See Emily Play

Left: Pink Floyd - authors

Under UK law the author of a musical work that is computer-generated is the person by whom the arrangments necessary for the creation of the work are undertaken (CDPA1988 s. 9 (3)). So far so simple. But a computer-generated work, the Act tell us, is one of which there is no human author (CDPA 1988 s.178).

David Cope, Dickerson Emeriti Professor at the University of California-Santa Cruz has spent decades working on programmes that "compose" music, reports Ars Technica. Says Cope, "as time progressed ..... I got this idea of data-driven programming. Instead of me writing all the rules for the program, I would create a database of music and have the computer analyze that data to attempt to produce something like it."

The Professor produced EMI (pronounced "Emmy"). "EMI was originally developed to analyze [Cope's] own musical style by feeding it past compositions in hopes of finding patterns—little musical signatures that only he does—and replicating them in new ways". This proved unpopular with musicians - or at least their agents: "A number of big-name classical performers expressed interest, but their agents wouldn't let them touch it with a ten-foot pole, citing industry controversy. They thought it would blemish the name of the performer......" Explore EMI's works as MP3 files here.

Below: A Ten Foot Pole



Now, Professor Cope, looks set to stir up fresh controversy with his new brain child "Emily Howell". Ars Technica reports: "Instead of feeding Emily a database of works that already exist, he gave her a collection of works that EMI had produced to get it going and, from there, she began working on her own musical style. Cope described Emily's style to be similar to modern composers, a "sort of an amalgam of all styles" and very contemporary. But what makes Emily interesting isn't just that; it's the fact that she can take audible feedback—musically or verbally—from an audience in order to modify her compositions."

Cope tells us that"The program produces something and I say yes or no, and it puts weights on various aspects in order to create that particular version. I've taught the program what my musical tastes are, but it's not music in the style of any of the styles—it's Emily's own style."

And Emily?: She is soon to release "her" first CD on Centaur Records. And for the record company, just think of the savings on stylists, photographers, make up artists, and the rest of the army of promotional primpers and crimpers that support many an artist.

11 Outlawed

Not really a copyright story but, Deutsche Welle reports that EU Consumer Affairs Commissioner, Meglena Kuneva, has announced that the EU is to draft new standards to limit the volume of mobile music players because of concerns over hearing loss or damage amongst the young. The aim is said to be a cap at 80 decibels as opposed to the current 100 Db. Fans of Spinal Tap are said to be disconsolate.

Victoria's new station in life

Some say that, with the advent of new technology, copyright has become a matter of purely academic interest. Is this perhaps why President Barack Obama has nominated the unquestionably academic Victoria A. Espinel as the first copyright czar for the United States? If so, cynics may be in for a surprise. According to Threat Level, Victoria's appointment has been applauded by both sides of the econo-political divide.

Congress created this new position last year as part of a legislative package of intellectual property reform. The formal title of the czar “Intellectual Property Enforcement Coordinator”, which suggests that she may not be equally popular with all sides of the copyright community if she gets the chance to fulfil her job description. According to Threat Level:

"The czar’s position is charged with overseeing government anti-piracy crackdowns and, among other things, training other countries about IP enforcement. The Pro-IP Act also called for the creation of an FBI piracy unit and allows for the forfeiture of equipment used in large pirating operations. The legislation was strongly backed by Hollywood, the recording industry, unions, manufacturers and the Chamber of Commerce".

Latest Copyright World

The rather slender September 2009 issue of Informa's 10-times-a-year Copyright World leads with an article on the theme of "carrot and stick", though the cover illustration, viewed at full size, appears to depict a carrot that has been hanged by the neck for some unspecified misdemeanour (unlawful file-sharing, perhaps?)

The cover story, it transpires, is a piece by Nigel Gilroy (Davenport Lyons) on how to best protect and monetise online rights. According to the abstract,

"Consumers and businesses around the world have undoubtedly enjoyed the benefits of the internet over recent years. However, these benefits have come at a price for rights owners, who find themselves in a constant battle with those who are happy to exploit intellectual property rights (IPRs) yet are unwilling to pay for the privilege".

Familiar story? Yes but, while the basic plot remains the same, each new court decision, lobby poturing and business plan provides a fresh new twist and provides a factual prism through which the 'where's the money?' and 'where's the enforcement?' issues can be reviewed/

Further details of Copyright World are available here.

GBS: c'est la guerre

The Google Book Settlement fairness hearing has been postponed from 7 October (order here). The next steps are presumably that the parties will redraft the Settlement in collaboration with the Department of Justice. Although this will take a while, the revised draft will bear the stamp of approval of the US govt, so it will be very persuasive, won't it?

Not to the French. Google was in court today in France over the same thing ... verdict expected before Christmas.

Those who think enough trees have been demolished in this cause should remember that it concerns almost everything every written (that's in copyright).

File-sharing: it's the economy, stupid.

Peter Mandelson took the opportunity of a trip to the BRIT School in Croydon today to defend his new position on file-sharing, saying that new laws alone are not enough, but that new laws and new business models together are needed for the creative industries to flourish, which is "vital for jobs and growth".

Accompanied by culture secretary Ben Bradshaw, he emphasising that illegal downloading is threat to the livelihoods of "talented hard-working people striving to get a foothold" in the creative industries.

He also seems to have tried to calm down some of the more uninformed debate on the topic by emphasising that he is only proposing temporary account suspension, as a last resort and in the most serious cases (although of course it remains unclear how the industry Codes of Conduct contemplated by the new legislation will determine which are the most serious cases).

Improved conditions for performers? Here comes another initiative ...

A press release issued by the World Intellectual Property Organization (WIPO) today sounds mildly encouraging for those unrecognised labourers who strut and fret their hour upon the stage and who were formerly heard no more, till mechanical reproduction and cinematography were invented, that is: actors and musicians. The press release goes as follows:

"WIPO Partners with Actors and Musicians to Boost Performers’ Rights

The World Intellectual Property Organization (WIPO) signed on September 23 an agreement with the International Federation of Musicians (FIM) and the International Federation of Actors (FIA) [if it's FIM and FIA, not IFM and IFA, you can be sure the civil lawyers of continental Europe have been busy ...] to support efforts to improve recognition of the significant contributions [The Department of Ambiguity asks whether 'significant' limits the totality of contributions, or suggests that they are significant by virtue of the fact they are contributions] made by actors and musicians around the world [and not elsewhere?].

The agreement, signed by WIPO Director General Francis Gurry, FIA President Agnete G. Haaland and FIM President John Smith, seeks, in particular, to help improve the status of performers in developing countries.

The agreement highlights the connection between IP and labor ["IP is a legal weapon with a worker at both ends of it"] and the special concerns of cultural workers from the viewpoint of development and cultural diversity [does this mean anything to anyone other than the person who wrote it?]. It provides for the organization of joint activities to strengthen performers’ networks and improve their economic and legal status [well, that can't be bad], as well as for raising awareness of the need to support performers. Actors and musicians are an essential element in the development of the creative potential of all economies, particularly in developing countries [Cf doctors, accountants, lawyers, night-club bouncers, career politicians and diplomats? Depends what you mean by 'essential']. It is further anticipated that the agreement will help to galvanize support for the protection of performers at international level [galvanize, initially, is to provide a superficial external surface to cover the substance that lies beneath ...].

Treaty negotiations on the protection of audiovisual performances were deadlocked in December 2000 because of a lack of agreement on the issue of transfer of rights from the performer to the producer [Some would churlishly argue that it is the producer who is "an essential element in the development of the creative potential of all economies", but this is not the place to raise this issue]. Since that time, WIPO has undertaken extensive international consultations to develop information materials on outstanding differences and to improve the flow of information and understanding of the situation of performers [It's good that information materials are being gathered: it's a tedious task but, in the long run, decisions based on fact are likely to be sound than those based on fashionable sentiment, political preference or economic dogma]. Recent consultations among Member States, held in Geneva, allowed for an open debate on this issue, which remains under consideration of the WIPO General Assembly.

FIA and FIM gather, respectively, unions of musicians and actors from all regions in the world. Together they represent hundreds of thousands of professional performers working both in the sound and audiovisual industry [They do indeed, and their task is hard. As much as they toil to better the plight of their members, technology persists in evolving in ways that make it easy to lose any gains they achieve in policy or legal terms]".

Watching sports is "socially important", rules judge

I spotted this case while travelling and forgot to finish writing it up. It's an action brought by the (English) Premier League in Israel to close down a pirate website that was showing live football matches free of charge. The league sought to force Israeli ISP Netvision and web portal Nana to reveal the identity of the Israeli owner of LiveFooty.org, a website which used servers based in that jurisdiction to stream live footage of Premier League matches for nothing.

Tel Aviv District Court judge Michal Agmon-Gonen held that this was an instance of "fair use", since no profit was made from the broadcasts and, under Israeli law, infringement of "broadcasting" copyright only applied in respect of cable or wireless transmission, but not streaming over the internet.

The site, added the judge, had important social aims: "watching sports events is socially important and should remain in the realm of mass entertainment, and not just be for those who can afford it", accepting that those who view online were not damaging the revenues of broadcasters but primarily "those of small means or who are not sufficiently interested in sport to pay".

Project Canvas: everything but the movies

Project Canvas is the answer to a couch-potato’s prayers – and to the prayers of any of us who have lost the noble art of fitting our lives around TV schedules. It’s the BBC-led joint venture that is setting out to provide internet-streamed on-demand TV programming to our TVs. So what are the copyright implications of this?

The BBC Trust’s consultation documents say content may be denied access if it breaks ‘UK laws’. Meaning? ‘It is proposed that any “editorial” policy set by the venture would be limited to those concerning issues of harm, offence, protection of minors and so on as required by the Audio Visual Media Services Directive which the Government and industry expect to be implemented in the UK by 19 December 2009.’

The Audiovisual Media Services Directive amends the Television Without Frontiers Directive so that it applies not just to TV broadcasters but to ‘media service providers’ – which catches Project Canvas. The Directive doesn’t say much about copyright, though it does cover the window for cinema exhibition of films: ‘Member States shall ensure that media service providers under their jurisdiction do not transmit cinematographic works outside periods agreed with the rights holders.’

But apart from not getting to see films (like Wolverine) early through internet leaks, the screen in your living room could – from a copyright perspective – end up looking very much like the one on your desk.

USA pulls punches in Google Book statement

The US government filed a statement on Friday recommending that the court rejects the Google Book Settlement in its current form. This looks like a ‘no’ but actually it is really a ‘yes’. The government, it makes clear, wants this digital resource to happen. The statement says that there have been three types of objection to the Settlement: violation of competition law, failure to fulfil the requirements for a class action and violation of copyright law. It then proceeds to focus on the first two issues, leaving copyright law to fend for itself. Is it signalling that copyright law should be ‘addressed’ but not be allowed to stand in the way?

The nearest the statement comes to exploring the copyright questions is when it discusses the concerns of foreign rightsholders:

The United States also believes progress can be made with respect to protecting the interests of foreign rightsholders. Google has already indicated that it will take steps to address the concerns of foreign rightsholders, though, to date, those actions do not appear to have addressed the concerns of the United States’ trading partners, which believe that an opt-out regime for foreign rightsholders is prohibited.

The statement goes on to say that the parties should consider an opt in, but doesn’t say that this is a must. In fact, where the statement proposes several solutions to satisfy the class action rules, all proposals include an opt-out element to a greater or lesser extent.

It is surprising that the US government should, of all things, make no attempt to face the fundamental constitutional question posed, for example, by Marybeth Peters of the Copyright Office that the Settlement could be encroaching on the legislative function of Congress. One thing is clear: by avoiding this issue, the government is refusing to block the Settlement on those grounds. Had the government accepted this argument, the Settlement would have been dead in the water. As it is, the specific demands the statement makes are relatively limited: Google should share this business opportunity with other companies and the class action rules need to be satisfied (for which the statement offers the parties a choice of proposals: some are far-reaching but others are relatively painless).

The fact is, as the statement makes abundantly clear, the United States government badly wants to see this digital resource become a reality: ‘The United States strongly supports a vibrant marketplace for the electronic distribution of copyrighted works, including in-print, out-of-print, and so-called “orphan” works.’ For the USA the Google Library Project is a business opportunity that is simply too good to miss.

Hadopi Part II - the return of three strikes ...

France's much debated internet piracy law, the so called loi Hadopi which introduces a ‘three strikes’ approach to persistent illegal downloaders and fileswappers and which would allow authorities to disconnect repeat infringers, has passed through the lower house of parliament in a revised form. The law, supported by President Sarkozy, was passed by 285 votes to 225, with the Socialists, Greens and other left-wing parties opposing it and the ruling UMP party voting in favour. The bill must still be approved by the French parliament and may still face another challenge in the constitutional court.

A previous version of the law, approved by parliament in June, was rejected by France's constitutional court who said that it wasn’t happy with proposed new body that would have had the power to cut Internet access ruling that the new body could only have the power to issue warnings and that any disconnections could only be ordered by a judge. Record companies, film producers and French artists have supported the bid to crack down on Internet piracy, which recording industry body SNEP estimates has destroyed 50 percent of the value of the French recorded music market in six years but consumer groups have objected strongly and critics, including the Socialists, say the law will be easily subverted by anyone determined to download content online. Under the new version of Hadopi, the new authority will investigate suspected cases of piracy and will have the power to issue two written warnings before a judge can order an Internet connection to be disconnected and a fine of up to 30,000 euros ($43,900). The law will also oblige anyone with a Wi-Fi connection to block non-authorized users from using the connection.

In the UK, the topic is equally divisive; After (Lord) Peter Mandelson suggested that the UK could adopt a similar three strikes approach, a sharp divide opened up between the record and film industries (who strongly supported the move) and the Featured Artists Coalition, the British Academy Of Songwriters, the Music Managers Forum and the Music Producers Guild who were far more worried about the effect of content owners suing fans. Nick Mason (Pink Floyd), Dave Rowntree (Blur), Billy Brag and Ed O'Brien (Radiohead) are spearheading the FAC's alternative approach which acknowledges that file sharing can damage record sales but can also stimulate the sale of records, downloads, merchandise and concert tickets and cross generations with Mason saying "the last thing we want to be doing is to go to war with our fanbase. Filesharing means a new generation of fans for us".

But now Lily Allen and Patrick Wolf have said they are not convinced by the FAC’s position and Allen, in particular, says that it's all well and good for FAC supporters like O'Brien and Mason to oppose tougher measures against net users who steal music because they've already made their money. Allen, writing on her MySpace blog said: "Mason, O'Brien and the Featured Artists Coalition say that file-sharing's '”like a sampler, like taping your mate's music, but mix tapes and recording from the radio are actually very different to the file sharing that happens today ... in digital land pirated tracks are as good quality as bought tracks, so there's not a need to buy for better quality. The Featured Artist Coalition also says file-sharing's fine because it 'means a new generation of fans for us'. This is great if you're a big artist at the back end of your career with loads of albums to flog to a new audience, but emerging artists don't have this luxury. Basically the FAC is saying 'we're alright, we've made it, so file-sharing's fine', which is just so unfair to new acts trying to make it in the industry". Allen went on to say "If this sounds like I'm siding with the record [company] bosses, I'm not. They've been naive and complacent about new technology - and they've spent all the money they've earned on their own fat salaries not industry development ... [and] I don't think what's out there [ie legitimate digital services] is perfect. It's stupid that kids can't buy anything on the internet without credit, forcing them to steal Mum's credit card or download illegally. It's this kind of thing that the record company bosses, artists, broadband providers and government should be sitting down and discussing. [But] file-sharing's not okay for British music. We need to find new ways to help consumers access and buy music legally, but saying file-sharing's fine is not helping anyone - and definitely not helping British music. I want to get people working together to use new digital opportunities to encourage new artists".

Patrick Wolf, who recently released an album funded by fan-to-band investment company Bandstocks, echoed Allen saying on his own MySpace blog: "I don't have a Liberace helicopters and limousine lifestyle. I'm currently deciding whether I spend the last of my earnings this year from touring on recording the string and choir section of my new album or on the rent until December - just an example of how a lot of other musicians have it". Saying "I dreamt as a teenager I would be able to buy a house one day, somewhere peaceful so that I could focus on writing and composing and perhaps set up a gorgeous studio with all the instruments I have collected to record and produce other bands. In the early 2000's it seemed likely, but file-sharing means that most musicians will probably just make ends meet their whole life now and most musicians dreams will have to be put aside for need for part time work and doing the odd gig and free download-only single made on Garageband".

Stuck in the middle of all of this is UK Music, the cross-sector music body headed up by ex Understone frontman, Radio Authority member and record label executive Feargal Sharkey who somehow needs to bring together the diverse views of it's membership – which includes labels, retailers, publishers, managers and artists. UK Music issued a new (somewhat vague) statement trying to demonstrate some unity on the issue saying "In context of an evolving licensed digital music market, we believe that government intervention is extremely welcome and that, subject to assessment, [media regulator] OfCom should be granted appropriate and proportionate powers as directed by the Secretary of State" although Sharkey added "Like all of society, like all creative businesses, the UK's commercial music industry reflects a wide spectrum of viewpoints and opinions. Discussions over recent weeks have drawn us much closer together and helped us to realise with greater certainty our shared vision of the future. We continue to welcome the government's support and intervention, both of which will be vital to ensure that those who create and invest in music have the opportunity to deliver their full potential and reap the benefits, rewards and promises of an ever-evolving digital marketplace".

http://www.reuters.com/article/lifestyleMolt/idUSTRE58E5DE20090915
CMU Daily 16 September 2009 http://www.thecmuwebsite.com/

Photo: Nick Cordes (@ Glastonbury 2009)

Veoh victory a blow to Viacom action?

Universal Music have lost a US legal challenge against Veoh, the YouTube rival who, Universal argued, were infringing copyrights by allowing users to upload content without the permission of content owners. Veoh’s defence was the now fairly familiar refrain that they would remove (‘take down’) any copyright infringing content if and when they were alerted to its presence on their system and that, by so doing, they were protected by the so called 'safe harbour' provisions in USA's Digital Millennium Copyright Act.

Now U.S. District Judge A. Howard Matz has granted Veoh's motion for summary judgment, and ruled that the company is protected against such claims saying

"On August 27, 2008, Magistrate Judge Howard R. Lloyd, sitting in the Northern District of California, wrote that the court does not find that the DMCA was intended to have Veoh shoulder the entire burden of policing third-party copyrights on its Web site (at the cost of losing its business if it cannot)”,

adding

"Rather, the issue is whether Veoh takes appropriate steps to deal with copyright infringement that takes place. The record presented demonstrates that, far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its Web site, and works diligently to keep unauthorized works off its Web site. In sum, Veoh has met its burden in establishing its entitlement to safe harbor for the alleged infringements here."

Universal has understandably vowed to appeal the ruling saying

"The ruling today is wrong because it runs counter to established precedent and legislative intent, and to the express language of the DMCA. Because of this and our commitment to protecting the rights of our artists and songwriters who deserve to be compensated for the use of their music, we will appeal this ruling immediately. The balance between copyright holders and technology that Congress sought in enacting the DMCA has been upended by this decision".

Apart from Universal’s setback, the decision might well be a problem for Viacom (owners of MTV) in their 2007 copyright action against YouTube on similar grounds. It is perhaps prudent to note that YouTube have been implementing measures to improve their ‘take down’ system and US commentators have noted that YouTube’s system, with ongoing filter system, is superior to Veoh’s system - which has now attracted safe harbour protection. YouTube has been developing new technical systems that automatically spots content previously banned by a content owner whilst it is being uploaded by a user, so YouTube can, in theory prevent such material ever going live and without receiving a specific take down notice from a content owner and these added ‘enhancements’ to YouTube’s system might well prove to be a major spanner in the works for Viacom’s $1 billion claim. Zahavah Levine, YouTube's chief counsel said.

"With the DMCA, Congress intended to foster online platforms like YouTube, which empower users, offer new distribution channels for content owners, and respect copyright".

Fred von Lohmann, senior attorney for the Electronic Frontier Foundation said "Veoh's policies are very similar to YouTube's," adding

"The judge gave Veoh a clean bill of health. I think the court in New York (where the Viacom-YouTube case is being heard) is going to take this ruling very seriously. The facts are very, very close".

But Viacom’s general counsel Michael Fricklas was not so sure saying

"Our case is in a different forum, not bound by the Veoh case ….we remain confident that we will prevail on the law and the facts. Today's decision contradicts the consensus that sites and copyright owners share the responsibility to use readily available tools to minimize copyright infringements".

http://news.cnet.com/8301-1023_3-10352183-93.html

What does (non)commercial mean? Some practical data

Thanks are due to Aurelia J. Schultz for letting me know about the publication by Creative Commons of a new study, Defining "Noncommercial:" A Survey of How the Online Population Defines "Noncommercial" Use. According to the Creative Commons press release,

"The Report details the results of a research study launched in September 2008 to explore differences between "commercial" and "noncommercial" uses of content found online, as those uses are understood by various communities in connection with a wide variety of content.

The study investigated understandings of noncommercial and use the the Creative Commons "NC" license term through empirical online surveys of content creators and users in the U.S., open access (non random) polls of global "Creative Commons Friends and Family," interviews with thought leaders, and focus group discussions with participants from around the world who create and use a wide variety of online content".

According to the excerpts from the Executive Summary,

"The empirical findings suggest that creators and users approach the question of noncommercial use similarly [Might this be because, while the functions of creator and user are different, so many people increasingly belong to both categories] and that overall, online U.S. creators and users are more alike than different in their understanding of noncommercial use. Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial [This suggests the need to recognise a third category rather than the traditional binary split between commercial and non-commercial]. Similarly, uses by for-profit companies are typically considered more commercial. Perceptions of the many use cases studied suggest that with the exception of uses that earn users money or involve advertising – at least until specific case scenarios are presented that disrupt those generalized views of commerciality – there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial [ie. there is agreement in theory, but not on specifics].
Uses that are more difficult to classify as either commercial or noncommercial also show greater (and often statistically significant) differences between creators and users. As a general rule, creators consider the uses studied to be more noncommercial (less commercial) than users. For example, uses by a not-for-profit organization are generally thought less commercial than uses by a for-profit organization, and even less so by creators than users. The one exception to this pattern is in relation to uses by individuals that are personal or private in nature. Here, it is users (not creators) who believe such uses are less commercial [There's a parallel here in terms of file-sharing, where users see their uses as private, therefore noncommercial, while rights owners see the same uses as lost sales, therefore commercial].
The most notable differences among subgroups within each sample of creators and users are between creators who make money from their works, and those who do not, and between users who make money from their uses of others’ works, and those who do not. In both cases, those who make money generally rate the uses studied less commercial than those who do not make money. The one exception is, again, with respect to personal or private uses by individuals: users who make money consider these uses more commercial than those who do not make money.
The results of the survey provide a starting point for future research [It's so refreshing to read this statement. So often, initial survey results are taken as immutable truths and are extrapolated in every imaginable direction. This blog welcomes the recognition that research of this sort is often best done by stepping-stones]. In the specific context of the Creative Commons licenses, the findings suggest some reasons for the ongoing success of Creative Commons NC licenses, rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses, and serve as a reminder to would-be users of the NC licenses to consider carefully the potential societal costs of a decision to restrict commercial use. They also highlight the need for caution when considering whether to modify the CC NC licenses in the course of a license versioning process or otherwise, so that expectations of those using NC licenses are preserved, not broken.".

The study home page provides access to the press release, the report itself, the survey appendix, and research data.

Animals as performers and composers: time for a new Treaty?

Love it or loathe it, you are bound to form a strong opinion of "The sounds of a cat on bass purr, a loon on lead vocal, two owls, wood stork and cuckoo (solo) are the sole musical instruments in this furry arrangement of the classic, Fur Elise, composed by Ludwig van Beethoven" [hat-tip to Howard Knopf, for the lead]. This is another example of the genre of musical works performed (if that be the word) by animals whose innocence extends beyond a lack of familiarity with copyright to a complete failure to deploy the umlaut.

"Jingle Bells" sung by dogs (a current version is available on YouTube here) has been around since the mid-50s, when it was recorded, with "Pat-a-Cake" on the flip side on a stiff old, satisfyingly breakable '78' by Carl Weismann and his Singing Dogs (this too was on YouTube but, I have ascertained, "This video has been removed due to terms of use violation", presumably copyright infringement by the dogs). Other classics such as "Oh! Suzanna", depicted above, once heard, are guaranteed to linger forever in the listener's memory.

Anyway, this left me thinking about the role played by animals in copyright. They don't generally feature in the world of original literary works (the output of monkeys chained to typewriters was always measured in terms of their typing the public-domain works of Shakespeare rather than works of modern authors, or indeed their own works), though works of art painted by primates, or by ducks with feet dipped in paint and then directed across a canvas, have been keenly debated from time to time.

So we must ask: in this age of animal rights, has the time come for WIPO to set up a Working Party to investigate whether the time is right to create a Standing Committee with a view to advising Council as to the desirability of proposing an instrument, the WIPO Animal Copyright and Performance Treaty, to stimulate investment and protect creativity in the relevant sector?

MyFreeCopyright

A friendly reader has sent the 1709 Blog this link to MyFreeCopyright. The site is clearly a handy place for pitching e-ads for IP services such as trade mark and patent filing, so it is presumably generating money. Do any readers of this blog have any experiences relating to MyFreeCopyright (especially if they relate to a litigated dispute)? If so, please share them with us.

Google – what does the writing on the wall say?

We knew that the US government has been investigating the competition-law implications of the Google Book Settlement and is due to file a document with the court by the end of next week. Now the Government is listening to views that appear to question the validity of the judicial process itself: should matters of this importance be decided in a district court?

Today the US House of Representatives Committee on the Judiciary held a hearing on ‘Competition and Commerce in Digital Books’. Eight statements were given – here. There’s one from Google and from the Authors Guild but perhaps the most striking comes from Marybeth Peters, Register of Copyrights. Her take on the Google Book Settlement is utterly damning.

Peters strongly objects to the different treatment of out-of-print and in-print books, saying that should be irrelevant to copyright protection, and argues that the Settlement could be a spanner in the works of the ongoing work to frame orphan works legislation. She is also concerned about the effects on international relations – the Settlement ‘has the capacity to create diplomatic stress for the United States’.

But beyond that, she challenges the whole nature of the proceedings and the court’s jurisdiction.

She describes how when the the parties in the original suit settled, the Copyright Office was troubled to find ‘the settlement was not really a settlement at all’ because of the powers it would give Google beyond the issues over which the parties originally litigated.

‘We are not experts on the proper scope of class action settlements, but we do wonder whether, as a constitutional matter, a class action settlement could decide issues that were not properly before the Court as part of the case and controversy presented during the litigation.’

She believes – as Microsoft has argued in their objection – that the settlement encroaches on the domain of Congress to frame copyright law.

‘As a matter of copyright policy, courts should be reluctant to create or endorse settlements that come so close to encroaching on the legislative function. Congress generally adopts compulsory licenses only reluctantly in the face of a failure of the marketplace, after open and public deliberations that involve all affected stakeholders, and after ensuring that they are appropriately tailored. Here, no factors have been demonstrated that would justify creating a system akin to a compulsory license for Google – and only Google – to digitize books for an indefinite period of time.’

Could the Government pull the plug on the whole thing and compel the district court to say that the Settlement has been found wanting?

VPL lose key Copyright Tribunal case

In a market where nineteen out of every twenty of your 'sales' are illegal and therefore not paid for, just how important is promotion? Well, according to the Copyright Tribunal, promotion still seems to have its place. CSC Media Group, the company that operates a number of UK TV music channels including Chart Show TV, Flava, The Vault and NME TV, has scored a notable victory at the Copyright Tribunal which will see the broadcaster's royalty obligations to collection society Video Performance Limited (VPL) considerably reduced.

VPL's ongoing deal for the public performance of music videos with CSC is based on the broadcaster paying the collection society a percentage of gross revenue for using promotional videos; the collecting society had been demanding a 20% cut of the revenues, a figure which CSC argued was "unreasonably high" putting forward the argument that their service provides promotional benefits to the record labels who own the material licensed by VPL. After negotiations failed to reach an agreement (with VPL maintaining the 20% share and CSC looking for a royalty of 8%) CSC took the issue to the Tribunal. CSC's legal team argued that the record companies received a promotional benefit from having their videos played on their channels and this benefit had not been taken into consideration by VPL before deciding on the revenue cut which it demanded.

It seems the Tribunal agreed with CSC and it set a royalty rate of 12.5% of gross revenue, more than the broadcaster was hoping to pay, but substantially less than the 20% VPL had been demanding. It is interesting that the Tribunal accepted CSC’s arguments, at least in part, saying that there was “uncontroverted evidence … that promotion remains a significant part” of the role of music videos. The record music industry is seen by many as being in terminal decline and that the very existence of record labels is almost certainly dependent on the industry finding new ways to monetise copyrights – and one clear way to do this is to develop income streams from a broadcast models – which is undermined by the very idea of a huge benefit in ‘promoting’ record sales which no longer exist. The record labels would surely argue that is becoming more and more difficult to accept ‘promotional benefit’ as a reason why broadcasters should get free use of copyrights - this is the same argument which has allowed US FM and AM radio stations to avoid paying for sound recording copyrights and this model is now finally under attack in the USA. Perhaps the principles behind the CSC decision will be ready for the Copyright Tribunal to revisit in the not too distant future.

http://www.musicweek.com/story.asp?sectioncode=1&storycode=1038624&c=1
http://www.billboard.biz/bbbiz/content_display/industry/e3i087771e1f66603648b826b4250e87d2d

Shooting the Guardian?

Travelling last week, I missed the self-inflicted news (reported here by the Guardian) that more than 30 photographers held a protest outside that newspaper's central London offices. The photographers were objecting to the decision of the paper to amend its standard terms for commissioned photography by giving itself the right to free re-use of commissioned pictures. Some 850 photojournalists have signed a petition against the move, according to the National Union of Journalists.

Guardian cartoonist Stephen Bell, of the paper's NUJ chapel committee, told protesters:

"Comment may be free, but content is not free. This move is theft of people's work and their right to make a living from it"

-- a statement which will no doubt upset many legal purists by equating the re-use by a party commissioning the taking of a photo with 'theft'. A Guardian spokeswoman is then quoted as saying:

"This change has been introduced at a time when we are cutting back on a wide range of expenditure to ensure [the Guardian Newspaper Group] has a sustainable cost base for the future and is therefore able to continue to continue to invest in photojournalism. It means that we can reuse a photo that we paid to have taken, from 1 September, without paying the photographer again. Photographers retain copyright, and after a 60-day exclusivity period, the photographer is free to resell the picture. Our terms and conditions for freelance photographers remain among the best in the industry."

In the old, pre-digital days this would have generated witty comments about one or other side in the dispute having a 'negative' attitude -- but who remembers the old negatives or the mysteries of the dark room in this day and age?

The Talent Breaks Ranks and Fights for the Audience

A Report received in June by the UK's Strategic Advisory Board for Intellectual Property (SABIP), Attitudes and Behaviours of Digital Consumers in the On-line World, turned up the juicy and instructive fact that consumers would be happy to pay for content if they believed the income was benefitting the creative community. This powerful aid to the arguments of creators who, not unnaturally, would like to be paid for digital use of their work, did not immediately prompt a shift in the public policy position of the creative community. Until now. At last, music creators have taken a public stand independent of their contractual partners (or should that be masters?).

Last week the UK's Featured Artists' Coalition (FAC) released a joint statement with the British Academy of Songwriters Composers and Authors (BASCA) and the Music Producers' Guild (MPG). The statement argues that the government's new position on P2P and the disconnection for warned repeat offenders would not result in a music industry that is "vibrant, functional, fair and competitive".

The statement continues: "As a result, we believe that the specific questions asked by the consultation [see below] are not only unanswerable, but indicate a mindset so far removed from that of the general public and music consumer that it seems an extraordinarily negative document." Hooray! It's all about the audience, stupid. Or in the words of Benjamin Zander, conductor of the Boston Philharmonic, "if nobody wants to listen to your music there is nothing you can do to stop them". Is this the dawn of the talent driving the debate? The solution is not to be found by trying to shoehorn real world business models into the metaverse. Creators have a chance to harness consumers' sympathy and apply the huge repository of their creative imaginations to workable future digi-business models.

Music Week, the UK music industry's organ, reported support from UK Music: "UK Music is pleased that Government is proposing accelerated and proportionate action to meet their stated ambition of reducing illegal file-sharing by 70-80% within 2-3 years". FAC, BASCA and the MPG are members of UK Music. UK Music is a coalition, "an umbrella organisation representing the collective interests of the UK’s commercial music industry, from artists, musicians, songwriters and composers, to major and independent record labels, managers, music publishers, studio producers and collecting societies." Of course it helps if the industry speaks with one voice - it is less confusing for parliamentarians, civil servants, the public and the press. But contractually inherent in a competitive industry is conflict of interest - so it was only a matter of time before the coalition stumbled up against an issue (or should that be THE issue) that could fracture solidarity. Record companies and publishers need recording artists and writers more than the artists and writers need the record companies and publishers (something the writer, fruitlessly, tried to point out to the talent in the mid-90s when the coalition was formed).

Estimates for the damage done to the music industry by file-sharing (see Consultation on Legislation to Addess Illicit P2P File-Sharing) were approximately £180 million per year (£152 million for film and tv). The plucky triumvirate of talent assert this estimate is based upon the premise that a P2Ptrack results in a lost sale. "..... the estimate is no more than "'lobbyists' speak' [as] it has little support from logic and no economist would seek to weave such a number into a metric aimed at quantifying a 'value gap' for the industries challenged by P2P....." The joint statement notes that the consultation following Lord Carter's Digital Britain Report had thrown up an estimate of £56m-£85m as costs for monitoring illegal file-sharing and labelled such an estimate a "gross underestimate". "Looking backward for insight into how we adapt mass-production product models to the digital age of access and services has been a major obstacle to progress over the past decade................We must begin to look forward to business models that we cannot even imagine yet."

"As creators' representatives, we are willing to be partners with government in exploring and navigating the opportunities and challenges brought by digital technologies. What we will not be a party to is any system that alienates our members' existing audience and potential new audiences"

The Back Story:

Readers will recall that the UK's Business Secretary, the gorgeous, pouting Peter Mandelson, returned from his summer idyll recently, and on August 26th publicly embraced disconnection for illegal file sharers, presumably having overlooked the fact that this had not been the UK government's position in the Digital Britain Report published in June this year.

Baron Mandelson of Foy, First Secretary of State (an honorific office) and Lord President of the Council was accused by Tom Watson MP (who until recently had overseen the goverment's internet policy) of "unravel[ling] Stephen Carter's settlement" and that this new position would be "pander[ing] to rightsholders who have failed to find new business models for the digital age". (He makes it sound so simple, this new business model malarky).

In response Mandelson burst into print in The Times on August 29th, saying "we would consider legislation that includes temporary account suspension only if it was seen as the sanction of last resort. It would only follow a well-established series of warnings and clear evidence that they were taking action to defend their own rights. This will not turn your ISP into Big Brother. The process is driven by rights holders reporting activity on public file-sharing websites rather than service providers monitoring individuals’ internet traffic."

Resiling, my Lord?

The "Mandelson position" was welcomed by the record industry with BPI CEO Geoff Taylor supporting the move (shift?), saying:"Digital piracy is a serious problem and a real threat to the UK’s creative industries. Today is a step forward that should help the legal digital market to grow for consumers. The solution to the piracy problem must be effective, proportionate and dissuasive. We look forward to working with Government and ISPs on the details of these proposals to ensure these objectives are met.”

Music Tank, the University of Westminster's business development network carries a summary here and an interview on the subject with Jon Webster, the Music Managers' Forum Chairman, here.

The Featured Artists' Coalition's manifesto for the digital age is here.

PRS and You Tube Kiss and Make Up

According to Guardian reports the UK's PRS dispute with You Tube about fees for songwriters and composers' works on YouTube has been settled - and licence fees will be backdated to January. However The Guardian hints darkly about the fact that the deal is secret, covered by a non-disclosure agreement. PRS's press release can be found here but there is not a scintilla of an indication that the terms of the deal might be confidential.

Jürgen Schadeberg: Apartheid negatives

Photographer Jürgen Schadeberg has secured an injunction against a picture agency regarding the online publication of more than 200 previously unpublished photographs.

What is particularly disturbing about this story is that in 1964, Schadeberg - who had chronicled Apartheid during the 1950s - 'needed to leave the negatives behind in South Africa, since he was observed by the Apartheid's secret police. At that time he could only leave the country with hand baggage... Nobody knows how the agency came into the possession of the photographs.' (Cloud Computing Journal)

ACS launch multiple claims against file-sharers

ACS Law is on the point of suing a slew of alleged illegal file-sharers, according to TorrentFreak. ACS has apparently replaced Davenport Lyons in this niche market of mail-merge litigation. Which? had complained to the SRA about the 'bullying' letters DL was sending.

When the rabbis dance ...

While this weblog normally avoids religious issues, this one is too good to 'pass over'. Two of Israel's most prominent rabbis, HaRav Yosef Sholom Eliyashiv and HaRav Ovadiya Yosef, have ruled that wedding hall owners in that country's religious communities must pay copyright royalties as required by law. Those who fail to do so, say the rabbis, are transgressing the laws of 'gezel' (this word, often translated as 'theft', is a substantially wider concept).

Despite copyright laws, hall owners in the orthodox sector have refused to pay ACUM –- the local collecting society for musicians and other copyright holders -– claiming there is no ruling under Jewish law which requires them to pay to play music at events such as weddings.

While HaRav Eliyashiv and HaRav Yosef agree as to the end to be achieved, they disagree with regard to the reasoning by which their conclusion is reached. According to HaRav Eliyashiv,

"Since the hall owner receives a licence to open the facility he is obligated to adhere to all legal requirements, and if the law requires [paying royalties], he has to meet that obligation. If not his licence is not a licence".

HaRav Yosef responded to the question from a different angle, applying the principle of Dina d’malchuta dina (the statute law of a secular state becomes part of Jewish law if it does not contradict any of the latter's fundamental principles).

Monday in Brussels : The Pirate Party and Google come to town

Tomorrow, Monday, Brussels will be buzzing with copyright-related debate.

The Pirate Party and the Green Party are joining forces to discuss the Telecoms Package (previous 1709 blog posts here). Live streaming of the seminar here. Further info on iptegrity here.

Meanwhile, the EU Google Book Settlement hearing will be taking place. Topics for discussion are here. Speakers here. (No live streaming.)

Some people will miss both events, right.

Google Book Settlement extended objections/amicus briefs deadline

Yesterday, because of issues with the court's electronic filing system, the court responsible for the Google Book Settlement extended the deadline to file objections and amicus briefs from tomorrow, 4 September, until 10 am Eastern Time on 8 September. The Extended Opt-Out Deadline remains 4 September.

Court order here.

Korea: copyright against censorship

Just as South Korea prepares to spend more on protecting IP, copyright law appears to have become a thorn in the side of the government’s historical revisionism.

The authors of A Modern and Contemporary History of Korea have successfully sued their publisher for copyright infringement for publishing an altered version of the work. The publisher had been repeatedly ordered to revise ‘leftist’ sections by the Ministry of Education, Science and Technology under the Elementary and Middle School Education Law. The Hankyoreh reports that ‘the court said that while this law could be used to order a suspension of publication if an alteration order is violated, it cannot be used to limit the right to the integrity of the work by the publisher’. The alterations have been the subject of a campaign by history teachers.

It’s good to see that while copyright law has sometimes been used as an instrument of censorship, it can also have the capacity to prevent state meddling.