Cablevision – is that it?

On Friday the Obama administration declared its stance on the following copyright question: if you press your TV’s remote to record a programme and it’s recorded at your cable company’s servers, could the cable company be infringing copyright?

In 2006 Cablevision, a US cable TV company, announced plans to launch a ‘remote-storage digital video recorder’ (RS-DVR) service. Customers, instead of downloading a TV programme through a set-top box and storing a copy there, would copy and store programmes on Cablevision’s hard drives at a central remote server. Cablevision was sued for copyright infringement by CNN and Cartoon Network, joined by Twentieth-Century Fox, Universal, Paramount, Disney, CBS, ABC and NBC.

In 2007, a district court held that Cablevision was infringing the content providers’ copyrights in three ways: (1) before the customer makes any choices, all programming is saved in ‘buffers’, albeit in sections not longer than 1.2 seconds that are constantly being overwritten; (2) when a customer records a programme, the copies are made by Cablevision; (3) in transmitting the copies to customers, Cablevision is infringing the content owners’ right to perform.

In August 2008 this decision was reversed by the court of appeals, Second Circuit (judgment here), saying: (1) the buffering would not create copies as defined by the Copyright Act as they were not fixed for long enough; (2) the RS-DVR functions like a VCR: the customer would be selecting what to copy, so was liable for making the permanent copies; (3) no ‘public’ performance occurs because each transmission is made to a single subscriber using a single unique copy produced by that subscriber.

In October 2008, the content providers appealed to the Supreme Court and in January 2009 the Supreme Court invited the Solicitor General, Elena Kegan, to express the views of the United States. On Friday (29 May) Kagan delivered her brief (here), which recommends that the Supreme Court should not review the Second Circuit's ruling. The Supreme Court doesn't always follow the Solicitor General's advice, but it is often persuaded by it.

Kagan said that the copyright issues were potentially significant but this case isn’t the place to address them because: (1) the Second Circuit decision was the first on such a case, so (a) the decision didn’t conflict with any other Supreme Court or appeals court decision and (b) the Supreme Court would be in a better position to assess the legal issues when similar cases had come before appeals courts; (2) Plaintiffs had not raised contributory infringement and defendants had not raised a fair-use defence. It would not be possible to clarify the proper application of copyright without considering them; (3) the RS-DVR is equivalent to a VCR or set-top DVR, rather than a video-on-demand service. The customer is using Cablevision’s service just like a self-service photocopying shop.

These reasons seem an unsatisfactory way to sign off this case. The analogy of the RS-DVR to a VCR or photocopying shop is debatable and deserves thorough re-examination. Think of a photocopying shop set up solely to copy works against copyright owners’ wishes. You don’t go in and put the book you want on a machine but contact the shop to request a copy. There are people there running the machines that make the offending article...


Other opinions: John Palfrey, Harvard Law School. Mike Masnick, Techdirt.

On-demand streaming royalties and ad-supported content

As has been widely reported, PRS for Music (the collective formerly known as the PRS/MCPS Alliance) has announced (via this press release) its new royalty rates for that rapidly-growing sector of the online music market; the on-demand streaming services.

The widely criticised minimum per-track royalty (previously 0.22p per track) is plummeting to 0.085p per track - or 85p per 1,000 tracks served, or what the advertising industry refers to as CPM (cost per thousand).

That still looks like a tough order when it comes to advertiser-supported content. For these sites, just to cover this new reduced royalty, an ad-supported site that plays an ad before every track has to sell that advertising at a CPM of 85p - if it only wants an advert one track in 10, then it needs to sell at a CPM of £8.50 - which is two to three times what a typical TV advertising campaign costs in the UK. And that is just to cover the PRS costs, let alone pay record labels, technology suppliers and make any money for itself.

The other moving part is the royalty rate - up from 8% to 10.5% of revenue - this is a neat move by PRS for Music - because the minima are still relatively high, it is likely that most business plans will focus on those numbers and not on the percentage rate, while PRS will have a headline royalty rate that, perhaps for the first time in a consumer market, will top 10% and which PRS will doubtless use as a reference point in other negotiations and Copyright Tribunal proceedings.

Finally a word on the process - the author (declaration of interest - he has represented interests adverse to PRS for Music on many occasions) notes that PRS asserts that an "extensive seven month consultation period" preceded the announcement, but that the concept that what customers think might be as important, or more important, than what a society's members think, still seems a challenge. It would be wonderful if some economists could invent some kind of bargaining process which would force collecting societies to negotiate as if in a real market situation.

Written by John Enser.

EU questions GBS

EU countries want the European Commission to investigate the economic implications of Google’s book search project amid fears that it will harm the European publishing industry, it emerged yesterday (26 May), EurActiv reports here.

Facebook v Power.com: the party-pooper, the gatecrashers and us

Power.com aims to bring your social-networking sites together on to one screen - but not everyone wants to join in (spot the difference, right). At the end of last year when negotiations with Facebook broke down, Power continued to offer access to FB. FB sued for a string of reasons including copyright infringement. Power has attempted to have FB’s claim dismissed but the court held on 11 May: ‘Defendants correctly assert that Facebook does not have a copyright on user content, which ultimately is the information that Defendants’ software seeks to extract. However, if Defendants first have to make a copy of a user’s entire Facebook profile page in order to collect that user content, such action may violate Facebook’s proprietary rights.’

While these two slug it out over an F-word and some discreet web design, let’s not skirt round the copyright elephant that towers in the corner of the courtroom. Though the elephant isn’t a party to this lawsuit it’s very, very big: Facebook’s 200 million users, who upload more than 850 million photos and 8 million videos every month.

Depending on the outcome of this case, FB users may not be allowed to access their own content through Power because they are incidentally infringing FB’s copyright by copying peripheral design features etc. FB users might feel this is monopolistic and tight-fisted when they give FB ‘a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content’.

On the other hand, is the user-friendly Power really acting in the interests of FB users? If Power accesses FB, it’s potentially not just FB’s IP that’s copied without permission, but other users’ content too. Your friends have chosen to give Facebook a licence - not Power and not even you.

Copyright Future: Copyright Freedom

Today and tomorrow Australians are debating the future of copyright. The Copyright Future: Copyright Freedom conference was opened by Attorney-General Robert McClelland, who enjoined: ‘Copyright interests are often diametrically opposed. But that is no excuse for not seeking compromise and fair outcomes. In this respect, I see copyright as essentially about players acting in good faith.’ Speakers include Adrian Sterling and Lawrence Lessig and you can follow it all (live if you’re an early bird tomorrow) on twitter and blogs - here.

Programme here.

Roundtable edges towards a new order for copyright licensing in Europe?

Today's press release from the European Commission ("Commissioner Kroes welcomes progress on pan-European music licensing following Online Commerce Roundtable") reflects a further step in the path towards a new order for copyright licensing. The release reads, in relevant part:

"European Commissioner for Competition Neelie Kroes has welcomed progress made towards pan-European music licensing following discussions in the Online Commerce Roundtable. In particular, she welcomes confirmation by French collecting society SACEM that it is willing, in principle, to entrust other collecting societies with pan-European licensing of its repertoire and to act as non-exclusive rights manager for publishers and other collecting societies [This may not be as big a concession as it seems. The words "in principle" immediately recall the gap between principle and practice]. She also welcomes confirmation by multinational record company EMI that it is ready to entrust rights managers to offer its repertoire for the whole European Economic Area (EEA) [Why shouldn't it be willing? With revenue from repertoire heading for free-fall, anything a rights owner can get is probably welcome] and notes Apple's statements that if iTunes was readily able to license rights on a multi-territorial basis from publishers and collecting societies, it would consider making its content available to all European consumers, including those in EU countries where iTunes is currently not available [But iTunes is just one string to Apple's bow, cf. Apple's premium range of iPod and iPhone hardware. The more iTunes is available, the easier it is to market its goods].

Commissioner Neelie Kroes set up the Roundtable in September 2008 in order to examine ways to reduce barriers to online commerce so that consumers can take better advantage of the opportunities offered by the Internet [other than by helping themselves to repertoire for nothing, which seems to be the favoured option of most consumers these days] ... The report on the Roundtable, just published on the Europa website, outlines the conclusions of the meeting that Commissioner Kroes hosted on 17 September 2008, as well as of a 16 December 2008 follow-up meeting which focused on the distribution of online music.

Commissioner Neelie Kroes welcomed the conclusions of the Report, stating that: "There is a clear willingness expressed by major players in the online distribution of music in Europe to tackle the many barriers which prevent consumers from fully benefiting from the opportunities that the Internet provides. I therefore encourage the major players, in particular publishers and collecting societies, to move quickly to adapt their licensing solutions to the online environment [i.e. it's best for them to jump before they're pushed]. I will review progress at the next meeting of the Roundtable that I will organise shortly with other major players in the online music market".

At the September Roundtable, all participants recognised the potential for EEA-wide music licensing in the online environment, and that this was hindered by rights generally being territorial and usually licensed for certain territories only [i.e. it's the fault of copyright]. Commissioner Kroes welcomes the readiness expressed by the participants to adopt licensing solutions which are fit for the online environment. ...

As regards the online distribution of goods, a variety of views were outlined in the Roundtable. The Commission will use the inputs of parties which participated in the public consultation as an input for its ongoing review of the legal regime of vertical restraints (Block Exemption Regulation 2790/1999 and Guidelines on Vertical Restraints). Draft legislation on vertical restraints will be published during summer 2009 and subject to a public consultation for stakeholders to submit their views.

Commissioner Kroes will continue working with her colleagues in the Commission on the issues of online piracy and counterfeiting and will, where appropriate, support action on the regulatory side to tackle these damaging phenomena [Where would it be appropriate not to support action to tackle P&C?]. In parallel, she will continue to examine ways to eliminate unjustified barriers to online commerce.
...

The Commission invites all interested parties to submit their comments by 30 June 2009 on the issues raised in Sections III.1 and IV.A) of the Report concerning the online distribution of music to Comp-Greffe-Antitrust@ec.europa.eu

The comments should, in particular, focus on licensing solutions which would foster legal offerings of online music in Europe...".

Readers have little over a month in which to comment.

The visually impaired: a soft target for a WIPO Treaty?

From Howard Knopf's Excess Copyright weblog comes this timely summary of the state of play -- such as it is -- in the quest for an international treaty that would provide for exceptions to copyright in respect of the visually impaired. Howard writes:

"WIPO needs a new and positive milestone and the world needs a newly renewed WIPO. The pieces and the players are in place, particularly Francis Gurry, the new DG at WIPO who has fully earned the significant respect and confidence he enjoys. If ever there was an issue around which well-intentioned countries could rally, a treaty for the rights of the blind could be that issue".

I well recall the suggestion of copyright exceptions in favour of the visually impaired being met with hostility in some quarters back in the 1980s, the line being this: if the visually impaired are expected to pay for their housing, their clothing, their food and their drink, why should they be allowed to help themselves to authors' works for nothing? This objection misses the mark. An exception in favour of the visually impaired means that they obtain access to works that might not otherwise be open to them -- but the existence of an exception does not automatically imply that the copyright owner(s) will lose out. The construction of a simple licensing scheme in such circumstances should not be beyond the wit of mankind. 

Recent publications

The May 2009 issue of Copyright World, published ten times a year by Informa Law, leads with "Parody defence proves successful for Fox Film", an analysis by Cydney A. Tune and Jenna F. Leavitt (Pillsbury Winthrop Pittman LLP) of the decision of the SDNY Federal Court that the song "I need a Jew", which featured in the US Family Guy TV show, was a parody of "When you wish upon a star". Other articles include "Digital rights management: past, present and future" by Davenport Lyons' Nigel Davies and Paul Chamberlain, and an update on implementation of the Audiovisual Media Services Directive within the European Union by Steve Holmes, Ben Allgrove and Simon Sellars (Baker & McKenzie).  Copyright World's home page is here.


Just published this week is issue three of the six-times-a-year European Copyright and Design Reports, from Sweet & Maxwell. This issue gives a full English language translation of SONOFON A/S v IFPI Danmark, a Danish High Court ruling that an internet service provider must block access to specific websites that hold copyright-infringing material, since to do otherwise would be to make copyright material available without authorisation. This issue also reports Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group, a decision on unregistered design right in flat-bed airliner seats from England and Wales.

The Statute of Anne: a note on the 'original copy'

A lot of people who attend the International Trademark Association (INTA) Meeting each year turn out to be as much involved in copyright and other IP rights as they are in trade marks. One such person whom I met at this year's Seattle conference, US practitioner and creative live-wire Cathy Gellis, has just sent me this link to her thoughts on seeing the original Statute of Anne on display at a copyright history conference in London last year. Cathy concludes with a comment on the effect of copyright legislation on public discourse:

"So we find ourselves at the turn of the 21st century at the same crossroads we were at 300 years earlier, faced with a choice in how we use government power. Do we use it to enable public discourse, or to control it? For although our modern copyright systems trace their lineage back to the author-focused structure of the Statute of Anne, that basic structure alone does not determine which value is fostered. It's the underlying policy value that needs to survive, yet unfortunately today, while the document itself carefully encased under glass has, the historic change it was to herald has not".

Second Pirate Bay judge removed

Via Alex Chapman (Sheridans) comes this link to games news site MCV, which reports that a second judge has been thrown off the case, once it emerged she had links to pro-copyright lobbyists. This development has a flavour of the deja-vu. After the conclusion of the first trial it emerged that the judge Tomas Norström was a member of both the Swedish Association for the Protection of Industrial Property and the Swedish Copyright Association. This led to accusations of bias (see news item and links here), following which fellow Norström 's fellow judge Ulrika Ihrfelt was appointed to examine the claims. 

It now seems that Ihrfelt is also a member of both groups – a discovery that has led to her removal from the process.

Turnitin – could copyright law protect plagiarism?

Turnitin is a plagiarism-detection service licensed to more than 6,500 schools and colleges in 106 countries. It checks students' work against more than 75 million student papers that have been previously submitted to Turnitin, and compares them to over 11 billion pages of web content including more than 10,000 subscription-based journals and periodicals.

Schools and universities can require students to submit their work for analysis or get a zero grade. If the institution chooses, the students' work will be added to Turnitin's archive. Some American students sued Turnitin for copyright infringement on the grounds that the copies of their work were added to the archive without their permission. Ten out of ten for enterprise and litigiousness! However...

The US Court of Appeals (Fourth Circuit) last month held that Turnitin’s copies are fair use (judgment here). Although the works were creative, unpublished and copied in their entirety for a commercial purpose, Turnitin’s use is transformative - preventing plagiarism is an entirely different purpose from that of the students (you can say that again) - and would not impinge on the potential market for the work.

How does copying an entire work for commercial purposes before publication measure up against the UK’s fair dealing provisions…? Turnitin’s website says: ‘Multiple law firms have concluded that Turnitin operates in full accor­dance with the intellectual property and privacy laws of the United States, Canada, the United Kingdom, Australia and New Zealand.’

YouTube forced to pay the piper

YouTube’s rather public spat with the music collection societies has reached the courts in the USA where a district court has ordered the internet portal to pay $1.61 million in back royalties to ASCAP and to then make payments of $70,000 each month (presumably until settlement is reached) as ‘on account’ remuneration for the societies’ songwriters whose work appears on the video website in the US. In Europe the position is more troubled - whilst YouTube does have an agreement to use premium videos in place with three of the four major record companies and many independent labels, the Google-owned video service has failed to get a deal done with the songwriter collecting societies - and after the much reported falling out with PRS For Music here in the UK and GEMA in Germany all premium videos were pulled (voluntarily by YouTube) from the site. The US judgment is a temporary settlement in place of a still being negotiated blanket license agreement for the use of ASCAP's members' music on the video site. The $1.61 million ordered for back royalties is a lot more than what YouTube had proposed they pay, though is about 13% of what the collecting society suggested they were due. In fact the two parties are poles apart - ASCAP had asked for $12 million for all music streamed between 2005 and the end of 2008 (and another $7 million for 2009). YouTube, in response, had suggested $79,500 for 2005 through the end of 2008 and then $20,000 per quarter ongoing. The court rejected both proposals and came to its own conclusion.

http://www.techdirt.com/articles/20090519/1127454934.shtml

Format shifting and the speed limit

As we all know, under the present laws in England, format shifting is illegal. Even where a person owns a work and wants to make a copy for private or personal use, they can't do it without breaking the law (unless they're licensed to, of course). Nevertheless people format shift regardless of whether they're licensed or not. Other than the speed limit, can you think of another law which is broken so frequently?

There's a vein of thought that the archaic state of copyright law actually encourages copyright infringements - if people think that the law is outdated and inapplicable to the modern age they are more likely to disregard the entire body of copyright law.

What do you think?

Isn't it a bit simplistic to say that once we have a robust and modern format shifting exemption in place, punters will start to respect copyright? Shifting formats one day does not necessarily lead to unlawfully downloading an entire series of Lost or 24 the next. Even a sensible format shifting exemption will be infringed because surely the reality is that, like the speed limit, copyright infringement is impossible to police effectively and comprehensively. Like breaking the speed limit, it is easy to do undetected.

Also, if you have a car that's fast enough to break the speed limit, chances are that you have done so, whether inadvertently or otherwise. Car manufacturers make it easy for you to break the speed limit by selling you a car that can give you a smooth ride at over 100mph, whilst computer programmes invite you to "import songs" from a CD and devices enable you to burn a CD or DVD. You aren't supposed to use these products to break the law of course.

Does anyone else think that the introduction of a format shifting exemption is really too late to do any good?

Will it reflect common practice or, more likely, will it impose more restrictions on the common practice than are currently observed by those who do it? In any event it will surely be a toothless provision unless it is properly enforced. Despite numerous traffic police and countless speed cameras the speed limit is broken thousands of times every day. That does not bode well for infringements of the new format shifting regime.

The Mouse that roared

Both the Register and the Electronic Frontier Foundation bring news that Danger Mouse, the US remixer who courted controversy (well copyright controversy) when he produced the innovative, un-cleared mash-up album titled The Grey Album which fused material from rapper Jay Z's The Black Album and The Beatles' The White Album, now seems to be suggesting that fans illegally download his next album which has yet to be released because of the artist’s ongoing row with EMI. The thing is, Danger Mouse HAS released the album – but it’s a blank recordable CD on to which buyers can – potentially - record illegally-downloaded versions of the album. The CDR is on sale in a package which includes a luxurious poster and a book of photographs by cult film director David Lynch and sells for $50. Danger Mouse has issued this statement saying:

“Danger Mouse's new project Dark Night Of The Soul consists of an album length piece of music by Danger Mouse, Sparklehorse and a host of guest vocalists, along with a collection of original David Lynch photography inspired by and based on the music. The photographs, which provide a visual narrative for the music, are compiled in a limited edition, hand numbered 100+ page book which will now come with a blank, recordable CD-R. All copies will be clearly labeled: "For Legal Reasons, enclosed CD-R contains no music. Use it as you will."

According to Rolling Stone magazine a spokesperson for Danger Mouse recognised that the album was available through non-official channels saying "Danger Mouse remains hugely proud of Dark Night Of The Soul and hopes that people lucky enough to hear the music, by whatever means, are as excited by it as he is”. Danger Mouse, one half of the hugely successful Gnarls Barkley, has offered no explanation of what the row with EMI is about although as the Beatles’ record label, EMI had objected to The Grey Album and it seems that the main featured guest artist Sparklehorse (aka Mark Linkous) may be signed to EMI.

http://www.eff.org/deeplinks/2009/05/danger-mouse-inducem

Fair use is your friend ...

From Stacey Jackson-Roberts (American University Washington College of Law) comes news that the American University Washington College of Law’s Program on Information Justice and Intellectual Property and AU's Center for Social Media, in collaboration with Stanford Law School's Fair Use Project, are launching a new video explaining how online video creators can make remixes, mashups, and other common online video genres with the knowledge that they are staying within United States copyright law. The video, Remix Culture: Fair Use Is Your Friend, explains the Code of Best Practices in Fair Use for Online Video, a first-of-its-kind document coordinated by AU professors Pat Aufderheide and Peter Jaszi, which outlines what constitutes fair use in online video. The code itself was released July 2008. Pat Aufderheide is quoted as saying: 

“This video lets people know about the code, an essential creative tool, in the natural language of online video. The code protects this emerging zone from censorship and self-censorship. Creators, online video providers, and copyright holders will be able to know when copying is stealing and when it’s legal”. 

Like the code, the video identifies six kinds of unlicensed uses of copyright material that may be considered fair, under certain limitations:

• Commenting or critiquing of copyright material
• Use for illustration or example
• Incidental or accidental capture of copyright material
• Memorializing or rescuing of an experience or event
• Use to launch a discussion
• Recombining to make a new work, such as a mashup or a  remix, whose elements depend on relationships between existing works

For instance, a blogger’s critique of mainstream news is commentary. Adds Jaszi:

 “The fair use doctrine is every bit as relevant in the digital domain as it has been for almost two centuries in the print environment. Here we see again the strong connection between the fair use principle in copyright and the guarantee of freedom of speech in the Constitution”. 

Remix Culture: Fair Use Is Your Friend is a collaborative project of the Program on Information Justice and Intellectual Property—a program of AU's Washington College of Law and the Center for Social Media—a center of AU's School of Communication—along with Stanford Law School's Fair Use Project.  

The 1709 Blog notes that this project has been funded by Google. What inferences, this blogger wonders, may be drawn from this item of information in the light of recent developments involving Google Book?

Comment from Creative Commons here

Scribd Store – a penny for your thoughts?

Scribd has launched Scribd Store today, where anyone (in the US) can sell written material. Scribd is a document-sharing website founded in 2007 with more than 50 million users and more than 50,000 documents uploaded daily – to be downloaded free. There have (surprise, surprise) been concerns about books being shared without copyright owners’ permission despite the site’s efforts to remove infringing material. Now, in the Store, you can upload and set a price on the download. Does that make a cross between YouTube and eBay? A few independent publishers have signed up so far. Mashable sees some reasons for publishers to get involved:

The pricing is very flexible; as a publisher, you can set a price on individual chapters, exact selection of pages, or you can seralize your book for one dollar per chapter…. There’s another very interesting aspect of Scribd’s store: the works added to the store are also automatically added to Scribd’s existing Copyright Management System (CMS). This means that if you add a document to the Store, you can be sure that Scribd will take care to remove and pirated copies of it from the free sharing part of the site. It’s a neat little carrot and stick combination that might prove to be crucial in driving publishers and authors to participate in the Store.

Book piracy: NYT

Scribd: Publishers Weekly

Scribd Store: FT

Dutch P2P - must what goes up come down?

Dutch website FTD has taken anti-piracy trade association BREIN to court to establish where the law stands on P2P downloading. On FTD, the largest Usenet community in the Netherlands, users can post messages in newsgroups about where to find items, including music and films. FTD argue that although uploading copyright material without permission is illegal in the Netherlands, downloading it is not. They want BREIN to post a statement on their website retracting their assertion that FTD’s activities are criminal.

BREIN are saying the action is a delay tactic mounted in anticipation of BREIN’s proceedings against FTD. BREIN contend that although FTD have removed direct links to illegal content, they are operating in a similar way to Techno Design, which BREIN successfully sued in 2006 on the grounds that the site was predominantly used for, and systematically facilitated, downloading of illegally uploaded content. FTD deny that their site operates in the same way.

Here's some further commentary (which cannot necessarily be considered impartial): TorrentFreak, OSNews.

Book thrown at Argentinean professor as El Derrida goes online

From Catherine Saez of Intellectual Property Watch comes this piece about an Argentinean philosophy professor, Horacio Potel (right), who faces an action for copyright infringement after posting translated versions of French philosopher Jacques Derrida’s works on a website in an attempt to make foreign philosophers' works accessible to Spanish-language readers. Professor Potel says he first created an open source website, “Nietzsche in Spanish”, in December 1999, adding “Heidegger in Spanish” in June 2000 and “Derrida in Spanish” in June 2001.

Apparently in December 2008 French publishing company “les Editions de Minuit” lodged a complaint which was passed on to the French Embassy in Argentina and it became the basis of the Argentina Book Chamber’s legal action -- a criminal prosecution -- against Potel.

Apart from the obvious question -- why should anyone want to read Derrida in any language, never mind Spanish? -- there are some serious issues here. Works of this nature, if available at all in Spanish, are published in Europe, produced and sold in euros and imported at great expense to the local market. Countries such as Argentina are too rich to plead Third World status but insufficiently affluent to create a large enough local market for products of this nature that can be satisfied in the normal commercial way. Both the Berne Convention and the Universal Copyright Convention made failed attempts in the previous century to address the needs of developing countries, but that was in the days when web publication was not an option.

The unauthorised copying and uploading of a translation of another's work in this manner does not appear to be the sort of act comfortably contemplated by defences based on fair use for educational purposes, there are some infringements that are better tackled as commercial propositions than as legal issues. If the infringing acts are unlikely to result in lost sales, could they not be better treated as an opportunity to secure some income through a negotiated royalty, rather than as a chance to create ill-will and give the academic community yet another reason for assuming that Google Book will somehow provide a panacea for ills such as these?

The "skinny tail" of music downloading

A new report from Will Page, Chief Economist of PRS for Music and Eric Garland, CEO of digital research group Big Champagne hopes to lay to rest the theory of the long tail in copyright when it comes to music consumption - pointing out that whilst it was first thought that the long tail could be applied to the digital music world - where 20% of products would provide 80% of sales and 80% of products provide the remaining 20%, when it comes to music its actually a very very 'skinny tail', and that illegal download sites just reflect the popular mainstream.

Page and Garland, who outlined their findings at the very civilized Great Escape conference in seaside Brighton on the 14th May, gave some interesting examples of the effect of both legitimate music industry practices and download sites in the digital sphere, pointing out that the Beatles sound recordings, which are not legally available anywhere in the digital realm, consistently top download charts. Using the fact that Lady Gaga's latest hit Poker Face which topped the UK's charts was illegally downloaded 388,000 times during one week of the Pirate Bay Trial alone, they said that consumer demands are now so narrow that if the charts launched today they would be probably be looking at a 'Top 14' rather than a 'Top 40' hit parade. It seems that illegal downloading sites provide such wide choice - and little if any information on new or complementary artists - the breadth of music available means that people do not have time or do not want to search for the tracks that they might like and instead restrict their searches to what they see in the media, and what their friends are listening to. This, says Page and Garland, rather debunks the theory that in the great new digital age consumers would feast widely across the massive long tail of sound recording culture. The pair give some interesting recent examples of the effect of illegal downloading and posed the question of why sales of U2's recent album were so much lower in weeks three, four and five after release than their 2004 offering How To Dismantle An Atomic Bomb ? Saying that apparently it wasn't because "it was crap" as one wag in the audience suggested, Page and Garland pointed out that clearly illegal downloading was having a negative effect on legal sales but then so too were changing consumer habits - with some customers (legally) buying just one or two tracks - rather than the whole album.

I don't think the paper actually comes to any real conclusion as to what will happen, in fact I am not sure anyone in the music industry could predict what will happen next year let alone what business models will be workable in ten years, but the report concludes that "free streaming might be viewed as being in competition (or tension) with music downloading, or it can be considered the perfect complement. Regardless, the tandem rise of music hording and listening primacy signal an ugly potential economic consequence for the recorded music business: the further erosion of legitimate music sales" adding that "P2P networks are now, for better or for worse, part of the music market. But understanding these networks solely as places where opportunities are foregone until these networks are shut down may be clouding our ability not only to rationally assess what is really happening, but also to effectively construct a response. In essence, we may face a certain paradox of choice of our own as we consider our response to these networks. Such a reassessment of the marketplace and our response is an important direction for subsequent research".

My thanks to my fellow blogger Hugo Cox for pointing me in the right direction and for these handy links!

http://www.prsformusic.com/monline/research/Pages/default.aspx

Comment, e.g.:
http://news.bbc.co.uk/1/hi/technology/8049495.stm
http://www.techdirt.com/articles/20090514/1103114884.shtml
http://www.theregister.co.uk/2009/05/13/long_tail_p2p/

"No magic wand", but CISAC praises new French law

It's no surprise that the International Federation of Societies of Authors and Composers (CISAC) has welcomed the adoption of the Loi Hadopi by the French Parliament. In a press release the organisation says:

"CISAC welcomes the adoption of the Law on the “Protection of Creation on the Internet” by the French Parliament. The 2.5 million creators and 222 authors’ societies represented by CISAC hail the determination of the French Government and Parliament to guarantee the future of creation and the creative industries in today’s digital world. The law introduces a “graduated response” to tackle piracy of creative works on the Internet through education and is accompanied by an encouragement to expand legitimate offerings of creative content. The text also reaffirms that authors’ rights continue to apply on the Internet and that creators should be remunerated for the use of their works.

Eric Baptiste, Director General of CISAC, the international organisation representing authors’ societies worldwide, declared: “This law is not going to solve everything with the wave of a magic wand. But one of the great virtues of the text lies in the awareness of the value of creative works and the economic system underpinning creation. Today, thousands of people work in the wake of creators and artists. Creative freedom and cultural diversity will have no future if the mass plundering of their works continues, depriving creators of their means of subsistence, the creative industries of their financing and, ultimately, depriving the public itself of new works without which culture is lifeless.”

This law is the result of a will to cooperate shared by the authorities representing creators, the creative industries and Internet service providers...".

CISAC is right about it being "no magic wand" --if this law is to produce the desired changes it will first need to overcome the attitudes and habits of thought of a generation of computer-literature consumers of culture who have so far proved resistant to traditional copyright notions. I also wonder: CISAC's constituent organisations represent 2.5 million creators. What proportion of them while pleased to belong to societies that fight for their copyright interests, are themselves unlawful file-sharers? It's a bit like speed limits on the roads: we all agree that they are a good thing for other people ...

BSA piracy study highlights emerging economies

The Business Software Alliance yesterday released the annual BSA-IDC Global Software Piracy Study, found here. The key findings of this study are:

• Piracy down in many nations: The rate of personal computer (PC) software piracy dropped in 2008 in about half (57) of the 110 countries studied, remained the same in about a third (36), and rose in just 16.


• Piracy up on a global basis: However, the worldwide PC software piracy rate rose for the second year in a row, from 38 percent to 41 percent, largely because PC shipments grew fastest in high-piracy countries such as China and India.


• Dollar losses up: The retail value of unlicensed software — representing revenue “losses” to software companies — broke the $50 billion level for the first time in 2008. Worldwide losses grew by 11 percent to $53 billion. Excluding the effect of exchange rates, losses grew by 5 percent to $50.2 billion.

For those searching for where X marks the spot, emerging economies are the place to start.

The 'three strikes' movement gathers pace

As previously reported here on At Last ... the 1709 Copyright Blog, the French Assembly have finally approved the ‘Creation and Internet’ bill that will cut Internet connections to those who repeatedly download music and films illegally. The legislation, which has extensively lobbied for by the music and film industries, gives Internet users two warnings for acquiring illegal music or film downloads. After a third infraction, Internet connections would be cut. Whist France is the first European country to target Internet users in such a way, Sweden’s IPRED law forces ISPs to reveal the names of people attached to IP addresses suspected of sharing copyrighted music, movies, other files without permission and this in itself resulted in a 33% drop in internet traffic presumably as potential fileswappers thought twice and downloaders considered the risk. President Sarkozy supports the new French law but critics say the bill will intrude on Internet users' civil liberties and will be difficult to enforce. Final approval in the French Senate is expected tommorrow (13th May).

And now in the UK a collection of trade bodies representing content owners including the British Phonographic Industry (BPI), the UK Film Council, actors' union Equity and the Federation Against Copyright Theft have used London’s Creative Economy Conference to put pressure on the government to force ISPs to take a more proactive role in policing online piracy – and again pushed for the ultimate sanction of internet disconnection to be introduced under a ‘graduated response’ system. BPI boss Geoff Taylor told the event:

"An endless free lunch for consumers when it comes to digital content is unsustainable. Unless ministers strengthen proposals for ISPs to deal with illegal behaviour online a 'creative crunch' will follow - investment in new British talent will ultimately dry up. The internet cannot be a place where respect for the law is abandoned. Even though the music business is creatively fit and strong, free-loading reduces investment in new music and in turn threatens the jobs of thousands of young people working in A&R, recording, marketing and promotion".

Taylor called on the government to do three things in the final draft of its much previously reported 'Digital Britain' report:

"To recognise that the music sector has already transformed its business models online; to take seriously the argument that a "write and sue" policy will not be effective; and to use the time available in this parliament to introduce legislation requiring ISPs to act against persistent illegal downloaders".

In response the Internet Service Provider Association issued the following statement:

"ISPA continues to dispute calls from some elements of the creative industries for the disconnection of users or technological measures as a method of dealing with potential infringers of copyright online. ISPA members have consistently explained that significant technological advances would be required if these measures are to reach a standard where they would be admissible as evidence in court. ISPs and consumer groups consider disconnection of users to be a disproportionate response, a view that was recently supported by the European Parliament".

The ISPA are referring to the European Parliament’s recent rejection of attempts by EU governments (notably France) to crackdown on illegal downloaders. The measures were part of EU proposals to update Europe-wide telecommunications rules to allow something approaching ‘three strikes’ but the European Parliament voted 407 to 57 to throw out a compromise reached with EU governments that would have allowed member states to cut off Internet access to people who download illegal copies of movies or records. Lawmakers reinstated an earlier demand that "no restriction may be imposed on the fundamental rights and freedoms of ... users, without prior ruling by the judicial authorities." Viviane Reding, the EU's Telecoms Commissioner said the move was "an important restatement of the fundamental rights of EU citizens." These proposals will now work their way through the rest of the European legislative process, and could still hit other hurdles but if passed will surely invalidate France’s proposed three strikes plan which does not rely on courts to arbitrate.

See also links to Techdirt, Billboard, USA Today and IPtegrity

How small an area can a copyright assignment cover?

I've been asked a question and I don't offhand know the answer so I thought I'd share it with readers of this weblog:

"Is there any legal basis for the proposition, expressed by some commentators, that copyright may not be assigned in respect of a geographical area or territory that is smaller than a single country?"

If you can give me any leads, whether in terms of case law or statute, in any jurisdiction, I'll be delighted to receive them. Please post your thoughts below (this is preferred, since it shares the information with other blog readers) or email them to me here.

Loi Hadopi back in business

It now appears that the French have passed the Hadopi (the law against illegal file sharing: see earlier posts here, here, here and here) which failed to pass first time as not enough representatives were present). A short review can be found, in French, in Le Soir here. The law still needs to pass the senate tomorrow.

Thanks, Estelle Derclaye, for the tip-off!

Copyright preassignment contract can drive you to drink ...

Here's some news from Lithuania about an unintended consequence of a contract for the pre-assignment of a copyright.

The plaintiff was a well-known Lithuanian politician who was involved in the impeachment of the  former President. Throughout her political career she had been particularly famous in the media as being associated with a special cocktail of brandy and coffee; the public had come to associate this cocktail with her name of the plaintiff. The defendant subsequently registered a trade mark for brandy which was identical to her forename.

The plaintiff sued for invalidation of the trade mark registration since it amounted to the use of her name without her consent, the application being made in bad faith. The district court dismissed the claim and the plaintiff appealed unsuccessfully to the Court of Appeal which held that, though the trial court erred in law, it got the right result.  It noted that the parties had entered into a copyright agreement, under which the plaintiff undertook to create the label for brandy produced by the defendant and to transfer to the defendant the copyright in that label, as well as any trade marks created in the process of performing the agreement. 

According to the court, this agreement should be interpreted as consent from the plaintiff to use her name in the trade mark.Even though the copyright agreement was signed after the defendant had filed the trade mark application -- and consent was therefore given only after the trade mark had been registered -- this did not invalidate the trade mark registration. And since the plaintiff had consented, the trade mark neither infringed her rights nor was made in bad faith.

Source: "Copyright Agreement Constitutes Consent to Name Trademark", by Rūta Pumputienė (Lideika Petrauskas Valiunas ir partneriai LAWIN), International Law Office.

Too big to infringe?

My old friend Rob Kunstadt (R. Kunstadt PC) has just sent me this free link to his highly topical article on the proposed Google book settlement, published in this week's National Law Journal. Google is a veritable Colossus these days and it looks set to guard the gates to global literature. In his distinctively punchy prose, Rob's conclusion pulls no punches:

"The settlement would reward Google's massive unauthorized online reproduction of copyrighted works, by making Google a "shadow copyright office" with a revenue percentage—unlike the real Copyright Office, which collects a flat fee.

Google took from the authors first—and belatedly now seeks to legitimize its misconduct by this settlement. Instead, Google should be punished hard, to deter such schemes. Otherwise, Google will succeed where Napster failed. Respect for IP law—as well as the rule of law in general—will decline. ...

Google's conduct fits the definition of a public nuisance, and may be enjoined as such. It imposes a small harm on a large number of authors. The harm, copying only a portion of each work, is calculated so as not to make it worthwhile for an author to incur the expense of suing for injunctive relief. Google, despite its cute slogan "Don't be evil," is like a large paper mill releasing noxious gas over a wide area, sufficiently diluted that you smell it but faintly. Like those banks that are now "too big to fail," is Google really "too big to infringe"?"

However good or bad Google's conduct may seem, and however one views the legal and moral issues, the fact remains that once Google's ambitious project succeeds -- as surely it will -- there is no room for a competitor and is unlikely to be one. This raises fascinating policy issues for competition regulators as well as for the copyright-driven commercial and educational sectors. Should Google be (i) scrupulously regulated by one or more public bodies, (ii) nationalised (a popular Socialist option in Europe in the past and a current option for all shades of political philosophy regarding banks), (iii) broken up into a bunch of Baby Googles or (iv) left to its own devices? We shall soon find out.

Time to revise your Software Principles?

US law firm Cooley Godward Kronish's Cooley Alert! contains news that Tuesday week, 19 May, the American Law Institute is expected to approve the Principles of the Law of Software Contracts which will create new rules and set new standards for software contracts in a number of areas. 

Right: Principles must move with the times if they are to retain their commercial vitality

For the benefit of those who cannot comprehend the word "software" without instantly recalling the word "patent", software is protected by copyright too.

The Institute's Restatements and Principles are not binding but have some persuasive force

"because they are developed over several years with extensive input from law school professors, judges, and practitioners" [1709 comments: some cynics might prefer to substitute 'although' for 'because' ...].

The Cooley Alert! adds that future courts will likely rely on these Principles as setting the bar for best practices for software licensing transactions, commenting:

"This will present challenges for software companies who must continue to comply with existing law, but may also want to conform their contracts to the Software Principles".

In other words, here's a golden invitation to software licensors and their licensees to open that delicious can of worms, a concluded software licence that has been signed and popped into a desk-drawer from which it was intended never to be retrieved, in order to review the very principles on which it was concluded, just in case they might want to shift the bases on which it was agreed. 

You can buy the 400 page tentative draft of the Software Principles from the Institute here

"This house believes that existing copyright laws do more harm than good"

The Economist is running a live debate on this motion, ending Wednesday. At present 68% are for the motion and 32% against. The motion is proposed by William Fisher and opposed by Justin Hughes. To join the debate, or just read what others have to say, click here.

PRS launches new online licences for July

PRS for Music (the rebranded MCPS-PRS Alliance) is launching a new set of online music licences to replace the current Joint Online Licence by the end of June 2009. The licences are being released in two stages: the first concerns the rates charged for download and subscription services (summaries of the key terms are available on PRS for Music's website here). The second covers streaming services, for which the details will be released shortly, since consultation with digital licensees is still taking place.  The PRS promises that the full terms of all of relevant licences will be available by 1 July 2009.

So it's goodbye Joint Online Licence. Battered by the recession on one side and modern attitudes towards paid-for music on the other side, the industry is presumably hoping for an era of fewer joints and more online licences.

New EU guide to online rights

The EU yesterday launched eYouGuide, a new consumer guide to online rights. It explains differences between member states - and the UK's private copying rules are singled out: "In the majority of EU countries, you can copy your media file for your own private use, for non-commercial purposes. The number of copies you can make might be limited. The rules differ from country to country. In some EU countries, namely the UK and Ireland, you are not allowed to make a copy of a copyrighted file for private use." More information on ars technica here.

Also yesterday the EU voted to leave the decision to cut off internet access to courts (previously discussed here). IpTegrity provides details of this latest reversal for the Telecoms Package here.

Technological accommodation of conflicts between freedom of expression and DRM

News from CIPIL, the Centre for Intellectual Property and Information Law at Cambridge University: Dr Patricia Akester has been busy. According to CIPIL's website,

"Technological accommodation of conflicts between freedom of expression and DRM: the first empirical assessment

Patricia Akester (PhD) was awarded a Leverhulme Early Career Research Fellowship (in association with matched funding from Emmanuel College, University of Cambridge) to undertake a project looking at the impact of technological measures on the ability of users to take advantage of the statutory exceptions to copyright. When technological measures were under consideration in the mid 1990s two stark scenarios presented themselves: on the one hand, an ideal world where copyright owners could use DRM to make their works available under a host of different conditions in a way that responded to the diversity of consumer demand; on the other, a more bleak environment where all users of copyright material (and much non-copyright material) would be forced to obtain permission and pay to access material that previously would have been available to all. In the face of these two extreme visions, the European legislature developed a compromise position, embodied notoriously in Article 6(4) of the Information Society Directive. The legislature appeared to be hoping that rightholders would voluntarily make material within certain specified exceptions available to users. Patricia Akester examines how these issues are working out in practice. Based on a series of interviews with key organisations and individuals, involved in the use of copyright material and the development and deployment of DRM, she provides a sober assessment of the current state of affairs. Her report is now available here".

So if you're looking for some reading material you can really get your teeth into, you'll know where to find it.  It's 208 pages long.

Copyright stressbuster

For anyone who wishes they could turn back the clock 300 years or simply needs to let their copyright hair down for a minute or two, Wired here reports the perfect antidote: ‘To celebrate the free digital release of Lawrence Lessig’s Remix: Making Art and Commerce Thrive in the Hybrid Economy, the book’s U.K. publisher has launched a Facebook contest asking readers to slice, dice and recombine the famous copyfighter’s work.’

Music Use in Film and Television Production

Yesterday (5 May 2009) the European Audio-Visual Observatory published the paper An Introduction to Music Rights for Film and Television Production, which should be required reading for film and television producers. Well, for Legal and Business Affairs departments, anyway. Francisco Javier Cabrera Blaquez, the Observatory's Analyst of Legal Information outlines the mysteries of what should be cleared and from whom and provides summaries of some trade practices in selected jurisdictions.

As owners of film copyright, producers will welcome this clear explanation of how to deal in the rights of a key contributor. And producers in the UK (at least) have good reason to be grateful to and respectful of the music creators who contribute to their films. See or listen to film composer George Fenton's (below) new 8 part series, You Heard It at the Movies, which began yesterday on BBC Radio 2.


Grateful because since 1 July 1994 the calculation of duration of copyright protection in a UK film ceased to be 50 years from the end of the calender year in which it was made and became “70 years from the end of the calendar year in which the death occurs of the last to die of the following persons – the principal director, the author of the screenplay, the author of the dialogue or the composer of music specially created for and used in the film” [ UK Copyright Designs and Patents Act s.13 B (2) (a) to (d) ].

By virtue of this grisly statutory equation, the first owners of copyright in a film have acquired a greatly extended period of protection during which to accumulate economic benefit from exploitation of the copyright protected film. "First owners of copyright"? Isn't that the producer? Well, no, not any more. With effect from 1 December 1996, in the UK the author and first owner of copyright in films made after 1 July 1994 became the “producer and the principal director” [s. 9 (2) (ab)]. Great news for British directors! Or not.

Reading Francisco Javier Cabrera Blaquez's paper will demonstrate how composers continue to benfit economically from their work when it is exploited within the film. But no such economic benfit accrues to the director. By contract UK producers and production companies acquire from the director, broadly, all rights both in the film and the income from its exploitation - leaving the director to pay the gas bills only from their initial fee.

The Directors Guild of America, by dint of years of negotiation, has secured for directors contracted under DGA agreements ongoing participation in film revenues. No such luck for UK directors whose longevity so benefits their co-authors! Shame, UK, shame.

But before directors and producers start wrangling to improve the directors' position they may wish to reflect soberly upon the experience of the British music industry in the 1990s. Falling music revenues attributable to file-sharing and digi-piracy can, in part, be attributed to an industry that was so fraught with internecine battles over historical contracting practices that it forgot to keep an eye on the real Enemy at the Gates - the music user who did not want to, and did not, pay for music - the ISPs whose profits are swollen by traffic in unlicensed content and the generation of digital consumers who now no longer expect to pay for music.

"Those who cannot learn from history are doomed to repeat it" - George Santayana. The UK audio-visual industry will be better served as a whole in addressing the threat to income posed in the current digital climate if it is united. Such unity could be promoted by UK producers (and legislators) supporting and promoting a better shakedown in the rights and income stakes for directors - think how grateful they might be. And maybe, just maybe, on that gratitude a common position that may benefit all concerned can be founded.

Coldplay face another claim

Following on in the heels of Joe Satriani, Yusuf Islam (formerly Cat Stevens) is accusing Coldplay of plagiarism claiming that the lead track from the band's most recent album, 'Viva La Vida', borrowed from his epic 'Foreigner Suite' for the newer song. He said that his son had drawn his attention to the similarities between the two songs, and admitted that he might taking legal action in relation to his copyright claim, but said he would wait to see how the Satriani action went first and said to the Sun (yes indeed) “There's been this argument about Coldplay stealing this melody from Joe Satriani," adding "But, if you listen to it, it's mine! It's the Foreigner Suite. It is!”. A spokesman for Coldplay maintains that 'Viva La Vida' was written solely by the band.

http://www.guardian.co.uk/music/2009/may/05/coldplay-yusuf-islam

UK Government U Turn on Digital Rights Agency

CMU Daily (today 5th May 2009) amusingly covers Communications, Technology and Broadcasting Minister Lord Carter's announcement at the PRS AGM of his decision to "re-visit" the proposed UK Digital Rights Agency.

Pan-European Collecting Society for Digital Licensing

Thanks to a tip-off from Hugo Cox - who clearly spent the holiday weekend in the UK browsing the International Herald Tribune and the New York Times - readers might like to keep an eye on progress of a plan being proposed today in Strasbourg by European Telecommunications Commissioner Viviane Reding and Meglena Kuneva the Consumer Affairs Commissioner. The proposal is that consumers be enabled to shop online throughout the EU on the payment of a single licence fee for media products. In justification the proposal says:

"The offer of content online is growing more and more but the current regime is still locked into national territorial licensing, with the result that EU consumers are often prevented from legally watching content anytime, anywhere on any platform."

The New York Times observed that resistance would be expected from the EU collecting society network which administers rights territorially across the 27 states and (ergo) different copyright regimes. You don't say! Like democracy, collective administration might be the worst form of [administration] (pax Winston Churchill] "except all those other forms that have been tried from time to time" - like endless individual owners being sought out by consumers seeking licences, or piracy or file-sharing perhaps?

There is the problem of pricing. If there is a European-wide licensing price, how is such a price point to be determined (or indeed regulated) and accommodate competition concerns? There is the risk of penalising consumers in economies that are less developed by charging high prices that are out of step with their local economic conditions. Alternatively a lower, single EU-wide price penalises creators and owners in countries with a tradition of higher value licence fees who suddenly are faced with such a drop in the value of their copyright revenues that it damages future investment in their local creative and cultural economies. It is not in the interests of creators and owners if consumers can simply acquire media at rock bottom prices in less developed Member States - the bucket-shop effect (left). Nor is it, in the long term, in the interests of consumers, consumer choice or the long term future of creative investment right across the EU (and its international economic muscle) if values of content are driven down right across the board.



One hopes the Commission may look for guidance to Article 5 (2) Berne, namely that "the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed", as a guide to the territory in which the consumer is liable to payment for the licence to download and thus the price would reflect local differences in tariffs or value.

Barbara A. Ringer

The Los Angeles Times carries a rather lovely obituary of Barbara Ringer, a former Register of Copyrights in the US and the woman who did much of the behind-the-scenes work to modernise the archaic US Copyright Act of 1909. Credited as the initiator of "fair use" doctrine, she also pushed for authors to enjoy a life plus 50 years term in place of the complicated 28 + 28 year formula that preceded it.

I did not meet Barbara Ringer myself, but she was a formative influence on the thinking of my PhD superviser Harry Bloom in the early days of the ill-fated Unit for Legal Research in Computers and Communications at the University of Kent, Canterbury.  Indeed, in the days before copyright law students had quick and easy access to articles on the subject, a succession of copies of Ringer's papers and memorandums on a number of live issues found their way on to the reading lists of students at that establishment.