‘A Whiter Shade of Pale’ – copyright doesn’t fade over time

The House of Lords has today reversed the Court of Appeal’s decision over Procol Harum’s ‘A Whiter Shade of Pale’ (Fisher v. Brooker, here). ‘A Whiter Shade of Pale’ was recorded in 1967. Gary Brooker’s music was adorned by Matthew Fisher’s now world-famous organ solo (above), but Fisher proceeded to wait 38 years to claim his share of the copyright. The case involves a number of issues but the key question was whether Fisher should be entitled to future royalties on the song when he had left it so long to claim them.

The trial judge had granted three declarations: (1) Fisher is a co-author of the song; (2) Fisher is a joint copyright owner, with a share of 40%; (3) Brooker and Onward Music’s licence to exploit the work was revoked on 31 May 2005.

The Court of Appeal set aside (2) and (3) on the basis of delay (acquiescence and laches) – producing the bizarre result that Fisher would be a co-author with no copyright ownership. Although there’s no statutory limitation period to a copyright claim, delay is a potential bar to an injunction – which is granted at the discretion of the court. Mummery LJ argued that because Fisher’s ultimate goal was an injunction he should not be allowed the copyright interest that would provide the basis for it.

The House of Lords, however, distinguished between the property right and the potential injunction. Property rights are not discretionary. To refuse a property right because it might lead to an inequitable injunction would be ‘the tail wagging the dog’. If Fisher were to use his newly asserted property right to seek an injunction, the court would be free to determine whether to grant it. The Lords were unanimous in their decision – even tickled pink. Baroness Hale exclaimed as she danced the light fandango: ‘As one of those people who do remember the sixties, I am glad that the author of that memorable organ part has at last achieved the recognition he deserves.’

Tenenbaum filesharing trial opens in Boston

It’s not being streamed live but the Joel Tenenbaum file sharing case in the USA is certainly making the headlines. Tenenbaum, the 25 year old college student accused of illegally downloading and sharing music online, is in the public eye not least because of the ‘flamboyant’ (elsewhere described as ‘rambling’) presence of Harvard law professor Charles Nesson who opened the defence by holding up a rectangular piece of plastic foam wrapped in cellophane which he said represented the compact discs that record companies sold before digital music became available online. He then sliced open the wrapper with scissors and hundreds of tiny jigsaw pieces fell in a pile in front of the jury in US District Court in Boston with Nessom saying “You have the ability to share, and this physical object’’. The 70-year-old professor then paused and snipped open the foam commenting “suddenly broke into a million bits. Here it is. Bits. . . . Can you hold a bit in your hand? You can’t. . . . And suddenly you have songs being shared by millions of kids around the world.’’

Tenenbaum no longer denies that he shared music illegally but Nesson said his client was “a good kid’’ who admits using file swapping network Kazaa to share songs online but says he did it only because of his he love of music, not to make a profit saying "He was a kid who did what kids do and loved technology and loved music” adding “the Internet was not Joel's fault …. the internet sweeps in like the way the automobile swept into the buggy industry".

Timothy M. Reynolds, who represents four major record labels which are plaintiffs in the trial, said damages to the industry from free file-sharing are enormous and imperil “real people,’’ ranging from sound engineers to talent scouts saying “The defendant knew what he was doing was wrong at each step of the way, but he did it anyway,’’ said Reynolds, who added that Tenenbaum continued sharing music files on other peer-to-peer networks even after the recording industry filed suit. He also pointed out that Tenenbaum didn't initially admit he was the person using Kazaa at his IP address alleging that the student "tried to blame others for his conduct - he didn't take responsibility" and initially tried to pin blame on his friends, his sisters, a foster child living with his family and even a "burglar".

Wade Leak, a senior vice president at Sony and deputy general counsel, testified that illegal file-sharing has cost record companies profits and made it harder to nurture new artists, citing Bruce Springsteen as one performer who became a star only after releasing a couple of modestly successful records and Reynolds added that "The exact amount of harm is incapable of exact proof. But make no mistake about it: the defendant's activities caused significant harm". Nesson has said that the record industry is simply making an example of Tenenbaum’s activities - which are common practice amongst youth across the US saying "Everyone could download [songs] for free … and millions and millions did. Joel was one of those millions. In his way he's like every other kid. There's nothing that distinctive about Joel".

The final witness of the day was Tenenbaum's father, Dr Arthur Tenenbaum, who was called by the RIAA to testify and who told the court that he had once called his son at college, in 2002, to warn him he may be sued if he continued to use the P2P client. He told the court his son responded: "You only get sued if you do it a lot". The trail judge, Nancy Gertner, has already ruled out any form of ‘fair use’ defence and with the admission of guilt it is difficult to see what Nesson will achieve beyond perhaps minimising damages - but with a jury, who knows! That said, in the recent Jammie Thomas-Rasset trial the jury awarded dmages of $1.92 million. The case continues, with Judge Gertner saying she would like it all wrapped up by Friday.

http://www.boston.com/news/local/massachusetts/articles/2009/07/29/opening_statements_made_in_civil_suit_over_swapping_songs/
http://news.cnet.com/8301-1023_3-10298079-93.html

http://copyrightsandcampaigns.blogspot.com/2009/06/gertner-nixes-barlow-as-tenenbaum.html

Photo: Professor Charles Nesson in his trademark turtle neck top

Scottish judge refuses to bar architect's copyright infringement claim

Eagle-eyed Scot-watchers will have noticed that rarest of events, the posting of a Scottish copyright decision on the Scottish Courts website. The decision is that of Lord Bannatyne (Outer House, Court of Session) in Donal Toner v Kean Construction (Scotland) Limited and CRGP Architects and Surveyors [2009] CSOH 105. The decision is difficult for we non-Scots to follow on account of its terminology, but Mark Cruickshank (Maclay Murray Spens) has furnished us with a splendid explanation. he writes:

"Toner alleged infringement of copyright by Kean and CRGP in respect of architectural plans which he had prepared. He argued that he had not been fully paid for his work and that, therefore, there was no implied licence granted to Kean and CRGP to use the plans. He alleged that CRGP had directly infringed copyright by using a substantial part of the plans to obtain an amendment to a planning consent, while Kean had indirectly infringed by constructing a building in conformity with those plans.

Kean and CRGP requested a Debate (ie a hearing on the legal merits of the claim) to argue that Toner's case against them was not competent and that it was neither legally relevant nor specific enough to make out a case and should be dismissed. They raised a number of competency arguments, all of which involved fairly technical issues of law and/or related to compliance with Scottish procedural rules on pleadings. They included the arguments that Toner had no title to sue, that there was no competence to sue more than one defender [that's the term used in Scotland for 'defendant'] in the same action with a separate and independent basis for each claim, and that there were no pleadings setting out the statutory/common law basis for raising the action. In terms of the relevancy/specification arguments, again there were a number of submissions made by the defenders, for example that the damages claimed against each defender amounted to 'double counting', that Toner's case on damages was not properly set out and that it was not possible to sue for damages for copyright infringement when also seeking to affirm the contract or for damages and additional damages under the same pleading claim.

The judge, Lord Bannatyne, took a common sense approach and criticised the defenders' attacks as resulting from taking aspects of the pleadings in isolation rather than reading them in context. Also, for example, on the inclusion of more than one defender in the same action he took the view that the two cases were clearly intimately connected, which pointed to it being in the interests of justice/convenience that the cases both be in the same action. Lord Bannatyne then rejected all of the defenders' arguments and found firmly in favour of Toner.

This sensible decision should discourage such future attempts to knock out cases based on highly technical arguments. This is not the end of the matter, however, and the matter will proceed towards a full trial with Toner having to prove his case of copyright infringement based on the facts".

Many thanks, Mark, for the explanation.

Peer-to-Peer: a new book

Cometh the hour, cometh the book. Peer-to-Peer File Sharing and Secondary Liability in Copyright Law, edited by the distinguished academic and practitioner Alain Strowel, is a title that has "flavour of the month" stamped all over it, as it is launched for the benefit of a readership currently struggling to make sense of the Pirate Bay drama, the debate over "three stripes and you're out" and the martyrdom of Jammie Thomas-Rasset.

This book is one of those curious little beasts that is very much a product of its time. Five years ago it would have been unimaginable; in five years time it will probably be history. But right now it provides a valuable, readable and sometimes provocative set of insights into the issues that now drive copyright pundits to distraction and copyright-based businesses to possible extinction.

One of the most striking things about the contributions in general is that their authors have resisted the temptation to navigate by crystal ball and have based so much of their analysis on existing (if largely recent and sometimes unfamiliar) case law. Another striking thing is the geographical focus of the debate: the fact that peer-to-peer issues were identified and discussed so swiftly in the United States, as well as the easy availability of American case law, information and scholarship, sometimes leads the reader to wonder whether this is really an American debate to which the rest of the world is kindly invited to respond. If this is so, we Europeans have only ourselves to blame and it is for us to play catch-up.

The contents of the book are as follows:

1. Liability of Users and Third Parties for Copyright Infringements on the Internet: Overview of International Developments: Allen N. Dixon

2. Legal Issues in Peer-To-Peer Filesharing, Focusing on the Making Available Right: Michael Schlesinger

3. Secondary Liability for Copyright Infringement with Regard to Hyperlinks: Alain Strowel and Vicky Hanley

4. Copyright Control vs. Compensation: The Prospects for Exclusive Rights after Grokster and Kazaa: Jane C. Ginsburg

5. Global Networks and Domestic Laws: Some Private International Law Issues Arising from Australian and US Liability Theories: Graeme W. Austin

6. A Bipolar Copyright System for the Digital Network Environment: Alexander Peukert

7. Sharing Out Online Liability: Sharing Files, Sharing Risks and Targeting ISPs: Bob Clark

8. A Reverse Notice and Takedown Regime to Enable Public Interest Uses of Technically Protected Copyrighted Works: Jerome H. Reichman, Graeme B. Dinwoodie and Pamela Samuelson

The 1709 Blog hopes this book does well, and looks forward to what will undoubtedly be its many sequels as the world of peer-to-peer continues to evolve.

Bibliographic details. Publication date 2009. xviii + 322 pp. Hardback, ISBN 978 1 84720 562 9. Full price £ 79.95 (with publisher's online discount £ 71.96). Web page here.

Flotsam and jetsam

Here’s some copyright news and flotsam and jetsam that has been washed up in the Internet’s surf this week:

On Thursday South Korea brought in a tough new ‘three-strikes’ anti-piracy law allowing authorities to cut off alleged infringers and to shut down websites (Korea Times).

HADOPI has been delayed yet again (Reuters).

Canada has launched a copyright consultation. Michael Geist has launched a website to discuss it.

The ownership of a famous yodel has been settled, the Guardian reports.

Are LexisNexis and Westlaw infringing copyright in briefs? (Legal Research Plus)

Public Knowledge have published a report saying that internet copyright filtering doesn’t work. Filters are systems for ISPs to automatically detect and block certain types of content, such as copyright-infringing content.

The American Library Association has created online tools to check if you’re within US fair use rules: the Fair Use Evaluator and the Exceptions for Instructors eTool. Anyone want to create a UK equivalent?

Michael Carroll at Washington College of Law has been speculating on the copyright implications of machines being authors.

Low Tolerance for P2P Larkin' About in Hull

Perky, music news site CMU Daily today (24 July) highlights one UK telcoms provider that is simply disconnecting filesharers who access unlicensed content via the local broadband service, Karoo. According to reports from BBC Radio Humberside, Hull-based Kingston Communications, the monopoly supplier of the Hull telephone system is, via its ISP Karoo , disconnecting broadband users accessing or sharing content unlawfully when alerted by content owners. Disconnected subscribers to Karoo are required to sign an agreement undertaking not to repeat the behaviour in order to have their service reinstated. Karoo can take advantage of its unique position in the Hull marketplace - they provide the only ISP in the area via Kingston Communications' telephone system - not even British Telecom operates lines in Hull.

This is a disconnection policy that may be desirable from a content owner's perspective but is less desirable for the residents of Hull who have no option but to obtain telcoms supply from Kingston and Karoo. It is also a policy that, in the view of the Open Rights Group, is unacceptable. And what would the Competition Commission or OfCom make of it, we wonder.

To close on a balanced note , Karoo should perhaps be congratulated on the quality of their system. New technologies added to BitTorrent protocols can now encrypt data to prevent an ISP being able to identify that a file is a torrent file - but not in Hull apparently.

When lawfully seized items can't be retained

The 1709 Blog could easily have missed the ruling of Mr Justice Sharp in Scopelight Ltd and others v Chief Constable of Northumbria and the Federation Against Copyright Theft [2009] EWHC 958 (QB) in the Queen's Bench Division (High Court, England and Wales) a couple of months ago, were it not for the fact that I spotted it in the newly-published issue 4/2009 of the European Copyright and Design Reports (Sweet & Maxwell, 6 times a year). In short, this was a ruling that the police had no power to retain property under the Police and Criminal Evidence Act 1984 s.22 against the wishes of the person otherwise entitled to possession of it, once a decision not to prosecute has been taken, in order that a private body (in this case FACT) could consider whether to bring a prosecution, or indeed while that private prosecution was being brought.

This action was brought by the Vickermans, a husband and wife team who ran a video search engine website. This was not a file-sharing website, but it did provide thousands of links to third party websites which hosted videos. Following a complaint by FACT, a private commercial organisation representing the interests of the audio-visual industry, that this website was hosting two third party file sharing websites, the police obtained a warrant to enter the Vickermans' premises on the basis that there were reasonable grounds for believing that offences of conspiracy to defraud and money laundering had been committed. On this basis the police lawfully seized internet server equipment and associated documents. That property was later released by the police into the possession of FACT for the purposes of the police investigation.

When eventually the Crown Prosecution Service decided not to prosecute, the Vickermans asked for the return of the seized property. The police said they couldn't, since FACT was considering whether to bring a private prosecution. At this point the Vickermans sued for delivery up of the seized property as well as damages for conversion, while FACT began a private prosecution (still proceeding) in respect of various copyright offences.

So could the police retain the seized property under the Police and Criminal Evidence Act 1984 s.22 even after the CPS had decided not to prosecute, if the retention was for the purpose of assisting a private prosecution? The Vickermans argued that the police power to retain property ended once the CPS decided not to prosecute. The police and FACT both contended that retention was permitted because it was for use as evidence at a trial and forensic investigation for an offence which was the subject of an ongoing prosecution.

Sharp J ruled in favour of the Vickermans. He held as follows:

* The power of the police under the Act to seize, use and retain property was conferred on them for the better performance of their public functions and for law enforcement purposes: those purposes did not include the seizure, use or retention by the police of private property to assist private interests. Parliament never considered whether private property, once seized by the police, could be used by a private body for its own purposes (including considering whether it should bring a private prosecution or bringing a private prosecution).

* While the right of private bodies or individuals to bring a private prosecution was well established, it did not carry with it the automatic right to override private property rights in the absence of an order of the court, nor did it carry with it the powers conferred by Parliament by the police. Accordingly, the police had no power to retain property lawfully seized under the Act against the wishes of the person otherwise entitled to possession of it once a decision not to prosecute had been taken.

Big brother in a bother? Orwell that ends well

Thanks, Professor Hector MacQueen, for tipping the 1709 Blog off about the news that Amazon.com has promised to change its systems after it remotely deleted George Orwell's 1984 and Animal Farm from its customers' Kindle ebooks. This happened when the world's most popular source of reading matter discovered that those titles had been offered for sale without authorisation. Amazon's action, however purely motivated by considerations of copyright, generated the inevitable comparison with the unseen but all-seeing villain of 1984, Orwell's all-seeing Big Brother.

The first rumour was that Amazon had to retrieve the books after pressure from the rights-holder, which had apparently changed its mind about the e-vailability of these masterpieces of socialist theory versus practice. Amazon later denied this, explaining that the works uploaded by a publisher, reported to be MobileReference, which did not have the rights in the first place.

Customers have not been thrilled to discover that, when they purchase a book using Kindle, they do not necessarily own it for life. One wrote on Amazon.com's forum: "When I buy a book, I own it. Today i find that when I 'buy' a Kindle book, I am leasing it and it is subject to recall by the issuer". One particularly disgruntled customer is Justin Gawronski, who was reading 1984 on his Kindle for a summer assignment and lost all his notes and annotations when it simply vanished. "They didn't just take a book back, they stole my work", he is reported to have said.

Amazon is reputedly reconsidering its policy. Presumably it makes more sense to be on the customers' side. The easiest way to do this is to let them keep the illicit download and leave it to the copyright owners to take action against such parties as they can realistically sue.

Right: No-one asked the piggy if it wanted to be Kindled ...

Read all about it in the Guardian, the Telegraph, Pocket-lint, the Register and msnbc.

A Touch of Flaux

Last week Mr Justice Flaux gave his ruling in Excelsior Group Productions Ltd v Yorkshire Television Ltd [2009] EWHC 1751 (Comm), a decision on transmission royalties from the Queen's Bench Division, Commercial Court (England and Wales).

Excelsior was an independent television production company, Yorkshire TV being a television production and broadcasting company and a regional licensee which provided the national independent TV channel in the UK (formerly as ITV, now ITV1). Between 1990 and 1999 the parties entered into three agreements: (i) the 'Buds of May' agreement, (ii) the 'Frost' agreement and (iii) the 'Silas' agreement. Clauses 4(1) and 4(2) of the Buds of May agreement referred to the terms for payment for broadcast and other exploitation. By Clause 4(1):

"The payment by YTV to [Excelsior] of the said sum ... in respect of the purchase of the rights ... granted shall entitle YTV to broadcast the Film/Programmes by television on two occasions either simultaneously or non-simultaneously from all the transmitters of the IBA serving ITV or Channel Four Provided Always that if YTV shall further repeat the television broadcasting of the Film/Programmes in the United Kingdom the sum of £3,000.00 ... per broadcast hour shall be due and payable by YTV to [Excelsior] within Twenty-One Days of the date of such further repeated transmission ...".

Similar repeat fees per broadcast hour were also due under clause 4(1) of the Frost and the Silas agreements. By Clause 4(2):

"It is mutually agreed that if YTV shall transmit or authorise the transmission distribution or exploitation of the Film/Programmes in overseas territories by means of open circuit or 'free' television broadcasting toll or pay cable television broadcasting satellite television broadcasting or by way of non-theatric exhibition or in the form of videograms for sale and hire to the general public there shall be payable to [Excelsior] Eight Per Cent of the adjusted gross income accruing to YTV from such broadcasting authorised broadcasting and other distribution or exploitation …".

Excelsior accepted that the intention of the parties was that clause 4(1) of the Frost and Silas agreements would have the same scope and effect as clause 4(1) of the Buds of May agreement.

The digital terrestrial channel ITV2 was launched in December 1998, as a free-to-air service on cable and digital terrestrial television, followed by the digital terrestrial channel ITV3 in 2004. In March 1999, after five episodes of 'A Touch of Frost' were transmitted on ITV2, Excelsior sent YTV an invoice for those transmissions on the basis of an entitlement to be paid £3,000 per broadcast hour in accordance with clause 4(1). YTV did not pay that invoice on that basis, being prepared to pay only on the basis of a 15 per cent royalty under clause 4(2). According to YTV, ITV2 was a 'catch up' channel and that any repeat on ITV2 would attract only royalties.

Excelsior then sued YTV, seeking a declaration that, in relation to each of the agreements, it was entitled to payment of the flat rate fees per broadcast hour under clause 4(1) for broadcasts on ITV2 and ITV3. YTV denied liability, arguing that the repeat fee under that clause was only payable in respect of repeats on the channel generally known, in 1990 and 1992, as ITV, but now as ITV1. Its case was that in respect of broadcasts of the programmes on ITV2 and ITV3, Excelsior was only entitled to payment of royalties under clause 4(2); since those royalties had been paid, nothing was currently due.

Flaux J dismissed Exscelsior's claim ("I have reached the very firm conclusion that the transmissions of the programmes covered by the three Agreements are not within the terms of clause 4(1) of those Agreements, properly construed"). In his view

* Evidence was admissible as to what particular words or phrases meant at the time that the contract was made, having regard to the factual background or matrix reasonably available to the parties in the situation in which they were at the time of the contract.

* Precontractual negotiations were however neither relevant nor admissible.

* The principles of construction would be distorted if clause 4(1) were given a wider meaning than the words of the clause would bear, merely because the television industry had developed in a manner that was not foreseen when the agreements were made and which turned out to be disadvantageous to Excelsior in terms of claiming fixed rate fees under clause 4(1).

* The phrase "such further repeated transmission or transmissions simultaneously or non-simultaneously from all the transmitters of the IBA serving ITV or Channel 4" encompassed only repeats on ITV1, but not transmissions on ITV2 or ITV3.

* A literal reading of clause 4(2) suggested that it covered only transmission and exploitation in oversees territories. A robust and purposive construction should be adopted when interpreting that clause, to ensure that other means of transmission and exploitation than analogue transmission on ITV and Channel 4 in the UK fell within its payment regime.

* Since clause 4(1) did not cover transmissions on ITV2 or ITV3, the fact that such transmissions were not covered by clause 4(2) either did not enable Excelsior to extend the scope of clause 4(1), which did not cover digital transmission on ITV2 or ITV3.

Whoever said contractual interpretation wasn't a huge bundle of fun?

WIPO sets its sights on new deal for the visually impaired

A press release from the World Intellectual Property Organisation (WIPO) last week reported on a meeting of Representatives of WIPO member states, reading-impaired organizations, publishers and a technology consortium which discussed how the intellectual property system can best meet the needs of visually impaired people by improving timely access to copyright-protected content. According to this item,

"The proliferation of digital technologies has added a new dimension to the question of how to maintain a balance between the protection available to right owners, and the needs of specific user groups, such as reading impaired persons. More than 160 million blind or visually impaired people around the world stand to benefit from a more flexible copyright regime adapted to the technological realities of the day.

At a time when the sighted are enjoying unprecedented ease of access to copyright-protected content, a combination of social, economic, technological and legal factors, including the operation of copyright protection systems, are converging to impede access to this content by the blind or other print-disabled persons. Speakers examined the needs of visually impaired persons as they relate to intellectual property, particularly in terms of how to improve timely access to copyright-protected content.

Opening the meeting, WIPO Director General, Mr. Francis Gurry, announced that, in the framework of its visually impaired persons (VIP) initiative, WIPO will be launching a website - http://www.visionip.org/ – dedicated to attracting support, exchanging views, and disseminating information to all interested parties.

Ambassador Mr Swashpawan Singh, Advisor to Mr. Gurry on the VIP initiative, pointed out that the continued progress in this area would depend upon the commitment and support of member states and on their ability to take on board the interests of all stakeholders. He added that “it is clear that without contravening the legitimate interests of right holders, greater quantities of copyright-protected material – both analog and digital – could be made available in accessible formats and disseminated across multiple jurisdictions in a timely way, to enhance opportunities for the literacy, independence and productivity of VIPs.” WIPO’s task is to facilitate a process which could lead to the desired outcomes within a reasonable time frame.

... Mr Chris Friend, Strategic Objective Leader Accessibility, World Blind Union ... was confident that the cooperative efforts between publishers and the visually impaired sector would result in more accessible materials. He underlined that a binding international instrument on the needs of the visually impaired would complement those efforts by ensuring, for instance, the cross-border circulation of books in accessible formats. Blind readers in 19 countries across Latin America would have access to Braille or audiobooks produced by the organization for the blind in Spain (ONCE). The Francophone Africans would do the same with the French collections from Canada, France, Belgium and Luxemburg and Switzerland. The Portuguese organizations could share with Brazil, Angola and Mozambique.

Mr Herman Spruijt, President, International Publishers Association (IPA) said that the publishing sector was willing to “contribute its fair share” in finding solutions to the important issue of disability access and highlighted the complexities of dealing with different needs and interests of multiple stakeholders in a fast-moving stream of technological development. He urged parties to be flexible in achieving a common goal rather than creating an artificial polarization. He commended the consultative approach adopted by WIPO to move forward with the VIP initiative ...".

The 1709 Blog will endeavour to keep readers up-to-date on this issue. Checks will also be made from time to time on the www.visionip.org website, to see if it is more accommodating to the needs of the partially sighted than it is at present.

No 'making available' without 'reproduction' rules German court in CELAS case

From Dr Martin von Albrecht (K&L Gates) comes news of an important decision last month in which he was personally involved. He writes:

In a declaratory judgment action filed by the company MyVideo (represented by K&L Gates Berlin) against CELAS, a joint venture of the German collecting society GEMA and the UK collecting society MCPS-PRS, the District Court of Munich (Landgericht München) decided on 25 June 2009 that CELAS has no right to prohibit reproductions of the Anglo-American repertoire of EMI Music Publishing Ltd online in Germany.

MyVideo provides an ad-financed website in German (myvideo.de) that, just like Youtube, enables the streaming of user-provided video content over the internet. CELAS, which was set up by GEMA and MCPS-PRS to manage on a pan-European basis the so-called mechanical reproduction rights for online uses of the Anglo-American repertoire of EMI Music Publishing Ltd, had claimed that MyVideo needed a CELAS licence with respect to EMI songs uploaded on its server as part of videos.

The District Court of Munich held that, in general, making available copyright works online required imperatively both making available rights and mechanical reproduction rights, since the act of making available online was technically not feasible without a reproduction. In such a case of union of rights, however, German copyright law did not allow a splitting of making available rights and mechanical reproduction rights for online uses. The court held that, as a consequence, EMI could not have validly transferred only mechanical reproduction rights for online uses to CELAS while the making available rights were still managed by GEMA.

The decision confirms that, in Germany, GEMA still functions as a one-stop-shop for the world-wide repertoire which offers all making available and reproduction rights necessary for online uses. Users do not have to negotiate separate deals with business models such as CELAS or PEDL (Warner) for mechanical reproduction rights. Instead, they can obtain comprehensive licenses from GEMA in a fast and efficient manner - also for the benefit of all copyright holders.

The impact of the decision may be bigger than it seems at first glance because it would stop all the publisher models of withdrawing the mechanical online rights from the collecting societies. The grounds of the German court's decision are in line with the Commission's decision of 6 July 1972 (72/268/EWG, ABl. 1972 L 166/22 GEMA II). The Commission found that "all economically dividable forms of exploitation of copyright under consideration of the differences of the national laws could be transferred separately".

Further analysis of this decision by Dr Albrecht can be found here.

Google Book: Commission tests the water ...

Via Stephanie Bodoni (Bloomberg) comes breaking news that the European Commission has intensified its review of Google Book, to analyze how it might affect authors' and publishers' copyrights. The European Commission's operation is described at this stage as "a fact-finding mission, not an investigation".

The Commission wants precise details on the exact scope of the US$125 million settlement, as well as how many European works and publications are potentially affected.

Repeat infringers in New Zealand: never mind the punishment, what about the policy?

Elena Szentivanyi (Principal, Henry Hughes) writes:

"You may recall the rather controversial proposed amendment to the NZ Copyright Act 1994 in the form of section 92A which read:

“s 92A - Internet service provider must have policy for terminating accounts of repeat infringers

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner”.

While sections 92B – E have come into force (dealing with other aspects of Internet service provider liability for copyright infringement), the entry into force of section 92A has been delayed on two occasions to allow for the formulation of a voluntary "ISP Copyright Code of Practice" (“the Code”) to provide guidance for Internet Service Providers (“ISPs”) and right-holders (“RH”) on how section 92A is the operate.

In the absence of agreement between ISPs and RHs the Minister of Commerce, who is responsible for IP legislation, has instructed Ministry of Economic Development officials, the Ministry responsible for the Intellectual Property Office, to undertake a review “to build on information gathered during ISP and RH negotiations on the Code, and to take account of industry and subscriber concerns”.

Following two meetings of a working group comprising “intellectual property and internet law experts” a policy document has now issued for public comment. The attached policy document sets out a proposed approach for dealing with allegations of repeat copyright infringement in the digital environment.

I think that the proposed policy is a positive development in many respects as it puts the burden more appropriately upon RHs rather than ISPs to provide reasonable evidence of copyright infringement, more clearly defines that burden, and also takes the power to disconnect a customer away from the ISP and gives it to an independent Tribunal.

However, there are still a number of matters to be dealt with, some of which are highlighted in the specific questions within the policy document.

It is to be remembered that the definition of “Internet Service Provider” already exists in the Copyright Act and is very broad (“Internet service provider means a person who does either or both of the following things: (a) offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing: (b) hosts material on websites or other electronic retrieval systems that can be accessed by a user”). This is perhaps broad enough to cover the internet connection an employer supplies to its employees.

Further the possibility of sanctions against RHs for repeated improper use of the notice procedure needs to be covered and also whether repeat infringement extends to infringement in works owned by different RHs.

The policy provides for mediation as an option and if that fails for referral of the dispute to the Copyright Tribunal (with an appeal to the High Court). The Tribunal is an administrative tribunal, comprises three members (two at least of which have many other professional commitments), it appears that the Tribunal has only issued 13 decisions since 1977 and is most used to dealing with disputes relating to licensing schemes rather than the issue of whether copyright subsist and has been infringed. While a RH can, in the alterative, apply to the court for determination of the infringement issue, it will be interesting to see how often RHs take their case to the Copyright Tribunal.

The original section 92A was the subject of much comment and speculation in the media – it will be interesting to see what public and industry response there is to the current proposal. The deadline for submissions is Friday 7 August 2009".

If you're thinking of responding, do please note the deadline (why are important deadlines so often in the middle of the holiday period -- or are there no holidays in New Zealand at that time?). And if you want to discuss this topic with Elena, who is definitely an enthusiast, you can email her here

ZookZ claim WTO permission to download without permission

ZookZ is a new site offering unlimited music or film downloads for under $10 a month, or both for $18. Its trick for keeping prices down is not to pay copyright holders. ZookZ says it doesn’t need to. Why? It’s based in Antigua. The LA Times explains:

‘The governments of Antigua and the United States battled for several years before the WTO over whether US restrictions on online gambling discriminated against foreign firms. The WTO sided with Antigua in several preliminary stages, but the US kept contesting the body's findings. So to increase the pressure, Antigua asked WTO arbitrators to give it permission to suspend its obligations under sections of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement related to copyrights, trademarks, patents, industrial designs and trade secrets. The arbitrators agreed in December 2007, finding that Antigua could request the WTO's permission to suspend its obligations up to a value of $21 million annually.’

The Pirate Bay - it's all about give and take

Global Gaming Factory X, the new owners of The Pirate Bay, said today (Saturday) that it plans to adopt ‘give and take’ payment models. Chief Executive Hans Pandeya explained: ‘For the great majority it will be free of charge, for a minority it will actually make them money, and for a small portion it will cost them’. AP reports:

‘Pandeya said plans are under way to introduce a monthly fee to be able to use The Pirate Bay, but he said the fee could be worked off by, for example, sharing downloaded content or lending storage capacity to others on their PCs in exchange.… GGF claims the site will fully address the legal issues that troubled it before because income will be distributed between filesharers, copyright holders and others involved. Pandeya said that although no deals have been struck yet, his company is currently in negotiations with some of the world’s largest players” within the music industry. “It’s been positive,” he said, declining to name the companies involved in the talks.’

The principle of getting free content in exchange for sharing content or lending capacity sounds like nothing much is changing in the world of P2P file-sharing. But whatever model they use, GGF are going to need to get weaving if they are to relaunch the site in a month with the consent of all relevant copyright owners.

Pick on someone your own size, buster!

Are these American right owners wise to have turned against these small victims?



The cat suit: Warner Music Group has been refusing to humour cat lovers. Keyboard Cat (above) is one of the big sensations of 2009 on YouTube. However, when the video was mashed up with the video of Hall & Oates’s ‘You Make My Dreams’ Warner had the sound removed. YouTube users’ claws are out. (Wired; LA Times)

The Joker: DC Comics is suing John Stacks, maker of Batman figurines. The Bradenton Herald reports: ‘Stacks said his figures portray the “actors” from the 1960s “Batman” TV series, who happened to be dressed as characters from the show that made them famous – Adam West as Batman, Burt Ward as Robin, Frank Gorshin as the Riddler and five others…. He has contracts from the actors and their families on using their likenesses.’ Stacks is being sued for up to $7.5 million – he says he’s worth $70.

Stamped out: a sculptor, Frank Gaylord, is suing the US postal service for using a photo of his sculpture of soldiers on patrol in the Korean War on a stamp. The Centre for Internet and Society has filed an amicus brief. They say: ‘One of the important questions this case presents is whether and to what extent an artist has the right to use existing imagery to create new artistic expression. We think fair use does and should protect this right, which is crucial to huge amounts of expression, including vast amounts of modern art.’

Top court rules that printing isn't transient

Hot off the press today is the European Court of Justice ruling in Case C‑5/08, Infopaq International A/S v Danske Dagblades Forening, a reference for a preliminary ruling from the Danish Højesteret. This reference related to the modern equivalent of a cuttings agency.

In olden days, cuttings agencies used to buy newspapers and magazines, read through them and cut out the bits that clients wanted, sending them a daily or weekly bundle in an envelope. Apart from being labour-intensive it could also be quite annoying, when cutting out a recto article to send to client A meant mutilating the verso article that client B wanted. There was nothing for it but to send the office boy out to buy a second copy, to cut that up too.

Now the process is done mainly electronically through a variety of techniques. In the UK you can get a licence from the Newspaper Licensing Agency which is specially tailored to the needs (and peace of mind) of press cuttings agencies. In Denmark, however, an agency provoked confrontation by seeking a declaration that its complex five-part scanning, search and printing process did not infringe any copyright in the content since the elements of its process that were in dispute were merely transient copies with no economic significance and were thus entitled to the benefit of Article 5 of the Directive on Copyright in the Information Society.

This afternoon the ECJ gave its ruling, generalising across the 13 separate and in some respects over-detailed questions referred to it:

"1. An act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination.

2. The act of printing out an extract of 11 words, during a data capture process such as that at issue in the main proceedings, does not fulfil the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant rightholders".

The Court took the opportunity to remind us that Article 5, since it contains exceptions to the basic principle that copyright works are protected, must be construed narrowly.

Research suggests that music fans still prefer CDs to Downloads

Another set of figures from the recent research by The Leading Question (see my earlier posting below) show that perhaps the CD isn't quite as doomed as the music industry thought - with two thirds of music lovers saying that they still prefer CDs over any other media - including digital downloads - and 66% of 14-18 year olds saying that they prefer the CD format.

The Leading Question spoke to over 1000 music fans as part of their annual Speakerbox survey into the state of music consumption in the UK. Despite the growth of digital download sales, the research showed that overall 73% of music fans are still happy buying CDs rather than downloading and that fans still value a physical CD much more than digital downloads. With a bedrock of sales from online stores and supermarkets (these channels represented 46% of all UK CD sales in 2008), even the demise of the specialist high street music store may not spell the end of the CD just yet.

For less tech savvy music fans their first experience of digital music often starts when they put a CD in their computer - and 59% of all music fans still listen to CDs every day. When it comes to the dark side, fans say that CD burning is top of all sharing activities at 23% above bluetoothing (18%), filesharing single tracks (17%) and filesharing albums (13%). The Report seems to support music streaming services saying that fans who stream music (ie those who listen to streamed music on their computers every day) also spend more on CDs (£12.17 a month) and downloads (£7.02 per month compared with a survey average of £3.81) than most music fans. Paul Brindley from Music Ally commented

“While we fully expect that digital will eventually replace most physical consumption, this is not a clear cut replacement cycle like the change from vinyl to CD. It’s particularly encouraging that those who are listening to streamed music on their computers are actually buying more music on both CDs and downloads than the average music fan. This suggests that digital can and is being used as a way of sampling new music which users may then go on to purchase”.

Guns N Roses leaker gets probation and gets to make an advert

Kevin Cogill, the blogger who was arrested at gunpoint and admitted to leaking a large part of the latest (and long awaited) Guns N' Roses album "Chinese Democracy", has been sentenced to a year of probation and two months of home confinement. Cogill will also have to record a 'public service announcement' for the Recording Industry Association of America, explaining the evils of music piracy and how illegal downloading and fileswapping hurts band. Cogill will also have to allow authorities to search or seize his computers.

Cogill had leaked and posted nine tracks from the fourteen track album online in June 2008 last year - onto his own site (http://www.antiquiet.com/). In court he apologised saying "I never intended to hurt the artist" adding "I intended to promote the artist because I'm a fan". The court has been pressed by the federal prosecutor for a short prison term as a deterrent to others although prosecutors did acknowledge that this might turn the defendant into something of a martyr. In his defence Cogill's attorney argued that his client had acknowledged his wrongdoing and had lost his job as a result of the case. Cogill will not have to pay any fines or restitution, although authorities at one point calculated the losses from his actions at more than $371,000. The album, 17 years in the making, reached number 3 in the US charts when it was released in November 2008.

http://www.google.com/hostednews/ap/article/ALeqM5h0CNEfp4hh-4YyETFh4AOn6_ohEAD99EG9700

http://www.wired.com/threatlevel/2009/07/guns-n-roses-uploader-gets-home-sentence-agrees-to-produce-riaa-anti-piracy-message/

Bridgeman disingenuous in seeking UK test case

Further to last week's news of the National Portrait Gallery's dispute with Derrick Coetzee (see 1709 Blog here), the Bridgeman Art Library should perhaps reconsider its theoretical welcoming of a UK test case to "strengthen [their] position". The Library tells us:

"All images supplied by the Bridgeman Art Library are copyrighted (sic) photographs. The Bridgeman Art Library either owns the copyright in the photograph or acts as the authorised agent of the copyright holder. A licence must be obtained from the Library before any reproduction is made or this will constitute an infringement of copyright. It is important to note that images can contain multiple copyrights."

Reproduction and licensing of photographs of public domain works is one thing, but a quick tour of the Bridgeman site shows images from Craigie Aitchison, Vanessa Bell, Duncan Grant , Barbara Hepworth (below) and Ben Nicholson (left) and so on and so on and so on. All works currently protected by copyright law. Photos of works such as these, made in the course of a business cannot possibly be "fair use" under US law. And to what extent does Bridgeman work hand in hand with copyright owners upon whose works they build their business, to enable owners to be paid? Not with all the owners of protected artistic works that Bridgeman offers - to this writer's certain knowledge.

The Bridgeman makes no representation as to title in the works photographed. The Library's Terms and Conditions (UK) state that "The Supplier does not make or give either expressly or impliedly any warranties that any rights to Reproduce the Paintings depicted in the Photographs have been granted nor does it purport to grant the same nor does it warrant that no third parties own rights in the Paintings therein depicted. The copyright holder concerned must be approached and their permission must be sought by the Client." So, over to you, Licensee.

But licensees of any "licensed"images are required to pay Bridgeman to use the photographs and provide the library with "complimentary copies of the publication in which the Reproduction appears in the quantity to be specified by the Supplier [Bridgeman]". Aggrieved copyright owners and estates of deceased artists whose works are being "licensed", see the works being issued for value for use by third parties but must passively wait for users to approach them offering to pay a licence fee. The Library is in a position to identify usage information to copyright owners for protected works, photographs of which have been licensed by Bridgeman. Does this always happen? Letter before action anyone?

Slavish imitation of lamps: a question or three for the ECJ

The United Kingdom's Intellectual Property Office has spotted a case that has been referred to the European Court of Justice for a preliminary ruling concerning that horridly complex area where copyright meets designs. The reference is in Case C-168/09 Flos SpA v Semeraro Casa & Famiglia SpA, which an Italian court referred to the ECJ this May.

Slaves and lamps have a long shared history (right), but this is the first time slavish imitation of lamps has been before Europe's top court

The helpful summary by the IPO of the incredibly verbose questions which were actually asked runs like this:

"Under its domestic legislation, Italy conferred copyright protection on industrial designs which possessed artistic value (Article 2 of Law 633/1941).

Under this legislation, the national court ordered that the defendant’s lamp be impounded and prohibited them from continuing to market them, holding that they were a slavish imitation of the appellant’s lamp.

The Milan District Court has asked the Court of Justice for judgment on the following questions:

1 Does the discretion accorded to a Member State by Articles 17 and 19 of Directive 98/71/EC to decide the extent to which and the conditions under which such protection is conferred, extend to permitting the Member State to preclude from protection, designs that had never been registered as designs or, where the registration had expired before the date on which the statutory provisions introducing copyright protection came into force?

2 If the answer is in the negative, is this discretion allowed where a third party has, without authorisation from the copyright holder, produced and marketed products based on such designs?

3 If the answer to both the above is negative is there any difference if the third party’s products are based on a design where protection has been precluded for a substantial period (10 years)?"

If you'd like to send a comment on these questions, the IPO would like you to do so before 17 July, in other words by close of play tomorrow. Please email your comments here.

New report reveals that UK teenagers are reducing illegal fileswapping

A new report reveals that UK teenagers are filesharing less music - with users down by a third. The report also shows that UK music fans are turning their backs on regular illegal activity in favour of streaming and other new ways of sharing music. Following the recent Digital Britain Report which set out the UK Government’s stance on how to curb file-sharing, the annual survey of more than 1,000 music fans by research and media specialist The Leading Question, in conjunction with Music Ally, shows that the nature of the file-sharing "threat" is also changing.

Overall, levels of regular file-sharing music are down, particularly amongst UK teenagers with a quarter less actually filesharing - now only 17% regularly swap music - a drop from 22%. This is despite the fact that the percentage of music fans who have ever file-shared has, perhaps unsurprisingly, increased, rising from 28% in December 2007 to 31% in January 2009. The move to streaming - e.g. YouTube, MySpace and Spotify - is clear from the research which shows that many teens (65%) are streaming music regularly (i.e. each month) - usually legally.

Nearly twice as many 14-18s (31%) listen to streamed music on their computer every day compared to music fans overall (18%). perhaps not quite as cheering news for record labels and music publishers is that more fans are regularly sharing burned CDs and bluetoothing tracks to each other than file-sharing tracks.

There is some good news for the music industry (apart from the rise in legal streamed services) - there are now more UK music fans regularly buying single track downloads (19%) than file-sharing single tracks (17%) every month, and although the percentage of fans sharing albums regularly (13%) remains higher than those purchasing digital albums (10%), the research also shows the comparative volume of pirated tracks to legally purchased tracks has halved since their last survey just over 12 months ago.

http://www.guardian.co.uk/music/2009/jul/12/music-industry-illegal-downloading-streaming

PRS CEO Departs

UK's PRS for Music announced yesterday the unexpected departure of CEO Steve Porter - he will be gone by Friday - as the Board seeks "a new set of skills" to take the business forward. Doubtless the churning wheels of the music industry info machine will throw up more background and foreground to this unexpected decision.

"Wherefore art thou Roneo?"

As a reader of, and subscriber to, countless intellectual property publications I was not surprised that I couldn't remember the title Copyright and License. It sounded more or less like the other largely descriptive or generic titles that haunt the field of IP publishing. Anyway, I opened the email with that subject heading and was comforted to read that

"You received this e-mail because you subscribed to this Newsletter. If you don’t see the images in this e-mail newsletter, or if you prefer to read the online version, click here to link to the online archives.

To ensure successful delivery of your newsletters, add us to your Safe Senders list".

At this point my curiosity was engaged. While many people rage about the iniquities of intellectual property, none has so far interrupted the inward flow of IP-related newsletters that has been a major feature of my existence over the past six years. I read on:

"Important Note to Our Newsletter Subscribers: WE strongly urge you to add us to your Safe Senders list. Even if you have consistently received newsletters in the past, you should take this quick and easy step to ensure receipt going forward.

Many e-mail service providers -- in particular Google Gmail and Yahoo -- are blocking mass mailings to their users, even e-mails users have requested. Policies and practices change from day to day; the only way to ensure that you receive all requested newsletters now is to add us to your Safe Senders list. Regardless of your service provider, please take a moment to do this today".

Now I was getting really interested. While Google in particular has come under fire from the copyright lobby for its Book Search project, for the unauthorised links generating thumbnail images and for providing direct hyperlink access via its search engines to news and other textual materials, never did it occur to me that ISPs might retaliate against the copyright lobby by blocking the distribution of newsletters on copyright and licensing. But I know people who work there ... surely such reasonable souls wouldn't do something like that!

So I clicked the link (not reproduced here) and sat back in expectation of reading some totally controversial material on copyright and licensing, hot enough to block. Can you imagine my disappointment when the link resolved to Canadian Pharmacy, #1 Online Drugstore, offering Free Sample Viagra and similar products. The irony is that Copyright and Licensing and Viagra do indeed both address the same subject matter: reproduction.

Photo copyright: you say 'original' and I say 'slavish'

On Friday the National Portrait Gallery sent a letter of claim to a certain Derrick Coetzee, an American software developer at Microsoft. The NPG complains that Coetzee has uploaded more than 3,300 of their photos to Wikipedia. Coetzee does not deny that since joining Wikipedia in 2003 he has found it ‘strangely addicting’.

This unbridled enthusiasm for the internet’s favourite encyclopedia gives rise to an interesting jurisdictional poser for copyright lawyers. While under US law straight photos (‘slavish copies’) of out-of-copyright paintings are not deemed sufficiently original to become new copyright works (Bridgeman v. Corel), the UK position remains unsettled. The NPG say that because the servers on which their website is hosted are based in the UK, the downloading ‘technically’ took place on the eastern shores of the pond.

Digital Europe: the next 5 years

Yesterday Viviane Reding (right), EU Commissioner for Telecoms and Media, gave the Ludwig Erhard Lecture 2009 in Brussels. She reviewed short-term and medium-term actions for boosting Digital Europe. She called on both sides of the debate on Amendment 138 to come to a ‘very swift agreement’ and expressed considerable frustration with the workings of the ‘Brussels bubble’.

The first, and most important, of her four Digital Priorities for the next five years was (abridged):

To make it easier and more attractive to access digital content, wherever produced in Europe. It is therefore regrettable that we currently have an extremely polarised debate on the matter: While many right holders insist that every unauthorised download from the internet is a violation of intellectual property rights and therefore illegal or even criminal, others stress that access to the internet is a crucial fundamental right. Let me be clear on this: Both sides are right. The drama is that after long and often fruitless battles, both camps have now dug themselves in their positions, without any signs of opening from either side.

In the meantime, internet piracy appears to become more and more ‘sexy’, in particular for the digital natives already, the young generation of intense internet users between 16 and 24. It is necessary to penalise those who are breaking the law. But are there really enough attractive and consumer-friendly legal offers on the market? Does our present legal system for Intellectual Property Rights really live up to the expectations of the internet generation? Have we considered all alternative options to repression? Have we really looked at the issue through the eyes of a 16-year-old? Or only from the perspective of law professors who grew up in the Gutenberg Age? In my view, growing internet piracy is a vote of no-confidence in existing business models and legal solutions. It should be a wake-up call for policy-makers.

It will therefore be my key priority to work, in cooperation with other Commissioners, on a simple, consumer-friendly legal framework for accessing digital content in Europe’s single market, while ensuring at the same time fair remuneration of creators.

I will give you two examples of what Europe could do concretely for this:

First of all, we could facilitate the licensing of intellectual property rights for online services covering the territory of all 27 EU Member States. Today, right holders and online service providers need to spend far too much time and money on the administration of rights, instead of investing this money in attractive services. And consumers often cannot access online content if uploaded in another Member State. For online content in a single market of 27 Member States, economies of scale and consumer-friendly solutions will require a much simpler and less fragmented regulatory framework than the one of today. We had a similar problem when commercial satellite TV started more than 30 years ago. As right clearance for this per se cross-border service became increasingly complex, Europe developed the Cable and Satellite Directive and introduced a simplified system of rights clearance for the whole of Europe. I believe it is now time to develop similar solutions for the evolving world of online content.

Second example: We should create a modern set of European rules that encourage the digitisation of books. More than 90% of books in Europe’s national libraries are no longer commercially available, because they are either out of print or orphan works (which means that nobody can be identified to give permission to use the work digitally). The creation of a Europe-wide public registry for such works could stimulate private investment in digitisation, while ensuring that authors get fair remuneration also in the digital world. This would also help to end the present, rather ideological debate about ‘Google books’. I do understand the fears of many publishers and libraries facing the market power of Google. But I also share the frustrations of many internet companies which would like to offer interesting business models in this field, but cannot do so because of the fragmented regulatory system in Europe. I am experiencing myself such frustrations in the context of the development of Europeana, Europe’s digital library. Let us be very clear: if we do not reform our European copyright rules on orphan works and libraries swiftly, digitisation and the development of attractive content offers will not take place in Europe, but on the other side of the Atlantic. Only a modern set of consumer-friendly rules will enable Europe’s content to play a strong part in the digitisation efforts that has already started all around the globe.

Will Christian be thrown to the copyright lions?

The 1709 Blog makes no apologies for publishing the following item in full. Regardless of whether its reproduction is sanctioned as fair dealing, the likelihood of the author bringing an action for copyright infringement must be small. The item in question, published in The Financial Times, is authored by Christian Engström (right), the Pirate party’s member of the European parliament, and it goes like this:

"Copyright laws threaten our online freedom

If you search for Elvis Presley in Wikipedia, you will find a lot of text and a few pictures that have been cleared for distribution. But you will find no music and no film clips, due to copyright restrictions. What we think of as our common cultural heritage is not “ours” at all.

On MySpace and YouTube, creative people post audio and video remixes for others to enjoy, until they are replaced by take-down notices handed out by big film and record companies. Technology opens up possibilities; copyright law shuts them down.

This was never the intent. Copyright was meant to encourage culture, not restrict it. This is reason enough for reform. But the current regime has even more damaging effects. In order to uphold copyright laws, governments are beginning to restrict our right to communicate with each other in private, without being monitored.

File-sharing occurs whenever one individual sends a file to another. The only way to even try to limit this process is to monitor all communication between ordinary people. Despite the crackdown on Napster, Kazaa and other peer-to-peer services over the past decade, the volume of file-sharing has grown exponentially. Even if the authorities closed down all other possibilities, people could still send copyrighted files as attachments to e-mails or through private networks. If people start doing that, should we give the government the right to monitor all mail and all encrypted networks? Whenever there are ways of communicating in private, they will be used to share copyrighted material. If you want to stop people doing this, you must remove the right to communicate in private. There is no other option. Society has to make a choice.

The world is at a crossroads. The internet and new information technologies are so powerful that no matter what we do, society will change. But the direction has not been decided.

The technology could be used to create a Big Brother society beyond our nightmares, where governments and corporations monitor every detail of our lives. In the former East Germany, the government needed tens of thousands of employees to keep track of the citizens using typewriters, pencils and index cards. Today a computer can do the same thing a million times faster, at the push of a button. There are many politicians who want to push that button.

The same technology could instead be used to create a society that embraces spontaneity, collaboration and diversity. Where the citizens are no longer passive consumers being fed information and culture through one-way media, but are instead active participants collaborating on a journey into the future.

The internet it still in its infancy, but already we see fantastic things appearing as if by magic. Take Linux, the free computer operating system, or Wikipedia, the free encyclopedia. Witness the participatory culture of MySpace and YouTube, or the growth of the Pirate Bay, which makes the world’s culture easily available to anybody with an internet connection. But where technology opens up new possibilities, our intellectual property laws do their best to restrict them. Linux is held back by patents, the rest of the examples by copyright.

The public increasingly recognises the need for reform. That was why Piratpartiet – the Pirate party – won 7.1 per cent of the popular vote in Sweden in the European Union elections. This gave us a seat in the European parliament for the first time.

Our manifesto is to reform copyright laws and gradually abolish the patent system. We oppose mass surveillance and censorship on the net, as in the rest of society. We want to make the EU more democratic and transparent. This is our entire platform.

We intend to devote all our time and energy to protecting the fundamental civil liberties on the net and elsewhere. Seven per cent of Swedish voters agreed with us that it makes sense to put other political differences aside in order to ensure this.

Political decisions taken over the next five years are likely to set the course we take into the information society, and will affect the lives of millions for many years into the future. Will we let our fears lead us towards a dystopian Big Brother state, or will we have the courage and wisdom to choose an exciting future in a free and open society?

The information revolution is happening here and now. It is up to us to decide what future we want".

This feature is just under 750 words in length. The 1709 Blog will be pleased to publish in full (with the author's permission) the best courteous and reasoned response, in 750 words or fewer, received by close of play next Wednesday, 15 July.

Non-US copyrights excluded from YouTube claim

US District Judge Louis Stanton, who is overseeing a copyright class action against YouTube, has dismissed part of the claim against the video-sharing site by excluding claims from owners of non-US (foreign) copyrighted works saying that the Digital Millennium Copyright Act of 1998 "bars statutory damages for all foreign and domestic works not timely registered" with the US Copyright Office. The ruling will come as a disappointment to non-UK owners including England's Premier League for football (soccer) and a number of music publishers. Judge Stanton said the plaintiffs couldn't seek punitive damages. However, the judge did not rule out claims from owners of copyrights in live broadcasters and the action led by the US National Music Publishers Association and others, along with Viacom's 2007 claim for infringement, will continue against YouTube and owners Google. Louis Solomon, a lawyer for the plaintiffs, was quoted as saying he was pleased with the ruling in respect of live broadcasters, a large portion of the class, adding "we now have clarity in how we have to go prove damages for the balance of the class". Google has consistently maintained the infringement claims are without merit.

http://news.cnet.com/8301-1023_3-10281571-93.html

The devil’s in the Digital

The UK government’s Consultation on Legislation to Address Illicit Peer-to-Peer (P2P) File-sharing published on 16 June contains (at least) one significant, misleading error. In a section titled ‘What’s happening elsewhere?’ it states:

‘On 6th May the European Parliament passed an amendment to the Telecoms Package which said:

"Article 8f(b) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened or for other legitimate reasons in which case the ruling may be subsequent".

At the time of writing it is not clear whether this amendment will stand, or whether it will be the subject of a conciliation process.’

The words that I have made blush red are not in the amendment (Amendment 138) passed by the Parliament.

As discussed in an earlier post, Amendment 138 is a singularly inconvenient thorn in the side of the UK government. If finally adopted, it would prevent the Government from requiring ISPs (at the ISPs’ expense) to cut off alleged illegal file-sharers without a prior judicial ruling – and, in my opinion, it would prevent ISPs from applying other ‘technical measures’ without a prior judicial ruling. But if the amendment said what the Consultation has it say, then it would present no such obstacle.

I asked Mike Klym, the enquiries contact for the Consultation, where these extra words had come from. He wrote: ‘At the time the consultation was drafted the position around Amendment 138 was very fluid and we acknowledged as much in the text of the consultation document. The text we included was a quote from information we had received at the time’. Which begs the question: who provided this information and why?

To get this wrong in the consultation document does not inspire confidence. Is this mere incompetence? Conspiracy theorists might argue that (a) it’s too much of a coincidence to have made this of all mistakes; (b) the text in the Consultation did not appear in any earlier version debated in Brussels, so its inclusion couldn’t have been a simple administrative error (unless of course it is the wording that the UK government is going to try to promote in the upcoming negotiations with the European Parliament); (c) the currently agreed wording was fixed six weeks before the Consultation was published and the Consultation had no difficulty reporting the decision of the French Constitutional Council on 10 June; (d) Amendment 138 is a political hot potato and should have been proofread carefully – the European Commission were debating it on 11 June and Lord Carter gave a statement about it to the Lords on 17 June; (e) even though UK law must ultimately comply with the final Telecoms Package and the UK Consultation doesn’t directly affect the outcome of the Telecoms Package debate, it could have an indirect effect. The mis-cited Amendment 138 gives the impression that the UK government’s proposals are palatable and widely accepted in Europe, which they are not. This helps to forward the Government’s case in shaping the Digital Economy Bill. If the UK government makes headway with its national legislation it can use any progress as a bargaining chip in the EU debate (as the French government did with their HADOPI law) since the two processes are evolving in parallel.

But conspiracy theories are for lunatics … aren't they?

Mike Klym’s response to my enquiry can be read on the 1709 Copyright Blog Google Group, which can be joined by subscribing on the right-hand side of this blog's web page.