Monday, 30 November 2009
Meanwhile the sixth and final issue of Sweet & Maxwell's bimonthly European Copyright and Design Reports for 2009 has now been published. Three cases are covered in this issue: one is the ECJ ruling in Case C-32/08 FEIA v Cul de Sac on the applicability of Community design law to commissioned works. The other two are both from national courts: the Gruppo C Art dispute from the Court of Turin, which asks the fascinating question as to whether an author's right subsists in artistic philosophy, and the Central Vista decision of a UK hearing officer on the test of who ir what constitutes an "informed person" for the purposes of that increasingly complex puzzle that calls itself design law.
Friday, 27 November 2009
The London Evening Standard's "Londoner's Diary" on Wednesday carried a story that the authorised biographer of Gracie Fields, perhaps the most popular British entertainer of the inter-war years, was unhappy that the BBC had, without acknowledgement, used his work as a source for a television dramatisation of part of her life featuring the actress Jane Horrocks (pictured as Gracie) - the programme, Gracie!, was apparently the most watched show ever on BBC4, with an audience of 1.4 million.
The biographer, David Bret, was reportedly unhappy that his work was used without attribution and was quoted by the Standard as saying:
"It even repeats a mistake contained in the book, talking about seven people having been killed in Arras. Irene Bevan, Gracie’s stepdaughter who authorised the book, ticked me off because that was wrong. In the bombing there may not have been any people who died — and at the most there were two. Harry Parr-Davies’s constipation in the film also shows that they have used my book as a source as no-one ever knew this until I revealed it — you just didn’t used to talk about these things."
I can understand why the author might have expected the courtesy of an acknowledgement, but if all that was being used were facts, it is hard to see how he has any right to one.
As regards the constipation (about which, fortunately, no further information is proffered), given that this was, apparently, true, Mr Bret cannot claim any rights to prevent other people referring to it. It is hard to see why there should be any difference if the fact about the bomb in Arras is (as asserted by Mr Bret) false - and it is hard to see what possible claim Mr Bret might have in respect of the copying of the false facts - unless any of this blog's readers have another idea??
"It even repeats a mistake contained in the book, talking about seven people having been killed in Arras. Irene Bevan, Gracie’s stepdaughter who authorised the book, ticked me off because that was wrong.
"In the bombing there may not have been any people who died — and at the most there were two. Harry Parr-Davies’s constipation in the film also shows that they have used my book as a source as no-one ever knew this until I revealed it — you just didn’t used to talk about these things."
Visual artists will be entitled to receive a five per cent share of the resale value of their works during their lifetimes and up to 70 years post mortem, in respect of commercial sales worth more than $1,000 (that's Australian dollars).
If it is accepted that visual artists deserve a share of resale revenue, it is difficult to see how that entitlement applies only in respect of the second and subsequent sales. If however there is no case to support payment of the royalty on the first sale, it is unclear why it should be payable subsequently. Readers' comments are welcome.
Thanks to Matthew Rimmer for supplying the link.
Wednesday, 25 November 2009
So what does this year's survey reveal? A good deal about the habits and practices of Apple iPhone users, for a start. Devotees of the iPhone are among the heaviest users of digital content, it appears, and are more willing than any other type of consumer to pay for a wide range of types of content. They are good customers for services like on-demand TV - not only on their phones (19% of iPhone users, compared to 3% of all those surveyed) but also on other devices, such as the main family telly (37% of iPhone users, compared to 26% of the survey base).
When asked about their future desire to use these services, iPhone users retained this extra enthusiasm. A remarkable 37% crave access on-demand TV via their mobile phones in the future, this being more than three times the figure for all respondents. iPhone users were even willing to make micropayments or pay subscriptions in order to secure access to a broad range of content. According to Matthew Phillips (a partner at Olswang but no relation of 1709 Blog team member Jeremy), the survey results show that the iPhone is changing consumer behaviour in some remarkable ways:
"The survey gives a fascinating insight into iPhone users' behaviour in terms of current use, intended future use and willingness to pay for a wide variety of content across a range of platforms and devices. Having discovered the habit and simplicity of paying for apps and other services on the iPhone, it would seem that iPhone owners are also more willing to pay for content of many types than the general online population. To maximise their revenue opportunities in the digital environment, companies need to build payment solutions into consumer propositions on other platforms that are as easy to use as that on the iPhone."The survey was conducted by Olswang together with YouGov, by means of an online poll of 1,013 UK adults and 536 13-17 year olds. Olswang also spoke to more than 25 executives from leading businesses which are affected by convergence. Other findings of the survey include the following:
* films represent the content for which consumers are most willing to make micropayments, with 58% of adults saying they would pay, to access online, a film just released in cinemas, 52% saying they'd pay for to access a film which won't be on DVD for at least two months and 40% saying they would pay to access a film which is already on DVD or pay-TV.* Among iPhone users, the corresponding figures leap up to 73%, 67% and 54% respectively.* Consumers are surprisingly willing to pay for some content which they currently get for free, such as catch-up of the last seven days of TV. 30% of the online population as a whole, and 41% of iPhone users, were willing to make micropayments or set up a subscription to pay for such services.* News for newspapers was relatively gloomy. Just 19% of adult respondents (and only 30% of iPhone users) showed any willingness to make micropayments or take out subscriptions for newspaper articles or columns.
"The digital ecology has a complex mix of free, ad-supported and paid-for content. As people look to access social media and consume music, films and TV shows on an increasing range of devices, it appears that they can be taught to pay, just so long as it is easy and painless and that they value what they receive in return. However, newspaper owners have an uphill struggle to convince consumers to pay."
• Most people find their current broadband speeds either often or always satisfactory for their current activities. Demand for super-fast broadband will only arise from the widespread adoption of the internet as a delivery mechanism to the main TV at home;
• Truly "convergent" behaviour – i.e. accessing the same content and services across a range of devices, is being driven by the increase in "connected devices" with internet or other network connectivity, even if for the businesses involved, that requires building different technical solutions for different platforms;
• The main TV screen, connected to the internet (as contemplated by Project Canvas) is most likely to succeed when people move further towards on-demand viewing. For the mass market, linear TV appears likely to remain the default behaviour. Ultimately, "connected televisions" where the network connectivity is built into the set itself, combined with the upgrade cycle for consumer electronics, might create the game-changing moment;
• Other than for a narrow core demographic, e-book readers are likely to find their market position challenged by the next generation of tablets and other next- generation devices;
• Traditional radio is not a habit that is being ingrained within the 13-17 age group, who would much rather use new streaming services and services where they can control what they listen to by setting up their own playlists;
• Price and ease of access are key factors for adoption of online alternatives to products such as DVDs;
• In the world of connected devices, where users increasingly rely on recommendations, the content of smaller players risks getting lost, in the absence of meaningful regulatory protection. Consumers are generally willing to share personal information to improve the quality of these recommendations;
• Businesses from a range of sectors identify Google's online dominence as an actual or potential threat to their businesses, but consumers' attitudes to Google are overwhelmingly positive. Businesses must devise strategies to retain control over the consumer relationship in the face of the power of the aggregator and/or the gatekeeper.
2007 Convergence Survey here
Tuesday, 24 November 2009
The Digital Economy Bill, delighting in the name HL Bill 1 [2009-10] was given its first reading on Thursday and published on Friday 21 November (no, I don't know how the Lords could read it before it was published either). The key URL for the next few months for those wanting to keep track of the Bill is here and, impressively, you can also keep up with an RSS feed and email updates to which you can subscribe.
No doubt the main heat in the Bill - and the thing that will determine whether it makes it into law before the forthcoming election next May (or thereabouts) - is going to be generated by the provisions of Clauses 4 to 16 which deal with enacting the graduated response (aka "three strikes") provisions in the Digital Britain report, as amended by subsequent Government prevarication. However, while copyright law might underpin these provisions, they operate to amend the Communications Act, not the Copyright, Designs & Patents Act 1988, so this blog is not going to dwell on them (at least, so long as you overlook Jeremy's post from yesterday!).
Instead, we will look at the Bill from a copyright purist's perspective. That means that there are only 4 clauses that are relevant:
- Clause 17, which is discussed further below
- Clause 42, dealing with orphan works and other extended licensing systems - this was expected to be included in the Bill, although, if anything, the powers to make life easier for copyright users are broader than expected.
- Clause 43, increasing the penalties for certain criminal copyright infringements to £50,000 per offence; and
- Clause 44, extending the public lending right scheme provisions of the CDPA to cover audio books and e-books. Is this the world's first legislative attempt to define an e-book, I wonder? [and in any event, at least we now have legislative authority to resolve, in the affirmative, the contested issue of whether the word e-book should contain a hyphen.] The Government thinks that an e-book is "a work, other than an audio-book [which is also defined], recorded in electronic form and consisting mainly of (or of any combination of) written or spoken words or still pictures." Do 1709's friends agree? Interesting that it is quite close to the Communications Act definition (section 405) of a television programme as "any programme (with or without sounds) which (a) is produced wholly or partly to be seen on television; and (b) consists of moving or still images or of legible text or of a combination of those things." So the main difference between a TV programme and an e-book is whether the images move!
But where is there any debate or discussion about Clause 17 - this is essentially open book for the Secretary of State at BIS (or whatever department is responsible for copyright policy from time to time) to re-write Part I of the CDPA "for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur."
The safeguards are, essentially, that (i) he/she can't introduce any new criminal provisions (ii) people affected have to be consulted; and (iii) the changes have to be set out in a Statutory Instrument that has to be approved by both Houses of Parliament - but that seems to be an end to any need for primary legislation to change copyright law. Ever. If the change can be said to be about reducing copyright infringement on the internet.
All sorts of interesting questions arise - could the Secretary of State abolish ALL fair dealing rules under this power? The powers are also not only to toughen the law - could the Secretary of State introduce sweeping new fair use rules - this would have the effect of reducing infringment of copyright on the internet, because if these uses are authorised, they are no longer be infringing!
What safeguards apply to make him/her ensure that they change the rules consistent with the UK's international obligations (WTO, Berne and Brussels)? How is the Berne three-step test applied? Is this an appropriate power for a minister to have in a modern democracy?
I can certainly see the advantage of being able to move fast to change the rules to keep up with the internet - and have even worked on some cases to which that principle might apply - but is this the most appropriate way to do that?
Monday, 23 November 2009
The 1709 Blog learned from Glyn Wintle earlier today that over 9,000 people had signed the Number 10 petition against the Digital Economy Bill in the last two days. He says:
"People are particularly upset about the three strikes provision but there are several bad things in the bill".Someone's definitely upset. By the time this blog was posted the tally of signatories had risen to 14,860. The closing date for signing up is 20 October 2010, which is four and a half months after the latest date on which the next General Election will be held.
"(i) Does Directive 2001/29/EC, more specifically article 5(2)(b) and (5), provide any bases for answering the question of who should be considered under national law the person entitled to receive the ‘fair compensation’ referred to in article 5(2)(b)? And, if so, which?Dirk Visser (an Advocaat with Klos Morel Vos & Schaap who represents the defendants in the underlying action, and who is also Professor of Intellectual Property Law at Leiden University) has kindly furnished an English translation of the entire judgment which you can read here.
(ii) If there is a direct purchase in which the buyer is domiciled in a Member State other than the one of the seller, does article 5(5) of the Directive then require the interpretion of national law in such a broad manner that, at least in one of the countries involved in the direct purchase, the ‘fair compensation’ referred to in article 5(2)(b) is owed by a commercially acting debtor?".
"There is little doubt however that the problems underlying these questions are of a rather fundamental nature regarding the future and desirability of (non-harmonized) private copying levies in a networked global economy".
Issue 4 of this year's scholarly Intellectual Property Quarterly, published by Sweet & Maxwell in association with the Intellectual Property Institute, features "The 'Three Step Test' in European Copyright Law: Problems and Solutions" by Jonathan Griffiths (Queen Mary), as well as "Copyright and the Fourth Estate: Does Copyright Support a Sustainable and Reliable Public Domain of News?" by University of New South Wales lawyers Kathy Bowrey and Catherine Bond.
Saturday, 21 November 2009
Risan’s failed defence was that the “re-recordings” of the sound recordings produced “entirely new and original sounds” and the claimants’ “copyright protection does not extend to the independent fixation of sounds other than those contained in their copyrighted records”. Specifically, BlueBeat argued that their sound recordings fell within the exception in Section 114(b) of the US Copyright Act which says that “The exclusive rights of the owner of a copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consist entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording…”. Reports said that EMI are ultimately seeking a permanent injunction and general damages to be determined or statutory damages for each infringed copyright (a maximum of £150,000 per infringement) and are also additionally seeking exemplary/punitive damages.
There was a strange twist in the tail of this case as Risan and Media Rights Technologies were (and are) well known commentators on illegal music downloading, seemingly from a position of support for the record industry over the last ten years, MRT offered consultancy to record labels on digital rights solutions and appears to have run an internet radio station, streaming music legally, without controversy for some time. There were also some rather strange press releases from Risan in the period surrounding the controversy with one statement saying “we worked with EMI directly, and the RIAA [Recording Industry Association of America] in secret agreements to create these works lawfully. We've been doing so for many, many years. We were about to provide the court with such evidence that EMI knew we had in our possession. We worked with these guys. The evidence wasn't presented because we haven't had a hearing, and the judge made a ruling".
And indeed a judge did make a ruling - Judge John F Walker has now indefinitely extended EMI's order based on evidence already submitted by both sides, issuing an preliminary injunction banning Bluebeat.com from selling or streaming EMI recordings (included allegedly reconstructed EMI recordings) without a licence. In his ruling, Judge Walter writes "Mr Risan fails to provide any details or evidence about the 'technological process' that defendants contend was used to create the 'new' recordings or adequately explain how the 'new' recordings differ in any meaningful way from plaintiffs' recordings".
Thursday, 19 November 2009
Skype, an internet telephony company domiciled in Luxembourg, claimed that proceedings which Joltid brought against it in the United States were in breach of a jurisdiction clause in a licence between them and sought an anti-suit injunction. According to that agreement, Skype had offered free downloads of Joltid's software so that users could enjoy the benefits of free phone calls. Under the agreement, Skype received the worldwide right to use a compiled object code form, although control of the source code was reserved to Joltid alone. Clause 19 read as follows:
"Governing Law and Jurisdiction. Any claim arising under or relating to this Agreement shall be governed by the internal substantive laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts".Joltid subsequently claimed that Skype had breached the licence agreement by dealing with its source code and purported to terminate the agreement. Skype, maintaining that it was still entitled to use the software, brought proceedings for a declaration that there was neither a breach by them nor a valid termination, since Joltid had supplied Skype with the source code rather than the object code. Joltid in turn sought declarations that the termination was valid, plus financial remedies, and injunctions with global effect.
After Skype commenced its proceedings, its owner agreed to sell a large part of it to investors who planned to operate Skype on much the same basis. Joltid claimed that this meant that there would be continued infringement of its copyright globally. Having registered its copyright in the source code in the United States, Joltid then brought proceedings there against Skype and its new owner, the investors and other parties. Skype was none too happy about this US action which, it alleged, was in breach of clause 19.
Mr Justice Lewison granted the injunctive relief sought. In his view,
* Whether a claim fell within an agreed jurisdiction clause was a matter of contractual interpretation, to be decided according to national law, and it had to be construed liberally in accordance with what rational businessmen would have intended.The 1709 Blog is relieved that the court gave effect to the intention of licensor and licensee as expressed in Clause 19. It can be frustrating for lawyers who draft clauses in plain English to watch as sundry jurisdictional issues are raised in court which appear to sink the fragile ship of contractual intent.
* The decision of the Court of Justice of the European Communities in Case C-281/02 Owusu v Jackson meant that discretionary considerations such as those relating to forum non conveniens did not apply to decisions of courts in EU Member States so as to stay their own proceedings.
* In Owusu there was no ruling as to whether a Member State court could, or should, grant an injunction to prevent proceedings being taken in another jurisdiction, and the proposition that the test was the same was not borne out by authority.
* Regarding the US proceedings, there was a valid contract which Joltid had breached.
* The exclusivity agreement was itself supported by other considerations: the partieshad chosen a neutral forum, the copyright licence was worldwide and a breach somewhere must have been contemplated; accordingly witnesses and documents could be located anywhere in the world. Thus the standard considerations on forum non conveniens should have little weight against the clause; otherwise it would be deprived of its intended effect.
Monday, 16 November 2009
"The increasing popularity of computer-generated virtual worlds on the internet where users can interact as “avatars” highlights a gap in the coverage of current copyright law. This gap arguably gives creators of certain virtual goods, such as virtual clothing, buildings, and hairstyles, significantly greater protection from infringement than that enjoyed by their real-world counterparts".Other features in this issue include an interview with Pirate Party founder Rikard Falkvinge and an intriguing summary by Barry Kramer and Glenn G. Pudelka (Edwards Angell Palmer & Dodge LLP) of the application of sovereign immunity in US copyright disputes.
* The Journal of Competition Law & Economics, a scholarly title published by Oxford University Press (click here for further JCLE details). This issue carries two major pieces of interest to copyright lawyers. The first is Randal C. Picker, "The Google Book Search Settlement: a new orphan-works monopoly?". According to the abstract, "
This paper considers the proposed settlement agreement between Google and the Authors Guild relating to Google Book Search (GBS). I focus on three issues that raise antitrust and competition policy concerns. First, the agreement calls for Google to act as agent for rightsholders in setting the price of online access to consumers. Google is tasked with developing a pricing algorithm that will maximize revenues for each of those works. Direct competition among rightsholders would push prices towards some measure of costs and would not be designed to maximize revenues. The consumer access pricing provision might very well fail a challenge under Section 1 of the Sherman Act. Second, and much more centrally to the settlement agreement, the opt-out class action will make it possible for Google to include orphan works in its book search service. Orphan works are works as to which the rightsholder cannot be identified or found. The opt-out class action is the vehicle for large-scale collective action by active rightsholders. Active rightsholders have little incentive to compete with themselves by granting multiple licenses of their works or of the orphan works. Plus under the terms of the settlement agreement, active rightsholders benefit directly from the revenues attributable to orphan works used in GBS. We can mitigate the market power that will otherwise arise through the settlement by expanding the number of rights licenses available under the settlement agreement. To do that, we should take the step of unbundling the orphan works deal from the overall settlement agreement and create a separate license to use those works. All of that will undoubtedly add more complexity to what is already a large piece of work, and it may make sense to push out the new licenses to the future. That would mean ensuring now that the court retains jurisdiction to do that and/or giving the new registry created in the settlement the power to do this sort of licensing. Third, there is a risk that approval by the court of the settlement could cause antitrust immunities to attach to the arrangements created by the settlement agreement. As it is highly unlikely that the fairness hearing will undertake a meaningful antitrust analysis of those arrangements, if the district court approves the settlement, the court should include a clause—call this a no Noerr clause—in the order approving the settlement providing that no antitrust immunities attach from the court's approval".The second, by Jerry A. Hausman and J., Gregory Sidak, is "Google and the Proper Antitrust Scrutiny of Orphan Books". The abstract states:
"We examine the consumer-welfare implications of Google's project to scan a large proportion of the world's books into digital form and to make these works accessible to consumers through Google Book Search (GBS). In response to a class action alleging copyright infringement, Google has agreed to a settlement with the plaintiffs, which include the Authors Guild and the Association of American Publishers. A federal district court must approve the settlement for it to take effect. Various individuals and organizations have advocated modification or rejection of the settlement, based in part on concerns regarding Google's claimed ability to exercise market power. The Antitrust Division has confirmed that it is investigating the settlement. We address concerns of Professor Randal Picker and others, especially concerns over the increased access to "orphan books," which are books that retain their copyright but for which the copyright holders are unknown or cannot be found. The increased accessibility of orphan books under GBS involves the creation of a new product, which entails large gains in consumer welfare. We consider it unlikely that Google could exercise market power over orphan books. We consider it remote that the static efficiency losses claimed by critics of the settlement could outweigh the consumer welfare gains from the creation of a valuable new service for expanding access to orphan books. We therefore conclude that neither antitrust intervention nor price regulation of access to orphan books under GBS would be justified on economic grounds".
Friday, 13 November 2009
"Whether or not you believe George Clinton was actually the first (along with two fellow songwriters) to pen the phrase in 1982’s “Atomic Dog” may be another story altogether. No matter what your feelings on the matter, we wouldn’t suggest using the phrase in your lead single anytime soon, or you will probably be paying Bridgeport Music a large sum of money. The suit was filed against Universal Music Group for their group, Public Announcement, using the phrase in their 1998 release “D.O.G. In Me” that a panel of federal judges ruled to be in violation of Clinton’s copyright ...".Have you noticed, by the way, how almost every legal decision is now deemed to be a landmark ruling?
Thursday, 12 November 2009
"Government announces change in copyright law for Third Sector and not-for-profit organisations
The Government today announced its response [37 pages, here] to the consultation on changes to exemptions for charitable, not-for-profit and other Third Sector organisations in relation to licences required for the public playing of sound recordings and broadcast music.
The changes involve repealing existing exemptions [Duly noted. Repeals mean finding Parliamentary time. If time is given over for these repeals, perhaps it will be possible to tag other bits of legislative copyright reform on to them]. This will simplify the law and help greater understanding of the rights of music users and those who own the copyright.
Following the consultation, Phonographic Performance Limited (PPL) the collecting society whose members this affects, have agreed a number of initiatives, working with PRS for Music to help Third Sector organisations that will require PPL licences when the repeals take effect next year. They aim to ensure a joined up approach from PPL and PRS for Music.
The key initiatives are:
• A new joint licensing scheme: this aims to simplify the process for a Third Sector organisation obtaining a licence for playing sound recordings and broadcast music. This will cut down on administration costs for both users and collecting societies. [This looks sensible and is a good advertisement for what can be done by talking and negotiating]
• A code of practice and independent complaints mechanism: The code will detail the service customers can expect. Where disagreements do occur, music users want an independent, quick and affordable complaints mechanism. With PRS for Music already having implemented this in July 2009, PPL will also develop a code of practice linked to an independent complaints reviewer. [It will be good to see what happens to the role of the Copyright Tribunal and to find out whether the independent complaints mechanism can be used as a model for other sectoral special cases]
• PPL consulting Third Sector organisations with the Community Sector Law Monitoring Group (CSLMG) to agree affordable tariffs" [If affordability is the only criterion, rights holders might have a rough ride here. Presumably there will be countervailing criteria such as fairness ...].
"In June 2009 the music and film industry filed a petition for a preliminary injunction requiring Telenor to block its customers’ access to The Pirate Bay. The Asker og Bærum District Court delivered its decision 6 November in favour of Telenor. The court concluded that Telenor did not unlawfully contribute to copyright infringements that take place by its customers’ use of The Pirate Bay. Accordingly, the court held that that there was no legal basis for ordering Telenor to block access to the website.
Telenor has repeatedly emphasized that it does not support infringements that take place through use of The Pirate Bay. On the contrary, Telenor co-operates closely with rights holders by establishing solutions for legal downloads and streaming of content. The case did not concern the question of whether customers of Telenor infringed copyright by using The Pirate Bay, but whether Telenor -- by granting access to The Pirate Bay -- committed an illegal act.
... In its assessment the court emphasized the unfortunate consequences of imposing blocking obligations on internet service providers. The decision is not yet legally in force. The music and film industry are considering appealing against the decision".Wiersholm's team of John S. Gulbrandsen and Rune Opdahl, who acted for Telenor in this action, has kindly provided the 1709 Blog with an English translation of the court's decision which you can read here.
Tuesday, 10 November 2009
Once installed, the modchips enabled counterfeit games to be played on the consoles. The running of the games had the following effect: during the playing of DVDs and CD-ROMs on which games were sold for use with the games consoles, data was transferred from the disk into the console's random access memory (RAM). At the point at which the game was played, the data in the RAM was overwritten by different data from the disk. The screen would display images of scenes, characters and objects which had been created by those responsible for the composition of the game.
Gilham was charged with offences arising out of his dealing with modchips. According to the prosecution, the modchips were devices, products or components which were primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures within the meaning of section 296ZB of the Copyright, Designs and Patents Act 1988 as amended. He was also charged with money-laundering offences relating to the proceeds of sale.
In order for the prosecution to prove an offence contrary to eg section 296ZB(c)(i), it had to prove that (i) the game was, or was included in, a copyright-protected literary work; (ii) the playing of a counterfeit DVD on a games console involved the copying of such a work; (iii) such copying was of the whole or a substantial part of the work; (iv) the games console and/or genuine DVDs (ie copies of the copyright work or works created by or with the licence of the owner of the copyright) included effective technological measures within the meaning of section 296ZF which were designed to protect those works and (v) Gilham, in the course of business, had sold or let for hire a device, product or component which was primarily designed, produced or adapted for the purpose of enabling or facilitating the technological measures.
Convicted, Gilham appealed. The matter before the Court of Appeal was whether the playing of a counterfeit DVD involved substantial copying of a copyright work. According to Gilham, the trial judge had wrongly directed the jury as to the meaning of 'substantial', arguing that a display on a screen could not be a substantial copy of a copyright work.
The Court of Appeal dismissed Gilham's appeal, holding as follows:
* 'Substantial' was a difficult word to pin down. It could mean 'not insubstantial' or 'of ample or considerable amount, quantity of dimensions'.
* The key issue was whether, in creating Gilham's work, substantial use had been made of the skill and labour which had gone into the creation of the copyright work and thus of those features which made it an original work.
* The quality or importance of what had been taken was much more important than the quantity: it depended therefore not just on the physical amount taken but on its substantial significance or importance to the copyright work, so that the quality or importance of the part was frequently more significant than the proportion which the borrowed part bore to the whole.
* The recitals to Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society emphasised the importance of protecting copyright and related rights in multimedia products such as computer games. Accordingly, if devices such as modchips could be sold with impunity, the United Kingdom would not be conferring the protection of those rights required by the Directive.
* It also accorded with common sense to say that a person who played a counterfeit DVD on his games console, and saw and heard the visions and sounds which were the subject of copyright, did make a copy of at least a substantial part of the game.
* In this case the game as a whole was not the sole subject of copyright; rather, the various drawings which resulted in the images shown on the screen or monitor were themselves artistic works protected by copyright. The images shown on the screen were copies, and substantial copies, of those works.
* Even if the contents of the RAM at any one time were not a substantial copy, the image displayed on screen was: what was shown on-screen when the pause button on a game console was pressed was a still image, a copy of an artistic work, generated by the digital data in the RAM. The fact that players did not normally pause the game was immaterial, since it was sufficient that a transient copy was made.
* On the basis of the foregoing, Gilham was rightly convicted of the offences charged under the Act and of the money laundering offences relating to the proceeds of his sales.
At paragraph 30 the Court added this comment:
" ... we repeat with emphasis what Jacob LJ said in Higgs about the trial of cases involving recondite issues of copyright law before a jury. Cases that, for example, involve determination of difficult questions whether a copy is of a substantial part of a copyright work, can and should be tried in the Chancery Division before specialist judges. They can be so tried much more efficiently in terms of cost and time than before a jury, and questions of law can if necessary be determined on appeal on the basis of clear findings of fact. In appropriate cases, the Court will grant injunctive relief, and a breach of an injunction will lead to punishment for contempt of court. If the facts proven against a defendant show that he has substantially profited from criminal conduct, proceedings for the civil recovery of the proceeds of his crimes may be brought under Part 5 of the Proceeds of Crime Act 2002".
Friday, 6 November 2009
"to waive the pro-account setup fee for you or any of your readers who sign up - it's a $50 value. There are now 3 levels of Motionbox service - Basic, Premium, and PRO".To explain further,
"Motionbox PRO is a comprehensive video hosting solution and includes archival storage, web-based editing, streaming and embedding, all in up to 1080p HD quality".Indeed, it looks very impressive. But the thing I like best about services such as this is the easy accessibility of the terms and conditions under which they're offered -- you're never more than a couple of mouse-clicks away from the literary output of a fellow lawyer. The Ts and Cs here are by no means unique, but they are a sobering proposition for would-be users to consider. Thus, under Grant of Rights the text reads:
Thursday, 5 November 2009
The facts were simple: Mr & Mrs Vickerman, who ran a video search engine website, provided 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. The police lawfully seized internet server equipment and associated documents, which was later released by the police into the possession of FACT for the purposes of the police investigation.
After the Crown Prosecution Service (CPS) 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. The Vickermans then sued for delivery up of the seized property and damages for conversion, while FACT began a private prosecution (which at the time of the trial was still proceeding) in respect of various copyright offences.
The police and FACT both argued 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 disagreed. In her view, (i) the power of the police 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; (ii) 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); (iii) 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.
"The position can be tested by reference to FACT. It is not suggested that there is not a public interest in the prevention of copyright infringement. The real concern is that commercial organisations have formed FACT to protect their own commercial interests and can use criminal prosecution as a club with which to protect those interests. That is clear from the way in which the matter was put in Scopelight's skeleton argument, which criticises FACT's failure to commence civil proceedings, having observed (at paragraph 20):
"It is difficult to see where the public interest lies in prosecuting such a difficult case in the criminal courts, clogging up a great deal of court time, simply to satisfy the commercial ends of various multinational companies."
Quite apart from the fact that the Copyright, Designs and Patents Act 1988 provides for criminal sanctions (meaning that Parliament has determined that criminal proceedings are appropriate in these cases), the premise reveals precisely the difficulty which holders of copyright are likely to face in pursuing cases through the police and the CPS. These cases are complex, specialist knowledge will inevitably be required to pursue them, and each case is likely to be difficult, time consuming and expensive ... In a time when allegations of terrorism and other extremely serious crime take up more and more time and involve ever increasing resources, it is inevitable (and appropriate) that the CPS will have to be selective. For my part, I see no reason why the CPS should not be entitled to conclude that it is unnecessary for them to embark on another prosecution while issues of law are being resolved ... If there is no merit in the prosecution, that will no doubt be revealed. A preparatory hearing under Part III of the Criminal Procedure and Investigations Act 1996 can, if it is thought appropriate, generate an early resolution of legal issues (particularly if determinative). If the power to prosecute is being used in bad faith, or inappropriately with the true aim of preventing Scopelight or the Vickermans from pursuing a legitimate commercial venture, as I have indicated, there are various mechanisms available to the court to prevent an abuse of its process.
What then should be the approach? ... , in my judgment, the phrase "anything which has been seized by a constable ... may be retained so long as is necessary in all the circumstances" requires the police to consider each case on its own individual facts, at each stage in the process of investigation and prosecution. If the CPS is prosecuting the case, whatever is required for forensic investigation or the prosecution will obviously be retained but, even then, consideration will have to be given to ensuring that no more than is necessary for the case (either to pursue it or to rebut a potential defence) is kept. If a prosecution is not to be pursued by the CPS but some other public or private body wishes to pursue a private prosecution, the relevant circumstances include (but are not limited to): the identity and motive of the potential prosecutor; the gravity of the allegation along with the reasoning behind the negative decision of the CPS and thus the extent to which, in this case, the public have a legitimate interest in the criminal prosecution of this conduct; the police view of the significance of what has been retained; and any material fact concerning the proposed defendant. All this falls to be considered so that a balanced decision can be reached upon whether retention is necessary "in all the circumstances". Such a decision would be capable of challenge on traditional public law grounds.
I add only this. Mr Purvis [for Scopelight] raised the spectre of the police having to search for anyone interested in pursuing a private prosecution before reaching a decision on retention. I reject that suggestion. In the normal course, it will be perfectly obvious whether anyone is interested in mounting a private prosecution in the event of an adverse CPS decision but there is no obligation on the part of the police to look for a candidate. A request to return property will obviously have to be dealt with timeously and I echo the suggestion of Carnwath LJ in Gough v Chief Constable of West Midlands Police  EWCA Civ 206 at para 44-5 (with which Potter LJ, as he then was, agreed) that if civil proceedings are commenced for return of the property, the police will have to give careful thought as to whether they are in practice able to defend the proceedings and whether section 22(1) enables them to retain the property "for a short period while they consider the position". He later suggested that, in normal circumstances, that should be "at or about the time for serving their defence"".
Wednesday, 4 November 2009
The questions concern the service offered by TV Vlaanderen in Belgium, an affiliate of the Dutch Canal Digitaal. The questions relate to the following two situations at hand which involve the following:
The SatCab Directive (Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission) requires some scrutiny for the purpose of addressing these questions. The relevant provisions are Article 1(2)(a-c):
1. A broadcasting organization sends an encrypted signal, or a signal through a fixed connection, to an independent satellite TV provider.
2. The provider of a satellite TV service has that signal (with the consent of the broadcasting organization) encrypted (once more or differently) elsewhere in Europe and linked up to a satellite by an affiliate.
3. The signal is then, with the consent of the broadcasting organization, linked down as part of a package of television channels to the subscribers of the satellite TV provider who can watch it by means of a decryption card.
• Does the satellite TV provider communicate to the public (and should therefore pay to Agicoa et al.) in the country where it offers the decryption cards (and therefore has its subscribers/viewers)? Or does only the affiliate (and/or broadcasting organization) communicate to the public in the country where the affiliate uplinks to the satellite?
1. A broadcasting organization links up in conformity with the instructions of an independent satellite TV provider an encrypted signal elsewhere in Europe to a satellite.
2. The signal is next (with the consent of the broadcasting organization) linked down as part of a package of television channels to the subscribers of the satellite TV provider who can watch it by means of a decrypting card.
• Does the satellite TV provider communicate to the public (and must therefore pay to Agicoa et al.) in the country where it provides the decrypting cards (and therefore has its subscribers/viewers)? Or does the broadcasting organization only communicate to the public in the country where it links up to the satellite?
Recital 14 to the SatCab Directive reads as follows:
(a) For the purpose of this Directive, 'communication to the public by satellite' means the act of introducing, under the control and responsibility of the broadcasting organization, the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth.
(b) The act of communication to the public by satellite occurs solely in the Member State where, under the control and responsibility of the broadcasting organization, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth.
(c) If the programme-carrying signals are encrypted, then there is communication to the public by satellite on condition that the means for decrypting the broadcast are provided to the public by the broadcasting organization or with its consent.
(14) Whereas the legal uncertainty regarding the rights to be acquired which impedes cross-border satellite broadcasting should be overcome by defining the notion of communication to the public by satellite at a Community level; whereas this definition should at the same time specify where the act of communication takes place; whereas such a definition is necessary to avoid the cumulative application of several national laws to one single act of broadcasting; whereas communication to the public by satellite occurs only when, and in the Member State where, the programme -carrying signals are introduced under the control and responsibility of the broadcasting organization into an uninterrupted chain of communication leading to the satellite and down towards the earth; whereas normal technical procedures relating to the programme-carrying signals should not be considered as interruptions to the chain of broadcasting;Dirk comments are as follows:
1. Article 1(2)(b) of the SatCab Directive is clear in my view: in this trajectory there is only one instant of communication to the public, i.e. in the place and moment of the uplink to the satellite. This is the system and purpose of the SatCab Directive.The full text (in Dutch) of the two more or less identical decisions (one against Agicoa and one against Sabam, the Belgian performing rights society) can be found here and here.
2. It necessarily concerns maximum harmonization: the Member States are not free to characterize the downlink and/or making available of decrypting cards also as communication to the public relevant to copyright law. After all, the intended legal certainty, as appears inter alia from recital 14, would not be achieved in that way.
3. The satellite TV provider therefore does not communicate to the public in my view (and so does not have to pay to Agicoa et al.) in the country where it offers the decryption cards (and therefore has its subscribers/viewers).
4. Only the affiliate or broadcasting organization communicate to the public in the country where the affiliate links up to the satellite and it should ensure all ights there, also for the other European countries where decrypting cards are made available to the public with the consent of the broadcasting organization.
Monday, 2 November 2009
According to the OUP web-blurb, this tome offers the following delightful prospects:
"* Wide-ranging coverage of the law regulating both traditional and new media, including newsgathering and broadcasting in those formats;
* ... giving in-depth analysis of how the various forms of intellectual property law interact with media law;
* Written by a team of academics and practitioners, combining rigorous academic discussion with analysis of genuine practice issues.
This book is a reference guide for practitioners to the major legal and regulatory issues in the field, but could also be used as a media law textbook for a course of academic study. Each chapter is written by an expert in the field. Throughout the book, the authors cover the relevant aspects of law governing the media in its many forms, with an emphasis on the practical operation of the law in this sector. It not only discusses the theoretical basis of legal concepts such as defamation, but also analyses the application of the law in the high paced environment of daily newspapers, the changing reality of what constitutes "broadcasting", including the regulation of distribution channels, and the regulation of material distributed via those channels, and examines the implications for defamation law of the online, borderless world. Amongst other things, the book also covers intellectual property issues in the media, with a specific emphasis on copyright works, trade marks and the exploitation of intellectual property via licensing. The work primarily discusses the identified themes in the context of UK and EU laws.
Readership: Practitioners (barristers and solicitors working in media law); in-house lawyers for international, national and local media organizations; judges, especially (but not restricted to) those who may be asked to determine matters involving the media; academics who research or teach media law; post-graduate/advanced students whose study involves issues relating to the media and undergraduate law and media students whose degree includes a course on media law".