives.” Indeed, in Bill Graham, the Second Circuit found that a publisher’s purpose in using copyrighted images of posters in its biography of the Grateful Dead was “plainly different from the original purpose for which they were created” (at 609) and was fair use.  

Is publication on social media, a new context for the work, enough to warrant finding of a different purpose? Probably not, but the issue of the respective weight of transformative content and transformative purpose for fair use analysis purpose warrants further discussion in court. Many copyright practitioners  and scholars are now rooting for Fox’s motion to be granted, hoping it will lead to another Second Circuit  fair use case, which may clarify Cariou.

Image is courtesy of Flickr user Heather Paul under a CC BY-ND 2.0 license.