Mysteries of outer space

The IPO website carries news of these Article 234 references: C-431/09 and C-432/09 (N.V. Airfield, B.V. Canal Digitaal v C.V.B.A. Belgische Vereniging van Auteurs, Componisten en Uitgevers):

"1. Does 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 preclude the requirement that a supplier of digital satellite television must obtain the consent of the copyright holders in the case where a broadcasting organisation transmits its programme-carrying signals, either by a fixed link or by an encrypted satellite signal, to a supplier of digital satellite television which is independent of the broadcasting organisation, and that supplier has those signals encrypted and beamed to a satellite by a company associated with it, after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television programmes and therefore bundled, to the satellite television supplier’s subscribers, who are able to view the programmes simultaneously and unaltered by means of a decryption card or smart card provided by the satellite television supplier?
2. Does Directive 93/83 preclude the requirement that a supplier of digital satellite television must obtain the consent of the copyright holders in the case where a broadcasting organisation transmits its programme-carrying signals to a satellite in accordance with the instructions of a digital television supplier which is independent of the broadcasting organisation, after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television programmes and therefore bundled, to the satellite television supplier’s subscribers, who are able to view the programmes simultaneously and unaltered by means of a decryption card or smart card provided by the satellite television supplier?"

The queries arise in the context of a claim by collecting societies against TV Vlaanderen over satellite broadcasts. As a newsletter of Van Bael & Bellis explains:

“At first instance, TV Vlaanderen was ordered to compensate the right holders for the public communication of their works. On appeal TV Vlaanderen argued that the services which it provides form an integral part of the original satellite broadcasting by the broadcasting companies. Since the broadcasting companies acquired the rights to broadcast the programmes by satellite in their countries of origin, TV Vlaanderen maintained that it cannot be held to pay a second time for the same communication. Sabam and Agicoa contested TV Vlaanderen’s position arguing that, based on Article 11bis of the Berne Convention of 24 July 1971, two consecutive communications to the public are involved.”

Google face Chinese author's claim

Chinese novelist Mian Mian, who is suing Google in China for scanning and publishing part of her novel “Acid Lover”, has been told by a Bejing court that both she and Google must hold talks on a settlement and then report back to the court. The Shanghai-based author whose books about love affairs, drug abuse and suicide are routinely banned in China, is suing Google for a public apology and 60,000 yuan (about 6,000 Euros). Mian Mian's lawyer Sun Jingwei has acknowledged that Google had already removed Acid Lover from its library and has said that the author is open to negotiating a settlement with the company, but that the author's requirement of an apology is non-negotiable. Sun accepted Acid Lover was never published by Google in its entirety, but argued that because the company profits from publishing excerpts, it is an infringement to scan and use contents of the book without prior permission from the author saying "Google scanned and uploaded the books first and then turned to authors for settlement" adding "This is not reasonable. You should settle the issue first and then scan and upload the books, not committing infringement first.

The China Written Works Copyright Society is also looking for compensation for other Chinese authors whose works are included in Google’s online project and Mian’s lawsuit comes just two weeks after a Paris court ordered Google to stop digitising French books without the publisher's approval. The search engine was also told to pay 300,000 euros (£268,000) in damages and interest to French company La Martiniere, which had sued for copyright infringement for scanning book excerpts (see Hugo Cox’s post on this blog on December 18th) as part of the Google Books project. In the US, Google has agreed a $125m settlement with authors and publishers - although the settlement is still waiting final court approval.

http://news.bbc.co.uk/1/hi/business/8433345.stm

isoHunt inducement liability

A Californian court has granted summary judgment against isoHunt, one of the world’s biggest torrent-indexing sites. The court established that isoHunt has inducement liability for copyright infringement. Evidence of inducement includes box office hit movie lists, technical assistance for infringing users, technical features promoting infringement and a business model depending on infringement.

Report of LA Times here.

Welcome to the online world ... Ben

Pray indulge me readers, for I have been infringed! Now it is a little known fact that some thirty odd years ago I was vocalist with a moderately successful punk rock band called The Ignerents. The band, formed in Whitstable, Kent, in 1977, played quite a few gigs and released one single on Ace Records in 1979 (Radio Interference b/w Wrong Place Wrong Time) which was then re-released on the band’s own label. The band also recorded two tracks for a local compilation album, the now quite coveted and valuable vinyl offering that is ‘First Offenders’ (and which features amongst the other artists one your drummer called Korda Marshall, more recently head of Warner Music in the UK and now back at the helm of Infectious Records). But I digress. The band lasted until 1981 when University and more importantly the tragic death of our drummer, Stan, curtailed the band and prompted a second vinyl release, Platform 5 b/w The Trouble With You, this time as The Beekeepers. There was then a long period of complete hibernation until the second tragic death in the band, that of bassist Chris Harris, in 1994, which prompted myself and the other surviving member, Steve Harris, now a Michelin starred chef at the Sportsman in Whitstable, to compile a full album from our archive of reel to reel tapes (and even cassettes) and release this as a CD in 1997, primarily as a tribute to Chris.

Both on my Music Law Updates blog and on the 1709 Copyright Blog, I have written acres and acres of text on both legal and illegal services and the varied musical offerings in the digital realm: from Nokia’s novel Comes With Music to Radiohead’s ‘In Rainbows’ pay what you like offering to the rise of Spotify to the legalisation of Napster and to the dominance of iTunes I have blogged away. And from MGM’s famous case against Grokster to the numerous actions against Kazaa to the Recording Industry Association of America’s ill advised assault on their own customers through the widely publicised cases against file sharers Jammie Thomas-Rasset and Joel Tenenbaum to the ongoing ructions with The Pirate Bay and to the activities of ever present download sites like AllofMP3.com - friends, Romans, countrymen, I have blogged them all!

But my point is this - it’s all very well writing about this stuff, but I can’t say it ever really affected me personally, although the recent Google Books settlement debate got me interested in the effect on my more recent creative activities! Then a few weeks ago I got an email out of the blue from my cousin in Australia asking about ‘the band’ and just as a matter of interest I did a quick Google search. I had no idea what I might find – or any idea that our first seven inch vinyl single in original picture cover is now on sale for £35 (yes, thirty five fantastic pounds sterling!) at Netsoundmusic.com. Nor did I know that you can find the artwork for our single on boredteenagers.co.uk, an amazing website which aims to document all of the bands involved in the punk, powerpop, mod and new wave explosion of the late 70s and early 80s, no mean feat I should add! Or that Last FM had some of our music available for streaming (205 plays so far) and that I could create my own ‘Ignerents’ radio station . Or that in July 2008 on the ‘Always Searching For Music’ website there was a long discussion about our original 1979 vinyl release with some clearly very keen music fans offering up ‘ripped’ digital files to each other. You know what? I was flattered and rather pleased. But then I discovered that quite a few sites were offering ‘my’ music for free. Oh, thank you mp3cream.com and esm3.com for the quick thrill of knowing you have a 2.41MB file available to all. And then I found some sites SELLING our music …. and that is when it hits home and you suddenly say to yourself - HANG ON – THAT’S MY MUSIC AND I AM NOT GETTING PAID! And then you begin to think about things far far more carefully.

This is a legal blog, so I should throw in some salient facts here. When we started the band we almost signed to Step Forward Records (in 1979) but this never happened, so we own almost all of our sound recording masters, and as we wrote all our own songs, the songwriters own those copyrights and my own company administers the music publishing on all of these except the two tracks on the first single. We also created the artwork on the singles so that’s ours too! Now my publishing company is a member of PRS for Music but I have to say that our label, Rundown Records, is not a PPL member – and never have been – so when it comes to collection societies we are only half covered, although I should say that on music publishing I have yet to see a penny from any online activity (Lady Gaga’s recent complaint over a lack of income from online use springs to mind here) which is a tad annoying.

More interestingly no doubt I am now going through the same thought process as many members of the Featured Artists Coalition in the UK went through recently when the ‘liberal’ front of Radiohead and Pink Floyd came up against the ‘resistance’ of Lily Allen, who made it quite clear that she needed to be paid for her recorded music (something the record labels have been saying for some time!). Now I don’t ‘need’ to be paid for my music and nor do I consider it (in any way!) a pension fund, but it is out there on sale, I am not getting paid and others are! So that’s wrong, isn’t it? Hmmmm, a tricky one now. Apart from making the CD available in 1997, and a couple of more recent licences (late nineties) of individual tracks to two German punk rock compilation albums, was I ever going to make the music legally available on the web? Was I heck! I am all in favour of the ‘long tail’ of copyright, but as I have never uploaded a music file of any sort anywhere – or downloaded one for that matter, it wasn’t going to happen was it! And I guess if I was going to put the music out there, I would probably have made some of it available for free anyway, with Steve’s permission.

And should I really worry at all? Well clearly at this scale, no, not really. But even so, it does get you thinking and suddenly you see beyond the immediate problems of ‘piracy’ to the new opportunities that come with the web. First of all, now I know we have fans, I have my new blog (I know you are desperate to know, it is www.theignerents.blogspot.com). I then began to think of what other opportunities there are beyond those that just pander to my ego. Well with the Blog, I will soon have set up a mechanism for collecting fan data – and databases are king now (I think!). And if we were still a band we could try and get a gig at the annual Rebellion Festival in Blackpool in March, the highlight of the punk calendar in the UK – and maybe try for a European punk festival or two too! And we could definitely try and sell those last few boxes of CDs I have somewhere – fans in Japan and Germany seem increasingly keen on Ignerents’ collectibles, or I could empty out my cupboards and try and find those last few copies of our first single I have – at £35 a pop that would pay for quite a few nice winter warmers! And what if I autograph them? Hang on, will the value go down? And maybe some PRS monies will come through - eventually I imagine they will; and hang on, and what about that Glastonbury Festival thingy – I work there – I know the main booker! So many possibilities, so little time!

It’s a funny old thing the internet: yes it has destroyed a number of traditional business models in the music industry, and maybe “Ignerence was bliss” for me until a few weeks ago - but the internet has created many many other new and interesting opportunities. The clever bands of the future will be the ones who can seize these opportunities and move quickly and nimbly from technology to technology and embrace and react to ever changing patterns in consumer behaviour. But that is for the quick and the nimble – and where that leaves the traditional content industries remains to be seen.

See http://www.boredteenagers.co.uk/ignerents.htm and http://www.last.fm/music/Ignerents

Groundless copyright threats

Just as the human mind is changeable and inconsistent, so intellectual property law is not without anomalies. For example, while copyright protects even the most banal 2-D images, the Lucasfilm judgment sets the bar for 3-D creations at a daunting height. Another anomaly that has risen to the surface in recent days is the penalty for groundless threats of infringement proceedings. There are stiff penalties for most intellectual property rights – patents, trade marks, registered and unregistered designs – but none for copyright.

Lord Lucas is seeking to set this right by proposing a new section in the Copyright, Designs and Patents Act 1988. The noble lord, as previously noted, is eager to see some checks and balances in the Digital Economy Bill to rein in heavy-handed right owners, especially top-shelf copyright proprietors. The proposed section is:

"169A. Remedy for groundless threats of infringement proceedings

(1) Where a person threatens another person with proceedings for infringement of copyright, a person aggrieved by the threats may bring an action against him claiming—
(a) a declaration to the effect that the threats are unjustifiable;
(b) an injunction against the continuance of the threats;
(c) damages in respect of any loss which he has sustained by the threats.
(2) If the claimant proves that the threats were made and that he is a person aggrieved by them, he is entitled to the relief claimed unless the defendant shows that the acts in respect of which proceedings were threatened did constitute, or if done would have constituted, an infringement of the copyright concerned.
(3) Mere notification that work is protected by copyright does not constitute a threat of proceedings for the purposes of this section.
(4) A copyright infringement report within the meaning of section 124A(3) of the Communications Act 2003, if notified to a subscriber under section 124A(4) of the Communications Act 2003, does constitute a threat of proceedings for the purposes of this section."

Do readers of this blog think there is good reason for this proposal...or is it groundless?

Licences for links: Meltwater and the NLA

An interested and concerned reader has forwarded to me an email from Meltwater, a Norwegian-based business which now provides news and analysis services in more than 110 countries. The email reads as follows:

"Dear Meltwater Customer,

You may or may not be aware that the Newspaper Licensing Agency (NLA) recently decided to extend its hardcopy licensing regime to cover links to newspaper website content. The NLA believes that you (our customer) need a license from the NLA in order to click on the links you receive from the Meltwater News Service. Meltwater strongly disagrees with this and has announced today that we are taking the NLA to the UK Copyright Tribunal to challenge what we consider to be a "link tax" without legal basis.

The NLA, originally formed in 1996, was created to license and collect revenue from the copying and clipping of print media. Now the agency is attempting to enforce licensing agreements on Internet links. The NLA is targeting both companies providing media monitoring services and the customers subscribing to such services.

Meltwater is pursuing this legal action after the NLA threatened to sue any online media monitoring company who fails to sign up to its new content licensing agreement by January 1. 2010. We have been in good faith discussions with the NLA for several months now, but have been unable to come to an agreement. While Meltwater respects the copyright of the NLA's members, the licensing scheme seeks to control the receipt of links to freely published online content, even though such rights are not granted to copyright owners under UK copyright law. Therefore, Meltwater has decided to take this matter to the UK Copyright Tribunal because we believe that the NLA's licensing scheme has no basis in UK copyright law.

It may take 9 to 12 months for the Tribunal to come to its decision. In this period, Meltwater will continue to serve you with links to relevant news stories and we will continue to do our very best to meet your needs. ..."

Meltwater's email also contains an attachment with FAQs relating to this dispute. The NLA website's Guidance for Clients in turn contains the following advice:

"Soft Copy/Electronic Press Cuttings

If your client receives an electronic press clipping service from a press cuttings agency either via a web portal, or if you gain access to relevant articles via web links and wish to give your clients access to their cuttings via this means, then you will need to ensure you have opted for the digital extension to your NLA licence.

Agencies must confirm to the NLA the number of email addresses they wish to supply with cuttings at each client. Clients are allowed to view the cuttings on screen without the need to be licensed. If clients wish to print off copies, or foward emails they will need their own NLA licence".

Further information is provided in the "FrontLine Survival Guide to Copyright for PR Professionals" here.

While readers are left to make up their own minds, the 1709 Blog can add a few short observations and comments: (i) if neither the provision of links to customers nor their use by customers constitute acts which are restricted by copyright, there is nothing to license; (ii) it appears from the above that, while Meltwater states that it is the customers who will require a licence, the NLA states that clients can view cuttings on-screen without the need for a licence and it is the agency that needs the licence; (iii) this is the sort of scenario in which the absence of generally-agreed international norms as to what is permitted (or not) on the internet is bound to cause persistent trouble. Links to copyright-protected material are no longer a new and unfamiliar phenomenon; the time has surely come to reach a clear and consistent consensus, so that businesses can invest in the creation, sale and dissemination of content in the knowledge that their investment either will, or will not, be protected by copyright law, by contractual licence, by unfair competition principles or by anything else.

Abode to go?

Thanks to my old friend Dan Bereskin (Bereskin & Parr, Toronto) I can bring you the following news, in the words of thierry (sic) Ehrmann himself:

"On 9 December 2009, the Abode of Chaos celebrated 10 years of combat for freedom of expression.

The Cassation Court's criminal chamber presiding over a second appeal has delivered an order dated 15 December 2009 for the destruction of the 3,123 works of art forming the corpus of the Demeure du Chaos created by the artist and sculptor thierry Ehrmann in 1999.

Founded by the conceptual act of thierry Ehrmann on 9 December 1999, the Abode of Chaos (per the NYT) is an œuvre au noir (nigredo) inspired by the alchemical chaos of the 21st Century, whose tragic and yet sumptuous embers were ignited on 11 September 2001.

After just 10 years - and more than 1200 press and TV articles in 72 countries around the world - the international art community today recognises the Abode of Chaos as a unique and "sacred" artistic factory. This free open-air museum with more than 3,123 works attracts more than 120,000 visitors each year.

Between February 2006 and June 2008, under its E.R.P. status (Etablissement Recevant du Public) status, the Abode of Chaos attracted 437,130 visitors of whom 21% came from outside France. The place also hosts a number of artists in residence.

Since 1999, the local authority of Saint-Romain-au-Mont-d'Or (where the Abode is located) has been pursuing a crusade of artistic negation against the Abode of Chaos and continues to call for "the restoration of the building to its original state" … which means effectively means the complete destruction of the Abode!

This historic case will now be submitted to the European Court of Human Rights in the framework of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case law on this Article 10 has frequently ruled against France in the past.

The wording of the Cassation Court's rejection of our appeal clearly reflects its concern to uphold French building regulations, and their application by the Grenoble Appeal Court, as being coherent with the freedoms of expression guaranteed in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Backed by the artists' collective and the weight of 108,000 petition signatories, thierry Ehrmann is more than ever determined to pursue the vigorous battle to defend the rights of all people to freedom of expression by launching an appeal against this second order delivered by the Cassation Court - and against French legislation - before the European Court of Human Rights.

Thierry Ehrmann considers that this decision violates his freedom of expression and that this freedom cannot be uniquely subjected to Building Regulations since artistic expression has been a national and universal right since the beginning of time.

In the current context, the petition to save the Abode of Chaos from destruction is of paramount importance. It will allow this extraordinary legal dispute to be taken before the European Court of Human Rights.

In an era when France is desperately seeking solutions to its diminishing global artistic influence and seems unsure of where to steer its national cultural policy (particularly with respect to the principle of free entry to museums), the Abode of Chaos is a bold and original response".

Follow the news direct from the Abode of Chaos here, here and here".While issues relating to human rights and cultural vandalism are always appealing, I find myself as ever focusing on the question of copyright: to what extent, if any, could the Abode of Chaos claim any sort of copyright protection and what, in commercial and moral rights terms, might be the outer limits of its protection? Readers' comments are, as ever, welcome.

French Google Book Search: ‘Non c’est non!’

Today a French court determined that Google had infringed the copyright of the La Martinière group of publishers by scanning their books and making ‘snippet’ sections of them available through Google Book Search (judgment here). Google was fined €300,000 and given a month to remove the scans or face fines of €10,000 a day.

The case shares the same history as the Google Book Settlement – except that the American claimants chose to settle while the French did not.

Google Book Search began with a ‘Partner Program’ – publishers licensing Google to digitize books and display the page containing the search term plus a few adjacent pages. In 2004 the Google Books Library Project was announced. Participating libraries allow Google to scan their books (out of copyright and in copyright). Public domain books are available in full. Snippets of in-copyright books are returned by a search. Google say they do not need permission from the copyright owners for this: it is covered by fair use. Google has now scanned more than 10 million books. In 2005 Google was sued for copyright infringement by the Authors Guild and five American publishers. In 2006 three publishers in the La Martinière group sued in France.

There were three key issues in the French case. Did the French publishers own the digital rights in the books? Should French or US law apply? Is copyright infringed?

Google argued that La Martinière were in no position to sue as they didn’t have the relevant digital rights.

The significance of choice of law is that European law does not provide Google with the potential fair use defence that may be available under US law. La Martinière argued that for délits complexes (where the cause and the effect are in different countries) the court should apply the law of the country that has the most points of contact with the case. La Martinière said France is that country for several reasons including: one of the defendants is Google France (based in France and it has some responsibility for Google Book Search), the site has a French domain name and is written in French, the claimants are based in France and the books’ authors are French. They also questioned whether it is certain that the place where the books were scanned and the location of the servers is in the US.

Google said that scanning for Google Book Search is not ‘reproduction’ in French law as the scan was not for human consumption, only the extracts – Article L. 122-3 of the Code of Intellectual Property says ‘reproduction shall consist in the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way’ (italics added). The extracts, Google said, fall within the copyright exception for short quotations. La Martinière disagreed, adding that Google Book Search also returns complete book jackets.

The judgment calls into question the UK Publishers Association’s motivation for signing up to the Google Book Settlement. One of the reasons it has been sitting on its hands over the Settlement is that they are dissuaded by the costs of litigating against the mighty Google. This risk analysis has now been called into question. Google, however, is not the only mighty force the PA has been influenced by: some powerful UK publishers are pushing for the Settlement to go through as they have private deals in place.

Italian Courts, latest score: Berlusconi 1; YouTube 0

The Italian court today struck a significant blow in favour of Mediaset, the broadcaster controlled by Silvio Berlusconi, and against YouTube. The judge, Tommaso Marvasi, apparently ordered YouTube to remove ALL content of Mediaset that had been illegally uploaded to the site, which Mediaset had pointed out during the trial amounted to thousands of clips and hundreds of hours of programming. 1709 hasn't yet got its hands on the original judgement (and anyway, doesn't speak good enough Italian), but press reports speak of the emphasis given to the amount of Italian Big Brother (grande fratello?)programming on the site and the importance of Big Brother in Italy.

We await with interest the decision to see how the judge analyses the relevant key provisions of European law, and in particular the scope of the "hosting" defence under the Ecommerce Directive in this context. No doubt lawyers in other jurisdictions are already sharpening their writs in pursuit of YouTube - in the meantime, the Viacom v YouTube litigation continues to wend its way through the New York courts, with no sign of an imminent conclusion.

Appeal of Star Wars helmets

Three judges yesterday told the creators of Star Wars that their Stormtroopers simply didn’t have the X factor (judgment here).

Andrew Ainsworth, who made the helmets and uniforms for the 1977 film Star Wars IV – A New Hope, subsequently set up a business selling replicas. In 2006 a US court granted Lucasfilm an injunction against Ainsworth and $20m damages. In the Chancery Division it was held last year that:

1) The US judgment could not be enforced in England.
2) Although the uniforms were based on paintings and drawings by Ralph McQuarrie (example shown here) in which Lucasfilm owned copyright, the replicas did not infringe that copyright in UK law because they were not ‘artistic works’. Under s. 51 CDPA ‘it is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.’
3) Even if the uniforms were copyright works, the copyright would have been impliedly assigned to Lucasfilm.
4) However, the US copyright claim was justiciable in England.

The Court of Appeal agreed except on the last point, with the effect that Lucasfilm is left with no cause of action against Ainsworth in England.

Why didn’t the court think that the helmet is an artistic work, a ‘sculpture’? It said it was impossible to define sculpture but it must at least be ‘intended to be a work of art’, to have ‘visual appeal’ as part of its purpose. It affirmed that the helmets were ‘no different from and serve the same purpose as any real helmet or armour used in a film’, they were ‘utilitarian and lacking in artistic purpose’. Really? The helmets and uniforms are clearly designed to produce an imaginative and emotional response in the viewer – something they do very well.

No viewers’ votes in this contest but an appeal on appeal may appeal...?

GUIs go to Luxembourg

The Curia website this morning boasts news of yet another copyright-related reference to the Court of Justice of the European Union, this time from the Nejvyšší správní soud (the Czech Supreme Administrative Court). Lodged on 5 October 2009, this is Case C-393/09 Bezpečnostní softwarová asociace (Security software association) v Ministerstvo kultury ČR (Ministry of Culture of the Czech Republic). The question asked is one that relates to GUIs (graphic user interfaces -- the things that turn one's daily activities on the computer from pain to pleasure) -- and the legal context relates to that slumbering and best-forgotten piece of obsolete legislation, the Software Directive:

"Should Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs be interpreted as meaning that, for the purposes of the copyright protection of a computer program as a work under that directive, the phrase 'the expression in any form of a computer program' also includes the graphic user interface of the computer program or part thereof?

If the answer to the first question is in the affirmative, does television broadcasting, whereby the public is enabled to have sensory perception of the graphic user interface of a computer program or part thereof, albeit without the possibility of actively exercising control over that program, constitute making a work or part thereof available to the public within the meaning of Article 3(1) of European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?"

If any reader has background information about the dispute leading to this reference, the 1709 Blog would love to know about it.

'Fair compensation'

Spotted on the Curia website the other day: Case C-387/09 Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA) v Magnatrading S.L., a reference for a preliminary ruling from the Juzgado Mercantil (Spain) which was lodged on 1 October 2009.

The questions referred to the Court of Justice of the European Union for its ruling are as follows:

"1. Is the concept of 'fair compensation' in Article 5(2)(b) of Directive 2001/29/EC [the 'Information Society Directive'] a new Community concept which must be interpreted in the same way in all the Member States of the European Community?

If the reply to the first question is in the affirmative:

2.1 If a national system of equitable remuneration for private copying existed before the entry into force of Directive 2001/29/EC, must the national provisions be interpreted 'in conformity' with the new concept of 'fair compensation' for private copying following the entry into force of Directive 29/2001?

2.2 Must the scope of the private copying exception in Article 5(2)(b) of Directive 2001/29, and the criteria set out in recital 35 in the preamble to the directive, be taken into account in order to determine which devices are subject to the payment of fair compensation and the amount thereof?

If that is the case, would it be compatible with the Community concept of 'fair compensation for private copying' (a) to establish a liability to pay that compensation in respect of devices intended for personal and professional use other than 'private copying' and/or (b) to set a flat-rate payment which does not take account of whether the devices are used for the purposes of private copying and the harm which is liable to result from such use, thereby making situations where there is no harm or where the harm is negligible also subject to the payment of compensation?

2.3 Is a system which, by setting a private copying limit, establishes a general liability to pay fair compensation on a certain category of equipment or media (for example, recordable CD-R and DVD-R data computer disks), irrespective of whether they are purchased by natural persons for private use or by natural persons for professional use, in order to generate and store their own data or in compliance with legal obligations, or by legal persons who do not benefit from the private copying exception in any circumstances, compatible with Article 5(2)(b) of Directive 2001/29?

3. If the reply to the first question is in the negative:

3.1. Does that mean that Member States have complete freedom to lay down the criteria and mechanisms for determining which devices are subject to the payment of fair compensation for private copying and the amounts thereof, or are there certain limits on that freedom and, if so, what are they?

3.2. Does that mean that Member States are entitled to permit private third parties to collect compensation in respect of works which authors have assigned voluntarily and free of charge to a society by means of licences or are there certain limits on that right and, if so, what are they?

3.3. Does that mean that Member States are entitled to permit private third parties to collect compensation from users where such users lawfully comply with a provision which is public and binding or are there certain limits on that right and, if so, what are they?"

The 1709 Blog awaits developments with interest, noting also that 'fair compensation' under the same Directive is also the subject of a reference to the same court in Stichting de Thuiskopie v Opus Supplies Deutschland GmbH (noted on the 1709 Blog here).

Random: 'Our digital rights are here, in black and white!'

Last Friday Random House Inc sent out this letter to agents about their digital publishing plans. Clearing up misunderstandings over ‘older agreements’, it states: ‘Random House considers contracts that grant the exclusive right to publish “in book form” or “in any and all editions” to include the exclusive right to publish in electronic book publishing formats.’ Unsuprisingly not everyone agrees – including the estate of William Styron.

Random’s assertion is particularly bold in view of Random House Inc v. Rosetta Books Inc. In 2001 Random sought an injunction to prevent Rosetta from publishing ebooks of eight titles. Random said the digital rights belonged to them under licences to publish in ‘book form’ dated 1961–82. The judge disagreed. His conclusion was based on a detailed analysis of other terms of the contracts, not the fact that the licences pre-dated ebooks – which suggests that US agent Nat Sobel isn’t necessarily right when he says that ‘contracts 20 years ago didn’t cover electronic rights’. The point is that Random may have some digital rights but it’s impossible to generalize.

Many American authors must now be resetting their junk email settings having received not just one but two emails about their digital rights in the last few days. Yesterday it was the notice of the Google Amended Settlement. Are the two linked? Certainly – Random can only claim Settlement revenues if it has digital rights. (Should a publisher with print rights – but not digital rights – claim print-on-demand revenues under the Settlement...?)

As I discussed in a paper to the CLT Copying Without Infringing conference a few weeks ago, the ownership of digital text rights is also a debatable issue in English law where ‘volume form’ rights are often granted. Lord Hoffmann’s rule in Investors Compensation Scheme v. West Bromwich Building Society looks on the face of it capable of slicing through any Gordian knot: ‘Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.’ However, not only can putting yourself in the shoes of that person prove difficult but ‘meaning’ is not necessarily restricted by what was technologically available at the time of the contract.

Transfer of title: a reader asks ..

Trade mark attorney Aaron Wood has written in with a question for readers of the 1709 Blog. He writes:

"Certain countries (such as Germany) have a copyright system that does not allow for transfer of copyright from the owner while they are alive: as well as the moral rights, the economic rights cannot be transfered. You have to grant licences instead. In the context of Germany, I have learnt that you cannot license for use in all media (whether invented or to be invented), so the author can essentially re-open the licence to get further remuneration in the right circumsances. It would appear to be a pain for "format" owners, but I can see an issue for trade mark owners too in relation to the ownership of copyright in the logo".

Aaron suspects that the position may be similar in the Czech Republic, and he wonders whether it might be the case anywhere else in Europe. At any rate, he'd welcome as many responses as possible. Please feel free to post your observations below, or you can email Aaron directly here.

EU ratifies WIPO Copyright Treaties

Today, the EU ratified the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Press release here.

Google’s books: a Special Relationship with copyright

In years to come we will look back on the Google Book Settlement as a historic turning point in the history of copyright, David Carson (General Counsel, US Copyright Office) told the IBC International Copyright Law conference in London last week. In my presentation to the conference I added that now that the Settlement only includes books published in the UK, Canada and Australia or registered with the US Copyright Office, the UK has a key role to play in making this historic decision. So how do you go about making a historic decision? Can we rise to the challenge or are we frozen in the headlights of History?

While Angela Merkel and Nicolas Sarkozy have weighed in on the subject, the UK seems to be preoccupied with other things. Perhaps we’re too busy carrying out a post-mortem into another historic decision to find the time to get our heads round a new one. On the other hand, maybe there’s something useful we can learn from our past, a lesson about going it alone in the international community, taking the law into your own hands...

International copyright law says that authors have exclusive rights to authorize the reproduction and making available of their works, and these rights should not be subject to formalities. Google has scanned over 10 million books. The Settlement is a licence to exploit them in numerous ways. It is significantly lacking in authors’ authorization and it imposes burdensome formalities.

But so what, if it makes some people happy and other people money? The problem is that this is a major one-off suspension of international law for the benefit of one company. Unsurprisingly, the effect is anti-competitive. Not only does Google get to be king of US publishing overnight but, more importantly, this further bolsters its dominant position in the global online advertising business. And this isn’t just one company in pole position, it’s one nation. The Settlement is a licence to make millions of out-of-print books available in just one country, the US. Nobody anywhere else in the world will be able to access this immense resource. The playing field is going to be sloping for many people, including academics, researchers, lawyers....

Historic decisions are worth getting right.

An In Memoriam for the Copyright Community

Tomorrow, David Lammy, Stephen Timms, Lord Drayson, copyright creators, content owners and copyright disseminators and licensees should perhaps spend a few moments in private contemplation to mark the anniversary of the birth of the late Robert Norton Noyce (12, December 1927 - June 3, 1990).

Noyce (right), founder of Fairchild and Intel, was the co-creator, with Jack Kilby, of the integrated circuit or microchip. (Noyce's development actually pre-dated Kilby's, but both men embraced the co-creator credit).

In contrast to Noyce's nickname as the Mayor of Silicon valley, remembrances of him inevitably include the fact that he eschewed the trappings of office such as corporate jets, swanky cars and other perquisites. Media moguls take note.

In a move that pre-dates by decades the content industries' efforts at finding consensus to address the on-line distribution of copyright works, Noyce was, at the time of his death, President and CEO of Sematech, an Austin-based research consortium. Sematech describes itself as " an influential collection of relationships with the top semiconductor suppliers, universities, government labs, industry organizations, and other consortia bring additional resources and creativity to technical challenges and setting industry direction." Now, there's an idea!

ad hoc music copyright business models

The UK's Radio Times for next week contains a neat anecdote by DJ Stuart Maconie involving Paddy McAloon of Prefab Sprout.

According to Maconie, McAloon, in availing himself of the services of a London Black Cab, was discussing the vexed question of illegal music downloads with his cabbie. The cabbie confessed that, yes, he did sometimes download his music unlawfully, but reassured his passenger that he paid for three quarters of his music. On reaching his destination, McAloon simply gave the driver three quarters of the fare! See other music-themed black cabs here.

Peers flesh out Digital Economy Bill

Last week the House of Lords greeted the Digital Economy Bill with (almost) universal approval in its Second Reading. Most agreed with the sparkling Lord Mandelson when he said: ‘I recognise that this House is probably the one place in Britain where peer-to-peer file-sharing is associated more with passing notes in the Lords’ tea room than with piracy, but, joking aside, this is a major problem for Britain’s creative industries.’ The commonest criticism was ‘too little, too late’ – why didn’t it cover camcorder crime (recording a movie in a cinema and uploading it to the net) or legalize format-shifting?

Yesterday some amendments to be moved in committee were published. They include two interesting new clauses:

"Obligation to block access to a website:
(1) This section applies if it appears to a copyright owner that a website is infringing his copyright for gain.
(2) The owner may seek a declaration from a court that it is satisfied, on the evidence available, that such an infringement is taking place, and that notice of the infringement has been given and has not resulted in the infringement ceasing.
(3) An internet service provider shall, on the presentation of the declaration block access to the website from its services."

"Obligations on copyright holders: Copyright holders seeking to take action against subscribers for online copyright infringement must use the process set out in sections 4 to 8 except in cases of actual or likely extreme prejudice."

This appears to follow Lord Lucas’s suggestion in the Second Reading that:

‘it should be compulsory for copyright holders to go through the mechanism we are putting in place. It is not acceptable that we are putting in place a mechanism for them to deal with peer-to-peer file-sharing and for them still to go immediately to lawyers and harass people as the pornography industry does already. The briefing that noble Lords will have seen from Which? describes the consequences well. We should take the opportunity of this Bill to stamp that out.’

Lord Lucas got in quite a froth over porn:

‘We have to be careful too about the industry cloaking itself in the finery of the small, creative individual. We are not talking about the small, creative individual here, but about powerful, monopolistic industries and giving them power over citizens. We must be careful of that. A principal example is that of the pornography industry, which I have seen mentioned in one briefing but has not been spoken of in any of the speeches today. Pornography is widely used on the internet and is one of the most assiduous industries when it comes to pursuing people for supposed non-payment for illegal downloads et cetera. We have to face it that we will be putting a lot of people into the hands of pornographers and their lawyers if we are not careful about the way we draft the Bill.’

Whether or not this is a good proposal, it’s bizarre to see the creative industries and the porn business being lumped together.

Pirate Party: serious threat or big joke?

Speaking at the IBC Informa International Copyright Law 2009 conference yesterday (programme here), I gave a brief presentation on "From Pirate Bay to Pirate Party" in which I outlined my thoughts on the evolution of an IP-hostile culture into a political movement. My feeling is that the sentiments that have galvanised many politically apathetic youngsters into forming organisations and employing the democratic process for their highly focused ends is something we should take extremely seriously, and that every assertion which the Pirate Party makes should be fully addressed and responded to.

Right: The major political parties are not addressing Pirate Party issues. Are they living in Cloud Cuckoo Land?

MAQS litigation lawyer Monique Wadsted, who has been involved in legal proceedings against The Pirate Bay over the past six years (which provided the subject of her talk), took a more optimistic view: the Swedish Pirate Party is not doing so well in recent opinion polls and its membership figures are less impressive when one considers that membership is free. Nonetheless, the Swedish Pirate Party already has two Members of the European Parliament and it is not beyond the bounds of reality to imagine in a world in which that number increases. The issues which it raises are not frivolous; they also address areas beyond file-sharing and copyright alone, as Pirate Party submissions on the patentability of computer programs and policies on data protection and surveillance demonstrate. They also call for things to which no rational voter could object, such as greater transparency in the workings of the European Union's various organs. Above all, the acceptance of file-sharing as a means of sharing information, just as one might lend a friend a newspaper or DVD, is something that appeals to those who believe they cannot or should not pay for what they want -- the young and the unwaged -- many of whom have grown up in an environment in which the simple equation that governs their computer use is 'internet = free'.

My PowerPoints, for what they're worth, are here.

Royalty Reporting: Directly and Identifiably Up the Creek

To my surprise, and in the unaccustomed guise of devil's advocate, I find myself agreeing on this one occasion with a behemoth - Google. And it is all Tim Quirk's fault - bless him!

To be precise, I find myself agreeing with William Patry, Senior Copyright Counsel at Google and author of the book and new blog Moral Panics and the Copyright Wars. Speaking in this instance "on his own behalf" on 1st December at IQsensato, Patry attempted to explode the myth that stronger copyright and attempts to end infringement will save the industry. He ventured: "if life conflicts with theory, then the theory has to be changed or abandoned … we can’t follow ideology at the expense of reality." Hear, hear.

And Patry supported WIPO Director General Francis Gurry who, in a speech in August, said: “we shouldn’t, in the copyright world, be making policies that support either the business models of the 20th century or the models of the 21st century. We should be trying to find legal mechanisms that are neutral to the business models”.

Patry, referring to 1709's elderly chum St Columba, asserted that the “ideology of copyright has protected business models little advanced” from an Irish dispute from the 560s.

In support of this sensible suggestion, I offer readers this illustration about music industry business models:

Ben Challis' piece on this blog in October looked at the realities of the Spotify business model. One of the difficulties being experienced by musicians is the difficulty their corporate partners seem to be experiencing accounting accurately to the talent for sales and use of their music over the internet. Record contracts allocate revenue where it is "directly and identifiably" attributable to an artists's work.

A piece on CMU Daily on 4th December reported on the recent digital use royalty statement for a whole $62.27 provided by Warner Bros. to Tim Quirk (left) , frontman of US nineties rockers Too Much Joy. As Quirk works now for a big US digital music company, he is extremely well-placed to compare music use reporting facilities from music dissemination services with reporting "facilities" at his erstwhile record company.

Tangentially, I have to question the wisdom of such unaccountable (no pun intended) figures having been sent by Warners to Quirk. The Warner's misstep would seem to support the late, great Frank Zappa (below) who said "Some scientists claim that hydrogen, because it is so plentiful, is the basic building block of the universe. I dispute that. I say there is more stupidity than hydrogen, and that is the basic building block of the universe."

If readers can think they can control their rage at record companies' continued problems with their accounting practices, the deliciously frank Quirk piece here , My Hilarious Warner Bros. Royalty Statement, is really instructive. And, Quirk salutes the rational Pete Jenner, one of the smartest music managers around when it comes to the digital challenge and who has a 360 approach we should all be able to support.

SABIP-commissioned research revealed that filesharers (allegedly) might access more music lawfully if they believed the money was paid to the talent.

For the music industry, so well-organised and so successful in bringing the economic problems of the music industry to goverment and public attention, things may not be so rosy while old business models are having to be squished into the digital dissemination business. (Though, the real mystery is how the talent and the corporations have managed to get so far when their relationship is so riddled with inequity.) Artists are still burdened with contracts that were drawn up in a climate where manufacturing, packaging, promotional and distribution costs were huge (from the record companies' accounting perspective). Artists bound by old agreements, like Quirk, find themselves subject to a royalty calculation model that bears no relation to the reality of doing business in the digital world.

I am not sure what the solution is, but, if SABIP's results are to be believed, consumers are unlikely to respond positively by paying for music if they are aware of the parlous state of record companies' accounting practices.

Let's leave Patry with the last word: "The real problems of the content-producing industry today are business problems.......copyright law has become a crutch used by incumbents in the industry to preserve their incumbency against innovative newcomers".

Facebook, Google, Yahoo! and eBay unite!!

Last week 1709 blogger John Enser wrote about the initial copy of the Digital Economy bill, with a particular focus on Clause 17, which he described as follows:

"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"."

This week Facebook, Google, Yahoo! and eBay (described in some reports as "internet companies" and in others as "web giants") have written an open letter to Lord Mandelson (the Secretary of State for Business, Innovation and Skills), urging him to remove clause 17 from the Digital Economy Bill. The letter argues that clause 17 gives the Secretary of State unprecedented and sweeping powers, and is so wide that it could put at risk legitimate use of current technology and could discourage future innovation.

The Digital Economy Bill had its second reading in the House of Lords on 2 December 2009 and enters its committee stage on 6 January 2010.

Source and more here: BBC News online, 2 December 2009.

The £100,00 jackpot -- have you received it, or do you know someone who has?

On Wednesday the IPKat weblog ran a short note on Copywatch's offers of up to £100,000 for anyone who blows the whistle on workplace copyright infringements, asking if any readers knew of actual pay-outs. No-one has come forward with details of any payments, so I'm asking the 1709 Blog's more specialist copyright-based readership if it can do what the IPKat's readers can't.

Meanwhile, I received this communication from one reader who opted for discreet anonymity:

"I don't have any examples of payouts to informers. But some years back the Newspaper Licensing Agency used to "name and shame" people who were said to have infringed copyright in newspapers (click here, then on the "law on copyright" link at the bottom of the page which lists companies making payouts for copying activities, even though they weren't court cases).

The list once had a number of higher profile names on it - namely each of the main political parties (for which click here and then again on "law on copyright")".

Copyright, Contracts and Creativity

It may come as a shock to those who spend much of their lives wrestling with copyright licences that there has, to date, been very little academic research on the subject of the relationship of copyright and contract. The Centre for Intellectual Property Policy & Management at Bournemouth University has now begun to plug this gap by posting materials from its September symposium on Copyright, Contracts and Creativity – here.

The symposium did not arise in a vacuum. Its organizers are undertaking research on this topic for SABIP (the Strategic Advisory Board for Intellectual Property Policy). SABIP’s research is feeding into government copyright policy.

The government’s copyright agenda published in © the way ahead last month is ambitious. Facing up to the challenges presented by the ease of digital copying, it proposes both to make it easier to get permission (orphan works legislation, extended collective licensing, voluntary rights registers, perhaps an EU non-commercial exception) and harder to infringe (three strikes). Undaunted by the size of this problem, the government is also looking at the fairness of copyright contracts as a parallel line of enquiry.

The symposium focused on contracts with primary creators and, in tune with the government’s concerns, reveals just how discontented those creators often are with their contracts. For example, they resent being pressurized to assign their copyright or waive their moral rights.

The government for its part made the following promise in © the way ahead:

“The Government will draw together a group to develop model contracts or contract clauses that strike a fair balance between the rights of creators and publishers, which will form a benchmark for good practice. These should include alternatives based on licensing of rights to publishers as well as assignment of rights, including reversion of rights where works are no longer being made available. We expect this group to operate in a similar way to the one that created the Lambert Agreements on university business research collaborations.”

This is no mean challenge. Firstly, one of the other issues the government is concerned about is reducing the complexity of rights contracts – less assignments would result in greater complexity. Secondly, however a contract is structured, the key term that determines how fair it is is the one that begins with the letter £. The only sure way to fix this is to reduce the number of talented people who are prepared to work in arty industries for next to nothing.